Western Cottonoil Co.

National Labor Relations Board - Board Decisions

Aug 29, 1951

95 N.L.R.B. 1433 (N.L.R.B. 1951)

WESTERN COTTONOIL COMPANY 1433
after, prepare and cause to be served upon the parties a supplemental
tally of the ballots.
WESTERN COTTONOIL COMPANY and EL PASO CONSOLIDATED INDUSTRIAL
UNION, LOCAL 896 OF INTERNATIONAL UNION OF MINE, MILL &
SMELTER WORKERS . Cases Nos. 33-CA-113 and 33-RC-212. Au-
gust 09,1951
Decision and Order
On April 16, 1951, Trial Examiner Howard Myers issued his Inter-
mediate 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 be ordered to cease and desist
therefrom and take certain affirmative action, as set forth in the copy
of the Intermediate Report attached hereto. The Trial Examiner
further recommended that the Board sustain the objections to the
election which was held on November 17, 1949, in Case No. 33-RC-212,
and set aside that election. Thereafter, the Respondent filed excep-
tions to the Intermediate Report and a supporting brief.
The Board 1 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in the case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications.
1. We find, as did the Trial Examiner, that the Respondent inter-
fered with, restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7, thereby violating Section 8 (a) (1)
of the Act. However, in making this finding, we rely solely on the
following conduct, more fully described in the Intermediate Report :
a. The speeches made by Vesey, the Respondent's district superin-
tendent, insofar as those speeches 2 (1) contained promises that if the
Union lost the election the employees would be given new recreation
facilities, medical aid for their families, and an immediate wage 'in-
crease, and (2) contained threats that if the Union was successful the
Respondent would discontinue its policy of loaning money to its em-
3 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 [ Members Houston, Reynolds,
and Styles].
2 The statements by supervisory officials of the Respondent which we here find violative
of the Act contain in themselves threats of reprisals or promises of benefit . As such
it is unnecessary to, and we do not, adopt the Trial Examiner 's rationale as to the result
that would be reached if it were to be found that the statements in question did not
contain in their context any threats or promises of benefit.
95 NLRB No. 195.
1434 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
, ployees, and the, employees would, as in the case of a nearby plant
which had been recently unionized, lose their season-end bonus.
b. The threat made by Shaw, the Respondent's mill superintendent,
to employee Tarango, that the Respondent in retaliation to the union
"could come back and make it hard for us."
c. The interrogation of employee Gallardo by Shift Superintendent
Ward in which Ward asked Gallardo how the latter was going to vote
in the election.3
Vesey's statements regarding the wage increases took the form of
outright promises that the wage increases would be granted as soon
as the Union was out of the way, as well as statements that the in-
creases had been held up because of the union activity. In its brief,
the Respondent contends that in his several remarks on the subject of
wage increases Vesey was merely seeking to explain to the employees
that the wage increases'which had been effectuated in other of the Re-
spondent's plants had not been instituted in the plant involved here
because of the pendency of the Union's representation petition. We
find no merit in this contention. True, on one occasion, the day before
the election, the Respondent, in a letter to the employees, stated that
"by law the company could not increase your pay as long as the union
had a petition to represent you." But save for this one instance the
Respondent's numerous statements that the wage increase had been
held up because of the advent of t$e Union and would be granted as
soon as the Union was "out of the picture" were unaccompanied by
any reference to the Respondent's desire to avoid conduct which might
be construed as interference with the election. We are convinced, on.
the record as a whole, that if the Respondent were motivated by a
proper purpose, it failed to make that-purpose clear, and, as the Board
recently observed in a, closely related situation, "employees are not
required to look behind the plain meaning of coercive words to find
an unexpressed reason-for their-utterance." 4
2. We also find, as did the Trial Examiner, that because of the Re-
spondent 's threats of reprisals, promise of benefits, and interrogation
s Ward denied interrogating Gallardo ; the Trial Examiner credited Gallardo's testimony
The- Respondent contends that this credibility finding should be reversed , asserting that
Ward could not have interrogated Gallardo because the former spoke only English, and
the latter spoke only Spanish . However, the record establishes that each: spoke some
of the other 's language , and we are satisfied that the credibility finding of the Trial
Examiner , who alone had an opportunity to observe the demeanor of the witnesses, is not
in conflict with a preponderance of the evidence and should be sustained.
However, the record does not support the Trial Examiner's finding that Gallardo; 'in
reply to Ward 's question , stated that he would vote against the Union. Under well
established precedent , however, the Respondent 's interrogation of Gallardo violated the Act
regardless of what Gallardo' s reply may have been . See Standard-Coosa-Thatcher Co.,
85 NLRB 1358.
4 Telechron, Inc., 93 NLRB 474. Member Reynolds . is of the opinion that the instant
case is distinguishable from . the Telechron case, in which he dissented , because unlike
the employer in that case, the employer here made numerous promises of a wage increase
conditioned upon defeat of the Union without any qualifying explanation.
WESTERN COTTONOIL COMPANY 1435
which preceded the election of November 17, 1949, the results of that
,election did not express the employees' free choice and we shall there-
fore set it aside.
Order
Upon the entire record in the case and pursuant to Section 10 (c)
.of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Western Cotton-
oil Company, El Paso, Texas, its officers, agents, successors, and assigns
shall:
1. Cease and desist from :
(a) Interrogating their employees concerning their union activities
or sympathies, promising benefits if the Union is rejected, threatening
reprisal if the Union is selected, or in any manner interfering with,
restraining, or coercing its employees in the exercise of their right to
self-organization, to form labor organizations, to join or assist a
union, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain from
any or all Such activities, except to the extent that such right may be
affected by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3) of
the Act.
2:_ Take the following affirmative action which the Board finds will
effectuate the policies of the Act:
(a) Post at its mill at El Paso, Texas, copies of the notice attached
hereto marked "Appendix." 5 Copies of said notice, to be furnished
by the Regional Director for the Sixteenth Region, shall, after duly
being,_signed by the. Respondent,. be, posted by the Respondent imme-
diately upon receipt thereof and be maintained by it for sixty, (60)
consecutive days thereafter in conspicuous places, including all places
where such notices to employees are customarily posted. Reasonable
steps shall be taken by the Respondent to insure that said notices are
not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region, Fort
Worth, Texas, in writing within ten (10) days from the date of this
Order, what steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated Section 8 (a) (1) of the Act by conduct
other than that found to be violative in this Decision and Order, be,
and it hereby is, dismissed.
5In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be inserted before the words "A Decision and Order," the words
"A Decree of the United States Court of Appeals Enforcing."
1436 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD -
IT is FuRTxER ORDERED that the election held on November 17, 1949,
among the employees of the Western Cottonoil Company, El Paso,
Texas, in Case No. 33-RC-212 be, and it hereby is, set aside s
Appendix
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate our employees concerning their union
activities or sympathies, promise benefits if the union is rejected,
threaten reprisals if a union . is selected or in any other manner
interfere with, restrain, or coerce our employees in the exercise
of the right to self-organization, to form labor organizations, to
join or assist EL PASO CONSOLIDATED INDUSTRIAL UNION, LOCAL
896 OF INTERNATIONAL UNION OF MINE, MILL & SMELTER WORK-
ERS, or any other labor organization, to bargain collectively
through representatives. of their own choosing, and to engage in
concerted activities for the. purpose of collective bargaining or
other mutual aid or protection, or to refrain from any or all of
such activities except. to the extent that such right may be affected
by an agreement requiring membership. in a labor organization
as a condition of employment, as authorized in Section 8 (a) (3)
of the amended Act.
All our employees are free to become, remain, or refrain , from be-
coming members of the above-named union or any other labor organi-
zation except to the extent that - this right may be affected by: an
agreement in conformity with Section 8 (a) (3) of the amended Act.
WESTERN COTTONOIL COMPANY,
Employer.
By ---------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT of THE CASE
On August 10, 1950,' Western Cottonoil Company,' herein called the Respond-
ent, and El Paso Consolidated Industrial Union , Local 896 of International
' When the Regional Director advises the Board that the circumstances permit a free
choice of representatives , we shall direct that a new election be held among the
Respondent 's employees.
I Unless otherwise noted , all dates refer to 1950.
9 Upon the motion of the General Counsel, to which no objection was made, the pleadings
and all other formal papers were amended to show the correct name of the Respondent
as it appears above.
WESTERN COTTONOIL COMPANY 1437
Union of Mine, Mill & Smelter Workers, herein called the Union, entered into
a consent-election agreement the purpose of which was to determine whether
the employees of the Respondent, in a certain specified appropriate unit, desired
to be represented by the Union for the purposes of collective bargaining. On
November 17, an election was conducted among the said employees under the
auspices of the Regional Director for the Sixteenth Region (Fort Worth, Texas)..
At the said election a majority of votes was cast against the Union!
On November 22, the Union filed objections to the conduct of the election and
on.'November 27, it filed amended objections. On January 3, 1951, the said Re-
gional Director issued his report on-,objections to election, in which he recom-
mended that the National Labor Relations Board, herein called the Board, order
and direct that a hearing be held upon the issues presented by the objections.
No exceptions were filed to said report. On January IT, 1951, the Board issued
its Order Directing Hearing on Objections.
Upon a charge duly filed by the Union on December 5, the General Counsel
of the Board, herein called the General Counsel, issued -a complaint, dated Feb-
ruary 26, 1951, alleging that the Respondent had engaged in, and was engaging.
in, unfair labor practices affecting commerce within. the meaning of Section 9
,(a) (1) and Section 2 (6) and (7) of the National Labor Relations Act, as
amended, 61 Stat. 136, herein called the Act. Copies of the complaint and the
amended charge,"together with notice of hearing thereon, were duly served upon
the Respondent and the Union.
On February 26, 1951, the said- Regional Director issued an Order, dated. that
day, directing that the complaint and the representation cases, being Cases Nos.
33-CA-113 and 33-RG212, be consolidated. Copies of the said Order were duly
served upon the parties herein.
With respect to the unfair labor practices, the complaint in substance alleged
that the Respondent, through certain named agents and officials thereof, by means
of certain stated acts and conduct, interfered with, restrained, and coerced its
employee`s in the exercise of the rights guaranteed by Section 7.
On March 5, 1951, the Respondent duly filed an answer admitting certain al-
legations of the complaint but denying the commission of the alleged unfair
labor practices.
Pursuant to notice, a hearing was held on March 20 and 21, 1951, at El Paso,
Texas, before the undersigned, Howard Myers, the duly designated Trial Exam-
iner. The General Counsel and the Respondent were represented by counsel
and the Union by an official thereof. Full opportunity to be heard, to examine
and cross-examine witnesses, and to introduce evidence pertinent to the issues
was afforded all parties. At the conclusion of the taking of evidence, the General
Counsel's motion to conform the complaint to the proof was granted without
objection. Counsel for the Respondent then moved to conform. the answer to
the proof. The motion was granted without objection. Respondent 's counsel
then moved to dismiss the complaint for lack of proof. Decision thereon was
;reserved. The motion is hereby denied. The parties waived oral argument. They
were then advised that they might file briefs and proposed findings of fact and
conclusions of law with the undersigned on or before March 31, 19514 A brief-
has been received from the Respondent which has been carefully considered by
the undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
8 Of the 62 valid votes cast, 29 . were for the Union, 33 were against, and 2 were
challenged.
4 At the request of the Respondent 's counsel , the time was extended to April 9, 1951.
1438 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
Western Cottonoil Company, a Delaware corporation, has its principal offices
in Abilene, Texas. The Respondent owns and operates mills and refineries in
the States of Texas sand New Mexico. At its El Paso, Texas, mill, the employees
of which are the only ones involved in this proceeding, the Respondent is• en-
gaged, and during all times material herein has been engaged, in the refining,
sale, and distribution of cottonseed oil and related products. The Respondent,
in the course and conduct of its business, annually purchases raw" materials
valued in excess of $1,000,000, approximately 50. percent of which is received at
its Texas mills from points located outside the State of Texas, and these mills
annually sell finished products valued in excess of $1,000,000, more than 50 per-
cent of which is sold and delivered to points outside the State of Texas.
The Respondent concedes, and the undersigned finds, that the Respondent is
engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
El Paso Consolidated Industrial Union, Local 896 of International Union of
Mine, Mill & Smelter 'Porkers is a labor organization admitting to' member-
ship employees of the Respondent. _
III. THE UNFAIR LABOR PRACTICES
Interference, restraint, and coercion; the disputed election
A. The pertinent facts
As related above, the' Board conducted a secret-ballot election among the Re=
spondent's employees in a certain appropriate unit on November 17. In, its
campaign to defeat the Union at the polls, the Respondent held three separate
meetings of its employees on November 11, and two separate meetings on Novem-
ber 16. At each of these meetings, Frank C. Vesey, Respondent's district super-
intendent. was the Respondent's spokesman.' •
Regarding Vesey's remarks at the first meeting, employee Rafael Tarango
-testified that Vesey, speaking sometimes in English and sometimes in Spanish,
'opened the meeting by stating that during all the time he had been with the
Respondent' he was able to "get along" very favorably with the employees be-
cause he liked and enjoyed working with the Spanish-speaking persons in the
'Respondent's employ ; ° that he was surprised the employees had sought ,the
Union's aid to do-their bargaining, especially since they well knew- that they
'could settle their grievances satisfactorily by taking the matters up -with him
'directly; that as soon as the mill's new addition, which was then under con-
struction, was ready for occupancy, the Respondent would permit the employees
'to use the third floor of the present building as a recreation hall so the employees
would have a-place to gather and "have a good time after working hours" ; that
he also said, "Friends, I want you to tell me [in] your own words how you feel
about the Company, why you [want] to bring somebody over here to represent
Each of the three shifts. was. addressed. separately. on November 11. - On November . 16,_.-
one shift was addressed separately and the employees of the other two shifts were
addressed jointly. '
6 Vesey, prior to becoming district superintendent in 1948, had been superintendent
of the El Paso mill, except for the period be was abroad on business for the Respondent
or for the previous owner of the mill, for approximately 18 years.
7 Most of the employees at the El Paso mill are Mexicans and speak only Spanish.
WESTERN COTTONOIL COMPANY 1439
you.' Now is the time for you fellows to express yourselves the way you want" ;
that after he had repeatedly stated, "Now is the time for you to say whatever
you want to say," an employee,'' asked, "Well; how about our pay? We are the
lowest" ; ° that in response to that inquiry he said "it was hard to give [the;
employees] a raise just like that," adding, to quote Tarango, "he was going to do
all . .. in his power to" get the employees a raise ; that he then said it was the
employees'."fault [that they had not been given a raise before], because [they]
were trying. to bring in a union" ; that he-then said the employees of the El Paso
mill had not been given raises af'the time the employees of the other plants of
the Respondent had received their increases because of their actions in at-
tempting to bring the Union into the mill; that Guerrero then asked "If the
Union don't come" into the.plant would the Respondent grant the employees
the 5-cent raise retroactive to the time of the granting of the increase to the
employees in other plants ; that he replied, "Well, that's something I [cannot]
answer right now, but I am going to call Abilene," and try to get it for you fel-
lows"; and that he conditioned the retroactivity of the wage increase to July
31, upon the employees' repudiating the Union.
Regarding Vesey's remarks at a meeting held on November 16, Tarango testified
that Vesey advised the employees to vote against the Union at the forthcoming
election; that Vesey called the employees' attention to the fact that the Union
had been designated the collective bargaining representative of the employees
at a nearby plant and the employees thereof lost certain privileges and advan-
tages, including the loss of their usual season-end bonus, after the Union became
their representative; and that Vesey intimated that the Respondent's employees
might find themselves in the same plight if the Union won the election.
Employee Juan Villegas testified that he attended a meeting of the third shift
employees which was held in Vesey's office on the day before the Board election ;
that thereat Vesey informed the employees that if the Union lost the election,
the Respondent would grant the employees of the El Paso mill the same increase
it had given to the employees of its other plant and make the increase retroactive
to July 31; that Vesey said that the Respondent, in the future, would, to quote
Villegas, "offer us medical and doctors for ourselves and the family in case we
were ill, and that we [would] have a hall upstairs where we [could] hold our
parties . "; and that Vesey told the assembled employees that they did not
need a union in order to obtain wage increases.
Villegas further testified that in the afternoon of November 16, he attended
a meeting of the second and third shift employees at which Vesey stated, to again,
quote, Villegas, "it was best [for] all of us to'vote `No' [at the election], that
we could have [another] election after a year," and during the interval the
employees could affiliate themselves with a more desirable union.
Employee.Porfirio Villalobas testified that he attended a meeting on, Novem-
ber 11, which was addressed by Vesey ; that Vesey stated, after informing the
employees that he saw no need for a union in the mill, that if the Union was
successful in the forthcoming election, the Respondent would cease its practice
of loaning money to the employees ; that Vesey also stated that if the Union
lost the election the 5 cents per hour wage increase would be put into effect
"automatically" and immediately, adding that he could not promise to make it
retroactive to July 31, but he would ascertain from the Respondent's head office
if he could' do so; and that Vesey further stated that as soon as the new addition
s Salvador Guerrero.
O Evidently Guerrero was referring to the 5 cents per hour wage increases given on
July 31 to the employees at each of the Respondent's eight or nine other plants.
10 The Respondent 's head office.
1440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the mill was completed the employees. would be provided with a recreation
room.
Regarding Vesey's remarks at a meeting held on November 16," Guerrero testi-
fled, in part, as follows :
When I got there, he [Vesey] was telling all the employees that he
actually didn't want the Union and that there was no need for us to pay
somebody to [represent] us, or to. talk for us, when we could all go to him
and ask him for a raise, or if we had any problems, that we could go to
him and that he would gladly help us, ... he said that we already had our
raise coming, but since this business of the Union was in, that he cancelled
that, that it was cancelled, that that raise was cancelled, and that they
were going to wait until they find out if the Union was going to come in or
it was going to stay out, something like that.
Then I turned right around and ... I told Mr. Vesey, "I am neutral,
but I am not against the Company and I am not against the Union, but
will you guarantee that they will give us our money since the day of the
other [mills] got their raise", and he turned around and said he would
do all in his power to get that money which was coming to us since the
day the raise in the other mills.
he said he was going to make a call [to the Respondent's head office] the
next day in the morning and find out if they would grant that money which
was coming to us.
Employee Santiago C. Gallardo testified that at a meeting of employees held
on November 16," Vesey stated that the employees could "better" themselves
without a union ; that the Respondent would supply medical aid whenever the
employees or their families needed it ; and that as soon as "the Union was out
of the way" the El Paso employees would receive the raise which had been given
to the employees of the other mills.
While not specifically denying the statements attributed to him by Tarango,
Villegas, Villalobas, Gallardo, and Guerrero, Vesey testified that he made no
statement in any of his speeches or to any employee which properly could be
construed as a promise of benefit if the Union was defeated at the polls on
November 17, nor did he make any threat of loss of any benefit or privilege if
the Union won the election. He admitted, however, that in his speeches he
advised the employees to vote against the Union ; that he told the employees that
the wage increase was withheld from the El Paso mill employees because of the
pending representation petition of the Union ; that the purpose of holding the
three separate meetings on November 11 was to ascertain "why the boys felt
like they needed a union, and to really draw them out, feel them out . . ." Vesey.
further testified that in response to Guerrero's inquiry about not paying the
El Paso employees the wage increase which had been given to the employees of
the other mills he told the employees, in substance, the following :
I would do all in my power to get them this raise and that I felt sure
that once the entanglements the union entanglements, were free, that they
would get their raise, and I did not know until after the election was held
whether or not the men were actually eligible to a retroactive pay. It was
33 Erroneously referred to in the stenographic transcript of the hearing as being held on
November 15.
.12 Erroneously referred, to in the stenographic transcript of the hearing as being held
on November 15.
WESTERN COTTONOIL COMPANY 1441
not in my power to even promise that . I did promise that I would do all
in my power to help them.
Tarango, Villegas, Villalobas, Gallardo, and Guerrero were honest and forthright
witnesses and the undersigned was favorably impressed with the straightforward
-manner. in which they testified. This fact, coupled with Vesey's admissions,
as epitomized above, leads the undersigned to the inescapable conclusion, and
the undersigned accordingly finds, that Vesey made the statements attributed
to him by Tarango, Villegas, Villalobas, and Guerrero. This finding is buttressed
by the admission of James M. Shaw, the superintendent of the El Paso mill, that
he attended two Vesey meetings with "reference to the promises concerning wage
increases."
Several days. prior to the election, Shaw called Tarango into his office and,
according to the latter's credible testimony," Shaw told him, among other things,
that the employees were mistaken if they believed they were obtaining "protec-
tion" by affiliating with the Union, for the Respondent, in retaliation, "could
come back and make it hard for" the employees.
On Novexpber 16, the day preceding the Board election, the Respondent ad-
mittedly distributed to the employees a letter reading, in part, as follows :
Your pay would be more now had this union left you alone, by law, the
company could not increase your pay as long as the union had a petition
to represent you. Your hours are better and you have overtime pay` that
this company is not required to grant. The union did not get short hours'
and overtime pay for their members at a recent strike at another oil mill:
Use your good judgment and vote "no" against the union. This company
will always be fair and grant you every advantage possible.
Gallardo testified that on the day before the Board election, Shift Superintend-
ent Jessie M. Ward handed him a ballot similar to those used at the election
and then asked him how he was going to vote and that he replied that he in-
tended to vote against the Union. Ward denied that he interrogated Gallardo,
or any other employee, as to how he intended to vote. He also denied that he
handed a sample ballot to Gallardo or to any other employee. The undersigned
was favorably impressed with the manner in which Gallardo testified and with
his demeanor while on the witness stand. On the other hand, Ward did not so
impress the undersigned. Under the circumstances, the undersigned credits
Gallardo's testimony and finds that Ward did interrogate Gallardo as to how
he intended to vote.
B. Concluding findings
In his ' brief Respondent 's counsel contended , in effect , that even if it be found
that Vesey , Shaw, and Ward made the statements attributed to each of them
by the General Counsel 's witnesses , their statements were "well within the
latitude of free speech " as defined by Section 8 (c) of the Act because the state-
ments contained no threats of reprisal or promise of benefit . With this con-
tention the undersigned is unable to concur.
Insofar as presently relevant , that section provides that "The expressing of
any views , arguments, or opinion . . shall not . . . be evidence of an unfair
labor practice .. '. if such expression contains no threat of reprisal or force.or
19 Regarding this meeting, Shaw testified that "the essentials of the talk were to find
out from Tarango what he and.'the other boys wanted frofn the Company that we weren't
doing, and the major part .of the. discussion dealt with that ; and as to the details, that
would be hard to recall."
1442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promise of benefit." The legislative history of the Act in silhouette against the
contemporary background clearly indicates that the objective of Section 8 (c)
was to preclude an inference of unfair conduct from an,unconnected statement
of attitude alone. It was not designed to preclude, as here, consideration of
connected, immediately relevant utterances.
-Viewed in this light, by the statements of Vesey and Ward, as 'summarized
above, the Respondent engaged in acts violative of Section 8 (a) (1) of the
Act. By Shaw's veiled threat that if the Union organized the employees, the
Respondent would make things- "hard" for the employees, the Respondent vio-. `
lated Section 8 (a) (1) of the Act.
Assuming, arguendo, that Vesey's,- Shaw's, and Ward's statements did not
in themselves contain any threat of reprisal or force or promise of benefit, that.
fact' standing alone, would not bring the statements within the purview of
Section 8 (c) for, as the legislative history of the Act shows, the Congress did
not intend that the threats and promises which remove expressions of views
and opinions from the protection of that section must necessarily appear in the
context of such statement.. It was not, moreover, the intention of the Congress
to preclude a consideration of threats or promises of benefit where, as here, they -
are implicitly and inextricably a part of the conduct in question"
Upon the basis of the above findings, and upon the entire record in the case,
the undersigned finds that the Respondent interfered with the conduct of the
election of November 17, 1950, thereby depriving the employees of the freedom
of choice of representatives contemplated by the Act. Accordingly, the under-
signed recommends that the said election be set aside and vacated.
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 such of them as has been found to be unfair labor
practices, tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce. _
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices in
violation of Section 8 (a) (1) of the Act, the undersigned will recommend that
it cease and desist therefrom and take certain affirmative action designed to
effectuate the policies of the Act.
The scope of the Respondent's illegal conduct discloses a purpose to defeat
self-organization among its employees. It sought to coerce them in the exercise
of the rights guaranteed them in the Act. Such conduct, which is specifically
violative of Section 8 (a) (1) of the Act, reflects a determination generally to
interfere with, restrain, and coerce its employees in the exercise of the right
to self-organization, to form, join, or assist labor organizations, to bargain col-
lectively through representatives of their own choosing, and to engage in con-,
certed activities for the purpose of collective bargaining or other mutual -aid
or protection, and presents- a ready and effective.means of destroying self-
organization among its employees. Because of the Respondent's unlawful con-
duct and since there appears to be an underlying attitude of opposition on the
part of the Respondent to the purposes of the Act to protect the rights of em-
" See N. L. R. B. v. Minnesota Mining & Manufacturing Co., 1797. 2d .323 (C. C. 8.).;
Telechron, Inc., 93 NLRB 474.
HALLAM & BOGGS TRUCK AND IMPLEMENT CO. 1443
ployees generally," the undersigned is convinced that if the Respondent is not
restrained from committing such conduct, the danger of their commission in
the future is to be anticipated from the Respondent's conduct in the past, and
the policies of the Act will be defeated. In order, therefore, to make effective.
the interdependent guarantees of Section 7 of the Act, to prevent a recurrence
of unfair labor practices, and thereby minimize industrial strife which- burdens.
and obstructs commerce, and 'thus effectuate the policies 'of the Act, the under-
signed will recommend that theRespondentcease and desist from in any.. manner.
infringing upon the rights guai'aiiteed in Section 7 of the Act.
Upon the basis of the foregoing, findings of fact, and upon the entire record-
in the case, the undersigned makes the following :
ConcLusIONs OF LAW
1. El Paso Consolidated Industrial Union, Local 896 of International Union:
of Mine, Mill & .Smelter workers is.a labor organization within the meaning of
Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise.
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged,
in, and is engaging in unfair labor practices within the meaning of Section.
8 (a) (1) of the Act. -
3. The aforesaid unfair labor practices are unfair labor practices within the,
meaning of Section 2 (6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
/" See May Department Stores Company, etc. v. N. L. R. B., 326 U. S. 376.
HALLAM & BOGGS TRUCK AND IMPLEMENT COMPANY and INTERNA-
TIONAL UNION OF OPERATING ENGINEERS , LOCAL No. 9, AFL, PETI-
TIONER. Case No. 30-CA-175. August 29,1951
Decision and Order
On June 13, 1951, Trial Examiner. Maurice M. Miller 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 copy of the,
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report and a supporting brief.
The Board 1 has considered the stipulation entered into by the par-.
ties, the Intermediate, Report, the Respondent's exceptions and brief,,
and the entire record in the case,' and hereby adopts the findings, con
2 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its.
powers in connection with this proceeding to a three-member panel [Members Houston,
Reynolds, and-'Styles].
2 The parties waived a hearing, and stipulated that the record should consist of the
formal papers in this proceeding, the dealer sales-and-service 'agreements between the.
Respondent and International Harvester Company, and the record in Hallam & Boyg&
Truck and Implement Company, 92 NLRB 1339.
95 NLRB No. 131.
961974-52-vol. 95-92