Electronics Equipment Co., Inc.

National Labor Relations Board - Board Decisions

Apr 30, 1951

94 N.L.R.B. 62 (N.L.R.B. 1951)

62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While the Board has found appropriate units of physical employees
in a public utility apart from clerical employees,3 we are of the opinion
that in the present proceeding the long history of collective bargain-
ing, the high degree of integration in the Employer's operations, the
transfers between physical and clerical employees, and the community.
of interest among both groups of employees, require a finding that
only a unit of physical and clerical employees is appropriate.4 Ac-
cordingly, we find that the unit sought by the Petitioner is not ap-
propriate for the purposes of collective bargaining, and we shall dis-
miss the petition.
Order
Upon the basis of the foregoing findings of fact and the entire record
in the ease, the Board hereby orders that the petition for investigation
and certification of representatives of employees of the East Ohio Gas
Company, Cleveland, Ohio, filed by the Utility Workers Union of
America, CIO, be, and it hereby is, dismissed.
MEMBER REYNOLDS took no part in the consideration of the above
Decision and Order.
S Indianapolis Power & Light Company, 76 NLRB 136; Kansas City Power & Light
Company, 75 NLRB 609.
4 Philadelphia Gas Works Company, 74 NLRB 638; Pennsylvania Power & Light
Company, 64 NLRB 874.
ELECTRONICS EQUIPMENT CO., INC. and CHARLES PENCHANSKY. Ci a$e
No. 2-CA-867. April 30, 1951
Decision and Order
On May 29, 1950, Trial Examiner Ralph Winkler issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in certain unfair labor practices, and
recommending that the complaint be dismissed, as set forth in the
copy of the Intermediate Report attached hereto. Thereafter the
charging party and the General Counsel filed exceptions to the Inter-
mediate Report and supporting briefs. The charging party also
requested oral argument. This request is denied as the record and
briefs, in our opinion, adequately present the issues and the positions
of the parties.
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 Interme-
diate Report, the exceptions, and briefs, and the entire record in the
case, and, except as they relate to discharge of Penchansky, hereby
94 NLRB No. 19. J
r
ELECTRONICS EQUIPMENT CO., INC. 63
adopts the findings, conclusions , and recommendations of the Trial
Examiner with the modifications set forth below. As to the discliarge
of Penchansky, the Board adopts the Trial Examiner's findings of
fact, but rejects his conclusions and recommendations.
The Respondent admits that Penchansky was discharged for his
participation in writing and mailing the two letters quoted in full in
the Intermediate Report. There is no doubt that preparing and cir-
culating letters publicizing a union's position in a labor dispute and
soliciting aid and sympathy on behalf of the union's cause is ordi-
narily concerted activity protected by the Act. The only question for
our determination is whether the letters under consideration in this
case were for such a purpose or of such a nature as to warrant our
saying that Section 7 of the Act does not protect their preparation
or circulation.
The Trial Examiner answered the above question in the affirma-
tive for two reasons: (1) He found that the purpose of the concerted
activity was to force the Respondent to grant Local 65 exclusive recog-
nition as bargaining representative of Respondent's employees while
the petition of a rival union was pending before the Board. He con-
cluded that this constituted an attempt to force the Respondent to
violate the Act,:' and was therefore beyond the protection of Section 7.
(2) He found that the letters contained an accusation that the Re-
spondent refused to recognize and negotiate in good faith with Local
65. He concluded that this constituted an accusation that the Re-
spondent nad committed an unfair labor practice by virtue of Section
8 (a) (5) of the Act. He further found that these statements were
false and malicious and that Penchansky, by. participating in the pub-
lication of the letters, coil'imitted actionable defamation under the law
of New York State.
We,disagree with these findings and conclusions for the following
reasons.
1. The letters, set forth in full in the Intermediate Report, seem
to us to have two objectives: (a) Securing reinstatement of the dis-
charged employees, and (b) securing a contract of some sort for Local
65. It is not at all clear from them, however, that the contract sought
was one embracing exclusive recognition for Local 65 and that the lat-
ter would not have been satisfied with something less, at least while the
petition of its rival was pending. However, even assuming that the
demand was for exclusive recognition, the Board believes the activity
to have been protected. As the Board pointed out in the Hoover case,2
' In reaching this conclusion the Trial Examiner applied a combination of the principles
set forth in Midwest Piping & Supply Co , Inc., 63 NLRB 1063 , The American News
Company, Inc., 55 NLRB 13 ; and Thompson Products , Inc , 70 NLRB 13 , 72 NLRB 886.
Note, however , the partial modification of the Midwest Piping doctrine in William Penn
Broadcastinq Company, 93 NLRB 1104 ( April 1951).
2 The Hoover Company , 90 NLRB 1614
64 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Under the doctrine of the Midwest Piping case the employer's
exclusive recognition of one of the two rival unions violates the
Act only if at the time such recognition is granted the question
concerning representation raised by the rival petition still is pend-
ing. However, before recognition is granted many things might
occur which would remove that question and would render exclu-
sive recognition of a majority representative perfectly lawful:
Thus, for example, the rival union might withdraw its petition,
or the Board, for any number of reasons, might dismiss it.
Again, the employer faced with rival demands may, without
violating the Midwest Piping doctrine, grant recognition to each
of the claimants on a members-only basis.
It seems clear to the Board that Local 65, in circulating those letters,
was primarily interested in protecting its members. The contract was
only one way in which it could be sure that its members were protected.
We cannot say now that recognition of Local 65 would have violated
the Act. The uncertainties in the situation, which we have pointed
out above, make such a holding impossible. We therefore can see no
justification here for departing from the ruling in the Hoover case.
The Board therefore finds that the concerted activity, insofar as it
was directed toward securing recognition for Local 65, did not lose
the protection of the Act because of the pending rival petition.
2. We find it unnecessary to determine whether or not the letters in
question were libelous under State law, as it is well established that'the
Board does not adjudicate the private rights of the parties but acts in
a public capacity to effectuate the declared public policy of the Act.'
State law is not determinative of the rights or obligations under the
Act except where the latter expressly provides otherwise 4
3. In our opinion the letters did not go beyond the realm of protected
concerted activity. Read in their entirety they constitute a sub-
stantially correct recitation of the history of Local 65's experience
with the Respondent' together with a statement of Local 65's objec-
tives and proposed plan of action. The factual recitation is hardly
impartial in tone, but we do not find that deliberate untruth suggested
by the Trial Examiner.
The statement that the employees "ask . . . that the .firm negotiate
in good faith with the Union of our choice," is alluded to and char-
a H M. Newman, 85 NLRB 725.
4 See N L. R. B v. Hearst Publications, Inc, 323 U S . 111, 123; also see Union Screw
Products, 78 NLRB 1107 , 1125; McMullen Leavens Company , 83 NLRB 948, 954;
International Brotherhood of Teamsters, etc. (Conway's Express ), 87 NLRB 972 and
cases cited therein.
5 Testimony in the record indicates that in early May 1949 , Local 65 began organizing
the Respondent 's employees . On May 13, 1949 , the committee of Local 65 met with
the Respondent and demanded recognition and a contract , neither of which materialized.
Between that date and the end of May 1949 , all members of Local 65 except Penchansky-
were laid off.
ELECTRONICS EQUIPMENT 'CO.11' INC. 65
acterized by the Trial Examiner as an accusation that the Respondent
committed an unfair labor practice. ,In our opinion, this statement is
placed in the form of an objective rather than an accusation, and at
most might constitute a- doubtful accusation. But even if a reader
should conclude from the, letters that the Respondent had taken a
course of action which might amount to an unfair labor practice, we
believe that this is not sufficient to remove the normal protection of
Section 7 from their publication. A contrary conclusion would neces-
sarily result in denying the right to publicize the facts an a labor dis-
pute at any time when those facts might add up to a possible coD-
clusion that an unfair. labor practice had been committed.
Whether or not a showing of legal malice would alter our decision
need not be determined here, as the record does not support the Trial
Examiner's finding that the letters were published for the malicious
purpose of injuring the Respondent's business. The undisputed testi-
mony in the record shows that the purpose of the letters was to bring
economic and other influential pressure to bear upon the Respondent
in an effort to "get the jobs back" and to-obtain a contract. To find
that an attempt to enlist economic sanctions, short of those proscribed
in Section 8 (b) of the Act, on behalf of the Union's cause constitutes
a malicious purpose of injuring the Respondent would render vulner-
able every instance in which economic pressure is used in a labor dis-
pute, and would indeed be contrary to well-established principles e
The presumption that Penchansky was aware of the Respondent's
claimed legal reasons for refusing to recognize Local 65 asthe bargain-
ing representative of its employees and also of its assertion that the
discharges were caused by economic necessity does not, in our opinion,
justify attributing malice to Penchansky's efforts to gain such recog-
nition and secure the reinstatements. The validity of Respondent's
position had not been legally established; even were it presumed to
be valid, the protection of Section 7 of the Act extends to activity en-
tered into because of an employer's lawful refusal to bargain,' as
well as to activity aimed at securing reinstatement of employees termi-
nated for economic or other legal reasons.-
In view of the foregoing, we find that the statements contained in
the letters constitute no more than a somewhat unrestrained variety
of what is usually accepted as campaign propaganda.9 As such, we
find that the activity here was within the proper bounds of concerted
6 See N. L. R. B. v Peter Cailler Kohler Swiss Chocolates Co., Inc., 130 F. 2d 503,
506 (C. A 2).
7 See Porto Rico Container Corporation , 89 NLRB 1570
8 See Agar Packing d Provisions Corporation, 81 NLRB 1262; Kallaher and Mee, Inc.,
87 NLRB 410; Porto Rico Container Corporation, supra.
9 See N. P. Nelson Iron Works , 78 NLRB 1270 ; Westinghouse Electric Corporation,
77 NLRB 1058. Carrollton Furniture Manufacturing Co, 75 NLRB 710; Bausch ct Lomb
Optical Company, 72 NLRB 132.
95 384 t-52-vol 94-6
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
activity and was, therefore, protected by Section 7 of the Act.' Ac-
cordingly, we find that Penchansky's discharge because of his part
in this concerted activity constituted a violation of Section 8 (a)
(1) and (3) of the Act.
The 8 (a) (1)
The Trial Examiner found that the settlement agreement entered
into in a prior case 10 bars consideration of the 8 (a) (1) violations
alleged in the instant case.
There is no indication that the Respondent has violated the terms
of the settlement agreement or committed any unfair labor practice
since its execution. Therefore, we shall, in accordance with long-
standing Board policy,12 honor the agreement and decline to consider
the independent 8 (a) (1) violations alleged herein.
The Remedy
Having found that the Respondent engaged in certain unfair labor
practices, we shall order that it cease and desist therefrom, and take
certain affirmative action designed to effectuate the policies of the Act.
The Trial Examiner poses the question of whether or not certain
conduct engaged in by Penchansky before his discharge was sufficiently
serious to warrant denial of a remedy. 13 The Respondent has made
no contention in this respect. However, we have considered this ques-
tion and find that the conduct was not of such a serious nature as to
warrant a refusal to issue a remedial order.
Ordinarily, we would grant reinstatement as well as back pay under
the circumstances of this case.'4 However, Penchansky testified that
he had determined that he would not return to the Respondent's em-
ploy. We shall, therefore, order the Respondent to make whole the
complainant for any loss of wages he may have suffered as a result
of the discrimination, by payment to him a sum of money equal to
the amount which he would normally have earned as wages from July
io The settlement agreement in Case No . 2-CA-798 was entered into on July 22, 1949,
the date on which the charge in the instant case was filed . By this agreement the
Respondent herein was required to maintain the Board 's broad 8 ( a) (1) posting and
to comply with certain other terms and conditions set forth in the agreement
11 The Respondent is alleged to have interfered with , restrained , and coerced its employees
because of their union activities by unlawful interrogation , and threats of shutdown and
loss of employment The events upon which this allegation is based occurred prior to the
execution of the settlement agreement in Case No . 2-CA-798, but were not specifically
alleged in the charge filed in that case.
iz See Wooster Brass Company, 80 NLRB 1633 , and cases cited therein.
33 Although the Respondent was aware of the incidents herein referred to, and set
forth in the Intermediate Report, it took no affirmative action with respect thereto and
these incidents were not connected with Penchansky ' s discharge.
14 Chain man Herzog reserves judgment as to whether , after these events, Penchansky's
reinstatement should have been required had he requested it The Chairman sees no
need to pass upon that issue here.
ELECTRONICS EQUIPMENT CO., INC. 67
13, 1949, the date of the Respondent's discrimination against him, to
March 1, 1950, the date of permanent employment elsewhere, less his
net earnings, during said period.
In accordance with the formula promulgated in F. W. Woolworth
Company 15 and for reasons stated therein, we shall order that the
loss of pay suffered by Penchansky be computed on the basis of each
separate calendar quarter or portion thereof during said period. The
quarterly periods, hereinafter called "quarters," shall begin with the
first day of January, April, July, and October. Loss of pay shall
be' determined by deducting from a sum equal to that which Pen-
chansky normally would have earned as wages during each such quar-
ter or portion thereof, his net earnings,16 if any, during the same pe-
riod. Earnings in one particular quarter shall have no effect upon
the back-pay liability for any other quarter.
We shall further order, in accordance with the Woolworth decision,'7
that the Respondent, upon request, make available to the Board and
its agents all records pertinent to an analysis of the amounts of back
pay due and the rights of reinstatement.
Upon the basis of the foregoing, and upon the entire record in the
case, the Board makes the following:
CONCLUSIONS OF LAw
1. By discriminating in regard to the hire and tenure of employ-
ment of Charles Penchansky, thereby discouraging membership in
Wholesale and Warehouse Workers Union, Local 65, the Respondent
has engaged in, and is engaging in, unfair labor practices within the
meaning of Section 8 (a) (3) of the Act.
2. By interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act, the Re-
spondent has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices
affecting commerce, within the meaning of Section 2 (6) and (7) of
the Act.
Order
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Electronics Equipment Co.,
Inc., Brooklyn, New York, and its officers, agents, successors, and
assigns, shall :
'IF. W. Woolworth Company, 90 NLRB 289.
16 See Crossett Lumber Company , 8 NLRB 440; Republic Steel Corporation v. N. L. R. B.,
811 U. S. 7.
17 F. W. Woolworth Company, supra.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1. Cease and desist from :
(a) Discouraging membership in Wholesale and Warehouse Work-
ers Union, Local 65, or in any other labor organization of its em-
ployees, by discharging any of its employees, or in any other manner
discriminating in regard to their hire, tenure of employment, or other
terms and conditions of their employment.
(b) In any like or related manner 18 interfering with, restraining,
or coercing its employees in the exercise of their right to self-organi-
zation, to form labor organizations, to join or assist Wholesale and
Warehouse Workers Union, Local 65, or any other labor organiza-
tion, to bargain collectively through their 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 and all such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition 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) Make whole Charles Penchansky for any loss of pay he may
have suffered by reason of the discrimination against him, by pay-
ment to him of a sum of money equal to the amount which he would
normally have earned as wages during the period from the date of
Respondent's discrimination against him on July 13, 1949, to March
1, 1950, the date of permanent employment elsewhere, less his net
earnings during said period. '
(b) Upon request, make available to the National Labor Relations
Board, or its agents, for examination and copying, all payroll rec-
ords, social security payment records, time cards, personnel records
and reports, and all other records necessary to an analysis of the.
amounts of back pay due under the terms of this Order.
(c) Post at its plant at Brooklyn, New York, copies of the notice
attached hereto, marked Appendix A.19 Copies of said notice, to be
furnished by the Regional Director for the Second Region, shall, after,
being signed by the Respondent's representative, be posted by the
Respondent immediately upon receipt thereof and maintained by it
for sixty (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.
is In view of the broad order posted by the Respondent in compliance with the settlement
agreement entered into in Case No. 2-CA-798, and in view of the fact that said order,
was posted after Penchansky's discriminatory discharge, we deem the posting of a,
narrow remedial order as adequate to effectuate the policies of the Act.
19 In the event this Order is enforced by decree of a United States Court of Appeals,
there shall be inserted in the notice, before the words "A Decision and Order," the words"
"A Decree of the United States Court of Appeals Enforcing."
ELECTRONICS EQUIPMENT CO., INC. 69
(d) Notify the Regional Director for the Second Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that in all other respects the complaint be,
and it hereby is, dismissed.
MEMBER REYNOLDS, concurring in part and dissenting in part :
Although I agree with my colleagues that the letters do not con-
tain such false accusations which in and of themselves would remove
their circulation from the orbit of protected activity, in my opinion
the objective sought to be obtained by their circulation was illegal
and the protection of Section 7 of the Act was thereby forfeited. By
the letters, which contained the boycott plea and the threat of picket-
ing, Penchansky sought to secure recognition for his labor organiza-
tion at a time when a question concerning representation existed and
a petition for its resolution was pending before the Board. The ma-
jority decision relies wholly upon the rationale set forth in the
Hoover 20 case. I do not agree with the reasoning or conclusions
reached by that decision on this point, and as I did not participate in
that case I feel impelled to express my disagreement here. I agree
with the reasoning explicated by the Trial Examiner, and like him,
would apply the Midwest Piping and American News principles 21
to the present situation.
In view of the foregoing, I would dismiss the complaint in its
entirety.
Appendix A
NOTICE TO ALL EMPLOYES
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 discourage membership in WHOLESALE AND
WAREHOUSE WORKERS UNION, LOCAL 65, or in any other labor
organization of our employees by discharging any of our em-
ployees, or in any other manner discriminating in regard to their
hire, tenure of employment, or other terms and conditions of
their employment.
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, to join or assist
WHOLESALE AND WAREHOUSE WORKERS UNION, LOCAL 65, or any
20 The Hoover Company, 90 NLRB 1614. '
21 Midwest Piping & Supply Co., Inc., 63 NLRB 1063 ; The American News Company,
Inc., 55 NLRB 13.
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
other labor 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 and all 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 Act, as
guaranteed by Section 7 thereof.
WE WILL MAKE Charles Penchansky whole for any loss of pay
suffered by him as a result of our discrimination against him.
All our employees are free to become or remain or refrain from
becoming members of the above-named union, or any other labor
organization. We will not discriminate in regard to hire or tenure of
employment or any term or condition of employment against any
employee because of membership in or activity on behalf of any such
labor organization.
ELECTRONICS EQUIPMENT CO., INC.
Employer.
Dated ------------------- By --------------=-----------------
(Representative ) (Title)
This notice must remain posted for sixty (60) consecutive days
from the date hereof and must not be altered, defaced, or covered by
any other material.
Intermediate Report and Recommended Order
Warren IT Leland, Esq, for the General Counsel.
Ashe & Rif" in, by George Rifl„ in, Esq, of New York, N. Y, for the Respondent.
Newburger, Shapiro, Rabinowitz & Boudm, by Victor Rabinowitz, Esq., of
New York, N Y., for 'Charles Penchansky.
STATEMENT OF THE CASE
Upon a charge filed July 22, 1949, by Charles Penchansky, an individual, the
General Counsel for the National Labor Relations Board, by the Regional
Director for the Second Region (New York, New York), issued a complaint
dated January 6, 1950, alleging as amended at the hearing that the Respond-
ent, by discriminatorily discharging Penchansky and by other conduct, had'
engaged and was engaging in unfair labor practices affecting commerce,
within the meaning of 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 the charge were duly served upon the Respondent.
The Respondent filed an answer denying the commission of the unfair labor
practices alleged in the complaint ; it also interposed certain affirmative defenses
to the complaint.
Pursuant'to notice,_a hearing was held on May 1 and 2, 1950, at New York
City, before the undersigned Trial Examiner. The General Counsel, the Re-
spondent, and Penchansky were represented by counsel. The parties participated
in the hearing and were afforded full opportunity to be heard, to examine and
cross-examine witnesses, and to introduce evidence bearing on the issues.
ELECTRONICS EQUIPMENT CO., INC. 71
At the hearing the General Counsel moved to amend the complaint and the
Respondent moved to amend its answer, each party objecting to the other's
motion. The amendments were permitted with the qualification that before the
close of the hearing either party might claim surprise and make the appropriate
motions. No further motions in this connection were made. The Respondent
moved to dismiss the complaint for lack of proof, upon which ruling was reserved ;
the motion is disposed of in accordance with the findings and conclusions set
forth below.
All parties were afforded an opportunity to present oral argument before the
Trial Examiner and to file briefs and proposed findings of fact and conclusions
of law.
Upon the entire record in the case and from his observation of the demeanor
of witnesses, the Trial Examiner makes the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a New York corporation, maintains its principal office
a.d place of business in Brooklyn, New York, where it is engaged in the sale and
distribution of radio parts and related products. In 194S, the Respondent pur-
chased materials exceeding $500,000 in value, of which approximately 50 percent
was obtained outside the State of New York ; during the same period, the Re-
spondent sold products valued at more than $500,000, of which approximately 10
percent was shipped outside the State.
I find that the Respondent is engaged in commerce within the meaning of
the Act.
II. THE ORGANIZATION INVOLVED
Wholesale and Warehouse Workers Union, Local 65, herein called Local 65,
is a labor organization.
III. THE UNFAIR LABOR PRACTICES
A. Discrimination
Preliminary Statement
The Respondent discharged Charles Penchansky on July 13, 1949. Penchansky
was shop steward and one of the principal proponents of Local 65, which began
to organize the Respondent's employees in May 1949 The General Counsel
alleges that this discharge was discriminatory and, among other things in sup-
port thereof, he adduced background testimony to the effect that before dis-
charging Penchansky, the Respondent engaged in a course of disparate treatment
against Penchansky by changing or departing from established practices regard-
ing vacation schedules, telephone privileges, liability for breakage, etc. The
Respondent introduced controverting testimony, which I credit, the effect of
which is to negate discrimination in respect to these particular matters. No
purpose would be served by detailing this testimony, as I find, in accordance with
the principal contention of the Respondent and as the Respondent told Pen-
chansky at the time, that the discharge was caused by Penchansky's conduct
with regard to certain letters mailed to customers of the Respondent.
The letters in question read as follows :
0
72 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WHOLESALE & WAREHOUSE WORKERS UNION
LOCAL 65
13 Astor Place, New York 3, N. Y.
Telephone: Oregon 3-5120
July 8, 19119.
DEAR FRIEND :
This is an appeal from the employees of ELECTRONIC EQUIPMENT CO, INC.,
of 2912 Atlantic Ave., Brooklyn, N. Y. We are asking your help and need
your good will in fighting for our jobs.
Twelve employees were fired following a request for union recognition.
We urge your cooperation to help us win decent working conditions which
is the right of every American. We have not made any unjust claims; all
we ask is that the employees be reinstated and that the firm negotiate in
good faith with the Union of our own choice.
We are preparing to picket as our last resort. We, therefore, appeal to
you to call Electronic Equipment to urge them to deal with our Union and
should picketing take place that you would not patronize them.
Sincerely,
COMMITTEE OF ELECTRONIC EMPLOYEES,
13 Astor Place , N. Y. C., 11th Floor.
WHOLESALE & WAREHOUSE WORKERS UNION
LOCAL 65
13 Astor Place, New Yorrk 3, N. Y.
Telephone : Oregon 3-5120
July 12, 1949.
DEAR SIit : '
About two months ago the employees of the Electronic Equipment Com-
pany, Inc., 2912 Atlantic Ave., Brooklyn, started to organize into our Union.
A few days after that, the firm was approached for a contract. Immediately
thereafter, they fired one Union member after another, until all the em-
ployees belonging to the Union were fired.
This situation forces us to declare a lock-out within the next few days
unless the employer agrees to sit down to negotiate a contract. You can
help prevent the picket line by informing the company that you will not
purchase any merchandise while the dispute is on and urging them to deal
with us.
As soon as we start picketing, we will inform you and hope to receive your
cooperation in not purchasing from the above company while the lock-out
is in progress. Our representatives will visit you from time to time to keep
you informed.
Thank you for your cooperation.
'Very truly yours,
THE COMMITTEE OF EMPLOYEES OF THE
ELECTRONIC EQUIPMENT COMPANY, INC.
The record shows that the July 8 letter was mailed and received before July
13, 1949. The testimony is in conflict, however, as to the mailing date of the
second letter. On the basis of my observation of the witnesses and their re-
spective testimony, I find that the second letter also was received by customers
of the Respondent before Penchansky's discharge on July 13, 1949.
ELECTRONICS EQUIPMENT CO., INC. 73
The July 8 letter was composed by Penchansky and seven other Local 65
members including Union Organizer Reger, after they decided on that date to
communicate with customers of the Respondent in regard to the matters-stated
in the letters. Penchansky testified that the second letter "was prepared by
the Union" and that he did not assist in its actual composition ; both letters,
however, were sent out under the name "Committee of Electronic Employees."
I find that Penchansky was a member of this committee. Penchansky also ad-
dressed envelopes for each of these respective enclosures.
The Respondent asserts that Penchansky obtained, without authorization and
therefore in breach of his obligation to the Respondent, the names and addresses
of the circularized customers from a confidential list of customers in the Re-
spondent's files. Penchansky testified, however, that in the normal course of
his employment as a counterman-in which capacity he accepted telephone orders,
wrote up bills, directed drivers what deliveries to make, etc.-he became familiar
with the names of most of Respondent's customers, and that, in preparing their
own mailing list for the letters in question, he and the other afore-mentioned
individuals pooled their similarly acquired knowledge, using, in addition, the
classified section of the local telephone directory. There is no showing that
the Respondent ever had classified' this information as confidential and so noti-
fied its employees; nor is there any showing that Penchansky obtained such
information other than as he testified, which testimony I credit.
I find, upon all the foregoing, that Penchansky participated in the conception
and circulation of the letters and that both letters were received through the
mail by customers of the Respondent before Penchansky was discharged.
Contentions of the Parties
The Respondent contends, in part, that the letters convey the impression
that the Respondent illegally discharged Local 65 employees because of Local
65's request for recognition and that the Respondent unreasonably and un-
justifiably refused to recognize and bargain in good faith with, Local 65 as the
representative of the Respondent's employees ; that Penchansky knew these
statements were untrue ; that the Respondent did not discriminatorily dis-
charge employees and did not refuse to bargain in good faith with Local 65 , and
that, in the latter connection, the Respondent was prevented from negotiating
with Local 65 because of the pendency of a representation petition of a rival
union. The Respondent concludes that the statements in question are libelous
and destructive of its right to custom and, therefore, that Penchansky's partici-
pation in circularizing these statements constitutes lawful basis for his discharge.
The General Counsel relies principally on a proposition of law that, what-
ever the contents or the truth of the contents of the letters, Penchansky's con-
duct was an integral part of concerted activities which are protected under
Section 7 of the Act.
I
Events Preceding the Letters and the Discharge
On May 13, 1949, the Respondent met at Local 65's request with union,
representatives, including Shop Steward Penchansky and Union Organizer Reger.
Local 65 sought to obtain recognition as collective bargaining representative of
Respondent's employees and to negotiate a contract covering them. The record
does not show what transpired or what results were reached, except that Local 65
was not recognized as ithad requested.
On May 23, 1949, meanwhile, a representation petition was filed in Case No.
2-RC-13 by Television, Radio and Business Machine Employees, Local 854,.
International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers
of America , AFL, herein called the Teamsters . The Teamsters thereby sought
74 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to be certified as the statutory bargaining representative for the same employees
covered by Local 65's request for recognition. On June 13, the Respondent and
the Teamsters executed, and the Board's Regional Director approved, an Agree-
ment for Consent Election providing for an election to be conducted under the
Regional Director's supervision ; however, as of the hearing date in the present
matter, the petition still was pending and no election has been held.
On May 24, at the invitation of the New York State Board of Mediation, the
Respondent again met with representatives of Local 65, including Union Or-
ganizer Reger but not Penchansky, at the Mediation Board offices. The Teamsters
was not represented. Among other things, Local 65 claimed to represent a
majority of the Respondent's employees and requested the Respondent to recog-
nize it for purposes of collective bargaining ; the Respondent stated that such
recognition could not be granted in view of the Teamsters' pending petition.
The meeting ended with an understanding that if the Teamsters lost the election
for which it had petitioned, the Respondent would recognize Local 65 upon a
demonstration of the latter's majority status. (A word of explanation as to
this particular situation : Local 65, I am administratively advised, was not in
,compliance at the time, nor had it previously been in compliance, with the affi-
davit requirements of Section 9 of the Act. Under established Board law,
,therefore, Local 65 could not appear on the ballot in an election upon the
Teamsters' petition.)
Sometime in May 1949, the Respondent had caused a change in the employ-
ment status of several employees-whether by discharge or layoff it is unneces-
sary to determine at this time. Penchansky and these individuals were the
Local 65 members who, together with Union Organizer Reger, decided on July 8
to communicate by mail with the Respondent's customers. Penchansky testi-
fied, in effect, to a two-fold purpose in sending the letters : to "try to get ... jobs
back" for the afore-mentioned union members, except Penchansky who still was
employed, and to obtain "a Local 65 contract " The letters then were pre-
pared and mailed within a few days, as already described ; also, as might rea-
sonably be anticipated, the Respondent was advised by its customers and others
that the customers had received the letters. Penchansky's discharge followed,
and shortly afterward there was picketing at the Respondent's place of busi-
ness, in which Penchansky participated.
Considering testimony of Penchansky that Local 65 does not negotiate in the
absence of its shop steward, together with the fact that Union Organizer Reger
and Shop Steward Penchansky attended the May 13 meeting with the Respond-
ent and Reger attended the second meeting at the Mediation Board and the fact
that Reger and Penchansky both participated in the decision to send the let-
ters, I find, and the General Counsel does not assert to the contrary, that Pen-
chansky knew, when he and the others decided to send the letters and did
send them, that the Teamsters' petition was pending and that the Respondent
was refusing to recognize Local 65 as the collective bargaining representative
because of such petition. I also find, and the General Counsel made no con-
trary contention, that a question concerning the representation of the Re-
spondent's employees has existed since May 23, 1949, the filing date of the Team-
sters' petition.
Analysis of the Letters
The letters state, without ambiguity, that the Respondent discharged mem-
bers of Local 65 because of Local 65's request for union recognition and that
the Respondent was refusing to recognize and negotiate in good faith with the
Union ; the letters also request the Respondent's customers to boycott the Re-
spondent, and further state, in effect, that the Respondent would be picketed
' ELECTRONICS EQUIPMENT CO, IN C. 75
unless the Respondent reinstated the members of Local 65 and recognized and
bargained collectively with Local 65. In view of the fact, as might reasonably
have been anticipated , that the contents of the letters were communicated to
the Respondent , I interpret this as a threat made to the Respondent to picket
the Respondent unless these stated demands were met.
While I am inclined to sustain the Respondent 's contention respecting the
falsity of the statement as to discriminatory discharges , I shall not resolve this
matter . In my view of the applicable law, it is sufficient for disposition of the
ultimate issue in this case to consider , of the two allegedly false statements, only
the statement regarding the alleged refusal to recognize and negotiate in good
faith with Local 65. This statement does accuse the Respondent of refusing to
bargain in good faith , and it thereby imputes illegal conduct to the Respondent,
by virtue of Section 8 (a) (5) of the Act; it imputes such illegality despite the
fact, as hereinafter discussed , that the Respondent could not , without violat-
ing the Act , grant the recognition and contract requested by Local 65. Indeed,
the General Counsel did not offer any evidence or advance any argument to the
contrary . As Penchansky was aware of this lawful reason for the Respondent's
-refusal to bargain collectively with Local 65, I find that the statement in ques-
tion falsely attributes illegal conduct to the Respondent and that, with knowl-
edge of its falsity, Penchansky deliberately participated in the conception and
publication of the statement for the purpose of influencing customers of the
Respondent to take economic action against the Respondent. In view of the
anticipated and actual communication of these letters to the Respondent, I also
regard such statement to the customers as a threat of economic boycott against
the Respondent.
Discussion of the Issues
That Penchansky's conduct was associated with, if not an integral part of,
concerted activities may not be gainsaid. The question is, however, whether
the protection which Section 7 affords to concerted activities also extends to the
conduct in question. Before casting the facts within the framework of this
issue, it may be helpful first to observe that the case does not involve an honest
misstatement of facts ; nor does it involve merely a misstatement of venial
matter. The case does involve a wilful publication of a statement attributing
unlawful conduct to the Respondent, a statement which Penchansky knew to be
false. It also involves the wilful publication of such a statement, together with
the stated threat of, and request for, economic sanction-all for the purpose of
causing the Respondent, by such economic pressures, to recognize Local 65 for
collective bargaining purposes, something which the Respondent could not law-
fully do at that time, as presently discussed. The issues may be expressed in the
following terms, mindful that the conduct in question is related to matters
traditionally within the scope of union activities :
1. Does the Act protect the threat to picket the Respondent and the attempt to
induce customers to boycott the Respondent where such economic sanctions are
intended to obtain an objective unlawful under the Act?
2. Does the Act protect the wilful utterance of false statements which are made
to induce other persons to impose economic sanctions against the Respondent?
If the Act does protect such utterance, does such protection still obtain where
the utterance is ultimately intended to achieve an objective unlawful under the
Act?
The Board has never passed squarely on these issues, so far as I can ascertain.
In large.measure, however, their resolution falls, I believe, within doctrines
already established. In applying those established principles one also must
consider, in view of the importance of the issues, whatever congressional di-
76 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rection may be found in the legislative history of the Act. And, as this case
impinges on a subject of frequent concern to the United. States, Supreme Court,
it is also appropriate to seek guidance in the decisions of that tribunal.
Does the Act Protect Economic Sanctions' to Obtain Recognition During the
Pendency of the Rival Representation Petition?
By reason of the so-called Midwest Piping rule, the Respondent would have
violated Section 8 (a) (1) of the Act had it recognized Local 65 during the
pendency of the Teamsters' petition. This principle, well established in Board
cases,' is to the effect that an employer may not recognize any one rival union
while a question concerning the representation of his interested employees is
pending before the Board. There is no need to set forth in detail the rationale
of this decisional policy, it has been fully explicated by the Board in the Annual
Reports cited above, except to mention the two-fold statutory objective it is
intended to accomplish : to prevent usurpation of the orderly administration of
the Board's procedures and other exercise of its statutory authority in repre-
sentation cases, and to prevent an employer from imposing on his employees
his own choice of one of the contestant labor organizations. The General Counsel
offered neither testimony nor argument to the effect that exculpating circum-
stances exist which might remove the present case from full operation of the
Midwest Piping rule.
The Supreme Court has held that picketing which violates "declared public
policy," is not lawfully protected and not to be "condoned." Building Service
Union v. Gazzam, 339 U. S. 532; Hughes v. Superior Court, 339 U. S. 460; Team-
sters Union v. Hanlce, 339 U. S. 470; Giboney v. Empire Storage & Ice Co., 336
U. S. 490. It appears, therefore, that when Penchansky and his committee
= threatened and solicited the use of economic sanctions to obtain recognition
of Local 65, they were attempting, in the language of the Supreme Court in the
Gazzam case, "to compel Respondent to abide by Union policy rather than by
the declared policy of the state." So, too, had Penchansk,' succeeded and Local
65 obtained such recognition, "the employees would have had no free choice
.as to . . . we hat union would be their representative." Building Service Union
v. Gazzam, supra. See, also, N. L. R. B. v. Pennsylvania Greyhound Lines, 303
U. S. 261, 267.
Under the Act, before the 1947 amendments, the Board also declined to
condone abuses of declared public policy.' In the American News case (55
NLRB 1302), for example, where employees engaged in a strike to compel their
employer to grant them a wage increase in violation of the Emergency Price
Control Act of 1949, the Board held that such activity was not protected under
Section 7 of the Act, then in effect. Similarly, in the Thompson Products case
(72 NLRB 886), where employees struck to compel their employer to recognize
a striking union in the face of a Board certification of another labor organiza-
tion, the Board held that such activity was not entitled to the protection of the
Act. The Board stated the basis for its decision as follows :
I Where coercive economic action is unlawful, the threat of such action also is unlawful.
Clara-Val Packing Company, et al., 87 NLRB 703, and cases cited therein. I therefore
accord to the threats in the present case the same legal effect as the performance of the
threat.
2 Midwest Piping & Supply Co., Inc, 63 NLRB 1063; National Labor Relations Board,
Tenth Annual Report (Govt. Print. Off., 1946), pp. 38-39; Eleventh Annual Report
(1947), pp. 35-36; Twelfth Annual Report (1948), p. 26; Thirteenth Annual Report
(1949), pp. 52-53; Fourteenth Annual Report (1950, p. 53.
2In Southern S. S. Co., 316 U. S. 31, 48, however, the Supreme Court held that the
Board improperly extended protection to a strike which contravened congressional policy.
ELECTRONICS EQUIPMENT CO., INC. 77
There would be neither moral , legal nor practical justification for our re-
quiring employees to respect our certifications if we were unwilling to
respect them ourselves . (72 NLRB at p. 889.)
It is true , as stated above, that these various cited cases are not factually
identical to the present case. In principle , however, I find them indistinguish-
able insofar as they hold that the Board will not be a party to violations of
declared public policy.
To protect the conduct of Penchansky hardly would comport with the declared
national policy of preventing interference with the Board's election procedures
and with the fundamental statutory right of employees to select representa-
tives of their own choosing. On the contrary, such protection, if granted, would
actively encourage the frustration of the afore-mentioned policy; and this im-
primatur would, in effect, make the Act handmaiden to its own defeat. Apart
from the obvious inequity of this situation, adding governmental protection to
economic pressures for the purpose of compelling the Respondent to engage
in unfair labor practices, I am unaware of any decisions of the Board or of any
overwhelming policy considerations which impel such a self-defeating interpre-
tation of the Act to be made in this case, whereby the Board, on one hand, would
hold the Respondent to have violated the Act by recognizing and bargaining col-
lectively with Local 65, while telling Penchansky and his union brethren on the
other hand that if they attempted to cause or did cause such violation and
are discharged therefor, the Board would lend the processes of this Government
to obtain their reinstatement.
It may be asserted, however, that recent decisions of two Courts of Appeals'
oast some shadow on the validity of the Midwest Piping doctrine, and, therefore,
that this doctrine should be reconsidered and should not, in any event, be further
extended to the situation presented in the present case. However, the Midwest
Piping doctrine was a vital decisional policy of the,Board when the present case
arose, and it apparently still is.5 I must, of course, accept the' law as the Board
interprets it, at least until the Supreme Court rules otherwise on an issue.
The problem of further extending the Midwest Piping doctrine is not present
in this case, as I view the situation. Rather, it is a matter of rounding out
emisting principles and applying them to all disputants, fairly and reasonably.
I cannot believe that the Act contemplates otherwise. However, it also may be
argued that under the circumstances the Act makes recognition of Local 65 an
unfair labor practice by the Respondent, but does not make Penchansky's
conduct also an unfair labor practice, and, therefore, that the legal situations
are different. They may be different in this respect, of course ; but such differ-
ence does not answer the question which is, whether Penchansky's activity
is to be protected and not whether his conduct is an unfair labor practice. The
terms are not coextensive. For example, it may not be an unfair labor practice
for an employee to set fire to his employer' s premises to advance his union's
efforts in obtaining recognition ; yet, the same activity would be beyond the
protection of the Act.
Recent legislative history adds a note of particular relevancy to this discus-
sion . Thus it appears that H. R. 3020, 80th Cong., 1st Sess., as it passed the
Rouse, provided that certain "Unlawful, Concerted Activities," described in
Section 12 thereof, were not protected thereunder (Sec. 7 (a)) , Listed among
these unprotected "Unlawful Concerted Activities" in Section 12 (a) was "Call-
4N. L. R. B v. G. W. Hume Co., et al., 180 F. 2d 445 (C. A. 9), N. L R. B v. Flotill
Products, Inc., 180 F. 2d 441 (C A. 9), N. L. R. B. V. Standard Steel Sprang Co., 180 F.
2d 942 (C. A. 6).
I International Harvester Company, Canton Works, 87 NLRB 1123.
78 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing, authorizing, engaging in, or assisting ... any strike or other concerted inter-
ference with an employer'sioperations, an object of which is . . . to compel an
employer to violate any law or any regulation, order, or direction issued pur-
suant to any law" (emphasis added. Subsection 3 (c) (iii) ). The Act, with
amendments as finally enacted, does not contain an equivalent section describing
"Unlawful Concerted Activities" ; but not for lack of congressional approval.
Rather, as explained in H. Conf. Rep. No. 510, on H. R. 3020, 80th Cong., 1st Sess.,
it was believed by the conferees that all such conduct already was excepted from
the protection of Section 7 by reason of the principle of the American News and
Thompson Products cases (which had been expressly approved by the respective
committees of both House and Senate in H. Rep. No. 245, 80th Cong., 1st Sess.,
p. 27; S. Rep No. 105, 80th Cong, 1st Sess., p 28), and also by virtue of the
statement of policy in the Act, as amended, which "itself demonstrates a clear
intention that these undesirable concerted activities ("unfair labor practices,
unlawful concerted activities, and violation of" contracts) are not to have any
protection under the Act .. .',' (p. 39). "Moreover," the Conference Report
continues (p. 39), "there was real concern that the inclusion of such a provision
might have a limiting effect and make improper conduct not specifically men-
tioned subject to the protection of the Act." Congress thus specifically intended
that concerted activity, the purpose of which is to compel an employer to violate
any law-in the present case, the Act itself-is not protected under the Act.
The cumulative effect of all the foregoing authority, judicial and legislative,
is inescapable. Accordingly, I find that the conduct of Penchansky and the
other Local 65 members, in concertedly threatening and soliciting the use of.
economic sanctions against the Respondent for the purpose of causing the
Respondent to violate the Act by recognizing and bargaining collectively with.
Local 65, is not protected under Section 7 of the Act.
As I have found that Penchansky's conduct is unprotected in the foregoing
respect, it is not, necessary to consider the second issue stated above. I shall
do so, however, as the Board may not accept my conclusion in the event of an
appeal to it.
Does the Act Protect the Deliberate Utterance of False Statements?
The Court of Appeals for the Second Circuit, in whose jurisdiction the conduct
here in question occurred, stated as follows in N. L. R. B. v. Peter Cailler Kohler
Swiss Chocolates Co., Inc., 130 F. 2d 503, 506 • "Under the law of New York as
at common law generally (Restatement of Torts, Section 561 (1) (Comment
A) ), a corporation which sues for defamation must show that the words may
tend to injure its credit or affect its business." It has already been found that
Penchansky uttered an untruth when he published the statement that the Re-
spondent was refusing to recognize and bargain in good faith with Local 65 and
that he thereby falsely accused the Respondent of unreasonable and illegal
conduct. It also has been found that lie engaged in this conduct for the im-
mediate purpose of influencing the Respondent's customers to take economic
action (a boycott) against the Respondent. Upon these facts I cannot but also
find that the false statement was intended, and did tend, "to prejudice [the
Respondent] in the conduct of its . . . business" and also was intended, and did
tend, "to deter third persons from dealing with it." Restatement of the Law
of Torts, Vol. 3, § 561 (1). I conclude that Penchansky wilfully and knowingly
uttered his falsehood with deliberate purpose to injure the Respondent by de-
priving it of custom, and, therefore, that the statement was uttered with malice.
In my opinion, Penchansky committed actionable defamation against the Re-
ELECTRONICS EQUIPMENT CO., INC. 79
'spondent. However, the question still remains : Was Penchansky's conduct
protected under Section 7 of the Act?
In Thomas v. Collins, 323 U. S. 516, 533, 534, the Supreme Court declared that
the freedom of speech and assembly guaranteed to employees by Section 7
of the Act on matters affecting self-organization and collective bargaining is
coextensive with the freedoms guaranteed by the First Amendment :
Those guarantees [of the Act] include the workers' right to organize freely
for collective bargaining. And this comprehends whatever may be appro-
priate and lawful to accomplish and maintain such organization. . . . It
included their right fully and freely to discuss and be informed concerning
this choice, privately or in public assembly. . . . These rights of assembly
and discussion are protected by the First Amendment. Whatever would
restrict them, without sufficient occasion, would infringe its safeguards.
And in Thornhill v. Alabama, 310 U. S. 88, 102, 103, the Supreme Court also
emphasized that
in the circumstances of our times the dissemination of information
concerning the facts of a labor dispute must be regarded as within that
area of free discussion that is guaranteed by the Constitution.
Free discussion concerning the conditions in industry and the causes
of labor disputes appears to us indispensable to the effective and intelligent
use of the processes of popular government to shape the destiny of modern
industrial society.
The proposition "that people should be free to give the best information they
can ... without fear" (Holmes, The Common Laic (1943 Ed), 139) is therefore
as valid in the administration of the Act as it is in the common law.
However fundamental the constitutional fi eedom of speech may be in the
arena of public affairs, even such freedom (of speech and press) "does not
confer an absolute right to speak or publish, without responsibility, whatever
one may choose, or an unrestricted and unbridled license that gives immunity
for every possible use of language and prevents the punishment of those who
abuse this freedom." Gitlow v. State of New York, 268 U. S. 652, 666. See, also,
American Communications Association v. Douds, 339 U. S. 382. The false
shout of "fire" in a crowded theater (Schenck v. United States, 249 U. S. 47, 52)
offers classic example of society's need for balance even in respect to fundamental
rights. Assuming, therefore, that Penchansky's rights of speech under Section
7 of the Act are to be equated to his similar right under the First Amendment,
does the desirable balance nevertheless protect him in falsely and wilfully
maligning and injuring his employer in order to further his own union interest
in an unlawful objective? I do not believe it does.
Traffic in ideas and information, as the Supreme Court has exhorted, is in-
deed indispensable to the existence of a free society and its institutions. That
society be free, however, and that its processes be meaningful, it is appropriate
that, at least in the mind of the purveyor, the information be true. However
in the interests of the dissemination of intelligence, and that free speech not be
lightly forfeited, certain accommodations are made, even in regard to falsehood.
"The right of free speech does not depend upon the accuracy of the ideas ex-
pressed" (N. L. R. B. v. Brown.-Brockmeyer Co., 143 F. 2d 537, 542 (C. A. 6) ) ;
it is not to be sacrificed where statements, though untrue, relate to trifling mat-
ters or are not actuated by malice. Cf. White v. Nicholls, 3 How. 266, 44 U. S.
266; Montgomery Ward & Co v. Watson, 55 F. 2d 184, 188 (C. A. 4) ; Craig v.
Harney, 331 U. S. 367, 374-375; Ormsby v. Douglas, 37 N. Y. 477; Hatt v. Bank,
80 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
19 App. Div . 423, 46 N. Y. S. 481 ; Restatement of Torts, supra . But. no such
extenuation , or any other extenuation , exists in Penchansky 's case .6
I do not believe that the purposes of Section 7 of the Act would be served-
they would be debased-by exalting his deliberate falsehood to a position of prior-
ity over the interest society has in protecting its individual members from action-
able injury ; particularly is this so where this unlawful injury was itself a
means of injuring the entire body politic through violation of declared national
policy of the Act.
Other Considerations
The Respondent also asserted , as one of its motivations for Penchansky's dis-
charge, that Penchansky had threatened violence to other employees . In this
connection , the Respondent adduced testimony , which I credit despite Pen-
chansky's denial, that on June 30 , 1949, Penchansky asked another employee
whether he would cross a picket line in the event of a strike by Local 65 and
that when the other employee replied he would, Penchansky declared that he
(Penchansky ) would "put a hole" in the employee 's head or "anyone else's who
would cross their ( Local 65's ) picket line ." On July 9, 1949 , Penchansky also
warned a female employee not to cross Local 65's picket line if such line were
established, stating that "The committee has decided that if you pass the picket
line, we will picket your husband's store-or your other choice is a broken head."
I am satisfied, however, upon consideration of the testimony of Paul Berke,
the Respondent's officer who discharged Penchausky, that Penchansky's threats
played no part in Berke's decision to discharge Penchansky. Had I found that
Penchansky's discharge was discriminatory, I might have considered this evi-
dence to be relevant in determining the appropriate remedy ; however, such
question is not now before me.
Conclusions as to the Discharge
I have found that Penchansky's conduct in regard to the letters is unprotected
on two separate bases. The discharge was therefore for cause and not dis-
criminatory. I shall recommend that this allegation of the complaint be dis-
missed.
. B. Alleged interference , restraint, and coercion
The complaint was amended at the hearing to allege that the Respondent un-
lawfully interrogated its employees and threatened them with a shutdown and
loss of employment because of their union activities. In support of these alle-
gations the General Counsel adduced testimony to the effect-that the Respondent
did engage in such conduct on or about May 13, 1949.
The Respondent objected to the afore-mentioned amendment for the reason
that the alleged conduct was allegedly resolved by the settlement of charges
in another case, Case No. 2-CA-798. These charges, filed by an individual,
alleged that the Respondent violated Section 8 (a) (1) and (3) of the Act.
The basis for this charge, as stated therein, was that the Respondent discharged
two named employees because of their activities "in support of a labor union."
The record in the present case identifies Local 65 as the "labor union" involved
6 Compare N L R: B. v. Peter Casper Kohler Swiss Chocolates Co., Inc, 130 F. 2d 503
(C. A. 2) , N. L. R. B. v . Illinois Tool Works , 153 F. 2d 811 , 815-816 ( C. A. 7) ; Atlantic
Towing Company, 75 NLRB 1169 , 1173, distinguishing between "deliberately false state-
ments" and "unintentional and negligent misstatements ." ( Even this decision was
reversed , 180 F. 2d 726 (C. A. 5).)
HARRISON SHEET STEEL CO. 81
and also indicates that the substance of the conduct in question was brought
to the attention of the Union before the charge in Case No. 2-CA-798 was filed.
On July 22, 1949, the Respondent and the Board's Regional Director executed
a Settlement Agreement in Case No. 2-CA-798. This agreement provided that
the Regional Director would not issue a complaint on that charge and it also
provided that the Respondent would post a notice stating, in part, that the
Respondent "will not in any manner interfere with, restrain, or coerce our
employees" in the exercise of their rights under Section 7 of the Act. This is
the type of notice which normally would be required upon a finding of unfair
labor practices in respect to the mattter contained in the amendments to the
complaint in the present case.
The failure of the charge in Case No. 2-CA-798 to refer specifically to inter-
rogation and threats of shut-down does not necessarily indicate that such mat-
ters were not actually contemplated therein. For it is the complaint, not the
charge upon which the complaint issues, which is required to contain the speci-
fication of unfair labor practices. Cathey Lumber Co., 86 NLRB 157. Under
all the circumstances, I find that the matters added to the present complaint
were covered by the earlier charge in Case No. 2-CA-798 and, in any event,
were resolved in the Settlement Agreement. As the Respondent has not been
shown to have engaged in any unfair labor practices since the execution of the
Settlement Agreement, or otherwise to have failed to comply with its terms, I
shall not consider evidence relating to the conduct which allegedly occurred
before the Settlement Agreement was executed. Accordingly, I shall recommend
the dismissal of the complaint in this respect, without determining whether the
Respondent did in fact engage in the conduct alleged. Compare J. J. Newbury
Co., Inc., 88 NLRB D47; Standard Leather Goods Company, Inc., 83 NLRB 256.
As I have found that the Respondent has not engaged in any unfair labor
practices properly alleged in the complaint, I shall recommend that the entire
complaint be dismissed.
CONCLUSION OF LAW
The Respondent has not engaged in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) and Section 2 (6) and (7) of the Act.
Recommendations
Upon the basis of the foregoing findings of fact and conclusion of law, it is
recommended that the complaint against Electronics Equipment Company, Inc.,
Brooklyn, New York, be dismissed in its entirety.
HARRISON SHEET STEEL Co. and UNITED AUTOMOBILE. AIRCRAFT AND
AGRICULTURAL IMPLEMENT WORKERS OF AMERICA (UAW-CIO)
HARRISON SHEET STEEL Co. and GEORGE RIBES, ET AL. Cases Nos.
13-CA-364 and 13-CA-369.. April 30, 1951
Decision and Order
On November 28, 1950, Trial Examiner Horace A. Ruckel issued
his Intermediate Report in the above-entitled proceedings, finding that
the Respondent had engaged in and was engaging in certain unfair
94 NLRB No. 23.
953841-52-vol. 94-7