American Laundry Machinery Co.

National Labor Relations Board - Board Decisions

Jul 4, 1944

57 N.L.R.B. 25 (N.L.R.B. 1944)

In the Matter of AMERICAN LAUNDRY MACHINERY "COMPANY and UNITED
ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA ( C. I. 0.)
In the Matter of AMERICAN LAUNDRY MACHINERY COMPANY and ,UNITED
ELECTRICAL , RADIO & MACHINE WORKERS OF AMERICA ( C. I. 0.)
Case No. 3-C-677 and R-5475 respectively .Decided July 4,1944
Mr. Peter J. Crotty, for the Board.
Peck, Shaffer & Williams , by Mr. Floyd C. Williams, of Cincinnati,
Ohio, Mr. Charles S. Wilcox, Mr. John D. Sullivan , and Mr. Clzarleg'
D. Mercer, of Rochester , N. Y., for the respondent.'
Mr. Sidney H. Greenberg , of Syracuse , N. Y., for the Union.
Mr. Samuel Croog , of Rochester , N. Y., for the Unaffiliated Em-
ployees.
Mr. Marcel Mallet-Prevost , of counsel to the Board.
DECISION
AND
ORDER °
STATEMENT OF THE CASE
Pursuant to, a petition duly filed by United Electrical, Radio &
Machine Workers of America (C. I. 0.), herein called the Union, al-
leging that a question affecting commerce had arisen concerning the
representation of employees at the Rochester, New York, plant of
American Laundry Machinery Company, herein called the'respondent,
and pursuant to hearing held thereon, the National Labor Relations
Board, herein called the Board, issued its Decision and Direction of
Election on June 30, 1943,1 to determine whether certain of the, em-
ployees of 'the respondent desired to be represented by the Union for
the purposes of collective bargaining. On July 28, 1943,,pursuant to
the aforesaid Direction of Election, an election by secret ballot was
conducted by the Regional Director for the Third Region ( Buffalo,
New York) ; among the production and maintenance employees of the
respondent at its above-mentioned plant, excluding employees engaged
in supervisory, clerical, and certain other specified types of work.2
'Matter of American Laundry Machinery Company, 50 N. L. R. B 995.
2 50 N . L. R. B. 995, 997.
57 N. L. R. B., No. 6.
25
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On July 30,1943, the Regional Director issued an Election Report stat-
ing that a majority of those employees had voted against the Union.3
Thereafter, on August 5, 1943, the Union filed objections to the elec-
tion, alleging that'the respondent had engaged in unfair labor prac-
tices which had affected the election.
On August 6, 1943, the Union filed a charge, alleging that the re-
spondent had violated Section 8 (1) of the National Labor Relations
Act, 49 Stat. 449, herein called the Act, by its conduct at the Rochester,
New York, plant. On September 20, 1943, the Board issued an order
directing that a hearing be held on the Objections to the election,
and on September 22, the Board issued a further order directing the
consolidation of the representation proceeding with the unfair labor
practice proceeding in conformity, with Article IT, Section 36 (b), and
Article III, Section 12 (c) (2), of National Labor Relations Board
Rules and Regulations-Series 2, as amended. On October 19, 1943,
the Board, by the Regional Director, issued its complaint against the
respondent, alleging that the respondent had engaged in and was en-
gaging in unfair labor practices affecting commerce, within the mean-
ing of Section 8 (1) and Section 2 (6) and (7) of the Act. Copies of
the complaint, the charge, and Notice of Hearing thereon, were duly
served upon the respondent and the Union. -
With respect to the unfair labor practices the complaint alleged in
substance that from on or about June 30 to July 29, 1943, the respond-
ent discouraged membership in the Union by (1) threatening to dis-
charge union adherents if the Union won the election to be held on
July 28, 1943, (2) disparaging the Union, (3) issuing statements and
making speeches designed to defeat the Union in the election, (4)
causing or permitting the formation, and supporting the activities, of
a group of employees whose purpose was to defeat the Union, and (5)
causing or permitting a mock funeral to be conducted following the
election, to symbolize the Union's defeat; and that by such conduct
the respondent engaged in unfair labor practices within the meaning
of Section 8 (1) of the Act.
The respondent filed, an answer on November 15, 1943, admitting
that it is engaged in interstate'commerce but denying the allegations
.of the complaint that it had engaged in unfair labor practices. Un-
affiliated Employees of American Laundry Machinery Company, here-
inafter sometimes called the Intervenor, having filed a petition to
The substance of the Regional Director's Report is as follows :
Approximate number of eligible voters------------------------------ 719
Total ballots cast----------------------------------------------- 690
Total ballots challenged------------------------------------------ 65
Total void ballots----------------------------------------------- 1
Total valid votes counted---------------------------------------- 624
Votes cast for the Union---------------------------------------- 230
Votes cast against the Union-------------------------------------- 394
i
l
AMERICAN LAUNDRY MACHINERY COMPANY 27
intervene in the proceedings, which was granted on November 5, 1943,
filed an answer on November 15, denying that it had been formed or,
assisted by the respondent.
Pursuant to notice, a hearing on the consolidated cases was held at
Rochester, New York, on November 15 and 16; 1943, before Horace A.
Ruckel, Trial Examiner, duly designated by the Chief Trial Exam-
iner. The Board, the respondent, the Union, and the Intervenor were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing upon the issues was afforded all parties.
At the close of the Board's case counsel for the respondent and the
Intervenor moved for the dismissal of the allegations of the com-
plaint, severally, and as a whole. The Trial Examiner granted the
motion to dismiss the allegation that the respondent threatened to
discharge known adherents of the Union if the Union won the elec-
tion, and denied the other motions. At the close of the hearing counsel
for-the-respondent and the Intervenor moved'to dismiss the remain-
ing allegations of the complaint. The Trial Examiner reserved
ruling upon these motions and thereafter denied the motions in his
Intermediate Report. Rulings on other motions and on the admissi-
bility of evidence were made by the Trial Examiner during the course
of the hearing. The Board has reviewed all the rulings of the Trial
Examiner and finds that no prejudicial errors were committed. The
rulings are hereby affirmed: At the close of the hearing, the parties
were given an opportunity to present oral argument to, and file briefs
with, the Trial Examiner. None of the parties made oral argument.
Counsel for the respondent filed a brief with the Trial Examiner on
December 2, 1943.
On December 31, 1943, the Trial Examiner issued his Intermediate
Report, copies of which were duly served upon the respondent, the
Intervenor, and the Union. He found that the respondent had en-
gaged in and was engaging in unfair labor practices affecting com-
coerce, within the meaning of Section 8 (1) and Section 2 (6) and (7)
of the Act, and recommended tliat the respondent cease and desist
from the unfair labor practices found and take certain affirmative
action designed to effectuate the policies of the Act. He recommended
further that the allegations of the complaint that the respondent
caused or permitted the formation of, and assisted or supported, the
Intervenor, be dismissed. Thereafter the respondent filed exceptions
to the Intermediate Report and a brief in support of its' exceptions.
Oral argument, in which the respondent and the Union participated,
was had before the Board at Washington, D. C., on May 23, 1944.
The Board has considered the exceptions, brief, and oral argument,
and,-insofar as they are inconsistent with the findings of fact, conclu-
28 , DECISIONS OF NATIONAL LABOR RELATIONS,BOARD -
sions of law, and order,set forth below, finds them to be without
merit.
'Upon the entire record in the case, the Board makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
American Laundry Machinery Company, an Ohio corporation au-
thorized to do business in the State of New York, is engaged at its
plant in Rochester, 'New York, in the manufacture of laundry
machinery and castings. During the 12 months ending April 30, 1943,
the respondent's operations at said plant entailed the use of raw .
materials valued at approximately $1,088,000, of which about 80 per-
cent in value was shipped to the respondent from outside the State
of New York; during the same period the respondent manufactured
products valued at approximately $4,316,000, of which about 78 per-
cent in value was shipped to points outside the State. At the.time of
the hearing the respondent's business operations with respect to total
production and the interstate shipments of raw materials and finished
products, were substantially the same as they were during the period
noted above. -
The respondent admits that it is engaged in commerce, within the
meaning of the Act.4 .
IT. THE ORGANIZATION INVOLVED
United Electrical, Radio &C Machine Workers of America, affiliated
with the Congress of Industrial Organizations, is a, labor organization
admitting to membership employees of the respondent.
III. THE' -UNFAIR LABOR PRACTICES
A. Background
The incidents which gave rise to the charges in this case center
around a Board election held at the respondent's Rochester plant on
July 28; 1943. To view the occurrences in their true light; however,
it; is necessary to consider the setting in which they took place. In
an earlier proceeding against the respondent,,' which arose upon
charges also filed by the Union, we found that the respondent, during
the year 1942, had engaged in surveillance of union meetings, had
made statements expressing the respondent's disapproval of the
Union, had discharged four employees because of their affiliation
with the Union, and had thereby, violated Section 8 (1) and (3) of
4 These findings are based upon stipulations between the respondent and the Board.
Matter of American Laundry Machinery Company, 45 N. L. R. B. 355.
AMERICAN LAUNDRY MACHINERY COMPANY 29
the Act. Accordingly, we ordered the respondent to cease and desist
from the unfair labor practices found, to offer reinstatement with
back pay to the employees discriminated against, and to post ' appro-
priate notices. At the time of the election in the instant case on
July 28, 1943, the respondent had taken no steps to comply with our,
oorder.'
The Union conducted an organizing campaign among the respond-
ent's employees during the spring and early summer of 1943, and on
April 20 filed with the Board's Regional Director a petition for in-,
vestigation and certification of representatives. While the Union's
organizing campaign was under way a 'group ofnon-supervisory
employees, who were opposed to the Union, crystalized employee
opposition to the Union by gathering together some 40 employees
into a loosely organized group, sometimes referred to herein as the
Intervenor and variously known to the employees as the "Unaffiliated'
Employees," the "Workers' Group," or the "Workers' Committee."
With the declared purpose of defeating the Union in the election,
the Intervenor, supported by contributions of its -members, held a
number of meetings and published and distributed among the 're-
spondent's employees two issues of a paper entitled "The Workers'
Voice," which was composed principally of articles attacking the
Union and praising the existing status of employer-employee rela-
tions at the respondent's plant. The second issue of the paper, dated
July 23, stated,'that the Intervenor would,"dissolve and' consider its
work finished after the election of July 28." ' Shortly before the day
of the election the Intervenor distributed "Vote No" buttons among
the employees in competition with the Union's distribution of "Vote
U. E." buttons.7
B. Interference, restraint, and coercion
1. Interrogations concerning employees' union affiliation, anti-union
statements, and threats of reprisals ,
During the 3 or 4 weeks preceding the election certain of the re-
spondent's supervisory employees questioned their subordinates vas to
why they had joined the Union, disparaged the Union, and threatened
that economic reprisals might follow if the Union won the election,.
The matter was at that time pending decision by the United States Circuit Court of
Appeals for the Second Circuit upon the Board's petition for enforcement of its, order.
Subsequently, on October 29, 1943, the Court enforced the Board's order in full N L
R B V American Laundry Machinery Co, 138 P. (2d) 887, enforcing 45 N. L R. B 355.
7 While we agree with the Trial Examiner that the evidence fails to sustain the allega-
tions of the complaint that the respondent caused or permitted the formation of, and
assisted and supported the Intervenor, we find , upon the basis of the entire record, that
the respondent was aware of, and sympathetic to, the aim and purpose of the Intervenor N
to defeat the Union in the election. _
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, Phillipson, foreman of the machine shop, asked employee Grant,'
while the latter was working at his machine, why he had joined the
Union. When Grant replied that he "knew the benefits of a union"
and joined "to help the boys get a little more money," Foreman Phillip-
son declared that "the C. I. O. is headed by a bunch of radicals" and
that "learners" like Grant "could not get any more money because they
were on apprenticeship, and would stay on as long as he (Phillipson)
said so," that "the only way they could get off would be by his O. K., and
that would be the only way they could get more money." Phillipson
then went to the employee working at the machine adjacent to Grant's;
asked him, "Why did you sign a union card?"; and conversed further
with that employee for 15 minutes or more. Bruno Kanorowski, Sr.,
foreman of the cleaning department, according to the credible and un-
contradicted testimony of his subordinate, employee Wojcik, asked
Wojcik on at least one occasion in the plant and on another occasion
outside the plant, "Why do we )vant a Union when people who employ
us are good to us?_ They give us everything we want." On July 24,
4 days before the election, Lusink, plant engineer and assistant to the
plant superintendent, summoned to his office Baker, a clerk and tool
crib attendant. , Baker testified credibly that Lusink then asked him
if he knew that he was "out on a limb" inasmuch as the Union had
requested a bargaining unit which excluded Baker because of 'his
clerical duties. When Baker protested that his clerical duties should
not exclude him from the unit but that, on the contrary, his duties
as tool crib attendant were sufficient to bring him within the. unit,
Lusink replied that he (Lusink) could "prove" Baker was a clerk and
that "if you are proven a clerk, you can't use the Union as a bargaining
agent or a representative." Lusink added that "if you are upheld as a
tool crib attendant, and we can't make a clerk charge stick . . . I can
see to it that is all you do, is tool crib attending." 9 Declaring that
Baker was well liked around the plant and "had muffed a very good
opportunity in the Company" by joining the Union, Lusink asked
Baker why he had joined. When Baker.replied that he had joined
"for more money," Lusink said that the Union had signed Baker up
simply to "use" him'; that it wanted his vote, had taken his money, and,
by shaping the unit to exclude clerical workers, had "dropped" him.
When Baker asked if Lusink thought his vote would "turn the tide,"
Lusink replied, "No, . . . but your influence can." 10
6 Our findings with respect to this incident are based upon the uncontradicted testimony
of Grant, which we credit, as did the Trial Examiner.
9 Although Lusink testified that Baker spent nearly 90 percent of his time on clerical
work , Baker testified , and we find , that his time was divided about evenly between clerical
work and the manual work of handling tools as tool crib attendant
10 Lusink testified that he called Baker to his office because he had heard that Baker was
blaming the respondent for the absence of his name from the list of eligible voters , and that
lie wanted to "clear " Baker 's mind on the matter Lusink denied stating that Baker had
AMERICAN LAUNDRY MACHINERY COMPANY 31
2. The letter and speech of Vice-President Kreuter
On July 26, 2 days before the election, V. C. Kreuter, the respond-
ent's vice president, sent a copy of the following letter to each of the
respondent's employees:,
To Each Employee of the "Arze/,ican Family":
I am taking this opportunity of writing a personal letter to
each of you because it concerns each one of us who is connected
with the American Laundry Machinery Company.
As most of you know, next Wednesday, July 28th; will be an
important day for all of us for on that day all election is to be
held and if there are any matters not quite clear in your mind,
I hope this letter will explain some of then at least.
This election will be held under 'direction of a. representative
of the National Labor Relations Board so as to determine
whether all of you will have for your exclusive bargaining agent
the•United Electrical, Radio and Machine Workers of America,
C. I. 0., with the exclusive right to represent you in matters
regarding wages, working conditions and hours or whether you
v-, ant to continue doing as you have been in the past, namely-
discussing your own problems individually and directly with the
Company.
This election will be`by secret ballot and as nearly as possible
will be conducted like our town and city elections.
No ONE CAN KNow, BY ANY MEANS, How YOU VOTE
The outcome of the election will be determined by a majority
of those voting , which means that if more than half of those vot-
ing, choose the union, the union has the say for all employees
eligible to vote. This is different from a majority of those en-
titled to vote, so BE SURE TO VOTE so that the election will
really show your wishes , and remember that if you , do not vote it
is the same as letting someone else decide who will represent you.
A failure , to vote-is almost the same as a vote for the choice you
do not want.
Some of you may wonder if your preference as expressed at
any time in the past must govern how you vote on Wednesday.
What you may have done in the past does not apply in this elec-
tion. This election is by secret ballot so that you can record your
"muffed" an opportunity or that the Union had sought to "use " him, but admitted the
substance of the other remarks attributed to him by Baker . we find, as did the Trial Ex-
aminer , that Lusink made the statements attributed to him by Baker . Although Lusink's
statement to the effect that the Union wanted to "use" Baker simply to get his vote and his
money is somewhat inconsistent with his statement that the Union had "dropped" him
from the unit , it is clear,'and we find , that the purpose of Lusink 's remarks as a whole was
to cause Baker to become dissatisfied with the Union and to persuade him to use his in-
fluence against it in the coming election.
32, DECISIONS OF NATIONAL LABOR, RELATIONS BOARD
vote as to how you feel today, without fear or favor. You have
the right to vote in accordance with your own desires regardless
of whether or not you belong to any'group, or whether or not you
signed an application card, authorization, are a member of the
union or anything else. You have the, right at, this election to
vote anyway you like and no one will know or can know how you
vote.
We have never believed in, or paid, sub-standard wages, and we
know our rates are equal to or above those paid in this area for
equal work. We intend to continue, this policy.
This is an important election. For many of us it is the most
important one we have ever voted. It bears directly on your
welfare and the welfare of those dependent on you (your family).
' To what kind of leadership are you going to entrust your
future? .
(1) Is it unselfish or is it not?
(2) Is it interested in your personal, individual welfare, or is
-it self seeking?
(3) On the basis of its record, is it open and above board and
dependable, or don't you know?
These are but a few of the questions you should think about and
talk over at home before voting. I '
This Company expects to remain ill business for many years to -
come, therefore it seeks to maintain a continuance of the harmo-
nious and cooperative relationship that has existed between man-
agement and its employees in the past, and it also expects the same
character of relationship to prevail between-the employees who
work side by side each day, regardless of whether one holds mem-
bership or does not hold membership in any society, club, church
or organization.
In the past your company has tried to play the game with all
the cards on the table, and for the best interests of all concerned.
Whatever the election on Wednesday decides, your company will
still continue to play the game, knowing that the best interests
of the American Laundry Machinery Company and its employees
are identical.
SO I URGE YOU MOST EARNESTLY TO VOTE ON WEDNESDAY
On July 27, the day before the election, the employees were ordered
to stop their work shortly before noon and were gathered together on
the assembly floor of the plant where Vice-President Kreuter ad-
dressed them as follows :
Some of you have asked that I call you together to explain the
election which will be- held tomorrow. On the bulletin boards
AMERICAN LAUNDRY MACHINERY COMPANY 33
are notices of the election, and also a notice which describes em-
ployees' rights under the National Labor Relations Act, and also
describes unfair labor practices. I am reading this talk so that
there can be no question of what I have said to you.
The notice of election describes how it shall be conducted. The
check lists are just like voting lists at regular political elections.
As you come up to the polling place you will find a representative
of the National Labor Relations Board, the Company, and the
C. I.'O. with these check lists, and you will be asked to give your
name and clock number so that you may be checked off the list
when you have voted. The representative of the Labor Rela-
tions Board will give you a ballot which you will take to one of the
voting booths where you will mark it in complete privacy and
then you will deposit it in the ballot box provided for the election.
This box will remain unopened until the polls are finally closed.
You will notice that there, are little squares, sometimes called
boxes, on the ballot. Your choice will be made by marking an
"X" in the square to represent your wishes. You can, therefore,
see that the election will be conducted in a fair and impartial man-
ner, and will give you absolute freedom to express your choice
without any coercion.
No person applying for a position with this company has ever
been asked as to his membership or non-membership in any so-
ciety, club, church or organization. Members of labor unions and
persons who are not members are employed without any discrimi
nation whatsoever, and so long as I am connected with the man-
agement of this company this policy will continue.
What then is the issue, and why are we having an election to-
morrow? It all boils down to this. Can the C. I. O. get more
for you than you can get in any other way? What you will get
will not depend on what the C. I. O. demands. You-especially
those of you who have been connected with us for' some time-
know that it has always been our policy to do the best we could
for you in wages, hours and working conditions. We intend to
continue this policy in the future regardless of the outcome of the
election, and we can do no more, regardless of that outcome.
We want every employee to feel that he may present his own
complaints, suggestions, grievances or personal problems direct
to the management or its representatives and be assured of fair
and equitable treatment. There should be no need for any of our
employees to pay anyone to present his problems so as to have
those problems promptly and fairly adjusted. Every employee
is protected in his job by his ability to do the work required of
him, with due consideration being given to length of service. As
601248-44-vol. 57-4
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the older employees know, it has been our policy to offer oppor-
tunity for promotion based on merit to those already in our em-
ploy preferable to looking elsewhere for men to fill the higher
jobs. Many of our employees have already been advanced to
supervisory jobs.
When it'comes to the final analysis, fellows, you are voting on
who you want to have for your leader. You have to ask your-
selves whether or not outsiders can do more for you than you have
been able to do heretofore for yourselves. You also must ask
yourself why it is that total 'strangers all of a sudden become so
interested in your welfare? Who are they ? And wTiat have they
done? Where do they come from? What experiences have they
had in our line? And what more can they do for you than you
already have done for yourself? You have to ask yourself
whether the management of the company that built this factory,
that bought material, that bought machinery and that provided
,these jobs, you have to ask yourself, I say, whether or not this
management is best for you in the long run. You have to decide
whether your interests and the company's are the same, or whether
your interests, and those of the C. I. 0. are the same. In other
words, fellows, it boils right down to this. Is your status under
my leadership something that you can improve by choosing some-
one else for your leader?
Now this has been going on for more than a year, and the mat-
ter is coming up for a decision on Wednesday. When it's all over
we don't want any question as to how all of us feel. Americans,
ever since the Declaration of Independence, and even before that,
have settled questions like this by going to the polls, and voting
secretly exactly as they wished. Let's make this election really
represent the choice of everyone. Remember that unless you vote,
your failure to do so may bring about a result that you would not
like to have. It takes one more than half of all those voting to
decide.
I expect the employees to be right and fair toward the company-
and I can assure you that we shall do right and be fair toward
every employee.
So I urge you most earnestly to vote tomorrow.
To sum up fellows : First : Vote. Second : Be assured of my
continued personal goodwill.
3. The mock funeral
As noted above, the Union lost the election on July 28. Between
the end of the day shift at 7: 30 p. in. on that day and the commence-
ment of the day shift at 7: 30 a. m. on the following day, July 29,
there was installed near the machine of employee Highmoor, the
AMERICAN LAUNDRY MACHINERY COMPANY 35
Union's steward in the machine shop, a complete funeral setting, in-
cluding an imitation coffin, candles, kneelinb bench, cross, and wreath,
symbolizing the defeat of the Union. When Highmoor arrived at
work on the morning of July 29-, he- found all the lights out except
a soft light playing on a dummy corpse which reposed in the coffin.
At the head of the coffin appeared the inscription, "C. I. 0. Dead and
Gone." The plant's portable public address device had been placed
nearby and was pouring forth orthodox funeral music. About a
hundred employees were gathered around High-moor's machine during
working hours observing the antic display. According to Highmoor's
uncontradicted and credible testimony, the music was shut off at about
10 a. in. upon a prior order of Foreman Phillipson and the coffin was
removed soon after noon, by which time "Everybody in the shop had
been there to see it." 11
4. Conclusions
The respondent has engaged in a coercive course of conduct designed
to discourage its employees from becoming or remaining members of
the Union or from designating the Union as their bargaining repre-
sentative, and particularly to defeat the Union in the election of July
,281 -1943.
Foreman Phillipson's questioning of Grant and another employee,
during working hours, as to why they had joined the Union, his dis-
paragement of the Union as being headed by a "bunch of radicals,"
and his warning that apprentices like Grant "could not get any more
money [by bringing in the Union] because they were on apprentice-
ship, and would stay on as long as he (Phillipson) said so," were cal-
culated to discourage the employees from joining or voting for the
Union. By his remarks he implied that the respondent was opposed
to the Union and that, if the apprentices voted for the Union and
the Union won the election, they would risk the penalty of being
kept on apprenticeship longer than they would if the Union lost the
election. Similarly, Foreman Kanorowski's conduct in asking em-
ployee Wojcik why he had joined the Union, at the same time declaring
to Wojcik that the respondent was "good" to the employees and gave
them everything they wanted, indicated that collective bargaining
through the Union would accomplish nothing, and was calculated to
intimidate and coerce the employees in the choice of a bargaining
representative. The respondent's coercive tactics are more graphically
illustrated by Plant Engineer Lusink's efforts to turn employee Baker
against the Union. Lusink called Baker to his office allegedly to "clear
his mind" of the notion that the respondent was responsible for Baker's
name having been excluded from the list of eligible voters in the
11 A second coffin had been set up in the foundry which opened off of a court adjacent to
the machine shop. Both coffins appear to have been removed at the same time.
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming election . Lusink placed the blame for Baker's exclusion upon
the Union 's request that clerical workers be excluded from the bargain-
ing unit. When Baker pointed out to Lusink, however, that his work
as'tool crib attendant qualified hini as a manual worker, Lusink de-
clared that the respondent would insist that Baker be classified as a
clerk and threatened reprisals against Baker by declaring that, if
Baker succeeded in persuading to the contrary the Board agents con-
-ducting the election and thus gained admission to the ' unit, the, re-
spondent would thereafter deprive him of whatever clerical duties
he had. Lusink attempted to persuade Baker, by innuendo and by
threat, to abandon the Union and indeed to work against it in the elec-
tion, 'as is apparent from the remarks discussed above and from
Lusink's further statements to the effect that the Union had sought
merely to "use" Baker , that he was now "out on a limb" since the
Union had dropped him, that he had "muffed a very good chance"
with the respondent by joining the Union , and finally that Baker's
"influence" could "turn the tide" against the Union in the coming
election.
The respondent 's contention that it did not violate the Act by the
above-described statements-of its supervisory employees because the
employees were not in fact coerced , is without merit. The respond-
ent's test would put a premium on the severity and flagrancy of its
conduct. Obviously the test is not whether the employer 's conduct
achieved a desired result. ' Such statements have a coercive effect' in
view of their nature and the authority .of the person making them-.
Moreover , as we stated in an earlier decision , "employees themselves
are not always aware of the subtleties and congeries of facts, which
may influence their activities ." Matter of Peter J. Schweitzer, Inc.,
54 N. L . R. B. 813. Significant in this connection is the testimony
of employee Grant that "I felt - he [Foreman Phillipson ] was try-
ing' to change my-mind for me ." We find that the statements of
supervisory employees Phillipson , Kanorowski , Sr., and Lusink, re-
viewed above , constitute interference , restraint , and coercion on the
part of the respondent in violation of Section 8 (1) of the Act.
On the eve of the election the respondeni addressed its employees
in a letter and speech similar to those appearing in Matter of Ameri-
can Tube Bending Co. Inc 12 However, -unlike the latter case where
the Second Circuit Court of Appeals pointed out that the record did
not contain "anything else," the letter and speech in the instant case
followed upon the heels of. the coercive conduct of the "respondent's
supervisory employees, and were uttered in an atmosphere of hos-
tility to the Union generated by an active employee group and of
12 44 N L II B 121 , 124-129 , set aside in N L R B V American Tube Bending Co.,
134 F. (2d) 993 (C. C. A. 2), cert den. 320 U. S. 768.
AMERICAN LAUNDRY MACBINERY COMPANY 37
unremedied'unfair labor practices against the Union _(coercion, sur-
veillance,, and discriminatory discharges), the effects of which had
not been dissipated because of the respondent's failure to comply
with the Board's then outstanding order. These circumstances, to-
gether with the mock funeral by which the respondent ridiculed
and discouraged membership in the Union after it had lost the
election, form the context in which we must consider whether the
letter and speech are violative of the Act or, as the respondent con-
tends, are privileged as free speech.13
After explaining the election procedure, the letter in effect in-
vited union members to turn against the Union by stressing the fact
that they did not have to adhere to their prior choice and no on;e{
would know how they voted. The letter then proceeded to sow in
the employees' minds the seeds of suspicion and dissension by ques-
tioning the Union's leadership, sincerity, motives, and good faith.
The closing appeal for a continuance of the past "harmonious and co-
operative relationship" was in effect a plea for the rejection of the
Union and the maintenance of the status quo through individual
bargaining.
This theme was again stressed and elaborated in Vice-President
Kreuter's speech in which he presented the election issue as -a con-
test between the respondent and the Union for the allegiance of the
employees. The burden of the speech was that there was no need
for the, Union; that the Union could accomplish no more through
collective bargaining than the employees had accomplished through
individual dealings; that the interests of the Union were opposed to
the interests of the respondent; and that the employees' welfare
would best be promoted, by siding with the respondent. The closing
declaration that he expected the- employees "to be right and fair
toward the, Company" was not only an, appeal for votes for. the
Company as opposed to the Union, but also an intimation that, in
the respondent's view, voting for the Union was synonymous with
disloyalty to the respondent.
As we have already noted, the respondent had in the past thwarted
the employees' efforts to establish the Union as their bargaining repre-
sentative by,engaging in a coercive course of conduct, including sur-
veillance, and by economic reprisals against certain union members.
The respondent had failed to remedy these unfair labor practices and
thereby failed to give the employees some assurance against their
18 See N. L. R. B. V. Virginia Electric Power Co., 314 U S. 469, 477; N. L R B v Ameri-
can Tube Bending Co , supra; N L R B v M E Blatt Co 143 F (2d) 268 (C. C A 3)
decided June 9, 1944
Contrary to the respondent's contention, the unfair labor practices which remained un-
remedied because of the respondent's failure to comply with our earlier order against it,
are proper matters for our consideration in this connection.- See M. E. Blatt Co. case,
supra.
i
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recurrence. Following the Board's Direction of Election, the respond-
ent, through its supervisory employees, again embarked on a similar
course of conduct. The employees were made,aware of the respond-
ent's continued opposition to the Union., Indeed, such opposition had
already found favor with a group of employees who were actively
campaigning to defeat the Union. In these circumstances we believe
that the respondent's appeals in its letter and speech carried at least
an intimation that by voting for the Union and thereby overriding the
respondent's will at the polls, the employees would risk incurring the
displeasure of the respondent and inciting it to some unfavorable ac-
tion" against them. Upon consideration of the respondent's entire
course of conduct, we find that the respondent's letter and speech pre-
ceding the election were not privileged as free speech but constituted
interference, restraint, and coercion in violation of Section 8 (1) of the
Act.
We find also that the respondent, by acquiescing in the mock funeral
held at the plant on the day following the'defeat of the,Union;in the
election, ridiculed and belittled the Union, and discouraged member-
ship therein, thereby interfering with, restraining, and coercing its
employees in the exercise, of the rights guaranteed in Section 7• of the
Act, in violation of Section 8 (1) of the Act.- I
Accordingly, we find that by the statements of Phillipson,'Kanor-
owski, Sr., and Lusink; by the letter and speech preceding the election
of July 28, 1943; and by ridiculing and discouraging membership in the
Union through the mock funeral held at the plant after the election,
the respondent engaged in a course of conduct which interfered with,
restrained, and coerced its employees in the exercise of the rights guar-
anteed in Section 7 of the Act. We find further that, since the respond-
ent engaged in unfair labor practices prior to the election of July 28,
1943, the election was not an expression of the will of an uncoerced
majority of the employees.
I1'. 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 respondent as
described in Section I. above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
14 The respondent contends that the mock funeral nas "horseplay indulged in in good
humor and accepted in the same way." Even if true, this contention does not alter the
impropriety of the respondent's conduct. Interference, restraint, and coercion are no less
violative of the Act because they are exercised through the medium of sardonic humor.
AMERICAN LAUNDRY MACHINERY COMPANY 39
V. THE REMEDY
Having found that the respondent has engaged in certain unfair
labor practices , we shall order it to cease and desist therefrom and to
take . certain affirmative action designed to effectuate the policies of the
Act. We shall also require the respondent to notify each of its em-
ployees by mail that the respondent will not in any manner interfere
with, restrain , or coerce its employees in the exercise of the rights
guaranteed in Section 7 of the Act.
VI. THE PETITION
Since we have found that the respondent has by its unfair labor
practices interfered with the free ,choice of representatives by its em-
ployees at the election of July 28 , 1943, we shall set the election aside.
When we are advised by the Regional Director that the time is ap-
propriate , we shall direct that a new election be held among the re-'
spondent 's production and maintenance employees at its Rochester,
New, York, -plant.
Upon the basis of the above findings of fact, and upon the entire
record in the case, the Board makes the following :
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affili-'
ated with the Congress of Industrial Organizations, is a labor organi-
zation, within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining , and-coercing its employees in
'the exercise of the rights guaranteed in 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.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce , within the meaning of Section 2 ( 6) and '(7) 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 respond
ent, American Laundry Machinery Company, Rochester , New York,
and its officers , agents, successors , and assigns , shall:
1. Cease and desist from in -any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to. self-
organization , to form labor organizations , to join or assist United
Electrical , Radio & Machine Workers of America, affiliated with the
l
40 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Congress of Industrial Organizations, or any other labor organization,
to bargain collectively through 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) Mail to all its employees notices stating that the respondent will
not engage in the conduct from which it is ordered to cease and desist
in paragraph 1 of this Order;
(b) Post immediately in conspicuous places throughout, the res-
pondent's plant at Rochester, New York, and maintain for a period
of at least sixty (60) consecutive days from the date of posting, notices
to its employees stating that the respondent will not engage in the
conduct from which it is ordered to cease and desist in paragraph 1
of this Order;
(c) Notify the Regional Director for the Third Region. in writing,
within ten (10) days from the date of this Order, what steps the res-
pondent has taken to-comply herewith.
AND IT IS FURTHER ' ORDERED that the complaint, insofar as it alleges
that the respondent caused or permitted the formation of, and assisted
or supported the Unaffiliated Employees of the American Laundry
Company, be, and it hereby is, dismissed. -
AND IT IS FURTHER ORDERED that the election held on July 28, 1943,
among the employees of the respondent at its Rochester, New York,
plant be, and it hereby is, set aside.