Rockwell Manufacturing Co.

ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 741 Rockwell Manufacturing Company, Kearney Division and United Steelworkers of America, AFL-CIO. Cases Nos. 17-CA-2025-1 and 17-CA-2025-2. May 23, 1963 DECISION AND ORDER On March 21, 1963, Trial Examiner Eugene F. Frey issued his In- termediate 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 attached Intermedi- ate Report. Thereafter, the Respondent and the Union filed excep- tions to the Intermediate Report and supporting briefs. 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 Leedom, Fanning, and Brown]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed.' The Board has considered the In- termediate Report and the entire record in the case, including the ex- ceptions and briefs, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, with the modification noted below.' ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner, except that paragraph 1(f) and the corresponding paragraph in the notice to be posted is hereby amended by substitut- ing the words "In any other manner" for the words "In any like or related manner". 1 We affirm the Trial Examiner's rejection of the Respondent 's offer of proof to the extent that it attempted to relitigate in this complaint proceeding its objections to the consent election in Case No. 17-RC-3778 . We also affirm the Trial Examiner's rejection of the offer of proof with regard to the newly alleged incident raised for the first time at the instant complaint hearing. With regard to the alleged incidents which occurred prior to execution of the consent election agreement, the Respondent argues in its exceptions herein that the Board should apply the rule of Goodyear Tire and Rubber Company, 138 NLRB 453, to all cases rather than only to petitions filed on or after September 17, 1962. The petition in the underlying representation case here was filed on February 19, 1962. In Goodyear the Board established the date of filing a petition as the cutoff date for con- sideration of conduct as grounds for objections to consent elections. For the reasons set forth in Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278 , we decline to change the effective date of this modification . See also Goodyear Tire and Rubber Com- pany, supra 2 We find merit in the Union's exception to the Trial Examiner's refusal to recommend a broad cease-and-desist order. In our opinion, the various acts of independent violations of Section 8(a) (1) of the Act evince a general hostility on the part of the Respondent to the right of employees to engage in legitimate concerted activities for purposes of union organization or other mutual aid and protection . Accordingly, in order to make the remedy coextensive with the threat of future unfair labor practices , we shall issue a broad order enjoining the Respondent from all forms of unlawful interference with rights guaranteed employees by Section 7 of the Act. See May Department Stores Co. v. N L R B., 326 U.S. 376. 142 NLRB No. 86. 742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD INTERMEDIATE REPORT STATEMENT OF THE CASE The issues in this case are whether Respondent, Rockwell Manufacturing Com- pany, (1) coerced its employees by interrogation, threats of reprisal for union activities, promises of benefits to abstain from such activities, and other types of conduct, in violation 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), and (2) failed and refused in good faith to bargain with United Steelworkers of America, AFL-CIO (herein called the Union) after Board certification of that Union as the exclusive bargaining representatives of employees of Respondent in an appropriate unit de- scribed below, in violation of Section 8(a)(5) of the Act. The issues arise on a consolidated complaint, issued September 28, 1962, and amended at the hearing,' and an answer of Respondent admitting jurisdiction and certain facts relating to another Board proceeding but denying commission of any unfair labor practices. A hearing on the issues was held before Trial Examiner Eugene F. Frey at Kearney, Nebraska, on November 27 and 28, 1962, in which all parties were repre- sented and participated through counsel. A motion of General Counsel to dismiss a part of Respondent's answer, filed before the hearing, was denied by the Trial Examiner. All parties waived oral argument but General Counsel and Respondent have filed written briefs with the Trial Examiner. After the hearing ended, the parties filed a stipulation for correction of the transcript in certain respects. The stipulation is hereby marked in evidence as General Counsel's Exhibit No. 8, and the transcript is hereby corrected accordingly. Upon the entire record in the case, and from my observation of the witnesses on the stand, I make the following: FINDINGS OF FACT 1. THE COMMERCE FACTS Respondent is a Pennsylvania corporation with its principal office located in Pittsburgh, Pennsylvania. It maintains various places of business in other locations throughout the United States, including a plant at Kearney, Nebraska, where Respond- ent makes valves. Respondent has a direct annual inflow to that plant of raw mate- rials valued in excess of $50,000 and a direct annual outflow of finished products therefrom valued in excess of $50,000. On these facts I find that Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES 2 A. The union campaign and the election In February 1962, the Union began an organizing campaign at the Kearney plant. On February 19, 1962, it filed a petition with the Board in Case No. 17-RC-3778 seeking certification as bargaining agent for employees at the plant. On March 6, Respondent and the Union stipulated to a consent election, which was held on March 21, 1962, in an agreed bargaining unit consisting of: All production and maintenance employees at Respondent's plant in Kearney, Nebraska, including leadmen, factory clerks, boiler attendants, and hourly rated inspectors, but excluding office clerical employees, draftsman trainees, professional employees, guards, watchmen, and all supervisors as defined in the Act. The parties agree, and I find, that this unit is appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act. In the election 50 out of 100 eligible voters voted for the Union, 49 voted against it, and I ballot was void Respondent filed timely objections to conduct affecting the results of the election. On May 25, 1962, the Regional Director for the Seven- teenth Region issued a report on the objections, recommending that they be overruled and that the Union be certified as the bargaining agent. After Respondent excepted I The complaint Issued after Board investigation of charges filed by the Union on August 15, 1962. 2 Except where otherwise noted, the facts herein are based on stipulated and docu- mentary evidence, and credited testimony of witnesses. ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 743 to that report, the Board on August 2, 1962, issued its Decision certifying the Union as such representative of employees in the unit aforesaid. On August 6, 1962, Respondent posted the following bulletin in the plant to the ,employees: This morning we received a notice from the National Labor Relations Board .indicating that a three-man panel of the Board has denied Rockwell a hearing on the matter of threats, intimidation, and coercion, which the Company had brought before the Board. This decision offers no other recourse to the Company in its efforts to protect the interests of its employees except to force this matter into the Federal Courts, which we will do by refusing to accept the Board's decision. The Company feels that all parties have been denied due process of law by the Board's refusal to hold a hearing where a question of intimidation and coercion is involved. For the present there will be no bargaining meetings with the union until such a time as this question is finally resolved. We will keep you informed of further developments as they occur. On August 9, the Union sent Respondent a letter citing its certification by the Board and requesting meetings starting August 20 to negotiate a contract. Re- spondent replied by letter of August 13, declining to meet with the Union in these terms: After reviewing the entire sequence of events, culminating with the Na- tional Board's decision of August 2, 1962, we are of the opinion that all par- ties in this action have been denied due process of law because of the Board's failure to grant our request for a hearing. Accordingly, we have decided to take whatever steps that are necessary to insure that we are heard in order that the charges of intimidation and coercion attributed to the union may be fully resolved. Until such a time as these matters are processed by a court of proper juris- diction, we must decline to meet with you for the purpose of bargaining. Since that date Respondent has refused to meet and bargain with the Union. On November 19, 1962, Respondent gave its employees in said unit a wage raise, an additional paid holiday, and certain other increased medical benefits, all without prior notice to or consultation with the Union. B. Alleged coercive conduct by Respondent The following employees of Respondent are admittedly supervisors and agents of Respondent within the meaning of the Act: Forrest Arrowsmith, foreman, body department; James W. Fowler, foreman of grinding and fitting department; Wil- liam Kaufman, foreman of toolroom and tool service; Arthur E. Morrison, foreman of heat treatment department; Ed Schmidt, foreman of maintenance employees; Henry E. Schlattman, foreman in toolroom; Derrill Reiter, foreman in assembly department; Hugo H. Becker, industrial relations manager; Robert L. Kurz, fore- man of lathe department; and Fred Langtree, assistant plant manager. About a week before the election, Foreman Arrowsmith told employee William Geisler that Plant Superintendent Walter Olson "would not appreciate" Geisler's voting for or backing the Union? On election day, Geisler checked out of the plant about 4 p.m , and walked with employee Jerry Brandorff to a car in the plant parking lot where he talked with Earl M. Graham, a union representative. The next day Arrowsmith asked Geisler, "What have you got to do with Graham?" Geisler replied, "Why?" Arrowsmith said, "You were reported talking to him." Geisler said he had been with him at a local hotel. Arrowsmith said, "No, out in the parking lot." Geisler replied that he had already punched out of the plant, and was outside the plant, on his own time. At an unidentified date, while Brandorff was helping Geisler in his work, either Olson or Arrowsmith suggested to Geisler that he have one Albert Waddell help him, rather than Brandorff, be- cause the latter was "considered a bad influence." Brandorff had been an active worker for the Union during the campaign, while Waddell had been active against it, and Geisler had accompanied Waddell to an antiunion meeting a week or so before the election? 3 Olson had hired Geisler. 4 These findings are based on credited testimony of Geisler, as against categorical denials of Arrowsmith who did not testify as to any details of these or other talks with Geisler, but admitted having talks about the Union with other employees. Olson did not testify. 744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD About 2 weeks before the election, Foreman Fowler had two half-hour discussions with employee Bernard Domandle on the same day at his workplace in the presence of another worker.5 In these talks Fowler mentioned the Union's demands for high incentive guarantees in its contract negotiations at the Atchison, Kansas, plant of Respondent, expressed the view that he did not believe a "third party" could settle differences between Respondent and the employees, also mentioned that he had a relative in the East who wanted to get out of a union but could not, and ex- pressed the view that "once you are in, you cannot get out of a union," and also stated that if the Union got into the plant, Respondent would move out rather than pay union wages. In the same period, Foreman Schlattman, former supervi- sor of Domandle, talked to Domandle about the contract the Union was trying to get at Respondent's Atchison, Kansas, plant, said that the provision for a 130-percent guarantee on incentive pay in it was ridiculous, and that if the Union got into this plant, Respondent would move out 6 About 3 weeks before election, employee William Proett was approached several times while at work by Morrison, foreman in another department. Morrison asked Proett how he felt about the Union. Proett replied that he was "all for it." Mor- rison talked against the Union, saying that if Proett "would be more for the Com- pany and not for the Union, the Company could do more for me than the Union could." In answer to a question of Proett about the rumor that the Respondent would move if the Union got into the plant, Morrison said Respondent could close it up and move out the machinery "if they want to," just as it brought machinery in. He also said that if the Union did not get in, "things would get better with the Company before they would get worse," citing the raises which Respondent gave employees periodically. Morrison also said the Company could stop incen- tive pay for the workers if it wanted to, as well as regular raises, because that was just an extra benefit? Several weeks before the election, employee Ray Bosse was approached several times while at work by his foreman, Kaufman, who talked to him about the Union, showed him newspaper clippings concerning strikes and attendant violence at other plants and other companies, and once or twice said he did not want to see Bosse "get hurt." Once shortly before the election Foreman Arrowsmith walked up to Bosse and said, "We don't want a union in this place," Bosse said nothing, and then Arrowsmith walked away .8 In the month before the election Foreman Kaufman had three or four talks with employee Carrell C. Ritter about the Union, in which he asked him what he thought of the strikes and violence shown by the newspaper clippings distributed among the employees. Kaufman asked him several times how he felt about the Union. and Ritter replied each time that he had not decided exactly how he felt or how he would vote in the election Kaufman stated his opinion that he did not think it would be the best thing to have a union in the plant.9 On a few occasions about 2 weeks before the election, Foreman Fowler asked employee Gilberto Antillon and several other workers at mealtimes what they thought about the Union. Gilberto said he was against it. Fowler made no com- ment and there was apparently no other discussion on the subject.10 5 Fowler had formerly been Domandle's supervisor ; Kurz was his supervisor at the time of the talks. "These facts are found on credited testimony of Dmnandle and Loren Butterfield, as against categorical denials of Fowler who admitted the talks but did not give his version of these half-hour talks, although Domandle frankly admitted there was much more talk about unions which he could not remember. Schlattman admitted the talk with Domandle, and that they discussed unions, but I do not credit his categorical denial of the remark about the Company moving out, because he did not try to give his own version of the full talk 7 These discussions are found from credited testimony of Proett and Butterfield, as cor- roborated in part by admissions of Morrison. Categorical denials and other testimony of Morrison in conflict therewith is not credited, as he did not give his own version of the full discussions. 8 These facts are based on credited testimony of Bosse and admissions of Kaufman I do not credit testimony of Kaufman and Arrowsmith in conflict therewith BThese facts are based on credited testimony of Ritter and admissions of Kaufman. Testimony of the latter in conflict therewith is not credited 11 These facts are based on credited testimony of Antiion Categorical denials of Fowler are not credited, as he did not try to give his version of such discussions, although he admitted having discussions about the Union with various other employees. ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 745 About a week before the election, Foreman Morrison approached employee Gerald Cords and asked him what he thought of the Union, and what he thought it would do for Cords. Cords replied that he favored the Union. Morrison said, "Mark my words, you won't be getting one more thing a year from now than you are right now, if the Union gets in," commenting that he thought the plant wages were about right because this was a low-wage area. Cords disagreed, saying wages were not enough compared to those paid to skilled labor in Omaha and Denver, as he had investigated wages in Denver. Morrison replied that he should quit and move to Omaha or Denver, that a person should seek employment where it was best for him. He then said he would have to talk to Cords a little more on that subject. There is no proof that he did." About a week or so before the election, Foreman Kaufman had a long talk with employee Lyle E. Schnacker about the Union, in which he laid out some antiunion literature for Schnacker to read. Kaufman said business at the plant was poor, and that if the Union came into the plant and wages were raised, "about the only thing they could do to make up the difference would be to lay off some employees" and get more work out of those men kept on, and "there was going to be a lot of fellows hurt" and "even some of the foremen may get hurt because they would just have to cut down all the way around," and "we did not want anything like that." A few days later, Kaufman approached Schnacker and asked if he had "decided anything," to which Schnacker replied, no, he had not decided which way he would vote. They talked about plant wages, Schnacker contending his present hourly rate of $1.84 was too low to give a man with a family a decent living, and Kaufman arguing that Respondent could not pay more, that the Union could not get more for the workers, with business poor as it was. Kaufman mentioned Schnacker's recent transfer to lathe work for which he was in training, and that he had no ex- perience at that, and asked what he would do if he lost his job. Schnacker men- tioned his brother was making more than he in Denver doing less skilled work. Kaufman suggested he ought to be working there. Schnacker argued he should be able to make a decent wage working with Respondent, as he liked his work there. He commented that he did not know what wages he would get in the new lathe job and Kaufman said he would find out and Schnacker would be notified. That after- noon Schnacker was called to a conference with Industrial Relations Manager Becker and Robert L. Kurz, his new foreman. They told him about his new assignment, said he would be raised to $1.92 an hour if his work was satisfactory, his next raise would be to $2, and that he would be interviewed in a month to let him know about his progress. Becker reveiwed Schnacker's raises and work per- formance over the past 4 years and indicated that he was a good, steady worker who would probably be kept on the job longer than Becker himself. Becker said he could get raises and "go places without an outsider being in the plant," to which Schnacker said that if he was referring to the Union, he had not decided which way he would vote. He and Becker then discussed the Union along the same lines that Schnacker and Kaufman had had previously. Kurz commented that the only thing a union had done for him in the past was to take him out on strike twice in 4 or 5 years. At the close of the talk, Becker said that when Schnacker went in to vote, he should "remember where you got your living over the last 4 years; although it might not have been the best, that is where you got your living," and that the Company could do more for him than the Union. Schnacker replied that he had not decided how to vote, but would vote the way he thought would be in the best interests of himself and his family.12 A few days later, Fowler approached Schnacker while at work, and asked in what way he was dissatisfied with his work, saying he was wondering about it, because from the way he "had gone against the Company," it seemed that he was dissatisfied. Schnacker said he was satisfied with his work, but not with his pay. Fowler ex- plained that Respondent was not making any money. Schnacker said that the em- ployees only knew what they were told, but had no real knowledge about that. Fowler discussed the amount of income tax Respondent had paid, and said that even though other plants might be profitable, the Kearney plant was an individual plant and could not pay more wages if it was not making money. They argued about this with some force. In the discussion, Schnacker said that "If I had to not belong to a n These facts are based on credited testimony of Cords and admissions of Morrison as to some parts of the discussion . Other testimony of Morrison in conflict therewith is not credited. ' These findings are based on credited testimony of Sehnacker, as corroborated in part by admissions of Kaufman and Becker Testimony of Kaufman, Kurz, and Becker in con- flict therewith is not credited. 746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD union to work here, the Company knows what they can do about it." Fowler said, "I am sure that anybody I want to get rid of that's in my department I can do it." Schnacker replied, "If I have to give up my rights to work here, you go ahead and get rid of me," that Schnacker had a right to belong to a union, and he did not hold anything against a man who did not belong, but he would not give up his right in order to work there for the amount of pay he was getting. Their argument on this was earnest but friendly. At the close, Fowler said he would take Schnacker fishing and talk more to him about it. As the hour-long discussion had taken Schnacker beyond his setup time,13 he asked Fowler how his setup time would be handled. Fowler punched Schnacker's card for his regular setup time, and gave him another hour for "gasket" (or trouble) time, and told him not to worry about it. In another discussion with Fowler about union meetings, Schnacker told Fowler he did not like nonunion men coming up and spying on workers when they went to union meetings. Fowler commented that nonunion people probably wanted to know what was going on.14 About the middle of June, Schnacker asked Kurz when he would get a raise, reminding Kurz that he had not been interviewed about it. After visiting the office, Kurz said Schnacker was not due for a raise until he had been on the new job 6 months, at which time he would go to $1.92 an hour, and his next raise would be to $2, 6 months after that. On September 17, 1962 (just 6 months after Schnacker began work on the lathe), Kurz and Becker notified him that he was getting the raise to $1 92 an hour. Kurz remarked then that "if me and my buddies laid off, we might be able to get some merit raises, too." 15 In the 2 weeks just before the election, Foreman Arrowsmith had several talks with employee Carl Rasmussen about the Union. In one, occurring at a time when it appeared that Rasmussen was running out of work on his particular job, Arrow- smith commented that if a union was in the plant, when Rasmussen ran out of work, he would be sent home rather than be transferred to another machine, because some of the other machines were "lower-paid" machines. Rasmussen asked how Respond- ent would handle overtime work for him and other employees who lived out of town and rode to and from work together. Arrowsmith replied that if there was no union in the plant, in instances where one of the four had to work overtime, he would talk to the foremen of the other three men and try to arrange to have them work over- time also, so that the four could ride home together, but if the plant went union, and some of them worked overtime, he would not make this request of the other foremen, that "they" could not be concerned about how the four got home 16 About 3 weeks before the election, Foreman Kaufman told employee Errol D. Phillips that the Union had not helped employees at the Atchison plant, as they bad not received raises for quite awhile since that plant was unionized. He asked Phillips if he had signed a union card, and Phillips said he had On another occasion, Kaufman told Phillips that employee Waddell had some information and asked Phillips to talk to him Phillips talked to Waddell for about a half hour on company time. Waddell, who was antiunion, explained he had sought advice from a lawyer who said that if an employee signed a union card, the Union could take dues from him, whether the Union got into the plant or not, and mentioned that Phillips could probably get his card back from the Union if he wanted to.17 13 When doing certain types of "setup" or repair work, employees had special cards punched showing their work on such jobs 11 These facts are based on credited testimony of Schnacker, as corroborated in part by admissions of Fowler Testimony of either witness in conflict therewith is not credited 15 These facts are found on credited testimony of Schnacker and admissions of Becker and Kurz. Testimony of Becker and Kurz categorically denying the last remark attributed to Kurz is not credited, in view of their prior remarks indicating their antiunion attitude and that Respondent could do more for Schnacker than the Union "These facts are based on credited testimony of Rasmussen and admissions of Arrow- smith. Testimony of the latter at variance therewith is not credited, because lie limited himself for the most part to categorical denials of statements attributed to him by Rasmussen, without credible explanation of the discussions, and in one instance where he gives an otherwise credible explanation for his remarks (about lack of transfer to lower paid work if the Union was in the plant), he does not say he gave this explanation to Rasmussen , although it was based on his own experience in other plants 17 These facts are based on credited testimony of Phillips Kaufman does not deny the initial conversation, but only that he interrogated Phillips As to the second, I do not credit his denial of the request that Phillips see Waddell, as he admitted he knew Waddell had some papers prepared whereby employees could ask the Union to return their signed cards, and that he allowed another employee to talk to Waddell about that on company time Hence, I consider it more likely than not that he suggested Phillips talk to Waddell ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 747 About a week or so before the election, Foreman Fowler had a talk with employee Gerald O. Brandorff while he worked at his machine . la Fowler asked how Brandorff and the Union were getting along, and Brandorff replied, "Pretty good." 19 Fowler asked what he expected to gain by having a union in the plant. Brandorff replied the men would like to have some of the benefits given in other Rockwell plants, although they did not expect to get the same wages or all the benefits of other plants. Fowler asked, "What will you do if the Company will not go along with you9" to which Brandorff replied the men would probably go out on strike or do whatever they could to close down production. Fowler then told him about another plant involved in an unsuccessful organizing campaign which involved violence , and also spoke of other companies moving their plants overseas to make their products more cheaply, and said that Rockwell could do the same thing if "they wanted to." Fowler also asked what "we" would do if Respondent would not bargain with "us." Brandorff's reply does not appear . This talk took almost a half hour, during which Brandorff had to shut down his machine . Brandorff marked his timecard for that period "Talking with Fowler." 20 Within the month before the election , Foreman Kaufman had several talks of varying lengths with employee Alfred Peskey, in which he gave antiunion arguments, while Peskey presented prounion views. On occasion, he asked Peskey what benefits he could get if he voted the Union into the plant. Peskey replied that the men could get more money and security . Kaufman disagreed . In addition to his regular work, Peskey had hauled mail for Respondent between the post office and the plant for about 31/2 years, using his own vehicle and receiving a half-hour overtime pay per day for it. About March 16, 1962, Assistant Plant Manager Langtree terminated this assignment, telling Peskey that his work was satisfactory , but the Respondent had made different arrangements . Shortly after, Foreman Kaufman asked Peskey about the termination and, after Peskey told him Langtree had taken the mail job away from him and given it to one Bud Dishman, told Peskey "to be careful and not get hurt any more." 21 I conclude and find that Respondent coerced and restrained employees in viola- tion of Section 8 (a) (1) of the Act by the following conduct of its supervisors, all of which occurred within a period of about 4 weeks before the election: (1) Arrowsmith's query of Geisler as to what he "had to do with Graham," the union agent, after receiving a report that Geisler had talked to Graham in the parking lot.22 (2) Morrison's query of Proett as to how he felt about the Union; his implied promises of benefit to Proett in the remarks that the "Company could do more for" Proett if he went against the Union, and that if the Union did not get in , "things would get better with the Company," citing the continuance of regular raises; and his implied threat that if the Union got in , Respondent could close the plant and move out machinery, just as it had opened the plant and moved machinery in, and that it could stop incentive pay as well as regular raises.23 (3) Kaufman's query of Ritter as to how he felt about the Union 24 18 Brandorff was a lathe operator working under Foreman Arrowsmith, while Fowler was a foreman of the grinding department 10 Brandorff had been at the plant about 5 years 3 months , in which time he had been an active employee leader for the Union in the present campaign, as well as in two previ- ous campaigns in the past 4 years, and Respondent was well aware of it 20 These facts are found on credited testimony of Brandorff I do not credit Fowler's categorical denials of the statements attributed to him by Brandorff because, while he admitted having the discussion , he was vague about the details and did not state his own version of what was said a These facts are based on credited testimony of Peskey, Kaufman, and Becker Testi- mony of Kaufman and Becker at variance therewith is not credited 221 find no violation in the foreman 's remark that Olson, who hired Geisler, would not appreciate his voting for the Union, for it is an equivocal statement , containing neither direct nor implied threat of reprisal , indicating at most an opinion that Olson might dis- like the employee voting for the Union 22 While Arrowsmith ' s threats about closing up came in response to a question from Proett about a prevalent rumor that the plant might close if the Union won, and the foreman used the word "could," not "would," I think his remarks in their context still conveyed the idea that Respondent had the power to close up, as a reprisal , which I consider here as coercive as a direct threat that they "would " close it 24I find no violation in the foreman 's query as to what Ritter thought about strikes with violence shown in news clippings , or in his opinion that a union would not be best for the plant. 748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (4) Fowler's queries of Antillon and others as to what they thought about the Union; Morrison's similar inquiry of Cords; Kaufman's inquiry of Phillips about signing a union card ; Fowler's questions to Brandorff as to his relations with the Union, what he expected to gain from a union in the plant, what the men would do if the Company did not give them the benefits they asked, or refused to bar- gain with them; Kaufman's queries of Peskey as to the benefits he expected from a union, and his query of Schnacker whether he had "decided anything" during a talk about the consequences of unionization of the plant. (5) Fowler's statement to Domandle that if the Union got into the plant, Re- spondent would move out rather than pay union wages, and his thinly veiled threat of reprisal contained in the remark to Schnacker that he could get rid of anyone in his department that he wanted to, during a lengthy discussion in which Schnacker complained about low plant wages and commented that he would not want to work there if he had to be nonunion. (6) Arrowsmith's implied promise of benefit to Rasmussen in the remark that, with no union in the plant, he would use his influence with other foremen to procure overtime work for a group of workers riding together so they could go home together, his threat that he would not make that effort for them if the plant went union, and his statement that if a union got into he plant, employees would be sent home, rather than transferred to lower paid work, as at present Z5 (7) Fowler's comment to Brandorff during illegal interrogation of him found above, that some concerns moved their plants overseas to get cheaper production, and Respondent could do the same thing, which was in answer to Brandorff's com- ment that the workers would probably strike and close the plant if the Company did not grant their demands. This conveyed the idea of possible employer reprisal for a strike. Considering the number and variety of the above instances of coercive conduct, that they occurred in a short period before the election, and that many of them were made by supervisors to employees not directly supervised by them, so that the supervisors involved clearly went out of their way to talk at length to such employees as well as those in their own departments, I cannot agree with Respond- ent's claim that these were casual, spur-of-the-moment, or isolated instances. Cf. P-M Garages, Inc., 139 NLRB 987, and J. Weingarten, Inc., 141 NLRB 22. And since Respondent had agreed to use Board processes to ascertain employees' de- sires about union affiliation, by its consent to a Board election, it cannot be said that the above interrogations arose from a sincere desire to learn whether Respond- ent should deal with the Union. I find no violation of the Act in the following conduct: (1) The facts that foremen passed out antiunion literature among employees, or made it available for them to read, during working hours, and suggested that some of them read it, and that Foreman Kaufman suggested that employees Gary Hender- son and Errol D. Phillips talk during working hours to an antiunion employee in another room, where the latter tried to persuade both employees to withdraw their union cards. Some employees followed the suggestions to read the literature, but others did not; at least one of the latter later decided to read it of his own volition. Many employees asked their supervisors questions about the literature There is no proof that supervisors made the suggestions to read the liaterature in terms or circumstances implying that they were orders which would be enforced. The record also shows that when Kaufman suggested that Henderson see Waddell, he also reminded Henderson that "there would not be any difference, everything would be the same, whether you are for or against the Union"; and one other employee asked Kaufman for permission to talk to Waddell, which was given. There is no clear proof that the employees considered the suggestion to see Waddell an order. In addition, the record shows that Respondent freely permitted employees to talk in the plant both for and against the Union during working hours. I shall recommend that paragraph IV(b) (12) of the complaint be dismissed. (2) The single suggestion of Arrowsmith or Olson to Geisler that he have an antiunion worker, rather than the prounion Brandorff, help him in his work be- cause Brandorff was "considered a bad influence." There is no proof that Geisler followed the suggestion on that occasion, or thereafter, or that Respondents fol- lowed it up with similar suggestions or discipline for failure to comply. Hence, I do not consider this substantial proof of a continued plan or attempt by Respond- 29 Arrowsmith testified that the last remark was occasioned by his experience or knowl- edge of the usual union policy in organized plants which discouraged transfer of workers out of their job classification to lower paid work ; however, he does not testify that he told this to Rasmussen. ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 749 ent to isolate employees from known union adherents. I shall recommend that paragraph IV(b) (13) of the complaint be dismissed. (3) Kaufman's warning to Peskey "to be careful and not get hurt any more," after Peskey, a known union adherent, told him that Respondent had taken his longtime extra-pay mail delivery duties away from him. In prior talks with Peskey, Kaufman had repeatedly told him the same thing. The earlier remarks have no context which would warrant my finding they were coercive warnings, and Peskey admits he did not know what Kaufman meant by them. The complaint makes no charge that the last remark was coercive, and General Counsel at the hearing offered it merely to show the "background and actions of the Company prior to the election." While the remark and action that occasioned it are suspicious, suspicion is not proof. Further, there is no claim that the actual deprivation of the extra-pay job just before the election was discriminatory; to the contrary, the credible and uncontradicted evidence of Becker shows that the transfer of that work to supervisors was for economic reasons. (4) Remarks by Fowler, Schlattman, and other supervisors that if the Union got into the plant and demanded very high wages or incentives, Respondent could not pay them and would move out, which denoted possible economic consequence of unionization rather than threats of deliberate reprisal ; Kaufman's statement to Bosse, after showing him a news item about strike violence, that he did not want to see him "get hurt"; Arrowsmith's bare statement once that "we don't want a union in this place"; Kaufman's general query of Ritter about what he thought of the strikes and violence shown in news items; Morrison's opinion to Cords that unionization would not get him higher wages because the plant was paying wages commensurate with the low-wage area in which it was located, and that perhaps Cords might move to another location where he knew wages were higher; Kaufman's predictions to Schnacker that if the Union forced wages up , Respondent might have to lay off em- ployees, including foremen, to compensate for the increased cost , and that the Union could not force Respondent to pay more if business was bad; Becker's reminder to Schnacker that, in voting, he should consider where he got his living, and that the Employer could do more for him than an outsider, like the Union. (5) Arrowsmith's remark to employee Orville Solomon once after the election that "I cannot and will not say that the plant will close its doors, but I was with a plant that did move." While this was said in a discussion about the Union, the details of that discussion which led up to this remark are not given by Solomon, hence the quoted statement is equivocal and not clearly calculated to convey the idea that Respondent would move its plant if the Union won the election, especially where the record shows that in various other talks with employees noted above supervisors legitimately pointed out some of the possible economic consequences of unionization of plants, such as layoffs. In addition, Solomon admits he did not consider Arrowsmith's remark threatening. (6) Kurz's remark to Schnacker, when the latter got notice of a periodic raise, that "if me and my buddies laid off, we might be able to get merit raises, too." There was no apparent mention of the Union in this talk several months after the election, and its equivocal nature is not sufficiently clarified by mere reference back to Schnacker's earlier talks with supervisors about his dissatisfaction with wages, and his chances of getting raises, to warrant the conclusion that the remark was reasonably calculated to warn Schnacker that merit raises were being or would be withheld from him and other union adherents because of the outcome of the election, or their past union activity; there is no clear proof that at the time of this talk there was any definite prounion activity in the plant. C. The refusal to bargain Respondent admits that it deliberately refused to bargain with the Union, as the certified bargaining representative of employees in the appropriate unit found above, because that refusal was the only way it could secure a review of the validity of certification of the Union in Case No. 17-RC-3778. It claims that the Regional Director and the Board in that case denied it the right to adduce evidence at a formal hearing to prove instances of preelection conduct by union adherents which were submitted to the Board under Respondent's objections to conduct affecting the results of the election. These instances (plus one other added at the hearing by amendment to the answer) were summarized as affirmative defenses in Respondent's answer herein, and Respondent made an offer of proof thereof as part of its case, which I denied, while permitting the offer to be spread on the record for later review. Re- spondent also admits that its unilateral grant of wage raises and other benefits to employees after the election are premised upon the claimed invalidity of the certi- 750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD fication. Respondent argues that under Supreme Court and other judicial decisions it cannot be held guilty of an illegal refusal to bargain where it does so for the sole purpose of securing a review of alleged error of the Board and its agents in the rep- resentation proceedings. 26 It also contends that it must be afforded the right, either in the representation case or here, to prove that the Union, as the winning party in the election, committed unfair labor practices prior to and in connection with the election,27 and that the Regional Director, by his refusal to grant Respondent a formal hearing on this issue, acted in an arbitrary and capricious manner and committed error which invalidates the certification. These charges raise questions of the proper or improper use of Board process in the representation case, and of how and when the Board should examine charges of misconduct in connection with an election, which might also involve violations of rights of employees guaranteed by Section 7 of the Act and which might be actionable under either Section 8(a)(1) or 8(b) (1) (A). The instances of preelection conduct which Respondent offered to prove were presented to the Regional Director (with the exception of an alleged threat made by two union adherents 2 weeks before the election to another worker, that he would be laid off if the Union won the election and he had not signed a union authorization 'card) in its objections to the election, and were rejected by both that official and the Board. I am constrained to find Respondent's defense without ment for the following reasons: (1) The instance of alleged threat affecting the election raised for the first time at this hearing by amendment of the answer comes too late. It should have been raised in the objections to the election. (See Board's Rules and Regulations, Sec. 102.69.) Failing that, the Board is not required to consider it in this proceeding in the absence of a showing that it is newly discovered evidence or was not in Respondent's possession prior to the certification. See N.L.R.B. V. Deutsch Com- pany, 265 F. 2d 473, 478 (C.A. 9); National Carbon Company, 110 NLRB 2184, 2185. There is no such claim or showing here. (2) As the other instances of alleged misconduct were considered by the Regional Director and the Board in the representation case, Respondent is now attempting to have the Board pass on them for the second time, but at a formal judicial hearing. The Board has held in similar circumstances that, in the interest of finality of ad- judication, it would not do this in a later unfair labor practice case. O.K. Van and Storage, Inc, 127 NLRB 1537, 1539; The Mountain States Telephone and Telegraph Company, 136 NLRB 1612. The Board has also held that a party to a representation proceeding is not en- titled as a matter of right to a hearing on objections to an election, or on excep- tions to a Regional Director's report on objections. J. R Simplot Company, 138 NLRB 172. Hence, it is not within my province in this proceeding to pass judgment on the Board's failure or refusal to grant a formal hearing in the representation case. That is for the Board to decide in the first instance, subject to possible review in the courts. I therefore conclude and find that Respondent's failure and refusal to bargain with the Union for the technical reasons aforesaid was an unfair labor practice within the meaning of Section 8(a)(5) and (1) of the Act, and that its later unilateral grant of wage raises and other benefits was also a refusal to bargain in violation of the same section. By such refusal to bargain Respondent has also interfered with, restrained, and coerced employees in the exercise of rights guaranteed by Section 7 of the Act, in violation of Section 8(a) (1) of the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of Respondent set forth in section III, above, occurring in connection with Respondent's operations described in section I, above, have a close, intimate, and substantial relationship 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 within the meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered 20 Respondent cites Pittsburgh Plate Class Company v. N L R.B., 313 U.S 146, and Olson Ruq Company v. N L.R B., 260 F. 2d 255 (C A 7) 27 Citing N L R B. v. Lord Baltimore Press, Inc , 300 F. 2d 671 (C.A. 4), and other cases noted in that decision ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 751 to cease and desist therefrom and, upon request, bargain collectively with the Union as the exclusive representative of all employees in the appropriate unit found above and, if an understanding is reached , embody such understanding in a signed agree- ment. The violation of Section 8(a) (5) is admittedly a technical violation designed to procure a review of the representation proceeding . The violations of Section 8(a) (1) do not in my opinion have the scope or intensity which would denote a fundamental antipathy to the basic principles of the Act Hence, I shall recom- mend that the remedial order be limited to a prohibition of like or related conduct.28 Upon the basis of the foregoing findings of fact and the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. The Union is a labor organization within the meaning of Section 2(5) of the Act 2. All production and maintenance employees at Respondent's plant in Kearney, Nebraska, including leadmen, factory clerks, boiler attendants , and hourly rated inspectors , but excluding office clerical employees, draftsman trainees , professional employees, guards, watchmen, and all supervisors as defined in the Act, constitute a unit appropriate for purposes of collective bargaining within the meaning of Section 9(b) of the Act 3. Since its certification on August 2, 1962, the Union has been and now is the exclusive representative of all employees in the unit aforesaid for purposes of collective bargaining within the meaning of Section 9 (a) of the Act. 4. By refusing since August 13, 1962, to meet with the Union for purposes of collective bargaining, and by granting unilateral wage rates and other benefits in said unit on November 19, 1962, Respondent has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a)(5) of the Act. 5. By the above conduct, and by interrogation of employees , and various threats of reprisal and promises of benefits to them as found above, Respondent has inter- fered with , restrained, and coerced employees in the exercise of rights guaranteed to them by section 7 of the Act, thereby engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 6. The above unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2 (6) and (7) of the Act. 7 Except as found above , Respondent has not engaged in unfair labor practices as charged in paragraph IV(b)(6 ), (7), (12), and ( 13), and other portions of the complaint. RECOMMENDED ORDER On the basis of the above findings of fact, conclusions of law, and the entire record in the case , I recommend that Respondent, Rockwell Manufacturing Company, Kearney Division , its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to recognize or bargain collectively with the Union as the exclusive representative of all employees in the above -named appropriate unit, by granting unilateral wage raises or other benefits to employees, or otherwise. (b) In any manner interfering with the efforts of said Union to bargain collectively with Respondent on behalf of employees in the unit aforesaid. (c) Interrogating employees concerning their union membership , sympathies, activities, and voting desires, in a manner constituting interference , restraint, or coercion in violation of Section 8(a) (1) of the Act. (d) Threatening employees with reprisals such as closing of its plant , removal of machinery, denial of wage raises or other benefits , discharge, or less favorable working conditions , if the Union came into its plant. 28 See May Department Stores Co . v. N.L R B., 326 U.S 376, and J Weingarten, Inc, 141 NLRB 22 . General Counsel and the Union argue that a broad order should issue be- cause Respondent was involved in a prior unfair labor practice proceeding at this plant, which was settled by stipulation providing for a Board order and consent decree The formal file in the case is not readily available to the Trial Examiner and, lacking any advice from General Counsel's representative as to the scope of the complaint therein, the details of the settlement, or terms of the consent decree, I must assume that the settle- ment involved the usual nonadmission of liability by Respondent , and cannot assume the opposite , hence I am not justified in using the mere fact of issuance of a complaint charg- ing unfair labor practices , or the settlement of that case , as evidence warranting a broad order 752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (e) Promising employees wage raises or other benefits if they vote against or abandon the said Union. (f) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of rights guaranteed to them by Section 7 of the Act. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclusive representative of all employees in the aforesaid appropriate unit and, if an understanding is reached, embody such understanding in a signed agreement. (b) Post at its plant in Kearney, Nebraska, copies of the attached notice marked "Appendix." 29 Copies of such notice, to be furnished by the Regional Director for the Seventeenth Region, shall, after being duly signed by Respondent's repre- sentative, be posted by Respondent immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or covered by any other material. (c) Notify said Regional Director, in writing, within 20 days from date of receipt of this Intermediate Report, what steps Respondent has taken to comply herewith 30 It is further recommended that paragraph IV(b)(6), (7), (12), and (13) of the complaint be dismissed. ^ If this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice. If the Board's Order is enforced by a decree of a United States Court of Appeals, the notice shall be further amended by substituting the words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursu- ant to a Decision and Order." "If this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL, upon request, bargain collectively with United Steelworkers of America, AFL-CIO, as the representative of all our employees in the bargain- ing unit described below with respect to rates of pay, wages, hours of em- ployment, and other conditions of employment, and if an understanding is reached, embody such an understanding in a signed agreement. The bargain- ing unit is: All production and maintenance employees in our plant in Kearney, Nebraska, including leadmen, factory clerks, boiler attendants, and hourly rated inspectors, but excluding office clerical employees, draftsman trainees, professional employees, guards, watchmen, and all supervisors as de- fined in the Act. WE WILL NOT refuse to recognize or bargain collectively with United Steel- workers of America, AFL-CIO, as the exclusive representative of all em- ployees in the bargaining unit described above, by granting unilateral wage raises or other benefits to employees, or otherwise. WE WILL NOT in any manner interfere with the efforts of the above-named Union to bargain collectively with us on behalf of employees in the unit aforesaid. WE WILL NOT interrogate our employees concerning their union member- ship, sympathies, activities, or voting desires in a manner constituting inter- ference, restraint, or coercion in violation of Section 8(a)(1) of the Act. WE WILL NOT threaten employees with reprisals such as closing of our plant, removal of machinery, denial of wage raises and other benefits, discharge, or less favorable working conditions, if the above Union comes into our plant. NORMAN DAVIS, INC. 753 WE WILL NOT promise employees wage raises or other benefits if they vote against or abandon said union. WE WILL NOT in any like or related manner interfere with, restrain, or coerce our employees in the exercise of rights guaranteed under Section 7 of the Act. All our employees are free to become or remain , or to refrain from becoming or remaining, members of said Union or any other labor organization. ROCKWELL MANUFACTURING COMPANY KEARNEY DIVISION, 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, 1200 Rialto Building, 906 Grand Avenue, Kansas City, Missouri, 64106, Telephone No. Baltimore 1-7000 , Extension 731, if they have any questions concerning this notice or compliance with its provisions. Norman Davis, Inc. and Raymond Marin. Case No. AO-58. May 23, 1963 ADVISORY OPINION This is a petition filed on April 24, 1963, by Raymond Marin, herein called the Petitioner, for an Advisory Opinion in conformity with Sections 102.98 and 102.99 of the Board's Rules and Regulations, Series 8, as amended. On May 6, 1963, Ross M. Madden, Regional Director for the Thir- teenth Region of the National Labor Relations Board, herein called the Regional Director, filed a motion to intervene setting forth the jurisdictional facts developed in his investigation of the representa- tion petition in Case No. 13-RM-683 filed by Norman Davis, Inc., herein called the Employer. The motion of the Regional Director to intervene is hereby granted. Thereafter the Regional Director filed herein a copy of the commerce data questionnaire submitted in Case No. 13-RM-683 as well as a copy of a letter and affidavit from the Employer's accountant dated April 17,1963. In pertinent part, the petition, intervention, commerce data ques- tionnaire, and letter and affidavit of April 17, 1963, allege as follows : 1. The Petitioner and Harold Freed are party defendants in a chancery proceeding, docket No. 63 C 5156, presently pending in the Circuit Court of Cook County, Illinois. The complaint in the court proceeding also names, as a party defendant, the Amalgamated Cloth- ing Workers of America, herein called Amalgamated, for whom the Petitioner and Freed allegedly have been acting as employees, agents, and representatives. 142 NLRB No. 88.