Fisher Governor Co.

National Labor Relations Board - Board Decisions

Dec 31, 1946

71 N.L.R.B. 1291 (N.L.R.B. 1946)

In the Matter of FISHER GOVERNOR COMPANY and INTERNATIONAL ASSOCIATION OF MACHINISTS, DISTRICT No. 118 Case No. 18-C-1024.-Decided December 31, 1946 Mr. Clarence A. Meter, for the Board. Mr. H. C. Cartwright, of Marshalltown, Iowa, for the respondent. Mr. Eric B. Bjurman, of Minneapolis, Minn., for the Union. Mr. Paul Bisgyer, of counsel to the Board. DECISION AND ORDER On July 18, 1946, Trial Examiner Louis Plost issued his Interme- diate Report in the above-entitled proceeding, finding that the respond- ent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. Thereafter, the respondent filed exceptions to the Intermediate Report and a supporting brief. The Board has reviewed the rulings of the Trial Examiner and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Intermediate Report, the re- spondent's exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner with the additions, exceptions, and modifications noted below. 1. The Trial Examiner found that the respondent, in violation of Section 8 (3) and (1) of the Act, discharged employees Schwechel and Milburn because of their union activities. In reaching this conclusion, the Trial Examiner relied upon, among other things, the testimony of Schwechel, Milburn,, Presnall, and. Olman, all of whom he apparently 'Although officers of the respondent testified that it discharged Milburn because he vio- lated its rule against union solicitation , and so informed him at the time of his dismissal, Milburn testified that he was told that he was being discharged for visiting However, Milburn also testified that he was at the time shown a copy of a notice prohibiting "plant collections" of money. Under these circumstances , and in view of the entire record herein, we find that the respondent purported to discharge Milburn for violating a no-union solici- tation rule and that he was informed that this was the reason for the respondent's dis- charging him. Schwechel, according to uncontradicted testimony which we credit, was purportedly dismissed because he violated the alleged no-union solicitation rule, and was informed by the respondent at the time of dismissal that this was the reason. 71 N. L. R. B., No. 206. 1291 1292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD regarded as credible witnesses. Member Houston and I credit the testimony of these witnesses except as otherwise indicated, and we agree with the Trial Examiner's findings and conclusions with respect to the discharge of Schwechel and Milburn. The evidence, summarized in the Intermediate Report, establishes, and we find, that the respondent, under the guise of enforcing its alleged rule forbidding union solicitation in the plant,- seized upon Schwechel's and Milburn's union solicitation as an excuse to rid itself of two prominent union advocates. Like the Trial Examiner, we are not convinced that there was in existence any rule which could fairly or reasonably be construed by the employees as prohibiting union solicitation in the plant. Nor does it appear that the conduct which precipitated Schwechel's and Milburn's discharge either contra- vened the respondent's rule against unreasonable visiting among em- ployees as interpreted by Plant Superintendent Biermann at the hear- ing, or interfered with production. As indicated in the Intermediate Report, the amount of time spent by Schwechel in summoning and speaking to Olman, who was then on his lunch hour, and by Milburn, after the end of his shift, in speaking to Presnall at her machine, was negligible. Hence, we are convinced that this conduct was not the real reason for the discharges. This is particularly apparent from the fact that Oliuan, who was not a union adherent, had been visiting another working employee for a longer time just prior to talking to Schwechel, but was not even reprimanded for such conduct.3 More- over, while there is testimony, which we credit, that the respondent had previously spoken to Schwechel and Milburn about leaving their machines,4 the record also discloses, and we find, that other employees who were not members of the Union and who persistently engaged 2 As found in the Inteimediate Report, the respondent' s rule in question merely oro- hibited the collection of money toi private gifts or public chaiities That neither Schwechel nor Milburn engaged in such conduct is clear from the record, and iA e so find It is signifi- cant to note that, if this rule were to be construed as forbidding union solicitation, it would be violative of Section 8 (1) of the Act insofar as it prohibited union activity on the employees' own time Republic Aviation Coi p v N L R B. 324 U S 793, aff'g 142 F (2d) 193 (C C A 2), enf'g 51 N L R B 1186 , Matter of Hoosier Cardinal Corpora- tion , et at , 67 N L R B 49 Matter of Bonita Fruit Company, Inc , et W, 64 N L R B 172 Mattel of Enid Cooperative Creamery Association. 63 N L R B 728 Howevei, in view of our decision herein, we find it unnecessary to make such a deter initiation a In view of the open character of Ohnan' s visiting , his interrogation by the respondent s officers concerning Schwechel s solicitation, and the entire record in this case, we find that the respondent was aware that Olman was visiting it working employee at the time that Olman was summoned by Schwechel to his machine a We do not credit the testimony of Plant Superintendent Bierniann and Personnel Direc- tor Elder that Schwechel and Milburn were the most flagrant violators of the rule forbidding excessive visiting The unreliability of their testimony is revealed by their clearly refuted asser tions that Schwechel and Milburn were inefficient Moreover, the record does not disclose that Schwechel and Milburn engaged in a greater amount of visiting than other employees who were not members of the Union. FISHER GOVERNOR COMPANY 1293 in visiting in the plant were merely reprimanded and not discharged therefor. We are further impressed with the fact that, 10 days after the dis- charge of Schwechel and Milburn, Vice-President Fisher addressed the employees in a manner which left no doubt as to the respondent's anti-union motivation. Although Member Houston and I are in dis- agreement as to whether the speech was privileged,, we agree that the speech discloses hostility to the Union and, therefore, casts light upon the respondent's motive in discharging two old top-grade em- ployees. "It may have been an exercise of [the respondent's] Consti- tutional right of f ree speech and yet illuminative as evidence of motive, intent, and attitude towards labor union activities of the employees." As the Supreme Court said long ago, "Motive is a persuasive in- terpreter of equivocal conduct."' It thus appears, and we find, that the respondent, by Fisher's speech, revealed opposition to the Union and a purpose to discourage membership in it. Inasmuch as the record does not substantiate the respondent's as- serted reasons for the discharges,' or show that Schwechel and Milburn violated any established plant rule or interfered with production by the conduct which precipitated their discharge; in view of the fact that the respondent interrogated Presnall and Olman primarily for the purpose of ascertaining whether they had been solicited by Sch- wechel and Milburn to join the Union, and promptly thereafter de- cided to terminate Schwechel's and Milburn's employment without first affording them an opportunity to give their version of the inci- dents; in view of the disparity between the treatment thus accorded them and that given non-uion employees; and in view of the hos- tility toward the Union expressed in Vice-President Fisher's speech to employees,10 we are of the opinion and we find that the respondent's a According to the uncontradicted testimony of O1man, which we credit, he had been merely reprimanded for excessive visiting only 3 oi 4 weeks befor e the hearing in ,thus case There is also evidence , however , and we find, that a former employee , Buchwald, men- ti oned in the Intermediate Report, was discharged for violating the rule against excessive visiting But he, unlike Schwechel and Milburn, had been given at least monthly- warn- ings, the last one being in writing, and , on the occasion which directly led to his dismissal, he had been visiting for a longer time than was permissible Also, it appears that Buch- wald was a member of the Union. °As will hereinafter appear, Chairman Herzog and I agree for different reasons that Vice-President Fisher's speech did not , under the circumstances of this case , violate Section S (1) of the Act Member Houston, in a separate opinion, dissents from this view. IX L R B v Chicago Apparatus Company, 116 F (2d) 753, 757 (C C A 7) 'Texas cC New Orleans R R Company, et al n Brotherhood of Railway cC Steamship Clerks, et al , 281 U S 548, 559 ° We also find, as rid the Trial Examiner , contrary to the respondent 's contention, that Schwechel and Milburn were efficient wokers Even assuming that they were not effi- cient. we find , for the reasons herein stated, that they were not discharged because of inefficiency 1° However , we find it unnecessary to rely upon the quotation from Personnel Director Elder's testimony, set fourth in the Intermediate Report, Section III, A, Subsection entitled "Conclliding findings on the discriminatory discharges of Schwechel and Milburn," as an indication of the respondent's hostility to self - organization of its employees 1294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD motive in discharging Schwechel and Milburn was to discourage union organization of its employees rather than to enforce its rules or remedy a decline in production, as the respondent contends. Member Houston and I, accordingly, agree with the Trial Examiner and find that the respondent discharged Schwechel and Milburn because of their union activities, and thereby discriminated in regard to their hire or tenure of employment to discourage membership in a labor organization, and interfered with, restrained, and coerced its employees in the exer- cise of the rights guaranteed in Section 7 of the Act. 2. The Trial Examiner found that Vice-President Fisher's speech, summarized in the Intermediate Report, when viewed against the background of the discriminatory discharges, constituted interference, restraint, and coercion within the meaning of Section 8 (1) of the Act. I do not agree with this finding 11 In my opinion, this speech was, under the circumstances of the case, separable f rom the discrimi- natory discharges; thus considered, it was constitutionally privileged. By finding otherwise, the Board would be serving notice upon the respondent that it cannot again speak or write to its employees on matters embraced in the instant speech without further incurring the disapprobation of this Board, or, in the event of judicial concurrence, of running the risk of being hailed before the decreeing court for contempt. The imposition of such an edict of silence upon the re- spondent does not in my opinion constitute a furtherance of the pur- poses of the Act. When every tenet which we cherish in this democ- racy is given vigor and life by the basic right to speak our minds without fear and when a well-informed free-thinking people is the very trademark. of our society, no forum for expression should be denied to any man by this Board in the absence of substantial and compelling evidence that such forum has been misused for the dis- semination of threats, pleas to violence, or utterances inseparable from acts contrary to public interest and statutory restraint. I am thoroughly cognizant and respectful of the rule laid down by our highest court holding that, while temperate expressions of union hostility such as that found in the speech of the respondent's vice president may not be violative per -se; these same expressions, when considered in connection with other circumstances, may amount to coercion within the meaning of the Act. It is in the evaluation of these all-important "other circumstances" present in this case that I must depart from the conclusions of my colleagues. I find it impos- sible to agree that, in a plant where efforts to unionize employees had continued apparently without interference on the part of the respond- ent over a period of several years, the discriminatory discharge of " Chairman Herzog, in his separate opinion , also agrees , although for other reasons, to reverse the Trial Examiner 's finding that Fisher's speech violated Section 8 ( 1) of the Act. FISHER GOVERNOR COMPANY 1295 two employees formed a pattern of conduct sufficiently grave to deny to this employer a right so fundamentally imbedded in the fabric of American doctrine as is the right to free expression . Rather I find guidance in the succinct and prophetic utterance of Mr. Justice Jackson in Thomas v. Collifas ,12 when he said: ... if the employer 's speech is associated with discrimina- tory discharges or intimidation , the constitutional remedy would be to stop the evil, but permit the speech, if the two are separable; and then only rarely and when they are inseparable to stop or punish speech or publication. Accordingly , I hold to the view that, by our order with respect to the discharge of Milburn and Schwechel , we "stop the evil but permit the speech." By so doing , we serve notice on the respondent that such conduct as discriminatory discharge Will not be tolerated by this Board, and to the employees we extend the friendly protection of the Act to the end that they may listen to their employer and weigh for themselves the merits of his opinions in an atmosphere free from fear of discriminatory action. Is not this the better way to create an atmosphere conducive to the intelligent determination of industrial strife ? Let the employer talk-let the employee listen without fear for "in this free air of free speech men get into that sort of communi- cation with one another which constitutes the basis of all common achievement." 13 Chairman Herzog, in his separate opinion, asserts that, were he to agree with Mr. Houston 's and my findings with respect to the dis- charges of Schwechel and Milburn , he would agree with Mr. Houston that Vice -President Fisher's speech also constituted a violation of the Act. The reasons which he sets forth in support of this assertion are clear, although , in my opinion, erroneous . However, I find his comments as to the effect of a Board order which would issue were my colleagues to join in the finding favored by Mr . Houston confusing. Assuming that I interpreted his comments at all accurately , he states, in effect , that a finding by the Board that the speech was violative of Section 8 (1) of the Act-solely because of the illegal discharges of Schwechel and Milburn-could not thereafter prevent the respondent from repeating the speech so long as lie did not also engage in other conduct which per se was violative of the Act. If this is indeed the law relating to the effect of the Board's orders and Cou rt decrees enforcing such orders , it is immaterial whether the Board adopts my position in this matter or that expressed by Mr. Houston, because in either event any order which would result could , in the final analysis, 13 323 U S 516 13Ibid From footnote ( 1) in Dfr Justice Jackson's concuiience , in which he quotes from an address by Woodrow Wilson 717734-47-vol 71-83 0 1296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD accomplish no more than our order here ; that is, "stop the evil, but permit the speech" ; and our concern over this whole issue amounts to a "tempest in a teapot." Although I am tempted to agree with Chairman Herzog's ob- servations as being a convenient mode of disposing of this whole issue (contemplating that we would then join in making our order more explicit by explaining its limited effect), I am not yet so divorced from my conception of the effect of our orders that I believe this course to be the safest to pursue 14 Accordingly, and in view of the Chairman's separate opinion, the Trial Examiner's finding with respect to the speech will be overruled. Unlike the Trial Examiner, I find that the respondent did not violate Section 8 (1) of the Act by announcing and granting a wage increase to its employees. I am persuaded from the evidence in the case that the wage increase was given for business reasons in accord- ance with the then prevailing practice in industry. Chairman Herzog's views are set forth in his separate opinion. Accordingly, the complaint will be dismissed insofar as it alleges that the respondent violated Section 8 (1) of the Act apart from the discriminatory discharges. THE REMEDY The Trial Examiner has recommended that, in order to make the Board's order coextensive with the threat of future unfair labor practices and thus effectuate the policies of the Act, the respondent be ordered to cease and desist from , in any manner infringing upon the rights of employees guaranteed in Section 7 of the Act. This recommendation is partially based on the Trial Examiner 's finding that, in addition to the discriminatory discharges, the respondent violated the Act by an anti-union speech and the announcement and granting of a wage increase to its employees . While we have found that the latter acts and statements did not constitute unfair labor practices , we are nonetheless of the opinion that the discriminatory discharges , which were designed to discourage membership in the Union, amply disclose an attitude of opposition to the purposes of the Act.15 We believe , therefore , that, in order to satisfy the remedial objectives of the Act, the respondent should be ordered to cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act. 14 Mr Justice Jackson , in his concurring opinion in Thomas v . Collins, supra, states that, "Speech of employers otherwise beyond reach of the Federal Government is brought within the Labor Board ' s power to suppress by associating it with 'coercion ' or 'domination' " He apparently is of the opinion that our order is somewhat broader in rffect than Chairman iberzog indicates 15 N L R B. v. Entwistle Manufacturting Company, 120 F. (2d) 532, 536 (C C A 4). FISHER GOVERNOR COMPANY 1297 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, Fisher Governor Company, Marshalltown, Iowa, and its officers, agents, successors, and assigns shall : 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, District No. 118, or any other labor organization of, its employees, by discharging or refusing to reinstate any of its em- ployees, or in any other manner discriminating in regard to their hire or tenure of employment, or any term or condition of their employment ; (b) In any other manner interfering with, restraining, or coercing its employees in the exercise of the right to self-organization, to form labor organizations, to join or assist International Association of Machinists, District No. 118, or any other labor organization, to bar- gain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- gaining or other mutual aid or protection, as 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) Offer to Leroy H. Schwechel and Howard Milburn immediate and full reinstatement to their former or substantially equivalent .positions, without prejudice to their seniority or other rights and privileges ; (b) Make whole Leroy IT Schwechel and Howard Milburn for any loss of pay that they may have suffered by reason of the respondent's discrimination against them, by payment to each of their of a sum of money equal to the amount which he normally would have earned as wages during the period from the. date of his discharge to the date of the respondent's offer of reinstatement, less his net earnings during said period; (c) Post at its plant at Marshalltown, Iowa, copies of the notice attached to the Intermediate Report, marked "Appendix A." 16 Copies of such notice, to be furnished by the Regional Director for the Eighteenth Region, shall, after being duly signed by the respond- ent's representative, be posted by the respondent immediately upon 10 Said notice, however, shall be, and it hereby is, amended by striking from the first para- graph thereof the words , "THE RECOMMENDATIONS OF A TRIAL EXAMINER," and substituting in lieu thereof the words, "A DECISION AND ORDER." In the event that this order is enforced by decree of a Circuit Court of Appeals, there shall tie inserted before the words, "A DECISION AND ORDER," the words, "A DECREE OF THE UNITED STATES CIRCUIT COURT OF APPEALS ENFORCING." 1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD receipt thereof, and maintained by it for sixty (60) consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighteenth Region in writing, within ten (10) days from the (late of this Order, what step-, the respondent has taken to comply herewith. AND IT IS FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges that the respondent violated Sec- tion 8 (1) of the Act by leaking certain anti-union statements and by announcing and granting wage increases and bonuses to employees. MR. JohIN M. HOUSTON, concurring in part and dissenting in part: My colleague Reynolds and T are agreed that the discharges of Schwechel and Milburn were effected in violation of Section 8 (3) of the Act. Ten days after these discharges occurred, Vice-President Fisher assembled the respondent's employees in the plant during work- ing hours to address them with respect to the respondent's views on unionization.17 In substance, Fisher expressed the respondent's an- tipathy to the organization of its employees and to the principle of collective bargaining, pointing out that they had received substantial benefits from the respondent in the past without the assistance of a labor organization, and declaring that representation by an "out- sider" was not necessary for them in their dealings with the respondent. Fisher listed the benefits which the respondent had granted and ad- vised his audience to "give some thought" to them. But he refrained from assuring his listeners that they would retain the same benefits in the event self-organization was successful. Finally, he announced a wage increase which was effective the following clay. His speech was later printed in the respondent's publication and distributed to all employees. The respondent contends that the speech was privileged under the constitutional guaranty of free speech, and it appears that, although with differences of opinion as to rationale, my . colleagues agree with its position. I am unable to do so. In considering the respondent's argument in this respect, I do not view the speech merely as an isolated event unconnected, in time or contest, with the treatment given by the respondent to Scliwechel and Milburn, because the facts foreclose such an approach. Fisher's speech followed almost immediately upon the discharges which a majority of the Board has found discriminatory. These discharges unmis- 14 The compulsory natuie of the audience thus created has been held by a majority of the Board ( Chairman Herzog and Member Houston ) to lu :, tify- a finding of illegal interference Matter of Clark Bros Co , hie, 70 N L R B . 802 However , I do not rely on this aspect of the circumstances herein , because the issues were not litigated with that doctrine in mind and no exceptions -,ieie filed to the Inteimediate Report in that respect FISHER GOVERNOR COMPANY 1299 takably made clear to the enmployees,that the right of self-organization could be exercised only at the risk. of incurring the drastic penalty of discharge. The mere lapse of 10 days between this concrete mani- festation of the respondent's determination to prevent organization among its employees, and the verbal expression of the respondent's antagonism to unionization, cannot realistically be accepted as isolat- ing one event from the other. The speech, therefore, must be con- sidered in the light of, and with distinct relation to, the discriminatory discharges, and its legality must be evaluated with reference to those discharges.' This treatment has received express judicial sanction, and it is well- settled that this Board may view a verbal expression of hostility to organization "not as an isolated incident or statement, but with due appreciation of its significance as part of a series of connected and related events which together [give] a fair picture of the situation .. . and [permit] a more accurate interpretation." 11 And in a thorough discussion of this problem the Supreme Court recognized with ap- proval the doctrine that speech may well constitute a form of coercion when viewed in context with other behavior by stating: .. . certainly, conduct, though evidenced in part by speech, may amount, in connection with other circumstances, to coercion within the meaning of the Act. If the total activities of an employer restrain or coerce his employees in their free choice, then those employees are entitled to the protection of the Act. And in de- termining whether a course of conduct amounts to restraint or coercion , pressure exerted vocally by the employer may no more be disregarded than pressure exerted in other ways.19 When the speech is evaluated in this way I am convinced that rea- son and a fair appreciation of the facts of industrial life demand the conclusion that it was coercive and therefore not privileged under the constitutional guaranty of free speech. Its coercive aspect derives from the context in which it was delivered, from the circumstance that 10 days before the employees were assembled to hear it, the re- spondent had engaged in conduct which "goes to the very heart of the Act," 20 and which is "probably the primary wrong" 21 sought by the statute to be removed from our industrial economy. With the -full force of its quickness to abort any movement toward self-organization by the sharpest punishment still unexpended, the respondent under- is Elastic Stop Nut Corporation v. N . L. R B., 142 F. ( 2d) 371 , 375 (C C . A. 8), enf'g 51 N. L R B . 694, ceit denied 323 U S 722 'ON. L . R. B. v. Virginia Electric cC Power Company , 314 U . S. 469 ; see also N L. R. B. V Trojan Powder Co , 135 F ( 2d) 337 ( C C A 3 ), enf'g 41 N L It B 1308, ceit denied 320 U S 76S 20Nr L R B v P7ntwistle illanfacturing Company, 120 F ( 2d) 532 (C C A 4) 21 N L R B. v Remington Rand, Inc, 94 F (2d) 862, 869 (C C. A 2), ceit denied 304 U S 576. 1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD took to climax the effect of the discharges with an indirect warning that unionism would result in economic disadvantage to its employees. "Workingmen do not lack capacity for making rational connec- tions"; 22 they are "sensitive to overt or subtle communications of hostility"; 23 they could not reasonably have dissociated the recent penalty inflicted by their employer for union activity from the sole permissible inference to be drawn from the speech, i. e., that their em- ployer was prepared , with every means, to resist their desire for organization , and consequently they must be taken as having under- stood that to continue organizing was to risk losing their jobs. If the fact of the discharges itself left any doubt on this score, as is hardly likely, the speech removed it . I am persuaded , therefore, that the speech was an illegal interference with the statutory rights of these employees. One other aspect of the respondent's conduct must be mentioned and considered in conjunction with the speech and the discharges. Normally, of course , a grant of wage increases is not an unfair labor practice . Employers , however, who extend economic advantages for the purpose of forestalling or interfering with the self -organization of their employees are not less liable under the Act than employers who have used a negative approach by way of economic reprisal.- In the case before us the respondent combined these techniques. An- nouncen7ent of wage increases in the same speech in which Fisher told his employees that it was unnecessary "to bring in the union, an absolute stranger, at the expense of some $20,000 a year for the purpose of dealing with . . . management ," and that he knew of "no union which has done as well for its members as we have been able to do here without a union, " bears too close a kinship with allure- ment to be dismissed as mere largesse or even legitimate business practice . When the whole meaning of the speech and the discharges is grasped , no doubt can attach to the motivation for the increases; the timing of their announcement and the milieu in which they were granted bind them inextricably to the scheme of subversion with which the respondent was determined to meet his employees ' desire for self- organization . The announcement and the actual grant of the in- creases are, therefore , also illegal interferences with the employees' statutory rights. My colleague Reynolds has expressed grave concern lest we do some- thing to stifle the right of free expression , so fundamental to our democratic way of life . No one is more fully cognizant of the value of that right than I. My concern , as I have expressed it herein, springs 22 Thomas v. Collins , 323 U S 516, 535 24 N L R B v Laistcr-Kauffmann Aircraft Corporation, 144 F. (2d) 13 (C C. A 8), enf'g 52 N. L R B 261. 24 Medo Photo Supply Corporation v. N. L. R B, 321 U. S. 678, 686 ; West,mrn (7artsidpe Company v. N L. R B, 134 F. (2d) 240 (C C. A. 7), enfg 44 N L R. B 1 FISHER GOVERNOR COMPANY 1301 from a keen desire to avert a patent abuse of the right, and I must therefore dissent from action of my colleagues in dismissing the alle- gation based upon the speech and the wage increases.26 PAUL M. HERZOG, CHAIRMAN , dissenting in part and concurring in part : Much as I dislike to encourage, by emulation, a trend toward the writing of separate opinions, this particular case permits no other choice. I cannot concur in my colleagues ' common appraisal of the facts, or in all aspects of their separate views concerning the applicable legal principles. The record does not convince me that either Schwechel or Milburn was discriminatorily discharged. There is substantial evidence to support my colleagues' conclusion that they were, and I would be the last to say that reasonable men could not reach that result. But in the absence of any showing of prior anti-union conduct by this respond- ent or of more impressive proof of disparity of treatment, the evi- ,dence that these particular men engaged in excessive visiting during working hours despite both general and specific warnings, leads me to the opposite conclusion. The Board not appearing to have sus- tained its burden, the 8 (3) portions of the complaint should, in my opinion be dismissed. That being so, I would unhesitatingly dismiss so much of the com- plaint as alleges that the respondent violated Section 8 (1) of the Act by reason of Vice-President Fisher's speech of March 12, 1946.26 The speech, standing by itself, certainly was privileged under the First Amendment. I therefore join in the result reached by Mr. Reynolds, but for different reasons. If I shared his view that the two discharges of March 2 were discriminatory, I should be reluctant to appraise the speech delivered on March 12 as though the respondent had not engaged in contemporaneous coercive conduct. I believe that Mr. Houston's analysis of this particular problem is both more real- istic and more consistent with the views of the Supreme Court of the -United States.27 Once it is conceded that the discharges, occurring -a mere LO days before the speech, were discriminatory, we should not 25 My colleagues appear to be agitated about the possibility that contempt action may or 'may not be appropriate in the event this employer repeats the speech which I think is co- ercive in the circumstances of this case . Insofar as their comments may he construed as defining the law, I desire it to be noted that, on that question, I should like to exercise niy judgment when all the facts shall have been received and not at a time when nothing but speculative hypothesis is suggested. I wish it to be further noted that I have no predilec- tion in the matter e5 The Trial Examiner only found the wage increase, which was announced in Fisher's speech , to be an unfair labor practice on the assumption that it was part of a course of conduct highlighted by the discharges He did not find it to be a violation of section 8 (1) -standing by itself . As I do not share his view of the discharges, and as no exceptions were filed by Board or union counsel to the Trial Examiner's limited 8 (1) finding, there is ,no need to comment on this aspect of the case 17 N L R B. v Virginia Electric if Power Company, 314 Il S 469, 1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD treat the speech, which on that assumption was not an isolated in- cident, as though it stood alone. The Constitution protects the right to express an opinion, and employers are not outlaws to be denied that sacred right by this Board or any other tribunal. But the Con- stitution protects appeals to an "employee's reason, and not to his- fear." 28 Declarations, privileged iii themselves, assume coercive color- ation if uttered under circumstances such as these (10 days after what Mr. Reynolds finds to have been discriminatory discharges), for fear may then prove the stronger factor in the minds of the listeners 20 That, at least, is the law as the Courts and the Board have written it for a decade in the "pattern of conduct" and "totality of activities"' cases. I can discover no reason-constitutional, legal 30 or factual- for completely disregarding such a long line of authority, despite i personal belief that a few of the earlier decisions went too far. Mr. Reynolds' opinion also suggests that applying the earlier deci- sions in which the Courts have upheld the Board would penalize the respondent unduly, by "denying to this employer a right so funda- mentally imbedded in the fabric of American doctrine as is the right to free expression." If I could agree with his premise, I would con- cur in his conclusion. The premise is erroneous, I believe, because it assumes that the order that issues in situations of this character has a much broader intent and effect than is actually the case. Even in the presence of the most extreme acts of verbal interference, a Na- tional Labor Relations Board order does not prohibit future speech as speech, or bar future expressions of opinion. The order merely directs an employer "to cease and desist from interfering with, re- straining, or coercing its employees in the exercise of" the rights protected by Section 7 of the Act. No "edict of silence" is imposed, nor is an employer barred from again speaking or writing "to its employees on matters embraced in the . . . speech without fur- ther incurring the disapprobation of this Board, or, in the event of judicial concurrence, of running the risk of being hailed before the 28 N L R B v West Kentucky Coal Co , 152 F (2d) 195, 202 (C C A 6) -° For the special situation created by the employer-employ cc relationship, see the con- curring opinion of Mr Justice Douglas in Thomas v Collins, 323 U. S 516, 543, which points out that once a nian `uses the economic power which he has over other men and their jobs to influence their action, lie is doing more than exercising the freedom of speech protected by the Fn st Amendment " See also the opinion of Judge Learned Hand in N L R B v I'ederbush Co . 121 F (2c1) 954. 957 (C C A 2) : "What to an outsider will be no more than the vigorous prtsenta- tion of a conviction, to an employee niay tie the manifestation of a determination which it is not safe to thwart The Board must decide how far the second aspect obliterates the first " Our decision must depend upon the events surrounding the utterance 30 The i ecent decision of the Eighth Circuit in N L R B v 11fontgoincry Word 't Co (157 F (2d) 486, reversing 64 N L E B 432) is not inconsistent with this view There the relevant doichaigee occurred so manv months before and so-manc months after the employcl s speech that there is no analogy to the 10-day interval here more important, the Court disagreed with the Board's finding that the discharges were in fact discrimina- tory, so that nothing remained for its consideration but the speech itself See N L R B. v. Kopman-R'oraecl Co, 158 F (2d) 103 (C C A 8), for the more recent views of the sane- Circuit in affirming a Board order op a different set of facts FISHER GOVERNOR COMPANY 1303 decreeing Court for contempt." The employer is merely ordered not to interfere, in tuturo, with the rights set forth in Section T. He never is, and could never constitutionally be, directed not to speak again or give his views concerning labor matters; he is merely told not to repeat the same sort of conduct. True, he could not claim immunity if he acted again to coerce his employees (as by discharging them improperly or threatening to do so) while simultaneously "exerting pressure vocally"; 31 but that is all. Certainly the mere delivery of another speech after compliance, answering union misrepresentations cr otherwise within the confines of the American Trube Bending 32 doctrine, would not be inhibited and could not lead to a contempt ci- tation. Indeed, I am aware of only two contempt cases 33 in the Board's entire history in which employer statements were deemed, on the entire record, to constitute interference or coercion in violation of a prior Court decree enforcing an 8 (1) order by the Board. While I agree 34 with Mr. Houston's appraisal of the significance ,of the time sequence in this particular case, I am not prepared to subscribe to all the language in his opinion which criticizes the re- spondent's oral conduct. By its breadth and vigor, that language seems to suggest a desire-which I do not share-to judge qualita- tively, and possibly sometimes to restrict, an employer's freedom to speak even in the absence of threats or of genuinely contemlbporane- sous acts of coercion. I believe that an employer may freely speak to his employees on any subject, including unionization, provided that the atmosphere at that moment is in fact such that his words are only words and that persuasion is their purpose and their effect. It mat- ters not that such words may sometimes accomplish an objective which is contrary to those of the National Labor Relations Act, for we, like the Congress, are bound by the premise of the First Amendment that "error of opinion may be tolerated where reason is left free to 'combat it." 35 It is gratifying that Mr. Houston thinks it unnecessary for proced- ural reasons, to pass upon the "compulsory audience" features of this case. Although I believe that the Clark Bros. case (70 N. L. R. B. .802) was correctly decided on the facts presented there, a proper respect for the character of the constitutional question involved should impel this Board to hesitate to extend the doctrine to other BI N J R di v Pao pima P.leetric 4f Power Co , supra. 32N L R B v American Tube Bending Company , 134 F ( 2d) 993 (C C. A 2), cert den'd 320 U S 708 13 Reliance Manufacturing Co v N L R B, 143 F (2d) 701 (C C A 7) , N L R B v. Amcilean Manufacturing Co. Inc., 132 F (2d) 740 (C C A 5). cert den ' d 219 U S 743 3-4 Assuming, only aquendo of course , the correctness of my colleagues ' joint finding that the discharges were uniaunful "Thomas Jefferson ' s First Inau ,uial Address See also the opinion of MIr. Justice Brandeis dissentin g, in Whitney v California, 274 U S 357, at '475, 1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD unfair labor practice cases at least until the Circuit Court has had an opportunity to pass upon that test case.36 INTERMEDIATE REPORT Mr Clarence A. Meter, for the Board Mr H. C. Cai twi ight, of Marshalltown, Iowa, for the Respondent Mr. Ei to B. Bjurntan, of Minneapolis, Minn, for the Union. STATEMENT OF THE CASE Upon an amended charge duly filed May 17 , 1946, by International Association of Machinists , District No. 118 , herein called the Union , the National Labor Relations Board, herein called the Board , by its Regional Director for the Eight- eenth Region ( Minneapolis , Minnesota ), issued its complaint , dated May 20, 1940 , against Fisher Governor Company , herein called the Respondent , alleging that the Respondent had engaged in and was engaging in unfair labor practices affecting commerce within the meaning of Section 8 ( 1) and (3) and Section 2 (6) and ( 7) of the National Labor Relations Act, 49 Stat 449, herein called the Act. Copies of the complaint with notice of hearing thereon were duly served upon the Respondent and the Union With respect to the unfair labor practices the complaint alleged in substance: (a) that from on and after March 1 , 1946, the Respondent disparaged and ex- pressed disapproval of the Union , advised and warned its employees to refrain from becoming members of the Union or to assist it, made disparaging remarks concerning the Union and its leaders, expressed antipathy toward outside repre- sentation of its employees , advised its employees that union representation was not necessary , and put into effect a pay raise at a time when the Union was seek- ing to oiganize the Respondent 's employees ; ( b) that on March 2, 1940, the Re, spondent discharged Leroy H. Schwechel and Howard Milburn' because of their membership in and activities on behalf of the Union and has at all times there, after retused to reinstate them ; ( c) that by the foregoing conduct the Respond- ent interfered with, restrained , and coerced its employees in the exercise of the rights guaranteed in Section 7 of the Act, and more particularly engaged in unfair labor practices within the meaning of Section 8 ( 1) and ( 3) of the Act. On May 27, 1946 , the Respondent filed an answer in which it admitted that it discharged Schwechel and Milburn but averred that the said discharges were for cause ; and further denied that it had engaged in any of the unfair labor practices alleged. Pursuant to notice , a hearing was held at Marshalltown , Iowa , on June 5, 6, and 7, 1946, before Louis Plost, the undersigned Trial Examiner , duly designated by the Chief Trial Examiner . The Board and the Respondent were represented by counsel and the Union by a representative . Full opportunity to be heard, to examine and cross -examine witnesses and to introduce evidence bearing upon the issues was afforded all parties . At the conclusion of the evidence counsel for the Board moved to conform the complaint to the evidence , with respect to minor matters such as names, dates and spelling . The motion was granted with- out objection A similar motion to conform the answer to the evidence was likewise granted by the undersigned without objection . An opportunity was "This view was expressed in a letter sent by the Chairman to both counsel in the Onondaga Potter case (3-C-728) on November 4. 194e. 'The complaint originally allcged that Milburn was discharged on March 1, but the complaint was amended at the heaiing, without Objection, to allege Milburn's discharge to have occurred on March 2, 1946 FISHER GOVERNOR COMPANY 1305 afforded all parties to argue orally on the record and to file briefs with the undersigned. No oral arguments were made Briefs have been received from counsel for the Board and from the Respondent Upon the entire record in the case and from his observation of the witnesses, the undersigned makes the following : FINDINGS OF FACT I. THE BUSINESS OF THE RESPONDENT 2 The Respondent, Fisher Governor Company, is an Iowa corporation, having its principal office and plant at Marshalltown, Iowa, where it is engaged in the manufacture, sale and distribution of automatic regulating devices for air, gas, steam, oil and other fluids. During the calendar year 1945, the Respondent purchased raw materials in an amount in excess of $2,000,000, of which 70% represented shipments to its Marshalltown plant from points outside the State of Iowa. During the same period the Respondent made sales of its finished products in an amount in excess of x;4,000,000, of which 95% represented ship- ments from its Marshalltown plant to points outside the State of Iowa. II. THE ORGANIZATION INVOLVED International Associat;on of Machinists, District No. 118, is a labor organiza- tion admitting employees of the Respondent to membership. III THE UNFAIR LABOR PRACTICES A The dtscriminatory discharges of Leroy H. Schwechel and Howard Milburn Leroy H. Schwechel was continuously employed by the Respondent for a pe- riod of 12 years, from March 25, 1934 to March 2, 1946, the day he was discharged. Since 1937 he operated various types of turret lathes. Schwechel stood fifth in line of seniority in his department and at the time of his discharge was paid $1.00 per hour, which was the highest rate of pay in his department. He joined the Union on September 28, 1945, and became very active in its behalf, attending 90 percent of its meetings, which were first held monthly, then semi-monthly and, after January 1, weekly. He distributed union application cards and discussed union matters with fellow employees. Schwechel testified that from January 1946, until his discharge he noticeably increased his union activities in the plant for the reason that during this period those organizing the Union believed they could obtain sufficient adherents to enable their filing a petition for determina- tion of representatives with the Board. Schwechel testified that on March 1, while he was at work he observed William Olman, who is employed in the Re- spondent's assembly department, engaged in conversation with Elmer Hoadley, a boring machine operator, whose place of work was about 25 feet distant from Schwechel's machine, Schwechel then left his machine, went over to Hoadley's machine and said to Orman, "before you go back, Bill, come up to my machine. I want to speak to you." He thereupon returned to his machine, which he had left running as its operation did not require constant attention. Approximately 5 minutes later Orman came over to Schwechel who then asked Olman to join the Union. Olman declined and promptly left. Schwechel testified that he spent about 1/2 minute at Hoadley's place of work and about j4 minute in conversation with Orman at his own machine. 'The Board has taken jurisdiction of the Respondent-See Fisher Governor Company and International Association of Machinists, A F. of L, Case No 18-C-971, consent decree-141 F (2d) (C C A 8) 497 1306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Olman corroborated Schwechel and testified that on March 1, while he was on his lunch period talking to Hoadley , who was regularly at work, Schwechel came over and asked Olman to stop at Schwechel 's machine before leaving the depart- ment and that his entird conversations with Schwechel lasted "a minute or two." On the following day (March 2) Schwechel , having first obtained permission, left the plant on personal business . Upon his return , he found that his time card had been removed from the rack and reported at once to the personnel office, where lie asked Gilbert Chinn, the assistant personnel director , why the card had been removed. Chinn replied that he did not know and asked D C. Elder, the Respondent 's personnel director , if he knew the reason . According to Schwechel, Elder then said to him, "Here 's your time," and told Schwechel that he had been "soliciting" and that the Respondent "would not stand for that" When Schwechel asked for an explanation , Elder stated that Schwechel had solicited during work- ing hours, between 12 :30 and 12 :40 the previous day. Elder gave Schwechel his pay check , and the interview ended by Schwechel 's requesting "a letter of intro- duction," which Elder promised to send him . Schwechel left the office and later the plant in the company of Howard Milburn, who also was discharged at the same time and who had been present during the colloquy in the personnel office. Later in the day Schwechel and Milburn called at the office of Jasper William Fisher, the Respondent 's executive vice president . According to the uncontro- verted testimony of Schwechel , in the colloquy that ensued Fisher said , inter alia, "Don't you know what soliciting means? It can mean one of several things. It can mean getting members for the Odd Fellows , the Eagles , the Union, or the Masons." Schwechel further testified , without contradiction , that during the course of the interview both Fisher and Elder, who had been called in by Fisher, stated to Schwechel and Milburn that their work and production were "all right but that they were being discharged as examples to show that they [the Respond- ent] would fire good men as well as bad ." Schwechel , however, had never been warned that soliciting members for the Union was against the Respondent's rules, and neither Fisher nor Elder asked for his version of the "soliciting" which occasioned his discharge. Before he left Fisher's office, Schwechel asked for a letter He later received the two letters he had requested . The letters read as follows FISHER GOVERNOR COMPANY, Marshaltown , Iowa, U. S A , Mai ch 5,1916. To whom it may concern: This will introduce you to Le Roy Schwechel who worked for us from May 25, 1934 to March 2, 1946. We have a high regard for his honesty and integrity and will appreciate anything you can do for him. Very truly yours, FISHER GOVERNOR CO. (Signed) J. W. FISHIea, Executive Vice-President. JWF: MW FISHER GOVERNOR COMPANY, Marshalltown , Iowa, U. S. A. March 4, 1946. To whom it may concern: LeRoy Schwechel worked for us from May 25, 1934 to March 2, 1946, for approximately the past eight or nine years as a turret lathe operator and before that as wash tank operator and shop trucker. FISHER GOVERNOR COMPANY 1307 His work has been satisfactory and we have the highest regard for his honesty and integrity. Sincerely yours, FISHER GOVERNOR CO. (Signed ) D. C. ELDER, Secretary-Pers. Dir. DCE : pa Elder testified that he accepted the responsibility for Schwechel's discharge ; that he had been informed that Schwechel had on March 1 asked Olman to join the Union, both by a report of the incident made by Olman to Fisher in Elder's presence on the day of the discharge, and by a report to him on March 1 from another employee. He testified that this report was the first knowledge he had of any union solicitation by Schwechel, and that at the time he discharged Schwechel, he informed him that the discharge was for violating the Respond- ent's rule against solicitation and offered to show him the posted rule Elder also testified, as did Karl Bierman, the Respondent's factory superintendent, that Schwechel was frequently away from his machine, had been told on numer- ous occasions to stay at his place of work, and was neither a skilled nor efficient workman. However, Elder testified that the primary reason for Schwechel's discharge was his violating the Respondent's rule against solicitation by asking Olman to join the Union. IZolwaidl Milburn was employed by the Respondent from March 1, 1941. until Maicli 2, 1246 At the time of his discharge lie was a niachnie operator being 1,-aid 95 cents per hour, the highest rate paid bd the Respondent for the class of work Milburn periornned. Milburn's department contained but 6 or 7 employees holding greater seniority than his Milburn joined the Union on the same night as Schwechel (September 28, 1945) ; lie became very active in behalt of the Union, being recognized as one of its chief exponents in the plant Milburn testified that after of Bating with the Union he attended all but 2 or 3 union meetings, distributed union application cards, and discussed the Union with fellow employees, and that his union activities increased shortly before his dis- charge for the reason that the Union then thought it had secured almost sufli- cient adherents to enable its petitioning the Boaid for an election to determine its status Edna Presnall, employed by the Respondent as a drill press operator, testified that on February 28, at approximately 4 p in , at the beginning of her shift bu: before she started her machine, Milburn stopped at her place of work and asked her to join the Union, at the same time handing her an application card. Pres- nall estimated the time consumed by this incident to be "two or three minutes, or a minute or so ; something like that " About 10 minutes later, Milburn again stopped at Presnall's machine and asked if she had filled out the card Presnall replied she had not as "there was too many watching . . " Milburn then of- fered to fill out the card for her, but she refused and he took the card and left. Presnall estimated that. "about a minute" was consumed on this latter occasion. Milburn corroborated Presnall and testified that the incident above related occurred while he was off shift And on his way from the plant; that he customarily passed Presnall's machine on his way out, and that on this occasion, after having first talked to Presnall. he returned to his tool box for a forgotten article and in doing so passed her machine a second time. Presnall testified, without contradiction, that on the day following the above related incident (March), Foreman Mike Buchanan called her from her work and told her that he had been called to the office on a report that she had dis- 1308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD tributed union cards Presnall denied distributing cards and refused to tell Buchanan who was doing so. The following morning at about 9:30 a. in, Superintendent Bierman phoned Presnall at her home and asked her to come to his office . She reported to Bierman at about 10 : 00 a in and was taken to Fisher ' s office for an interview which lasted for more than i// hour . During the interview at which Fisher , Elder , and Bierman were present, she was told that the Respondent 's rules prohibited solicitation for the Union and was questioned as to whether or not Milburn had asked her to join the Union on February 28. Milburn testified that on March 2, shortly after beginning work , he was called to Elder ' s office where lie witnessed Schweehel ' s discharge . He testified that he went up to Elder and "lie [Elder] said "We're going to have to let you go " He said, "We're through with you " I said , "Well that's funny. What ' s wrong?" And he said , "Well we just don ' t need you any longer " And I said, "Well it looks to me like I deserve an explanation ." And he says "You have been .doing too much visiting ," and he said , "I don't think I have to explain ." And he handed me my check. Milburn, according to his testimony , was also told by Elder that nothing was wrong with his work or production . After his discharge Milburn returned to his machine , informed his foreman , Campbell, of the discharge , and asked him if anything was wrong with his work or production . The foreman replied, "Absolutely not" and added, "You're tops " As previously found herein, Milburn together with Schwechel called on Vice-President Fisher later in the day and during the course of the ensuing interview were told , according to Milburn, that both men were being used as examples to "show as that they could fire their good help as well as their poor. " He also testified that lie had never been told not to solicit union membership in the plant, and that he was not asked for his version of the Presnall incident. Elder testified that he was present when Presnall was interviewed in Fisher's office , that the subject of the interview was Milburn 's union activity in the plant, that the primary reason for Milburn 's discharge was his solicitation of Presnall's membership for the Union on February 28, and that when Milburn was discharged he (Elder) told him that the discharge was for "solicitation." Elder testified that he told Milburn "I had talked to one person he had solicited , and he had violated the rules, and I mentioned the notice that had been posted." Elder further testified that Milburn was away from his machine more than other employees. Superintendent Bierman testified that Milburn often left his machine; that he had talked to him about such absences early in 1945 , again in March 1945, and again shortly before his discharge ; 3 and that Milburn was a "below average" workman, whom he had decided early in 1945 to replace as soon as better men were available Bierman testified that at the time Presnall informed the Re- spondent of Milburn 's request that she join the Union , Bierman definitely de- cided to discharge him. The rules against "visiting" and soliciting money in the plant The Respondent has an established rule prohibiting its employees from leav- ing their machines to engage in visiting or conversation with one another. This a There is evidence in the record that the absence which prompted a ieprimnr. ; tby Bier- nian shoitly before Milburn's discharge was caused by a conversation between Milburn and another employee iegaiding an automobile inishap and that Milburn was advised to see the employee by the respondent' s assistant personnel director. FISHER GOVERNOR COMPANY 1309 rule has never been reduced to writing and posted in the plant ; however, some time in February, 1945, Vice-President Fisher, in a speech to the employees an- nouncing the prohibition of smoking, made reference to the fact "that there had been too much visiting going on in the plant ; that there would have to be considerably less of it " Elder testified that there was no rule prohibiting a "normal" amount of visiting and Superintendent Bierman testified that there was no rule against visiting. His testimony in this regard is as follows : Q. No rule against visiting or going around? A. Not if they didn't over-do it. If a man wanted to go over and visit with another one I'll let hiin do it if he didn't over-do it as much as five per cent, as much as five, ten or fifteen minutes. Q. What did I understand you to say? A. Three or four minutes, as long as he was reasonable about it. The Respondent also has a rule prohibiting solicitation of money by em- ployees within the plant. This rule was oiiginally promulgated in December 1941, at which time a collection being solicited for Christmas presents was for- bidden and the money collected ordered returned to the donors Elder testified that the reason the rule was put into effect was to stop the collection of money for presents, flowers and like things The rule was printed in the February 1945 issue of the Respondent's house organ, The Governor'", and reads: Naw POLICY ESTABLISHED ON PLANT COLLECTIONS Recently posted on the bulletin boards in the factory and office is a notice setting foith the new policy governing the matter of collections of money for this or that purpose. It is reprinted here for your guidance. To All Employees- An occasional collection of money in a department or plant-wide is often a real gesture of sympathy and good intent. However, continuous solicita- tion, friendly as it may be, has created too many enibarrasing situations among our employees. It is henceforth the policy of this company that no funds for reasons or groups other than recognized charities shall be collected or solicited within the plant. Permission to solicit for public charities such as Red Cross or Community Chest may be granted to the extent of distributing pledge cards. FISHER GOVERNOR Co. However , collections for the Community Chest were permitted and encouraged and, on one occasion a vice president of the Respondent addressed the employees urging contribution to the Chest . Likewise , collections of dues and fees for a bowling league of employees was permitted The record shows that the rule prohibiting "visiting" was not enforced. Fol- lowing the end of the War in August 1 945, a general let-down of effoit became apparent , which, coupled with absenteeism and an increase in the practice of leaving their machines by employees , resulted in a noticeable loss of production from September 1945, until March 1 946 Elder testified that this slack effort on the part of employees was general in all Marshalltown plants at the time. The Respondent made an effort to correct the condition by personal talks with offenders and by instructing its foremen to be " less tolerant " The record con- tains considerable evidence that the Respondent knew of a number of employees who had left their machines to engage in conversation Some of these em- ployees were warned , but only one employee , other than Schwechel and Milburn, 1310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD was discharged for violation of rules. This employee was a returned veteran, who was discharged on or about February 11, 1946. Plant Superintendent Bier- man testified that this employee was discharged for leaving his machine to solicit membership in the American Legion. However, Elder contradicted Bier- man and testified that the real reason for the discharge was not the soliciting of members for the American Legion, though the employee had been warned not to do so, but because he left his machine Elder further testified that this em- ployee was "one of our biggest problems," both before and after his army serv- ice; that he (Elder) talked to him about his derelictions "on an average of once a month," and that "I talked to him more before he went into the service than since he came back." Also prior to his discharge, Elder sent the offending em- ployee ai. warning letter. Elder further testified that after the above-related discharge production increased and that all the men were staying at their ma- chines, "Just because Jimmy. I the dischargee j served as an example to them." Osman, who was involved in the incident which served as the primary cause of Schwechel's discharge testified that he (Osman) habitually visited various employees, who were at work, dining his lunch periods The record is clear that although the Respondent had a rule which prohibited employees from leaving their machines, this rule did not prohibit what the Re- spondent characterized as "reasonable" visiting It is clear that the rule against soliciting of money in the plant was established for the sole purpose of prevent- ing employees from collecting funds for various presents The Respondent contends that it had it rule which in effect prohibited solicita- tion of union membership by its employees within the plant and that it posted the rule by notice This notice hosted under date of January 14. 1036. reads as follows : FISHER GOVERNOR Co1IP_dar. tat shalltown , Iowa, U S A , Jairnai y 11, 916 Fellow Employees: It is Community War Chest time again We are all invited to participate in the current campaign which has opened today The Red Cross drive will come nn March. Your management believes both these national charitable institutions are won thy of our wholehearted support and you will all have the opportunity of contributing to them in our usual way-through the Personnel Depart- ment. It is entirely up to each individual how much should be given Marshalltown is expected to raise $45,30000 as its share of Marshall County's quota This is the same figure we met last year. There are seven local agencies and eighteen War Chest agencies to be supported Your attention is again called to the rule that no other solicitations are sanctioned or permitted in the shop and violations are subject to discharge. Sincerely yours. J W FISHER jwf: c The Respondent argues that the concluding paragraph is a clear prohibition of solicitation of union membership in its plant It should be noted that the notice relates to the Community War Chest and the Red Cross and urges contributions by employees to these causes, and that the original rule as printed in February 1945 had read It is henceforth the policy of this company that no funds for reasons or groups other than recognized charities shall be collected of solicited within the plant' 4 Italics supplied FISHER GOVERNOR COMPANY 1311 No rule against solicitation of anything other than money had ever been announced or enforced by the Respondent and the notice of January 14, 1946, could only be read by the Respondent's employees in the light of the notice of February 1945, as a temporary lifting of the prohibition against soliciting money. To interpret it as applying to solicitation for union membership would be stretching it beyond any meaning which could reasonably be read into it by any of its employees. In the ligl)t of all the evidence in the record, the undersigned concludes and finds that no rule against soliciting of union membership in the Respondent's plant existed. Concluding findings on the discriminatory discharges of Schwechel and Milburn The Respondent contends that Sch«echel and Milbui n were discharged for violating a rule prohibiting employees fiom soliciting union membership in the plant and did not deny that the men were being discharged as "examples." The undersigned has found that no rule prohibiting soliciting union members existed. The Respondent sought to show and argues in its brief that Schwechel and Milbuin were flagrant violators of an established rule prohibiting employees from leaving their machines to "visit" fellow employees at work It is clear that such a rule existed but it is equally clear that "visiting" was permitted. Although the Respondent was aware of other employees who violated the rule, apparently only one employee was ever discharged under it. This employee was the most persistent olfendei, had been warned and admonished at least once each month by the personnel director and was discharged only after he had been sent a letter of wan Wing. The disparity of treatment shown by the Respondent to violators of its rule against leaving their machine is highly significant to the undersigned The Respondent further contends that neither Schwechel nor Milburn were efficient workmen, yet Schwechel remained in the Respondent's employ for 12 consecutive years and Milburn for 5 years Both men earned the highest wage rate paid by the Respondent for the work they performed. H. R Ponder, the Respondent's treasurer, testified that the Respondent graded its employees on ability as "A", "B", or °C" and that those graded `A" drew the highest pay The Respondent's attitude toward the attempt at self-organization by its employees was succinctly stated by Personnel Director Elder in his testimony Q When did you first learn about it? [Milburn's Union membership ] A I didn't know about it until this incident [the Presnall incident] came up Q You knew about it, however, before he was discharged? A Yes sir, just before his discharge. Q. And you knew lie was an active member, active on behalf of the Union in the plant before that, didn't you? A No, I didn't. I had heard that about a great many fellows, and I discounted a great lot of it because it is a wonderful way to crucify anybody. The undersigned finds that the Respondent discharged Leroy 1-1 Schwechel and Howard Milburn, on March 2, 1946, because of their membership in and activities on behalf of the Union, and by such discharges had discriminated in regard to their hire and tenure of employment and has discouraged membership in a labor organization and thereby i nteifered with, restrained and coerced its employees in rights guaranteed in Section 7 of the Act. 717734-47-vol 71-84 1312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Intel ference, restraint, and coercion Vice-President Fisher's speech and the pay raise granted March 13, 1946 On March 12, 1946, Jasper William Fisher, the Respondent's executive vice president, addressed the employees. Notices announcing the speech were posted the preceding day and foremen also told employees to attend. Fisher's speech was delivered over a public address system, temporarily installed for the -occasion, to between 700 and 750 employees who were assembled in the plant .between shifts at 4 p in. and who were paid for the time consumed In the opening paragraph of his speech Fisher stated: Iii this assembly today I want to discuss mainly our management and labor relations, including our company policies, our wage structure and the unions He continued: I have been fully aware that outside influences are working in our plant . . . I do, however, feel that the time has arrived for me to give you my views on unionism. Fisher then told his auditors that they did not need an "outsider" to represent them ; that they had obtained "what you have today without a union " He spoke of ser%ices performed by the Respondent for its employees, stressed the fact that the Respondent loaned money to its employees and gave them hospitalization and other benefits, referred to its high wage late, and stated that the Union would tike $20.000 annually in dues He asked his audience, "Is this worth the money?" Fisher followed the question with the statement. It is your privilege to listen to a Union salesman and to join a Union but I am sorry that any of you have had the idea that it is necessary to bring in the Union, an absolute stranger, at the expense of some $20,000 a year, for the purpose of dealing with youi management. Fisher followed this statement with one depiecating the Union's alleged claim that it could obtain better seniority and job security. He then announced a wage increase, which consisted of a raise in the hourly rate structure and the inclu- sion of a preN iously paid annual bonus as a permanent part of the wage structure, by weekly payments. After explaining the pay raise Fisher told employees' By the way, I know of no union which has clone as well for its members as we have been able to do here without a Union and a great many of the Union's increases have come about only at the expense, through strikes, of each of their members. Early in his speech Fisher pointed out to employees: We have been accused of being paternalistic-that we pose in a fatherly attitude toward our employees. Well the accusation is acceptable and I am proud of it. Fisher's speech, together with a chart showing the wage increase, was published in the Respondent's house organ, "The Governor" for March, 1946, which was distributed to the employees. Fisher testified that at the time he delivered the above-mentioned speech he was aware of the fact that the Union was attempting to organize the Respondent's employees and further that the Union had been engaged in such an attempt for "sonic years" He testified that he began making speeches to employees in October, 1944, that he delivered 2 speeches to employees in 1944 and 6 in 1945, FISHER GOVERNOR COMPANY 1313 and that an address urging contributions to the Community Chest was made in 1945, by another of the Respondent's officials. Fisher testified that in 1946 he delivered the March 12 speech and one subsequent address. He testified that in only one of his speeches was any mention made of employees leaving their machines This was in a speech relating to a new rule prohibiting smoking, de- livered in February 1945, in which Fisher also told the employees that there was "too much visiting going on in the plant, and there would have to be considerably less of it and that people would have to be at their machines " Fisher testified that in no speech was any mention made of "soliciting" and that a union was mentioned only in his March 12 speech, except that he made "a slight reference to the Union" in the speech made subsequent to March 12. Concluding findings on Fisher 's speech and the pay raise Standing alone, Fisher's March 12 speech is susceptible of such interpreta- tion as would place it within the protected area of flee expression ; however, when considered in the setting of the Respondent's previous conduct and in the light of all the evidence in the case, it becomes clear that Vice-President Fisher's speech is not the proper exercise of a constitutional right but falls into the realm of restraint, intimidation, and coercion prohibited by the Act As found herein the Respondent on March 2, 1946, discharged Leroy 1I Schwechel and Howard Milburn because of their activities on behalf of the Union These employees were admittedly discharged for soliciting union men]- hers, in violation of an alleged rule prohibiting such solicitation in the plant It has been found that this rule was wholly non-existent. The Respondent did not deny, and the undersigned finds, that the dischargees were told by the Respondent that they were being used as "examples" to show that "good em- ployees as well as bad would be discharged," for soliciting union membership. Having made an example of 2 employees, one of whom had been in its employ for 12 years, the other for 5 years, both of them drawing "top" pay, the undersigned is convinced, on the entire record, that 10 days following these discharges, the Respondent emphasized the discriminatory nature of the example The medium used was Vice-President Fisher's speech. Significantly, although Fisher had made several speeches to the employees, this was the first speech in which he made any reference to a union. The Respondent by interpretation had attempted to extend an old rule, retroactively applied. It had applied its purported rule on March 2; now 10 days later in Fisher's references to the Union, and his deprecation of its arms, purposes, and cost to- employees, the Respondent clearly informed its employees that union activity had resulted in discharges Fisher clearly informed an audience to whom he first recalled its economic dependence on the Respondent, that the Respondent did not desire the unioniza- tion of its employees. Realistically his auditors recalling the discharges of Schwechel and Milburn must now have understood that drastic action would follow any attempt at self-organization. The language of Fisher's speech is clear; in the light of the discharges the natural effect of the speech on the Respondent's employees is equally clear. The speech cannot be considered except in the light of the previous unfair labor practices. The undersigned is convinced that Fisher's speech intimidated, coerced, and restrained, the Respondent's employees and discouraged their self- organization. Likewise, a wage increase and the arrangement of an annual gratuity into a regular wage payment to the advantage of employees would not seem on its face to depiive the beneficiaries of any right Yet again, when the pay raise, an- 1314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD nounced in Fisher 's speech and put into effect the following day, is considered in the light of the entire record , it becomes clear that the Respondent 's intent was to persuade its employees that benefits voluntarily granted by the Respond- ent's out-weighed any benefit that might be derived from the Union . Although the mateiial effect of the pay raise was of considerable advantage to the em- ployees, the giantin g of the pay raise was clearly an attempt by the Respondent to destroy any desire for self -organization which existed among its employees. The undeini fined finds that by the speech made by Vice -President Fisher, on March 12 , 1946 , and by the announcement of the pay raise made in the aforesaid speech and by the granting of such pay raise on March 13 , 1946, the Respondent has interfeied with , restrained , and coerced its employees in the exercise of rights guaranteed in Section 7 of the Act. IV. THE EEFFCT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in Section III. above , occurring in connection with the operations described in Section I, above, have a close, intimate, and substantial relation to trade, traffic , and commerce ainong the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. THE REMEDY Since it has been found that Respondent has engag ,d in certain unfali labor practices it will be recommended that they cease and desist theiefroin , and take certain affirmative action designed to eff_etuate the policies of the Act As clearly reflected by the entire record in the case the Respondent's illegal conduct discloses a purpose of defeating self -organization and its objects to its employees On March 2, 1946, the Respondent discharged 2 employees because of their activities on behalf of the Union , on March 12, the Respondent. through the medium of a speech by its executive vice president appi ised its employees of its opposition toward their efforts to folio a union and by inference warned them that an example in the form of discharges for engaging in union activity had already been made; it disparaged the Union's aims and it sought to destroy its effectiveness by granting a wage increase at the Very time the Union seemed to have reached its goal after several years of effort Inasmuch as a discriminatory dischiirge "goes to the very heart of the Act"' the undersigned is convinced that the Respondent's unlawful conduct as found hcreln, together with its underlying,purpose to defeat its employees' self-organi- zation. are pei suasively related to the other unfair ]abor practices hereinafter prescribed and that danger of their commission in the future is to be anticipated from the Respondent ' s illegal conduct in the past 6 Unless the order is coexten- sive with the threat the preventive purpose of the Act will be thwarted In order, therefore, to make more effective the interdependent guarantees of Sec- tion 7, to prevent a recurrence of unfair l abor practices . and thereby minimize industrial strife which burdens and obstructs commerce , and thus effectuate the policies of the Act, the undersigned will recommend that the Respondent cease and desist from in any manner infringing upon the rights guaranteed in Section 7 of the Act Since it has been found that the Respondent discriminated in regard to the hire and tenure of Letoy H Schewechel and Howard Milburn. thereby discourag- ing membership in the Union , the undersigned will recommend that the Respond- 5 See N L R B V Entwistle Mannfactnnnq Company, 120 F ( 2(l) 582 , 536 (C C A. 4) ; N L R B v Automotive Maintenance Machinery Company , 116 F ^ See N L R B i Ejpress Publishing Company, 312 ' U S. 426 ( 2d) 350 (C C A 7). FISHER GOVERNOR COMPANY 1315 ent offers each of them immediate and full reinstatement to their former po- sitions without prejudice to their seniority or other rights and privileges and make them whole for any loss of pay they may have suffered by reason of the discrimination practiced against them by payment to each of them of a sum of money equal to the amount lie would have normally earned as wages from March 2, 1946, the date of his discriminatory discharge, to the date of the Respondent's offer of reemployment to him, less net earnings' during said period. Upon the basis of the above findings of fact and upon the entire record in the case, the undersigned makes the following: CONCLUSIONS OF LAw 1 International Association of Machinists, District No 118, is a labor or- ganization within the meaning of Section 2 (o) of the Act 2. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is engaging in unfair labor practices. within the meaning of Section 8 (1) of the Act 3 By discriminating in regard to the lure and tenure of employment of Leroy H. Schwechel and Howard Milburn, thereby discouraging membership in Inter- national Association of Machinists, District No. 118, the respondent has engaged in, and is engaging in unfair labor practices within the meaning of Section 8 (3) of the Act. 4 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 Upon the basis of the above findings of fact and conclusions of law, the under- signed recommends that the Respondent, Fisher Governor Company, Marshall- town, Iowa, and its officers, agents, successors, and assigns shall 1. Cease and desist from : (a) Discouraging membership in International Association of Machinists, Dis- trict No 11S, or any other labor organization of its employees, by discharging or refusing to reinstate any of its employees, or in any other manner discriminat- ing in regard to their hire and tenure of employment, or any term or condition of their employment ; (b) In any other manner interfeiing with, restraining, or coercing its em- ployees in the exercise of the right to self-organization, to join or assist Inter- national-Association of Machinists, District No. 118, or any other labor organiza- tion, 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 as guaranteed in Section 7 of the Act. 2 Take the following affirmative action which the undersigned finds will effectuate the policies of the Act. (a) Offer to Leroy H. 'Schwechel and Howard Milburn immediate and full reinstatement to their former or substantially equivalent positions without prej- udice to their seniority and other rights and privileges ; 7By "net earnings" is meant earnings less expenses, such as for ti ansportation, room, and board, incurred by an employee in connection with obtaining woik and working else- wheio than for the respondent, which would not have been incurred but foi his unlawful discharge and the consequent necessity of his seeking employment elsewhere See Matter of Crossett Liinnber Company, 8 N L It B 440 Monies icceived for wok performed upon Federal, State, county, municipal, or other work-relief projects shall be considered as earn- ings See Republic Steel Coipoiotion v P L R B, 311 U S 7 1316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (b) Make whole Leroy H. Schwechel and Howard Milburn for any loss of pay them may have suffered by reason of the Respondent's discrimination against them by payment to each of them of a sum of money equal to the amount he would normally have earned as wages from the date of his discharge, to the date of the Respondent's offer of reinstatement , less his net earnings,' during said period ; (c) Post at its plant at Marshalltown, Iowa, copies of the notice attached here- to, marked "Appendix A." Copies of said notice, to be furnished by the Regional Director of the Eighteenth Region, shall, after being duly signed by the Respond- ent's representative, be posted by the Respondent immediately upon receipt thereof and maintained by it for sixty (60) consecutive clays thereafter in con- spicuous places. including all places where notices to employees are customarily posted. Reasonable steps should be taken by the Respondent- to insure that said notices are not altered, defaced, or covered by any other material; (d) Notify the Regional Director for the Eighteenth Region in writing within ten (10) days from the date of the receipt of this Intermediate Report, what steps the Respondent has taken to comply herewith. It is further recommended that unless on or before ten (10) days from the receipt of this Intermediate Report, the Respondent notifies said Regional Direc- tor in writing that it will comply with the foregoing recommendations, the Na- tional Labor Relations Board issue an order requiring the Respndent to take the action aforesaid. As provided in Section 33 of Article II of the Rules and Regulations of the National Labor Relations Board, Series 3, as amended , effective November 27, 1945, any party or counsel for the Board may, within fifteen (15) days from the date of the entry of the order transferring the case to the Board, pursuant to Section 32 of Article II of said Rules and Regulations, file with the Board, Ro- chambeau Building, Washington 25, D. C., an original and four copies of a state- ment in writing, setting forth such exceptions to the Intermediate Report or to any other part of the record or proceeding (including rulings upon all motions or objections) as he relies upon, together with the original and four copies of a brief in support thereof. Immediately upon the filing of such statement of excep- tions and/or brief, the party or counsel for the Board filing the same shall serve a copy thereof upon each of the other parties and shall file a copy with the Re- gional Director. As further provided in said Section 33, should any party desire permission to argue orally before the Board, request therefor must be made in' writing to the Board within ten (10) days from the date of the order transferring the case to the Board Any party desiring to submit a brief in support of the Intermediate Report shall do so within fifteen (15) days from the date of the order transferring the case to the Board, by filing with the Board an original and four copies thereof, and by immediately serving a copy thereof upon each of the other parties and the Regional Director. Louis PLOST, Dated July 18. 1946. Trial Examiner. APPENDIX A NOTiei: TO ALL EMPLOYEES Pursuant to the recommendations of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, we hereby notify our employees that: 'See footnote 7, supra FISHER GOVERNOR COMPANY 1317' We will not in any manner interfere with, restrain, or coerce our employees in the exercise of their right to self =organization , to form labor organiza- tions, to join or assist International Association of Machinists ; District No.. 118, or any other labor organization , to bargain collectively through represent- atives of their own choosing , and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection. We will offer to the employees named below immediate and full reinstate- ment to their former or substantially equivalent positions without prejudice- to any seniority or other rights and privileges previously enjoyed, and make- them whole for any loss of pay suffered as a result of the discrimination. Leroy H. Schwechel Howard Milburn All our employees are free to become or remain members of the above-named- union or any other labor organization. We will not discriminate in regard to hire or tenure of employment or any term or condition of employment against any- employee because of membership in or activity on behalf of any such labor- organization. FISHER GOVERNOR 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