Bancroft Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Apr 6, 1971

189 N.L.R.B. 619 (N.L.R.B. 1971)

BANCROFT MFG. CO.
Bancroft Manufacturing Company, Inc., Croft Alumi-
num Company, Inc., Croft Ladders, Inc., Croft
Metal Products , Inc., and Lemco Metal Products,
Inc. and Southern Council of Lumber and Plywood
Workers, United Bortherhood of Carpenters &
Joiners of America, AFL-CIO. Case 15-CA-3807
April 6, 1971
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
KENNEDY
On October 22, 1970, Trial Examiner Marion C.
Ladwig issued his Decision in the above-entitled case,
finding that Respondents had engaged in and were
engaging in certain unfair labor practices within the
meaning of the National Labor Relations Act, as
amended, and recommending that they cease and
desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision.
Thereafter, the Respondents filed exceptions to the
Trial Examiner's Decision and a supporting brief, and
the General Counsel filed a brief in support of the
Trial Examiner's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
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 the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders that
the Respondents, Bancroft Manufacturing Company,
Inc., Croft Aluminum Company, Inc., Croft Ladders,
Inc., Croft Metal Products, Inc., and Lemco Metal
Products, Inc., McComb, Mississippi, their officers,
agents, successors, and assigns, shall take the action
set forth in the Trial Examiner's recommended Order,
as herein modified:
In footnote 3 of the Trial examiner's Decision,
substitute "20" for "10" days.
1 Respondents ' request for oral argument is hereby dented, as, in our
opinion , the record , including the briefs , adequately presents the issues and
positions of the parties
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
619
MARION C. LADWIG, Trial Examiner: This case was tried
at McComb, Mississippi, on August 12-13, 1970,' pursuant
to a charge filed on May 8 (amended June 22) by Southern
Council of Lumber and Plywood Workers, United
Brotherhood of Carpenters & Joiners of America,
AFL-CIO, herein called the Carpenters, and pursuant to a
complaint issued on July 1 (and amended at the hearing).
The Respondents are Bancroft Manufacturing Company,
Inc., Croft Aluminum Company, Inc., Croft Ladders, Inc.,
Croft Metal Products, Inc., and Lemco Metal Products,
Inc., herein collectively called the Company.
The primary issues are whether the Company, in
defeating a union organizing drive, (a) threatened employ-
ees with plant closure and other reprisals, and interrogated
them about the signing of authorization cards, in antiunion
speeches, and (b) unlawfully distributed procompany
badges and circulated and posted antiunion petitions, in
violation of Section 8(a)(1) of the National Labor Relations
Act, as amended.
Upon the entire record, including my observation of the
demeanor of the witnesses , and after due consideration of
the briefs filed by the General Counsel and the Company, I
make the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE COMPANY AND THE
CHARGING PARTY
The Company, comprised of the five above-named
affiliated corporations , is an integrated business enterprise,
engaged in the production of aluminum extrusions , ingots,
ladders , screens , windows, doors , and accessories at its
plants in McComb and Osyka, Mississippi, where each of
the affiliated corporations annually receives goods and
materials valued in excess of $50,000 directly from outside
the State, and ships products valued in excess of $50,000 to
points outside the State. The Company admits, and I find,
that it and each of the affiliated corporations is an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act, and that the Carpenters is a labor
organization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction
In 1949, Company President Joseph Bancroft closed his
Jamestown, New York, plant, where the employees were
represented by the Steelworkers Union, and opened a
nonunion plant in McComb, Pike County, Mississippi.
Since that time, the Company has thrived, expanding from
a single plant with about 75 employees to three plants (and
a fourth under construction), employing between 850 and
1 All dates, unless otherwise Indicated, are from November 1969
through August 1970.
189 NLRB No. 90
620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
900 employees in Pike County. The Company provides a
large part of the industrial jobs in the county-President
Bancroft testifying that "everybody in this county either
works for me or has a relative working for me or a neighbor
working for me."
In November and December 1969, when the Steelworkers
were engaged in an effort to organize the Company's
employees, the organizational drive was successfully
defeated by antiunion speeches personally delivered by
President Bancroft, by the distribution of printed "I Am
For the Company" badges, and by the circulation and
posting of antiunion petitions. The Company contends that
Bancroft's speeches contained no threats of reprisal, and
were protected by Section 8(c) of the Act. It denies any
knowledge of who furnished the hundreds of "I Am For the
Company" badges, and denies that the Company partici-
pated in the distribution of the badges and the circulation
and posting of the petitions.
The charges herein were not filed by the Steelworkers,
but by the Carpenters who apparently arrived on the scene
following the defeat of the Steelworkers' organizational
drive. In the charges, the Carpenters alleged that the
Company had discriminatorily discharged five union
supporters in January and February. Although the General
Counsel did not include any Section 8(a)(3) allegations in
the complaint, four of the discharged employees testified as
General Counsel's witnesses concerning what had tran-
spired at Plant 1, where they had worked. (Three of them
had been employed by Croft Metal Products, Inc., in the
press department, and the other, by Croft Aluminum
Company, Inc., in the smelting department. Different
witnesses referred to Plant 1 as the Croft Metal plant and
the Croft Aluminum plant.)
B. Alleged Threats and Interrogation
1. First speech
On November 13-15, President Bancroft read his first
speech about 9 times, to different groups of employees in
Plants 1 , 2, and 3. The written speech included the
following:
I have called you together to talk about a very serious
matter. Please pay careful attention to what I am about
to say because it will have an important effect on you,
your family, homes and community-and on your job
and future relations with this company.
As most of you are aware, the union is trying to get
into our plants.... Here is the company's position-
We don't want a union in our plants.... We are
opposed to the union. We consider it a matter of serious
concern to you and your families, your homes and
farms, and to the community. It is our sincere belief that
if the union were to ever get into our plants it would not
work to your benefit but to your serious harm. As most of
you are aware, unions broke into plants in Pike County in
the past. All plants that were organized years ago are now
closed, locked, and out of existence. When I came to
McComb there were no plants excepting a garment
plant with about a hundred employees. Since that time,
without unions coming here stirring up trouble, more
than two thousand jobs in the Pike County area have
been created . This record speaks for itself. DO YOU
WANT THE SAME THING TO HAPPEN HERE
THAT HAPPENED WITH PLANTS IN THE PIKE
COUNTY AREA YEARS AGO? Since I came here we
have created steady employment for approximately
seven hundred people. Most of you are family men and
women with homes. We don't want to see what we have
worked so hard together to build destroyed by union
strikes or other trouble. Therefore, it is our positive
intention to oppose the union by every proper means to
prevent it coming into our plants.
That is the company's position, and there should be
no doubt in anybody's mind as to where we stand. We
know our rights and we intend to stand up for those
rights. We sincerely hope that we never have a strike or
a picket line or any union trouble, but we are not afraid
of the union and if the union wants a fight we are prepared
for it and will not back away from it.
Ask the union to "guarantee in writing" that you will
get the things they have been promising. I know the
answer-they will not give you any such guarantee
because the union knows the only thing it can guarantee
you IS A STRIKE, and that you will have to pay regular
dues , fees, and assessments . Do you realize the union
"take" from our hard working, loyal employees would
be more than fifty thousand dollars each year? This is
what they are really interested in. They are not citizens
of our community. They want the big, fat, union "take."
They don't care if they mess up our business oryour jobs.
Their only concern is to put your hard earned money in
their pockets.
We think you would make a serious mistake to
completely turn your jobs over to these union outsiders.
Think carefully about your families, your homes, and
your community. We would hate to see any of our
friends for many years make a mistake that you could
later regret.
s
If the union got in here , would the company have to
sign a contract and agree to all the union demands?
Again, the answer is "No."
[E ]ven if the union won a Labor Board election here
- THE COMPANY STILL WOULD NOT HAVE TO
SIGN THE UNION CONTRACT OR AGREE TO
THE UNION'S DEMANDS.
If the union should get in here and this company did
not agree to all the union 's demands and contract
proposals , what could the union do about it? There is
only one true answer to that question . The only thing the
union could do is to "CALL YOU OUT ON STRIKE,"
to try to get the things these outside organizers
promised to get you in order to have you sign the cards.
In other words , you would have to pay a lot of your
money to the union in dues and fees , but when the chips
were down, YOU would be the one to "WALK THE
BANCROFT MFG. CO. 621
PA VEMENT IN A STRIKE." YOU would be the ones
on the picket line.
Now listen to this, fellow-workers. It would be you
and your families who would suffer. It would be you
who would be without your pay.... You and your
families and your community have everything to lose.
[No pay or unemployment compensation while on
strike.]
Third - and this is most important of all. If you go
out on strike, you can lose your job.
If the union calls you out on strike to try to make the
company sign its contract, the company is perfectly free
under the law to hire replacements for you. Once this
happens the Company is under no obligation to give you
your job back. I want to repeat this because it is so
important. If the union calls you out on strike, the
company is free to hire permanent replacements for
you. If you are replaced during a strike, your job is gone.
If I were you, I would think a long time before I
turned my job and my future over to people like Rufus
Brooks, Clayton Moss , Jr., and other organizers who
have no real interest in your company, in you, or your
community. There is no telling what they are likely to
do. They are here today and gone tomorrow. We have
made up our mind that neither Brooks, Moss, or any
other outside agitators are going to push us around or tell
us what to do. If that means a showdown, we are ready for
it.
We think you would make a serious mistake to put
your job under control of outside agitators and union
organizers . You could never be certain of what would
happen to you the next day. We have heard these men
have been making big promises to some of you that they
have no way in the world of carrying out. They will tell
you anything to get you to sign the union cards and get
the "big, fat take." They will try to make you believe
that the union will take over the operation of this
business . They may even try to make you believe that
they can get somebody fired. Let's get this straight. AS
LONG AS THE DOORS OF THE COMPANY STAY
OPEN we are making our own decisions and are going to
run out business - not the union . The union does not
have one cent invested in this business, and they are not
going to tell us how to operate. Remember this -
company personnel sign your pay check and pay your
wages - not the union. The company gave you your
job, and if you continue to produce a day's work for a
day's pay, the company will keep you on the job - not
the union . These union agitators do not pay your wages.
They did not give you your job. It has never given you
one cent and it never will. THE UNION CAN'T GIVE
YOU ANYTHING. It does not create work, it does not
create jobs. The union will never give you anything -
on the other hand, it wants to take something away
from you, and that is your money on a weekly or
monthly basis.
If you have already signed a union card we will be glad
to talk with you about it and give you some good helpful
advice. The union organizers do not want you to talk
with us, as they don't want you to have all the truth.
They are afraid you will learn the truth about the union.
We want you to come to us and talk about this union
matter as we want you to have the whole truthful story.
We urge you to discuss this matter with your family -
it is important to all of us.
MAY GOD HELP YOU TO MAKE THE RIGHT
DECISION - FOR YOUR SAKE AND THE SAKE
OF YOUR FAMILIES . [Emphasis supplied; the
emphasis indicated in the original is not shown , except
where it appears here in all capitals.]
2. Second speech
About 2-3 weeks later , after Thanksgiving, President
Bancroft delivered a second speech to the different groups,
repeating some of the arguments . This speech included the
following:
I want you to know how very much I appreciate the
warm and helpful reception that you gave to the talk I
made to you a few days ago . Dozens of our men and
women have come to us to tell us that they very much
appreciate their jobs, and they will help us keep the
union from bringing trouble which may interfere with
your jobs and the peaceful operations of your plants.
A few days ago one of our employees asked me what
happened at our Jamestown, New York plant. I will tell
you exactly what happened. I did not form the
Company or start the Jamestown plant. I purchased the
plant as a going business, and there were only two
hundred people working in the plant. I found out, after
my purchase, that the plant had been organized by a
Steelworkers Union the year before. Each year when the
contract was up - there was a strike. As a result, the
employees were forced to go into debt and borrow
money to buy food and clothing for their families - we
had continued layoffs - after operating like this for
four years, we were down to approximately sixty five
employees.
In 1930 Jamestown, New York had a large population
- today it is about half the size. After the unions broke
into the area, plants closed right and left, and the few
remaining are still in the area because they have local
business.
If the union got into our local Pike County plants and
pulled the kind of strikes and trouble they did in
Jamestown, OUR POPULATION WOULD DE-
CREASE TREMENDUOUSLY. Your farms and your
homes may be worthless. You could not sell them or give
them away. You might be interested to know that the
only reason we still own the factory in Jamestown today
is because we have been unable to sell it.
This is a first hand story and you are looking at a
man who has been through this whole situation. If I had
kept the doors open in Jamestown a few more years, we
would have been in bankruptcy. I saw the handwriting
on the wall and got out.
622 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I came into this area because of the fine spirit of the
citizens and the good people available who would
cooperate in building a good, sound business. From a
modest start we are now employing many hundreds of
people, and I would HATE to see the same thing happen
to us here as it did in Jamestown.
s s s s
If the union calls you out on strike to try to make the
company sign its contract , the company is perfectly free
under the law to hire replacements for you. Once this
happens , THE COMPANY IS UNDER NO OBLIGA-
TION TO GIVE YOU YOUR JOB BACK
I am going to repeat this - it is important to each one
of you. If the union calls you out on strike , the company
is free to hire permanent replacements for you. IF YOU
ARE REPLACED DURING A STRIKE, YOUR JOB
IS GONE.... [Emphasis supplied , as in first speech.]
3. Contentions of the parties
In the complaint, the General Counsel alleged that in the
speeches , President Bancroft threatened the employees with
plant closure and loss of jobs , threatened them by stating
that a union could only hurt them , and unlawfully
interrogated them about their signing union authorization
cards . The General Counsel also contends , in his brief, that
Bancroft made "veiled threats cast in the form of
predictions."
Citing 10 Board decisions and 7 court decisions-all
predating the Supreme Court's June 16 , 1969, decision in
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575 (1969)-the
Company contends that the Board has approved similar
speeches , that the speeches contain no threats or reprisal,
and that "predictions of what might result from unioniza-
tion and the consequence of union demands are protected
under Section 8(c) of the Act."
4. Applicable standards in Gissel decision
As stated by the Fifth Circuit in N.L.R.B. v. Varo, Inc.,
425 F.2d 293, 300 (C.A.5), "The Supreme Court has
recently articulated [in the Gissel opinion] the standards by
which we are to determine whether a company prediction
of the possible effects of unionization is proper and
permissible." (Although cited in the General Counsel's
brief, Gissel is nowhere mentioned in the Company's brief.)
In Gissel, 395 U.S. 575 at 616-620, the Supreme Court
held:
At the outset we note that the question raised here most
often arises in the context of a nascent union organiza-
tional drive, where employers must be careful in waging
their antiunion campaign. . . . [A]n employer's free
speech right to communicate his views to his employees
is firmly established and cannot be infringed by . . . the
Board. Thus, Section 8(c) (29 U.S.C. Section 158(c)
merely implements the First Amendment by requiring
that the expression of "any views, argument, or
opinion" shall not be "evidence of an unfair labor
practice," so long as such expression contains "no
threat of reprisal or force or promise of benefit" in
violation of Section 8(a)(l). Section 8(a)(1), in turn,
prohibits interference, restraint or coercion of employ-
ees in the exercise of their right to self-organization.
Any assessment of the precise scope of employer
expression, of course, must be made in the context of its
labor relations setting. Thus, an employer's rights cannot
outweigh the equal rights of the employees to associate
freely, as those rights are embodied in Section 7 and
protected by Section 8(a)(l) and the proviso to Section
8(c). And any balancing of those rights must take into
account the economic dependence of the employees on their
employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implica-
tions of the latter that might be more readily dismissed by a
more disinterested ear... .
[A]n employer is free to communicate to his
employees any of his general views about unionism or
any of his specific views about a particular union, so
long as the communications do not contain a "threat of
reprisal or force or promise of benefit." He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on the
basis of objective fact to convey an employer's belief as to
demonstrably probable consequences beyond his control
... If there is any implication that an employer may or
may not take action solely on his own initiative for reasons
unrelated to economic necessities and known only to him,
the statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without the
protection of the First Amendment. We therefore agree
with the court below that "[c]onveyance of the
employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not a
statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof." [N.L.R.B. v.
Sinclair Co.,] 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences of
unionization that are outside his control," and not
"threats of economic reprisal to be taken solely on his
own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d
198,202 (C.A. 2nd Cir. 1967).
Equally valid was the finding by the court and the
Board that petitioner's statements and communications
were not cast as a prediction of "demonstrable
`economic consequences, "' 397 F.2d at 160, but rather
as a threat of retaliatory action. . . . In carrying out its
duty to focus on the question: "[W]hat did the speaker
intend and the listener understand?" (A. Cox, Law and
the National Labor Policy 44 (1960)), the Board could
reasonably conclude that the intended and understood
import of that message was not to predict that
unionization would inevitably cause the plant to close
but to threaten to throw employees out of work
regardless of the economic realities. . . . [T]he Board
has often found that employees, who are particularly
sensitive to rumors of plant closings [footnote omitted],
take such hints as coercive threats rather than honest
forecasts.36 [This In. 36 discussed below.]
Petitioner argues that the line between so-called
BANCROFT MFG. CO. 623
permitted predictions and proscribed threats is too
vague to stand up under traditional First Amendment
analysis and that the Board's discretion to curtail free
speech rights is correspondingly too uncontrolled. It is
true that a reviewing court must recognize the Board's
competence in the first instance to judge the impact of
utterances made in the context of the employer-
employee relationship . . . But an employer, who has
control over that relationship and therefore knows it
best, cannot be heard to complaint that he is without an
adequate guide for his behavior. He can easily make his
views known without engaging in "`brinkmanship"' when
it becomes all too easy to "overstep and tumble [over]
the brink, "Wausau Steel Corp. v. N.L.R.B., 377 F.2d
369, 372 (C.A. 7th Cir. 1967) [65 LRRM 2001, 2003 ]. At
the least he can avoid coercive speech simply by avoiding
conscious overstatements he has reason to believe will
mislead his employees. [Emphasis supplied.]
In establishing the premise that "the Board has often
found that employees, who are particularly sensitive to
rumors of plant closings . . . take such hints as coercive
threats rather than honest forecasts," the Supreme Court in
footnote 36 (395 U.S. 575 at 620) cited with approval
Kolmar Laboratories, Inc., 159 NLRB 805, 807-810 (1966),
enfd. 387 F.2d 833, (C.A. 7), "and cases [relied on by the
trial examiner here] cited [159 NLRB ] at 809, n. 3." One of
the cited cases (in fn. 3 of the Kolmar decision) was Indiana
Rayon Corp., 151 NLRB 130 (1965) - despite the fact that the
Seventh Circuit had already set aside the Board's order in
that case, the Court having found that "Such inferences as
appear in the letter and the speech are little more than
rhetoric and do not reach the plane of threat or promise."
255 F.2d 535, 538-539, (C.A.7). To the contrary, the Board
had held (151 NLRB 130 at 133,134):
By this letter and speech, the Respondent effectively
conveyed to its employees the impression that contin-
ued employment was linked to their rejection of the
Union in the forthcoming election and that the Union
could do nothing to improve their working conditions
because the Respondent would give employees abso-
lutely nothing more with the Union than without the
Union... .
Respondent rounded out this appeal to employees'
fear of job loss by indicating that should the Union, if it
won the election, ever call a strike, strikers would be
replaced and, under Federal law, would forever lose
their right to come back to work for Respondent. The
National Labor Relations Act imposes no such extreme
penalty upon employees for exercising the right to
strike.... Respondent's interpretation of the law could
only be viewed as a statement of policy that striking
employees would under no circumstances ever be
rehired. It seems clear that this statement could have no
other than a coercive effect upon the employees in their
exercise of their statutory right to select the Union as
their bargaining agent.
By such conduct, Respondent . . . violated Section
8(a)(1) of the Act.
In N.L.R.B. v. Kolmar Laboratories, Inc., 387 F.2d 833,
836-837 (C.A. 7) (cited with approval by the Supreme
Court in Gissel, as indicated above), the Seventh Circuit
held:
Respondent 's pre-election campaign appears to have
been calculated to impress its employees with three
"facts." The first was that respondent's economic
position at its Milwaukee plant was extremely precari-
ous and that the effective reasons for continuing the
Milwaukee operations were sentimental rather than
economic . The second "fact" was that any impairment
of respondent's competitive position in the market
served by its Milwaukee plant would compel it to close
the plant and transfer its operations elsewhere. The
third "fact" was that the introduction of a union at the
plant would unpair respondent 's competitive position.
These "facts" inescapably lead to the conclusion that
election of the union would be tantamount of the
termination of operations at Milwaukee and the
consequent loss of employment.
The test is whether the likely import of respondent's
pronouncements was coercive . Wausau Steel Corp. v.
N.L.R.B., [377 F.2d 369 at 372]. Here the likely import
was that-if the union won, plant closure was a foregone
conclusion.
In Wausau Steel, supra, likewise cited with approval by
the Supreme Court (395 U.S. at 620), the company
president, "while generally guarded in his statements,"
stated that increased expenses due to unionization might
make it necessary to close the new steel department, that
"Our margin of profit is so small that any substantial
increase in our costs would mean that he would operate at a
loss and be forced to drop major parts of our operations,"
and repeatedly suggested that if the union came in and
expenses were too high, Wausau would shut down
operations. supra at 371. The Seventh circuit held at 372.
While we do not doubt that [the company president]
proceeded carefully in attempting to limit his communi-
cations to his employees to the legally permissible, his
words must be judged by their likely import to his
employees . As the trial examiner suggested , one who
engages in "brinkmanship" may easily overstep and
tumble into the brink.
In N. L. R. B. v. River Togs, Inc., supra, likewise cited with
approval in Gissel, supra, the Second Circuit held that the
company owner's speech to the employees was permissible
under Section 8 (c) of the Act. The court stated (at 201-202):
[The company owner] put the question how, since "a
lot" of the employees were still unable on a piece-work
basis to "make the statutory" minimum wage of $1.25
per hour, they could make the Union' s minimum of
$1.75 or $1.80, a figure which only five operators were
sufficiently skilled to attain. He said it would take
months to find a "union jobber" and he could not pay
union benefits on the fees received from non-union
jobbers, on the other hand he would have no objection
to the Union and would recognize it if it got him a
"permanent registration" with a union jobber.
Rather than being threats of reprisals to be imposed
because of the employer's anti-union bias, these
remarks were a prediction as to the likely economic
consequences of unionization .... [The owner] had a
reasonable basis for his fears, in ILGWU's well-known
624 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
minimum wage standards , the poor performance of his
workers , his already dim economic picture , and the
difficulty of making connection with union jobbers,
none of which facts are disputed ; and he explained
these considerations so that the employees could make
their own evaluation . His lack of general anti-union
animus was evidenced by his statement that he would
have no objection to the Union and would recognize it
if it got him the arrangement with a union jobber
needed to continue operation of the plant with union
benefits . . . . [A In employer is free to tell his employees
what he reasonably believes will be the likely conse-
quences of unionization that are outside his control, as
distinguished from threats of economic reprisal to be
taken solely on his own volition.
I note that the Supreme Court did not cite in Gissel a later
Second Circuit decision , N.L.R.B. v. Golub Corp., 388 F.2d
921 (C.A.2), one of the decisions upon which the Company
relies in its brief. In that case , a majority of the court held
that there was no threat of retaliation in the employer's
letters and speeches to the employees , including the
statement that "to get you to vote for them , the Union had
been making many promises-promises to make demands
which could be excessive . Companies that have been forced
to meet excessive union demands have been known to be
forced out of business ." In a strong dissent , the dissenting
judge stated : "The majority opinion demonstrates once
more the inescapable truth that United States Circuit
Judges safely ensconced in their chambers do not feel
threatened by what employers tell their employees. An
employer can dress up his threats in the language of
predictions ('You will lose your job' rather than `I will fire
you') and fool judges . He doesn't fool his employees; they
know perfectly clear what he means ." I also note that in the
above-mentioned footnote 36 of the Gissel opinion, the
Supreme Court cited with approval the court enforcement
of a decision in which the Board held contrary to the court
majority in the Golub case. Surprenant Mfg. Co. v. N.L.R.B.,
341 F.2d 756,761 (C.A. 6). There the Sixth Circuit held:
In speeches Gordon [Surprenant's director of
employee relations ] referred to the possibility of the
plant moving or closing . He reviewed the financial
picture of the Surprenant operations and referred to
some of the factors that tended to make the investment
of somewhat questionable value , pointing to delays in
the delivery schedule and to a relatively high scrap rate
in the plant. . . . He referred to other plants in the
Clinton area that had been unionized and subsequently
moved out of town because they could not profitably
operate due to excessive union demands.
We are of the opinion that if Gordon 's remarks on
this phase of the question had been limited to a
prediction of the economic problems if the union came
in, they would not have constituted coercive statements.
... But there was also substantial testimony that
Gordon referred to the probability that if the company
did not choose to meet excessive union demands and a
strike resulted , the company might decide to move the
operation elsewhere or to shut it down. Such a
statement goes further than predicting the economic
result which would necessarily follow from the advent
of the union, over which the employer had no control,
in that it involved possible action on the part of the
company to close down the plant rather than meet the
union's demands.
Subsequent cases, applying the Gissel standards, are
discussed below.
5. Concluding findings
a. Threats of plant closure
Five months before President Bancroft delivered the two
speeches, the Supreme Court had held in Gissel supra, that
in a "nascent union organizational drive" such as this,
"employers must be careful in waging their antiunion
campaign." The Supreme Court had cautioned that the
balancing of the employers' right of free speech with the
employees' right of self-organization "must take into
account the economic dependence of the employees on
their employers, and the necessary tendency of the former,
because of that relationship, to pick up intended implica-
tions of the latter that might be more readily dismissed by a
more disinterested ear," and further, "that the Board has
often found that employees, who are particularly sensitive
to rumors of plant closings . . . take such hints as coercive
threats rather than honest forecasts."
The setting of this union organizational drive is in point.
The employees of this relatively large industrial firm, in a
predominantly rural county, would reasonably be expected
to be particularly sensitive to any suggestion or hint that the
plants might be closed. The Company was providing
industrial employment to hundreds of previously untrained
farm workers and small-town residents, who would have
little opportunity in the county for such employment
elsewhere.
The specter of plant closure was clearly suggested early in
President Bancroft's first speech. After stating that this was
a "very serious matter" and that what he had to say "will
have an important effect on you, your family, homes and
community-and on your job and future relations with the
company," he gave the Company's position: "We don't
want a union in our plants. . . . We are opposed to the
union." Then , before mentioning plant closures, he stated:
"We consider it a matter of serious concern to you and your
families, your homes and farms, and to the community. It is
our sincere belief that if the union were to ever get into our
plants it would not work to your benefit but to your serious
harm." [Emphasis supplied.) Immediately thereafter he
stated:
As most of you are aware , unions broke into plants in
Pike County in the past. All plants that were organized
years ago are now closed, locked and out of existence.
When I came to McComb there were no plants
excepting a garment plant with about a hundred
employees . Since that time , without unions coming here
stirring up trouble, more than two thousand jobs in the
Pike County area have been created. This record speaks
for itself. Do you want the same thing to happen here that
happened with plants in the Pike County area years ago?
[Emphasis supplied.]
Later in the speech, President Bancroft suggested that the
doors may not stay open, by the declaration:
BANCROFT MFG. CO. 625
As long as the doors of the company stay open we are
making our own decisions and are going to run our
business - not the union. [Emphasis supplied.]
The speech ended with the plea, "May God help you to make
the right decision - for your sake and the sake of your
families. " (Emphasis supplied.)
Some indication of the employees' fear of losing their
jobs was reflected by President Bancroft's opening remarks
in the second speech, that "Dozens of our men and women
have come to us to tell us that they very much appreciate
their jobs ..." Thereafter in the speech, he again suggested
the possibility of plant closure. Giving an account of what
happened at the plant he owned in Jamestown, New York,
before coming to McComb, he stated he discovered after
purchasing the plant that it was organized; there was an
annual strike; and he closed the plant after 4
years-claiming that if he had kept its doors open "a few
more years, we would have been in bankruptcy." He stated
that if the Union got into the local Pike County plants "and
pulled the kind of strikes and trouble they did in
Jamestown, our population would decrease tremendously.
Your farms and your homes may be worthless. You could not
sell them or give them away." (Emphasis supplied.) He
concluded the account: ". . . I would hate to see the same
thing happen to us here as it did in Jamestown."
I find that these repeated references to plant closures
were calculated to, and necessarily tended to, suggest the
possibility or likelihood of plant closure in the event of
unionization. The question remains whether these sugges-
tions or hints were permissible, free-speech predictions, or
coercive threats.
The standards are set out in Gissel, supra:
[An employer may] make a prediction as to the
precise effects he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probable
consequences beyond his control . . . If there is any
implication that an employer may or may not take action
solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the
statement is no longer a reasonable prediction based on
available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the First Amendment. We therefore
agree with the court below that "[c ]onveyance of the
employer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is not a
statement of fact unless, which is most improbable, the
eventuality of closing is capable of proof." [Emphasis
supplied.]
In the present case, the Company's business was
expanding with the construction of a fourth plant.
President Bancroft's last contact with the Steelworkers
Union was about 20 years before. The Steelworkers had not
contacted the Company during the 1969 organizing drive,
and had not presented any demands. There was a single
reference in his first speech to "our highly competitive
industry," but there was no indication in the speeches of
"well-known minimum wage standards" adopted by the
Steelworkers in this industry, poor work performance, a
dim economic picture , or similar economic problem-as
there was in N.L.R.B. v. River Togs, Inc., supra. (As
previously indicated, the Second Circuit held in River Togs,
with the approval of the Supreme Court in Gissel, that an
employer was not threatening reprisals when he had a
reasonable basis for his prediction as to the likely economic
consequences of unionization outside his control, and not
only "explained these considerations so that the employees
could make their own evaluation," but also indicated to
them his "lack of general anti-union animus.")
Here, President Bancroft did not assert in the speeches
any objective facts which would convey a belief in
demonstrably probable consequences of unionization
beyond his control. He merely stated that jobs had been
created "without unions coming here stirring up trouble,"
and told what might happen in the event of unionization:
speaking throughout his two speeches of possible strikes,
picketing, walking the pavement, strike losses and replace-
ments , outside agitators , union promises , the union stirring
up trouble and "bringing trouble which may interfere with
your jobs." At the same time, Bancroft was emphasizing the
Company's economic power, willingness to fight, and
determination to defeat the Union. In the first speech, for
example , Bancroft stated:
[I ]t is our positive intention to oppose the union by
every proper means to prevent it coming into our plants.
... we are not afraid of the union and if the union
wants a fight we are prepared for it and will not back
away from it . . . the union knows the only thing it can
guarantee you is a strike . . . even if the Union won a
Labor Board election here - the company still would not
have to sign the union contract or agree to the union's
demands. . . . The only thing the union could do is to
"call you out on strike" ... We have made up our mind
that neither [Organizers ] Brooks, Moss, or any other
outside agitators are going to push us around or tell us
what to do. If that means a showdown, we are ready for
it.... As long as the doors of the company stay open we
are making our own decisions and are going to run our
business - not the union.... The company gave you
your job, and if you continue to produce a day's pay,
the company will keep you on the job - not the union.
... The union can't give you anything.
After carefully reading President Bancroft's two speeches
and the entire record, I deem the holding of the Fifth
Circuit in N.L.R.B. v. Dowell Div., Dow Chemical Co., 420
F.2d 480, 482 (C.A. 5), to be equally applicable to the
present case. After quoting the Gissel standards, the court
held:
[T ]he Company's suggestions of economic harm due to
unionization had the natural tendency to imply
retaliation for supporting the Union since they were not
based on "demonstrably probable consequences be-
yond [its ] control." Since the Company emphasized that
it alone controlled the benefits of the employment
relationship that were threatened by unionization, the
employees could have reasonably inferred that their
employer was willing to use its economic power to see
that its dire predictions came true. The (documents)
contained "conscious overstatements [the Company
626 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had] reason to believe [would] mislead [its] employees,"
N. L.. R.B. v. Gissel Packing Co., supra. . .
Accord: N.L.R.B. v. Varo, Inc., supra. Similarly the Third
Circuit, citing the "teaching" of Gissel, held in Mon River
Towing, Inc. v. N.L.R.B., 421 F.2d 1, 10-H (C.A. 3):
Since it is the import of the language to the employees
that is crucial, in making such a prediction the employer
must eliminate the atmosphere of threat by demonstrating
to the employees that the predicted consequences are, in
fact, economically dictated in the given circumstances.
s * s s s
Recognizing the significance of the pronouncements
of Gissel for the instant case, Mon River asserted in oral
argument that the principles for which Gissel is
authorized are not applicable here. It would limit Gissel
to the context of an organizational campaign in which
the employer engaged in "union busting" tactics.
However, the present case , in which the employer
sought to encourage ratification of a collective bargain-
ing agreement, involved, as did Gissel, an effort to
influence the exercise by the employees of protected
rights... .
Applying the standards of Gissel, [the company
president's] statements did not seem to be based on
objective fact nor were they concerned with demonstr-
ably probable consequences. [Emphasis supplied.]
Most recently, in N.L.R.B. v. Southern Electronics Co., 430
F.2d 1391 (C.A.6), the Sixth Circuit applied the Gissel
standards where there was an employer prediction "that the
plant would probably be closed" if the union came
in-enforcing the Board's Order.
Without asserting any objective facts which would
convey a belief in demonstrably probable consequences of
unionization beyond his control, President Bancroft made
repeated references in the speeches to plant closures-in
the context of numerous foreboding suggestions of dire
consequences of unionization, and while emphasizing the
Company's control over employment and its determination
and willingness to fight to defeat the Union. Applying the
Gissel standards, I find that Bancroft thereby implied that
he would, if needed to defeat the Union, "take action solely
on his own initiative for reasons unrelated to economic
necessities ," and also find that his suggestions or hints of
plant closures, in context , naturally tended to, and did,
convey to the employees coercive, veiled threats of plant
closure in retaliation for supporting the Union, in violation
of Section 8(a)(1) of the Act.
b. Threat of harm
In the first speech, before making the initial reference to
plant closures, President Bancroft stated: "It is our sincere
belief that if the union were to ever get into our plants it
would not work to your benefit but to your serious harm."
Thereafter, Bancroft talked about the Company's willing-
ness to fight to defeat the Union, and the Company's
determination to make its own decisions and to run its own
business. He stated that "the union knows the only thing it
can do is to `call you out on strike' ... even if the union won
a Labor Board election here-the company still would not
have to sign the union contract or agree to the union's
demands.... The only thing the union could do is to `call
you out on strike' . . . The union can't give you anything."
Nowhere did Bancroft assure the employees that he would
bargain in good faith if they selected the union.
In the previously cited Varo, Inc., supra, the Court held:
It is clear that an employer places unlawful restraints
on his employees' Section 7 rights when he makes
threats to frustrate efforts to agree on a contract in
order to goad employees into a strike. . . . The
Company spokesmen in this case warned the employees
that selecting a union would be "a futile effort" because
no agreement would be reached short of a strike .. .
Sinularily in Dryden Mfg. Co., Inc., 174 NLRB No. 46, enfd.
in pertinent part 421 F.2d 267,268 (C.A. 5), the Board held
that the company literature (previously called an
"antiunion kit") emphasized not only "that selection of the
Union followed by a strike could result in serious detriment
to the employees, but also that the Respondent would force
the Union to strike rather than accede to its demands,
thereby making a strike and the dire consequences depicted
as flowing therefrom a likely, if not inevitable, result of
selecting the Union." The Court enforced the part of the
Board's order which required the employer to cease and
desist from "Threatening its employees with reprisals and
with adverse economic consequences, including strikes and
job loss, if they select" a union. In Dryden, the Board relied
on its decisions in Yazoo Valley Electric Power Assn., 163
NLRB 777,788-789 (1967), enfd. in pertinent part, 405 F.2d
479, 480 (C.A.5), and other cited cases (174 NLRB No. 46,
fn. 3), in which the same antiunion kit, "identical except for
company name and some minor variations in capitaliza-
tions and underlinings," was found to contain coercive
threats of reprisal-not merely permissible free-speech
predictions.
President Bancroft's speeches, including the above-
quoted parts, contain statements similar to some of the
statements found coercive in the Dryden, Yazoo, and other
decisions. I find that one clear import of the speeches, when
considered from the employees' viewpoint, was an implied
warning that selecting the Union would be futile because
no agreement would be reached short of a strike. I therefore
find, as alleged in the complaint, that Bancroft threatened
the employees "by stating that a union could only hurt
diem." Accord: Amalgamated Clothing Workers (Winfield
Mfg. Co.) v. N.L.R.B., 424 F.2d 818, 824-825 (C.A.D.C.). I
further find that, in the context of this warning of futility
and the above-found threats of plant closure, Bancroft's
statement at the beginning of the first speech, "It is our
sincere belief that if the union were to ever get into our
plants it would not work to your benefit but to your serious
harm," constituted a part of the threat "that a union could
only hurt" the employees. I find that in this context, the
"serious harm" statement was coercive and violated Section
8(a)(1) of the Act. Aerovox Corp. of Myrtle Beach, 172 NLRB
No. 97 (TXD) (1968); Serv-Air, Inc. v. N.LR.B., 395 F.2d
557, 561 (C.A.10); Suprenant Mfg. Co., 144 NLRB 507,
510-511 (1963), cited in the above-mentioned footnote 36 in
the Gissel opinion.
BANCROFT MFG. CO. 627
c. Threats of job loss
In the first speech, President Bancroft told the employ-
ees:
Third - and this is most important of all. If you go
on stake you can lose your job.
If the union calls you out on strike to try to make the
company sign its contract , the company is perfectly free
under the law to hire replacements for you. Once this
happens the company is under no obligation to give you
your job back. I want to repeat this because it is so
important. If the umon calls you out on strike, the
company is free to hire permanent replacements for
you. If you are replaced during a strike your job is gone.
[Emphasis supplied.]
In the second speech, Bancroft stated:
If the union calls you out on strike to try to make the
company sign its contract, the company is perfectly free
under the law to hire replacements for you. Once this
happens the company is under no obligation to give you
yourjob back.
I am going to repeat this-it is so important to each of
you. If the union calls you out on strike, the company is
free to hire permanent replacements for you. If you are
replaced during a strike your job is gone. [Emphasis
supplied.]
As previously indicated, the Board found in Indiana
Rayon, supra, cited in footnote 36 of the Supreme Court's
Gissel opinion, that the employer coerced the employees in
violation of Section 8(a)(1) of the Act when he told them
that under Federal law, replaced strikers would forever lose
their right to come back to work. The Board held that this
interpretation of the law "could only be viewed as a
statement of policy that striking employees would under no
circumstances ever be rehired." More recently in Laidlaw
Corp. v. N. L. R. B., 414 F.2d 99, 106 -107 (C.A.7), the Seventh
Circuit affirmed the Board's finding that the employer
"violated section 8(a)(1) of the Act by threatening
employees prior to the strike that if they struck they would
be replaced and would forever lose their employment
rights." Although here, President Bancroft told the
employees "your job is gone" if they are replaced during a
strike, rather than that they would "forever lose their
employment rights," I find that the clear import is the same,
when considered from the employees' viewpoint. I therefore
find that the your-job-is-gone warnings were coercive
threats of reprisal and violated Section 8(a)(1) of the Act.
(The complaint alleged that Bancroft coercively threatened
the employees "with loss of jobs if they exercised their right
to designate a collective bargaining representative."
However, the General Counsel indicated at the trial that he
was contending the your-job-is-gone warnings to be
coercive threats, by specifically questioning Bancroft about
whether he also cleared this part of the speech with his
labor attorneys, Kullman and Lang.)
The General Counsel, relying on the memory of one or
more of the discharged employees, further alleged in the
complaint that in the first speech, President Bancroft
threatened the employees "by stating that he would not
allow a union to come into his plant." (The Company did
not provide the General Counsel with a copy of the two
speeches until the first day of the trial. Despite the General
Counsel's argument to the contrary, I find that the evidence
establishes that Bancroft read the text of both speeches
substantially as they were written.) Neither speech explicitly
states such a threat . Because of the foregoing findings of
other threats in the speeches, I do not deem it necessary to
decide whether this alleged threat was implied, when
considered from the viewpoint of employees dependent
upon the Company for employment.
d. Interrogation
Near the end of the first speech, after making the above-
found threats of plant closure, serious harm, and loss of
jobs, President Bancroft stated:
If you have already signed a union card we will be glad
to talk with you about it and give you some good helpful
advice. The union organizers do not want you to talk
with us, as they don't want you to have all the truth.
They are afraid you will learn the truth about the union.
We want you to come to us and talk about this union
matter as we want you to have the whole truthful story.
We urge you to discuss this matter with your family-
it is important to all of us. [Emphasis supplied.]
Some indication of the employees' reaction is shown (as
previously mentioned) by Bancroft's opening remarks in
the second speech, that "Dozens of our men and women
have come to us to tell us that they very much appreciate
their jobs .. .
It is not necessary to decide whether, in an atmosphere
free of coercion, such an invitation for cardsigners to reveal
their umon support and to get "some good helpful advice"
would constitute coercive interrogation. Here the atmos-
phere was not free of coercion. Bancroft extended the
invitation after making the various threats, which would
necessarily tend to cause the employees to fear company
reprisals and the loss of theirjobs. I find that in this context,
Bancroft's invitation tended to coerce the cardsigners into
revealing to the Company whether they had signed the
cards, in order not to risk company reprisals. I therefore
find, as alleged in the complaint, that Bancroft coercively
interrogated employees, and solicited them to inform him
whether they had signed union authorization cards, in
violation of Section 8(a)(1) of the Act.
In the absence of further appropriate allegations, I do not
decide whether the two speeches otherwise were violative of
the Act.
C. Coercive Use of Badges and Petitions
1. Supervisory status of Touchstone and Nettles
In Plant 1 , "I am for the Company" badges were
distributed by Leroy Touchstone , and antiumon petitions
were initiated and/or circulated by Touchstone and Wilson
Nettles, both of whom are leadmen in the press department.
(The evidence does not disclose who engaged in these
activities in Plants 2 and 3, where also the badges were
passed out and the petitions were signed and posted.) The
General Counsel alleges, and the Company denies, that
Touchstone and Nettles are supervisors.
In Plant 1, there are the smelting, extrusion , and press
departments and the toolroom . The Company contends
628 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that there are only two supervisors in the plant under
Superintendent Delton Campbell: Foreman Charles
Hughes over the 18-19 employees in the toolroom, and
Foreman Herbert McElveen over the press department.
According to the Company, the leadmen (whom some of
the employee witnesses at the trial referred to as their
supervisors or shift foremen) are not in fact supervisors.
(The leadmen have never been assigned a formal title.)
Thus, the Company is contending that in one of the two
larger departments, the extrusion department, Plant
Superintendent Campbell himself is the immediate supervi-
sor over the employees on all three shifts, and in the other
large department, the press department, Foreman McEl-
veen is the immediate supervisor over both shifts.
When the evening shift was begun in the press
department sometime in 1969, Foreman McElveen told the
employees in that department that either Touchstone or
Nettles would be in charge, depending upon which one of
them was working on the evening shift that week. The two
leadmen rotate each week. The employees under them also
rotate, but work 2 weeks on the day shift and 1 week on the
evening shift. Therefore the day shift, on which Foreman
McElveen works, is a double shift, employing twice as
many employees as the evening shift. At the time of trial,
there admittedly were between 15 and 18 employees working
on the evening shift. The number working in November
and December is in dispute, although there is no contention
that the leadmen's status changed between then and the
time of trial. Employee Lillie Carstafhner (who impressed
me as a most alert, as well as forthright, honest witness).
testified that there were approximately 15 to 20 employees
on the evening shift when she was there, from September
1969 until January. General Superintendent (now manager
of manufacturing) Elmo Busby (who did not appear to be
as candid a witness) first testified that he did not believe
there were more than "8 or 9, perhaps 10" working on the
evening shift in November. He later testified, "It could have
been 12," and still later, between 8 and 15. I credit
Carstafhner's testimony about the number.
There are saws, drill presses, and a large number of punch
presses (weighing between 2-1/2 and 60 tons) in the press
department. One of the 15-20 employees on the evening
shift is a setup man, who also works under the leadman.
The leadman makes some of the setups himself, instructs
employees how to work on different machines, and checks
to see that the general maintenance and repairs on the
machines are done. He makes the assignments, telling the
employee which machine to operate, or assigns the
employee to perform other work, such as unloading
truckloads of metal or doing cleanup work. The inspector
reports any unsatisfactory work to the leadman, who sees
that the problem is rectified. The leadman does some
production, on special orders, for an estimated 5 or 6 hours
a week. Much of his time, when not otherwise engaged, is
spent at the desk in Foreman McElveen's office, or talking
with the mechanics.
When emergencies or special problems arise on the
evening shift, the leadman is expected to consult by
telephone with a supervisor, whenever one can be reached.
However, the credible evidence shows that the leadman
possesses, and exercises, considerable authority and
discretion on his own, particularly on the evening shift. One
evening, when employee Beatrice Thompson became ill,
she went to Touchstone and asked if she could go home. He
immediately answered, "Yes, you go because you don't ever
ask . . . to have any time off. You are welcome to go." On
another occasion, in early January, Nettles informed
Touchstone at the beginning of the evening shift that a
punch press was not working right. Touchstone told Mrs.
Thompson that he would help her. Later, while Thompson
was operating the machine, it "blew up." Touchstone
investigated, talking to the diemaker, and telephoned
General Superintendent Busby who asked Touchstone "if
he thought that it could have been avoided or if it was just
carelessness or was it her fault." Relying on Touchstone's
opinion that it was Thompson's fault, Busby told Touch-
stone to send her home for the remainder of the shift. (She
was discharged the next day.) One evening, after Touch-
stone had sent two Negro employees home, one of the
employees asked Touchstone about it. As credibly testified
by former employee Lesby Burnette, Touchstone "said they
wasn't doing their work to suit him and he sent them
home." Sometime before Burnette's discharge, he was
accused of overstating his production and suspended. (In
his May 14 pretrial affidavit, a company exhibit, Bumette
stated that this occurred about 3 months earlier-i.e., about
February-but it must have occurred considerably earlier,
because he was alleged to have been discrinimatorily
discharged on January 5.) While in the foreman's office,
with Foreman McElveen and Touchstone, Burnette denied
the accusation, pointed out that he was not on incentive
pay, and pleaded for his job. McElveen said to Touchstone,
"Leroy, it is up to you, you want him to go home, send him
home." Touchstone then told Burnette, "You will have to
go home." (Burnette's testimony is undisputed, inasmuch as
neither the General Counsel nor the Company called
McElveen, Touchstone, or Nettles to testify. Although
Burnette was obviously very poor at remembering time and
dates, he impressed me as an honest witness, and I note that
he was able to recall significant parts of President
Bancroft's two speeches. Although his pretrial affidavit is
not as detailed as his testimony on the stand, he
satisfactorily explained this, credibly testifying that he was
not allowed sufficient time to give all the facts when his
affidavit was taken, being told that the investigator had to
check out of the hotel by a certain time. From his demeanor
on the stand, I concluded that he did not harbor any
company malice, coloring his testimony. I therefore reject
the Company's challenge to his credibility.)
The employees working under Touchstone and Nettles
are paid from $1.70 to $2.10 an hour, exceptfor the setup men
who are paid between $2 and $2.25 an hour. Touchstone is
paid $2.50,andNettles $2.40.The only witness called by the
Company to testify about their status was General
Superintendent Busby, who impressed me as one who was
consciously attempting to belittle their authority and
responsibility, and to understate the number of employees
working under them and the number of machines in the
department. However, Busby did admit that "if they have a
problem at night, for whatever reason, with a particular
employee," and cannot reach a superior by telephone, they
may send the employee home for the remainder of the shift.
BANCROFT MFG. CO.
Two of the many witnesses called by the Company (to
testify that President Bancroft read the speeches as written)
testified while on cross-examination that particular lead-
men were their foremen of the shift , whereas one, employee
Kelvin Chisholm , testified that Nettles was "just a common
setup man" and was not necessarily in charge of the
evening crew of about 15 employees . In this regard , -I credit
neither Chisholm's testimony, nor the testimony by a
General Counsel witness, present employee Sandra May,
that Nettles was just a setup man.
In November and December , when President Bancroft
gave the antiunion speeches , it is clear that he was linking
the leadmen with management . In the second speech he
stated : "With the exception of the toolroom foreman at
Plant One-all our foremen, leadmen, and superintendents
started from the ranks the same as you. "
After weighing all.the evidence , and the arguments of the
parties, I find that Touchstone and Nettles responsibly
direct the employees on the evening shift, using their own
independent judgment in assigning the work, directing the
operation, effectively recommending disciplinary action to
be taken against employees , and determining whether or
not employees should be sent home for the remainder of the
shift . I therefore find that at all material times, Touchstone
and Nettles were supervisors within the meaning of Section
2(11) of the Act, and that the Company is responsible for
their activities in connection with the badges and petitions.
Matthews & Co. v. N.L.R.B. 354 F.2d 432,434-435 (C.A.8),
cert. denied 384 U.S. 1002 (1966); N.L.R.B. v. Big Ben
Department Stores, Inc., 396 F.2d 78, 82 (C.A. 2); Kawneer
Co., 164 NLRB 983, 944-995 (1967), enfd. 413 F.2d 191,192
(C.A. 6), (assistant foremen distributing "Vote No"
buttons).
2. Badges and petitions
During the period between the times President Bancroft
delivered the first and second speeches at all three plants,
Leadman Touchstone passed out "I am for the Company"
badges at Plant 1, and he and Leadman Nettles participated
in circulating typed petitions, which stated support of the
Company and opposition to the Union.
On Monday morning, November 17, Touchstone had a
box filled with the printed badges, and passed them out at
the timeclock and during working hours in the plant. By so
doing, he was able to determine who would and who would
not accept the buttons to wear. As found by the Board, with
court approval, in the above-cited Kawneer case, 164 NLRB
at 995, such conduct by supervisors is a subtle interrogation
of employees : "By passing out these buttons and observing
who accepted or rejected them, the supervisors in effect
forced each employee whom they approached to announce
his choice" for or against the union , thereby exerting
pressure upon them in violation of Section 8(a)(1) of the
Act. Similarly in Garland Knitting Mills of Beaufort, 170
NLRB No. 39 (1968), enfd. in pertinent part, 414 F.2d 1214,
fn. 4 (C.A.D.C.), the Board found that where the
supervisors passed out tags (symbolizing support of the
employer) immediately after the employer's speech to the
employees, the "supervisors, by passing out tags and
observing who accepted or rejected them, in effect forced
each employee who was approached to manifest his choice.
629
We find that such exertion of pressure upon employees
constitutes coercive conduct violative of Section 8(axl)." I
accordingly find that Leadman Touchstone's conduct in
passing out the badges was coercive , and violated Section
8(axl) of the Act.
Leadman Touchstone also took the antiunion petition
into the plant during working hours and told employees
that he wanted them to sign it. Leadman Nettles showed the
petition to employee May, asked her to read it , and asked if
she would sign it . Then Mrs. May circulated the petition.
When May approached employee Carstafhner at Car-
stafhner's machine, on company time , May said that
Nettles wanted everybody to look at the petition and to sign
it if they wanted to . May also said that if Carstafhner kept
it, not to let anybody see her passing it around because
Nettles did not want General Superintendent Busby or
Foreman McElveen to know that Nettles was doing this on
company time. (This testimony by Carstafhner is supported
by her pretrial affidavit , admitted for purposes of
credibility only, stating that May told Carstafhner that
Nettles "doesn't want McElveen to know that he was taking
the petition around . . . it's not supposed to be done on
company time ." I discredit May's testimony that she did
not want McElveen to see the petition being circulated
because "I thought it was going to be a surprise to him."
Employee Thompson credibly testified that she did not sign
the petition until after it was posted on the bulletin board
(located next to Foreman McElveen's office). I find, as
alleged in the complaint, that Nettles initiated the
circulation of the petition , and that Touchstone himself
circulated the petition in the plant during working hours.
Inasmuch as both Touchstone and Nettles were supervi-
sors, the Company thereby engaged in coercive conduct,
interfering with the employees ' Section 7 rights, in violation
of Section 8(a)(l) of the Act . Big Ben Department Stores,
Inc., 160 NLRB 1925,1932-1933 (1966), enfd. 396 F.2d 78, 81,
82 (C.A. 2). Whether one of the supervisors or an employee
posted the petitions would seem to make little difference.
The employees were aware that Supervisor Touchstone had
been engaged in soliciting signatures on the petitions, and
that both he and Supervisor Nettles were recommending
the signing of the petitions . Then when the petitions
appeared on the bulletin board near the foreman's office,
the Company permitted them to remain there . Although the
evidence does not prove the allegation in the complaint that
the Company posted the petitions , I find merit in the
further allegation that the Company violated the employ-
ees' Section 7 rights by permitting the supervisor-sponsored
petitions to remain on the plant bulletin board, thereby
coercing other employees to sign them.
In defense of the allegations that the Company partici-
pated in the coercive use of badges and petitions, the
Company (besides denying the supervisory status of
Leadmen Touchstone and Nettles) contends that
"Respondents did not initiate or circulate an antiunion
petition or provide `I am for the Company' badges for its
employees," and that its two principal witnesses, President
Bancroft and General Superintendent Busby, had no
knowledge of where the badges came from, nor knew that a
petition was being circulated . Bancroft testified that he saw
the badges being worn around the plant, and that there
630 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were a lot of them around , but "I don't remember really"
asking where they came from . Busby testified , "I don't have
the faintest idea" where the badges came from , and denied
that he made any inquiries about it . When asked, "Did you
make any inquiry about either the badges or the petition,
how they were circulated or anything about it," he
answered , "No, sir, not to find out. To be honest, I was a
little pleased by it but at the time when I first saw [the
petition ], I may have said something like, `Who put that up
there?' I don't remember saying that but possibly I could
have . To be absolutely honest in answering your question, I
may have inquired to that extent but no one told me who
put it up there and I don 't know." Later, when asked
whether he was curious about where the badges and
petitions came from , he answered , "Yes, I may have been
curious , but I did not inquire as to where they came from."
(Again, he appeared less than candid.)
I might observe that the appearance of "I am for the
Company" badges in large numbers (printed on bright
paper with adhesive backing ) in the hands of a company
supervisor on the first workday after President Bancroft
finished delivering the first speech , appears to have been a
rather extraordinary coincidence , unless the badges were a
part of the Company's well-coordinated antiunion cam-
paign . I do not consider very convincing the Company's
speculation in its brief, that the badges "could have come,
for example , from the employees themselves or perhaps
even townspeople."
Neither do I agree with the further argument in the
Company's brief that there "is absolutely no reason to
discredit Respondent 's witnesses' testimony" that they had
no knowledge that a petition was being circulated.
President Bancroft testified that he saw the petition on the
bulletin board toward "the end of the speeches, when I
went to one of the plants . . . I think I saw it in two plants
I did mention [it] to one of the officers of the plant.
I think I passed the remark when I saw it in one of the
plants on the final day, at the final speech . . . I said, `Say, I
saw something funny today. I noticed people got together and
put a petition up.' " (Emphasis supplied) He later testified "I
was rather elated that some people would do such things."
(Emphasis supplied .) The Company offers no explanation
why, if he was elated at seeing the petition , he made the
comment that he "saw something funny today ." That he
was being less than forthright is further suggested by two
things : First, when asked if he was not concerned that his
employees felt that they had to sign a petition denying
support of the Union , he answered , "Well, there was no law
they had to sign a petition or compelled-I know they
weren 't compelled to sign a petition ." (Emphasis supplied.) I
agree with the General Counsel that this answer suggests
that "Bancroft's knowledge of the petition's source and
mode of circulation exceeded his admissions under oath."
Secondly, following the conduct of Leadmen Touchstone
and Nettles in sponsoring the badges and petitions,
Bancroft included the following in his second speech,
suggesting knowledge of the leadmen's concern : "We are
aware-that many of i our , good ', loyal hourly plant
employees , our leadmen and supervisors are seriously
concerned about this situation, and many of you are doing
your best to stop this cancer from spreading. ..."
(Emphasis supplied.) In weighing Bancroft's credibility, I
note that he denied adding anything to his speeches, and
denied ever referring to himself as "Uncle Joe." Former
employee Carstafhner credibly testified that he introduced
himself when making the first speech , "Good morning, my
fellow workers . Most of you know me as Uncle Joe." (In
her pretrial affidavit, Mrs. Carstafhner recalled that
Bancroft used the words , "Good morning my fellow
workers , as you all know I 'm Uncle Joe.") One of the
defense witnesses , employee Adrian Lawrence , testified,
"He called us all to the front and he said, I am Joseph C.
Bancroft, known to a lot of you as Uncle Joe.... And then
he started reading the speech ." Another defense witness,
employee J . W. Rayburn testified that he could not be
certain, but he thought that Bancroft introduced himself,
adding "better known as Uncle Joe"; and still another
defense witness, employee Alfred Carraway , testified that
he had heard Bancroft calling himself Uncle Joe. In
weighing Bancroft's credibility I have also considered his
positive reply, "No, sir," when asked, "Did anybody assist
you in the preparation of this speech?" Later, after being
asked about his educational background and whether he
had studied labor law , he appeared to be attempting to
change his testimony to make it more plausible. He
volunteered , "After I wrote the speeches , you understand, I
wrote to New Orleans and had my labor attorneys check
them." He then testified that Kullman and Lang "made a
couple of minor changes."
Although personal knowledge of either President Ban-
croft or General Superintendent Busby is not a prerequisite
for the foregoing findings that the Company violated
Section 8(a)(1) through the conduct of Supervisors
Touchstone and Nettles , I draw inferences from the
foregoing that both Bancroft and Busby did have
knowledge of the use of the badges and petitions, and that
this use of the badges and petitions was authorized by the
Company as part of its antiunion campaign . In drawing
these inferences, I reject the argument in the Company's
brief that the evidence shows that "the employees
attempted to hide from the company supervisors the fact
that a petition was being circulated ." The credited
testimony of former employee Carstafhner (that employee
May told her that Leadman Nettles did not want Busby or
Foreman McElveen to know that Nettles was doing this on
company time) suggests instead that Nettles' superiors had
authorized him to circulate the petition, but outside
working hours.
After considering all the evidence, and considering the
demeanor of the witnesses, I also credit former employee
Carstafhner's testimony that before President Bancroft
read the second speech to her group, he referred to the
petitions on the bulletin board , thanked the employees, and
stated "it made him feel real good on his birthday to walk
down the hall and see so many signatures on the petition."
(His birthday was a few days earlier.) However, I reject the
General Counsel's contention , as alleged in the complaint,
that these comments "created the impression of surveil-
lance of employees ' union activities," and "ratified and
condoned" the leadmen's conduct.
BANCROFT MFG. CO. 631
CONCLUSIONS OF LAW
1. By threatening employees with plant closure, serious
harm and the loss of jobs, by warning them that the
selection of a union would be futile, and by coercively
interrogating them about the signing of union cards, the
Company engaged in unfair labor practices affecting
commerce within the meaning of Section 8(a)(1) and
Section 2(6) and (7) of the Act.
2. By distributing "I am for the Company" badges,
thereby forcing employees to indicate their choice for or
against the Union, the Company violated Section 8(a)(1) of
the Act.
3. By initiating and circulating antiunion petitions, and
by permitting the petitions to remain posted on the bulletin
board, the Company violated Section 8(a)(1) of the Act.
4. The General Counsel has failed to prove that the
Company posted the petitions on the bulletin board.
5. The comments by the company president, thanking
employees for signing the antiunion petitions, did not
create the impression of surveillance of employees' union
activities, nor ratify and condone the conduct of the
supervisory leadmen in initiating and circulating the
petitions.
otherwise coercively soliciting employees to declare their
support of their employer or against a union.
(i) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at their plants in Pike County, Mississippi, copies
of the attached notice marked "Appendix." 2 Copies of the
notice, on forms provided by the Regional Director for
Region 15, after being duly signed by an authorized
representative of the Respondents, shall be posted by the
Respondents immediately upon receipt thereof, and be
maintained for 60 consecutive days thereafter, in conspicu-
ous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by
the Respondents to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director of Region 15, in writing,
within 20 days from the date of the receipt of this Decision,
what steps the Respondents have taken to comply
herewith.3
IT IS ALSO ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
THE REMEDY
In order to effectuate the policies of the Act, I find that it
is necessary that the Respondents be ordered to cease and
desist from the unfair labor practices found and from like
or related invasions of the employees' Section 7 rights, and
to post appropriate notices.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
Respondents, Bancroft Manufacturing Company, Inc.,
Croft Aluminum Company, Inc., Croft Ladders, Inc., Croft
Metal Products, Inc., and Lemco Metal Products, Inc.,
their officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening their employees with plant closure or
other reprisal if they select a union.
(b) Threatening their employees with serious harm if a
union were ever to get into their plants.
(c) Warning their employees that the selection of a union
would be futile because no agreement could be reached
without a strike.
(d) Threatening their employees with strikes, loss of jobs,
or other adverse economic consequences which may result
from employer response to unionization.
(e) Threatening never to rehire employees if they go on
strike and are replaced.
(f) Coercively interrogating employees about their signing
of union authorization cards.
(g) Distributing procompany or antiunion badges or
other insignia under conditions which coerce their employ-
ees openly to declare themselves for or against a union.
(h) Initiating or circulating any antiunion petition,
permitting such a petition to be posted in the plant, or
2 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the
findings , conclusions, and recommended Order herem shall, as provided in
Sec. 102 48 of the Rules and Regulations , be adopted by the Board and
become its findings, conclusions , and order and all objections thereto shall
be deemed waived for all purposes . In the event that the Board 's Order is
enforced by a judgment of a United States Court of Appeals, the words in
the notice reading "Posted by Order of the National Labor Relations
Board" shall be "Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an order of the National Labor Relations
Board."
3 In the event that this recommended Order is adopted by the Board,
this provision shall be modified to read: "Notify the Regional Director for
Region 15, in writing , within 10 days from the date of this Order, what
steps the Respondents have taken to comply herewith."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found, after a
trial, that we violated Federal Law by making illegal threats
and warnings in speeches to our employees, and by
supervisory leadmen using procompany badges and
antiunion petitions to keep out a union:
WE WILL NOT threaten to close our plants if our
employees select a union.
WE WILL NOT threaten our employees with serious
harm if a union gets into our plants.
WE WILL NOT tell our employees it would be useless
to bring in a union because no agreement could be
reached short of a strike.
WE WILL NOT threaten our employees with strikes or
loss of jobs resulting from our response to unionization.
632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten never to rehire employees if
they go on strike and are replaced.
WE WILL NOT coercively ask our employees if they
have signed union cards.
WE WILL NOT permit our supervisory leadmen to pass
out procompany badges or buttons.
WE WILL NOT permit our supervisory leadmen to start
or circulate any antiunion petition among our employ-
ees, or permit such a petition to be placed on the
bulletin board.
WE WILL NOT unlawfully interfere with our employ-
ees' union activities.
BANCROFT MANUFACTURING
COMPANY, INC., CROFT
ALUMINUM COMPANY, INC.,
CROFT LADDERS, INC.,
CROFIT METAL PRODUCTS,
INC., AND LEMCO METAL
PRODUCTS, INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
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.
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's Office, T6024
Federal Building (Loyola), 701 Loyola Avenue, New
Orleans , Louisiana 70113, Telephone 504-527-6361.