American Tube Bending Co., Inc.

National Labor Relations Board - Board Decisions

Sep 18, 1942

44 N.L.R.B. 121 (N.L.R.B. 1942)

In the Matter of AMERICAN TUBE BENDING CO., INC. and LOCAL 420,
INTERNATIONAL ASSOCIATION OF MACHINISTS, A. F. OF L.
In the Matter Of AMERICAN TUBE BENDING CO., INC. and INTER-
NATIONAL ASSOCIATION OF MACHINISTS, A. F. OF L.
Cases Nos. C-1259 and R-3164, respectively.Decided , September
18, 19Jd
Jurisdiction : job manufacturing and tube fabricating industry.
Unfair Labor Practices
Interference, Restraint, and Coercion: interference with conduct of Board elec-
tion by action of employer in mailing letters and giving speeches to employees,
which, though not couched in terms of unequivocal threats, were intended to,
and did influence result of election.
Remedial Orders : employer directed to mail letters to employees informing
them that employer will not engage in prohibited activities.
Practice and Procedure : election set aside and petition for investigation and
certification of representatives dismissed without prejudice since employer
interfered with conduct of election.
Mr. John J. Cuneo, for the Board.
Watrous, Gwmbart cQ Corbin, of New Haven, Conn., for the
respondent. `
Mr. Jerome Y. Sturm, of New York City, for the Machinists.
Mr. Charles W. Schneider, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT- OF THE CASE
On August 13, 19,41, Local 420,' International' Association of
Machinists, A. F. of L., herein called the Machinists, filed with the
Regional Director for the Second Region (New York City), a peti-
tion alleging that a question affecting commerce had arisen concern-
ing the representation of employees of American Tube Bending Co.,
Inc., New Haven, Connecticut, herein called the respondent, and
requesting an investigation and certification of representatives pur.
suant to Section 9 (c) of the National Labor, Relations Act, 49 Stat
44 N. L. R. B., No. 24.
121
122 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
449, herein, called the Act. On November 18, 1941, the National
Labor Relations Board, herein called the Board, issued its Decision
and Direction of Election,' in which it directed that an election by
secret ballot be held to determine whether certain of the respondent's
employees desired to be represented for the purposes of collective
bargaining by the Machinists, or by American Tube Bending Em-
ployees' Cooperative Association, Incorporated, an unaffiliated labor
organization herein called the Association, or by neither. On De-
cember 2, 1941, pursuant to the aforesaid Direction of Election, an
election by secret, ballot was conducted by the Regional Director
among the hourly paid production and maintenance employees of
the company, including shipping and receiving employees and truck
drivers, but excluding supervisory, clerical, and drafting room em-
ployees, watchmen, timekeepers, and working foremen having the
power to' hire or discharge or to recommend hire or discharge. On
December 4, 1941, the Regional Director issued an Election Report
setting forth that a majority of those employees had voted against
both labor organizations appearing on the ballot.2 On December 5.
1941, the Machinists filed objections to the conduct of the election,
alleging in substance that the respondent had, by certain letters and
speeches to its employees prior to the election, prevented a free and
uncoerced selection of representatives. On December 23, 1941, the
Regional Director issued a report on the objections filed by the
Machinists, in which she stated that the objections raised substantial
and material issues with respect to the conduct of the election ; and
recommended that the objections be sustained, and that a hearing'
be held by the Board with respect thereto.
On January 30, 1942, the Machinists filed with the Regional Di-
rector a charge that the respondent, by the conduct referred to in the
objections, had violated Section 8 (1) of the Act. On March 11,
1942, the Board, finding that the objections raised substantial and
material issues with regard to the conduct of the election, ordered,
that a hearing be held on the objections and, acting in conformity with
Section 10 (c) -of National Labor Relations Board Rules and Regu-
r Matter of American Tube Bending Co , Inc and International Association of Machinists,
A. F. of L., 36 N L. R? B. 1079.
2 As to the balloting and its results , the Regional Director reported as follows
Total on eligibility list------------------------------------------- 417
Total ballots cast----------------------------------------------- 413
Total ballots challenged------------------------------------------ 0
Total blank ballots --------------------------- L------------------ 0
Total void ballots----------------------------------------------- 0
Total valid votes counted --------------- ----'-----------------_---- 413
Votes cast for American Tube Bending Employees' Cooperative 'Associa-
tion, Incorpoiated --------------------------------------------- 28
Votes cast for Local 420, International Association of Machinists------ 105
Votes cast for neither union --------------------------------------- 280
AMERICAN TUBE BENDING CO.,' INC. 123
lations-Series 2, as amended, ordered that the representation pro-
ceeding be consolidated with the unfair labor practice proceeding for
the purpose of hearing. On March 16, 1942, the Board, by the Re-
gional Director, issued its complaint against the respondent 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 Act. Copies of the complaint, ac-
companied by notices of hearing thereon and on the Machinists' ob-
jections to the election, were duly served upon the respondent, the
Machinists, and the Association.
With respect to the unfair labor practices, the complaint alleged
in ' substance that the respondent (1) urged, persuaded and warned
its employees to refrain from aiding, becoming, or remaining mem-
bers of the Machinists, or from voting for the Machinists in the elec-
tion conducted by the Board, and vilified and disparaged the Machin-
ists, its leadership, and purposes; (2) informed the employees that
collective bargaining was unnecessary; (3) attempted to discourage
membership in the'Machinists by informing the employees that col-
lective bargaining representatives were unnecessary, aind (4) at-
tempted to induce employees to deal directly with the respondent con-
cerning grievances, labor disputes, wages, rates of pay, hours of
employment, or conditions of employment, rather than through the
Machinists or other representatives of their own choosing. On May
22, 1942, the respondent filed an answer in which it denied that it
had committed unfair labor practices.
On June 11, 1942, the respondent filed a brief, and on July 7, 1942,
the respondent, the Machinists, and the attorney for the Board entered
into a stipulation waiving heariilg.3 The stipulation contained an
agreed set of facts, the transcript of certain testimony, and exhibits,
and further provided that said facts, testimony, and exhibits con-
stituted the entire record in the case, upon which record the Board
might, without further notice or proceedings, make findings of fact
and conclusions of law, and issue its decision and order. No request
for oral argument was made by any of the parties.
The Board has considered the brief filed by the respondent.
On the entire record in the case, the Board makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
i
American Tube Bending Co., Inc., is a Connecticut corporation
maintaining its principal office and a manufacturing plant in New
A,prior stipulation entered into on June 3 was supplanted by that of July 7
124 DECISIONS _OF' NATIONAL -LABOR RELATIONS BOARD
Haven, Connecticut, where it is engaged in .job manufacturing and
the fabrication of parts from tubing.
The principal raw and other materials used at the New Haven
.Plant include steel tubing, stainless steel, aluminum, copper, and
brass. During the 6-month period preceding March 27, 1942, the
respondent used at the New Haven Plant raw and other materials
valued at approximately $400,000, which were received from points
outside the State of Connecticut. These materials constituted ap-
proximately 60 percent of the total volume of the respondent's material
purchases during that time. During the same period, the respondent
sold and shipped from the New Haven plant to points outside the
State of Connecticut, products valued at approximately $1,000,000,
constituting approximately 77 percent of the total volume of sales
from the New Haven plant during that period.
The respondent stipulated that it is engaged in commerce within
the, meaning of the Act.
II. THE ORGANIZATION INVOLVED
Local 420, International Association of Machinists, is a labor
organization affiliated with the American Federation of Labor,
admitting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
, On November 24, 1941,' Henry W. Jones, president and treasurer
of the respondent and in charge of its labor relations, Bulkeley
Smith, the respondent's vice president and assistant treasurer, Jack
Senderoff, respresentative of the Association, and Clark B. Good-
rich, Grand Lodge representative of the Machinists, conferred in
the respondent's office. At this conference, the parties entergd into
a written agreement concerning certain details of the election, in-
cluding the date, which was set for Tuesday, December 2, 1941.
On or about November 28, 1941, President Jones dictated and sent
to all the respondent's employees, on stationery of the respondent
the following letter :
NOVEMBER 28, 1941.
To our Employees:
Next Tuesday will be an important day for all of us, and so
I wish it were possible for me to sit down and write each of you
a personal letter about the election to be held in our factory on
that day. But if you all receive the same letter it is only so
because time prevents my doing anything else. If there are
matters not quite clear to you I hope this letter will help to
explain some of them at least.
AMERICAN TUBE BENDING CO., INC. 125
This is an election to determine whether all of you will have
for your exclusive bargaining agent the American Tube Bend-
ing Company Employees Cooperative Association, or Local 420
of the International Association of Machinists A. F. L., with
the sole and only right to represent you in matters regarding
wages, working conditions, and other things, or whether you
want to continue as we have been doing, discussing your own
matters individually, with neither union to represent you.
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 voting, choose one or the other
of the unions, .that union has the say for all. This is different
from a majority of those entitled 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 Tuesday.
It does not have to do so. This election is by. secret ballot so
that you can record your 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, author-
ization, or anything else.
I do not know what either the Employees Association or the
Machinists Union desire, for I never have heard from either of
them, but I do know that the Company has established rates
which, job for job, are higher than the average in,New Haven,
and that the newer employees are being brought up to these
rates as fast as they learn the work efficiently on their own jobs.
These rates are as high as we can pay at present and still bring
in the orders for all to work on. I know also that each of you
can have a sympathetic hearing for your own personal problems,
and adjustments are made that are fair all round. And finally
I know that where individual rate increases have been granted,
more than 9 out of 10 have been granted by the company before
they were asked for.
One more thing I would like to suggest. This is an important
election. For many of us it is the most important one we have
ever voted in. ,It bears directly on your welfare and that of
those dependent on you. To what kind of leadership are you
126 DECISIONS OF NATIONAL , LABOR ' RELATIONS BOARD
going to entrust your future with the company? Is it unselfish
or is it not? Is it interested in your personal , individual, wel-
fare, or is it self-seeking ? On the basis of its past record is it
open and above board and dependable, or don't you know? These
are questions you should think about and -talk over at home.
And now I'll close with the only promise I have ever made
you. 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 con-
cerned. Whatever the election on Tuesday decides, your com-
pany will still continue to play the game, knowing that the best
interests of the American Tube Benders and the American Tube
Bending Company are just the same.
Sincerely yours, -
H. 117. JONES, Jr., President.
HWJ/EM. ,
To all employees ineligible to vote in the election there was also
enclosed a covering letter stating the following :
Next Tuesday we will have an election among the production
and maintenance workers of the plant to determine whether or
not they wish to be represented for collective bargaining by the
Employees Association or the Machinists Union.
You, of course, who get this note are not eligible to vote because
you do not classify as a production or maintenance employee.
I send you a copy of the letter so that you may know exactly
how I feel on this matter and so that you may be completely
posted regarding the election and all that it means. -
Sincerely yours,
HENRY W. JONES, Jr.,
President.
On December 1, 1941, the day before the election, all the respond-
ent's employees except the office girls were directed by the foremen
to assemble at a designated place in the plant, where they were ad-
dressed by President Jones, who read from a manuscript prepared
by himself and in the preparation of which he had consulted Vice-
Presidents Smith and Fred B. Kingsbury. The employees were as-
sembled in two groups : the first and second shifts consisting of ap-
proximately 420 employees were addressed at 3 p. m., and the third
shift consisting of approximately 60 employees at shortly after 11
p. m. Following is the text of President Jones' address :
Some of you have asked that I call you together to explain
the election which will be held in the plant tomorrow. On the
bulletin boards are notices of the election and also a notice which
AMERICAN TUBE BENDING CO., IN,C. 127
describes employees ' rights under the National Labor Relations
Act and also describes unfair labor practice .4 I am.reading you
this talk particularly in view of being able to prove if necessary
that in the talk to you this afternoon I have not committed an
unfair labor practice.
The notice of election describes how it shall be conducted.
The check lists, which are just like voting lists at regular political
elections , have been prepared by the company , and agreed to by
both the Employees Association and the Machinists . Union. As
you come up to the polling place you will find a representative
of the National Labor Relations Board, the company and both
unions with these check lists , and you will be asked to give your
name and check number so that you may be checked of -the list
when you have voted. The representative of the Labor Relations
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 one and only ballot box provided
for the election . This box will remain unopened until the polls
are finally closed at 11:45 at night. 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 manner and will give you abso-
lute freedom to express your choice without any coercion.
Twice before when I have talked to all of you I haye stated
the company 's position regarding the open shop, and I again
repeat it to you, that this is an open shop in a true 'sense of the
word. Members of labor unions and non-members of labor
unions are employed without any discrimination whatsoever, and
so long as I am-connected with the management , of this company
the policy will continue.
What then is the issue and why are we having an election to-
morrow. It all boils down to this . Can one or the other union
get more for you than you can get in any other way. Of course
the-important thing that all of us are thinking about is wages,
so let's talk about them a little. -
Where do they come from ? They come from the money re-
ceived from the sales of, our product to our customers all over
the country, and in' order that sales may be made to provide the
money for wages , we must be very careful how we set the price of
our product . If the price is too high , we lose orders. If the
price is too low we lose money, and in either way the money for
The Board' s usual notices prior to an election
128 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wages is not theee. Right now the company- is engaged- in a
very delicate and ticklish operation of raising the prices of our
product to our customers in order to allow us to continue our
present wage policy and at the, same time keep the business
-coming our way and not throw it into the laps of our competitors.
And so you have a right to know,'I believe, just what is the
company's wage policy. This is it. Our wage policy , is
to pay wages better than the average for equivalent jobs in-this
locality. -It is to pay wages as high as possible and still continue
able to sell our product, get repeat orders, and, keep. as many
people employed as we possibly can. Finally it is to pay wages
as high as, possible and keep the business sound financially so
that when a period of slack time comes we will have a strong
company and be able to go out and fight for the business that is
going to be so hard to get at that time.
What_ has been the record of the company in the past on
wages? You as employees should know better than anyone else.
As I told you before, we have rated the jobs according to the best
available scientific plan, and as I said before, anyone who wants
to see how that is done, can learn exactly how it's done by talking
with Mr. Hanabury, Mr. Kingsbury, Mr. Smith or myself. We
have voluntarily increased individual rates as quickly as you,
have earned them and as quickly as we could pay them. Your
choice now is whether or not you can better the record. Further-
more, our wage rates now are flexible, and some of you have had
as many as four increases in a year, but I call attention to the
fact that under a collective bargaining contract wage rates
usually tend to be established for a period of a year, and this
may interfere somewhat with the personal contact we have had
regarding' individual rates and may interfere with the recogni-
tion of improvement. Lastly regarding wages, if you decide to
have someone" represent you, you have got to make up your
minds to be willing to pay for that-representation.
So when it comes to the final analysis, fellows, you' are voting on
who you want to have for your leader. You have three choices.
First on the ballot is a choice for some of your fellow employees in
the Employees Association. Second on the ballot are outside people
having no connection with the plant, and working with a committee
of employees. These are the Machinists Union. Finally, the last
choice on the ballot is the present management of your company.
[Italics supplied.] I
You have to ask yourselves whether or not your fellow workmen,
no matter what fine fellows they are; cn do more for you than you
AMERICAN TUBE BENDING CO., INC. 129
have been able to do heretofore for yourselves? You have to ask
yourself why it is that total strangers all of a sudden become so
interested in your welfare? Who are they? And what have. they
done? And what more can they do for you than you have,already'
done- for yourself? You have to ask yourself whether, the manage-
ment 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 either
union are the same. In other words, fellows, it boils right down to
this. . Is your status under my leadership something that you can
im.pr'ove by choosing someone else for your leader. [Italics supplied.]
Now this has been going on for more than a year, and the matter
is coming up for a decision tomorrow. When its 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 made [sic] 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.
So I urge you most earnestly to vote tomorrow.
Conclusions
The respondent contends that the utterances in the letters and the
speeches were mdre expressions of opinion, devoid of restraint and
coercion, which it was privileged to make in the exercise of its right
of free speech. It is apparent, however, and it is not denied by the
respondent, that the purpose of President Jones in issuing,the letters
and delivering the speeches was to influence the 'result of the election.
The act, however, contemplates selection by employees of their bar-
gaining representatives free from employer interference.' Such free-
dom on the part of employees imports a correlative study on the part
of employers to maintain complete neutrality with respect to an elec-
tion conducted to ascertain bargaining representatives.'
N L It B ,v Burry Biscuit Cap ., 123 P (2d) 540 (C C A 7),
See N LIR B. v Norman H Stone, 125 F. (2d) 752 (C C A. 7) ; Matter of Sunbeam
Electric Manufacturing Co. and United Electric, Radio cC Machine Workers of America,
affiliated wroth the 0. 1 0, 41 N. L R B. 469 ; Matter of American Oil Company and
International Brotherhood of Teamsters , Chauffeurs , Warehousemen it Helpers of America,
41 N L R B 1105
48749S' -42-vol 44-9
130 DECISIONS OF NATIONAL LABOR- RELATIONS BOARD
Jones' letter to the employees, however, fully apprised them that the
respondent was definitely not a neutral. On the contrary, the carefully
measured phraseology of the letter revealed clearly the respondent's
intention not to stand idly by while its employees selected bargaining
representatives with whom the respondent would be required to deal.
The underlying thesis of the communication was that, from the stand-
point of the employees, collective bargaining was not only unnecessary,
but fraught with possibilities inimical to their welfare. Jones subtly
pointed out that:
.. . wage rates, job for job, are higher than the average in New
Haven, and . . . the newer employees are being brought up to
these rates as fast as they learn the work efficiently on their own
jobs. These rates are as high as we can pay at present and still,
bring in the orders for all to work on.
With respect to' their grievances, the letter assured the employees
that each of them could get from the respondent
a sympathetic hearing for [their] own personal problems,
and adjustments . . . made that are fair all round.
He further made it clear that the respondent's beneficieut policy made
requests for wage increases unnecessary since
. . . where individual rate increases have been granted. more
than 9 out of 10 have been granted by the company before they
were asked for.
Finally, the employees were exhorted to exercise care in the selection
of the "leadership" to which they would "eatrustt their f atwvi'e with the
com ya'ny."
The communication could not fail to bring home to the employees
that their employer considered himself to be a party to the election
and to have a very real interest in its outcome, and that they were
being importuned to lend their support to that interest. But if the
letter left any doubt in the minds of the employees as to the respond-
ent's position and purpose, that doubt was certainly. dispelled by Jones"
address on the eve of the election. Posing the issue whether one or the
other union could obtain more for the- employees than they could
secure for themselves, Jones argued that the employees' wages were
better than on equivalent jobs in the locality and as high as could
be paid -without the loss of business, and asked the employees whether
they could better the respondent's record. He called to their attention
that some of them had bad as many as four wage increases within a
year and warned them that
AI1ERICAN TUBE BENDING Co., INC. 131
. . . Mader a collective bargaining contract, wage rates usually
tend to be established for a period of a year; and this may inter-
fere somewhat with the personal contact we have had regarding
individual rates and may interfere with the recognition of
improvement.
The employees were also warned that if they desired representation
they must•make,up their minds to pay for it.
Jones'then postulated the false issue that the election would decide
whether the employees were to be led by either of the unions or by
he company; and that a vote for the unions was a vote against the
company :
So when it, comes to the final analysis, fellows, you are voting on
who you want to have for your leader. You have three choices.
First on the ballot is a choice for some of your fellow employees
in the Employees Association. Second on the ballot are outside
people having no connection with the plant, and working with a
committee of employees.7 These are the Machinists Union.
Finally, the last choice on the ballot is the present management
of your co'l patty.$ [Italics supplied.]
The employees -\\-ere directed to ponder
why it is that total sti angers all of a sudden became so interested
In your welfare? Who are they? And what have they done?
And what more can they do for you than you have already done
for yourself?
Finally, the employees must choose between membership in the.
unions and loyalty to the company :
You have-to decide whether your interests and the company's
are the same or whether your interests and those of either union
are the- same. In other words, fellows, it boils right down to
this. Is your status under mzy leadership something that you
can imp'ove by choosing sollaeole else for your leader. [Italics
suppled.]
By such false interpretation of the issues, the respondent became
a candidate in the election and forced himself upon the ballot.' The
employees were requ n•ed to choose, not whether they should have
-See Roebliap Nmplo+/ ces ,,.oc,ution , Inc v 1' L N B, 120 F (2d) 289, 291
(C. C.A.3):
The connotation -of the teams . . . "outsiders", and "strangers ", as applied by the
respondent to adversaries in a labor controversy , has an appropriate place in a con-
sideration ' of the -respondent 's attitude toward "outside" labor organizations and the
probable effect of that'attitude upon the employees.
Referring to the "Neither
132 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
collective bargaining reprssntatives, but whether they should be loyal
to the respondent. The forcefulness of the deception is attested by
the results of the election.9 What we -said in Matter of Sunbeam
Electrio• and Manufacturing Co.10 is' especially applicable here :
No such choice is presented to employees participating in an
election conducted pursuant to the provisions of the Act; the
only question involved in such an election is whether the partici-
pating employees want to designate represen'hitive for the
purposes of collective bargaining with their employer and, if-
they do, which if any competing representatives shall be desig-
nated. An election is not 6 contest between a labor organization
and the employer of the employees being polled, and participa-
tion by an employer in a preelection campaign as if he were a
contestant is ai interference with the employees' rights to bar-
gain collectively through representatives "of their own choosing 11
We find no merit in the respondent's contention that its conduct
was' privileged under its rights to free speech. The character of the
medium of expression which is utilized is not' the test as to whether
an employer's conduct violates Section 8 (1) of the Act. The cri-
terion is whether the conduct itself, however it may be evidenced,
constitutes an interference with the rights guaranteed in Section 7.
As the Supreme Court of the United States recently pointed out :
in determining whether a course of conduct amounts to
restraint or coercion, pressure exerted vocally by the employer
may no more be disregarded than pressure in other ways.
That the respondent 's conduct affected the employees ' choice of a baig.uning iepre-
sentativo may be inferred from the fact that prior to the representation hearing the Ma-
chinists submitted application-for-membership and bargaining authorization cards signed
by 172 employees of the respondent in the appropuate unit, whereas only 105 employees
i oted for the Machinists in the subsequent election.
10 N. L . R. B. 469.
li See N. L R B. v. Norman H Stone, supra; wherein the Court stated "The [election]
campaign then being conducted , however , was not one between the union and the respondent
It was a campaign toward which they should have maintained a strictly neutral attitude.
The letter , even though it contained no misrepresentations , was calculated to influence
and, we think , interfere with the rights of the employees to have a free election "
See also N . L. R. B. v. Burry Biscuit Corp, 123 F. (2d) 540 (C. C. A. 7) where the
Court said :
No matter what the employer ' s honest'belief as to employment policy may be, no matter
how much he may desire to aid his employees by his own suggestions , it is the purpose
and intent of the law that when the employees embark upon a'couise of action necessary
to the selection of a bargaining agent , they act freely and wholly without influence from
the employer . We are not concerned with the wisdom or lack of wisdom of such a stand.
We can only reassert that Congress has made it the employer ' s duty in such cases to
observe the utmost of neutrality and impartiality and to accord to the employees an
unhampered , uninfluenced iight to determine their own labor affiliations ' '[Citing
N L. R. B. V. Falk Corp, 308 U. S. 453 and 'Internatzonal Association of Machinists v.,
AT, L •R B, 311 U S. 72 ] This is the essence of collective bargaining.
AMERICAN TUBE - BENDING co., INC.'- = X133
And again,
In determining whether the Company actually interfered with,
restrained, and coerced its employees the Board has a right to -
look at what the Company has said as well as what it has done 12
The letters and the speeches were not isolated and independent
.phenomena, nor do they constitute the entire fabric of the conduct
pattern woven by the respondent. They must be considered together
and in connection with, not apart from, the circumstances in which.
they were cast. The respondent made itself a candidate ,in the
election in opposition to the unions: It campaigned in its capacity
of employer, and addressed communications to the employees on
company stationery bearing the signature of its president. Its cam-
paign speeches were delivered on company property to audiences of
-employees assembled by the respondent's supervisors-tactical ad-
vantages which the unions could not possibly match, and the utiliza-
.tion of which brought heavily into play the,economic dependence of
the employees upon the respondent for their livelihood. The re-
spondent's campaign was thus devised throughout to take advantage
,of its influential employer status. It was impossible for the em-
ployees to distinguish between the respondent qua candidate and the
respondent qua employers. That the utterances were not couched in
terms of unequivocal threats we do not regard as significant, for as
stated by the Supreme Court in International Association of Ma-
chinicts v. N. L. R. B.13
Slight suggestions as to the employer's choice between unions
may have telling effect among men who know the consequences
of incurring that employer's strong displeasure. ,
Because of the relationship existing between the author of the
utterances and the.employes, as well as the circumstances under which
the communications were delivered, they attained a force stronger
than their intrinsic connotation, and beyond that of persuasion. They
achieved a coercive effect that could not possibly be dissipated by
the deft suggestion of Jones that the election would be "conducted
in a fair and impartial manner . . . give you absolute freedom
to express your choice without any coercion."
As the Court stated in N. L. R. B. v. Federbush 00.: 14
The privilege of "free speech," like other privileges, is not
absolute; it has its seasons; a democratic society has an acute
interest in its protection and cannot indeed live without it;
but it is ,in interest measured by its purpose. That purpose
12 N. L R B v. Virgimza Electric and Power Co , 314 U. S 469
' 311 U . S. 72, 78.
14 121 F. (2d) 954, 957.
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is to enable others to make an informed judgment as to what
concerns them, and ends so far as the utterances do not con-
tribute to the result. Language may serve to enlighten a hearer,
though it also betrays the speaker's feelings and desires; but
the light it sheds will be in some degree clouded, if the hearer
is in his power.
Arguments by an employer directed to his employees have
such an ambivalent character; they are legitimate enough as
such, and pro tanto the privilege of "free speech" protects them;
but, so far as they also disclose his wishes, as they generally do,
they have a force indepelident of persuasion. The Board is
vested with power to measure these two factors against each
other, a power whose exercise does not trench-upon the First
Amendment.
Words are not pebbles in alien juxtaposition; they have only
a communal existence; and not only does the meaning of each
interpenetrate the other, but all in their aggregate take their
purport from the setting in which they are used, of,which the
relation between the speaker, and the hearer is perhaps the most
important part. What to an outsider will be no more than the
vigorous presentation of a conviction, to an employee may be
the manifestation of a determination which it not safe to
thwart.''
We express no opinion as to what the results may have been under
other circumstances We merely hold that under the circumstances
here presented, the respondent by its whole course of action has
interfered with the conduct of a Board election and has attempted
to influence the result of that election in such a manner as to con-
stitute an interference with the right of its employees to designate
collective bargaining representatives free from coercion, and has
thereby ,interfered with, restrained, and coerced its employees in
their exercise of,tlle rights guaranteed in Section 7 of the^-Act.
Iv. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III above,
occurring in connection with the operations of the respondent de-
scribed in Section I above, have a close, intirmate, and substantial
'' See also N L R B v. Chicago Apparatus Co, 116 F ( 2d) 753 (C. C. A 7) where the
Coin t stated in part p 756
Expressions of opinion concerning labor unions , by an employee , either «iitten
or merely spoken , may be of such it nature that their eftect is to cocice and intimi-
date the employees To hold that such expression , when employer manifestly
intended to give them such an effect. are not violative of the Labor Act, would be,
to nullify the provisions of the Act and to thwait the public policy evidenced,,by
said Act
AMERICAN TUBE BENDING CO., INC. 135
'relation to trade, traffic, and commerce, among the several States
and tends to lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce. i
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 affirmative action designed to effectuate the policies of the
Act. We shall also require the respondent to notify each of its
employees by mail that the respondent will not in any manner inter-
fere with, restrain or coerce its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
VI. TILE PETITION
Since we have found that the respondent has by its unfair labor
practices interfered with the free choice of representatives by its
employees at the election of December 2, 1941, we • shall set-'aside
the election and dismiss the petition without prejudice.-
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. Local 420, International Association of Machinists, affiliated
with the 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 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 Rela-
tions Act, the National Labor Relations Board hereby orders that
the respondent, American Tube Bending Co., Inc., New Haven, Con-
necticut, 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-
1 0 See Matter of The Letz Manufacturing Company and Federal Labor Union No 22226.
affiliated imth , the American Federation of Labor , et al, 32 N. L. R. B. 563.
136 DECISIONS', OF NATIONAL, LABOR' RELATIONS BOARD
organization, to form, join, or assist labor organizations, to bargain
collectively through representatives of, their own choosing, and to
engage in concerted activities for the purpose of collective bargain-
ing or other mutual aid and protection, as guaranteed in Section 7
of the National Labor Relations 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 in its plant at New
'Haven, Connecticut, and maintain for a period of at least sixty (60)
consecutive days, from the date of posting 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;
(c) Notify the Regional Director for the Second Region in writing
within 10 days from the date of this Order what steps the respondent
has taken to comply therewith.
AND IT IS FURTHER ORDERED that` the petition for investigation and
,certification of representatives filed by International Association of
Machinists in Case No. R-3164 be, and it hereby is, dismissed with-
out prejudice.
CHAIRMAN MILLIS tool, no part in the consideration of the above
Decision and Order.
t