The Coleman Co., Inc.

National Labor Relations Board - Board Decisions

Jun 1, 1970

203 N.L.R.B. 1056 (N.L.R.B. 1970)

1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Coleman Company, Inc. and Sheet Metal Work-
ers' International Association , AFL-CIO
The Coleman Company , Inc. and Viola Clark , Petition-
er and International Union of District 50 Allied and
Technical Workers of the United States and Canada
The Coleman Company, Inc. and Sheet Metal Work-
ers' International Association, AFL-CIO, Petition-
er. Cases 17-CA-5190, 17-RD-449, and 17-
RC-6767
June 1, 1970
DECISION, ORDER, AND DIRECTION OF
NEW RUNOFF ELECTION
BY MEMBERS JENKINS, KENNEDY, AND PENELLO
On December 27, 1972, Administrative Law Judge
Herman Corenman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed ex-
ceptions and a supporting brief, and the Sheet Metal
Workers' International Association, AFL-CIO, here-
in also called the Union, filed an answering brief in
support of the Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge with the
following modifications?
1. The Administrative Law Judge found, and we
agree, that Respondent violated Section 8(a)(1) of the
Act by unlawfully interrogating employees and prom-
ising them benefits.' However, in adopting the conclu-
sion that Supervisors Bailey and Grill unlawfully
interrogated employees concerning how they would
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to overrule
an Administrative Law Judge 's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions were incorrect . Standard Dry Wall Products, Inc., 91 NLRB 544.
enfd . 188 F.2d 362 (C.A. 3). We have carefully examined the record and find
no basis for reversing his findings
2 We note that Respondent 's president, Larry Jones, issued a bulletin to
the employees on May 16 , 1972, rather than May 6, as inadvertently stated
by the Administrative Law Judge in the first sentence in sec. III, E, of his
Decision.
3 The decision finds that , as Respondent 's management instructed supervi-
sors to approach the employees to urge them to vote against the Union and
to promise improved working conditions, such activity is chargeable to Re-
spondent . Although such instruction strengthens the finding of responsibili-
ty, it is irrelevant whether Respondent 's management so directed supervisors,
as such unlawful conduct by supervisors would be attributable to Respon-
dent in any event, without regard to whether or not it was pursuant to specific
instruction.
vote and solicited them to vote against the Union with
a promise of benefits and thus violated Section 8(a)(1)
and interfered with the election, we do not rely on
Peoples Drug Stores, Inc., 119 NLRB 634, 635-636,
and Phelps Dodge Corporation, 177 NLRB 531, cited
in his Decision. Those cases did not involve unfair
labor practices and thus are not controlling. Further-
more, they differ on the facts as they involved non-
coercive comments whereas here the Respondent
exceeded the bounds of permissible comment.
2. Contrary to the Administrative Law Judge, we
do not find that the Respondent threatened reprisals.
Thus, we find merit in Respondent's exceptions to the
finding that the remarks attributed to Jones to the
effect that "a vote for the International would put us
back to the bargaining table which is a long and ex-
pensive process, and who knows, we might wind [sic]
in another strike" and further that Jones said if "we
get a union in there, it will probably be another strike"
were threats to take such action as would cause a
strike and therefore constituted a threat of reprisal in
violation of Section 8(a)(1) of the Act. These remarks
merely state that the Union might elect to strike to
enforce its demands, and in no way convey the im-
pression that action will be taken by the Employer to
cause a strike. Accordingly, we conclude that the
above remarks do not exceed the bounds of free
speech and we shall dismiss this allegation.
3. The Administrative Law Judge found that Re-
spondent violated Section 8(a)(1) and interfered in the
election by maintaining and disparately applying its
posted rule prohibiting "Soliciting or campaigning
during working hours without permission" and "Dis-
tribution of literature without approval." The Admin-
istrative Law Judge found the rule invalid on its face
in that it contains a blanket prohibition against distri-
bution of literature without approval which applies to
nonwork time and nonwork areas and against solici-
tation during nonwork time. He further found dispa-
rate application of the no-distribution portion of the
rule to the detriment of the Union.
Without passing on the validity of the rule or its
application, we find merit in Respondent's position
that the Board should not adopt these findings. This
matter was not raised in the objection to the election
or at any time prior to the unfair labor practice hear-
ing herein. The complaint contains no specific or gen-
eral allegation covering this matter and was not
amended to cover it. At the hearing, Respondent con-
sistently objected to the introduction of the subject in
this case and thus preserved its position. Further, it
was the Sheet Metal Workers, not the General Coun-
sel, who addressed this aspect of the case. While Re-
spondent presented evidence to rebut that introduced
by the Union, it did so as a matter of defense, while
203 NLRB No. 160
THE COLEMAN COMPANY
preserving its objection to litigating the issue. We find,
contrary the Administrative Law Judge, that the va-
lidity of the rule was not fully litigated. Under these
circumstances, we conclude that the Administrative
Law Judge erred in making unfair labor practice find-
ings based on the no-solicitation no-distribution rule,
and we do not pass on its validity. As there is other
conduct which affected the resuts of the runoff elec-
tion and constitutes grounds for setting it aside, we
find it unnecessary to determine whether the
Employer's rule interfered with the election .4
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that Respondent, The Cole-
man Company, Inc., Wichita, Kansas, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended Order as so modi-
fied:
1. Delete from paragraph 1(a) the phrases "making
threats of reprisal" and "and interviewing them indi-
vidually in a locus of management."
2. Delete paragraph 1(b) and substitute the follow-
ing:
"(b) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of their rights to self-organization, to form, join, or
assist any labor organization, to engage in other con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection, or to refrain
from any and all such activities."
3. Substitute the attached notice for the Adminis-
trative Law Judge's notice.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed insofar as it alleges that Respon-
dent violated the Act by conduct not found unlawful
herein.
IT-IS FURTHER ORDERED that the runoff election held
in Case 17-RD-449 and Case 17-RC-6767, on June
1 and 2, 1972, be, and it hereby is, set aside, and that
the cases be and they hereby are remanded to the
Regional Director for Region 17 for the purpose of
conducting a new runoff election in the appropriate
unit at such time as he deems the circumstances per-
mit the free choice of a bargaining representative.
[Direction of New Runoff Election and Excelsior
footnote omitted from publication.]
Cf J P Stevens & Co., Inc, 167 NLRB 266, 302-303, as to the Board's
authority in this respect
APPENDIX
1057
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which all parties had the opportunity
to present their evidence , it has been decided that we
violated the law and we have been ordered to post this
notice . We intend to carry out the Order of the Board
and abide by the following:
WE WILL NOT unlawfully interrogate our em-
ployees concerning their union preferences, or
promise them benefits , or maintain surveillance
of their union preference or adherence for the
purpose of interfering with, restraining, or coerc-
ing them in their right to select Sheet Metal
Workers ' International Association , AFL-CIO,
as their collective -bargaining representative.
WE WILL NOT in any like or related manner in-
terfere with , restrain , or coerce our employees in
the exercise of their rights to self-organization, to
form , join , or assist any labor organization, to
engage in other concerted activities for the pur-
pose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such
activities.
THE COLEMAN COMPANY,
INC.
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
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.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 616 Two Gateway Center, Fourth at
State, Kansas City, Kansas, 66101, Telephone 816-
374-518.
DECISION
STATEMENT OF THE CASE
HERMAN CORENMAN, Administrative Law Judge: A hear-
ing in the above-entitled proceeding was held before the
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Administrative Law Judge on September 19 and 20, 1972,
at Wichita, Kansas, on a complaint of the General Counsel
against The Coleman Company, Inc., herein called the Re-
spondent, or Coleman, or Company in Case 17-CA-5190.
The complaint issued August 28, 1972, pursuant to a charge
filed June 7, 1972, and an amended charge filed August 28,
1972, alleging violations of Section 8(ax 1) of the Act. Under
date of August 29, 1972, the Regional Director for Region
17 of the Board consolidated for hearing with the complaint
aforesaid issues presented by Objections 1, 2 and 9 of Sheet
Metal Workers' International Association, AFL-CIO, here-
in called the Union, objecting to alleged conduct by Cole-
man affecting the results of the election in Case 17-
RC-6767. The aforesaid objections filed by the Union are
in some respects similar to the allegations of violations con-
tained in the complaint.
All parties were afforded full opportunity to appear, to
introduce evidence, to examine and cross-examine witness-
es, and to argue orally on the record. Briefs, which have
been carefully considered, were filed by the Respondent
and the Union. Upon the entire record, and from my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The pleadings establish and I find that the Respondent,
a Kansas corporation , operates four manufacturing plants
at Wichita, Kansas, which are involved in these proceed-
ings.
In the course and conduct of its business at the Wichita
plants, the Respondent annually purchases goods and serv-
ices valued in excess of $50,000 directly from services out-
side the State of Kansas and annually sells goods and
products valued in excess of $50,000 to customers located
outside the State of Kansas . I find that the Respondent is
now, and at all times material herein has been, an employer
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
11. THE LABOR ORGANIZATION INVOLVED
Sheet Metal Workers ' International Association, AFL-
CIO, the Union herein , is a labor organization within the
meaning of Section 2 (5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. Background
An election conducted by Region 17 of the Board on May
II and 12, 1972, in a unit of production and maintenance
employees at Coleman 's Wichita plants, showed that of ap-
proximately 1,981 eligible voters , 421 cast ballots for Inter-
national Union of District 50, Allied and Technical
Workers of the United States and Canada , the incumbent
union, 746 cast ballots for Sheet Metal Workers' Interna-
tional Association , AFL-CIO, herein called the Union; and
550 cast ballots against the two participating labor organiza-
tions . No choice having received a majority of the votes
cast, a runoff election was held on June 1 and 2, 1972, where
only the name of Sheet Metal Workers' International Asso-
ciation, AFL-CIO, herein also called the Union, appeared
on the ballot. The tally of ballots for the runoff election,
issued on June 2, 1972, showed that of approximately 1,843
eligible voters, 812 cast ballots for and against, the Union.
Thereafter the Union filed timely objections to the election,
numbering 1 through 9, but later withdrew objections num-
bered 3 through 8. Accordingly, pursuant to the Order of the
Regional Director for Region 17 of the Board, only Objec-
tions 1, 2 and 9 are considered herein. Those objections are
as follows:
1. Interrogated employees concerning their union
membership activities in behalf of the Sheet Metal
Workers' International Assn., AFL=CIO, and prefer-
ences , as well as those of other employees.
2. Promised employees benefits conditioned on sup-
porting the decert (no vote) committee, and refraining
from voting for, or supporting the Sheet Metal Work-
ers' International Association, AFL-CIO, and directly
and in a veiled manner threatened employees with eco-
nomic reprisals if they supported the Sheet Metal
Workers' Interantional Association, AFL-CIO or if it
won the election.
•
9. By the acts set forth in the paragraphs above and
by other acts and conduct, it, by its officers, agents, and
representatives, interfered with, restrained, and
coerced its employees, and with giving aid to the decert
committee , precluded a free choice of a bargaining
representative in the election.
The aforesaid objections are coupled for hearing with the
following violations of Section 8(a)(1) of the Act allegedly
committed by the Respondent in connection with its antiun-
ion electioneering campaign between the first and second
elections , namely: (1) interrogation of employees about
their and/or other employees' union membership, sympa-
thies, or activities; (2) soliciting an employee to work
against the Union; (3) promising benefits to employees for
their support in the campaign against the Union; (4) threat-
ening to reduce or remove existing wages and benefits if the
Union won the election; and (5) creating the impression of
surveillance of employees' union activities.
B. The Respondent 's Antiunion Electioneering Campaign
The Respondent conducted its electioneering campaign
to defeat the Union in the approaching runoff election to be
held on June 1 and 2, 1972, chiefly by two methods; the first,
by 30 to 40 speeches delivered to separate groups of employ-
ees, averaging 40 employees in each group , throughout the
four plants, by Respondent's president, Mr. Larry Jones;
the second method, by the Respondent's supervisors talking
individually to employees under their supervision and urg-
ing them to vote against the Union, upon instructions from
management.
The General Counsel and the Union contend that the
speeches delivered by Respondent's president, Jones, and
THE COLEMAN COMPANY
some of the remarks made by supervisors to employees
exceeded the permissible bounds of free speech privileged
by Section 8(c) of the Act and constituted interference,
restraint, and coercion within the meaning of Section 8(a)(1)
of the Act and/or constituted conduct sufficient to interfere
with the employees' free choice in the runoff election held
on June 1 and 2, 1972, thereby requiring that the election
be set aside and a new election ordered.
It is not disputed that 30 to 40 electioneering speeches
were made by Jones to different groups of employees on
May 24 and 25, 1972, followed by a question-and-answer
period in which Jones would solicit questions from individu-
al employees and then answer them. The speeches, accord-
ing to Jones' testimony, were rehearsed speeches, delivered
without notes , and contained substantially the same subject
matter.
Several employees who heard one or the other of the
several speeches testified to certain remarks made by Jones
which the General Counsel and/or the Union contend vio-
lated Section 8(a)(1) of the Act and/or constituted grounds
sufficient to set aside the runoff election.
Thus, La Verne Breit, a witness for the General Counsel
no longer employed by Coleman but who had previously
been employed there about 11 years and who attended one
of Jones' speeches to employees who worked in Depart-
ments 401 and 402, testified credibly that, among other
things, Jones remarked that the Company had had several
unions there and neither seemed to have been able to make
any progress, and Jones asked the employees to "give the
company a chance to see how well they could do things
without a union ." Breit testified credibly that Jones invited
questions from the audience , and one of the employees
asked about sick leave, and another employee asked about
the hospitalization program , and Jones made the statement
"that he knew it was lousy and didn't like it either-and
after the election that would be one of the areas that would
be looked into." I find that this remark by Jones constituted
an implied promise to improve the hospital plan and violat-
ed Section 8(a)(1) of the Act.
Delbert Seiber, a witness for the General Counsel and a
former president of District 50 and employed by Coleman
for 20 years, attended a speech given by Jones in the north
end of department 44. Seiber testified credibly that at one
point in his speech Jones brought up the subject of retire-
ment. Jones told the group that since he had been president
of the Company he had talked with several people on the
picket line 1 and he said, "Quite frankly I don't mind telling
you if I had been there as long as some of you people and
was as close to retirement as some of you people, I could
have been out there too because our retirement program is
very bad." Seiber credibly testified further that Jones told
the assembled group that the retirement program had to be
improved and "We can do that without the influence of a
third party because we know what our people need and we
can take care of you." Seiber further credibly testified that
Jones also talked to the group about insurance , saying that
it seemed to be one of the biggest topics around the plant,
one of the biggest items people were dissatisfied with and
1 The picket line refers to a District 50 strike in 1971.
1059
it was under study; they had a program he thought the
people would be pleased with. I find that the foregoing
remarks made by Jones to the assembled group, as testified
to by Seiber, constituted promises of benefits for the pur-
pose of defeating the Union in the approaching runoff elec-
tion, and thereby violated Section 8(a)(1) of the Act.
Seiber further testified credibly that Jones said that, with-
out the influence of a third party, the Company could and
would do something for the flat-rate workers, acknowledg-
ing there was an inequity between the flat-rate worker and
the incentive worker that should be and would be corrected.
I find that this last remark by Jones constituted a promise
of benefit to forestall unionization and violated Section
8(a)(1) of the Act.
Seiber further testified credibly that Jones told the assem-
bled group, "If you vote for the Union, you're going to be
locked in for 6 or 7 years-before you can get rid of them
and if you vote for the company, if you don't like what we
do, in a year, you can get a union, - a vote for the Interna-
tional would put us back to the bargaining table which is a
long and expensive process, and who knows, we might win
in another strike - we like to ask you to give the company
a chance ." Seiber further testified that all these improve-
ments , according to Jones, could be done immediately if
there was no union. I find that these remarks by Jones, as
testified to by Seiber, amounted to a promise that benefits
would come quickly without a union but unionism would
result in delay and a possible strike. I find that these re-
marks by Jones constituted a promise of benefits if the
Union was rejected and a threat of delay and a possible
strike if the Union were selected by the employees, and
therefore violated Section 8(a)(1) of the Act.
Seiber further testified credibly that he attended another
meeting of the entire department conducted by Jones on
May 30, 1972, which was devoted to questions and answers.
Seiber testified that in the first speech to the group Jones
gave a personal guarantee to the group that if the employees
voted for the Company, there would be no more sharp-
shooting of standards. At the second meeting which was
devoted to questions and answers, one of the employees
inquired what he meant by "sharpshooting standards," and
Jones replied it was raising the quota per hour on a job by
a foreman , and Jones again told the group that he would
absolutely guarantee that there wouldn't be any more of
that if the people voted for the Company. Seiber testified
credibly that somebody asked about insurance and Jones
replied, "You understand that I can't promise you, any-
thing, but I will say this, we think you will be very happy
with the program that we have selected." I find that the
remarks made by Jones concerning "sharpshooting stand-
ards" and assuring them they would be very happy with the
insurance program constituted a promise of benefit calcu-
lated to defeat unionization and therefore violated Section
8(a)(1) of the Act.
Seiber further testified credibly that Jones told the assem-
bled group in the first speech that "If you vote for the
Union, you'd have to go back to the bargaining table and
start from scratch, and negotiations are long and expensive
and they take time and you might end up in another strike."
Seiber further testified credibly that Jones told the group of
employees, "If you'll vote for the Company , I'll guarantee
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you that you'll never have any less than you 've got right
now. From here , we'll take what we have and we'll build on
it. With the Union, you don't have any guarantee, but I'll
guarantee you you 'll never have any less than if you have
right now if you vote for the Company." I find that the
remarks of Jones concerning "starting from scratch" if the
Union comes in and a guarantee of nothing less plus a
promise to "build on it" if the employees voted for the
Company constituted , when considered in context , a threat
of reprisal if the Union were selected and a promise of
benefit if the Union were rejected , in violation of Section
8(ax 1) of the Act.
Donald F. Draper, called as a witness by the Union, has
been employed by the Respondent about 7 years. Draper
had been an officer of District 50 and was vice president of
District 50 at the time of the first election. Draper testified
credibly that Mr. Foster, Respondent's industrial relations
representative , approached him at his place of work be-
tween the first and second election and asked him to attend
a meeting of the "deceit committee" that Friday night.
Draper told Foster that he was not interested in it. Then
Foster asked Draper if he would be supporting the Sheet
Metal Workers. Draper replied that he would not, that with
the loss of the first election by District 50 , he would not
actively campaign for either side . Draper testified further
that Foster then asked him how he felt it looked and Draper
replied that he really didn't know and and didn't have a
preference. Draper credibly testified that Foster said, "Well,
I want you to know that if it goes'no union' we'll be needing
you." Draper testified credibly he replied that he was happy
with what he was doing and did not want to get involved
in any union activities, and Foster replied "Well, we would
like to have you help us out. We are going to need you," and
as he was leaving , Foster turned around and in a joking
manner said, "Well, I just saw the `Godfather' the other
night, so I will have to say that we will do like they did in
the 'Godfather'; we are going to make you an offer that you
can't turn down."
Foster recalls having a conversation with Draper at his
machine between the first and second election. Foster testi-
fied he walked over to Draper and asked him how things
were going, and Draper replied not too well, that he was
upset as to the outcome of the first election, that the District
50 offices had worked their heads off for the people the last
few years and that was the thanks they got for it.
Foster testified that he told Draper that people did not
vote against him personally , they voted against a long
strike? Foster testified that Draper said "Well, I'm through
with the whole mess; I don 't want anything more to do with
it; I'm not even going to vote in this next election ; I'm tired
of working hard and getting nothing for it." Foster testified
he told Draper that he was a good employee, that he had
represented the people well, and that he should definitely
vote . Foster testified that he did not recall anything being
said about the decertification committee , and he denied that
he told Draper that if there is a no-union vote , the Company
would be needing him.
I do not credit Foster 's testimony insofar as it contradicts
2 District 50 had called a strike in the summer of 1971.
Draper's testimony. It is not disputed that Foster ap-
proached Draper at his machine and initiated the conversa-
tion. Draper's testimony was convincing and, in the context
of the conversation as recalled by Foster, it is highly proba-
ble that Foster invited Draper, a former officer of District
50 whose union was,defeated in the first election, to attend
a meeting of the decertification committee who subsequent
to the first election called themselves the "freedom for ac-
tion committee" and were opposing the Sheet Metal Union
in the approaching runoff election. I find that Foster solic-
ited Draper to join the group working for the defeat of the
Sheet Metal Union, and promised him that he would be
needed by the Respondent if the vote went against the Sheet
Metal Union. I find that such solicitation to join the "no
union" group, when viewed in contest with Draper's pro-
posal that Draper would be needed if the Union lost the
election, constituted a promise of benefit to Draper if he
would join the "no union" group and therefore violated
Section 8(a)(1) of the Act. Such solicitation to join the "no
union" group also had the effect of causing Draper to dis-
close his union preference and amounted to unlawful inter-
rogation in violation of Section 8(a)(1).
John W. Barnes, employed by Coleman for 20 years and
supporter of the Sheet Metal Union, reported to Foreman
Charles Traffas' office on or about May 30, 1972, after
returning from his vacation, to report he was ready to return
to work and receive instructions. Barnes credibly testified
that Traffas, calling attention to the approaching election,
told Barnes "We would appreciate it if you would vote 'no'
in the election." Barnes testified credibly he replied, "Who
were the guys my age and with my seniority whose shoulder
we would cry on if we got fired?" and Traffas answered,
"We are not going to fire you old people. You are the
backbone of the Company." Barnes credibly testified fur-
ther that Traffas also said, "You don't know how nice we
can be to you people if we did not have a union, like air
conditioning this building." Barnes testified he told Traffas
he would "think about it" and then left the office.
Called as a witness for the Respondent, Traffas admitted
a conversation with Barnes in his office in which, as in
conversations with other employees under his supervision,
he requested them to vote against the Union in the ap-
proaching runoff election. Traffas testified he told Barnes
that the Company was trying to get a "no union" vote in the
approaching election "to see if we can't handle anything
which comes up on the way of complaints from the employ-
ees or improving enviornmental conditions, or fixing cracks
in the walkways or whatever, to see if we could do it better
ourselves without a third party intervention." Traffas fur-
ther testified he said to Barnes, "John, doesn't it make sense
that the company would rather put its dollars into improv-
ing environmental conditions or solving companints be-
tween employees and management rather than putting their
money into lengthy negotiations and strikes?"
On the basis of the testimony of both Barnes and Traffas,
I find that the Respondent promised improvements in envi-
ronmental conditions, including air conditioning the plant,
if the Union was rejected by the employees in the ap-
proaching election. It is clear and undisputed that
Coleman's management instructed its supervisors to ap-
proach each employee under their supervision to urge them
THE COLEMAN COMPANY
to vote against the Union , and promises of improved work-
ing conditions by supervisors under such circumstances are
attributable to management . I therefore find that Traffas'
promises to Barnes if the Union were rejected constitute
violation of Section 8(a)(1) by the Respondent . I further
find that the conduct of Traffas in calling employees indi-
vidually to his office to persuade them to vote against the
Union constituted grounds to set aside the election.
Thomas D. Grimes, a witness for the General Counsel, has
been an employee of Coleman since May 1960 . He is cur-
rently a leadman and was a member of the in-plant organiz-
ing committee of the Sheet Metal Workers Union.
Grimes credibly testified that customarily each morning
he went in to Supervisor Traffas' office to receive instruc-
tions . Grimes credibly testified that in the week prior to the
runoff election on one of his visits to Traffas ' office , Traffas
told him to sit down , as he wanted to talk to him about
voting "no union" and proceeded to tell Grimes "all the
reasons why the company felt they could do better without
the Union in there ." Grimes testified he stopped Traffas and
told him that he had been a union man all his life and he
didn't feel Traffas had enough time to explain to him why
he should vote "no union ." In the end Grimes told Traffas
he would think about it . Grimes noted , and it is not disputed
by Traffas , that Traffas kept a record of the employees he
had talked to concerning the Union by the use of a seniority
list on which checkmarks appeared opposite the names of
those interviewed , with the remark "yes," "no," or "maybe"
after the name of each employee interviewed . Traffas con-
ceded he maintained such a list of employees to whom he
had talked concerning the Union . Traffas testified he would
mark the list by placing a checkmark next to the name of
employees interviewed and would also write "yes," "no," or
"maybe" after the employee 's name reflecting his appraisal
of the employees ' views . Traffas testified credibly that he
did not show this list to Grimes and kept it in a file cabinet.
Traffas concedes that he told Grimes that the Company
was trying to get a "no union" vote because the "company
can do a better job of handling problems which come up
with the employees without a third party intervention."
Traffas testified that Grimes said he had been raised in a
"family which was union oriented from way back" and he
didn 't feel that he could ever vote "no union."
I find that the conduct of Supervisor Traffas in systemat-
ically interviewing employees under his supervision in his
office with the object of urging them to vote against the
Union , and engaging them in conversation on their vote or
union preference , would in the ordinary course of events
cause them to disclose their union sympathies which he
recorded on a written list for his own use . I find that such
conduct was a form of surveillance and interfered with,
restrained, and coerced the employees in the exercise of
their Section 7 rights and thereby violated Section 8(a)(1) of
the Act.
Wilbert J. Northcutt, subpoenaed by the General Counsel,
has been in Coleman's employ for 21 years . He was a mem-
ber of the Sheet Metal Union 's in-plant organizing commit-
tee.
Northcutt attended one of the numerous speeches given
by Coleman's president , Larry Jones , between the first and
second elections . Present at the speech were employees from
1061
departments 601, 605 , and 606 . Describing the speech,
Northcutt testified that Jones said he would like to talk to
the people about voting "no union." Jones said he thought
the Company could do a better job without a union . North-
cutt testified further that Jones told the assembled group
that if "we get a union in there , it will probably be another
strike and he would like to think people will give the compa-
ny a chance to show them what they can do without a
Union."
I find that Jones ' statement to the group that with the
Union there will probably be another strike amounted'to a
threat that unionism would in all probability result in a
strike and therefore constituted a threat to take such action
as would cause a strike and constituted a threat of reprisal
in violation of Section 8(a)(1) of the Act.
Frank D. Akerman, subpoenaed by the General Counsel,
is no longer employed by Coleman . Akerman attended one
of Jones' speeches given in May 172 to departments 604 and
610. Akerman testified that Jones told the assembled em-
ployees that if they were to vote "no union," he could tell
the employees what the Company could give to the employ-
ees, but could not tell "what the Union could get for us."
Concerning health insurance Akerman testified that Jones
said that "they was going to try to get a better program than
what they had in the past-he [Jones] said something about
what they was trying to get a new premium in , and that if
the company was to be running the company without a
union in, that they could come up with better programs all
the way around for us." I find that Jones ' statement that the
Respondent could have better programs without a union
constituted a promise of benefit if the Union was rejected
and therefore violated Section 8(a)(1) of the Act.
After Jones had completed his speech , Akerman stopped
to talk to Personnel Manager Joseph McCarthy and asked
if the new minimum wage law would make any difference
in wages at Coleman and McCarthy replied "no," because
the employees were all above $2 per hour . Akerman further
testified that in this conversation McCarthy asked him
"what I thought about the way the election was going and
which way that I was going to vote and I told him that I
hadn't quite decided at the time even though I had decided
which way I was going to vote."
McCarthy testified that he recalled Akerman asking
about the $2-an-hour minimum wage, but denies that in that
conversation he asked Akerman how the election was going
or that he asked Akerman how he was going to vote. Mc-
Carthy conceded that he did talk to about 75 to 100 employ-
ees concerning the Union and the approaching runoff
election, usually talking to them at their work stations.
I credit Akerman's testimony that McCarthy inquired of
him how he was going to vote and how the election was
going, especially in view of the fact that Akerman's testimo-
ny was forthright and convincing , and moreover because
McCarthy conceded he did in fact talk to numerous em-
ployees urging them to vote against the Union . I find that
the foregoing remarks by McCarthy to Akerman inquiring
how he was going to vote and how the election was going
amounted to illegal interrogation concerning an employee's
union adherence and violated Section 8 (a)(1) of the Act.
William Pyle, appearing pursuant to Board subpoena,
worked in Department 613 and had been in Coleman's
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employ 2-1/2 years. Pyle testified that a few days before the
second election, Foreman Richard Bailey summoned him to
his office where he asked him to sit down and then asked
him "how I felt about the company and wanted to know
which way I was going to vote." Pyle testified that he told
Bailey he was going to vote "yes." Pyle further testified that
Bailey told him that "we would be better off if we voted for
the company because the Union and the Company was
always squabbling among themselves."
Bailey, called as a witness for the Respondent, concedes
that he did talk to Pyle in his office concerning the Union
on about May 19. Bailey testified he asked Pyle if he would
like to take just a few minutes with him to discuss the Union
in general and he said sure. According to Bailey's testimony,
Pyle said, "You don't need waste your time talking to me
because I think this Union out here is worthless, we were
cheated on a strike from the Union." Bailey testified further
that he said to Pyle, "We'll now, I don't want to know how
you're going to vote. What I want to do is express my own
opinion as a person, not as a foreman but as a person, how
I believe about the Union in general!" Bailey further testi-
fied that he told Pyle that "unions have helped, but out-
dated their usefulness in terms of providing any economic
opportunity; that the management in not only this company
but in a lot of other companies are better equipped to deal
with wants and needs of their employees and that, therefore,
the Union doesn't have to represent the people now; we can
take care of the people just as well."
Bailey testified that Pyle replied, "Well, I'm not going to
vote for the Union," and Bailey replied "I don't want to
know how you're going to vote, Bill. I want you to vote your
conscience." Bailey testified further that he did not ask Mr.
Pyle how he felt about the Company, that Pyle volunteered
the information to him.
I credit Pyle's testimony that he was summoned into
Bailey's office where he was interrogated about his feelings
for the Company and about which way he was going to vote.
Bailey's testimony concerning this conversation does not
ring true because he testified, when delivering an extended
lecture to Pyle as to how unions had outgrown their useful-
ness, Pyle had already told him he need not waste time
talking to him because he thought the Union was worthless.
In view of Bailey's lecture to Pyle, it is more reasonable to
believe that the inquiry was made, and Pyle replied he
would vote "yes" as was testified to by Pyle.
I find that the conduct of Bailey in summoning Pyle to
his office and there interrogating him as to how he felt about
the Company and which way he was going to vote violated
Section 8(a)(l) of the Act.
Pyle also testified that a day before the election, Foreman
Joe Grill, Sr., called him in to his office. Pyle testified that
Grill said he didn't know what Richard Bailey had told Pyle,
but he would like to know how Pyle felt about the Comapny
and which way he was going to vote. Pyle testified he told
Grill he was going to vote for the Union and was going to
vote "yes."
Grill testified that he did in fact talk to William Pyle in
his office on May 31. He testified that he was talking to
some of the people about the election and told them the
Company was going for a "no union" vote in the shop. And
"We would appreciate it if he'd vote our way. That we
thought we'd have a lot better go between management and
working for us if we didn't have any Union to intervene."
Grill denied that he asked Pyle how he was going to vote.
I credit Pyle's testimony that Grill, Sr. asked him how he
would vote. Grill concedes that he was talking to other
employees too. I find that by summoning employees to his
office to question them about the Union and to persuade
them to vote for the Company, the Respondent, by its su-
pervisor, Joe Grill, Sr., interfered with their freedom of
choice in the runoff election and constituted sufficient
grounds to set aside the election.
Pyle also attended one of Jones' speeches a few days
before the second election. Pyle testified that Jones told the
assembled group that the Company was going to try to
improve the insurance to lower the premium. Concerning
the Sheet Metal Workers' Union, Pyle testified that Jones
told the group that they didn't need any strangers coming
into the plant. This statement by Jones amounted to a prom-
ise of benefit if the employees rejected the Union in viola-
tion of Section 8(a)(1) of the Act.
Dean Denny, a witness called by the General Counsel, has
been employed by Coleman about 24 years. He was s mem-
ber of the Sheet Metal Workers' Union in-plant committee.
He attended one of Jones' speeches to department 400 and
403 employees. Among other matters discussed in his
speech, according to Denny's testimony, Jones acknowl-
edged that insurance costs had become unbearable for the
employees and the Company both and they needed to be
corrected. Dean credibly testified that Jones told the em-
ployees that things wouldn't get any worse than they are
right now. Denny also testified that Jones told the assem-
bled group that if the employees did vote in the Union, "We
would be starting from scratch again, there was no guaran-
tee what the Union could give us, only that which the com-
pany would be willing to give; it might change in the event
that we was to have a strike; it might alter our decision a
little, but other than that, the Union could only get what the
Company was willing to give." Denny credibly testified fur-
ther that Jones, referring to the pension plan and insurance,
said "it needed some work done on it, that it wasn't suffi-
cient ; it needed to be improved." Denny testified that Jones
asked the group "to give the Company a chance to show
employees what the Company could do, and to vote a union
would be to start in from scratch again from negotiations."
Denny also testified that Jones assured the group "that we
wouldn't lose no benefits without a Umon-we wouldn't
have to be afraid of taking a wage cut or lose anything that
we now have-but; he would work to improve it."
I credit Denny's testimony and find that in the context of
the statements made by Jones to the employee group, he
promised to improve the insurance and pension plans, with-
out a union , whereas with a union, negotiations would start
"from scratch." I find that these remarks amounted to a
promise of benefit if the employees rejected the Union and
thereby violated Section 8(a)(1) of the Act.
Douglas Bogart, subpoenaed by the General Counsel, has
been employed by Coleman 2 years. Bogart credibly testi-
fied that about a week or 10 days before the second election,
Foreman Richard Bailey summoned him to his office over
the intercom, then asked him to shut the door and sit down.
Bogart credibly testified that Bailey told him he wanted to
THE COLEMAN COMPANY
talk to him about voting for the Company instead bf the
Union. Bailey asked Bogart how he would vote and Bogart
replied "you got to be kidding." Bailey told Bogart it would
not be held against him and Bailey said, "Well, I thought
I would vote for the Union." Bailey then said, "Well, I
personally feel that there would be a lot of advantages not
having a third party in on this. We can get more accom-
plished." Bailey asked Bogart to reconsider and Bogart said
he would think about it. Bailey told Bogart that he was
calling other individuals into his office for the same pur-
pose, and Bogart named four other employees whom he
knew had been individually summoned into Bailey's office.
Foreman Richard Bailey, called by the Respondent, con-
ceded he talked to Bogart as well as Pyle and other employ-
ees under his supervision individually in his office on May
19, 1972. Concerning his conversation with Bogart, Bailey
concedes he talked in favor of a vote for the Company and
against the Union in the approaching runoff election, but
denies that he asked Bogart how he was going to vote.
Concerning his conversation with Bogart , Bailey testified
as follows:
I asked Doug if I could have a few minutes of his
time to talk about the Union; that I wanted to make
perfectly clear to him that I wasn't in there to solicit his
vote or to find out, to poll him which way he was going
to vote, but simply what I was going to say was in my
own opinion ; and was not speaking to him necessarily
on the Company's point of view. But I told him that I
felt the unions had outlived their usefulness in terms of
providing economic security ; that the companies, in
general, pretty well should take care of that; that the
management group also through various reasons is bet-
ter equipped to deal with the wants and needs of the
people . We can do equally as well, the management
group can, representing the people as the Union can.
Bailey further testified that Bogart "did volunteer that he
had been pro-union; however, he was undecided at this
time, and I said to him that I didn't want to know how he
was going to vote . That was a matter of his own con-
science."
I credit Bogart's account of the conversation between
himself and Foreman Bailey in Bailey's office . Bailey's testi-
mony that he told Bogart that he "wasn't there to solicit his
vote" is inconsistent with his further testimony which clear-
ly disclosed he was soliciting his vote against the Union;
and I am not persuaded that Bailey's testimony reflects his
conversation with Bogart. I find that on or about May 19,
1972, Foreman Bailey called employee Bogart, among oth-
ers, individually into his office to ascertain their union sym-
pathies and to persuade them to vote against the Union in
the approaching runoff election. Calling employees individ-
ually or in small groups into a locus of management to
ascertain their union sympathies and to persuade them to
vote against a union interferes with , restrains, and coerces
employees in the exercise of their Section 7 rights and with
their free choice in selecting a bargaining representative.
What was said by the Board in General Shoe Corporation
(Marman Bag Plant), 97 NLRB 499 at 501, is applicable in
this case. The Board said:
We find, as did the hearing officer, that in the cir-
cumstances of this case the technique of calling the
1063
employees into the Employer's offices individually and
in small groups and there urging that they reject the
Union was in itself conduct which warrants setting
aside this election. In an earlier case involving another
plant of this same Employer [General Shoe Corporation,
77 NLRB 124], the Board held that such conduct under
similar circumstances was incompatible with those lab-
oratory conditions under which Board elections should
be conducted. Here the statements made to small
groups of employees may have been more temperate in
tone than those involved in the earlier case. The fact
remains, however, that here, as in that case, the Em-
ployer communicated his antiunion views to the em-
ployees in a manner the effect of which was calculated
to interfere with a free choice in the election. When
rank-and-file employees are brought to the company
offices in small groups, they do not deal in an "arms
length" relationship with the company officials they
are directed to see. Antiunion opinions, and the sugges-
tion that the employees reject the union, when uttered
in that locus of final authority in the plant, take on a
meaning and a significance they do not possess under
other circumstances. The coercive effect may be subtle,
but it is nonetheless there. And it is that much stronger
when, as in this case, the employees are also brought
into the office individually.
See also Peoples Drug Stores, Inc., 119 NLRB 634, 635-636,
and Phelps Dodge Corporation, 177 NLRB 531, 533.
Bogart also testified credibly and without contradiction
that Foreman Joe Grill, Sr., called his department, consist-
ing of seven or eight employees, into his office about 2 or
3 days before the second election and told them "there
would be a lot of advantages not to have a third party
involved, and a lot more could be accomplished without
them [the Union] and wished that we would vote for the
Company rather than the Union-should give the Compa-
ny a chance to prove themselves without the Union in
there."
I find that the conduct of Joe Grill , Sr., in calling a small
group into his office and soliciting their vote against the
Union and by telling them there would be a lot of advan-
tages without a third party (meaning the Union) constituted
solicitation in a locus of authority of a vote against the
Union and contained a promise of benefit if the Union were
rejected. Such conduct is violative of Section 8(a)(1) of the
Act and also interferes with the employees' freedom of
choice in an election.
C. Larry Jones ' Version of His Speeches
Jones made 30 to 40 speeches to employee groups averag-
ing 40 employees on May 24 and 25S 1972. The speeches,
Jones testified, did not vary in their essentials and after each
speech about 5 minutes was devoted to questions from the
audience and answers thereto . The speeches , Jones testified,
were rehearsed and were made without notes and without
transcription , and usually lasted from 15 to 17 minutes.
Jones testified that in his speeches he reviewed the fact
that the Company had a pension program for a number of
years and that he said that because of the rapid rate of
inflation in the most recent years , the buying power of the
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension program for retired employees represented in his
opinion a problem area . Jones testified he used the words,
"we need to try and find a better solution." Concerning
health insurance Jones testified he told the employee groups
that "we all know that the cost of medical care had been
rising steeply in the last few years to the point that the cost
of medical insurance program was very costly to both the
Company and the cost of medical insurance program was
very costly to both the Company and the employee" and as
they knew, "the company had been studying the subject for
some time." Jones testified he concluded that - part of the
talk by saying "that is one of our problems and we need to
try to find a better solution." Jones testified further he told
the employees that "if the vote was for the Sheet Metal
Workers Union , then we would be asking in some strangers
who did not know us , our problems , and that we would have
to start from scratch the process of getting together the
negotiating people and getting the difficult process of com-
munication ." Jones testified he also told the employees
"that under no conditions would the employees have less in
terms of wages and benefits than they had at that time."
Jones testified he also told the employees in the nature of
a reply to statements of Sheet Metal supporters that if "no
union" was voted, the Company would cut standards, that
this would not be done. Jones testified that he pointed out
to the people that a more pertinent problem was what "I call
sharpshooting standards where some individual , foreman,
engineer or even an employee for their own purposes would
arbitrarily change standards so that they might look better."
Jones testified he told the employees that "the Company
had not tolerated that in the past and certainly would not
tolerate it in the future ." Jones testified he concluded his
speech by telling the employees , "The real question was
whether if the employees voted no union, these problems
that we have been discussing could be recognized and im-
provements made." He testified that he said "Frankly I
don't know. It is a tough job. We have never tried it before.
It might not work , but I'm going to give it a try responsibly
so if that is the choice of the employees." Concerning con-
versations with employees on the picket line in the summer
of 1971, Jones testified he told the employees in his preelec-
tion speeches "that learning how to or what the job of
president had involved a lot of listening, the customers,
employees, etcetera," "that some of that listening had taken
place last summer on the perimeter of our property with
some people bearing signs and that some of those conversa-
tions hadn 't taken the person very long to tell me where to
put it. Other conversations we had talked at length about
what the problem was, what had gone wrong, what was
creating the situation that we face ." Jones testified he fur-
ther told the employees that in the event they voted in the
Sheet Metal Workers' Union "the past experience at Cole-
man suggested it would probably be a period of at least 3
to 6 years that we would operate under that situation, but
on the other hand if the employees voted no union that as
I understood the law, that the employees would have an
opportunity 12 months after that if they were not pleased
with what had happened in the meantime , to have another
representation election ." Jones conceded by his testimony
that in his speeches he asked the employees to vote "no
union" in the pending election. Jones further testified that
in the first part of his speeches he said "we have the task of
trying to make better products and trying to make a fair
return for our stockholders. In light of the fact that it has
not been all that satisfactory in 1971, we all had the task of
trying to make every job at Coleman better." Jones further
testified that in his speeches he told the employees , "We had
unions for many years and had dealt with two international
unions, the first one being the United Auto Workers that
began in about 195 and that relationship being replaced by
District 50 approximately 1964. I said 'In my opinion there
were a lot of good people that had worked awfully hard,
both, from the company's point of view and the Union's
point of view to make that relationship work .' I said, 'In
spite of that it seemed to me that the results of that were that
we did not trust each other as much as we should and we
didn't communicate with each other as often as we needed
to and that in that period of time we had 2 strikes that had
been costly to everybody involved, that as far as I could see
we had accomplished nothing . They were purposeless."'
Jones also testified that he made mention concerning the
three groups of employees , some favoring continuing with
District 50, some favoring the Sheet Metal Workers' Union,
and some "no union."
Jones denied the remarks attributed to him by witnesses
whose testimony I have hereinbefore already credited. I do
not credit Jones' denials. It is pertinent to note that although
several management representatives were present at each of
Jones' speeches , not one has been called to corroborate
Jones' testimony as to what he said in each speech and in
each question-and-answer period. Viewing Jones' account
of the content of his speeches, they are somewhat innocu-
ous; but there appear nuggets here and there in Jones'
speech which serve to support the testimony of the several
witnesses for the General Counsel and the Union. Thus
Jones admits he told the employees in substance that the
pension program and health insurance program were unsa-
tisfactory and needed improvement; that with a union, neg-
otiations would start from scratch; that under no conditions
would the employees have less; that the Company would
not cut standards; that there would be no sharpshooting;
and if "no union" was voted, the Company was going to try
to improve the problem areas. Jones admits that he referred
in his speeches to conversations with pickets but did not
testify to the content of his conversation. I am persuaded
that in his speech he detailed in more concrete form the
substance of what he told the pickets in the 1971 strike.
In crediting the General Counsel 's witnesses concerning
remarks made by Jones which I have already found violated
Section 8(a)(l) of the Act and/or constituted grounds for
setting aside the runoff election , I note that employees who
heard different speeches in many respects corroborate one
another concerning remarks made by Jones in his several
speeches.
D. The No-Solicitation and
No-Literature Distribution Rule
The General Counsel did not allege in his complaint that
the Respondent's "no solicitation and no distribution rule"
violated the Act. Although the Union's objections 1, 2, and
9 which are involved in this case do not contain language
THE COLEMAN COMPANY
suggesting that Coleman's no-solicitation/no-distribution
rule is illegal , or constituted grounds for setting aside the
election , the matter was litigated at the hearing and has been
argued in the briefs filed by the Union and the Respondent.
On its face the rule is not valid insofar as it contains a
blanket prohibition of literature distribution without ap-
proval since (1) the rule applies to employees who might
wish to distribute union literature when they are not actual-
ly at work; and (2) the prohibition embodied in the rule in
question would appear to be applicable to nonworking ar-
eas. See Stoddard-Quirk Manufacturing Co., 138 NLRB 615;
WIPO, Inc., 199 NLRB No. 11. Additionally the rule is
invalid to the extent that it may be construed as prohibiting
soliciting or campaigning during the Company's working
hours rather than the employees' work time. See Exide Alka-
line Battery Division of ESB, Inc., 177 NLRB 778,785;
Campbell Soup Co. v. N.L.R.B., 380 F.2d 372 (C.A. 5, 1967).
I find therefore that the existence of the rule interfered with
the full exercise of the employees' Section 7 rights and, in
connection with other illegal preelection conduct of the Re-
spondent, constituted sufficient grounds to warrant setting
aside the runoff election.
The Union also contends that the no-distribution rule
was enforced against the union adherents who were re-
quired to distribute their literature outside the premises
while "no union" literature was distributed inside the plant,
piles of it being placed at the timeclock or posted on the
bulletin board, or pasted as "bumper stickers" on work-
benches, walls, restrooms, and other places about the plant,
bearing the legend "Happiness is No Tinbenders ." 3 Several
employees testified that they had seen large numbers of
these bumper stickers pasted thoroughout the plant in the
interval between the first and second elections without
being removed , whereas Respondent 's President Jones testi-
fied that, on seeing one of the bumper stickers on a tow-
motor, he instructed the north plant factory manager to see
that "all of those signs or anything like it were removed
from the company property."
There is corroborative evidence that some employer ef-
fort was made to remove some bumper stickers. This evi-
dence is supplied by employee Marvin Adams, a witness
called by the General Counsel, who testified that he saw one
of the "bumper stickers" on the back of a tow-motor and
it remained on the tow-motor "long enough for Darrel Bird
to tell the driver to get the damn thing off there." Manage-
ment Representatives Brazzel and Atheron and Supervisor
Joe Grill, Sr., also testified that on seeing a bumper sticker
they either personally removed it and threw it away or had
it removed.
On the basis of all the evidence bearing on the prevalence
of the "no union" bumper stickers carrying the legend
"Happiness is No Tinbenders," I find that the Respondent
made some efforts to remove the "bumper stickers," albeit
ineffectual in view of the credible testimony from several
employee witnesses that they saw large numbers of the "no
union" "bumper stickers" pasted about the plant without
removal.
In view of Respondent's own antiunion campaign pur-
3 Tmbenders is an unflattering appellation to the Sheet Metal Workers'
Union.
1065
sued in the plant and the credible evidence of several wit-
nesses for the General Counsel and the Union that large
numbers of antiunion bumper stickers remained without
being serious effort to remove the "no union" "bumper
stickers" and by this conduct disparately applied its no-
distribution rule to the detriment of the Union, which distri-
buted its literature outside the plant premises. By this con-
duct of the Respondent, when considered in the context of
other impermissible conduct, the Respondent interfered
with the employees' free choice in the runoff election. N.L.
R.B. v. Electro Plastic Fabrics, Inc., 381 F.2d 374 (C.A. 4,
1967); I. T. T. Semi-Conductors, Inc. v. N.L.R.B., 395 F,2d
257 (C.A. 5, 1968); N.L.R.B. v. Lou De Young's Market
Basket, Inc., 406 F.2d 17 (C.A. 6, 1970); John S. Barnes
Corporation, 180 NLRB 911, 916. Cf. N.L.R.B. v. Mid-States
Metal Products, 403 F.2d 702 (C.A. 5, 1968), where the court
said at page 706: "Thus there is a policy in favor of employ-
er neutrality when employees are exercising the basic §7
right of choosing a representative or choosing between
them." See also Ridgewood Management Company, Inc. v.
N.L.R.B., 410 F.2d 738 (C.A. 5, 1969), where the Fifth Cir-
cuit in finding that the respondent employer had discrimi-
natorily applied a no-solicitation rule, based its finding in
the following language:
Furthermore, and most significantly, the Employer
permitted its Resident Manager and a labor relations
consultant to interview employees on the premises dur-
ing working hours in order to persuade them not to
unionize. Under these circumstances, the Board's con-
clusion that the Employer's no-solicitation rule was
discriminatory and in violation of Section 8(a)(1) clear-
ly is supported by sustantial evidence.
E. The Harry Harrison Incident
On May 6, 1972, Respondent's President Larry Jones
issued a bulletin to all employees pointing out that now that
they were without union representation, the Company was
establishing an office of employee relations which would
report directly to Jones and which would serve as a means
for the employees "to give us your complaints and sugges-
tions." The bulletin announced that Claude Brazell would
manage this newly formed group and would select at least
two qualified people to work with him. The bulletin recited
further, "as you know, Claude is a great man for this job and
he and his people will provide you representation that is fair,
honest, and knowledgeable about you and our supervisors
and our procedures. Their work and their judgments will
have my complete interest and attention."
Harry Harrison, as witness for the General Counsel who
had been employed by the Company for 20 years and who
had served as a committeeman for District 50 for 7 years,
testified that shortly after he had recieived the aforesaid
May 16 bulletin, Claude Brazell and Irma Atherton came
down the aisle to his machine. Harrison testified that anoth-
er employee across the aisle named Henry Stregel said to
him, "Here comes Claude and Irma and I believe they are
going to offer you a job." Harrison testified further that
about this time, Claude Brazell remarked "That' s correct.
You hit the nail right on the head. That's what we came to
talk to you about, and I ask you to work on our commit-
tee-that since District 50 had lost the election, wouldn't I
1066 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to go to work for the company-go to work with
them-on the committee ."" Harrison testified he replied,
"You want me to actually go to work on your committee
and here you just discharged my son a few days prior to the
election." Harrison further testified that Claude Brazell said
he knew nothing about the son's discharge but he would
check into it and let him know later. Harrison testified
further that a day or two later Irma Atherton returned to his
place of work . At that time Harrison asked Irma Atherton
what the job consisted of and what it was they wanted of
him. Harrison credibly testified that Irma Atherton told him
they wanted thim to serve on their campaign against the
Sheet Metal Workers, "and didn't I think we should give the
Company a chance to see what they could do, and if we
didn't feel that they were doing the job within this 12 month
period-that we could kick them out and get a union."
Harrison testified that in the course of this conversation
Irma told him that the personnel department had reviewed
his son's record and had decided to put him back to work,
but in a different department . The son was rehired on the
same day or the following day.
Brazell, called by the Respondent , testified that, having
been named as manager of employee relations on May 16,
he and Irma Atherton were out in the plant for the purpose
of making known to the people that they were available to
them to process any complaints they might have . This they
would accomplish by walking down the aisles in a depart-
ment "and the people in the department would see us and
either motion us to come over or come to us." Brazell testi-
fied that Harrison motioned for him and Atherton to come
over . Brazell testified that he and Irma walked over to Har-
rison who then related to him that he thought it was a rotten
deal about his son getting fired. According to Brazell, the
entire conversation was devoted to Harrison's son and he
told Harrison he would check into it . Brazell denied that
any part of the conversation related to offering Harrison a
job on the employee relations committee.
Irma Atherton, called by the Respondent, testified she
first knew about the son's discharge on May 9 when the son
approached her with the details of his discharge . At that
time she told the son she could do nothing for him as he was
still a probationary employee and she had no jurisdiction to
investigate . Atherton corroborated Brazell's testimony con-
cerning his conversation with Harrison at his machine on
May 16 and she conceded that, although she knew the de-
tails in connection with the son's discharge, she remained
silent while Brazell and Harrison were talking about it. Irma
conceded that she came by Harrison's place of work a few
days later where Harrison expressed his gratitude for his son
being rehired . She offered no testimony in denial of
Harrison's testimony that he was asked by Irma to serve on
the campaign against the Sheet Metal Workers Union.
I credit Harrison 's version of the two conversations held,
the first in the presence of Brazell and Atherton, the second
with Atherton alone. Initially it 's obvious that the mission
of Brazell and Atherton as members of the employee rela-
tions committee was to sell the Company to the employees;
hence, their march down the factory aisles waving to work-
4 In his affidavit to a Board agent , Harrison stated that Brazell wanted to
know if Harrison "would help us in our campaign."
ers, in the role of campaigners soliciting questions and com-
plaints , a unique method of demonstrating to the employees
management's solicitude for their welfare without a union.
I am persuaded and I find that Brazell and Atherton solic-
ited Harrison , a former District 50 committeeman, to serve
as a committeeman in the campaign against the Sheet Metal
Workers' Union. I find that such solicitation interfered
with , restrained, and coerced an employee in the exercise of
his Section 7 rights because it placed him in the position of
disclosing his union or nonunion preference . By accepting
the Employer's offer to campaign against the Union, the
employee would believe he is ingratiating himself to the
Employer; and by rejecting the offer he would apprehend
Employer displeasure and reprisal. I therefore find that the
conduct of management representatives Brazell and Ather-
ton, in soliciting Harrison to join the campaign committee
against the Union , violated Section 8(a)(1) of the Act and,
together with other impermissible actiivity described in this
Decision , constituted grounds for setting aside the runoff
election.
IV THE EFFECT OF THE UNFAIR LABOR
PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with its operations de-
scribed in section I, above, have a close , intimate and sub-
stantial relation to trade, traffic , and commerce among the
several States, and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
CONCLUSIONS OF LAW
1. The Respondent, The Coleman Company, Inc., is an
employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, Sheet Metal Workers' International Asso-
ciation, AFL-CIO, is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the conduct of Respondent's management repre-
sentatives and supervisors in making promises of benefits
and threats of reprisal to employees for the purpose of
coercing employees to reject the Union ; by interrogating
employees concerning their union adherence , preference,
and sympathies ; by interviewing them individually in super-
visors' offices to urge them to vote against the Union; and
by maintaining a surveillance of the employees' union pref-
erences, the Respondent interfered with , restrained, and
coerced its employees in the exercise of their rights guaran-
teed in Section 7 of the Act and thereby engaged in unfair
labor practices within the meaning of Section 8(a)(1) of the
Act.
4. By publishing and maintaining an illegal rule prohib-
iting union solicitation or campaigning during working
hours without permission and prohibiting the distribution
of union literature without approval , the Respondent inter-
fered with, restrained , and coerced employees in the exer-
cise of rights to engage in union activity on their own time,
and thereby violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE COLEMAN COMPANY
6. The aforesaid unfair labor practices constituted inter-
ference with the runoff election and the election should be
set aside and a new election held.
Upon the foregoing findings of fact, conclusions of law,
and upon the entire record in this case, I hereby issue the
following recommended:'
ORDER
Respondent, The Coleman Company, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Making promises of benefits ; making threats of repri-
sal; interrogating employees concerning their union prefer-
ences ; maintaining surveillance of their employees' union
preferences or adherences; and interviewing them individu-
ally in a locus of management , for the purpose of interfering
with , restraining , or coercing them in the exercise of their
rights guaranteed in Section 7 of the Act.
(b) Publishing, promulgating , and maintaining a rule
prohibiting union solicitation during the employees' own
time and prohibiting union literature distribution in non-
work areas on the employees' own time, without the permis-
sion or approval of the Respondent.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its place of business copies of the attached sign
notice marked "Appendix." 6 Copies of said notice, on
S In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become Its
findings , conclusions , and Order, and all objections thereto shall be deemed
waived for all purposes.
1067
forms provided by the Regional Director for Region 17,
after being duly signed by the Respondent' s representative,
shall be posted by it immediately upon receipt thereof, and
maintained by it for 60 consecutive days thereafter, in con-
spicuous places, including all places where notices to em-
ployees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region 17, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
OBJECTIONS TO ELECTION
I further find that all of the conduct of the Respondent
heretofore found to have constituted unfair labor practices
within the meaning of Section 8 (a)(1) of the Act also inter-
fered with the employees ' freedom of choice in the selection
of a bargaining representative and constituted sufficient
grounds to set aside the runoff election held on June 1 and
2, 1972 . Dal-Tex Optical Company, Inc., 137 NLRB 1782,
1786-87.
It is therefore recommended that the Union 's objections
to election be sustained and that the runoff election con-
ducted on June 1 and 2, 1972, in Cases 17-RD-449 and
17-RC-6767 be set aside and remanded to the Regional
Director for the conducting of a new runoff election at such
time as, in his judgement, circumstances will permit the free
and uncoerced choice of employees as to whether or not
they wish to be represented by Sheet Metal Workers' Inter-
national Association , AFL-CIO.
6 In the event that the Board's Order is enforced by a Judgement of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgement of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board "