The DeVilbiss Co.

National Labor Relations Board - Board Decisions

Feb 12, 1953

102 N.L.R.B. 1317 (N.L.R.B. 1953)

THE DEVILBISS COMPANY 1317
of our employees or in any other manner discriminating in regard to their
hire or tenure of employment , or any term or condition of their employment.
WE WILL NOT interrogate our employees concerning their union activities,
threaten to shut down the plant or other reprisals , promise economic benefits
to discourage union affiliation and activities ; or in any other manner inter-
fere with , restrain , or coerce our employees In the exercise of their right to
self-organization , to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities.
WE WILL bargain collectively upon request with the above -named labor
organization as the exclusive representative of all employees in the
bargaining unit described herein with respect to rates of pay, hours of
employment , or other conditions of employment , and if an understanding
is reached , embody such understanding in a signed agreement . The bar-
gaining unit is :
All ready-mix truckdrivers of Respondent employed at its Dallas plant,
exclusive of all others including supervisory employees.
All our employees are free to become , remain, or refrain from becoming
members of the above-named union , or any other organization except to the
extent that this right may be affected by an agreement In conformity with
Section 8 ( a) (3) of the Act.
DALLAs CONCRETE COMPANY,
Employer.
By ---------------------------------
Dated-----------------------------
This notice must remain posted for 60 days from the date hereof , and must
not be altered, defaced, or covered by any other material.
THE DEVILBISS COMPANY and INTERNATIONAL UNION, UNITED AuTO-
MOBILE , AIRCRAFr AND AGRICULTURAL IMPLEMENT WORKERS OF
AMERICA, CIO. Case No. 6-CA-501. February 12, 1953
Decision and Order
On October 15, 1952, Trial Examiner Ralph Winkler issued his
Intermediate 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 copy of the
Intermediate Report attached hereto. Thereafter, the Respondent
filed exceptions to the Intermediate Report, and a supporting brief.
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
102 NLRB No. 133.
260983-vol. 102-53-84
1318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
case, and hereby adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner.'
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, The DeVilbiss
Company, Somerset, Pennsylvania, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) Interrogating employees or prospective employees concerning
their union membership and activities.
(b) Prohibiting employees from wearing union insignia which
bears the legend "vote," or similar legends.
(c) Supporting and attempting to form labor organizations.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Union, United
Automobile, Aircraft and Agricultural Implement Workers of
America, UAW-CIO, or any other labor organizations, to bargain
collectively through representatives of their own choosing, and to en-
gage in concerted activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any or all such
activities except to the extent that such rights may be affected by an
agreement requiring membership in a labor organization as a con-
dition of employment as authorized in Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant at Somerset, Pennsylvania, copies of the notice
attached hereto marked "Appendix A." 2 Copies of such notice, to
be furnished by the Regional Director for the Sixth Region, shall,
after being duly signed by the Respondent's authorized representative,
be posted by the Respondent immediately upon receipt thereof, in
conspicuous places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken by the Re-
i We find no merit in the Respondent 's contention that Section 10 (b) of the Act requires
dismissal of certain allegations of the complaint . See Cathey Lumber Company, 86 NLRB
157, enforced 185 F. 2d 1021 (C A 5).
Regardless of the Respondent 's purposes in supporting and attempting to form a labor
organization , we agree with the Trial Examiner that it thereby violated Section 8 (a) (1)
of the National Labor Relations Act
The first paragraph of the Intermediate Report states erroneously that the complaint
contains an S (a ) ( 3) charge. We hereby correct this error.
We also agree with the Trial Examiner that the Respondent violated Section 8 (a) (1)
by its prohibition against the wearing of union T-shirts and buttons. See Gates Rubber
Company , 40 NLRB 424, 438-441.
2 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals , Enforcing An Order."
THE DEVILBISS COMPANY 1319
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order what steps the
Respondent has taken to comply herewith.
CHAIRMAN HERzoo took no part in the consideration of the above
Decision and Order.
Appendix A
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WE WILL NOT interrogate employees or prospective employees
concerning their union membership and activities.
WE WILL NOT prohibit the wearing of union buttons, T-shirts,
or other union insignia.
WE WILL NOT support labor organizations.
WE WILL NOT in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to from labor organizations, to join or assist the UAW-CIO or
any other labor organization, to bargain collectively through rep-
resentatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a condition
of employment, as authorized in Section 8 (a) (3) of the National
Labor Relations Act.
Our employees are at liberty to wear T-shirts, buttons, or other
insignia of the UAW-CIO or of any other union even though
such insignia also says "vote" or "join."
THE DEVILBISS COMPANY,
Employer.
Dated-------------------------- By-----------------------------
(RpnrPAentAtive) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
Upon charges filed by International Union, United Automobile , Aircraft and
Agricultural Implement Workers of America, CIO, a labor organization herein
1320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
called the UAW-CIO, the General Counsel for the National Labor Relations
Board, by the Acting Regional Director for the Sixth Region (Pittsburgh, Penn-
sylvania ), issued a complaint on August 8, 1952, against The DeVilbiss Company,
herein called the Respondent, alleging that the Respondent had engaged in speci-
fied conduct violating Section 8 ( a) (1) and ( 3) and Section 2 (6) and (7) of
the Labor Management Relations Act, 1947, 61 Stat. 136, herein called the Act.
Copies of the complaint and charges were served upon the Respondent, and the
Respondent in turn filed an answer denying the commission of the unfair labor
practices alleged.
Pursuant to notice, a bearing was held in Somerset, Pennsylvania, on Septem-
ber 11 and 12, 1952, before the undersigned Trial Examiner . The General Coun-
sel, the Respondent, and the UAW-CIO were represented at the hearing and all
parties were afforded full opportunity to be heard, to examine and cross-examine
witnesses , and to introduce evidence bearing on the issues . The parties were
given opportunity to present oral argument before the Trial Examiner and also
to file briefs and proposed findings of fact and conclusions of law . The Respond-
ent has moved to dismiss the complaint , which motion is disposed of in accordance
with the following findings of fact and conclusions of law.
Upon the entire record in the case, and upon observation of the demeanor of
witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is an Ohio corporation with plants in several States including
a plant at Somerset, Pennsylvania, where the present action arose . During the
12-month period ending August 1952, the interstate purchases of materials and
sale of finished products of the Somerset plant were valued at $250,000 and
$700,000, respectively.
I find that the Respondent is engaged in commerce within the meaning of the
Act.
II. THE UNFAIR LABOR PRACTICES
A. Advent of organizational a4eti"ties
The UAW-CIO began organizing the Respondent 's employees in June 1951
and its organizational techniques included circulation of literature , solicitation
of union -designation cards, meetings , and distribution of various items bearing
union insignia.
After the inception of these organizational activities , Group Leader Eleanor
Lowery ( a supervisor within the meaning of the Act)' asked several employees
under her supervision whether a UAW-CIO organizer had been to see them
and whether they were for the Union . Lowery told one of these employees
(Mary Lambert) that Plant Manager Botcher was "afraid" Lambert "might be
for the union ." Samuel Salkel , supervisor in the shipping department, also
told employee Donald Will that "the company was just getting started [the
plant had been in operation only a few months at the time ] and we would be
just as well o8 if we didn 't organize right then." The record further shows
1 As a group leader Lowery has authority to make effective recommendations as to hiring
and firing, to make reports on infractions of rules, and otherwise to responsibly direct
employees. The record in a current representation case is incorporated by reference in
the present matter and it is noted , as the Respondent states in its brief , that the Board has
determined in its decision in this R-case that group leaders are supervisors within the
meaning of the Act (unpublished decision , issued September 15, 1952).
THE DEVILBISS COMPANY 1321
that when Personnel Manager Martin Markel Interviewed Homer Burkett for
a job in 1951, Markel inquired whether Burkett had been a union member at
Burkett 's former place of employment.
Among other things, the UAW-CIO distributed T-shirts to employees during
its campaign. These shirts bore the UAW-CIO's name and insignia and also
contained either the word "vote" or "join" above the inscribed name of the
Union . The employees who wore these shirts at work in July 1952 were promptly
instructed by their supervisors on orders from Kotcher that they should not
wear the shirts in the plant' Kotcher testified that he also advised his super-
visors that employees might wear shirts bearing the UAW-CIO's insignia but
without the words "join" or "vote" on them ; he also testified, however, that he
-did not direct that employees be advised to this effect.
Kotcher asserted that the Respondent has a policy against solicitation of any
kind on company property and that he interpreted this policy to prohibit the
wearing of the shirts under consideration . The record establishes, however,
that employees had never before been instructed to refrain from solicitation on
company property. It appears , moreover , that employees have frequently and
openly solicited money on company property to purchase gifts for departing
employees, that Supervisor Lowery has contributed to such funds, and that a
collection of this sort occurred as recently as in the spring or summer of 1952.
Apart from characterizing the shirts as a form of solicitation, the Respondent
does not contend that they were otherwise improper ; nor does it claim that
the wearing of such apparel by some employees either caused or tended to cause
any disruption in plant operations or any friction in the plant relationship of
employees.
It appears, therefore, and I find, that the Respondent has unlawfully interro-
gated employees and prospective employees concerning their union membership
and activities in violation of Section 8 (a) (1) of the Act. Joy Silk Mills v.
N. L. R. B., 185 F. 2d 732, 743 (C. A. D. C.), certiorari denied, 341 U. S. 914.
I also find that the Respondent unlawfully prohibited the wearing of union
buttons and T-shirts. It appears that the Respondent permitted and in fact
instigated and otherwise participated in and supported activities to form a rival
labor organization on company time and premises, as discussed hereinafter.
Without anything more, such disparate treatment is unlawful. Salant d Sal ant,
Inc., 92 NLRB 417, 446; Standard-Coosa-Thatcher Company, 85 NLRB 1358,
1364. I am of the opinion, moreover, that even in the absence of the unequal
treatment factor the Respondent may not bar the wearing of union insignia on
company premises , whether or not such articles also contain the legends "vote"
-or "join" or "support ." Employees generally have a right under the Act to
wear union insignia on company property,' and the words "join" or "vote" or
"support" do not destroy the essentially protected character of the insignia and
convert such insignia into the kind of solicitation which is otherwise amenable
to proper rules under proper circumstances . Most, if not all, insignia , union or
otherwise , have certain propaganda effects , and the words "vote" or "Join" on
union insignia during a union campaign convey no additional ideas not implied
in a button or T-shirt which contains only the union name. Moreover , there was
no littering of production premises or other disruption of plant production or plant
2 The Respondent also prohibited the wearing of union buttons , about the size of a half-
dollar, which said "support your union , vote yes."
s Republic Aviation Corp . v. N. L. it. B., 324 U . S. 793 , 802, quoting approvingly from
the Board's decision in that case ( 51 NLRB 1187-1188 ) that "the right of employees to
wear union insignia at work has long been recognized as a reasonable and legitimate form
-of union activity , and the Respondent 's curtailment of that right is clearly violative of
the Act."
1322 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discipline. Under the circumstances I am convinced that the Respondent's only
reason for barring the T-shirts and buttons was their relationship to the UAW-
CIO's campaign. Whatever the reason, however, I find that the Respondent
violated Section 8 (a) (1) of the Act by its prohibition against the T-shirts
and buttons. Republic Aviation Corp. v. N. L. R. B., supra.
The General Counsel also alleges that the Respondent deprived Donald Will
of overtime work because one day in the plant Will wore one of the afore-
described T-shirts. There were three employees and Supervisor Salkel in Will's
shipping department and Will was the only employee in the department to
wear such shirt. Salkel advised Will at the time that it was against company
rules to wear the shirt in the plant and that he must not do so again. Will
replied that he would follow Salkel's instructions. That same evening the two
other employees in the department worked overtime. According to Will's
credible testimony, this was the only occasion, before or since, that some employ-
ees in his department received overtime work and he did not. Salkel testified
that the number of employees assigned to overtime work varied with the work-
load, that he selected employees for such extra work on the basis of depart-
mental seniority when fewer employees than the entire department's comple-
ment were needed, that Will had the least seniority on that basis, and that only
two employees were required for overtime work the day in question.
Will discussed the matter with Salkel the following day, at which time
Salkel stated that Will's work was satisfactory and that Will would continue
to receive overtime work. In a later conversation, Salkel told Will, as stated
above, that "we" are just as well off without a union.
Mere coincidence may explain the fact that Will did not receive overtime
work on the single occasion during his employment since 1951, although I am
inclined to doubt it. Without finally resolving this issue, however, and con-
sidering that the alleged discrimination occurred but once and to only one
employee, I shall recommend dismissing this allegation as to Will with a
cautionary statement to the Respondent that it is unlawful to deprive employees
of overtime compensation or otherwise to discriminate against employees be-
cause of their participation in protected concerted activities, including the wear-
ing of union insignia.
B. The Gripe Committee
In August 1951, shortely after the UAW-CIO began its organizing campaign,
Plant Manager Kotcher convened a meeting of employees during working time
on company premises, and plant operations were halted during the meeting.
Employees were instructed to attend this meeting by their supervisors and they
suffered no loss of earnings for the time spent away from their work. In his
speech to the employees, Kotcher suggested among other things that the em-
ployees form a "Gripe Committee" for "suggestions, gripes, or anything to
better the working conditions," including "entertainment" as well, and that if
anything did not "suit" the employees they should present such matters to the
Committee which in turn would take them up with management. Botcher then
left the meeting room and slips of paper were distributed on which the employees
designated their choice of representatives on the Committee. After indicating
their respective selections, the employees left their ballots on the desk used by
Supervisor Lowery. Lowery and Manager Botcher were standing at the desk
at the time and Lowery then tallied the ballots. The Committee was called the
"Gripe Committee," the name suggested by Kotcher. (Botcher testified, among
other things, that he called the meeting in order to relieve the stresses of a new
operation, and thereby to put the employees at greater ease in their relationship
with management and in regard to their own work performance.)
THE DEVILBISS COMPANY 1323
In February 1952 the employees held a meeting during a rest period on com-
pany premises to select new members for the Gripe Committee. Lowery was
present. Carmel D'Arrigo, a rank-and-file employee, conducted the meeting
and nominations were made . When employees returned to their work stations,
ballots which had been prepared in the office were distributed during working
hours by Supervisor Lowery and Foreman Robert Morgan in their respective
departments and the ballots also were filled out during working hours. Lowery
observed that Mary Lambert, one of the employees in her department , had not
cast her ballot whereupon Lowery advised Lambert that "you are supposed to
vote, because ... it is Mr. Kotcher's idea." The results of the election ap-
peared on the company bulletin board.
The committee has held monthly meetings on company premises after plant
production hours. However, committee member Mary Rush, of the office staff,
has been attending these meetings during office time which extends beyond the
plant production hours. The Committee also has been using the plant bulletin
board for its notices. The Gripe Committee was renamed the Entertainment
Committee about March 1952 because, according to one employee, the Committee
was principally engaging in social activities.
I conclude that the Respondent attempted to establish the Gripe Committee as
a substitute for a bona fide collective-bargaining representative, more particu-
larly as a means of combating the UAW-CIO's organizational drive. The Gripe
Committee was intended to function, in part at least, for the discussion, consider-
ation, and improvement of the employees' working conditions, and as such it
would have been a labor organization within the meaning of Section 2 (5) of
the Act. Indiana Metal Products Corp., 100 NLRB 1040; General Shoe Corp.,
90 NLRB 1330, 1332-1333, enforced 192 F. 2d 504 (C. A. 6), certiorari denied
343 U. S. 904; Raybestos-Manhattan, Inc., 80 NLRB 1208; Wrought Iron Range
Company, 77 NLRB 487. However, I do not believe the evidence substantial
enough to find that the Gripe Committee, after it came into being, regularly func-
tioned as a labor organization within the contemplation of Section 2 (5). 1
conclude, therefore, that the Respondent violated Section 8 (a) (1) of the Act by
its support and other conduct in attempting to form, although I do not find that
it succeeded in forming, a labor organization.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section If, above, occurring in
connection with the operations of the Respondent described in section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
IV. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, I
shall recommend that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
CONCLUSIONS OF LAw
1. The Respondent has violated Section 8 (a) (1) of the Act by interrogating
employees and prospective employees concerning their union membership and
activities, by prohibiting employees from wearing union insignia, and by support-
ing and engaging in other conduct in attempting to form a labor organization.
2. The aforesaid unfair labor practices affect commerce within the meaning
of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication in this volume.]