Diebold, Inc.

1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD all doing business as P-M Parking System, is a single employer engaged in commerce within the meaning of the Act. 2. The Union is a labor organization within the meaning of Section 2(5) of the Act. 3. Respondent has not violated Section 8 (a) (1) of the Act. RECOMMENDATION On the basis of the foregoing and the entire record , it is recommended that the complaint be dismissed in its entirety. Diebold, Incorporated and United Steelworkers of America, AFL-CIO. Cases Nos. 9-CA-.534 and 9-RC-4831. November 15, 1962 DECISION AND ORDER On July 26, 1962, Trial Examiner Horace A. Ruckel issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and is engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. The Trial Examiner also found that by such unfair labor practices the Respondent has interfered with a free choice of a bargaining representative and recommend that the election held on May 4, 1962, be set aside and a new election conducted. The Respondent and the Intervenor, Safe Workers' Organization, Chap- ter No. 1, Incorporated, filed exceptions to the Intermediate Report with supporting briefs. The General Counsel filed no exceptions. 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 [Chairman McCulloch and Members Leedom 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 rulings are hereby affirmed. The Board has considered the Intermediate Report, the exceptions and briefs, and the entire record in this case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner with the following additions and modifications.' THE REDIEDY The Trial Examiner recommended, inter alia, that the Respondent cease and desist from in any manner infringing upon the rights of 11. The Trial Examiner inadvertently found that Foreman Pfirrman denied on the stand that in his conversation with employees Lutes and Oglesby, on February 23. 1962, he mentioned "The Steelworker's " The record , however, shows that on cross-examination Pfirrman admitted that he stated to these employees that, in his opinion, on the Steel- workers' past record, the Company could not expect a workable agreement from it. The Intermediate Report is corrected accordingly. 2. Although not specifically set forth in the Intermediate Report, the Trial Examiner's final conclusion that the Respondent has violated Section 8 ( a) (1) of the Act by the con- 139 NLRB No. 71. DIEBOLD, INCORPORATED 1001 employees guaranteed in Section 7 of the Act. However, as the record does not disclose any previous unfair labor practices and we are not persuaded that the Respondent's conduct reveals an attitude of general opposition to the purposes of the Act, we shall order the Respondent only to cease and desist from engaging in the Section 8(a) (1) violations found and in any like or related manner infring- ing upon the rights of employees guaranteed in Section 7 of the Act. ORDER Upon the entire record in the 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, Diebold, In- corporated, Hamilton, Ohio, its officers, agents, successors, and as- signs, shall: 1. Cease and desist from: (a) Warning or threatening its employees that employees who were in a layoff status would not be recalled to work, that Respondent would not bring new work into the plant, and that the plant might be closed if the Union wins an election, or in any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights to self-organization, to form labor organiza- tions, to join or assist the above-named union or any other labor organization, to engage in other concerted activities for purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. (a) Post at its plant in Hamilton, Ohio, copies of the attached notice marked "Appendix." 2 Copies of said notice, to be furnished by the Regional Director for the Ninth Region, shall, after being duly signed by a representative of the Respondent, be posted by it im- mediately upon receipt thereof, and be maintained by it for 60 con- secutive days thereafter, in conspicuous places, including all places duct of its supervisors is predicated on the following testimony of the General Counsel's witnesses , which the Trial Examiner credited Lute's testimony that Foreman Pfirrman stated to him. "They [meaning the manage- ment] told us if the Steelworkers win the election they would not recall laid off men and that no new work would be brought into the plant." Oglesby's testimony that Foreman Pfirrman stated to him. ". . . we better watch how we vote, that if the Steelworkers got in that all the work would be moved out except the security files. . . . Abrams' testimony, that Foreman Patton told him that "if they got CIO Steelworkers in, we'd get no more orders, we'd call none of the men that was laid off and have to close the door." Rose's testimony, that Foreman Patton told him that ". . . the company had a meet- ing, the big brass had decided to close the plant down if we voted for the Steelworkers." Copley's testimony, that Foreman Bowling stated to him that "there wouldn't be no hope of the laid off employees being recalled ; the company wouldn't bring any new work into the shop if the Steelworkers won the election " This testimony was corroborated by employee Sayor. 2In 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." 1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 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 Ninth Region, in writing, within 10 days from the date of this Order, what steps it has taken to comply herewith. IT IS FURTHER ORDERED that the objection to the election in Case No. 9-RC-4831 be, and it hereby is, sustained and that the election of May 4, 1962 , be set aside, and a new election be conducted at such time as the Regional Director shall deem appropriate under the circumstances. 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 you that : WE WILL NOT warn or threaten employees that employees in a layoff status will not be recalled to work or that we will not under- take to bring new work into the plant, or that the plant might be closed down, if employees join or support United Steelworkers of America, AFL-CIO, or in any like or related manner inter- fere with, restrain, or coerce our employees in the exercise of their right to self-organization, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain collectively though representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, or to refrain from any or all such activities. WE WILL NOT in any like or related manner interfere with the right of our employees to make a free choice in any election or- dered by the National Labor Relations Board. DIEBOLD, INCORPORATED, Employer. Dated---------------- By-------------------------------------- (Representative ) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, Transit Building, Fourth and Vine Streets, Cincinnati 2, Ohio, Telephone Number, Dunbar 1-1420, if they have any question con- cerning this notice or compliance with its provisions. DIEBOLD, INCORPORATED 1003 INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE This matter came on to be heard before Trial Examiner Horace A. Ruckel at Hamilton, Ohio, on June 15, 1962. The complaint of the General Counsel of the National Labor Relations Board issued on April 27, 1962, upon charges filed on March 9 and 23, 1962, by United Steelworkers of America, AFL-CIO, herein called the Union or the Steelworkers. The complaint alleges that Diebold, In- corporated, herein called Respondent, on February 23, 1962, committed unfair labor practices within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.) herein called the Act, by warning and threatening that employees in a layoff status would not be recalled to work and that Respondent would not bring any new work into its plant if its employees joined or assisted the Union. Respondent's answer denied the commission of any unfair labor practices. Pursuant to Board order, evidence was also taken in connection with certain objec- tions filed by the Union in respect to a Board election held among Respondent's employees on May 4, 1962. The parties, including Safe Workers Organization, Chapter No. 1, Incorporated, herein called the Intervenor, were represented at the hearing and have filed briefs. Upon consideration of the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. RESPONDENT'S BUSINESS Respondent is an Ohio corporation engaged at Hamilton, Ohio, in the manufac- ture and sale of various products including security files, commercial files, drive-up counters, and safes. During the year 1961, a representative period, Respondent sold and delivered products valued in excess of $50,000 directly to customers in States of the United States other than the State of Ohio. The complaint alleges, Respond- ent's answer admits, and I find, that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. H. THE LABOR ORGANIZATIONS INVOLVED United Steelworkers of America, AFL-CIO, and Safe Workers Organization, Chapter No. 1, Incorporated, unaffiliated, are labor organizations admitting em- ployees of Respondent to membership. III. THE UNFAIR LABOR PRACTICES Respondent has had a collective-bargaining contract with the Intervenor, signed on July 1, 1960, and due to expire on June 30, 1962. On February 1, 1962, the Union filed a petition for an election which took place on May 4, 1962, participated in by the Steelworkers, the Intervenor, and the Boilermakers. The Intervenor received ,a majority of the votes cast but the Steelworkers filed timely exceptions thereto.' On February 22, Respondent convened a meeting of its supervisory employees, presided over by Virgil Smith, its personnel director. Several of them, called as witnesses by Respondent, testified as to the discussion which took place. Cecil Pat- ton, foreman of the paint department, testified that the supervisors were instructed to tell the employees in his department that if Respondent did not get a "workable" agreement with "a union," Respondent would not recall employees who had previously been laid off 2 and that no new work would be brought into the plant. A workable The results of the election were as follows: Approximate number of eligible votes-------------------------------------- 388 Void ballots------------------------------------------------------------ 1 Votes cast for Steelworkers---------------------------------------------- 87 Votes cast for Boilermakers---------------------------------------------- 7 Votes cast for Safeworkers----------------------------------------------- 147 Valid votes counted----------------------------------------------------- 247 Challenged ballots------------------------------------------------------- 76 Valid votes plus challenged ballots---------------------------------------- 317 2 During the first week in February, Respondent employed about 340 employees. By February 23, this number had shrunk to 250, through layoffs. Respondent has operating at a loss for some time. The loss In February 1962 amounted to $54,000. been 1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD agreement the witness understood to be one which would put Respondent on a favorable competitive basis relative to other employers in the area. Foreman Patton, Foreman Pfirrman , head of the shipping department , and Fore- man Bowling, in charge of the finishing department , on the following day, Febru- ary 23, did speak to the employees under their supervision and told them the above in substance. Patton spoke to 25 employees, Pfirrman to 16, and Bowling to 2 or more. Patton testified that he understood that he was instructed to do so, Bowling that he understood he could do so if he wished, and Pfirrman that he did so because he was personally alarmed by the economic situation in which Respondent found itself. Patton and Pfirrman testified they told the employees under them that unless Respondent obtained a workable labor agreement it would not recall the laid-off employees and that no new work would be brought into the plant. Various witnesses called by the General Counsel testified, however , that the three foremen specifically mentioned only the Steelworkers in connection with obtaining a workable agreement . Employees Robinette , Abrams, and Rose testified thus with respect to Patton, employees Lutes and Oglesby so with respect to Pfirrman, and employees Sayor and Copley so as to Bowling . Pfirrman and Bowling denied spe- cifically mentioning the Steelworkers . Patton, however, on cross-examination ad- mitted stating to employees in the paint department , that if CIO, by which he testified he meant the Steelworkers, got into the plant it would probably shut down and the laid-off employees would not be called back. On February 8, 1962, 2 weeks prior to the meeting of the foremen, Respondent is- sued a statement of policy for supervisors , copies of which were given the foremen and posted on bulletin boards throughout the plant . This statement was in the following form: DIEBOLD'S POLICY FOR SUPERVISORS AT THE HAMILTON PLANT The National Labor Relations Board has told us that the CIO Steelworkers have requested an election at our plant to see if they represent 'a majority of our employees. We don't believe that the CIO does. That's why we feel that a secret ballot election is the only way to resolve this important question . We will co- operate with the Government in holding a proper election at the proper time. All supervisors will be asked many questions about the CIO Steelworkers and their claim to represent a majority of our employees . We encourage these questions, and we want all supervisors to answer these questions with the truth. Only by knowing both sides of this important question will employees be able to vote as informed Americans. We believe there ,is only one issue involved-the CIO's miserable record. Time after time the CIO has left unemployment , bitterness, strikes and plant closings in its path. All of you know CIO members right here in Hamilton who are look- ing for work . The CIO didn't help them, and we don't believe the CIO can help our employees, either. When you are asked questions you must bear in mind certain principles. Here is what you can and cannot say to employees about unions: 1. YOU CAN express your real opinion about unions to employees. YOU CAN'T make any promises to employees if they vote against the union or abandon the union. 2. YOU CAN tell employees the past history of the CIO Steelworkers. YOU CAN and you should tell employees that the record of CIO misery is as long as a picket line. YOU CAN'T make threats to employees in any way. YOU CAN'T tell employees the plant will close if the CIO comes in or that employees will in any way be disciplined or discharged for supporting .the union. A N D Just as you can't make threats , neither can the CIO Steelworkers . It is against the law for the CIO to threaten employees that they will lose their jobs if they don't join up . It is against the law for the CIO to the use physical pressure to force employees to join. But just because these tactics are against the law doesn't mean the CIO won't try to use them. Therefore , YOU CAN and YOU MUST report any union threats or coercion to us immediately. 3. YOU CAN tell employees of the misery that CIO strikes bring each year to thousands of workers. DIEBOLD, INCORPORATED 1005 4. YOU CAN tell employees that belonging to the CIO Steelworkers can be a very expensive proposition. 5. YOU CAN tell employees that in your opinion their best interests-and the best interests of their families, are served by staying free and staying out of the CIO. 6. YOU CAN'T ask employees if they have joined the CIO, or if they have attended CIO meetings, or if they are going to vote for the CIO, or if they know anyone who has done these things. Don't question employees about their participation in union activity. All supervisors should remember that the basis rule is this: YOU CAN express your opinion, YOU CAN'T make any threats or promises of benefit to employees to stay out of the CIO. There are many reasons why we believe our employees are better off by voting against the CIO. We expect all supervisors to bring these arguments home to our employees in a proper way. We feel that our employees will vote against the CIO when they know the truth. Conclusions Standing alone this posted statement of policy is well within the "free speech" provision of Section 8(c) of the Act, since it contains no threat of reprisal or force or promise of benefit. Its thrust, however, is directed to the Steelworkers exclusively among the organizations participating in the election. In view of this, and of the testimony of the witnesses cited above and the admissions of Foremen Patton and Pfirrman, I find that Patton, Pfirrman, and Bowling all of them, when they told the employees under their supervision of February 23, that Respondent would not recall employees in a layoff status or bring new work into the plant unless it could get a workable agreement with a union, had in mind and made particular reference to the Steelworkers. Boiled down, what they communicated to the employees, im- plicitly if not explicitly, was a threat to close down the plant and not to call back laid-off employees if the Steelworkers won the election. In its brief, Respondent contends that the statements which I find Patton, Pfirrman, and Bowling made are not attributable to Respondent because they are outside the scope of authority of its supervisors. In support of this contention it cites its state- ment of policy. This, in effect say Respondent, defined the scope of the supervisors' authority and anything said beyond this did not bind Respondent. I am not im- pressed with this contention and I do not find applicable the cases which Respondent cites in its brief. The statement of policy, at the most, is only a statement in general terms of what supervisory employees may and may not legally say to its employees in an organizing situation Its interpretation and application to the existing circum- stances is left to the supervisors. They are not forbidden, on the authority of the employer itself, to make such statements as I have found above they did in fact make. They were instructed or encouraged to tell the employees that if Respondent did not get a workable agreement with a union, that is one not unfavorable to Re- spondent, the laid-off employees would not be rehired and no new work would be brought into the plant. They understood management to have the Steelworkers particularly in mind, and so stated to the employees under them. I construe this instruction as a threat and to be in contradiction with the statement that supervisors "can't" make threats to employees "in any way." In stating, through its supervisory employees, that if the Steelworkers won the election Respondent would not reemploy employees in a layoff status and would not bring any new work into the plant and that it might close its plant, Respondent interfered with, restrained, and coerced employees in the rights guaranteed in Section 7 of the Act and thereby violated Section 8(a) (1) of the Act.3 B. The objection to the election By appropriate order the Board directed that evidence be taken relating to an objection filed by the Union to conduct by Respondent which allegedly vitiated the election held on May 4, 1962. The objection is that Respondent's supervisors, 9I find without merit Respondent's contention that no finding of unfair labor practices can properly be made because the Union, after their commission, proceeded to an election. On March 9, upon filing of the charge herein, the Union filed a request to proceed, which stated in relevant part that it waived any right to urge as a basis for objections to the election, any act alleged to be an unfair labor practice which may have occurred prior to the filing of the Union's petition or execution for consent election in the representa- 1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD on February 23, 1962, threatened employees, including those in layoff status, that such laid-off employees would not be recalled nor would Respondent bring new work into the plant if the employees became members of or assisted the Union, and is identical with the allegations of the complaint. I have found that these statements were made and that they were violative of Section 8(a)(1) of the Act as constituting interference, restraint, and coercion. Respondent urges, however, that they should be considered remote as affecting the results of the election because of the interval of 70 days between their utterance and the date of the election, and further that they were isolated. I cannot agree. Although the statements in questions were all made on the same day, and were not repeated, they were made to over 40 employees, at a minimum. Moreover, they amounted to more than simple interrogation. They constituted a threat that if the Steelworkers won the election the plant would close down and employees already in layoff status would not be called back and other employees would join them. A threat of this nature in my opinion retains its force for longer than 70 days, and interferes with a free and untrammeled choice of a bargaining representative. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The operations of Respondent described in section I, above, in connection with the unfair labor practices described in section III, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Having found that Respondent has engaged in unfair labor practices in violation of Section 8 (a) (1) of the Act, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Having found that the election of May 4, 1962, was conducted in circumstances not permitting a free and untrammeled choice by the employees, it will be recom- mended that the result of the election be set aside. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 2. By warning and threatening employees that employees in a layoff status would not be recalled to work, that Respondent would not bring new work into the plant, and that the plant might be closed if the Union won the election on May 4, 1962, Respondent engaged in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 3. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and (7) of the Act. [Recommendations omitted from publication.] tion case. The acts complained of as unfair labor practices occurred on February 23. The petition was filed on February 1, 1962. Polar Ware Company and Local 108, and International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, AFL-CIO ( UAW),' Petitioners. Case No. 13-10-8459. November 15, 1962 DECISION AND ORDER Upon a petition duly filed under Section 9(c) of the National Labor Relations Act, a hearing was held before George Squillacote, 1 Hereinafter referred to as Local 108 and the UAW, respectively. 139 NLRB No. 78.