Edmont Manufacturing Co.

National Labor Relations Board - Board Decisions

Apr 22, 1958

120 N.L.R.B. 525 (N.L.R.B. 1958)

EDMONT MANUFACTURING COMPANY 525
significant that all employees in the unit except one attended the group meetings,
and this individual was talked to by the assistant general manager . The employees'
immediate supervisor was present during each of the meetings and to a limited
extent participated in the discussions . It is immaterial that the remarks were non-
coercive and that attendance was not compulsory.
CONCLUSIONS AND RECOMMENDATIONS
The Regional Director concludes that the challenges to ballots cast by James
Clark and William Byram should be sustained on the ground that Clark was not an
employee in the unit during the payroll period determining eligibility , and Byram
was permanently terminated and thus not an employee on the election date. No
charges alleging discriminatory discharge of those individuals have been filed.
It is therefore recommended that the challenges be sustained , and a certificate of
results of election be issued , indicating that the voting group consisting of store-
room clerk, plant clerk, industrial engineering checkers , and carcass graders will
be deemed included in the existing production and maintenance unit.
Objections
The Regional Director concludes from the undisputed evidence that 2 days prior
to the election , group meetings were held with employees separately, and away from
their normal work stations . It is also concluded that whether or not coercive, Mr.
Sailer's remarks concerning merit versus seniority as a basis for rewarding employees
and possible employment difficulties for employees from union plants were reason-
ably calculated to interfere with the free choice of employees in the forthcoming
election.
In accordance with established Board precedent ,2 it is recommended that the
election conducted among employees in the office clerical unit be set aside and a
new election directed.
2 Peoples Drug Stores, Ino., 119 NLRB 634.
Edmont Manufacturing Company and United Rubber, Cork, Lino-
leum & Plastic Workers of America , AFL-CIO. Case No. 8-CA-
1253. April 92°2,1958
DECISION AND ORDER
On October 29, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in unfair labor practices
within the meaning of Section 8 (a) (1) of the Act, and recommending
that it cease and desist therefrom and take cer`a-n affirmative action,
as set forth in the copy of the Intermediate Report attached hereto.
The Trial Examiner also found that the Respondent had not engaged
in certain other unfair labor practices alleged in the complaint. There-
after, the Respondent and the General Counsel filed exceptions to the
Intermediate Report and briefs in support thereof.
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 [Members Rodgers, Bean, 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
120 NLRB No. 80.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner with the additions and modifications
noted below.
The complaint alleges that Respondent's general foreman, Berton,
unlawfully interrogated employee Sue Fowler concerning her union
activities. The Trial Examiner found the facts insufficient to support
this allegation. We disagree. General foreman, Berton, who works
on the day shift, testified that he returned to the plant at about 11 p. m.
and summoned employee Fowler to an office located about 100 yards
from her place of work in order to talk to her about her union activi-
ties. He admitted asking her the name and number of the union. He
further admitted that he asked her if she had any union cards on her
person, and she replied that she did not. The talk lasted for an hour,
ending about midnight. Berton closed the interview by ordering em-
ployee Fowler to report back to him if she heard anything about the
union-an act in itself a violation of Section 8 (a) (1) of the Act.
On these facts, we find that Berton's talk with Fowler constituted
unlawful interrogation concerning union activities, in a manner con-
stituting interference, restraint, and coercion in violation of Section
8 (a) (1) of the Act.'
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Edmont Manufacturing
Company, Coshocton, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Threatening its employees for engaging in union activities.
(b) Directing its employees to report concerning union activities.
(c) Interrogating its employees concerning their union activities in
a manner constituting interference, restraint, and coercion.
(d) In any like or related manner interfering with, restraining, or
coercing its employees in the exercise of their rights of self-organiza-
tion guaranteed in Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Coshocton, Ohio, copies of the notice at-
tached hereto marked "Appendix." 2 Copies of said notice, to be fur-
1 Bias Flash Express, Inc., 109 NLRB 591.
2 In the event that this Order is enforced by a decree of a United States Court of Ap.
peals , there shall be substituted tor the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
EDMONT MANUFACTURING COMPANY 527
nished by the Regional Director for the Eighth Region, shall, after
being duly signed by the Respondent's authorized representative, be
posted by the Respondent immediately upon receipt thereof, and main-
tained for sixty (60) consecutive days thereafter in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, as to the steps the Re-
spondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent violated the Act in respects other than herein found,
be, and it hereby is, dismissed.
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 Re-
lations Act, we hereby give notice that :
WE WILL NOT threaten our employees for engaging in union ac-
tivities.
WE WILL NOT direct our employees to report concerning union
activities.
WE WILL NOT interrogate our employees concerning their union
activities in a manner constituting interference, restraint, and co-
ercion.
WE WILL NOT in any like or related manner interfere with, re-
strain, or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to joint or assist United
Rubber, Cork, Linoleum & Plastic Workers of America, AFL--
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, and to engage in
other concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all of
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.
All of our employees are free to become, remain, or to refrain from
becoming or remaining, members in good standing of United Rubber,
Cork, Linoleum & Plastic Workers of America, AFL-CIO, or any
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with Section 8 (a) (3) of the
Act.
EDMONT MANUFACTURING COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered , defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
The complaint herein alleges that the Company has violated Section 8 (a) (1)
of the National Labor Relations Act, as amended, 61 Stat. 136, by threatening
employees in connection with union and other concerted activities, interrogating
employees concerning employees' union interests and activities, and requesting an
employee to report information about the Union. The answer denies that the
Company committed any unfair labor practices as alleged.
A hearing was held before me at Coshocton, Ohio, on September 17, 1957. At
the close of the hearing, the General Counsel and counsel for the Company were
heard in oral argument Pursuant to leave granted to all parties, briefs have been
filed by the Union and the Company, the time to do so having been extended.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, an Ohio corporation with prin-
cipal office and place of business in Coshocton, Ohio, manufactures gloves; that
it annually manufactures products valued at more than $100,000, of which more
than 50 percent is sold and transported from the Coshocton plant to and through
points outside the State of Ohio, and that the Company is engaged in commerce
within the meaning of the Act.
It was stipulated and I find that the Union is a labor organization within the mean-
ing of the Act.
II. THE ALLEGED VIOLATION OF SECTION 8 (A) (1)
A. The alleged request to report about the Union
Employee Fowler testified that about June 5, 1956, at the beginning of her shift,
she was taken to the office of the general foreman, Berton, where Berton told her,
inter alia, that if she heard anything about the Union she should tell him. While,
as we shall see, Berton testified that his conversation with Fowler was confined to
certain other matters (the impression here given that Berton said little more and
that the conversation was brief was later corrected, as we shall see infra), he was
questioned specifically concerning, and he denied the items charged against him
as, unlawful interrogation and threat; he even denied, although it was not alleged,
that he threatened Fowler. Yet he did not specifically deny that he told Fowler
to report to him if she heard anything else concerning the Union. I credit Fowler's
testimony in this connection. (Further appraisals of Fowler's and Berton's credi-
bility are set forth, infra.) Berton's request constituted interference and was viola-
tive of the Act.'
B. The alleged threat by Montgomery
The Union's organizational activities at the plant commenced in May 1956 and
continued until the latter part of October, when a collective-bargaining election was
held. About the end of May, the Union's field representative visited Fowler at
i Washington Coca-Cola Bottling Works, Inc , 117 NLRB 1163 ; Darl.ngton Veneer Com-
pany, Inc., 113 NLRB 1101, 1107.
EDMONT MANUFACTURING COMPANY 529
home and spoke with her and her husband .. He said that he had been in contact
with other employees , and asked her to sign a union card, which she did. He also
asked her to give cards to others , and she did that , beginning about the end of May
or the beginning of June. Leaving Fowler's activities for the present , we can regard
such organizational work as background for what is now to be considered.
On July 14, 1956 , some 56 employees in the dip line department signed and sub-
mitted a grievance to the Company concerning wages and the fact that they were
lower than those paid elsewhere . Leader, the plant manager , testified that the
grievance referred to several departments , that he met with the dip line department
employees on July 28, and heard them out, and that Montgomery , president of the
Company, met with the dip line department employees on August 4 and with the
other employees , in groups , on August 8, 9, and 10. On the question of the reason
for the meetings , one of the dip line employees who signed the grievance petition
and was called as a witness by the General Counsel testified that employees in sev-
eral departments asked for a meeting with the Company to discuss working condi-
tions and wage adjustments . I have not overlooked testimony by various witnesses,
uncertain at best, concerning Montgomery 's remarks . The latter 's version and ex-
planation appear to be complete and reliable , and largely uncontradicted.
Montgomery testified that , to explain why less money was being paid by the
Company than at steel plants and elsewhere , he decided to review the entire com-
petitive situation with the employees . He displayed competitive gloves, compared
competitive prices, discussed wages in the work glove and coated glove industries,
and explained that the Company 's competition is with these latter and not with steel
or other industries . He described a southward movement in this industry , and ex-
plained that if it had to compete with other industries , the plant could not continue
with work gloves : The Company would have to take its so-called competitive styles
to the South , where it could compete with other glove manufacturers , and leave the
more specialized and less competitive styles at the Coshocton plant, developing as
many lines as possible where higher wages could be paid; this latter would require
more automatic equipment , and might result in some loss of jobs . At the meeting
with the dip line employees , Montgomery did-not refer to the Company 's new plant
in Louisiana , where liners, which the Coshocton plant had not been able to produce
in sufficient quantity , are manufactured . ( Since the commencement of the Lou-
isiana operation , employment at Coshocton has increased.)
Montgomery further testified that the Company made its first survey of southern
localities as a site for additional operations in 1954. An announcement concerning
such prospective operations was made in a bulletin to employees in February 1956.
The Company had made extensive improvements at the Coshocton site, and so far
from removing all operations from there , Montgomery emphasized to the employees
that that would always be the Company 's home base ; he neither spoke nor thought
of keeping only a headquarters office at Coshocton , and he has pointed out that
operations at Coshocton are more efficient than those in the South . As had Leader,
Montgomery testified that the August meetings were held because of the grievance
which had been filed; the employees ' union activities were not discussed.
If, from Montgomery's remarks to the employees , someone drew the conclusion
as alleged in the complaint that he unlawfully threatened that the Company would
have to move its operations to the South if it had to pay higher wages, and that this
would cause some employees to lose employment , it was an erroneous conclusion.
Montgomery himself denied that he made the remarks alleged . He did not so express
himself to the employees , nor do I find that his statement was so close to the con-
clusion drawn as conceivably to make him responsible for such a conclusion . In fact,
the new plant was neither intended by the Company nor regarded by the employees
as a competitive threat to the Coshocton operation or employees . It was made
clear that the contemplated move was to involve certain competitive operations only,
and less competitive operations would be maintained and extended at the Coshocton
plant . Whether or not she had earlier in the year read a company report about the
new plant, Fowler testified that 2 months before Montgomery addressed the
employees , Berton told her that the Company was building a new plant because the
Coshocton plant was not making enough liners.
Parenthetically , it may - be mentioned that the Union had distributed a leaflet
at the plant gate about a week before the last three meetings , and it apparently dis-
tributed other leaflets at other times although the facts in this connection have not
been submitted. But there is no warrant for finding that such distribution rather
than the grievance filed on July 24 prompted the four meetings or that it somehow
made unlawful Montgomery 's otherwise lawful remarks.
483142-59-vol. 120-35
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to Montgomery's statement that higher wages would compel transfer
of certain operations, the Board has held that an employer does not even interfere
with an election by declaring its preference to deal directly with its employees, and
the futility of seeking to compel it to pay higher wages.2 Similarly, an employer,
although otherwise interfering with concerted activities, in violation of the Act,
has been held 3 privileged to declare:
If the union comes in, you will not get one dime increase in wages. We can't
afford to give you an increase in wages, therefore , you will not get one.
If Montgomery was privileged to say that he could not pay higher wages, he as
properly declared the effect if he were compelled to do so. Such a statement may
cause concern; it may feed an ulcer; it might in fact be so regarded as to limit
or interfere with lawful concerted activities. But it contains no threat, and is a
privileged statement under Section 8 (c) of the Act. The possible consequences
which it describes are of action, not by the speaker, but by others.4 We must dis-
tinguish between a threat of action by the employer, and a warning of the conse-
quence of action by the employees or their representative, the reference here being
to insistence on higher wages. Montgomery declared only the economic facts as
viewed by the Company. He was not threatening the futility or a direct consequence
of the employees' concerted activities.
C. Interrogation concerning union activities and interests
Fowler testified that Berton opened the conversation in his office early in June
by saying that she knew why she was there, and asking what she had against the
Company and the way it was operated; when she replied that she had always been
treated fairly, he asked why she wanted a union there, to which she replied that her
reasons were so that employees could get more money and not be laid off without
good reason; that Berton then said that he had been told that she was working for
the Union and had union cards; when she said that she didn't have any, he asked
whether she had had some, and she replied that she had and gave them to the
unionman; Berton asked whether and when she had gotten signatures, and she replied
that she had a week before, but would not give him any names. Although she had
said that she didn't have any, Berton also allegedly asked her to let him see a union
card; she again said she didn't have any; he also asked the name and number of the
Union, and she replied that she had never seen the number and didn't know that the
Union could have one. Fowler testified further that the conversation included
Berton's threat of action by Montgomery, infra, reference to the new plant then
being built to provide needed liners, the request that she report to him anything
else that she might hear concerning the Union, Berton's alleged statement that he
had spoken to other employees concerning the Union, and his threat that the bonus
would be eliminated if the Union got in and that there would be strikes and uproar.
She also told Berton at that time of her desire to be transferred to the day shift and
of her babysitter problems, and he said that he would.try to work it out. (She has
since been so transferred.) The conversation, she testified, lasted about an hour.
Fowler denied that Berton spoke to her about passing out cards on company time.
In fact, from her testimony it does not appear that, despite his persistent questioning,
he admonished her or even suggested that she not distribute cards The difference in
this connection between Fowler's and Berton's testimony is not whether he spoke to
her about distributing cards, during working time as Berton testified, or, as Miller
testified, infra, without mentioning working time; it is rather whether Berton spoke
to Fowler at all about distribution of cards.
Berton testified that he returned to the plant about 11 p. in. (although in charge of
all three shifts, he normally worked daytime hours), sent for Fowler, and told her
that he had a report that she was soliciting union cards during working hours; that
he took her at her word when she denied this; he then asked whether she knew the
union number and name, and Fowler volunteered that an organizer had talked to her
and her husband at their home, that he asked whether she had any union cards with
her, and she said, "No"; and that he told her that there was to be no solicitation
during working hours. Berton explained that he called Fowler in because of the
report that she was soliciting for the Union on company time. Like Fowler, Berton
2 Esquu c, Inc, 107 NLRB 1238, 1240, 1241.
8 Pi otein Blenders , Inc, 105 NLRP. 890, 890
' Sunset Lumber Pioducts , 113 NLRB 1172, 1173 Cf. N L. R. B. v. W. C Nabors
Company, 196 F 2d 272, 276 (C. A 5).
EDMONT MANUFACTURING COMPANY 531
testified that they also discussed her babysitter problem and a possible change in
shift and work. According to Berton , his conversation with Fowler was limited to
these items. He was not asked specifically concerning each of the other points men-
tioned by Fowler although he did deny that he had asked what she had against the
Company and the way it was operating , or why she wanted the Union.
Did Berton extensively question Fowler concerning her union activities , or did he
only admonish her against such activities on working time? To connect their
respective versions to actual solicitation and thus to indicate which should be credited,
the General Counsel attempted to show that Fowler solicited on nonworking time
only; the Company, that she solicited on working time. An ancillary issue was thus
developed and thoroughly ligitated although not alleged; it assists on the issue of
credibility . Fowler testified that she distributed union cards during breaks, in the
lunchroom , and before she started to work at 11 p. in . But Miller, a former
employee, also sponsored by the General Counsel, testified that, while she was at
her job and working, she was given a union card by Fowler . Recalled, Fowler denied
this. If it appears that great weight is being given this testimony by Miller,
aside from her sponsorship by the General Counsel , the fact is that although Fowler
distributed 8 or 10 union cards and then obtained more for distribution , no other
employees to whom she gave cards were called . During her later testimony she
injected a warning which she allegedly had previously received to the effect that
Miller would report everything to the Company . Such warning was itself out of
keeping with Fowler's subsequent approach to Miller and, of course , with the General
Counsel 's sponsorship of the latter. ( Miller did not display pro-company bias when
she testified to a threat by Berton , as noted infra.)
Further on the question of Fowler's credibility , it should be noted that she testified
variously that she had not passed out any cards since her talk with Berton in June,
and that she did pass cards out after that conversation . I cannot say that Fowler was
a more credible witness than Berton although the latter's attempt to reconcile his
testimony that he asked Fowler only about the Union 's number and name, with an
earlier statement which he had submitted was rather feeble. On this record, and
accepting the basis relied on by both sides to help determine this issue of credibility,
I am impelled to credit Berton and to accept the version that he did tell Fowler that
there was to be no solicitation during working time.
In addition to the reflection of actual solicitation on the credibility aspect , the pic-
ture of organizational activities and company attitude as portrayed at the hearing does
not suggest the likelihood that Berton would return to the plant when he did merely
to question Fowler concerning the Union and, despite her recognized prounion stand,
without mentioning solicitation , of which he had at least a suspicion . I find that
Berton spoke of solicitation , although Fowler denied this, but did not interrogate her
as she testified . The length of the conversation , a little less than an hour , does not
itself prove the questioning which Fowler described . She related and there was con-
cededly enough else to prolong the conversation . The timing as we have it is itself
not so exact as to require either the inclusion or the exclusion of the disputed ques-
tions. I can base no finding of interrogation on Fowler 's testimony.
To the extent that Berton 's opening renrrk to Miller , to the effect that he had heard
that union cards had been passed out, may be considered to be interrogation, I find
that it was quite lawful since in Miller 's case certainly such distribution was made
during working time and Berton was lawfully concerned with such distribution.
D. Alleged threats by Berton
Miller, who as we have seen gave testimony which supported Berton 's version of
his conversation with Fowler , testified that one morning in June, Berton sent for her
and told her that he had heard that union cards had been passed out , to which she
replied that she had received one; Berton then said , "You know what happens to
people who try to bring a union in and cause trouble." Without identifying anyone
by name because , as Miller testified , Berton seemed to know whom she meant , Miller
replied , "I did but . . . I didn 't think that she did and I didn 't think that she was
going to work for the union any more." Berton 's rejoinder was, "We will let it go
this time."
Miller appeared to be testifying truthfully and without bias, and I find, despite his
denial , that Berton made the threat as she described it. Whatever technical nicety
might be asserted because of the conjunctive employed with trying to bring a union
in and causing trouble, such nicety was clearly not intended - by Berton or understood
by Miller. Causing trouble was here made synonymous with bringing a union in,
and the threat in that connection with its tendency to interfere was violative . Berton's
statement that it would be "let go" this time did not remove the threat.
532 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fowler testified that , during her conversation with Berton early in June , he said
that if the Union got in there would be no steady work , there would be strikes, and
the plant would be in an uproar ; also, that Montgomery was opposed to the Union,
and if it got in he would cut out the bonus: there might be a 11/2 -cent raise, but no
bonus. She asked whether she could be laid off for working for the Union , and Ber-
ton replied in the negative . Concerning the bonus threat , while I have not credited
Berton 's denial where Miller testified to the contrary , and while Berton 's testimony
was not uniformly impressive , the quality of Fowler 's is not such as to warrant re-
jection of Berton 's denial that he made that threat . As for the reference to lack of
steady work because of strikes and trouble , if a prediction of failure of a strike should
it occur is privileged , and it is,5 a prediction that work would not be steady because
of strikes is likewise privileged . Here again the events would be set in motion by
the Union , not the Company.6
M. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company , set forth in section II , above , occurring in connec-
tion with the operations described in section I, above , have a close , intimate , and sub-
stantial relation to trade, traffic, and commerce among the several States, and tend
to lead to labor disputes burdening and obstructing commerce and the free flow of
commerce.
IV. THE REMEDY
Having found that the Company engaged in and is engaging in certain unfair labor
practices affecting commerce , I shall recommend that it cease and desist therefrom
and take certain affirmative action in order to effectuate the policies of the Act.
It has been found that the Company, by a threat against those who would try to
bring a union in , and by a direction that an employee report anything that she heard
about the Union , interfered with , restrained , and coerced its employees in violation
of Section 8 (a) (1) of the Act. I shall therefore recommend that it cease and desist
therefrom and from any like or related conduct.
Upon the basis of the above findings of fact , and upon the entire record in the case,
I make the following:
CONCLUSIONS OF LAW
1. United Rubber , Cork, Linoleum & Plastic Workers of America , AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act.
2. By threat and direction that an employee report , concerning union affairs or
activities , thereby interfering with, restraining , and coercing its employees in the
exercise of the rights guaranteed in Section 7 of the Act, the Company has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Gazette Publishing Company, 101 NLRB 1694, 1703.
s Footnote 3, supra . See also Nash -Finch Company, 117 NLRB 808.
Conso Fastener Corporation and Textile Workers Union of Amer-
ica, AFL-CIO
Conso Fastener Corporation and Minerva Den Haese. Cases Nos.
4-CA-1492 and 4-CA-1482. April 02, 1958
DECISION AND ORDER
On September 27, 1957, Trial Examiner C. W. Whittemore 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
120 NLRB No. 74.