Palmer-Bee Co.

In the Matter Of PALDMER-BEE COMPANY and UNITED STEELWORXERS OF AMERICA, CIO c Case No. 5-C-1793.-Decided January 16, 1946 DECISION AND ORDER On June 25,1945, the Trial Examiner issued his Intermediate Report in the above-entitled proceeding, finding that the respondent had en- gaged in and was engaging in certain unfair labor practices and rec- ommending that it cease and desist therefrom and take certain affirma- tive action as set forth in the copy of the Intermediate Report attached hereto. No exceptions to the Intermediate Report, briefs, orrrequest for oral argument before the Board in Washington, D. C., were there- after filed with the Board. 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 and the entire record in the case. As previously noted, the respondent has filed no exceptions to the Intermediate Report. The Board, accordingly, adopts the findings, conclusions, and recommendations of the Trial Examiner. ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent, Palmer-Bee Company, Detroit, Michigan, and its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discouraging concerted activity and membership in United Steelworkers of America, CIO, or any other labor organization of its employees,, by laying off or refusing to reinstate any of its employ- ees, or by discriminating in any other manner in regard to their hire or tenure of employment, or any term or condition of employment; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form 65 N. L R. B., No 83. 492 PALMER-BEE COMPANY 493 labor organizations , to join or assist United Steelworkers of America, CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , and to engage in concerted activ- ities, for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. ` 2. Take the following afrmative action, which the Board finds will effectuate the policies of the Act: (a) Offer to Marvin H. Adams, James P. Branch, William G. Hob- son, Elmer J. Kenney, Carl T. McCormick, Oscar G. McMillan, Earl L. Moses, Luther F. Reich, and Charlie Wall immediate and full rein- statement to their former or substantially equivalent positions in the manner set forth in Section V, "The remedy," of the Intermediate Report attached hereto, without prejudice to their seniority or other rights and privileges; (b) Make whole the 25 employees listed below for any loss of pay they have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount he normally would have earned as wages during the period from the date of the respondent's discrimination against him to the date of the respondent's offer of reinstatement, less his net earnings during such period : Marvin H. Adams Robert E. Knouse Burres E. Blizzard Carl T. McCormick James P. Branch Oscar G. McMillan Roy E. Brewer Earl L. Moses John W. Cooksey John W. Myers Carl E. Enscore Luther F. Reich William H. Farmer Sam S. Smith Wesley L. Fountain Granville Stringer Harry R. Gray Haywood M. Taylor Bernie Gulledge Charlie Wall William G. Hobson Joe C. White Richard D. Hutchins John B. Simmons Elmer J. Kenney (c) Post at its plants at Winston-Salem, and Kernersville, North Carolina, copies of the notice attached hereto marked "Appendix A." Copies of said notice to be furnished by the Regional Director for the Fifth Region shall, after being duly signed by the respondent's repre- sentative, be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty ( 60) consecutive days there- after, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by 494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Fifth Region in writing, within ten (10) days from the date of this Order, what steps the respondent has taken to comply herewith. CHAIRMAN HEI:zoo took no part in the consideration of the above Decision and Order. APPENDIX A NOTICE TO ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that : WE WILL NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEEL- WORKERS OF AMERICA, CIO, or any other labor organiza- tion, 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 or protection. WE WILL OFFER to the following named employees, Marvin H. Adams, James P. Branch, William G. Hobson. Elmer J. Kenney, Carl T. McCornuck, Oscar G. McMillan, Earl L. Moses, Luther F. Reich and Charlie Wall, immediate and full reinstatement to their former or substantially equivalent positions without prejudice to any seniority or other rights and privileges previously enjoyed; and make them, and the following named employees, whole for any loss of pay suffered as a result of the discrimination against them : Burres E. Blizzard Richard D. Hutchins Roy E. Brewer Robert E. Knouse John W. Cookpey John W. Myers Carl E. Enscore Sam S. Smith William H. Farmer Granville Stringer Wesley L. Fountain Haywood M. Taylor Harry R. Gray Joe C. White Bernie Gulledge John B. Simmons All our employees are free to become or remain members of the above-named, union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term PALMER-BEE COMPANY 495 or condition of employment against any employee because of mem- bership in or activity on behalf of any such labor organization. PALMER-BEE COMPANY, Employer. Dated-------------------- By ------------------------- (Representative ) ( Title) NOTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accordance with the Selective Service Act after discharge from the armed forces. 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 Messrs. Sidney J. Barban and George L. Weasler, for the Board. Womble, Carlyle, Martin d Sandrtidge, of Winston-Salem, N C., by Mr. W. E. Sandridge, for the respondent. Mr. E. L. Sandefur, of Winston-Salem, N C., for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed on December 19, 1944, by United Steel- workers of America, CIO, herein called the Union , the National Labor Relations Board, herein called the Board, by its Regional Director for the Fifth Region (Baltimore, Maryland ), issued its complaint dated March 12,1945, against Palmer- Bee Company , herein called the respondent, alleging that the respondent had engaged and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 (1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat. 449, herein called the ` Act. Copies of the complaint, the amended charge, and notice of consolidated hearing' were duly served upon the respondent, the Union , and the International Association of Machinists.2 With respect to the unfair labor practices , the complaint as subsequently amended ' alleged in substance that the respondent : ( 1) questioned its employees concerning their union activities and affiliation ; threatened them with economic i The notice advised the respondent that pursuant to an order of the Board dated March 28, 1945, a consolidated hearing was to be held on the allegations set forth in the com- plaint in this case and on the objections to the election conducted in Case No . 5-R-1594 which was instituted by the Union by the filing of a petition for investigation and certifica- tion. On May 18, 1945 , the Board pursuant to Article III, Section 13 (c) (4 ) and Article II, Section 36 (d) of the Rules and Regulations-Series 3, as amended , ordered that Cases Nos. 5-R-1594 and 5-C-1793 he severed , and granted the Union 's request to withdraw its petition in Case No . 5-R-1594, further ordering that the aforesaid case be closed. 2 Although the International Association of Machinists was not a party to this proceed- ing, they were served with the formal papers in view of the fact that they had previously filed a petition for investigation and certification of representatives for respondent's em- plovees, and had indicated their interest in the ultimate disposition of the charges herein. Mr Cy Chisholm , secretary of Lodge 641 , International Association of Machinists appeared at the hearing, and stated on the record that he was present solely as an "unofficial observer." 2 During the course of the hearing counsel for the Board moved, without objection, to amend the complaint to strike the names Tom Tolbert and Charles L. Murphy, and to add the name of John B . Simmons to "Appendix A." The Trial Examiner granted this motion. I 679100-46-vol. 65--33 496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD reprisals if they joined or assisted the Union; (2) kept under surveillance its employees with the purpose of ascertaining their activities in behalf of the Union; (3) urged them to deal directly with the respondent and to refrain from engaging in concerted activities for the purposes of collective bargaining or other mutual aid or protection; (4) urged, induced, and warned its employees to renounce and repudiate the Union at an election conducted by the Board on July 14, 1944; (5) on or about June 30, 1944, laid off 25 named employees for the purpose of discouraging and preventing said employees from engaging in concerted activity and from voting for the Union at an election conducted by the Board on July 14, 1944, and thereafter reinstated 16 named employees,and refused to reinstate 9 of them, to discourage concerted activity and to prevent them from giving any aid or assistance to the Union; and (6) by the aforesaid acts has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act. On March 31, 1945, the respondent filed an answer admitting the jurisdictional allegations of the complaint, but denying the alleged unfair labor practices. Pursuant to notice, a hearing was held at Winston-Salem, North Carolina, on April 17 and 18, 1945, before Sidney Lindner, the undersigned Trial Examiner, duly designated by the Chief Trial Examiner. The Board and the respondent were represented by counsel and the Union by its representative. All parties participated in the hearing and were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues. At the close of the Board's case, motion by respondent's counsel for dismissal of the complaint was denied ; this motion was renewed at the close of the evidence, at which time ruling was reserved. The motion is hereby denied. A motion of counsel for the Board to conform the pleadings to the evidence adduced, with respect to formal matters, was granted without objection. At the close of the hearing, counsel for the Board and for the respondent argued orally before the undersigned, the arguments appearing in the official transcript. The parties were advised that they might file briefs with the undersigned within 12 days from the close of the hearing. Subsequently, the undersigned extended the time. On May 10, counsel for the Board filed a brief. Upon the entire record in the case, and from his observation of the witnesses, the undersigned makes the following: FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT Palmer-Bee Company, a Michigan corporation, with its principal offices in Detroit, Michigan, is engaged in the business of manufacturing conveyors, speed reducers, gears, and power transmitting machinery. It has production plants in Detroit, in Indiana, and in Winston-Salem and Kernersville, North Carolina. The Winston-Salem and Kernersville, North Carolina, plants are the only plants of the respondent involved in these proceedings The respondent in the conduct of its business operations at its North Carolina plants purchases annually raw materials having a value in excess of $50,000, of which more than 25 percent is shipped to the plants from sources outside the State of North Carolina The respondent at its North Carolina plants annually manufactures products having a value in excess of $50,000, of which approximately 90 percent is sold and shipped to points outside the State of North Carolina.. The respondent admitted at the hearing that it is engaged in commerce within the meaning of the Act, and subject to the jurisdiction of the Board. PALMER-BEE COMPANY II. THE ORGANIZATION INVOLVED 497 United Steelworkers of America, affiliated with the Congress of Industrial Organizations, is a labor organization which admits to membership employees of the respondent. HI. THE UNFAIR LABOR PRACTICES A. Preliminary statement The details hereinafter related arose within the framework of these general facts: In April 1944, several of respondent's employees interested in forming a union communicated with E. L. Sandefur, regional director of the CIO for the Carolinas, who suggested that the most active and responsible employees meet at his office to discuss at greater length the matter of organization. Such a meeting was held on April 29, and was attended by seven employees' and Sandefur.' The seven, after signing applications for membership in the Union, constituted themselves an organizing committee and took with them a number of applications to enroll employees as union members Within the next few days, 55 to 65 applications for membership, signed by respondent's employees, were received by Sandefur. A registered letter dated May 17, 1944, was then sent to the respondent by the Union requesting that it be accepted as the col- lective bargaining agent for respondent's production employees, with certain exclusions' Receiving no reply, the Union, on May 22, filed a petition for in- vestigation and certification of representatives pursuant to Section 9 (c) , of the Act.' A conference to discuss the petition was held on June 6, at the re- spondent's office.' Proposals and counterproposals were submitted by the par- ties, who finally arrived at all of the terms of a consent election agreement ° except the date, upon which the parties could not agree." The Regional Director thereupon issued a Notice of Hearing for June 23, but cancelled the hearing when the parties notified him on June 21 that they had agreed on the terms and date for an election. On June 23, the parties entered into a stipulation for cer- tification upon a consent election to be conducted on July 14. On June 30, the 4 The seven were Brewer, Cooksey, Davis, Faust, Poore, James Moses, and Gray ' The meeting was held in Sandefur 's office. It appeared thereafter that there were approximately 133 employees in the proposed appropriate unit. Case No. 5-R-1594. Present at the conference were Sandefur and Boyer representing the Union ; Davidson, general manager of the respondent , representing the respondent ; and Eugene Curry, Field Examiner of the Board. O The petition in Case No 5-R-1594 supra, referred only to the Winston -Salem plant, and during the discussion the respondent sought to include its Kernersvilie plant in the appropriate unit This was agreed to by the Union Flours of the election, the number of observers, the eligibility date, and other details for the consent election were agreed upon. 10 The, Union suggested June 16 as the date for the election ; the respondent would not agree stating that it had to have time to think it over. At a later conference , beld the same day, at which Mr. Sandridge, respondent's attorney, was present, Davidson advised that he was leaving for Texas that evening and that he would have to see respondent's, officials in the Detroit office before he could enter into any agreement as to the date for the consent election. Sandridge, on June 7, forwarded the proposed stipulation for certification upon consent election to respondent 's Detroit office for the purpose of per- mitting the Detroit executives to consider the matter and confer and act upon it after Davidson arrived there about June 16. 498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD respondent laid-off 25 men" from the hatch and scuttle department. The re, spondent had not mentioned the prospect of any lay-offs at any time during the conferences. On July 14, the election was held, resulting in a tie vote ^ with four ballots challenged " By protest to election, dated July 19, 1944, the Union filed with the Regional Director objections to the conduct of the election, alleg- ing that the respondent had committed certain acts of interference which affected the results of the election. On July 20, the Union filed the original charge herein The respondent filed its answer to the Union's objections on July 29 Acting pursuant to Section 10 of Article III of the Rules and Regulations, the Regional Director investigated the issues raised by the challenges and on August 15, recommended that the challenged ballots be opened and counted. The Board on September 7, issued its "Decision and Direction," which was amended on September 12, and pursuant thereto the four challenged ballots declared valid by the Board were opened and counted. 14 The final results of the election dis- closed that a majority of the employees in the appropriate unit had voted against the participating union. On December 20, the Union filed an Amended Charge. Thereafter the complaint herein was issued on March 12. Hearing was scheduled on the complaint for April 17, 1945. On March 16, 1945, the Regional Director, as a result of his investigation of the "Objections", issued a "Supplemental Report on Objections to Stipulated Election" finding in effect that the acts and conduct of the respondent during the period preceding the election prevented an expres- sion by its employees of their free and uncoerced wishes as to representation, and recommending that the Board vacate and set aside the election and direct that a new election be held after the respondent's unfair labor practices have been dissipated. Thereafter, on March 28, 1945, the Board ordered a hearing on the "Objections to Election" and further ordered that the representation pro- ceeding and,the unfair labor practice proceeding be consolidated for the purpose of hearing.'° B. Interference, restraint, and coercion As heretofore found, organizational activities among respondent's emplol ees began in April 1944. Sandefur, after determining the interest of Poore and Cooksey,16 in organizing a union, urged them to seek out some of the most active and responsible employees of respondent, who would furnish the basis for an 11 As will be hereinafter noted, the parties at the hearing, by stipulation, agreed that 26 men were laid-off from the hatch and scuttle department on June 30 The amended complaint names only 25 men. 12 The results of the election were as follows Approximate number of eligible voters------------------------------------- 133 Valid votes counted- ---------------------------------------------------- 96 Votes east for United Steelworkers of America CIO-------------------------- 48 Votes cast against United Steelworkers of America CIO----------------------- 48 Challenged ballots ------------------------------------------------------- 4 Void ballots------------------------------------------------------------ 0 13 The respondent challenged 4 employees who appeared at the polls on the ground that all '4 had been permanently laid off since May 31, 1944 , (the eligibility date agreed upon) and not rehired These 4 men were among the group of 26 laid off from the hatch and scuttle department on June 30. 14 This was done on September 15. - 1' See footnote 1, supra, whereby the Board by order dated May 18, 1945, severed the representation and unfair labor practice proceedings, and further of tiered that the repre- sentation proceeding case be closed. 16 Two of respondent's employees who started the Union movement at the plant by requesting Sandefur to call on them to discuss the question of forming a union among the employees PALMER-BEE COMPANY 499 organizational committee, and arranged for a meeting to be held at his office on April 29. Upon learning the time and place of this meeting, Thompson, general super- intendent of respondent's Winston-Salem plant, requested Holcomb, foreman of welding, to ascertain who attended the meeting. The following morning Hol- comb reported to Thompson. He told Thompson where he had parked his car and that he had seen six or seven of respondent's employees go into the Nissen Building where the meeting was being held 17 Sometime before the consent election, Thompson, in the presence of Holcomb and Moser, asked Sumner, a stockroom clerk, and Jones, the toolroom keeper," to let him (Thompson) know what they found out about union activities.19 Neither Sumner nor Jones made any report to Thompson before the election. Three or four days after the election, however; Jones, in the presence of several other employees, told Thompson that he knew "which way the negroes voted because of the grease they had on their hands was on the ballots." 20 Thompson did not say anything at that time, but later said "that Davidson, [general manager of respondent's plants] wanted to run all the negroes off" but Thomp- son did not think that it was a good idea and told him so.21 In the latter part of May or early in June 1944, Thompson suggested to Moser that lie take a poll of the employees on the question of "how they felt about the Union, if they wanted one or not." Moser testified that on the day the sug- gestion was made to him, he went to each employee with the exception of those in the press shop, while they were wor!ing, asked each whether he wanted a union, and noted the answer on a scratch pad 2' Upon completing the poll, Moser showed the tally sheet to Thompson and left it on Thompson's desk." On June 30, the employees of the hatch and scuttle department named in the Boaid's complaint were laid off.2f 17 This finding is based upon the undisputed testimony of Robert J. Moser which the undersigned credits. Moser was no longer in the respondent's employ at the time of the hearing He testified under subpoena for the Board stating that if it were not for the fact that a subpoena had been served on him, he would not have testified if he "could have gotten out of it." Moser while in respondent's employ was an inspector of welding and assistant to foreman Holcomb He testified that in addition to his inspection duties lie kept the weld- ing lines equalized and saw to it that the materials went through the lines in equal amounts and at the right times Thirty men worked under him, and from time to time lie made transfers of men from one line working on hatches, to another line working on si uttles and vice-versa when either line fell behind Although he did not have authority to fire, lie made recommendations for the discharge of men to Holcomb or Thompson, and seveial men were in fact laid off on his ieconimendation He also made recommenda- tions for pay increases for the men, one of which he remembered was granted , and if an employee asked him for a day off, he would give it to him The undeisigned finds that Moser was a supervisory employee Moser testified that he was present in Thompson's office when Holcomb was requested to see who attended the meeting, and was there on the following morning when Holcomb repoited to Thompson Neither Holcomb nor Thompson was called as a witness although both were available. Thompson was seated at respondent's counsel table throughout the heni mg, and helped counsel to obtain several exhibits 1s It was not claimed that either Jones or Sumner was a supervisory employee. 28 Thompson spoke to these men individually in his office on different occasions 20 Jones and Sunnier acted as observers for the respondent in the counting and tabulat- ing of ballots in the consent election conducted by the Board on July 14 21 This finding is based on the uncontradicted testimony of Moser, which the undersigned credits. 21 The names of the eniplovees did not appeai on the paper, only their answers of yes or no " Moser's testimony in this regard was undisputed and is credited by the undersigned. 24 The lay-off will be discussed more fully in the next sub-division of this Report. 500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On the afternoon of July 14, the date of the consent election, and only several hours before the time scheduled for the opening of the polls,26 Davidson called the employees together 20 on company time and read a prepared statement as follows : Today is an important day for all of us. I have called you together at this time to explain the election which will be held later this afternoon as well as to briefly outline to you the background and policies of the company you are working with. Palmer-Bee Company is comparatively new to all of you. That is because we have only recently moved into your midst. Palmer-Bee Company was founded 40 years ago in Detroit by Mr. William E. Bee, the father of Mr. George A. Bee who is now our President. Through the 40 years of Palmer- Bee's business history, it has grown from a small organization of 25 men to the country's outstanding manufacturer of conveying equipment. This growth was made possible by the company's honest and sincere effort to produce the best equipment at a fair and honest price and to treat its custo- mers and employees with respect and fairness. About two years ago the Directors of this company decided to move its Light Conveyor Division from Detroit to some other place because the real estate taxes on our property in Detroit was becoming prohibitive. Under such conditions we were not able to manufacture conveyors at a price that would put us in a price range with our competit`o'rs. In searching for a new home for this Division, the Directors decided upon Winston-Salem because of its low tax rate and because of its 100% American population. In large industrial areas, such as Detroit, one finds a majority of the working popula- tion to be foreign born and such a group of people do not have the true American sense of responsibility to his neighbor and to his fellow worker. Here in Winston-Salem, we felt that we had found just such a community ; a community of 100% native born Americans, people who proudly speak of their forefathers as founders and early settlers of this community. Among these people, Palmer-Bee was both proud and happy to cast its lot. Most of you have seen the construction progress and the program of ma- chinery installation. Right now, we are ready to unload and install a large Brake Press for forming steel plate. You all have noticed this piece of machinery on the flat car out on the siding. Somewhere between here and Detroit, there is another carload of machinery which we expect to arrive here at our Plant on next Monday. Last week, while in Detroit, Mr. Bee approved my request for additional machinery and within the next 30 to 60 days, we will receive and install here in this Plant, 15 more carloads of machinery. I mention this as a way of telling you that Palmer-Bee Company is backing its bet on Winston-Salem with dollars and that we want to be happy here so that both you and the company can rightfully prosper. About 5 or 6 weeks ago , we were notified by the National Labor Relations Board that a certain group, who claimed to represent a majority of our employees, wanted Palmer-Bee Company to sign a contract with them so that they could act as your only representative in respect to rate of pay, hours of work and all other conditions of employment. The company an- 25 The stipulation for certification upon consent election provided for the election at the Kernersville plant from 3: 30 p m . to 4 • 00 p m , and at the Winston-Salem plant from 5 : 00 p. in . to 6 : 30 p . m. Davidson's talk was made at 2 : 05 p. m. 2e Davidson addressed only the Winston-Salem plant employees who numbered about 120 There were only 20 to 30 employees in the Kernersville plant. PALMER-BEE COMPANY 501 swei cd this letter by saying that it did not think that this group represented a majority of you employees The company has consented to an election so that you could express your choice in this matter, by means of a secret ballot The fact that the company agreed to this election without going through hearings before the National Labor Relations Board does not mean that it desires that you should vote for or against the union, but it simply means that the company felt that it would be better for everyone concerned if an election by secret ballot were held to decide this matter. This election will decide whether you wish to place your leadership with outside people who have no connection with the plant or with the manage- ment of this company. To what kind of leadership are you going to place your future with the company? Is that leadership unselfish or is it not? Is that leadership interested in you individually and the welfare of your family, or is it seeking advantage for itself? On the basis of its past iecord, is it open and above board and dependable? You should ask your- selves why all of a sudden, total strangers have become interested in your welfare. Just who are these strangers? Where do they come from and what have they done? What more can they do for you than you have already done for yourselves? Ask yourselves whether or not those of us who have built this plant, who have installed the machinery and who have provided you with jobs are not more sincerely interested in your welfare and will do for you in the long run, more than people who have no financial stake in this Plant and who have never worked here. Do you believe that your position can be improved by choosing someone else for your leadership? It has been the company's policy to upgrade employees from one classi- fication to another as rapidly as they have become proficient enough to assume greater responsibility. This upgrading has, as you all know, im- proved your earning power. In the past year, many of you personally know that one or more raises in wages has been granted. Ifyou select the union as your sole bargaining agent, it will have the authority to speak for all of you and to bind you for the length of any contract which it may make with the company. You will not be able to bargain for yourself. All such mat- ters will have to be handled and settled with the union. Do you want to surrender your'right to bargain for yourselves and pay the union to bargain for you? Nov the question is whether, in the long run, you will be better off under the policies of the company or under the leadership of the union. In this connection, you should remember that the union contracts are for a definite period of time, usually one year and during that time, the company's hands are tied by the union's terms of the contract. This election will be by secret ballot and will be conducted in a fair and impartial manner and will give you absolute freedom to express your choice without any coercion. No one can know by any means how you vote. Some of you may wonder if your preference as expressed at any time in the past must govern how you vote today. It does not have to do so. This election is by secret ballot so that you can record your vote according to your desires at the time you enter the booth without fear or favor. You have the right to vote in accordance with your own decision, regardless whether or not you belong to any group or whether or not you have signed an application card or anything else. It is tremendously important that every eligible employee shall vote because that is the only way you can register your wishes in this matter. Furthermore, the outcome of the election will be determined by a majority of those voting. Therefore, if you 502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD are an eligible voter and do not vote, it will be the same as letting someone else decide this question for you. Lets make this election really represent the choice of everyone. It takes only one vote more than half of all those voting to decide this very important question. In conclusion, I want to assure every employee of this company that I have no desire to persuade a single one of you to vote other than as your own judgment tells you, for your own best interest. I urge you to consider all the facts, then vote as you honestly think. The election resulted in a tie vote for and against the Union, with four ballots challenged. The following morning, Davidson asked Moser if he could find out how the men, whose ballots were challenged,' had voted. Davidson told Moser not to see Davis because he knew how he voted 28 Moser then left the plant during working hours ; he saw Knouse at the latter's home, Taylor at the hotel where he was living, and Gulledge on his job; 29 Moser inquired of each one how he voted. All three told him they voted against the Union; Knouse and Taylor said they did so because they wanted to come back to work for the respondent, and Gulledge for the reason that he did not believe in organization. Upon his return to the plant that afternoon, Moser reported to Davidson what the men had told him, whereupon Davidson said he would take them back and he told Moser to let the men know they could come back to work on Monday 30 Concluding findings The facts related above show that the respondent, upon learning of the em- ployees' efforts to organize, immediately started a campaign to defeat them. The surveillance of the union meeting, the interrogation of employees concerning their feelings about the Union, and the lay-off of the men in the hatch and scuttle de- partment two weeks before the Board election, were the means employed by the respondent to discourage its employees from becoming members of, or giving aid or assistance to, the Union. Carrying on its anti-union campaign until several hours before the Board elec- tion, the respondent addressed the employees regarding the importance of the election. The talk clearly posed a spurious issue between voting for the Union and loyalty to the respondent. That was not the issue to be decided at the election. The only question involved in the election was whether the employees wanted to designate a representative for the purposes of collective bargaining. "An election is not a contest between a labor organization and the employer of the employees being polled." 31 Realizing that the results of the election hung in the balance because of the four challenged ballots, the respondent on the morning following the election deter- mined to find out how three of the four had voted. The respondent was reasonably certain how Davis had voted because of his union activity and because he had acted as an observer for the Union at the election. Moser was then dispatched 27 Gulledge, Taylor, Knouse , and Charles Davis were the men whose ballots were challenged. 2 Davis was one of the most active proponents for the Union in the plant . He also acted as an observer for the Union in the consent election. z7 Gulledge and Taylor were then working for a contractor who was building a new structure for the respondent. $0 The men did not report for work the following Monday even though they were told they could do so. 31 Matter of Sunbeam Electric Manufacturing Co and United Electrical, Radio & Machine Workers of America, affiliated with the C. 1. 0 , 41 N. L. R. B., 469, enf'd in N. L. R. B. v. Sunbeam Electric Mfg. Co., 133 F. (2d) 856 (C C A 7) PALMER-BEE COMPANY 503 during working hours to the homes of the three men to obtain this information. After Moser reported to the respondent that all three had voted against the Union, the respondent offered them immediate reinstatement, despite the fact that their ballots had been challenged by the respondent on the ground that they were permanently, rather than temporarily, laid off on June 30. The respondent contends that its pre-election talk to the employees was "per- fectly proper and the propriety of making it has been upheld by the courts." A talk such as respondent's, though probably sanctioned by the Courts when standing alone,' has, when coupled with other circumstances, been held to constitute inter- ference with the rights of employees guaranteed in Section 7 of the Act." Viewed, therefore, in the light of the respondent's hostility to the Union, its surveillance of the union meeting, its questioning of the employees concerning unionization, and the lay-offs hereinafter found to be discriminatory, Davidson's talk was clearly coercive and consequently is not privileged or proper.3' The undersigned finds that by its entire course of conduct, including the surveil- lance, the questioning of employees before and after the Board election, and the talk of July 14, the respondent has interfered with, restrained, and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, in viola- tion of Section 8 (1) of the Act. C. The discriminatory lay-offs of June 30 By letter from Detroit Steel Products Company dated May 10, 1944, the re- spondent was notified to cancel a portion of its contract on the manufacture of hatches and scuttles On May 23, 1944, the Detroit Steel Products Company, again wrote to the respondent advising it that due to substantial cancellations of battle damage materials, orders had been reduced and that the respondent's orders on hatches and scuttles for the prime contractor were to be completed by July 1. The letter went on further to state that although the prime contractor anticipated re- ceiving additional orders, it could not then state what part of its new require- ments it would sublet. It advised the respondent that in order to protect its production, the respondent should assume that after the completion of the present order, no more of this work (hatches and scuttles) was definitely in sight. It concluded its letter with the following : 32N L R B v. American Tube Bending Co., 134 F. ( 2d) 993 (C. C. A. 2), cert. den. :.20 U S 768 " N. L. R B v. Trojan Powder Co., 135 F (2d) 337 (C C. A. 3), cert. den. 320 U. S. 768. 33 See N. L. R B. v Schaefer Hitchcock Company, 131 F. (2d) 1004 (C. C. A. 9), N L R B. v. M. B Blatt Company, 143 F. ( 2d) 268 (C. C. A. 3). 3E The respoondent was the sub-contractor on this order. The prime contractor, Detroit Steel Products Co., sent the following letter to the respondent : MAY 10, 1944. PALMER-BEE COMPANY Westminster G. T R it. Detroit, Michigan Re: P. O. E.-61052 GENTLEMEN : Please cancel 194 scuttles on the domestic portion of this order, leaving a balance of 2,496 scuttles required. Also, cancel 55 shipsets of 19 scuttles per set on the battle damage, leaving a balance of 41 shipsets of 19 per set to be furnished. It is our understanding that the 41 sets have already been shipped so that this portion of the order will be completed with the above cancellation. Yours very truly DETROIT STEEL PRODUCTS CO, B. W. RISMAN, Asst. Purchasing Agent. 504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In the meantime, we hope you will be able to assign more 'men to the production of part V-49 for army trestles, inasmuch as you are now running behind schedule in the production of this item. The respondent did not make any mention of the cancellation of its hatch and scuttle contract or of the impending shut down of this department at either the June 6 or June 23 conferences referred to, supra. On June 29, the respondent posted the following notice on the plant bulletin board : Owing to the fact that our contract for hatches and scuttles for the U. S. Navy has been canceled, the management regrets that they find it necessary to close the hatches and scuttles department Friday, June 30 at 4: 30 until such time as we will be able to negotiate other contracts for work in this department. The men affected by this action will be notified by their foreman, and certificates of availability will be arranged for all those desiring releases. E. S. DAVIDSON, General Manager. On June 30, the respondent shut down the hatch and scuttle department, and laid off all of the employees who were working in this department on that date." Fourteen of the 26 men laid off were members of the Union ; 4 of the original 7 organizational committeemen wdre employed in this department. a7 About a month before the Board election, Thompson stated to Moser that Davidson had told him (Thompson) that he (Davidson) was going to have the hatch and scuttle contract cut down forty to sixty percent, for the reason that "there were a few in there he was going to get rid of." Thompson had a list of names of persons to get rid of and included on the list were Cooksey, Grey, and Davis who, according to Moser, were the most active proponents for the Union in signing up employees in the hatch and scuttle department 38 Concluding findings -The complaint alleges and the answer denies that the men who were employed in the "Hatch and Scuttle" department were laid off on June 30, 1944, for the purpose of discouraging and preventing these employees from en- gaging in concerted activity and from voting for the Union in the Board election conducted on July 14, 1944. It is the respondent's contention that it had com- pleted its, hatch and scuttle contract on June 30 and for that reason laid off the employees of that department on that day. It is clear from the undisputed and credited testimony of John H. Fletcher, former production manager of the respondent's home office in Detroit and temporarily in charge of respondent's plants at Winston-Salem and Kerners- ville, and the record as a whole, that the respondent on May 10 had received notice of the reduction of its hatch and scuttle order, and that on May 23, sa During the hearing the parties stipulated with respect to the names of the 26 men, all of whom were working on the hatch and scuttle job and laid o8 on June 30. 87 This finding is based on a recapitulation of the list of the employees laid off, with Sandefur's testimony which the undersigned credits. 38 This finding is based on the uncontradicted and credited testimony of Moser. David- son left the respondent's employ on February 15, 1945. Thompson, however, was general superintendent at the time of the hearing and although available as a witness was not called. See footnote 17, supra. PALMER-BEE COMPANY 505 the prime contractor further advised the respondent that because of the reduc- tion it was scheduled to complete its orders on hatches and scuttles by July 1. Moser testified that three of the most active proponents for the Union were employees engaged in welding work on hatches and scuttles. It was Moser's uncontradicted and credited testimony that about a month before the Board election, Davidson told Thompson he was going to have the hatch and scuttle contract cut down 40 to 60 percent because there were several employees they wanted to get rid of, and included on the list of such employees were Cooksey, Gray, and Davis, the most active proponents for the Union It is clear from this testimony and the undersigned finds, that the respondent, having received notice of the reduction of its orders on hatch and scuttlg work, and the prime contractor's request that it complete its orders by July 1, thereupon planned to discriminate against active union adherents, using the contract completion as a pretext It is noted that at neither the June 6 nor the June 23 conference did the respondent mention any impending lay-off or shutdown of its hatch and scuttle department. Granting the respondent's contention that because of the reduction in the hatch and scuttle contract, it was completed on June 30, nevertheless it is clear from the record that the respondent carried out its expressed and planned inten- tion to discriminate against active union members, and in doing so discriminated against an entire group by laying off all who were employed on hatch and scuttle work, upon the completion of that work on June 30. It is seen that the lay-off occurred only two weeks before the Board election. It is significant that the day after the Board election, upon ascertaining that three of the four challenges had voted against the Union '° and that these votes would effectively defeat the Union in the election which was then tied, the respondent offered immediate re-employment to these men. These three men actually went back to work on July 21 and 24, respectively ; "0 it is noted also, that by July 31, a little over two weeks after the respondent had determined the Union's loss of the election, six other laid off employees were reinstated" There is no contention, and it does not appear from the evidence, that respond- ent did not have jobs for all of the men laid off On the contrary, it is clear from the testimony of Fletcher and from the record as a whole, that the job of producing the part V 49 for army trestles, like the hatch and scuttle work, required welding. Fletcher testified further that the V 49 trestle parts were not shipped until some time after the hatch and scuttle work was completed, but that there may have been a preparation period Although a portion of the part V 49 job was being done in the Detroit plant, Fletcher testified that eventually it was all sent down to the Winston-Salem plant to be made. When the prime contractor gave notice to the respondent that it was scheduled to complete its orders on hatches and scuttles by July 1, the prime contractor specifically called the respondent's attention to the fact that the respondent was running behind schedule in the production of part V 49 and the prime con- tractor expressed the hope that more men would be assigned to the production of this item. While the Trial Examiner does not venture to speculate as to the number of employees the respondent might have, under other circumstances, shifted to other welding work, the fact remains from the undisputed and credited testimony of ss As pointed out, supra, the respondent indicated it knew bow Davis voted, because of his past union activity, and therefore did not bother questioning him. 41 The three had obtained interim employment when they were laid off and were work. Ing elsewhere For that reason they did not accept reemployment on July 17, even though respondent offered it for that day. 41 The parties stipulated at the hearing that a total of 17 employees were reinstated. The reinstatement will be discussed hereinafter in the Remedy. 506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fletcher, that the respondent began preparation of the part V 49 job at the time the hatch and scuttle work was being completed, that parts V 49 were shipped from Winston-Salem shortly after the completion of the hatch and scuttle work, and that as a matter of fact, welding was required in the production of this part 42 Although it may be possible that because of the completion of the hatch and scuttle work, the respondent found it necessary to eliminate some of its employees, the respondent did not offer any evidence to show that it did not have jobs for the men who were employed doing welding on the hatch and scuttle work It is the reasonable inference, therefore, viewed in the light of the respondent's anti-union activities, and its expressed and planned intentions to get rid of the most active union proponents, that the respondent took advantage of the completion of (he hatch and scuttle contract to lay off the active union adherents, because of their union activities, and did so by laying off the entire group; and reemploying some of them after the Union lost the election The undersigned finds that the group lay off was a temporary stratagem, resorted to by the respondent to accomplish this purpose The undersigned finds that the 25 employees named in "Appendix A" of the complaint, as amended, who are referred to below, were discriminatorily laid off on June 30, 1944, for the purpose of discouraging and preventing concerted activity and to discourage and prevent said employees from giving any. aid or assistance to the Union and from voting for the Union in the Board election of July 14. 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 obstruct- ing commerce and the tree flow of commerce. V. THE REMEDY Having found that the respondent has engaged in unfair labor practices the undersigned will recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. It has been found that the respondent discriminated as to the hire and tenure. of employment of the following employees named in "Appendix A" as amended, of the complaint : Marvin H. Adams Robert E. Knouse Burres E Blizzaid Carl T. McCormick James P. Branch Oscar G. McMillan Roy E. Brewer Earl L. Moses John W. Cooksey John W. Myers Carl E Enscore Luther F. Reich William H Farmer Sam S. Smith Wesley L. Fountain Granville Stringer Harry R. Gray Haywood M. Taylor Bernie Gulledge Charlie Wall William G. Hobson .Joe C. White Richard D. Hutchins John B Simmons Elmer J. Kenney °•'• The respondent admitted in his answer to the "Objections to the Election" dated July 2s, 1944, that it had retained sonic of the employees who had been doing hatch and scuttle a ork. PALMER-BEE COMPANY 507 for the purpose of discouraging concerted activity, and for the purpose of dis- couraging and preventing said employees from voting for the Union at the Board election. The respondent has already reinstated the following named employees on the dates set opposite their names .43 Burres E. Blizzard , August 1, 1944 Richard D. Hutchins, July 24, 1944 Roy E. Brewer, October 26, 1944 Robert E. Knouse, July 21, 1944 John W. Cooksey, January 9, 1945 John W. Myers, July 26, 1944 Carl E. Enscore, July 31, 1944 Sam S. Smith, July 24, 1944 William H. Farmer, August 22, 1944 Granville Stringer, August 2, 1944 Wesley L. Fountain, August 11, 1944 Haywood M. Taylor, July 24, 1944 Harry R. Gray, October 20, 1944 Joe C. White, July 24, 1944 Bernie Gulledge, July 24, 1944 John B. Simmons , July 10, 1944 In order to effectuate the policies of the Act, it will be recommended that the respondent offer to each of the following employees : - Marvin H. Adams Oscar G . McMillan James P. Branch Earl L. Moses William G. Hobson Luther F. Reich • Elmer J.e Kenney Charlie Wall Carl T. McCormick - immediate reinstatement to his former or substantially equivalent position, without prejudice to his other rights and privileges, and that, if respondent has no need at the time for the services of the 25 workers herein found to be discriminated against, it then lay off such employees as may be necessary to ieduce its personnel to the normal complement, following such practice of seniority or other non-discriminatory procedure as it has been accustomed to employ prior to the time that it commenced its discriminatory practices as herein found" It will also be recommended that the respondent make each of the 25 afore-mentioned employees whole for any loss of pay he has suffered by reason of the respondent's discrimination, by payment to him of a sum of money equal to the amount he normally would have earned as wages from the date of the discrimination to the date of reinstatement or offer of reinstate- ment, less his net earnings 96 during that period. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following : CONCLUSIONS OF LAN 1. United Steel« orkers of America, CIO, affiliated with the Congress of In, dustrial Organizations, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed them in Section 7 of the Act, the respondent has engaged 43 The parties stipulated at the hearing, regarding those reinstated and the dates of rein- statement. The stipulation contained the name of Charles L. Murphy 'Murphy's name, however, was eliminated from the Board's complaint upon its motion to amend which was granted. *' See Matter of Ronrico Corporation , et al., 53 N. L. R. B. 1137. +, By "net earnings" is meant earnings less expenses , such as for transportation, room, and board , incurred by an employee in connection with obtaining work and working else- where than for the respondent , which would not have been incurred but for his unlawful discharge and the consequent necessity of his seeking employment elsewhere. See Matter of Crossett Lumber Company , 8 N. L. R. B 440. Monies received for work performed upon Federal, State, county, municipal , or other work-relief projects shall be considered as earnings . See Republic Steel Corporation v. N. L. R. B, 311 U. S. 7. 508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD in and is engaging in unfair labor practices, within the meaning of Section 8 (1) of the Act. 3 By discriminating in regard to the hire and tenure of employment of Marvin H. Adams, Burres E. Blizzard, James P. Branch, Roy E. Brewer, John W. Cooksey, Carl E. Enscore, William H. Farmer, Wesley L. Fountain, Harry R Gray, Bernie Gulledge, William G Hobson, Richard D. Hutchins, Elmer J. Kenney, Robert E. Knouse, Carl T. McCormick, Oscar G. McMillan, Earl L. Moses, John W. Myers, Luther F. Reich, Sam S. Smith, Granville Stringer, Haywood M. Taylor, Charlie Wall, Joe C. White, and John B. Simmons, thereby discouraging concerted activity, the respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce, within the meaning of Section 2 (6) and (7) of the Act. RECOMMENDATIONS Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the respondent Palmer-Bee Company, its officers, agents, successors, and assigns shall: 1. Cease and desist from : (a) Discouraging concerted activity and membership in United Steelworkers of America, CIO, or any other labor organization of its employees, by discriminat- ing in regard,to the hire and tenure of employment of its employees or any term or condition of employment ; (b) Interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join, or assist United Steelworkers of America, CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in con- certed activities for the purposes of collective bargaining or other mutual aid or protection, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action which the undersigned finds will ef- fectuate the policies of the Act : (a) Offer to the nine employees listed in Section V, "The remedy," above, who have not yet been reinstated, immediate and full reinstatement to their former or substantially equivalent positions in accordance with the views expressed in the said section, without prejudice to their seniority or other rights or privileges; (b) Make whole the 25 employees' names in Section V, above, for any loss of pay they may have suffered by reason of the respondent's discrimination against them, by payment to each of them of a sum of money equal to the amount which he normally would have earned as wages from the date of the discrimination to the date of reinstatement or offer of reinstatement, less his net earnings during said period ; (c) Post at its plants at Winston-Salem, and Kernersville, North Carolina, copies of the notice attached hereto marked "Appendix A". Copies of said notice to be furnished by the Regional Director for the Fifth Region, after being signed by the respondent's representative, shall be posted by the respondent immediately upon the receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced or covered by any other material; (d) Notify the Regional Director for the Fifth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report what steps the respondent has taken to comply therewith. PALMER-BEE COMPANY 509 It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the respondent to take action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board-Series 3, as amended, effective July 12, 1944, any party or counsel for the Board may within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Rochambeau Building, Washington, D. C., an original and four copies of a statement in writ- ing setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of exceptions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Regional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in writing to the Board within ten (10) clays from the date of the order transferring the case to the Board. SIDNEY LINDNER, Trial Emaminer. Dated June 25, 1945. "APPENDIX A" 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 wrnr NOT in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist UNITED STEELWORKERS OF AMERICA, CIO, or any other labor organization, 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 or protection. WE WILL OFFER to the following named employees, Marvin H. Adams, James P. Branch, William G. Hobson, Elmer J. Kenney, Carl T. McCormick, Oscar G. McMillan, Earl L Moser, Luther F. Reich and Charlie Wall, immediate and full reinstatement to their former or substantially equivalent positions with- out prejudice to any seniority or other rights and privileges previously en- joyed ; and make them, and the following named employees, whole for any loss of pay suffered as a result of the discrimination against them: Burres E. Blizzard Richard D. Hutchins Roy E. Brewer John W. Cooksey Carl E. Enscore William H. Farmer Wesley L. Fountain Harry R. Gray Bernie Gulledge Robert E. Knouse John W. Myers Sam S. Smith Granville Stringer Haywood M. Taylor Joe C. White John B. Simmons 510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD All our employees are free to become or remain members of the above-named union or any other labor organization . We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any employee because of membership in or activity on behalf of any such labor organ- ization. PALMER-BEE COMPANY, Employer. Dated ---------------------- By -------------------------------- (Representative) (Title) NOTE.-Any of the above-named employees presently serving in the Armed Forces of the United States will be offered full reinstatement upon application in accord- ance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 days from the date hereof , and must not be altered , defaced, or covered -by any other material.