Caterpillar Tractor Co.

CATERPILLAR TRACTOR CO. 553 pooled with those of, voting group (5),22 and the Regional Director conducting the elections is instructed to issue a certification of repre- sentatives to the labor organization selected by a majority of the em- ployees in the pooled group which the Board, in such circumstances, finds to be a unit appropriate for the purposes of collective bargaining. 5. The Employer contends that no election should be directed herein earlier than January 1, 1956, because it will not be engaged in full production before that time and, as a consequence, will not, have a representative complement of employees until that time. The Em- ployer admits in its brief that it cannot predict with accuracy the date on which full production will begin. Such a date hinges upon the receipt of Government orders by the Employer. Further, the Em- ployer's general manager testified at the hearing that employees were presently working in almost every classification that the Employer would ever utilize and that at peak production the working force would be "about double" that now in effect. In such circumstances, we find that the Employer's present complement of employees consti- tutes a substantial and representative segment of the employees to be employed eventually at the Employer's Longhorn Division, and shall, in accordance with our usual practice in such situations, direct an immediate election herein.23 [Text of Direction of Elections omitted from publication.] sa If the votes are pooled, they are to be tallied in the following manner : The votes for the unions seeking the separate unit shall be counted as valid votes , but neither for nor against the union seeking to represent the more comprehensive unit; all other votes are to be accorded their face value, whether for representation by the union seeking the com- prehensive group or for no union. 23 General Electric Company, 112 NLRB 839 ; Simmons Company, 112 NLRB 83. Caterpillar Tractor Co. and District No. 55, International Asso- ciation of Machinists, A.F.L. Case No. 13-CA169f. August 11, 1955 DECISION AND ORDER On October 15, 1954, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Inter- mediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermediate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. 1 The Respondent's request for oral argument is hereby denied as, in our opinion, the record and the Respondent's exceptions and brief, adequately present the issues and the positions of the parties. 113 NLRB No. 37. 554 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the In- termediate Report, the exceptions and brief of the Respondent, and the entire record in this case and hereby adopts the findings, con- clusions, and recommendations of the Trial Examiner, with the follow- ing additions and modifications. 1. The Trial Examiner found that the Respondent violated Sec- tion 8 (a) (1) of the Act by enforcing a rule forbidding certain em- ployees who were union members from wearing a union badge in the plant which bore the legend "DON'T BE A SCAB !" The Respond- ent contends that the proscription against the badge was not impelled by any union animus but was motivated solely by its belief that the term "scab" was so offensive to nonunion employees that physical violence and disruption of production could reasonably be anticipated from its display. The Respondent therefore urges that special cir- cumstances existed which justified banning the button and that its con- duct in doing so was not violative of Section 8 (a) (1) of the Act. The record shows that in February 1954, the Union, which was the collective-bargaining representative of the Employer's em- ployees, embarked upon a vigorous membership campaign. Approxi- mately 1,450 of the Employer's 1,900 employees were members of the Union at that time. In furtherance of its campaign to reduce non- membership, the Union distributed 1,000 buttons to its members, 250 each bearing one of the following legends : I'M PAYING MY WAY ARE YOU? DON'T BE A SCAB ! - DON'T BE A FREE RIDER ! I JOINED HAVE YOU? These buttons were worn by union members for the first time on the evening shift of Wednesday, February 24, 1954. The following day, the Respondent telephoned the Union's business agent and objected to the use of the "Scab" button on the ground that this button had a coercive effect upon nonunion personnel and tended to violate a "sort of confidence" which had long existed between the Respondent and the Union. Unable to secure the Union's agreement that members no longer wear this particular button, officials of the Respondent met on Friday, February 25, and determined that employees would not be permitted to wear the "Scab" button beginning on Monday, March 1, the next working day. On Monday morning, the Union distributed handbills to employees entering the plant. The handbills stated that the word "Scab" was intended to describe "A workman whose belief is contrary to the principles of Trade Unionism." Approximately 247 employees who reported for work on Monday and the following day wearing the proscribed button were immediately suspended. Pursuant to the agreement of the parties, all suspended employees have been CATERPILLAR TRACTOR CO. 555 reinstated pending this Board's decision as to the legality of the Re- spondent's conduct in forbidding the display of the "Scab" button. The Board has consistently held that employees who wear union in- signia while at work engage in a form of concerted activity which is protected under Section 7 of the Act, and that an employer unlaw- fully intrudes upon the exercise of that statutory right when he pro- hibits his employees from engaging in such activity,2 regardless of his motive for doing so.' The Board's reasoning in such cases has been affirmed by the Supreme Court of the United States.' In establishing the protected nature of this type of concerted ac- tivity, the Board has not been unmindful of the employer's interest in achieving uninterrupted production and maintaining discipline in his plant.5. Consequently, the Board has recognized that, in order to ef- fect an equitable and just balancing of competing rights and interests, the employees' statutory right to display union insignia might be qualified in certain limited instances where breaches of discipline or disruption of production attend its exercise.° Thus, the Board has held that rules which interfere with the exercise of rights guaranteed by Section 7 of the Act "are presumptively invalid, in the absence of special circumstances which make-them necessary in order to maintain production and discipline."' The Respondent contends that it has overcome the presumed in- validity of its rule against wearing the "Scab" button by showing the existence of special circumstances justifying its proscription. Ad- verting to numerous definitions of the term "scab," the Respondent argues that the. "Scab" button was so opprobrious and inflammatory in character that it was reasonable for it to anticipate that, in a plant of the size here involved, violence would erupt between union and non- union adherents, and that it was not incumbent upon the Respondent to await disorder before it could act. Moreover, the Respondent would further justify the reasonableness of its ban of the "Scab" badge by the fact that its action was not motivated by union animus and that it permitted its employees to display the other campaign badges. We find no merit in this contention. $ See, e. g., Armour & Company, 8 NLRB 1100, 1112; National Container Corporation, 57 NLRB 565, 584; The De Vilbiss Company, 102 NLRB 1317, 1318; Graber Manufao- turing Company, Inc., 111 NLRB 167. 3 See Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 17, 46 ; The De Vilbiss Company, 102 NLRB 1317, 1322. , See Republso Aviation Corporation v. N. L. R. B., 324 U. S. 793, 802, in which the Court quoted with approval the Board's finding that "the right of employees to wear union insignia at work has been long recognized as a reasonable and legitimate form of union activity, and the respondent's curtailment of that right is clearly violative of the Act." Ibid. at p. 798. • See Peyton Packing Company, Inc., 49 NLRB 828, 843; May Department Stores Com- pany, 59 NLRB 976, 980, enfd. 154 F. 2d 533 (C. A. 8), cert. denied 329 U. S. 725. 7 See Boeing Airplane Company, 103 NLRB 1025, 1026, reversed on other grounds, 218 F. 2d 269 (C. A. 9). 556 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Both the General Counsel and the Respondent introduced into evi- dence differing definitions as to the meaning of the term "scab." How- ever, terms of this character, when given currency in the industrial work-a-day world, become meaningful for decisional purposes only when viewed in the context and the setting in which they are used.' In the instant case, the Union decided to embark upon a campaign to enlist the membership of some 450 employees out of a total of 1,900 whom it represented. In pursuing this lawful objective, the Union distributed four types of buttons bearing the legends "I'M PAYING MY WAY ARE YOU?," "DON'T BE A SCAB !," "DON'T BE A FREE RIDER!" and "I JOINED HAVE YOU?," which were worn simultaneously in the plant on the evening shift of Wednesday, February 24, and for at least 2 days thereafter. No disruptive inci- dents occurred. In our opinion, the "Scab" button, which was addressed generally to all employees, conveyed a meaning no more opprobrious than that conveyed by the other campaign insignia whose display the Respond- ent permitted to continue. It is to be expected that, in the heat of an organizational campaign, union members may solicit the loyalties of fellow employees with purpose and zeal, at times drawing upon the time-worn jargon of trade unionism. When this Board is called upon to strike down the statutory rights of employees embodied in Section 7 of the Act because of the content of organizational slogans which appear on campaign badges, the Board should do so only upon a clear showing that special circumstances exist which justify such action and that. the interests to be thus served manifestly outweigh those of the employees whose rights are thereby being withheld. On the basis of the record before us, we do not believe that the Respondent's fears and anxieties concerning the wearing of the "Scab" button constitute, without more, such special circumstances as would justify curtail- ment of rights statutorily guaranteed to the Respondent's employees. Accordingly, we adopt the Trial Examiner's finding that the Respond- ent's proscription against wearing the "Scab" button was violative of Section 8 (a) (1) of the Act. Contrary to our dissenting colleague's assertion, the question in- volved in this case is not whether the Respondent's conduct in prohibit- ing the wearing of the "Scab" button was "a reasonable and proper exercise of the responsibilities of management," but whether, as the 8 The dissenting opinion sets forth various quotations from court decisions cited in the Respondent's brief to support its position that the term "scab," "when addressed to a worker connotes disloyalty and treason to his fellow employees, and is therefore one of the most inflammatory words in vocabulary of trade unionism ," and finds that these quotations are representative of "scores of others ." The record , however, is replete with definitions of the term which are at variance with those reported in the Respondent's brief. This cir- cumstance, rather than establishing the unequivocal meaning to which the dissent would attribute to the term , buttresses our conclusion that the term can only be meaningful when all the circumstances under which it is used have been appraised. CATERPILLAR TRACTOR CO. 557 Supreme Court noted in Republic Aviation Corporation v. N. L. R. B.,9 evidence of "special circumstances" existed which justified the Re- spondent's intrusion upon its employees' congressionally bestowed right to wear that insignia while at work. The "Scab" button was worn for approximately 21/2 days before its ban, and yet the record fails to disclose a single instance in which the Respondent's production processes suffered interruption or the threat of interruption, nor does it indicate that so much as a solitary murmur of resentment was heard from any employee because of the display of that button. To permit the abridgement of statutory rights on the basis of the anxieties ex- pressed herein by the Respondent, without the least scintilla of,evi- dence that production would be disrupted or breaches of discipline would erupt, would be tantamount to administrative withdrawal of rights legislatively endowed. If we understand our dissenting col- league's position correctly, this Board would be called upon, in every case where an employer sought to justify his infringement of em- ployees' rights under Section 7 of the Act, to project itself into the mind of each employer and cull the real from the fancied reason for the infringement. We submit that this Board lacks the qualification for performing such a task.10 Moreover, by emphasizing the fact that the Respondent's conduct in this case was not motivated by any union animus, our dissenting colleague apparently would utilize an em- ployer's motivation as a yardstick for measuring whether his conduct in disturbing rights under Section 7 of the Act was justified, notwith- standing that the Supreme Court has repeatedly stressed that an em- ployer's motivation for doing so is patently irrelevant." We perceive no sound reason for departing now from that tribunal's pronounce- ment. Nor has our dissenting colleague advanced one. We note that the dissenting opinion relies on the decision in Mary- land Drydock Company v. N. L. R. B., 183 F. 2d 538 (C. A. 4), to sup- port its position that the Respondent's conduct in curbing the wearing of the "Scab" button was justified. The facts in that case disclose that a labor organization which represented the employer's employees cir- culated a union newspaper at the entrance gates of the plant in which it lampooned and ridiculed the president of the company and char- acterized a newly formed supervisors' association as a "scab" asso- ciation. Finally, the employer forbade circulation of the tabloid on company property. The Fourth Circuit upheld its right to do so. In its decision, which the dissenting opinion herein quotes, the court observed : ... but there is nothing in law or in reason which requires him [the employer] to allow the distribution on his premises of de- 0 See footnote 4, supra 10"9' 'Joy Silk Mills, Inc v. N. L. R. B., 185 F. 2d 732, 742 (C. A., D. C.). "Republic Aviation Corporation v. N. L. R B., footnote 4, supra; Radio Onicere' Union etc < N. L. R. B., 347 U. S. 17 at pp . 45, 46. 558 DECISIONS OF NATIONAL LABOR RELATIONS BOARD famatory statements insulting to those who have charge of his business, destructive of discipline and having no reasonable con- nection with any proper union activity. [Emphasis supplied.] In the Maryland Drydock case, the labor organization was, of course, barred by the Act from representing the supervisors in its bargaining unit, and, so far as appears, its harangue against the company's presi- dent was related solely to the formation of the supervisors' association. In the instant case, as our dissenting, colleague readily concedes, the activity of the employees which the Respondent halted, namely, an organizational campaign to persuade nonmembers to join the Union, constitutes the most basic ingredient of Section 7 of the Act. We cannot equate conduct which has "no reasonable connection with any proper union activity" with activities which are manifestly protected by the Act. 2. The Trial Examiner found that the Respondent violated Section 8 (a) (3) of- the Act by suspending certain employees for wearing the "Scab" button.'2 The Respondent contends that, as its rule ban- ning the button was not motivated by any hostility toward the Union or any intention to impede its employees' rights under Section 7 of the Act, it was error to conclude that the suspensions were violative of Section 8 (a) (3) because it was not shown that the suspensions were intended to discourage membership in the Union. The Supreme Court's decision in Radio Officers' Union etc. v. N. L. R. B.13 is dispositive of the Respondent's contention. Adverting to a parallel contention in Republic Aviation Corporation v. N. L. R. B.,14 the Court stated : That decision [Republic Aviation Corporation] dealt primarily with the right of the Board to infer discouragement from facts proven for purposes of proof of violation of Section 8 (3). In holding that discharges and suspensions of employees under com- pany `no solicitation' rules for soliciting union membership, in the circumstances disclosed, violated Section 8 (3), we noted that such employer action was not `motivated by opposition to the particu- lar union or, we deduce, to unionism' and that `there was no union bias or discrimination by the company in enforcing the rule.' But we affirmed the Board's holding that the rules involved were invalid when applied to union solicitation since they interfered with the employees' right to organize. Since the rules were no defense and the employers intended to discriminate solely on the ground of such protected union activity, it did not matter that u The Trial Examiner also found that the suspensions independently violated Section 8 (a) (1) of the Act. We concur in this finding. u 347 U. S. 17. u See footnote 4, supra. - CATERPILLAR TRACTOR CO. 559 they did not intend to discourage membership since such was a foreseeable result. [Emphasis supplied.] 15 Accordingly, we conclude that, as the Respondent intended to pro- scribe the display of the "Scab" button which constituted a violation of Section 8 (a) (1) of the Act, the natural and foreseeable conse- quence of the proscription and the subsequent suspensions would be to discourage membership in the Union in violation of Section 8 (a) (3) of the Act. ORDER Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby orders that the Respondent, Caterpillar Tractor Co., Joliet, Illinois, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Discriminating against its employees because of their display of "Don't Be A Scab! "buttons. (b) Discouraging membership in District No. 55, International Association of Machinists,-A. F. L., or any other organization of its employees by discriminatorily discharging them or any one of them, or by discriminating in any manner prohibited by the National Labor Relations Act, as amended, in regard to their hire or tenure of employ- ment, or any term or condition of employment. (c) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organiza- tion, to form labor organizations, to join or assist District No. 55, International Association of Machinists, A. F. L., or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in collective bargaining or other mutual aid or protection, or to refrain from all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Make whole to each of its employees the amount of pay each of said employees would have earned on either March 1 or 2, 1954, according to the shift he would have worked had he not been laid off, to the employees named and in the manner set forth in the section of the Intermediate Report entitled "The Remedy." 25 At pp. 45, 46. 560 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Post at its plant at Joliet, Illinois, copies of the notice attached hereto and marked "Appendix." 16 Copies of such notice, to be fur- nished by the Regional Director for the Thirteenth Region, National Labor Relations Board, after being duly signed by a representative of Caterpillar Tractor Co., shall be posted for a period of not less than sixty (60) consecutive days thereafter in conspicuous places in the above-named plant, including each place where notices to employees are customarily posted. (c) Notify the Regional Director in writing, within ten (10) days from the date of this Order, what steps it has taken to comply there- with. MEMBER RODGERS, dissenting : I cannot agree with the majority that the Respondent's proscrip- tion against the wearing of the "Scab" buttons was violative of Sec- tion 8 (a) (1) or that the subsequent suspensions were violative of Section 8 (a) (3). In my opinion, the basic error of the majority, in viewing the con- duct alleged to be violative of the Act, stems from an unwillingness to evaluate the total picture and from an overpreoccupation with but a single aspect thereof. Here we have an Employer who has always per- mitted union activity and solicitation outside working hours; who has at times even permitted such solicitation during working hours; who has at all times permitted the wearing of all types of unions' buttons and insignia, other than the "Scab" button; and whose sole restric- tion has been to prohibit the wearing in the plant during working hours of a button that has been universally recognized as inflammatory and reasonably calculated to lead to violence in the plant. When this narrow prohibition is viewed in the light of the relationship that has existed between the Respondent and the Union, the numerous other types of union buttons which employees freely wore, and the obvious fact that the employees knew that the Respondent objected, not to the wearing of union buttons, but only to the particular wording of this one button, one must necessarily conclude that the Respondent's con- duct under the circumstances was both a reasonable and proper exer- cise of the responsibilities of management. The relations between the Respondent and the Union from 1951, when the Union was certified as collective-bargaining representative of approximately 1,900 of the Respondent's employees, to the date of the occurrences that gave rise to this proceeding, were exceptionally cordial and harmonious. The Respondent permitted solicitation of union membership in the plant, even during working hours, permitted the Union to build up its steward organization; and cooperated with 39 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order." CATERPILLAR TRACTOR CO. 561 the Union in obtaining the execution of dues checkoff authorization cards. Not only is there not the slightest intimation of any antiunion motivation on the part of the Respondent, but rather, as the record clearly shows, the exact opposite is true. This must be borne in mind in judging the facts of this case. On February 24, 1954, union members undertook to wear in the plant, during working hours, 1,000 special buttons. Of these, 250 carried the words, "Don't Be A Scab !" The remaining 750 buttons carried the words, "I'm Paying My Way Are You?," "Don't Be A Free Rider!," and "I Joined Have You?" The Respondent pro- hibited the "Scab" buttons. The Respondent permitted, and em- ployees-freely wore, the 750 other buttons. Other insignia evidenc- ing the wearer's membership or position in the Union were also freely worn. On February 25, the Respondent's labor relations manager advised the union representative that the wearing of the "Scab" but- tons would cause trouble in the plant and requested that they be withdrawn. Meetings were also held among management officials at which the consensus was that the wearing of the "Scab" buttons in the plant would create an explosive and dangerous situation lead- ing to disruption of production and probable physical harm to em- ployees. Plant Manager Naumann then decided that the "Scab" but- tons should not be permitted in the plant during working hours and that employees who persisted in wearing those buttons should be sent home. In explaining the basis for this decision, Naumann testified : ... In the first place, the scab button was offensive and it was -inflammatory, and it could lead to physical violence. Those things tend to build up as the days go on, and aside from possible phys- ical violence in the plant of our size of almost 3000 people, it is necessary that people work-aside from the physical violence in a plant of our size, it is necessary that people work in the spirit of harmony and cooperation... . ... When you introduce an irritant and people have to work side by side, it doesn't take too long before people aren't working in harmony with each other, aside from any physical violence you might run into. And likewise, it seemed to me that the scab but- ton does tend to intimidate and coerce the employee, who for vari- ous reasons has not chosen to join the Union. On February 26, the Respondent's foremen notified employees that beginning the next work day (March 1) the wearing of the "Scab" buttons would not be permitted in the plant. On March 1, a number of employees reported for work wearing that particular button. They were told that if they would remove it they could work, but not other- wise. Those who persisted despite this admonition were then sent home. As stated by the majority all suspended employees have been 562 DECISIONS OF NATIONAL LABOR RELATIONS BOARD -reinstated pursuant to an agreement of the parties, pending the Board's determination of the legality of the Respondent's conduct. No one can quarrel with the majority's broad generalizations about the right of employees to wear union insignia while at work. But that is not the issue we have to decide here . The precise question before us is whether the prohibition of the "Scab " buttons was a reasonable ex- ercise of the responsibilities of management and therefore within the exception to the broad rule predicated on the rights guaranteed by Sec- tion 7 of the Act. In an analogous situation involving the distribution of union literature, the Fourth Circuit in Maryland Drydock Company v. N. L. R. B., 183 F. 2d 538, after stating the general rule that an em- ployer may not refuse his employees the reasonable use of his premises for matters connected with union organization, went on to state at page 540 : ... but there is nothing in law or in reason which requires him to allow the distribution on his premises of defamatory state- ments insulting to those who have charge of his business, de- structive of discipline and having no reasonable connection with any proper union activity. Counsel for the Board argue that the employer should not be permitted a censorship over the liter- ature of the union; but no censorship is involved in holding that the employer may forbid the distribution on his premises of state- ments'which are defamatory and insulting and which tend to dis- rupt discipline. This is the precise issue here. The Respondent-in an undisputed background of cordial relations with the Union-voiced no objection to the wearing of 750 of the 1,000 union buttons, but objected to the remaining 250 "Scab" buttons because they were "offensive," "inflam- matory," "could lead to violence," and tended "to intimidate and coerce the employee who for various reasons has not chosen to join the Union." It seems clear that the term "scab" when addressed to a worker con- notes disloyalty and treason to his fellow employees, and is therefore one of the most inflammatory words in the vocabulary of trade union- ism. As the Seventh Circuit stated in N. L. B. B. v. Aintree Corpora- tion,135 F. 2d 395, at page 397: Probably no words are more insulting to, or arouse keen resent- ment more promptly in, an employee than to call him a " scab." [Emphasis supplied.] That this conclusion is not unique is amply illustrated by the following quotations from court decisions cited in the Respondent's brief and which I find are representative of scores of others : It is a matter of common knowledge that the word "scab," as a designation of a human being, is one of the most opprobrious and insulting in the English language... . CATERPILLAR TRACTOR CO. 563-. No men can be called a scab without thought of the putrescent and loathsome object which the term applied to himself suggests." We are aware of the fact that among members of unions the term "scab" is used to define an employed individual who does not respect a picket line, and that among union members when one is classified as a "scab," he is frequently ostracized and held in con- tempt by fellow union members.18 * * * * * * * Further, the word "scab" was, under the circumstances, objec- tionable. It carries a scurrilous import. Webster's New Inter- national Dictionary classes the use of the word in trade unionism circles as an "opprobrious" use. It has been held to be a name of insult and of opprobrium. . . . The word has other meanings, as, a dirty paltry fellow; a scoundrel; but we know of no sense in which the word is used of a person without opprobrious significance.19 * * * * * * ... word "scab" is one of ancient origin, in its application to persons of disrepute, as will appear from a reference to the Cen- tury Dictionary. Among the definitions of the word "scab" there given, we find the following: "A mean, paltry, or shabby fellow; a term of contempt." And again : "Specifically, in recent use, a workman who is not or refuses to become a member of a labor union, who refuses to join a strike, or who takes the place of a striker; an opprobrious term, used by the workmen or others who dislike his action." I think it is entirely free from doubt that the publication in question is libelous per se.... It not only affected the defendant in his business' but it obviously held him up to public contempt and ridicule?' The Board, if it has any pretensions to "expertise" at all, should be aware of this connotation of the word "scab" in the industrial world. Yet the majority chooses to brush it aside and to characterize it as conveying a meaning "no more opprobrious than that conveyed by the other campaign insignia whose display the Respondent permitted to continue." The majority refers to Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, which sets forth the general rule, with which there is, of course, no dispute. But my colleagues, in holding that rule to be ap- 14 Unated States v Tahaferro, 290 F 214. "American Brake Shoe Company v . Annunzio, 405 111. 44, 49. "Evening Times Printing 4 Publishing Co. v. American Newspaper Guald, 199 Atl. 598, 602. ° Prince v Socialistic Coop Publishing Association :, 64 NYS 285. 564 DECISIONS OF NATIONAL LABOR RELATIONS BOARD plicable only to situations where breaches of discipline or disruption of production attend the exercise of the right to engage in concerted activity, overlook the fact that the courts have held that management is not required to wait until breaches of discipline or disruptions of production actually occur, but can promptly take such reasonable steps as will avert the occurrence of such eventualities. As the Fourth Circuit stated' in Maryland Drydock Company v. N. L. R. B., supra: The trouble here is that the Board has proceeded upon the errone- ous theory of law in holding that, because no actual disruption of discipline is shown, the company may not forbid the distribu- tion of literature the reasonable tendency of which is to cause its disruption. . . . To allow the finding of an unfair labor practice to stand against the company under the circumstances here would . . . deny to the company the right to forbid on its prem- ises conduct which is manifestly destructive of discipline." The majority opinion is inaccurate in describing my legal position by confusing a reference to the factual background only, which clearly showed no antiunion motivation, with a statement of the law. Of course, the law is clear as the Supreme Court stated it in Republic Aviation, that a rule prohibiting the wearing of union insignia in a plant interferes with employees' organizational rights unless special circumstances make the rule necessary in order to maintain discipline and uninterrupted production. My position is that the Respondent did show the special circumstances necessitating the rule, within the meaning of the Supreme Court's language in Republic Aviation. The Supreme Court stated that "Opportunity to organize and proper dis- cipline are both essential elements in a balanced society." [Empha- sis supplied.] And the Ninth Circuit in Boeing Airplane Co. v. N. L. R. B., 216 F. 2d 269, stated that-"No doctrine can give immu- nity to symbols and expressions which are incitements to crime or vio- lent action in breach of peace." When I refer to "a reasonable and proper exercise of the responsibilities of management," it is precisely in the context of the special circumstances to which both the Supreme Court and the Ninth Circuit refer. I take these expressions of the courts as my frame of reference. This is a far cry from the depar- ture from the judicial pronouncements which the majority suggest. I am satisfied that my position in this case fully accords with the law as the courts have stated it. u The majority misapprehend my references to Maryland Drydock Company. I cited that case for the specific purpose of showing that the courts have held that manage- ment is not required to wait until breaches of discipline or disruption of production actu- ally occur. The above excerpt from the Fourth Circuit's opinion fully bears this out. The majority also err in construing my other reference to this decision. They quote only the first sentence of that excerpt but omit the sentence which follows concluding with "no censorship is involved in holding that the employer may forbid the distribution on his premises of statements which are defamatory and insulting and which tend to disrupt discipline." [ Emphasis supplied .] This is directly pertinent here CATERPILLAR TRACTOR CO. 565 For the foregoing reasons, I would find that the prohibition of the "Scab" buttons by the Respondent was reasonable under the circum- stances and, accordingly, would dismiss the complaint. CHAIRMAN FARMER and MEMBER LEEDOM took no part in the con- sicer€Ition of the above Decision and Order. APPENDIX 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, as amended, we hereby notify our employees that : WE WILL NOT discriminate against our employees for wearing buttons bearing the legend "Don't be a Scab !" WE WILL NOT discourage membership in District No. 55, Inter- national Association of Machinists, AFL, or discourage activity in support of that organization, or any other labor organization, or discourage any employee from exercising the right secured to him under the National Labor Relations Act by means of dis- criminatory discharge or discriminating in any manner in regard to hire, or tenure of employment, or any term or condition of employment. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist District No. 55, International Association of Machinists, AFL, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in collective bar- gaining or other mutual aid or portection, or to refrain from any and all such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organi- zation as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as guaranteed in Section 7 thereof. WE WILL pay to each of our employees laid off on either March 1 or 2, 1954, for the reason that he was wearing a badge or button with the words "Don't be a Scab !," an amount equal to the pay he would have received had he not been laid off. CATERPILLAR TRACTOR CO., Employer. Dated---------------- By---- -------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. 566 DECISIONS OF -NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE On March 26, 1954, a charge was filed by District No. 55, International Associa- tion of Machinists, affiliated with the American Federation of Labor (hereinafter sometimes called the Union),1 against Caterpillar Tractor Co., the Respondent herein, alleging that the Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and (3) of the National Labor Relations Act. As a basis for the charge it was stated that: Since on or about February 19, 1954, the Company, by its officers and/or agents, have interfered with the rights of its employees, guaranteed by the Act, by 1. Interfering with the rights of its employees to freedom of speech in connection with their union activities; 2. Issuing disciplinary layoffs on or about February 22 and 23, 1954, to the attached list of employees because of their activities on behalf of the charging Union. By these and other acts and conduct the Company, by-its officers and/or agents, have interfered with the rights of its employees guaranteed by the Act. On May 25, 1954, the General Counsel of the National Labor Relations Board, by the Regional Director for the Thirteenth Region (Chicago, Illinois), issued and served a complaint against Caterpillar Tractor Co., as Respondent, alleging that the Respondent, by laying off some 247 employees for the reason that each of them engaged in concerted activity and activity on behalf of the Union, i. e., wore a union button with the words "Don't be a Scab!" and refused to reinstate these em- ployees until each of them had agreed to refrain from wearing the button, and, b) promulgating a rule against the wearing of a button bearing the words "Don't be a Scab!," has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) and 8 (a) (3) of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the Act. The charge and the complaint were duly served upon the Respondent, which filed timely answer to the complaint, ef- fectively denying that it had violated the Act and setting up certain affirmative defenses, mentioned below. Pursuant to notice, this matter came on for hearing before the duly designated Trial Examiner at Joliet, Illinois, on July 26, 1954. The General Counsel and the Respondent were represented by counsel, and the Union was represented by its Grand Lodge representative. All parties were afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce relevant evidence. At the close of the hearing the parties were given an opportunity to argue orally and to file briefs. Counsel for the General Counsel argued orally on the record and counsel for the Respondent submitted a brief. Upon the entire record in the case, from his observationof the witnesses, and after careful consideration of argument and brief, the Trial Examiner makes, the following: FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT The Respondent, Caterpillar Tractor Co., is and at all times material hereto has been a corporation duly organized under and existing by virtue of the laws of the State of California, maintaining an office and manufacturing plant in Joliet, Illinois. The Respondent is engaged in the manufacture of tractors and earth -moving ma- chinery and operates manufacturing plants located in San Leandro , California, and York, Pennsylvania, as well as its plant at Joliet , Illinois. It has a wholly owned sub- sidiary located at Milwaukee , Wisconsin, said subsidiary being engaged in the opera- tion of a manufacturing plant . The Respondent in the course, conduct, and operation of its business, causes and at all of the times mentioned in this Intermediate Report has continually caused large quantities of raw materials used by it in the manufac- 1 District Lodge No. 55 is the Charging Party. It is also the Union's certified bargain- ing representative of the employees in the bargaining unit with which this case is con- cerned at the Joliet plant of the Respondent. District Lodge No 55 is a lodge made up of several smaller lodges, and Lodge No. 851 is the local lodge which represents the employees in the certified bargaining unit at the Joliet plant of the Respondent. CATERPILLAR TRACTOR CO. 567 ture of its products to be purchased and transported in interstate commerce to its plant in Joliet, Illinois, from and through States of the United States other than the State of Illinois. During the calendar year 1953, the value of raw materials pur- chased by the Respondent and used in the operation of its business was in excess of 30 million dollars of which approximately 60 percent was shipped to its place of business in Joliet, Illinois, from points outside the State of Illinois. During the calendar year 1953, the Respondent caused large quantities of its finished products valued annually in excess of 66 million dollars to be sold, of which approximately 98 percent was shipped and transported in interstate commerce from its plant in Joliet, Illinois, into and through States of the United States other than the State of Illinois. The Respondent is, and at all times material hereto has been , engaged in com- merce and has affected commerce within the meaning of Section 2 (6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED District No. 55, International Association of Machinists, affiliated with the Ameri- can Federation of Labor, is and at all of the times mentioned herein has been a labor organization within the meaning of the Section 2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The inception of this dispute The Union is the recognized collective-bargaining representative of the unit in which the employees concerned in this case are employed, all of whom at the times mentioned were employed at the plant of the Company located at Joliet, Illinois. About the middle of February 1954,2 the Union adopted, and made for wearing by its members during a campaign for new members and the collection of dues, some 1,000 buttons, or badges, 250 each bearing 1 of 4 different legends or slogans. Each button was about 21/a inches in diameter. -A white button carried the words in green letters "DON'T BE A SCAB!," a yellow button carried the words in black letters "I'M PAYING MY WAY ARE YOU?," an orange button carried the words in black letters "DON'T BE A FREE RIDERI," and a white button carried the words in red letters "I JOINED HAVE YOU?" On the bottom margin of each button was printed: I. A. M. Lodge 851. On the morning of Wednesday, February 24, the buttons were distributed by union representatives to'the second shift union stewards, and that evening to the first shift stewards, to be passed out by them to the several groups of employees in their respec- tive working areas in the plant. The first wearing of any of the buttons was on the late Wednesday shift; they were also worn on Thursday and Friday of that week. The wearing of the badges first came to the attention of Eugene E. Garrison, mana- ger of the labor relations division of the Company, on Thursday morning and he and department heads of the Joliet plant, or some of them, discussed particularly the wearing of the "Don't be a Scab!" button. About the middle of that day, Garrison telephoned Ed Delaney, business representative of District No. 55, asked him if he knew of the wearing of the buttons, and told him that he believed this particular badge would invite trouble because it was coercive in nature and also violated a "sort of confidence" that the Company and the Union always had had; he told Delaney further that the wearing of that particular badge, in his opinion, would eventually cause trouble and asked him if he wouldn't reconsider "and do something about it." Delaney told Garrison this particular badge and the other badges had been selected by the members of the Union to be worn and he did not think there was much he could do about it. After conferring with department heads in the plant, Garrison decided to do nothing further that day, and to await the return of William L. Nau- mann, plant manager, on the following day to discuss the matter with him. Garrison conferred with Naumann on Friday morning and thereafter advised the department heads that the wearing of the "Don't be a Scab!" button would not be tolerated. In his words: Q. (By Mr. Keller.) After your meeting with Mr. Naumann on Friday, February 26, what action did you take, if any, in regard to informing super- vision? A. (The witness.) I went back to the department heads, and informed them of this decision, that it was the Company's thinking this could not be tolerated 2 Unless otherwise noted, all dates hereinafter mentioned are for the year 1954. 379288-56-vol 113 37 568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD and would they instruct their supervision down through the line organization accordingly, that the badges could not be worn on Monday morning; that we would give the opportunity for all people, and tell those people wearing, scab buttons on that Friday that they wouldn't be tolerated Monday morning. Q. Mr. Garrison, when you say badges, you are referring only to the don't be a scab button. Correct? A. Yes, we told them for sure to tell all employees we had no objection to any of the other buttons they were wearing, but that the don't be a scab button was taboo. Q. When you say instructions were given right down the line- A. From the department head to the superintendent, to the general foreman, to the foreman, and each one in turn took those people under his jurisdiction. Q. Who was the foreman-what was the foreman to do with the instructions? A. The foreman was to tell the employees wearing the don't be a scab button on that Friday, we could not tolerate those scab buttons being worn, starting Monday morning. He was also on Monday morning to approach those em- ployees wearing the buttons and ask them kindly to take them off. Give them the opportunity to stay at work. If they didn't it would be necessary to send them home .3 Joseph Talarico, president of Local Lodge 851 of District 55, and Malcolm F. Carlson, its treasurer, each related that he had been approached by his respective foreman on Friday morning and advised that the Company would not permit the wearing of the "Don't be a Scab!" button after that day, and they also were told that anyone who appeared for work on Monday, March 1, the first working day after that Friday, would be sent home. Each of them said that his foreman told him that if they returned after Monday wearing the button they would be sent home for 3 days, and if any employee again returned and wore the button he or she would be dis- charged. Garrison denied emphatically that any such instructions had been issued by him. Benhart and Judy, the two foremen alleged to have made these statements, did not testify at the hearing. On all other matters on which each of these witnesses testified, there was no essential conflict with the testimony of witnesses called by the Respondent; to the Trial Examiner each of them appeared to be a credible witness. An inference might be drawn against Respondent Company for its failure to call either of the foremen on this particular point; however, in view of the findings which appear below it appears unnecessary to decide this apparent question of credibility. The Trial Examiner believes that Garrison did not issue such instructions; he thinks it possible that Benhart and Judy did make the statements attributed to them. On Monday morning, March 1, some 247 employees reported for work and began their work wearing the "Don't be a Scab!" button. Counsel for the parties stipu- lated at the hearing that the employees "whose names are listed in the Appendix A of the complaint were sent home on either March 1, or March 2, 1954, for the reason that they were wearing General Counsel's Exhibit No. 2 [Don't be a Scab!]. It is further stipulated that employees in the bargaining unit represented by the Union at the Respondent's Joliet plant, wore General Counsel's Exhibits 3, 4 and 5 (the other three types of buttons mentioned above) during the period from February 24, through March 2, and subsequently thereto without any disciplinary action or acts on the part of the Company." A second stipulation between counsel for - the parties was offered and accepted at the hearing to the effect that "all the em- ployees named in Appendix A [247 employees] attached to the complaint were sent home from work either on March 1, or March 2, depending upon whether they worked on the day shift or the night shift, and that the reason they were sent home was wearing the Don't be a Scab! button; that they were informed • the reason they were sent home was because they were wearing such a button. They were told they could remain if they took the button off and each of the em- ployees lost approximately one day's pay"; and "that no employee lost more than a day's pay. In other words, some of them might have lost 7 hours' pay or some- thing like that, but no one lost more than one day's pay." On Monday morning, March 1, before the 247 employees had been laid off or sent home, a mimeographed handbill prepared by the Union was distributed at the plant gate to employees on their way to work. The handbill, the contents of which s There is no conflict regarding the fact that the Company did not object to the wearing of the other three types of badges or buttons, and it appears affirmatively that other but- tons, including a membership button, badges designating the chief steward and stewards, had been worn by employees after the time the Union was recognized as the bargaining representative in 1951. CATERPILLAR TRACTOR CO. 569 are set forth in the margin,4 was received in evidence, over the objection of counsel for the Respondent, as explanatory of the position of the Union regarding the right of its members to wear the "Don't be a Scab !" button, and its interpretation of the meaning of the word "scab." After the employees had been sent home on that morning, Garrison telephoned the office of the Union, suggested a meeting in an„effort to obtain a settlement of the dispute, but was unable then to arrange a conference with union representatives because of a union membership meeting scheduled for that afternoon. Garrison thereupon telephoned Talarico, the presi- dent of the local lodge, and arranged for a meeting the following morning at 9:30. As a result of the meeting on Tuesday morning, it was agreed that the employees would not wear the "Don't be a Scab !" button, and would be returned to work pending the disposition of the matter by the National Labor Relations Board, or by grievance procedure, or both. From March 2 until the date of the hearing, the union members refrained from wearing the "Don't be a Scab !" button, although the other buttons with their three different slogans were worn by them during working hours without objection from the Company, as were membership, chief steward, and steward buttons. The Union at all times maintained the right of its members to wear the button and the propriety of the use of the word "scab." B. The position of the Respondent Company The Respondent takes the position that it acted within the prerogative and right of management when it refused to allow the wearing of the "Don't be a Scab !" button; that the word "scab" is a derogatory and inflammatory word and the wearing of buttons with the words "Don't be a Scab !" inscribed thereon, in the plant, dur- ing working hours, "tends to and does promote and cause strife and unrest among Respondent's employees"; and denies that its refusal to permit the wearing of that button constituted or constitutes interference, restraint, or coercion within the meaning of Section 7 of the Act. After the recognition and certification of the Union as bargaining representative in the year 1951, the relationship between the Union and its members on one The handbill states as follows : THREE LITTLE WORDS "don't be a scab" Yes, three little words, plus the fact that over 200 checkoff authorization cards were turned in to the Company in the past two weeks, have so deeply concerned the Com- pany that they have threatened their employees with layoffs for wearing Union but- tons that bear these words. We do not like to have our members layed off for any reason but most of all we do not like to see them laved off for the use of their freedom of speech, a heritage that is rightfully theirs. We agree that it must be very disturbing to the Company to find the strength of the 'Union growing to such an extent that a Union Shop is no longer wishful thinking. However, we too are disturbed, disturbed by the thought that a Company of the size and reputation of Caterpillar should have completely forgotten that this is the United States of America where men have fought and died in the Armed Forces against tyrants and dictators to maintain their freedom of speech and the principles of democracy. The International Association of Machinists like the United States Government is operated on the principles of democracy. We also believe in majority rule and because of this belief it is very difficult to understand the reason for the Company threaten- ing to lay of a majority to satisfy a small minority. The definition of the word "scab" as applied to the particular situation at Caterpillar is as follows : "A work- man whose belief is contrary to the principles of Trade Unionism " It is the belief of your Union and of Trade Unions through out the world, that where a Union is the sole and exclusive bargaining agent for ALL the employees in the bargaining unit, that it is the duty of each and every employee within the bargaining unit to become and to remain a member of the Union while employed in that plant. THE NON-UNION EMPLOYEES AT CATERPILLAR ARE ADHERING TO CON- DITIONS THAT ARE CONTRARY TO THOSE PRESCRIBED BY TRADE UNIONS. The time has come for the Union members at Caterpillar to take a stand. Too long have we carried these non-union people on our backs. Too long have we allowed these people to benefit by the fruits of our labor. IT IS EASY TO BREAK A SINGLE STICK, BUT TRY TO BREAK A BUNDLE OF STICKS TIED TOGETHER, ONE WORKER ALONE IS LIKE A SINGLE STICK. LETS TIE OURSELVES TOGETHER UNDER THE I. A. M. 570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD side and the Company on the other was a friendly one; there is no evidence in the record of any strike or disorders or any other labor disturbances at this plant. Indeed, the testimony is the other way. The Respondent offered affirmative proof showing that after the execution of a collective-bargaining agreement entered into on October 22, 1951 , it permitted, in February of the following year, outside union representatives to go into various areas of the plant for the purpose of enlisting union stewards ; 5 that the president of the local lodge was invited to, and did participate, in the formal "open house" (on the occasion celebrating the completion of the plant) together with the president and other officials of the Company, and appeared on the platform as a speaker before several thousand of the Company's employees and a number of the people from the community who were there for the opening ; and that after the making of a collective agree- ment between the Company and the Union about the middle of March 1953, the Company afforded assistance to the Union in securing new individual volun- tary checkoff authorization cards from employees within the plant . Other than the usual differences which occur at the bargaining table between union and manage- ment, the parties seem agreed that there have been good labor relations at this plant. A first agreement, dated October 22, 1951, was renewed by an agreement effective January 16 , 1953, and each of these agreements contained almost identical union- security clauses and provisions for voluntary checkoff of union membership dues .6 At the inception of this dispute, in late February 1954, there were approximately 1,900 employees in the bargaining unit, approximately 1,450 of whom had furnished individual voluntary authorization cards. It was during the middle of this month that the Union decided upon an organizational drive , the purpose of which was to obtain new members at the plant and , it may be implied, voluntary authorization cards from any such new members obtained and from members who had allowed their previous individual authorizations to lapse. C. The use and meaning of the word "SCAB" as used herein Over objection, the Trial Examiner admitted in evidence a number of exhibits offered by counsel for the Respondent containing printed material using the word "scab" and several derivatives of use from that word . These exhibits are intended to show, in support of the Respondent's case, that its representatives were justified in their belief that the Company was within right and management prerogative when it refused to permit the "Don't be a Scab !" button to be worn by any of its em- ployees.7 Thereafter, counsel for the General Counsel introduced certain printed writings in evidence 8 and also called witnesses as experts to testify as to the com- monly accepted contemporary meaning of the word "scab." 9 In support of its contention that the appellation "scab" is opprobrious, insulting, and inflammatory, the Respondent in the brief filed in its behalf asserts that the word, when addressed to a workingman, embodies a most vicious and insulting meaning; "At that time the Union was having some difficulty maintaining a steward group at the plant, because of the rapid growth of the plant and the consequent increase in employment. 6 The provisions of article III, union security, section 1 and section 2 of the January 16, 1953, agreement are identical to the same sections of the same article in 1951 agreement, except as to the dates contained therein. 7 These exhibits , either read into the record or introduced as documentary evidence, are these : Machinists Monthly Journal, February 1953, p 49 , Catering Industry Employees, V. 63, No. 6, June 1953, p. 17; The Papermaker , AFL, January 12, 1954, V. 6 , No. 9, p. 5; Rothenberg, Labor Relations ( Dennison Company, Inc., Buffalo, N. Y., 1949 ), pp 539, 540; American Federation of Labor History Encyclopedia, 1919, p. 344; What's What in the Labor Movement , a dictionary of labor affairs and labor terminology compiled by Waldo R Browne, 1921, p 421, Labor Record, V 20, No. 37, Joliet, Illinois , June 3, 1954. s These exhibits include the following : The 974 News , official voice of Caterpillars Workers Local 974, UAW-CIO, East Peoria , Illinois , V. 3, No. 15, April 28, 1954; The Labor Record, an AFL weekly newspaper , Joliet, Illinois , V. 20, No. 43, July 15, 1954, V. 20, No. 44, July 22, 1954. U The substance of the testimony of the expert witnesses called on behalf of the Gen- eral Counsel may be interpreted to mean about the same as the definition of the word as applied to the particular situation at the Joliet plant as set forth in the mimeographed handbill distributed by the Union at the Company' s plant gates on the morning of March 1 : "A workman whose belief is contrary to the principles of trade unionism " ; or the defini- tion carried in the Labor Record in the issue introduced in evidence which emphasizes that a "scab" as defined by "Webster's Dictionary" is "one who works for less than union wages ci one "ho is not a member of a labor union or refuses to join." CATERPILLAR TRACTOR CO. 571 that historically and presently, it depicts an ingrate and traitor ; that it connotes dis- loyalty and treason to fellow employees ; that it is one of the most inflammatory words in the vocabulary of trade unionism ; and no other could be chosen which would more quickly cause resentment and induce retaliation . In support of its con- tention, the Respondent in brief has furnished citations of various cases with extracts therefrom, including United States v. Taliaferro (1922), 290 F. 214, 218; American Brake Shoe Company v. Frank Annunzio (1950), 405 111. 44, 49; Evening Times Printing and Publishing Company v. American Newspaper Guild (1938), 124 N. J. Eq. 71 ; Prince v. Socialistic Coop. Publishing Assn. ( 1900), 64 N. Y. S. 285, 286. Also Des Moines, Springfield and Southern Route, 78 NLRB 1215, 1218 ; Wytheville Knitting Mills, Inc., 78 NLRB 640, 642; Longview Furniture Company, 100 NLRB 301, 304; Utah Oil Refining Company, 108 NLRB 1392. The Trial Examiner is at a loss to perceive how the Respondent can derive much comfort from the cases cited by it in support of its position. The extracts from court decisions set forth in the brief are precise , and certainly confirm the general notion that the term "scab" applied to a worker is one of opprobrium and scorn . However the facts in those court cases so cited are completely dissimilar to the facts in the instant case. These court cases are merely illustrative and include some of those quoted from in 38 Words and Phrases, perm . ed., pp. 288-289, and 1954 Supp., p. 60. The Board cases cited are generally against the position taken by the Respondent: In Des Moines, Springfield and Southern Route the Board wrote: "The word 'scab' which was applied by Purscell to Burrhus is one often directed by active participants toward non-participants in a union organizational drive. We perceive nothing in such conduct to warrant a forfeiture of an employee 's rights under the Act"; in Wytheville Knitting Mills, Inc., the Board said : "In evaluating statements such as those made by Cox and Fowles, we have heretofore found it advisable to measure them by the surrounding circumstances, and by the nature of the speaker and his audience. . Although we have not previously and do not now condone the use of abusive and intemperate language in the conduct of industrial relations, reality requires us to recognize that industrial disputes are not always conducted in the dispassionate at- mosphere best calculated to result in their amicable settlement"; and in Longview Furniture Company the Board said again , "Although the Board does not condone the use of abusive and intemperate language, it is common knowledge that in a strike where vital economic issues are at stake, striking employees resent those who cross the picket line and will express their sentiments in language not altogether suited to the pleasantries of the drawing room or even to courtesies of parliamentary disputation." Utah Oil Refining Company concerns an individual employee, a former striker who had been returned to work, who wrote in a company logbook, while on duty, con- cerning the conditions of certain plant equipment , that it "had been coked up by scabs"; in this case there is no question of concerted activity or freedom of speech involved and the employee previously had been warned against his intemperate use of language to other employees and his use of the word "scab." The Respondent relies heavily on the decision of the Court of Appeals for the Seventh Circuit in N. L. R. B. v. Aintree Corporation , 135 F. 2d 395, asserting that that case is "on all fours with the instant case " and dispositive of the complaint. The Trial Examiner disagrees. The facts in the Aintree case disclose that there was rivalry between a so-called company union and a union affiliated with the American Federation of Labor, and that there had been a prior hearing before a Trial Examiner in an unfair labor practice case ; and that in the heat of rivalry between the 2 unions and the consequent involvement of the company , 2 employees were held responsible for the distribution of a leaflet referring to the independent union as a "company union" in a deliberately planned scheme to promote further dissension in the plant. About all this case stands for is the principle that acts of insubordination, disobedi- ence, or disloyalty are adequate cause for discharge . In Local Union No. 1229, International Brotherhood of Electrical Workers v. N. L. R. B., 346 U. S. 464, also relied upon by the Respondent, the issue was only whether certain employees were discharged for cause after attacking the quality of the company's products . This lat- ter case is inapposite to the facts now under consideration in this case. Shortly, then, the Trial Examiner agrees with the contention of the Respondent that the word "scab" may be considered to be an insulting term when used in some circumstances , but that the cases cited by the Respondent and relied upon by it do not support its position in the instant case. Indeed, the Des Moines, Springfield and Southern Route, and Wytheville Knitting Mills, Inc., cases demonstrate that the Board regards the use of such an opprobrious term as "scab" as being impolite but takes the realistic view that in these modern days the word is a commonly accepted one and well understood in industrial relations, particularly in cases where organizational drives are put on by unions in an effort to organize the unorganized. Here, the facts 572 DECISIONS OF NATIONAL LABOR-RELATIONS BOARD seem to show, and the Trial Examiner expressly finds, that the use of the word "scab" on the union button was not intended to incite unrest or disturbance or to interfere with production. D. The decision of the Respondent not to permit the wearing of the "Scab" button The Respondent asserts that its refusal to permit the wearing of the "scab" button in the plant was motivated solely by the need to protect the plant, production, and its employees against the harmful consequences of such an insulting and inflammatory appellation. This decision was made by Naumann and Garrison. Its making is described by Naumann: Q. (By Mr. Keller.) Could you tell us what decision was reached at that conference with Mr. Garrison insofar as-the policy of the Company was con- cerned in regard to the wearing of the don't be a scab buttons? A. Yes, we reached the conclusion that we would insist the scab button not be worn for several reasons. In the first place, the scab button was offensive, and it was inflammatory, and it could lead to physical violence. Those things tend to build up as the days go on, and aside from the possible physical violence in the plant of our size of almost 3,000 people, it is necessary that people work- aside from the physical violence in a plant our size, it is necessary that people work in the spirit of harmony and cooperation and when you Q. (By Mr. Keller.) Mr. Naumann, have you stated all the reasons for making your decision on February 26, in reference to the don't be a scab button? A. Well, I was completing the second reason when Miss Zogg objected, and that was that you do have to have harmony and cooperation. When you intro- duce an irritant and people have to work side by side, it doesn't take too long before people aren't working in harmony with each other, aside from any physi- cal violence you might run into. And likewise, it seemed to me that the scab button does tend to intimidate and coerce the employee, who for various reasons has not chosen to join the Union. - Q. Was that reason, prohibiting the wearing of the scab button motivated in any way by a desire to,forbid the Company's employees to engage in concerted activity in behalf of the Union? * * * * * * * A. My answer is no, definitely not, and that is evidenced by the fact that we did permit the wearing of the other buttons. As a result of the conference between Naumann and Garrison the Company pro- mulgated its rule against the wearing of the button. The question must be decided as to whether the promulgation of this rule, followed by the layoff of 247 employees on the next working day, was an illegal intrusion upon the unequivocal guarantee to employees contained in Section 7 of the Act, that they "shall have the right . . . to engage in . . . concerted activities for the purpose of . . . mutual aid or protection" without fear of discharge or other penalty. There is no evidence in the record of any actual friction, or violence, or disturbance occasioned by the wearing of the "Don't be a Scab!" button on Thursday and Friday preceding the Monday of the layoff. Nor is there any evidence that any employee complained, nor is there any report that any employee was disturbed or was about to engage in any sort of disturbance or altercation because of the appearance of the button. The right of an employer to make and enforce reasonable rules governing the conduct of employees on company time, even though those rules may limit the statutory right of employees to engage in union or concerted activities, has been recog- nized by the Board and the courts. In those cases, the Board has balanced the right of the employer to manage his business as against the employees' rights to engage in union or concerted activity, in order to determine whether a company rule unreason- ably interfered with the employees' exercise of their statutory right under Section 7 of the Act. Republic Aviation Corp., 51 NLRB 1186, enfd. 142 F. 2d 193 (C. A. 2), affd. 324 U. S. 793. , The Respondent here asserts that "there can be no violation of Section 8 (a) (3) unless there exists a purpose to encourage or discourage union membership," and cites in support thereof a number of cases including Western Cartridge Co. v. N. L. R. B., 139 F. 2d 855, 858. Of the cases cited by the Respondent which are in point, insofar as the instant case is concerned, the principles have since been modified or set aside. See Radio Officers' Union etc. v. N. L. R. B.; N. L. R. B. v. Interna- tional Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of Amer- CATERPILLAR TRACTOR CO. 573 ica, et al.; Gaynor News Company, Inc. v. N. L. R. B., 347 U. S. 17. In these cases Mr. Justice Reed delivered the opinion of the Court and in that opinion reviewed the power of the Board to draw inferences (p. 48). See also Boeing Airplane Co., 103 NLRB 1025, where Section 8 (a) (3) violations were found. The General Counsel has presented the plain question of whether or not the wear- ing of a badge or a button-particularly the "scab" button-was then and now is a protected activity within the meaning of the Act. A number of cases have been presented in support of the proposition that it is a violation of Section 8 (a) (1) of the Act to forbid employees to wear union buttons in a plant or to instruct them to remove such buttons, or to request them to remove such buttons: Phillips & Buttorf} Manufacturing Company, 96 NLRB 1091; Century Cement Manufacturing Com- pany, Inc., 100 NLRB 1323; Dixie Furniture Company, Inc., 101 NLRB 1295; George C. Knight Company, 102 NLRB 1198; Grand Central Aircraft Co., Inc., 103 NLRB 1114; Boeing Airplane Co., 103 NLRB 1025. Numerous other cases have been cited on either side which are intended to demonstrate when the promulgation of a rule against the wearing of union buttons is justified, or unjustified, including Maryland Drydock Co. v. N. L. R. B., supra; N. L. R. B. v. Aintree Corporation, supra, and Bayuk Cigars, Inc. (not reported in printed volumes of Board Decisions and Orders). Republic Aviation Corp., 51 NLRB 1186, enfd. 142 F. 2d 193 (C. A. 2), affd. 324 U. S. 793; Le Tourneau Company of Georgia, 54 NLRB 1253, revd. 143 F. 2d 67 (C. A. 5), revd. 324 U. S. 793; and Peyton Packing Co., 49 NLRB 828, enfd. 142 F. 2d 1009 (C. A. 5), involve company prohibitions against concerted activity of employees and unions in particular cases, and seem to this Trial Examiner to point the way to the difficult decision to be made in this case as to whether the Respondent was justified in prohibiting the wearing of the "SCAB" button. In the Republic Aviation Corp. case, the Supreme Court pointed out that the company had contended that it would violate its neutrality in labor organizations if it permitted the display of a steward button by an employee at work, and that such display represented to other employees that the union already was recognized, but the Court emphasized that no evidence was offered that any unusual conditions existed in labor relations, the plant location, or otherwise, to support any contention that conditions at this plant differed from those occurring normally at any other large establishment which would justify the prohibition against wearing the button. But in the instant case the Respondent contends that the evidence does not estab- lish that the Respondent was motivated by hostility to the Union or to the concerted activities of any of its employees, but that it had good reason to believe that the wearing of the "SCAB" button would result in disturbances or disorders and the falling off of production. The Respondent says that the direct solicitation of union membership, distribution of union literature, and the wearing of union buttons are all a part of customary organizing activities, but nevertheless employer action to protect- its plant, its personnel, or its production activities is lawful even though it incidentally restricts organizing activities. The Trial Examiner has carefully con- sidered the many cases cited by the Respondent in its brief in support of its contention in this respect, but does not find them too helpful in trying to decide this case on the basis of the facts disclosed by the record. In Boeing Airplane Co., supra, where it was held that an employer engaged in interference by adopting and enforcing rules which would prohibit employees from engaging in union activity on nonworking time, and wearing buttons or badges which would indicate the employees' positions as union stewards or committeemen, and the wearing of streamers or any other insignia which would indicate their union adherence because these rules were not necessary to maintain production and discipline, the Board said: It has long been recognized that rules such as the foregoing, which clearly interfere with employees' concerted activity, are presumptively invalid, in the absence of special circumstances which may make them necessary in order to maintain production and discipline. and cited Republic Aviation Corp. v. N. L. R. B., supra. In a recent case, Ranco., Inc., 109 NLRB 998, Chairman Farmer and Member Peterson very simply stated a well-known principle: An employer must justify, by carrying an affirmative burden resting upon him, a blanket prohibition against union activities or solicitation by his employees on company property. The Trial Examiner is of the opinion that in the circumstances of the instant case, the Respondent is charged with carrying the affirmative burden of showing that the prohibition against the wearing of the "scab" button is justified, even though the evidence does not establish that the Respondent was motivated by hostility to the 574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union or to the concerted activities of some of its employees. Here, the objective of the Union was simple enough when it asked its members to wear badges-it simply wanted to organize the approximately 350 employees remaining out of some 1,900 employees in the bargaining unit who were not members of the Union, and incidentally to secure voluntary checkoff cards. The Trial Examiner is of the view that independent proof of actual discouragement through the prohibition against the wearing of the button need not be proved , but that a tendency -to discourage is sufficient and that "such tendency is sufficiently established if its existence may reasonably be inferred from the character of the discrimination." Radio Officers' Union etc. v. N. L. R. B., 347 U. S. 17, supra. As Mr. Justice Frankfurter wrote in his concurring opinion in that case (pp. 56-57) : , The Board's task is to weigh everything before it, including those inferences which, with its specialized experience , it believes can fairly be drawn: On the basis of this process, it must determine whether the alleged discriminatory acts of the employer were such that he should have reasonably anticipated that they would encourage or discourage union membership. The "SCAB" button was -worn for 2 days (Thursday and Friday) without any report of any disturbance of even the slightest kind in the plant occasioned by the wearing of that button. On the following working day (Monday) before the start of work, the Union distributed its handbill which very clearly showed its concep- tion of the meaning of the word "scab" as used on the "Don't be a Scab !" button. It would seem that the personnel director of the Company, in advising the plant manager, would have had, in these modern times , a.degree of sophistication con- cerning the use of the word "scab" which would modify his judgment or purported opinion that disorders would occur if the button were worn . Even after the decision of Naumann and Garrison to promulgate the rule against the wearing of that button, they should have reconsidered that decision when they learned of the distribution of the handbill at the company plant gate to employees who had not yet started to work on Monday morning. The Board has said in Longview Furniture Company, 100 NLRB 301, 305: Thus, we believe that to suggest that employees in the heat of picket-line ani- mosity must trim their expression of disapproval to some point short of the utterances here in question , would be to ignore the industrial realities of speech in a workaday world and to impose a serious stricture upon employees in the exercise of their rights under the Act. Accordingly, we unanimously agree with the Trial Examiner that the Respondent violated Section 8 (a) (3) of the Act by its refusal to reinstate these strikers. The Respondent here refused to permit the wearing of the scab button; it had even less reason than the employer in the Longview case to promulgate the rule; as shown above, there was no strike or stoppage of work or real dispute pending the time of the wearing of the button in the instant case, but on the contrary the button had been worn for 2 full working days, without apparent objection from any em- ployee - or any person other than representatives of the Respondent. The record herein affirmatively indicates that no report of any kind reached management which showed an objection on the part of any single employee to the wearing of that par- ticular button.' ° In the circumstances , the Trial Examiner believes, and finds, that no vicious intent existed on the part of the Union or any of its officers or members in their adoption of the "scab" button, and that Naumann and Garrison were un- justified in their beliefs concerning what might happen because of the use of that button . Here, company representatives allowed their personal feelings to sway judgment. Obnoxious as the word "scab" may be to some, it remains as a word of particular meaning in day-to -day situations in management -labor relationships. Concluding Findings Although the Trial Examiner finds that the evidence herein does not establish that the Respondent was motivated by hostility to the Union or to the concerted activities of its employees , members of the Union, nevertheless he believes that the preponderance of the evidence herein shows a violation on the part of the Respond- ent of Section 8 (a) (3) and 8 (a) (1) of the Act. 10 See also Des Moines, Springfield and Southern Route, 78 NLRB 1215 , at 1218, where the Board remarked that it previously had held that abusive, intemperate, slanderous, or inflammatory statement , although not condoned, must be measured by the circumstances and the nature of the speaker and his audience There the word "scab" had been applied by two employees, active participants in a union organizational drive, toward nonpartici- pants. The Board said : "We perceive nothing in such conduct to warrant a forfeiture of an employee's rights under the Act." CATERPILLAR TRACTOR CO. 575 In whole context, the wearing of the scab button would not, in the absence of a picket line or a work stoppage , be considered any more inflammatory than any 1 of the other 3 buttons which the union members wore and the wearing of which the Company condoned and permitted. After the Company had objected to that button, the Union immediately published its leaflet or handbill which set forth clearly what it considered the word "scab" to mean as applied to the particular situ- ation at this plant, that is: a workman whose belief is contrary to the principles of trade unionism. In that handbill the Union went on to explain that it was its be- lief that where a union is the sole and exclusive bargaining agent for all the em- ployees in a baigaining unit, "it is the duty" of each and every employee within the bargaining unit to become and to remain a member of the union while employed in any occupation within that unit. It said, "The non-union employees at Cater- pillar are adhering to conditions that are contrary to those prescribed by trade unions." When the Union and its members approved and provided for the wearing of the "Don't be a Scab!" button, the members had no reason to anticipate, in view of the past relationship between the Respondent and the Union, that the word "scab" might lead to violence or disturbances or could result in a falling off of production through resentment of nonunion employees against the use of that button. It reasonably may be found, and the Trial Examiner believes, that the promulga- tion of the rule against the wearing of the "scab" button and the subsequent laying off of some 247 employees, must have resulted in discouragement of membership in the Union. The Respondent has failed to prove on its side or rebut its opposite contention that its apprehensions were well founded and that the promulgation of the rule and the layoffs did not result in discouragement to union membership. The Trial Examiner finds that the promulgation of the rule against the wearing of the "Don't be a Scab!" button, and the layoffs subsequent thereto, constituted violations of Section 8 (a) (1) and 8 (a) (3) of the Act, and that the layoffs on March 1 and 2 constituted violations of Section 8 (a) (1), and that these contraventions consti- tute sufficient grounds for the issuance of an order directed to the Respondent, order- ing it to cease and desist from these and similar unfair labor practices . In whole context, and upon the preponderance of the evidence herein , the Trial Examiner finds a substantial basis of fact showing that the Respondent had engaged in and now is engaged in contravention of the Act, as set forth above, and that an order of the Board, if entered herein, will effectuate the policies of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, hereof, occurring in con- nection with the operations of the Respondent described in section I, above, have a close, intimate , and substantial relation to trade, traffic , and commerce among the several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Having found that the Respondent is engaged in unfair labor practices the Trial Examiner will recommend that they cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. The Trial Examiner has found that the Respondent has discriminated in regard to the hire and tenure of employment of the employees named in the margin hereof." n Arroyo, Frank C Alberico, Matthew W. Clemans, James E. Adamson, Garnet L. Boyle, Arthur W. Carlson, Malcolm F. Allsop, Marvin L. Brackett, Ray L. Call, Donald R. Alstott, Archie Berard, Edward J. Cox, Delmer Adams,I Biskie, Calvin R. Cobler, James H. Anderson, Clarence Bales, Edward W. Cox, James M Alstott, Cecil Bayless, Booker T. Carlson, Clarence A. Breen, Edward J. Boyle, Carmel D. Cloer, H. E. Breen, Patrick F. Baker, Arthur E. Crowther, Donald Bell, Ronald Lee Blessent, Ernest, Jr Cramer, Walter Bowles, John M Bennett, Emmett Cramer, Dale Burris, Edward W. Bilderback, Robert Childers, Robert G. Book, Nelson H Bock, William Crawford, Glenn Bahor, William P. Bowler, John F Collier, Clarence Ballun, Pete Bryant, Edward Disney, William L. Bratcher, Tom Babecki, Robert Day, Leslie Bradley, Joseph B. Collier, Arthur G. Dock, Donald L. Footnote continued on following page. 576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD- It is recommended, therefore, that the Respondent offer to each of these employees the amount of pay said employee would have earned on either March 1 or 2, 1954, Continued. Dotson, Ralph E. Kern, Daniel Ryan, Warren L. Dempsey, John Keating, Joseph Russell, Richard G. Dennis, Russell L. Kowala, Edward Ross, Wayne E. Dillon, Tom A. Kelly, Robert E. Rose, Wayne H. Dillon, Russell R. King, Thomas Rohline, James Dillree, James Keels, William W. Reilly, James Donaldson, Elwyn E. Kessel, Kenneth Dale Rynearson, Clayton C. Decker, William Krug, James Robertson, William F. Darrington, Charley Kolodziej, John Rodriquez, Emanuel F. Debolt, Ferdell R. Kiefner, Robert Rollo, Richard E. D'Alberto, August W. Kelly, Drewie F. Shoot, Charles E. Decker, Amos D. Kukman, Russell N. Sellers James M Dorris, Warren Kozlowski, Richard R. , . Smith, Norman R. Earley, Robert T. Konowalski, John T. Stroud, Clifford W Emanuelson, Donald E. Lawhorn, Arthur E. . Staley, Carl ' Edwards, Herbert Lausch, Willard Soteropoulos George Facchina, Roy A. ' Linder, Bobbie G. , Stehlik Raymond W. French, William Loeffler, Tom , Sample, Donald Figgins, Gordon Lauffer, Richard Shreve, Hershel Lewis Foy, Edward Lucy, James F., Jr. Singleton, Ike Finney, Alfred H. Lamb, Verl Shryock, Fred Frey, W. M. Lanier, Robert Swind, Virgil Foltz, Marion Lesnik, Joseph C. Sarcletti, Bruno Faletti, Joseph A. ' Moore, Elmer Steinquist, Ronald Gaines, Pearl Mance, Frank Schaible, David Gavin, Leonard Macklin, Frank Shreffler, Alden B. Gallup, Robert B. Miller, William R. Stafford, Roland W. Gans, William E. Manietta, A. J. Sergeant, Glenn Grabin, Andrew Mombrun, Louis W. Joseph Jr. Scholar! Gavin, Rufus, Jr. Machado, A. R. , , Strom, Floyd A. Glass, Albert Majesky, Paul W. Setina, Anton Getz, Everett Moser, Henry A. Steiger, Clare W. Green, Roland McDonald, Ralph Sample, Lewis Grenchik, Robert J. Murnick, Micheal Scheeler Charles W., Jr. Gallegos, William Milton, Calvert L. , Snider, William J., Jr. Hendricks, Frank L. Minger, Marvin Spencer, Daniel F. Harsha, Walter D,' Murphy, Ernest J. Talarico, Joseph Hudson, Henry M. McCulley, John C. Torkelson Burton Hawkins, Eugene Muflck, Stanley Taylor, Robert Howton, John Militello, Peter Thompson, Glen A. Harris, Charles M. Musson, Elmer Tinges, Kenneth G. Hanson, Paul A. Murphy, Edward Todd, Roy A. Hardin, Rollie McFarland, Pierson B. Thweatt, B. L. Hutton, Clarence Melvin, Earl L. Robert E. Taylor Holt, Henry Neilsen, A. L. , Terlep, Joseph L. Hargis, Joseph L. Nicholson, Maynard Tibbitts, Harry Hunter, Glenn Byron Nemanich, Ray Ulbricht, Earl Hawk, Francis O. Neighbors, Harold Varney, Frank J.' Holt, Donald Roy Needham, Victor Vallera, Americ Humbert, Frank L. Norris, O. W. Villand, Obert K. Hansen, Harvey A. Olsen, Ray Willerton, Henry Holt, Homer D. Olsen, Holger Wickman, Harry L. Hommes, R. J. Pinkston, Leo L. Warmouth, John Hanko, John A. Papach, Raymond Wheeler Earl Hanon, J. V. Painter, Leo D. , Robert Webb Hilger, Harry Popplewell Carson L. , Walker Thomas E Howe, Bernard , Peterson, Donald J. , . Wells Gordon Ingles, Harold Pillion Joseph , Frank Wrobel Johnson, George G. Tom E. Jones , Papesh, Ralph , Williams, Bernard G. , Johnson, Lowell Powell, William Worby, Donald G. Jones, Will Patterson, Francis C. Witkowski, Robert T. Kissack, Francis A. Pinnick, Richard F. Welgemuth, Edward Kilpatrick, Donald Planing, Elvyn J. Wrona, Chester R. Kerby, John R. Rooker, Leroy Yakich, Richard A Keating, Ben B. Rauworth, C. O. Zehring, Clarence D. KIMBLE GLASS COMPANY, 577 according to the shift he would have worked, had he not been laid off because he wore a "Don't be a Scab!" button. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, the Trial Examiner makes the following: CONCLUSIONS OF LAW 1. District No. 55,E International Association of Machinists, A.F.L., is a labor organization within the meaning of Section 2 (5) of the Act. 2. By discriminating in,regard to the hire or tenure of employment of the em- 'ployees whose names are set forth in footnote 11, supra, the Respondent, Cater- pillar Tractor Co., has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (3) of the Act. 3. By promulgating a rule against the wearing of the button bearing the words "Don't be a Scab!" and by prohibiting its employees from the wearing of the de- scribed button, the Respondent, Caterpillar Tractor Co., has interfered with, re- strained, and coerced its employees in the exercise of the rights guaranteed to them and each of them in Section 7 of the Act, in that it has interfered with the rights of employees to engage in concerted activity for the purpose of collective bargain- ing or other mutual aid or protection in contravention of Section 7 of the Act, and .thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices affecting com- merce within the meaning of Section 2 (6) and (7) of the Act. -[Recommendations omitted from publication.] - Kimble Glass Company and International Union of Electrical, Radio and Machine Workers, CIO. Case No. 9-CA-719. August 11,1955 DECISION AND ORDER On April 20, 1954, Trial Examiner C. W. Whittemore issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in certain unfair labor practices and recom- mending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the Respondent filed exceptions to the Intermedi- ate Report and a supporting brief.' The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed a The rulings are hereby affirmed. The Board has considered the Inter- mediate Report, the exceptions and brief, and the entire record in the case, and hereby adopts the Trial Examiner's conclusions and recom- mendations with the following modifications : 3 1. We agree with the Trial Examiner that the Respondent violated the Act by promulgating a rule prohibiting employees from wearing I As the record and exceptions and brief adequately present the positions of the parties, we deny the Respondent's request for oral argument. 0 Although we may have some doubt as to the correctness of the Trial Examiner's rul- ings on the admissibility of certain evidence offered by the Respondent, we have consid- ered this evidence, much of which was cumulative, and find that it is insufficient to war- rant a determination contrary to that reached herein. 8 We have carefully examined the record and find no substantial basis for the Respond- ent's charge of bias and prejudice against the Trial Examiner. 113 NLRB No. 58.