Sunbeam Electric Manufacturing Co.

In the Matter Of SUNBEAM ELECTRIC MANUFACTURING Co. and UNITED ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, AFFILIATED WITH THE C. I. O. Cases Nos. R-2697 and R-2093.Decided May 09, 19.42 Jurisdiction : refrigerator manufacturing industry. Unfair Labor Practices Interference, Restraint, and Coercion: interference with Board election by course of conduct planned to cause the disaffection of employees from the union and to sway the result of an election. Remedial Orders : cease and desist unfair labor practices. Practice and Procedure : election set aside and petition dismissed without preju- dice. Mr. Robert D. Malarney and Mr. Arthur R. Donovan, for the Board. Mr. Robert D. Markel, Mr. Harry D. Dees, and Mr. Isidor Kahn, of Evansville, Ind., for the respondent. Mr. James Payne, of Evansville, Ind., for the Union. Mr. Gilbert V. Rosenberg, of counsel to the Board. DECISION AND ORDER STATEMENT OF THE CASE On April 18, 1941, United Electrical, Radio & Machine Workers of America, affiliated with the C. I. 0., herein called the Union, filed with the Regional Director for the Eleventh Region (Indianapolis, Indiana) a petition alleging that a question affecting commerce had arisen concerning the representation of employees of Sunbeam Electric Manufacturing Co., Evansville, Indiana, herein called the respondent, and requesting an investigation and certification of representatives pursuant to Section 9 (c) of the National Labor Relations Act, 49 Stat. 449, herein called the Act. On August 23, 1941, the National Labor Relations Board, herein called the Board, issued its Decision and Direction of Election.' On September 16, 1941, pursuant to 1 Matter of Sunbeam Electric Manufacturing Co., and United Electrical Radio & Machine Workers of America, afilliated with the C. I. 0., 34 N. L. R. B. 831. 41 N. L. R. B., No. 97. 469 470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD I the aforesaid Direction of Election, an election by secret ballot was conducted among the cabinet division (Building 2) employees of the respondent. On the, same day'the Regional Director issued an Elec- tion Report, showing that a majority of the employees voted against the Union.2 On September 18, 1941, the Union filed' objections to the conduct of the election, alleging in substance that by numerous antiunion statements, letters, and speeches, the respondent had pre- vented a free and uncoerced election.3 In his Report on Objections to the Conduct of Secret Ballot' and Election Report, dated October 31, 1941, the Regional Director found that the. matters to which the objections filed by the Union were directed raised "substantial and material issues with respect to the conduct of • the election and could have affected the free expression of the choice of representatives by the employees." In the meantime, on September 17 and 19, 1941, respectively, the Union filed a charge and amended charge with the Regional Director. Thereafter, by order dated November 26, 1941, the Board, having found that the Union's objections raised substantial and material issues with respect to the conduct of the ballot of September 16, 1941, directed that a hearing be held on the objections and, pursuant to Article II, Section 36 (b) and Article III, Section 10 (c) (2), of National Labor Relations Board' Rules and Regulations-Series 2, as amended, ordered that Case No. C-2093, the unfair labor practice proceeding, be consolidated with Case No. R-2697, the representation proceeding. On January 3, 1942, the Board, by the Regional Direc- tor, issued its complaint against the respondent, alleging that it 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 Act. Copies of the complaint, and of notice of hearing thereon and on the Union's objections to the election, were duly served upon the respondent and the Union. With respect to the unfair labor practices, the complaint alleged in substance that,the respondent: (1) from on or about May 1, 1941, through January 3, 1942, engaged, in a preconceived and continuous plan and course of action for- the purpose of interfering with the 2 As, to the balloting and its ,results, the Regional Director reported as follows : Total alleged eligible voters__________________________________________501 Total votes cast----------- --------------------------------------------- 485 Total valid votes cast ________________------ _------------------------ ___.- 431 Total votes for the Union ---------------------------------------------- 155 Total votes against the Union__________________________________ _________ 276 Total void ballots------------------------------------------------------ 1 Total challenged ballots_________________________________________________ 53 s The allegations of the complaint in Case No C-2093, hereinafter summarized,' include substantially all the Union's grounds of objections SUNBEAM ELECTRIC MANUFACTURING CO. 471 self-organization . of its employees and inducing them to • refrain from becoming members of the Union or 'to abandon their affilia- tion with the Union; and (2) in furtherance of the plan and course of action, openly discouraged membership in the'Union by (a) de- claring to employees that they would lose certain advantages should the Union be successful in organizing a majority of the employees; (b) threatening employees with loss of seniority, Christmas bonuses, and paid vacations, and with a shut-down of the plant if the Union received a majority in the election ordered by the Board; (c) de- scribing the leaders of the Union as Reds and Communists; (d) permitting signs derogatory to the Union to be posted in public places throughout the plant; (e) issuing and circulating a letter on or about September 13, 1941, designed to belittle the collective bar- gaining activities of the Union and to suggest that the union leader- ship was composed of self-seeking and communistic individuals rather than unselfish, law-abiding, and thoroughly American per- sons; and- (f) addressing employees by means of a public address system in such a manner as to discourage membership in the Union and to induce them not to vote for the Union in the election. The, respondent filed an answer, dated January 12, 1942, in which it admitted the allegations concerning the nature of its business but in effect' denied that it had committed any unfair labor practices or that it had engaged in any preconceived or planned course of, action for the purpose of inducing its employees to refrain from becoming members of the Union or to abandon the Union. Pursuant to notice,4 a hearing was held at Evansville, Indiana, from January 12 to 14, 1942, inclusive, before Webster Powell, the Trial Examiner duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its field organizer; all parties participated in the hearing. Full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing on the issues was afforded all parties. At the opening of the hearing the respondent moved to dismiss the complaint on the ground that the matters alleged therein did not constitute unfair labor practices within the meaning of Section 8 (1) of the Act and on the ground that the complaint did not conform to the requirements of the Act or of National Labor Relations Board Rules and Regulations-Series 2, as amended. The respondent fur- ther moved to dismiss the complaint on the ground that it was not correctly signed pursuant to Article VI, Section 2, of the Rules and Regulations. The respondent also moved to strike specified para- graphs of the complaint. These motions were denied by"the Trial 4 The respondent and the Union both waived the usual 10 -day notice of bearing 472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Examiner. The respondent also moved at the opening of the hear- ing that the complaint be made more specific, definite, and certain. The Trial Examiner granted this motion in part, and directed counsel for the Board to furnish the respondent with the names of the officer; and agents of the respondent claimed to have engaged in the conduct alleged to constitute unfair labor practices and to furnish 'the re- spondent with the appropriate dates of the alleged unfair labor practices.-' At the close of the hearing, ' the respondent, moved to dismiss the complaint for lack of evidence and to dismiss the objec- tions 'by the Union to the Election Report. The Trial Examiner at the hearing reserved decision on the motion to dismiss the com- plaint, but later denied it in his Intermediate Report; the motion to dismiss the objections was referred by the -Trial Examiner to the Board. The Board hereby denies the motion. A motion by counsel for the Board at the close of the hearing to conform the pleadings to the proof with respect to names,, dates,' and other minor particulars was granted by the Trial Examiner over the objection of the re- spondent. During the course of, the, hearing the Trial Examiner made a number of rulings on other motions and on the admissibility of 'evidence. The Board has reviewed the rulings of the Trial Exam- iner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. ' On February 7, 1942, the Trial Examiner filed his Intermediate Report, copies of which were duly served upon the parties, in which he found that the respondent had engaged in unfair labor practices affecting commerce, within the meaning of Section 8 (1) of the-Act. He recommended that the respondent cease and desist from its unfair labor practices and that it take certain affirmative action to effectuate the policies of the Act. On March 26, 1942, the respondent filed its exceptions to the Intermediate Report and a brief in support of the exceptions. • On March 23, 1942, the Union filed with the Board a "Motion to Amend the Direction of Election" requesting that the cabinet division unit of employees, previously found, by the Board in Case No. R-2697 to-be appropriate,6 be enlarged to a plant-wide unit, comprising the production and maintenance employees in all four of the respondent's buildings, and that an election be held, in the,, larger unit. In support of this motion the Union alleged,that it now represents a majority of the 'production and maintenance employees in the larger unit requested in its motion. Since our Decision and Direction of Elec- 6 Counsel for the Board complied with thii3 ruling. To make ,the complaint more spec 8c, the Trial Examiner ordered stricken from paragraph ' 5 of the complaint the words "including the following, but not limited thereto." - ' _ - See 34 N. L. R. B. 831.' SUNBEAM ELECTRIC MANUFACTURING CO. 473 tion was issued on' August 23, 1941, more, than '9 months ago, and since the effect,of certain unfair labor practices in which the respond- ent has since engaged must be dissipated before a free election can be held,.the motion is hereby denied. Pursuant to notice and, at the request of the respondent, a hearing was held before the Board at Washington, D. C., on April 2, 1942; for the purpose of oral argument. The respondent was represented by counsel and participated in the argument. The Union did not appear. The Board has considered the exceptions to the Intermediate Re- port and the brief in support thereof and, insofar as the exceptions' are inconsistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Sunbeam Electric Manufacturing Co., an Indiana corporation with its principal office and place of business in Evansville, Indiana, is engagedin the'manufacture, sale, and distribution of refrigerator units and cabinets. During 1941 the respondent purchased raw materials, consisting' principally of steel and sheet metal, valued in excess of $1,000,000, of which more than 75 percent was obtained from points outside the State of Indiana. During the same period the - respondent sold to its only customer, Sears, Roebuck & Company, finished prod- ucts valued, at more than $1,000,000, of which more than 75 percent was shipped to destinations outside the State of Indiana. The respondent concedes that it is engaged in commerce, within the meaning of the Act. S U. THE ORGANIZATION INVOLVED United Electrical, Radio & Machine Workers of America is a labor organization affiliated with the Congress of Industrial Organizations, admitting to membership employees of the respondent. III. THE UNFAIR LABOR PRACTICES A. Background In January 1941, the Union began, an' organizational campaign among the employees in the cabinet division at the respondent's plant. On April 17, 1941, the Union notified the respondent that it repre- sented a majority of the employees in the cabinet,division and asked for a conference for the purpose of negotiating an agreement. The respondent refused the request, asserting that the cabinet division was 474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD not an appropriate unit. Thereupon, as stated above, the Union on April 18 filed with the Board a representation petition. On Au- gust 23, 1941, following a hearing on July 1 and 2, the Board issued its Decision and Direction of Election in Case No. R-2697.? Pur- suant thereto, the Board conducted an election on September 16, 1941, among the employees in the respondent's cabinet division to determine whether or not they wished to be represented by the Union. The Union lost the election. The issues herein arise out of the Union's allegation that, prior to the election, the respondent engaged in an anti-union campaign designed to coerce its employees into voting against the Union. B. Interference, restraint, and coercion On or about June 15, 1941, Victor Barnett, superintendent of the respondent's cabinet division, sent-for .Max Doty and William Bre- demeier, both of whom were employed as sprayers in the paint de- partment, and informed them that he noticed they were wearing union buttons and asked them what they could get from the Union that they could not'get from the management. Barnett then talked about the Christmas bonus, vacations with pay, and insurance,benefits accorded them by the respondent. During the course of the conver- sation, Barnett made calculations to see whether they stood to gain or lose by having the Union. On the basis of his calculations, which included payment of union dues and an estimated loss of 6 weeks' work because of strikes, Barnett figured that they would lose money if the Union represented them." On July 17, shortly after the hearing in the representation case, J. Henry Schroeder, executive vice president of the respondent, spoke to the employees of the respondent, including those in the cabinet division, over the public address system in the plant. Schroeder be- gan his talk as follows : We have always operated this business on the theory that we are all working together toward • a common goal and that all people on the Sunbean payroll should know about those things that have a distinct bearing on our individual jobs and our indi- vidual welfare. For that reason, it has been our practice to come before you from time to time to tell you of the problems ' See footnote 1, supra. s These find•ngs • are based on the mutually corroborative testimony of Doty and Bredemeier. Barnett, without fixing the (late of the conversation , gave a different version of it He testified that Foreman Edward Keene reported to him that Doty and Bredemeier wanted to see him and that he then sent foi them '; that they asked for a wage increase ; and that he then calculated with them what they were earning, including Christmas bonuses and vacations with pay Keene, who was present at the conference, did not testify. Although there is some disagreement between Doty and Bredemeier as to the time at which this conversation took place , we accept their testimony as being substantially accurate , as did the Trial Examiner. SUNBEAM ELECTRIC MANUFACTURING CO. 475 and the projects of the company so that you will be fully in- formed. Several months ago, we reported to you that the United Electric Radio and Machine Workers of America, a C. 'I. O. affiliated union, had written us asking to be 'recognized as the bargaining agent'.for our cabinet plant. We replied to the union that we could not recognize them as the bargaining agent because the cabinet department was an integral part of our whole plant and was, therefore, not an appropriate bargaining unit. We also stated that in our opinion, the union did not represent a majority of our employees in building #2 (the cabinet department) or in any other building. Schroeder then summarized the evidence submitted to the Board at the hearing with respect to the contentions of the parties as to the appropriate bargaining unit, laying particular stress on the merits of the respondent's position. Schroeder continued : We believe that we presented a convincing ease and that the Board will decide that the cabinet department is not a separate unit and, therefore, not an appropriate bargaining unit and will. deny the petition for an election. In addition to the question as to whether the cabinet plant is a separate unit or a department of Sunbeam our attorney questioned the qualifications of the petitioning union as a proper bargaining agent under any circumstances on the basis that the union is dominated by recognized communists. Our attorney took the position that the Communist party advocates overthrow- ing our government by force, if necessary, and therefore a union dominated by members of that party is not a proper bargaining agency for our employees. He based his statement on reports of the Dies Committee of the United States Congress, on Un-American activities which were quoted generally in newspapers, showing that James Matles, Organizer, Julius Amspak,9 Secretaiy-Treasurer, and William Senter,10 Vice-President' and Head of this district of the United Electric Radio and Machine, Workers of America, were all active members of the Communist party. This same William Senter, who represented the union at the hearing, did riot deny being a Communist although he had several opportunities to do soil B His correct name is Julius Emspak 10 His'correct name is William, Sentner. "At the original healing in Case No. R-2697, the Trial Examiner refused to permit interrogation of witnesses by the respondent conceining the alleged communist connec- tions of the Union's officers In its Decision and Direction of Election , the Board afflimed this ruling I 476 DECISIONS OF NATIONAL. LABOR : RELATIONS :BOARD You'may be interested in reading other material used by our attorney in charging Senter with being a member of the Commu- nist party. An article in the current July issue of Readers' Digest entitled, "We Are Already Invaded," by Stanley High, reads in part as follows : "Another strategic union is the C. I. O.'s Electrical, and Machine, Workers of America. Its president, youthful James Carey, is no communist. But his two chief organ- izers are Joseph Matles and William Senter. Matles, in addition to long association with "front" organizations, is on record with an endorsement of -the Communist party's election ticket. Senter last year, was a delegate to the party's Missouri-Arkansas state convention. It has always been our policy at Sunbeam to manage our busi-, ness to the best interests of the employees, the customers, and the owners. The growth of 'the business in recent years testi- fies that we have done a reasonable good job in dividing the customer's dollar. Beginning a month ago and starting with the tool room and the maintenance'departments,'your inaliagen' entworking with the Sunbeam Employees Association '12 has started,further increases 'which' will average another 8% and will have as its minimum 57o so that within the neat several weeks, all factory employees with the exception of those raised- since June 1st, will again re- ceive pay increases. The details of the plan are being worked out with the coopera- tion of the management and your elected representatives in the Sunbeam Employees Association. As soon as these increases are in full effect, it will mean that the average Sunbeam factory em- ployee has received about 16170 increase since the first of the year, making •a total payroll increase of more than one-half a million dollars a year. Our company has recognized and will continue to recognize the Sunbeam Employees Association as the sole bargaining agent for our, employees. The National Labor Relations Board has made no statement' whatsoever about the Sunbeam Employees Association. 12 Although served with notice of hearing in the representation proceeding, the Sun- beam Employees Association failed to appear at the hearing ; nor did its name appear on the, election ballot , of September 15, 1941. SUNBEAM `EUECTRIC MANUFACT 'URIN'G " Co. 477 Schroeder c6ncluded his remarks by stating : IWhenever any of us have a decision to make, we should first get all the facts and then study them in a clear-headed way be- fore arriving at a decision . You have a decision to make. Will you continue to follow the method of friendly dealing with your management that has gained so much in the past? I urge you to study the facts, to examine the record before deciding the type of leadership to- follow , to gain the most in lasting benefits. Above all, discuss this matter freely with your associates, with your parents or with your wife and consider the effect that your decision may have on you, your family , and your country. On September 5, 1941, after the Board's Decision and Direction of Election had been issued in the representation case, W. A. Carson, president of the respondent , talked over the public address system to all the employees of the respondent , including those in n-the cabinet divi- sion. Carson began by discussing the need for curtailment of non- defense production , the coming reduction in the respondent 's refrig- erator business , and the efforts made by the respondent to obtain war orders. Carson further stated : Several labor unions have recently put out petitions purporting to gain support for obtaining more defense business for Evans- ville industry. They have also recently proposed a plan of re- training all employees who might be laid off if refrigerator pro- duction is curtailed , and suggest a so-called "mass training program." In' the first place, no outside group is in any better position to obtain defense business for us than they are to obtain refriger- ator business . It has always been in the past, and will always ' be in the future, by the very nature of things; management alone who can secure orders and contracts for our plant , whether they - are defense contracts or refrigerator orders. The ability of this factory or any factory to get defense work depends on a number of highly complex factors which manage- ment alone is in a position'to evaluate and handle. Defense work cannot be obtained by .running up and down Main Street and getting signatures on a petition. Interferences and annoyances by outsiders cannoti in any way, speed up the job of getting defense work here at Sunbeam. Regardless of what anyone tells you , you can rest assured that it will be your management, and not an outside group , who will obtain defense work that will keep the largest possible number of employees steadily employed. - - 478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Do not be misled by grandiose promises that if refrigeration production is curtailed and you are laid off that you can be retained and trained for defense work immediately.. It is self- evident that before any so-called "mass defense training" pro- gram can be put into effect , there must be defense business on which to train . You need only stop and ask yourself what you ias an individual would train on, if refrigerator production com- pletely stopped here at Sunbeam tomorrow. Carson concluded his talk by saying : The success with which we are able to deal with the difficult problems that lie ahead depends to a large extent upon the frank- ness; honesty, sincerity and cooperation that exists between Sun- beam employees and their management. I pledge you the cooperation of your management. The rest is up to you ! Early in September 1941, Otto Drilling, general foreman, informed Dennis Scheessele, an employee, that he was in line for a better job. During the conversation, which took place in Superintendent Bar- nett's office, Drilling inquired if Scheessele thought that he and the other men were doing the right thing "talking at lunch .. . talking between times . . . talking in the morning . . . about trying to get [the men] to sign cards." Scheessele replied that many of the men wanted to get advice from those who were already in the Union. Drilling then remarked that these were critical times and inquired of Scheessele what the latter thought it best to do . Scheessele testi- fied, as to this remark, "I took it that he meant regarding the union. I didn't say nothing about that. I went on to say that I noticed the Evansville Cooperative League wasn't so active up there ... any more." At this point in the conversation Barnett came into the office. Drilling then told Barnett that he had mentioned to Scheessele that he liked his work and,that there ought to be a better job for him, but that "it [«ould] take some cooperation." Barnett then turned to Scheessele and said, "Yes, you will have to cooperate." At this point, Drilling said that he did not think' Scheessele had changed his mind any, and that he noticed Scheessele still had [union] cards and a pencil in his pocket yesterday morning when he came, in the door. Either Barnett or Drilling then mentioned the possibility of everybody's being laid off in the cabinet plant. Barnett added that there would be "plenty of jobs on the other side," 13 but that if the men went ahead and voted "this thing in here and get a uliion," it would be impossible for them to transfer any of the men over to the other "side," even if they wanted to. Barnett ended the conversation "We find; as did the Trial Examiner , that by this remark Barnett wa's referring to defense work in the unit plant located across the street from the cabinet plant SUNBEAM ELECTRIC MANUFAC TURING Co. 479 by urging Scheessele to'think the matter over, and offered to advise him further if there was anything else Scheessele wanted to know.14 On or about September 9, 1941, William Doench, foreman of the assembly line in the cabinet division, asked Joseph Feldhaus, an employee, whether he would better himself and whether he would continue to receive vacations with pay, insurance, and Christmas bonuses if the Union "would get in the shop." Feldhaus replied that he thought he would. Doench also asked Feldhaus whether he had any trade he could fall back on if he was laid off, and informed Feldhaus that, if the Union won the election, "the old man was going to shut the cabinet plant down." Feldhaus testified that he understood that Doench was referring to'Presidei t Carson.15 On or about September 11, 1941, games Payne, union organizer in the Evansville, Indiana, area, was passing out leaflets in front of the plant where he accosted Stanley Duncan, assistant foreman in the cabinet division, and complained about a supervisor's annoying the union employees. Duncan replied that the supervisors had a right to talk to the employees in the plant and advise them on what the supervisors thought was right or wrong about the Union. Payne disagreed, stating that he felt that, inasmuch as foremen were not involved in the election, "it was none of their business." Payne added that it was a violation of the law, to which Duncan replied, "Even if' it is a violation of the law, I still think the law is unfair, the law is wrong." The conversation was ended by Duncan's saying, "Well, Payne, you will have to admit that we are carrying on the most ,intelligent campzlign against the union ever carried on in this town." 16 " These findings are based on the testimony of Scheessele Drilling and Barnett both denied that they had any conversation with Scheessele, either jointly or individually, in which unions or the election were discussed They both testified to a conversation had with Scheessele early in September which conceined only the withdrawal by Scheessele of his Christmas savings club money Scheessele's testimony is consistent with the anti- union attitude of the respondent manifested in its various letters and speeches herein `set forth. Upon the entree record the Trial Examiner did not credit the denials of Drilling and Barnett, nor do we - "These findings are based on the testimony of Feldhaus Doench admitted that he had a conversation with Feldhaus in which the Christman bonus and the possibility of a lay-off were discussed, but denied that he mentioned unions or informed Feldhaus that the plant would shut down, if the Union "got in " Doench's remarks to Feldhaus were made during the peak of the Union's election campaign and are consistent with the anti-union conduct during this period by officers of the respondent We credit Feld- haus' testimony, as did the Ti ial Examiner 16 The fact that Payne was not an employee of the i espondent does not privilege Duncan's anti-union statements to him or remove such statements from the proscription of the Act In considering similar circumstances in flatter of The Federbusie Co , Inc and United Paper WPorkerc, Local 292, etc, 34 N L R B .53f, we pointed out that An employei may make his opposition and hostility to a union known to his employees in- many ways other than by stating it to them personally [The em- ployer's] statements, made to the Union organizer, were of a character not nially to be calculated to %ieach the employees and to discourage them fiom joining or assisting the Union I 480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On September 13, 1941, 3' days prior to the scheduled Board elec- tion, President Carson sent the following letter on the respondent's official stationery to each of the employees in the cabinet division: Since many of you will participate shortly in a Labor Board election, I am writing'you at this time for the purpose of ex- plaining a few matters about which you may not already be fully informed. 1. This election will be by secret ballot-the same as in any political election. No one can know, by any means, how you vote. ,BE SURE TO VOTE! The decision vitally affects each and every one of you. The election will be determined by a majority of those voting at the election. Your failure to vote gives someone else the, right to decide who will represent you. A failure to vote is equal to a vote in favor of the side you oppose. 2. The "Yes" is placed first on the ballot because that is the way it has always been done in political elections. By being placed first, it has no more significance than the "No." Each is equally important for you to consider. 3. If the union leaders say to you, or lead you to believe, that you will get certain things if the union wins this election, it does not necessarily follow that you will get these things. As the result of the election, the union can only gain the right to be the sole, collective bargaining agent of our production em- ployees in Building No. 2. 4. What you will get depends on what the company erns and not upon the union's demands. a. You-especially those of you who have been with us for some time-know that it has always been our policy to do the best we could for you in wages, hours and working conditions. We intend to continue this policy in the future regardless of t_he outcome of the election, and we can do no more, regardless of the outcome. Ib. What we can do in the future will depend, as it has in the past, on competition and the prices at which we are able to sell our product. If we cannot sell our product, we are all,out of luck. c. Very large portions of our earnings have been put.back into the plant and equipment so that we have been able to give em- ployment to approximately 3,000 instead of the 100 employees which we had in 1929. 5. The Company does not have to agree to the union's demands, and will never agree to anything which will require any em- ployee to belong to a union in order that such employee may SUNBEAM ELECTRIC MANUFACTURING CO. 481, get or keep a job, or which will give any employee any advantage or preference because of his membership in a union. 6. We suggest you think this whole matter over` very carefully. You might wish to consult with your friends or with people who have had experience in matters of this kind. It would probably be well that you consult with the members of your immediate family. 'Then be sure to vote the way you feel is right, and regardless of what anyone tells you or promises you. You have the right to vote in accordance with your desires and regardless of anything you may have said or done in the past and regard- less of whether you belong to the union or not, or whether you signed an authorization card, application or anything. - 7. If a majority decides in this election that the union shall be the exclusive bargaining representative, then that decision will bind all of the production employees in Building No. 2. S. One of the things we think you should carefully consider is the character of the leadership of the union seeking to be your exclusive bargaining representative-that is to say, is such leadership unselfish, law-abiding, and thoroughly American, or is it self-seeking and Communistic? I hope this letter will assist you in arriving at a proper con- clusion. Carson followed his letter with an address on September 15, the day before the Board election, delivered in the plant to the cabinet division employees. Carson stated, in part : Tomorrow you cabinet plant employees will vote in an election. It will be the most important election in which you have ever cast a ballot. It will be the most important, because in choosing the method of bargaining you want, you are making a decision that will involve your wages, job security, seniority, opportunities, and other things that will have a direct effect upon your individual welfare, and that of your family. You have a heavy obligation to yourself to make a careful decision. On the surface, the "Yes" and the "No" that are printed on the ballot are to decide the question of whether the CIO is to be your sole and exclusive bargaining agency. A more direct and frank statement of the question that prob- ably will be in your minds as you mark your ballots will be whether the CIO will be able to get more out of the company for you than you can obtain by any other way, You will have to decide whether you are willing to pay for being represented by the CIO. 463892-42-vol. 41--31 482' DECISIONS OF NATIONAL LABOR RELATIONS BOARD Many of you who vote tomorrow have not been with us very long. You are not familiar with the long road that many of us have traveled together-a road that has taken us through good times and bad, with overtime during some periods, short hours and layoffs during' others, but through the years a road that has led to, an ever-growing, a constantly progressing and more prosperous Sunbeam-a road that has led to more jobs, steadier work, higher pay, and more opportunities for a constantly increasing number of people. ' Carson then gave a brief history of the respondent's progress from the' time it started as a small business to the present date, when it employs approximately 3,000 people, setting forth the benefits being received by employees at the present time. Carson then continued : I would like to come to you today and make promises that far exceed anything that the CIO has so recklessly promised. I won't do that but I will promise you that. I will continue to follow the same policies in the future that have proved successful in the past. To the utmost of my ability I will do everything I can to keep the pen that has written Sunbeam's record of prog- ress, filled with ink. _ A few of you may feel that while Sunbeam's record of prog- ress has been a good one, you're not concerned so much with what has happened in the past' as_ you are with who's going to do the most for you in the future. There may be a few of you who feel that had it not been for the CIO there would have never been such things as wage increases. Christmas bonuses, paid vacations, etc., and that if you do not vote for the CIO all of these things are likely to be discontinued in the future. I can answer these questions for you in a, hurry. The CIO has never been responsible for any progressive step that your company has, ever taken. These progressive, steps were started long before the CIO was ever heard of. Payment of wage increases, Christmas bonuses, paid vacations have always been based on the ability of the company to pay them. Whether the CIO wins the election or not, whether there will be bonuses or paid vacations will, in the future as in the,past, depend solely on the company's ability to pay them, and not on any other thing. There are probably a few of you who think that the CIO has scared or forced Sunbeam's management into raising wages' and doing other things that are part of Sunbeam's record of progress. I can best answer this by saying that the CIO did not scare your management into building this cabinet plant. They did not SUNBEAM ELECTRIC. MANUFACTURLN'G CO. 483 frighten your "management into, building the porcelain plant, expanding the unit plant, or increasing the number of employees from 100 to 3,000. No, and they were not responsible, either, for our sales increasing from 12 refrigerators in 1929 to 350,000 in 1940. You can decide for yourself who has been responsible for this progress, and by the same token who will be responsible for progress in the future. All of us working together accomplished these things. Sunbeam's record of progress was being written in big letters many years before the CIO had eves' been heard of. I say to you that even though the CIO should win the election tomorrdw, I will never agree to any demands that they may make if I feel that such demands are detrimental to the security of the business, to the maintenance of steady jobs, to steady in- come of our employees, or if such demands are beyond the company's ability to meet. Insistence upon any unreasonable demands might easily result in a strike, which would throw employees out of work. Loss of wages suffered during such a period would' probably never be made up. Even If the CIO should win the election tomorrow, your man- agement and not the CIO will determine whether wage increases are possible. The, CIO, cannot obtain higher prices for our prad- ucts, they cannot guarantee a steady flow of orders, or steady employment. They can guarantee -none of the things that are essential for a successful business. They can promise but they cannot deliver. * * * No labor union can change the simple little formula for success in business which is to make the income greater than the outgo. It is not a question of the management not wanting to raise wages. Does the CIO in claiming that they will get a wage increase for you tell you where it was coming from? I'll tell you where the money comes from-it comes from our customer, and if we raise prices to a point where he quits buying, we are simply killing the goose that laid the golden egg. It is only by increased efficiency, and hard work on the part of management and em- ployees alike that wage increases have been or ever will be possible. A few employees, have expressed fears that if the CIO does not win the election, rates of pay may be reduced, t13at the manage- ment will show less interest in the employee's welfare, and .they will not get as fair treatment. All of these fears and doubts are 484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD based on the assumption that the CIO has been wielding a big stick over your management's head. You have heard and read bulletins put out by the union claim- ing that the CIO is a peaceful bargaining agency, that they sit down with management around the conference table and quietly work out the differences that exist. As long as we have talked about, records, I ask you to look at the record for complete denial of this claim. Are the hundreds of strikes, acts of violence and exorbitant demands we read about in the newspapers, the peaceful means that the CIO claims to use? As a matter of policy, regardless of the result of the election tomorrow, I will never, as long as I am president of Sunbeam, require any man or any woman to pay for the right to work. Membership in a labor union will never be a condition of employ- meat in this plant. I do not propose that any employee shall be required to pay for the privileges that he now enjoys free of charge and will enjoy in'the future. There are a few employees who have signed union cards who feel that by so doing they are bound to vote "yes" in the election tomorrow. This is not true. You have no obligation but to your own conscience, and can vote YES or NO as you desire. We are faced with certain curtailment of refrigerator produc- tion by government order. How severe this curtailment will be we do not know as yet. However, it is certain that when the curtailment order is issued, a tremendous responsibility will be thrown on your management to get sufficient defense business to give employment to those people laid off because of the reduced production. The full time and thought of your management should right now be devoted to getting defense business instead of being harassed by interference from outside union agitators. If there was ever a period in Sunbeam history when we all should be pulling together it is now. In the'past the greatest source of encouragement to me, when the going has been pretty tough, has been the loyalty and the devotion of all our employees to Sunbeam, which I like to think has come to mean something more personal than a company, something more than a group of brick and stone buildings, of machinery. and conveyors. I like to think of the name Sunbeam as being symbolical of a spirit of loyalty, of working harmoni- ously together in a mutual, effort. There is no question but that SUNBEAM ELECTRIC MANUFACTURING CO . 485 the spirit of the Sunbeam organization has been the essence of whatever success your company has attained. In the final analysis, the election tomorrow is really a contest for leadership. You are being asked to decide the type of leader- ship you wish to follow. I have reviewed -the record of my leadership during the last twenty years, in order to enable you to decide whether on the basis of the record you can look forward to a continuation of that record in the future or whether you feel that it has not been good enough, and can be materially improved by following the leadership of an outsider who has nothing on the record but promises-promises of what will be done, but little of what actually has been accomplished. Before making your choice as to the leader you feel will do the most for you, it would be well to examine both Mr. Sentner's record and mine. Who is this William Sentner, the head of the UE-CIO? What is his record? Where did he come- from? What does he represent and why is he suddenly taking an interest in all Sunbeam employees? Who, on the basis of his record, has done more.to earn your confidence and win your respect? Whose leadership forecasts greater opportunities for you-Carson or Sentner? The choice is yours. C. Conclusions The Act contemplates selection by employees of their bargain- ing representatives free from, employer interference, restraint, and coercion. Such freedom on the part of employees imports a corre- lative duty on the part of employers to maintain complete neutrality with respect to elections conducted to ascertain bargaining repre- sentatives.'7 Without regard for this obligation of neutrality and the right of its employees to a free election, the respondent engaged in an outspoken campaign- to defeat the Union at the polls.',, This cam- paign began just prior to issuance of notice of hearing in the repre- sentation proceeding on June 20, 1941, and continued with increasing intensity until the eve of the Board election on September 16, 1941. On about June 15, 1941, Barnett, superintendent of 'the cabinet division, deliberately engaged employees Doty and Bredemeier in a 17 See National Labor Relations Board v Norman A. Stone, 125 F. (2d) 752 (C. C. A. 7) ; Valley Mould and Iron Corporation v. National Labor Relations Board, 116 'F ( 2d)- 700 (C. C. A. 7) : National Labor Relations Board v. Burry Biscuit Corporation, 123 F. (2d) 540 (C. C. A. 7). 11 That the statements, speeches and letters described above were not isolated or unconnected occurrences , but were rather a series of deliberate acts by the respondent designed to drive the Union from its plant, is clearly indicated by Assistant Foreman Duncan's remark to Unior Organizer Payne on September 11, 1041, that "we are carrying on the most intelligent campaign (against the union ever carried on in this town." (Italics supplied.) 486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD conversation in which,he made it clear that the respondent opposed the Union and sought to convince them that representation by the Union would mean a financial loss. In a speech to the employees on July 17, shortly after the hearing in the representation proceeding, Executive Vice-President Schroeder reiterated the charge, previously made by the respondent during the hearing, that the Union Was not a "proper bargaining agency for the [respondent's] employees" because its leaders were Communists. Whatever the motive for them, these statements were clearly an attempt to undermine the confidence of the respondent's employees in the Union and to discourage member- ship therein. During his speech, Schroeder also enumerated the wage increases previously given the employees by the respondent and spoke of comparable increases to be given in the future, all of which he attributed to the bargaining efforts of the Sunbeam Employees Association. With respect to the Association, lie unequivocally stated that the respondent "has recognized and will continue to recognize the Sunbeam Employees Association as the sole bargaining agent for our employees." By these statements, the respondent sought to convince its employees that the Association was an,effective bargaining repre- sentative and that no purpose would be served by the employees' selecting the Union as their bargaining representative. Significantly, Schroeder gave no indication , in his speech that the Union or any labor organization other than the Association would be recognized by the respondent, even if designated as the employees' representative in a Board election. Thereafter, on September 5, 1941, shortly after the Board had issued its Decision and Direction of Election and 11 days before the scheduled election, the respondent's president, Carson, delivered a speech to the employees in which lie disparaged the activities of unions in the Evansville area by ridiculing their efforts and sug- gestions for securing war work for industries in Evansville, and by deriding the mass training program suggested by the unions and the "grandiose promises" made by them. At about the same time , Super- intendent Barnett and Foreman Drilling gave union member Schees- sele to understand that the cabinet-division employees might lose their jobs if they selected the Union. The same theme was stressed by Foreman Doench on or about September 9, 1941, when he warned employee Feldhaus that the respondent would discontinue the bene- fits then enjoyed by its employees and would shut down the plant if the Union "got in." These incidents were not, in our opinion, unbiased discussions or expressions of opinion intended to give the respondent's employees information on a theoretical problem; they were rather unmistakable statements of the respondent's opposition to the Union and threats by the respondent that it would use its SUNBEAM ELECTRIC MANUFACTURING CO. 487 economic power over its employees to their distinct disadvantage if they were rash enough to disregard its views and to select the Union as their bargaining representative. The respondent's anti-union campaign reached its climax just prior to the election in President Carson's letter of September 13' and his speech of September 15, in both of which he reiterated and emphasized the respondent's opposition to the Union. He belittled the collective bargaining advantages to be gained from representation by the Union. He accused the Union of making exaggerated promises to the employees which it could not fulfill, and at the same time re- counted the advantages obtained for the employees by the respondent. The clear connotation of the letter was that selection of the Union in the election would be of no help to the respondent's employees in any attempt to gain wage increases. Carson charged. that the Union was not a peaceful bargaining agency and that representation of the employees by the Union would result in strikes and financial loss to the employees. He intimated that, if the respondent were "harassed by interference from outside union agitators," 19 it would be unable to find employment for employees laid off as a result of the curtail- ment in refrigerator production which was "certain."- In substance, Carson told the respondent's employees that the Union was not to be trusted.. indicated that the respondent would not bargain collectively with the Union as 'to wage increases even if it were selected by the employees as their representative, and warned the employees that adherence to the Union would entail financial loss to them. Carson concluded his speech by posing a false issue between voting for the Union and loyalty to the respondent, as if those were mutually exclusive alternatives. He told the employees that they had the choice of following his leadership with all that he had accomplished for their benefit or "following the leadership of an outsider who had nothing on the record but promises." No such choice is presented to employees participating in an election conducted pursuant to the provisions of the Act; the only question involved in such an election is whether the participating employees want to designate a represent- ative for the purposes of collective bargaining with their employer and, if they do, which if any competing representatives shall be desig- nated. An election is not a contest between a labor organization and the employer of the employees being polled, and participation by an employer in a pre-election campaign as if he were a contestant 19 See Roebling Employees Association, Inc. v National Labor Relations Board, 120 F. (2d) 289, 291 (C C. A. 3) : The connotation of the terms "misleading," "outsiders," and "strangers ," as applied by the respondent to adversaries in a labor controversy, has an appropriate place in a consideration of the respondent's attitude toward "outside" labor organizations and the probable effect of that attitude upon the employees. 488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD is an interference with the employees' right to bargain collectively through representatives "of their own choosing." 20 The respondent contends that the above-described speeches, letters and statements involved "nothing more or less than an expression of the respondent's opinion," 21 and that such expressions are protected by the constitutional guarantee of freedom of speech. As the Su- preme Court of the United States has recently pointed out, however, the First Amendment does not, privilege "pressure exerted vocally" by an employer, where that employer's "whole course of conduct," properly appraised, constitutes interference, restraint, and coercion within the meaning of the Act.22 We' are convinced by the record, and we find, that each of the speeches, letters, and statements de- scribed above was not an isolated and academic expression of a point of view, but was rather an integral part of a "whole course of con- duct" on the part of the respondent planned and calculated to cause the disaffection of its employees from the Union and to sway the result of the election.23 The statements which the respondent now so earnestly characterizes as mere expressions of opinion did not at any time "set forth the right of the employees to do as they please without fear of retaliation" by the respondent.24 On the contrary, their clear import was that the respondent's cabinet-division em- ployees would be made to suffer substantial financial loss if they selected the Union as their collective bargaining representative in the election. So-called "expressions of opinion" which, in their con- text, convey such a meaning to the employees involved can destroy the rights guaranteed in the Act,25 particularly when, as in this case, they are timed to coincide with a crucial period in union organiza- tion and growth, and are given strength through repetition by a 21 See National Labor Relations Board v. Norman H Stone, 125 F. (2d) 752, 756 (C C A 7) • "The [election] campaign then being conducted, however, was not one between the Union and the respondents . It was a contest toward which they should have maintained a strict neutral attitude" 2' Pa_e 18 of the respondent's brief. 22 \!afioaal Labor Relations Board v.. Virginia Electric & Power Company , 314 U. S 469. 21 That the respondent 's conduct in fact affected the employees ' choice of a bargaining representative may be inferred from the fact that, prior to the representation hearing, the Union submitted membership and authorization cards signed by 423 employees In the cabinet di\vision, whereas only 155 employees in that division voted for the Union In the subsequent election. )24 See National Labor Relations Board v. Virginia Electric & Power Company, 314 U S 46) 25See National Labor Relations Board v. Chicago Apparatus Co., 116 F. ( 2d) 753 (C. C A 7), in which the Court, stated in part (at p 756) : Expressions of opinion concerning labor unions , by an employer . . . may be of snch a nature that their effect is to coerce and intimidate the employees . . . To hold that such expressions , when employer manifestly intended to give them such an effect, are not violative of the Labor Act would be to nullify the provisions of the Act and to thwart the public policy evidenced by said Act. See also National Labor Relations Board v. New Era Die Co ., 118 F. (2d) 580 (C. C. A. 3). SUNBEAM ELECTRIC MANUFACTURING CO. 489 corporate employer's most important officers on company time and with company facilities . Unless employees are protected by the Act from such "pressure exerted vocally," they are not free to choose their collective bargaining representatives. We find that, by the respondent's entire course of conduct, as' disclosed by the speeches and letters of Vice-President Schroeder and President Carson and by the anti-union statements of Superintend- ent Barnett, Foremen Drilling and Doench, and Assistant Foreman Duncan, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act.26 J IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMIERCE The activities of the respondent set forth in Section III above, occurring in connection with the operations of the respondent de- scribed in Section I above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that the respondent has engaged in certain unfair labor practices, we shall order it to cease and desist therefrom and to take affirmative action designed to effectuate the policies of the Act. VI. THE PETITION Since we have found that the respondent has, by its unfair labor practices, interfered with the free choice of representatives by its employees at the election of September 16, 1941, we shall set aside the election.27 For the reasons stated above 'in connection with our denial of the Union's motion of March 23, 1942, requesting another election in a larger unit, we shall also dismiss the Union's petition, but without prejudice to the filing of a new petition. Upon the basis of the foregoing findings of fact and upon the en- tire record in the case, the Board makes the following : 21 In his Intermediate Report, the Trial Examiner found that the evidence was In- sufficient to sustain the allegation of the complaint that the respondent discoid aged membership in the Union by permitting signs derogatory to the Union to be posted throughout the plant. The Union filed no exception to the above finding of the Trial Examiner. We have considered the record and find, as did the Trial Examiner, that the record does not sustain this allegation in the complaint. 2t See Matter of The Letz Manu.tactuting Company and Federal Labor Union No. 22226, affiliated with the American Federation of Labor, et al , 32 N. L R. B. 563. 490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD CONCLUSIONS OF LAW • 1. United Electrical, Radio -and Machine Workers of America, affiliated with the C. I. 0., 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. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Sunbeam Electric Manufacturing Co., Evansville, Indi- ana, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from in any manner interfering with, restrain- ing, or coercing its employees in the exercise of the right to self- organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid and protection, as guaranteed in Section 7 of the National Labor Relations Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Distribute notices to all its employees stating that the respond- ent will not engage in the conduct from which it ;is ,ordered to cease and desist in paragraph 1 of this Order; (b) Post immediately in conspicuous places in its plant at Evans- ville, Indiana, and maintain for a period of at least sixty (60) consecutive days from the date of posting, notices stating (1) that the respondent will not engage in the conduct from which it is ordered to cease and desist in paragraph 1 of this Order; and (2) that the respondent's employees are free to become or remain mem- bers of United Electrical, Radio and Machine Workers of America, affiliated with the C. I. 0.; (c) Notify the Regional Director for the Eleventh Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the' petition for investigation and certification of representatives filed by the Union in Case No. R-2697 be, and it hereby is, dismissed without prejudice.