TRW, Inc.

TRW SEMICONDUCTORS, INC. 415 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Section 2(6) and '(7) of the Act. 5. Respondent has not discriminated with respect to the hire and tenure of employment, and terms and conditions of employment, of C. C. Shoemake, Paden Suddeth , and Timothy Mabry, within the meaning of Section 8(a)(3) and (1 ) of the Act. [Recommended Order omitted from publication.] TRW Semiconductors, 'Inc., a Subsidiary of TRW, Inc. and Inter- national Association of Machinists and Aerospace Workers, AFL-CIO. Case 31-CA-27 (formerly 21-CA-6225)". June '15, 1966 DECISION AND ORDER On January 24, 1966, Trial Examiner' Maurice M. Miller issued his Decision in the above-entitled proceeding, finding that Respond- ent had engaged in and was engaging in certain unfair-labor' prac- tices, and recommending that it, cease and desist therefrom and _,take certain affirmative action, as set forth in the attached Trial-Exam- iner's Decision. The Trial Examiner further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint:' Thereafter, the Respondent filed :exceptions to the Trial Examiner's Decision and a supporting brief.' - Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Chairman McCulloch and Members 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 Trial Examiner's Decision and the entire record in this case, including Respondent's exceptions and brief, and hereby adopts the findings, conclusions, and recommendations -of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] i The Respondent has requested oral argument. This request is hereby denied because the record, the exceptions, and the brief adequately present the issues and the positions of the parties. DECISION OF THE TRIAL EXAMINER STATEMENT OF THE CASE Upon a charge and amended charge filed October 9, 1964, and November 18, 1964, respectively, and duly served thereafter, the General Counsel of the National Labor Relations Board caused a Complaint and Notice of Hearing to be issued and served upon TRW Semiconductors, Inc., a subsidiary of TRW, Inc., which will be designated as Respondent in this Decision. The complaint was issued June 7, 1965; therein, Respondent was charged with unfair labor 159 NLRB No. 43. 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD practices affecting commerce within the meaning of Section 8(a)(1) of the National Labor Relations Act, as amended . 61 Stat. 136, 73 Stat. 519. Through its subsequently filed answer, Respondent conceded certain jurisdictional allega- tions set forth within the complaint, but denied the commission of any unfair labor practice. Pursuant to notice, a hearing with respect to the issues was held at Los Angeles, California , on July 29, 1965, before Trial Examiner Maurice M. Miller. The General Counsel and Respondent were represented by counsel ; the Complainant was represented by its Grand Lodge representative . Each party was afforded a full opportunity to be heard, to examine and cross -examine witnesses, and to introduce evidence pertinent to the issues . Since the hearing's close, briefs have been received from counsel for the General Counsel and Respondent; these have been duly considered. Upon the entire testimonial record , documentary evidence received, and my observation of the witnesses , I make the following: FINDINGS OF FACT I. THE BUSINESS OF RESPONDENT Throughout the period with which this case is concerned, TRW Semi- conductors, Inc. has been a California corporation , with its principal office and place of business in Lawndale , California; there it has been engaged , at all times pertinent herein, in the design, development, manufacture , sale, and distribution of silicon semiconductor devices. During the 1964 calendar, year, Respondent, in the course and conduct of its business operations , designed, developed, manu- factured, sold, and distributed, at its place of business, products valued in excess of $500,000, of which products valued in excess of $50 ,000 were shipped from Lawndale, California, directly to various out-of-State points. Upon the complaint's jurisdictional allegations, which are conceded to be factually correct, I find that Respondent is now, and at all times material has been, an employer within the meaning of Section 2(2) of the Act , engaged in commerce and business activities which affect commerce within the meaning of Section 2(6) and (7) of the Act, as amended . With due regard for the juris- dictional standards which the Board presently applies-see Siemons Mailing Service, 122 NLRB 81, and related cases-I find assertion of the Board 's juris- diction in this case warranted and necessary to effectuate statutory objectives. II. THE LABOR ORGANIZATION INVOLVED International Association of Machinists and Aerospace Workers, AFL-CIO, designated as the Complainant or Union , within this Decision, is a labor ' organi- zation within the meaning of Section 2(5) of the Act, as amended, which admits certain' of Respondent 's employees to membership. III. THE UNFAIR LABOR PRACTICES A. Issue General Counsel contends, herein, that Respondent interfered , with, restrained, and coerced 'its •Lawndale, California, *workers through : , ( 1) 'Statements which Respondent's vice-president and general manager, Q. T. Wiles, purportedly made to certain designated employees ; (2) certain statements in representation cam- paign literature which Respondent 's management posted or distributed ; and (3) certain statements purportedly made in speeches which Vice President and Gen- eral Manager Wiles made to three- groups of employees, shortly before the scheduled representation election. With respect to these contentions, however, Respondent submits that-wherever General Counsel's charges rest upon dis- puted facts-reliable, probative, and substantial evidence sufficient to provide preponderant support for such charges has not been proffered . Regarding Respondent's conceded distribution of campaign material before the scheduled representation election, counsel for the firm contends that no segment of Respondent's course of conduct merits proscription , since none of it should be considered reasonably calculated to interfere with , restrain , or coerce employees in their exercise of statutorily guaranteed rights; counsel for Respondent con- tends, further, that its conduct was privileged pursuant to Section 8(c) of the statute and reflected nothing more than constitutionally protected free speech. TRW SEMICONDUCTORS, INC. 417 B. Facts 1. Background a. Respondent's management Despite Respondent's formal denial, counsel for the firm finally stipulated that, throughout the period with which this case is concerned, Q. T. Wiles served as Respondent's vice president and general manager, responsible for the manage- ment of the firm's Lawndale, California, plant. Concurrently, R. S. Putnam was, I find, Respondent's director of industrial relations. While serving in these designated capacities, Wiles and Putnam were clearly supervisors within the meaning of Section 2(11) of the statute. Throughout the period with which this case is concerned, I find they functioned as Respondent's agents, within the firm's Lawndale, California, plant, b. The representation election Following a representation petition which the Union had previously filed (Case 21-RC-8894) the Regional Director for Region 21 scheduled an election for Respondent's production and maintenance employees on July 9, 1964, within the Company's plant. The workers concerned were to choose or reject union representation. Though direct testimony regarding the petition's filing date was never prof- fered, there is record support for a determination that Respondent was given notice regarding its filing on March 16, 1964. Director of Industrial Relations Putnam, I find, prepared and posted' the 'first of a lengthy series of bulletins, regarding the Union's petition for certification, on the date designated. When first advised with respect to the Union's petition, Respondent forthwith prepared a memorandum bulletin, the first in a lengthy series, calculated to make clear the firm's position regarding the prospect of plant unionization. Between March 16 and July 9, some 47 bulletins, letters, posters, placards, and leaflets were posted on company bulletin boards, mailed to Respondent's workers, or dis- tributed otherwise in Respondent's behalf. The Union lost the election. Protesting that certain aspects of Respondent's course of conduct had improperly affected the election results, the Union sub- sequently filed objections thereto. With respect to these post-vote developments, Respondent prepared, posted, or distributed some seven bulletins; most of these, however, purported to report- though in somewhat slanted language-the progress of the Regional Director's investigation, and the Board's final disposition of the Union's -protest. Though direct testimony regarding these post-vote events has not been proffered for the present record,' various statements found within Respondent's, later bulletins-which have not been challenged with respect to their factual content-will warrant a determination that the Board's Regional Director finally found. the Union's protest -meritorious; he 'directed a second election.. -Within, his November 13 bulletin, Director' of Industrial Relations Putnam advised • Respondent's workers that the Board herein, confronted with Respondent's appeal from the Regional Director's prior ruling, 'had confirmed his decision that, a second) vote should be held. With respect to most of Respondent's campaign material, prepared, posted, and distributed, before the scheduled July 9 vote, General Counsel presently proffers no statutory challenge. His contention that Respondent's course of conduct trans- gressed permissible limits rests solely upon testimony and documents,,which purport to show that: 1. Vice President and General Manager Wiles, some 2 months before the sched- uled election date, made certain remarks, during a conversation with two plant workers, reasonably calculated to interfere with, restrain, and coerce them in the exercise of their statutory rights. 2. Statements subject to statutory proscription were made within five designated documents posted or distributed in Respondent's behalf. 3. Vice President and' General Manager Wiles made certain statements during a speech to Respondent's workers, the day before the election, which merit charac- terization as violative of the statute. 243-084- --67-col 159-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD In short, General Counsel contends that Respondent's management went too far during its campaign to forestall unionization, in seven specific respects. Considera- tion of these matters-both separately and within their total context-must, there- fore, be our present concern. 2. Respondent's challenged conduct a. Statements of Respondent's general, manager With respect to paragraph 5(a),and (b) within the complaint, General Counsel proffered the testimony of Clara Taylor, formerly one of Respondent's workers. Taylor declared that, some 2 months before the scheduled election was held, she, together with Terry Haight, another worker, met with General Manager Wiles to discuss a grievance matter. Their conference lasted approximately ,:1 hour; pre- sumably, most of the discussion concerned the grievance., When queried' regarding "what was said" however, Taylor testified as follows: Mr. Wiles made the statement,"We do not need a• union in the plant." They would not have it, and they .would fight tooth and nail to, keep any union out TRW. - , _ General Counsel's"witness -could recall nothing further regarding Wiles' purported "strictly anti-union"' remarks. Respondent's general manager was not summoned as a witness with respect to this matter; Taylor's report, therefore, stands 'without tradictio con n. .:,With respect to this narrowly circumscribed record. several comments 'should be made. First: Nothing in Taylor's testimony supports General Counsel's initial con- tention that Respondent's general manager-during the last week •of April or the first week in May workers as to what they thought the'Union could do for them. Since no other testimony was proffered to support this particular charge, paragraph 5(a).within the complaint cannot be considered sustained. Second: Despite the failure' of Respondent's counsel to counter Taylor's testimony with denials or contradiction, no determination seems warranted that Wiles made the comment charged. Within his brief, Respondent's counsel notes that: ; _ 1. Taylor, while a witness, revealed significant bias through her "clear pro- clivity" to• couch testimony in terms calculated to aid the Union's cause. Supportive of this contention counsel cites her conceded conduct as a Union protaganist while in Respondent's hire, the fact that she permitted the use of her home for,Union meetings; and the fact that she subsequently served as a Union observer during the scheduled vote. While a witness, further, Taylor freely declared her strong belief in the values of union membership. 2. With respect to the conversation now under consideration Taylor's recol- lection was limited. Though, concededly, it lasted for one hour, she could recall nothing more than the supposedly questionable remarks of General Manager Wiles, previously quoted. Her testimony provides no context rea- sonably calculated to,reveal the circumstances under which Respondent's gen- eral manager purportedly made the remarks charged , when they were made, why their "grievance" discussion took such a turn, whether Wiles was merely answering a question, or whether his purported statement was volunteered. 3. Taylor's recital stands without corrobation. Thou eh a fellow worker, Terry Haight, had been present, General Counsel did not call her to confirm Taylor's report. His failure to produce her for testimony-despite a record suggestion that she had, likewise, been a strong Union protaganist during the representa- tion campaign-was never explained . Respondent's counsel suggests that Gen- eral Counsel's failure to produce Haight or to explain his failure to do so, warrants a present inference that she would not have corroborated Taylor's recital. 4. The campaign literature prepared, posted, and distributed in Respondent's behalf fails to show any comparable threat that Respondent would not have a union, or that it would refuse to bargain should the Union win certification. To the contrary, Wiles' final' pre-election speech-which will be discussed fur- ther within this decision-contained statements declarative of Respondent's readiness to negotiate with the Union , though it proposed to bargain hard. 5. Taylor's testimony-when closely studied-reveals that she merely quoted Wiles for his statement that Respondent did not need unionization. The bal- ance of her recollection has been couched in terms suggestive of paraphrase TRW SEMICONDUCTORS, INC. 419 rather than quotation. Substantially, Respondent's counsel suggests 'that Tay- lor's testimonial "summing up" with respect to what Wiles said-presumably colored by her clearly revealed disposition to construe such company state- ments in their worst possible light-provides no "reliable probative or substan- tial" proof that Respondent's general manager made the statement charged. These considerations I find 'persuasive. Therefore, despite Respondent's failure to proffer a concrete denial with-respect to Taylor's testimony now under considera- tion, her recitals cannot be considered sufficient to sustain. General Counsel's com- plaint paragraph 5(b), previously noted. Within' his brief, Respondent's counsel notes that, while 'previously" pressing its 'objection to conduct which supposedly affected the outcome of the July 9 election, the Union Petitioner never cited these April-May remarks, purportedly made by Respondent's general 'manager, to support its contention that,the election should be, set aside, despite the fact that Taylor gave no less than six, affidavits , or statements to Board, representatives, beginning on August 4, 1964,;slightly less than l ,month following the vote. However, this pur- ported "fact" was not proffered for the record in the present case; my determination, therefore, cannot rest, even partially, thereupon. The Board, nevertheless, may take official notice with respect'to the content of its records. Should-the record concern- ing the union 'objections to the election held in Case 21-RC-8894 reveal that the Union Petitioner' failed to cite or placed no'reharice upon General Manager Wiles, purported declaration of 'his determination'to resist unionization "tooth and nail" such a failure 'would pr'ovide'further'support for my present determination that Tay- lor's testimony regarding the statement merits rejection. With matters in this pos- ture, no further consideration need be given Respondent's contention that, even if General Manager' Wiles' did state Respondent "would fight tooth and nail" to fore- stall'uniohization', his state'ment'to'that effect should be considered protected under Section 8(c), of the ' statute,' and/or too ;isolated -to warrant Board sanctions. b. Respondent's campaign literature Between July 1 and 9, `Respondent's management concededly prepared a series of leaflets, placards, and letters-part of its sustained campaign of opposition to the Union's search for designation as its workers' statutory representative-which Gen- eral Counsel,presently challenges as violative of the statute. Generally, these com- munications were calculated 'to convey the message that the Union' s designation would, subsequently; generate strikes,' with'resultant violence, and with certain wage losses which 'the strikers would' find it difficult to recoup. Further, Respondent's management, suggested , therein, that the Union's designation might persuade some company customers' to place their business with- other firms, thus jeopardizing job tenure for Respondent's workers. These themes, developed in several different ways, were repeated throughout- the 2-week period which preceded the scheduled vote. For example, within management's July 1 letter-which General Manager Wiles and Director of Industrial Relations ---Putnam, jointly directed to their "fellow" employees-Respondent's workers were asked whether they wished to continue the Company's "way of peace, 'friendship, harmony and person-to-person dealings" or bring into the 'plant a system' "which"has a lamentable record of strikes" run by outside professionals. The employees. were reminded that the firm's previous losses had- been substantial, and that it' was currently " fighting-successfully-a real bat- tle" for business survival . Within this context, Respondent's management declared that "Unions mean strikes," pointing out that the Union herein had been involved in 11 major strikes within the Los Angeles area during the previous 2 years. Wiles and Putnam stated that, should Respondent' be struck, this "could have" a substan- tial impact on the firm's business, its effort to gain new orders, to make more jobs, and to get the Company back on a solid footing. Noting that "when a union takes over a plant this is a threatening sign of trouble " Wiles and Putnam further declared: ' ' - - ' . A completely' natural reaction on the ,part of customers for whom we supply all their requirements is to think, "Semiconductors may be in for union trou- ble. I'd better protect myself and put part of the work some place else." You can see the sudden effect that this may have on jobs and work in the plant. Respondent's workers were told that, regardless of the election's outcome, manage- ment would do its best to make Semiconductors a strong and stable company; Wiles and Putnam declared, however, that they did not intend to "become a sta- tistic" listed with three other TRW divisions sold during the previous year because 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD they were losing money or did not fit in with TRW's growth plans. Finally, Respondent's workers were reminded that Semiconductors had earned money in only 2 of the 10 years of its existence. With a covering letter bearing the same July 1 date , Director of Industrial Relations Putnam sent some 60 to 80 workers on leave of absence copies of an open letter to Respondent's employees previously distributed by a group of girl workers. Within his letter, Putnam challenged Respondent 's workers to try to name "one place in Los Angeles" with an "outside union" where there hadn't been a strike. Declaring . that Respondent did not want trouble , dissension, bitterness, and strikes, Putnam reiterated Respondent's position that unionization would be bad for Respondent's business ; he noted that: Second, we want all the business we can get. TRWS is the sole source of supply for many of our customers. These companies would know if a union got in here. They'd worry too about the strikes . They'd say, "we can't afford to have all our business with one company. We'd better split it with at least one other company." The forwarded "open letter" rhetorically queried Respondent's workers with prior experience in unionized plants, whether such plants had had lay-offs and strikes. Further, the workers were reminded that , following a lengthy strike, they would have to work a long time to make up for wage losses. The letter concluded with a clear suggestion that, should the Union be designated the workers' representative, their jobs and future would be jeopardized. Sometime during this period, Respondent posted or distributed a placard headed "HOW STRIKES CAN HURT!!!" which purported to set forth in tabular form how much pay workers receiving certain designated rates of pay would lose during 5-week, 10-week or 20-week strikes, and how much time would be required to recoup sums thus lost at certain designated wage increase levels. These tables were introduced with the statement that: The union is hard pressed to name a single company where it has forced its way in that hasn't had a strike. Strikes hurt. They mean concern and worry at home, weary hours walking the picket line, and a long parade of payless pay days. Reference was made to four lengthy IAM strikes within the Los Angeles area; Respondent's workers were told that there were "many, many" more. Respondent's newsletter "FORWARD CURRENTS" dated July 3 and designated a special election issue, contained substantially similar statements. The rhetorical question presented in management's July 1 letter was recast as follows: Do -you want- to continue the TRWS way of harmony , friendship- and person- to-person dealings-or do you want to bring into this plant an outside union 1 which ' everywhere has brought strikes, bickering,, hard feelings, and trouble- with hard-earned cash taken out of your paycheck. Respondent's workers were once more reminded that "unions mean strikes" with a, resultant "risk" of adverse effects upon the firm 's effort to gain new orders,, make more jobs, ' and strengthen .' its business position.' One newsletter page 'headed "THE TRAGEDY OF UNION VIOLENCE" contained several pictures which pur- ported to show strike violence,or its result. Though such violence was not, specif-. ically, -charged to, the Union herein, the newsletter page' in question did contain a subheading, "IAM's"Bitter Strike Record" ' which was not clearly limited to a following column of relevant text-within which the Union's participation in 11 major strikes in the Los Angeles area during the previous 2 years, with resultant wage losses for the workers - concerned, was recapitulated. - Within the newsletter, further, Respondent's workers were- told that: The Union can promise anything, but can it deliver? In fact, it may not be, able to keep all the things employees already have. No on can assume that if an outside union gets into our -Company that all the fine things we now enjoy will automatically be continued. If TRWS should be forced into nego- tiation with the Union, the Company would have to begin from scratch and bargain hard to protect our competitive position. Everything we now have would be put on the bargaining table. [Emphasis supplied.] Finally, Respondent's workers were told that-though a simple majority of those voting could win designation for the Union as their bargaining representa- TRW SEMICONDUCTORS, INC. 421 tive-everyone else "will be forced to do what the union dictates" should it win such status. Thus: People who didn't care enough to vote may find themselves walking a picket line for many payless pay days. And these same people who didn't bother to vote, may find themselves out of a job because they said something or did something that displeases the union bosses. The union wants a union shop and under the normal union contract, the Company has no choice but to fire you if the union expells you because it doesn't like what you're doing. For these reasons, Respondent urged its workers not to be neutral on election day but to care about their jobs and future, and to vote. c. The "25th hour" speech On July 8th , Vice-President and General Manager Wiles spoke to Respondent's workers at several shift meetings , held on company property, during each shift's working time . The record establishes that workers on each shift were notified, by their supervisors , that such meetings would be held . Quite a few similar meetings, devoted to management presentations regarding matters considered of employee concern, had, I find, been held previously . Testimony proffered in Respondent's behalf-which stands in the record without significant contradic- tion-will warrant a determination that the firm's employees were merely notified regarding the time and place of the July 8th meetings , but that they were not told attendence was required . Wiles, I find , spoke from a prepared script, which he had previously reviewed with Respondent's counsel, Director of Industrial Relations Putnam and one of the latter's assistants . Following his introductory remarks, Respondent's general manager contrasted the Union's record which he described in pejorative terms, with Respondent 's record in dealing with employ- ees. This portion of the general manager's script , set down in outline form, con- tains a statement, presumably repeated in his remarks , dealing with the conse- quences of compulsory unionism or the union shop; Respondent's workers were to be told-and were, I find, told-that such a contractual arrangement would deprive them of freedom of choice , and .that "expulsion from union means loss of job." Following a reference to Respondent 's wage-increase record, personnel policy, and fringe benefits, the general manager's script expressly called for him to con- tinue as follows: Now the union has swung blindly at this record of achievement . They've made wild claims about all the things they would do for you. That's easy for them to say, easy for them to promise anything and everything. But how can they deliver? They can't. In fact, they may not even be able to keep all the things you now have. No one can assume that if an outside union gets into our company that all the fine things we now enjoy would automatically be continued . If we should be forced into negotiation with the union , the company would have to begin from scratch and bargain hard to protect our competitive position. [Emphasis supplied.] With respect to this portion of Wiles' script , former Director of Industrial Relations Putnam and his subordinate both testified , categorically, that the general manager confined himself to his prepared remarks, which were proffered for the considera- tion of Respondent's employees without elaboration or deviation . General Counsel, however, proffered testimony by two workers who heard Wiles' speech at different shift meetings ; their testimony regarding his remarks in this connection varies somewhat from that suggested by the script's language. Clara Taylor, who heard the speech on the day shift, testified that: He said that if the union got in-it would be unfortunate to have the union in-we would have to start from scratch and we would lose all the benefits we have now. We would lose our vacation . We would lose our holiday. We would lose our sick days. We would go back to $ 1.65, which is scratch. [Emphasis supplied.] Kleola Ivy, who heard Wiles' speech on the swing shift , testified that Respondent's general manager declared the workers did not need a union, that their "benefits" 422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD currently in effect would be put on the table , that the respondent firm would "start from scratch" and that Respondent's workers "could possibly lose" what they already had. Wiles' script, following a reference to Respondent 's recent progress in building sales, called for him to mention "the threat of the union" hanging over the firm's head. In this connection he was to read , and, I find, did read, two communications received from company customers . The first, IBM, within a letter dated April 17, 1964, requested information as to whether , Respondent "has" any union affiliations; if so, the firm was asked "when does your present contract expire?" Such infor- mation was characterized as "very important" to permit IBM's ascertainment of any future impact on space program production schedules . The second, sent by Tran- sistor Devices, Inc. as a June 31, 1964 , [sic] telegram, declared that the sender had received a report of possible shipment delays due to labor negotiations . Respond- ent was asked to notify the sender immediately if any of its orders were affected; further, Respondent was queried as to whether it had a second plant source of supply. Following his reading of these communications , Wiles' script called for him to declare that an overwhelming "NO" vote in the election would be the best way to answer these customers , to earn customer confidence, and to get on with the task of building Respondent 's business and job security. With respect to this portion of Wiles' purported remarks, Taylor's testimony- though she referred to three communications and mistakenly attributed the sub- stance of the communication from Transistor Devices, Inc. to IBM-clearly would support a determination that Respondent 's general manager, substantially, made the remarks specified within his script. Ivy professed a somewhat different recollection; she declared that Wiles had said Respondent would run into difficulties getting orders from various companies if unionized , since such firms "are" afraid of strikes and delays on their orders. With respect to these several testimonial divergences regarding the content of Respondents' general manager's so-called "25th hour" speech, General Counsel's presentation has failed to convince me that Wiles did deviate from his prepared script in any significant respect . Taylor, who testified that he said Respondent's workers "would lose" their current fringe benefits and suffer wage reductions, was not corroborated ; Ivy recalled the general manager's remark in terms compatible with his script statement that the Union "may not" even be able to retain the benefits which Respondent 's workers then enjoyed. By and large , Wiles seems to have confined his remarks to those set down in his prepared script. I so find. d. The reference to threatened violence On the morning of July 9, Putnam declared , he was advised by one of Respond- ent's engineers that some employees had reported having "heard " about threats of violence, related to the forthcoming representation election. Respondent's director of industrial relations testified that he requested the engineer to seek further infor- mation regarding the source of the reported threats. Meanwhile, however, with the vote scheduled for that afternoon , he prepared a bulletin for distribution to Respondent's workers. This bulletin read, in part, as follows: THREATENED VIOLENCE WILL NOT BE TOLERATED No doubt you have heard the ugly rumors going around that people who don't vote the way some people tell them to will find their tires slashed, will get roughed up or beaten up. We have never faced this type of vicious situation before, so we don't have an established policy. But we want to make our position crystal clear: A few of you who may be considering such action are cautioned THAT THIS TYPE OF BEHAVIOR WILL NOT BE TOLERATED. ANY PERSON CAUGHT IN AN ACT OF VIOLENCE OR THREATEN- ING A TRWS EMPLOYEE WITH VIOLENCE WILL BE DISCHARGED IMMEDIATELY. BEST WAY TO STOP IT It's obvious that we must stop this type of activity in our plant. We ask that all who are eligible to vote go to the polls today . There's one best way to stop and keep out all of this threatened violence. That way is to vote . and by your vote let these unlawful people know how you feel about their actions. TRW SEMICONDUCTORS, INC. 423 With respect to his decision to distribute the bulletin in question, Putnam testified that, since the matter had developed such a short time before the scheduled vote, he had no chance to complete an investigation and to determine whether the threats reported had been made against antiunion or prounion employees; he declared that, "since the possibility existed that both sides could be involved in this sort of action" he decided to publish the bulletin as a precautionary measure. Putnam's testimony shows, without contradiction, that-when his engineer inform- ant reported bearing from employees that they had heard about threats being made-he had requested the engineer to try to determine the names of the employees involved. Because of the time element, however, so Putnam declared, he prepared the bulletin for distribution without awaiting the engineer's return. The bulletin was issued not later than midmorning. With respect to this testimony, General Counsel proffered no rebuttal calculated to cast doubt upon Putnam's recital dealing with the bulletin's genesis. Upon the record considered as a whole, I find no justification for the rejection of Putnam's testimony in this respect. General Counsel's contention, however, that Respond- ent's director of industrial relations seized upon the engineer's report as justification for a last-minute thrust, calculated to disparage the union campaign, will be con- sidered further within this Decision. C. Analysis and conclusions 1. Preliminary statement The collected decisions of the National Labor Relations Board now fill 156 volumes; throughout some 30 years, they have been subjected to judicial review, criticism, modification, or confirmation. Within the time-span designated, the Board has many, many times been required to determine the propriety of state- ments, chargeable to respondent employers, which have been challenged as con- stituting "interference, restraint or coercion" directed against workers, with respect to their exercise of rights statutorily guaranteed; determinations have been made finding such statements privileged or proscribed, within the widest possible variety of factual contexts. Though generalization-with respect to those principles which have guided Board determinations regarding statements challenged as violative of Section 8(a)(1) particularly-may be dangerous. certain broad comments descriptive of prevailing agency concepts within this field would surely seem to be warranted. By and large, save with respect to statements found clearly threatening or coercive on their face, determinations regarding the propriety of a particularly challenged employer's speech have been made with due regard for its total context. The Board, with judicial concurrence, has considered relevant econmic realities, whatever particular employer-employee relationships the record might reveal, and the circum- stances under which the challenged statements were made. See, e.g. N.L.R.B. v. Morris Fishman and Sons, Inc., 278 F.2d 792, 796 (C.A. 3); Accord: N.L.R.B. v. Wagner Iron Works, 220 F.2d 126, 139 (C.A. 7); Joy Silk Mills, Inc. v. N.L.R.B., 185 F.2d 732, 739 (C.A. D.C.); N.L.R.B. v. Ford, 170 F.2d 735, 738 (C.A. 6). See also: Federal Envelope Company, 147 NLRB 1030, 1039; The Lord Baltimore Press, 142 NLRB 328, 328-329, in this connection. Within his brief, Respondent's counsel has noted-with respect to a particular statement which General Counsel has challenged herein-that such a statement "cannot rightfully be lifted out of its context, [dissected], strained, and then pigeon-holed" whenever a determination must be made regarding its statutory - propriety. Considered as theoretical doctrine, certainly, counsel's comment certainly seems well within the mainstream of Board and court decisional pronouncements. Consistently, there- fore, the Board has held that the significant thrust of challenged campaign material cannot be properly assessed by plucking out statements therefrom which, taken by themselves, might be considered less than coercive. With judicial concurrence, agency determinations have been bottomed, rather, upon the "cohesive combina- tion" of respondent's statements, which, considered with due regard for their context, have been found violative of the statute. Cf. Daniel Construction Com- pany v. N.L.R.B., 341 F.2d 805, 811 (C.A. 4). Due note has been taken in this connection, that statements calculated to move workers, with respect to some desired course of conduct, may be, and frequently are, framed in the language of opinion. Such statements, however, have been found to possess coercive force or thrust, when directed to worker-listeners or readers, derived from their source, their content, the manner of their presentation, their timing, and their background. 424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With these basic considerations in mind, my present determination regarding the propriety of Respondent's challenged statements, herein, has not been bottomed, merely, upon those particular "words" which company spokesmen may have chosen for communication, rather, my determination has been derived from whatever judgments the record may warrant with respect to their so-called impact upon Respondent's workers, within the total "mix" offered for their consideration. See Exchange Parts Company, 131 NLRB 806, 812, affil. 375 U.S. 405. The congeries of events-both acts and words-has been reviewed; based upon such a review, conclusions have been reached as to whether Respondent's challenged pronounce- ments represent part of a coherent, patterned course of conduct, with relation to which they became suffused with coercive impact. 1. Respondent's campaign literature Previously, within this decision, reference has been made to Respondent's sus- tained campaign-beginning with its receipt of notice regarding the union-filed representation petition-calculated to forestall the Union's designation or selection as bargaining representative for the firm's workers. Within the 2-week period which preceded the scheduled vote, the sense and pur- port of Respondent's communications became clearer; their thrust, certainly, was sharpened. Respondent's workers were told repeatedly, with varying degrees of stress, that their choice of union representation would lead to strikes; that strikes generated violence; that many "payless pay days" would be their lot should a strike take place; that customers, concerned with the prospect of strikes, would very probably be persuaded to satisfy their needs elsewhere; that Respondent's newly demonstrated capacity to function profitably would be undermined thereby; and that job security for Respondent's workers would, therefore, be jeopardized. Though particular communications, within which these comments were made, may generally have been couched in verbiage susceptible of characterization as "views, argument or opinion" protected by Section 8(c) of the statute, such semantic manipulation cannot immunize them from statutory proscription. Regard- ing a comparably sustained preelection campaign, the Board has held that: This unremitting effort on the part of the Respondent to impress upon the employees the dangers inherent in their selection of the Union as their bar- gaining agent, particularly the danger of job loss, followed up by the baleful representation of the prospect of violence, physical injury, and property damage as the ordinary result of voting for the Union in the election, was not an attempt to influence the employees by reason, but was an appeal to fear. Characterizing the preelection campaign summarized within the quotation as "intimidatory in nature" and intended to convey the threat of job loss and physical violence should the union win the election, the Board found it reasonably calcu- lated to interfere with, restrain, and coerce employees, with respect to their exer- cise of rights statutorily guaranteed. Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 552. Since Respondent's campaign, described herein, was likewise calculated to generate fears of trouble, physical violence, and monetary loss, those portions which General Counsel presently challenges, I find, do merit statutory proscription. Whether or not one views the specific communications which General Counsel has challenged, considered by themselves, as expressive of views, argument or opinion, the result should be the same, since "[e]ven though such statements may be expressive of opinion only, if their reasonable tendency is coercive in effect, they are violative of Section 8(a)(1)." See N.L.R.B. V. E. S. Kingsford, d/h/a Kingsford Motor Car Company, 313 F.2d 826 (C.A. 6), and cases therein cited. Further, reference should be -made to the statement in Respondent's July 3d newsletter that, "The union wants a union shop and under the normal union con- tract, the company has no choice but to fire you if the union expells (sic) you because it doesn't like what you're doing." This statement, though not couched in specifically coercive terms, reflects a threat bottomed upon two serious mis- representations. First, Respondent designates union-security contracts as normal, without noting the fact that such contracts must be bargained for, and derive not from the union's desire, merely, but from consensus. Secondly, the statement contains a subliminal misrepresentation regarding the state of the law, since it fails TRW SEMICONDUCTORS, INC. 425 to note the specific statutory limitations which Section 8(a)(3) and (b)(2) place upon the freedom of labor organizations and employers to cause or effectuate discriminatory discharges. Since the statement in question, therefore, clearly conveys a threat that Respondent Company, functioning under some union security contract, would "fire" workers subjected to union expulsion because they "said something or did something that displease[d] the union bosses," determination seems warranted, that it possesses a coercive thrust meriting statutory interdiction. I so find. Respondent has defended its July 9 bulletin, with respect to threatened vio- lence, on the ground that it constituted merely a temperate warning that violence directed against Respondent's workers would not be tolerated; further, Respondent contends that neither the Union nor any particular employee group was being blamed, therein, for threatening such conduct. Measured in tone the bulletin, indeed, may have been; due consideration leaves me convinced, however, that Putnam's decision to have it published clearly derived from Respondent's deter- mination to buttress with purported proof its previously mounted campaign to, link the Union herein with bitterness, "bad blood," and violence. Within the bulletin, Putnam declared his lack of doubt that Respondent's workers, generally, had heard "ugly rumors going around" with respect to possible - violence; this; despite his concession; while a witness herein, that such rumors had been reported "going around" merely within a single department. Further, note should be taken, in this connection, that Putnam's knowledge with respect to such co-called "ugly rumors" had been derived from second degree-possibly even third degree-hear- say, which had included no source specification. Respondent's workers were told, however, that their vote, during the election scheduled later that day, constituted the best way to "stop and keep out" threatened violence. Viewed within the con- text of Respondent's sustained campaign to link the Union herein with violence and strikes, and to persuade the workers concerned to "keep" unionization "out" so far as Lawndale was concerned, the bulletin, subliminally but clearly, did designate union supporters as responsible for the so-called "ugly rumors" which it purported to counter. Thus, the bulletin provided Respondent's campaign with a climactic sensation-which union spokesmen had no chance to rebut-calculated to link the previously-reported predisposition of-unions to violence with current within-plant developments. So construed, the bulletin reflected something more than mere `Mews, argument or opinion" statutorily protected; rather, it contained misrepre- sentations of fact and conclusions calculated to override considered judgment, and thus interfere with, restrain, and coerce, Respondent's workers in their exercise of rights statutorily guaranteed. I so find. 3. The challenged "25th hour" speech Within a comparatively recent case-Marsh Supermarkets, Inc., 140 NLRB 899, 901, 902, enfd . 327 F.2d 109, 111 (C.A. 7)-this Board was called upon to determine whether: speeches [which] included such statements as "If a union got in and we started negotiating, that everything would be wiped clean-all the benefits," and "If the Union got in you will have to start from scratch." .. . violate Section 8(a)(1) of the statute . It found, with judicial concurrence, that such statements were really calculated , substantially, to convey the message that should the union therein win two scheduled elections, respondent 's workers would lose some of the benefits which they then enjoyed, particularly their then-current vacation plan, and would have to "start from scratch." So construed, the speeches under consideration were found to have contained threats of benefit loss and economic reprisal which reasonably tended to interfere with , restrain, and coerce workers in connection with their exercise of Section 7 rights. Previously, within this Decision, comparable statements within General Manager Wiles' July 8th speech have been noted. Consistently with General Counsel's con- tention, which he bottoms upon this Board 's Marsh Supermarkets rationale, Wiles' remarks, particularly with reference to the matter now under consideration, must be considered violative of the statute . As the Court of Appeals for the Seventh Circuit, which enforced the decision in question , noted: The Board may reasonably infer that "listener-employees" would take such statements as threats that benefits would be lost, and threats of further economic reprisal . Within his brief, Respond- 426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ent's counsel has characterized Marsh Supermarkets as distinguishable from the present matter: . ... in that the remarks of the employer there specified that employees would lose existing benefits that they presently enjoyed and, more particularly, named benefits that would be lost .. . The contention is made that no such threat was made in Wiles' speeches. With due regard, however, for the total context within which the speeches were made, counsel's contention that Marsh Supermarkets derived from a distinguishable situa- tion fails to persuade. True, Wiles did not-concurrently with his remarks previ- ously noted-particularly designate those benefits which would be lost. His prepared script, from which he purportedly did not deviate, reveals, however, that his declaration: . they [the union] may not even be able to keep all the things you now have . . . [Emphasis supplied.] directly followed his detailed specification of Respondent's 10-year record with respect to wage increases, fringe benefits, working conditions, and personnel poli- cies. True, further, Respondent's general manager, so I have found, made no posi- tive declaration that the firm's workers "would lose" benefits which they presently enjoyed; with due regard for my credibility resolution in this respect, previously noted, determination has been made that Wiles merely said, within the speeches now under consideration, that union spokesmen "may not" be able to compel Respondent's retention of current fringe benefit programs, should the firm be forced to negotiate a contract. These factual distinctions between the statements found coercive within Marsh Supermarkets and those chargeable to Respondent' s general manager, however, should not with due regard for the realities of industrial life, dictate a different result. Following Respondent's lengthy and concentrated fusillade of letters, bulletins, placards, publications, and posters, the firm's workers-regardless of their sex, age, breadwinner status, or degree of schooling-cannot be presumed to have retained an ear for nuance. True, the Court of Appeals for the Ninth Circuit has noted that American working men can no longer properly be considered craven individuals, fearful to stand up and express themselves freely on the sub- ject of their own welfare. N.L.R.B. v. Roberts Brothers, 225 F.2d 58, 60 (C.A. 9). Nevertheless, presumption can hardly be considered warranted that- confronted with their manager's last-minute preelection speech, climaxing a superheated campaign-Respondent's workers possessed the capacity to make semantic distinctions worthy of some Byzantine logomach. Though Wiles may have said merely, that Respondent would have to begin negotiations "from scratch", and that the firm's workers would "possibly lose" their current bene- fits, or that union representatives "may not" be able to retain such benefits for them, his language was clearly calculated to convey a message that their current fringe benefits would certainly be jeopardized should they designate the Union as their bargaining representative. This was a message reasonably tending to trigger response bottomed on fear. With due regard, then, for the total "mix" within which Respondent's management presented such statements for worker consideration, they clearly merit characterization as coercive. See Surprenant Manufacturing Company v. N.L.R.B., 341 F.2d 756, 761 (C.A. 6); Hendrix Manufacturing Company, Inc. v. N.L.R.B., 321 F.2d 100, 104-105 (C.A. 5); Federal Envelope Company, supra, 1037, 1040, footnote 25; Cf. Decatur Plastic Inc., Case 10-CA-5950 (Decision of Trial Examiner Leedom, August 11, 1965). I so find. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE Certain conduct chargeable to Respondent, set forth in section III, above- since it occurred in connection with the operations described in section I, above- had, and continues to have, a close, intimate, and substantial relation to trade, traffic, and commerce among the several States, and, absent correction, would tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent did engage in and continues to engage in certain unfair labor practices, it will be recommended that it cease and desist therefrom, and take certain affirmative action, including the posting of appropri- ate notices, designed to effectuate the policies of the Act, as amended. TRW SEMICONDUCTORS, INC. 427 CONCLUSIONS OF LAW In view of the foregoing findings of fact, and upon the entire record in the case, I make the following conclusions of law: 1. The Respondent herein, TRW Semiconductors, Inc., a subsidiary of TRW, Inc., is an employer within the meaning of Section 2(2) of the Act, engaged in commerce and business activities which affect commerce, within the meaning of Section 2(6) and (7) of the Act, as amended. 2. International Association of Machinists and Aerospace Workers, AFL- CIO, is a labor organization within the meaning of Section 2(5) of the Act, as amended, which admits certain employees of TRW Semiconductors, Inc., to membership. 3. By conduct chargeable to certain of its management representatives Respondent interfered with, restrained, and coerced its employees with respect to their exercise of rights statutorily guaranteed. Respondent did thereby engage, and continues to engage, in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act, as amended. RECOMMENDED ORDER Upon these findings of fact and conclusions of law, and upon the entire record in the case, I recommend that the Board, pursuant to Section 10(c) of the National Labor Relations Act, as amended, order that Respondent, TRW Semi- conductors, Inc., its officers, agents, successors, and assigns, shall: 1. Cease and desist from interference with, restraint, or coercion of, employees with respect to the exercise of their statutory right to participate in self- organization, to form labor organizations, to join or assist International Associa- tion of Machinists and Aerospace Workers, AFL-CIO, or any labor organiza- tion, to bargain collectively through representatives of their own free choice, and to engage in other concerted activity for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights may be affected by some agreement, hereinafter reached, which may require membership in a labor organization as a condition of employment, authorized within Section 8(a)(3) of the Act, as amended. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act, as amended: (a) Post at its place of business in Lawndale, California, copies of the attached notice marked "Appendix." i Copies of said notice, to be furnished by the Regional Director for Region 31, shall, after being duly signed by a representa- tive of the Respondent be posted, by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in con- spicuous 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; (b) Notify the Regional Director for Region 31, in writing, within 20 days from the date of this Decision, what steps have been taken to comply herewith? 'In the event that this Recommended Order is 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. In the further event that the Board's Order is enforced by a decree of a United States Court of Appeals, the words "a Decree 'of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order." 2In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read : "Notify said Regional Director, in writing, within 110 days from the date of this Order, what steps Respondent has taken to comply herewith." APPENDIX A 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 Relations Act, as amended, we hereby notify our employees that: WE WILL NOT interfere with, restrain, or coerce our employees with respect to their Tight to participate in self-organization, to form labor organi- 428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD zations, to join or assist International Association of Machinists and Aero- space Workers, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own free choice , 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 such activities , except to the extent that such right may be affected by some agreement, hereinafter negotiated, which may require membership in a labor organization as a con- dition of employment, authorized in Section 8(a)(3) of the Act, as amended. All our employees are free to become or remain, or refrain from becoming or remaining, members of any labor organization , except to the extent that this right may be affected by a lawful agreement which requires membership in a labor organization as a condition of employment. TRW SEMICONDUCTORS, INC., A SUBSIDIARY OF TRW, INC., Employer. Dated------------------- By------------------------------------------- (Representative ) ( Title) This notice must remain posted for 60 consecutive days from the date of post- ing, and must not be altered, defaced, or covered by any other material. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board 's Regional Office, 312 North Spring Street, Los Angeles, California 90012, Telephone 688-5840. APPENDIX B On September 2, 1965, counsel for the General Counsel filed a motion to correct the transcript herein. No protest with respect to General Counsel's motion has been presented. The motion is, therefore, granted. Since my review of the record has revealed some further transcript mistakes, with respect to which I deem correc- tion necessary to render the transcript more accurate or comprehensible, notations with respect thereto will be found commingled with those which General Counsel has suggested. Correction of the record, with respect to each of the matters set forth below, is hereby ordered. Page 7, line 16 reads, "beginning with the index," should read, "being the index." Page 10, line 3 reads "1963," should read "1964." Page 10, line 10 reads, "weigh," should read "waive." Page 10, line 15 reads, "appropriate," should read "probative Page 10, line 25 reads, "districution," should read, "distribution." Page 15, line 24 reads, "probative value," should read, "no probative value." Page 17, line 6 reads, "waiver," should read, "labor." Page 27, line 17 reads, "grant," should read, "ground." Page 35, line 20 reads, "getting," should read, "get." Page 40, line 16 reads, "contention," should read, "connection." Page 43, line 15 reads, "than," should read "rather than." Page 44, line 14 reads, "211," should read," 2(11)." Page 55, line I reads, "16," should read, "19." Page 64, line 21 reads, "31," should read, "33." Page 65, line 23 reads, "No. 28," should read, "No. 38." Page 67, line 8 reads, "39," should read, "49." Page 69, line 15 reads, "locality," should read, "legality." Page 71, line 10 reads, "through," should read, "threw." Page 74, line 19 reads, "performing," should read "before me." Page 76, line 7 reads, "or," should read, "of." Page 76, line 16 reads, "included," should read, "concluded." Page 81, line 15 reads, "move," should read, "lose." Page 85, line 10 reads, "Silence," should read, "Violence." Page 87, line 2 reads, "Silence," should read, "Violence." Page 87, line 7 reads, "Bog," should read, "Bob." Page 93, line 13 reads, "errors," should read, "changes." Page 97, line 6 reads, "muffing up," should read, "roughing up." Page 100, line 3 reads, "area on behalf," should read, "area for argument on behalf." Page 106, line 19 reads, "waht," should read, "what."