Spruce Pine Manufacturing Co.

National Labor Relations Board - Board Decisions

Jun 22, 1965

153 N.L.R.B. 309 (N.L.R.B. 1965)

SPRUCE PINE MANUFACTURING COMPANY 309
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Room
706, Federal Office Builr'.ing, 500 Zack Street, Tampa, Florida, Telephone No. 228-
7711, if they have any question concerning this notice or compliance with its
provisions.
Sagamore Shirt ., Company d/b/a Spruce Pine Manufacturing
Company and Amalgamated Clothing Workers of America,
AFL-CIO. Case No. 11-CA-2319. June 22, 1965
DECISION AND ORDER
On December 23,1964, Trial Examiner Thomas F. Maher issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. The Trial Examiner further found that the Respondent had not
engaged in certain other unfair labor practices alleged in the complaint
and recommended that the complaint be dismissed with respect to the
latter allegations. Thereafter, the Respondent and the Intervenors 1
filed exceptions to the Trial Examiner's Decision and briefs in support
thereof. The General Counsel filed exceptions to the Trial Examiner's
Decision and the Charging Party filed cross-exceptions with support-
ing briefs thereto.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the findings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and cross-exceptions, the briefs,
and the entire record in this case, and hereby adopts the findings,' con-
1 Sixty-four of the Respondent's employees, represented by counsel, moved to intervene
in this proceeding The Trial Examiner granted the motion as a valid exercise of his
discretion under the National Labor Relations Board's Rules and Regulations, Section
102.29, Series 8, as amended, and on the basis of the Board's holding in Gary Steel Prod-
ucts Corporation, 144 NLRB 1160, footnote 1.
2 Both the General Counsel and the Charging Party except to the Trial Examiner's
finding that the authorization cards of Jarvis Lee Harris and Marcella Boone were not
properly authenticated and should not be included in establishing the Union's majority.
Since we find, in agreement with the Trial Examiner, that the Union represented a ma-
jority of the employees at the time of its demand for recognition, we do not deem it
necessary to p ss on the validity of the Harris and Boone cards.
No exception having been filed regarding the Trial Examiner's rejection of the authoriza-
tion card of Katherine V. Erwin, the Board adopts, pro forma, the Trial Examiner's
finning that her card was not adequately authenticated.
With respect to the authorization cards relied upon to establish the Union's majority
status, Member Brown refers to his stated position in Cumberland Shoe Corporation, 144
NLRB 1268, 1269
153 NLRB No. 27.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elusions, and recommendations of the Trial Examiner with the follow-
ing additions.
1. The Respondent takes exception to the Trial Examiner's finding
that the first numbered paragraph of the notice posted at Respondent's
plant on October 16, 1963, and sent to each employee, constitutes a vio-
lation of Section 8 (a) (1) of the Act. As noted by the Trial Examiner,
this portion of the notice has been the subject of extensive litigation
before the Board and various courts of appeals and we respectfully
adhere to our position concerning such notice .3 Particularly in the
light of the other unfair labor practices found herein, we agree with
the Trial Examiner that the above-mentioned portion of the notice
violated Section 8 (a) (1).
2. The General Counsel and the Charging Party take exception to
the failure of the Trial Examiner to find that the Respondent dis-
criminatorily applied a no-solicitation rule. The rule is contained in
the sixth numbered paragraph of the above-mentioned notice.
It is urged that Floorlady Dunn's failure to prevent employee Gilly
from circulating a note among the employees, during working hours,
was discriminatory application of the no-solicitation rule. The note
called on the employees to support the Company's opposition to the
Union by meeting with the plant manager in his office. We do not
agree with the contentions of the General Counsel and the Charging
Party concerning the legal significance of this incident. The record
shows that the Respondent never invoked the sanctions of the rule
against any employee for union activities in the plant 4 Indeed,
beyond the promulgation of the rule in the notice, the Respondent did
nothing further in this regard. In these circumstances, we find that
the Respondent did not discriminatorily apply, or fail to apply, the
no-solicitation rule, and, in agreement with the Trial Examiner's
recommendation, we hereby dismiss that allegation of the complaint.
3. The Charging Party takes exception to the scope of the Order
recommended by the Trial Examiner, and contends that the violations
committed by the Respondent warrant issuance of a broad order.
Again we do not agree. In our judgment, the remedy recommended
by the Trial Examiner is adequate to correct the specific violations
found herein. A broad cease-and-desist order, as urged by the Charg-
ing Party, would not be supported by the record in this case. Accord-
ingly, we shall adopt the Trial Examiner's Recommended Order.
'See, for example , Owens - Corning Fiberglas Corporation, 146 NLRB 1492 . Member
Jenkins would accede to the court's view of this notice, and , accordingly , would not find
the notice violative of Section 8(a) (1).
* We note that neither the General Counsel nor the Charging Party contest the validity
of the no -solicitation rule. Accordingly , we do not pass on this question in arriving at
our decision to dismiss this portion of the complaint.
SPRUCE PINE MANUFACTURING COMPANY 311
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner, and orders
that Sagamore Shirt Company d/b/a Spruce Pine Manufacturing
Company, Burnsville, North Carolina, its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed on December 18, 1963, by Amalgamated Clothing Workers of
America, AFL-CIO, Charging Party herein, the Acting Regional Director for Region
11 of the National Labor Relations Board, herein called the Board, issued a com-
plaint on behalf of the General Counsel of the Board on March 19, 1964, against
Sagamore Shirt Company d/b/a Spruce Pine Manufacturing Company, Respondent
herein, alleging violations of Section 8(a)(1), (3), and (5) of the National Labor
Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein called the Act. In its
duly filed answer Respondent, while admitting certain allegations of the complaint,
denied the commission of any unfair labor practice.
Pursuant to notice, a hearing was held before Trial Examiner Thomas F. Maher
on May 19, 20, and 21, 1964, at Burnsville, North Carolina, where all parties were
present and represented by counsel Sixty-four of Respondent's employees, repre-
sented by counsel, were permitted to intervene specially for the purpose of establish-
ing their claim that they constitute a majority of the employees, that they do not wish
to be represented by the Union herein, that their signatures on the union applications
were induced through threats, piomises of benefits, and other coercions, and that by
virtue of the procedure invoked upon the filing of the charge herein they were thereby
precluded from registering their opposition to the Union in the election scheduled to
be held in Case No. 1l-RC-1886, which election was canceled upon the withdrawal
of the Union' s petition fox representation following its filing of the instant unfair
labor practice charge. All parties were afforded full opportunity to be heard, to pre-
sent oral argument, and to file briefs with me. The Union filed its brief on June 24,
1964. Neither counsel for the General Counsel, Respondent, nor Intervenors filed
briefs or memorandums with me.
Upon consideration of the entire record, including the Charging Union's brief, and
upon my observation of each witness appearing before me, including his demeanor
throughout the hearing as well as the substance of all his testimony,' I make the
following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Respondent is a Massachusetts corporation operating a plant at Spruce Pine, North
Carolina, where it is engaged in the manufacture of shirts. During the most recent
annual period Respondent manufactured, sold, and shipped from its Spruce Pine,
North Carolina, plant finished products valued in excess of $50,000 to points located
i Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before nie is based, at least in part, upon his demeanor
as I observed it as the time the testimony was given. Cf Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores, Inc ), 134 NLRB 1680, 1682,
and footnote 3 , Bryan Brothers Packing Company, 129 NLRB 285 To the extent that
I do not rely upon or I reject in part or entirely the testimony of any given witness, it
is my intent thereby to indicate that such part or whole of the testimony, as the case may
be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, 117, foot-
note 1, enfd 283 F. 2d 569 (C.A 2). To the extent that I credit any witness only in
part I do so upon the evidentiary rule that it is not uncommon "to believe some and not
all" of a witness' testimony. N L R B v. Universal Camera Corporation, 179 F. 2d 749,
754 (C.A.2).
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
outside the State of North Carolina. Upon the foregoing it is admitted by all parties,
and I conclude and find, that Respondent is an employer engaged in interstate com-
merce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted and I conclude and find that Amalgamated Clothing Workers of
America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ISSUES
1. The supervisory status of floorladies.
2. The Union's uncoerced majority.
3. The legality of the Employer's notice to its employees.
4. The interference, restraint, and coercion indulged in by Respondent's floorladies
and manager.
5. The Respondent's refusal to bargain.
IV. THE UNFAIR LABOR PRACTICES
A. Chronology
Organizing activities among Respondent's employees commenced in the spring of
1963 with visits to employee homes and the solicitation of membership applications
by the Union's staff director, Wilbur Reynolds, and thereafter by its field representa-
tive, Guarwin Biggs, Eddie Gee, an organizer, and Jewel Willis, a one-time employee
of the Company. The circumstances under which these application cards were pro-
cured, the claims made to both employees and to the Respondent by the union repre-
sentatives based upon these cards, and the frenzy of activity generated among
Respondent's employees and supervisors as the result of them form the basis of the
Union's and General Counsel's claim that Respondent refused to bargain with the
Union at a time when it represented an uncoerced majority of the employees, and
that through Plant Manager Edward A. Shay, Jr., and its supervisors, it interfered
with, restrained, and coerced these employees in their statutory rights.
Having procured a substantial number of signed cards by early October the Union,
in a letter dated October 14, 1963, and received by Respondent on the following day,
advised Respondent that it represented a majority of its employees and requested
that it be recognized as their bargaining representative and that Respondent bar-
gain collectively. In support of its claim to majority status the Union offered to
submit its signed membership cards to a check by an impartial third party. Shortly
thereafter, however, on October 22, 1963, Respondent, in a letter signed by Plant
Manager Shay, rejected the Union's claim and request for recognition and bargain-
ing, stating that it did not believe that "your Union represents an uncoerced major-
ity of our employees in an appropriate unit." Further, it suggested that the Union
petition the Board for an election to determine the employees' wishes in the matter.
Immediately thereafter, on October 23, 1963, the Union did file its petition in
Case No. 11-RC-1886. A hearing was held on November 22, 1963, and the
Regional Director's Decision and Direction of Election issued at Winston-Salem,
North Carolina, on December 4, 1963. An election was scheduled to be held on
December 19, 1963, but upon the filing of the charges herein on the day immedi-
ately preceding the date set for the election, the election was canceled in accordance
with the Board's usual practice in such matters Subsequently, on March 31, 1964,
the Union's request to withdraw its representation petition was granted with preju-
dice to its filing of a new petition for 6 months thereafter.
The circumstances and events occurring within the framework of the foregoing
chronological summary are detailed hereafter.
B. The essential facts
1. The supervisor
No one questions the supervisory status of Plant Manager Shay, but Respondent
does vigorously deny that the floorladies are supervisors. These are Winona Dunn,
Vera Gouge, Phyllis Henson, June Johnson, and Cathy Jones.
In his Decision and Direction of Election of December 4, 1963, following a full
hearing on November 22, the Regional Director fully considered the duties and status
of the classification, floorlady, and concluded that upon the facts presented the indi-
viduals involved responsibly directed employees and were therefore supervisors
within the meaning of the Act.
SPRUCE PINE MANUFACTURING COMPANY 313
It is well settled thr.L determinations made in a representation proceeding may not
thereafter be relitigated in a subsequent unfair labor practice case concerned with
the same bargaining unit subject matter.2 Nor is it significant, as here, that there
has been no review by the Board of the Regional Director's Decision. Respondent
never requested one is provided by the National Labor Relations Board's Rules and
Regulations, Series 8, as amended .3 These provide that failure to request review,
as was the case here, precludes the parties "from relitigating, in any related subse-
quent unfair labor practice proceeding, any issue which was, or could have been
raised in the representation proceeding." Respondent, having failed to seek such
review, cannot now be heard to complain that the determination of the Regional
Director was an error.4 I accordingly conclude and find, as previously found by
the Regional Director in Case No. 11-RC-1886, that the above-named floorladies
are supervisors within the meaning of the Act.
2. The appropriate unit
The Regional Director, in his Decision and Direction of Election (supra), deter-
mined, and I accordingly conclude and find,5 the following to be a unit appropriate
for the purposes of bargaining:
All production and maintenance employees at the Employer's Spruce Pine, North
Carolina, plant, excluding office clerical employees, floorladies, cutting foreman,
guards, and supervisors as defined in the Act.
3. The work force
At the hearing the parties stipulated to the accuracy of Respondent's payroll list
for the week ending October 19, 1963, the workweek which included the dates of
the Union's request and Respondent's refusal to bargain. This list was incorporated
into the record as the basis for determination of the numerical majortiy of union
adherents, as of the date of the Union's request for recognition and bargaining. It
contained 116 names.
Of the total individuals listed on the October 19 payroll certain deletions would
appropriately be in order. Thus, in line with my earlier finding respecting the super-
visory status of the five floorladies, their names would be deleted. Similarly, it was
found by the Regional Director and not contested by Respondent that the cutting
room foreman, the payroll clerk, the office girl, and the night watchman were not
part of the appropriate bargaining unit and these four names should likewise be
deleted. Also on the list was one Martha Hughes who credibly testified that she was
not hired until October 18, 4 days following the Union's claim to majority status.
As she was thus not employed on this critical date, her name, too, should be deleted.
A summary of the foregoing indicates that 10 individuals listed on the October 19
payroll were not employees of Respondent or part of the bargaining unit when the
Union claimed to be their majority representative. On the basis of arithmetical
subtraction, I would conclude and find that there were, as of October 14, 106
employees in the appropriate bargaining unit, and that as of that date the Union
would be required to show evidence of the uncoerced membership of 54 or more of
this number to substantiate its majority claim.
4. The cards
The circumstances surrounding the procurement of union member signatures is
the keystone of Respondent's contention that on October 14, 1963, the Union did
not represent a majority of the employees of the unit, a number which I have found
must be 54 or more. A factual analysis of the application cards is therefore crucial
to General Counsel's contrary contention. Nor is a numerical majority sufficient,
for it is implicit in Respondent's contention that the number, if adequate, certainly
did not represent an uncoerced majority. Thus the circumstances of the signing is
as significant to General Counsel's case as the authenticity of the signatures
A total of 63 cards were introduced into evidence to support the Union's claim
to majority status. Of this number 13 cards were introduced upon their identifica-
2Natieirat Van Lines, 123 NLRB 1272, 1273, footnote 4, Pittsburgh Plate Glass Com-
pany v N.L R.B., 313 U.S. 146, 158.
3 Section 102 67(f).
4 Cf. United Dairies, Inc., 144 NLRB 153.
5 Supra, footnotes 2, 3, and 4.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion by the respective signers called by the General Counsel as witnesses.6 There
seems to be no question of the authenticity of these cards. Two other cards-those
for Katherine V. Erwin and Marcella Boone-were introduced by a former employee,
Jewel Willis, who was actively working for the Union among the employees. Neither
Erwin or Boone was called as a witness and the authenticity of their cards rests
solely upon Willis' statement that she procured the signatures. The card of Kather-
ine Erwin, identified in the record as General Counsel's Exhibit No. 10(k), bore a
signature which did not compare favorably with other examples of this employee's
handwriting. Four signatures of Erwin obtained from documents in the company
files were established to my satisfaction upon the credited voir dire testimony of
Plant Manager Shay to be genuine; these documents being her employment applica-
tion, State and Federal income tax withholding authorizations, and a receipt for a
company handbook. When compared with Erwin's signature on the union card
even Willis, who insisted that the card had been signed in her presence, conceded
that it bore no resemblance to the genuine specimens. Upon this comparison, and
because I discredit Willis,7 I reject Erwin's card as being unauthenticated Indeed,
as Willis conceded that Erwin had signed the card in blank and that Union Repre-
sentative Reynolds thereafter filled it in, I would for that further reason reject it
even were Ito credit Willis' account of the entire transaction.
Willis also testified that the card of Marcella Boone, being General Counsel's
Exhibit No. 10(1), was also signed by her in her (Willis') presence. Upon com-
parison of Boone's signature with samples obtained from the Company's files I am
satisfied that it is genuine. Be that as it may, however, Willis admitted that Boone's
card was signed in blank and filled in by Reynolds, as had Erwin's card. For this
reason and because I do not accept Willis' testimony as to the signing of these cards
in her presence (supra), I reject Marcella Boone's card as being unauthenticated.
Another of the cards, that of Jarvis Lee Harris (General Counsel Exhibit No.
10(kkk) ), was identified in a most unusual manner. Union Field Representative
Gee testified that he went to Harris' home in the company of John H Bailey, a field
examiner of the Board, who asked her to identify a card she had previously signed-
the card in question here. According to Gee, Harris acknowledged her signature
and the information supplied on the card and at Bailey's request gave him a sworn
statement to that effect in Gee's presence. The statement appears in the record No
reason appears, however, as to why Field Examiner Bailey, or for that matter Harris
herself, was not available to testify concerning the transaction. In the absence,
therefore, of more tangible evidence, I reject Harris' card as being not adequately
authenticated.
The remaining cards, 47 in number, being General Counsel's Exhibits Nos. 10(q)
through (jjj), were procured by Union Staff Director Reynolds who testified that
they were signed in his presence. While there does not seem to be any doubt that
the cards were authentic in signature, the circumstances under which Reynolds pro-
cured them have been subjected to close scrutiny.
Basic to its contention that it was not obliged to bargain with the Union was
Respondent's insistence that the cards supporting the Union's majority claim were
obtained by coercion. On numerous occasions both before Respondent received the
Union's demand for recognition, and for a period of time thereafter, a considerable
number of employees, including some who had signed cards, came to Plant Manager
Shay and volunteered the information that they had been solicited for union member-
ship and that in some instances had signed cards, but that they were individually
opposed to the Union and intended to vote against it when the election was held.8
Quite apart from Shay's store of information concerning the cards and the feel-
ings being generated by their circulation employees testifying for both General'
0 Peggie Robinson, Hope Hughes Shuford, Kate Pitman, Keener, Ledford, Jennie
Buchanan, Viola Woody, Grindstaff, Nettie Renfro, Alice Stamey, Jewell Johnson Styles,
Mamie Miller, and Jewel Boone.
Y Quite apart from my findings that Willis' testimony is in conflict with my finding that
the signature is a forgery, I also discredit her testimony upon my observation of her
demeanor on the witness stand.
8 The credited testimony of Shay, corroborated by employees Gilly, Pearl Buchanan,
Biddix, Joan McKinney, Benfield, Joyce Robinson, Honeycutt, and Velva Buchanan. In
this respect I ruled at the hearing that further testimony by Respondent's witnesses on
this subject would be deemed cumulative ; whereupon counsel proffered the testimony
of a total of 53 witnesses, including those already on record, who would testify in like
manner Those credibly testifying to having volunteered this information to Shay also
included employees Flynn, Beam, Edna Styles, and Twlggs, who had actually signed cards.
SPRUCE PINE MANUFACTURING COMPAN Y 315
Counsel and Respondent were of like mind in describing the approach used by Rey-
nolds and the other organizers. Thus, it is clear that they invariably assured the
prospective members that higher wages and better working conditions would result
and that there signed cards would make it possible to obtain an election. There is,
however, no evidence that anyone was told that the card was being solicited for the
sole purpose of obtaining an election.
The interpretation placed upon the organizers' persuasion and employees' indi-
vidual reasons for signing cards were, of course, another matter. Thus, for exam-
ple, employees Viola Woody, Alice Stamey, and Jewell Styles who testified for the
General Counsel and employees Cox, Edna Styles, and Twigg testifying for the
Respondent, stated their purpose in signing as one of obtaining an election, although
personally opposed to the Union. Others, including the above named, as well as
employees Ledford, Jennie Buchanan, and Mary Helen Stamey, called by the Gen-
eral Counsel, testified credibly that although they had signed cards they had resolved
either when they signed them or during the period thereafter and prior to the date
when the Union sought recognition (October 14), that they did not want the Union.
Still others, specifically employees Viola Woody, Miller, Jewel Boone, and Flynn,
testified to having signed blank cards which were filled out by the union organizer
thereafterp Employee Woody, called as a witness for the General Counsel, also
testified that she had no idea what was on the card when she signed it; and when
employee Alice Stamey, another General Counsel witness, was asked if she knew
what union she joined, she replied, "No, not exactly, and it's that AFL or some-
thing. I don't remember."
There is also credible evidence that on a number of occasions the Union sought,
by engendering economic fear and insecurity among the employees, to persuade them
to sign membership cards. When Reynolds visited employee Edna Styles on one of
his frequent attempts to persuade her to accept union membership he alluded to
the wages she was receiving as a result of a better than average production record
and told her that if the Union failed to get in the Company would cut her rate, and
if it did "the girls would get rid of me whatever that means." 10 Similarly on an
occasion in July when Jewel Willis was soliciting for the Union but was still employed
by the Company, she told employee McKinney that if she or anyone else accused her
(Willis) of having anything to do with the Union she would "make it bad" for her,
and that if she could not "her friends would." Thereafter, in early October, Willis
had a similar encounter with McKinney which McKinney immediately reported to
Plant Manager Shay. Willis had indicated to McKinney that the Union had 60 to
75 percent of the employees lined up; then she stated, "We are ready for Mr. Shay
to know about the election now. Joan, when the Union comes in, you are going out,
because I'm going to have your job." ii
When Reynolds was soliciting union membership in October he spoke to employee
Biddix who refused him. As Biddix quoted him, he stated, "[I]f I didn't sign a card,
which I did not sign a card ... and Mr. Shay found out I did sign a card, that he
might accuse me of taking shirts out of the plant, slipping them underneath my coat
or in my handbag without his knowing it." While the full import of this quotation
of Reynolds is, to say the least, cloudy, I would find that it was considered by Biddix,
whom I credit, to be a threat from which she sought to protect herself by immedi-
ately reporting it to Shay.
And finally, when Reynolds was soliciting the membership of employee Honey-
cutt, a shipping clerk, he told Honeycutt of the then 60 to 65 percent majority and
"he said that Mr. Shay was going to bring down some of his nephews or something,
to take over my job in the shipping department." (Upon my observation of Rey-
nolds throughout the hearing and upon consideration of the testimony of credible
witnesses, I do not accept Reynolds' denial of the statements and conduct attributed
to him.)
When, upon the strength of the cards obtained as described above, the Union
requested the Respondent to bargain with it, it then distribtued to each employee a
0In this respect it will be recalled that Jewel Willis, the former employee active in the
Union's behalf , conceded that the card bearing the disputed signature of Marcella Boone
(supra ) was signed by her in blank and filled out sometime thereafter by Union Repre-
sentative Reynolds This was but one of the reasons for which I rejected that card.
10 The credited testimony of Edna Styles
n The credited testimony of Joan McKinney.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
copy of its letter to the Company requesting recognition and bargaining, and included
with this letter its own letter to the employees over the signature of Union Repre-
sentative Biggs, reading as follows:
TO EMPLOYEES OF
SPRUCE PINE MANUFACTURING COMPANY.
Greetings,
The Amalgamated Clothing Workers of America now represents a substantial
majority of the employees in your plant.
Therefore, today we have sent the letter we are copying below to the company
advising them of our majority and requesting that they bargain with us as your
representatives.
Should the company refuse to bargain with us, we will then take steps to ask
the National Labor Relations Board to come in and conduct an election among
the employees in your shop.
Our staff members will be in touch with you and we will keep you advised of
all developments. The time for action is now. Employees of Spruce Pine need
and deserve the benefits of the Union. Now is your chance, don't let it slip by.
5. The notice
Immediately upon receiving the Union's request for recognition and bargaining
and the information volunteered by employees that they had been sent a copy of the
request and the Union's letter quoted above, the Respondent countered by posting
a notice which is claimed by the General Counsel and Union to have had a debili-
tating effect upon the Union's membership ranks. It was posted on company bulletin
boards on October 16 and a copy sent to each employee. The notice, complete with
a red, three-eighth inch diagonal corner border, and printer's union label, read as
follows:
TO ALL EMPLOYEES
Since the Amalgamated Clothing Workers of America has been putting on
another campaign to get in here , a good many questions have arisen with regard
to the following matters. We have decided to state the Company's position on
these questions as clearly as we can for everybody alike:
(1) This matter is, of course , one of concern to the Company . It is also,
however, a matter of serious concern to you and our sincere belief is that
if the Union were to get in here it would not work to your benefit but, in the
long run would itself operate to- your serious harm.
(2) It is our intention to oppose the Union and by every proper means
to prevent it from coming into this operation.
(3) We would like to make it clear that it is not necessary , and it is not
ever going to be necessary , for anybody to belong to the Amalgamated
Clothing Workers of America, AFL-CIO, or any other Union, in order to
work for this Company.
(4) Those who might join or belong to a Union are not going to get any
advantages or any preferred treatments of any sort over those who do not
join or belong to any Union.
(5) If anybody causes you any trouble at your work or puts you under
any sort of pressure to join the Union, you should let the Company know,
and we will undertake to see that this is stopped.
(6) No person will be allowed to carry on Union organizing activities
on the job . Anybody who does so and who thereby neglects his own work
or interferes with the work of others will be subject to discharge.
Anybody who tells you anything contrary to the foregoing is not telling you the
truth.
SPRUCE PINE MANUFACTURING CO.
As discussed previously , a considerable number of employees had formulated opin-
ions concerning the Union and had expressed them to Plant Manager Shay prior to
the time this notice was posted. When it appeared on the bulletin boards and in their
mail numerous other employees , having thus learned of the Company 's position in
the union matter, credibly testified that they sought out their floorladies or Shay in
his office and elsewhere and assured them that they were in agreement with the
Respondent in its opposition to the Union.12
12 The credited testimony of employees Mary Helen Stamey, Edna Styles, Gilly, McKinney,
Twiggs, Flynn, Joyce Robinson, Velva Buchanan, and Pitman.
SPRUCE PINE MANUFACTURING COMPANY 317
6. The activity of the floorladies
From the inception of the Union's campaign , even up to the hearing , the restraint
of Respondent's managIment in actively opposing the Union was never shared by its
floorladies. Thus, Floorladies Jones and Johnson both testified to their continued
opposition to the Union and to the fact that they never hesitated to express them-
selves about the plant. There is, however, credited testimony that once the Union
demanded recognition and the Company posted its notice setting forth its position
the opposition on the part of the floorladies greatly intensified.
a. Flooi lady Johnson
When the union representatives were passing out literature on July 3,13 Floorlady
June Johnson asked Jennie Buchanan if she had seen a union man on the premises
or if anyone had said anything to her about the Union.14 Johnson' s interest in the
Union's fortunes did not again become evident until mid-October. She spoke to
Martha Hughes about the Union several days after she began work on October 18,
which was also several days after the notice had been posted. Johnson told her that
Shay was good enough to bring the plant into the town and if the Union got in he
would close it. Johnson also asked her if Peggie Robinson had said anything to her
about the Union.15
Other employees credibly testified to similar conversations with Johnson. Thus,
Peggie Robinson, of whose union sentiments Johnson had inquired, testified that
when a general conversation among the girls in the plant gravitated toward the
Union subject Johnson asked one of them, Benfield, in the presence of Pat Buchanan
and Margaret Boone, what the union organizers had told her on a visit to her home.ls
Sometime thereafter, in late November or early December, Johnson told Robinson
that "if she found out any of her girls were for the union she'd make it so hard for
them that they'd have to quit." Hettie Renfro also testified that she had heard
Johnson "say more than once that if she knew anyone was for the union she would
make it hard on them." 17 During the same period, shortly after Thanksgiving,
Johnson asked Mary Helen Stamey if she was for the Union; to which Stamey replied
that she was not. Johnson then inquired if she "knew any of the other girls that was
for the union." Shortly thereafter Johnson told Stamey she was going to ask two of
the other girls, Pat Buchanan and Peggie Robinson, how they felt about the Union.
In the course of this conversation Johnson observed that she did not think the plant
would remain in town if the Union came in Indeed Johnson had made a similar
statement during the third week of October, following the posting of the notice. Thus,
in a car pool conversation Blevins credibly quotes Johnson as talking to the employees
in opposition to the Union, telling them she had always liked Renfro until she found
out she was for the Union. She then stated her belief that the plant would be closed
if the Union came in. Johnson herself admits making this statement , corroborating
Blevins' testimony that she gave it as her own opinion. And in another car pool
conversation around the same time Johnson volunteered the same observation to
Martha Hughes.18
b. Floorlady Dunn
Floorlady Winona Dunn, like her fellow supervi' or, Johnson, did not manifest
her opposition to the Union or engage in efforts to defeat it until after it had requested
recognition as majority representative and the Company had posted its notice, both
in mid-October. Beginning on or about October 16, Dunn admittedly talked to
13 All dates herein are 1963 unless stated otherwise.
14 The credited testimony of Jennie Buchanan
w The credited testimony of Martha Hughes.
1131 do not credit Benfield's denial that this question was asked her in the course of
the conversation in which she admittedly participated. Neither Pat Buchanan nor
Margaret Boone testified
17 Respondent called three witnesses, Benfield, Howell, and Rosa Smith, each of whom
denied that this statement was made in their presence Renfro, however, did not testify
that they iaeard the statement but that "they could have heard her say that ; I don't know."
Under such circumstances the denials are not relevant.
18 With respect to Floorlady Johnson's activities there is also testimony by employees
Robinson and Grindstaff concerning the locking of the plant doors during the lunch hour
of October 16, with Johnson stationed at one of the doors to insure the entrance and
departure of only authorized personnel As there is no relevant allegation in the corn-
plaint and no adequate explication in the record of the relevance of this testimony gen-
erally to the matters complained of, I make no finding with respect to it.
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees concerning the Union, stating that she was opposed to it. During this
particular period the only testimony that would suggest that Dunn stated more than
her opinion was that of Miller. Having observed Miller and noted certain exag-
gerations and inconsistency in her testimony, I do not rely on it for purposes of estab-
lishing findings as to Dunn.19 Some time later, however, as the day of the election
approached Dunn inquired of Grindstaff if Floyd was still for the Union,20 having
previously questioned Floyd herself on the same subject.21
c. Floorlady Jones
Early in August Floorlady Cathy Jones asked Jewel Boone if she thought the
Union would get into the plant, to which Boone replied in the negative.22
On December 11, as Jones was accompanying Hope Shuford by car on a noontime
hospital visit they engaged in a conversation about the Union. Jones asked Shuford
if she wanted to lose her job, to which the latter replied that she did not. Jones then
quoted Plant Manager Shay as saying that if the Union got in the factory was going
to close.
7. The activity of Plant Manager Shay
a. Interrogation of employees
Throughout the record there is sharp conflict centering about Shay and whether,
in an effort to counter the Union's efforts after it had requested recognition, he
-called in his employees to question and cajole them about the Union or, on the other
hand whether the employees, loyal to Shay and the Company and irked at the union
representatives, sought out Shay to keep him informed and to assure him of their
sympathy with the Company's position. Credited testimony is actually so evenly
divided on this point as to demonstrate that we are truly dealing with subjective
opinion at both ends of the spectrum insofar as it concerns employee impressions.
At the outset, and as I have previously stated, it should be noted that I credit
Shay's testimony generally. This does not mean, to be sure, that I place the same
interpretation on his actions as he would have me, or that I would draw the same
inferences from facts available to him as does he. I would therefore restrict my
evaluation of Shay's testimony by indicating that in the instances here in which I make
findings as to the interrogation alleged and as to his speech (infra) I will accept the
testimony of the employee concerned rather than Shay's denial or explanation when
they conflict.23
sa Illustrative of this exaggeration and inconsistency is Miller's testimony that Dunn
talked to her about the Union one or more times a day; her subsequent testimony that
Dunn asked her "one time was I for or against the union" ; and that over a period of a
month Dunn asked her this question on 40 to 50 to 60 occasions, following her into the
restroom every time Miller had occasion to go there.
20 The credited testimony of Grindstaff.
zi The credited testimony of Floyd
There is also testimony by Betty Woody that Dunn had told her on one occasion that
cutting operations in the plant were to be curtailed pending the outcome of the election.
When counsel sought to fix the time of this conversation by presenting Woody with her
pretrial affidavit she denied that it was her statement. I accordingly reject her testimony
on this particular subject matter.
22 The credited testimony of Boone I do not credit Jones' general disavowal of such
-conduct, stating that the information concerning the Union was always volunteered to her
by the employee concerned Upon my observation of Jones at the hearing, as well as
of Floorladtes Johnson and Dunn, I am not disposed to rely upon their testimony except
insofar as it is corroborated by the testimony of credited witnesses
23 My basis for so concluding rests in part upon the following colloquy which suggests
to my satisfaction that Shay's version of the particular incidents on which he has com-
mented by way of denial or explanation was not entirely accurate:
Q. (By Mr BALL) Did you have any conversations with employees in October
of 1963 in your office about the union?
A. If they came in voluntarily.
Q. That's not my question
A Back in October, to be specific, I cannot answer that question, Mr. Ball. This
is now May , that's back in October.
Q. You can't remember in October talking to any employees about the union's
A If they came in voluntarily, I would have talked to them, but I did not make
a specific note everytime an employee came in.
SPRUCE PINE MANUFACTURING COMPANY 319
In all the credited testimony I can find but one instance of actual interrogation by
Shay of one of his employees. In October and thereafter employees were frequently
engaged in a conversation about the Union with one or the other of the flooiladies
(supra) who upon its conclusion went to Shay's office and reported the subject matter
to him.24 Shay admittedly advised his informant that in conformance with his
"open door" policy these employees were always welcome to visit and talk with him.
The case of Betty Woody was singular. In testifying for the General Counsel, she
stated that upon discussing with fellow employees a union repiesentative's visit to
her home in late October, Floorlady Johnson, who had overheard the conversation,
told her Shay would like to see her in his office. Upon her arrival there Shay greeted
her by saying, "I hear you had company last night," and then asked what they had
to say. When Woody reported on the conversation to him and on the progress of
the Union Shay then asked her if they wanted her to sign a card.
To be sure, theie is ample evidence that Shay talked to still other employees
individually in his office, discussing with there the merits of the Union, and indeed,
the Company's position, albeit, Shay credibly testified that he told each to vote as
they chose. But unlike Woody's visit, the appearance of the others in Shay's office
and statements made there have not been demonstrated by credible evidence to have
been other than voluntarily. Nor upon their visits with Shay is there any evidence
that he questioned them or made any statements threatening or promising benefits
to them in relation to their union affiliation. Thus Peggie Robinson testified that in
October it was Floorlady Johnson who told Benfield that Shay wished to talk to
her. This was Johnson being quoted, not Shay. Benfield never testified as to
anything but the information which she volunteered to Shay. Shay's testimony on
this subject corroborates all of this. Similarly, Ledford testified to having spoken
of the Union to Shay, but she did not suggest in her testimony that it was the result
of being questioned, threatened, or rewarded.
In addition to the foregoing incidents there is also ciedible evidence that upon the
conclusion of a speech given by Shay to the assembled employees (infra), a number
of employees, tinder the leadership of Gilly,25 went to Shay's office and volunteered
their expression of opposition to the Union and their agreement with the Respond-
ent's stated position.26 Employee witnesses called by the Respondent corroborated
the testimony of General Counsel's witnesses (excepting only Betty Woody, supra)
outlined above on the visits to Shay's office. As in the cases of Robinson and Ledford
referred to above there was evidence only of volunteered information about the
Union, the employees' membership in it, the visits of union repiesentatives to their
homes, and their expressions of opposition to the Union and loyalty to the Company.
This practice of visiting Shay in his office was shown to have been commonplace,
continuing, and in keeping with his policy of always being available to consult with
his employees individually on personal as well as plant matters, and this finding is
Q. Do you know whether or not any of your supervisors sent employees in to talk
to you ?
A. For the record, they are not supervisors.
Q. Whatever you want to call them?
A. I will call them from here on, floorladies.
Q. Did any floorladies send any ladies to talk to you i., October)
A. It could be very possible that they did, send them in, with the assumption that
a group of employees had told the floorladies, and their answer was, I would imagine,
and you would have to examine them, that if they wanted to talk about the union,
they could come into Mr. Shay's office, or into my office.
Q Do you know what floorlady or floorladies sent people into your office In
October 1963?
A To repeat, no, I don't know, sir, unless it's in the allegation.
Q Only if it's in the allegations do you know?
A In answer to that question, yes, if the floorladies are in the allegation that's
correct
24 The testir'ony of Shay which 1 credit.
25 There is no evidence to support the contention that Gilly was acting in beh'ilf of
Respondent in this or any other matter I find that like many other employees she
opposed the Union and took appropriate action to effectuate her opposition The Little
Rock Downtowner, Inc, 145 NLRB 887, N X, R 11 v. Southern 7lleachery & Print IVorks,
Inc, 257 F. 2d 235, 239 (CA 4), cert. denied 359 U S 911
20 Tlie credited testimony of Floyd, Pitman, and Grindsta.i, called by the General
Counsel Employee Peggie Robinson also called by the Goneral Counsel, testified she was
the first to enter Shay's office, having gone there to complilacnt him on his speech.
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
based upon the credited and unrebutted testimony of Edna Styles , Justina Gilly,
Joan McKinney, Pearl Buchanan. Mary Helen Stamey, Frances Flynn, Edith Biddix,
Allen Honeycutt , Helen Beam , Velva Buchanan , and Brenda Pitman.27
b. The speech
On December 18, the day before the scheduled Board election , Shay gave a speech
to his assembled employees in opposition to the Union. This speech, prepared in
advance and read to the employees, can be accurately recorded from a synthesis of
the credited testimony of employees who heard it, all of whom were called by the
General Counsel. It was quoted by them or quotations were affirmed by them
substantially as follows:
I have called you together to talk to you about a very grave matter which
concerns all of us. This is the last time we will be together for me to talk to
you before tomorrow's election. The law doesn't allow me to get you together
like this within 24 hours of the election. However, there is no law to keep
from coming in to see me if you have a question in your mind about the Union.
[At this point Shay emphasized the importance of the employees voting,
telling them that the outcome would be on the basis of a majority of those who
voted and not those who are eligible to vote He also stated his position that
how they voted was a matter for their own personal conscience.]
It will be two years next week that I have been here in Spruce Pine, and I
have seen this plant grow from the beginning. Girls, as far as my position is
concerned, I am not worried, I always have a job to go to. I wish I had the
ability to reach each of you employees, so that you might know that I have put
my heart and soul into this effort to see that this plant through the united work
of us all, would grow and look forward to future growth.
[Shay at this point referred to the Union and its claims of job security. He
referred to the amount of the union dues, pointing out that the Union claimed
that it was $3, but that he had called the Company's plant in Fall River, Massa-
chusetts, and learned that the dues were $3 60 He then went on to discuss the
position of the citizens of the community who had originally been instrumental
in bringing the plant to Spruce Pine ]
I have stated our position as to the Union, I think one of the most important
things that you as employees should realize, not only did we, I mean Sagamore
Manufacturing Company, invest money in this community, but the people of
this community are just as important It is they who went among themselves
to raise the money to bring this industry into town, who built and now own
and occupy this building.
[He then told them that it was up to the employees and the Company working
together in a spirit of cooperation to keep the plant going, that that was the
only way they could have security.]
It is cooperation, you doing your job and cooperating with the Company, that
will provide jobs and job security here.28
Upon the conclusion of this speech a considerable number of employees led by
Gilly, as well as others individually (for example, Peggie Robinson), went to Shay's
office to either congratulate him upon the speech or to assure him that they were
opposed to the Union in the coming election.2J
W At a point in the presentation of Respondent 's defense I curtailed , as cumulative,
testimony on this particular subject matter . I accept Respondent 's offer of proof that
if permitted to testify a total of approximately 35 named individuals would likewise attest
to the voluntary nature of their conversations with Plant Manager Shay , as described
in the text.
28 A synthesis of the credited testimony of Peggie Robinson , Hope Shuford , Kate Pit-
man, and Alice Stamey.
29 It was alleged by way of oral amendment to the complaint as paragraph 7(1) that
Respondent , through the actions of Shay and Floorlady Dunn , discriminatorily applied a
no-solicitation rule on December 18 The only evidence relevant to this allegation is
Dunn's knoNsledge that Gilly was grouping some of the girls together to go to Shay's
office and that Dunn did nothing to restrain the action . As I have found that Gilly was
not a representative of management , but an employee ( supra, footnote 25), restraint upon
her by Dunn might well have constituted a violation of Gilly's Section 7 rights to engage
in concerted activity . I accordingly reject the contention that Dunn 's failure to so act
was a violation of the statute , and for this reason, and because there is no indication
SPRUCE PINE MANUFACTURING COMPANY 321
C. Analysis and conclusions
1. The refusal to bargain
The majority status of the Union is to be measured by the number of memberships
it could claim when it demanded recognition and bargaining-October 18. Hence
its right to relief herein stands or falls upon its status on that date. Thus it follows
that whatever may have occurred after that date with respect to the employees'
union memberships and their attitudes toward self-organization is significant only
if the majority status had been fixed. For had it not then been fixed, as of October 14,
certainly nothing could be said to have dissipated the majority that never was. It is
first necessary, therefore, to explore the situation as of the date majority status was
claimed, and on which recognition and bargaining demanded and refused
I have found that in the bargaining unit found appropriate by the Regional Director
and not now open to contest 30 that there were 106 employees eligible to vote. To
constitute a numerical majority 54 of these would be required to have authorized the
Union to represent them. As of October 1a, 60 of them did so, having signed the
authorization cards which I found to be authentic.31 Unless, then, there are defi-
cienies in a sufficient number of these cards which would affect their validity, and in
consequence affect the Union's majority, its right to recognition is thereby established.
Conversely, had the Respondent established in good faith its doubt that the Union
represented an uncoerced majority of its employees and had expressed it at the time,
as Respondent sought to do here by its letter, no obligation to bargain would have
existed 32 This, I believe, Respondent failed to do.
Respondent, refusing to bargain, has at all times insisted that the Union never
represented an uncoerced majority of its employees. To support its contention it
points to the manner in which the union representatives procured the membership
cards. This activity I have already detailed at some length (supra). Thus it is true
that many memberships were procured in a climate of exaggeration and "puffing,"
that some applicants did not read what they signed, that others merely signed the
card, leaving the remainder of it to be filled out by the union organizers, and that in
several instances there were suggestions of possible ieprisals if membership were not
accepted. I have not been referred however, to any precedent, nor can I find any
that would support the rejection of union applications procured in the manner
detailed herem.33 Nor is it significant that many of the cards were signed on the
understanding that this would make possible the holding of an election. A review of
my findings in this respect and of the record which I trust supports them will show
that never was a membership solicited by the Union or accepted by an employee
for the sole purpose of obtaining an election. In each such instance some other
inducement for acquiring membership was also included. I therefore reject this
factor as a basis for invalidating certain of the cards involved 34
And finally, Respondent and the 65 employees who intervened through a petition
in this proceeding vigorously contend that the Union does not represent them, many
having testified to that effect at the hearing.
Of this fact I am aware and I so find, but in so doing I must necessarily conclude
that the wishes and dispositions of the employees at any time after October 14 do
not rebut the presumption of a continuing majority status which I found to exist on
October 14.35 On that date there belonged to the Union or had signed authorization
cards sufficient of these people to constitute a majority. Neither before nor after that
date did any of them communicate to the Union his or her individual desire to with-
draw membership. Upon such a state of the record, therefore, I have no alternative
but to conclude and find that the Union did represent an uncoerced majority on
October 14, when it demanded recognition and bargaining.
that Shay was in any way implicated, I recommend that the amended allegation be
dismissed.
Indeed, I accept the testimony of General Counsel's witness, Peggie Robinson, as gen-
erally dispositive of this issue. When Robinson was asked upon examination by counsel
for the Charging Party if there was a company rule or policy about girls moving about
during working hours, she replied, "Not necessarily, we were supposed to stay at our job
30 Supra.
8i I rejected the cards of Erwin, Marcella Boone, and Harris as not being adequately
authenticated ( supra).
32 Brtigga IGA Foodisner, 146 NLRB 443
33 Gary Steel Products Corporation, 144 NLRB 1160.
34 Compare Englewood Lumber Company, 13t NLRB 394, 395.
ss Sheridan Creations, Inc., 148 NLRB 1503.
796-027-6 6-v of 153-22
322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It is well settled, of course, that an employer may in good faith insist upon a
Board election as proof of a union's majority, as Respondent did here, but it is
equally well settled that it may not lawfully refuse to bargain "if its insistence on
such an election is motivated , not by a bona fide doubt as to the Union 's majority,
but rather by a rejection of the collective -bargaining principle or by a desire to gain
time within which to undermine the Union ." 36 Respondent , by thereafter refusing
to verify the majority claim, as suggested by the Union, and by refusing to recognize
and bargain with the Union , and under all the circumstances present, including the
incidents which occurred after its refusal to bargain, did so in violation of Section
8(a) (5) of the Act.
2. Interference , restraint , and coercion
a. The floorladies
As previously noted, the classification of floorlady was determined by the Regional
Director in his Decision and Direction of Election of December 4, 1963, to be super-
visory in character and the incumbents of the positions accordingly excluded from
the bargaining unit . By the same token they are properly designated as part of
management and, as such , speak for and on behalf of it. Citation of authority is
unnecessary to establish , therefore , that such statements and conduct of these floor-
ladies is properly attributable to Respondent , regardless of the fact that Plant Manager
Shay may not have authorized them or in fact had specifically directed that they not
express themselves or act in the manner found . Suffice it to note that there is no
evidence in the record that Respondent at any time either publicly or privately
disavowed to individuals or groups the active opposition to the Union that was
manifest by its floorladies.
In this respect a review of the factual findings herein discloses that no sooner had
the Union demanded recognition and Respondent refused it , stating its opposition
in a notice to be discussed in detail hereafter ( infra ), than Floorladies Johnson, Dunn,
and Jones initiated a program designed to defeat the Union in the coming scheduled
election. Two exceptions to the timing of this activity were a July incident when
Floorlady Johnson questioned Buchanan about the activities of a union organizer,
and an August incident when Floorlady Jones asked Boone if she thought the Union
would get into the plant ( supra ). Otherwise Johnson 's and Jones' activities, as well
as Dunn's, occurred after the Union's demand for recognition and the Respondent's
refusal of it and the date set for the election campaign . Thus Johnson questioned
numerous employees both at the plant and to and from work about their union
membership , the membership of their fellow employees, and the activities of the
union organizers ; she threatened that if she found anyone favoring the Union she
would make it so hard for them they would quit , and admitted stating as her own
opinion 37 that the plant would close if the Union got in . During the same period
Floorlady Dunn likewise admittedly voiced her opposition to the Union. But only
on two occasions do I find that she did more than that , to wit, when she questioned
Iwo employees , Grindstaff and Floyd, as to the union membership of the latter
(supra ). And finally Floorlady Jones has been found to have threatened an employee
by way of questioning her as to whether she wanted to lose her job, quoting Plant
Manager Shay as saying that the plant would close if the Union got in (supra).
It is well established that such conduct of supervisor , whereby employees are
questioned about a union and their membership in it, and are threatened with loss
of employment if the union organizes the plant, constitutes interference , restraint, and
coercion proscribed by the Act . 35 Nor is it significant that this was done without
the knowledge of, or indeed contrary to , the instructions of the management who
thereafter has failed to disavow such conduct and statements . 39 The real vice is
that employees subject to the pressures of a supervisor 's threat and questioning have
every reason to assume that these same supervisors are speaking for the management
of which they are a part . As such is the precise situation here I conclude and find
that by the conduct and statements of Floorladies Johnson, Jones , and Dunn outlined
above Respondent interfered with, restrained , and coerced its employees in the
exercise of their rights guaranteed by the Act , thus violating Section 8 ( a)(1) of
the Act.
36 Joy Silk Mills , Inc, 85 NLRB 1263 , 1264, enfd 185 F. 2d 732 (C.A.D C. ; Winn-Dixie
Stores, Inc., and Winn-Dixie Greenville , Inc., 143 NLRB 848.
87 See' Orenduff it Kappel , Inc, 118 NLRB 859, 864
31 Baltimore Binding and Waistband Cot p , 130 NLRB 1629 ; Lock Joint Tube Company,
127 NLRB 1146
so Birmingham Publishing Company, 118 NLRB 1380; Birmingham Fabricating Com-
pany , 140 NLRB 640.
SPRUCE PINE MANUFACTURING COMPANY 323
b. The notice
The notice set forth in toto above (supra ) is similar to a notice that has been the
source of extensive litigation before both the Board and the courts 40 As between
this notice and those previously considered , there is a difference which Respondent
considers both substantial and crucial . In earlier notices reviewed by the Board
the first numbered paragraph contained the following sentence:
It is also, however , a matter of serious concern to you and our sincere belief
is that if the Union were to get into this operation , it would not work to your
benefit but to your serious harm.
In the instant notice the sentence reads as follows:
It is also, however, a matter of serious concern to you and our sincere belief
is that if the union were to get in here it would not work to your benefit but, in
the long run would itself operate to your serious harm. [Emphasis supplied.]
It is Respondent 's position that the emphasized portion quoted above, wherein the
words "in the long run" and "itself" have been inserted , adds a qualification to the
Company's stated position placing it within the purview of Section 8 ( c) of the Act
as an item of protected free speech . Quite apart from this Respondent argues in
defense of the notice generally that even in its original form it has twice been
approved by the United States Court of Appeals for the Fourth Circuit 41
Upon considering Respondent 's argument addressed to the decisions of the court
I must reject it. With all due and proper respect for the circuit court of appeals
and its opinions I am not at liberty to follow them and thereby decide contrary to
Board precedent unless and until the Board itself alters its position or is reversed by
the United States Supreme Court.42 Indeed in this particular instance I note that
on May 11, 1964, in Owens-Corning Fiberglas Corporation, 146 NLRB 1492 , approx-
imately 6 weeks following the issuance of the court 's decision in Wellington, the
Board reaffirmed its position that such a notice constituted a violation of Section
8 (a) (1), thus indicating the Board 's determination to adhere to its original position.
Nor am I disposed to accept the alterations in this most recent edition of a familiar
notice as being of sufficient import as to exonerate Respondent for its publication.
In numerous cases the Board has affirmed Trial Examiners ' Decisions holding varieties
-of this notice to be unlawful.43 Nowhere , however, has the Board found it necessary
to resolve the several theories upon which Trial Examiners have found the notice to
be violative of the Act. As a matter of consistency , therefore , and in due deference
to the Board 's orderly decisional processes , I would hesitate to find the alterations
here to be so crucial as to warrant deviation from the Board's established holdings.
I accordingly conclude and find the posting of the notice herein and its delivery to
Respondent's employees to constitute further interference , restraint , and coercion
in violation of Section 8(a) (1) of the Act.
c. Plant Manager Shay's conduct
A review of Plant Manager Shay's statements and activities from the beginning
makes it clear that he was opposed to the unionization of his plant and, as he him-
self stated , was resolved to resist it by every legal means. This was certainly his
privilege . Furthermore , upon my observation of witnesses called by both General
Counsel and Respondent , it is quite clear that Shay had the good will and loyalty
of substantially all his employees . Viewing what he did and said, therefore , against
such a backdrop , it does not warrant, it seems to me, drawing inferences of malice
in what took place. In a number of instances , however, Shay was more than the
recipient of his employees ' well-wishing . One such occasion was his conversation
of late October with Woody wherein he asked her about the visit of union organizers
(supra ). And on the numerous other occasions during the same period employees
came to him at the urging of the floorladies whose conduct I have already found to
be unlawful . Although I credit his testimony that he warned the supervisors not to
40 Morris & Associates , Inc., 138 NLRB 1160 ; White Oak Acres , Inc., 134 NLRB 1145,
1149; N.L It B . v. Threads , Inc, 308 F 2d 1 , 4, 9 (C A. 4 ) ; Wellington Mill Division,
West Point Manufacturing Co. v. N .L.R.B , 330 F 2d 579 (C A. 4).
41 Supra , footnote 40
12 Insurance Agents ' International Union , AFL-CIO ( the Prudential Insurance Com-
pany of America ), 119 NLRB 768, 773
4a Morris & Associates , Inc., supra , White Oak Acres, Inc, supra ; Owens - Corning
Fiberglas Corporation , supra; Supienant Mfg. Co., 144 NLRB 507, Rea Construction
tJompany, 137 NLRB 1769.
324 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogate employees, I cannot believe that Shay was totally unaware of what his
supervisors were saying and doing, ostensively in his name, or of the reasons why
they sent the employees to him. And I have already found (supra) that his failure
to disavow this conduct in itself implicates Respondent. It would appear, although
there is no direct evidence to support it, that Shay was really seeking to insulate
himself from such supervisory misconduct so that what was said to and by the
employees who came to him as the result of that misconduct would have the flavor
of voluntary, unsolicited opposition to the Union and would provide Respondent
with an opportunity to participate indirectly in what it could not intrude itself into
directly.
Viewed in such light, nevertheless, and even in a context of the posted and dis-
tributed notice which I have already found to be unlawful, Shay's speech to his
employees on the day preceding the scheduled election (supra), his earlier conversa-
tions with his employees (excepting only his questioning of Woody) do not contain
either threats nor promises.44
I am aware, as I have already concluded and found, that during the period when
these conversations were taking place supervisors were engaging in unlawful conduct
and I have found that Respondent has violated Section 8(a)(1) in these respects.
I am not disposed to find, however, that by Shay's inferred knowledge of this conduct
Respondent has again violated the Act. It would seem that the finding of one viola-
tion per illegal act would be sufficient. As to Shay personally, and apart from his
conversations, statement, and the speech, all of which I find to be within the protec-
tion of Section 8(c) of the Act, I do find that he interrogated Woody. This, like
the interrogation engaged in by his supervisors, constituted interference, restraint,
and coercion, and I accordingly find that by Shay's conduct in this respect Respondent
further violated Section 8(a)(1). In all other respects as to Shay's conduct and
statements, however, I would conclude and find that there is not sufficient support
for the complaint's allegation of Section 8 (a) (1) violations.
3. The relationship of the interference, restraint, and coercion to
Respondent's refusal to bargain
A review of the findings of fact herein disclose numerous instances of interrogation,
threats, and other statements constituting what I deem to be interference, restraint,
and coercion of the employees in the exercise of their statutory rights. Because of
the possible relationship of this conduct to Respondent's refusal to bargain, con-
sideration must be given to the chronology in which they occurred.
Almost without exception the conduct of the supervisors and Shay, which I found
to be unlawful, as well as the posting and distribution of the notice, occurred after
the Union claimed its majority status and demanded recognition. Only Floorlady
Johnson's questioning of Jennie Buchanan and Floorlady Jones' questioning of Boone
occurred while the Union's membership campaign was in progress. It follows, there-
fore, that the violations of Section 8(a)(1) which I have found herein served not to
impede the acquiring of membership but rather to dissipate the membership already
acquired. Finding, therefore, as I have, that the cards supporting the Union's claim
to majority status were authentic and not procured by coercive means, the majority
was acquired free not only of company interference but of undue union pressure as
well. Once they were thus acquired, however, it was Respondent's subsequent con-
duct which served to crystallize the growing dissatisfaction with the Union And to
the extent that Respondent thus contributed to the depletion of union membership
by its unlawful conduct it is well settled that it may not now gain profit 43 I accord-
ingly find, therefore, that not merely for the reasons previously assigned for my
findings of a refusal to bargain herein (supra), but for the further reason that its
subsequent unlawful conduct contributed to the conditions which created the Union's
loss of majority Respondent violated Section 8(a)(5) and (1) of the Act.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section IV, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
44 Lester Brothers , Incorporated, 142 NLRB 992
46 Joy Silk Mills , Inc. v . N.L.R.B., 185 F 2d 732 (C.A D C ).
SPRUCE PINE MANUFACTURING COMPANY
VI. THE REMEDY
325
It has been found that Respondent has violated the Act in certain respects. I will
accordingly recommend that an Order issue requiring Respondent to cease and desist
therefrom and take affirmative action which will effectuate the policies of the Act.
RECOMMENDED ORDER
Upon the entire record in this case , and pursuant to Section 10(c) of the National
Labor Relations Act, as amended , I recommend 46 that the Respondent, Sagamore
Shirt Company d/b/a Spruce Pine Manufacturing Company, its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees unlawfully as to their union membership and activ-
ities, the membership and activities of other employees , and the activities of the
Union's representatives.
(b) Threatening its employees with more arduous working conditions , and with
refusal to rehire , if they favored Amalgamated Clothing Workers of America,
AFL-CIO, and with the closing of the plant if the aforesaid Union's organizational
efforts succeeded.
(c) Posting at its plant and distributing a notice informing employees that if the
Union's organizational efforts succeed "it would not work to your benefit, but in
the long run would itself operate to your serious harm."
(d) Refusing to bargain collectively with Amalgamated Clothing Workers of
America, AFL-CIO, as the exclusive representative of employees in the following
unit found to be appropriate for the purposes of collective bargaining:
All production and maintenance employees , excluding office clerical employees,
floorladies , cutting foreman, guards , and supervisors , as defined in the Act.
(e) In any like or related manner interfering with, restraining , or coercing
employees in the exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Upon request , bargain collectively with the above -named labor organization
as the exclusive representative of all Respondent 's employees in the unit found
appropriate and, if an understanding is reached , embody such understanding in a
signed agreement.
(b) Post at its Spruce Pine , North Carolina, plant, copies of the attached notice
marked "Appendix ." 47 Copies of said notice , to be furnished by the Regional
Director for Region 11, shall, after being duly signed by the Respondent , be posted
immediately upon receipt thereof, and be maintained for a period of 60 consecutive
days thereafter in conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken to insure that said notices
are not altered , defaced, or covered by any other material.
(c) Notify said Regional Director , in writing, within 20 days from the receipt of
the Trial Examiner's Decision , what steps the Respondent has taken to comply
therewith.48
46 In the event that this Recommended Order be adopted by the Board , the word "Rec-
ommended" shall be deleted from its caption and where} er else it thereafter appears; and
for the words "I Recommend" there shall be substituted " the National Labor Rela-
tions Board hereby orders"
47 In the event that this Recommended Order be adopted by the Board "a Decision and
Order" shall be substituted for "the Recommended Order of a Trial Examiner" in the
notice. In the further event that the Board ' s Order be enforced by a decree of a United
States Court of Appeals , the words "a Decree of the United States Court of Appeals,
Enforcing an Order " shall be substituted for the words "a Decision and Order".
48 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act , we hereby notify our employees that:
WE WILL NOT interrogate our employees unlawfully concerning their union
membership and activities , the membership and activities of other employees,
or the activities of union representatives.
326 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten our employees with more arduous working conditions
or with a refusal to rehire anyone favoring Amalgamated Clothing Workers of
America, AFL-CIO, or with closing our plant if the aforesaid Union's orga-
nizational efforts succeed.
WE WILL NOT post in our plant or distribute to our employees notices inform-
ing them that if the aforesaid Union's organizational efforts succeed "it would
not work to your benefit, but in the long run would itself operate to your
serious harm."
WE WILL, upon request, bargain with the aforesaid Union as the exclusive
representative of all our employees in the appropriate unit with respect to rates
of pay, wages, hours of employment, and all other conditions of employment,
and, if an understanding is reached, embody such understanding in a signed
agreement. The appropriate unit is:
All production and maintenance employees, excluding office clerical
employees, floorladies, cutting foreman, guards, and supervisors, as defined
in the Act.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
employees in the exercise of rights guaranteed them in Section 7 of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining, members of any labor organization.
SAGAMORE SHIRT COMPANY D/B/A SPRUCE
PINE MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Telephone
No. 723-2911, if they have any question concerning this notice or compliance with.
its provisions.
Quiel Bros . Electric Sign Service Co ., Inc. and Local 477, Inter-
national Brotherhood of Electrical Workers , AFL-CIO. Case
No. 21-CA-6026. June 2 ,1965
DECISION AND ORDER
On April 15, 1965, Trial Examiner David Karasick issued his Deci-
sion in the above-entitled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor practices and rec-
ommending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Examiner's Decision.
Thereafter, the General Counsel filed exceptions to the Trial Exam-
iner's Recommended Order and a supporting memorandum.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Brown and Zagoria].
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
153 NLRB No. 28.