Horton-Hubbard Mfg. Co.

National Labor Relations Board - Board Decisions

May 31, 1951

94 N.L.R.B. 921 (N.L.R.B. 1951)

HORTON-HUBBARD MFG. CO. 921
NORTON -HUBBARD MFG. Co. and INTERNATIONAL HANDBAG, LUGGAGE,
BELT AND NOVELTY WORKERS' UNION , A. F. L. and THE HORTON
HUBBARD EMPLOYEES UNION, PARTY TO THE CONTRACT . Case No.
1-CA-648. May 31, 1951
Decision and Order
On February 27, 1951, Trial Examiner George Bokat issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in certain unfair labor practices, and
recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Chairman Herzog and Members Murdock and
.Styles].
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 In-
termediate Report, the Respondent's exceptions and brief, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner.'
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, Horton-Hubbard Mfg.
Co., Somerville, Massachusetts, and its officers, agents, successors, and
assigns, shall:
1. Cease and desist from :
(a) By means of interrogation and threats of economic reprisal
or in any other manner interfering with, restraining, or coercing its
employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist International Handbag, Luggage,
Belt and Novelty Workers' Union, A. F. L., or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the purpose of
collective bargaining or other mutual aid or protection, or to refrain
from any, or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor
'In view of the General Counsel's failure to file exceptions to the Trial Examiner's
refusal to find that the Independent was dominated by the Respondent, the Board adopts
without, however, passing upon the merits of the question , the Trial Examiner's disposition
of this allegation of the complaint.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
organization as a condition of employment, as authorized in Section
8 (a) (3) of the Act.
(b) Recognizing The -Horton & Hubbard Employees Union, or
any successor thereto, as the representative of any of its employees
concerning grievances, labor disputes, wages, rates of pay, hours
of employment, or other conditions of employment, unless and until
said labor organization shall have been certified by the National Labor
Relations Board.
(c) Performing or giving effect to its agreement of July 11, 1950,
with The Horton & Hubbard Employees Union, or to any modifica-
tion, extension, supplement, or renewal thereof, or to any other con-
tract, agreement, or understanding entered into with said labor or-
ganization or any successor thereto, unless and until said labor organ-
ization shall have been certified by the National Labor Relations
Board, provided, however, that nothing herein shall be construed
to require the Respondent to vary any substantive provisions of such
agreement, or to prejudice the assertion by the employees of any
rights that they may have thereunder.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Withdraw and withhold all recognition from The Horton
Hubbard Employees Union, or any successor thereto, as the repre-
sentative of any of its employees concerning grievances, labor dis-
putes, wages, rates of pay, hours of employment, or other conditions
of employment, unless and until said labor organization shall have
been certified by the National Labor Relations Board.
(b) Post at its plant, Somerville, Massachusetts, copies of the
notice atttached hereto and marked "Appendix A".2 Copies of said
notice, to be furnished by the Regional Director of the First Region,
shall, after being duly signed by Respondent or by its representa-
tive, be posted. by Respondent immediately upon receipt thereof and
maintained by it for sixty (60) consecutive days thereafter in con-
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
to insure that said notices are not altered, defaced, or covered by any
other material.
(c) Notify the Regional Director for the First Region in writing
within ten (10) days from the date of this Order what steps Re-
spondent has taken to comply Herewith.
2In the event that this Order is enforced by a decree of a United States Court of
Appeals , there shall be inserted before the words "A Decision and Order," the words,
"A Decree of the United States Court of Appeals Enforcing."
HORTON-HUBBARD MFG. CO. 923
Appendix A
NOTICE TO ALL EMPLOYEES
Pursuant to a decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their union
affiliation , or threaten them with economic reprisals because of
their union membership affiliation , and activities , or in any other
manner interfere with, restrain , or coerce our employees in the
exercise of the right to self -organization , to form labor organiza-
tions, to joint or assist INTERNATIONAL HANDBAG, LUGGAGE, BELT
AND NOVELTY WORKERS' UNION, A. F. L., or any 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 or all of such activities except to the extent
that such right may be permitted by the provisions of Section
8 (a) (3) of the Act.
WE WILL withdraw and withhold all recognition from TILE
HORTON & HUBBARD EMPLOYEES UNION , or any successor thereto,
as the representative of any of our employees for the purpose of
collective bargaining , unless and until said labor organization
shall have been certified by the National Labor Relations Board
as the bargaining representative.
WE WILL cease performing or giving effect to our agreement of
July 11, 1950, with THE HORTON & HUB13ARD EMPLOYEES UNION,
or to any modification, extension , supplement , or renewal thereof
or to any other contract , agreement, or understanding entered
into with said labor organization relating to grievances, labor
disputes , wages , rates of pay , hours of employment, or other con-
ditions of employment , unless and until said organization shall
have been certified by the National Labor Relations Board.
HORTON-HUBBARD MFG. Co.,
Employer.
Dated --------------------
By -------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Intermediate Report
Mr. Joseph Lepie, for the General Counsel.
Gordon d Epstein, by Mr. Maurice Epstein, of Boston, Mass., for the Respond-
ent.
Mr. Joseph E. Donovan, of Boston, Mass., for the Independent.
Messrs. Raymond A. Dooley and John P. Holly, for the A. F. L.
924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
STATEMENT OF THE CASE
Upon a charge duly filed by International Handbag, Luggage, Belt and Novelty
Workers' Union, A. F. L., herein called the A. F. L., the General Counsel of the
National Labor Relations Board, herein called respectively the General Counsel
and the Board, by the Regional Director of the First Region, Boston, Massachu-
setts, issued his complaint dated August 3, 1950, against Horton-Hubbard Mfg.
Co., herein called the Respondent, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the mean-
ing of Section 8 (a) (1) and (2) and Section 2 (6) and (7) of the National Labor
Relations Act, 61 Stat. 136, herein called the Act. Copies of the charge and the
complaint, together with notice of hearing thereon, were duly served on all the
parties, including The Horton & Hubbard Employees Union, herein called the
Independent.
With respect to the unfair labor practices, the complaint alleged in substance
that the Respondent: (1) by various acts detailed in the complaint, initiated,
sponsored, and formed the Independent on about March 9, 1950, and since that
date has dominated, supported, and interfered with the administration of the
independent, in violation of Section S (a) (2) of the Act; (2) by various warn-
ings and threats of reprisal, all detailed in the complaint, and by inquiring of the
union affiliation of its employees, interfered with, restrained, and coerced its
employees in violation of Section 8 (a) (1) of the Act.
The Respondent, in its answer, denied the commission of the alleged unfair
labor practices. In its answer the Independent denied that it was the recipient
of any assistance or domination by the Respondent.
Pursuant to notice, a hearing was held on August 15, 16, 17, and 13, 1950, at
Boston, Massachusetts, before George Bokat, the undersigned Trial Examiner
duly designated by the Chief Trial Examiner. All the parties except the A. F. L.
were represented by counsel and participated in the hearing. Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
pertinent to the issues was afforded all parties. At the conclusion of the General
Counsel's case-in-chief the Respondent's motion to dismiss the complaint was
denied. The parties waived their right to present oral argument and only the
Respondent availed itself of the opportunity afforded all the parties to file briefs
with the undersigned.
Upon the entire record in the case and from observation of the witnesses, I
make the following :
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent, a Maine corporation, is engaged in the manufacture, sale, and
distribution of overnight luggage and related products at its plant and principal
office in Somerville, Massachusetts. During a 12-month representative period
preceding the date of the hearing the Respondent purchased raw materials in
excess of $100,000, of which approximately 50 percent was received from points
outside the Commonwealth of Massachusetts. During the same period the Re-
spondent's sales exceeded $100,000, of which approximately 50 percent was sold
and shipped to points outside the Commonwealth of Massachusetts.
The Respondent admits, and I find, that it is engaged in commerce within the
meaning of the Act.
HORTON-HUBBARD MFG. CO. 925
II. THE LABOR ORGANIZATIONS INVOLVE
International Handbag, Luggage, Belt and Novelty Workers' Union, A. F. L.,
and The Horton & Hubbard Employees Union are labor organizations admitting
to membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Summary of events
There is no substantial dispute as to the facts. Most of the events hereinafter
described occurred in the month of March 1950, at which time the Respondent
had in its employ about 85 nonsupervisory employees. The Respondent's plant
takes up 3 floors, each in charge of a foreman or forelady, as the case may be.
Next in ascending order of supervisory hieraic,hy comes Philip Freedman, with
the title of either general manager of superintendent. Above Freedman is Harold
Caro, vice president, topped by his father, Abraham Caro, as president. The
General Counsel contends that Louis Cataldo, who works in the shipping depart-
ment and is known as the "head shipper," is a supervisor within the meaning of
the Act, and therefore Cataldo's role, hereinafter described, in assisting in the
formation of the Independent is attributable to the Respondent. I am satisfied
and find, upon the basis of the entire record, that Cataldo is not a supervisor
within the meaning of the Act.'
Prior to February 1950, the Respondent's employees were unorganized. At
about this time, primarily through the efforts of employee Robert Lewis, the
A. F. L. initiated an organizational campaign. An A. F. L. meeting as part of
this campaign was set for March 9 in Lewis' home, the latter having invited a
number of his fellow employees to attend Apparently by coincidence, President
Caro, having heard of the A. F. L. organizational efforts, decided to speak to
all of his employees on the same day. Summoned by the Respondent's public
address system, the employees, including the supervisory force, assembled on the
third floor of the plant at 4: 30 p in. Quitting time for most of the employees
was at 5 p. in.
Caro spoke extemporaneously except for reference' to a newspaper clipping
about "thousands of people" being out of work. He said he knew that the A. F. L.
was trying to organize the employees and "that he couldn't stop" them from
joining it, that as "Americans" they could use their "own free mind" and "judg-
ment." Caro expressed himself as having "treated everybody fairly and
squarely" and if anyone thought otherwise lie would like to know about it, and
indicated that he was "a little put out that anybody wanted any union at all" in
his shop. Caro referred to the various benefits the employees were receiving
such as vacations with pay, holiday pay, and Christmas bonuses, "and if the
A. F. L. came in, maybe" they "wouldn't receive these benefits," although they
might get more pay. But Caro pointed out that if the employees got higher
wages it meant higher prices for his products and fewer orders, and therefore
less work for them. Caro called attention to the fact that he had kept them
employed full time each year during the slow season by building up a large inven-
tory and since "he had 20,000 pieces of luggage on hand ... he could close the
plant for an indefinite period of time without hurting his own business in any
way." 2
I Although Cataldo sometimes directs the work of the two other shippers in his depart-
ment, the evidence shows that he transmitted instructions of a routine nature which did
not require the use of independent judgment On the state of this record I cannot find
that Cataldo had the power responsibly to direct the work of these shippers. Ct.
Chautauqua Hardware Corporation, 92 NLRB 1518.
2 These findings as to Caro's speech are based upon an evaluation of the testimony of
several witnesses, called by the General Counsel, who testified about this incident.
Neither the Respondent nor the Independent called any witnesses.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The idea to have an independent union represent the employees rather than
the A. F L appears to have originated primarily with employee Arthur Press-
man on the day following Caro's speech. After discussing it with three of his
fellow workers, Pressman decided to canvass the employees by having them
sign a petition to indicate their choice of a "shop union." Or in the words
of Pressman, "I told them what they could expect; if they wanted to sign, I
could hope that Mr. Caro would recognize us as a union and keep us with all the
present conditions that we had-take nothing away from us."
The solicitation of the employees started at about 4 p. in. on March 10. Press-
man, unlike most of the other employees, was through with his workday at that
time Aiding Pressman were two other employees-Cataldo and John Vigilante.
Giving each of them a sheet of paper Pressman said, "we would start a union
of our own and have our own representation, rather than have an outside
union bargaining for us" and "show Mr. Caro that the people in the shop wanted
to represent themselves and have an independent union." These three then
openly solicited the signatures of the employees while they were at work and
succeeded in obtaining the signatures of practically all of the employees.3
The same afternoon, Pressman, armed with the signatures, and accompanied
by Cataldo, Lewis, and employee Paul Kelley went to President Caro's office.
There, Pressman told Caro that "the majority of the employees want a shop
union and gave him the papers with the names ..."' Caro replied that he
would take the matter up with his lawyer and indicated "they'd get working
on it over the weekend." The meeting was on a Friday and the plant was not
operating on Saturday or Sunday.
The following Monday morning, March 13, Harold Caro asked Cataldo if
he would be willing to go to a lawyer's office to read a contract that the
Respondent was apparently offering to the shop union. Neither wages, hours,
working conditions, nor a contract had previously been discussed or requested
by anyone on behalf of the unformed, or at best, nascent or incipient shop union
Cataldo notified Pressman, Lewis, and Kelley of the meeting and asked them,
to accompany him to the lawyer's office. Cataldo then circulated throughout the
plant and got authority, by individual solicitation, from practically all of the
employees for Pressman, Kelley, Lewis, and himself to sign a contract in their
behalf At about 11 a. in. that morning these four employees, accompanied by
3 Permission of management to solicit the employees was not sought Solicitation for
nonunion purposes had previously taken place in the plant but whether permission had
first been obtained is not clear from the record It is clear however, that at least two
supervisors knew of the purpose of the solicitation on March 10 "While I was asking
these employees to sign the paper" testified Vigilante, "Evelyn Golden the Boss of these
girls asked me what I was doing and I told her I am just getting names for our shop
union and she turned and walked away and I went on asking the girls to sign the paper"
Employee May Sugrue asked Foreman Rudolph Freedman how he "thought then were
making out with the paper and he said he guessed everybody had signed it"
There is some confusion in the record as to whether Pressman also asked Caro to
recognize the shop union as exclusive bargaining representative I am satisfied and find,
based upon an evaluation of the testimony of Lewis, Cataldo, and Pressman, that no
specific request as such was made The shop union had not yet been formed and no
name for it had been selected The employees had merely indicated their preference for
a shop union So when Pressman testified "we spoke as individuals informing [Carol
that a majority of the employees wanted a shop union" and (lid not represent themselves
as the bargaining representative of the employees, he was at this point in his testimony
accurately depicting what had occurred. I believe however, that Pressman was trying to
get Caro's reaction to the proposition that if the majority of the employees formed their
awn shop union whether the Respondent would deal with it and, although Inarticulately
phrased , probably managed to convey this idea to Caro The latter was receptive to
the suggestion . Caro replied, according to Lewis' testimony, "If that is what you want,
you can have it."
HORTON-HUBBARD MFG. CO. 927
Harold Caro, went to the office of Gordon and Epstein, the attorneys of record in
this proceeding for the Respondent.
There, a contract which had evidently been prepared and typed prior to the
meeting, was presented to the committee representing the employees by attorney
Epstein, after Epstein had ascertained the authority of the committee to sign
a contract The name of the union already typed in the prepared contract was
the Horton-Hubbard Employees' Shop Union." The contract states that this
union having "been designated in writing by over 90 percent of the production
and maintenance employees" is recognized by the company as the exclusive
bargaining representative of these employees Another clause worthy of note
provides • "No changes shall be made by the Company in any established working
conditions without notifying the union in advance and giving the Union an
opportunity to discuss any such proposed change with the employees affected
and with the management "' Epstein read and explained each of the clauses
of the proposed agreement and all were accepted Only one suggestion came
from the employees and this was added to the contract by Epstein after some
discussion about it had taken place The contract, which was for a period of
1 year and from year to year thereafter, unless terminated by a 60-day notice,
has then signed by the four employees on behalf of the above-named union and
by Harold Caro on behalf of the Respondent
after spending about 2 hours at Epstein's office the committee had lunch
and then returned to the plant. There, Cataldo announced over the Respond-
ent's public address s.i stem that a meeting of all employees would take place
in the shop at G p m' At this meeting I'iessman announced the execution of
the contract and read it to the employees "I asked them if there was any ques,
tions about the Conti act and no one. made any reply and the meeting broke up,"
testified ]'ressinan
Steps to bring the Independent formally into existence began the next day,
March 14, with the election of a grievance committee composed of two employees
prom each of the Respondent's four departments. The balloting took place
during lunch time in the plant on company paper supplied by Cataldo. The
following day, at quitting time, the grievance committee met in the plant, the
announcement for the meeting coming over the public address system. The
committee decided to have four officers and to hold an election for that purpose.
A general meeting of all the employees took place in the plant on March 22 at
the end of the workday after notice thereof had been posted on the Respondent's
bulletin board A secretary was elected without opposition. Nominations were
received for the remaining offices of president, vice president, and treasurer
and it was decided to hold a primary and a runoff election to determine the
winners. The primary election was held the following day on ballots prepared
on company paper by Cataldo and distributed by him to the employees at about
11 a. in As the employees checked out for lunch that day, Cataldo, who had
5 The name subsequently adopted by the Independent after its formation was "The
Horton & Hubbard Employees Union " Who supplied the name appearing in the contract
to Epstein or how he happened to use it is not explained in the record It is clear from
the record however, that the employees had not as yet selected a name for their unborn
organization Lewis, the only employee to testify on this subject stated that the first
time he had heard or seen the name was when it appeared in the contract presented by
Epstein and that no previous discussion thereof had ever taken place in his presence.
6 During the meeting in Epstein ' s office there was no discussion about changing the
existing wage scale or other working conditions. Epstein, however, did read from a copy
of a contract that the A F L had with another luggage manufacturer and pointed out
that it provided for a wage scale less than that paid by the Respondent and for less
paid holidays
7 Apparently the first time an employee had ever used the public address system
928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
stationed himself next to the time clock, checked off the name of each employee
as he cast his ballot in a box placed on a nearby bench. The runoff election
was conducted in a similar fashion on the day following the primary with the
names of the two highest nominees for each office appearing on the ballot. The
results of each election were posted on the company bulletin board. Dues which
had been fixed at 50 cents a month were collected at the plant during the forma-
tive period of the organization by the treasurer, later at regular meetings
held outside the plant. Following the election of officers no further meetings
of the Independent took place in the plant.
The name of the Independent evidently was not selected until March 29 when
a meeting of the officers and grievance committee took place at the home of the
president. "At this meeting" testified Pressman, "we took up the matter of draw-
ing a constitution. We first selected the name of our union, and called it the
Horton & Hubbard Shop Union." 8 A constitution and bylaws was prepared late
the following month by Joseph Donovan, an attorney retained by the Independent,
and sometime thereafter was adopted by the Independent. The March agreement
was supplanted by a new and more comprehensive agreement executed on July 11,
negotiations therefor being initiated at the request of the Independent. This
agreement runs until December 31, 1951, and yearly thereafter unless terminated
by either party on 00 days' notice
Before discussing the legal conclusions to be reached upon the above findings of
fact it is necessary to go back to about March 10 and describe several incidents
involving Superintendent Freedman and employee May Sugrue. It will be remem-
bered, that an A. F. L. meeting took place in Lewis' home on May 9. Sugrue lived
in the same house as Lewis but did not attend the meeting and knew nothing about
it. Freedman asked Sugrue if she knew about the A. F. L. meeting in Lewis' home.
Sugrue replied that she did not. About an hour later Freedman summoned her
to President Caro's office and with only the two of them present, asked her
"several times" during the ensuing conversation whether she "was more interested
in the shop as it was, or in having the A. F. L. in " Sugrue's only reply was that
she was interested in her work. Freedman then repeated substantially what Caro
had said in his March 9 speech to the employees, giving reasons, to quote Sugrue,
why "we wouldn't be as well off with the [A. F. L.] as we were at the present
time." Freedman also told Sugrue that the employees "may not receive turkeys
at Thanksgiving, or the vacations with pay, or holidays, or Christmas bonuses."
Not long after these conversations, Freedman complained to Sugrue that she
had violated "a confidence" by telling other employees about his inquiry of Sugrue
about the A. F. L. meeting in Lewis' home. Freedman also told her there was
"talk" around the shop of Sugrue being active in behalf of the A. F. L. "I told
him I didn't like the talk. And he told me it must be true because he heard it
from three or four people," testified Sugrue. She was upset and annoyed by these
rumors because they were not true. A few weeks later Sugrue was summoned to
Caro's office. There, after being informed by Superintendent Freedman that
Harold Caro wanted to talk with her, Caro entered the office. Freedman then
said "there had been rumors around the shop about [Sugrue] answering questions
for the A. F. L., and about [her] saying it was a slave shop" and "wasn't satisfied."
Upon Caro's inquiry as to whether this was true Sugrue denied it. Caro then
said he was not interested in any rumors, that Sugrue had a right to be active in
behalf of the A. F. L. if she wanted to, and that he was satisfied with her work
which was all that mattered to him. Caro also stated that his father "had made
his mind up that whatever the people wanted, they'd have; if they wanted an
8 The name actually selected was The Horton & Hubbard Employees Union.
HORTON-HUBBARD MFG. CO. 929
A. F. L. they'd have it, but from that point on it would be strictly business and not
friendly like it had been." Sometime during the discussion Freedman offered the
opinion that Sugrue had been talking about the company because at one time
during her employment while she had been making a dollar an hour she had quit
and when she returned the only job then open to her paid only 80 cents an hour.
Freedman then repeated to Caro what he had previously told Sugrue, that he
would gradually increase her pay to its old rate but "he couldn't do it then on
account of the . . . A. F. L. trying to organize the shop."
Concluding Findings
1. As to interference, restraint, and coercion
I find that the Respondent has interfered with, restrained, and coerced its
employees in violation of Section 8 (a) (1) of the Act by the following statements
and conduct : (a) President Caro's statement in his speech to the employees on
March 9, that maybe "they wouldn't receive" such existing benefits as vacations
with pay, holiday pay, and Christmas bonuses "if the A. F. L came in," and
Superintendent Freedman's similar statement to May Sugrue; (b) President
Caro's statement that "he could close the plant for an indefinite period of time"
since "he had 20,000 pieces of luggage on hand" , s (c) Superintendent Freedman's
harassment of Sugrue because he believed she was an A F. L adherent. This
includes his questioning Sugrue about the A F. L meeting in Lewis' home and
her interest in that organization," and his statement that he could not increase
Sugrue's pay at that time because of the A. F. L. organizational campaign. I also
find Harold Caro's assurances of neutrality to Sugiue under the circumstances
here disclosed, insufficient to overcome the coercive effect of Freedman's conduct.
2. As to support and assistance of the Independent
The genesis of the Independent started with the fear of some of the employees,
stemming from President Caro's speech on March 9, that they might lose what they
considered as favorable terms and conditions of employment if the A. F. L.
succeeded in its organizational campaign. Believing that they might be able
to retain their favorable working conditions through the medium of a shop
9 Contrary to the Respondent 's contention I do not find everything said by President
Caro to be privileged under Section 8 (c) of the Act That section expressly excludes
from its protective ambit statements containing a "threat of reprisal or force or promise
of benefit." While some of Caro 's remarks indicated that the employees ' loss of work
might flow solely as a result of the play of ecdnomic forces if the plant was unionized
and not as the result of any voluntary action on his part, those found above to be
violative of the At do not appear to have this protective coloration These were couched
in terms indicating what Caro could or might do in the event of unionization Caro's
warning that he could shut the plant for an indefinite period of time could reasonably
be construed by the employees as a threat that it might have to close if unionized, and
therefore must have necessarily affected their judgment and freedom of choice guaranteed
by the Act . Likewise, Caro 's assertion that the employees might not continue to receive
their existing benefits contained an implied threat of possible reprisal . That it was so
construed by the employees is apparent from Pressman 's testimony, that in canvassing the
employees the following day to sign the petition favoring a shop union , Pressman expressed
the hope that Caro might "keep us with all the present conditions that we had-take
nothing away from us "
1o Standard-Coosa-Thatcher Company, 85 NLRB 1358 . The totality of Freedman's
conduct towards Sugrue was an uniuarranted invasion of her right of privacy of opinion
about the A. F. L., a right protected by Section 7 of the Act , especially where, as here,
it so clearly constituted a restraint upon her freedom of choice . The Board has con-
sistently held that interrogation of employees concerning any aspect of union activity to
be violative of Section 8 (a) (1) of the Act
95381-52-vol 94-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union, the great majority of the employees indicated their choice of that kold
of an organization when they signed petitions circulated throughout the plant on
company time with the knowledge of the Respondent. The petitions were then
presented to President Caro as proof that the majority of the employees wanted
their own shop union Caro was then asked, in effect, whether the Respondent
would deal with such an organization Since no organization had as yet been
formed it is evident that the employees, who were inexperienced in such matters,
were seeking the advance blessing of the Respondent for that kind of an organ-
ization before forming one While Caro seemed amenable he preferred seeking
the advice of his attorney before giving an answer. This meeting occurred on a
Friday afternoon. The following Monday morning the Respondent gave its
answer in the form of a written contract recognizing the Horton-Hubbard Em-
ployees' Shop Union as exclusive bargaining representative and retaining the
then existing terms and conditions of employment with one addition. The or-
ganization named in the contract had not as yet been formed nor had any name
been voted on by the employees, although they had authorized a committee to
execute a contract in their behalf It was not until after the execution of this
contract that the Independent was formed on the Respondent's premises with
the use of some of its time and facilities and with the apparent knowledge and
acquiesence of the Respondent The name of the organization was not chosen
until March 29, 16 days after the execution of the contract, and while substan-
tially like, is not identical with the one in the contract
The Respondent concedes "that there undoubtedly was some `assistance' to the
Independent Union in that they did use the Company's premises and some Com-
pany time in the formation and early administration of the Independent Union "
But argues the Respondent, in the absence of any evidence that similar privileges
were requested by and denied to the A F. L. the assistance is not illegal, and
cites N. L R 13 v. Btowv, Co, 160 F. 2d 449 (C. A. 1), and, other cases of like
import in support of its position I find these cases distinguishable from the case
at bar and not apposite In Republic Aviation Co) p. v. N L R B , 324 U. S 793,
the Supreme Court said that the Act "did not undertake the impossible task of
specifying in precise and unuustakable language each incident which would con-
stitute an unfair labor practice On the contrary. that Act left to the Board the
work of applying the Act's general pi ohibitoi y language in the light of the in-
finite combinations of events which might be charged as violative of its terms "
Even "rumor favars . . without discrimination between employee organiza-
tions" are within the Board's cognizance (N. 1, It B v Southern Bell Telephone
f Telegraph Co, 319 U. S 50), and "Intimations of an employer's preference,
though subtle, may be as potent as outright tin eats of discharge " (N L. R B.
v Lank-Belt Co, 311 U S. 584)
The Respondent's coerciN e opposition to the A F. L as evidenced by the
speech of President Caro and the statements and conduct of Superintendent
Freedman, its precipitate action in granting exclusive recognition and a con-
tract to an unformed organization, and the subsequent assistance that organiza-
tion concededly received from the Respondent during its formative period, all
portray a congery of events which lead to the definite conclusion that the
Respondent, in violation of Section 8 (a) (2) of the Act, rendered illegal assist-
ance to the Independent It would have been useless for the A F. L to ask the
same privileges accorded to the Independent because the A F L. was already
faced with a fait accompli, to wit, the Independent had already received a con-
tract recognizing it as the exclusive bargaining representative before the acts
of assistance in its formation took place Since the Respondent at this point
could not legally grant exclusive recognition to the A. F. L as well, permrs-
HORTON-HUBBARD MFG. CO. 931
Sion from the Respondent for the A. F. L to compete with the Independent in
organizing the employees on company time and property would be of no benefit.
Under these circumstances the A F L could not possibly have received equality
of treatment from the Respondent" I therefore find that the acts and conduct
of the Respondent heretofore described constituted support and assistance to
the Independent in violation of Section S (a) (2) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section III, above, occurring in
connection with the operations of the 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
Having found that the Respondent has engaged in the unfair labor practices
set forth above, I shall recommend that it cease and desist therefrom and that
It take certain affirmative action designated to effectuate the policies of the Act.
Although finding that the Respondent's conduct constituted assistance and
support to the Independent, I am not persuaded, on the basis of the entire rec-
ord, and in line with the Board's policy as enunciated in The Carpenter Steel
,Company, 76 NLRB 670, that the Respondent's conduct, despite some suspicious
circumstances, constituted domination of the Independent as well. I shall
therefore not recommend that the Respondent disestablish the Independent but
shall recommend that it withdraw recognition from the Independent as the
representative of any of its employees for the purpose of dealing with it con-
cerning grievances, labor disputes, wages, rates of pay, hours of employment,
or other conditions of employment, unless and until said labor organization
shall have been certified by the Board. I shall also recommend that the Re-
spondent' cease giving effect to its contract with the Independent or to any
modification or extension thereof Nothing herein shall be taken, however, to
require the Respondent to vaiy those wages, hours, and other substantive features
of its relations with the employees which it has established in the performance
of any agreement as extended, renewed, modified, supplemented, or superseded.
I am also persuaded that the Respondent's conduct poses a threat that it might
in the futuie commit other unfair labor practices persuasively related to those
found herein. The preventive purposes of the Act will be thwarted unless the
order is coextensive with this threat It will therefore be recommended that
the Respondent cease and desist from infringing in any manner upon the
iihts guaranteed in Section 7 of the Act.
Upon the basis of the above findings of fact and upon the entire record in
the case, I make the following
CONCLUSIONS OF LAW
1 International Handbag, Luggage, Belt and Novelty Workers' Union, A. F. L.,
and The Horton & Hubbard Employees Union are labor organizations within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, a nd coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the Respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8 (a)
(1) of the Act. '
11 Cf N L If. B V Stowe Spinning Co , 336 U S 226
932 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By contributing support and assistance to The Horton & Hubbard
Employees Union, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (2) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting
commerce , within the meaning of Section 2 ( 6) and (7) of the Act.
[Recommended Order omitted from publication in this volume.]
THE STILLEY PLYWOOD COMPANY, INC. and INTERNATIONAL BROTHER-
HOOD OF, PULP, SULPHITE & PAPER MILL WORKERS OF THE U. S. AND
CANADA, A. F. L. Case No. 10--CA-420. May 31, 1951
Decision and Order
On August 22, 1950, Trial Examiner Isadore Greenberg issued his
Intermediate Report in the above-entitled proceeding finding that the
Respondent had engaged and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. The Trial Examiner found that
the Respondent had not engaged in certain other alleged unfair labor
practices and recommended that those allegations of the complaint
be dismissed. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and briefs in support of
their exceptions.
The request of the Respondent for leave to argue the case orally
before the Board is denied because the record in the case and the
briefs submitted by the parties, in our opinion, adequately present
the issues and the positions of the parties.
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 Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recommen-
dations of the Trial Examiner with the following additions and modi-
fications: 1
1. We agree with the Trial Examiner that the Respondent by en-
gaging in the conduct described in the Intermediate Report, including
1 The Intermediate Report contains certain misstatements of fact , none of which affect
the Trial Examiner ' s or our ultimate conclusions . Accordingly , we make the following
corrections : ( 1) The Trial Examiner states that the complaint alleges that the Respondent
through its unfair labor practices caused its employees to go on strike on or about April
26, 1948, whereas the allegation of the complaint is that the employees went on strike on or
about August 26, 1948; ( 2) the Trial Examiner found that "after the election which the
Union won , Nelson told Robinson that Stilley had threatened to `shut hie mill down' . . 'r
whereas we find that this event occurred before the election.
94 NLRB No. 138.