The Lorben Corp.

National Labor Relations Board - Board Decisions

May 11, 1964

146 N.L.R.B. 1507 (N.L.R.B. 1964)

THE LORBEN CORPORATION 1507
ing that Turner was prounion and testified that . he did not know about the repre-
sentation hearing until 3 weeks after it happened and further testified that he did
not know Turner had been at the Board hearing . I credit McGill 's testimony.
James Whitfield also testified that he had no knowledge that Turner was with the
union people at the Board hearing and did not know that Turner was a union
sympathizer . I credit Whitfield 's testimony.
Upon the entire record I find that the General Counsel has failed to prove by the
required preponderance of evidence that the discharge of Joe Frank Turner was dis-
criminatorily motivated in violation of the Act. The complaint to that extent should
be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of Respondent set forth 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 thereof.
V. THE REMEDY
In view of the findings set forth above that the Respondent has engaged in unfair
labor practices defined in Section 8(a) (1) of the Act, I shall recommend that Re-
spondent be required to cease and desist therefrom and take such affirmative action
as appears necessary and appropriate to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in the
case , I make the following:
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the meaning of Section 2(6) and
(7) of the Act.
2. The Union is a labor organization as defined in Section 2(5) of the Act.
3. By posting a bulletin. board notice and mailing to each employee a notice stat-
ing its position to include -a sincere belief that the coming of the Union would work
to employees' serious harm and by the speech in which Respondent warned em-
ployees that it would close the plant if the Union secured representation rights, Re-
spondent engaged in unfair labor practices constituting interference , restraint, and
coercion as defined in Section 8(a) (1) of the Act.
4. By interrogating an employee concerning distribution of union literature, the
Respondent engaged in unfair labor practices defined in Section 8(a)(1) of the Act.
5. The Respondent did not violate Section 8 (a) (3) of the Act.
The foregoing unfair labor practices affect commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted'from publication.]
The Lorben Corporation and Local 1922,, International Brother-
hood of Electrical Workers, AFL-CIO -
The Lorben Corporation and Local 1922 , International Brother-
hood of Electrical Workers, AFL-CIO. Cases Nos. 2-CA-9265
and 2-CA-9475. May 11, 1964
DECISION AND ORDER
On October 25, 1963, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom, and take certain
affirmative action, as set forth in the attached Trial Examiner's De-
146 NLRB No. 174.
1508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cision. He also. found that Respondent had not engaged in certain
other alleged unfair labor practices and recommended the dismissal
of these allegations of the complaint. Thereafter, the General Counsel
and the Respondent filed exceptions to the Trial Examiner's Decision
and supporting briefs.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with these cases to a three-
member panel [Members Fanning, Brown, and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed.' The Board has considered the Trial'
Examiner's Decision, the exceptions and briefs, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.2
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the National Labor Relations Board hereby adopts as its
Order the Recommended Order of the Trial Examiner and orders that
the Respondent, The Lorben Corporation, its officers, agents; suc-
cessors, and assigns, shall take the action set forth in the Trial Ex-
aininer's Recommended Order, with the following modifications:
Paragraph 1(a) is amended to read as follows :
(a) Interfering with, restraining, or coercing its employees in
the exercise of their rights guaranteed by Section 7 of the Act by
interrogating them concerning their union activities or sym-
pathies or by polling them in a manner constituting restraint and
coercion within the meaning of Section 8(a) (1) of the Act.
1 Respondent contends it was prejudiced because the complaint in Case No. 2-CA-9265
alleged certain conduct to be violative of the Act which was not contained in the charge.
Before the Trial Examiner ruled on Respondent 's motion to dismiss on that ground, the
Union filed a new charge and a complaint issued in Case No. 2-CA-9475 which contained
allegations identical to those in Case No. 2-CA-9265 but based on a charge which con-
tained those allegations . Over the objections of the Respondent the two cases were con-
solidated and the parties stipulated that the record made in the first hearing constituted
the record in the consolidated hearing. The Respondent now contends that the original
complaint was invalid because it was not based on a proper charge and further contends
that the second complaint is invalid because it duplicates the first complaint and was
issued when the original complaint was still outstanding . We agree with the Trial
Examiner that any defect that may have existed because of the original charge and
complaint was subsequently remedied by the filing of a timely new charge and the issuance
of a second complaint . Inasmuch as the complaint in Case No. 2-CA-9475 was validly
issued and the Respondent was fully apprised of the conduct alleged to be unlawful and
as. the issues therein were 'fully litigated , we conclude that the procedure utilized did not
result in prejudicial error.
ewe agree with the Trial Examiner that Respondent violated 8( a)(1) of the Act in
polling the employees . In reaching this conclusion we rely principally on the manner in
which the poll was conducted , particularly the fact that Respondent did not explain the
purpose of the poll to all of the employees , and did not offer or provide any assurances
to the employees that their rights under the Act would not be infringed . Johnnie's
Poultry Oo ., 146 NLRB 770.
THE LORBEN CORPORATION 1509
The first substantive paragraph of the Appendix is amended to read
as follows :
WE WILL NOT interfere with , restrain , or coerce our employees
in the exercise of their rights guaranteed by Section 7 of the Act
by interrogating them concerning their union activities or sym-
pathies or by-polling them in a manner constituting restraint and
coercion within the meaning of Section 8(a) (1) of the Act.
TRIAL EXAMINER 'S DECISION -
STATEMENT OF THE CASE
On April 11 , 1963, Local 1922 , International Brotherhood of Electrical Workers,
AFL-CIO, herein called the Union , filed a charge in Case No. 2-CA-9265 against
The Lorben Corporation , herein called the Respondent , asserting that employee
Theodore Maritas had been discharged for engaging in protected activities in viola-
tion of Section 8 (a)(3) of the Act. Although the charge contained the customary
printed language that Section 8 ( a)(1) of the Act was violated by the Respondent's
unfair labor practices , the inserted language was so drafted as to preclude attribution
to the Respondent of any conduct independently violative of Section 8 (a) (1) of the
Act. Apart from the reference to Maritas ' discharge nothing was stated in the charge
about any other conduct claimed to be unlawful , and, the charge concluded with a
statement that "by the acts set forth above," meaning Maritas' discharge, the
Respondent violated the Act. Nevertheless, the ensuing complaint based on this
charge issued on May 31, 1963 , on behalf of the General Counsel by the Regional
Director for the Second Region , contained no allegation that the Respondent had
violated Section 8(a)(3) of the Act by discharging Maritas or any other employee,
but alleged certain independent violations of Section 8(a)( I) of the Act including
offers and grants of wage increases to induce abandonment and support of the Union.
interrogation of employees concerning their union sympathies and activities and the
solicitation of employee signatures to signify their desire not to be represented by the
Union . A hearing on this complaint was held before Trial Examiner Thomas N.
Kessel in New York, New York, on July 11, 1963. At the conclusion of the General
Counsel 's case-in-chief and again at the close of the hearing motions were received
from the Respondent to dismiss the complaint on the ground that the allegations there-
in were not sufficiently related to the unlawful conduct described in the charge.
Counsel relied on the opinion of the United States Court of Appeals for the Second
Circuit in N.L.R.B. v. Dinion Coil Company, Inc., 201 F. 2d 484, in support of the
contention that a valid complaint must allege violations closely related to those con-
tained in the charge . I expressed doubts in discussion at the hearing as to the
validity of the complaint but reserved ruling on the motions to dismiss to provide
counsel with opportunity to present arguments and briefs after the close of the
hearing.
On July 15, 1963 , the Union filed a charge against the Respondent in Case No.
2-CA-9475. This charge specifically claimed that the Respondent had committed
the conduct alleged in the complaint in Case No. 2-CA-9265 as violative of Sec-
tion 8 (a)(1) of the Act. Based on this charge the General Counsel, by the Acting
Regional Director for the Second Region , issued a complaint dated July 31, 1963,
containing the identical allegations set forth in the first mentioned complaint herein.
In effect the second complaint is a replica of the first. There followed the General
Counsel 's motion to consolidate the complaints in both cases and to reopen the hear-
ing, the Respondent 's motion to dismiss the complaint in Case No. 2-CA-9475, and
the General Counsel 's opposition thereto. Arguments on these motions were heard
at New York City, on August 20, 1963. On this occasion I denied the motion to
dismiss the complaint in Case No. 2-CA-9475 and granted the motion to consolidate
this case with Case No. 2-CA-9265. The arguments of counsel for and against
these motions appear in the transcript of notes and need not be elaborated here. The
reasons for my rulings are also explicated in the transcript and need not be restated'
at length . In short , I noted that the charge in Case No. 2-CA-9475 was timely filed"
within the Section 10(b) 6 months period following the commission of the com-
plained of conduct , that the complaint based thereon was regular on its face , that the
Union and the General Counsel were seeking by the charge and complaint merely
to cure a possible technical defect in Case No. 2-CA-9265, that the Respondent's
1510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
defense on the merits in the entire proceedings was not prejudiced , and that I
perceived no abuse of the Board 's processes by the issuance of the second complaint
and its consolidation with the first. I was motivated in reaching these conclusions
by the expeditious agreement of the parties to stipulate with a minute exception that
the record made in Case No. 2-CA-9265 should constitute the record in the con-
solidated proceeding . The Respondent 's answer to the complaint in Case No.
2-CA-9265 denies all the allegations therein of statutory violation . While no for-
mal answer was filed to the complaint in Case No. 2-CA-9475, I construe the stipula-
tion that the record made in Case No. 2-CA-9265 be the record for the consolidated
proceeding as meaning that the answer filed to the complaint - in that case also con-
stitutes the answer to the complaint in Case No. 2-CA-9475.
After the close of the hearing in Case No. 2-CA-9265 the General Counsel and
the Respondent filed briefs . I was informally advised by them after hearing argu-
ments on the motions on August 20, 1963, and my order consolidating the com-
plaints herein that their respective positions in the consolidated proceedings were
adequately set out in the foregoing briefs. I have considered these briefs in con-
nection with the findings and conclusions made herein.
Upon consideration of the entire record-and from my observation of the witnesses,
I make the following:
FINDINGS AND CONCLUSIONS
1. THE PERTINENT COMMERCE FACTS
The complaint alleges and the answer does not deny that the Respondent is a New
York corporation maintaining its principal office and place of business in the village
of Oceanside, township of Hempstead, New York, where it has been engaged in the
manufacture, sale, and distribution of electronic components; that in the year preced-
ingissuance of the complaints the Respondent manufactured, sold, and distributed
from its place of business products valued in excess of $50,000 which were shipped
directly to points in other States. From the foregoing I find that the Respondent is
engaged in interstate commerce within the meaning of the Act and that the purposes
of the Act will be effectuated by the Board's assertion of jurisdiction over its opera-
tions in these proceedings.
IT. THE LABOR ORGANIZATION INVOLVED
The record shows that the Union is a labor organization which admits to member-
ship the employees of the Respondent.
ITT. THE UNFAIR LABOR PRACTICES
On or about April 1, 1963, the Union began organizing the Respondent's plant and
secured the adherence of four employees in a force of 25 or 26. No request for
recognition was made. On April 4, the Union held a meeting of employees to de-
cide what to do about the discharge of an employee, the aforementioned Maritas,
believed to have been discharged for union activities. It was decided to strike and
picketing began the next day, April 5. Union Business Agent Mancuso testified that
a picket sign was carried proclaiming the strike against the Respondent with an
appeal worded "please help us maintain decent working conditions." Benjamin
Nachbar, the Respondent's president, testified that Maritas came to him about 2 days
after the strike started and asked whether he wanted to have any discussions with the
Union's officials. Apart from the foregoing circumstances there was no evidence
of any demand made by the Union for recognition as bargaining representative of
the Respondent's employees. Nachbar testified that he nevertheless reasoned that
the Union's picketing was for this object. He related that during the strike pickets
blocked the entrance of vehicles to the plant, threats of damage were made to trucks,
an employee and other persons seeking to enter the plant were physically threatened
and deliveries were prevented. In the circumstances he contacted his attorney for
advice and was informed that he must ascertain whether a majority of the employees
desired representation by the Union before it could lawfully be accorded recogni-
tion. The attorney further advised that the employees be polled to determine their
desires. Nachbar was instructed to have them register their choice for or against
representation by writing their names on a sheet of paper. He thereupon caused to
be prepared a paper sheet with room for employee signatures in one of two columns
expressing whether or not they wanted to, be represented by the Union.
•Superintendent Frederick Ludwig testified that he approached each employee with
the foregoing sheet and solicited his participation in the poll pointing out to.the em-
ployees that they were free to sign or not. He acknowledged giving no other ex-
THE LORBEN CORPORATION 1511
planation for, as he related, the wording on the document was self-explanatory to the
employees. He admitted that all the employees signed in his presence as he stood
nearby and that each employee could see how the participants before him had reg-
istered their choices on the sheet. Without exception all 22 employees who signed
their names to the sheet signified rejection of the Union. Upon the completion of
the poll Ludwig gave the document to Nachbar who in turn mailed it to his attorney.
The latter destroyed the document.
Employee Virgil Kennerly testified that about the time the picketing started Presi-
dent Naohbar asked him what he thought of the Union and that he briefly replied it
had merits and faults and that not all unions are alike. That, said Kennerly, was
all the conversation on the subject. Nachbar claimed no recall of any conversation
with Kennerly about the Union except on the occasion during the strike when he
acceded to his request for a pay raise and emphasized that the action was not in any
way related to the picketing.
The General Counsel insists that Nachbar and Ludwig have embroidered their
descriptions of the employee poll by claiming that employees were given multiple
choices including the choice of not participating at all. Relying on Ludwig's pre-
hearing affidavit in which he related that "employees indicated their desire not to
have Local 1922 represent them by affixing their signatures on the document" the
General Counsel stresses that in fact the employees were requested by Ludwig to
signify only their desire not to be represented by the Union. I need not pass on the
General Counsel's construction of the record for I find that the poll was unlawful
whether conducted as described by the Respondent or the General Counsel.
The Board's Blue Flash doctrine (Blue Flash Express, Inc., 109 NLRB 591)
countenancing certain employer polls of their employees' union sentiments contains
the caveat that it "does not . grant employers a license to engage in interroga-
tion of their employees as to union affiliation or activity." Each case in which the
lawfulness of such polls is attacked involves the test "whether, under all the circum-
stances, the interrogation reasonably tends to restrain or interfere with the employees
in the exercise of rights guaranteed by the Act." In determining whether the polling
of employees is unlawful the Board looks to such factors as the legitimacy of the
Employer's purpose, whether that purpose was communicated by the Employer to
the employees, whether they were reassured no reprisals would take place irrespective
of how they register their views in the poll, and whether questioning occurred in
a background free of employer hostility to union organization. Applying this test,
I am satisfied that the poll in question, conducted as the Respondent says it was,
violated the Act.
I reach the foregoing conclusion notwithstanding the absence in this case of
expression of employer hostility to the Union, or of other unfair labor practices. As
to the latter element, the Board in Blue Flash emphasized that interrogation which
violates the Act must not necessarily be accompanied by other unfair labor practices.
The vice in the Respondent's poll lies in the fact that it had no legitimate purpose.
As such it constituted a naked invasion of the right of employees to privacy in their
union views and activities. Invasion of this right without the justification and safe-
guards set out in Blue Flash reasonably tends to interfere with and restrain em-
ployees in the exercise of their statutorily protected rights.'
The Respondent seeks refuge in the .advice of counsel to Nachbar to poll the
employees and to accord the Union recognition if the poll showed it was favored by
a majority. The advice is as puzzling as the Respondent's action in following it,
if indeed this explains the Respondent's conduct of the poll. At no time had the
Union made any claim that it represented a majority of the Respondent's employees
or that it sought recognition from the Respondent as such representative. Neither
the Union's misconduct in the strike nor the signs carried by the pickets provided
any logical reason for belief by the Respondent that the strike was waged to secure
recognition as collective-bargaining representative of its employees. Nor did Maritas'
inquiry of Nachbar about whether he wanted to speak to the Union's officials permit
such belief: If anything this reasonably conveyed to Nachbar that the strike was
associated with Maritas' discharge which in fact provoked the strike. Thus there
was no warrant for Respondent's counsel to advise or.for the Respondent to act
as if the Union had requested or was seeking to force recognition. Furthermore
had the Respondent entertained any doubt that this was the Union's objective it could
have cleared up the matter by a simple inquiry. So far as this record shows the
Respondent did not make any inquiry of the Union but instead brusquely proceeded
with its poll.
1 S. H. Kress & Co., 137 NLRB 1244, 1249.
1512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without indication from the Union that it sought recognition, what legitimate
purpose could the Respondent have had in polling the Union's sentiments of its
employees? None, so far as I can perceive. All that the poll could and did accom-
plish was to subject the employees.to their Employer's interrogation concerning a
matter to which they have the protected right of privacy. While this was done the
Respondent said nothing about its reasons for the poll but left the employees to
'conclude, as well they may have in the circumstances, that the Respondent was
interested just in knowing where they stood about the Union to determine what steps
it should take to discourage any union adherence revealed by the poll. No assur-
ances were given that the Respondent had no such motive, or that no reprisals would
be taken against any who signified they were for the Union. Ludwig's instruction
that employees were free not to sign the.polling sheet was small comfort to any
employee who was disinclined to participate in the poll. I doubt that any employee
who was handed the sheet by Ludwig felt free to tell him he would not sign especially
when he could see how many of his fellow employees had already signed and that
by his refusal he might be an outstanding exception. The net effect was to compel
participation in the poll by all 22 employees then in the plant with opposition to the
Union registered by all. Henceforth, each employee knew that his deviation from
this pattern of unanimity would distinguish him from his fellow employees. The
risk of such exposure would with lasting effect reasonably tend to stultify the exercise
of the freedom of choice for or against union representation guaranteed the Respond-
ent's employees by the Act. By its poll of employees the Respondent violated Section
8(a)(1)oftheAct.2
Nachbar's inquiry of employee Kennerly as to what he thought about the Union
would, standing by itself, be too isolated to warrant a finding that the Respondent
thereby violated the Act. However it was an inquiry of a kind associated with the
foregoing unlawful poll and tended to form part of the Respondent's total pattern
of systematic interrogation of employees concerning their union views and sympathies.
Accordingly, I find that by this inquiry the Respondent further violated Section
8 (a) (1) of the Act.
Upon conclusion of the General Counsel's case-in-chief at the hearing in Case No.
2-CA-9265 I granted the Respondent's motion to dismiss the allegation in the com-
plaint that the Respondent had in violation of Section 8(a)(1) of the Act offered
and granted wage increases to induce employees to abandon and cease supporting the
Union. In his brief filed after the close of that hearing the General Counsel re-
quested reconsideration and reversal of the dismissal. The foregoing allegation was
repeated in the complaint in Case No. 2-CA-9475. At the argument in that case
on August 20, 1963, another item of evidence relevant to the allegation was received
by stipulation of the parties. The Respondent thereupon moved for dismissal of the
allegation. The motion was granted. In effect, the General Counsel's request for
reversal of the dismissal in Case No. 2-CA-9265 was denied. My rulings were
based on the following considerations.
Specifically, the General Counsel contends that wage increases were granted four
employees effective March 30, and seven employees effective April 6, 1963, in viola-
tion of Section 8(a) (1) of the Act. As noted, Business Agent Mancuso testified
that organization of the Respondent's plant bad started on April 1, four employees
were signed by the Union, the Union held a meeting for the Respondent's employees
on April 4 at which time it was voted to strike because of the discharge of Employee
Maritas, and on April 5 the strike began. As found, the Respondent unlawfully
polled and otherwise interrogated its employees during the strike which it claimed
to believe, without logical reason, was for recognition. There is no evidence of
union animus by the Respondent.
Summaries in evidence of payroll records reveal that during January, February,
March, and April 1963, the Respondent granted 17 pay increases to employees
including the 11 under attack. In 1962 the Respondent granted 26 increases, and in
1961 it granted 20 increases. At the argument before me on August 20, 1963, the
parties stipulated that Respondent pays its employees on Tuesday of each week for
work performed in the payroll week ending on the preceding Friday.
President Nachbar testified that the Respondent customarily reviews the wage
scales of employees near the end of quarterly periods of each year, and grants in-
creases based on the recommendations of the plant manager or chief foreman.
Individual raises, he claimed, are scattered throughout the year. The foregoing pay-
roll summaries establish no distinct time pattern for raising wages. Small groups
of two to six employees in 1961 and 1962 received simultaneous increases in various
months indicating some support for Nachbar's claim of periodic reviews but not on
a regular periodic basis. The impression is that without any planned periods for
2 Petroleum Carrier Corporation of Tampa, Inc., 126 NLRB 1031.
THE LORBEN CORPORATION 1513
wage reviews small groups in one month or another received increases and in between
individual employees also received increases . From the experience of employee John
Sofia, who received frequent increases, it may be assumed that the Respondent's
policy is to award its meritorious employees wage increases whenever their ability
and worth are recognized and this may even occur several times yearly.
Plant Manager Ludwig had resumed his position with the Respondent on April 3,
1963, after an absence of about 2 years during which there had been two other
managers in the post. President Nachbar, called by the General Counsel as an
adverse witness, testified that within a day or so after Ludwig's return to the plant,
Ludwig and other managerial persons, presumably including Nachbar, reviewed the
personnel situation and among other things decided to give certain employees raises.
Most, but not all employees, were considered in this first review which, Nachbar
related, occurred before the picketing began on April 5. Time did not permit
completion of the review on this first occasion, and it was continued during the
following week.
Examined by the Respondent's counsel, Nachbar elaborated that Ludwig's prede-
cessor had made commitments to employees for wage increases but had not carried
out his promises. Accordingly, when Ludwig returned be was besieged by inquiries
from employees about wage increases. At least half of the force had known Ludwig
when he had formerly been the Respondent's manager and, according to Nachbar,
his familiarity with their merits facilitated his decision within a day or two after
his arrival to recommend several wage increases. Nachbar maintained that when
he started the personnel reviews with Ludwig he had not learned from any source that
the Union was organizing the employees and was completely unaware of any union
activities in the plant. He conceded that among the seven increases effective April 6
some were decided upon before the April 5 picketing and some later. He denied
that any employee was informed that his raise was in any way related to the picket-
ing. One employee, the aforementioned Kennerly, had directly asked Nachbar for
a raise. Kennerly's testimony indicates that he asked for and received the raise
after the picketing started. Nachabar conceded that he granted the request at the
time and acknowledged that Kennerly had not before then received a merit increase
for 2 years. He explained that Kennerly's raise had been long overdue and that it
had been neglected by the former plant manager. When Kennerly thanked him for
the raise he pointedly told him it had been merited and emphasized that the picketing
taking place had had no bearing on it.
In granting the motion to dismiss the allegation that the March 30 and April 6
increases were unlawful on the ground that the General Counsel's proof was not
sufficient to sustain the allegation, I took into account Nachbar's testimony which I
credited. While all his testimony was not technically adduced by the General
Counsel and did not constitute part of his prima facie case, it would, in my opinion,
have been wasteful procedure to disregard evidence on the motion which when con-
sidered later would have resulted in dismissal of the allegation upon consideration
of the full record. - The General Counsel's proof did not sustain the allegation as
to the March 30 increases as it failed to show they were granted with knowledge
by the Respondent of union activities. As to the April 6 increases, I was persuaded
by Nachbar's credited testimony that they were granted in accordance with his
explanation as part of the general review started before the Union's activities were
thrust into the open by the April 5 picketing. I was satisfied that with Ludwig's
return to the plant the employees became aware of the consideration being given to
their demands for wage increases, and that they could reasonably understand that
the increases granted were associated with Ludwig's interest in their behalf and
,were not intended to wean them away from the Union. In this connection, I also
was motivated by the absence of any expression of hostility to the Union by the
Respondent, and Nachbar's careful reminder to Kennerly that he should not attribute
his raise to the picketing. Although I have found the poll and Nachbar's inquiry
to Kennerly about the Union unlawful, I did not regard this misconduct of a sort
which in all the circumstances would have led the employees to believe their in-
creases were for reasons other than merit rather than to induce them not to support
the Union. Upon review of the entire record, I would find that the General Counsel
has not sustained the allegation in question by the necessary preponderance.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section 1, 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 thereof.
1514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(a)( I) of the Act, I shall recommend that it cease and desist therefrom
and take certain affirmative action designed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. The Lorben Corporation is an employer within the meaning of Section 2(2)•
of the Act and is engaged in commerce within the meaning of Section 2(6) and.
(7) of the Act.
2. Local 1922, International Brotherhood of Electrical Workers, AFL-CIO, is.
a labor organization within the meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing employees in the exercise of their
rights guaranteed by Section 7 of the Act, the Respondent has engaged in unfair
labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. All allegations of the complaint as to which findings of violation have not.
been made have not been sustained.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding, I recommend that The Lorben Corporation,.
Hempstead, New York, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of their
rights guaranteed by Section 7 of the Act by interrogating them concerning these
activities without legitimate purpose and without proper safeguards.
(b) In any like or related manner interfering with, restraining, or coercing its em-
ployees in the exercise of their right to self-organization, to form, join or assist Local
1922, International Brotherhood of Electrical Workers, AFL-CIO, or any other labor
organization, to bargain collectively with 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 engaging in such activities as guaranteed
in Section 7 of the Act except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized in Section
8 (a) (3) of the Act.
2. Take the following affirmative action which it is found will effectuate the policies.
of the Act.
(a) Post at its plant in Hempstead, New York, copies of the attached notice
marked "Appendix." 3 Copies of said notice to be furnished by the Regional Di-
rector for the Second Region shall, after being duly signed by an authorized repre-
.sentative of the Respondent, be posted by it immediately upon receipt thereof and
maintained by it for a,period of 60 consecutive days thereafter in conspicuous places,
,including all places where notices to employees are customarily posted. Reasonable
.steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Second Region, in writing, within 20 day&
from the receipt of this Decision and Recommended Order what steps it has taken
to comply herewith .4
3. All allegations of the complaint as to which specific findings of violations have-
not been made are dismissed.
81n the event that this Recommended Order shall be adopted by the Board, the words
"A Decision and Order" shall be substituted for the words "The Recommended Order of
a Trial Examiner'.' in the notice. In the further event that the Board's Order be enforced
by a decree of the United States Court of Appeals, the words "A Decree of the United
States Court of Appeals, Enforcing an Order" shall be substituted for the words "A
Decision and Order."
4 In 'the event that this Recommended Order is adopted by the Board , this provision
shall be modified to read: "Notify the Regional Director for the Second Region, in writing,
within 10 days from the date of receipt of this Order, what steps the Respondent has
taken to comply herewith."'
MEAD FOODS, INC. 1515
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, you are notified that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of their right to engage in or to refrain from engaging in union activities by
interrogating them concerning their union activities without legitimate purpose
and without using proper safeguards.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization, to form labor
organizations or to join or assist Local 1922, International Brotherhood of Elec-
trical Workers, AFL-CIO, or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection , or to refrain from engaging in such activities as guaranteed in
Section 7 of the Act, except to the extent that such right may be affected by an
agreement requiring membership in a labor organization as authorized in Sec-
tion 8 (a) (3) of the Act.
All our employees are free to become or remain, or refrain from becoming or
remaining , members of any labor organization.
THE LORBEN CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional Office, Fifth
Floor, Squibb Building, 745 Fifth Avenue, New York, New York, Telephone No.
751-5500, if they have any question concerning this notice or compliance with its
provisions.
Mead Foods , Inc. and Chauffeurs , Teamsters and Helpers Local
Union No. 47, and General Drivers, Chauffeurs & Helpers
Local Union No. 886 . Case No. 16-CA-1940. May.11, 1964
DECISION AND ORDER
On March 10, 1964, Trial Examiner Thomas N. Kessel issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor practices
within the meaning of the Act, and recommending that it cease and
desist therefrom and take certain affirmative action, as set forth in
the attached Trial Examiner's Decision. Thereafter, the Respondent
filed exceptions to the Trial Examiner's Decision and a supporting
brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Leedom, Fanning, and
Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
146 NLRB No. 175.