Edmont Manufacturing Co.

EDMONT MANUFACTURING COMPANY 525 significant that all employees in the unit except one attended the group meetings, and this individual was talked to by the assistant general manager . The employees' immediate supervisor was present during each of the meetings and to a limited extent participated in the discussions . It is immaterial that the remarks were non- coercive and that attendance was not compulsory. CONCLUSIONS AND RECOMMENDATIONS The Regional Director concludes that the challenges to ballots cast by James Clark and William Byram should be sustained on the ground that Clark was not an employee in the unit during the payroll period determining eligibility, and Byram was permanently terminated and thus not an employee on the election date. No charges alleging discriminatory discharge of those individuals have been filed. It is therefore recommended that the challenges be sustained, and a certificate of results of election be issued , indicating that the voting group consisting of store- room clerk, plant clerk, industrial engineering checkers, and carcass graders will be deemed included in the existing production and maintenance unit. Objections The Regional Director concludes from the undisputed evidence that 2 days prior to the election, group meetings were held with employees separately, and away from their normal work stations . It is also concluded that whether or not coercive, Mr. Sailer's remarks concerning merit versus seniority as a basis for rewarding employees and possible employment difficulties for employees from union plants were reason- ably calculated to interfere with the free choice of employees in the forthcoming election. In accordance with established Board precedent ,2 it is recommended that the election conducted among employees in the office clerical unit be set aside and a new election directed. 2 Peoples Drug Stores, Ino., 119 NLRB 634. Edmont Manufacturing Company and United Rubber, Cork, Lino- leum & Plastic Workers of America, AFL-CIO. Case No. 8-CA- 1253. April 92°2,1958 DECISION AND ORDER On October 29, 1957, Trial Examiner Lloyd Buchanan issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act, and recommending that it cease and desist therefrom and take cer`a-n affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Trial Examiner also found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint. There- after, the Respondent and the General Counsel filed exceptions to the Intermediate Report and briefs in support thereof. Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with this case to a three-member panel [Members Rodgers, Bean, and Fanning]. The Board has reviewed the rulings made by the Trial Examiner at the hearing, and finds that no prejudicial error was committed. The 120 NLRB No. 80. 526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD rulings are hereby affirmed. The Board has considered the Interme- diate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recommenda- tions of the Trial Examiner with the additions and modifications noted below. The complaint alleges that Respondent's general foreman, Berton, unlawfully interrogated employee Sue Fowler concerning her union activities. The Trial Examiner found the facts insufficient to support this allegation. We disagree. General foreman, Berton, who works on the day shift, testified that he returned to the plant at about 11 p. m. and summoned employee Fowler to an office located about 100 yards from her place of work in order to talk to her about her union activi- ties. He admitted asking her the name and number of the union. He further admitted that he asked her if she had any union cards on her person, and she replied that she did not. The talk lasted for an hour, ending about midnight. Berton closed the interview by ordering em- ployee Fowler to report back to him if she heard anything about the union-an act in itself a violation of Section 8 (a) (1) of the Act. On these facts, we find that Berton's talk with Fowler constituted unlawful interrogation concerning union activities, in a manner con- stituting interference, restraint, and coercion in violation of Section 8 (a) (1) of the Act.' ORDER Upon the entire record in the case, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the Respondent, Edmont Manufacturing Company, Coshocton, Ohio, its officers, agents, successors, and assigns, shall : 1. Cease and desist from : (a) Threatening its employees for engaging in union activities. (b) Directing its employees to report concerning union activities. (c) Interrogating its employees concerning their union activities in a manner constituting interference, restraint, and coercion. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights of self-organiza- tion 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) Post at its plant in Coshocton, Ohio, copies of the notice at- tached hereto marked "Appendix." 2 Copies of said notice, to be fur- 1 Bias Flash Express, Inc., 109 NLRB 591. 2 In the event that this Order is enforced by a decree of a United States Court of Ap. peals , there shall be substituted tor the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." EDMONT MANUFACTURING COMPANY 527 nished by the Regional Director for the Eighth Region, shall, after being duly signed by the Respondent's authorized representative, be posted by the Respondent immediately upon receipt thereof, and main- tained for sixty (60) consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Eighth Region in writing, within ten (10) days from the date of this Order, as to the steps the Re- spondent has taken to comply herewith. IT IS FURTHER ORDERED that the complaint, insofar as it alleges that the Respondent violated the Act in respects other than herein found, be, and it hereby is, dismissed. 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 Re- lations Act, we hereby give notice that : WE WILL NOT threaten our employees for engaging in union ac- tivities. WE WILL NOT direct our employees to report concerning union activities. WE WILL NOT interrogate our employees concerning their union activities in a manner constituting interference, restraint, and co- ercion. 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 joint or assist United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-- CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all of such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act. All of our employees are free to become, remain, or to refrain from becoming or remaining, members in good standing of United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any 528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD other labor organization, except to the extent that this right may be affected by an agreement in conformity with Section 8 (a) (3) of the Act. EDMONT MANUFACTURING COMPANY, Employer. Dated---------------- By------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER The complaint herein alleges that the Company has violated Section 8 (a) (1) of the National Labor Relations Act, as amended, 61 Stat. 136, by threatening employees in connection with union and other concerted activities, interrogating employees concerning employees' union interests and activities, and requesting an employee to report information about the Union. The answer denies that the Company committed any unfair labor practices as alleged. A hearing was held before me at Coshocton, Ohio, on September 17, 1957. At the close of the hearing, the General Counsel and counsel for the Company were heard in oral argument Pursuant to leave granted to all parties, briefs have been filed by the Union and the Company, the time to do so having been extended. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT (WITH REASONS THEREFOR) 1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED It was admitted and I find that the Company, an Ohio corporation with prin- cipal office and place of business in Coshocton, Ohio, manufactures gloves; that it annually manufactures products valued at more than $100,000, of which more than 50 percent is sold and transported from the Coshocton plant to and through points outside the State of Ohio, and that the Company is engaged in commerce within the meaning of the Act. It was stipulated and I find that the Union is a labor organization within the mean- ing of the Act. II. THE ALLEGED VIOLATION OF SECTION 8 (A) (1) A. The alleged request to report about the Union Employee Fowler testified that about June 5, 1956, at the beginning of her shift, she was taken to the office of the general foreman, Berton, where Berton told her, inter alia, that if she heard anything about the Union she should tell him. While, as we shall see, Berton testified that his conversation with Fowler was confined to certain other matters (the impression here given that Berton said little more and that the conversation was brief was later corrected, as we shall see infra), he was questioned specifically concerning, and he denied the items charged against him as, unlawful interrogation and threat; he even denied, although it was not alleged, that he threatened Fowler. Yet he did not specifically deny that he told Fowler to report to him if she heard anything else concerning the Union. I credit Fowler's testimony in this connection. (Further appraisals of Fowler's and Berton's credi- bility are set forth, infra.) Berton's request constituted interference and was viola- tive of the Act.' B. The alleged threat by Montgomery The Union's organizational activities at the plant commenced in May 1956 and continued until the latter part of October, when a collective-bargaining election was held. About the end of May, the Union's field representative visited Fowler at i Washington Coca-Cola Bottling Works, Inc , 117 NLRB 1163 ; Darl.ngton Veneer Com- pany, Inc., 113 NLRB 1101, 1107. EDMONT MANUFACTURING COMPANY 529 home and spoke with her and her husband.. He said that he had been in contact with other employees , and asked her to sign a union card, which she did. He also asked her to give cards to others , and she did that, beginning about the end of May or the beginning of June. Leaving Fowler's activities for the present , we can regard such organizational work as background for what is now to be considered. On July 14, 1956 , some 56 employees in the dip line department signed and sub- mitted a grievance to the Company concerning wages and the fact that they were lower than those paid elsewhere . Leader, the plant manager, testified that the grievance referred to several departments , that he met with the dip line department employees on July 28, and heard them out, and that Montgomery , president of the Company, met with the dip line department employees on August 4 and with the other employees , in groups , on August 8, 9, and 10. On the question of the reason for the meetings, one of the dip line employees who signed the grievance petition and was called as a witness by the General Counsel testified that employees in sev- eral departments asked for a meeting with the Company to discuss working condi- tions and wage adjustments . I have not overlooked testimony by various witnesses, uncertain at best, concerning Montgomery 's remarks . The latter's version and ex- planation appear to be complete and reliable , and largely uncontradicted. Montgomery testified that , to explain why less money was being paid by the Company than at steel plants and elsewhere , he decided to review the entire com- petitive situation with the employees . He displayed competitive gloves, compared competitive prices, discussed wages in the work glove and coated glove industries, and explained that the Company 's competition is with these latter and not with steel or other industries. He described a southward movement in this industry, and ex- plained that if it had to compete with other industries , the plant could not continue with work gloves : The Company would have to take its so-called competitive styles to the South, where it could compete with other glove manufacturers , and leave the more specialized and less competitive styles at the Coshocton plant, developing as many lines as possible where higher wages could be paid; this latter would require more automatic equipment, and might result in some loss of jobs . At the meeting with the dip line employees , Montgomery did-not refer to the Company 's new plant in Louisiana, where liners, which the Coshocton plant had not been able to produce in sufficient quantity, are manufactured . (Since the commencement of the Lou- isiana operation , employment at Coshocton has increased.) Montgomery further testified that the Company made its first survey of southern localities as a site for additional operations in 1954. An announcement concerning such prospective operations was made in a bulletin to employees in February 1956. The Company had made extensive improvements at the Coshocton site, and so far from removing all operations from there , Montgomery emphasized to the employees that that would always be the Company's home base; he neither spoke nor thought of keeping only a headquarters office at Coshocton , and he has pointed out that operations at Coshocton are more efficient than those in the South . As had Leader, Montgomery testified that the August meetings were held because of the grievance which had been filed; the employees ' union activities were not discussed. If, from Montgomery's remarks to the employees , someone drew the conclusion as alleged in the complaint that he unlawfully threatened that the Company would have to move its operations to the South if it had to pay higher wages, and that this would cause some employees to lose employment , it was an erroneous conclusion. Montgomery himself denied that he made the remarks alleged . He did not so express himself to the employees , nor do I find that his statement was so close to the con- clusion drawn as conceivably to make him responsible for such a conclusion . In fact, the new plant was neither intended by the Company nor regarded by the employees as a competitive threat to the Coshocton operation or employees . It was made clear that the contemplated move was to involve certain competitive operations only, and less competitive operations would be maintained and extended at the Coshocton plant . Whether or not she had earlier in the year read a company report about the new plant, Fowler testified that 2 months before Montgomery addressed the employees, Berton told her that the Company was building a new plant because the Coshocton plant was not making enough liners. Parenthetically, it may- be mentioned that the Union had distributed a leaflet at the plant gate about a week before the last three meetings, and it apparently dis- tributed other leaflets at other times although the facts in this connection have not been submitted. But there is no warrant for finding that such distribution rather than the grievance filed on July 24 prompted the four meetings or that it somehow made unlawful Montgomery's otherwise lawful remarks. 483142-59-vol. 120-35 530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to Montgomery's statement that higher wages would compel transfer of certain operations, the Board has held that an employer does not even interfere with an election by declaring its preference to deal directly with its employees, and the futility of seeking to compel it to pay higher wages.2 Similarly, an employer, although otherwise interfering with concerted activities, in violation of the Act, has been held 3 privileged to declare: If the union comes in, you will not get one dime increase in wages. We can't afford to give you an increase in wages, therefore , you will not get one. If Montgomery was privileged to say that he could not pay higher wages, he as properly declared the effect if he were compelled to do so. Such a statement may cause concern; it may feed an ulcer; it might in fact be so regarded as to limit or interfere with lawful concerted activities. But it contains no threat, and is a privileged statement under Section 8 (c) of the Act. The possible consequences which it describes are of action, not by the speaker, but by others.4 We must dis- tinguish between a threat of action by the employer, and a warning of the conse- quence of action by the employees or their representative, the reference here being to insistence on higher wages. Montgomery declared only the economic facts as viewed by the Company. He was not threatening the futility or a direct consequence of the employees' concerted activities. C. Interrogation concerning union activities and interests Fowler testified that Berton opened the conversation in his office early in June by saying that she knew why she was there, and asking what she had against the Company and the way it was operated; when she replied that she had always been treated fairly, he asked why she wanted a union there, to which she replied that her reasons were so that employees could get more money and not be laid off without good reason; that Berton then said that he had been told that she was working for the Union and had union cards; when she said that she didn't have any, he asked whether she had had some, and she replied that she had and gave them to the unionman; Berton asked whether and when she had gotten signatures, and she replied that she had a week before, but would not give him any names. Although she had said that she didn't have any, Berton also allegedly asked her to let him see a union card; she again said she didn't have any; he also asked the name and number of the Union, and she replied that she had never seen the number and didn't know that the Union could have one. Fowler testified further that the conversation included Berton's threat of action by Montgomery, infra, reference to the new plant then being built to provide needed liners, the request that she report to him anything else that she might hear concerning the Union, Berton's alleged statement that he had spoken to other employees concerning the Union, and his threat that the bonus would be eliminated if the Union got in and that there would be strikes and uproar. She also told Berton at that time of her desire to be transferred to the day shift and of her babysitter problems, and he said that he would.try to work it out. (She has since been so transferred.) The conversation, she testified, lasted about an hour. Fowler denied that Berton spoke to her about passing out cards on company time. In fact, from her testimony it does not appear that, despite his persistent questioning, he admonished her or even suggested that she not distribute cards The difference in this connection between Fowler's and Berton's testimony is not whether he spoke to her about distributing cards, during working time as Berton testified, or, as Miller testified, infra, without mentioning working time; it is rather whether Berton spoke to Fowler at all about distribution of cards. Berton testified that he returned to the plant about 11 p. in. (although in charge of all three shifts, he normally worked daytime hours), sent for Fowler, and told her that he had a report that she was soliciting union cards during working hours; that he took her at her word when she denied this; he then asked whether she knew the union number and name, and Fowler volunteered that an organizer had talked to her and her husband at their home, that he asked whether she had any union cards with her, and she said, "No"; and that he told her that there was to be no solicitation during working hours. Berton explained that he called Fowler in because of the report that she was soliciting for the Union on company time. Like Fowler, Berton 2 Esquu c, Inc, 107 NLRB 1238, 1240, 1241. 8 Pi otein Blenders, Inc, 105 NLRP. 890, 890 ' Sunset Lumber Pioducts, 113 NLRB 1172, 1173 Cf. N L. R. B. v. W. C Nabors Company, 196 F 2d 272, 276 (C. A 5). EDMONT MANUFACTURING COMPANY 531 testified that they also discussed her babysitter problem and a possible change in shift and work. According to Berton, his conversation with Fowler was limited to these items. He was not asked specifically concerning each of the other points men- tioned by Fowler although he did deny that he had asked what she had against the Company and the way it was operating , or why she wanted the Union. Did Berton extensively question Fowler concerning her union activities , or did he only admonish her against such activities on working time? To connect their respective versions to actual solicitation and thus to indicate which should be credited, the General Counsel attempted to show that Fowler solicited on nonworking time only; the Company, that she solicited on working time. An ancillary issue was thus developed and thoroughly ligitated although not alleged; it assists on the issue of credibility. Fowler testified that she distributed union cards during breaks, in the lunchroom, and before she started to work at 11 p. in . But Miller, a former employee, also sponsored by the General Counsel, testified that, while she was at her job and working, she was given a union card by Fowler . Recalled, Fowler denied this. If it appears that great weight is being given this testimony by Miller, aside from her sponsorship by the General Counsel , the fact is that although Fowler distributed 8 or 10 union cards and then obtained more for distribution , no other employees to whom she gave cards were called . During her later testimony she injected a warning which she allegedly had previously received to the effect that Miller would report everything to the Company . Such warning was itself out of keeping with Fowler's subsequent approach to Miller and, of course , with the General Counsel's sponsorship of the latter. (Miller did not display pro-company bias when she testified to a threat by Berton , as noted infra.) Further on the question of Fowler's credibility , it should be noted that she testified variously that she had not passed out any cards since her talk with Berton in June, and that she did pass cards out after that conversation. I cannot say that Fowler was a more credible witness than Berton although the latter's attempt to reconcile his testimony that he asked Fowler only about the Union 's number and name, with an earlier statement which he had submitted was rather feeble. On this record, and accepting the basis relied on by both sides to help determine this issue of credibility, I am impelled to credit Berton and to accept the version that he did tell Fowler that there was to be no solicitation during working time. In addition to the reflection of actual solicitation on the credibility aspect, the pic- ture of organizational activities and company attitude as portrayed at the hearing does not suggest the likelihood that Berton would return to the plant when he did merely to question Fowler concerning the Union and, despite her recognized prounion stand, without mentioning solicitation, of which he had at least a suspicion. I find that Berton spoke of solicitation, although Fowler denied this, but did not interrogate her as she testified . The length of the conversation , a little less than an hour, does not itself prove the questioning which Fowler described . She related and there was con- cededly enough else to prolong the conversation . The timing as we have it is itself not so exact as to require either the inclusion or the exclusion of the disputed ques- tions. I can base no finding of interrogation on Fowler 's testimony. To the extent that Berton's opening renrrk to Miller, to the effect that he had heard that union cards had been passed out, may be considered to be interrogation, I find that it was quite lawful since in Miller's case certainly such distribution was made during working time and Berton was lawfully concerned with such distribution. D. Alleged threats by Berton Miller, who as we have seen gave testimony which supported Berton's version of his conversation with Fowler , testified that one morning in June, Berton sent for her and told her that he had heard that union cards had been passed out , to which she replied that she had received one; Berton then said, "You know what happens to people who try to bring a union in and cause trouble." Without identifying anyone by name because, as Miller testified, Berton seemed to know whom she meant, Miller replied , "I did but . . . I didn't think that she did and I didn't think that she was going to work for the union any more." Berton 's rejoinder was, "We will let it go this time." Miller appeared to be testifying truthfully and without bias, and I find, despite his denial, that Berton made the threat as she described it. Whatever technical nicety might be asserted because of the conjunctive employed with trying to bring a union in and causing trouble, such nicety was clearly not intended -by Berton or understood by Miller. Causing trouble was here made synonymous with bringing a union in, and the threat in that connection with its tendency to interfere was violative . Berton's statement that it would be "let go" this time did not remove the threat. 532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fowler testified that, during her conversation with Berton early in June , he said that if the Union got in there would be no steady work , there would be strikes, and the plant would be in an uproar ; also, that Montgomery was opposed to the Union, and if it got in he would cut out the bonus: there might be a 11/2-cent raise, but no bonus. She asked whether she could be laid off for working for the Union , and Ber- ton replied in the negative. Concerning the bonus threat , while I have not credited Berton's denial where Miller testified to the contrary , and while Berton's testimony was not uniformly impressive, the quality of Fowler's is not such as to warrant re- jection of Berton's denial that he made that threat . As for the reference to lack of steady work because of strikes and trouble, if a prediction of failure of a strike should it occur is privileged, and it is,5 a prediction that work would not be steady because of strikes is likewise privileged . Here again the events would be set in motion by the Union, not the Company.6 M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Company , set forth in section II, above, occurring in connec- tion with the operations described in section I, above , have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. IV. THE REMEDY Having found that the Company engaged in and is engaging in certain unfair labor practices affecting commerce, I shall recommend that it cease and desist therefrom and take certain affirmative action in order to effectuate the policies of the Act. It has been found that the Company, by a threat against those who would try to bring a union in , and by a direction that an employee report anything that she heard about the Union , interfered with , restrained, and coerced its employees in violation of Section 8 (a) (1) of the Act. I shall therefore recommend that it cease and desist therefrom and from any like or related conduct. Upon the basis of the above findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Rubber, Cork, Linoleum & Plastic Workers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 2. By threat and direction that an employee report , concerning union affairs or activities, thereby interfering with, restraining , and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting com- merce, within the meaning of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] Gazette Publishing Company, 101 NLRB 1694, 1703. s Footnote 3, supra. See also Nash-Finch Company, 117 NLRB 808. Conso Fastener Corporation and Textile Workers Union of Amer- ica, AFL-CIO Conso Fastener Corporation and Minerva Den Haese. Cases Nos. 4-CA-1492 and 4-CA-1482. April 02, 1958 DECISION AND ORDER On September 27, 1957, Trial Examiner C. W. Whittemore 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 120 NLRB No. 74.