Monarch Foundry Co.

MONARCH FOUNDRY COMPANY 377 with, restrain , or coerce our employees in the exercise of their rights of self-organization, to form labor organi- zations, or to join or assist the above-named union or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purposes of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act. All of our employees are free to become or remain, or refrain from becoming or remaining , members of the above- named union or any other labor organization , except to the extent that this right may be affected by an agreement in con- formity with Section 8 (a) (3) of the Act. ROBERTS BROTHERS, 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. MONARCH FOUNDRY COMPANY and INTERNATIONAL MOLDERS AND FOUNDRY WORKERS UNION OF NORTH AMERICA, AFL. Case No. 13-CA-1276. July 24, 1953 DECISION AND ORDER On April 23, 1953, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled pro- ceeding, finding that the Respondent engaged in and was en- gaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief. The Board' has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions, and t Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Houston, Styles, and Peter- son]. 106 NLRB No. 73. 3 78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the entire record in the case , and hereby adopts the findings, conclusions , and recommendations of the Trial Examiner, with the following additions and modifications. 1. We agree with the Trial Examiner that the Respondent interrogated its employees in violation of Section 8 (a) (1) of the Act. In so doing , we rely on the following circumstances: Celia Beck, an employee in the core room of the foundry, testified that Ellis Johns , Respondent ' s president , on several occasions , asked her if she was going to join the Union or going to the union meeting . LeRoy Capet, another foundry em- ployee, also testified that in response to an inquiry by Ellis Johns as to whether Capet had joined the Union or paid any dues, he told Johns that he had signed a union card and paid $5. Capet also testified that on other occasions Ellis Johns asked him "about the Union meeting ." Both Capet and Beck testified that the foregoing questions were asked "in a kidding way." Ellis Johns admitted that he asked employees on more than one occasion if they were going to the union meeting to get free chicken and beer , stating, however, that his only object was to "kid " the employees. Like the Trial Examiner , we credit the testimony of Capet and Beck , partially corroborated by Ellis Johns , that he interrogated them concerning their union membership and activity, and we find that the Respondent thereby violated Section 8 (a) (1) of the Act. We agree with the Trial Examiner that it is no defense thatthe questions were asked in a bantering tone . Interrogation may be just as effective an invasion of the rights protected by Section 7 of the Act when it is conducted under the guise of an exchange of pleasantries. Moreover, that the purpose of the Respondent was not merely to indulge in levity but rather to elicit information is sufficiently indi- cated by the fact that at about the same time as the incidents described above it conducted a poll of all its employees as to their union sentiments. 2. For the reasons stated in Protein Blenders, Inc.,2 we find, like the Trial Examiner, that the poll conducted on October 20 , 1952, violated Section 8 (a) (1) of the Act.$ ORDER Upon the entire record in the case , pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent , Monarch Foundry Company , a corporation , its officers , agents, suc- cessors, and assigns , shall: 2105 NLRB 890. 3 The Trial Examiner found that Glen Johns, Respondent's sales manager , first suggested that the poll be taken. However , the testimony of the witnesses credited by the Trial Ex- aminer on this point is generally to the effect, and we find , that it was either Glen Johns or his brother , Howard, who made the suggestion. As both brothers were supervisors, this modification in the Trial Examiner 's findings does not affect the validity of his conclusion that the poll violated 8 (a) (1), nor our concurrence therein. MONARCH FOUNDRY COMPANY 379 1. Cease and desist from interrogating its employees con- cerning their union membership and activities, and from con- ducting polls among its employees to determine their union sentiment, or in any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Molders and Foundry Workers Union of North America, AFL, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right maybe affected by an agree- ment requiring membership in a labor organization as a condi- tion of employment, as authorized in Section 8 (a) (3) of the Act. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act: (a) Post at its plant in Plano, Illinois, copies of the notice at- tached hereto and marked "Appendix A." 4 Copies of such notice, to be furnished by the Regional Director for the Thirteenth Region, shall, after being duly signed by the Respondent's au- thorized representative, be posted by the Respondent immedi- ately upon receipt thereof, in conspicuous places, including all places where notices to employees are customarily posted, and maintained by it for a period of sixty (60) consecutive days. Reasonable steps shall be takenbythe Respondentto insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director in writing, within ten (10) days from the date of this Order, what steps the Respondent has taken to comply herewith. aln the event that this Order is enforced by decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an order," APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Re- lations Board, and in order to effectuate the policies of the Na- tional Labor Relations Act, we hereby notify our employees that: WE WILL NOT interrogate our employees, by polls or otherwise, concerning their union membership in, or ac- tivities on behalf of, the International Molders and Foundry Workers Union of North America, AFL, or any other labor organization, and will not conduct polls among our employees to determine their union sentiment, or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization , to form labor organizations , to join or assist 380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the above-named union, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a con- dition of employment, as authorized in Section 8 (a), (3) of the Act. All of our employees are free to become or remain members of the above-named union br any other labor organization. MONARCH FOUNDRY COMPANY, 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. Intermediate Report STATEMENT OF THE CASE After a charge filed on October 27, 1952, by International Molders and Foundry Workers Union of North America, AFL, hereinafter called the Union, the General Counsel for the National Labor Relations Board by the Regional Director for the Thirteenth Region on February 24, 1953, issued a complaint against Monarch Foundry Company, herein called the Re- spondent, alleging that the Respondent has engaged in and is engaging in certain unfair labor practices affecting commerce. Upon the complaint and the Respondent's answer thereto, a hearing was had upon the issues. The hearing, pursuant to notice, was opened at Yorkville. Illinois, on March 30, 1953, and was continued to and thereafter closed at Plano, Illinois, on that day. The complaint alleges violations of Section 8 (a) (1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act, in that the Respondent on or about October 20, 1952, conducted and sponsored a poll of its employees during working hours and c-i company premises to determine whether its employees desired the Union to represent them; and on or about October 20, 1952, interrogated employees concerning their interest in and activities on behalf of the Union. The answer of the Respondent denies the essential allegations of vio- lations of the Act as set forth in the complaint. At the hearing, the charging party appeared through its representative, and the Respondent and the General Counsel were represented by counsel. Full opportunity to be heard, to ex- amine and cross-examine witnesses, and to introduce evidence bearing on the issues, to argue orally upon the record, and to file briefs, proposed findings of fact, and conclusions of law was afforded the partiers. Upon the entire record in the case and from his observation and hearing of the witnesses, and after full consideration, the Trial Examiner makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT The Respondent, Monarch Foundry Company, is a corporation duly organized and existing under and by virtue of the laws of the State of Illinois. It has its principal office and place of business, a foundry, at Plano, Illinois, where it is engaged in the manufacture of gray iron MONARCH FOUNDRY COMPANY 381 and semisteel castings . The Respondent , in the course , conduct, and operation of its business, causes large quantities of its finished products to be sold and transported to companies engaged in interstate commerce and located in the State of Illinois . During the calendar year 1952, the value of finished products sold and transported by the Respondent was in excess of $400,000, of which approximately 90 percent was shipped by the Respondent to companies engaged in interstate commerce. The Trial Examiner finds that the Respondent is engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED International Molders and Foundry Workers Union of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act, admitting to membership em- ployees of the Respondent. III. THE UNFAIR LABOR PRACTICES The Union is and since before October 17, 1952, i has been engaged in organizing activities affecting employees at the Plano, Illinois, foundry of the Respondent. The activities of the Union were and are well known to Respondent 's management. Under date of October 17, a representative of the Union directed a letter to the Respondent, which in substance asserted that the Union represented a majority of the employees of the Respondent , asked that it be recognized by the Respondent as the sole and exclusive bar- gaining agent for all employees , exclusive of clerical and supervisory employees , and re- quested a meeting between representatives of the Respondent and the Union. This letter was received by the Respondent on October 20. Its receipt was not thereafter acknowledged, nor did the Respondent and the Union ever meet. Ellis M. Johns 2 is the head of the Respondent corporation. His son, Howard, is a vice president and another son, Glen, is sales manager . Art Johns , a brother of Ellis , is an em- ployee without supervisory status. Ellis Johns, Howard Johns, and Glen Johns are super- visors within the meaning of Section 2 (11) of the Act. Shortly after the end of the noontime meal period on October 20, the production and main- tenance employees in the foundry were instructed by management to gather in the core room of the foundry. Ellis Johns, Howard Johns, and Glen Johns were present. Glen Johns read the letter from the Union, received that day by the Respondent, to the employees. At that time he referred to certain rumors which had circulated through the town regarding the feelings of his father and his brother and himself toward union organizing activities; that he had heard it said that his father was for the Union and his brother and he were opposed , and again that it was said that his father was against the Union and he and his brother were in favor of it; that he wanted to clear up the rumors and tell the employees they had a right to vote for or against the Union, as each desired. He also offered to answer any questions the employees might care to ask. After Glen Johns had read the Union's letter and had made his comment, it was suggested that the employees vote then and there, and decide whether they wanted the Union or not.3 After it was decided that a poll would be taken, a ballot box and some blank sheets of paper and pencils were brought into the room by Glen Johns and placed on an open bench. Ellis Johns, Howard Johns, and Glen Johns then retired from the room, and the employees pro- ceeded to indicate by ballot whether they wanted the Union to represent them or not. The results of the poll showed, out of 26 ballots , 2 votes in favor of the Union for representative and 22 against, with 2 ballots blank. Ellis, Howard, and Glen Johns returned to the core room, and were present when the ballots were counted. Witnesses subpenaed and presented by the General Counsel at the hearing were positive that Glen Johns was the one who suggested that the employees vote on the question of whether they wanted the Union or not. Glen Johns denied that he or his father or brothers suggested the poll. Howard Johns said someone, not he or his brother or his father, made the sugges- tion; Ellis Johns was not questioned on this point. Although Glen Johns and Howard Johns were present during the reading of the union letter and the subsequent counting of the ballots, and seemed to remember distinctly what else transpired during those times , neither could re- 'Unless otherwise shown , all dates hereinafter mentioned are for the year 1952. 2 The transcript of testimony will show Ellis M. Johns sometimes called "Mike." 3Art Johns, who did not testify at the hearing, was quoted as saying: "Well, I'm going to vote no to start this thing moving . No use standing around here dreaming." 382 DECISIONS OF NATIONAL LABOR RELATIONS BOARD member who first suggested that the poll be conducted. Other witnesses called by the Re- spondent failed to remember, or said they did not know, which person had suggested the poll. The testimony of those witnesses who identified Glen Johns as the one who first suggested that the poll be taken was clear and unequivocal and the Trial Examiner finds no reason not to accept their statements; he is convinced and finds that Glen Johns first suggested that the employees conduct the poll. Ellis M. Johns discussed the Union and union membership with several employees prior to October 20. On these occasions he spoke to them in what he described as a bantering way concerning whether they were going to attend union meetings for the "free beer and chicken" and that a number of employees had "kidded with him" about the Union. He declared that he knew who attended each union meeting and everything that happened there, because there were men present at those meetings who volunteered the information to him. During the course of his appearance on the witness stand, Ellis M. Johns did not hesitate to express his antagonism toward the Union. In response to a question by Respondent's attorney, whether he had indicated in any way his disfavor of the Union, he replied, "Well, to a certain extent. I don't believe in these hoodlums coming up and trying to organize a plant." Howard Johns first learned of union activity after being approached by employees (whose names he did not care to disclose) who questioned him about the Union. The reason expressed by him for reading the Union's letter to the employees was to clear up the confusion in the shop. Prior to the meeting in the core room and the taking of the poll, Howard Johns was aware, through a telephone conversation between himself and one of counsel for the Re- spondent, that the Union had petitioned or intended to petition, the National Labor Relations Board for an investigation and certification of representative. 4 On cross-examination, Howard Johns testified, with reference to the October 20 poll: Q. Was that the purpose of taking this vote, to find out whether that statement in the letter was true? A. The purpose of it was to find out just how they felt. If they wanted to have a Union, they could have it. Q. At that time you knew there would be a labor board election coming up? A. That's right. Ellis M. Johns, Howard Johns, and Glen Johns seem to have freely expressed their views in opposition to the Union bothbefore, during, and after the meeting in the core room. Through interrogation by Ellis M. Johns of employees while engaging in so-called bantering with some of them, through the reports made by some of the employees concerning the happenings at union meetings, and by informal conversations and discussions both in the foundry and elsewhere, it is clear that the Respondent was fully advised as to whatever might have hap- pened or was happening in the way of union organization of its employees. Employer-conducted polls such as this have been consistently held by the Board to con- stitute an illegal infringement on the rights of employees which are protected by the Act, even where the employer allowed the employees to express their preference by a secret ballot. Granite State Machine Company. Inc., 80 NLRB 79.5 Employers may not assume for themselves the function of ascertaining the wishes of their employees with respect to rep- resentation for purposes of collective bargaining, and to require employees openly to take a stand for or against a union at a meeting conducted by an employer on the employer's time. Such conduct is a form of interrogation such as is proscribed by the Act. Cullman Electric Cooperative, 99 NLRB 753; and see also E. H. Sargent & Co.. 99 NLRB 1318, and Charles R. Krimm Lumber Co., 97 NLRB 1574. Emphasis was placed by the Respondent upon the "kidding" nature of the antiunion re- marks of Ellis M. Johns, when union organizing activity was being discussed with employees. The banter, with attendant questioning, seems to have intended deadly effect against such activities, and did so result, and the Trial Examiner so finds.6 4On October 22 the Respondent was in receipt of a letter from the Regional Director of the Thirteenth Region advising of the filing of a petition with the Board by the Union. 5 The conducting of an election by an employer under the circumstances of this case was per se an interference with the rights guaranteed in Section 7 of the Act. "If an employer were at liberty to assume jurisdiction of the conduct of union elections he could, by pre- cipitating the holding of an election, where the union organization were scarcely started, frustrate further organization by making it appear that an unfavorable result was decisive." 6See Syracuse Color Press Incorporated, 103 NLRB 377, and cases there cited in footnotes 4 and 5. MONARCH FOUNDRY COMPANY 383 By the preponderance of evidence in this case, and based upon the credible testimony of witnesses subpoenaed by the General Counsel, and upon statements made by members of management of the Respondent, it is clearly established that the Respondent, by its acts and conduct through its responsible officers and agents, has interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act by sponsoring the poll on October 20, and by questioning employees concerning their union activities. In so doing, the Respondent has contravened the provisions of Section 8 (a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the Respondent has engaged in unfair labor practices, the Trial Examiner will recommend that it cease and desist therefrom and take certain affirmative action de- signed to effectuate the policies of the Act. Having found that the Respondent interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed in Section 7 of the Act, by conducting and sponsoring a poll of its employees during working hours and on company premises to determine whether its employees desired the Union to represent them, and having interrogated employees concerning their interest in and activities on behalf of the Union, the Trial Examiner will recommend that the Respondent be ordered to cease and desist from these and like practices. Upon the basis of the foregoing findings of fact and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. International Molders and Foundry Workers Union of North America, AFL, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By conducting and sponsoring a poll of its employees during working hours and on com- pany premises to determine whether its employees desired the Union to represent them, and by interrogating its employees concerning their interest in and activities on behalf of the Union, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner 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 , by polls or otherwise , concerning their desires or wishes relative to the International Molders and Foundry Workers Union of North America , AFL, or any other labor organization , or in any like or related manner interfere with, restrain, or coerce our employees in the exercise of the right to self- organization , to form labor organizations , to join or assist the above-named union or any other labor organization , to bargain collectively through representatives of their own choosing, and to engage in other mutual aid or protection , or to refrain from any or all of such activities , except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment , as authorized in Section 8 (a) (3) of the Act. 384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All of our employees are free to become or remain members of the above -named union or any other labor organization. MONARCH FOUNDRY COMPANY, Employer. Dated ................ By............................................................................................. (Representative ) (Title) This notice must remain posted for 60 days from date hereof, and must not be altered, defaced, or covered by any other material. UNION SULPHUR AND OIL CORPORATION and LOCAL NO. 407, INTERNATIONAL UNION OF OPERATING ENGINEERS, AFL, Petitioner . Case No. 15 -RC-560. July 24, 1953 SECOND SUPPLEMENTAL DECISION AND ORDER Pursuant to a Supplemental Decision and Direction of Elec- tion issued on May 7, 1952 ,1 an election was held under the supervision of the Regional Director on June 2, 3, 4, and 5, 1952 . A tally of ballots was served upon the parties which showed that of approximately 395 eligible voters , 167 cast their ballots for, and 215 against , the Petitioner . The Petitioner filed timely objections to the election . The Regional Director investigated these objections , and on September 17, 1952, issued his report and recommendations , to which the Employer filed timely exceptions. On January 12, 1953 , the Board having fully considered the Petitioner' s objections , the Regional Director ' s report, and the Employer ' s exceptions , and having determined that substantial and material issues of fact had been raised, ordered that a hearing be held, and provided that the hearing officer des- ignated for the purpose of conducting such hearing should prepare and cause to be served upon the parties a report con- taining resolutions of the credibility of witnesses , findings of facts , and recommendations to the Board as to the disposition of the objections . On February 26, 1953, such hearing was held before Andrew P. Carter, hearing officer. Both parties were represented and participated in the hearing . On March 27, 1953 , the hearing officer issued and servedupon the parties 1 Union Sulphur and Oil Corporation, 99 NLRB 19. The original decision in this proceeding was issued on January 31, 1952, dismissing the petition on the ground of the inappropriateness of the unit requested, thePetitioner having sought to represent the Employer 's Louisiana oper- ations' employees only, excluding its Texas operations ' employees . Union Sulphur and Oil Corporation, 97 NLRB No. 236 (not reported in printed volumes of Board decisions). On March 14, 1952, the Petitioner filed a new petition seeking to include the employees of both the Employer 's Louisiana and Texas operations , but withdrew this petition on April 28, 1952, at which time it moved the Board to reconsider its original petition on the basis of its amended unit request. The Board granted this motion, and issued its Supplemental Decision and Direction of Election mentioned in the text. 106 NLRB No. 75.