Hoosier Cardinal Corp.

In the Matter Of HOOSIER CARDINAL CORPORATION, HOOSIER LAMP & STAMPING CORPORATION, AND CARDINAL CORPORATION and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO In the Matter of HOOSIER LAMP & STAMPING CORPORATION and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO Cases Nos. 14-C--865 and 14-R-611, respectively .Decided April 4, 1946 Mr. Ryburn L. Hackler and Miss Helen F. Humphrey, for the Board. Mr. William Sentner, of St. Louis, Mo., Mr. James Payne, of Evans- ville, Ind., and Mr. David Scribner, of New York City, for the U. E. Mr. Isidor Kahn, of Evansville, Ind., for the respondents. Mr. Paul H. Schmidt, of Evansville, Ind., and LaFollette and McCray, by Mr. Howard Sandusky, of Evansville, Ind., for the Metal Fabricators. Mr. Paul Bisgyer, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE Upon an amended charge duly filed on April 7, 1945, by United Electrical, Radio & Machine Workers of America, CIO, herein called the UE, the National Labor Relations Board, herein called the Board, by the Regional Director for the Fourteenth Region (St. Louis, Mis- souri), issued its complaint dated April 12,1945, against Hoosier Lamp & Stamping Corporation, Cardinal Corporation, and Hoosier Cardinal Corporation, Evansville, Indiana, herein called respectively the re- spondents Hoosier, Cardinal, and Hoosier Cardinal, alleging that the respondents had engaged in and were engaging in certain unfair labor practices affecting commerce within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint, together with notice of hearing thereon, were duly served upon the respondents, the UE, and Metal Fabricators Local No. 1, Inc. 67 N. L. R. B., No. . 692148-46-v of 67-5 49 50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to the unfair labor practices the complaint alleged, in substance, that the respondents in violation of Section 8 (1) and (2) of the Act : (1) initiated, formed, and sponsored labor organ- izations known, successively, as the Get-Together-Club, herein called the GTC, the Workers Council, herein called the Council, and Metal Fabricators Local No. 1, Inc., herein called the Metal Fabricators; (2) urged and persuaded their employees to join or assist the GTC, the Council, and the Metal Fabricators, and warned and threatened them with reprisals if they joined the UE or other outside unions; made disparaging and derogatory statements about the UE and other affiliated unions ; promulgated and discriminatorily enforced a rule prohibiting union solicitation on company time and property; ques- tioned their employees concerning employee activities on behalf of the UE; and (3) interfered with the employees' free choice of a bargaining representative at an election conducted by the Board on August 5, 1943. The respondents in a duly filed answer denied all allegations of unfair labor practices. The Metal Fabricators, in its petition for intervention, which was granted by the Chief Trial Ex- aminer on April 26, 1945, and in its duly filed answer, denied all allegations of the respondents' assistance, control, and domination of the Metal Fabricators. Upon due notice, a hearing was held from May 16 to 26, 1945, in- clusive, at Evansville, Indiana, before William E. Spencer, the Trial Examiner duly designated by the Chief Trial Examiner.' The Board, the respondents, the UE, and the Metal Fabricators were represented by counsel and participated in the hearing. Full oppor- tunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. A. motion for a bill of particulars filed by the respondents was granted in substantial measure. In its petition for intervention and again by oral motion at the beginning of the hearing, the Metal Fabricators moved to suppress all evidence based on or derived from certain documents which it alleged were obtained by means of an illegal search and seizure by Board agents.2 After taking evidence and hearing oral argument, participated in by the Metal Fabricators and the Board, the Trial 1 Pursuant to an order of the Board dated February 2, 1945, the hearing on Objections to the Election in Case No . 14-R-611 was consolidated with the instant Case No . 14-C-865. The objections were duly filed by the UE, alleging interference by the respondent Hoosier with the employees' free choice of a bargaining representative at an election conducted by the Board on August 5, 1943. The Trial Examiner properly overruled the Metal Fabri- cators' objections to the consolidation . Article III, Section 13 (c), and Article II, Section 36 (b), of National Labor Relations Board Rules and Regulations-Series 3, as amended. 2 The pertinent language of the Fourth Amendment to the Constitution upon which the parties rely in support of their motions, follows : "The right of the people to be secure in their persons, houses , papers, and effects against unreasonable searches and seizures shall not be violated. .. . HOOSIER CARDINAL CORPORATION 51 Examiner denied the motion. At the close of the Board's case and the hearing, the Metal Fabricators renewed its motion in which the respondents joined. The Trial Examiner denied these motions. The respondents and the Metal Fabricators also moved at the opening and closing of the Board's case and at the conclusion of the hearing, to dismiss the complaint on the ground that it was barred by the riders to the Appropriation Acts of 1944 and 1945. These motions were denied .3 At the close of the Board's case, the Trial Examiner denied motions by the respondents and the Metal Fabricators to dis- miss the complaint because it was not supported by substantial evi- dence. These motions were renewed at the conclusion of the hearing. The Trial Examiner reserved ruling thereon and later denied them in the Intermediate Report. Over the objections of the respondents and the Metal Fabricators, the Trial Examiner properly granted a motion of the Board's attorney to conform the pleadings to the proof with respect to names, dates, and other minor recitals. The Board has reviewed the rulings of the Trial Examiner on mo- tions and objections to the admission of evidence and finds that no prejudicial error was committed, except insofar as those rulings relate to the admissibility of certain documentary proof obtained by the Board's agent under the circumstances hereinafter discussed. Such rulings are hereby overruled. The remainder are hereby af- firmed. On July 4,1945, the Trial Examiner issued his Intermediate Report, copies of which were duly served upon all the parties, in which he found that the respondents had engaged in and were engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He recommended that the respondents cease and desist from their unfair labor practices, and that they disestablish and withdraw all recogni- tion from the Metal Fabricators. Exceptions to the Intermediate Report and supporting briefs were filed by the respondents and the Metal Fabricators. On December 13, 1945, the Board heard oral argument at Washing- ton, D. C. The respondents, the Metal Fabricators, and the UE ap- peared by counsel and participated in the argument. The Board has considered the exceptions to the Intermediate Report, the briefs filed, and the contentions advanced at the oral argument before the Board and, insofar as the exceptions are inconsistent with the findings, con- clusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: 3 In view of our disposition of the issues herein, we find that the riders to the Appropria- tion Acts of 1944 and 1945 are not a bar to this proceeding 52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENTS Hoosier Lamp & Stamping Corporation, an Indiana corporation with its principal office and place of business at Evansville, Indiana, came into existence as a legal entity on May 5, 1928, when Hoosier Lamp Works and the F. W. Goedeke Metal Stampings Works, joint enterprises owned by Thomas J. Morton, Jr., were incorporated un- der that title. It continued in existence as a separate corporate en- tity until its merger on or about July 1944, with Cardinal Corpora- tion, under the title of Hoosier Cardinal Corporation. During its separate corporate existence, it was engaged principally in the manu- facture and distribution of metal stampings and other metal products. During a typical 6-month period, it purchased raw materials valued in excess of $500,000, of which amount approximately 50 percent was transported to its plant from points outside the State of Indiana. During a similar typical 6-month period, it sold finished products valued in excess of $500,000, of which amount approximately 50 per- cent was transported from the plant to points outside that State. Cardinal Corporation, an Indiana corporation with its principal place of business at Evansville, Indiana, was incorporated under the title of Hoosier Development Corporation on August 14, 1936. On September 1, 1937, its title was changed to Cardinal Corporation, without an accompanying change iii its corporate structure. It con- tinued in existence until its merger with Hoosier in July 1944. At the time of the merger and for a substantial period prior thereto, a majority of Cardinal's common stock was owned by Hoosier,4 and Cardinal occupied premises jointly with or immediately adjacent to Hoosier. Cardinal, through its separate corporate existence, was en- gaged principally in the manufacture and distribution of plastic products. During a typical 6-month period, it purchased raw mate- rials exceeding $50,000, in value, of which amount approximately 50 percent was shipped to the Evansville plant from points outside the State of Indiana. During a similar typical period, it sold manu- factured products valued in excess of $50,000, of which amount ap- proximately 50 percent was shipped to points outside that State. Hoosier Cardinal Corporation was formed in July 1944 by a merger of Hoosier and Cardinal. as set forth above. It is engaged in the manufacture and distribution of both metal and plastic products and has its principal office and place of business at Evansville, Indiana. Hoosier Cardinal Corporation purchases annually raw materials "The June 1944 issue of "Hoosier Stampings," a plant publication of the respondent Hoosier , in announcing the merger , stated with reference to the respondent Cardinal • "This plastic molding and finishing industry has been operated as a subsidiaiy company to Hoosier " HOOSIER CARDINAL CORPORATION 53 valued in excess of $500,000, of which amount at least 50 percent is shipped to the Evansville plant from points outside the State of Indiana, and distributes manufactured products exceeding $500,000, in value, of which amount 50 percent or more is shipped from the Evansville plant to points outside that State. It is conceded that the respondents Hoosier and Cardinal engaged in, and the respondent Hoosier Cardinal is engaging in, commerce within the meaning of the Act.S II. THE ORGANIZATIONS INVOLVED United Electrical, Radio & Machine Workers of America, affiliated with the Congress of Industrial Organizations, and Metal Fabrica- tors Local No. 1, Inc., unaffiliated, are labor organizations admitting to membership employees of the respondents. Get-Together-Club, from its formation in 1933 until May 1937, and Workers Council from its formation in May 1937 until it was dis- banded on July 5, 1938, were unaffiliated labor organizations admit- ting to membership employees of the respondent Hoosier.6 III. THE UNFAIR LABOR PRACTICES A. Domination and support of the GTC, the Council, and the Metal Fabricators The record discloses that the GTC was formed in 1933 as a combined recreational and labor organization. It functioned in such dual ca- pacity until May 1937, when its labor functions were assumed by the Council. This latter organization was disbanded in July 1938 and, shortly thereafter, the Metal Fabricators came into existence and has continued to date as the bargaining representative of the respondent Hoosier Cardinal's employees. The Trial Examiner found that these organizations were company- dominated and assisted, existing in violation of Section 8 (2) and (1) of the Act, as alleged in the complaint. In reaching this con- clusion, the Trial Examiner substantially relied upon documentary proof, such as minutes and records, which were obtained by a Board agent, under the following circumstances. In 1943 the UE had filed unfair labor practice charges with respect to the relations between the respondent and the Metal Fabricators. 6 Findings relative to the business of the respondents are based on undisputed and credited testimony of Jack B Leaven , Assistant Secretary and Treasurei of respondent Hoosier Cardinal, and upon stipulations entered into by and between attoinevs for the Board and the respondents , respectively , and admissions of the respondents in their answer to the Board's complaint 's The record does not disclose whether affiliation of these latter organizations was extended to employees of the respondent Cardinal. 54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In December 1943 the Board's Regional agents served subpoenas daces teem on officers of the Metal Fabricators and on the respondents which required them to produce certain described minutes, documents, and records . The officers of the Metal Fabricators refused to produce the records and turned the matter over to counsel for the organization. He informed the Regional Office that he would produce these records only upon certain conditions (which the Regional Office was un- willing to grant), unless he was ordered to do so by a court. The matter was apparently dropped for more than a year, and no attempt was made by the Board to enforce the subpoenas. Sometime during the following year, one Willie Schneider, who was secretly an active member of the UE , was elected secretary-treasurer of the Metal Fabricators. By virtue of his office he came into possession of the records of the latter organization. Early in 1945 one James Payne , the field organizer for the UE, charging union , in Evansville, Indiana, communicated with the Re- gional Office of the Board in St. Louis and advised our representatives that Schneider would permit the Board to see the records of the Metal Fabricators. As a result of this communication, on February 15, 1945, an agent of the Board came to Evansville and, accompanied by Payne, went to the home of Schneider and obtained from him the Metal Fab- ricators' records. The Board agent took all these books, papers, and records with him to his hotel room, examined them, had photostatic or other copies made of many of them , and then returned the originals to Schneider. Thereafter, additional subpoenas were issued by the Board upon officers of the Metal Fabricators , requiring that certain documents be produced at a downtown . hotel in Evansville. Two Board agents drove in to Evansville by automobile from the St. Louis office, stopped at the home of Schneider and again took possession of the books, papers, and records. They left a copy of the subpoena with Schneider. The Board agents then returned to St. Louis, al- though the subpoenas which had also been served on other officers of the intervening union were returnable in Evansville the next day. The documents thus obtained form the bulk of the evidence sup- porting the finding of the Trial Examiner that the respondents ini- tiated, formed, and sponsored the GTC, the Council, and the Metal Fabricators in violation of Section 8 (2) of the Act. The respondents and the Metal Fabricators objected unsuccessfully to the admission of this evidence at the hearing, on the ground that it was obtained by an illegal search and seizure by Board agents in contravention of the Fourth Amendment of the United States Constitution. The Trial Examiner's ruling admitting this evidence is now before the Board on their exception. HOOSIER CARDINAL CORPORATION 55 Although all parties have cited cases in support of their respective contentions, none of the authorities on illegal searches and seizures seems to be clearly applicable to the circumstances revealed by this record. Without passing upon the question, therefore, as to whether any constitutional rights were invaded, we have unanimously decided to overrule the Trial Examiner and reject the evidence obtained through the methods already described. Even where, as here, we do not question the integrity or motives of our agents, we prefer not to rely upon evidence obtained by such methods. It is better that there be a failure to take full advantage of such dubious opportunities than that Government, which "teaches the whole people by its example, * * * should play an ignoble part."- As an administrative agency having both investigating and judicial duties, this Board must exact the highest standards of conduct from its investigating officers. Congress has vested this Board with authority to issue subpoenas, and has provided a means for enforcing them judicially when they are not complied with. It seems to us that, under these circumstances, the Board agents should have used the methods prescribed by the statute, in view of the fact that they not only were aware of the official po- sition of the Metal Fabricators with respect to the non-production of the records, but also that they knew they would not have been allowed -voluntary access to them except for the secret connection between Schneider, the secretary-treasurer of the Metal Fabricators, and the charging UE. While this is a complaint case, it is consolidated with a representa- tion case to which the charging union is a party. Under these circum- stances, it was particularly encumbent upon the agents of the Board, however unimpeachable their motives, to refrain from any appearance of surreptitious dealing with one of the parties. We are therefore con- strained to disregard the Trial Examiner's recommendation that a finding of violation of Section 8 (2) should be made and will remand this phase of the case to the Region for further proceedings. Inas- much as the evidence relating to the other allegations of the complaint, charging other acts of interference, restraint, and coercion of its em- ployees in violation of Section 8 (1) of the Act, was not derived from the documents thus procured, we shall hereinafter dispose of the is- sues, without further hearing. Accordingly, in order best to effectuate the purposes of the Act, we shall direct that the allegations of the complaint adjudicated in this Decision be severed from the remaining allegations that the respond- ents violated Section 8 (2) and (1) of the Act by initiating, forming, and sponsoring the GTC, the Council, and the Metal Fabricators, and that the issues thereon be tried de Novo in a new hearing. 6- Brandeis and Holmes, JJ., dissenting, in Olmstead v. U. S., 277 U. S. 438, 470, 485. 56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Interference, restraint, and coercion' Sequence of events In the spring of 1941, the UE initiated its first organizational drive among the respondent Hoosier's employees. Shortly thereafter, it re- quested recognition as the representative of a majority of its em- ployees. No reply having been received, the UE, on June 9, 1941, filed a petition for certification with the Board. This petition was later withdrawn. After a period of time, the UE suspended its organiza- tional activities until the latter part of 1942, when it revived its cam- paign. On April 3, 1943, following the respondent Hoosier's refusal to accord recognition to the UE, the UE filed another representation petition in Case No. 14-R-611, involved herein. On August 5, 1943, pursuant to a Decision and Direction of Election issued by the Board,' an election was held which resulted in the UE's defeat by a vote of 248 for, to 912 against.9 Thereafter, the UE filed objections to the elec- tion, alleging the respondent Hoosier's interference with its employees' free choice of a bargaining representative. Acts of interference, restraint, and coercion Employee John G. Stone credibly testified, without contradiction,' as follows : In May 1941, the pressroom employees sought a 10 cent hourly wage increase. Dissatisfied with the representation they were receiving through the Metal Fabricators, they held a meeting during the latter part of May in a public park where they were addressed by representatives of two affiliated unions. Following this meeting, this group of employees joined the UE. On the next day, Walter Doebling, foreman of the pressroom, questioned Stone, who was present at the meeting and affiliated with the UE, concerning the meeting and the identity of employees attending it. Doebling told Stone : "Well .. . I don't see what you want with an outside union. Any time you have anything you want, just come to me . . . and I can do you as much good as an outside union can." Thereafter, employees of the-press department conferred on several occasions with Doebling and other representatives of management concerning a departmental wage in- crease. The record also discloses that on May 20, 1941, the UE, as part of its organizational campaign, distributed circulars outside the respond- 'All findings herein, unles' otherwise specifically noted, are based on undisputed and credible testimony of Board witnesses. At the conclusion of the Board's case, the respond- ents rested without calling any witnesses . The Afetal Fabricators called one witness. 8 Matter of Hoosier Lamp & Stamping Corporation, 51 N L R B. 156 B Although duly served with Notice of Hearing in the representation proceeding, the Metal Fabricators neither appeared therein, nor sought to have its name placed on the ballot HOOSIER CARDINAL CORPORATION 57 ent Hoosier's plant demanding 10 cents an hour increase in basic wage rates. The circulars reproduced a letter which the UE had sent to the respondent's president containing their demand. On June 4, the Metal Fabricators made its first formal request of management for a 10 cents an hour increase for press operators at a meeting which appears to have been attended by employees of the press department and by the Metal Fabricators' president. On the next day, the re- spondent agreed to grant a 5 cents an hour increase 10 Not long there- after, the UE suspended its organizational activities until the latter part of 1942. Employee Odelia Hildebrand, whom we credit, as did the Trial Examiner, testified that shortly after Thomas Girvin, the former organizer and president of the Metal Fabricators, became the labor relations director of the respondent Hoosier in 1942,11 he summoned her to his office and asked her whether she was aware of his new position. After requesting Hildebrand not to repeat their conversa- tion, he questioned her concerning her attitude toward the Metal Fabricators. He then advised her that he was the founder of that organization, that his job would be "endangered" if an outside union succeeded in organizing the plant, and urged her "to get out there and pitch for the Metal Fabricators." Hildebrand also testified that in or about January 1944, Thomas Girvin again summoned her to his office and, in the presence of his secretary Jessie Smith, told her that certain appointments were being made to the position of inspector and that he had three names which he was considering. After asking her if she was interested, he stated that the company "tried to cooperate with the Metal Fabricators in giving these people the jobs." Since Hildebrand was not at that 10 A parallel situation arose with reference to it night shift bonus. Julius Trageser, a witness for the Metal Fabricators, testified that the Metal Fabricators requested a bonus for employees of the night shift as early as July 20, 1942 , and repeated the request in August when it was advised by management that further discussion of the request would be post- poned until the shifts had been "stabilized " On October 5, 1942 , the Metal Fabricators repeated its request , but received no reply thereon until January 15, 1943, when it was advised that in order to effectuate the increase it would be necessary to file a joint request with the War Labor Board In the interim , between October 5, 1942, and January 15, 1943, the UE, as part of a renewed organizational drive , had on November 4, 1942, distributed a handbill to employees outside the respondent 's plant calling for a night shift bonus of "at least 10%." 11 Thomes Girvin was elected president of the Council in March 1938, and in July of that same year engineered and promoted the formation of the Metal Fabricators . He served as its president from its inception until he left the respondent Hoosier's employ for a few months during late 1941 or early 1942 to become an instructor in the local Mechanics' Art School, apparently under the respondent 's sponsorship , He returned to the respondent's employ in 1942 as employment manager and , after December of that year, was its labor relations director, until June 1944 when he left the respondent's employ In this latter position , he represented management in the execution of its labor policies , including the handling of grievances submitted through the Metal Fabricators. All statements hereinafter attributed to Thomas Girvin were made while he was labor relations director 58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD time a member of the Metal Fabricators,12 Girvin advised her that she had "just about a half an hour in which to go out and sign a card" in the Metal Fabricators if she wanted the job. Thereupon, he referred her to his cousin Edward Girvin, who was then an offi- cer or representative of the Metal Fabricators. Following Thomas Girvin's suggestion, Hildebrand affiliated with the Metal Fabrica- tors and the same month was promoted to the position of inspector. The respondents' determination to prevent the UE from estab- lishing itself in the plant is further reflected in the following two incidents. On July 19, 1944, Theodore Dockery submitted his resig- nation as president of the Metal Fabricators. When this fact came to the attention of W, R. Harrell, who had succeeded Thomas Girvin as labor relations director, Harrell told Edward Girvin, the then vice president of the organization, that he regretted the "difficulty" which had arisen within the Metal Fabricators and that if Dockery's resignation became effective, the Metal Fabricators "would be lost and the CIO would have us." Dockery's resignation was rejected at the meeting of the Metal Fabricators that same evening and, up to the time of the hearing before the Trial Examiner, he was serv- ing as president of that organization. In September 1944, after the Metal Fabricators had voted to dismiss Paul H. Schmidt as their attorney, Harrell informed Edward Girvin that he was sorry to learn of this action because Schmidt was the "backbone" of the or- ganization and his discharge would cause "the [Metal Fabricators] to go."" Schmidt was not dismissed at that time and he represented the Metal' Fabricators at the hearing before the Trial Examiner 14 The no-solicitation rule In June 1941, the respondent Hoosier promulgated the following no-solicitation rule which was still in effect at the time of the hearing before the Trial Examiner 15 There shall be no solicitation of employees at any time upon Company property for the purpose of inducing one or more of " Hildebrand admitted that she was a member of the UE at the time when she also held membership in the Metal Fabricators , and that she reported to UE organizers on the Metal Fabricators' meetings and activities . She also made written memoranda of certain conver- sations she had with the respondents ' supervisors. Her testimony concerning her conversa- tions with Girvin was undisputed and convincing and is credited by us. " These findings are based on Edward Girvin 's credible and undisputed testimony. Edward Girvin, at the time of the hearing , had affiliated with the UE. It is clear, however, that formerly he had been one of the leaders and foremost advocates of the Metal Fabrica- tors. Harrell, though testifying, did not deny the statements and conduct attributed to him by Edward Garvin . Dockery, though available as a witness , did not testify. 34 Edward Girvin testified that Schmidt was retained because the Metal Fabricators did not have sufficient funds to hire a new lawyer. 16 Harrell testified that the rule was in force when he became labor relations director and continuously thereafter to the present. The same rule, with modifications which do not affect the issue here, is contained in the respondent's policy handbook, At work," published in November 1943. HOOSIER CARDINAL CORPORATION 59 such employees to join any organization or for the purpose of obtaining from one or more of such employees a contribution for any purpose, unless, in each instance, written permission shall have been obtained from the Management. Anyone violating this rule will be subject to discipline and may be discharged. [Italics supplied.] This rule was broad enough to forbid union solicitation on the respondent's premises during the employees' non-working time. No showing was made that the rule was necessary in order to maintain production or preserve plant discipline. As we have previously held in numerous decisions,'° the prohibition against union solicitation on company premises on the employees' non-working time consti- tutes an unwarranted interference- with the employees' self-organiza- tional rights guaranteed by the Act. The restraint is not cured in this case by the qualification, "unless, in each instance, written per- mission shall have been obtained from the Management." On the contrary, so qualified, the rule exercises a still greater restraining influence due to the natural reluctance of employees to disclose to their employer their interest in a union.- Moreover, the promulgation of the rule at this time necessarily handicapped the UE, which was trying to gain a foothold in the plant, more than it did the Metal Fabricators, which was already entrenched in the plant, and thereby impeded the employees in the exercise of their right to transfer their allegiance from the Metal Fabricators to the UE18 The record also discloses, and we find, that the respondent dis- criminatorily enforced its no-solicitation rule. Thus, vppresentatives of the Metal Fabricators were permitted to collect dues openly and without hindrance from management during working hours. That the respondent had knowledge of this practice, and approved and encouraged it, is not only a reasonable inference to be drawn from its open and continuous character, but is shown in the undisputed and credible testimoy of Edward Girvin. He testified that during the course of a conversation with Labor Relations Director Thomas Girvin, the latter told him that "if the [Metal Fabricators] had trouble with any of the foremen kicking on representatives collecting dues to let him know the name of the foreman and he would see that it was stopped." 19 Moreover, as will hereinafter be discussed, the 19 See, e. g, Matter of Bonita Fruit Company, Inc., et at., 64 N. L. R. B. 172; Matter of Enid Cooperative Creamery Association , 63 N. L. R B. 728; Matter of Union Manufacturing Company, 63 N. L. it. B. 254; Matter of Alabama Fuel d Iron Company , 62 N. L. R. B. 762: Matter of Keystone Steel d Wire Company, 62 N. L. It. B. 683; Matter of May Department Stores Company , 59 N. L. it. B. 976. 17 See Matter of Tomlinson of High Point, Inc., 58 N. L. It. B. 982. - Matter of Keystone Steel d Wire Company, supra "' Julius Trageser, a witness called by the Metal Fabricators , testified that the BE also solicited during working hours. Specifically, however, he was able to recall the name of 60 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD respondent permitted the Metal Fabricators, in flagrant disregard of its rule, to campaign against the UE in the plant during working hours for a no-union vote in the election held on August 5, 1943. In view of the pointed timing in the promulgation of the rule, the scope of its prohibition, and the discriminatory manner in which it was applied, we find that the rule was promulgated and applied in order to impede employee self-organization; that extension to the employees' non-working time of the prohibition against union solici- tation constitutes an unreasonable impediment to self-organization ; and that, in its scope, purpose, and application, the rule interfered with, restrained, and coerced the employees in the exercise of the rights guaranteed in Section 7 of the Act. Election interference As noted above, an election under Board auspices was held on August 5, 1943, which the UE lost. The UE filed objections to the results of the election, and charges upon which the complaint herein is predicated, alleging, inter alia, that the respondent Hoosier had interfered with the employees' free choice of a bargaining repre- sentative. The record discloses, and we find, that, although the respondent normally accorded slight notice to the Metal Fabricators in its policy handbook and other publications, during the period of the UE's 1943 organizational drive resulting in the August 5 election, other issues of its publications made conspicuous and laudatory mention of the Metal Fabricators. For example, in the March 1943 issue of "Hoosier Stal'llpings," the front page carried an article giving credit to the Metal Fabricators for a night shift premium granted by the War Labor Board upon the joint application of the respondent and the Metal Fabricators; 20 and the July 1943 issue of this publication reproduced a speech delivered by the respondent's president Morton, Jr., which praised the Metal Fabricators as partly responsible for the award of the second Navy "E"; although other issues omitted such mention when prior and subsequent awards were made during periods when the UE was inactive. Morton, Jr., in the July issue also cited the award as proof that American workers were sincere and respons- ible "when not hampered or obstructed by selfish and arrogant leadership." only one emplo}ee whom he had observed engaging in this practice on behalf of the FE, and that emploiee Willie Schneider was also affiliated with and an officer of the Metal Fabricators. We find that there was no comparable activity by the UE from which knowledge and approval of management might reasonably be inferred. 29 Under subtitle : "'Metal Fabricators Local No. 1 Wins Approval of War Labor Board," the text caries management's thanks "for their assistance in the negotiations for this premium. . . . I HOOSIER CARDINAL CORPORATION 61 In sharp contrast with its friendly and patronizing attitude toward the Metal Fabricators and its predecessors in the respondents ' dealing with these organizations, the respondent Hoosier manifested its hos- tility to the UE, and sought to induce its employees to reject the UE at the polls. Between July 8, 1943 , the date of the Board 's Decision and Direction of Election and August 5, the respondent's president, Morton, Jr., addressed three letters to Hoosier employees in which he expressed his opposition to the UE and appealed to them to continue their past harmonious relations and thereby , in effect, urged them to maintain the Metal Fabricators as their bargaining representative.21 The respondent permitted the Metal Fabricators to campaign against the UE in the plant , in violation of its no-solicitation rule. Thus, according to the credible testimony of Edward Girvin, he elec- tioneered against the UE on company time and property for about 3 nights before the election , without objection from the respondent. Employee Mary M. Curry credibly testified that 2 days before the election, Edward Girvin introduced himself as a representative of the Metal Fabricators to a group of women employees during the latter's working hours and, in the presence of Ed Foltz, the foreman of the department, told them that if the UE won the election they would have to work with Negroes, that they would be out on strike most of the time and would lose time and hold up production . The witness, who was one of the employees thus addressed by Girvin, replied that she did not see anything wrong in working with Negroes , that "they had to work the same as we did." When Girvin had left the depart- ment, Foltz told Curry : "Well, Mary, if the CIO gets in and the niggers come to work in here, I want to find the biggest , fattest nigger I can find and put her to work with you." During this same period and later, the respondent allowed Dockery, president of the Metal Fabricators , great latitude in leaving the plant during working hours and without punching his time card. On at least some of these occasions , Dockery engaged in election or other union activities on behalf of the Metal Fabricators.22 Edward Girvin testified credibly and without contradiction that, on several occasions when lie observed Dockery thus absent himself from the plant, he reported the matter to Labor Relations Director Harrell , but that Dockery, nevertheless , continued thereafter to leave the plant as he a^ In the July 14 letter, Morton, Jr., in effect , described the UE's methods as contrary to the "harmonious give -and-take, the typically American way, that you have been accustomed to here at Hoosier," and compared the UE with Nazis, Fascists , and Communists, who resort to force to achieve their ends . In the August 3 letter, he interpreted the election as a means whereby the employees would decide whether they want the UE for their bargaining representative or whether they "want to continue as [they] have been doing." As previously noted , the Metal Fabricators did not seek a place on the ballot z' Elvis E. Swan , a field organizer for the UE , testified without contradiction that he observed Dockery outside the plant several days prior to the election distributing anti-UE circulars which the Metal Fabricators had issued, and that Dockery told him that he was not working. 62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD had theretofore. It is clear therefrom that the respondent had knowl- edge of this practice and approved it. On election day, during the hours of balloting, Dockery, Tragreser, Dockery's predecessor in the office of president, James Weikel, a repre- sentative, and others identified with the Metal Fabricators, absented themselves from work for a portion or all of their respective work shifts for the purpose of electioneering against the UE. In streets adjacent to the polling place and near the plant, they carried placards or banners opposing the UE and warning that employees would lose their vacation and bonus payments if the UE won. Throughout the day, they entered and left the plant at will and, while inside the plant, moved freely among the employees and engaged them in con- versation 23 Concluding findings From the outset of the UE's organizational drive in 1941, the re- spondents engaged in conduct designed to discourage its employees from affiliating with the UE. This is manifested, among other things, in Foreman Doebling's questioning of employee Stone regarding the meeting at which employees became members of the UE and the iden- tity of those joining that organization, Doebling's disparagement of the need for such affiliation, Labor Relations Director Thomas Girvin's interrogation of employee Hildebrand concerning her attitude toward the Metal Fabricators, and his offer of a promotion if she joined the Metal Fabricators. In addition, at a cruicial time in the UE's organi- zational campaign and after the Metal Fabricators had become firmly entrenched in the plant, the respondent promulgated an illegal no- solicitation rule which necessarily impeded the employees in the ex- ercise of their right to transfer their allegiance from the Metal Fabri- cators to the UE. That this rule was primarily intended to thwart only the UE's campaign is apparent from the fact that, despite the existence of this rule, the respondent permitted, and evidently ap- proved, the Metal Fabricators' open and continuous solicitation and electioneering on company time and property. Finally, when the Board directed that an election be held to afford the respondent Hoosier's employees an opportunity to express their desires with re- spect to representation, the respondent Hoosier assumed a partisan role opposing the UE,24 which it effectively implemented by extending 13 Payne and Swan credibly testified that they observed Dockery, Trageser, and Weikel entering and leaving the plant at intervals throughout the day. They further testified that through the 25-foot opening of a roll-up door, they could see these same employees going from machine to machine inside the plant conversing with the employees who were at work. Neither Dockery nor Weikel testified. Trageser admitted that he was absent from work on election day in order to electioneer against the Uli' but testified that he entered the plant only "about twice" to visit the rest room. _' We do not find it necessary to pass upon whether the Morton , Jr., pre-election letters are violative of the Act. We have considered the letters , however, as indicative of the HOOSIER CARDINAL CORPORATION 63 special privileges to the Metal Fabricators to campaign against the UE on company time and property, in disregard of its no-solicitation rule. Moreover, contrary to its normal practice, the respondent Hoosier at that time conspicuously praised the Metal Fabricators in its publications. Accordingly, we find that the respondents, by the foregoing acts, interfered with, restrained, and coerced their employees in the ex- ercise of the rights guaranteed in Section 7 of the Act. We find fur- ther that, in view of the fact that the respondent Hoosier engaged in unfair labor practices prior to the election of August 5, 1943, the elec- tion was not an expression of the will of an uncoerced majority of the employees. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the respondents, set forth in Section III, above, occurring in connection with the operations of the respondents de- scribed in Section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THB REMEDY Having found that the respondents have engaged in certain unfair labor practices, we shall order the sole surviving corporation, Hoosier Cardinal, to cease and desist therefrom. We have found that the no- solicitation rule is violative of the Act insofar as it prohibits union solicitation on the respondent's property during the employees' non- working time. We shall, accordingly, order the respondent Hoosier Cardinal immediately to rescind this rule to this extent. VI. THE PETITION Since we have found that the respondent Hoosier has by its unfair labor practices interfered with the free choice of representatives by its employees at the election of August 5, 1943, we shall set the election aside. However, in view of the fact that almost 3 years have elapsed since the UE filed its petition for representation, we shall dismiss the petition without prejudice to a determination upon the new petition which is now pending before the Board 25 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Board makes the following: respondent Hoosier's opposition to the UE and its desire that the employees reject the UE at the polls, thereby continuing the Metal Fabricators as their bargaining representa- tive. See Matter of Ross Gear and Tool Company, 63 N. L. it. B. 1012. ?' The records of the Board disclose that the UE filed a new petition in Case No. 11-R-887 which is now pending. 64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW 1. United Electrical, Radio & Machine Workers of America, affili- ated with the Congress of Industrial Organizations, and Metal Fabri- cators Local No. 1, Inc., unaffiliated, are labor organizations within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act, the respondents have engaged in and are engaging in unfair labor prac- tices, within the meaning of Section 8 (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Hoosier Cardinal Corporation, Evansville, Indiana, and its officers, agents, successors, and assigns shall : 1. Cease and desist from: (a) Interrogating its employees concerning union affiliation, activi- ties, or sympathies; (b) Offering inducements to its employees for the purpose of en- couraging or discouraging membership in any labor organization; (c) Promulgating a rule which prohibits union solicitation or activ- ity on company property during the employees' non-working time; (d) Discriminatorily promulgating or applying a no-solicitation rule; (e) Interfering with its employees in the exercise of the rights guaranteed in Section 7 of the Act to select United Electrical Radio & Machine Workers of America, CIO, or any other labor organization as their collective bargaining representative. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Rescind immediately the rule prohibiting union solicitation or activity on company property, insofar as it applies to the employees' non-working time; (b) Post at its plant at Evansville, Indiana, copies of the notice at- tached hereto, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, after being duly signed by the respondent Hoosier Cardinal's repre- sentative, be posted by the respondent immediately upon receipt thereof, and maintained by it for sixty (60) consecutive days there- HOOSIER CARDINAL CORPORATION 65 after, in conspicuous places, including all places where 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 : (c) Notify the Regional Director for the Eleventh Region (Indi- anapolis, Indiana) in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS HEREBY FURTHER ORDERED that the allegations of the com- plaint, insofar as they relate to the independent violation of Section 8 (1) of the Act, upon which our Order herein is based, be, and they hereby are, severed from the remaining allegations of the complaint; AND IT IS HEREBY FURTHER ORDERED that the record in this proceed- ing be, and it hereby is, reopened for the purpose of a new hearing upon the remaining allegations of the complaint; AND IT Is HEREBY FURTHER ORDERED that this proceeding be referred to the Regional Director for the Eleventh Region for the purpose of such new hearing, and that the said Regional Director be, and he hereby is, authorized to issue notice thereof; AND IT 1S HEREBY FURTHER ORDERED that the election held on August 5, 1943, among the employees of the respondent Hoosier be, and it hereby is, set aside , and that the petition in case No. 14-R-611 be, and it hereby is, dismissed. APPENDIX A 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 union af- filiation, activities, or sympathies. We will not offer inducements to our employees for the purpose of encouraging or discouraging membership in any labor organi- zation. We will not promulgate a rule which prohibits union solicita- tion or activity on company property during our employees' non-working time. We hereby rescind the rule prohibiting union solicitation or activity on plant property insofar as it applies to the employees' non-working time. We will not discriminatorily promulgate, invoke, or enforce a no-solicitation rule. We will not interfere with the self-organizational rights of our employees to select United Electrical, Radio & Machine Workers 692148-46-vol 67--6 66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD of America, CIO, or any other labor organization as their col- lective bargaining representative. All our employees are free to become or remain members of the above-named or any other labor organization. THE HOOSIER CARDINAL CORPORATION, Employer. Dated---------------- By-------------------- ------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material.