American Tube Bending Co., Inc.

National Labor Relations Board - Board Decisions

Jan 28, 1953

102 N.L.R.B. 735 (N.L.R.B. 1953)

AMERICAN TUBE BENDING COMPANY , INCORPORATED 735
or any other employee or applicant for employment in violation of Section
8 (a) (3) of the Act.
WE wILL NOT in any like or related manner restrain or coerce employees or
prospective employees of such companies in the exercise of their right to
engage in or refrain from any or all concerted activities listed in Section 7
of the Act, except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition of employ-
ment as authorized by Section 8 (a) (3) of the Act.
WE WILL make Ivy P . Boudreaux whole for any loss of pay suffered because
of the discrimination against him.
We have no objection to the employment of Ivy P. Boudreaux as a longshore-
man or in any other riverfront job capacity in the port of New Orleans. We
have given notice to that effect to all companies engaged in stevedoring work
in the port of New Orleans.
LOCAL UNION 1418, GENERAL LONGSHORE
WORKERS, INTERNATIONAL LONOSHORE-
MEN's ASSOCIATION, AFL
Labor Organization.
By --------------------------------------------
(Representative ) (Title)
Dated --------------------
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.
AMERICAN TUBE BENDING COMPANY, INCORPORATED and INTERNA-
TIONAL BROTHERHOOD OF BOII.ERMAIERs, IRON SHIPBUILDERS AND
HELPERs OF AMERICA, AFL
AMERICAN TUBE BENDING COMPANY, INCORPORATED and INTERNA-
TIONAL BROTHERHOOD OF BOILERMAKERS , IRON SHIPBUILDERS AND
HELPERs of AMERICA, AFL, PETITIONER. Cases Nos. 1-CA-1082
and I -RC-2518. January 28,1953
Decision and Order
On July 17, 1952, Trial Examiner Sidney Lindner issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom, and
take certain affirmative action, as set forth in the copy of the Interme-
diate Report attached hereto. The Trial Examiner also recommended
that the election held in Case No. 1-RC-2518 on December 7, 1951, be
set aside. Thereafter, the Respondent filed exceptions to the Interme-
diate Report, and a supporting brief. The Respondent also requested
oral argument. The request is denied, because, in our opinion, the
record, exceptions, and brief adequately present the issues and the
positions of the parties.
102 NLRB No. 68.
736 DECISIONS OF PtAT10NAL LABOE RELATIONS BOAIID
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. , The rulings are hereby
affirmed. The Board has considered the Intermediate Report, the
exceptions and brief, and the entire record in this case, and hereby
adopts the findings,' conclusions, and recommendations of the Trial
Examiner.2
Order
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, American Tube Bending
Company, Incorporated, New Haven, Connecticut, its officers , agents,
successors, and assigns, shall:
1. Cease and desist from :
(a) Interfering with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form labor organiza-
tions, to join or assist International Brotherhood of Boilermakers,
Iron Shipbuilders and Helpers of America, AFL, 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, by dis-
criminatorily applying its no-solicitation rule.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in New Haven, Connecticut, copies of the
notice attached hereto as Appendix A.3 Copies of said notice, to be
furnished by the Regional Director for the First Region, shall, after
being duly signed by the Respondent, be posted by the Respondent im-
mediately upon receipt thereof and maintained by it for 'sixty (60)
consecutive days thereafter in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
I In adopting the Trial Examiner's findings, we have accepted his resolutions of credi-
bility; Standard Dry Wall Products Inc., 91 NLRB 544, enfd. 188 F. 2d 362 ( C. A. 3)
N. L. R. B . v. Universal Camera Corporation, 190 F. 2d 429 (C. A. 2).
2 The Respondent contends , among other things , that the Trial Examiner erred in
finding unlawful its discriminatory application of a no-solicitation rule , because the com-
plaint did not refer to such rule but alleged as violative of Section 8 (a) (1) only the
Respondent 's refusal to grant the Union's request to make a preelection speech under
conditions similar to those obtaining when the Respondent ' s president made such a
speech. We find no merit in this contention . The Respondent has not specifically con-
troverted the facts relating to the no-solicitation rule and has not demonstrated any
prejudice by reason of the alleged variance between the complaint and the proof . Cf. James
Thompson & Co., Inc., 100 NLRB 456; Pacific Mills, 91 NLRB 60, vacated by the Board,
July 17, 1951, on other grounds.
s In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words, "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
AMERICAN TUBE BENDING COMPANY, INCORPORATED 737
(b) Notify the Regional Director for the First Region, in writing,
within ten (10) days from the date .o f ,.this 'Order, what steps the
Respondent has taken to comply herewith, ,
IT IS FURTHER ORDERED that the December 7, 1911, election be, and it
hereby is, set aside, and that Case No. 1-RC-2518 be remanded to the
Regional Director for the First Region for the purposfl' of'p6nducting
a new election at such time as he deems that circnllsta,nce pdt'mit the
free choice of a bargaining representative. - ,_
Appendix A
NOTICE To ALL EMPI,Q E
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interfere with, restrain,,ort,coerce our employees
in the exercise of their right to self-organi zation, to form labor
organizations, to join or assist INTERNATIONAL BROTHERHOOD OF
BOILERMAKERS, IRON SHIPBUILDERS AND UEI,,PERS OF AMERICA,
AFL, 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, by discriminatorily applying our
no-solicitation rule.
AMERICAN TUBE BENDING COMPANY, INCORPORATED,
Employer.
By --------------=--------------------------------------
(Representative ) (Title)
Dated--------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF TEE CASE
On December 14, 1951, International Brotherhood of Boilermakers , Iron Ship-
builders and Helpers of America , AFL, herein called the Union filed unfair
labor practice charges in Case No. 1-CA-1082 against the American Tube Bending
Company, Incorporated , herein called the Respondent . Previously on December
11, 1951, the Union filed objections to a representation election conducted by the
Regional Director for the First Region (Boston , Massachusetts ), among the
Respondent's employees on-December 7, 1951, in Case No . 1-RC--2518.
On April 9, 1952, the Board upon consideration of a report made by the Re-
gional Director dated February 21, 1952 , recommending the setting aside of the
738 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
election and of the exceptions thereto filed by Respondent's counsel decided that
the Union's objections raised substantial and material issues of fact with respect
to the conduct of the election and accordingly ordered that a hearing be held
and a report with findings and recommendations be submitted on the issues raised
with respect to a speech made by Respondent 's president to its employees on
December 6, 1951.
On April 7, 1952, the Regional Director issued a complaint based upon the
Union's charge in Case No. 1-CA-1082 alleging that the Respondent 's denial of
the Union's request to accord it an opportunity to address the Respondent's em-
ployees on Respondent's premises at sometime prior to the election scheduled
for December 7, 1951, and under conditions similar to those obtaining at the
time the employees were addressed by the Respondent's president, constituted
unfair labor practices within the meaning of Section 8 (a) (1) and Section 2 (6)
and (7) of the National Labor Relations Act, herein called the Act. On April
16, 1952, an order consolidating Cases Nos. 1-CA-1082 and 1-RC-2518 together
with an amended notice of hearing was issued by the Regional Director and
duly served upon the Respondent and the Union. Copies of the original charge,
complaint, and original notice of hearing having previously been served on the
Respondent and the Union on April 7, 1952.
The Respondent's answer duly filed admitted the jurisdictional allegations
of the complaint and that the Union is a labor organization within the meaning
of the Act but denied the commission of any unfair labor practices. In its
exceptions filed to the Regional Director's report on objections to the election
the Respondent raised the following issues: (1) The speech by Respondent's
president, in view of the result of the election as found in the tally of ballots,
could not have affected the results so as to interfere with a free-choice election ;
(2) the denial of an opportunity to the Union, having been made after the Re-
spondent president's speech and after first shift employees had gone home the
day before the election, did not affect the result of the election; (3) the Re-
spondent questions whether or not the speech and/or the denial as isolated
instances so affected the result of the election to warrant its being set aside ; and
(4) the circumstances were not such that only by granting the Union's request
sometime after the speech in question for use of the same forum could the
employees have a reasonable opportunity to hear both sides of the issue on which
they were about to vote. In fact the Respondent claimed the employees heard
both sides.
Pursuant to the notice already mentioned a hearing was held in New Haven,
Connecticut, on May 26, 1952, before the undersigned Trial Examiner duly
designated by the Chief Trial Examiner. The General Counsel of the Board and
the Respondent by its respective counsel and the Union by its representative par-
ticipated in the hearing and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, and to introduce evidence bearing upon the
issues. At the conclusion of the taking of testimony the General Counsel's mo-
tion to conform the pleadings to the proof with respect to minor matters such
as dates, the spelling of names, and the like was granted without objection.
Ruling was reserved on Respondent counsel's motion that the complaint be dis-
missed. It is disposed of in accordance with the conclusions and considerations
set forth in this report. Waiving full oral argument the parties briefly dis-
cussed the issues , their respective contentions , and the authorities upon which
they relied. Since the conclusion of the hearing the undersigned has received
briefs from the Respondent and the General Counsel which have been duly
considered.
AMERICAN TUBE BENDING COMPANY, INCORPORATED 739
Upon the entire record in the case and from his observation of the witnesses
the Trial Examiner makes the following :
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
American Tube Bending Company, Incorporated, is a corporation duly organ-
ized under and existing by virtue of the laws of the State of Connecticut with its
principal office and place of business in New Haven , Connecticut, where it is
engaged in the manufacture of custom -made tubular parts and assemblies. In
the course and conduct of its business operations Respondent in the past year
purchased approximately $500,000 worth of steel , aluminum , and other raw ma-
terials, 80 percent of which was shipped to its New Haven plant from points
outside the State of Connecticut. During the same period it sold in excess of
$1,000,000 of custom-made tubular parts and assemblies 70 percent of which was
transported and shipped from its New Haven plant to points outside the State of
Connecticut. The Respondent's answer admits and it is hereby found that it
is engaged in commerce within the meaning of the Act.
IL THE LABOR ORGANIZATION INVOLVED
International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, AFL, is a labor organization within the meaning of the Act admit-
ting to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
The facts
On November 2, 1951, the Union filed its petition with the Board for certifica-
tion as bargaining representative of the Respondent's production and mainte-
nance employees.
On November 13, 1951, a stipulation for certification upon consent election
was executed by the parties providing for an election to be held on December 7,
1951, between the hours of 3 p. in. and 4:30 p. in. in the inspection department
of Respondent's plant.
Vincent Curran, district representative of the Union, present at the meeting
when the stipulation was signed testified that after the parties reached agree-
ment he told Respondent's representatives Howard Ware Jones, president, and
Russell Hanabury, personnel manager, that if Respondent addressed its employees
as it did prior to past elections held among its employees' then the Union desired
the same opportunity to speak to the employees. Curran added, "I hope you
give me the same opportunity." Neither an answer nor comment was given
Curran by Respondent's representatives'
'According to Jones' speech to the employees received in evidence elections were held
in the plant in 1941, 1946, and 1950.
' Jones recalled that Curran made some remarks about possible speeches Respondent
might make to its employees but did not remember Curran requesting an equal opportunity
to speak to the employees. Hanabury was unable to remember anything specific about
Curran's remarks concerning a speech by Respondent to its employees. He was certain,
however, that Curran did not make a request to speak to the employees if Jones addressed
them. I credit Curran's testimony set forth hereinabove.
740 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On December 6, 1951 , the employees were notified by their supervisors `of a
meeting to be held on the premises . The employees of both shifts $ assembled
at approximately 4 p. in. and for about 25 minutes thereafter were addressed by
Jones on the subject of the Union ` and the election . At the outset of his speech
Jones advised the employees that it was not obligatory to stay and listen to him.
His impression was that most of them stayed . Employees of the second shift,
during whose work period the speech took place , were compensated for the time
they spent at the meeting at their regular rates of pay while first shift employees
were compensated for the time so spent at their regular rates or at o`verti%i e
premium rates dependent upon the number of hours they worked- dui ng that
particular week.
During the entire time Jones spoke the plant doers were locked froli► '+ie in-
side. Employees who desired to leave could do so and employees sgekjng to
,enter were permitted in by others who recognized them to be employees.'
Although the plant is bound by security regulations of the United ' States Air
Force, it had only on isolated occasions prior to the speech kept its doors
locked and guarded . Jones testified that the doors were locked on December 6
because Respondent "wanted to make sure those who heard the speech were
entitled to hear it"; that it was a personal matter between Respondent and its
employees ; that on other occasions union organizers did not always come to
the plant to sign in and out in accordance with the security regulations but
would wander in the plant whenever they saw ap open door ; and these steps
- were taken so that would not occur.
Shortly after Jones completed his speech and at about 4:27 p . in., Curran
spoke to Hanabury in the plant and asked for the opportunity to address Re-
spondent 's employees under circumstances similar to those obtaining when Jones
spoke to them . Curran 's request was denied.
On the morning of December 7, the Union distributed a handbill entitled "An
Open Letter to Mr. Henry Ware Jones."'
The Respondent had in effect at all times material herein a rule against
solicitation on its time and property.
The election was held as scheduled with the following results :
Approximate number of eligible voters-------------------------- 158
Void ballots--------------- ------------------------------------ 1
Votes cast for International Brotherhood of Boilermakers, Iron
Shipbuilders and Helpers of America , AFL-------------------- 48
Votes cast against the Union----------------------------------- 94
Valid votes counted------------------------------------------- 142
Challenged ballots--------------------------------------------- 1
Thereafter as fully set forth hereinabove in the section "Statement of the
Case" steps were taken to bring this eantire , matter to hearing.
Conclusions
It is clear from the foregoing findings of fact that the Respondent in spite of
its established rule against solicitation campaigned against the Union during
working hours and on the same premises to which the Union was denied access.
The Court of Appeals for the Second Circuit in the Bonwit Teller case decided
June 17, 1952 ( 197 F. 2d 640 ), where the factual setting was essentially the same
01 The first shift hours are from 7 a. in. to 4 p . m. Type second shift commences at 4
p m. and works until 1 : 30 a. in.
+ The Union 's organizational campaign was carried on by the distribution of handbills.
It did not hold any mass meetings of employees.
AMERICAN, TUBE BENDING COMPANY, INCORPORATED 741
in its operative facts as the situation existing herein 6 enunciated the rule that
it is a violation of the Act for an employer to discriminatorily apply a no-solicita-
tion rule.
Further, as the Board pointed out in the Biltmore Manufacturing Company,
-ease, 97 NLRB 905, discrimination being present it is immaterial that it occurred
in a factory rather than in a retail sales establishment. ,
Upon the foregoing and on the entire record, I find that in the discriminatory
application of its established rule against solicitation the Respondent interfered
with, restrained, and coerced its employees in the exercise of their right freely
to designate their collective-bargaining representative as guaranteed in Section 7
of the Act thereby committing an unfair labor practice within the meaning of
Section S (a) (1) of the Act and making impossible the fair representation elec-
tion contemplated and required by Section 9 (c) of the Act. In reaching these
conclusions I have considered the Respondent's exceptions to the Regional Direc-
tor's report on objections and find them to be without merit. See Boiw,it Teller,
supra; Biltmore Manufacturing Company, supra; Bernardin Bottle Cap Com-
pany, Inc., 97 NLRB 1559 ; Metropolitan Auto Parts, Incorporated, 99 NLRB 901;
Massachusetts Motor Car Company, Inc., 99 NLRB No. 74, Accordingly, I will
recommend that the results of the election of December 7, 1951, be set aside
and a new election ordered by the Board.
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 described in section I, above, have a close, inti-
mate, 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.
V. THE REMEDY
Having found that the Respondent engaged in unfair labor practices it will
be recommended that it cease and desist therefrom and take certain affirmative
action which will effectuate the policies of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
CONCLUSIONS OF LAW
1. International Brotherhood of Boilermakers, Iron Shipbuilders and Helpers
of America, AFL, is a labor organization within the meaning of Section 2 (5)
of the Aet.
.2. By discriminatorily applying its established rule against solicitation thus
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 (a) (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.
[Recommendations omitted from publication in this volume.]
51n the instant case as found hereinabove Jones addressed the employees on the eve
of the election whereas in Bonwit Teller the employees were spoken to 6 days before a
runoff election.
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