Hoosier Cardinal Corp.

National Labor Relations Board - Board Decisions

Apr 4, 1946

67 N.L.R.B. 49 (N.L.R.B. 1946)

In the Matter Of HOOSIER CARDINAL CORPORATION, HOOSIER LAMP &
STAMPING CORPORATION, AND CARDINAL CORPORATION and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO
In the Matter of HOOSIER LAMP & STAMPING CORPORATION and UNITED
ELECTRICAL, RADIO & MACHINE WORKERS OF AMERICA, CIO
Cases Nos. 14-C--865 and 14-R-611, respectively .Decided April 4,
1946
Mr. Ryburn L. Hackler and Miss Helen F. Humphrey, for the
Board.
Mr. William Sentner, of St. Louis, Mo., Mr. James Payne, of Evans-
ville, Ind., and Mr. David Scribner, of New York City, for the U. E.
Mr. Isidor Kahn, of Evansville, Ind., for the respondents.
Mr. Paul H. Schmidt, of Evansville, Ind., and LaFollette and
McCray, by Mr. Howard Sandusky, of Evansville, Ind., for the Metal
Fabricators.
Mr. Paul Bisgyer, of counsel to the Board.
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon an amended charge duly filed on April 7, 1945, by United
Electrical, Radio & Machine Workers of America, CIO, herein called
the UE, the National Labor Relations Board, herein called the Board,
by the Regional Director for the Fourteenth Region (St. Louis, Mis-
souri), issued its complaint dated April 12,1945, against Hoosier Lamp
& Stamping Corporation, Cardinal Corporation, and Hoosier Cardinal
Corporation, Evansville, Indiana, herein called respectively the re-
spondents Hoosier, Cardinal, and Hoosier Cardinal, alleging that the
respondents had engaged in and were engaging in certain unfair labor
practices affecting commerce within the meaning of Section 8 (1) and
(2) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act. Copies of the complaint, together
with notice of hearing thereon, were duly served upon the respondents,
the UE, and Metal Fabricators Local No. 1, Inc.
67 N. L. R. B., No. .
692148-46-v of 67-5 49
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
With respect to the unfair labor practices the complaint alleged,
in substance, that the respondents in violation of Section 8 (1) and
(2) of the Act : (1) initiated, formed, and sponsored labor organ-
izations known, successively, as the Get-Together-Club, herein called
the GTC, the Workers Council, herein called the Council, and Metal
Fabricators Local No. 1, Inc., herein called the Metal Fabricators;
(2) urged and persuaded their employees to join or assist the GTC,
the Council, and the Metal Fabricators, and warned and threatened
them with reprisals if they joined the UE or other outside unions;
made disparaging and derogatory statements about the UE and other
affiliated unions ; promulgated and discriminatorily enforced a rule
prohibiting union solicitation on company time and property; ques-
tioned their employees concerning employee activities on behalf of
the UE; and (3) interfered with the employees' free choice of a
bargaining representative at an election conducted by the Board on
August 5, 1943. The respondents in a duly filed answer denied all
allegations of unfair labor practices. The Metal Fabricators, in its
petition for intervention, which was granted by the Chief Trial Ex-
aminer on April 26, 1945, and in its duly filed answer, denied all
allegations of the respondents' assistance, control, and domination of
the Metal Fabricators.
Upon due notice, a hearing was held from May 16 to 26, 1945, in-
clusive, at Evansville, Indiana, before William E. Spencer, the Trial
Examiner duly designated by the Chief Trial Examiner.' The
Board, the respondents, the UE, and the Metal Fabricators were
represented by counsel and participated in the hearing. Full oppor-
tunity to be heard, to examine and cross-examine witnesses, and to
introduce evidence bearing on the issues was afforded all parties. A.
motion for a bill of particulars filed by the respondents was granted
in substantial measure.
In its petition for intervention and again by oral motion at the
beginning of the hearing, the Metal Fabricators moved to suppress
all evidence based on or derived from certain documents which it
alleged were obtained by means of an illegal search and seizure by
Board agents.2 After taking evidence and hearing oral argument,
participated in by the Metal Fabricators and the Board, the Trial
1 Pursuant to an order of the Board dated February 2, 1945, the hearing on Objections
to the Election in Case No . 14-R-611 was consolidated with the instant Case No . 14-C-865.
The objections were duly filed by the UE, alleging interference by the respondent Hoosier
with the employees ' free choice of a bargaining representative at an election conducted by
the Board on August 5, 1943. The Trial Examiner properly overruled the Metal Fabri-
cators' objections to the consolidation . Article III, Section 13 (c), and Article II, Section
36 (b), of National Labor Relations Board Rules and Regulations-Series 3, as amended.
2 The pertinent language of the Fourth Amendment to the Constitution upon which the
parties rely in support of their motions , follows : "The right of the people to be secure in
their persons, houses , papers, and effects against unreasonable searches and seizures shall
not be violated. .. .
HOOSIER CARDINAL CORPORATION 51
Examiner denied the motion. At the close of the Board's case and
the hearing, the Metal Fabricators renewed its motion in which the
respondents joined. The Trial Examiner denied these motions. The
respondents and the Metal Fabricators also moved at the opening
and closing of the Board's case and at the conclusion of the hearing,
to dismiss the complaint on the ground that it was barred by the
riders to the Appropriation Acts of 1944 and 1945. These motions
were denied .3 At the close of the Board's case, the Trial Examiner
denied motions by the respondents and the Metal Fabricators to dis-
miss the complaint because it was not supported by substantial evi-
dence. These motions were renewed at the conclusion of the hearing.
The Trial Examiner reserved ruling thereon and later denied them
in the Intermediate Report. Over the objections of the respondents
and the Metal Fabricators, the Trial Examiner properly granted a
motion of the Board's attorney to conform the pleadings to the proof
with respect to names, dates, and other minor recitals.
The Board has reviewed the rulings of the Trial Examiner on mo-
tions and objections to the admission of evidence and finds that no
prejudicial error was committed, except insofar as those rulings
relate to the admissibility of certain documentary proof obtained
by the Board's agent under the circumstances hereinafter discussed.
Such rulings are hereby overruled. The remainder are hereby af-
firmed.
On July 4,1945, the Trial Examiner issued his Intermediate Report,
copies of which were duly served upon all the parties, in which he
found that the respondents had engaged in and were engaging in
unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and (2) and Section 2 (6) and (7) of the Act. He
recommended that the respondents cease and desist from their unfair
labor practices, and that they disestablish and withdraw all recogni-
tion from the Metal Fabricators. Exceptions to the Intermediate
Report and supporting briefs were filed by the respondents and the
Metal Fabricators.
On December 13, 1945, the Board heard oral argument at Washing-
ton, D. C. The respondents, the Metal Fabricators, and the UE ap-
peared by counsel and participated in the argument. The Board has
considered the exceptions to the Intermediate Report, the briefs filed,
and the contentions advanced at the oral argument before the Board
and, insofar as the exceptions are inconsistent with the findings, con-
clusions, and order set forth below, finds them to be without merit.
Upon the entire record in the case, the Board makes the following:
3 In view of our disposition of the issues herein, we find that the riders to the Appropria-
tion Acts of 1944 and 1945 are not a bar to this proceeding
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENTS
Hoosier Lamp & Stamping Corporation, an Indiana corporation
with its principal office and place of business at Evansville, Indiana,
came into existence as a legal entity on May 5, 1928, when Hoosier
Lamp Works and the F. W. Goedeke Metal Stampings Works, joint
enterprises owned by Thomas J. Morton, Jr., were incorporated un-
der that title. It continued in existence as a separate corporate en-
tity until its merger on or about July 1944, with Cardinal Corpora-
tion, under the title of Hoosier Cardinal Corporation. During its
separate corporate existence, it was engaged principally in the manu-
facture and distribution of metal stampings and other metal products.
During a typical 6-month period, it purchased raw materials valued
in excess of $500,000, of which amount approximately 50 percent was
transported to its plant from points outside the State of Indiana.
During a similar typical 6-month period, it sold finished products
valued in excess of $500,000, of which amount approximately 50 per-
cent was transported from the plant to points outside that State.
Cardinal Corporation, an Indiana corporation with its principal
place of business at Evansville, Indiana, was incorporated under the
title of Hoosier Development Corporation on August 14, 1936. On
September 1, 1937, its title was changed to Cardinal Corporation,
without an accompanying change iii its corporate structure. It con-
tinued in existence until its merger with Hoosier in July 1944. At
the time of the merger and for a substantial period prior thereto, a
majority of Cardinal's common stock was owned by Hoosier,4 and
Cardinal occupied premises jointly with or immediately adjacent to
Hoosier. Cardinal, through its separate corporate existence, was en-
gaged principally in the manufacture and distribution of plastic
products. During a typical 6-month period, it purchased raw mate-
rials exceeding $50,000, in value, of which amount approximately
50 percent was shipped to the Evansville plant from points outside
the State of Indiana. During a similar typical period, it sold manu-
factured products valued in excess of $50,000, of which amount ap-
proximately 50 percent was shipped to points outside that State.
Hoosier Cardinal Corporation was formed in July 1944 by a merger
of Hoosier and Cardinal. as set forth above. It is engaged in the
manufacture and distribution of both metal and plastic products and
has its principal office and place of business at Evansville, Indiana.
Hoosier Cardinal Corporation purchases annually raw materials
"The June 1944 issue of "Hoosier Stampings," a plant publication of the respondent
Hoosier , in announcing the merger , stated with reference to the respondent Cardinal •
"This plastic molding and finishing industry has been operated as a subsidiaiy company
to Hoosier "
HOOSIER CARDINAL CORPORATION 53
valued in excess of $500,000, of which amount at least 50 percent is
shipped to the Evansville plant from points outside the State of
Indiana, and distributes manufactured products exceeding $500,000,
in value, of which amount 50 percent or more is shipped from the
Evansville plant to points outside that State.
It is conceded that the respondents Hoosier and Cardinal engaged
in, and the respondent Hoosier Cardinal is engaging in, commerce
within the meaning of the Act.S
II. THE ORGANIZATIONS INVOLVED
United Electrical, Radio & Machine Workers of America, affiliated
with the Congress of Industrial Organizations, and Metal Fabrica-
tors Local No. 1, Inc., unaffiliated, are labor organizations admitting
to membership employees of the respondents.
Get-Together-Club, from its formation in 1933 until May 1937, and
Workers Council from its formation in May 1937 until it was dis-
banded on July 5, 1938, were unaffiliated labor organizations admit-
ting to membership employees of the respondent Hoosier.6
III. THE UNFAIR LABOR PRACTICES
A. Domination and support of the GTC, the Council, and the
Metal Fabricators
The record discloses that the GTC was formed in 1933 as a combined
recreational and labor organization. It functioned in such dual ca-
pacity until May 1937, when its labor functions were assumed by the
Council. This latter organization was disbanded in July 1938 and,
shortly thereafter, the Metal Fabricators came into existence and has
continued to date as the bargaining representative of the respondent
Hoosier Cardinal's employees.
The Trial Examiner found that these organizations were company-
dominated and assisted, existing in violation of Section 8 (2) and
(1) of the Act, as alleged in the complaint. In reaching this con-
clusion, the Trial Examiner substantially relied upon documentary
proof, such as minutes and records, which were obtained by a Board
agent, under the following circumstances.
In 1943 the UE had filed unfair labor practice charges with respect
to the relations between the respondent and the Metal Fabricators.
6 Findings relative to the business of the respondents are based on undisputed and
credited testimony of Jack B Leaven , Assistant Secretary and Treasurei of respondent
Hoosier Cardinal, and upon stipulations entered into by and between attoinevs for the
Board and the respondents , respectively , and admissions of the respondents in their answer
to the Board's complaint
's The record does not disclose whether affiliation of these latter organizations was
extended to employees of the respondent Cardinal.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In December 1943 the Board 's Regional agents served subpoenas
daces teem on officers of the Metal Fabricators and on the respondents
which required them to produce certain described minutes, documents,
and records . The officers of the Metal Fabricators refused to produce
the records and turned the matter over to counsel for the organization.
He informed the Regional Office that he would produce these records
only upon certain conditions (which the Regional Office was un-
willing to grant), unless he was ordered to do so by a court. The matter
was apparently dropped for more than a year, and no attempt was
made by the Board to enforce the subpoenas.
Sometime during the following year, one Willie Schneider, who was
secretly an active member of the UE , was elected secretary -treasurer of
the Metal Fabricators . By virtue of his office he came into possession
of the records of the latter organization.
Early in 1945 one James Payne , the field organizer for the UE,
charging union , in Evansville , Indiana , communicated with the Re-
gional Office of the Board in St. Louis and advised our representatives
that Schneider would permit the Board to see the records of the Metal
Fabricators. As a result of this communication, on February 15, 1945,
an agent of the Board came to Evansville and, accompanied by Payne,
went to the home of Schneider and obtained from him the Metal Fab-
ricators ' records . The Board agent took all these books, papers, and
records with him to his hotel room, examined them, had photostatic or
other copies made of many of them , and then returned the originals
to Schneider. Thereafter, additional subpoenas were issued by the
Board upon officers of the Metal Fabricators , requiring that certain
documents be produced at a downtown . hotel in Evansville. Two
Board agents drove in to Evansville by automobile from the St. Louis
office, stopped at the home of Schneider and again took possession of
the books, papers, and records. They left a copy of the subpoena
with Schneider . The Board agents then returned to St. Louis, al-
though the subpoenas which had also been served on other officers of
the intervening union were returnable in Evansville the next day.
The documents thus obtained form the bulk of the evidence sup-
porting the finding of the Trial Examiner that the respondents ini-
tiated, formed, and sponsored the GTC, the Council, and the Metal
Fabricators in violation of Section 8 (2) of the Act. The respondents
and the Metal Fabricators objected unsuccessfully to the admission
of this evidence at the hearing, on the ground that it was obtained by
an illegal search and seizure by Board agents in contravention of the
Fourth Amendment of the United States Constitution. The Trial
Examiner's ruling admitting this evidence is now before the Board
on their exception.
HOOSIER CARDINAL CORPORATION 55
Although all parties have cited cases in support of their respective
contentions, none of the authorities on illegal searches and seizures
seems to be clearly applicable to the circumstances revealed by this
record. Without passing upon the question, therefore, as to whether
any constitutional rights were invaded, we have unanimously decided
to overrule the Trial Examiner and reject the evidence obtained
through the methods already described. Even where, as here, we do
not question the integrity or motives of our agents, we prefer not to
rely upon evidence obtained by such methods. It is better that there
be a failure to take full advantage of such dubious opportunities than
that Government, which "teaches the whole people by its example,
* * * should play an ignoble part."- As an administrative
agency having both investigating and judicial duties, this Board must
exact the highest standards of conduct from its investigating officers.
Congress has vested this Board with authority to issue subpoenas, and
has provided a means for enforcing them judicially when they are
not complied with. It seems to us that, under these circumstances, the
Board agents should have used the methods prescribed by the statute,
in view of the fact that they not only were aware of the official po-
sition of the Metal Fabricators with respect to the non-production of
the records, but also that they knew they would not have been allowed
-voluntary access to them except for the secret connection between
Schneider, the secretary-treasurer of the Metal Fabricators, and the
charging UE.
While this is a complaint case, it is consolidated with a representa-
tion case to which the charging union is a party. Under these circum-
stances, it was particularly encumbent upon the agents of the Board,
however unimpeachable their motives, to refrain from any appearance
of surreptitious dealing with one of the parties. We are therefore con-
strained to disregard the Trial Examiner's recommendation that a
finding of violation of Section 8 (2) should be made and will remand
this phase of the case to the Region for further proceedings. Inas-
much as the evidence relating to the other allegations of the complaint,
charging other acts of interference, restraint, and coercion of its em-
ployees in violation of Section 8 (1) of the Act, was not derived from
the documents thus procured, we shall hereinafter dispose of the is-
sues, without further hearing.
Accordingly, in order best to effectuate the purposes of the Act, we
shall direct that the allegations of the complaint adjudicated in this
Decision be severed from the remaining allegations that the respond-
ents violated Section 8 (2) and (1) of the Act by initiating, forming,
and sponsoring the GTC, the Council, and the Metal Fabricators,
and that the issues thereon be tried de Novo in a new hearing.
6- Brandeis and Holmes , JJ., dissenting, in Olmstead v. U. S., 277 U. S. 438 , 470, 485.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Interference, restraint, and coercion'
Sequence of events
In the spring of 1941, the UE initiated its first organizational drive
among the respondent Hoosier's employees. Shortly thereafter, it re-
quested recognition as the representative of a majority of its em-
ployees. No reply having been received, the UE, on June 9, 1941, filed
a petition for certification with the Board. This petition was later
withdrawn. After a period of time, the UE suspended its organiza-
tional activities until the latter part of 1942, when it revived its cam-
paign. On April 3, 1943, following the respondent Hoosier's refusal
to accord recognition to the UE, the UE filed another representation
petition in Case No. 14-R-611, involved herein. On August 5, 1943,
pursuant to a Decision and Direction of Election issued by the Board,'
an election was held which resulted in the UE's defeat by a vote of 248
for, to 912 against.9 Thereafter, the UE filed objections to the elec-
tion, alleging the respondent Hoosier's interference with its employees'
free choice of a bargaining representative.
Acts of interference, restraint, and coercion
Employee John G. Stone credibly testified, without contradiction,'
as follows : In May 1941, the pressroom employees sought a 10 cent
hourly wage increase. Dissatisfied with the representation they were
receiving through the Metal Fabricators, they held a meeting during
the latter part of May in a public park where they were addressed by
representatives of two affiliated unions. Following this meeting, this
group of employees joined the UE. On the next day, Walter Doebling,
foreman of the pressroom, questioned Stone, who was present at the
meeting and affiliated with the UE, concerning the meeting and the
identity of employees attending it. Doebling told Stone : "Well .. .
I don't see what you want with an outside union. Any time you have
anything you want, just come to me . . . and I can do you as much
good as an outside union can." Thereafter, employees of the-press
department conferred on several occasions with Doebling and other
representatives of management concerning a departmental wage in-
crease.
The record also discloses that on May 20, 1941, the UE, as part of
its organizational campaign, distributed circulars outside the respond-
'All findings herein, unles' otherwise specifically noted, are based on undisputed and
credible testimony of Board witnesses. At the conclusion of the Board's case, the respond-
ents rested without calling any witnesses . The Afetal Fabricators called one witness.
8 Matter of Hoosier Lamp & Stamping Corporation, 51 N L R B. 156
B Although duly served with Notice of Hearing in the representation proceeding, the Metal
Fabricators neither appeared therein, nor sought to have its name placed on the ballot
HOOSIER CARDINAL CORPORATION 57
ent Hoosier 's plant demanding 10 cents an hour increase in basic wage
rates . The circulars reproduced a letter which the UE had sent to
the respondent's president containing their demand. On June 4, the
Metal Fabricators made its first formal request of management for a
10 cents an hour increase for press operators at a meeting which
appears to have been attended by employees of the press department
and by the Metal Fabricators' president. On the next day, the re-
spondent agreed to grant a 5 cents an hour increase 10 Not long there-
after, the UE suspended its organizational activities until the latter
part of 1942.
Employee Odelia Hildebrand, whom we credit, as did the Trial
Examiner, testified that shortly after Thomas Girvin, the former
organizer and president of the Metal Fabricators, became the labor
relations director of the respondent Hoosier in 1942,11 he summoned
her to his office and asked her whether she was aware of his new
position. After requesting Hildebrand not to repeat their conversa-
tion, he questioned her concerning her attitude toward the Metal
Fabricators. He then advised her that he was the founder of that
organization, that his job would be "endangered" if an outside union
succeeded in organizing the plant, and urged her "to get out there and
pitch for the Metal Fabricators."
Hildebrand also testified that in or about January 1944, Thomas
Girvin again summoned her to his office and, in the presence of his
secretary Jessie Smith, told her that certain appointments were being
made to the position of inspector and that he had three names which
he was considering. After asking her if she was interested, he stated
that the company "tried to cooperate with the Metal Fabricators in
giving these people the jobs." Since Hildebrand was not at that
10 A parallel situation arose with reference to it night shift bonus. Julius Trageser, a
witness for the Metal Fabricators, testified that the Metal Fabricators requested a bonus
for employees of the night shift as early as July 20, 1942 , and repeated the request in August
when it was advised by management that further discussion of the request would be post-
poned until the shifts had been "stabilized " On October 5, 1942 , the Metal Fabricators
repeated its request , but received no reply thereon until January 15, 1943, when it was
advised that in order to effectuate the increase it would be necessary to file a joint request
with the War Labor Board In the interim , between October 5, 1942, and January 15, 1943,
the UE, as part of a renewed organizational drive , had on November 4, 1942, distributed a
handbill to employees outside the respondent ' s plant calling for a night shift bonus of "at
least 10%."
11 Thomes Girvin was elected president of the Council in March 1938, and in July of that
same year engineered and promoted the formation of the Metal Fabricators . He served as
its president from its inception until he left the respondent Hoosier's employ for a few
months during late 1941 or early 1942 to become an instructor in the local Mechanics' Art
School, apparently under the respondent 's sponsorship , He returned to the respondent's
employ in 1942 as employment manager and , after December of that year, was its labor
relations director, until June 1944 when he left the respondent's employ In this latter
position , he represented management in the execution of its labor policies , including the
handling of grievances submitted through the Metal Fabricators.
All statements hereinafter attributed to Thomas Girvin were made while he was labor
relations director
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
time a member of the Metal Fabricators,12 Girvin advised her that
she had "just about a half an hour in which to go out and sign a
card" in the Metal Fabricators if she wanted the job. Thereupon,
he referred her to his cousin Edward Girvin, who was then an offi-
cer or representative of the Metal Fabricators. Following Thomas
Girvin's suggestion, Hildebrand affiliated with the Metal Fabrica-
tors and the same month was promoted to the position of inspector.
The respondents' determination to prevent the UE from estab-
lishing itself in the plant is further reflected in the following two
incidents. On July 19, 1944, Theodore Dockery submitted his resig-
nation as president of the Metal Fabricators. When this fact came
to the attention of W, R. Harrell, who had succeeded Thomas Girvin
as labor relations director, Harrell told Edward Girvin, the then
vice president of the organization, that he regretted the "difficulty"
which had arisen within the Metal Fabricators and that if Dockery's
resignation became effective, the Metal Fabricators "would be lost
and the CIO would have us." Dockery's resignation was rejected
at the meeting of the Metal Fabricators that same evening and, up
to the time of the hearing before the Trial Examiner, he was serv-
ing as president of that organization. In September 1944, after the
Metal Fabricators had voted to dismiss Paul H. Schmidt as their
attorney, Harrell informed Edward Girvin that he was sorry to
learn of this action because Schmidt was the "backbone" of the or-
ganization and his discharge would cause "the [Metal Fabricators] to
go."" Schmidt was not dismissed at that time and he represented
the Metal' Fabricators at the hearing before the Trial Examiner 14
The no-solicitation rule
In June 1941, the respondent Hoosier promulgated the following
no-solicitation rule which was still in effect at the time of the hearing
before the Trial Examiner 15
There shall be no solicitation of employees at any time upon
Company property for the purpose of inducing one or more of
" Hildebrand admitted that she was a member of the UE at the time when she also held
membership in the Metal Fabricators , and that she reported to UE organizers on the Metal
Fabricators' meetings and activities . She also made written memoranda of certain conver-
sations she had with the respondents ' supervisors . Her testimony concerning her conversa-
tions with Girvin was undisputed and convincing and is credited by us.
" These findings are based on Edward Girvin ' s credible and undisputed testimony.
Edward Girvin , at the time of the hearing , had affiliated with the UE. It is clear, however,
that formerly he had been one of the leaders and foremost advocates of the Metal Fabrica-
tors. Harrell , though testifying , did not deny the statements and conduct attributed to
him by Edward Garvin . Dockery, though available as a witness , did not testify.
34 Edward Girvin testified that Schmidt was retained because the Metal Fabricators did
not have sufficient funds to hire a new lawyer.
16 Harrell testified that the rule was in force when he became labor relations director and
continuously thereafter to the present . The same rule, with modifications which do not
affect the issue here , is contained in the respondent's policy handbook, At work," published
in November 1943.
HOOSIER CARDINAL CORPORATION 59
such employees to join any organization or for the purpose of
obtaining from one or more of such employees a contribution
for any purpose, unless, in each instance, written permission
shall have been obtained from the Management.
Anyone violating this rule will be subject to discipline and
may be discharged. [Italics supplied.]
This rule was broad enough to forbid union solicitation on the
respondent's premises during the employees' non-working time. No
showing was made that the rule was necessary in order to maintain
production or preserve plant discipline. As we have previously held
in numerous decisions,'° the prohibition against union solicitation
on company premises on the employees' non-working time consti-
tutes an unwarranted interference- with the employees' self-organiza-
tional rights guaranteed by the Act. The restraint is not cured in
this case by the qualification, "unless, in each instance, written per-
mission shall have been obtained from the Management." On the
contrary, so qualified, the rule exercises a still greater restraining
influence due to the natural reluctance of employees to disclose to
their employer their interest in a union.-
Moreover, the promulgation of the rule at this time necessarily
handicapped the UE, which was trying to gain a foothold in the
plant, more than it did the Metal Fabricators, which was already
entrenched in the plant, and thereby impeded the employees in the
exercise of their right to transfer their allegiance from the Metal
Fabricators to the UE18
The record also discloses, and we find, that the respondent dis-
criminatorily enforced its no-solicitation rule. Thus, vppresentatives
of the Metal Fabricators were permitted to collect dues openly and
without hindrance from management during working hours. That
the respondent had knowledge of this practice, and approved and
encouraged it, is not only a reasonable inference to be drawn from its
open and continuous character, but is shown in the undisputed and
credible testimoy of Edward Girvin. He testified that during the
course of a conversation with Labor Relations Director Thomas
Girvin, the latter told him that "if the [Metal Fabricators] had
trouble with any of the foremen kicking on representatives collecting
dues to let him know the name of the foreman and he would see that
it was stopped." 19 Moreover, as will hereinafter be discussed, the
19 See, e. g, Matter of Bonita Fruit Company, Inc., et at., 64 N. L . R. B. 172; Matter of
Enid Cooperative Creamery Association , 63 N. L . R B. 728; Matter of Union Manufacturing
Company, 63 N. L. it. B. 254; Matter of Alabama Fuel d Iron Company , 62 N. L. R. B. 762:
Matter of Keystone Steel d Wire Company, 62 N. L. It. B. 683; Matter of May Department
Stores Company , 59 N. L. it. B. 976.
17 See Matter of Tomlinson of High Point, Inc., 58 N. L. It. B. 982.
- Matter of Keystone Steel d Wire Company, supra
"' Julius Trageser , a witness called by the Metal Fabricators , testified that the BE also
solicited during working hours. Specifically, however, he was able to recall the name of
60 DECISIONS OF 'NATIONAL LABOR RELATIONS BOARD
respondent permitted the Metal Fabricators, in flagrant disregard of
its rule, to campaign against the UE in the plant during working
hours for a no-union vote in the election held on August 5, 1943.
In view of the pointed timing in the promulgation of the rule, the
scope of its prohibition, and the discriminatory manner in which it
was applied, we find that the rule was promulgated and applied in
order to impede employee self-organization; that extension to the
employees' non-working time of the prohibition against union solici-
tation constitutes an unreasonable impediment to self-organization ;
and that, in its scope, purpose, and application, the rule interfered
with, restrained, and coerced the employees in the exercise of the
rights guaranteed in Section 7 of the Act.
Election interference
As noted above, an election under Board auspices was held on
August 5, 1943, which the UE lost. The UE filed objections to the
results of the election, and charges upon which the complaint herein
is predicated, alleging, inter alia, that the respondent Hoosier had
interfered with the employees' free choice of a bargaining repre-
sentative.
The record discloses, and we find, that, although the respondent
normally accorded slight notice to the Metal Fabricators in its policy
handbook and other publications, during the period of the UE's 1943
organizational drive resulting in the August 5 election, other issues
of its publications made conspicuous and laudatory mention of the
Metal Fabricators. For example, in the March 1943 issue of
"Hoosier Stal'llpings," the front page carried an article giving credit
to the Metal Fabricators for a night shift premium granted by the
War Labor Board upon the joint application of the respondent and
the Metal Fabricators; 20 and the July 1943 issue of this publication
reproduced a speech delivered by the respondent's president Morton,
Jr., which praised the Metal Fabricators as partly responsible for the
award of the second Navy "E"; although other issues omitted such
mention when prior and subsequent awards were made during periods
when the UE was inactive. Morton, Jr., in the July issue also cited
the award as proof that American workers were sincere and respons-
ible "when not hampered or obstructed by selfish and arrogant
leadership."
only one emplo}ee whom he had observed engaging in this practice on behalf of the FE,
and that emploiee Willie Schneider was also affiliated with and an officer of the Metal
Fabricators. We find that there was no comparable activity by the UE from which
knowledge and approval of management might reasonably be inferred.
29 Under subtitle : "'Metal Fabricators Local No. 1 Wins Approval of War Labor Board,"
the text caries management's thanks "for their assistance in the negotiations for this
premium. . . .
I
HOOSIER CARDINAL CORPORATION 61
In sharp contrast with its friendly and patronizing attitude toward
the Metal Fabricators and its predecessors in the respondents ' dealing
with these organizations , the respondent Hoosier manifested its hos-
tility to the UE, and sought to induce its employees to reject the UE
at the polls . Between July 8, 1943 , the date of the Board 's Decision
and Direction of Election and August 5, the respondent 's president,
Morton, Jr., addressed three letters to Hoosier employees in which
he expressed his opposition to the UE and appealed to them to continue
their past harmonious relations and thereby , in effect, urged them to
maintain the Metal Fabricators as their bargaining representative.21
The respondent permitted the Metal Fabricators to campaign
against the UE in the plant , in violation of its no-solicitation rule.
Thus, according to the credible testimony of Edward Girvin, he elec-
tioneered against the UE on company time and property for about 3
nights before the election , without objection from the respondent.
Employee Mary M. Curry credibly testified that 2 days before the
election , Edward Girvin introduced himself as a representative of the
Metal Fabricators to a group of women employees during the latter's
working hours and, in the presence of Ed Foltz, the foreman of the
department , told them that if the UE won the election they would
have to work with Negroes , that they would be out on strike most of
the time and would lose time and hold up production . The witness,
who was one of the employees thus addressed by Girvin , replied that
she did not see anything wrong in working with Negroes , that "they
had to work the same as we did." When Girvin had left the depart-
ment, Foltz told Curry : "Well, Mary, if the CIO gets in and the
niggers come to work in here, I want to find the biggest , fattest nigger
I can find and put her to work with you."
During this same period and later, the respondent allowed Dockery,
president of the Metal Fabricators , great latitude in leaving the plant
during working hours and without punching his time card. On at
least some of these occasions , Dockery engaged in election or other
union activities on behalf of the Metal Fabricators . 22 Edward Girvin
testified credibly and without contradiction that, on several occasions
when lie observed Dockery thus absent himself from the plant, he
reported the matter to Labor Relations Director Harrell , but that
Dockery, nevertheless , continued thereafter to leave the plant as he
a^ In the July 14 letter , Morton, Jr ., in effect , described the UE's methods as contrary to
the "harmonious give -and-take, the typically American way, that you have been accustomed
to here at Hoosier," and compared the UE with Nazis, Fascists , and Communists, who
resort to force to achieve their ends . In the August 3 letter , he interpreted the election
as a means whereby the employees would decide whether they want the UE for their
bargaining representative or whether they "want to continue as [they] have been doing."
As previously noted , the Metal Fabricators did not seek a place on the ballot
z' Elvis E. Swan , a field organizer for the UE , testified without contradiction that he
observed Dockery outside the plant several days prior to the election distributing anti-UE
circulars which the Metal Fabricators had issued , and that Dockery told him that he
was not working.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had theretofore. It is clear therefrom that the respondent had knowl-
edge of this practice and approved it.
On election day, during the hours of balloting, Dockery, Tragreser,
Dockery's predecessor in the office of president, James Weikel, a repre-
sentative, and others identified with the Metal Fabricators, absented
themselves from work for a portion or all of their respective work
shifts for the purpose of electioneering against the UE. In streets
adjacent to the polling place and near the plant, they carried placards
or banners opposing the UE and warning that employees would lose
their vacation and bonus payments if the UE won. Throughout the
day, they entered and left the plant at will and, while inside the
plant, moved freely among the employees and engaged them in con-
versation 23
Concluding findings
From the outset of the UE's organizational drive in 1941, the re-
spondents engaged in conduct designed to discourage its employees
from affiliating with the UE. This is manifested, among other things,
in Foreman Doebling's questioning of employee Stone regarding the
meeting at which employees became members of the UE and the iden-
tity of those joining that organization, Doebling's disparagement of
the need for such affiliation , Labor Relations Director Thomas Girvin's
interrogation of employee Hildebrand concerning her attitude toward
the Metal Fabricators, and his offer of a promotion if she joined the
Metal Fabricators. In addition, at a cruicial time in the UE's organi-
zational campaign and after the Metal Fabricators had become firmly
entrenched in the plant, the respondent promulgated an illegal no-
solicitation rule which necessarily impeded the employees in the ex-
ercise of their right to transfer their allegiance from the Metal Fabri-
cators to the UE. That this rule was primarily intended to thwart
only the UE's campaign is apparent from the fact that, despite the
existence of this rule, the respondent permitted, and evidently ap-
proved, the Metal Fabricators' open and continuous solicitation and
electioneering on company time and property. Finally, when the
Board directed that an election be held to afford the respondent
Hoosier's employees an opportunity to express their desires with re-
spect to representation, the respondent Hoosier assumed a partisan
role opposing the UE,24 which it effectively implemented by extending
13 Payne and Swan credibly testified that they observed Dockery, Trageser, and Weikel
entering and leaving the plant at intervals throughout the day. They further testified
that through the 25-foot opening of a roll-up door, they could see these same employees
going from machine to machine inside the plant conversing with the employees who
were at work. Neither Dockery nor Weikel testified. Trageser admitted that he was
absent from work on election day in order to electioneer against the Uli' but testified
that he entered the plant only "about twice" to visit the rest room.
_' We do not find it necessary to pass upon whether the Morton , Jr., pre-election letters
are violative of the Act. We have considered the letters , however, as indicative of the
HOOSIER CARDINAL CORPORATION 63
special privileges to the Metal Fabricators to campaign against the
UE on company time and property, in disregard of its no-solicitation
rule. Moreover, contrary to its normal practice, the respondent
Hoosier at that time conspicuously praised the Metal Fabricators in
its publications.
Accordingly, we find that the respondents, by the foregoing acts,
interfered with, restrained, and coerced their employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act. We find fur-
ther that, in view of the fact that the respondent Hoosier engaged in
unfair labor practices prior to the election of August 5, 1943, the elec-
tion was not an expression of the will of an uncoerced majority of the
employees.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondents, set forth in Section III, above,
occurring in connection with the operations of the respondents de-
scribed in Section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the several States, and
tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THB REMEDY
Having found that the respondents have engaged in certain unfair
labor practices, we shall order the sole surviving corporation, Hoosier
Cardinal, to cease and desist therefrom. We have found that the no-
solicitation rule is violative of the Act insofar as it prohibits union
solicitation on the respondent's property during the employees' non-
working time. We shall, accordingly, order the respondent Hoosier
Cardinal immediately to rescind this rule to this extent.
VI. THE PETITION
Since we have found that the respondent Hoosier has by its unfair
labor practices interfered with the free choice of representatives by
its employees at the election of August 5, 1943, we shall set the election
aside. However, in view of the fact that almost 3 years have elapsed
since the UE filed its petition for representation, we shall dismiss the
petition without prejudice to a determination upon the new petition
which is now pending before the Board 25
Upon the basis of the foregoing findings of fact, and upon the entire
record in the case, the Board makes the following:
respondent Hoosier's opposition to the UE and its desire that the employees reject the
UE at the polls , thereby continuing the Metal Fabricators as their bargaining representa-
tive . See Matter of Ross Gear and Tool Company, 63 N. L. it. B. 1012.
?' The records of the Board disclose that the UE filed a new petition in Case No. 11-R-887
which is now pending.
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. United Electrical, Radio & Machine Workers of America, affili-
ated with the Congress of Industrial Organizations, and Metal Fabri-
cators Local No. 1, Inc., unaffiliated, are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing their employees
in the exercise of the rights guaranteed in Section 7 of the Act, the
respondents have engaged in and are engaging in unfair labor prac-
tices, within the meaning of Section 8 (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2 (6) and (7) of
the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent, Hoosier Cardinal Corporation, Evansville, Indiana, and
its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Interrogating its employees concerning union affiliation, activi-
ties, or sympathies;
(b) Offering inducements to its employees for the purpose of en-
couraging or discouraging membership in any labor organization;
(c) Promulgating a rule which prohibits union solicitation or activ-
ity on company property during the employees' non-working time;
(d) Discriminatorily promulgating or applying a no-solicitation
rule;
(e) Interfering with its employees in the exercise of the rights
guaranteed in Section 7 of the Act to select United Electrical Radio
& Machine Workers of America, CIO, or any other labor organization
as their collective bargaining representative.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Rescind immediately the rule prohibiting union solicitation or
activity on company property, insofar as it applies to the employees'
non-working time;
(b) Post at its plant at Evansville, Indiana, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director for the Eleventh Region, shall,
after being duly signed by the respondent Hoosier Cardinal's repre-
sentative, be posted by the respondent immediately upon receipt
thereof, and maintained by it for sixty (60) consecutive days there-
HOOSIER CARDINAL CORPORATION 65
after, 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 :
(c) Notify the Regional Director for the Eleventh Region (Indi-
anapolis , Indiana ) in writing , within ten (10 ) days from the date of
this Order, what steps the respondent has taken to comply herewith.
AND IT IS HEREBY FURTHER ORDERED that the allegations of the com-
plaint, insofar as they relate to the independent violation of Section
8 (1) of the Act, upon which our Order herein is based, be , and they
hereby are , severed from the remaining allegations of the complaint;
AND IT IS HEREBY FURTHER ORDERED that the record in this proceed-
ing be, and it hereby is, reopened for the purpose of a new hearing
upon the remaining allegations of the complaint;
AND IT Is HEREBY FURTHER ORDERED that this proceeding be referred
to the Regional Director for the Eleventh Region for the purpose of
such new hearing, and that the said Regional Director be, and he
hereby is , authorized to issue notice thereof;
AND IT 1S HEREBY FURTHER ORDERED that the election held on August
5, 1943, among the employees of the respondent Hoosier be, and it
hereby is, set aside , and that the petition in case No. 14-R-611 be, and
it hereby is, dismissed.
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
We will not interrogate our employees concerning union af-
filiation, activities, or sympathies.
We will not offer inducements to our employees for the purpose
of encouraging or discouraging membership in any labor organi-
zation.
We will not promulgate a rule which prohibits union solicita-
tion or activity on company property during our employees'
non-working time.
We hereby rescind the rule prohibiting union solicitation or
activity on plant property insofar as it applies to the employees'
non-working time.
We will not discriminatorily promulgate, invoke, or enforce
a no-solicitation rule.
We will not interfere with the self-organizational rights of our
employees to select United Electrical, Radio & Machine Workers
692148-46-vol 67--6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of America, CIO, or any other labor organization as their col-
lective bargaining representative.
All our employees are free to become or remain members of
the above-named or any other labor organization.
THE HOOSIER CARDINAL CORPORATION,
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.