General Motors Corp.

In the Matter of GENERAL MOTORS CORPORATION , ROCHESTER PRODUCTS DIVISION and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO Case No. 3-C-848.-Decided March 31,1947 Mr. Philip Licari, for the Board. Mr. Henry M: Hogan, by Messrs. Harry S. Benjamin, Jr., and Wil- liam J. Oldani, of Detroit, Mich., for the respondent. Miss Katherine Hull and Mr. Hugh Harley, of Rochester, N. Y., for the Union. Mr. Julius Topol, of counsel to the Board. DECISION AND ORDER On August 8, 1946, Trial Examiner Charles E. Persons issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease' and desist therefrom and take certain affirmative action, as set forth in the copy of the In- termediate Report attached hereto. Thereafter, the respondent and counsel for the Board filed exceptions to the Intermediate Report and supporting briefs. On January 5, 1947, the Board, at Washington, D. C., heard oral argument in which the respondent participated.,, The Board has reviewed the rulings of the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rul- ings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, the Union's memorandum in lieu of oral argument and the respondent's reply thereto, and the entire record in the case, and finds merit in the respondent's exceptions. The Trial Examiner found that Personnel Manager Snyder's state- ment to employee Scales, "that the Union would never get in and 1 On January 9, 1947, the Union filed a motion for leave to submit a memorandum in lieu of oral argument, stating that it had failed to appear at the oral argument because of a misapprehension as to the time at which oral argument was to be heard, and, on that date, it submitted a memorandum for the Board's consideration. On January 14, 1947, the respondent filed its opposition to the Unipn 's motion and submitted a reply to the Union's memorandum. The Union's motion is hereby granted. 73 N. L. R. B., No. 11. 74 GENERAL MOTORS CORPORATION 75 that they had a different class of people working there," coerced Scales in the exercise of the rights guaranteed under the Act. While we agree that this remark revealed an anti-union attitude, we are of the opinion that, on the state of the record herein, Snyder's statement was not coercive and hence that it was protected by the constitutional guarantee of free speech. The Trial Examiner also found that Supervisor Vollick's anti- union statements to Scales, in the course of their repeated arguments concerning unionism, interfered with, restrained, and coerced the respondent's employees in violation of Section 8 (1) of the Act. We do not agree. Under all the circumstances, we are of the opinion that Vollick's statements in the course of such arguments, as set-forth in the Intermediate Report, do not warrant a finding that Vollick's con- duct was coercive. Nor do we agree with the Trial Examiner's finding that, as a result of a statement made by Foreman Marriott to employee Pardee on September 28, 1945, the respondent interfered with, restrained, and coerced its employees in violation of Section 8 (1) of the Act. On that date, Marriott told Pardee "that [he] was foolish to belong to the Union and that [he] wasn't supposed to talk about the Union or solicit members in the Union on company property at any time." Had the respondent promulgated a rule prohibiting solicitation of union members by employees on company property during their non- working time, it would clearly be in violation of the Act, absent a showing of circumstances requiring such a rule.2 However, shop rule 21 of the rules promulgated by the respondent, by means of bulletins posted throughout the plant and information booklets issued to em- ployees, forbids "soliciting or collecting contributions for any purpose whatever on company time." Marriott's statement to Pardee was the sole instance in which any management representative stated that the restriction on soliciting applied not only to working time, as stated in rule 21, but to non-working time as well.3 In view of the wide degree of publicity given to the respondent's shop rule 21, and in the absence of any evidence that the respondent authorized or ratified Marriott's statement, we are of the opinion that the employees had no reasonable basis for believing that Marriott's statement to Pardee reflected the respondent's policy. Marriott's statement is, therefore, not attributable to the respondent. ' See Republic Aviation Corporation v. N L. R. B , 324 U. S. 793, enf 'g 51 N. L R B. 1186 'There is testimony by Pardee that, on a different occasion, Personnel Manager Snyder had stated that the respondent's rules prohibited soliciting union members or talking about the Union on company propeity at any time Snyder, however, denied having made such statement The Trial Examiner did not credit Pardee's testimony in this regard. We adopt the Trial Examiner's resolution of the conflicting testimony. 76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Finally, the Trial Examiner found that, by Personnel Manager Snyder's conduct in presenting an anti-union leaflet for Scales' con- sideration, by Snyder's statement to employee LeMoyne that "there was no outside organization going to run this shop," and by Super- intendent Brawn's suggestion to LeMoyne that "if [he] didn't like [his] job, why didn't [he] quit," the respondent interfered with, re- strained, and coerced its employees within the meaning of Section 8 (1) of the Act. While similar conduct and statements have been found, under certain circumstances, to be violative of the Act, we note that, in the instant case, there is no showing of any other conduct on the part of the respondent, violative of the Act, which would import into the statements and conduct in question a coercive quality. Ac- cordingly, we disagree with the Trial Examiner's findings referred to in this paragraph. In his exceptions to the Intermediate Report, counsel for the Board contends that the Trial Examiner should have found that the respond- ent's shop rule 22 is a violation, per se, of the provisions of Section 8 (1) of the Act. We find no merit in this contention. Shop rule 22 provides that it shall be sufficient ground for disciplinary action, in- cluding discharge, "to distribute or circulate literature, petitions, or written or printed matter of any description on company premises." There is no evidence here that rule 22 was discriminatorily adopted or enforced, or that enforcement of the rule impeded the employees' exercise of the right of self-organization. In the absence of these factors, we cannot find that the rule is improper under the Act.' Inasmuch as we have reversed all the Trial Examiner's findings of unfair labor practices, and in view of the fact that we agree with his findings and conclusions with respect to the allegations of the com- plaint as to which he recommends dismissal, we shall dismiss the complaint in its entirety. ORDER Upon the basis of the foregoing findings of fact and the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the complaint against the respondent, General Motors Corporation, Rochester Products Division, Rochester, New York, be, and it hereby is, dismissed. CHAIRMAN HE, RZOG took no part in the consideration of the above Decision and Order. 4 See Matter of Le Tourneau Company of Georgia , 54 N. L R. B. 1253, enf'd in 324 U S 793 6 See Matter of Tabxn-Picker & Co , 50 N L. R. B 928, 930; Matter of North American Aviation, Inc, 56 N. L. R B. 959, 961-965 ; Matter of Goodyear Aircraft Corpow ation, 57 N L It. B. 502, 508. GENERAL MOTORS CORPORATION INTERMEDIATE REPORT 77 Philip Licari, Esq., for the Board. Henry 11[ Hogan, Esq., by Haiiij S. Benjamin, Jr., Esq, and William J. Oldan-i, Esq, all of Detroit, Mich , for the Respondent. Miss Katherine Hull and Hugh Hurley, Esq, both of Rochester, N. Y., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on June 10, 1946, by the United Electrical, Radio and Machine Workers of America, CIO, herein called the Union, the National Labor Relations Board, herein called the Board, by its Regional Director for the Third Region (Buffalo 2, New York), issued its complaint dated June 10, 1946, against General Motors Coiporation, Rochester Products Division, herein called the Respondent, alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies of the complaint and notice of hearing thereon were duly served upon the Respondent and the Union. With respect to the unfair labor practices, the complaint alleges in substance that the Respondent by: (a) threatening its employees with discharge if they engaged or continued to engage in soliciting union membership on company premises, even though such solicitation is conducted during the employees' non- working time; (b) interrogating its employees about their union affiliation; (c) urging, persuading and warning its employees not to jour the Union; (d) making disparaging and derogatory remarks to its employees about the Union, its mem- bers and representatives; (e) engaging in espionage and surveillance of its employees, interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act and engaged in unfair labor practices within the meaning of Section 8 (1) of the Act. On or about June 20, 1946, the Respondent duly filed its answer in which it admits the facts alleged in the complaint as to its corporate organization, and the character and extent of its business, and that the Union is a labor organization within the meaning of Section 2 (5) of the Act. However, the Respondent denies that it has committed any of the -unfair labor practices alleged by the complaint. Pursuant to notice a hearing was held on June 26 and 27, 1946, at Rochester, New York, before the undersigned, Charles E. Persons, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the Respondent were represented by counsel and the Union by two of its officials Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. On or about June 20, 19465, the Respondent filed a motion for a Bill of Par- ticulars On June 24, 1946, George Bokat, a duly appointed Trial Examiner, issued telegraphic orders granting the request in part and denying it in part. On June 25, the Board's counsel in the instant proceeding, Philip Licari, gave Respondent's counsel the required information by telephone. This statement he repeated on the record at the opening of the hearing. The Respondent there- upon moved that the Board be required to supplement its statement with certain additional particulars. This motion was denied. At the conclusion of the Board's presentation, the Respondent moved to dismiss the several allegations of the complaint and the complaint in its entirety, alleging failure by the Board in sustaining the burden of proof. This notion was denied. It was renewed at the conclusion of the hearing at which time it was taken under advisement and is now disposed of by the findings, conclusions, and recommendations presented in 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD this Intermediate Report. During the Respondent's presentation the Board moved to reopen its case and present certain matters pertaining to the service of a subpoena. This motion was denied. At the close of the hearing, the Board moved to conform the pleadings to the evidence presented as to minor matters. This motion was granted without objection. The Board and the Respondent engaged in oral argument, duly entered upon the record, before the undersigned. The parties were informed that they had the privilege of presenting briefs for the consideration of the Trial Examiner . The Respondent duly submitted such a brief. Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 1 The Respondent, General Motors Corporation, is a corporation duly organized under the statutes of the State of Delaware It maintains its principal business offices in New York City and in Detroit, Michigan. At its plant, known as the Rochester Products Division, with which the instant proceeding is concerned, it is engaged in the manufacture, sale and distribution of automotive parts and related products. This plant has its principal office and place of business at Rochester, New York. During the 12 months preceding June 10, 1946, the Rochester Products Division purchased raw materials, products and supplies, valued in excess of $1,000,000, from plants outside the State of New York. During the same period this plant manufactured products valued at more than $1,000,000, a substantial part of which was shipped to plants outside the State of New York. The Respondent does not contest the jurisdiction of the Board. The undersigned finds that it is engaged in commerce within the meaning of the Act. II. THE ORGANIZATION INVOLVED United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations , is a labor organization admitting to its membership employees of the Respondent. III. THE UNFAIR LABOR PRACTICES A. Background The Rochester Products Division plant was engaged in war production during the war. Its maximum work force, so far as the record reflects, was approxi- mately 5500 employees. Immediately after VJ day extensive lay-offs occurred. By January of 1945 the number of employees had been reduced to about 1400. At this time the employees in the armed forces on military leaves of absence numbered "right around 1360." The Respondent followed the policy of according employees returning from military duty "super-seniority for the period of 1 yeal" until the Supreme Court authoritatively ruled contra to such an interpretation of war time legislation? It is clearly reflected by the record that the mass lay-offs incident to the cessation of war production, and the lay-off of employees with extensive seniority resultant from the application of the super-seniority 1 These findings are based on allegations in the complaint admitted by the Respondent in its answer with certain credited corrections and additions 2 Fishgold v. Sullivan Drydock and Repair Corp ., 18 LRM 2075. GENERAL MOTORS CORPORATION 79 policy, materially increased the unrest and dissatisfaction which affected Re- spondent's employees 3 The Union's organizational campaign began in 1942. It reached its highest pitch of intensity in late 1945 when the dislocations incident to the close of military operations were at their height 4 In September 1945 the Union requested recognition as the statutory representative of employees in the Rochester plant. On September 11, 1945, the Union filed with the Board a petition for investigation and certification of representatives. Thereafter a conterence before a Board official, participated in by the Union and the Respondent, was held on September 26, 1945 Agreement for a consent election failed because the Respondent desired that employees on mllitaiy leave of absence be given opportunity to vote. Thereafter the Board conducted a lien ung on October 12, 1945. That proceeding was transferred to the Board on the same day. Oral argument before the Board was scheduled for January 9, 1946, but was postponed indefinitely pending dis- position of the allegations of unfair labor practices set forth in the original charge which initiated the instant proceeding,-,' B. Inter/erennce, restranat, and coercion Employee Lester G. Scales, a floor inspector, was laid off on January 29, 1945. He felt that lie had been unjustly treated in view of his seniority which began in 1988. "A couple of days" after he was notified that he was laid off Scales, as he testified, went to the Personnel Manager, Benjamin 0 Snyder, "to see if I could go back to work" Excerpts from Scales' further testimony read, I went over and asked hi_ni why I was laid off, being there so long; well, they kept other people there that were only there a short time 8 * *. I asked him why I was laid off I said I had seniority, and there were others there that didn't have seniority * I I asked him if it was on account of nie being in the Union that I got it In the course of the conversation, as Scales testified, Snyder told Scales "that the Union would never get in and that they had a different class of people work- ing there."* According to Snyder's testimony, Scales broached the subject of his union affiliation, saying, "you know I've been a member of the Union," and further, "they elected me a trustee down there one night a long time ago, I didn't want the office, I tried to resign and not even have them nominate me, but they in- sisted I take it and I have never been to a meeting since" On Snyder's dis- claiming interest "in those matters" it was Snyder's further testimony that Scales asked, "do you think they will ever get a union in here" and that lie (Snyder) replied, Well, when the time comes that the employees want a Union in here, there will be a Union in here, and as long as the employees don't want a Union, there won't be any Union in here. It is purely up to the employees 'Findings in this paragraph are based on the unassailed and credited testimony of Personnel Manager Benjamin 0 SnSder 4 Employee Anthony Gordon gave testimony . credited by the undersigned , that he was engaged in union organizational activities which began , "in a minor form" in 1942 This activity was more pronounced in 1944 than it had been in 1943 As to 1945 Gordon's testimony reads, "It intensified shortly before V-J day There was quite an intense rally put on there, and I remember that quite well, and every one was mole or less keyed up about the organization " 5 Data in this paragraph have been checked against the Board 's official records Dates, in some instances , differ from those stated on the record The original charge was filed on November 30, 1945 739926-47-vol. 73-7 80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On mention of the name of Union Agent Kallieiine Hull by Scales, Snyder commented, as his testimony reads' Well, somebody was here the other day and told me her name isn't Hull; her name is Buczek, or some such name as that To this statement Scales assented. When Scales then expressed dissatisfaction with the Union, Snyder showed him "some literature." It was Snyder's testimony that this document had been taken down from the wall in the locker room by a plant protection employee and handed to him a half hour before Scales came in and that it happened to be lying on his desk Scales, however, was positive in his recollection that it was not lying on the desk but that Snyder "took it out of a cubbyhole" and that Snyder told him "some fellows that were in the Union said it." The leaflet in question is hand drawn and mimeographed. It contains draw- ings of a fat pig and a donkey. The legend depicts the pig as saying:, I am the UNION PIG, I take American workmen to market I've grown fat on the sweat of American labor and have become sassy because I know Joe Stalin is behind me. Many of my members are graduates of rest room board of strategy. I have just won a great victory for the bakers of this city-here's what I got for them. They where (sic) out on strike 6 weeks. If they got $50 00 per 5 day week they lost $300 00 Forget that and listen to what they won 30 per hour for a 40 hour week would make $1 20 raise per week. Of course Uncle Sam gets 20% or 24 cents and 10 goes to the F O. A. B leaving 95 cents per week. This amounts to the great sum of $4880 per year iaise Of course the Union dues must come out $100 per month that leaves $36 80 per year. Just think it will take union members only 8 years and 2 months to make up what they lost-if I don't call them out on stiike again. Wake up RPD join now let me win such a glorious victory for you. Think what the soft coal miners got The legend further makes the donkey say: I'll join I don't read or think o Snyder testified that he handed the leaflet to Scales saying, "what do you think of this, Les?" and that Scales after looking it over replied, "That's about right " Snyder denied having intimated to Scales that the Respondent's plant con- tained a superior class of people who wouldn't permit the Union to enter or would not stand for a Union However, he also stated that he had commented on the various important visitors who had recently visited the plant concluding, the thing that I am proud of is that one of the things that we hear invariably from these people is the fine plant we have here, the clean plant, the excellent working condition, and the high type of people employed here.' Snyder also showed Scales a copy of a Union Bulletin announcing a meeting on January 24 which referied to the mass lay-offs and predicted that "a complete shut-down of production" would follow. This statement Snyder characterized as "absolutely false" and asserted per contra that "things were picking up " Scales gave testimony, credited by the undersigned, to the effect that Snyder admonished him to keep the details of their conference confidential Scales' testimony in part reads, "To get it absolutely straight, he said it was between him and I " "Elsewhere in his testimony Snyder stated that "lie said words" to the effect that all the employees at RPD were "a big happy family." GENERAL MOTORS CORPORATION 81 As a result of this conference Scales was rehired on the night shift and assigned a job in a "heat treating" operation. Since he had understood that he would be reemployed in his old classification as a floor inspector Scales quit after working one shift. The Respondent points out that Snyder was a practicing attorney and had represented Scales in a case involving his domestic relations. This, it contends, explains the intimate character of Snyder's conversation with Scales. The undersigned notes that Scales came to Snyder's office on this occasion in order to confer with the personnel manager for the Respondent, on matters pertaining to employment relations It is found that what Snyder then said must be ap- praised on the basis of such an official conferring with an employee. Scales gave Snyder to under stand that he was concerned lest his union activities might have prejudiced his standing as an employee Under these conditions Snyder's action in giving circulation to an anti-union leaflet and asking for an expression of opinion thereon from employee Scales, who was concerned about the continu- ance of his job, clearly had elements of interference. restraint and coercion whicn are in derogation of the Act The undersigned so finds. It is further found, after consideration of the record and of the demeanor of these witnesses, that Scales' account of Snyder's remarks relative to Respondent's employees and their attitude toward union affiliation is substantially correct. Testimony by Snyder in conflict with Scales' account is rejected Scales also testified that his supervisor, Heibert Vollick, frequently carne to him at his work place on occasions when union literature had been distributed at the plant' Excerpts from Scales' testimony, pertinent here, read, He would say, "See what the Union is doing What is the Union going to do for you? You have to go out on strike," or "no, good," or something like that ; "what would it get you?" And so forth and so on. Scales further stated : I can't give you an exact (late I haven't got that good a memory All I know is, lie made them statements That's all I know. It was Scales' testimony that his position and activity as a union member and organizer was known to Vollick and in the shop generally He denied that he made a practice of soliciting membership on working time, but admitted that lie "probably" secured 2 or 3 members during normal work hours In the course of his organizational work Scales carried membership cards in his pocket. These caids protruded and their character was evident It was Scales' testimony that Vollick instructed hun to keep them covered during normal working hours Vollick, testifying as Respondent's witness, agreed that Scales made a habit of carrying union membership cards on his person and "would bring them out occasionally." He testified further that Scales' union activities were well known to him and that he had seen the published notice in the union paper of September 28, 1945, in which Scales' official position as a member of the Executive Board was stated' Vollick also stated that he had frequent discussions with Scales about the Union As Vollick's testimony reads, "It was a common topic [of discussion], yes; very friendly" "Well. pro and con, he was for it and I was against it." P Such literature was distributed "once or twice a ii eek " 9 Scales was not included in the group picture which was printed in this issue of UE-RPD News 82 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Respondent in its brief would excuse these utterances of Vollick as mere exchange of opinions between friends An excerpt reads They freely engaged in an exchange of opinions or expressions of their respective position on this subject Theee was no attempt or even a claim that Vollick tried to persuade, wain, threaten, influence or advise Scales on this issue It must be remembered that these debates took place in working time Vollick spoke in his character of supervisor to employee Scales who, at the time, was working under his direction The debates were within the hearing of other employees who would have full reason to believe that Vollick spoke as a repre- sentative of management Nothing in the record suggests that Respondent either disavowed or attempted to put a stop to Vollick's utterances Under these cir- cumstances they must be ascribed to the Respondent The undersigned finds that Vollick's repeated and open verbal assaults on the Union were in deroga- tion of rights guaranteed to employees by Section 7 of the Act. Harry L Pardee who had been an employee of the Respondent for the 10 yeni is preceding January 23, 1946, testified that shortly after the Union weekly newspaper had published on September 28, 1943, a group picture of the newly elected Executive Board of the local, together with identifying names, he was congratulated by his foreman, Alfred J Marriott, "on being Vice-President." Three or four days later Marriott approached Pardee, in the locker room. Pardee's testimony as to their conversation reads: Why, he told me that I was foolish to belong to a union and that I wasn't supposed to talk about the Union or solicit members in the Union on company property at any time. Marriott, testifying as Respondent's witness, confirmed Pardee's statement that he had proffered congratulations on the occasion when Pardee' s picture appeared in the UE-RPD News However, he qualified by saying, I didn't congratulate him on being an officer`of the Union, I congratulated him on his picture. Marriott denied that he had ever said that Pardee, or anyone else, was foolish to join the Union or that he had ever discussed Pardee's union membership with him. In resolving this conflict in testimony the undersigned has been influenced by the patent fact that Marriott did, in fact, discuss Pardee's union affiliation at the time his picture appeared in the union paper . Pardee's testimony as to this occurrence was detailed and persuasive. After consideration of the full record and the demeanor of these witnesses and noting that Marriott's partial admissions are strongly confirmatory of Pardee's account, the undersigned concludes and finds that the incident occurred substantially as stated by Pardee in his testimony. "In the latter part of October" 1945 Snyder received a telephone call from Union Field Representative Katherine Hull who stated that charges would be filed9 concerning a grievance affecting Employee Wilbur K Le'Moyne and that she desired to confer with Snyder about this matter. Snyder declined to discuss any grievance with Hull unless and until the Union became the statutory representative of Respondent's employees . Snyder called LeMoyne to his office and asked him, in the presence of John E Braun, superintendent of the 11 As noted above charges were filed on November 30, 1945 GENERAL MOTORS CORPORATION 83 machine division , and Thomas Gaffney ," men's employment manager , what was the basis of the Union 's charges. LeDloyne testified that he told Snyder , "I didn't know anything about it.i11 Excerpts from LeMloyne 's further testimony read: Well, Mr . Braun asked me if I didn 't like my job, why I didn ' t quit. I told him, "That's what you people want me to do * * * * * * * Then, Mr. Snyder *told Mr Braun to * * * "We don't want him to quit ; we want to have just one big happy family here." Right at that time Delco and the rest of General Motors shops were going out on strike And he {Snyder ] asked me if I thought them fellows wanted to go out on strike . "I don 't know," I said, "that is their choice. They vote for it if they want to go out or not." * * * He did say to me there was no outside organization going to run this shop Braun denied that he had ever said to LeMoyne that if he didn't like his job he ought to quit and that LeDloyne had made the reply quoted above However, Braun also denied that he had been present in Snydei's office when the Union's filing of charges was discussed or at any other conterence whei e this matter was discussed with LeDloyne. Since it is clear from the record that Braun was in fact present, no weight is attached by the undersigned to these denials. Snyder also denied that Braun had advised LeMoyne to quit. He further denied the remarks ascribed to him by LeMoyne relative to the General Motors strike and that lie had declared that no outside organization was going to run the shop Snyder's further testimony reads, Q. Did'you make the statement * * * that you wanted to have one big happy family at Rochester Products Division? A. I don't remember, I might have made it. I made it a number of times to a number of people, I would say. LeMoyne was a reluctant witness He failed to appear on the first day of the hearing and responded on the second day only after he had been served with a subpoena. His testimony was carefully considered, detailed, realistic and con- vincing After considering the full record, the demeanor of the witnesses and noting Braun's patent failure of memory and Snyder's partial admission, the undersigned credits LeMoyne's testimony and rejects denials by Braun and Sny der.12 By the anti-union remarks of Personnel Manager Snyder to Employee Scales and Employee LeMoyne and by Snyder's presenting an anti-union leaflet for 10 LeDloyne testified that Bi aun and Gaffney were present ; Snyder that he thought that Braun and Fred Mower, assistant night superintendent , witnessed the interview. How- ever, neither Gaffney nor Mower , both of whom appeared as witnesses , were questioned about this incident 11 Snyder 's testimony in point here reads, "I asked him [ LeDloyne ] what there was to it, and lie said thei e was nothing to it " 12 After the filing of charges by the Union an article appeared in the UE-RPD News for November 30, 1945, which stated that a "central figure " in the charges was LeMoyne. Snyder thereafter again called LeDloyne to his office and questioned him about his connec- tion with the charges LeDloyne explained that lie had been absent from Rochester on a limiting trip and had not been consulted by the Union about the matter. LeMloyne's grievance , relating to a transfer , was later settled in a conference participated in by all agent of the Board . The undersigned attaches no significance to the fact that LeAloyne was twice questioned by Snyder about the Union's preferment of charges. 84 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Scales' consideration ; by the repeated anti-union at guments of Supervisor Vollick with Scales in the hearing of other employees ; and by the utterances of Superin- tendent Braun to Employee Le \ioyne and of Foreman Marriott to Employee Pardee, set forth in this section, the Respondent has interfered with, restrained, and coerced its employees within the meaning of Section 8 (1) of the Act C Alleged tntcrfeience, restlaent, and coercion 1. Alleged undue interference with union activities and questioning of employees regarding their union affiliation Harry L. Pardee, who had been an employee of the Respondent for the 10 years preceding his lay-off on January 23, 1946, testified that he was summoned to Personnel Manager Snyder's office "sometime in 1944" in the presence of Braun 13 and Mowers. Pardee's testimony as to what then occurred reads : He [Snyder] asked me if I was a member of the Union, and I told him, yes; and I told him I had my card with me and asked hum if he wanted to see it. He said he wasn't interested. - So, then, he asked if I knew the shop rules, and I told him I did, and I tried to follow them as near as I could * * He said that I shouldn't distribute cards during the shop hours or ask for membership or talk about the Union on company property at any time. When asked what Snyder said would happen if he continued to solicit, Pardee answered, "Well, lie said I would lose my job or be fired " Pardee also testified that at the time Snyder called his attention to the shop rules, and that he previously had been given a booklet, Information for Employees, which contained the shop rules. Pardee further testified that on May 3. 1945, he was again summoned to Snyder's office where both Braum and Mowers were present. Snyder then told Pardee that he had reports from six employees that Pardee had been "around the plant visiting with people and asking them to come to the meeting, and that [he] was doing this on company time." Snyder declined to disclose the names of the employees who had so reported Pardee testified that Snyder warned him "if he had any more reports like that, I ww ould be laid off." Snyder, as a witness for the Respondent, testified that his first interview with Pardee occurred in May 1944 He explicitly denied that he had questioned Pardee about his union affiliation at the interview or at any other time. He also testified that he did not know at the time that Pardee was a member of the Union. Snyder's testimony as to the warning given Pardee leads: I told him that I had information that he was interfering with employees and that they had complained to me, and that he would have to stop. Snyder further testified that he had told Pardee that the complaints speci- fied that this action had been "during his normal working hours," and that he had discussed with Pardee shop rules Nos 20 and 21 These rules, together with the preliminary general instruction, read as follows : Violation of the following shop regulations will be sufficient grounds for disciplinary action ranging from reprimand to immediate discharge, de- pending upon the seriousness of the offense in the judgment of the manage- ment ; 13 Braun is sometimes eironeously iefeired to as Brown in the record. GENERAL MOTORS CORPORATION 85 20. Threatening, intimidating, coercing, or interfering with fellow em- ployees on the premises at any time. 21 Soliciting, of collecting contribution for any purpose whatever on com- pany time Bi ann, who took no pat t in the discussion, fully corroborated Snyder" As to his second interview with Pardee, Snyder testified that he had received a report from Mr. Bogardus, who represented the Personnel Department on night shifts, that Pardee "was soliciting membership in the Union on company time." Bogardus had received complaints from six employees. Snyder's testi- mony as to his reprimand to Pardee reads, I told him that this was the second time he had been in my office; that he was charged with soliciting Union memberships on company time and that while we wasn't going to do anything about it at this time, if he continued to do it, we would have to invoke the penalty. When asked what Pardee said, Snyder replied : My recollection is that he said he was all caught up with the Union, and that he didn't want anything more to do with it Braun and Mowers fully corroborated Snyder. Each was positive in his recol- lection that Snyder confined his reprimand to solicitation on company time. In this state of the record the undersigned resolves that conflict in testimony as to whether Pardee's union activities were restricted "at any time" on Respond- ent's premises or only in normal working time, by accepting the mutually cor- robative testimony of Snyder, Braun and Mowers and rejecting such testimony of Pardee as conflicts therewith Further it is found that the record does not sustain Pardee's statement that at the first interview Snyder questioned him regaiding his union affiliation Employee Bernard Bortnick was similarly reprimanded by Snyder in the presence of his foreman, Edward Stockmeister, Assistant Personnel Director, Norman R Coons" and Men's Employment Manager Thomas Gaffney. There is no serious conflict in the testimony of these individuals, all of whom appeared as witnesses, as to the incident. Bortnick admitted that prior to the reprimand he had been warned "about two or three times" not to roam around the plant. He described his_repriniand as a "thorough going over" but, in effect, assented to the suggestion that it was well deserved The witnesses agreed that Bortnick's attention was directed to the applicable rules and that his offense was definitely linked to working time. Bortnick further testified that. as he left Snyder's office Stockmeister accom- panied him His testimony at this point is recorded as follows: As we were walking down, he gave me some friendly advice, not to monkey around with the Union. He said I could be fired, and that I could have been fired right there, and lie told me I was being watched and not to monkey around with the Union like that He just told me to pay attention to my work and not to fool around. 14 Excerpts fi oni Mann's testimony read Mr Snyder told Mr Pardee that he had several complaints from employees that had been approached and solicited for membership in the C I. 0 and they objected to being bothered with solicitations for membership. Braun fm ther testified that Snyder stated that the solicitation occurred during working hours and that Snyder (lid not question Pardee about his union membership. 11 Coon's name is sometimes spelled Coomes in the record 86 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Stockmeister's version of this conversation reads: Well, I says "Bernard, you got yourself in a nice jam " I said after that, "You had better stay on the job because you could have been laid off tonight." Bernard went back to the line with me Later that night Bernard came up and apologized and said he was going to stay on the job After consideration of the frill record and the demeanor of Bortnick and Stock- iueister as witnesses, the undersigned finds that Stockmeistei's war lung was con- fined to Bortnick's activities in working time and contained no interference with legitimate union activities. That the use of working time for union activities reached serious proportions clearly appears in the testimony of Board witness John J. Broderick who was em- ployed by the Respondent from June 1942 to August 1945. Broderick was chair- man of the union organizing committee. He had been awarded a prize by the Union for his efforts in securing members. He freely admitted that he had solicited on a "rough estimate" a hundred employees during normal working hours, and that a "number of people solicited membership under [his] direction and control during company working hours." Broderick further admitted knowledge that such action was prohibited by Respondent's shop rules He had never been warned nor reprimanded As he explained "I NN as pretty careful " The Board's policy in regard to union activities during working time is ex- phcitly stated and well established No offense under the Act can be ascribed to the Respondent for reprimanding Pardee and Bortnick and warning them to abstain from union activities during normal work time" After consideration of the record and the demeanor of the witnesses the under- signed concludes and finds that so much of the complaint as alleges that the Respondent has threatened its employees with dischai ge if they engage or continue to engage in soliciting union memberships on company premises even though such solicitation is conducted during the employees' non-working time, and has ques- tioned employees as to employees' union affiliation should be dismissed Accord- ingly this will be tecoxmnended. 2. Alleged espionage and surveillance Evidence as to surveillance and espionage relers to Plant Protection Chief Charles W Vollmer Prior to his employment by Respondent, Vollmer had been Lieutenant of Records for the Rochester police force for 10 years. He had been retired on half pay. Employees Pardee, Gordon, and Broderick testified that they saw Vollmer across the street from it hall at Sd W Main Street about a month before VJ day, i e., August 14, 1945 It was Pardee and Broderick's testimony that during the union meeting which was held on the second floor they observed '" See Matter of Peyton Pachuig Co . Inc, 49 N L R B 828, 843 The Board said: The Act, of course, does not prevent an employer fiom making and enforcing reason- able rules covering the conduct of employees on company time Working time is for work It is therefore within the province of an employer to promulgate and enforce a rule prohibiting union solicitation during working hours Such a rule must be pie- suined to be valid in the absence of evidence that it was adopted for a discriminatory purpose It is no less true that time outside working hours, whether before of after work, or during luncheon or rest periods, is an emplovees' time to use as lie wishes without unieasonabfc restraint, although the employee is on company property. It is therefore not within the province of an employei to promulgate and entorce a rule prohibiting union solicitation by an employee outside of working hours, although on company property Such a rule must be presumed to be an unreasonable impediment of self-organization and therefore discriminatory in the absence of evidence that special circumstances make the rule necessary in order to maintain production or discipline. GENERAL MOTORS CORPORATION 87 Vollmer standing across the street for 3 or 4 minutes Gordon extended the time to from 5 to 10 minutes Neither of these witnesses had any knowledge of what Vollmer was doing beyond the fact of his presence there. Vollmer testified that on an evening "during warns weather" "around after 10.00 o'clock" he had seen Pardee and Gordon while standing on West Alain Street about half a block away from the hall at 86 W Main Street. Respondent in its brief identifies this occasion with that referred to above. In the uncer- tainty of dates manifested by these witnesses the record does not allow so definite a finding The hour stated by Vollmer is much later than that stated by the Board witnesses and it seems probable that he reters to a different incident. Pardee, Gordon and Broderick also testified that they saw Vollmer shortly after VJ day'" in the vicinity of Eagles Hall where a union gathering was in progress Gordon, accompanied by Pardee, met Vollmer who was in civilian clothes, and greeted him. Vollmer acknowledged his greeting only with a smile. Pardee located Vollmer on Washington Street some "20 to 25 feet" away from the door of the hall Gordon, however, placed Vollmer on Main street "around the corner" from the hall at a point where the hall entrance was npt within Vollmer's ,iew. Broderick testified that while the gathering was in progress he came out- side the hall with Gordon and Union Organizer Katherine Hull and saw Vollmer at such close quarters that he invited him over for a drink Vollmer did not accept. Broderick further testified that within a week or 2 weeks later, while walking toward the B. and 0 hall about 8.30 p m , he saw Vollmer across the street "leaning against an iron rail that goes around the building." A point meeting of CIO and AF of L members was to be held that evening to consider measures to meet the emergency created by wholesale lay-offs after VJ day On none of the occasions set forth did any Board witness observe any overt action of Vollmer which indicated that he was spying on the union meetings or listing the Respondent's employees who were in attendance. From Vollmer's testimony it is evident that all three of the meeting halls were in the vicinity of his accustomed haunts in downtown Rochester. Some 20 years earlier he had resided at a point within a block of each of the three halls. A drug store, at which he was accustomed to buy cigars, was next door to the 86 W. Main Street hall. A prominent hotel where "they draw a very good glass of beer" and which enjoyed Vollmer's patronage, was almost directly across the street. The police- men's club, of which Vollmer was a member and which he frequently visited was some two blocks away Police headquaiters, wheie Vollmer's official duties required him to consult records, was not far distant. Bus lines were on Main Street and Vollmer in coming fiom and returning to his home customarily used stops in the vicinity of the union meeting halls The record reflects no evidence which indicates that Vollmer gained knowledge which was used by the Respondent in derogation of any rights of its employees guaranteed by the Act.18 Inasmuch as nothing in the Act requires an employer's supervisor or agent to avoid public streets and points of assembly contiguous to union meeting places to which its employees resort, and, in the absence of any positive evidence of acts of espionage or surveillance by Vollmer, the undersigned finds no merit in this contention of the Board. It will accordingly be recommended that so much of the complaint as advances this allegation be dismissed. 11 Pardee fixed this occasion as, "Before VJ day " 15 The Respondent presented evidence, credited by the undersigned, which shows that Vollmer was absent fioin Rochester on a vacation fioni August 5 to 19 inclusive In the uncertainty of dates as fixed by Board witnesses no refutation of their testimony can be based on this evidence 88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COM?IERCE The activities of the Respondent set forth in Section III, above, occurring in connection with the operations of the Respondent's business described in Section I, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in certain unfair labor prac- tices , the undersigned will recommend that it cease and desist therefrom and take certain affirmative action sound necessary in order to effectuate the policies of the Act. While the record shows violation on the part of the Respondent of Section 8 (1) of the Act, such actions are not sufficiently flagrant in the judgment of the undersigned to justify an order covering potential offenses against the Act in other respects . Accordingly the recommended order is confined in its applica- tion to this single unfair labor practice On the basis of the above findings of fact and upon the entire record in this case, the undersigned makes the following: CONCLUSIONS OF LAW 1. The United Electrical, Radio and Machine Workers of America, affiliated with the Congress of Industrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2 By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (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. 4. The Respondent has not been proven to have threatened its employees with discharge, if they engaged or continued to engage in soliciting union member- ships on company premises, even though such solicitation is conducted during the employees non-woiking tine; to have interrogated its employees about their union affiliation, nor to have engaged in espionage and suiveill:mce of its em- ployees. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent , Rochester Products Division of Gen- eral Motors Corporation , its officers, agents , successors , and assigns shall: 1. Cease and desist from : Interfering with , restraining, or coercing its employees in the exercise of the right to self-organization , to form , join or assist the United Electrical , Radio and Machine Workers of America , CIO, or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in con- certed activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will effectuate the policies of the Act : (a) Post at its plant at Rochester ,' New York, copies of the notice attached hereto marked "Appendix A." Copies of said notice , to be furnished by the GENERAL MOTORS CORPORATION 89 Regional Director for the Third Region, after having been signed by the Respond- ent's representative, shall be posted by the Respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are cus- tomarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material ; (b) Notify the Regional Director for the Third Region (Buffalo, New York), in writing, within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply therewith. It is further recommended that such part of the complaint as charges that the Respondent has threatened its employees with discharge it they engage or continue to engage in soliciting union memberships on company premises even though such solicitation is conducted during the employees' non-working time ; or has interrogated its employees about their union affiliation ; or has engaged in espionage and surveillance of its employees, be dismissed. It is further recommended that unless on or before ten (10) clays from the receipt of this Intermediate Report, the Respondent notifies said Regional Di- rector in writing that it will comply with the foregoing recommendations, the National Labor Relations Board issue an order requiring the Respondent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3. as amended, effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pm suant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington 25, D C, an original and four copies of a statement in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all mo- tions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) days from the date of the order transferring the case to the Board. Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the entry of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. CHARLES D+ PERSONS, Ti ial Exam tver. Dated August 8, 1946