Browning Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 21, 1963

142 N.L.R.B. 1397 (N.L.R.B. 1963)

BROWNING INDUSTRIES, INC. 1397
WE WILL NOT refuse to bargain with the Carpenters , the Engineers, the
Laborers, the Teamsters , or the Pipefitters at any time when we have an obliga-
tion to do so by reason of a valid existing contract.
WE WILL NOT in any manner interfere with, restrain , or coerce our employees
in their exercise of the right to self-organization, to form, join, or assist the
Carpenters, the Engineers , the Laborers, the Teamsters , or the Pipefitters, 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 , or to refrain from any or all such
activities , except to the extent that such rights may be affected by a valid agree-
ment requiring membership in a labor organization as a condition of employ-
ment consistent with Section 8 (a) (3) of the Act.
OILFIELD MAINTENANCE CO., INC., AND
OILFIELD MAINTENANCE & ENGI-
NEERING CO ., INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting , and must
not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board's Regional Office, 849 South
Broadway, Los Angeles, California , 90014, Telephone No. Richmond 9-4711,
Extension 1031, if they have any question concerning this notice or compliance
with its provisions.
Browning Industries , Inc. and Local 1710, International Brother-
hood of Electrical Workers. Case No. 21-CA-4915. June 21,
1963
DECISION AND ORDER
On February 28, 1963, Trial Examiner Herman Marx issued his
Intermediate 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 attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the Respondent's exceptions and brief, and the entire
record in this case, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner.'
'In the absence of exceptions thereto we adopt pro forma the findings of the Trial
Examiner that ( 1) the Respondent did not violate Section 8 (a) (1) of the Act by a state-
ment to the employees that they did not need a union but could deal with the manage-
ment through an employee representative ; and (2 ) it was unnecessary to decide whether
a threat that there would be a number of discharges if the Union won the pending elec-
tion was a violation of Section 8(a) (1) of the Act in "the absence of a supporting allega-
tion in the complaint."
142 NLRB No. 148.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
The Board adopts the Recommended Order of the Trial Examiner.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
The complaint alleges that the Respondent , Browning Industries, Inc. (herein
also called the Company ), has violated Section 8 (a) (1) of the National Labor
Relations Act, as amended (29 U.S .C., Sec. 151, et seq.; herein called the Act), by
threatening and assaulting employees because of their activities on behalf of a labor
organization named Local 1710 , International Brotherhood of Electrical Workers
(referred to below as the Union ); increasing wages and making offers of benefits
to employees in order to influence their votes in a representation election; and
promising employees to institute a grievance committee if they rejected the Union in
the election . The Respondent has filed an answer which , in material substance,
denies the commission of the unfair labor practices imputed to it.'
Pursuant to notice duly served by the General Counsel upon all parties entitled
thereto , a hearing upon the issues in this proceeding has been held before Trial
Examiner Herman Marx at Los Angeles, California. The General Counsel and the
Respondent appeared through , and were represented at the hearing by, respective
counsel ; and participated therein . The Union , which filed the charge upon which
the complaint is based , entered an appearance through a business representative, but
did not otherwise participate . All parties were afforded full opportunity to be heard,
examine and cross-examine witnesses , adduce evidence , file briefs, and submit oral
argument . A brief filed with me since the close of the hearing by the Respondent
has been read and considered . Neither the General Counsel nor the Union has filed
a brief.
Upon the entire record , and from my observation of the witnesses , I make the
following:
FINDINGS OF FACT2
I. NATURE OF THE COMPANY 'S BUSINESS ; JURISDICTION OF THE BOARD
The Company is a corporate enterprise ; maintains a place of business , including
a factory, at Costa Mesa , California ; has been there engaged in the manufacture
and sale of plastic and fiberglass products since July 3, 1962 , when it purchased
the plant and other assets from a concern known as Ecko Products ; and is, and has
been at all material times, at the Costa Mesa establishment , an employer within the
meaning of Section 2(2) of the Act.
Since its purchase of the Costa Mesa facility , the Company, in the course and
conduct of its business there , has purchased goods and services outside the State of
California at a rate in excess of $50,000 per year; has sold goods and services to
customers located outside California at an annual rate in excess of that sum; and
has made sales of goods and services , at an annual rate in excess of $50 ,000, to
customers located inside the said State , who have, during the same period, sold
goods and services outside California at a yearly rate exceeding $50,000 . By reason of
such transactions , the Company , as the complaint alleges and the answer admits, is,
and has been at all material times , engaged in interstate commerce within the mean-
ing of Section 2 ( 6) and (7) of the Act . Accordingly , the National Labor Rela-
tions Board has jurisdiction of the subject matter of this proceeding.3
1 The complaint is based on a charge filed with the National Labor Relations Board by
the Union on August 2, 1962 , and an amendment thereof filed on September 6, 1962.
Copies of the complaint, charge, and amendment have been duly served upon the
Respondent.
2 The Respondent called no witnesses . All findings and conclusions made herein are
based on evidence that Is not in material dispute.
8 There is some suggestion in the record ( as one may gather from the admitted allega-
tions of paragraph 2(c) of the complaint ) that the Company has one or more places of
business outside California , but no such location is identified , nor does the record specify
the State in which the Company Is Incorporated . In any case , the Board 's jurisdiction,
and the commerce facts upon which it rests , are not in dispute.
BROWNING INDUSTRIES, INC. 1399
II. THE LABOR ORGANIZATION INVOLVED
As the complaint alleges, and the answer concedes, the Union is, and has been
at all material times, a labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Prefatory statement
Upon acquisition of the Costa Mesa plant on July 3, 1962, the Company hired a
little more than 40 persons who had been on the Ecko Products staff until the sale
of the facility. Among these were some supervisory personnel, including Vernon
Price, Sherman Burkhardt, and Chester Cable, who are classified as leadmen, Herbert
Jenks, general manager; and Nick Onia, plant superintendent. Onia is vested with
authority to hire and discharge personnel and, subject to direction by Jenks, super-
vises the plant's operations. Jenks is, in turn , subject to supervision by the Company's
president, John Browning, who is not stationed at the plant and has been there only
a few tunes since its purchase by the Company. As the record establishes, without
dispute, Browning, Onia, and Jenks are, and have been at all material times, super-
visors within the purview of Section 2(11) of the Act.
The Respondent, however, does not agree with a position by the General Counsel
that Price, Burkhardt, and Cable perform supervisory functions within the reach of
Section 2(11). These leadmen are assigned to respective departments, each located
in a separate room. No other supervisor is stationed in the department. (Onia
and Jenks, who are the only supervisory personnel stationed at the plant, apart
from leadmen, perform supervisory or managerial functions affecting the entire
establishment and have private offices.) There are seven employees in Price's depart-
ment; six in that of Burkhardt (including two on the night shift); and four (includ-
ing one night-shift employee) in Cable's department. Each of the three leadmen
spends most of his time performing nonsupervisory tasks in his department; but, in
addition to such work, each instructs new employees in their duties; assigns tasks
and work stations to the other personnel in his department; criticizes and reprimands
them for poor performance; keeps the employees in his department under observa-
tion; inspects their output for defects; directs them to correct errors; and passes upon
their requests for leaves of absence, granting such applications, so far as appears,
without prior consultation with any superior. The circumstance that the employees
in the departments affected are relatively small in number and that the leadmen in
question spend most of their time in nonsupervisory tasks is not decisive of the issue
under consideration. The fact is that they also are vested with supervisory authority
over the work of others, and exercise it, and viewing such authority and its exercise
against the background of the undisputed evidence that the departments involved are
located in separate rooms, and that Onia and Jenks have plantwide supervisory
functions affecting more than 40 employees, have private offices, and are not sta-
tioned in the departments in question, I hold that Price, Burkhardt, and Cable are
vested with, and use, authority from the Company "to . responsibly . direct"
the employees in their respective departments, exercising "independent judgment"
in such direction, and are thus supervisors within the meaning of Section 2(11) of the
Act.
In June 1962, while the plant was still under Ecko's management , there were
organizational and related union activities among the employees. These included
the execution by a substantial number of employees of cards authorizing the Union
to procure a representation election ; and a meeting attended by at least one rep-
resentative of the Union; approximately 25 employees; and some supervisory per-
sonnel, including Onia, Price, Burkhardt, and Cable. (It is evident that the Union
raised no objection to the presence of the supervisors, and one may infer that the
meeting, as well as another to be described later, was open to them.)
On the day that the Company began operation of the plant, the Union filed a
representation petition (Case No 21-RC-7869) with the Board The petition
led to an agreement between the Company and the Union on July 24, 1962, providing
for a "consent election" among the members of a bargaining unit defined as:
"All production and maintenance employees (of the Company at the Costa Mesa
plant), including leadmen and leadwomen, shipping and receiving employees, and
truck drivers, excluding office clerical and professional employees and salesmen,
712-548-64-vol. 142-90
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and guards and supervisors , as defined in the Act." 4 The election was scheduled
for August 2, 1962, but it has not been held , because, upon the filing of the charge
in this proceeding , the Director of the Twenty -first Region of the Board (Los
Angeles ) indefinitely postponed the election pending an investigation of the charge.
B. The wage increases
On July 26 , 1962, 2 days after the execution of the consent -election agreement,
and about a week before the date set for the election , the Company put into effect
increases in the respective hourly rates of all employees in the bargaining unit,
numbering approximately 40 at the time of the increases .5
There is no question , as the Respondent points out , in substance , in its brief,
that the granting or announcement of wage increases or other economic benefits
during a union organizational campaign or in advance of a representation election
is not per se unlawful ; and it is well established that the test of the legality of such
an action by an employer is whether it was taken for the purpose of influencing the
employees in their attitude toward union representation s The relevant issue here,
then , is whether such a purpose underlay the increases . In that regard , the Respond-
ent argues , in effect , that the General Counsel has failed to carry his burden of
establishing that the increases had a prohibited aim.
This thesis , however, misreads the evidence , which establishes that the increases
came practically on the heels of the consent -election agreement and but a few days
before the scheduled election date ; and that every employee in the agreed bargaining
unit received one. The timing and scope of the increases are ob j ective facts which,
unexplained , warrant an inference that an aim of the increases was to influence the
voting choice of the employees in the anticipated election. That being the case,
a duty devolves upon the Respondent to go forward with the evidence to explain
the purpose of the increases . This requirement , needless to say, does not relieve
the General Counsel of the burden of proving his case by evidence of appropriate
weight; what it does is no more than to require the Respondent to meet the General
Counsel 's prima facie case if it wishes to avoid an inference , warranted by the
evidence of the timing and scope of the increases , that they were put into effect
to influence the employees in the election.
It will not do to say, as does the Respondent in its brief , that the granting of the
increases was "merely Respondent 's initial announcement of its wage policy and
ranges" after purchase of the plant , for this is but a characterization made in the
course of argument , and the fact is that the Respondent presented no evidence as to
the purpose of the increases , nor does the label the Respondent gives them in its
brief explain why it chose to announce and put them into effect but a few days before
the scheduled election rather than to defer any action on the "wage policy" until
the election was held.?
i The fact that the agreement includes leadmen in the unit does not affect the conclu-
sion that Price, Burkhardt , and Cable are supervisors within the meaning of the Act
Needless to say , the label given these individuals by the agreement is not decisive of the
issue of their supervisory status Obviously , too the agreement may be read to exclude
the three leadmen from the unit , for all personnel , including leadmen, are excluded by
the agreement if they are " supervisors , as defined in the Act"
5 The precise number receiving increases was 46, including leadmen and leadwomen
6 Hudson Hosiery Company, 72 NLRB 1434 ; Standard Coil Products , Inc, 99 NLRB
899; Reeves Instrument Corporation , 104 NLRB 610 ; Pyne Molding Corporation, 110
NLRB 1700 ; Bata Shoe Company, Inc., 116 NLRB 1239 ; True Temper Corporation, 127
NLRB 839 , 843-844; Willard's Shop Rite Markets, Inc , 132 NLRB 1146; Lowell
Publishing Company, 136 NLRB 206.
Sun
7 The Respondent makes a claim in its brief to the effect that the "wage policy" was
established to meet a problem of labor turnover Oddly enough , it rests this position not
on any evidence by a member of management , but on testimony of an employee , William T.
Smith , offered by the General Counsel on the subject of the continuity of the supervisory
status of leadmen under the management of both Ecko Products and the Respondent (a
matter wholly unrelated to the issue of the legality of the wage increases). Smith gave
testimony to the effect that several weeks before the sale of the plant he was summoned
(probably, as one may infer , because he was a leading figure in union activity among the
employees ) to a meeting attended by Jenks and other Ecko managerial personnel, and by
leadmen ; and that in reply to a question by Jenks " if there were any problems," a lead-
man said that there was "a fast ( labor) turnover" in the plant because new employees
were not receiving a 10-cent hourly rate increase upon completion of 30 days of employ-
ment In now urging this testimony ( to which it objected , by the way) as evidence of a
lawful motivation for the increases, the Respondent appears to me to be clutching at
BROWNING INDUSTRIES, INC. 1401
The sum of the matter is that in the absence of such an explanation, I am
persuaded by the timing and scope of the wage increases that they were put into
effect to influence the employees to vote against the Union in the election; and
thus I hold that by means of the increases, the Respondent interfered with the
employees in the exercise of rights guaranteed them by Section 7 of the Act, and
thereby violated Section 8(a)(1) of the statute.
C. The alleged promises of economic benefits, and of institution of
a grievance committee
The General Counsel's claim that the Respondent abridged Section 7 rights of
its employees by promising, as the complaint puts it, "to institute an employee
grievance committee" rests upon evidence of a conversation between Jenks and a
group of employees at the plant after work a day or two before the scheduled
election.
The incident arose out of a discussion among a few employees initiated by one
of their number, Margaret Spence. As her testimony indicates, the conversation
involved employees' grievances, and Jenks' secretary, who was in the group, sum-
moned Jenks to hear what was said. He joined the group, and one or another of
the employees present told him, in substance, that they had "legitimate gripes" that
went unheeded, and that Onia and the leadmen were subjecting them to "pressure."
1 here is no doubt that, in reply, Jenks alluded to the subject of formation of "a
grievance committee," but there is some disparity between the General Counsel's
witnesses (Visintine and Spence) regarding the matter. From Visintine's account, it
would appear that Jenks made a definite proposal for the election by the employees of
one of their number to function as "a grievance committee," and that this representa-
tive meet with him out of the presence of any leadmen to discuss grievances. In
Spence's account, the suggestion has a somewhat tentative cast, for she quotes Jenks
as replying to the complaints with remarks to the effect that "perhaps" the employees
could have such a committee, and at another point, that "maybe we could settle our
own problems without . . . an outside party (meaning the Union) coming in."
Spence's version, at least, appears to me to fall far short of supporting the Gen-
eral Counsel's allegation that Jenks "promised to initiate an employee grievance
committee if the employees rejected the Union in the election," but, in any case,
whether one accepts her account or that of Visintine, I am not in accord with the
General Counsel's view that Jenks' remark abridged Section 7 rights of the employees.
One may put aside the fact that the suggestion he made was in response to statements
of grievance by one or another of the employees in the group, for the decisive fact is
that it was not couched in terms of a promise of benefit conditioned upon rejection
of the Union; nor that such a committee function as a creature of the management or
with any unlawful assistance by it. Rather, the material sum of Jenks' remarks, by
implication or explicity, depending upon which account one accepts, appears to me
to have amounted to a statement that the employees did not need a union and that,
in lieu of such a representative, they could deal with the management through one
elected by them from their own number. Obviously, such an expression of "views,
argument, or opinion" is within the protective reach of Section 8(c) of the Act.
Accordingly, I find that the Respondent did not violate the Act as a result of Jenks'
remarks.
However, I reach a different result with respect to a claim by the General Counsel
that Browning, the Company's president, made unlawful promises of economic benefit
to the employees in the course of a speech he made to them, assembled in a group
at the plant, on August 1, 1962, the day before the scheduled election date. It would
serve no useful purpose to set forth his remarks in full here, for the material features
are contained in the following excerpts: 8
Let me make it very clear to start with that, whatever happens, there are going
to be no reprisals of any sort because someone sports a button that says "Vote
straws; for, plainly, Smith's account of what he heard the leadman say during the period
of Ecko's operation of the plant is not susbtantial evidence of the Respondent' s reason
for granting the wage increases One would think that if labor turnover were the reason,
the Respondent would have adduced evidence to that effect through a responsible manage-
ment representative Moreover, Smith's reference to what the leadman said before the
Respondent's acquisition of the plant will hardly serve as an explanation by it of the
timing of the increases in relation to the scheduled election date.
8 The full speech, as well as an ensuing colloquy among management personnel and the
assembled employees, may be found in a stipulated exhibit (General Counsel's Exhibit
No. 2). The portions omitted here do not affect any material issue.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I.B.E.W." We are not here to fire people, but to keep good skills. We have no
intention of holding it against anyone of you because you happen to favor a
union and we happen not to. There will be absolutely no witch hunts going on
here, no matter what the results.
We are actively investigating the realm of fringe benefits. We are looking into
pension plans, which is a very complex subject. It's what the professional men
call you have to look at the "actuarial risks" before you can determine exactly
what is the best plan for this organization. It is under study right now and I can
assure you that you certainly will have a better pension plan than you had before.
Exactly what it is, I can't tell you right now because the study just isn't complete.
As to health insurance, our insurance people are drawing a plan up now.
Again, this takes a little time. In the meanwhile, the company is insuring you so
if anyone has any expenses as far as sickness is concerned, go to Herb Jenks
and the company will absorb those until such time as an insurance plan can be in
effect.
* * * * * * *
There has been some forgetfulness as to raises. To be sure this doesn't
occur-and this, by the way, is no reflection on the people who figured these
things-it just happens. Just to make sure we are accurate, Mr. Jenks will
give you an envelope showing how much vacation pay we think you have ac-
crued. If there is any error, come right up to the office and get it straightened
out. It's probably just an error without anyone being aware of it. Vacation pay
is figured at the new rates.
* * * * * * *
If you will feel better about it, anything that is offered you here will be
put in writing if it makes anyone feel any better. Now I want to make it clear,
again, that I'm just expressing the opinions of this company that we feel that
we would prefer that you give us a chance.
. Everyone of you will be voting-it's your own individual decision. It's
all your own business. Nobody will know how you voted-it is absolutely secret.
Just because you signed a union card doesn't mean you have to vote union.
When you step into that booth is when you make up your mind. [Emphasis
supplied.]
Various employees asked questions after Browning concluded his speech but
the only details of this portion of the meeting that need be noted here are that an
employee inquired whether "life insurance is being tied in with the pension plan,"
and that, in reply, Browning "assured everyone that it was."
The Respondent takes the position that this was but on "orientation speech"
dealing with the policies of the staff's new employer. But the Company had been
operating the plant for a month, and one may pertinently ask why Browning did not
address the employees within a few days after purchase of the plant rather than give
them an "orientation" on the very eve of the election about a month later. The an-
swer obviously is that the "orientation speech" was as much aimed at influencing the
employees' voting choice as the "initial announcement of its wage policy" a few
days earlier which, for the reasons already set forth, was plainly timed to deflect
the employees from selection of a bargaining representative in the election. Apart
from the timing of the speech, even a cursory reading of its terms persuades one that
its aim was to influence the employees to reject the Union.
Needless to say, the legality of such an aim depends upon the method used to
achieve it, and, here, the means employed to reach the target plainly exceeded the
expression of "views, argument, or opinion" protected by Section 8(c) of the Act.
That protection is, by the terms of the section, withdrawn from expressions that
contain a "promise of benefit."
That Browning made such promises is abundantly clear. He told the employees
that they "certainly will have a better pension plan than you had before," and that
"life insurance is being tied in with the pension plan"; 9 stated that "our insurance
people are drawing a (health insurance) plan up now," thus intimating that such a
plan would be put into effect; assured them that pending the adoption of a health
insurance program, the Company would "absorb" (meaning, in the context, pay
In its brief, the Respondent makes a point of the fact that there was already a pension
plan (installed by Ecko) in effect at the plant. If this is an intimation that Browning
made no promise of benefit regarding such a plan, I find no merit in the claim, for, plainly,
he promised "a better pension plan," and included a promise of life insurance benefits
"tied" to the program.
BROWNING INDUSTRIES, INC. 1403
for) expenses incurred by employees as a result of illness; and said that "vacation
pay is figured at the new rates" or, in other words, that on the basis of the wage
increases that had gone into effect a few days earlier, employees were being, and
would be, given increased vacation pay benefits. In short, Browning promised
the employees substantial economic improvements in their terms and conditions
of employment.
To be sure, these promises were not in terms made contingent upon the em-
ployees' rejection of the Union, but, taking into account their timing and context,
it is evident that they were bait designed to induce the employees to forgo their
right to select the Union as their collective-bargaining representative. That such
promises, made by one who had the power to make or withhold them, to ignore or ful-
fill them, would tend to be an inhibiting drag upon the employees' freedom of choice
in the scheduled election appears to me to be self-evident. Moreover, it is well
to bear in mind that Section 8(a) (1) not only forbids employers to "restrain or
coerce" employees in the exercise of their Section 7 rights, but "to interfere" with
such exercise; and whether or not one regards Browning's promises as restraint
or coercion, there can be no doubt, and I find, that as a result of the promises he
made regarding pensions, insurance plans, sick benefits, and increased vacation pay,
the Respondent interfered with the exercise by the employees of rights guaranteed
them by Section 7 of the Act; and thereby violated Section 8(a)(1) of the
statute.io
D. The alleged threats and assaults
About a week after the representation petition was filed , Price, in the course
of criticizing the work of an employe, Frank P. Visintine, told the latter that "with
this (meaning, from the context, the representation matter) coming on . . . we
are just looking for excuses for laying people off. No use your giving them ample
opportunity to do it." Protesting that he was doing his best, Visintine replied that
he "had definitely been told by Mr. Browning that if we definitely, absolutely wanted
the union we could have it." Price retorted that "we can eliminate this whole
union problem," and then stated that that could be accomplished by discharging
all employees with tenure of less than 30 days (apparently a probationary period
for new employees).
Visintine's allusion to Browning referred to a conversation he had had with the
Company's president shortly after the Respondent acquired the plant. On that
occasion, Browning, stating that he wanted "to . . get (Visintine's) feelings"
toward the Company, asked the employee if he had any ideas or grievances, and the
latter replied that he was being unfairly treated by Price, and, characterizing Price
as "a one-man band against the union ," inquired how Browning felt about unioniza-
tion of the plant. Browning responded that there was not a whole lot to worry
about," that he did not believe that "we absolutely had to have one" (a union),
but that if the employees "definitely wanted a union ... he would go along." The
Company's president said at one point or another that "if it (union representation)
was an absolute necessity, he was going to back up the employees and keep the
plant . happy and on an even keel."
On July 16, 1962, approximately 30 of the plant personnel , including Price, Burk-
hardt, and Cable attended a meeting held under the Union's auspices. The business
of the meeting included the election of a committee to deal with the Company.
Price and Burkhardt were among those nominated, but they were defeated in the
election. An employee named William T. Smith, who had procured the signatures
of most of the employees on authorization cards for the Union and appears to have
been its most active adherent among the employees, was one of two elected. Burk-
hardt participated actively in the meeting , addressing those present , criticizing
its chairman, a representative of the Union, stating that that individual's interest in
the employees was limited to collecting dues from them, and disputing his ability
to secure increases for them. Burkhardt's participation. however, was not confined
to such criticism , for, as the undisputed evidence establishes , he used insulting and
profane language, and , in short , engaged in "rowdy" behavior.
10 The Respondent 's reliance upon Chance Yought Aircraft Division of United Aircraft
Corporation, 85 NLRB 183 , is misplaced. That case is distinguishable because although
the employer there involved expressed a wish that its employees delay a decision on
unionization for a year , the talks in question were, in fact , as the Board found (at p. 189),
"orientation speeches" designed to familiarize employees in a branch plant with existing
and contemplated benefits which the employer granted "as a matter of company policy"
in "all of ( its) plants throughout the United States " Here , as I have found , the object
of the promises was to influence the employees ' voting pieference in the election.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Following the meeting, Smith and other employees, including one Roger Parker,
spent some minutes outside the meeting hall talking to the Union's representative;
and then Smith and Parker entered the former's car with the intention of driving
to the plant where Parker had some work to finish. As they were about to drive
off, Burkhardt and Cable, who had remained in the vicinity of the meeting hall,
approached the car, and Cable, putting his arm through an open window and on
Smith's shoulder, said that Smith and Parker "were two of the lowest sons of
bitches that he ever saw for bringing the union in." Smith replied that Cable "was
welcome to his opinion," and drove away.
Arriving at the plant a few minutes later, Smith drove his car into an adjacent
driveway, preparatory to entering the building. Burkhardt and Cable arrived in
the area about the same time in Burkhardt's car. Parker alighted and as he was
about to enter the plant, Burkhardt, who is about 20 pounds heavier, 2 inches taller,
and 8 years older than Parker (who is 18), came at the latter, struck him in the
face, and knocked him down. Smith had seen Burkhardt coming at Parker, "fists
raised ready to strike" the latter, and then opened the door of his car to get out.
As he did so, Cable (who is some 10 to 15 years older than Smith's 26 years, and
weighs about 240 pounds, 100 more than Smith) grabbed Smith by the shoulder,
and the latter, seizing a pair of pliers which were on the car seat, struck Cable
on the head with the pliers." Cable wrestled Smith to the ground, and then let
him rise. At that point, Burkhardt, having knocked Parker down, came over to
Smith and grabbed him, whereupon Smith resisted and "got (Burkhardt) down on
the ground." Burkhardt indicated that "he had (had) enough"; Smith let him
rise; and with that, the fracas ended. Smith was bleeding from a cut over his
left eye. Later that day, he and Parker went to the Costa Mesa police station and
reported the incident to the police.
On the following day, both employees were separately summoned to Jenks'
office, and each was interviewed there by the Company's attorney, William M.
Howard, in the presence of Jenks and Onia. Smith described "the way the fight
occurred" and informed Howard of Cable's statement, outside the meeting hall,
upbraiding Smith and Parker "for bringing the union in." In reply to a question
by Jenks whether he "could not have driven off and avoided" the fighting, Smith said
that he could not have done so because he "was getting out of the car when Chester
(Cable) and Buddy (Burkhardt) attacked."
Parker also gave Howard, Jenks, and Onia a description of the fracas, stating,
in addition, that he "wanted some action taken and some responsibility detailed for
this incident, and that, if necessary, somebody be fired for it." At that, Onia asked
whether Parker "would fire two loyal employees" (meaning Burkhardt and Cable),
whereupon Parker made an observation to the effect that their loyalty "has no reflec-
tion (apparently meaning effect) on their morals." Jenks asked Parker why he
favored the Union, and the employee replied that "little people earning $1.60 for
the rest of their lives needed some organization." Howard interposed with a
remark that he was "not interested in this union," and that he had "a big enough
job as it was." With that the interview ended.
Later that day, Howard assembled all of the employees at the plant and told them,
in substance, that he had interviewed all the participants in the fighting; that the
versions of Smith and Parker conflicted with those of Burkhardt and Cable; that
he could not determine where the fault lay; that the management "would not tolerate
anything like that again"; and that in the event of repetition of such an incident,
all participants in it would be discharged.
' The description of Cable's assault on Smith is based on the latter's testimony. The
Respondent makes a point of the fact that a pretrial affidavit given to the General Counsel
by Smith varies from his testimony in that he states in the document that he had the
pliers in his hand when he got out of the car and that Cable then grabbed him. The
Respondent, however, called neither Burkhardt nor Cable nor any other witness ; and
that being the case, since Smith appeared to me to be giving his best recollection of the
incident, I can see no reason to disregard his testimony regarding the fracas. In any
case, the affidavit appears to me to be an immaterial variance, for assuming that Smith
did have the pliers in his hand before Cable grabbed him, one may reasonably infer that
Smith did so to protect himself against assault. Smith would be justified in anticipating
an assault upon his person since, before he picked up the pliers, Burkhardt was either
advancing menacingly toward young Parker or already beating him . Moreover , there can
be no doubt, from the undisputed evidence, that the 240-pound Cable grabbed Smith before
the employee struck the leadman with the pliers. I think it obvious that Smith used the
pliers in self-defense.
BROWNING INDUSTRIES, INC. 1405
However, that same day, following Howard's remarks, Cable told an employee,
Lindel Boyles, that he (Cable) "was backing the company all the way against the
union"; and then, in reply to a comment by Boyles that he "was going to support
the union regardless of what happened," Cable (who it may be recalled weighs
some 240 pounds) retorted, "Well, don't step out or I will beat the hell out of you."
Turning to the conclusions to be drawn from the behavior of Price, Burkhardt,
and Cable, the undisputed evidence leaves no room for doubt that following the filing
of the representation petition, they engaged in misconduct rooted in hostility toward
the Union and the free exercise by the employees of their right of self-organiza-
tion. There is an obviously coercive thrust in Price's remarks to Visintine that "with
this (the union representation question) coming on . . . we are just looking for
excuses for laying people off," and that "this whole union problem" could be
eliminated by the discharge of all employees with less than 30 days' tenure. The
assaults by Burkhardt and Cable were not only acts of hooliganism, but, more to the
point here, were directly rooted in their antipathy to union activity or sympathy
among the employees. This is evident when the assaults upon Smith and Parker are
viewed against the background of Smith's leading role as a supporter of the Union;
Burkhardt's contrasting antagonism toward it, as evidenced by his conduct at the
union meeting; Cable's characterization of Smith and Parker outside the meeting
hall, only a few minutes before the assaults in the plant driveway, as "two of the
lowest sons of bitches . . . for bringing the union in"; Cable's threat, on the day fol-
lowing his assault on Smith, to "beat the hell out of" Boyles if the latter "step [ped]
out" (meaning, in the context, if Boyles engaged in union activity); and the absence
of any provocation for the physical attacks on Smith and Parker, apart from their
prounion activity or sympathy.12
The material issue as regards the conduct of Price, Burkhardt, and Cable in ques-
tion is whether it is imputable to the Respondent. It is true, as the Respondent points
out in its brief, that the leadmen "constitute the lowest supervisory echelon" in the
plant, and that there is no evidence that the Company authorized any of the acts
in question, but these factors are by no means controlling. The Respondent must
necessarily act vicariously, and much of its day-to-day supervision of its em-
ployees is conducted through individuals such as Price, Burkhardt, and Cable.
Its principal executive, Browning, is not stationed at the plant; and has been there
only a few times. Onia and Jenks are not stationed in the departments supervised
by the three leadmen, but have separate private offices, and each of the departments
is enclosed and separated by walls from the other divisions of the plant. To be
sure, the number of employees supervised by each leadman is small, but the total
complement of nonsupervisory employees numbers only about 40, and 1 of the
leadmen, Price, supervises the work of about one-sixth of these. Moreover, although
there is no evidence that the Respondent has ever vested in the leadmen the right to
hire and discharge personnel they supervise, employees would have reason to believe
that such a power exists as a holdover from Ecko's management, for the evidence
establishes that during the period of Ecko's operation of the plant Price hired two
employees (one of them Visintine, to whom Price made the coercive remarks de-
scribed earlier), discharged two, and Cable hired one; and, so far as appears,
the Respondent has never informed the employees of any change in the duties
and authority of the leadmen.
Taking into account this history and the responsibility of Price, Burkhardt, and
Cable for proximate supervision of employees in their separate departments, em-
ployees would be warranted, it seems to me, in regarding the antiunion attitudes
of the three supervisors as a reflection of management hostility toward union rep-
resentation. This is especially so as the Company, in fact, has a policy of inter-
fering with the employees' freedom of electoral choice, as is evident from the wage
increases and Browning's promises of economic benefits to the employees, all
strategically timed, as previously noted, to influence them to vote against the Union.
That this conduct was not gross or brutal, in contrast to that of Burkhardt and Cable,
or that Browning assured Visintine that he would "go along" if the employees
"definitely wanted a union," and told the employees in the August 1 speech that
there would be no "reprisals" for union activity (although in the same speech using
unlawful methods to influence their voting choice), or that Jenks made a similar
statement in a talk he made to the employees a few days earlier (apparently about
the time of the announcement of the wage rate increases) does not alter the fact that
the Company engaged in serious acts of interference with the employee's right to
12I note, too , that 'on the day after the assaults , Cable told Smith that the reason for
the attacks was 'that he ( Cable) had worked in unionized coal mines and sawmills, and
"Just didn't like unions" because they were "nothing but sons of bitches."
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choose a bargaining representative . These unfair labor practices are, it seems to me,,
a more reliable guide to the Company's attitude toward the employees ' right of self-
organization than its professions of neutrality , which cost nothing, and whose sincerity
is at least open to question in view of the pattern of unlawful behavior reflected in the
strategically timed increases and promises of economic benefits.
Nor am I able to give any operative effect to Howard 's remarks to the employees
on the day following the assaults. The Respondent did not call either Burkhardt or
Cable (nor any witnesses for that matter ); and the record leaves one in total dark-
ness as to what explanation for the assaults these men gave Howard or any other
management representative . Indeed, there is actually no showing that the manage-
ment, whether through Howard or someone else, did, in fact, receive an explanation
from Burkhardt or Cable, or even seek one. All that we have on that score is heresay
testimony by several employees quoting self-serving remarks by Howard to the
assembled staff to the effect that he had interviewed Burkhardt and Cable, as well as
Smith and Parker , has received conflicting reports ( what Burkhardt and Cable had
actually said does not appear even as hearsay ), and could not decide who was at fault.
What we do know is that the evidence establishes, beyond cavil, that two super-
visors assaulted two employees because the latter were active adherents of the
Union; and that the supervisors ' superiors , although fully informed by Smith and
Parker as to the details of the assaults , put on notice by Smith , at least, as to the rea-
son for the attacks (as is evident from the fact that Smith told Howard, Onia, and
Jenks of Cable's remarks made outside the meeting hall a few minutes before the
assaults ) and requested by Parker to take remedial action , did nothing about the
matter , so far as appears , beyond telling all the employees that the mangement could
not decide who was at fault and that if there were a repetition of such an incident all
participants would be discharged.
Moreover, the record provides ground for doubt, at least, that the claimed inability
to assign the blame was the reason for the Company 's failure to discipline Burkhardt
and Cable. Onia, it will be recalled, met Parker's request that "somebody be fired"
for the fracas or, in other words, that Burkhardt and Cable be discharged, with a
rhetorical query whether Parker would have the Company "fire two loyal employees "
Whether Onia's allusion to loyalty was a reference to the fact that Burkhardt and
Cable supported the Company's antiunion position cannot be determined, but one
may reasonably gather from the plant superintendent 's remark that he had set his
mind against discharging Burkhardt and Cable irrespective of the question of blame
for the fracas. One should bear in mind, in that regard, that Howard is not a mem-
ber of management, but a practicing attorney with an office some 2,000 miles from
the plant, and that Onia is its superintendent and vested with authority over the lead-
men, and with the power of discharge Particularly taking into account Onia's
status, authority, and the attitude he displayed during the Parker interview, it would
be a mistake in my judgment, in the absence of any evidence as to what, if anything,
took place between Burkhardt and Cable and their superiors, to absolve the Re-
spondent of responsibility for the conduct of Burkhardt and Cable on the basis of
Howard's statements to the assembled employees ; and the mistake becomes the more
manifest if it be borne in mind that Cable threatened Boyles with physical violence
very soon after Howard spoke to the employees. One may doubt, to say the least,
that Howard 's talk had any material impact on Cable.
I am also unable to agree with a position put forward by the Respondent to the
effect that because of the inclusion of leadmen in the unit definition , which was posted
in the plant in the preelection period and read by employees ( including Smith, Boyles,
Parker , and Visintine ) those in the voting unit would regard Price , Burkhardt, and
Cable as fellow employees , and thus would not treat their actions as a reflection of
management policy. The logic of this falters somewhat when it is borne in mind that
the Union not only agreed to the inclusion of leadmen in the definition , but also per-
mitted Onia, the plant superintendent , to attend one or another of the meetings it
convened for the employees . The point here is not that the scope of Onia's super-
visorv powers is to be equated, with that of the leadmen , but that one can make al-
together too much of what the Union did, whether by permitting supervisors to
participate in the meetings or by the content of its consent -election agreement. This
view of the matter is , indeed. underscored by some conclusional testimony the Re-
spondent itself elicited (without objection ) upon cross-examination of Boyles.
Asked whether he regarded Cable's threat as "some kind of company policy," he
stated that "I don 't know for sure how I took it," and then he gave testimony to the
effect that he did not consider Cable's threat as one made by "just an employee,"
that he believed he would have "the same attitude" toward the threat as toward
a similar one by the plant superintendent . Onia, but that he "didn't think it would be
something Mr. Browning himself would say" or condone.
BROWNING INDUSTRIES, INC. 1407
Be that as it may, the conclusion the Respondent would draw from the unit defini-
tion, and the fact that employees have read it, is not acceptable for a number of rea-
sons. For one thing, the rights guaranteed by Section 7 of the Act are prescribed
for employees and not for unions or employers, and, as is self-evident, the Union
and the Company are not competent by means of the consent-election agreement to
remove the protection given employees by Section 7. For another matter, I think it a
mechanical non sequitur to say, as does the Respondent in effect, that the unit
definition would necessarily lead the employees to regard the actions of Price,
Burkhardt, and Cable as merely those of fellow employees. Boyles' testimony, if
nothing else, bears witness to the non sequitur. What is more, when the Respondent
says that leadmen were included in the voting unit, it reads only part of the unit
description, for by its very terms, all personnel, including leadmen, are excluded
from the unit if they are "supervisors as defined in the Act." This points up a deep
infirmity in the Respondent's thesis, and that is that its acceptance would have the
effect of making the employees' interpretation of the unit definition a determinant
of the reach of their Section 7 guarantees, notwithstanding the fact that the definition
was not their product, and that a conclusion whether a leadman is included as an
employee or excluded as a supervisor may entail a complex and subtle process of legal
and factual analysis. To hinge the Respondent's responsibility for the actions of
Price, Burkhardt, and Cable on the employees' interpretation of the unit definition
is as much as to place the protection of rights guaranteed them by the Act beyond
reach in a swamp of speculation as to what meaning they extract from the unit de-
scription. Here, too, Boyles is an instructive example. He "never considered (Cable)
just an employee," and equates Cable's threat with a hypothetical one by the plant
superintendent, but puts such conduct beyond Browning. Conceivably, other em-
ployees could take variable directions in such matters. In short, the inclusion of the
classification of leadmen in the unit definition is insufficient to warrant a finding that
nonsupervisory personnel regarded Price, Burkhardt, and Cable as fellow employees
and thus would not consider the coercive conduct of the three supervisors as a reflec-
tion of the management's attitude toward union representation.13
In summary, for the reasons stated, I am impelled to conclude that the Respondent
must accept responsibility for the relevant activities of Price, Burkhardt, and Cable,
and thus I find that the Respondent interfered with, restrained, and coerced employees
in the exercise of rights guaranteed them by Section 7 of the Act, thereby violating
Section 8(a)(1) of the statute, as a result of Price's statements to Visintine that
"with this (the union representation issue) coming on . . we are just looking for
excuses to lay people off," and that "this whole union problem" could be eliminated
by discharging employees with tenure of less than 30 days; the acts of violence
committed against Smith and Parker, previously described; and Cable's warning to
Boyles not "to step out or I will beat the hell out of you," a statement which in the
context in which it was made was tantamount to a threat to beat Boyles if he engaged
in union activity.14
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
is Montgomery Ward & Company, Incorporated, 115 NLRB 645, and N.L R.B. v. James
H. Matthews & Company, 156 F 2d 706 (C.A 3), cited by the Respondent, are inapposite.
In the fist case, the supervisor was "included in the unit by agreement of the union and
employer and . . permitted to vote," while in the second, the supervisors were on voting
eligibility lists, and employees were informed of the supervisors' voting eligibility. The
distinguishing factors here are that Price, Burkhardt, and Cable, although leadmen, are
not, in fact, included in the voting unit by force of the express exclusion from the unit
of "supervisors as defined in the Act" ; and, unlike the situation in the cited cases, no
image of them as "fellow employees" has been crystallized for the employees by the act
of voting or of inclusion in a list of eligible voters Thus, even putting aside Boyles'
view of Cable as not "just an employee," there is no substantial warrant in the record
for a conclusion that the employees regarded any of the three supervisors as "one of
themselves "
14 In the absence of a supporting allegation In the complaint, I do not decide whether
the Respondent violated Section 8(a) (1) of the Act as a result of a statement by Burk-
hardt to Boyles about a week before the scheduled election date "that before the union
would be voted down (on or In?) there would be a lot of people fired in the plant,"
including Smith and Boyles.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 has engaged in unfair labor practices violative
of Section 8 (a) (1) of the Act, I shall recommend below that it cease and desist there-
from and take certain affirmative actions designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding, I make the following:
CONCLUSIONS OF LAW
1. Browning Industries, Inc., is, and has been at all material times, an employer
within the meaning of Section 2(2) of the Act.
2. Local 1710, International Brotherhood of Electrical Workers, is, and has been
at all material times, a labor organization within the meaning of Section 2(5) of
the Act.
3. By interfering with, restraining, and coercing employees in the exercise of rights
guaranteed them by Section 7 of the Act, as found above, the said Company has
engaged in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Sections 2(6) and 2(7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that the Respondent, Browning
Industries, Inc., its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening, telling, or otherwise informing any employee that employees may
or will be laid off, discharged, or otherwise denied employment in order to eliminate
interest in, or sympathy for, any labor organization, or to prevent selection of such an
organization as a collective bargaining representative.
(b) Threatening any employee with any violence against his person, or engaging in
any act of violence against the person of, or assaulting, any employee, because such
employee is sympathetic toward, or interested in, or has engaged in any activity in
or on behalf of, any labor organization.
(c) Increasing wages or rates of pay, or offering, promising, or extending any
benefits or any changes in terms or conditions of employment of any employee in
order to influence the choice of a bargaining representative by any employee, or the
attitude of any employee toward any labor organization.
(d) In any other like or related manner interfering with, restraining, or coercing
employees in the right to self-organization, to form, join, or assist any labor organiza-
tion, to bargain collectively through representatives of their own choosing, to engage
in concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all such activities, except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment, as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action which it is found will effectuate the policies
of the Act:
(a) Post at its usual place of business at Costa Mesa, California, copies of the
attached notice marked "Appendix A." 15 Copies of said notice, to be furnished by
the Regional Director of the Twenty-first Region of the National Labor Relations
Board, shall, after being signed by a duly authorized representative of the said
Company, be posted by it immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps shall be taken
by the said Company to insure that said notices are not altered, defaced, or covered
by any other material.
15 In the event that this Recommended Order is adopted by the National Labor Rela-
tions Board, the words "A Decision and Order" shall be substituted for the words "The
Recommended Order of a Trial Examiner" in the notice. In the additional event that the
Board's order is enforced by a decree of a United States Court of, Appeals, the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order" shall
be substituted for the words "Pursuant to a Decision and Order " ,
LOCAL 456, INT'L BROTHERHOOD OF TEAMSTERS, ETC. 1409
(b) Notify the'said Regional Director, in writing, within 20 days of the receipt
by the Company of a copy of this Intermediate Report and Recommended Order,
what steps the said Company has taken to comply therewith.16
It is further recommended that, unless on or before 20 days from the date of its
receipt of this Intermediate Report and Recommended Order the Respondent notify
the said Regional Director that it will comply with the foregoing Recommended
Order, the National Labor Relations Board issue an order requiring the Respondent
to take the action aforesaid.
36 In the event that this Recommended Order is adopted by the Board, paragraph 2(b)
thereof shall be modified to read : "Notify said Regional Director, in writing, within 10
days from the date of this Order, what steps the Respondent has taken to comply
therewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten, tell, or otherwise inform any employee that employees
may or will be laid off, discharged, or otherwise denied employment in order
to eliminate interest in, or sympathy for, any labor organization, or to prevent
selection of such organization as a collective-bargaining representative.
WE WILL NOT threaten any employee with any violence against his person, or
engage in any act of violence against the person of, or assault, any employee,
because such employee is sympathetic toward, or interested in, or has engaged
in any activity in or on behalf of, any labor organization.
WE WILL NOT increase the wages or rates of pay of any employee, or offer,
promise, or extend any benefits or any changes in terms or conditions of em-
ployment of any employee in order to influence the choice of a bargaining
representative by any employee, or the attitude of any employee toward any
labor organization.
WE WILL NOT in any other like or related manner interfere with, restrain, or
coerce employees in the exercise of their right to self-organization, to form, join,
or assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection or to refrain from any or
all such activities, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as a condition of em-
ployment, as authorized in Section 8(a)(3) of the said Act.
BRowNiNo INDUSTRIES, INC.,
Employer.
Dated------------------- By--------- ---- ------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date of posting, and must
not be altered, defaced, or covered by any other material.
.Information regarding provisions of this notice and compliance with its terms may
be secured from the Regional Office of the National Labor Relations Board, 849
South Broadway, Los Angeles, California, 90014, Telephone No. Richmond 9-4711,
Extension 1031.
Local 456, International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America and Sid Harvey West-
chester Corp. Case No. 2-CC-770. June 21, 1963
DECISION AND ORDER
On March 19, 1963, Trial Examiner Stanley Gilbert. issued his
Intermediate Report in the above-entitled proceeding, finding that the
142 NLRB No. 149.