Storktowne Products, Inc.

National Labor Relations Board - Board Decisions

Feb 20, 1968

169 N.L.R.B. 974 (N.L.R.B. 1968)

974 DECISIONS OF NATIONAL
Storktowne Products, Inc. and Amalgamated
Clothing Workers of America , AFL-CIO. Case
26-CA-2717
February 20, 1968
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On November 8, 1967, Trial Examiner Stanley
N. Ohlbaum issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices in violation of the National Labor Rela-
tions Act, as amended, and recommending that it
cease and desist therefrom and take certain affirma-
tive action, as set forth in the attached Trial Ex-
aminer's Decision. He further found that Respond-
ent had not engaged in certain other unfair labor
practices alleged in the complaint and recom-
mended that the allegations pertaining thereto be
dismissed. Thereafter, the Charging Party and
General Counsel filed exceptions to the Decision
of the Trial Examiner, and supporting briefs, and
the Respondent filed a brief in answer to the excep-
tions and brief of General Counsel.
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 and
briefs, and the entire record in this case, and hereby
adopts the findings,' conclusions,2 and recommen-
dations of the Trial Examiner. 3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Storktowne Products,
Inc., Columbia, Tennessee, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order.
' The Trial Examiner found that Respondent's March 28 promise of
"considering other benefits in the future" did not violate Section 8(a)(1) of
the Act. In the absence of exceptions, we adopt this finding pro forma.
We agree that Respondent's reference in his February 13 speech to
what would happen "[i]f it were a union shop" was violative of 8(a)(1),
since the statement implied a withdrawal of privileges should the em-
ployees select the Union.
As it was delivered in the context of other conduct found unlawful
herein , we adopt the Trial Examiner 's finding that Respondent 's February
LABOR RELATIONS BOARD
17 speech, stressing the futility of collective bargaining and warning em-
ployees that it would be to their "serious harm" to select the Union as
their representative, violated Section 8(a)(1) of the Act.
z Exception has been taken by the Charging Party to the Trial Ex-
aminer's finding that the 2-week June layoff of Alexander was not in viola-
tion of the Act. In our view, the testimony credited by the Trial Examiner
establishes that Alexander was disturbing and interfering with the produc-
tion of other employees, and that this was the reason for the disciplinary
action. Thus, Respondent had from time to time received complaints
about difficulties with Alexander experienced by supervisors and other
employees, many of whom were on a piece-rate basis. The report upon
which Respondent acted and relied in administering the disciplinary layoff
was made by one of Respondent's best operators who, according to the
credited testimony, was so disturbed by Alexander's confrontations and
use of abusive language that she threatened to quit rather than tolerate
Alexander's annoying interruptions. In view of our finding, we deem it un-
necessary to pass upon the Trial Examiner's comments, in footnote 35 of
his Decision, to the effect that an unduly broad no-solicitation rule may be
regarded as pro tanto valid to the extent it interdicts solicitation during
work time. We also find it unnecessary to pass upon his further comment
that sporadic collections permitted by Respondent do not establish
disparity of application of the rule if such conduct is forbidden when re-
lated to union activity.
3 Exceptions have been taken to some of the credibility findings of the
Trial Examiner which were based to a large extent on demeanor of wit-
nesses. It is the Board's policy, however, not to overrule a Trial Ex-
aminer's resolutions with respect to credibility less, as is not the case here,
the clear preponderanceof all the relevant evidence convinces us that the
resolutions are incorrect. Standard Dry Wall Products, Inc., 91 NLRB
544, enfd. 188 F.2d 362 (C.A. 3).
TRIAL EXAMINER 'S DECISION
Preliminary Statement
STANLEY N. OHLBAUM, Trial Examiner: This case, in-
volving a complaint issued on May 1, 1967,' by General
Counsel through the Regional Director for Region 26 of
the National Labor Relations Board, based upon a charge
filed on March 21 by the above Union, alleging violations
of Section 8(a)(1) and (3) of the National Labor Relations
Act (29 U.S.C. Sec. 151, et seq., as amended; Act) by
Respondent Employer, was heard by me at the United
States Court House in Columbia, Tennessee, on June
27-28. General Counsel and Respondent were
represented throughout by counsel, who were afforded
full opportunity to present evidence, examine and cross-
examine witnesses, propose findings of fact and conclu-
sions of law, and submit briefs. Subsequent to the hear-
ing, briefs were received from counsel, which, together
with the evidence, have been carefully considered.
Issues
The issues presented2 are (1) whether Respondent vio-
lated Section 8(a)(1) through interrogation of employees
concerning their union affairs, promulgation of unduly
broad no-solicitation rules, conveyance of the impression
of surveillance of employees' union activities, promising
employees and instituting economic benefits and plant
improvements for refraining from union activity, and
threatening loss of employment, plant closure, and other
detriments in the event of unionization;3 (2) whether
Respondent violated Section 8(a)(3) through discharge
and failure to reinstate or recall its employees Alexander
' Unless otherwise specified , all dates are 1967.
2 By the complaint as amended without objection at the hearing.
3 Table V, infra, chronologically recapitulates the many specific viola-
tions alleged in the complaint , with findings thereon.
169 NLRB No. 141
STORKTOWNE PRODUCTS, INC. 975
and Armstrong because they engaged in activities pro-
tected under the Act.
Upon the entire record4 and my observation of the wit-
nesses , I make the following:
FINDINGS AND CONCLUSIONS
1. PARTIES; JURISDICTION
Respondent is a Tennessee corporation with its only
plant and place of business in Columbia, Tennessee,
where it is engaged in the manufacture of clothing.,During
the 12-month representative period immediately preced-
ing issuance of the complaint, in the course and conduct
of that business Respondent purchased and received at
that plant, directly in interstate commerce from points
outside of Tennessee, products valued in excess of
$50,000. I find that at all material times (1) Respondent
has been and is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act and (2) the
Union has been and is a labor organization within the
meaning of Section 2(5) of the Act; [and I also find that]
assertion of jurisdiction herein is proper.
Conceding that the booklet containing these rules has
been distributed to employees hired with the 6-month
period immediately prior to the filing of the charge here,
Respondent contends that in practice these rules have not
been enforced.5 Even if true, this would not constitute a
defense, since it does not cancel out the coercive restraint
of the continued existence and distribution of the rules, in
an ostensibly official employer publication, upon an area
of employees' organizational activities insulated by the
Act from employers' coercive intrusion; nor would it
prevent Respondent from attempting to enforce those
rules at any time it chose to do so. Respondent apparently
still continues to distribute its booklet containing these
rules to new employees. If, as Respondent appears to
claim, it does not mean what it says in these rules, it
would be a simple matter to rescind or modify them. That
the quoted rules are violative of the Act because unduly
broad is plain, since, among other things, they purport to
interdict (1) solicitation of employees by fellow-em-
ployees during nonworking time and (2) distribution by
employees during nonworking time in nonworking area.
No reason being established, advanced, or apparent to
warrant such broad interdicts in this factory, they must be
held violative of the Act.6
II. THE ALLEGED UNFAIR LABOR PRACTICES
Union organizational activity in Respondent's clothing
factory commenced around the end of January.
A. Alleged 8 (a)(1) Violations
Reflecting events as they are complained to have oc-
curred , the numerous alleged violations of Section 8(a)(1)
will be dealt with chronologically.
- Commencing Prior to and Continuing Throughout 1967
Respondent concedes that it continues to distribute to
new employees a job orientation booklet entitled "Your
Job, Your Company and Its Rules," containing the fol-
lowing:
(9) MEMBERSHIP OR NON-MEMBERSHIP
in any church , society, fraternity association, Union
or other lawful organization does not affect any em-
ployee's standing with the company , nor are they fac-
tors in the selection of new employees . However, no
employee is allowed to solicit membership or support
for any of these groups while on the premises of the
company.
(10) COLLECTIONS OF MONEY for any pur-
pose; distributing cards, leaflets, handbills , petitions
or circulars of any kind while on the premises is
strictly forbidden unless permission therefore in writ-
ing has first been obtained from executive officers of
the company and then only for the purpose and on
the occasion set out in such permission.
1. February
It is alleged that early in February, about a week fol-
lowing the inception of union organizational activity,
Respondent, through its Plant Superintendent DeFero,
interrogated employees concerning their union affairs,
created among them the impression that those activities
were under his surveillance, and threatened them with
loss of employment in the event of unionization.
Proof of these matters was supplied through testimony
of General Counsel witnesses Davis, Armstrong, and
Alexander, as well as Respondent's Manager and witness
DeFero. Thus, it is undisputed that on February 8 at the
instance of Respondent's "head" sewing machine
mechanic Kennedy, Manager DeFero called a meeting in
his office of Respondent's four mechanics-i.e., Ken-
nedy, Davis, Alexander, and Armstrong-with Assistant
Plant Manager Wormood also present. Since the sewing
machine operators (all females) had just received a
February 1 minimum wage-law pay increase, a question
had arisen among the mechanics, who had been receiving
periodic wage increases each 6 months and some of
whom were not yet due another raise, should neverthe-
less also receive commensurate increases so as not to nar-
row the differential between their pay and that of the
operators. The meeting lasted around an hour. According
to mechainc Davis (now still in Respondent's employ), at
the meeting-in a context of mechanics' pay increases
thus expressly discussed and under contemplation-Plant
Manager DeFero:
" Hearing transcript as corrected by my September 29, 1967, order on
notice.
5 To be sure, credited testimony of General Counsel witnesses Ander-
son and Alexander establishes that employee solicitation of fund collec-
tions from other employees, with probable supervisory knowledge if not
direct participation, occurred in the plant during worktime. In view of the
unlawfulness of the quoted rules , it is unnecessary to consider whether
Respondent ' s toleration of violation of the rule (s) in the instances
described by Anderson and Alexander constituted disparate application
of the rules in violation of Section 8(a)(1), Cf. Leventhal, J., in
Amalgamated Clothing Workers ofAmerica v. N.L.R. B. (Sagamore Shirt
Company), 365 F.2d 898,910-911 (C A.D.C.).
6 Cf. Republic Aviation Corp v. N L.R.B., 324 U S. 793, 803, fn. 10,
804-805, N.L.R.B. v. Miller, 341 F.2d 870, 873-874 (C.A. 2), N.L R.B.
v. United Aircraft Corp., 324 F 2d 128 (C A. 2), cert denied 376
U S. 951, Whitfield Pickle Company, 151 NLRB 430; Atkins Saw Divi-
sion, Borg-Warner Corporation, 148 NLRB 949, Hunt Electronics Com-
pany, 146 NLRB 1328; Bannon Mills , Inc., 146 NLRB 611; Stoddard-
Quirk Mfg. Co., 138 NLRB 615; Texas Aluminum Co ., 131 NLRB 443,
enfd. 300 F.2d 315 (C.A. 5), Star-Brite Industries , Inc., 127 NLRB 1008;
Walton Mfg. Co., 126 NLRB 697, enfd. 289 F.2d 177 (C A. 5).
976 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
turned to me [Davis ] and told me I had signed a
union card and that I was giving out union cards. He
[DeFero] said, "How many have you got signed?"
I said that I didn't know exactly how many I had
signed. He asked me, "Well, did all of them sign?" I
said, "No, sir." He asked me how I felt about the
ones that didn't sign and I said that I felt like it was
their privilege to sign nor not .... he said that he
couldn't prevent the union from coming in, but he
didn't have to have four mechanics .... he said if we
all felt the same way that he'd like to go tell Mr. [vice
president] Heller that and see what he could do
about getting us a raise. 7
According to Armstrong (in layoff status at the time of
this hearing), at this meeting Manager DeFero:
ask [ed ] us if we thought that we needed a union and
then he [DeFero] asked us, after we all told him we
did think we needed one, he asked us if we thought
we needed one or if we were talking for the women
[sewing machine operators] .... he ask Tommy
[Alexander], he said, "I know you've been handing
out cards," and Tommy [Alexander] told him yes,
sir. He [DeFero] said, "How many did you hand
out, about 20 or 25 ?" and Tommy [Alexander] said,
"Something like that."
Asked who first brought up the subject of the union, Arm-
strong replied:
Mr. DeFero. He just started talking about it. He
asked us if we thought we needed a union ....
DeFero was the first one to talk about it. He asked
us if we thought we needed a union .... he asked all
of us. I mean , he asked it as just an open question and
then he pointed out and he asked how many -Tom-
my [Alexander ] what he thought about it, and Jerry
[Davis] what he thought about it and asked me
[Armstrong] what I thought about it .... he
[DeFero] asked if we thought we needed a union
and he asked Tommy [Alexander] what he thought
about it and he [Alexander ] said that he thought that
we did. Then he asked Jerry [Davis ] and Jerry just
shook his head, or he said yes, I don't remember
which one. Then he asked me and I shook my head
and said , "Yes." Then he asked Steve Kennedy and
Steve said that he didn't think we needed one as bad
as the women did. . . . Then he just started asking
about the union cards .. He told Tommy
[Alexander], he said, "I know that you've been
handing out cards. How many have you give out?"
He said, "Twenty or 25?" Tommy [Alexander] said,
"Something like that." Then he asked Jerry [Davis],
he said, "Have you been handing out any cards?" He
said , "Yes, sir." He said, "How many have you
handed out, around 30?" And he said that he didn't
remember or something like that. Then he looked
over at me [Armstrong] and he said, "You haven't
been handing out any cards, have you?" I said, "No,
sir, but me and my wife have signed and we're going
to vote for it if it comes up to an election." Then he
said that he told Mr. [vice president] Heller in a
meeting the night before that if the union come in that
within five minutes he would quit after it came in.
Then he said that if the union come in the union
couldn't tell him how many mechanics they had to
work. Then he made the statement that the union
killed his father or buried his father I believe was the
words he said, and he said, when he first started talk-
ing about the union, sometime in there, he said that
he would like to be able to go back and tell Mr.
Heller that we all thought like he did. I took it that he
was against it. 8
Testifying in the same vein, Respondent's mechanic,
Alexander (now again in its employ after a temporary
layoff and a disciplinary suspension), essentially cor-
roborated the foregoing accounts of what took place at
the February 8 meeting with Manager DeFero. Also ac-
cording to Alexander, it was DeFero at this meeting who
raised the subject of the Union, in a context of possible
raises for the mechanics. According to Alexander, after
indicating to the mechanics in no uncertain terms his
(DeFero's) hostility toward unions, DeFero added that
he would:
like to be able to go back down and tell Mr. Heller
that we all felt as he did, which I presumed that we
changed our mind against the union, and he said that
one mistake would be looked over and that the union
might come in but it could not tell Mr. Heller that he
had to work four mechanics.
The testimony of Respondent's witness and manager,
DeFero, on the subject of the February 8 meeting
likewise indicates that it occurred in a frame of reference
of a possible compensatory raise for the mechanics.
DeFero conceded that during this meeting:
I [DeFero] mentioned to Mr. Alexander and Mr.
Davis that they were passing out cards.... Union
cards ... Well after I said that about the cards, and
I made a statement myself that I know there was
about 75 cards passed out between Mr. Alexander
and Mr. Davis because Mr. Armstrong told me at
that meeting that he did not pass a card out.... After
I did mention that I knew they were passing out
union cards9 I made a statement about I know there
was around 75 cards passed. Mr. Alexander said he
passed 35 or 40 and Mr. Davis said he passed 30 or
35.... So after that we went back talking about the
raise again and I said, "As long as I've been at Stork-
towne, Storktowne has treated me very well and all
the promises they kept." And I did make the state-
ment that if we had a little harmony that I would go
to Mr. [vice president] Heller and see what I could
do for the boys. That was about the end of it....
there hasn't been harmony for the simple reason I
knew the activity was going into the shop.... Mr.
Armstrong and Mr. Jerry Davis were talking to girls
and trying to get them to sign cards during working
7 During cross -examination , Davis asserted he could not recall how the
subject of union came up at this meeting.
8 On cross-examination, Armstrong conceded that DeFero also told
them that they could do as they pleased , to join or not join the Union.
8 Respondent 's receiving clerk , Shouse (then in a supervisory capacity
as Respondent 's trim department purchasing agent), called as General
Counsel 's witness , testified that on February 2, shortly before the 4 p.m.
quitting time, Manager DeFero approached and asked him "friend to
friend" whether there was "going to be a union meeting and I [Shouse]
told him [DeFero] yes. He asked me where and I told him at the union
hall on the Nashville Highway and I told him it started at 7 o'clock. I also
asked him was he going and he said that he might drive by...." Conced-
ing the foregoing occured and that he did drive by the union hall with
Assistant Plant Manager Wormood en route to the home of Wormood
(who did not testify), DeFero maintained that he neither attempted to see,
nor saw , anybody there. The foregoing incident is not alleged to be, nor
cited or utilized as, a basis for a finding of violation of the Act.
STORKTOWNE PRODUCTS, INC. 977
hours.... I remember saying ... that if the union
walked in I would walk out for the simple reason of
a personal reason.
With regard to their described testimony, General
Counsel's witnesses impressed me as worthy of credence
in preference to Respondent's witness DeFero. Further-
more, as shown, the testimony of General Counsel's wit-
nesses was substantially mutually corroborative, whereas
Respondent failed to produce or to account for not
producing as witnesses its former Assistant Manager
Wormood or its present employee Kennedy to controvert
the testimony adduced by General Counsel. Under these
circumstances and evaluating the observed comparative
testimonial demeanor of the witnesses, I credit General
Counsel's witnesses' described testimonial account as the
more complete and accurate version of what took place
at the February 8 meeting of Plant Manager DeFero and
Assistant Manager Wormood with the four mechanics.
Crediting, as I accordingly do, on these aspects of the
case, the testimony of General Counsel's witnesses, it is
apparent that DeFero's interrogation of the mechanics
did not meet the minimum standards for employer
questioning of employees with regard to union affairs long
since articulated by the Board in Blue Flash.10 Not only
did these interrogations occur in absence of circumstan-
tial justification, explanations, or appropriate reas-
surances, but, to make matters worse, they transpired
within a context of active consideration of pay raises for
the interrogated employees. The interrogations are ac-
cordingly found to have been in interference with, and in
restraint and coercion of, employees' exercise of union
organizational !rights guaranteed by the Act and therefore
in violation ofI Section 8(a)(1) thereof.'1 It is additionally
found that, as: also alleged in the complaint, during the
described February 8 meeting Respondent's Manager
DeFero conveyed to employees that their union affairs
were under surveillance and well known to him12 and that
their union adherence was fraught with risk to their con-
tinued employment.13
The complaint further alleges that on February 10
Respondent's Vice President Heller threatened em-
ployees with plant closure in the event of unionization,
and also inaugurated a policy of encouraging employee
work-condition suggestions directly to management (i.e.,
without the interposition of a union representative); that
on February '13 Respondent's President Wexler
threatened employees with job loss in the event of
unionization and failure to meet union dues, and called
employees' attention to the futility of their selecting the
Union as their collective-bargaining representative; that
on February 17 Vice President Heller also pointed out to
employees the futility of selecting the Union as their col-
lective-bargaining representative, while warning them of
a strike or plant closure in the event of unionization; and
that on February 23 Heller, in order to discourage
unionization, promised employees to air condition the
plant.
General Counsel's evidence as to the alleged February
10 threat of plant closure in the event of unionization is
based solely upon a speech which Respondent's Vice
President Heller concededly made to plant employees on
that date. Review of that speech (G.C. Exh. 2) shows that
while, to be sure, like speeches of this type, it is not de-
void of occasional phraseology susceptible of double
entendre,14 upon balanced overview, it cannot fairly be
branded as beyond the pale of reasonable union campaign
comment. An employer may lawfully exhort or attempt
to persuade employees not to join a union. Balancing, on
the one hand, the "free speech" emphasis of Section 8(c)
of the Act, against, on the other hand, awareness that fac-
tory workers may not be assumed to be skilled seman-
ticists, Heller's February 10 speech shows every
evidence of knowledgeable legal draftsmanship which ap-
pears adroitly to have steered free of shoals upon which
employer campaign speeches sometimes founder. At any
rate, in my opinion, sufficient evidentiary basis is lacking
here for holding as matter of law that this particular
speech, without more, as alleged in the complaint (¶ 8),
constituted, contained, or was freighted with threat of
plant closure in the event of unionization. It is ac-
cordingly found that this allegation of the complaint has
not been established by preponderant substantial
evidence.
General Counsel's proof of Respondent's alleged inau-
guration on February 10 of a policy encouraging em-
ployees to bring their suggestions about work conditions
directly to management was supplied through General
Counsel witness Shouse (Respondent's receiving clerk),
who testified that employee suggestion boxes were first
installed in the plant in February. As to this, Respond-
ent's Vice President Heller swore, contrariwise, that
Respondent has maintained a suggestion box "for a
number of years, probably since the first year that the
building was built," located "no more than six feet" from
Shouse's desk; and that when the plant was enlarged from
32,000 to 90,000 square feet, along with other expanded
facilities (such as washrooms and lunchroom) additonal
suggestion boxes, similar to the existing one, were in-
stalled. After Heller thus testified with such specificity,
no evidence was adduced-although presumably it
should readily have been amply available in various
forms-to controvert him. Under these circumstances,
10 Blue Flash Express, Inc, 109 NLRB 591, 594.
11 "... employers must beware of interrogation unless (1) they have a
valid purpose for obtaining information concerning the union's strength;
(2) they communicate this purpose to the employees; and (3) they assure
the employees that no reprisals will be taken." Bok, The Regulation of
Campaign Tactics in Representation Elections under the National Labor
Relations Act, 78 Harv. L. Rev. 38, 106, at 107 (1964), cited with ap-
proval in N.L.R.B. v. Camco, Incorporated, 340 F.2d 803, 804 (C.A. 5),
cert. denied 382 U.S. 926. The Board had recent occasion again to remind
that: "The Board has consistently held that interrogation by an employer
which seeks to ascertain an employee's union sympathies and which
places an employee in the position of acting as an informer regarding the
union activities of his fellow employees, is coercive, and more particularly
where the information thus obtained is used as part of an overall pattern
whose tendency is to restrain or coerce. The fact that such interrogation
is made in a casual manner during a friendly conversation in an informal
context or setting does not lessen its unlawful effect." General Automa-
tion Manufacturing, Incorporated, 167 NLRB 502.
12 Cf N.L R.B. v. Rish Equipment Company, 359 F.2d 391 (C.A. 4).
11 Cf. N.L R.B. v. Winn-Dixie Stores, Inc., 341 F.2d 750, 752 (C.A. 6)
cert. demed 382 U.S. 830; N.L.R.B. v West Side Carpet Cleaning Co.,
329 F 2d 758, 761 (C.A. 6); Storkhne Corporation, 135 NLRB 1146, R.
D. Cole Manufacturing Company, 133 NLRB 1455; Nebraska Bag
Processing Company, 122 NLRB 654. Relevant to appraisal of effective-
ness and substantiality of threats is their utterer's power to make them
good. Cf. N.L.R.B. v. Eastern Die Co., 340 F 2d 607 (C.A 1), cert. de-
nied 381 U.S. 951.
14 E g., the reiterated reference (and therefore, arguably, possibly undue
emphasis, perhaps turning on manner of oral delivery, as to which no
evidence has been supplied in the record here) to job "security."
978 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ,
crediting Heller's described testimony,15 I likewise find
this allegation of the complaint not established by a pre-
ponderance of the substantial credible evidence.
The evidentiary support, if any, for the alleged viola-
tions of February 1318 is to be found in a speech con-
cededly made to employees by Respondent's President
Wexler on that date. In this speech (G.C. Exh. 5), which
again bears hallmarks of knowledgeable outside
preparation,'' Wexler informed the employees of their
right to join or not join a union and that this decision on
their part should be based upon facts; he traced the origin
and development of his company; pointed out that union
operations, like others, involve economics, with workers'
dues supplying the required monetary wherewithal; in-
dicated that, in order to survive, a business must meet
competition, and furnished current examples of loss of or-
ders from established customers because of the necessity
to raise prices due only to increase in labor costs because
of the recent (February 1) minimum wage law amend-
ment; reminded employees of advantages that had ac-
crued to them, without the interposition of a union,
through their employment with Respondent; and cau-
tioned employees that supplanting the existing informal
personal relationship between employees and manage-
ment with an outside union to represent them would
result in "cold business bargaining." In closing, Wexler
reiterated that "the decision is for you [employees] and
you alone to make ... on facts as you know them to be
from your own experience...."
Also in this speech, after reminding employees of the
Company's liberal practice of making interest-free loans
to employees and implying that they could expect no such
generosity from a union treasury, Wexler went on to state
(G.C. Exh. 5):
If it were a union shop, what would happen would be
that instead of getting a loan, the member would lose
his job by failing to pay his monthly dues.
It is difficult to perceive any rational justification for this
remark. The positive way in which it is cast-"the
[employee who is a union ] member would lose his job by
failing to pay his monthly [union] dues" [emphasis
supplied] - appears to remove from the ambit of specula-
tion the consequences of nonpayment of dues for reasons
of economic inability. This, indeed, is the plain meaning
of the words used. Wexler's statement told the employees
flatly that unionization would mean that an employee
unable to pay union dues "would lose his job." This
would appear not only to have been an unjustified scare,
but also rather wide of the truth. Since Tennessee, where
Respondent's factory is located, is among those states in
which it is unlawful to require union membership as a
condition of employment even in a unionized plant,18 the
situation posited by Wexler could not exist, since an em-
ployee could not "lose his job by failing to pay his
monthly [union] dues." Since Wexler was not delivering
a lecture to lawyers or students of labor law , it seems
reasonable to assume that he was not talking to his em-
ployees about a theoretical situation in some other State
having laws different from those in Tennessee , but that he
was picturing (and intended to picture ) for his employees
a situation which would be applicable to them in the fac-
tory in Tennessee where they were working, and that the
employees so understood . Under the circumstances,
Wexler should not have told the employees in the way he
did that an employee who joined the Union "would lose
his job by failing to pay his monthly [union ] dues." To
begin with, the Union could not , in the absence of a lawful
union security provision , legally bring about such a
dismissal from employment ; moreover , even it the Union.
possessed legal power to bring about such a dismissal, it
might not wish to exercise that power if inability to pay
dues were for economic cause; furthermore , even where
a dues checkoff provision exists, an employee is not
dismissed for nonpayment of union dues , since his dues
are paid through the employer 's dues deduction from his
pay; and , finally, there would be nothing to prevent the
employer from continuing- indeed , it would offend the
Act for the employer for discriminatory reason to discon-
tinue - its existing loan policy.
Under these circumstances , I find that Wexler's quoted
statement in his February 13 speech constituted an im-
proper warning to employees of job loss in the event of
unionization and failure to pay union dues , substantially
as alleged in the complaint (¶ 11(a)), in violation of Sec-
tion 8 (a)(1) of the Act. Since , however, the further allega-
tion of the complaint (¶ 11(b)) that on February 13
Wexler called employees ' attention to the futility of
selecting the Union as their collective -bargaining
representative derives no substantial evidentiary support
from the described speech or otherwise from the record,
I find that allegation not persuasively established.
The complaint further alleges that on February 17
Respondent ' s Vice President Heller informed employees
of the futility of selecting the Union as their collective-
bargaining representative , and at the same time warned
them of a strike or plant closure in the event of unioniza-
tion . Again, the evidence in support of these allegations
consists of a speech (G.C. Exh. 6) concededly delivered
by Heller to plant employees on that date . Heller in-
troduced this speech by reminding employees that "we in
management have no grudge against anyone who may
have signed a union card." Pointing out that unions some-
times create false impressions and that employees some-
times have a defective understanding as to the nature of,
or consequences of signing , a union card , and that an em-
ployee has the right to belong to or not to belong to, or to
disaffiliate from , a union , he told the employees, "Your
job will never depend on whether or not you are a
member of a union." He indicated to the employees that
voting for a union did not necessarily have as its con-
' To be sure, in a speech (G.C. Exh. 4) delivered on February 10,
Heller offered to answer employees ' questions , whether signed or
anonymous, and solicited their suggestions , indicating that due to the en-
larged plant he would endeavor to put up additional suggestion boxes "for
your convenience ." This does not alter the above finding. There was here
no solicitation by employer to employees to bypass an already selected
collective-bargaining representative . I can perceive nothing unlawful
about an employer 's offer in this manner to answer questions which em-
ployees may wish, anonymously or otherwise , to raise, nor- whether con-
sidered separately or in conjunction with other events here
established - anything other than trivial about the indication that because
of the enlarged plant additional suggestions might be more conveniently
emplaced.
16 I.e., warning by Respondent 's President Wexler of loss of jobs in
event of unionization and failure to pay union dues, and of futility of
selecting the Union as collective-bargaining representative.
' 1 To say nothing of the verbiage , the name of the Union was left blank,
to be filled in , on the manuscript stipulated to have been Wexler's speech.
IS Cf. Act , Secs. 8(a)(3) and 14(b).
STORKTOWNE PRODUCTS, INC.
sequence dreams coming true. However, after pointing
out that unions cannot guarantee continued customers or
job security, Heller went on to say:
... they [unions] cannot guarantee us anything ex-
cept trouble. We are firmly convinced that if a union
were to get in here, it would work to our serious
harm, yours and mine. This union would be a source
of trouble, strife and misunderstanding. It would turn
our now warm relationship into a cold and formal
thing. Unions do not like for management and em-
ployees to have a warm relationship or to get along
well together, and we know the unions fear of
friendly dealings between you and your management
. They [i.e., unions] solve your problems? Sure
they do, most of the problems you wouldn't have to
begin with if the union wasn't there .... Would we
get along as well together if an iron curtain dropped
between us. I do not believe this union could solve
any problems real or imagined, which we may have
in this shop, anymore than you could solve your
problems at home by calling in your mother-in-law to
straighten out your affairs. This is a serious matter.
If you think a union would bring trouble to us, as I
sincerely do, you can express yourself and work
against this union regardless of whether you signed
a union card or not-the law guarantees you this
right.
The fair net intendment and message of the quoted
words could have been none other than an admonition to
employees that for them to join or continue to adhere to
the Union as their bargaining representative, was at least
futile and probably would work to their severe economic
detriment ("serious harm," in Respondent's words); in-
deed, it was capped by a direct invitation to them to disaf-
filiate for those reasons. When an employer, under these
circumstances and in this way, indicates to employees de-
pendent on his goodwill for their continued economic ad-
vancement if not livelihood, that the employees' relation-
ship with management would be seriously compromised
through the employees' union membership, he violates
the Act since he is placing a Damoclean sword or cloud
of threat over the employees for doing no more than the
Act guarantees them the right to do free from such a
sword'of threat or cloud seeded with such employer inter-
ference, restraint, and coercion. As Mr. Justice Harlan
stated for the uilamimous Court in N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409: "Employees are not likely
to miss the inference that the source of benefits now con-
ferred is also the source from which future benefits must
flow and which may dry up if it is not obliged." "... it is
common experience that the desire of employees to
unionize is raised or lowered by the advantages thought
to be attained by such action." Reed, J., in Radio Of-
ficers' Union v. N.L.R.B., 347 U.S. 17, 51. "Language
may serve to enlighten a hearer, though it also betrays the
speaker's feelings and desires; but the light it sheds will
be in some degree clouded, if the hearer is in his power.
... What to an, outsider will be no more than the vigorous
presentation of a conviction, to an employee may be the
manifestation of a determination which it is not safe to
thwart'." Learned' Hand, J., in N.L.R.B. v. Federbush
Co., Inc., 121 F.2d 954, 957 (C.A. 2). The language of
threats is unprotected by Section 8(c) of the Act, as that,
section explicitly provides. Expression or dissemination
19 Cf. J. P. Stevens & Co. v. N.L.R.B , 380 F.2d 292, 302 (C.A. 2);
Greensboro Hosiery Mills, inc., 162 NLRB 1275
979
of "views, argument, or opinion" are immune from con-
demnation under the Act only if unaccompanied by
"threat of reprisal or force or promise of benefits."
N.L.R.B. v. United Steelworkers of America, 357 U.S.
357, 362. That this is likewise true with regard to the pro-
tection of the first amendment, see N.L.R.B. v. Virginia
Electric & Power Co., 314 U.S. 469, 477, 478. Ac-
cordingly, I find that, through the quoted language by its
Vice President Heller, Respondent, as alleged in the com-
plaint and in violation of Section 8(a)(1) of the Act, on
February 17 effectively brought home to employees the
message that it was and would be futile and to their "seri-
ous harm" to select the Union as their collective-bargain-
ing representative. 19 I also find, however, that the further
allegation of the complaint, that on that date Heller also
warned of a strike or plant closure in the event of
unionization, being without substantial support in the
quoted speech or otherwise from the record, has not been
established by substantial persuasive evidence.
Finally with regard to February, it is alleged that on
February 23 in order to forestall unionization, Vice Pre-
sident Heller promised Respondent's employees that the
plant would be air-conditioned-a promise which was
kept on May 1. It is conceded that in a speech (G.C. Exh.
3) delivered to employees on February 23, Heller did in-
deed indicate that the plant would be air-conditioned and
that this was carried out around May 1. This, however,
does not tell the whole story. In the speech in question,
Heller prefaced his remarks to the employees by explain-
ing that in view of the union organizational campaign he
was apprehensive about replying to questions received
from employees, "pertaining to paid holidays, more
liberal vacation pay, and insurance." Nevertheless, in
going on to indicate that the plant would be air-condi-
tioned, he pointed out:
There is one question I am very happy to be able to
answer, yes, because it will be of great benefit to all
of us, and of necessity was started months ago dur-
ing the hot summer last year. I am referring to air
conditioning. Since last July we have had a number
of local and Nashville contractors submit bids and
plans for units that will not only cool, but dehumidi-
fy, and will also have heavy duty filters to clean the
air. [Emphasis supplied. ]
On this same subject, Heller testified without contradic-
tion and corroborated by reference to records as follows.
The matter of air conditioning the plant was discussed
among plant executives in the summer of 1966 (the plant
had opened in 1962), in order to improve efficiency and
also in view of competition for labor by newly air-condi-
tioned plants in the area. Accordingly, in or before Au-
gust as well as later in 1966, Respondent surveyed local
electrical concerns for estimates on air conditioning the
plant in time for the warm season of 1967. An architect's
drawing was provided Respondent for this purpose on
August 22, 1966. After comparison and consideration of
the data received, a decision was made, in August or Sep-
tember 1966, to install the air conditioning. On
November 23, 1966, Respondent by mail inquired from
a Tennessee bank regarding financing the air-conditioning
installation. Financing was approved by the bank a few
days thereafter. The actual contract for air conditioning
was entered into on March 2, 1967. This is the factual
frame of reference within which Heller told the em-
350-212 0-70-63
980 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees on February 23 that the plant would be air-condi-
tioned. The air conditioning was accomplished by around
May 1.
If Respondent air-conditioned its plant, or timed the air
conditioning or announcement of the air conditioning of
its plant, so as to forestall exercise by its employees of
any of their rights, such as the right to unionize, under the
Act, it would constitute violation of Section 8(a)(1). If,
however, the decision to air-condition were made for
other reasons- regardless of when those other reasons
were timed -or if the decision or its announcement were
timed for other reasons, regardless of when the decision
was made , the Act was not violated . Motorola, Inc., 163
NLRB 385. Under all the circumstances, in view of
Heller's testimony on this subject (in part corroborated
by reference to documents which have not been shown to
have been fabricated or open to suspicion), which I
credit, the burden of establishing by substantial credible
evidence that the plant air conditioning was decided
upon , timed , or announced to "chill unionism" 20 rather
than the plant, has not been sustained. Such evidence as
has been adduced on this subject suggests, rather, and I
accordingly find, that Respondent's decision to air-condi-
tion its plant had been made in 1966, long before the in-
ception of union activity, and that by the end of 1966, still
substantially before the start of the Union's organizing
campaign , that decision was well along the way to imple-
mentation , with bank financing arranged; and that, under
these circumstances, Respondent's announcement was
made and timed in the course of rational business opera-
tions . Bearing in mind that the burden of proof and per-
suasion in these matters is upon the proponent of the al-
legation of violation , it cannot be said that upon the
record presented-with no disproof of Respondent's
testimonial and documentary showing-that burden has
been met. It is accordingly found that it has not been
established by substantial credible evidence that Re-
spondent violated Section 8 (a)(1) of the Act by its
announcement or installation of air conditioning.21
2. March
The complaint alleges that on March 28, further to
discourage plant unionization , Vice President Heller
promised employees an extra paid holiday and further fu-
ture benefits. The evidence adduced to establish this al-
leged violation-for such it would clearly be if true-is
still another speech (G.C. Exh. 7) concededly delivered
by Heller to employees on or about the date in question.
In this speech, Heller informed them that although
Respondent "will not be able to give a summer vacation
simply because ... we need the production," there would
this year be an extra paid holiday centered around July 4
so as to result in "a long week end. We would like to have
the entire week off but for the good of your business and
mine , this is the best we can do." Heller further stated,
"In our regular plan of making Storktowne your best
place to work , we are considering other benefits in the fu-
ture but as you know we keep our promises so we have to
take the time to consider the costs very well to make sure
we can afford what we promis [sic ]."
There is nothing to indicate that Respondent had this
20 Harlan , J., in Textile Workers Union of America v. Darlington
Manufacturing Co., 380 U.S. 263, 275.
11 Cf. Motorola , Inc., 163 NLRB 385; Dan Howard Mfg. Co., 158
extra paid holiday even in contemplation prior to its an-
nouncement during the unionization campaign. Respond-
ent's purported justification therefor, as expressed in the
testimony of Heller, is merely that it was dictated by the
"ever increasing competitive situation that we were hav-
ing from the other similar manufacturing plants in town
that were giving these benefits that we were not."
All circumstances considered, upon the record as a
whole I find that the catalyst if not the sole cause of the
extra 1967 paid holiday was the unionizational drive; and
that the inducing prime element in Respondent's
precipitate, long in advance announcement of that
economic tidbit was the unionization drive and its desire
to counter and discourage further union adherence on the
part of its employees. "[I ]nterferences, accomplished by
allurements, are as much condemned by the Act as is
coercion." N.L.R.B. v. Douglas and Lomason Company,
333 F.2d 510,514 (C.A. 8). "The danger inherent in well-
timed increases in benefits is the suggestion of a fist inside
the velvet glove." Harlan, J., in N.L.R.B. v. Exchange
Parts Co., 375 U.S. 405, 409. Accordingly, it is found
that, substantially as alleged in the complaint, Respond-
ent's announcement to its employees on March 28,
1967, of an extra paid holiday in July 1967 was purposed
to repel and inhibit its employees' exercise of rights
guaranteed to them by the Act, in violation of Section
8(a)(1) thereof. With regard, however, to the further con-
tention that Vice President Heller in his speech on the oc-
casion in question promised further future benefits to
discourage unionism, it is noted that the speech makes no
such promise, but merely indicates that Respondent was
"considering" the possibility of "other benefits in the fu-
ture" in accordance with its alleged "regular plan of mak-
ing Storktowne your best place to work." While, to be
sure, it is possible that this may have been planted as a
callous semantic seed to sprout in employees' minds a
flowering vision of future benefits contingent upon their
relinquishment of their right to deal with their employer
collectively through a union of their choice, the words
themselves, elastic as they are, do not require such an in-
terpretation. Thus, Heller's words are also reasonably
susceptible to the interpretation that he meant just (and
no more than) what he indeed said, that Respondent
would continue, as it had in the past, to "consider[ing]
other benefits in the future," without promising them or
in any way linking their fulfillment to union rejection or
adherence. Under the circumstances, eschewing specula-
tion in either direction, it is found that it has not been
established by substantial credible evidence on the record
presented that by Heller's speech of March 28, 1967, or
otherwise as alleged, Respondent promised employees
further future benefits conditioned upon or in order to
discourage union adherence.
3. April
The complaint additionally alleges that, in order still
further to discourage unionization, on April 24 em-
ployees were given paid life insurance policies.
As to this, Respondent's receiving clerk, Shouse, as
General Counsel's witness, testified that although he has
been in Respondent's employ for 3 to 4 years, for the first
NLRB 805; Divco-Wayne Industries , Inc., 154 NLRB 974; T. L. Lay
Packing Company , 152 NLRB 342; Champion Pneumatic Machinery
Co., 152 NLRB 300; Derby Coal & Oil Co., Inc., 139 NLRB 1485,1486;
True Temper Corporation, 127 NLRB 839, 842-844.
STORKTOWNE PRODUCTS, INC. 981
time on April 27, 1967, he received company-paid life in-
surance. Conceding that such insurance to employees
was placed into effect on or about that date (without any
speech or previous announcement), the only explanation
vouchsafed by Respondent was the testimony of its Vice
President Heller that the motivating consideration was,
again, "Survival of our business by being able to keep the
number of production employees in the shop in view of
the ever increasing competitive situation that we were
having from the other similar manufacturing plants in
town that were giving these benefits that we were not."
Again considering the timing of this substantial economic
benefit vis-a-vis the pending plant unionization activities,
it is found that those activities constituted at the least the
propelling reactive catalyst, if not the prime and sole
cause, for Respondent 's extension to its employees of
these important economic benefits, in violation of Section
8(a)(1) of the Act.
4. May
Finally, in this aspect of the case, the complaint alleges
that, in order to discourage unionism at its plant, on May
1 Respondent installed air conditioning there. Inasmuch
as this matter has already been explored and disposed of
supra, in conjunction with Heller's February 23 speech,
reiteration here is unnecessary.
B. Alleged8(a)(3) Violations
We move now to the subject of Respondent's layoffs of
Alexander and Armstrong. Our predicate is the firmly im-
bedded principle in proceedings of this type that an em-
ployer is privileged to lay off, discipline, suspend, or even
discharge, an employee for any reason or without
reason,22 so long as not because of the employee's exer-
cise or attempted exercise of a right protected by the Act
(e.g., union adherence).
Credited testimony23 establishes the following facts.
During the early part of 1967, Respondent employed in
its factory, exclusive of supervisory and clerical person-
nel and about 40 persons in layoff status, over 300 em-
ployees, mostly sewing machine operators (females).
Respondent also employed there, during this period, as
will be explained, 4 or fewer sewing machine mechanics
of varying degrees of experience and skill, including
Alexander and Armstrong, whose cases are here for con-
sideration. Respondent's mechanic staff, qualification,
and seniority picture as of January-early February (as
well as since August 31, 1966) is shown in table I.
Table I
Res ondent ' s Mechanic Staff Situation , January -Early Februar 1961
Title or
Mechanic's Description Degree of Date or Apx Seniority
Name (All Full-Time Qualification Date of Hire Status
Kennedy Chief or head Highly skilled, Apx 1962 #1
sewing machine experienced, and
mechanic technically qualified
in all respects 24/
Davis Sewing machine Well skilled, experi- Apx 1963; on #2
mechanic enced, and technical) layoff apx 1963
qualified in all or 1965; recalled
most respects Oct. 1965
Alexander Mechanic helper Not highly skilled 10-28-65 #3
or "apprentice" or experienced; in
under Kennedy many respects not
technically qualified
on sewing machines
Armettong Mechanic helper Not highly skilled 10-31-66 #4
or "apprentice" or experienced; in
under Kennedy many respects not
technically qualified
on sewing machines
Tommy Alexander entered Respondent's employ in sewing machine mechanic. According to his own
October 1965 as a full-time mechanic assisting or work- testimony, his principal occupation is not his work for
ing under Respondent's head mechanic Kennedy. Alex- Respondent, but running 4 farms on which he operates 3
ander is not a trained or highly skilled or experienced tractors. James Armstrong entered Respondent's em-
22 N.L.R.B. v. McGahey, 233 F.2d 406, 413 (CA. 5). 24 "... one hour of Steve Kennedy's work, our top mechanic, couldn't
be compared to an hour of our least skilled mechanic. It might take a least
23 I.e., elements of the testimony of General Counsel's witnesses Arm- skilled mechanic three or four or five times as long and he may not be able
strong, Alexander, Davis, and Shouse, and of Respondent's witnesses to do it at all." Credited testimony of Respondent's Vice President and
Heller, DeFero, Armstrong, Davis, Sanders, and Green. Chief Executive Officer Heller
982 DECISIONS OF NATIONAL
ploye as a similar full-time mechanic's assistant to Ken-
nedy on August 31, 1966. thereby becoming the most jun-
ior member oTRespondent;s mechamcaf staff. Alex
ander testified that he worked as a mechanic under Ken-
nedy, while Armstrong conceded that Kennedy and
Davis had "a lot more experience" on sewing machine
mechanical work than he and were capable of doing
mechanical repairs he was incapable of doing, and that
"Kennedy could do mechanical work on sewing machines
that [I was] unable to do because [1] did not have the
requisite amount of knowledge and skill." Alexander and
Armstrong continued in Respondent's employ in this
capacity until February 1967, when both were laid off al-
legedly for economic reasons or lack of necessity for their
services. After completing his regular week's work on
Friday, February 10, Alexander was hospitalized on
Sunday, February 12; upon his visit to the plant on or
about February 23 (Thursday) to indicate he hoped to
resume work the following Monday, he learned from Vice
President Heller that, in accordance with a letter which
Respondent had sent him, he had been laid off as of
February 10 (i.e., the last day he had worked; the
backdating apparently being to form a basis to enable
Alexander to claim unemployment insurance benefits as
of that date) "because he [Heller] felt like he had two
mechanics that could do the work and he [Heller]
thought that I [Alexander] could find a job pretty easy
anyhow." Armstrong had similarly been laid off, on
February 14, after Heller had told him that "due to in-
creases in prices and wages25 that he couldn't afford four
mechanic and he was going to have to lay one of us off."
The formal separation slips issued by Respondent to
Armstrong and Alexander each assigned "lack of work"
as the reason for the layoffs.
Alexander was recalled by Respondent and resumed
work in his former capacity at its plant, on May 5, con-
tinuing thereafter until June 13, when he was disciplinari-
ly suspended for 2 weeks under circumstances which will
be described. After this 2-week period, he again reentered
and has since remained in Respondent's active employ.
As of the date of the hearing in this case, Armstrong had
not been recalled.
It is contended by General Counsel that the February
layoffs of Alexander and Armstrong, as well as the June
suspension of Alexander, were because of union or-
ganizational activity. Disputing this, Respondent con-
tends that the February layoffs and subsequent failure to
recall both of these employees were for economy and effi-
ciency reasons, and that Alexander's June suspension
was for justifiable disciplinary reasons unrelated to lawful
21 It will be recalled that Respondent had just, as of February 1, effec-
tuated a required minimum wage law increase among its sewing machine
operations . In view of the hundreds of employees affected, it would seem
that this involved a substantial overall sum.
2e Alexander also testified that at the time of his February layoff there
were three other plant employees as active as, and one more active than,
he on behalf of the Union; further, that after his recall to Respondent's
employ, in June, three (including himself) were equally most active in that
regard . The record is without suggestion that any of these others has been
the object of Employer retaliation of any kind.
27 Armstrong conceded that , although he oriented some employees on
LABOR RELATIONS BOARD
union organizational activity. It is necessary to examine
these opposing contentions.
In support of the contention that Alexander and Arm-
strong were laid off in February because of their union or-
ganizational activities, General Counsel has adduced
proof, which I credit, that the unionization campaign in
Respondent's plant started in January, Alexander having
signed a union card early in January and Armstrong on
February 1 or 2. Alexander (according to his own
testimony) successfully solicited about 25-30 employees
to join-a fact which he (also according to his own
testimony) openly acknowledged to Plant Manager
DeFero at the mechanics' meeting with DeFero in the
latter's office on February 8, which has already been
described in another connection .26 At the same February
8 meeting with DeFero, mechanic Davis (further accord-
ing to Alexander's testimony) likewise openly
acknowledged that he (Davis) also had successfully en-
listed about 30 employees; whereas Armstrong denied
soliciting cards and had in fact procured only his wife's
signature.27 Alexander conceded that at this February 8
meeting DeFero told the mechanics that they "could join
the union or not join the union. You [are] free to do just
as you please." Armstrong corroborated Alexander in
these respects. Nevertheless , it is to be observed, not-
withstanding their substantial, awowed, and known
unionizational leadership, that Davis has been continued
in Respondent's employ without interruption, and Alex-
ander was recalled after a comparatively brief layoff. By
contrast, the plant unionizational activity of Armstrong,
the most junior member of Respondent's mechanical staff
at the time of his layoff, was minimal -other than his own
wife, he did not solicit as much as a single employee. It
would thus appear to be questionable whether even a
prime facie case of discriminatory layoff for union or-
ganizational activity, as alleged in the complaint, with re-
gard to Respondent's February layoff of Alexander and
Armstrong, was made out. It is unnecessary to point out
that mere union membership does not insulate from
layoff.
We nevertheless proceed to consideration of Respond-
ent's contention that the true reasons for these February
layoffs and failure to recall both of these men were econo-
my and operational efficiency. On this aspect, Respond-
ent's Vice President Heller testified that the February
layoff of Armstrong and Alexander resulted from the fol-
lowing factors: (1) increased plant operational costs aris-
ing from the February 1 mandatory minimum wage in-
creases to some 300 operators; (2) regular seasonal plant
slowdown, involving the layoff of 38 other employees in
the Union and where they could procure a union card , he was in other
respects inactive in the union organizational campaign at Respondent's
plant and had not even attended a union organizational meeting before his
layoff. He had, however, to Respondent's knowledge, belonged to another
(Rubber Workers') union, since he was hired after disclosing this fact to
Respondent on his employment application form; and, also to Respond-
ent's knowledge and without objection (since it involved excused failure
on his part to work some Saturdays), he had been engaged in picket duty
at the Lewis Products plant in the nearby community of Hohenwald.
Since shortly after his layoff, Armstrong has been in the employ of the
Union, engaged in residential organization of Respondent 's employees.
! STORKTOWNE PRODUCTS, INC. 983
addition to Armstrong and Alexander;28 and (3) an
economic judgmental decision arrived at by Heller some
time prior to February (i.e., prior to inception of unioniza-
tional activity) but deferred at the behest of DeFero and
Kennedy, and finally implemented on an experimental
"see what happens" basis on the occasion of Alexander's
absence from work during his hospitalization , commenc-
ing February 12. According to Heller, who supported his
economic contentions in part by documentary records
contemporaneously maintained in the regular course of
Respondent's business, the judgmental decision to fur-
lough Armstrong and Alexander resulted in operational
efficiency as well as economy, particularly when it later
happened to transpire that Respondent's chief mechanic,
Kennedy , who resigned in March, was able to return on
a part-time basis around the beginning of May, making
the recall of both Alexander and Armstrong, with the
seasonal upswing of business, unfeasible for reasons now
to be shown.
This leads to consideration of the factors prompting
Respondent ' s selection of Armstrong and Alexander,
from among its four mechanics , for layoff in February,
and the sequelae of that layoff. To begin with, it is un-
disputed that, as pointed out by Respondent, they were
the two most junior mechanics, by far, especially Arm-
strong , who had only been in Respondent 's employ for
about 5 months; and it is indisputable, as also pointed out
by Respondent and as is apparent from these two em-
ployees' own testimony, that they were also, again, by far,
the least qualified and experienced of the four mechanics.
If factors of economy, or any other considerations
whether wise or unwise so long as not discriminatory in
violation of the Act, were to be applied, every rational ar-
gument supports Respondent 's contention that these two
employees were the logical candidates for retrenchment
or layoff. Respondent 's actions subsequent to the
February layoff, following the later resignation in March
of its head sewing machine mechanic , Kennedy, are
likewise thoroughly consistent with prudent , rational,
business administration . Thus, when Kennedy resigned
in March, it became essential to replace him. Since Ken-
nedy was a highly skilled and experienced sewing
machine mechanic , capable of making every conceivable
repair on sewing machine "heads" which neither Alex-
ander nor Armstrong was qualified, nor apparently per-
mitted, to touch, it is clear that neither Alexander nor
Armstrong nor even both together could serve as replace-
ment for Kennedy. Respondent therefore sought a
suitably qualified replacement for Kennedy and obtained
him, Kelly, through public advertisement and competitive
qualificational screening in no way here controverted.
Armstrong himself conceded at the hearing that, with
Kennedy gone, the plant had need for a mechanic who
"understood more than [Armstrong] and the other
mechanics did."
When, later, around the beginning of May (shortly be-
fore the recall of Alexander), the services of Kennedy,
the most expert, the most experienced, and formerly the
most senior , of Respondent ' s mechanics , became availa-
ble on an irregular part-time basis, he was permitted to
resume on that basis. As Heller credibly testified, "one
hour of Steve Kennedy's work ... couldn't be compared
28 Although it is emphasized by General Counsel that no mechanics had
been laid off during the usual post -Christmas seasonal lull in the previous
year ( 1965), among other things , it is noted that Armstrong 's employment
with Respondent commenced on August 31, 1966 (and Alexander had
only been hired less than a month prior to Christmas 1965) Furthermore,
there is no factual, comparative showing of the quantity of actual mechani-
cal work on hand, required to be done during the compared periods in
these 2 years . Armstrong and Alexander (as well as, to a degree, Respond-
ent's receiving clerk and former purchasing agent , Shouse, whose
knowledgeability on this subject I believe is inferior to that of Heller,
based upon the record facts adduced by the latter ) testified that not only
was there work for them to do when they were laid off in Feberuary, but
that there was even more work in view of the layoff of operators, since
during such slack periods idle machines are serviced . The answer to this
contention of work on hand is that , without more . . for example, how
much work the other mechanics had and the nature , essentiality, and ur-
gency of all mechanical work required to be done .. it does not establish
that Armstrong and Alexander were essential nor that the required work
could not be efficiently or more economically handled by the remaining
mechanics . Furthermore, although it may be an item of evidence to be
considered , it far from establishes discriminatory motivation in violation
of the Act With regard to the second contention - namely , more work
during factory slowdowns , in order to service idled machines of laid-off
operators-the same considerations apply. This contention also appears
to prove too much-reminiscent of the starving snake who kept nibbling
on his tail until he swallowed himelf- seemingly indicating that the fewer
operators there are the more mechanics are needed , so that a maximum of
mechanics is achieved with a minimum of operators . The argument, of
course , among other things , loses sight of the mechanical work essentiality
and urgency elements (i.e., time within which machine maintenance ser-
vicing operations must be completed before return of furloughed opera-
tors) and the fact that presumably with fewer operators fewer mechanics
are required to service the needs of the employed operators , to that extent
freeing the mechanics for maintenance chores on the "mothballed" fleet
of sewing machines not in use According to Heller , although Respond-
ent's normal mechanic to operator ratio was 1:100, in January 1967
Respondent found itself with an uneconomical ratio of 1 :62 in terms of
productive work hours . Even according to testimony of a fellow mechanic
and active fellow unionist of Armstrong and Alexander , namely General
Counsel witness Davis , whom I credit , work in the plant had been
slacking off before the layoff of Armstrong and Alexander , during the
usual January -March "slack season ," when sewing machine work falls to
"around 50 or 60 per cent" of what it previously is, in 1967, moreover,
even though there were "around 30 or 40" more "machines going" in
January and February of that year than in the same months of 1966, ac-
cording to testimony of Heller which I credit, when his experimental
layoff of Armstrong (February 14), with Alexander already not at work
because he was hospitalized , was not attended with adverse effect, he de-
cided also to furlough Alexander as well at that time
With regard to General Counsel's further contention that following the
layoff of Armstrong and Alexander, other plant personnel including
Assistant Manager Wormood were observed on occasion to be doing
"mechanical" work of the type formerly done by Armstrong and Alex-
ander, it is noted that (1) the work was not truly "mechanical" in the sense
of requiring meaningful technical expertise , but was frequently work such
as moving, placing , and attaching machines ; (2) some , including Assistant
Manager Wormood and even Vice President Heller himself, had occa-
sionally assisted with such work, involving screwdriver -type adjustments
even while Armstrong and Alexander were there ; (3) no quantitated or
analyzed man-hour production or comparable refined comparative data
regarding actual work tasks performed was submitted in evidence to war-
rant a finding that no reduction of the work of Armstrong and Alexander
occurred after their layoff. With regard to one of these employees (Brown,
a truckdnver with time on his hands, according to Heller) doing such work
subsequent to the February layoff of Armstrong and Alexander, Arm-
strong himself had sworn to the Board in a pretrail affidavit . "My main Job
and Alexander's was out on the floor adjusting machines . . So it is
definitely true, Brown has in fact taken over a very small , almost neghgi-
ble proportion of my work and Alexander 's work." Credited testimony of
General Counsel witness Davis (another mechanic and an active unionist)
corroborates the foregoing. It is , moreover , again to be borne in mind that
even if the work of Armstrong and Alexander had been completely redis-
tributed by their employer to others, this would not be unlawful under the
Act unless done for discriminatory or other reason violative of the
Act-not for work redistribution per se.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to an hour of our least skilled mechanic . It might take a
least skilled mechanic three or four or five times as long
and he may not be able to do it at all." But whether or not
Respondent displayed good judgment-and it would
seem it did- in utilizing Kennedy's part-time expertise
when it became available, in preference to recalling Arm-
strong or Alexander, or both, full time or part time, is
beside the point, in the absence of evidence that the
Table II
failure to exercise the choice conversely under the cir-
cumstances was for discriminatory or other reason un-
lawful under the Act. Such evidentiary showing has not
here been made.
Table II shows Respondent's mechanical staff situa-
tion subsequent to the February layoff of Armstrong and
Alexander. Table III is a chronological recapitulation of
Respondent's mechanical staffing situation since January.
Respondent ' s Mechanic Staff Situation Subsequent to February, 1967,
Layoff of Alexander and Armstrong
Mechanic F.- Title or Degree of Nature of Per- Full
Name Description 'uglification sonnel Action or Comments
& Apx Data Part-
Time
Kennedy Chief or Highly skilled, Resigned
head sewing experienced, and Mar. 1967 Pull Returned part-
machine technically time apx
mechanic qualified early May
mechanic in all 1967; see
tespects Blow
Davis Sawing Well skilled, full
machine experienced,
mechanic and technically
qualified
mechanic in
all or most
respects
Alexander Mechanic Not highly Laid off full Recalled 6
helper or skilled or 2-23-67, on returned full
"apprentice" experienced; return from time 5-5-67;
under Kennedy in many hospitalization, see below
respects not "as of'2-10-67
technically (i.e., Friday,
qualified on last day worked
sewing machines before hospitali-
zation commencing
Sunday, 2-12-67)
Armstrong Mechanic Not highly Laid off Full most junior
helper or skilled or 2-14-67 mechanic at
"apprentice" experienced; time of layoff;
under Kennedy in many respect not yet recalled
not technically or rehired by
qualified on Respondent
sewing machines
Kelley 7 Head Highly skilled Hired last full Replacement
sewing and technically week March or let for Kennedy
machine qualified week Apr. 1967 (who resigned
mechanic mechanic in Mar. 1967)
most or all
respects
Alexander See above See above Recalled and pull
rehired 5-5-67
Kennedy Pert-time See above Returned part- Part
highly skilled , time apx early
experienced, may 1967
and qualified
mechanic
Alexander See above Sea above 2-week Full
disciplinary
suspension,
6-14 to 6-27-67
STORKTOWNE PRODUCTS, INC.
Table III
Respondent ' s Mechanical Staffing Situation Since January 1, 1967
1967 Apx Number Full- Part - Mechanics ' Names and , Comments
Date or of Time
i
Time Qualification Levels
Time Mechanics,
Jan.- 4 4
--
0
__ - ---
Kennedy & Davis ( 2 "experts");
- - - -
mid Feb . Alexander & Armstrong
(2 "apprentices")
Mid-Feb. 2 2 0 Kennedy & Davis Armstrong and
(2 "experts") Alexander lai
off
March 1 1 0 Davis (" expert") Kennedy resin
End March- 2 2 0 Kelly & Davis Kelley replac
beginning ( 2 "experts") Kennedy
April
April- 3 2 1 Kelley , Davis, & Kennedy Kennedy retur
beginning ( 2' "experts") part-time
May
May 8 and 4 3 1 Kelley, Davis, & Kennedy Alexander rec
subsequently (2' "experts"); Alexander full-r.ie
"n e"
Table IV constitutes a more precise breakdown of total "expert"
sewing machine mechanic man-hours (both regular and overtime) worked in
Respondent ' s plant since the beginning of January.
Table IV
Regular Time and Overtime "Expert" Sewing Machine Mechanic
Man-Hours Worked in Respondent 's Plant Since January 1, 1967
d
ned
ed
nca
1967 Number & Names of Total Regular Time Total Overtime
Week Ending "Expert Mechanics " "Expert " Mechanic "Expert" Mechanic Comments
Man-Hours Worked Man-Hours Worked
1-7 2: Kennedy & Davis 76 1/2 0
1-14 96 1/2 16 1/2
1-21 " " " " 89 1/2 9 1/2
1-28 105 25
2-4 94 1/4 14 1/4
2-11 85 5
2-18 87 3/4 7 3/4
2-25 90 1/4 10 1/4
3-4 89 3/4 9 3/4
3-11 83 1/4 3 1/4
3-18 " " 73 1/2 0
3-25 " 83 1/4 3 1/4
4-1 89 9
4-8 56 1/4 18 1/4
4-15 120 1/2 40 1/2
4-22 119 1/4 39 1/4
4-29 110 30
5-6 " " 93 1/4 13 1/4 Alexander
recalled
as full-
time
"assistant"
mechanic
985
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Table IV-Continued
Regular Time and Overtime "Expert" Sewing Machine Mechanic
Man-Hours Worked in Respondent ' s Plant Since January 1, 1967
1967 Number & Names of Total Regular Time Total Overtime
Week Ending "Expert Mechanics " "Expert" Mechanic "Expert" Mechanic Comments
Man-Hours Worked Man-Hours Worked
5-13 " " " " 91 11
5-20 " 87 1/4 7 1/4
5-27 2 1/2 Kelly, 101 3/4 -
Davis, & Kennedy
6-3 " " " 97 1/4
6-10 " " 102 1/2
It will have been observed from the foregoing that the extent of "expert " mechanic
overtime during the period following the February layoffs and the recall of Alexander
in May is unremarkable , as compared to that prior thereto, taking into account the
total "expert " mechanic staff on hand at any given time . These actual mechanic staff
man-hour figures thus do not appear to warrant the inference that the work of Arm-
strong and Alexander was after their layoff merely redistributed to the remaining
mechanics to perform on overtime.
Close review of the opposing contentions within the
framework of the record as a whole leaves me unper-
suaded and accordingly unable to find that Respondent's
February layoff of either Armstrong or Alexander was
for discriminatory or other reasons in violation of the
Act.29 This is not to say that the question'is free from
doubt. But within the dimensions, lacunae, facets, and
shadows of the evidence adduced, my mind is simply not
at rest with the proposition that these two men, or either
of them, were laid off for a reason unlawful under the Act.
In determining that a fair preponderance of substantial
credible evidence upon the record as a whole fails to
establish that Respondent's February layoff of Arm-
strong and Alexander, or either of them, was in violation
of the Act, I attach particular weight, within the configu-
ration of the total record, to the following: (1) As to
Armstrong: (a) his union activities were minimal, incom-
parably less than those of others (e.g., Davis) not laid off;
(b) he had been hired by Respondent at the end of the
preceding August notwithstanding his disclosure of mem-
bership in another union, and had been given time off by
Respondent, while employed by Respondent, for picket
duty elsewhere; (c) at the time of his layoff, during the
"slack" season, he was the most junior member of
Respondent 's mechanical staff ; (d) when , subsequent to
his layoff, head mechanic Kennedy left Respondent's em-
ploy, it was essential to replace Kennedy with a com-
parably experienced sewing machine mechanic-a
29 Cf. Kayser-Roth Hosiery Co., Inc., 166 NLRB 372; Lindsey's, 156
NLRB 114; Guyon Machinery Company, 155 NLRB 591. No implica-
tion is intended that I regard the testimony of the two laid-off employees
as totally lacking in credibility . On the contrary , Armstrong in particular
impressed me as an honest , highly truthful witness . To his credit, he was
not tempted to improve his case by embellishing his union activities,
which he could readily have done if so minded ; instead , contrary to his in-
terest here , he candidly indicated that those activities are minimal.
so 1 do not ascribe the significance that General Counsel apparently
does to Kennedy ' s alleged remark to Alexander, when the latter visited
the plant in February after his hospitalization to indicate he was about
ready to return to work , that Kennedy would be glad when Alexander
qualification which Armstrong could not fulfill, but Ken-
nedy's replacement, Kelly, could; (e) when, sub-
sequently, at the beginning of May, Kennedy's services
became available to Respondent on a part-time basis, the
rehiring of Kennedy (rather than the recall of Armstrong) .
resulted in a more efficient sewing machine repair opera-
tion from Respondent's point of view, so that it cannot be
said as matter of law that Respondent was instead obliged
to rehire Armstrong and thereby return to its former less
efficient method of operation; (f) Respondent's recall to
its employ of Alexander in May (and his retention since
then), nothwithstanding his openly avowed, continued
leadership in the attempted unionization of Respondent's
plant; and (g) Respondent's evidentiary showing as to the
economic and operational efficiency bases for and in
justification of this layoff and nonrecall. (2) As to A lexan-
der: (a) the fact that he, after Armstrong, was the second
most junior member of Respondent's mechanical staff
when laid off, with 38 other employees, during Respond-
ent's normal "slack" season; (b) the absence of persua-
sive showing of substantial mechanical work on hand
requiring the retention of four full-time mechanics at the
time of the February seasonal layoffs; (c), (d), (e), and
(f)-see (d), (e), (f), and (g), supra, under Armstrong,
equally applicable to Alexander.30
There remains for consideration Respondent's June
14-27 suspension of Alexander from its paid employ-
ment, which it is also contended was because of his union
returned because Kennedy - not clear from the witness ' (i.e., Alexander's)
testimony as punctuated in the hearing transcript (p. 113) whether in Ken-
nedy's view or in Alexander's view-was being "work[ed] ... to death."
Assuming this remark was made by Kennedy (as distinguished from being
Alexander' s interpretation of the situation), it could have been no more
than the usual type of pleasantry not uncommonly indulged in on occa-
sions of this sort; but furthermore, even if said by Kennedy and not as a
pleasantry but as literally true, it still would not establish a discriminatory
layoff in violation of the Act (e.g., Respondent might for economy reasons
have been working Kennedy harder than he felt like or should have been
required to work).
STORKTOWNE PRODUCTS, INC. 987
activity, in violation of the Act. According to Respond-
ent, this 2 -week suspension , which is undisputed, oc-
curred for disciplinary reasons.
Respondent's Vice President Heller claims he
suspended Alexander for 2 weeks on June 13 after Plant
Superintendent DeFero on that day brought to his office
a forelady (Green) with an operator (Sanders), who com-
plained "that she was all upset that Tommy Alexander
had been pestering her" and distracting her from her
work, interfering not only with her production and in-
come based thereon but also with the work of other em-
ployees dependent upon her (Sanders') output. Sanders
also complained that Alexander "was swearing at her,"
all to such an extent that she told Heller , "I can 't stand it,
and I 'd rather quit than to have him come around and
disturb me." Heller 's testimony , which impressed me as
independently credible, was corroborated by Forelady
Green and operator Sanders. Green testified that Sanders
reported to her on June 13 that Alexander was continuing
to "pester" her to join the Union and that she would quit
rather than "be involved .... with the union because she
just didn 't want to have anything to do with it." Accord-
ing to Green , Sanders had also previously reported Alex-
ander to her for "several times .... in the plant at her
machine mostly" . . . "talking to her about joining the
union .... when Tommy [Alexander] first came back to
work" (i.e., early May). Mrs. Sanders, an operator in
Respondent 's employ for over 4 years , testified that while
she was sewing at her machine shortly after 9 a.m. on
June 13, Alexander approached and:
he [Alexander ] asked me if he could ask a question
and I [Sanders ] said , "Yes." He said , "Will you tell
me the truth?" And I told him , "Yes." He said,
"Have you signed this union card ?" I told him,
"No." He said , "Will you sign it?" And I said, "No."
He said , "What would you do if they decided they
wanted to replace you?" I said , "Well I was looking
for a job when I found this one." He said , "Well they
tried to pull that deal on old Tom but it backfired."
And then he told me that I was a God Damn fool. .
.. Those were the words he used.... [Then] he
turned and waled off.
Mrs. Sanders thereupon reported the incident to
Forelady Green and also , with apparent reluctance, at
Green's urging, to Heller. Mrs. Sanders further testified
that , in addition to the foregoing incident on June 13,
Alexander had also "talked to me [Sanders] three or four
times before about signing a union card . At my
machine during working hours. . . . At all times ....
when he would come to work on my machine.... he had
been pestering me about this union for 3 weeks .... he
was working on my machine once and something came up
and I was raising a little cain [i.e., about machine
breakdown ] and he said , `Well if you wouldn't be such a
crazy thing and sign the union card this wouldn 't be going
on.' ... [A]bout a week before that.... he wanted to
know then if I would join the union ; would I sign a card.
... he was working on my machine then ." Mrs. Sanders
insisted that Alexander was the only person who asked
her in the plant at work to sign a union card.
Heller (corroborated by Plant Manager DeFero) also
testified to previous complaints of discourtesy or im-
proper , possibly impudent , behavior31 on the part of
Alexander , resulting in warning to the latter , including
one, about 2 weeks before the mid-June disciplinary
suspension , for a "very stubborn obstructionist attitude"
toward some work he had been required to do.32
According to Heller, with this background underlying the
incident of February 1.3, when he suspended Alexander
for 2 weeks on that day, he informed Alexander of the re-
port against him, that he was "not being penalized for any
reasons but that he's no special character either" and
could not solicit on company worktime for which he was
being paid and could not interfere with the work of other
employees ; and that although he was being suspended for
2 weeks, he would be dismissed in case of further infrac-
tions.
Testifying in his own behalf on this matter , Alexander
admitted that before suspending him on June 13 "he
[Heller] had several complaints that I [Alexander] had
been talking union talk in the plant and threatening peo-
ple's jobs over the union33 and I told him I hadn 't. He said
that he had several that said I did and he believed them in-
stead of me.... and the next time he caught me he would
fire me." Conceding at the hearing that he had in fact
been talking to employees at their machines during their
and his worktime in the plant about the Union on more
than one occasion , it was Alexander 's contention that it
was invariably the other employees (women) who in-
itiated these conversations by asking him questions about
union matters. He denied making any threats concerning
not joining the Union or otherwise , and claimed the con-
versations were usually of 3- to 4 -minute duration while
he was repairing employees ' machines , but also some-
times while "going down the aisle...."
Conceding that he had had "trouble" with Forelady
Chapel and occasionally (as well as other mechanics)
"trouble with an operator once or twice at least every
month or so ," Alexander denied arguing with or threaten-
ing operators over the Union . During cross -examination,
Alexander conceded that when he was suspended on this
occasion Heller told him it was because he had received
"several complaints " that Alexander "had been talking
union in the plant on his [i.e., Heller's ] time," and further
conceding that this was true and that he had indeed "been
discussing union on company time," Alexander asserted
he did not know it was against company rules to do this.
He also asserted that when this occurred during his repair
of a machine , it did not interfere with his work although
it might slow him down in his work "maybe some , not too
much"-perhaps 5 percent . He 'insisted that on those
working-hour occasions when he spoke to employees
about the Union while he was not repairing a machine, it
would consist of his monosyllabic or brief responses to
questions of other employees who would initiate the con-
versation with him as he walked through the plant.
Although according to Alexander there is no posted rule
against talking , during cross-examination he
acknowledged awareness of the necessity for limits to
talk, citing "an hour and kill [ing] production on the
whole line." Also on cross-examination, he insisted that
so far as he could "recollect" with regard to operators
whose machines he was repairing , it was invariably the
operators who started to talk about the Union , and never
31 Characterized by DeFero as "rough" talk or backtalk to Sewing loitering and smoking in the washroom, contrary to company rule, during
Machine Line Supervisor Chapel. Alexander conceded he had had "trou- worktime which should have been devoted to tasks awaiting his attention
ble" with Forelady Chapel. 33 Alexander later testified that Heller did not identify any person al-
32 Heller also spoke of "frequently" observing Alexander indolently legedly so threatened; nor could Alexander recall asking Heller to do so.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
he "that I remember." He denied use of bad language to
any operator or calling Mrs. Sanders a "God damn fool"
in relation to a union card. At first he appeared careful on
rebuttal not to deny that he had a discussion with Mrs.
Sanders on the day in question (June 13) about signing a
union card, indicating that "I could have. She stopped me
a lot of times and talked to me." Shortly thereafter (also
on rebuttal), however, he denied ever soliciting her or
even talking to her about the Union at any time while she
was working.34
Called as Respondent' s witness , Alexander's former
fellow employee and current fellow unionist Armstrong
(laid off about the same time as Alexander in February)
testified that he knew of a "problem" Alexander had in
December 1966 "before any union campaign started,"
"concerning his attitude toward a supervisor or other em-
ployees"; and that Plant Manager DeFero had told Arm-
strong that Alexander "had got into some trouble with
some of the foreladies and that he was aiming to lay him
off this coming Friday," but that subsequently Kennedy
told him (Armstrong) that he had induced DeFero to
retain Alexander.
Also testifying as Respondent's witness, Alexander's
current fellow employee and fellow union leader Davis
swore that toward the end of May or early in June several
operators (whom Davis identified by name), complaining
to him about Alexander:
told me that Tommy [Alexander] was bothering
them at their machine while they were working, he
was bothering them.... they said to me that Tommy
was just bothering them and wouldn't let them work.
... They said just talking to them. You know, just
come to their machine and talk to them while they
was working.... one girl said that he would come to
the machine almost every day and say that he was
there; that the union brought him back to work; and
he didn't have to do nothing; and that the company
couldn't lay him off .... They said while they was
working.
Further according to Davis, another operator (whom
Davis also named) told him in late May or early June that
"if Tommy didn't quit talking to her like he did she was
going to quit."
Based upon the record as a whole, including compara-
tive demeanor observations, I fully credit the foregoing
overwhelmingly mutually corroborative testimony of
Respondent's witnesses Heller, DeFero, Green, Sanders,
Armstrong, and Davis (the latter two, fellow employees
and co-unionists of Alexander) against that of Alexander
with regard to the events of and preceding June 13, 1967,
resulting in Respondent's 2-week suspension of Alex-
ander on that day for disciplinary reasons. It will ac-
cordingly have been observed that, contrary to Alex-
ander's testimony, not only did he start the conversation
on June 13 with Mrs. Sanders as related by her, but that
that conversation, which was far from monosyllabic or
momentary, comprised union solicitation on company
premises on his and Mrs. Sanders' paid worktime, and not
even while repairing Mrs. Sanders' machine nor while
merely walking past her. It is, of course, obvious that paid
Company worktime is for work, not for union solicita-
tion.35
Upon the entire record, it is found that the substantial
credible evidence fails to establish that Respondent's 2-
week job suspension of Alexander from on or about June
14 to 27, 1967, was for lawful union or other organiza-
tional activity protected under the Act, or that it was for
any other reason in violation of the Act.
Findings and conclusions upon the numerous allega-
tions comprising the complaint as amended are
chronologized in Table V.
Table V
Recapitulation and Findings Concerning AlLe ed Violations
Ref. Date or Complaint Allegation Witnesse Exhibits Findings & Disposition
No. Apx.Date Par. No. Substance Resp. etc. Chief Bases
1 Since
about
13(),(e),
& (f) (add-
Maintenance
of unduly
Anderson;
Alexander
a er p. --
Ts., pp.
Found . Rules
unduly broad.
a
violation
8/31/66 ed at hear- broad no- 6- 7
ing) solicitation
rule
2 2/8/67 7(a) Interrogation Davis ; DeFero Found . 8(aXl)
of employees
by Plant
Armstrong ;
Alexander
Credit GC
witnesses;
violation
Supt. DeFero
regarding
in part con-
firmed by
union affairs Resp. wit-
ness DeFero.
34 Alexander testified that on one occasion Mrs. Sanders spoke to him 1009 (C.A. 5), cert. denied 323 U.S. 730. Nor is it an answer that Re-
about the Union off the company premises and that she would come by spondent's rules proscribing solicitation, as here held, were invalid be-
the mechanics ' shop to talk to him about it. He conceded , however, that cause unduly broad, since they may be regarded as pro tanto valid to the
he has spoken to operators other than Mrs. Sanders 'about the Union extent barring solicitation during worktime. The sporadic taking up of
"while they were at work ," when they "would ask me about how the collections for persons leaving Respondent's employ does not under the
union was coming along ." circumstances shown establish such disparity as to justify Alexander's
35 Peyton Packing Company, Inc., 49 NLRB 828, 843, enfd. 142 F.2d repeated and continuous union proselyting on Respondent' s time.
STORKTOWNE PRODUCTS, INC.
Table V -Continued
Recapitulation and Findings Concerning Aliened Violations
Witnesse
Creation by Davis;
Plant Supt. Armstrong;
DeFero of Alexander
impression
of surveil-
lance of
union
affairs
Threat by
Plant Supt.
DeFero of
loss of
employment
in event of
unionization
DeFero
DeFero
989
Findings & Disposition
Chief Bases
Founds 8(a)(1)
Credit GC violation
witnesses;
in part con-
firmed by
Resp, wit-
ness DeFero.
Found.
Credit GC
witnesses.
Threat by Stip. -- Not found.
V. Pres. Tr„ pp. Speech in
Heller of 10 & 11- question
plant 12; GC neither
closure in Exh. 2 constitutes
event of nor con-
unionization tains such
threat. See
Act, Sec.
8(c).
11(a) Warning by
of policy of
encourage-
ment of
employee
work-con-
Inauguration I Shouse
ditions
suggestions
directly to
management
Pres. Wex-
ler of loss of
jobs in event
of unioniza-
tion and
failure to pay
union dues
Statement
by Pres.
Wexler of
futility of
selecting
Union as
collective
bargaining
representa-
tive
Stip. --
Tr. p.
14; GC
Exh. 5
Found.
Statement
I constituted
an improp-
er threat
for reasons
explicated
in text of
this deci-
sion.
8(a)(1)
violation
Stip. -- Not No
Tr.' p. found violation
14; GC establish-
Exh. 5 ed; dis-
missed
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Table V -Continued
nnuapitulativu anu Finings I..oucemin eue ea violanons
Ref. Date or Complaint Allegation Witnesse Exhibits Findings & Disposition
No. Apx.Date Par. No . Substance Resp. etc. Chief Bases
9 2/14/67 14 , 14(a), Layoff and Shouse ; Heller Not
15, & 15 failure to Davis; found
(a) (14(a) recall em- Armstrong;
& 15 (a) ployee Arm- Alexander
added at strong, for
hearing) engaging in
union or
other activity
protected
under Act
10 2/17/67 12(a) Statement by Stip. -- Found. 8(a)(1)
V. Pres. Tr, pp . Portion of violation
Heller of 14- 16; speech
futility of GC Exh . fairly im-
selecting 6 plied fut-
Union as iliry of
collective- union
bargaining represent-
representative ation, for
reasons
explicated
in test of
this decision.
11 2/17/67 12(b) Warning by Stip. -- Not No
V. Pres. Tr. pp. found violation
Heller of 14-16; establish-
strike or Exh. ed; dis-
plant 6 missed
closure in
event of
unioniza-
tion
12 2/23/67 9(a) (9 Promise by Stip. -- Not No
redesign- V. Pres . Tr. , pp. found. violation
ated 9(a) Heller of 12-13; Decision establish-
at hear- air condi- GC Exh. made and ed; dis-
ing) tioning of 3 implement- missed
plant, to ation com-
discourage menced in
unionism 1966.
13 2/23/67 14, 14(b), Layoff and Shouse ; Heller Not No
15, & 15 failure to Davis ; found. violation
(b) (14(b) recall em- Armstrong; See text establish-
& 15(b) ad- ployee Alex- Alexander of this ed; dis-
ded at hear- ander until decision. missed
ing) 5/8/67, for
engaging in
union or other
activity
protected
Act
STORKTOWNE PRODUCTS, INC.
Table V - Continued
Recapitulation and Findings Concerning Alleged Violations
991
Ref. Date or Complaint Allegation Witnesse Exhibits Findings & Disposition
No. Apx.Date Par. No. Substance Resp. etc. Chief Bases
14 3/28/67 13(a) Promise by Heller tip. -- Found. 8(a)(1)
V. Pres . Tr. , p. Grant and violation
Heller of 15 ; GC timing of
extra paid Exh. 7 benefit
holiday, to during
discourage ; unioniza-
unionism lion cam-
paign estab-
lished pirma
facie viola-
tt-a of Act,
and unsatis-
factorily
accounted
for by Resp.
15 3/28/67 13(b) Promise by Stip. -- Not No
V. Pres. Tr. , p. found. No violation
Heller of 15; GC promise establish-
more future Exh. 7 made. ed; dis-
benefits, to missed
discourage
unionsim
16 4/2A/67 13(c) Grant of paid Shouse Heller Found . 8(a)(1)
(added life insurance Grant and violation
at hear- policies to timing of
ing) employees, benefit
to discourage during
unionsim unioniza-
tion cam-
paign es-
tablished
prim- a facieviolative of
Act, and
unsatisfact-
orily account-
ed for by
Resp.
17 5/1/67 9(b) Installation Heller Not Not
(added of air con- found, establish-
at hear- ditioning in Decision ed; dis-
ing) plant , to made and missed
discourage implemen-
unionism tation com-
menced in
1966.
18 6/14/67 14(c) & Suspension Alexander Sanders; Not No
15(b) of employee Green ; found. See violation
Alexander on Heller; text of establish-
6/14/67 for Arm- this ed; dis-
2 weeks , for strong ; decision, missed
engaging in Davis
union or other
acticity pro-
tected under
Act.
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union (Charging Party) is a labor organization
within the meaning of Section 2(5) of the Act.
3. Assertion of jurisdiction herein is proper.
4. By its conduct set forth in section IV, supra, found
to have constituted unfair labor practices, Respondent
has interfered with, restrained, and coerced employees in
the exercise of rights guaranteed by Section 7 of the Act
and has thereby engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
6. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent's
February 1967 layoff from its employment of James
Armstrong and Tommy Alexander, or either of them, was
for union or other organizational membership or activity
protected under the Act, or was otherwise unlawful under
the Act.
7. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent's
failure to recall Tommy Alexander to its employment,
subsequent to his February 1967 layoff, prior to on or
about May 8, 1967, was for union or other organizational
membership or activity protected under the Act, or was
otherwise unlawful under the Act.
8. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent's
failure to recall James Armstrong to its employment,
since his February 14, 1967, layoff to the date of this
hearing, was for union or other organizational member-
ship or activity protected under the Act, or was otherwise
unlawful under the Act.
9. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent's 2-
week suspension from its employment, without pay, of
Tommy Alexander from June 14-27, 1967, was for union
or other organizational membership or activity protected
under the Act, or was otherwise unlawful under the Act.
10. It has not been established by a fair preponderance
of the substantial credible evidence that Respondent has
engaged in any of the other acts alleged in the complaint
as unfair labor practices and not found in section IV
hereof.
11. It having not been established by a fair preponde-
rance of the substantial credible evidence that Respond-
ent has engaged in any of the unfair labor practices al-
leged in the complaint herein, dated May 1, 1967, as
amended, with regard to the layoffs from its employment
of James Armstrong and Tommy Alexander, or either of
them, or with regard to the other acts alleged in the com-
plaint as unfair labor practices and not found in section
IV hereof, said complaint should in those respects be
dismissed.
THE REMEDY
Having found that Respondent has violated the Act in
the respects described, I shall recommend the customary
cease-and-desist order and the affirmative relief (i.e.,
posting of notice to employees) conventionally ordered in
cases of this nature, involving interference with and
restraint, and coercion of employees in the free exercise
of rights guaranteed by the Act.
Upon the basis of the above findings of fact, conclu-
sions of law, and the entire record in the case, and pur-
suant to Section 10(c) of the National Labor Relations
Act, as amended, I hereby make the following:
RECOMMENDED ORDER
Storktowne Products, Inc., and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining, continuing in effect, or establishing
any rule, requirement, or practice forbidding union or
other lawful organizational solicitation or distribution by
employees in nonwork areas on their own time, or other-
wise in violation of the National Labor Relations Act, as
amended.
(b) Interrogating any employee in violation of the Na-
tional Labor Relations Act, as amended, with regard to
his or any other employee's union or other lawful or-
ganizational membership, protected concerted activities,
desires, or sympathies.
(c) Creating or conveying to any employee the impres-
sion that any union or other lawful organizational pro-
tected concerted activity in which such employee or any
of his fellow employees is engaged or is participating, or
in which he is proposing, contemplating, or considering to
engage or participate, is under surveillance by or on be-
half of Respondent.
(d) Directly or indirectly holding out, promising, or
granting to any employee any benefit or thing of value to
induce him or other employees to refrain or withdraw
from union or other lawful organizational membership, af-
filiation, sympathy, support, assistance, or activity;
without prejudice, however, to any such benefits already
granted or promised.
(e) Directly or indirectly threatening any employee
with loss or diminution of or layoff from job, work, or in-
come, or any other economic harm, loss, detriment, dis-
advantage, reprisal, or retaliation, because of union or
other lawful organizational membership, affiliation, sym-
pathy, support, assistance, or activity, or for exercising,
proposing, or cotemplating to exercise any right guaran-
teed by the National Labor Relations Act, as amended.
(I) Directly or indirectly warning or advising any em-
ployee of the futility or harm of selecting a union as col-
lective-bargaining representative.
(g) Directly or indirectly warning or advising any em-
ployee that he will or may lose his job if he does not pay
union dues.
(h) Interfering in any like or related manner with, or
restraining or coercing, any employee in the exercise of
his right to self-organization, to form, join, or assist any
labor organization; to bargain collectively through
representatives of his own choosing; to engage in con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection; or to refrain from any
or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Forthwith rescind, or amend and modify, its rules
"(9)" and "(10)" regarding activities by its employees,
contained in its employee orientation booklet entitled
STORKTOWNE PRODUCTS, INC. 993
"Your Job, Your Company and Its Rules," so as to
eliminate any proscription or improper limitation or con-
dition upon union or other lawful organizational solicita-
tion or distribution by employees in nonwork areas on
their own time, or otherwise to the extent such or other
rules, requirements, or practices are in violation of the
National Labor Relations Act, as amended.
(b) Post at its factory in Columbia, Tennessee, copies
of the attached notice marked "Appendix."36 Copies of
said notice, on forms provided by the Regional Director
for Region 26, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
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 Respondent 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 receipt of this Decision, what steps have been
taken to comply therewith.37
IT IS FURTHER RECOMMENDED that the complaint be
and the same is hereby dismissed as to all alleged viola-
tions not herein found.
31 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice. In the further
event that the Board's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
31 In the event that this Recommended Order is 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 Re-
spondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Recommended Order of a
Trial Examiner of the National Labor Relations Board
and in order to effectuate the policies of the National
Labor Relations Act, as amended, we hereby notify our
employees that:
WE hereby rescind, cancel, and nullify any rule,
practice, or requirement ( including those numbered
"(9)" and "(10)" in the employee booklet entitled
"Your Job, Your Company and Its Rules") which
restricts or limits any of you from union or other law-
ful organizational solicitation or distribution in non-
work areas on your own time. We will not reinstitute
or reestablish those rules or any similar rule in viola-
tion of the National Labor Relations Act, as
amended.
WE WILL NOT interrogate any of you as to your or
any other employee's union membership, affiliation,
desire, sympathy, or activity, so as to interfere with,
restrain, or coerce you or any other employee in the
exercise of the right to join a union or to exercise any
other right or engage in any activity protected by the
National Labor Relations Act, as amended.
WE WILL NOT directly or indirectly create or con-
vey to any of you the impression that any union ac-
tivity in which you are or any other employee is en-
gaging or participating , or proposing or thinking of
engaging in or participating in, is under our watchful
surveillance or observation.
WE WILL NOT hereafter directly or indirectly offer,
promise, hold out , or dangle before you , or give any
of you , any benefit or thing of value in order to in-
duce you or any other employee to leave or give up
the union or union ideas , or to discontinue or keep
out of union membership , affiliation , sympathy, sup-
port, assistance or activity; or to deal with us on an
individual personal basis rather than collectively as
a group through a union . However, this will not af-
fect any benefit already given or promised to you.
WE WILL NOT directly or indirectly threaten any of
you with any loss or reduction or layoff from job,
work , or income (or any other economic harm, loss,
detriment , disadvantage , reprisal, retaliation, or
revenge), because of union membership affiliation,
sympathy , support , assistance , or activity; or for
otherwise exercising any right guaranteed by the Na-
tional Labor Relations Act, as amended.
WE WILL NOT directly or indirectly threaten, warn,
advise, or state or suggest to you that it will be futile,
useless, harm you, or do you no good, or be a waste
of your money, or time, or effort to join a union or to
attempt to 'deal with us collectively as a group
through a union rather than with us personally as in-
dividual employees.
WE WILL NOT directly or indirectly threaten, warn,
advise, state, or suggest to you that you will or may
lose your job here if you do not pay union dues.
WE WILL NOT in any similar manner interfere with,
restrain , or coerce any of you in the exercise of your
rights guaranteed by the National Labor Relations
Act, as amended , to organize yourselves in groups,
to form labor organizations , to join or assist any labor
organization , to bargain with us collectively as a
group through your labor union or representative, to
engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection;
or to refrain from any or all such activities.
All of you are free to join or not to join Amalgamated
Clothing Workers of America, AFL-CIO, or any other
union , as you see fit , without any interference , restraint,
or coercion from us in any way, shape , or form.
STORKTOWNE PRODUCTS,
INC.
(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.
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, Ten-
nessee 38103, Telephone 534-3161.