Texas Boot Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jun 27, 1963

143 N.L.R.B. 264 (N.L.R.B. 1963)

264 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. Respondent has not engaged in the unfair labor practices alleged in paragraphs
7(b) to (e), and 9 of the complaint.
4. Respondent has engaged in no unfair labor practices which would warrant the
issuance of a remedial order.
RECOMMENDED ORDER
The complaint herein should be, and hereby is, dismissed.
Texas Boot Manufacturing Company, Inc. and Boot and Shoe
Workers' Union , AFL-CIO. Case No. 26-CA-1345. June 27,
1963
DECISION AND ORDER
On February 26, 1963 Trial Examiner James T. Barker issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action as set forth in the attached Intermedi-
ate Report. He also found that the Respondent had not engaged in
certain other unfair labor practices and recommended dismissal of
the complaint as to them. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Rodgers and Leedom].
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 entire
record in this case, including the Intermediate Report, the exceptions,
and briefs, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, with the following additions and
modifications.
The Trial Examiner found that on March 28 and 29, 1962, Presi-
dent Vise read a prepared speech to employees containing the follow-
ing remarks :
This is the reason that I am against the Union and that Texas
Boot Company is against the Union. It is simply this. I don't
believe that we can do business with the costs the Union will
demand. The only way the Union can enforce its demands on
Texas Boot Company is by calling you out on a strike to enforce
its unreasonable demands. This is the history of Unions. So
I want you to know that I am not going to close down this
143 NLRB No. 17.
TEXAS BOOT MANUFACTURING COMPANY, INC. 265
factory one day, because of a strike called by the Union. We will
continue to operate and hire new workers. This simply means
that when I employ new people to cross the picket line to
work here at Texas Boot that strikers have lost their jobs perma-
nently. I don't think it necessary for me to tell you how many
unemployed people there are in Tennessee, Wilson County and
Lebanon, who would like to have a job at our plant. We have
several hundred applications on file now.
The Trial Examiner concluded that these remarks constituted a warn-
ing to employees that the designation of the Union as bargaining-
representative would lead inevitably to strikes and to loss of jobs and
hence constituted threats of economic loss violative of Section 8 (a) (1)
of the Act. We do not agree.
In our view, the foregoing remarks when considered in context
did not exceed the protection afforded by the Act. Thus, the Respond-
ent did no more than tell employees that if the Union made "unreason-
able demands," it would be necessary for the Union to strike to
enforce these demands, in which case the Respondent could exercise
its lawful right permanently to replace the strikers and then the-
strikers would have lost their jobs. We do not believe that this
statement, properly understood, contains a threat of reprisal against
employees if they joined the Union.' Since the Respondent's state-
ment did not exceed the bounds of free speech, in disagreement with
the Trial Examiner, we shall dismiss this allegation of the complaint.
As we adopt the Trial Examiner's recommendation that the other
allegations of the complaint be dismissed, we shall dismiss the com-
plaint in its entirety.
[The Board dismissed the complaint.]
2 The Trial Examiner, in finding that by the above speech the Respondent violated-
Section 8 ( a) (1), relied on Texas Industries, Inc., et al., 139 NLRB 365. In that case, a
Board panel ( Member Leedom dissenting , Member Rodgers not participating) found that
the respondent violated Section 8(a)(1) by the following statement to employees:
There is only one way a union representative can enforce his demands upon the
Company This is by calling a strike. When you strike , you will lose your wages
and possibly your job. The Company Is free to hire some one to take your place
while you are striking and when the strike is over there may not be a job for you.
Chairman McCulloch , who joined in the decision in Texas Industries, considers that
case distinguishable from the instant one for the following reasons: There , in a context of
other unfair labor practices , the Respondent indicated that union representation was
bound to lead to less continuous employment and lower pay, a matter within its con-
trol . There, too , the Respondent , by indicating that it would require the union to strike
to enforce its demands , regardless of their nature, implied that it would not bargain in
good faith with the union-also a matter within its control-and that a strike and
resultant loss of jobs through replacement were, therefore , inevitable consequences of
union representation . Thus, the Respondent in that case, in effect , threatened employees
with economic injury if they selected the union. In contrast , the Respondent in the in-
stant case made it clear that only if the union made "unreasonable" demands would
there be a strike and consequent loss of jobs.
266 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge filed on July 31 , 1962 , by the Boot and Shoe Workers' Union,
AFL-CIO, herein called the Union, the Regional Director for the Twenty-sixth
Region on September 20, 1962 , issued a complaint against Texas Boot Manufactur-
ing Company , Inc., herein referred to as Respondent , alleging violations of Section
8(a)(1) of the National Labor Relations Act, herein called the Act. Thereafter,
on October 18, 1962 , said Regional Director issued an amended complaint defining
with greater specificity the conduct alleged as violative of Section 8(a)(1). In its
duly filed answer and amended answer, Respondent admitted certain allegations of
the complaint but denied the commission of any unfair labor practices.
Pursuant to notice a hearing was held before Trial Examiner James T. Barker at
Lebanon , Tennessee , on December 6 and 7, 1962. All parties were represented at
the hearing and were afforded full opportunity to be heard , to introduce relevant
evidence, to present oral argument, and to file briefs with me. The parties presented
oral argument and thereafter on February 4, 1963, Respondent filed a brief with me.
Upon consideration of the entire record and the brief of the Respondent, and
upon my observation of the witnesses , I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Respondent is and has been at all times material herein a Tennessee corporation
with an office and place of business at Lebanon, Tennessee, where it is engaged in
the manufacture and sale of cowboy boots. During the 12 months immediately pre-
ceding the issuance of the complaint herein, Respondent in the course and conduct
of its business operations manufactured, sold, and shipped from its Lebanon,
Tennessee, plant finished products valued in excess of $50,000 to points outside the
State of Tennessee.
Upon these admitted facts, I find that Respondent is engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION
Boot and Shoe Workers ' Union , AFL-CIO, the Union herein , is admitted by
Respondent to be a labor organization within the meaning of Section 2(5) of the
Act, and I so find.
In. THE UNFAIR LABOR PRACTICES
The General Counsel contends that at various specified times in March 1962,
Respondent by and through its supervisor and agent, Walter Byars, kept under
surveillance the union representatives seeking to conduct an organizational campaign
among Respondent's Lebanon, Tennessee, employees, and during the same period
engaged in surveillance of the union activities of Respondent's employees when
meeting with said union representatives. The General Counsel further contends that
on or about April 12, 1962, Respondent, by and through its supervisor and agent,
Elwood Steakley, interrogated its employees at its Lebanon, Tennessee, plant con-
cerning their union membership, activities, and desires. Additionally, the General
Counsel contends that President Harry Vise on or about March 28 and 29, 1962, in
speeches to Respondent's employees and in related discussions following said
speeches, threatened said employees with the closing of the plant if they became or
remained members of the Union or gave assistance or support to it, and threatened
them with permanent loss of their jobs if they engaged in a strike.
The Respondent denies the surveillance and interrogation allegations of the com-
plaint, and, while it admits that President Vise, on or about the dates specified, spoke
to groups of assembled employees, Respondent denies that his speech or accompany-
ing remarks contained any threats or statements violative of the Act.
A. Surveillance
1. Introduction
On or about March 13, the Union commenced an organizational campaign at
Respondent's Lebanon plant. International Representative James Fowlkes was in
charge of the campaign and was assisted by International Representative Richard
Coleman. Fowlkes and Coleman were in Lebanon in connection with the campaign
TEXAS BOOT MANUFACTURING COMPANY, INC. 267
during the entire week that commenced Monday, March 19 , and shared a room at a
motel approximately 1 mile from downtown Lebanon, on Highway 231 South.
Fowlkes remained in Lebanon during the week that followed, but Coleman did not.'
Fowlkes and Coleman testified, in substance, that at approximately 8:30 a.m.
on March 22 they observed from their motel room window an automobile containing
four or five men drive from the motel restaurant and pull up behind their respective
parked automobiles situated in front of their motel room. It appeared to Fowlkes
and Coleman that Elwood Steakley, superintendent and vice president of Respond-
ent, was writing on a piece of paper while the other occupants of the automobile
were observing the rear of Coleman's automobile? Steakley denied this incident
and further testified that while he had been to the motel on previous occasions to
attend business conferences and had eaten at the motel restaurant, he had never
been at the motel earlier than 11 a.m. Steakley impressed me by his demeanor and
his candid answers to questions as a truthful, credible witness. I credit his denial
and reject the testimony of Fowlkes and Coleman.
2. March 22 occurrences
a. The Trusty incident
During the late afternoon of March 22, soon after 5 p.m., Fowlkes and Coleman
made a call at the home of employee Lester Trusty who lived on a principal thor-
oughfare in Lebanon. They drove to Trusty's home in an automobile driven by
Coleman. While en route to Trusty's home, they observed a 1958 two-tone Ford
automobile, with two occupants, following. Upon reaching Trusty's home, Coleman
stopped in Trusty's driveway and the Ford automobile proceeded on past at approxi-
mately the same speed. Trusty, who had been driving in his own automobile
immediately behind the two-tone Ford thereupon arrived at his home. One of the
union representatives asked Trusty "who [was] in [the] car behind me?" Trusty
answered, "Mr. Byars, my foreman, Walter Byars, my foreman." Byars conceded
that he may have been proceeding on the highway on March 22 as alleged but
denies engaging in surveillance of any kind.
I credit Trusty, both on the basis of demeanor and his essential disinterest in the
outcome of the proceeding, and in view of his testimony, partially corroborating
that of Fowlkes and Coleman, find that on March 22 soon after the completion of
the workday Supervisor Byars was driving his automobile along a principal public
highway behind the auto in which Fowlkes and Coleman were riding to call on
Trusty. I also credit Trusty's testimony that in proceeding past his home Byars
continued on at "about" the same rate of speed as he had been maintaining. Like-
wise, I credit Trusty's version of his response to the question posed by the union
representatives regarding the identity of the occupants of the passing automobile,
and reject that of Fowlkes and Coleman.
Fowlkes and Coleman testified that after Byars' automobile had passed Trusty's
home they left Trusty's driveway and proceeded in their automobile to follow in
the direction of the Ford driven by Byars. As they proceeded south on the high-
way, they assert they observed and passed the Ford automobile being driven north
on the same highway. Fowlkes and Coleman assert they then returned to Trusty's
home and talked with him for a short time. After leaving and after having traveled
approximately a mile from Trusty's home toward town, the union representatives
contend they observed the same automobile on the highway proceeding in the direc-
tion of Trusty's home. They identified the occupants as Byars and Sidney Hammock.3
b. The housing project incident
Fowlkes and Coleman testified further that at approximately 7 or 7:30 p.m.,
they drove to the housing project apartment of one of Respondent's former em-
ployees. Finding him not at home but expected shortly, Fowlkes and Coleman
waited in their automobile in front of the apartment building. While waiting they
observed a 1955 "bluish-green" hardtop Oldsmobile "circling and driving around and
around the block." Fowlkes recorded the 1961 license number as 16-U-567. Upon
this observation, Fowlkes and Coleman left the housing project.
1 The undisputed and credited testimony of Fowlkes and Coleman
This incident is not alleged in the complain as a violation but was introduced, as I
conceive it, as background in support of alleged incidents of surveillance
Sidney Hammock at times pertinent was a rank -and-file employee of Respondent.
268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
c. The intersection incident
With Coleman driving, the union representatives assert they drove from the
housing project and soon stopped at a traffic light. Whereupon Fowlkes alighted
from the automobile and spoke to Sidney Hammock, the driver of the 1955 "bluish-
.green" Oldsmobile which had stopped directly behind Coleman's automobile. He
inquired if Hammock were following him and Hammock denied that he was.
Fowlkes threatened Hammock with bodily harm and Hammock suggested that they
resolve the matter at the police station. Fowlkes returned to his automobile and
Hammock drove off in a different direction toward town and the police station.
Fowlkes testified Hammock's car like the one that had circled the block at the
housing project bore the license plate number 16-U-567.4
d. Housing project revisited
According to the further testimony of Coleman and Fowlkes, from the stoplight
they drove around the block and returned to the apartment of the former employee
whom they had earlier sought to see. They waited in front of the apartment for
approximately 5 minutes, whereupon the same 1955 Oldsmobile driven by Sidney
Hammock pulled up directly behind the automobile in which the union representa-
tives were waiting. The witnesses assert that Hammock was accompanied by Byars.
After waiting 20 to 25 minutes and not desiring to be observed by Byars and
Hammock going into the home of the former employee, Fowlkes and Coleman
testified they drove away.
e. The Rittenberry incident
According to Fowlkes and Coleman they next proceeded to the home of em-
ployee Jollie Rittenberry and parked in her driveway. They then observed the same
1955 Oldsmobile stop down the street. Thereupon Fowlkes and Coleman pro-
ceeded back through downtown Lebanon to their motel and were followed by
Byars and Hammock.
f. The motel incident
Fowlkes and Coleman testified that they saw the 1955 Oldsmobile that had fol-
lowed them proceed on past the motel. They further testified that from a vantage
point in front of the motel they observed Byars and Hammock drive back past the
motel in the direction of downtown Lebanon 5 and a few minutes later return and
park near a telephone booth in front of the motel.
3. March 26 occurrences
Fowlkes testified that between 7 and 8 p.m. on March 26, he drove from his motel
to the home of employee Jollie Rittenberry to obtain some authorization cards. He
was followed from his motel by the same 1955 Oldsmobile that had followed
Coleman and him on March 22. After conversing with Rittenberry for 30 to 45
minutes, Fowlkes departed and observed the same Oldsmobile parked "down the
street." This automobile followed Fowlkes as he drove from the Rittenberry home.
4. March 27 occurrences
Fowlkes further testified that at approximately 7:30 or 8 p.m. on March 27, he
returned to the home of Jollie Rittenberry to obtain some authorization cards. As
he left her home, he again saw the same Oldsmobile automobile parked approxi-
mately the same distance from the Rittenberry home as it had been parked on
March 26, but in a different location, and "pretty near" a street light. Fowlkes
testified that as he departed, he drove near the parked automobile and observed
4 In view of my credibility resolution below relating to the testimony of Fowlkes and
Coleman and the dispute concerning the automobile license tags issued to Hammock, I
do not find as an affirmative fact that Hammock' s car bore the license tags in question.,
Moreover, in those instances where Fowlkes' version of this incident is at odds with that
of Hammock, I credit Hammock Hammock credibly explained his presence at the inter-
section , testifying that he had been to a service station and obtained a pack of cigarettes
and had proceeded through the housing project going home when he stopped at the inter-
section light. Hammock testified that he had never seen Fowlkes before and had not
known him previous to the intersection occurrence.
5 Fowlkes estimated the distance from his observation point to the highway as 50 to 75
feet.
TEXAS BOOT MANUFACTURING COMPANY, INC. 269
Byars and Hammock in the car. He drove to the home of another employee but
was followed by Byars and Hammock in the Oldsmobile. Fowlkes drove by the
home of several employees but did not stop. According to Fowlkes, Byars and
Hammock continued to follow him. Fowlkes returned to his motel and Byars and
Hammock drove to the motel and parked near the telephone booth in front of the
motel and remained there.
Byars testified that on March 27 he was not in Lebanon but in McMinnville,
Tennessee, attending his brother who had suffered a stroke.
5. March 29 occurrences
According to Fowlkes' further testimony, at approximately 6.30 p.m. he left
his motel and drove to the home of Holland, a former employee of Respondent.
He was followed by Byars and Hammock in a 1958 two-tone Ford which was driven
by Byars. After leaving the Holland home, Fowlkes drove out toward the town
of Watertown, on the Watertown highway, and was followed by Byars and Hammock
for a distance of from 3 to 5 miles.
Byars and Hammock deny engaging in the surveillance activities specifically at-
tributed to them by Fowlkes and Coleman, or any similar activity.
Conclusion as to Surveillance
Although the testimony of Fowlkes and Coleman is mutually corroborating as to
the alleged incidents which they testify they jointly experienced, it is otherwise sup-
ported by the testimony of other witnesses only with respect to some aspects of the
Trusty incident which Trusty himself confirms, and elements of the intersection in-
cident which Hammock corroborates. The accuracy of the testimony of Fowlkes
and Coleman concerning disputed occurrences is placed in doubt in several specific
instances Their version of their colloquy with Trusty regarding the identity of
Byars occurring at Trusty's home on March 22 is at odds with Trusty's version
which I have credited. The thrust of their version is to impart to Trusty a trepida-
tion arising from the circumstances apparently not felt by Trusty himself, and
suggests a tendency on their part to color their testimony to lend support to the
allegation of surveillance. Fowlkes impressed me as having a marked tendency to
be expansive and to tailor his testimony to meet the exigencies of the moment, first
with respect to his shifting testimony and partial retraction concerning his participa-
tion in a union organizational meeting with a Julius Durham, and secondly, by his
adamant insistence that at the time of the intersection incident on March 22 the
window on Hammock's automobile was rolled down because it was "summertime,"
or, alternately, because it was "warm." But a further fundamental doubt is created
in my mind by the testimony of both Fowlkes and Coleman claiming recognition
of Byars or Hammock at nighttime and under circumstances rendering reliable
identification highly improbable. Illustrative of this is their claimed ability to iden-
tify Byars and Hammock at night from the distance of 50 to 75 feet as they drove
past the motel on an unlighted highway; Fowlkes' identification of the same individ-
uals at night by driving past their parked automobile while it was situated "pretty
near" a street light; their identification of Byars and Hammock at night as the
occupants of an automobile parked bumper to bumper in back of theirs in the ap-
parent absence of an artificial light or other aiding factors.6
In view of the foregoing, I am convinced that Fowlkes and Coleman displayed
a marked tendency to color and expand their testimony in an effort to add substance
to the allegations of the complaint. This propensity taints and renders suspect their
testimony on disputed matters. For this reason and upon the basis of my observa-
tion of both Fowlkes and Coleman as they testified, I am unable to credit their
testimony concerning matters disputed and accordingly I reject it.
Moreover, while it is of course recognized that in the absence of credible evidence
adduced by the General Counsel in support of the complaint the Respondent is
under no burden of persuasion, it is to be observed that I found Hammock to be a
believable witness whose explanation of the intersection incident both as to his
presence and the verbal exchange that transpired was plausible and convincing, and
whose denial of any surveillance activity is credited. While Byars' testimony was
OR is to be noted that Coleman stated he was able to make this identification merely
by looking through the rear view mirror.
7 Because I am impelled to this conclusion, any credibility resolution would not be altered
by a showing favorable to the General Counsel that the 1961 license plates 16-11-567 had
been issued to Hammock and not to a William Sidney Hammond , as the official records
of the Wilson County, Tennessee, county clerk reveals.
270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
not as convincing , he impressed me as a truthful witness. As between Fowlkes
and Coleman on the one hand and Byars on the other, I credit Byars.
In view of the foregoing credibility resolutions I conclude and find that the Gen-
eral Counsel failed to adduce substantial evidence in support of the complaint 's surveil-
lance allegations. The only credible, corroborated evidence of record in support of
the allegation is that relating to Byars' March 22 passage along the public highway
leading past the home of employee Trusty. Byars' mere presence on the occasion,
albeit tandem to the automobile driven by the two union organizers, Fowlkes and
Coleman, may well have been fortuitous. In any event, in the circumstances of
this case, the evidence adduced falls short of the substantiality essential to support
a finding favorable to the General Counsel.i Accordingly, I shall recommend that
the complaint be dismissed insofar as it alleges surveillance by and on behalf of
the Respondent.
B. The speech of President Harry Vise
On March 28 and 29, 1962, during working hours, President Harry Vise spoke
to several groups of employees ranging from 10 to 12 in number which he assembled
at separate times in a hallway leading from the employee cafeteria to the main
plant building . Three or four rows of wooden chairs were provided for the em-
ployees' use. On each occasion President Vise read verbatim a speech that had been
prepared in advance and which he placed in front of him on a lectern or stand. At
the completion of the speech if questions were raised from the floor by employees,
President Vise responded with answers and discussion. In groups in which no em-
ployee questions were forthcoming Vise made no comments beyond those contained
in his prepared speech.9 The speech ii as read by Vise contained the following
paragraphs :
A company to exist-to pay wages to it's [sic] employees-to buy it's [sic]
raw materials-to borrow money from the banks-must operate at a profit.
Our big competitor, Acme Boot Company, who is four times larger than we
are, is non-union. The Union has tried several times to organize Acme and
each time the Union was beaten by a very large margin. I hope that you
realize that unless we can meet Acme's low prices we cannot get orders with
the end results that the factory cannot operate.
This is the reason that I am against the Union and that Texas Boot Com-
pany is against the Union It is simply this. I don't believe that we can do
business with the costs the Union will demand. The only way the Union
can enforce it's [sic] demands on Texas Boot Company is by calling you out
on a strike to enforce it's [sic] unreasonable demands. This is the history
of Unions. So I want you to know that I am not going to close down this
factory one day, because of a strike called by the Union. We will continue
to operate and hire new workers. This simply means that when I employ new
people to cross the picket line to work here at Texas Boot that strikers have
lost their jobs permanently. I don't think it necessary for me to tell you how
many unemployed people there are in Tennessee, Wilson County and Lebanon,
who would like to have a job at our plant. We have several hundred ap-
plications on file now.
Witnesses called by the General Counsel also testified that either during the speech
or during the question and answer period that followed, President Vise warned the
employees that in the event the Union was successful in organizing the plant he
would move from Lebanon. Witnesses for the Respondent were unable to recall
Vise having made such a threat. President Vise denies having done so." The
8 See Keco Industries, Inc, 118 NLRB 317, 328-329 ; American Thread Company, 97
NLRB 810, 815
9 The credited testimony of President Vise
10 General Counsel's Exhibit No. 2
Il In the course of the hearing two letters were marked for identification as Respond-
ent's Exhibits Nos 1 and 2 , respectively, purporting to bear on this point and were the
subject of some limited interrogation by Respondent They were included in the file of
exhibits received in evidence and are in the possession of the Trial Examiner It appears
from the record that Respondent intended to offer both documents in evidence but through
inadvertence failed to do so Had these documents been offered they would have been
rejected by the Trial Examiner on grounds of relevancy In the circumstances, on my
own motion, I shall designate the documents which were marked "Respondent's Exhibits
Nos. 1 and 2" as "Trial Examiner 's Exhibits Nos 1 and 2 " I shall formally reject them
and place them in the rejected exhibit file where they will be available for scrutiny by
reviewing authority.
TEXAS BOOT MANUFACTURING COMPANY, INC. 271
employee witnesses for both the General Counsel and the Respondent were impres-
sive principally for their lack of recollection concerning what actually was said by
Vise either during the speech or during the ensuing question and answer periods
and I do not credit or rely on their testimony. I credit President Vise's denial,
however, and find that he made no such threat in haec verba during the speech,
nor did he so threaten during the question and answer periods that followed his
speech.
Nor in my opinion are such threats reasonably inferable from the language of
the first-quoted paragraph, above, read in conjunction with the first three sentences
of the second-quoted paragraph, above. Rather this portion of the speech read
separately or in the context of the entire speech constituted privileged expressions of
opinion forecasting the reasonably foreseeable economic consequences of
unionization.
With respect to the second-quoted paragraph, above, the principal contention of
the General Counsel is that President Vise unlawfully threatened employees with
permanent loss of their jobs in the event they should strike in support of the
Union's demands, in that he did not distinguish between the replacement rights
of economic strikers and those of unfair labor practice strikers. The Respondent
contends that the failure to draw this distinction, under the precedent of Roy E.
Hanson, Jr., Mfg., 137 NLRB 251, does not remove the statement from the protec-
tion of Section 8(c) of the Act. While the Hanson case is not without some persua-
sive force, I make no determination of the applicability of its rationale to the instant
case, for I am of the opinion that the Board's recent decision in Texas Industries,
Inc., et al., 139 NLRB 365,12 is controlling herein. In Texas Industries the Board
found the following paragraphs of a letter contained threats of economic loss viola-
tive of the Act:
There is only one way a union representative can enforce his demands upon
the Company. This is by calling a strike. When you strike, you will lose
your wages and possibly your job. The Company is free to hire someone to
take your place while you are striking and when the strike is over there may
not be a job for you.
You know that under union methods we would not have been able to operate
with continuous employment for you during the past year. Good paychecks
depend upon continuous full time employment.
Considering the similarity of the language of the disputed paragraph herein to that
found proscribed by the Board in Texas Industries, I conclude and find that Re-
spondent by the language of the paragraph relied upon by the General Counsel,
indicated to its employees that the designation of the Union as their collective-
bargaining representative would lead inevitably to strikes and loss of jobs, and by
these threats of economic loss, should the Union be selected as the collective-
bargaining representative of the employees, interfered with, restrained, and coerced
employees in the exercise of the rights guaranteed by Section 7 of the Act, in viola-
tion of Section 8 (a)( I) of the Act.
C. The Steakley inquiry
Respondent has had at times pertinent an employee committee which processes
employee grievances. Vice President Elwood Steakley is the management repre-
sentative on the committee to whom grievances are presented. The committee meets
once each month in the plant cafeteria. Five or ten minutes before the commence-
ment of the April or May meeting,13 while Steakley and a few of the employee
committee members were waiting the arrival of the other committee members,
Steakley asked (casually, according to employee Birdie Ramsey) if "anybody had
heard anything from the Union." Birdie Ramsey answered that she "never did
hear too much about it myself." Steakley "just kind of laughed and said, 'I believe
they left town.' " 14
13 Chairman McCulloch and Member Brown constituting the majority with Member
Leedom dissenting in pertinent part.
18 Employee Birdie Ramsey , a witness for the General Counsel, recalled the incident as
occurring in April or May, whereas employee Willie Johnson, likewise called by the
General Counsel , placed the incident as having occurred in April
14 The credited testimony of Birdie Ramsey The testimony of Willie Johnson is credited
as tending to corroborate the occurrence of the incident , although her recollection of they
substance of the remarks is not relied upon as her recollection in this respect was ex-
tremely vague
272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the foregoing the General Counsel contends that Steakley's
inquiry coming at the end of a union organizational campaign and considered to-
gether with Respondent's surveillance activities and President Vise's speech was
"one last attempt to find out if the union was still organizing among its employees"
and was violative of Section 8(a)(1) of the Act. I do not agree. The inquiry
was innocuous , casual, and passing and not reasonably susceptible of being inter-
preted as interrogation into the union activities of the employees present or of their
fellow employees. I find that Steakley's inquiry did not violate the Act.
In addition, Steakley credibly testified that at the beginning of one of the com-
mittee meetings (his best recollection was that it occurred at the April meeting),
the "union was mentioned" by "some of the employees on the committee" who
said that the Union was endeavoring to organize the Respondent's employees.
Steakley asked them what their complaints were that "made them want a union."
I do not find this mere inquiry, devoid of threats or promises of benefit, to be
violative of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent, set forth in section III, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow thereof.
V. THE REMEDY
Having found that Respondent has engaged in unfair labor practices violative of
Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. Boot and Shoe Workers' Union, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
3. By threatening its employees with economic loss if they designated a collective-
bargaining representative, the Respondent has violated Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
5. Respondent has not engaged in any alleged unfair labor practices not spe-
cifically found herein.
[Recommended Order omitted from publication.]
Wear Ever Shower Curtain Corp . and Local 424, Teamsters,
Warehousemen, Helpers & Production Workers
Local 98, International Ladies Garment Workers Union, AFL-
CIO and Local 424, Teamsters, Warehousemen , Helpers &
Production Workers. Cases Nos. 2-CA-8969 and 2-CB-3564.
June 27, 1963
DECISION AND ORDER
On April 2, 1963, Trial Examiner Ramey Donovan issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent Company had engaged in and was engaging in certain
unfair labor practices and recommending that it cease and desist
143 NLRB No. 34.