Rockwell Manufacturing Co.

National Labor Relations Board - Board Decisions

May 23, 1963

142 N.L.R.B. 741 (N.L.R.B. 1963)

ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 741
Rockwell Manufacturing Company , Kearney Division and United
Steelworkers of America , AFL-CIO. Cases Nos. 17-CA-2025-1
and 17-CA-2025-2. May 23, 1963
DECISION AND ORDER
On March 21, 1963, Trial Examiner Eugene F. Frey issued his In-
termediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermedi-
ate Report. Thereafter, the Respondent and the Union filed excep-
tions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Leedom, Fanning, and Brown].
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 In-
termediate Report and the entire record in the case, including the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the modification noted
below.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner, except that paragraph 1(f) and the corresponding
paragraph in the notice to be posted is hereby amended by substitut-
ing the words "In any other manner" for the words "In any like or
related manner".
1 We affirm the Trial Examiner 's rejection of the Respondent ' s offer of proof to the extent
that it attempted to relitigate in this complaint proceeding its objections to the consent
election in Case No. 17-RC-3778 . We also affirm the Trial Examiner 's rejection of the
offer of proof with regard to the newly alleged incident raised for the first time at the
instant complaint hearing. With regard to the alleged incidents which occurred prior to
execution of the consent election agreement , the Respondent argues in its exceptions herein
that the Board should apply the rule of Goodyear Tire and Rubber Company, 138 NLRB
453, to all cases rather than only to petitions filed on or after September 17, 1962. The
petition in the underlying representation case here was filed on February 19, 1962. In
Goodyear the Board established the date of filing a petition as the cutoff date for con-
sideration of conduct as grounds for objections to consent elections. For the reasons set
forth in Ideal Electric and Manufacturing Company, 134 NLRB 1275, 1278 , we decline to
change the effective date of this modification . See also Goodyear Tire and Rubber Com-
pany, supra
2 We find merit in the Union's exception to the Trial Examiner 's refusal to recommend
a broad cease-and -desist order . In our opinion, the various acts of independent violations
of Section 8(a) (1) of the Act evince a general hostility on the part of the Respondent to
the right of employees to engage in legitimate concerted activities for purposes of union
organization or other mutual aid and protection . Accordingly , in order to make the
remedy coextensive with the threat of future unfair labor practices , we shall issue a
broad order enjoining the Respondent from all forms of unlawful interference with rights
guaranteed employees by Section 7 of the Act . See May Department Stores Co . v. N L R B.,
326 U.S. 376.
142 NLRB No. 86.
742 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
INTERMEDIATE REPORT
STATEMENT OF THE CASE
The issues in this case are whether Respondent, Rockwell Manufacturing Com-
pany, (1) coerced its employees by interrogation, threats of reprisal for union
activities, promises of benefits to abstain from such activities, and other types of
conduct, in violation of Section 8(a)(1) of the National Labor Relations Act, as
amended, 29 U.S.C. Sec. 151, et seq (herein called the Act), and (2) failed and
refused in good faith to bargain with United Steelworkers of America, AFL-CIO
(herein called the Union) after Board certification of that Union as the exclusive
bargaining representatives of employees of Respondent in an appropriate unit de-
scribed below, in violation of Section 8(a)(5) of the Act. The issues arise on a
consolidated complaint, issued September 28, 1962, and amended at the hearing,'
and an answer of Respondent admitting jurisdiction and certain facts relating to
another Board proceeding but denying commission of any unfair labor practices.
A hearing on the issues was held before Trial Examiner Eugene F. Frey at
Kearney, Nebraska, on November 27 and 28, 1962, in which all parties were repre-
sented and participated through counsel. A motion of General Counsel to dismiss
a part of Respondent's answer, filed before the hearing, was denied by the Trial
Examiner. All parties waived oral argument but General Counsel and Respondent
have filed written briefs with the Trial Examiner. After the hearing ended, the
parties filed a stipulation for correction of the transcript in certain respects. The
stipulation is hereby marked in evidence as General Counsel's Exhibit No. 8, and
the transcript is hereby corrected accordingly.
Upon the entire record in the case, and from my observation of the witnesses on
the stand, I make the following:
FINDINGS OF FACT
1. THE COMMERCE FACTS
Respondent is a Pennsylvania corporation with its principal office located in
Pittsburgh, Pennsylvania. It maintains various places of business in other locations
throughout the United States, including a plant at Kearney, Nebraska, where Respond-
ent makes valves. Respondent has a direct annual inflow to that plant of raw mate-
rials valued in excess of $50,000 and a direct annual outflow of finished products
therefrom valued in excess of $50,000. On these facts I find that Respondent is
engaged in commerce within the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES 2
A. The union campaign and the election
In February 1962, the Union began an organizing campaign at the Kearney plant.
On February 19, 1962, it filed a petition with the Board in Case No. 17-RC-3778
seeking certification as bargaining agent for employees at the plant. On March 6,
Respondent and the Union stipulated to a consent election, which was held on
March 21, 1962, in an agreed bargaining unit consisting of:
All production and maintenance employees at Respondent's plant in Kearney,
Nebraska, including leadmen, factory clerks, boiler attendants, and hourly rated
inspectors, but excluding office clerical employees, draftsman trainees, professional
employees, guards, watchmen, and all supervisors as defined in the Act. The parties
agree, and I find, that this unit is appropriate for purposes of collective bargaining
within the meaning of Section 9(b) of the Act.
In the election 50 out of 100 eligible voters voted for the Union, 49 voted against
it, and I ballot was void Respondent filed timely objections to conduct affecting
the results of the election. On May 25, 1962, the Regional Director for the Seven-
teenth Region issued a report on the objections, recommending that they be overruled
and that the Union be certified as the bargaining agent. After Respondent excepted
I The complaint Issued after Board investigation of charges filed by the Union on
August 15, 1962.
2 Except where otherwise noted, the facts herein are based on stipulated and docu-
mentary evidence, and credited testimony of witnesses.
ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 743
to that report, the Board on August 2, 1962, issued its Decision certifying the Union
as such representative of employees in the unit aforesaid.
On August 6, 1962, Respondent posted the following bulletin in the plant to the
,employees:
This morning we received a notice from the National Labor Relations Board
.indicating that a three-man panel of the Board has denied Rockwell a hearing
on the matter of threats, intimidation, and coercion, which the Company had
brought before the Board.
This decision offers no other recourse to the Company in its efforts to protect
the interests of its employees except to force this matter into the Federal Courts,
which we will do by refusing to accept the Board's decision. The Company
feels that all parties have been denied due process of law by the Board's refusal
to hold a hearing where a question of intimidation and coercion is involved.
For the present there will be no bargaining meetings with the union until
such a time as this question is finally resolved. We will keep you informed
of further developments as they occur.
On August 9, the Union sent Respondent a letter citing its certification by the
Board and requesting meetings starting August 20 to negotiate a contract. Re-
spondent replied by letter of August 13, declining to meet with the Union in these
terms:
After reviewing the entire sequence of events, culminating with the Na-
tional Board's decision of August 2, 1962, we are of the opinion that all par-
ties in this action have been denied due process of law because of the Board's
failure to grant our request for a hearing.
Accordingly, we have decided to take whatever steps that are necessary to
insure that we are heard in order that the charges of intimidation and coercion
attributed to the union may be fully resolved.
Until such a time as these matters are processed by a court of proper juris-
diction, we must decline to meet with you for the purpose of bargaining.
Since that date Respondent has refused to meet and bargain with the Union. On
November 19, 1962, Respondent gave its employees in said unit a wage raise, an
additional paid holiday, and certain other increased medical benefits, all without
prior notice to or consultation with the Union.
B. Alleged coercive conduct by Respondent
The following employees of Respondent are admittedly supervisors and agents
of Respondent within the meaning of the Act: Forrest Arrowsmith, foreman, body
department; James W. Fowler, foreman of grinding and fitting department; Wil-
liam Kaufman, foreman of toolroom and tool service; Arthur E. Morrison, foreman
of heat treatment department; Ed Schmidt, foreman of maintenance employees;
Henry E. Schlattman, foreman in toolroom; Derrill Reiter, foreman in assembly
department; Hugo H. Becker, industrial relations manager; Robert L. Kurz, fore-
man of lathe department; and Fred Langtree, assistant plant manager.
About a week before the election, Foreman Arrowsmith told employee William
Geisler that Plant Superintendent Walter Olson "would not appreciate" Geisler's
voting for or backing the Union? On election day, Geisler checked out of the
plant about 4 p.m , and walked with employee Jerry Brandorff to a car in the plant
parking lot where he talked with Earl M. Graham, a union representative. The
next day Arrowsmith asked Geisler, "What have you got to do with Graham?"
Geisler replied, "Why?" Arrowsmith said, "You were reported talking to him."
Geisler said he had been with him at a local hotel. Arrowsmith said, "No, out
in the parking lot." Geisler replied that he had already punched out of the plant,
and was outside the plant, on his own time. At an unidentified date, while
Brandorff was helping Geisler in his work, either Olson or Arrowsmith suggested
to Geisler that he have one Albert Waddell help him, rather than Brandorff, be-
cause the latter was "considered a bad influence." Brandorff had been an active
worker for the Union during the campaign, while Waddell had been active against
it, and Geisler had accompanied Waddell to an antiunion meeting a week or so
before the election?
3 Olson had hired Geisler.
4 These findings are based on credited testimony of Geisler, as against categorical denials
of Arrowsmith who did not testify as to any details of these or other talks with Geisler,
but admitted having talks about the Union with other employees. Olson did not testify.
744 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About 2 weeks before the election, Foreman Fowler had two half-hour discussions
with employee Bernard Domandle on the same day at his workplace in the presence
of another worker.5 In these talks Fowler mentioned the Union's demands for
high incentive guarantees in its contract negotiations at the Atchison, Kansas, plant
of Respondent, expressed the view that he did not believe a "third party" could
settle differences between Respondent and the employees, also mentioned that he
had a relative in the East who wanted to get out of a union but could not, and ex-
pressed the view that "once you are in, you cannot get out of a union," and also
stated that if the Union got into the plant, Respondent would move out rather
than pay union wages. In the same period, Foreman Schlattman, former supervi-
sor of Domandle, talked to Domandle about the contract the Union was trying
to get at Respondent's Atchison, Kansas, plant, said that the provision for a
130-percent guarantee on incentive pay in it was ridiculous, and that if the Union
got into this plant, Respondent would move out 6
About 3 weeks before election, employee William Proett was approached several
times while at work by Morrison, foreman in another department. Morrison asked
Proett how he felt about the Union. Proett replied that he was "all for it." Mor-
rison talked against the Union, saying that if Proett "would be more for the Com-
pany and not for the Union, the Company could do more for me than the Union
could." In answer to a question of Proett about the rumor that the Respondent
would move if the Union got into the plant, Morrison said Respondent could close
it up and move out the machinery "if they want to," just as it brought machinery
in. He also said that if the Union did not get in, "things would get better with
the Company before they would get worse," citing the raises which Respondent
gave employees periodically. Morrison also said the Company could stop incen-
tive pay for the workers if it wanted to, as well as regular raises, because that was
just an extra benefit?
Several weeks before the election, employee Ray Bosse was approached several
times while at work by his foreman, Kaufman, who talked to him about the Union,
showed him newspaper clippings concerning strikes and attendant violence at other
plants and other companies, and once or twice said he did not want to see Bosse
"get hurt." Once shortly before the election Foreman Arrowsmith walked up to
Bosse and said, "We don't want a union in this place," Bosse said nothing, and then
Arrowsmith walked away .8
In the month before the election Foreman Kaufman had three or four talks with
employee Carrell C. Ritter about the Union, in which he asked him what he thought
of the strikes and violence shown by the newspaper clippings distributed among
the employees. Kaufman asked him several times how he felt about the Union. and
Ritter replied each time that he had not decided exactly how he felt or how he would
vote in the election Kaufman stated his opinion that he did not think it would be
the best thing to have a union in the plant.9
On a few occasions about 2 weeks before the election, Foreman Fowler asked
employee Gilberto Antillon and several other workers at mealtimes what they
thought about the Union. Gilberto said he was against it. Fowler made no com-
ment and there was apparently no other discussion on the subject.10
5 Fowler had formerly been Domandle's supervisor ; Kurz was his supervisor at the time
of the talks.
"These facts are found on credited testimony of Dmnandle and Loren Butterfield, as
against categorical denials of Fowler who admitted the talks but did not give his version
of these half-hour talks, although Domandle frankly admitted there was much more talk
about unions which he could not remember. Schlattman admitted the talk with Domandle,
and that they discussed unions, but I do not credit his categorical denial of the remark
about the Company moving out, because he did not try to give his own version of the
full talk
7 These discussions are found from credited testimony of Proett and Butterfield, as cor-
roborated in part by admissions of Morrison. Categorical denials and other testimony of
Morrison in conflict therewith is not credited, as he did not give his own version of the
full discussions.
8 These facts are based on credited testimony of Bosse and admissions of Kaufman I do
not credit testimony of Kaufman and Arrowsmith in conflict therewith
BThese facts are based on credited testimony of Ritter and admissions of Kaufman.
Testimony of the latter in conflict therewith is not credited
11 These facts are based on credited testimony of Antiion Categorical denials of
Fowler are not credited, as he did not try to give his version of such discussions, although
he admitted having discussions about the Union with various other employees.
ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 745
About a week before the election, Foreman Morrison approached employee
Gerald Cords and asked him what he thought of the Union, and what he thought
it would do for Cords. Cords replied that he favored the Union. Morrison said,
"Mark my words, you won't be getting one more thing a year from now than you
are right now, if the Union gets in," commenting that he thought the plant wages
were about right because this was a low-wage area. Cords disagreed, saying wages
were not enough compared to those paid to skilled labor in Omaha and Denver, as
he had investigated wages in Denver. Morrison replied that he should quit and move
to Omaha or Denver, that a person should seek employment where it was best for
him. He then said he would have to talk to Cords a little more on that subject.
There is no proof that he did."
About a week or so before the election, Foreman Kaufman had a long talk with
employee Lyle E. Schnacker about the Union, in which he laid out some antiunion
literature for Schnacker to read. Kaufman said business at the plant was poor, and
that if the Union came into the plant and wages were raised, "about the only thing
they could do to make up the difference would be to lay off some employees" and
get more work out of those men kept on, and "there was going to be a lot of
fellows hurt" and "even some of the foremen may get hurt because they would just
have to cut down all the way around," and "we did not want anything like that."
A few days later, Kaufman approached Schnacker and asked if he had "decided
anything," to which Schnacker replied, no, he had not decided which way he would
vote. They talked about plant wages, Schnacker contending his present hourly rate
of $1.84 was too low to give a man with a family a decent living, and Kaufman
arguing that Respondent could not pay more, that the Union could not get more
for the workers, with business poor as it was. Kaufman mentioned Schnacker's
recent transfer to lathe work for which he was in training, and that he had no ex-
perience at that, and asked what he would do if he lost his job. Schnacker men-
tioned his brother was making more than he in Denver doing less skilled work.
Kaufman suggested he ought to be working there. Schnacker argued he should be
able to make a decent wage working with Respondent, as he liked his work there.
He commented that he did not know what wages he would get in the new lathe job
and Kaufman said he would find out and Schnacker would be notified. That after-
noon Schnacker was called to a conference with Industrial Relations Manager
Becker and Robert L. Kurz, his new foreman. They told him about his new
assignment, said he would be raised to $1.92 an hour if his work was satisfactory,
his next raise would be to $2, and that he would be interviewed in a month to let
him know about his progress. Becker reveiwed Schnacker's raises and work per-
formance over the past 4 years and indicated that he was a good, steady worker
who would probably be kept on the job longer than Becker himself. Becker said he
could get raises and "go places without an outsider being in the plant," to which
Schnacker said that if he was referring to the Union, he had not decided which way
he would vote. He and Becker then discussed the Union along the same lines that
Schnacker and Kaufman had had previously. Kurz commented that the only thing
a union had done for him in the past was to take him out on strike twice in 4 or 5
years. At the close of the talk, Becker said that when Schnacker went in to vote, he
should "remember where you got your living over the last 4 years; although it might
not have been the best, that is where you got your living," and that the Company
could do more for him than the Union. Schnacker replied that he had not decided
how to vote, but would vote the way he thought would be in the best interests of
himself and his family.12
A few days later, Fowler approached Schnacker while at work, and asked in what
way he was dissatisfied with his work, saying he was wondering about it, because
from the way he "had gone against the Company," it seemed that he was dissatisfied.
Schnacker said he was satisfied with his work, but not with his pay. Fowler ex-
plained that Respondent was not making any money. Schnacker said that the em-
ployees only knew what they were told, but had no real knowledge about that.
Fowler discussed the amount of income tax Respondent had paid, and said that even
though other plants might be profitable, the Kearney plant was an individual plant
and could not pay more wages if it was not making money. They argued about this
with some force. In the discussion, Schnacker said that "If I had to not belong to a
n These facts are based on credited testimony of Cords and admissions of Morrison as
to some parts of the discussion . Other testimony of Morrison in conflict therewith is
not credited.
' These findings are based on credited testimony of Sehnacker, as corroborated in part
by admissions of Kaufman and Becker Testimony of Kaufman, Kurz, and Becker in con-
flict therewith is not credited.
746 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union to work here, the Company knows what they can do about it." Fowler said,
"I am sure that anybody I want to get rid of that's in my department I can do it."
Schnacker replied, "If I have to give up my rights to work here, you go ahead and
get rid of me," that Schnacker had a right to belong to a union, and he did not hold
anything against a man who did not belong, but he would not give up his right in
order to work there for the amount of pay he was getting. Their argument on
this was earnest but friendly. At the close, Fowler said he would take Schnacker
fishing and talk more to him about it. As the hour-long discussion had taken
Schnacker beyond his setup time,13 he asked Fowler how his setup time would be
handled. Fowler punched Schnacker's card for his regular setup time, and gave him
another hour for "gasket" (or trouble) time, and told him not to worry about it.
In another discussion with Fowler about union meetings, Schnacker told Fowler
he did not like nonunion men coming up and spying on workers when they went
to union meetings. Fowler commented that nonunion people probably wanted to
know what was going on.14
About the middle of June, Schnacker asked Kurz when he would get a raise,
reminding Kurz that he had not been interviewed about it. After visiting the
office, Kurz said Schnacker was not due for a raise until he had been on the new
job 6 months, at which time he would go to $1.92 an hour, and his next raise would
be to $2, 6 months after that. On September 17, 1962 (just 6 months after
Schnacker began work on the lathe), Kurz and Becker notified him that he was
getting the raise to $1 92 an hour. Kurz remarked then that "if me and my buddies
laid off, we might be able to get some merit raises, too." 15
In the 2 weeks just before the election, Foreman Arrowsmith had several talks
with employee Carl Rasmussen about the Union. In one, occurring at a time when
it appeared that Rasmussen was running out of work on his particular job, Arrow-
smith commented that if a union was in the plant, when Rasmussen ran out of work,
he would be sent home rather than be transferred to another machine, because some
of the other machines were "lower-paid" machines. Rasmussen asked how Respond-
ent would handle overtime work for him and other employees who lived out of town
and rode to and from work together. Arrowsmith replied that if there was no union
in the plant, in instances where one of the four had to work overtime, he would talk
to the foremen of the other three men and try to arrange to have them work over-
time also, so that the four could ride home together, but if the plant went union, and
some of them worked overtime, he would not make this request of the other foremen,
that "they" could not be concerned about how the four got home 16
About 3 weeks before the election, Foreman Kaufman told employee Errol D.
Phillips that the Union had not helped employees at the Atchison plant, as they bad
not received raises for quite awhile since that plant was unionized. He asked
Phillips if he had signed a union card, and Phillips said he had On another
occasion, Kaufman told Phillips that employee Waddell had some information and
asked Phillips to talk to him Phillips talked to Waddell for about a half hour on
company time. Waddell, who was antiunion, explained he had sought advice from
a lawyer who said that if an employee signed a union card, the Union could take
dues from him, whether the Union got into the plant or not, and mentioned that
Phillips could probably get his card back from the Union if he wanted to.17
13 When doing certain types of "setup" or repair work, employees had special cards
punched showing their work on such jobs
11 These facts are based on credited testimony of Schnacker, as corroborated in part by
admissions of Fowler Testimony of either witness in conflict therewith is not credited
15 These facts are found on credited testimony of Schnacker and admissions of Becker
and Kurz. Testimony of Becker and Kurz categorically denying the last remark attributed
to Kurz is not credited, in view of their prior remarks indicating their antiunion attitude
and that Respondent could do more for Schnacker than the Union
"These facts are based on credited testimony of Rasmussen and admissions of Arrow-
smith. Testimony of the latter at variance therewith is not credited, because lie limited
himself for the most part to categorical denials of statements attributed to him by
Rasmussen, without credible explanation of the discussions, and in one instance where he
gives an otherwise credible explanation for his remarks (about lack of transfer to lower
paid work if the Union was in the plant), he does not say he gave this explanation to
Rasmussen , although it was based on his own experience in other plants
17 These facts are based on credited testimony of Phillips Kaufman does not deny the
initial conversation, but only that he interrogated Phillips As to the second, I do not
credit his denial of the request that Phillips see Waddell, as he admitted he knew Waddell
had some papers prepared whereby employees could ask the Union to return their signed
cards, and that he allowed another employee to talk to Waddell about that on company
time Hence, I consider it more likely than not that he suggested Phillips talk to Waddell
ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 747
About a week or so before the election, Foreman Fowler had a talk with employee
Gerald O. Brandorff while he worked at his machine . la Fowler asked how Brandorff
and the Union were getting along, and Brandorff replied, "Pretty good." 19 Fowler
asked what he expected to gain by having a union in the plant. Brandorff replied
the men would like to have some of the benefits given in other Rockwell plants,
although they did not expect to get the same wages or all the benefits of other plants.
Fowler asked , "What will you do if the Company will not go along with you9" to
which Brandorff replied the men would probably go out on strike or do whatever
they could to close down production . Fowler then told him about another plant
involved in an unsuccessful organizing campaign which involved violence , and also
spoke of other companies moving their plants overseas to make their products more
cheaply, and said that Rockwell could do the same thing if "they wanted to."
Fowler also asked what "we" would do if Respondent would not bargain with "us."
Brandorff 's reply does not appear . This talk took almost a half hour, during which
Brandorff had to shut down his machine . Brandorff marked his timecard for that
period "Talking with Fowler." 20
Within the month before the election , Foreman Kaufman had several talks of
varying lengths with employee Alfred Peskey, in which he gave antiunion arguments,
while Peskey presented prounion views. On occasion , he asked Peskey what benefits
he could get if he voted the Union into the plant. Peskey replied that the men could
get more money and security . Kaufman disagreed . In addition to his regular
work, Peskey had hauled mail for Respondent between the post office and the plant
for about 31/2 years , using his own vehicle and receiving a half-hour overtime pay
per day for it. About March 16, 1962, Assistant Plant Manager Langtree terminated
this assignment , telling Peskey that his work was satisfactory , but the Respondent
had made different arrangements . Shortly after , Foreman Kaufman asked Peskey
about the termination and, after Peskey told him Langtree had taken the mail job
away from him and given it to one Bud Dishman , told Peskey "to be careful and
not get hurt any more." 21
I conclude and find that Respondent coerced and restrained employees in viola-
tion of Section 8 (a) (1) of the Act by the following conduct of its supervisors, all
of which occurred within a period of about 4 weeks before the election:
(1) Arrowsmith 's query of Geisler as to what he "had to do with Graham,"
the union agent, after receiving a report that Geisler had talked to Graham in
the parking lot.22
(2) Morrison 's query of Proett as to how he felt about the Union ; his implied
promises of benefit to Proett in the remarks that the "Company could do more for"
Proett if he went against the Union, and that if the Union did not get in , "things
would get better with the Company ," citing the continuance of regular raises; and
his implied threat that if the Union got in , Respondent could close the plant and
move out machinery , just as it had opened the plant and moved machinery in, and
that it could stop incentive pay as well as regular raises.23
(3) Kaufman 's query of Ritter as to how he felt about the Union 24
18 Brandorff was a lathe operator working under Foreman Arrowsmith, while Fowler
was a foreman of the grinding department
10 Brandorff had been at the plant about 5 years 3 months , in which time he had been
an active employee leader for the Union in the present campaign, as well as in two previ-
ous campaigns in the past 4 years, and Respondent was well aware of it
20 These facts are found on credited testimony of Brandorff I do not credit Fowler's
categorical denials of the statements attributed to him by Brandorff because, while he
admitted having the discussion , he was vague about the details and did not state his own
version of what was said
a These facts are based on credited testimony of Peskey , Kaufman, and Becker Testi-
mony of Kaufman and Becker at variance therewith is not credited
221 find no violation in the foreman 's remark that Olson, who hired Geisler, would not
appreciate his voting for the Union, for it is an equivocal statement , containing neither
direct nor implied threat of reprisal , indicating at most an opinion that Olson might dis-
like the employee voting for the Union
22 While Arrowsmith ' s threats about closing up came in response to a question from
Proett about a prevalent rumor that the plant might close if the Union won, and the
foreman used the word "could ," not "would ," I think his remarks in their context still
conveyed the idea that Respondent had the power to close up, as a reprisal , which I
consider here as coercive as a direct threat that they "would " close it
24I find no violation in the foreman ' s query as to what Ritter thought about strikes
with violence shown in news clippings , or in his opinion that a union would not be best
for the plant.
748 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Fowler's queries of Antillon and others as to what they thought about the
Union; Morrison's similar inquiry of Cords; Kaufman's inquiry of Phillips about
signing a union card ; Fowler's questions to Brandorff as to his relations with the
Union, what he expected to gain from a union in the plant, what the men would
do if the Company did not give them the benefits they asked, or refused to bar-
gain with them; Kaufman's queries of Peskey as to the benefits he expected from a
union , and his query of Schnacker whether he had "decided anything" during a
talk about the consequences of unionization of the plant.
(5) Fowler's statement to Domandle that if the Union got into the plant, Re-
spondent would move out rather than pay union wages, and his thinly veiled threat
of reprisal contained in the remark to Schnacker that he could get rid of anyone
in his department that he wanted to, during a lengthy discussion in which Schnacker
complained about low plant wages and commented that he would not want to work
there if he had to be nonunion.
(6) Arrowsmith's implied promise of benefit to Rasmussen in the remark that,
with no union in the plant, he would use his influence with other foremen to
procure overtime work for a group of workers riding together so they could go
home together, his threat that he would not make that effort for them if the plant
went union, and his statement that if a union got into he plant, employees would
be sent home, rather than transferred to lower paid work, as at present Z5
(7) Fowler's comment to Brandorff during illegal interrogation of him found
above, that some concerns moved their plants overseas to get cheaper production,
and Respondent could do the same thing, which was in answer to Brandorff's com-
ment that the workers would probably strike and close the plant if the Company
did not grant their demands. This conveyed the idea of possible employer reprisal
for a strike.
Considering the number and variety of the above instances of coercive conduct,
that they occurred in a short period before the election, and that many of them
were made by supervisors to employees not directly supervised by them, so that
the supervisors involved clearly went out of their way to talk at length to such
employees as well as those in their own departments, I cannot agree with Respond-
ent's claim that these were casual, spur-of-the-moment, or isolated instances. Cf.
P-M Garages, Inc., 139 NLRB 987, and J. Weingarten, Inc., 141 NLRB 22. And
since Respondent had agreed to use Board processes to ascertain employees' de-
sires about union affiliation, by its consent to a Board election, it cannot be said
that the above interrogations arose from a sincere desire to learn whether Respond-
ent should deal with the Union.
I find no violation of the Act in the following conduct:
(1) The facts that foremen passed out antiunion literature among employees, or
made it available for them to read, during working hours, and suggested that some
of them read it, and that Foreman Kaufman suggested that employees Gary Hender-
son and Errol D. Phillips talk during working hours to an antiunion employee in
another room, where the latter tried to persuade both employees to withdraw their
union cards. Some employees followed the suggestions to read the literature, but
others did not; at least one of the latter later decided to read it of his own volition.
Many employees asked their supervisors questions about the literature There is
no proof that supervisors made the suggestions to read the liaterature in terms or
circumstances implying that they were orders which would be enforced. The record
also shows that when Kaufman suggested that Henderson see Waddell, he also
reminded Henderson that "there would not be any difference, everything would be
the same, whether you are for or against the Union"; and one other employee asked
Kaufman for permission to talk to Waddell, which was given. There is no clear
proof that the employees considered the suggestion to see Waddell an order. In
addition, the record shows that Respondent freely permitted employees to talk in
the plant both for and against the Union during working hours. I shall recommend
that paragraph IV(b) (12) of the complaint be dismissed.
(2) The single suggestion of Arrowsmith or Olson to Geisler that he have an
antiunion worker, rather than the prounion Brandorff, help him in his work be-
cause Brandorff was "considered a bad influence." There is no proof that Geisler
followed the suggestion on that occasion, or thereafter, or that Respondents fol-
lowed it up with similar suggestions or discipline for failure to comply. Hence,
I do not consider this substantial proof of a continued plan or attempt by Respond-
29 Arrowsmith testified that the last remark was occasioned by his experience or knowl-
edge of the usual union policy in organized plants which discouraged transfer of workers
out of their job classification to lower paid work ; however, he does not testify that he told
this to Rasmussen.
ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 749
ent to isolate employees from known union adherents. I shall recommend that
paragraph IV(b) (13) of the complaint be dismissed.
(3) Kaufman's warning to Peskey "to be careful and not get hurt any more,"
after Peskey, a known union adherent, told him that Respondent had taken his
longtime extra-pay mail delivery duties away from him. In prior talks with
Peskey, Kaufman had repeatedly told him the same thing. The earlier remarks have
no context which would warrant my finding they were coercive warnings, and Peskey
admits he did not know what Kaufman meant by them. The complaint makes no
charge that the last remark was coercive, and General Counsel at the hearing
offered it merely to show the "background and actions of the Company prior to
the election." While the remark and action that occasioned it are suspicious,
suspicion is not proof. Further, there is no claim that the actual deprivation of the
extra-pay job just before the election was discriminatory; to the contrary, the
credible and uncontradicted evidence of Becker shows that the transfer of that
work to supervisors was for economic reasons.
(4) Remarks by Fowler, Schlattman, and other supervisors that if the Union
got into the plant and demanded very high wages or incentives , Respondent could
not pay them and would move out, which denoted possible economic consequence
of unionization rather than threats of deliberate reprisal ; Kaufman 's statement to
Bosse, after showing him a news item about strike violence, that he did not want to
see him "get hurt"; Arrowsmith 's bare statement once that "we don 't want a union
in this place"; Kaufman 's general query of Ritter about what he thought of the strikes
and violence shown in news items; Morrison 's opinion to Cords that unionization
would not get him higher wages because the plant was paying wages commensurate
with the low-wage area in which it was located, and that perhaps Cords might move
to another location where he knew wages were higher ; Kaufman 's predictions to
Schnacker that if the Union forced wages up , Respondent might have to lay off em-
ployees, including foremen, to compensate for the increased cost , and that the Union
could not force Respondent to pay more if business was bad; Becker's reminder to
Schnacker that, in voting, he should consider where he got his living, and that the
Employer could do more for him than an outsider, like the Union.
(5) Arrowsmith's remark to employee Orville Solomon once after the election
that "I cannot and will not say that the plant will close its doors, but I was with a
plant that did move." While this was said in a discussion about the Union, the
details of that discussion which led up to this remark are not given by Solomon,
hence the quoted statement is equivocal and not clearly calculated to convey the
idea that Respondent would move its plant if the Union won the election, especially
where the record shows that in various other talks with employees noted above
supervisors legitimately pointed out some of the possible economic consequences of
unionization of plants, such as layoffs. In addition, Solomon admits he did not
consider Arrowsmith's remark threatening.
(6) Kurz's remark to Schnacker, when the latter got notice of a periodic raise,
that "if me and my buddies laid off, we might be able to get merit raises, too."
There was no apparent mention of the Union in this talk several months after the
election, and its equivocal nature is not sufficiently clarified by mere reference back
to Schnacker's earlier talks with supervisors about his dissatisfaction with wages,
and his chances of getting raises, to warrant the conclusion that the remark was
reasonably calculated to warn Schnacker that merit raises were being or would be
withheld from him and other union adherents because of the outcome of the election,
or their past union activity; there is no clear proof that at the time of this talk there
was any definite prounion activity in the plant.
C. The refusal to bargain
Respondent admits that it deliberately refused to bargain with the Union, as the
certified bargaining representative of employees in the appropriate unit found above,
because that refusal was the only way it could secure a review of the validity of
certification of the Union in Case No. 17-RC-3778. It claims that the Regional
Director and the Board in that case denied it the right to adduce evidence at a formal
hearing to prove instances of preelection conduct by union adherents which were
submitted to the Board under Respondent's objections to conduct affecting the results
of the election. These instances (plus one other added at the hearing by amendment
to the answer) were summarized as affirmative defenses in Respondent's answer
herein, and Respondent made an offer of proof thereof as part of its case, which I
denied, while permitting the offer to be spread on the record for later review. Re-
spondent also admits that its unilateral grant of wage raises and other benefits to
employees after the election are premised upon the claimed invalidity of the certi-
750 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
fication. Respondent argues that under Supreme Court and other judicial decisions
it cannot be held guilty of an illegal refusal to bargain where it does so for the sole
purpose of securing a review of alleged error of the Board and its agents in the rep-
resentation proceedings. 26 It also contends that it must be afforded the right, either
in the representation case or here, to prove that the Union, as the winning party
in the election, committed unfair labor practices prior to and in connection with the
election,27 and that the Regional Director, by his refusal to grant Respondent a formal
hearing on this issue, acted in an arbitrary and capricious manner and committed
error which invalidates the certification. These charges raise questions of the proper
or improper use of Board process in the representation case, and of how and when
the Board should examine charges of misconduct in connection with an election,
which might also involve violations of rights of employees guaranteed by Section 7
of the Act and which might be actionable under either Section 8(a)(1) or
8(b) (1) (A).
The instances of preelection conduct which Respondent offered to prove were
presented to the Regional Director (with the exception of an alleged threat made by
two union adherents 2 weeks before the election to another worker, that he would
be laid off if the Union won the election and he had not signed a union authorization
'card) in its objections to the election, and were rejected by both that official and
the Board.
I am constrained to find Respondent's defense without ment for the following
reasons:
(1) The instance of alleged threat affecting the election raised for the first time
at this hearing by amendment of the answer comes too late. It should have been
raised in the objections to the election. (See Board's Rules and Regulations, Sec.
102.69.) Failing that, the Board is not required to consider it in this proceeding
in the absence of a showing that it is newly discovered evidence or was not in
Respondent's possession prior to the certification. See N.L.R.B. V. Deutsch Com-
pany, 265 F. 2d 473, 478 (C.A. 9); National Carbon Company, 110 NLRB 2184,
2185. There is no such claim or showing here.
(2) As the other instances of alleged misconduct were considered by the Regional
Director and the Board in the representation case, Respondent is now attempting to
have the Board pass on them for the second time, but at a formal judicial hearing.
The Board has held in similar circumstances that, in the interest of finality of ad-
judication, it would not do this in a later unfair labor practice case. O.K. Van and
Storage, Inc, 127 NLRB 1537, 1539; The Mountain States Telephone and Telegraph
Company, 136 NLRB 1612.
The Board has also held that a party to a representation proceeding is not en-
titled as a matter of right to a hearing on objections to an election, or on excep-
tions to a Regional Director's report on objections. J. R Simplot Company, 138
NLRB 172. Hence, it is not within my province in this proceeding to pass judgment
on the Board's failure or refusal to grant a formal hearing in the representation case.
That is for the Board to decide in the first instance, subject to possible review in the
courts.
I therefore conclude and find that Respondent's failure and refusal to bargain
with the Union for the technical reasons aforesaid was an unfair labor practice within
the meaning of Section 8(a)(5) and (1) of the Act, and that its later unilateral grant
of wage raises and other benefits was also a refusal to bargain in violation of the
same section. By such refusal to bargain Respondent has also interfered with,
restrained, and coerced employees in the exercise of rights guaranteed by Section 7
of the Act, in violation of Section 8(a) (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section III, above, occurring in connection
with Respondent's operations 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 Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(1) and (5) of the Act, I shall recommend that it be ordered
20 Respondent cites Pittsburgh Plate Class Company v. N L R.B., 313 U.S 146, and Olson
Ruq Company v. N L.R B., 260 F. 2d 255 (C A 7)
27 Citing N L R B. v. Lord Baltimore Press, Inc , 300 F. 2d 671 (C.A. 4), and other cases
noted in that decision
ROCKWELL MANUFACTURING CO., KEARNEY DIVISION 751
to cease and desist therefrom and, upon request, bargain collectively with the Union
as the exclusive representative of all employees in the appropriate unit found above
and, if an understanding is reached , embody such understanding in a signed agree-
ment. The violation of Section 8(a) (5) is admittedly a technical violation designed
to procure a review of the representation proceeding . The violations of Section
8(a) (1) do not in my opinion have the scope or intensity which would denote a
fundamental antipathy to the basic principles of the Act Hence, I shall recom-
mend that the remedial order be limited to a prohibition of like or related conduct.28
Upon the basis of the foregoing findings of fact and the entire record in this case,
I make the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2(5) of the
Act
2. All production and maintenance employees at Respondent's plant in Kearney,
Nebraska , including leadmen, factory clerks, boiler attendants , and hourly rated
inspectors , but excluding office clerical employees, draftsman trainees , professional
employees , guards, watchmen , and all supervisors as defined in the Act , constitute a
unit appropriate for purposes of collective bargaining within the meaning of Section
9(b) of the Act
3. Since its certification on August 2, 1962, the Union has been and now is the
exclusive representative of all employees in the unit aforesaid for purposes of
collective bargaining within the meaning of Section 9 (a) of the Act.
4. By refusing since August 13, 1962, to meet with the Union for purposes of
collective bargaining , and by granting unilateral wage rates and other benefits in said
unit on November 19, 1962, Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 ( a)(5) of the Act.
5. By the above conduct, and by interrogation of employees , and various threats
of reprisal and promises of benefits to them as found above, Respondent has inter-
fered with , restrained , and coerced employees in the exercise of rights guaranteed
to them by section 7 of the Act , thereby engaging in unfair labor practices within
the meaning of Section 8 (a) (1) of the Act.
6. The above unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 ( 6) and ( 7) of the Act.
7 Except as found above , Respondent has not engaged in unfair labor practices
as charged in paragraph IV(b)(6 ), (7), (12), and ( 13), and other portions of the
complaint.
RECOMMENDED ORDER
On the basis of the above findings of fact, conclusions of law, and the entire record
in the case , I recommend that Respondent, Rockwell Manufacturing Company,
Kearney Division , its officers , agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Refusing to recognize or bargain collectively with the Union as the exclusive
representative of all employees in the above -named appropriate unit , by granting
unilateral wage raises or other benefits to employees, or otherwise.
(b) In any manner interfering with the efforts of said Union to bargain collectively
with Respondent on behalf of employees in the unit aforesaid.
(c) Interrogating employees concerning their union membership , sympathies,
activities , and voting desires, in a manner constituting interference , restraint, or
coercion in violation of Section 8(a) (1) of the Act.
(d) Threatening employees with reprisals such as closing of its plant , removal
of machinery , denial of wage raises or other benefits , discharge , or less favorable
working conditions , if the Union came into its plant.
28 See May Department Stores Co . v. N.L R B., 326 U.S 376 , and J Weingarten, Inc,
141 NLRB 22 . General Counsel and the Union argue that a broad order should issue be-
cause Respondent was involved in a prior unfair labor practice proceeding at this plant,
which was settled by stipulation providing for a Board order and consent decree The
formal file in the case is not readily available to the Trial Examiner and, lacking any
advice from General Counsel 's representative as to the scope of the complaint therein, the
details of the settlement , or terms of the consent decree, I must assume that the settle-
ment involved the usual nonadmission of liability by Respondent , and cannot assume the
opposite , hence I am not justified in using the mere fact of issuance of a complaint charg-
ing unfair labor practices , or the settlement of that case , as evidence warranting a broad
order
752 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(e) Promising employees wage raises or other benefits if they vote against or
abandon the said Union.
(f) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of rights guaranteed to them by Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Upon request, bargain collectively with the above-named Union as the
exclusive representative of all employees in the aforesaid appropriate unit and, if
an understanding is reached, embody such understanding in a signed agreement.
(b) Post at its plant in Kearney, Nebraska, copies of the attached notice marked
"Appendix." 29 Copies of such notice, to be furnished by the Regional Director
for the Seventeenth Region, shall, after being duly signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof, and be main-
tained by it for 60 consecutive days thereafter in conspicuous places, including all
places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or
covered by any other material.
(c) Notify said Regional Director, in writing, within 20 days from date of
receipt of this Intermediate Report, what steps Respondent has taken to comply
herewith 30
It is further recommended that paragraph IV(b)(6), (7), (12), and (13) of
the complaint be dismissed.
^ If 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. If the Board's Order is enforced by a decree of a United States Court of
Appeals, the notice shall be further amended by substituting the words "Pursuant to a
Decree of the United States Court of Appeals, Enforcing an Order" for the words "Pursu-
ant to a Decision and Order."
"If this Recommended Order is 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 Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant 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, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with United Steelworkers of
America, AFL-CIO, as the representative of all our employees in the bargain-
ing unit described below with respect to rates of pay, wages, hours of em-
ployment, and other conditions of employment, and if an understanding is
reached, embody such an understanding in a signed agreement. The bargain-
ing unit is:
All production and maintenance employees in our plant in Kearney,
Nebraska, including leadmen, factory clerks, boiler attendants, and hourly
rated inspectors, but excluding office clerical employees, draftsman trainees,
professional employees, guards, watchmen, and all supervisors as de-
fined in the Act.
WE WILL NOT refuse to recognize or bargain collectively with United Steel-
workers of America, AFL-CIO, as the exclusive representative of all em-
ployees in the bargaining unit described above, by granting unilateral wage
raises or other benefits to employees, or otherwise.
WE WILL NOT in any manner interfere with the efforts of the above-named
Union to bargain collectively with us on behalf of employees in the unit
aforesaid.
WE WILL NOT interrogate our employees concerning their union member-
ship , sympathies , activities, or voting desires in a manner constituting inter-
ference , restraint , or coercion in violation of Section 8(a)(1) of the Act.
WE WILL NOT threaten employees with reprisals such as closing of our plant,
removal of machinery, denial of wage raises and other benefits, discharge, or
less favorable working conditions, if the above Union comes into our plant.
NORMAN DAVIS, INC. 753
WE WILL NOT promise employees wage raises or other benefits if they vote
against or abandon said union.
WE WILL NOT in any like or related manner interfere with, restrain, or
coerce our employees in the exercise of rights guaranteed under Section 7 of
the Act.
All our employees are free to become or remain , or to refrain from becoming
or remaining , members of said Union or any other labor organization.
ROCKWELL MANUFACTURING COMPANY
KEARNEY DIVISION,
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, 1200
Rialto Building, 906 Grand Avenue, Kansas City, Missouri , 64106, Telephone No.
Baltimore 1-7000 , Extension 731, if they have any questions concerning this notice
or compliance with its provisions.
Norman Davis , Inc. and Raymond Marin . Case No. AO-58. May
23, 1963
ADVISORY OPINION
This is a petition filed on April 24, 1963, by Raymond Marin, herein
called the Petitioner, for an Advisory Opinion in conformity with
Sections 102.98 and 102.99 of the Board's Rules and Regulations,
Series 8, as amended.
On May 6, 1963, Ross M. Madden, Regional Director for the Thir-
teenth Region of the National Labor Relations Board, herein called
the Regional Director, filed a motion to intervene setting forth the
jurisdictional facts developed in his investigation of the representa-
tion petition in Case No. 13-RM-683 filed by Norman Davis, Inc.,
herein called the Employer. The motion of the Regional Director to
intervene is hereby granted. Thereafter the Regional Director filed
herein a copy of the commerce data questionnaire submitted in Case
No. 13-RM-683 as well as a copy of a letter and affidavit from the
Employer's accountant dated April 17,1963.
In pertinent part, the petition, intervention, commerce data ques-
tionnaire, and letter and affidavit of April 17, 1963, allege as follows :
1. The Petitioner and Harold Freed are party defendants in a
chancery proceeding, docket No. 63 C 5156, presently pending in the
Circuit Court of Cook County, Illinois. The complaint in the court
proceeding also names , as a party defendant, the Amalgamated Cloth-
ing Workers of America, herein called Amalgamated, for whom the
Petitioner and Freed allegedly have been acting as employees, agents,
and representatives.
142 NLRB No. 88.