Hobart Brothers Co.

National Labor Relations Board - Board Decisions

Jan 13, 1965

150 N.L.R.B. 956 (N.L.R.B. 1965)

956 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Notify the Regional Director for Region 14, in writing, within 20 days from
the date of this Recommended Order; what steps the Respondent has taken to
comply herewith.13 -
It is also recommended that complaint paragraph V, subsections B, C, D, E, and
F, be dismissed. - -
18In the event that this Recommended Order be adopted by the Board, this -provision
shall be modified to read: "Notify said Regional Director, in writing , within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Recommended Order of a Trial Examiner of the National • Labor
Relations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that: • '
WE WILL NOT threaten employees with reprisals because they sign union author-
ization cards nor will we in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organization , to form
labor organizations , to join or assist Chauffeurs and Helpers Local Union N6. , 50,
affiliated with International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization , to bargain col-
lectively 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 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, as modified by the Labor-Management Reporting and Disclosure Act
of 1959. -
SPARTON MANUFACTURING COMPANY,
Employer.
Dated------------------- By --------------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive, days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1520
Market Street , 4459 Federal Building , St. Louis, Missouri , Telephone- No. Main
1-8100 , Extension 4142, if they have any questions concerning this notice or com-
pliance with its provisions.
Hobart Brothers Company and International Union , United
Automobile , * Aerospace and Agricultural Implement Workers
of America , AFL-CIO. Case No. 8-CA-3389. January 13, 1965
DECISION AND ORDER
On September 1, 1964, Trial Examiner Jerry B. Stone issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. He, also
found 'that the Respondent had not- engaged in certain' other'unfair
labor practices alleged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respondent filed its ac-
quiescence in and specific exception to the Trial Examiner's Decision,
and a brief in support thereof.
150 NLRB No. 93. -
HOBART BROTHERS COMPANY 957
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Brown].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
entire record in this case, including the Trial Examiner's Decision
and the Respondent's exception and brief, and hereby adopts the
Trial Examiner's findings," conclusions, and recommendations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the Board adopts, as its Order, the Recommended Order
of the Trial Examiner and orders that the Respondent, Hobart
Brothers Company, Troy, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's Rec-
ommended Order. The Board further orders that the complaint be
dismissed to the extent recommended by the Trial Examiner.
i In the absence of exceptions to the Trial Examiner's findings that the Respondent
did not violate Section 8 (a)(1) of the Act by promising and granting increased vacation
benefits or unlawfully interrogating its employees, as alleged In the complaint , we adopt
such findings pro forma
TRIAL EXAMINER'S DECISION -
STATEMENT OF THE CASE
Upon a charge filed on January 20, 1964, by International Union, United Automo-
bile, Aerospace and Agricultural Implement Workers of America, AFL-CIO, herein
sometimes called the Union or Charging Party, the General Counsel of the National
Labor Relations Board, by the Regional Director for Region 8 (Cleveland, Ohio),
issued his complaint dated March 3, 1964, against Hobart Brothers Company, herein
sometimes called the Respondent or Employer. In substance , the complaint, as
amended at the hearing , alleged that Respondent had engaged in and was engaging in
conduct proscribed by Section 8(a)(1) of the National Labor Relations Act, herein
called the Act, and that such conduct affected and was affecting commerce as set forth
in Section 2(6) and (7) of the Act. Respondent' s answer admits many of the facts
pleaded in the complaint but denies the commission of any unfair labor practices.
Pursuant to appropriate notice, a hearing was held before Trial Examiner Jerry B.
Stone at Troy, Ohio, on March 24, 1964. All parties were represented at and partici-
pated in the hearing and were afforded the right to present evidence , to examine and
cross-examine witnesses , to offer oral arguments , and to file briefs . Respondent's
brief has been received and considered.
Upon the entire record in this cases, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT I
I. THE BUSINESS OF THE EMPLOYER
Hobart Brothers Company is now, and has been at all times material herein, a
corporation organized under and existing by virtue of the laws of the State of Ohio,
with its office and principal place of business located in Troy, Ohio. Hobart Brothers
Company is engaged in the manufacture , sale, and distribution of arc-welding equip-
ment and related products . Hobart Brothers Company, in the course and conduct of
i The findings of fact relating to the business of the Employer and to the labor organiza-
tion involved are based upon the pleadings.
958 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its business, annually ships finished products valued in excess of $50,000 directly to
points located outside the State of Ohio. It is found, as admitted by Respondent,
that Hobart Brothers Company is now, and has been at all times material herein, an
employer engaged in commerce within the meaning of Section 2 (6) -and (7) of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union, United Automobile, Aerospace and Agricultural Implement
Workers of America, AFL-CIO, is now, and has been at all times material herein, a
labor organization within the meaning of Section 2(5) of the.Act.
111. THE UNFAIR LABOR PRACTICES
A. Introduction
The issues involved in this proceeding are: (1) the alleged supervisory status of
Jack Young, (2) whether Young, if a supervisor, engaged in illegal interrogation and
threats within the meaning of Section 8(a) (1) of the Act, (3) whether Respondent by
its letter of January 3, 1964, made promises of benefits and also made threats to its
employees, violative of Section 8(a)(1) of the Act, and (4) whether Respondent on
January 6, 1964, and thereafter, increased vacation benefits of its employees in viola-
tion of Section 8 (a)( I) of the Act?
B. The alleged supervisory status of Jack Young 3
General Counsel witness Williams testified on direct examination to the effect that:
he was a machine operator; he had been employed by Respondent for 13 years; he
worked on the first shift; he reported to and received orders from Jack Young; Young
worked in the automatic wire department; approximately 30 employees worked in the
automatic wire department; he did not know for certain Young's job title, but the
title he knew Young by was "supervisor"; Young was in charge of keeping material
for the machines and inspecting wires; he contacted Young if he had difficulty with
his machine and Young would fix or attempt to fix the machine or (if he could not)
call a maintenance man; if work ran out on his machine he would contact Young and
Young would try to find something else for him to do such as cleaning up or helping
someone else; Young informed him as to the product to be run on his machine; he
did not know who was responsible for discipline in the department where he worked;
Young was responsible for seeing that the employees in the department remained in
their work areas; Young did not run a machine; General Foreman Dane was Young's
immediate supervisor; and he did not know who was superior to Dane.
Williams on direct examination also testified that: 150 employees worked in the
rod plant; there were three shifts; Dane worked from 7 a.m. to 4.30 or 5 p.m.; the
first shift worked from 7 a.m. to 3 p.m., the second shift worked from 3 to 11 p.m.,
and the final shift worked from 11 p.m. to 7 a.m. (the next morning); Young worked
at the other end of the building from Dane-probably 600 feet away; some days
Dane came into the department often; it was hard to tell how many times a day Dane
came into the department; responsibility for quality of work was under the inspection
department; Young sometime checked the quality of work; Young saw that the quality
of work was sufficient; when he was learning his job, Young and Dane both checked
on his progress; he (Williams) had worked in his department for 3 years; Young wore
sport shirts and slacks at work and Williams wore overalls and T-shirts at work;
Young had a desk; and Young was responsible for seeing that there was sufficient
materials at Williams' machine.
Williams, on cross-examination, testified to the effect that: there were other men
who did the same type of work performed by Young (James Hunt, Earl Demange,
John Morris, Gary Evilsizer, Earl Shoup, and Ralph Davis); if his machine broke
2 The General Counsel deleted by amendment other allegations relating to alleged
supervisory status of Earl Demange and to Demange ' s alleged conduct violative of Sec-
tion 8 ( a) (1) of the Act. It is undisputed that E A. Hobart , president of Respondent,
is a supervisor within the meaning of the Act.
8 The facts as to the conversations between Williams and Young are largely undisputed
To the extent that Williams' testimony is more complete and precise his version of the
conversations Is accepted over Young ' s The facts relating to Young's statement to em-
ployees as to how to keep the Company from knowing of their attendance at union meet-
ings are based on Young's uncontradicted testimony . Since I am convinced from the
evidence that Young Is not a supervisor within the meaning of the Act, I find It un-
necessary to set forth specific factfindings as to the referred to events.
HOBART BROTHERS COMPANY 959
down, Young either fixed the machine or helped Williams fix the machine, if possible,
or Young sent for a maintenance man; Young was a setup man (dies) on new
machines; Young inspected materials; Young had a production schedule (given him
by Dane) on which the various operators' work was scheduled; Young could be
described as a general handyman; Young fixed machines when he could; Young had
never "bawled" Williams out, there were days and days when he and Young did not
speak to each other except in greeting; and Dane was the person to contact to get a
day off, to schedule vacations, or to report- being sick.
Williams also testified on cross-examination to the effect that: Young saw to it
that Williams had material to work on; sometimes Young himself brought such mate-
rial to Williams on a forklift truck; Williams contacted Dane relative to raises; Wil-
liams worked on the day shift; Dane was the foreman on the day shift; he had never
seen anywhere the title "General Foreman" relating to Dane; some other employees'
dressed similarly to Young; and he had never seen any paper, report, or anything on
the bulletin board which directly or indirectly said that Young was a group leader,
foreman, or supervisor.
In answer to the questions by the Trial Examiner, Williams testified that he based
his testimony to the effect that Young was responsible for getting material on the
fact that when he needed material he told Young. Williams also testified to the effect
that none! of the employees that he named as performing the same type of work as
Young worked in Williams' department, that no one ever told him that Young was a
supervisor, but that he took it for granted that Young was a supervisor.
The parties stipulated that Respondent held supervisory meetings; that there were
56 employees on the first shift, 45 employees on the second shift, and 25 employees
on the third shift; that there were 16 shipping and receiving employees; that Hunt,
Young, Shoup, and Davis worked on the first shift, Demange, Evilsizer, and Angle
worked on the second shift, and Morris and Welbaum worked on the third shift;
and that Paul Dane was the foreman supervising all three shifts.
On redirect examination General Counsel witness Williams testified to the effect
that if he ran out of material he went to Young and that Young secured the material
for him if an employee (who ran a forklift) was not there to do so, that Young some-
times read the scheduling of work from a schedule to the employees, and that
employees were able to take their vacations when they wanted them.
On re-cross-examination General Counsel Williams testified to the effect that when
Young told him what the production schedule was, Dane had previously given
Young the schedule, that sometimes Dane informed the employees personally of the
production schedule, and that he recognized the fact that when Young told him what
the production schedule was Young was doing so pursuant to Dane's instructions.
Respondent's witness Young testified on direct examination that: He was 43
years old and started work for the Respondent in 1940; he thereafter left for 3 years'
Army service and returned to work in 1946; he was an hourly rated employee; if he
were sick and off work he did not get paid for lost time; he was paid time and a half
for overtime; when he reported to work in the morning he checked to see if any
machines were broken down and fixed those that were; he did a little work on sched-
uling; the schedules were given him by the foreman to hand out to the operators;
he inspected wires; he could be described as a general handyman; employees tried to
fix machines and if unable to do so he and the employees attempted to fix the
machines and if neither could Young called a maintenance man; there were days and
days that he and Williams only saw each other in greeting; if Williams wanted to
report sick (or to schedule vacation time ) he went to the foreman and not to Young;
quality was checked by operators or inspectors in the quality control division-they
checked the wire and went to Dane if they found something wrong and Dane and he
made some kind of decision as to what was wrong with the wire; he had no authority
to bawl people out; he and the other employees worked on a group (incentive) bonus
plan; all employees received the same percentage on the incentive plan; employees
told each other if the other was loafing; Young did not attend supervisory meetings;
he did not have the authority to hire; 4 he could not adjust grievances; he assigned
work from a work schedule given him (Young) by Foreman Dane; Dane tells him
(Young) what he wants done and who is to do it; Dane worked from 8 a.m. to 5 p.m.;
Dane sometimes gave the work to the employees from the schedule himself; Williams
knew that when Young gave the work out Dane had told Young to do so; Young
did quite a bit of maintenance work; he fixed machines; he sometimes did'production
* The General Counsel does not contend that Young can hire or fire or effectively rec-
ommend hiring or firing of employees nor that there is evidence that Young can promote
or transfer employees to another department.
775-692-65-vol. 150--62
960 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
work; 90 percent of his time was in production and maintenance work, and 10 per-
cent was in scheduling work (what the foreman had scheduled ); he sometimes ran a
forklift; Williams could get materials from either Young or the stockboy; Young
sometimes asked the stockboy to get material ; he did not take the place of the fore-
man if the foreman were sick; there were eight or nine people who did approximately
the same type of work that Young did; Davis, Welbaum, or Angle worked in another
building; Welbaum and Angle worked at night and Davis worked on daytime; Hunt
and Demange, Morris, Young, Evilsizer, Shoup, Welbaum, and Davis all generally
performed the same type of work from a responsibility standpoint of authority;
Young punched a timeclock; and Young and other older employees instructed new
employees.
Respondent witness Young testified to the effect that: Dane would show him the
production schedule and tell him what items he wanted done first and what machine
to put the items on; the machines had permanently assigned operators ; Young con-
veyed Dane's orders to the operators ; he and other hourly rated employees had the
same vacation , holiday pay, and insurance benefits; Dane was the one who asked
employees to work overtime or on certain shifts; no foreman or Dane had ever dis-
cussed with him the employees with reference to ratings for promotions or transfers;
to Young's knowledge he had never been called a group leader, foreman, or supervisor
in the plant.
In answer to a question by the Trial Examiner, Young testified that his rate of pay
was $2.43 per hour. It was stipulated by the parties that Young's rate of pay was
higher than most of the employees in the department but lower than some.
On cross-examination Young testified to the effect that: Demange had the same
classification that he did ; Demange worked from 3 to 11 p.m.; after 5 p.m. neither
Dane nor any other supervisor was in the plant; Dane gave him the production
schedule; Dane told him the items he wanted done first ; Young told the machine
operators that Dane wantd the machine operator to run the items; Young did not
select the machines to assign items to but Dane did; operators are assigned to machines
by Dane; if employees did not perform their work , he, like other employees, and
because of the group bonus, would tell Dane; employees knew they were to keep
the machinery clean; employees were told when hired to keep the department clean;
he (because of the group bonus plan) sometimes told employees who were not busy
to sweep the floor; Dane sometimes asked him or the operators why work was not
being completed; he had responsibility for quality of work produced because he
inspected it; he had been in his current job since 1959; at the time he was put on
the current job he was told more or less to help Dane out-to see that the work was
done; Dane requisitioned all materials ; Young was responsible to see that the opera-
tors had sufficient wire for their machines ; Dane told him ( when placed in his current
job) that he wanted Young to see that the work was done; Young was responsible for
getting the work out through Dane; and if someone approached him with a grievance,
he sent the person to Dane.
On redirect examination Young testified that he did not receive a memorandum
addressed to supervisors and issued by management on January 6, 1964. On re-cross-
examination Young testified that Dane made up the employees' pay envelopes and that
Young handed the pay envelopes to the employees.
W. H. Hobart, executive vice president of the Respondent, testified to the effect that:
Young, Hunt, Shoup, Davis, Demange, Evilsizer, Angle, Morris, and Welbaum had
approximately the same functions as to their work ; there were no supervisors under
Dane ; Dane and Young were both hourly paid ; Dane's salary was higher than that of
Young; he imagined that some of the employees in Young's class (Hunt, Shoup, Davis,
Demange, etc .) were in charge when Dane was not there; and such employees (after
5 p.m. when Dane was not in the plant ) would contact Dane as to nonroutine
problems.
Williams, Young, and Hobart all appeared to be truthful witnesses . However,
Williams, as to much of his testimony , did not appear to be in a position to know
Young's duties. Nor did Hobart appear to know the specifics of Young's duties.
Young, on the other hand, was in a position to know his duties best. Evaluating the
total testimony of the witnesses in this light, I am convinced that the evidence does not
establish that Young is a supervisor within the meaning of the Act.
The General Counsel's contention appears to be that Young responsibly assigns and:
directs the work of the empoyees in a nonroutine manner, and the fact that there is
only 1 admitted supervisor over 3 shifts with an approximate total of 150 employees
reveals that Young and similar employees are supervisors. The General Counsel
points out that for approximately 5 hours on the second shift and 8 hours on the third
shift, the only admitted supervisor , Dane, is not in the plant.
HOBART BROTHERS COMPANY 961
At best the evidence reveals that Young conveys messages of assignment and direc-
tion of work given him by Dane. The telling of the employees (on those occasions
when their work is done) to clean up the floor reveals only routine direction. The
ratio of employees to supervisors is suspicious but not necessarily revealing when as
to nonroutine details the supervisor can be contacted. Considering all of the evidence
in total context, I find that the evidence does not reveal that Young exercises inde-
pendent authority in the assignment and direction of work. I find and conclude that
Young is not a supervisor within the meaning of the Act.
C. The decision by December 6,1963, to increase vacation benefits 5
Sometime in the fall of 1963, and prior to September 6, 1963, the Respondent had
a survey made of vacation plans of other companies. In connection with manage-
ment discussion of its vacation plan and other vacation plans it was decided by Decem-
ber 6, 1963, to modify Respondent's vacation plan and to increase vacation benefits
to its employees effective as of the first of 1964. The new vacation benefits were
decided by December 6, 1963. '
D. The union organizational attempt 6
The Union commenced an organizational campaign of Respondent's employees
around- the middle of December 1963. On December 23, 1963, the Union mailed to
a substantial number of Respondent's employees (300 to 350 in number) a letter (on
union stationery) setting forth as follows:
Dear Friends:
HAPPY HOLIDAYS TO ALL!
Many of your co-workers at Hobart Brothers have been talking to our mem-
bers about a Union in your plant. We wish it were possible to sit down with
you and explain the many advantages a well organized Union has in helping
workers in the factories.
Since you have so many, it is just about impossible to personally visit all of
you. Therefore we are doing the next best thing-contacting you by mail. This
does have its advantages, that is you can transact your personal affairs in the
privacy of your own home.
In order to set the wheels in progress, it is of course necessary to find out
how many of you are actually interested in having a Union. If there is a suffi-
cient number, we will be only too glad to explain the benefits of banding together
with your co'workers, such as job security, promotions, fringe benefits, to name
a few.
So to do this, won't you please sign the enclosed card and return it in the
postage paid envelope? It is necessary that we have a sufficient number of these
to assure the board you are interested in a Union. You can rest assured that
these cards will be handled with the strictest confidence, and your employer or
foreman will have no knowledge of it.
Therefore, please sign your card immediately and return to us. As mentioned
before, many of your fellow workmen have already signed, so don't delay yours.
If there is any more information you desire, please contact us at once. Will
look forward to seeing you soon.
Sincerely yours,
U.A.W. Local 128
(S) Arthur K. Fagan
ARTHUR K . FAGAN, Pres.
Enclosed with the union letter was a union authorization card prepared in such a
way that the card itself constituted a postal card that could be mailed by the employee
.to the Union . The said card was labeled "authorization to UAW" and set forth in
effect that the undersigned employee authorized the UAW to represent the said
employee in collective bargaining. The card provided blanks for date, name of the
company, signature of employee, printed name of employee , address, class of work,
shift, telephone number, and badge or check number. In small print the card set
forth "This is not an application for membership . This card is for use in support of
the demand of (UAW), American Federation of Labor and Congress of Industrial
Organizations (AFL-CIO) for recognition or for an NLRB election."
6 Based on the credited testimony of W. H. Hobart.
6 Based on stipulations of the parties.
962 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. The Respondent letter of January 3, 1963 7
On January 3, 1964, Respondent mailed to its employees a letter (on its stationary)
setting forth as follows:
To HB Employees and your families
It has been brought to our attention that some of you have received a mailing
asking about your interest in having a union represent you at Hobart Brothers.
If you received copies of a letter and card, read them very carefully. The sign-
ing of such a card may involve you in more than you realize.
For more than 45 years Hobart Brothers Company has steadily grown in em-
ployment, facilities, and acceptance of our products. For more than 45 years our
people have felt that they have been treated fairly without the need of a union.
Because of this continuous growth, which is the only true job security, our
record is second to none in this area for stable, continuous employment. We do
not hire and lay off on a seasonal basis. We hire the best qualified people and
then do our best to provide continuous employment. The small turnover of our
personnel at Hobart Brothers proves how effectively this policy works.
Our Bonus Trust Plan is one of the first and best profit sharing systems in this
area. As long as we are able to produce quality products at a competitive price
and are able to sell them, you will share in the profits through this plan.
During the past year we have been reviewing all of the various employee
benefits we offer to make sure that they are equitable and fair as far as both you
and the company are concerned. You will be pleased to hear that as of the
first of the year our vacation plan has been changed to offer additional time for
you and your family. As has been our practice, we will continue to review and
make possible improvements in your other benefits.
The recreation facilities that Hobart Brothers has provided over the years for
you, your family, and our entire community are hard to surpass any place in
this country.
I mention the above advantages to remind you of the continuing interest the
company has in you. You and the company accomplished these things by
working together without outside interference. Our doors have always been
open for the discussion of problems.
If we work together, produce the best possible products, and sell them, we
can continue to offer good jobs, pay well, and offer the most possible benefits.
However, people outside the company have no interest in these economic facts,
they are only interested in what they can get from you in the way of money
from dues, and power.
Don't be fooled into signing misleading cards that are mailed in secrecy. It
is said that when you sign such a card, no one other than a Union Representative
or a representative of the National Labor Relations Board will ever see this card.
This is not the truth. In many instances the signed card is disclosed to the Com-
pany by the union, the NLRB, or both of them. Be careful about what you
sign-don't sign ANYTHING unless you KNOW what you are signing and what
it might mean to you, your family, or your fellow employees.
Sincerely,
E. A. Hobart, President
Hobart Brothers Company
F. The Respondent's January 6, 1964, memorandum relating to
increased vacation benefits 8
On January 6, 1964, the Respondent dated a memorandum to its employees relat-
ing to an announcement of its increased vacation benefits. Copies of this memoran-
dum setting forth increased vacation benefits were given to employees in their pay
envelopes on Friday, January 10, 1964.
W. H. Hobart testified that the announcement of the increased vacation benefits
was delayed from before December 6, 1963, to January 1964 to avoid bookkeeping
problems and because normally such changes were announced at the time of the
change. I believe that W. H. Hobart was honestly attempting to remember the rea-
son for the delay in the announcement of the increased benefits when he testified to
the effect that the delay was bookkeeping problems but I am convinced that this
testimony was a rationalization of the reason and not the real reason. I do not see
how an earlier announcement with an effective date in January 1964 could have
7 Based on stipulations of the parties.
8 Based on W. H . Hobart 's credited testimony.
HOBART BROTHERS COMPANY 963
caused a bookkeeping problem. Despite the fact that it would appear that an
announcement could have been made earlier-effective in January 1964-and that
the announcement could have been made closer to the actual effective date than was,
one must realize that people normally do not operate with rigidly perfect calendar
calibration. I credit Hobart's testimony to the effect that the timing of the announce-
ment was to be close to the time of the effectiveness of the increased benefits. I also
credit Hobart's testimony to the effect that he had not promised employees increased
benefits in order to cause them to abandon the Union. His testimony was not detailed
enough to have real weight to the effect that other officials had not promised employ-
ees increased benefits in order to cause them to abandon the Union.
G. Conclusions
The issues concern whether Respondent's letter of January 3, 1964 ( see section E,
above), (1) constituted a promise of increased vacation benefits in order to cause
the employees to abandon or repudiate their union activities, sympathies, or member-
ship, (2) threatened its employees, with reprisals for signing union authorization
cards, and (3) whether Respondent on January 6, 1964, increased its employees'
vacation benefits in order to cause employees to abandon or repudiate their union
activities, sympathies, and membership.
The General Counsel appears to contend that the timing of the events and the
intertwining of the announcement of the increased benefits with the Respondent's mes-
sage of opposition to the Union, and the language of the letter itself supports an
affirmative finding of the above issues. The Respondent contends that Respondent's
letter of January 3, 1964, constitutes legitimate expression of position, argument, and
views within the meaning of Section 8(a) of the Act 9 and that the increased vacation
benefits were decided by December 6, 1963, and therefore the increased vacation
benefits could not have been for the illegal purpose ascribed by the General Counsel.
The Respondent contends and the evidence is undisputed that at the time of
Respondent's January 3, 1964, letter the Union had made no demand to the Re-
spondent for representation of the employees and that no representation petition
had been filed with the National Labor Relations Board. The Respondent contends,
and W. H. Hobart credibly testified to the effect, that prior to the issuance of Respond-
ent's January 3, 1964, letter Respondent had knowledge of the revelation of union
cards in refusal-to-bargain type unfair labor practice cases before the National Labor
Relations Board.
The evidence reveals that the Respondent had decided by December 6, 1963, on
increased vacation benefits. Thereafter the Union had mailed a letter on Decem-
ber 23, 1963, to many of the Respondent's employees setting forth "We will be only
too glad to explain the benefits of banding together with your co-workers, such as job
security, promotions, fringe benefits, to name a few." Under such circumstances,
Respondent had a right to present counterarguments or viewpoints and to attempt
to point out such benefits and conditions which it believed favorable to itself. This
is in substance what Respondent did in its January 3, 1964, letter when it announced
its increased vacation benefits and further stated "as has been our practice, we will
continue to review and make possible improvements in your other benefits." Thus
I am convinced that Respondent's assertions in its letter relating to the announce-
ment of benefits and possible future benefits is within the legitimate area of opinion,
views, and argument privileged by Section 8(c) of the Act. I so conclude and find.
Considering the last paragraph of Respondent's letter of January 3, 1964, in con-
nection with the union letter of December 23, 1963 (with enclosed union authoriza-
tion card), I am convinced that Respondent has violated Section 8 (a)(1) of the Act
and that such statement is not the expression of an opinion, view, or argument privi-
leged by 8(c) of the Act.10 This last 'paragraph of Respondent's January 3, 1964,
letter is herein set out:
Don't be fooled into signing misleading cards that are mailed in secrecy. It
is said that when you sign such a card, no one other than a Union Representa-
0 Section 8 (c) of the Act sets forth as follows:
The expressing of any views, argument , or opinion , or the dissemination thereof,
whether in written, printed, graphic, or visual form, shall not constitute or be
evidence of an unfair labor practice under any of the provisions of this Act, if such
expression contains no threat of reprisal or force or promise of benefit.
10I do not credit W. H. Hobart's conclusionary testimony to the effect that Respondent
had not threatened employees with reprisals . The Respondent's statement in its Janu-
ary 3 , 1964 , letter Is to the contrary.
964 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive or a representative of the National Labor Relations Board will ever see this
card. This is not the truth. In many instances the signed card is disclosed to
the Company by the union , the NLRB , or both of them . Be careful about what
you sign-don 't sign ANYTHING unless you KNOW what you are signing and
what it might mean to you , your family , or your- fellow employees.
The Respondent , in my opinion , could have legitimately pointed out to employees
that the signed union cards could result in the establishment of the Union as exclusive
bargaining representative without the benefit of an election wherein the employees
could vote . The Respondent could have pointed out the seriousness of signing union
cards in that respect. In this case , however, the Respondent 's message was unquali-
fiedly to the effect that the card would not be secret or confidential . Under such
circumstances the statement of Respondent in the last paragraph of its January 3,
1964, letter set out above , in my opinion , was reasonably calculated to convey to the
employees that their signing of union cards would not be kept secret or confidential,
that the Respondent probably would acquire - knowledge of their signing cards, and
that Respondent would engage in reprisals against them if they signed union cards.
Such a threat constitutes a violation of Section 8(a)(1) of the Act . 11 I so conclude
and find.
Considering all of the evidence and the credited testimony of W. H . Hobart to the
effect that the Respondent had decided by December 6, 1963, and prior to union
organizational efforts, on increased vacation benefits effective in January 1964, I am
convinced that the General Counsel has failed to establish that Respondent increased'
its vacation benefits on January 6 , 1964, in order to cause its employees to abandon
or repudiate their union activities , sympathies , and membership . I so conclude and
find.12
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate , and substantial relationship to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
I will recommend that the Respondent cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings of fact , and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. International Union , United Automobile, Aerospace and Agricultural Imple-
ment Workers of America, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
2. Hobart Brothers Company is engaged in commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
11 Texas Industries , Inc ; et al., 139 NLRB 365 . Cf. Armstrong Tire A Rubber Com-
pany, Test Fleet Branch , 119 NLRB 382 , at 390 and 398. The factual context of the
letter in the instant case is distinguishable from the Armstrong case. In the Armstrong
case the total context of the letter did not convey a threat of reprisal if the Company
learned of the employees , signing of union cards.
ii True Temper Corporation, 127 NLRB 839 . Cf. American Freightways Co., Inc., 124
NLRB 146. The General Counsel cites in support of his position N.L.R B . v. Exchange
-Parts Company , 375 U.S. 405 . In the Exchange Parts Co case the Supreme Court of
the United States found that well -timed increases ( for the purposes of inducing employees
to vote against the union ) were violative of Section 8(a)(1). The question in this case
as presented by the pleadings touches upon whether the facts reveal that the increased
vacation benefits were made in order to cause the employees to abandon their union
activities , sympathies , and membership . The facts reveal that the increase had been
decided upon prior to the advent of union activity and therefore was not made to combat
the Union
I I-
HOBART BROTHERS COMPANY 965
3. By threatening its employees with reprisals if they sign union authorization
cards, the Respondent has interfered with, restrained, and coerced its employees in
the exercise of their rights guaranteed in Section 7 of the Act, in violation of Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are 'unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5 The evidence does not establish that the Respondent has violated the Act with
respect to paragraph 6(a) of the complaint as to alleged promise to employees of
increased vacation benefits in order to cause the employees to abandon or repudiate
their union activities, sympathies, or membership, or with respect to paragraph 6(b)
of the complaint as to alleged increase in vacation benefits of the employees to cause
them to abandon or repudiate their union activities, sympathies, or membership, or
with respect to complaint paragraph 6(c) as to the alleged conduct of Jack Young.
RECOMMENDED ORDER 13
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this case, it is recommended that the Respondent, Hobart Brothers
Company, its officers, agents , successors and assigns , shall:
1. Cease and desist from threatening employees with reprisals because they sign
union authorization cards or in any like or related manner interfering with, restrain-
ing, or coercing any of our employees in the exercise of their right to self-organiza-
tion, to form labor organizations, to join or assist international Union, United Auto-
mobile, Aerospace and Agricultural Implement 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 collec-
tive bargaining or other mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by an agreement
requiring membership in a labor organization as a condition of employment as
authorized in Section 8(a)(3) of the Act, as modified by the Labor-Management
Reporting and Disclosure Act of 1959.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Post at its plant in Troy, Ohio, copies of the attached notice marked "Appen-
dix." 14 Copies of said notice, to be furnished by the Regional Director for Region 8,
shall, after being signed by the Respondent's representative, be posted by Respondent
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respondent to insure
that said notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writing, within 20 days from
the date of this Recommended Order, what steps the Respondent has taken to comply
herewith 15
It is also recommended that complaint paragraph 6(a), 'insofar as it relates to
alleged promise of increased vacation benefits in order to cause the employees to
abandon or repudiate their union activities, sympathies, or membership, complaint
paragraph 6(b), and complaint paragraph 6(c) be dismissed.
13 In the event that this Recommended Order be adopted by the Board, the word "Order"
shall be deemed substituted for the words' "Recommended Order." Additionally there
shall be deemed substituted for the first paragraph of the Recommended Order the follow-
ing paragraph:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations' Act, as amended, the National Labor Relations Board hereby
orders that:
14 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" In the notice In the further event that the Board's Order be enforced
by a decree of a United States Court of Appeals, the words "a Decree of the United States
Court- of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
"In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days
from the date of this Order, what steps the Respondent has taken to comply herewith "
966 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act , as amended , we hereby notify our employees that:
WE WILL NOT threaten employees with reprisals because they sign union
authorization cards nor will we in any like or related manner interfere with,
restrain , or coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations , to join or assist International Union, United
Automobile , Aerospace and Agricultural Implement Workers of America, AFL-
CIO, or any other labor organization , to bargain collectively through represen-
tatives 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 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, as
modified by the Labor-Management Reporting and Disclosure Act of 1959.
HOBART BROTHERS COMPANY,
Employer.
Dated------------- ------ By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Main
1-4465, if they have any questions concerning this notice or compliance with its
provisions.
Big Bear Super Market No . 3, Inc. and Building Service Em-
ployees' International Union , Local 102, Building Service
Employees' International Union , AFL-CIO. Case No. 21-CA-
5919. January 13, 1965
DECISION AND ORDER
On November 9, 1964, Trial Examiner Martin S. Bennett issued
his Decision in the above-entitled case, finding that the Respondent
had not engaged in the unfair labor practices' alleged in the com-
plaint and recommending that the complaint be dismissed, as set
forth. in the attached Trial Examiner's Decision. Thereafter, the
General Counsel filed exceptions to the Trial Examiner's Decision
and a brief in support of the exceptions.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the Board has delegated its powers in
connection with this case to a three-member panel [Members Fan-
ning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Trial Examiner's Decision and the entire record in this case, includ-
150 NLRB No. 95. 1