Hobart Cabinet Co.

In' the Matter of CHARLES C. HOBART, DOING BUSINESS AS HOBART CABINET Co. and AMERICAN FEDERATION OF LABOR Case No. C-1579.-Decided July 22, 1940 Jurisdiction : cabinet manufacturing industry Unfair Labor Practices In general: responsibility of employer for activities of supervisory employees. Interference, Restravnt, and Coercion: interviewing employees individually at a time when they were attempting to organize; grant of wage increases following previous disclaimer of inability to raise wages, to forestall the movement toward self-organization by eliminating the major incentive for such employee action ; taking vote requesting employees to indicate their preference between propositions stated ; inducing employee to deal individu- ally regarding his wages. Remedial Orders : employer ordered to cease and desist unfair labor practices. Mr. Max W. Johnstone, for the Board. Shipman' & Shipman, by Mr. F. L. Shipman and Mr. L. H. Ship- man.; and Mr. Baird Broomhall and Mr. Irvine L. Dungan, all' of Troy, Ohio, for the respondent. Air. W. H. Whetro, of Ironton, Ohio, for the Union. Mr. Edwin L. Swope, of counsel to the Board: DECISION AND ORDER STATEMENT OF THE CASE Upon charges and amended charges duly filed by American Fed- eration of Labor, herein called the Union, the National Labor Rela- tions Board, herein called the Board, by the Regional Director for the Eighth Region (Cleveland, Ohio) issued its complaint dated March 19, 1940, against Charles C. Hobart, doing business under the firm name and style of Hobart Cabinet Co., Troy, Ohio, the respondent herein, alleging that the respondent had engaged in and was engaging in unfair labor practices affecting commerce, within the meaning of Section 8 (1) and Section 2 (6) and (7) of the National Labor Rela- tions Act, 49 Stat. 449, herein called the Act. A copy of the com- plaint and a notice of hearing thereon, were duly served upon the respondent and the Union. - 25 N L. R B, No 80. 727 728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The complaint alleged, in substance, that the respondent interfered with, restrained, and coerced his employees in the exercise of the rights guaranteed them under Section 7 of the Act. The complaint alleged (1) that on or about January 1, 1940, the respondent asked one of his employees why the respondent's employees desired a union and stated to said employee that if the respondent was forced to raise wages it would result in lay-offs; (2) that on February 14, 1940, the respondent distributed cards among his employees and in- structed them to vote on the questions presented thereon,' and to sign and return said cards so marked to the respondent's agents, and (3) that the respondent by various other acts and various other methods and means discouraged the Union and membership therein. On March 29, 1940, the respondent filed an answer to the complaint denying and admitting certain allegations concerning the nature and scope of his business and denying the material averments in the com- plaint relating to the alleged unfair labor practices. Pursuant to notice,- a hearing was held in Troy, Ohio, on April 1, 1940, before Martin Raphael, the Trial Examiner duly designated by the Board. The Board, the respondent, and the Union were represented by counsel and participated in the hearing. Full op- portunity to be heard, to examine and cross-examine witnesses, and to introduce evidence bearing upon the issues was afforded all parties. During the course of the hearing the Trial Examiner made various rulings on motions and objections to the admission of evidence. The Board has reviewed all the rulings of the Trial Examiner and finds that no prejudicial errors were committed. The rulings are hereby affirmed. On May 9, 1940, the Trial Examiner filed an Intermediate Report, a copy of which was duly served on all parties. ' He found that the - respondent had engaged in and was engaging in unfair labor prac- tices affecting commerce within the. meaning of Section 8 (1) and Section 2 (6) and (7) of the Act, and lie recommended that the respondent cease and desist from his unfair labor practices and that he take certain other action to remedy the situation brought about by the unfair labor practices. On June 1, 1940. the respondent filed exceptions to the, Intermediate Report, and on June 14, 1940, he filed a brief. The Board has considered the exceptions and brief filed by the respondent and, save as the exceptions are consistent with the findings, conclusions, and order set forth below, finds them to be without merit. Upon the entire record in the case, the Board makes the following: 1 The questions were as follo^s . "Do you wish a union to bargain for your rate of pay"' and "Or would you rather have things as they are now with nage increase when I can justify it and chance of extra later on"' CHARLES C HOBARf 729 FINDINGS OF FACT 1. THE BUSINESS OF THE RESPONDENT 2 The respondent is an individual doing business as the Hobart Cabinet Company. He maintains and operates a plant located in Troy, Ohio, where he manufactures filing cabinets, desks, stock storage equipment, and other items. During 1939 raw materials consisting of steel, paint, lumber, and other items, valued at approx- imately $250,000, were purchased and used by the respondent in the manufacture of his products. Of these materials approximately 88 per cent were secured from within the State of Ohio while the re- maining 12 per cent were obtained from without the State of Ohio. During 1939 the respondent sold about $776,630 worth of his manu- factured products, of which approximately 88 per cent were shipped outside the State of Ohio, while the remaining 12 per cent went to destinations within the State of Ohio. II. THE ORGANIZATION INVOLVED The American Federation of Labor is a labor organization within the meaning of Section-2 (5) of the Act. III. THE UNFAIR LABOR PRACTICES A. Interference, restraint, and coercion In December 1939 several of the respondent's employees manifested a desire to engage in collective bargaining. One of them, Harry Keyton,, prepared a- petition bearing, the following -heading : We, the undersigned employees. of the Hobart Cabinet Co. 111 S. Water Street Troy, Ohio do hereby sign this petition of our own free will to organize for the purpose of Collective Bar- gaining as a group as defined under the labor laws of the United States. At various times between December 26, 1939, and the third week of January 1940, Dale Yeager, Paul Cruikshank, Beecher Carey, and Paul Schurr, all employees of the respondent, obtained signatures thereto from their fellow employees in the plant. On about December 29, 1939, Hobart, then on vacation in Florida, received a telephone, call from, his wife in Troy. - She told him that Superintendent Wright thought that he should be notified of a cer- tain restlessness in the plant and "conditions there." The next day Hobart telephoned Wright. In the course of this conversation, Wright told Hobart that the men were gathering in the plant in 2 The findings in this section are based primarily upon a stipulation of facts between counsel for the Board , counsel for the respondent , and counsel for the Union 730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD groups ; and that they were dissatisfied because they had not re- ceived their usual Christmas bonus. Although Hobart testified that it was his impression that Wright did not say anything about unions, he admitted that Wright might have mentioned unions. On January 5, 1940, Hobart returned to Troy from Florida. Im- mediately after his return, he interviewed, individually, virtually all of his 130 employees. His stated purpose in doing so was to learn more about the unrest and dissatisfaction in the plant concerning which he had been informed. Hobart admitted that his information related in part to the activities of some of his employees in securing signatures to the petition, although he denied knowing the exact pur- port of the petition. Hobart also admitted that he knew that a few men were interested in forming a union in the plant. Lester Williams was one of the first men to be called into Hobart's office. This occurred promptly on Hobart's' return, Friday, Janu- ary 5. Williams testified that Hobart asked him "why the trouble was brewing in the shop," and that he replied that it was "because wages were too low to make a fair living," whereupon Hobart ex-, plained that a raise in wages would necessitate raising the price of cabinets which would make his 'prices higher. than those of his com- petitors which would result in fewer cabinets being manufactured, thereby diminishing the number of jobs in the plant. Williams also testified that Hobart stated "that he understood the fellows wanted to organize and that he did not like to see it, but that if they did, he, would just have to deal with us, that there was nothing he could do about it"; and also that "he would rather deal with the fellows direct, instead of having collective bargaining by a union." According to Hobart's version of his conversation with Williams, he told Williams that-there had been some unrest in the plant and asked if Williams had "anything that he had to complain of him- self, or if there was anything I could do to explain wage conditions or anything in general that I could explain to him." Hobart testi- fied that at this point Williams "spoke immediately about, as near as I remember, about the fact that some of the boys, he said, were going to organize. I didn't ask him that especially, but that was the explanation that he volunteered." Hobart testified further that after stating that the men had a right to organize, he told Williams that "the only possible difficulty I could see with collective bargaining was that there might be an increase in costs" which might, through its competitive effects, mean a loss of employment. The Trial Ex- aminer, who had an opportunity to . observe the demeanor of the witnesses credited Williams' testimony. We find that Hobart made the statements attributed to him by Williams. Between January 5 and January 20 Hobart, as we have said, interviewed, individually, almost all his 130 employees. The precise CHARLE'S C. HOBART 731 content of each of these conversations is not disclosed in the record. Among those called into Hobart's office besides Williams, were Campbell, Braswell, Casey, Yenger, and Cruikshank. These em- ployees testified in substance that Hobart asked them whether they were satisfied with their wages; to some he stated that competitive conditions disabled him from granting wage increases. The week following January 5, 1940, Hobart raised the wages of virtually all his employees. . On February 13, 1940, several of the respondent's employees applied for and received from Coleman Claherty, a representative of the American Federation of Labor, a charter establishing a union in the plant. At the same time Claherty gave them membership application cards. During the morning of February 14 these cards were distributed to and collected from employees in the plant before work started and during the morning and the noon hour on that day. About 5 minutes before quitting time of the same day, fore- men, distributed to the respondent's employees cards, prepared at Hobart's direction, containing two ` questions : Do you wish to bargain for your rate of pay? Or would you rather have things as they are now -with wage increase when I can justify it and chance of extra later on? Pursuant to Hobart's instructions, the foreman and the timekeeper told the employees that it was unnecessary for them to sign the cards, but that they were to indicate their preference between the two propositions stated in the questions by marking one or the other and to place the cards in ballot boxes provided by the respondent. Of approximately 131 cards distributed, 93 were returned marked and 43 of the 93 were signed. Paul Cruikshank, an employee, testified that on February 16 his foreman, Jesse Arthur, commenced a conversation with him while Cruikshank was working, and told Cruikshank that if Hobart "found out who signed or started this union, he was going to lay them oil or fire them"; and that Arthur also stated that Hobart could not afford to pay $1.00 or $1.25 an hour as wages. Arthur first testified that he could not.recall whether he spoke to Cruikshank on February 16, but later admitted that he "probably" did speak to him on that day. Arthur denied telling Cruikshank that if Hobart found out who belonged to the Union, "he'd fire them or lay them off." As to whether he made the statement about Hobart's not, being able to pay $1.00 or $1.25 an hour, Arthur's testimony was as follows : That he did not say it; that he was pretty sure he did not say it; that he might have said it; and finally that he might have told Cruikshank, "that Mr. Hobart could not afford to pay a dollar an hour." 732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD A few days after February 14 Arthur, according to the testimony of Beecher Carey, an employee, asked Carey whether he had "re- ceived a card to join the union," and when Carey replied in the negative, Arthur stated, "Well, 'l seen some of the other fellows have them" and added, "Well, they can join if they want to, but I don't think it is going to do them any good." Carey also testified that Arthur stated that "Hobart didn't have to run this shop" and if Hobart was forced to raise wages, "he would have to close the shop." Arthur testified as follows regarding his conversation with Carey: .Q. Tell us the conversation. A. Yes, something about-I says, "Well, anybody that wants to join the union is perfectly welcome." I says "That's O. K. with me; I have got no jurisdiction over none of them. They are welcome to join the union." The Trial Examiner, who had an opportunity to observe the demeanor of the witnesses, found that Arthur was not a credible wit- ness. We find that Arthur made the statements attributed to hun by Cruikshank and Carey. The respondent urges in his brief that even if it is conceded that Arthur made the statements he did so without the respondent's au- thority, and was merely expressing his own opinion. We find, how- ever, that the respondent, having clothed Arthur with supervisory authority and power, is chargeable for his above-described statements.3 Dale Yenger was one of the employees who was interviewed by Hobart about January 5. Approximately two weeks later, Roy Brown, his foreman, asked him whether he "wanted collective bar- gaining" on his wages, and Yenger replied that he did not wish to bargain with Brown, but that he thought he should have an increase in wages. Yenger told Brown that he was receiving 43 cents an hour and that he desired a 10 cents an hour increase. Brown then went into "the office," and about 20 minutes later returned and told Yenger that the respondent's "offer was 33 cents an hour." Yenger told Brown that he was already receiving 43 cents an hour, where- upon Brown stated that he would give the matter further consider- ation. Brown did not testify. On February 21, 1940, after Hobart had been informed that charges had been filed with the Board against him, he posted the following notice on the plant bulletin board which remained posted several days. 3 ". . . with respect to the acts of the supervisory foreman, the doctiines of respondent superior applies, and the petitioner [ the employer ] is responsible for the actions of the supervisory foreman , even though it had no actual participation therein " See N. L. R B V Swift & Company, 106 F. (2d) 87, 1939 (C. C A. 10). CHARLES C. -TOBART 733 It has come to my attention that the questions asked you about a week ago were construed by some to mean that I was interfering with your rights for collective bargaining. It was not my intention at that time nor is it now to interfere with anyone's rights. You will remember that in my personal interview, I stated to each of you very definitely that I did not want to say a word against your organizing. If any of you have misinterpreted the meaning of my card with the questions, I wish to correct this erroneous impression. Charles C. Hobart The respondent's conduct in questioning each of his employees at a time when they were attempting to organize for the purpose of collective bargaining, and his statements to Williams that the diffi- culty "with collective bargaining was that there might be an in- crease in costs" and that he would "rather deal with the fellows direct'instead of 'having collective bargaining," coupled with the warning that a wage increase would result in a reduction in the num- ber of jobs, constituted a direct interference with and deterrent to the employees' exercise of the rights protected by the Act.4 Similarly the taking of the vote in the form and in the manner hereinabove set forth was a further interference with his employees' union activvities.5 Iii fact, Hobart admitted at the hearing when he was asked whether the cards were circulated with the idea of dis- couraging or interfering with the formation of a union, that "there * Matter of Knoxville Publishing Company and American Newspapei Guild, The Knox- ville Newspaper Guild, 12 N. L. R. B 1209, 1212-17; Matter of Harry Schwartz Yarn Co, Inc and Textile Workers Organizing Committee, 12 N. L. R B. 1139, 1146--51; Matter of Nebel Knitting Company, Inc and American Federation of Hosiery Workers, 6 N L R B 284, 286, 288-S9, 293, order enforced National Labor Relations Board v Nebel Knitting Commpany, Inc., 103 F (2d) 594-95 (C. C. A. 4) . National Labor Relations Board v American Mauiifacturrng Company and Nu-Art Employees, Inc., 106 F (2d) 61 (C C A. 2) ; National Labor Relations Board v. Arthur L Cotten and Abe J. Colman, Co-Partners, doing business as Kiddie Hover Manufacturing Company, 105 F ( 2d) 179, 181-(C C >A 6) , Virginia Perry Corporation v. National Labor Relations Board; 101 F. (2d). 103, 104-06 (C. C A 4) ; National Labor Relations Board v. A. S Abell Company, 97 F. (2d ) 951, 955-56 (C C. A. 4) ; of Virginian Ry. Co. v System Federation No. 40, etc, 84 F ( 2d) 641 , 643-44 (C C A. 4), 300 U S 515, 544 ' The respondent urges in part that the vote was not a prohibited interference because the voters were not required to declare their identity by s;gning the ballots This con- tention is \%ithout merit since the propositions posed necessarily conveyed unmistakably to the employees the respondent 's opposition to self-organization and collective bargain- ing. Moreover, in fact, many employees did sign the ballots See Matter of Arthur L. Cotten, and A J. Colman, Co-Partners, doing business as Kiddie Kover Manufacturing Company and Amalgamated Clothing Workers of America, 6 N. L. R. B. 355, enf'd in N L R B v Arthur L. Colter, et al , 105 F. (2d) 179 (C. C. A. 6 ) ; Matter of American Manufacturing Company and Textile Workers' Organizing Committee, 5 N. L R. B 443, enf'd in N. L. R. B v Ainerican - Manufacturing Company, et al , 106 F ( 2d) 61. 734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD may have been a shade of it." 6 Within a week, of his disclaimer of ability to increase wages the respondent did grant nearly all his employees wage increases to forestall the movement toward self- organization by eliminating the major incentive for such employee action.' For the same purpose, the respondent sought to induce Yenger to substitute bargaining on an individual basis with respect to his wages, for,collective bargaining." The respondent contends that none of his acts or statements 9 here- inabove set forth was intended to interfere with his employees' exercise of the rights guaranteed by the Act but rather reflected his legitimate desire to ascertain for business reasons the current situa- tion in the plant. We are not persuaded by the contention. His conduct was plainly directed against the movement toward self- organization among his employees although his ultimate motive may well have been to prevent adverse effects on his business which he apprehended would result from his employees' assertion of the rights guaranteed by the Act. We find that the respondent intended the necessary consequences of his conduct; but, irrespective of his motive, the conduct itself falls within the proscription of the Act. The re- spondent further asserts that his statements are within the protection of the'constitutional guarantee of freedom of speech because they were not coercive of his employees. This contention is without merit in view of our findings hereinabove and hereinafter made concerning the coercive nature of both his statements and acts.'° We find that the respondent, by interviewing his employees, by immediately raising their wages, by taking the vote, by the state- ments of Foreman Arthur, and by its efforts to have Yenger deal individually regarding his wages, has interfered with, restrained, and coerced his employees in the exercise of the rights to self-organi- zation, to form, join, or assist labor organizations, to bargain col- 9 Hobart' s precise testimony was as follows. Q. Now, did you circulate this card with any idea of interfering or discouraging the formation of the union? A. I don't think-there may have been a shade of it, but not enough to feel-it was largely for my own information . Not the formation of a union , however. See Matter of The H. M. Ritzwoller Company and Coopers' International Union of North America, Local No. 28, 15 N. L. R B. 15, enf'd as mod. in The H. M Ritzwoller Company v N. L. R. B, decided May 8, 1940, (C. C. A. 7) ; Matter ,of American . Potash, & Chemical Corporation and Borax & Potash Workers' Union No. 20181, 3 N L R. B. 140, enf'd in N. L. R. B. v. American Potash and Chemical Corp 98 F. (2d) 488 (C. C. A 9th) cert. denied 306 U. S. 643; Matter of The Dow Chemical Company and United Mine Workers of America, District No. 50, 13 N. L. R. B. 993. 'See Matter of the Stolle Corporation' and Metal Polishers, Buffers, Platers and Helpers International Union, 13 N., L It, B. 370; Matter of The Jacobs Bros Co ; Inc. and United Electrical and Radio Workers of America, 5 N. L. It. B. 620; Matter of David E. Kennedy, Inc. and Isidore Greenberg, 6 N. L It. B 699 9 As heretofore indicated, the respondent contended that he was not responsible for Arthur's statements, if made, which contention we have rejected. 'o Matter of Ford Motor Company and United Automobile Workers of America, Local No 32.5, 23 N. L. It. B 342, and the cases cited in footnotes 10 and 11 thereof. CHARLES C. HOBART 735 lectively through representatives, of their own choosing, and to en- gage in concerted activities for, the purpose of collective bargaining or other mutual aid or protection guaranteed in Section 7 of the Act.. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE We find That the activities of the respondent set forth in Section III above, occurring in connection with the"operations of the respond' ent described in Section I above, have a close, intimate, and sub- stantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since we have found that the respondent has engaged in certain unfair labor practices, we shall order him to cease and desist there- from. In order to effectuate the purposes and policies of the Act, and as a means of removing and avoiding the consequences of the re- spondent's unfair labor practices, it is essential that in aid of our cease and desist order the respondent be directed to post appropriate notices to his employees in the form hereinafter set forth." Upon the basis of the foregoing findings of fact and upon the entire record of the case, the Board makes the following: CONCLUSIONS OF LAW 1 American Federation of Labor is a labor organization, within the meaning of Section 2 (5) of the Act. 2. By interfering with, restraining, and coercing his employees in the exercise of the rights guaranteed by Section 7 of the Act, the respondent has engaged in and is engaging in unfair labor practices, within the meaning "of Section 8 (1) of the Act. ORDER Upon the basis of the above findings of fact and conclusions of law, and pursuant to Section 10 (c) of the National Labor Relations Act, the National Labor Relations Board hereby orders that the respondent; Charles C. Hobart, doing business as Hobart Cabinet Co., and his agents, successors, and assigns shall: 1. Cease and desist from: (a) In any manner interfering with, restraining, or, coercing his employees in the exercise of the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through "We do not consider the notice posted by the respondent on February 21, 1940, ade- quate to remedy the effect of the unfair labor practices found. 796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, as guaranteed in'Section 7 of the Act. 2. Take the following affirmative action, which the Board finds will effectuate the policies of the Act : (a) Post immediately in conspicuous places in his plant, and main- tain for a period of at least sixty (60) consecutive days from the date of posting, notices to his employees stating: (1) that the re- spondent will not engage in the conduct from which he is ordered to cease and desist in paragraph 1 (a) of this Order; and (2) that the respondent's employees are free to become or remain members of the American Federation of Labor or any other labor organization, and the respondent will not discriminate against any employee because of membership or activity in such organization;' (b) Notify the Regional Director for the Eighth Region in writing within ten (10) days from the date of this Order what steps the respondent has taken to comply therewith. Mr. WILLIAM M. LEISERSON took no part in the consideration of the above Decision and Order.