Como Plastics, Inc.

National Labor Relations Board - Board Decisions

Jun 26, 1963

143 N.L.R.B. 151 (N.L.R.B. 1963)

COMO PLASTICS, INC. 151
out the State of Ohio. It was formed for the purpose of disseminating
information, promoting public relations, and increasing the business
of its members. Insofar as appears from the record, it engages in no
collective bargaining.
The original petition herein named as the employer the Ohio Asso-
ciation, which was not the association contemplated by the Petitioner.
The Columbus Association, which was contemplated, was not desig-
nated in the petition; nor did it receive notice thereof. Service of a
copy of the petition on Krier did not constitute notice to the Colum-
bus Association, as the petition was addressed to the Ohio Association
of which he was the secretary, and made no reference to the Columbus
Association, with which he had then had no official connection for over
a year. Moreover, six members of the Columbus Association were not
designated or served with notice of the original petition.
As a substantial number of the 15 employers who comprise the
appropriate unit were neither named in nor notified of the petition,
either directly or through an authorized agent, until the filing and
service of the amended petition, we find that the filing date of the
amended petition is controlling, and that, as it was filed within the
60-day insulated period immediately preceding the termination date
of the existing contract, it was untimely? Accordingly, we shall grant
the motion of the Intervenors to dismiss the petition herein.'
[The Board dismissed the petition.]
2 Deluxe Metal Furniture Company, 121 NLRB 995, 1000, footnote 12; The Evans Pipe
Company, et at., 121 NLRB 15, 18; The Baldwin Company, 81 NLRB 927.
In view of our disposition of this case , we find it unnecessary to pass upon the con-
tentions as to the appropriateness of the unit requested by the Petitioner.
Como Plastics , Inc. and International Union , United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, AFL-CIO . Cases Nos. 25-CA-1480 and ,° 35-RC-3094.
Jane 26, 1963
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
On June 26, 1962, Trial Examiner Thomas F. Maher issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the attached Intermediate Report. He
also recommended that the objections to conduct affecting the results
of election, which were filed by the Union in Case No. 25-RC-2094, be
143 NLRB No. 9.
152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
overruled.' Thereafter, the General Counsel 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 these cases to a three-
member panel [Chairman McCulloch and Members Rodgers and
Fanning].
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 Intermedi-
ate Report, the exceptions and brief, and the entire record in these
cases, and hereby adopts only those findings, conclusions, and recom-
mendations of the Trial Examiner which are consistent with our
decision herein.
The complaint alleged that Respondent engaged in certain conduct
during the Union's organizational campaign which violated Section
8 (a) (1) of the Act. Specifically, it alleged, inter alia, that Respond-
ent unlawfully interrogated employees concerning their union activi-
ties; threatened an employee with discharge or other reprisals if he
became or remained a member of the Union; promised employees eco-
nomic benefits if they did not support the Union; and threatened
employees that Respondent would discontinue its profit-sharing plan
if they selected the Union as their bargaining representative. The
Trial Examiner dismissed the complaint in its entirety and over-
ruled the Union's objections to the election results. In doing so, he
found that, although Respondent had interrogated employee Lucas
concerning his union activities, and although there was an "inference"
that Respondent had threatened employee Beverly with loss of em-
ployment because of his promotion of the Union, "in the context of
Respondent's total conduct," Respondent did not violate Section
8 (a) (1) nor did it in any manner affect the employees' freedom of
choice in the election. In our opinion, an appraisal of Respondent's
"total conduct" compels a. contrary result.
As the Trial Examiner noted, Respondent availed itself of numerous
opportunities to register its opposition to the Union and its desire that
the Union be rejected in the election of November 9, 1961. The first
of these occasions arose on November 1. On that date, employee Bev-
erly engaged in a conversation with Foreman Fleetwood. A portion
of this conversation, which the Trial Examiner extracted from the
totality of Fleetwood's credited testimony, portrays Beverly as ex-
i Pursuant to a stipulation for certification upon consent election executed on October 18,
1961, in Case No. 25-RC-2094 , an election was conducted among certain employees of
Respondent in the stipulated unit. On November 15, 1961 , the Union filed objections to
conduct affecting the results of the election . On January 12, 1962, the Regional Director
issued his report on objections in which he recommended to the Board that a hearing be
held on certain issues raised by the Union's objections . On January 29, 1962, the Board
ordered that a hearing be held as recommended Thereafter , on February 5, 1962, by
order of the Regional Director , Cases Nos . 25-CA-1480 and 25-RC-2094 were consolidated.
COMO PLASTICS, INC. 153
pressing concern that he might lose his job with Respondent because he
had promoted the Union at the plant, and drawing from Fleetwood
the assurance that "I didn't think he had anything to worry over losing
his job and it kind of gave me the impression at that time that per-
haps he was trying to change over to the Company and I told him that
I would be willing to go and work and do anything in my power to
keep him from losing his job . . . ." On the basis of this segment of
Fleetwood's testimony, the Trial Examiner concluded that "A reading
of Fleetwood's account of the incident creates a suggestion that Bev-
erly's job might be in jeopardy because of his union adherence. But
to reach such a conclusion I would be compelled to indulge in a series
of interconnected inferences, to establish that there was "more to this
than meets the eye."'
We are not convinced that the indulgence in any series of "inter-
connected inferences" is required in order to find that Fleetwood
threatened Beverly's job security because of the latter's union adher-
ence, if all of Fleetwood's credited testimony is considered. The fore-
going testimony upon which the Trial Examiner relied was elicited
from Fleetwood on direct examination by Respondent's counsel. On
cross-examination, Fleetwood admitted relating to Beverly that "if he
were telling [Fleetwood] that he was switching over to the Company's
side.. . I would try to help him in any way that I could to keep him
from losing his job." After being confronted with his pretrial affi-
davit, Fleetwood also admitted, after first denying, that he told Bev-
erly in this conversation that "if he was going along for the Company
I would go to bat for him and that if there was any way I could help
him I would see that he didn't lose his job, but if he was lying to me I
had no use for a liar." Considering the totality of Fleetwood's cred-
ited testimony, we find that Respondent threatened Beverly with
loss of employment if he continued to support the Union and thereby
violated Section 8 (a) (1).
On or about the date of the Fleetwood-Beverly conversation, Re-
spondent President Russell spoke with employee Lucas at the lat-
ter's workbench. Concerning this conversation, Russell stated that
"I walked up to Lucas and without a great deal of forethought said,
`Ronnie, I believe that you were a Company man in the last election,2
and he said to me, `Yes,' that `I have not had anything good from the
Company this year.' He didn't need to say anything more to me.
I did an about face and left." While finding that this interrogation
of Lucas had occurred, the Trial Examiner failed to attach any legal
significance to this intrusion on Lucas' statutory rights because it
presented "too fine a thread with which to spin a fabric of objection-
able and unlawful conduct." In view of the total context of Re-
2 The Union had lost an election at Respondent 's plant prior to the election of Novem-
ber 9, 1961.
154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's conduct set forth in this opinion, we find that the interroga-
tion of Lucas violated Section 8 (a) (1).
In the campaign against the Union, Respondent did not confine it-
self to the threat aimed at Beverly and the interrogation of Lucas.
On November 1 and 2, Weisner, Respondent's director of personnel,
and on November 6 and 7, Respondent's president, Russell, assem-
bled Respondent's employees and delivered identical speeches to
them. In a portion of his speech, to which the Trial Examiner no-
where adverts, Russell admitted telling the employees that "At this
point or an earlier point I had talked about the fact that the employees
in this company had beaten the Union in the last election and that
following this we had given raises and had improved working con-
ditions . . . and that they could expect this policy of progression
to continue." In our opinion, these expressions clearly conveyed to
the employees the promise that wage increases would be forthcoming
if they again rejected the union, and were plainly violative of Section
8(a) (1).
The record discloses that Respondent maintains a profit-sharing
plan in which its employees have participated for some years. In
its objections to the election in Case No. 25-RC-2094, the Union
alleged that Respondent threatened to eliminate the sharing of
profits and, in support of this allegation, submitted evidence to the
Regional Director that Respondent "threatened that there would
be no profit sharing plan and/or no profit sharing bonus at Christmas
if the Union prevailed . . . ." In a marginal reference in his re-
port on objections, the Regional Director noted that the "Employer
admits stating it would not negotiate with the Union on the subject
of profit sharing." Subsequently, the Board agreed with the Regional
Director that this allegation, coupled with the Union's proffered
evidence in support thereof, raised material issues which should be
resolved by a hearing and remanded Case No. 25-RC-2094 for such
purpose. This case was then consolidated with Case No. 25-CA-1480
for hearing. The complaint in the latter case alleged, in paragraph
5(b), that Respondent warned its employees "that it would discon-
tinue its profit-sharing plan for its employees and its employees
would not receive any profit shares, if they selected the Union as
their collective-bargaining representative in the forthcoming election."
At the hearing on the complaint, Director of Personnel Weisner
testified that he told the employees that Respondent's profit-sharing
plan "was originally set up to compensate for fringe benefits such
as paid holidays and more liberal insurance, vacation benefits. It
had been management's opinion that the majority of new employees
favored such a plan and you will remember that just a few months
ago as a result of a questionnaire you expressed your desires by a
more than two to one vote to continue the profit sharing plan in lieu
COMO PLASTICS, INC. 155
of paid holidays. I just want to inform you that Como's books
would never be opened to the public and that the profit sharing dis-
tribution was solely a matter of management's discretion. If the
Union is elected this profit sharing plan will probably be discontinued
in lieu of other fringe benefits which will no doubt equal the aver-
age amount of money that had been distributed in past years ...."
On further examination, Weisner testified he told the employees that
Respondent "would not negotiate with the Union on the profit shar-
ing plan." President Russell testified that "I would bargain in good
faith on wages, working conditions, fringe benefits and hours of
work but that profit sharing was a thing that I did not want to talk-
I did not want to talk with them about, although I thought it was the
best incentive for-to make people work."
Despite the fact that these witnesses were fully examined and cross-
examined by counsel for both sides as to whether Respondent threat-
ened to refuse to negotiate over the continuance of profit sharing if the
Union won the election; that the General Counsel specifically stated at
the hearing that Respondent's threatened refusal to bargain over this
issue was part of the case and that he did not desire to withdraw it;
that the complaint alleged that Respondent threatened to discontinue
profit sharing; and that this matter was encompassed in the Union's
objections to the election in Case No. 25-RC-2094 which were con-
solidated with the complaint proceeding, the Trial Examiner refused
to consider the threatened refusal to bargain as "an issue in the case"
on the ground that it "was never litigated." While not fully explicated,
it apparently was the Trial Examiner's view that the allegation in the
complaint, to the effect that Respondent threatened to discontinue
profit sharing, did not encompass Respondent's threat to refuse to
bargain over continuance of the profit-sharing plan. However, both
the Board 3 and the courts 4 have declared that, where an issue relating
to the subject matter of -a complaint is fully litigated at a hearing, the
Trial Examiner and the Board are expected to pass upon it although
it is not specifically alleged to be an unfair labor practice in the com-
plaint. On this record, and in light of the above, we conclude and find
that the Trial Examiner was clearly in error in failing to consider
whether the aspect of the speeches by Weisner and Russell relating to
Respondent's refusal to bargain over profit sharing infringed upon
the employees' rights guaranteed in Section 7 of the Act.
It is well established that a profit-sharing plan such as Respondent's
is an emolument of value which accrued to its employees by reason of
their employment relationship and therefore constituted a mandatory
subject of bargaining under the Act.' Hence, Respondent could not
8 See, e.g., Monroe Feed Store, 112 NLRB 1336, 1337.
A See, e .g., N.L.R.B. v. Amertican Tube Bending Co., Inc., 205 F. 2d 45 , 46-47 (C.A. 2).
5 See Dickten & Masch Mfg. Company, 129 NLRB 112.
156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawfully refuse to bargain with the Union over this subject if the
Union became the majority representative of Respondent's employees.6
Consequently, the statements by Respondent's officials that they would
not negotiate concerning the profit-sharing plan, and that they would
discontinue its operation if the Union won the election, constituted a
clear threat of economic reprisal against the employees if they selected
the Union? That the employees considered the plan as a highly
desirable aspect of their remuneration which they wished to retain
is manifested by the testimony of Weisner that the employees had
voted "two to one" to continue it in lieu of other fringe benefits which
Respondent had threatened to substitute for the plan if the Union in-
sisted on bargaining over it, and by Russell's testimony that the plan
was "the best incentive for to make people work." Accordingly, by
threatening that it would refuse to bargain with the Union over con-
tinuance of profit sharing and that the profit-sharing plan would be
discontinued, we find that the Respondent violated Section 8 (a) (1) .
THE REMEDY
The Respondent, having interfered with, restrained, and coerced
its employees in the exercise of their rights guaranteed in Section 7
of the Act by interrogating them concerning their union adherence
and sympathies, by promising them economic benefits if they rejected
representation by the Union, by threatening them with loss of employ-
ment if they supported or assisted the Union, and by threatening that
Respondent would refuse to negotiate with the Union concerning the
continuance of the profit-sharing plan and would discontinue the plan,
thereby violated Section 8 (a) (1) of the Act. We shall therefore
order that Respondent cease and desist therefrom. By the foregoing
acts, the Respondent also engaged in conduct affecting the results of
the election in Case No. 25-RC-2094 by interfering with employees'
freedom of choice. We shall therefore order that the election con-
ducted on November 9, 1961, be set aside, and that Case No.
25-RC-2094 be remanded to the Regional Director for the purpose of
conducting a second election at such time as he determines that the
effects of Respondent's unfair labor practices and interference with
the previous election have been dissipated.
ORDER
Upon the entire record in these cases, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Como Plastics,
See Dzekten it Masch Mfg . Company, supra.
: Lee-Rowan Manufacturing Company, 129 NLRB 980.
COMO PLASTICS, INC. 157
Inc., Columbus, Indiana, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating any of its employees concerning their adherence
to or sympathies for International Union, United Automobile, Air-
craft and Agricultural Implement Workers of America, AFL-CIO,
or any other labor organization.
(b) Promising its employees economic benefits if they rejected rep-
resentation by said Union.
(c) Threatening any employee with loss of employment for sup-
porting or assisting said Union or any other labor organization.
(d) Threatening that it would refuse to negotiate with said Union
concerning the continuance of its profit sharing or that the plan would
be discontinued in the event the Union achieved majority representa-
tion status.
(e) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which is necessary to ef-
fectuate the policies of the Act :
(a) Post at its plant in Columbus, Indiana, copies of the attached
notice marked "Appendix." 8 Copies of said notice, to be furnished
by the Regional Director for the Twenty-fifth Region, shall, after
being duly signed by an authorized representative of Respondent, be
posted 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 Respondent that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Twenty-fifth Region, in
writing, within 10 days from the date of this Order, what steps have
been taken to comply herewith.
IT IS FURTHER ORDERED THAT the election held on November 9, 1961,
in Case No. 25-RC-2094, among the employees of Como Plastics,
Inc.
[Text of Direction of Second Election omitted from publication.]
MEMBER RODGERS, concurring :
I concur in the result.
8 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."
158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
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, as amended, you are notified that :
WE WILL NOT interrogate our employees concerning their adher-
ence to or sympathies for International Union, United Automo-
bile, Aircraft and Agricultural Implement Workers of America,
AFL-CIO, or any other labor organization.
WE WILL NOT promise our employees economic benefits if they
reject representation by said Union.
WE WILL NOT threaten our employees with loss of employment
for supporting or assisting said Union or any other labor
organization.
WE WILL NOT threaten our employees that we will refuse to
negotiate with said Union concerning the continuance of our
profit-sharing plan in the event the Union becomes their bargain-
ing representative, and we will not threaten to discontinue the
plan.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of their rights
guaranteed in Section 7 of the Act.
All our employees are free to become or remain members of Interna-
tional Union, United Automobile, Aircraft and Agricultural Imple-
ment Workers of America, AFL-CIO, or any other labor organiza-
tion, or to refrain from becoming or remaining members of said Union
or any other labor organization.
COMO PLASTICS, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive 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, 614 ISTA Center, 150 West Market Street, Indianapolis,
Indiana, 46204, Telephone No. Melrose 3-8921, if they have any ques-
tion concerning this notice or compliance with its provisions.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon a charge dated November 14, 1961, filed by International Union , United
Automobile, Aircraft and Agricultural Implement Workers of America , AFL-CIO,
herein referred to as the Union , the Regi--i l Director for the Twenty-fifth Region of
COMO PLASTICS, INC. 159
the National Labor Relations Board, herein called the Board, issued a complaint on
behalf of the General Counsel of the Board on January 26, 1962, against Como
Plastics, Inc., Respondent herein, alleging violations of Section 8(a)(1) of the
National Labor Relations Act, as amended (29 U.S.C., Sec. 151, et seq.), herein called
the Act. In its duly filed answer Respondent, while admitting certain allegations of
the complaint, denied the commission of any unfair labor practice.
Pursuant to Board order the proceeding referred to above was consolidated with
Case No. 25-RC-2094 wherein a representation petition in behalf of Respondent's
employees had been filed by the Union on October 3, 1961, and an election held on
November 9, 1961; said consolidation being for the purpose of holding a hearing and
taking evidence in connection with certain objections filed by the Union in respect
to conduct affecting the results of the aforesaid election.
Pursuant to notice, a hearing of the consolidated cases was held before Trial
Examiner Thomas F. Maher at Columbus, Indiana, on March 13, 1962. All parties
were represented and were afforded full opportunity to be heard, to introduce
relevant evidence, to present oral argument, and to file briefs with me. Briefs were
filed by the General Counsel and Respondent on April 10, 1962. Upon considera-
tion of the entire record, including the briefs of the parties, and upon my observa-
tion of each of the witnesses,' I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Como Plastics, Inc., Respondent herein, is an Indiana corporation with its plant
and principal place of business located in Columbus, Indiana, where it is engaged in
the manufacture, sale, and distribution of thermoplastics. In the course and conduct
of its operations Respondent annually manufactured, sold, and shipped from its
Columbus, Indiana, plant products valued in excess of $100,000 to points outside
the State of Indiana. Upon these conceded facts, I find the Respondent to be an
employer engaged in commerce within the meaning of the Act.
H. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aircraft and Agricultural Implement
Workers of America, AFL-CIO, the Union herein, is conceded to be a labor organiza-
tion within the meaning of the Act, and I so find.
III. THE ISSUES
I. The protected character of Respondent's speeches to its employees.
2. Whether there is substantial evidence of statements which would interfere with,-
restrain, or coerce employees and affect their free choice in a Board election .2
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of events
Following an organizing campaign in September 1961 the Union filed its representa-
tion petition with the Board on October 2, and thereafter on October 18 entered
into a stipulation agreement with the Respondent whereby the parties agreed to a
certification of the Union as representative of Respondent's employees, conditioned
upon its securing of a majority vote in an election to be conducted under the Board's
auspices. The election was scheduled for November 9, 1961.
1 Unless specifically indicated to the contrary, any credibility evaluation I make of the
testimony of any witness appearing before me is based, at least in part, upon his demeanor
as I observed it at the time the testimony was given Cf. Retail Clerks International
Association, AFL-CIO, Local 219 (National Food Stores, Inc.), 134 NLRB 1680, foot-
note 3; Bryan Brothers Packing Company, 129 NLRB 285. To the extent that I indicate
that I do not rely upon or reject in part or entirely the testimony of any given witness, it
is my intent thereby to Indicate that such part or whole of the testimony, as the case may
be, is discredited by me. Jackson Maintenance Corporation, 126 NLRB 115, footnote 1,
enfd 283 F. 2d 569 (C.A. 2).
2 By footnote reference in his report on objections the Regional Director states that
"The employer admits stating it would not negotiate with the Union on the subject of
profit sharing " As this item is not included among the objections of the complaint, and
was never litigated at the hearing, I do not consider it an issue in this case.
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Meanwhile Respondent availed itself of numerous opportunities to convey to
the employees its objections to the Union and its hopes that they would vote
against the Union in the coming election . Thus at meetings held on each of the
three working shifts of November 1 and 2 and November 6 and 7, Respondent's
Director of Personnel William J . Weisner, and President James L. Russell , respec-
tively, addressed the assembled employees on each shift. Both Weisner and Rus-
sell repeated their speeches three times, in what appears to have been identical
form. During the same period two of Respondent's foremen, Floyd Douglas and
Winfer Fleetwood , engaged in conversations with a number of the employees, the
effect of which , the Union complains , was to influence the outcome of the election
held thereafter.
The election was held as scheduled on November 9, the Union losing by a vote
of 30 to 56. Thereafter, on November 15, it filed objections to this election, claim-
ing that the substance of the speeches of Weisner and Russell, their private con-
versations with employees, and the conversations of Fleetwood and Douglas with
employees unduly influenced the results of the election.
B. The speeches
1. By Director of Personnel Weisner
Weisner's three identical speeches to the employees were delivered with the aid
of notes which were introduced into evidence. He referred to them constantly
as his hour and a quarter speech progressed. Included among the main topics
in the notes in the speech itself, as recounted credibly by Weisner, were comments
on overtime policy , call-in-pay, job classifications , shift differentials , merit ratings,
promotion policy , vacation program, the effect of seniority on layoff and recall, loan
and savings plans, group insurance , and many other items of vital interest to the
employees? In addition to the foregoing Weisner also spoke on subjects directly
connected with the Union and its effect on the plant and on the employees. Thus
he said that if the Union came in and a strike was eventually called,4 the suppliers
with whom Respondent was doing a "custom" business, such as RCA, Western
Electric, and Arvin, would, if Respondent could not make deliveries, pull out their
molds and take them to other molders; and that if these customers should do this
it would be some time before Respondent could hope to get the molds back
in the shop . In consequence, once this happens the business of that customer
would be lost for some time to come .5
With respect to the profit-sharing plan, Weisner credibly testified that he told
the employees that they had worked out a profit-sharing plan that had functioned
in each of the years that Respondent had made a profit, and that if the Union
was elected this plan would probably be discontinued in lieu of other negotiated
benefits that would equal the average amount of money previously distributed.
Weisner credibly denied that he announced that a Christmas bonus would be with-
drawn in the event that the Union won. After explaining at the hearing that there
was no such thing as a Christmas bonus, but that one of the semiannual profit-
sharing payments were made during the yearend period, Weisner then described
what he did say to the employees relative to the loss of compensation at Christmas
time. Thus he described to the employees how the neighboring Cosco plant went
on strike several weeks after the advent of the Union, and how if the Union was to
be voted in by the employees in the November election they would be coming
into the Christmas season. Thus he equated "Christmas money" with the pay-
checks that could conceivably be lost if a strike were to occur then as it did at
the neighboring plant.
3 The foregoing r6sumd of topics covered is based upon Weisner's notes and his support-
ing testimony , both of which I credit. Employees Ronald Lucas and LaDonna Evans,
whose testimony I do not rely upon generally ( infra ), likewise conceded on cross-
examination that Weisner spoke on all of the foregoing topics during the course of his
speeches.
4 I specifically do not credit the testimony of employees Hoover and Beverly to the
effect that if the Union got in it would be the Company that would "strike." Apart from
my general evaluation of the testimony of these witnesses , no one appearing before me
appeared so confused in their understanding of labor relations as to imagine that an em-
ployer, as distinct from an employee , would go on strike ; and at no time did counsel for
the General Counsel feel called upon to put the record in order by suggesting the proper
term-lockout.
6 Corroborated by the credited testimony of employees Anna Miller, Ronald Welsh, and
Harold Ayres.
COMO PLASTICS, INC. 161
During the course of his talks Weisner also made reference to the "grievance
committee," a group of apparent long standing but evidently quite dormant. Upon
being told by employees at one of the meetings that there was no functioning
grievance committee he asked who represented them on the midnight shift and was
told that no one did. Whereupon he suggested that "something would be done
about it." 6 Thereafter at the meeting of the day shift Weisner stated that he had
found out that the grievance committee had not been functioning as it was sup-
posed to and "if the Union did not get in we would have an election for a new
grievance committee." 'r
And finally, Weisner, in answer to inquiries from the employees at the meeting
suggested that because of the procedures employed in the conduct of elections,
whereby challenges of ballots could be made, it would be possible to learn how
everyone voted. Specifically, Weisner referred to the previous Board election in
which the Union challenged three votes and it developed that the three individuals,
whom Weisner identified at the meeting, had voted for the Company. Weisner
credibly testified, however, that as he progressed in his speech at this point he
assured the employees that both the Union and the Employer had agreed that
they would make no challenges in this coming election .8
2. By President James Russell
President Russell's three substantially identical speeches delivered to the em-
ployees on November 6 and 7 were of the same tenor as Weisner's, urging that the
employees reject the Union in the forthcoming election. As a means of emphasis
Russell used a pack of large display cards, or "flash cards," on each of which was
printed a key phrase which served to accentuate the point upon which Russell was
then speaking to the employees and which also served as a set of notes for the
speaker himself.
Russell's speech consisted of an appeal to the employees for an understanding of
Respondent's problems of running a plant. During the course of it, Russell sought
to answer a number of accusations directed at the Company by the Union in a letter
sent several days before, and as he did so he sought to correct any wrong impressions
which, according to the Union's letter, Weisner's previous speech may have created.
Thus, for example, he made it clear that the Union dues were not, as previously
understood to have been said, $3, or $4 weekly, but actually $60 a year. Similarly,
he pointed out to the employees that, contrary to any impressions they may have
received, the Company had no intention of striking-but a strike was the principal
economic weapon of the Union and that its use could result in the loss of profits,
profit-sharing, and wages .9 And, in this respect he emphasized to the employees
that the additional payment they received at Christmas time, as they received it at
mid-year, was not a gift or a Christmas bonus, but their share of the profits due them
under a previously established incentive plan. And it was this, he suggested, that
would be curtailed as production dwindled should a strike occur. He likewise elabo-
rated on what could be expected of their customers if a strike were called and they
were required to have their molding jobs processed elsewhere. This followed Weis-
ner's earlier statement on the subject.
In addition to the foregoing, Russell's credited testimony, as well as the admissions
contained in the testimony of General Counsel's witnesses, make it abundantly clear
that Russell was opposed to unions and to the unionization of his employees. Thus
he quoted extensively to the assembled employees from reports and studies on labor
relations, delivered himself of some succinct observations concerning named union
leaders, and read from, and recommended further reading of, a current book, "The
Enemy Within," dealing with the activities and consequences of recent congressional
investigations of extracurricular labor activities.
Finally, at one of the three meetings, as an emotional highlight to his appeal,
President Russell secured a Bible from one of the employees in the group and after
9 Credibly corroborated by employee Ronald Welsh.
v Corroborated by the testimony of employee Evans whom I do not rely upon generally
(infra).
s It appears from the confused testimony of employee James Banks that Weisner'e state-
ments at the meeting conformed to Weisner's credited testimony with one exception-Banks
attributed to Weisner the statement that the Union would challenge their votes in the
coming election It is to be noted that in such circumstances the identity of voters would
be disclosed not by company action, but by union challenge and by the resulting disclosures
on the ballots themselves.
9 Credibly corroborated by employee Ayres.
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommending the Sermon on the Mount as appropriate spiritual reading, placed his
hand on the Bible and said that as long as he was an officer of the Company he would
do his very best to give the employees of the Company the best wages and working
conditions possible.lo
C. Other alleged threats, interrogation, and grants of economic benefits
On November 1, a week prior to the election, employee Isaac Beverly sought out
Foreman Fleetwood and told him "he was into some trouble with this union thing, he
was afraid that if the Union didn't get in he was going to lose his job." Fleetwood
credibly stated his answer to Beverly, thus:
If it did not get in and I told him that I didn't think he had anything to worry
about as far as his work was concerned; that he did a good job and I didn't think
he had anything to worry over losing his job and it kind of gave me the impression
at that time that perhaps he was trying to change over to the Company and I
told him that I would be willing to go and work and do anything that was in
my power to keep him from losing his job and I think that I believe I told him
that several years things came up and I tried to get the Union in. It's been oh,
I would say thirteen, fourteen years ago and I was very conscientious worker
for the Union. I was trying to get the Union in and the Company all knew it
and I didn't hear anything out of it. The Union didn't get in and I wasn't fired
so I didn't think that Beverly had anything to worry about being fired.
About the same time President Russell had a conversation with employee Ronald
Lucas at Lucas' workbench. Russell described the incident thusly:
I habitually visit the people at their work places, the molding machines and
other places and I often speak to them about family affairs and so forth, and
on this occasion I walked up to Lucas and without a great deal of forethought
said, "Ronnie, I believe that you were a Company man in the last election,"
and he said to me, "Yes," that "I have not had anything good from the Company
this year." He didn't need to say anything more to me. I did an about face
and left.
And finally, Foreman Douglas was alleged to have stated that Respondent had given
raises to certain women employees who did not deserve them for the purpose of
keeping them happy during the turbulent preelection season. In addition to my
crediting of Douglas' denial that he told anyone that raises were given for such a
purpose,ii I accept as the credible explanation of the pay raise the testimony of
Director of Personnel Weisner.
During this question period that followed in the talk with the women, one of
the women-I don't remember which particular one-said that she had not been
given the increase that she had been promised after six months. I explained
to her at the time that there was no increase after six months. There was one
at thirty days and then they would automatically go into semiannual merit
rating program. She said that she had been promised a nickle at the end of
six months also and I said I definitely disagreed with her at the time. Shortly
after she said it there were two or three others that joined in with her at that
time saying that they had been promised a nickle at the end of six months. I
informed them that if that had been the promise, if that was their story I would
check into it and come back and have a decision for them. I did check it
through and found out that we had no proof that we did not promise them the
nickle increase at the end of six months period. I presented it to management.
They took it under advisement and decided that a wrong had been committed
and they corrected that wrong by giving them the nickle increase retroactive to
their six months' period whenever that might have been.
10 In credibly testifying to this statement of his speech Russell specifically denied saying
that he would do his best for the employees "if the Union did not get in ," as attributed to
him by witnesses whose testimony I do not rely upon
Furthermore, I find no statement or suggestion in any evidence adduced at the hearing
that President Russell in the speeches delivered to the employees promised them a ham
dinner if they would vote against the Union, as alleged by the Union in its objections.
11 Employee Betty Jane O'Haver, one of the employees who received an increase, credibly
testified that she was given it to correct a misunderstanding arising at the time she was
hired , 6 months previously I credit her denial that this raise had any connection with
her vote for or against the Union in the forthcoming election.
COMO PLASTICS, INC. 163
D. Analysis and conclusions
1 Credibility evaluation
General Counsel's case rests upon the testimony of employees Lucas, Evans,
Hoover, Banks, and Beverly, all of whom testified to their active and known par-
ticipation in the organization campaign of the Union. Upon my observation of these
witnesses, and for the further reasons set forth hereafter, I do not credit their testi-
mony except insofar as it is corroborated by the testimony of the credible witnesses or
constitutes what might be construed as an admission against the interest of the Union.
On the other hand I have, after careful review of the record, credited the testimony
of Respondent's witnesses Weisner, Russell, Fleetwood, and Douglas, corroborated
as it was in substantial part by the credited testimony of plant employees, and in many
instances by the admissions made on cross-examination by the employees called by
the General Counsel.
Each of the five witnesses called by the General Counsel testified without hesitation
to statements and portions of speeches alleged to be objectionable. They did not,
however, indicate in their direct testimony that what they were testifying to was a
series of isolated subjects, taken out of context of speeches that ran for an hour or
an hour and a half on each occasion. Illustrative of this zeal to emphasize the
antiunion flavor of Respondent's speeches and statements was the fact that it was
necessary for Respondent's counsel in the cross-examination of each of the five to
develop by a series of questions the admission from each, for example, that the
several speeches to the employees were each at least an hour in duration, and covered
a multitude of subjects dealing with plant personnel relations, little of which reflected
opposition to the Umon. A further illustration of the same condition is employee
Beverly's testimony to the effect that Weisner, in his speech, had stated, "If the Union
got in the Company was going to strike." Thereafter, on cross-examination when
asked if Weisner had said who would call the strike, Beverly testified that he did not
remember, and then continued his testimony with a confused account of the incident,
not indicating whether it was the Company or the Union that was supposed to have
called the strike.
The manner in which three of these witnesses (Evans, Hoover, and Beverly) testi-
fied on direct examination adds further emphasis to their lack of reliability. Thus,
after a series of questions and answers developing evidence on some, but not all, of
the allegedly unlawful conduct to which they had knowledge, their recollection
dimmed. Whereupon they were presented with sworn statements previously executed
by them, were permitted to read these statements to refresh their respective recollec-
tions, and then proceed fluently with further details of the alleged improper state-
ments made by Respondent's officials and foremen. Under the circumstances under
which this occurred, I am disposed to attach no weight to the resulting testimony.
Particularly is this so upon reflection of the manner in which, according to all five
witnesses, their statements were procured in the first instance.
It appears from the testimony elicited from these witnesses on cross-examination
that the statements previously given to the Board agent, and used by three of them
on the witness stand to recall their stories, were not the essence of accuracy to begin
with. Thus, Lucas' original statement dealt in part with President Russell's promise
to do better by the employees in the future (supra) and this item appeared in the typed
statement. Added in penned handwriting thereafter by the Board agent who took the
statement was the phrase "if you vote the Union out," which insertion Lucas there-
upon initialed.
Employee Banks testified that the basis for his affidavit to the Board agent was
"mainly" a statement previously given by him to the Union's representative when that
individual was preparing to file objections to the conduct of the election.
Employee Evans also testified to this same type of procedure; that a similar prior
statement to the Union was used as the basis for her pretrial statement to the Board's
agent. And employee Beverly testified that when approached by the Board's agent
for a statement he was shown his previous statement to the Union, and after Board's
agent had asked him if the statement was "correct" proceeded to prepare a statement
which Beverly read and signed.
Apart from the relaxed manner in which these witnesses gave their sworn state-
ments to agents of the Board it is more significant that before that time they willingly
signed prepared statements given to them by representatives of the Union. While all
five witnesses testified to such a procedure in the procurement of statements by the
union representative, Employee Evans' description of the event is most revealing:
Q. . So some statements you sign without reading them carefully, is that
correct')
717-672-64-vol. 143-12
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I didn't do that sir. I had forgotten why I went ahead and signed the
first statement.
Q. Well, the statements that you have signed without reading very carefully
are the statements that the Government man used to refresh your recollection,'2
is that correct?
A. Part of them.
s s • t e v s
I read it and at the time I questioned him, I said, "Well part of that I'm not sure
of and part of it I don't agree with," and he said, "Well, that was the general
gist of it," and he said that the field man or whatever you call him would come
around and get more of my words and what I remembered.
Similar testimony by employee Hoover is equally revealing:
A. He (the Union representative) had a statement and he asked me to sign it.
Q. He had a statement, is that what you said?
A. Yes.
Q. And this was something he had prepared before he even talked to you,
wasn't it?
A. Yes.
Q. All right, and you went ahead and signed it, is that correct?
A. I read it and then signed it.
Q. But you didn't read it very careful, did you?
A. Not too careful.
And employee Banks testified:
A. I told him (the Board agent) that I forgot part of it. He had an earlier
statement with him.
Q. And as-if you forget things did he give you some ideas or, "Did Mr.
Russell say this or Mr. Weisner say this"?
A. He took the other statement and read what was wrote on it and said is
this so and any statements to be added or anything.
Q. Now, that other statement was wrong that you gave to the Union man,
is that correct?
A. Yes.
Q. You didn't even read the Union man's statement when you signed it,
did you?
A. It was made about a half hour, the statement was made about a half hour
before time for me to go to work.
Q. And it was already made out, the Union statement was already made out
when you signed wasn't it?
A. Yes, it was typed up.
Q. It was just a blank space for you to put your name in in it, isn't that
correct?
A. Yes.
Under all the circumstances considered above I have no alternative but to reject
the testimony of these witnesses and rely on those whom I have designated as credible
throughout the foregoing findings.
2. Concluding findings
"Respondent, through its supervisors, was privileged to try to dissuade employees
from supporting the Union so long as threats of reprisal or promises of benefit were
not employed." 13 A fortiori, the same privilege extends to the activities of Respond-
ent's officials. It remains to be determined, therefore, whether the statements of
the officials and supervisors detailed in the foregoing findings could be viewed as
other threats or promises proscribed by the Act.
a. The speeches
As noted in the findings above a substantial portion of each of the speeches
delivered by Messrs. Weisner and Russell consisted of informational materials not
seriously objected to by anyone. A number of items, however, do not fall into this
category, but are such as to raise a serious question as to their inclusion within the
1 ,Counsel is referring to the occasion when the witness' pretrial statement was obtained,
and not to the hearing.
's Southwest Shoe Exchange Company, 136 NLRB 247.
COMO PLASTICS, INC. 165
area of protected free speech guaranteed by Section 8(c) of the Act. I refer par-
ticularly to (1) the references to the possibility of customers withdrawing their
business in fear of strikes that may occur in the event of a union victory, (2) the
effect of a union victory and possible subsequent strikes upon future production and
profit-sharing income, (3) the statement of Weisner respecting the reactivation of
the "grievance committee," and (4) Weisner's remarks to the employees suggesting
the lack of secrecy in the forthcoming balloting.
With respect to the statement that in the event of a union victory and a strike
thereafter, customers for whom Respondent was doing custom molding would with-
draw their molds and have the work done elsewhere, it has been held by the Board
that such a statement predicts the economic effect of union activity upon the eco-
nomic future of the Respondent and constitutes an expression concerning the known
working policy of Respondent's principal customers.14 There is no claim by the
General Counsel, either by testimony or argument, that the working policy of RCA,
Western Electric, or Arvin in this respect was otherwise, and as I believe Weisner
and Russell, generally, it necessarily follows that their particular statement cannot be
singled out as a misrepresentation. Moreover, it is to be noted that in his speech
President Russell pointed out two known instances where molds were withdrawn
under similar circumstances-in the Hoosier Cardinal plant in Evansville, Indiana,
and the Erie Resistor plant in Erie, Pennsylvania. Nor does the reference in the
speeches to a probability of strikes in the event of a union victory savor of a false
alarm. Included in the speeches was a further statement that upon the advent of
the Union in the nearby Cosco plant a strike was called shortly thereafter-a state-
ment presumed to be a true account of an event presumed to have been known by
the employees.
Under such circumstances as I have thus detailed, I do not believe that the refer-
ences to loss of business, made in the context of these speeches, partakes of mis-
representation. As material misrepresentations appear to have been a controlling
factor in the Board's most recent decision on this subject, Haynes Stellite Company,
Division of Union Carbide Corporation, 136 NLRB 95, I would consider that case
to be inapplicable, and would rely instead upon the previously cited Super Sagless
Spring case where misrepresentations were found not to be present.i5
With respect to the statement that future strikes would create a loss of production,
with an attendant loss of profits, shares in the profits, and wages, I am inclined to
the view that this is no less a legitmate and reasonable economic prediction than the
one concerning loss of customer business previously considered.
With respect to the suggestion that Respondent sought to reactivate a dormant
labor organization, all that appears in the credible evidence is that upon learning
that a long-established grievance committee was not functioning Personnel Director
Weisner said that "something would be done about it" and that "if the Union did not
get in we would have an election for a new grievance committee."
I am referred to New England Upholstery Co., Inc., 121 NLRB 234, 236, in which
the Board held that an employer's urging of a known union leader to forsake the
petitioning union and form a "committee" constituted an infringement upon em-
ployee rights. That conduct, however, occurred in a context of threats, the like of
which does not occur here. I am disposed, therefore, to suggest that the New
England case stands upon different footing not applicable to the facts herein. In the
absence of any more persuasive authority I would find nothing improper in Respond-
ent's statements concerning a grievance committee.
And finally with respect to Weisner's remarks to the employees indicating his
knowledge of how certain challenged voters voted in the previous Board-conducted
election, I find nothing in his speech or attendant remarks that would suggest an
intent to use the challenge as a device to learn the vote of the employees, thereby
threatening them. The substance of Weisner's remarks were that, unlike the Union
in the previous election, the Company would not use the challenge at all in the
coming election. Indeed he indicated that both the Company and the Union had
mutually agreed not to use the challenge. I fail to see anything objectionable in
such assurances, constituting as they do Respondent's and the Union's voluntary ab-
stention from using the challenge procedure made available to each by the Board's
own Rules and Regulations.i6
Upon consideration of the total speeches of both Weisner and Russell and upon
particular consideration of the foregoing specific elements of those speeches con-
sidered objectionable, I conclude and find that there is nothing contained therein that
16 Super Saglesa Spring Corporation, 125 NLRB 1214
is See also Plaskolite, Ino., 134 NLRB 754, footnote 3
16 Series 8, Section 102.69(a).
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would constitute interference, restraint, and coercion of employees in violation of
Section 8 (a)( I) of the Act; nor am I persuaded that the speeches or any part of
them in any way contributed to the deprivation of free choice on the part of any
employee eligible to vote in the election of November 9, 1961. I shall accordingly
recommend that so much of the complaint in Case No. 25-CA-1480, and of the
objections to the election in Case No. 25-RC-2094 as refer to these speeches be
dismissed and overruled, respectively.
b. Other alleged threats, interrogation, and grants of economic benefits
As detailed above I have found that there occurred three incidents which present
questions of propriety respecting both the effect upon the outcome of the election
and the protection of the rights of employees under Section 7 of the Act.
Several women employees were alleged to have been given raises as an incentive
to vote against the Union in the forthcoming election. The credited testimony in the
record does not support such a contention. Upon this testimony, by employees Gass-
away and O'Haver and Foreman Douglas, it appears that one of the union adherents,
Evans, sought to publicize among her fellow employees the fact that Douglas was
recommending a wage increase be given the women who would vote against the
Union. Both Douglas and employee Gassaway, the alleged recipient of the
raise, denied to the other employees at the time that the raise was for such a purpose,
and credibly denied it again at the hearing. Indeed the credited testimony of
Personnel Director Weisner satisfies me that the raise was given to correct an error
and settle a dispute, and I so find.
With respect to Foreman Fleetwood's alleged threat to employee Isaac Beverly,
Fleetwood's testimony indicates that he would assist Beverly in retaining his job
if the occasion demanded. A reading of Fleetwood's account of the incident creates
a suggestion that Beverly's job might be in jeopardy because of his union adherence.
But to reach such a conclusion I would be compelled to indulge in a series of
interconnected inferences, to establish that there was "more to this than meets the
eye." As this and President Russell's admitted question to Lucas-"Ronnie, I believe
you were a Company man in the last election?" (supra)-are the only established
incidents of questionable propriety, I am firmly of the opinion that they are each too
fine a thread with which to spin a fabric of objectionable and unlawful conduct.
While, therefore, I find the basis for an inference of a threat in Fleetwood's
remarks, and an intrusion upon Lucas' rights in Russell's question to him, I find that
in the context of Respondent's total conduct they do not constitute either a viola-
tion of Section 8 (a) (1) of the Act nor did they affect in any manner the freedom of
choice in the November 9, 1961, election.17 I therefore recommend that so much
of the complaint as alleges a violation of Section 8(a)(1) in these and other remaining
respects be dismissed and that the objections relating to this and the remaining alleged
conduct not found by me be overruled as not affecting the outcome of the election
in Case No. 25-RC-2094.
c. Summary
In summary, Respondent's conduct is found to be neither unlawful nor objection-
able. Upon credited testimony the speeches and statements have been established
as factual and without misrepresentation. This then does not even approximate the
propaganda used and excused in many representation elections.18 Nor does it contain
the hyperbole, exaggerated claims and inaccurate attacks that are part of the tradi-
tion of American campaigns, both in the political and the union representation
arena. On the contrary, the facts presented herein were within the knowledge of
the employees to whom they were addressed and who could readily evaluate them.19
I conclude upon the record of this case, therefore, that nothing contained in these
speeches or statements of Respondent's officials or foremen affected the fairness of
the election conducted by the Regional Director nor did it interfere with, restrain,
or coerce Respondent's employees in the exercise of their statutory rights. I shall
accordingly recommend that the complaint be dismissed in its entirety and that
the objections be overruled.
Upon the above findings of fact, and upon the entire record in the case, I make
the following:
17 Valley Feed and Supply Co., Inc ., 185 NLRB 778.
18 "Prattle rather than precision is the dominating characteristic of election publicity
and even this situation is not an exception." Olson Rug Company v. N L R B , 260 F 2d
255, 257 (C.A. 7).
19 Stetoart-Warner Corporation, 102 NLRB 1153, 1158; Weil-McLain Company, 130
NLRB 19, 21.
NEW YORK PRINTING PRESSMEN'S UNION NO. 51, ETC . 167
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization within the meaning of Section 2 (5) of the
Act.
3. The Respondent has not engaged in unfair labor practices as alleged in the
complaint.
4. The Union's objections as set forth in the Regional Director 's report on objec-
tions, are without merit and should be overruled.
RECOMMENDATIONS
Having concluded that Respondent has not engaged in unfair labor practices as
alleged, and having found the Union's objections to conduct affecting the election to
be without merit , I recommend that the complaint be dismissed in its entirety , that the
Board overrule the Union's objections, and proceed to issue a certification of results
of election.
New York Printing Pressmen 's Union No. 51, International
Printing Pressmen 's Union and Assistants of North America,
AFL-CIO and Stuyvesant Press Corporation . Case No. 2-CD-
262. June 06, 1963
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Stuyvesant Press Corporation , herein called the Com-
pany, alleging that New York Printing Pressmen 's Union No. 51, In-
ternational Printing Pressmen's Union and Assistants of North
America, AFL-CIO, herein called the Pressmen , had violated Section
8(b) (4) (D ) of the Act . A hearing was held before Carl G. Coben,
hearing officer , on April 10, 1963. All parties who appeared at the
hearing were afforded full opportunity to be heard , to examine and
cross-examine witnesses , and to adduce evidence bearing on the issues.
The rulings of the hearing officer made at the hearing are free from
prejudicial error and are hereby affirmed. The Pressmen filed a brief
with the Board.
Upon the entire record in this case , the Board makes the following
findings :
1. The business of the Company
Stuyvesant Press Corporation, New York, New York, is engaged in
the printing of books and publications. Annually, it sells printed
products and services valued in excess of $50,000 to customers located
outside the State of New York. We find that the Company is engaged
in commerce within the meaning of the Act and that it will effectuate
the policies of the Act to assert jurisdiction herein.
143 NLRB No. 24.