Nashua Manufacturing Corp. of Texas

NASHUA MANUFACTURING CORPORATION OF TEXAS 837 For the reasons appearing above , I would quash the notice of hearing in this case. Member Beeson took no partintheconsiderationof the above Decision and Determination of Dispute. NASHUA MANUFACTURING CORPORATION OF TEXAS and UNITED BROTHERHOOD OF CARPENTERS AND JOINERS OF AMERICA , AFL. Case No. 16-CA-635. May 11, 1954 DECISION AND ORDER On January 12, 1954, Trial Examiner Eugene F. Frey issued his Intermediate Report in the above -entitled proceeding, find- ing that the Respondent , Nashua Manufacturing Corporation of Texas , had engaged in and was engaging in certain unfair labor practices, and recommending that it cease and desist therefrom and take certain affirmative action , as set forth in the copy of the Intermediate Report attached hereto . The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations . Thereafter, the Respondent filed exceptions to the Intermediate Report with a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the findings , conclusions , and recom- mendations of the Trial Examiner., ORDER Upon the entire record in this case , and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Re- spondent , Nashua Manufacturing Corporation of Texas, its officers , agents , successors , and assigns, shall: 1. Cease and desist from: (a) Interrogating applicants for employment concerning their union affiliation , and employees concerning their union or other concerted activities; creating or fostering the impression among its employees that it is engaged in surveillance of union activities and other employee concerted activities; uIn adopting the Trial Examiner 's finding that the union organizational campaign was in operation during February, March, and April, 1953, and that the Respondent had knowledge of that activity, the Board does not adopt and does not rely , however, upon any inference based upon the size of the Employer 's plant and the small number of employees. 108 NLRB No. 117. 838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD attempting by promises of benefit to procure reports on and surveillance of union activities by employees ; and in any other manner interfering with, restraining , and coercing its em- ployees in the exercise of their right to self - organization, to form labor organizations , to join or assist United Brotherhood of Carpenters and Joiners of America, AFL, 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 and 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 agree- ment requiring membership in a labor organization as a con- dition 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 Wichita Falls , Texas , copies of the notice attached to the Intermediate Report.E Copies of said notice , to be furnished by the Regional Director for the Sixteenth Region , shall, after being duly signed by Respondent ' s repre- sentative , be posted by Respondent immediately upon receipt thereof and maintained by it for sixty ( 60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted . Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Sixteenth Region in writing within ten (10 ) days from the date of this Order, what steps the Respondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it concerns allegations made in paragraphs 5b and 5e and insofar as it concerns an allegation of interrogation of an employee in paragraph 5c, be , and it hereby is , dismissed. Member Rodgers took no part in the consideration of the above Decision and Order. 2 This notice shall be amended by substituting for the words "The Recommendations of a Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by sub- stituting 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." Intermediate Report and Recommended Order STATEMENT OF THE CASE The issues in this case are whether Nashua Manufacturing Corporation of Texas, herein called the Respondent, has on various dates since February 17, 1953, interrogated, threatened, and warned its employees , and kept under surveillance the meetings and activities of the United Brotherhood of Carpenters and Joiners of America, AFL, herein called the Union, and the concerted activities of its employees, in violation of Sections 8 (a) (1) and 2 (6) and (7) of NASHUA MANUFACTURING CORPORATION OF TEXAS 839 the Labor Management Relations Act, 61 Stat. 136, hereinafter called the Act. The issues arise on a complaint issued September 24, 1953, by the General Counsel of the National Labor Relations Board, herein called General Counsel and the Board, through the Board's Regional Director for the Sixteenth Region (Fort Worth, Texas), on the basis of a charge duly filed by the Union, and the answer ofRespondentdenying the commission of any unfair labor practices. i Pursuant to notice, a hearing was held at Wichita Falls, Texas, on November 2, 1953, before the undersigned Trial Examiner, at which all parties were represented by counsel and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues. At the beginning of General Counsel's case, the Trial Examiner denied Respondent's motion to dismiss paragraphs 5a, 5b, 5c, and 5e of the complaint as being hearsay and lacking allegations of threats or coercion. At the close of General Counsel's case, the Trial Examiner denied the Union's motion to continue the hearing indefinitely pend- ing decision by the General Counsel of the Board on the Union's appeal from the refusal of the Regional Director for the Sixteenth Region to include in the complaint herein allegations of violations of Section 8 (a) (3) of the Act on the basis of the charge filed herein by the Union.2 The Trial Examiner granted Respondent's motion to dismiss paragraphs 5b, 5c, and 5e of the complaint for lack of proof, insofar as they alleged interrogation of employees by agents of Respondent. At the close of the case, decision was reserved on Respondent's motion to dis- miss the remainder of the complaint on the merits; that motion is disposed of by the findings and conclusions in this report. The Union's renewed motion to postpone the hearing indefinitely on grounds previously stated was denied. General Counsel's motion to conform the pleadings to the proofs in matters of minor variance was granted without objection. All parties waived oral argument, and were given an opportunity to file briefs and proposed findings and con- clusions with the Trial Examiner. Respondent and the Union have filed briefs. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT, THE STATUS OF THE UNION Respondent Nashua Manufacturing Corporation of Texas is and has been at all times material herein a Texas corporation having its principal office, place of business, and plant in Wichita Falls, Texas, where it is engaged in the manufacture, sale, and distribution of house trailers and related products. In the year ending June 30, 1952, Respondent bought for use in its business raw materials valued in excess of $182,000, of which more than 50 percent was shipped to its plant from points outside Texas. In the same period it sold products valued in excess of $ 832,000, of which more than 50 percent was shipped from its plant to points out- side Texas. I find on the above facts that Respondent is engaged in commerce within the mean- ing of the Act. The Union is a labor organization within the meaning of Section 2 (5) of the Act, which ad- mits to membership employees of Respondent. II. THE UNFAIR LABOR PRACTICES A. The union activity and Respondent's knowledge thereof The record does not show exactly when the Union began to organize Respondent's plant, but employee Clinton E. Muhlinghause became interested in the Union about 2 weeks after he started work on February 17, 1953, at the plant, and he signed a union card a week later. Employee Carl Harris became interested in the Union in March, and signed a union card in late March or early April. In this period there was general, open discussion about the Union among all the employees in the shop, and some of them talked to Production Manager Floyd A. Green about it. The Union held a meeting for the employees on the night of March 24 or 25, iThe charge, complaint, and notice of hearing thereon, were duly served on Respondent and the Union. 2 The Regional Director made his decision September 1, 1953, and the Union appealed September 11, 1953. The Trial Examiner has been advised by the office of the General Counsel in Washington that the Union's appeal was denied on November 19, 1953. 840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1953, and thereafter some of them told Green about it. During March and April, Respondent had about 28 employees in its plant , and all of them , except an unstated number employed in the paint shop, worked in the same room. These findings are based on credited testimony of Muhlmghause and Harris, admissions of Green, and stipulations of the parties. I conclude and find on the above facts that the union campaign was in progress during February, March, and April, 1953, and that Respondent was aware of the union activity in its plant in this period.3 B. Interference, restraint, and coercion When Clinton E. Muhlinghause sought employment at Respondent's plant on February 17, 1953, he was interviewed by Floyd A. Green, production manager at the plant, who looked over his application blank and questioned himabouthis past experience. Green hired Muhlmg- hause, telling him to start work at noon. He also asked Muhlinghause, "What union do you belong to? " and Muhlinghause replied, "Not any." I find these facts on the credited testimony of Muhlinghause, who testified in a clear and straightforward manner and impressed me as being a truthful witness. Green did not deny the facts of the interview as stated by Muh- lmghause, nor specifically deny this interrogation; he only denied generally any questioning of employees about union affiliation on the above date. Furthermore, Muhlinghause's testimony is corroborated to some extent by Green's admission that on 1 or 2 occasions he questioned job applicants about their union affiliation; he recalled J. W. Needham as one thus questioned. His excuse for such interrogations was that, in cases where the application indicated the applicant came from a local firm where Green knew a strike was in progress , he desired to find out whether the man intended to work only temporarily until the strike ended, in which event he did not want to hire and train the man. Assuming the economic validity of this excuse, it does not thereby prove that he did not on this occasion interrogate Muhlinghause, for there is no proof one way or the other as to Muhlinghause's prior employment (if any), or as to the lack of labor trouble in such prior employment. On the contrary, the nature of the excuse it- self supports an inference that the admitted interrogations were for other than economic rea- sons: if Green learned that an applicant had come from a strike-bound plant, he need only have asked the man whether he intended to remain with Respondent, if hired, or return to his former job when the strike there ended; an inquiry into his union affiliation at his former place of employment would appear unnecessary, unless Greene really wanted to know whether the man had gone on strike himself, or engaged in other concerted activity. In the latter part of March 1953,4 the Union held a meeting at night which was attended by employees of Respondent. The next day, as employee Jesse J. Halcomb was passing the plant office, he saw Frank Moore, assistant production manager, sitting therein, writing on a piece of paper. Halcomb asked Moore what was on the paper, and Moore answered, "A list of names ." Halcomb asked what names, and Moore replied, "the ones that went to the meeting." Halcomb looked down at the paper , and saw his name and those of Solomon Abraham, a lead- man, and employee J. W. Needham listed on the paper. Halcomb asked Moore what he was going to do with the names, and Moore replied, "Turn them over to Floyd. "5 31 do not credit testimony of Green and his assistant, Frank Moore, denying knowledge of any union activity in the shop prior to the termination interview of one J. W. Needham. which apparently took place in late March or early April. 4 Halcomb places the meeting on the 24th or 25th. 5 These findings are based on the credited testimony of Halcomb, who testified in a simple, straightforward manner and impressed me as a reliable witness. While Moore categorically denied any discussion with Halcomb as related by the latter, I do not credit his denials. I have found that Respondent was aware of the union organizing campaign from February onward and knew of the employees' interest in the Union. Respondent's interrogation of Muhlinghause in February, as found above, and Green's unconvincing excuses for other interrogation of pros- pective employees, indicate that Respondent was displaying an inordinate interest in the union activities of prospective employees at least. Moore's listing of names of employees who attended a union meeting is consonant with Respondent's previously displayed interest in union affiliation of prospective employees, one of whom became an employee. I therefore also accept Halcomb's testimony as to the Moore conversation as more inherently 'probable in the circumstances than Moore's mere denial of the incident Moore's testimony indicating that he may have had only a list of items needed for production in his possession is vague and un- convincing, and I do not credit it. NASHUA MANUFACTURING CORPORATION OF TEXAS 841 Later the same day, Production Manager Green called Halcomb into his office and asked him who had been at the union meeting. Halcomb said he did not know, as he was not there. Green then told Halcomb that the Company had tried a union in Missouri and had beat it there, and they were not going to have it "here," either. Green also told Halcomb that if he would report anything like the meeting to Green, he would appreciate it. Green further told Halcomb that he had been in the plant long enough so that Green thought he ought to have a raise in pay. 6 The record shows, and I find, that bothGreen and Moore are supervisors within the meaning of Section 2 (11) of the Act, and it is clear that their conduct found above is chargeable to Respondent. It has been settled by many decisions of the Board, with the approval of the courts , that employer interrogation of employees or prospective employees regarding any aspect of their union or other concerted activities is per se an unlawful intrusion into a sphere of employee activity reserved to them and protecteby the Act, and that such interrogation constitutes interference with, restraint, and coercion of employees in violation of Section 8 (a) (1) of the Act. I therefore conclude and find that, by Green's interrogation of Muhlmghause on February 17, 1953, and his similar interrogation of Halcomb late in March, Respondent has violated Section 8 (a) (1) of the Act. Moore's statements to Halcomb that he was listing the names of employees who had attended a union meeting the night before, and that he would turn it over to Floyd Green, his superior, were calculated to foster the impression that Respondent was engaging in surveillance of union meetings, and thus tended to intimidate employees, in violation of Section 8 (a) (1) of the Act.7 Green's ensuing interrogation of Halcomb as to who attended the same meeting, followed by his suggestion that Halcomb furnish him with reports regarding similar meetings, was con- duct which further tended to foster the same impression and also was direct attempt to enlist an employee in such unlawful surveillance inviolation of Section 8 (a) (1) of the Act. 8And when Green, a supervisory official who had power effectively to recommend wage increases, coupled this suggestion to Halcomb with the commentthathe was due for a raise, he was impliedly in- dicating to Halcomb that if he aided Respondent in such surveillance he would receive a material reward. This was an unlawful promise of benefit as a reward for spying which further tended to coerce an employee in the exercise of rights guaranteed to him by Section 7 of the Act, in violation of Section 8 (a) (1) of the Act. 9 Employee Carl Harris testified that in theearlypart of April 1953, he had a talk with Frank Moore in the plant, in which Moore said that the Company had phoned to the supervisors, mentionlrg Floyd (Green), and told them that they would shut down the plant before they would have a union there. Moore also said the Company had had to lay off some employees, and that Halcomb came "back there popping off and he just laid him off, too." While Harris testified clearly as to the treat of shutdown, he could not say who made the threat, other than "the company," and he could not remember whether Moore coupled the statement as to the 6 These findings are based on credited testimony of Halcomb. Although Green denied cate- gorically any request toHalcombto reportonunion meetings, and any offer of a raise in pay in return therefor he did not deny specifically his inquiry of Halcomb as to who attended the union meeting, nor his remarks regarding a union at Respondent's Missouri and Texas plants. I have already found that Green interrogated prospective employees regarding their union affiliations. Halcomb's testimony is corroborated circumstantially to some extent by the admissions of Marion H. Musselwhite, general manager of the Wichita Falls plant, that all recommendations for wage increases went throughGreen, and thatGreen's recommendations thereon are usually followed by Musselwhite, and Green's admission that he frequently advises an employee lie should get a raise, with the intention of making a recommendation on it, and that this is a "normal" practice. In view of these admissions, the fact that neither Moore nor Green ever actually recommended to Musselwhite, the plant manager, that Halcomb be given a wage in- crease, and that Halcomb never received a raise, is immaterial. Green also admitted that he had formerly worked at the Linden, Missouri, plant of Respondent. In the light of these admissions, I consider it more probable that the conversation occurred as stated by Halcomb,than that it did not. 7 Knickerbocker Plastic Co., Inc., 96 NLRB 586; Roxboro Cotton Mills, 97 NLRB 1359. Whether or not the surveillance indicated by Moore's remakrs and conduct was actual or pre- tended, the coercive effect thereof was the same. F. W. Woolworth Co., 90 NLRB 289; Mike Persia Chevrolet Co., Inc., 107 NLRB $77. 8See preceding footnote, and Dolores, Inc., 98 NLRB 550; Graniteville Company, 96 NLRB 456. 9 Foremost Dairies, Inc., 83 NLRB 1094. 842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD layoff with the fact that the laid-off men had signed up with the Union; and his testimony as to Halcomb's l4yoff is vague and uncertain. Moore categorically denied having such a conver- sation with Harris. Harris also testified that he talks almost every day with Moore about his work and other matters, but this occasion was the only one in which Moore made any reference to the Union. Harris also testified that he signed a union card sometime before his alleged talk with Moore, that he is still employed by Respondent, and that Green once told him that it made no difference as to his job whether he joined the Union. Green and Musselwhite, the plant manager, also testified credibly that only Musselwhite handles communications between Respondent's Texas plant and its Missouri plant and office. There is no proof that Respondent ever shut down the plant, or that any like threats were uttered to other employees. Considering all the circumstances I am unable to conclude that General Counsel has proved by a prepon- derance of the credible evidence that Moore on this single occasion uttered a clear threat of economic reprisal which was either calculated to, orin fact did, coerce employees in violation of the Act. It should be noted that the threat of a plant shutdown is not alleged in paragraph 5 (e) of the complaint. The other remarks attributed to Moore by Harris do not violate the Act. I conclude that General Counsel has not sustained the burden of proving paragraph 5 (e) of the complaint by a preponderance of credible evidence, and shall recommend that said paragraph of the complaint be dismissed. III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section II, above, occurring in connection with the operations of Respondent described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the severul States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY I have found that Green, production manager and second in command in Respondent's Wichita Falls plant, interrogated a prospective employee in February 1953, and that the same official and his assistant created an impression of unlawful surveillance of employee con- certed activities by their remarks late in March to a single employee, who was at the same time interrogated by Green about a union meeting and importuned to aid in surveillance of union meetings by a promise of benefit. In its brief Respondent in effect argues that the record shows only a few, casual, isolated interrogations and remarks which were not coercive in themselves or accompanied by threats or promises, and not related to restraint of employees in their right of self-organization, citing decisions of various courts of appeal 10 Most of these cases involved acts of interrogation, and were devoid of evidence of antiunion background or a pattern of conduct hostile to unionism on the part of the employer. If the case before me involved only the two interrogations found above, Iwould be inclined to agree with Respondent's contention, for the record here contains no substantial proof of prior antiunion activity by Respondent, nor of any subsequent antiunion conduct, or discrimination against the employees who testified herein, or other employees, for which these interrogations might form a natural prelude, ii Thus, the two incidents of interrogation, standing naked and alone, would not war- rant a remedial order. B However, the interrogation of mid-February and the conduct and remarks of Moore and Green on one day in late March have a common aspect: they all indicate 10 N. L. R. B. v. Montgomery Ward & Co., 192 F. 2d 160 (C, A. 2); N. L. R. B. v. Superior Co., 199 F. 2d 39 (C. A. 6); N. L. R. B. v. Arthur Winer, Inc., 194 F 2d 370 (C. A. 7); N. L. R. B. v. Tennessee Coach Co., 191 F. 2d 546 (C. A. 6); N. L. R. B. v. Clearwater Finishing Co., 203 F. 2d 938 (C. A. 4); N. L. R. B. v. England Bros. Inc., 201 F. 2d 395 (C. A. 1). "As noted above, General Counsel has sustained the Regional Director in his refusal to issue a complaint based on alleged discriminatory terminations of employees in March and April 1953. When Respondent tried to adduce evidence as to the reasons for layoffs in this period on cross-examination of witnesses, I excluded such testimony on objection of the Union as being outside the issues before me. I allowed cross-examination of witnesses of both sides as to the circumstances surrounding the layoff of one J. W. Needham, as bearing on the time when Respondent first learned of the union activities, but I make no findings thereon as to the character or validity of Needham's termination, 12 New Mexico Transportation Company, Inc., 107 NLRB 47. UNITED INSURANCE COMPANY 843 that Respondent was displaying an inordinate interest in the concerted activities of its em- ployees and was taking definite steps to satisfythat interest , including an attempt to enlist the aid of an employee for that purpose. In the light of the unconvincing excuse offered by Green for admitted interrogations of other prospective employees, the inference is justified that Respondent 's more than casual interest in employee concerted activities was not caused by a natural business or economic interest butbyulterior motives. The Board has long recognized, with the approval of the courts, that employees' self-organization and other concerted activ- ities constitute an area of activity guaranteed by the Act as the exclusive business and concern of the employees, and has condemned as an unlawful interference with this right of privacy indirect attempts of employers through espionage or surveillance to secure information about such activities of their employees.13 In the light of these principles, I cannot view these in- terrogations , plus conduct giving the impression of surveillance and involving an attempt to bribe an employee to assist in such surveillance, when indulged in by the second and third ranking supervisory officials in a plant of only 28 employees, as mere casual or perfunctory remarks or conduct lacking in any aspects of intimidation or coercion. I feel that it may rea- sonably be anticipated, in line with past Board experience, that this type of conduct, if per- mitted to continue, will probably be followed by efforts of the employer to hinder or defeat employee. activity looking to self-organization. I therefore conclude that the decisions cited by Respondent are not apposite or controlling here, and I shall recommend that Respondent be ordered to cease and desist from the specific unfair labor practices found above, and from interfering in any other manner with the rights of employees guaranteed by Section 7 of the Act. M I shall also recommend that Respondent take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and on the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The above Union is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees to the extent found above in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent has not violated the Act by interrogation of employees as set forth in para- graphs 5b and 5c of the complaint, nor has it committed any violation of the Act as set forth in paragraph 5e of the complaint. [Recommendations omitted from publication.] 13 Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1360, 1361, and cases cited in footnotes 13 and 14. 14Mike Persia Chevrolet Co., Inc., 107 NLRB 377. UNITED INSURANCE COMPANY and INSURANCE WORKERS OF AMERICA, CIO, LOCAL NO. 5, Petitioner UNITED INSURANCE COMPANY and INSURANCE AGENTS INTERNATIONAL UNION, AFL, Petitioner. Cases Nos. 4- RC-2052 and 4-RC-2110. May 11, 1954 DECISION, ORDER, AND DIRECTION OF ELECTION Upon separate petitions duly filed under Section 9 (c) of the National Labor Relations Act, a hearing in Case No. 4-RC-2052 and a consolidated hearing in Cases Nos. 4-RC-2052 and 4-RC- 108 NLRB No. 115.