Murphy Diesel Co.

National Labor Relations Board - Board Decisions

May 14, 1958

120 N.L.R.B. 917 (N.L.R.B. 1958)

MURPHY DIESEL COMPANY 917
season just past, Accordingly, we shall direct that the election be
held at or about the time of the employment peak of the approaching
corn season , on a date to be determined by the Regional Director for
the Twenty-first Region, among the employees in the appropriate
unit who are employed during the payroll period immediately pre-
ceding the date of issuance of the notice of election by the Regional
Director.
[The Board set aside the election held herein on December 3, 1957.1
[Text of Direction of Second Election omitted from publication.]
Murphy Diesel Company and District No. 10 , International Asso-
ciation of Machinists, AFL-CIO. Case No. 13-CA-2450. May 14,
1958
DECISION AND ORDER
On September 10, 1957, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate Report attached hereto. Thereafter the Respondent and the
General Counsel filed exceptions to the Intermediate Report and
briefs in support of their exceptions.
At the close of the General Counsel's case, the Trial Examiner
granted the Respondent's motion to dismiss the complaint allegation
that the Respondent had violated Section 8 (a) (3) of the Act. For
the reasons stated hereinafter, this ruling of the Trial Examiner is
hereby reversed. The Board has reviewed other 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 con-
sidered the Intermediate Report, the exceptions, the briefs, and the
entire record in the case, and finds merit in certain of the General
Counsel's exceptions. Accordingly, the Board adopts the findings,
conclusions, and recommendations of the Trial Examiner only to the
extent that they are consistent with this Decision and Order.
1. We agree with the Trial Examiner that the Respondent violated
Section 8 (a) (1) of the Act by laying off employees because they
refused to remove certain signs from their personal property.
The Respondent's employees had voted to strike because of dissatis-
faction with current wage negotiations. At a union meeting held on
November 3, 1956, the employees decided that the strike would start at
7 a. m. on November 20, 1956. At this meeting, a proposal was made
that the strike date be advertised by signs to be posted on the personal
120 NLRB No. 120.
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
property of the employees. This proposal was greeted with applause,
but no formal vote was taken on it.
On November 5, signs bearing only the words "November 20, 7: 00
a. m." appeared on plant property as well as on the personal property
of employees. At - the Respondent's direction these signs were re-
moved by foremen assisted by some of the employees. On the follow-
ing day employee Blumke posted a small sign with the foregoing
inscription on the inside cover of his toolbox which was his personal
property. At the order of his foreman, Blumke reluctantly removed
the sign. On November 7 Blumke again posted a small sign with the
same inscription on his toolbox. This time he refused to heed the
request of his foreman that the sign be removed. Thereupon Lewis,
the Respondent's general manager, summoned the employees' bar-
gaining and grievance committee to' tell them that a grievance as to
the sign dispute was pending, and that Blumke would be discharged
if he persisted in his refusal to remove the sign. The committee called
in Grunke, an international representative of the Union. In the
presence of Grunke, the committee, and Lewis, Blumke stated that he
had the right to post the sign and would not remove it. Thereupon,
at about 11: 45 a. m., Lewis laid off Blumke for 1 week as a disciplinary
measure. Immediately thereafter, on the order of Grumke, members
of the bargaining and grievance committee notified employees that a
union meeting would be held during the lunch hour. At•the meeting,
presided over by Grunke, the employees decided to protest the punish-
ment of Blumke by posting strike-date signs on their persons and on
such personal property, as toolboxes and lunch pails, but not on com-
pany property. The employees prepared the signs on their own time
and returned to the' plant to post them. In retaliation, the Respond-
ent laid off 154 additional employees for 1 week.
On the following day, after discussion between the bargaining com-
mittee and company representatives, it was agreed that strike-date
signs would be posted on company bulletin boards and not on personal
property, and that the laid-off employees would be recalled to work
for the following Monday, November 12. Subsequently, a number of
employees filed grievances. However, neither the original grievance
nor the subsequent ones were carried to a conclusion because of a dis-
agreement as to the terms of referral to arbitration. Instead, the
Union filed the present unfair labor practice charges.
The Trial Examiner found that, but for the November 7 posting
of strike-date signs on the persons and personal property of employees
and the refusals to obey company orders to remove the signs, there
would have been no layoffs. He rejected contentions of the Respond-
ent that disciplinary action was taken against employees because the
signs were littering up the plant, production was being interfered
with, and discipline was adversely affected. The Trial Examiner's
. MURPHY DIESEL COMPANY 919
findings in this respect are fully supported by the evidence and we
'adopt them.' The issue is, therefore, whether the Respondent could
lawfully ' require that, Blumke and other employees ' remove strike-
date signs from their personal property within the plant.- If the
Respondent had such a right, then it could lawfully discipline em-
ployees for failure to obey its orders. On the other,. hand, if the
employees had the right to post the signs on their personal property
in the plant, the Respondent could not discipline them for insubordi-
nation because they. stood upon their rights. The right to post the
signs would be meaningless unless employees were protected' from
punishment because they chose to exercise such right. '
The strike-date signs advertised an impending lawful strike. In
essence they were no different from union insignia worn by employees
to advertise or promote other forms of union activity, particularly
organization of employees. The right of employees to wear union
insignia at work has long been recognized as a reasonable and legiti-
mate form of union activity 2 Interferences with such activity is "pre-
sumptively invalid, in the absence of, special circumstances" which
makes such interference "necessary in order to maintain production
and discipline." S An employer cannot restrict the wearing of passive,
inoffensive advertising insignia which do not interfere with discipline
or efficient production .4 In the Caterpillar Tractor case, the court
declared that an employer could lawfully require employees to remove
"Don't be, a scab!" buttons from their clothing while at work, because
the word "scab" is a fighting word and has an inherent disruptive
influence. The words used on the signs by employees in this case
were completely inoffensive. They were not calculated to defame or
insult 'other employees. Neither were they calculated otherwise to
interfere with production or discipline. Whatever interference did
occur resulted from the Respondent's own insistence that the employees
remove the signs and the employees' lawful refusal to obey. We find
therefore, as did the Trial Examiner, that in posting the strike-date
signs on their personal property, the employees engaged in a protected
I General Manager Lewis testified :
Q. Why did you give instructions to lay off Mr. Blumke ?-A. Because at that
point the sign situation had gotten out of control and it ' finally simmered down to
the only person who had been requested to remove sign who hadn ' t was Blumke.
Q.,He was the only person in the plant that had a sign up at the time he was laid
off?-A. That we knew about.
' • Q. well , if there was only one sign posted, Mr. Lewis; how could it have been
cluttering up the place ?-A. At that point it wasn 't but at that point it became a
question whether the Union was going to run the plant or whether we were, and a
question of insubordination.
Q. The real reason Mr. Blumke was discharged was not because he was cluttering
up the plant but because of insubordination ?-A. That's right.
2 See Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, 802.
8 See Boeing Airplane Company, 103 NLRB 1025, 1026, enforced in pertinent part In
Boeing Airplane Company v. N. L. R. B., 217 F. 2d 369, 376 (C. A. 9).
Caterpillar Tractor Company v. N. L. R. B., 230 F. 2d 357 (C. A. 7).
920 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
,concerted activity, and that by discriminating against them because
of such activity the Respondent interfered with, restrained, and
coerced employees in violation of Section 8 (a) - (1) of the Act e
Contrary to the Trial Examiner, we find that by the above action
the Respondent also violated Section 8 (a) (3) of the Act. There
is no evidence that, as found by the Trial Examiner, "the Union had
disclaimed sponsorship, authorization, responsibility or any other
connection with the employees' acts. . . ." On the contrary, the
record shows that the strike was decided upon in formal meetings of
the Union ; that the suggestion to wear the "November 20, 7: 00 A. M."
signs was made and accepted at a union meeting; that the Union's
business agent and members of the bargaining and grievance com-
mittee interceded officially in the Blumke matter; and that on Novem-
ber 7; the membership voted in an ad hoc union meeting for all
employees to' display the sighs in protest against Blumke's layoff.
The Respondent's retaliatory action against the employees was there-
fore directed against union activities and tended to discourage union
membership. Moreover, even assuming that the Union had taken
no part in the dispute over the sign posting, the discrimination against
employees because they had engaged in protected concerted activity,
would necessarily tend to discourage union membership e Accord-
ingly, we hereby overrule the Trial Examiner's dismissal of the 8
(a) (3) allegation of the complaint and find that the Respondent, by
it'e aforementioned conduct, violated Section 8 (a) (3) 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, Murphy Diesel Company,
Milwaukee, Wisconsin, its officers, agents, successors, and assigns,
shall:_
1. Cease and desist from :
(a) Discouraging membership in District No. 10, International
Association of Machinists, AFL-CIO, or in any, other labor organ-
, ization of its employees, by 'laying ofF employees' for displaying on
their persons and personal property signs advertising an impending
strike, or in any other manner discriminating against them in regard
to their hire or tenure of employment or any term or condition of
employment.
6 The Trial Examiner inferred that the employees displayed the strike-date signs in order
to taunt the Respondent . There is no evidence to support this inference and we therefore
do not adopt it. The, disciplinary action resulted from Blumke's adamant insistence on
his rights and the'subseijuent employee expression of solidarity with him after he was
given a disciplinary layoff. There is nothing in these facts to suggest the taunting in-
ference of the Trial Examiner. ,
0 See Radio Ofcere' Unions, etc . v. N. L. R. B., 347 U. S. 17.
MURPHY DIESEL COMPANY 921
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the rights guaranteed in Section 7
of the Act.
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Make whole all the employees named in "Appendix B" at-
tached to the Intermediate Report for any loss of pay suffered by
reason of the discrimination practiced against them.
(b) Preserve and make available to the Board or its agents upon
request, for examination and copying, all payroll records, social-
security payment records, timecards, personnel records and reports,
and all other records necessary to analyze the amounts of back pay
due under the terms of this Order.
(c) Post at its plant in Milwaukee, Wisconsin, copies of the notice
attached hereto marked "Appendix A."' Copies of said notice, to
be furnished by the Regional Director for the Thirteenth Region,
shall, after being duly signed by the Respondent's representative, be
posted by the Respondent immediately upon receipt thereof and
maintained by it for a period of 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 Re-
spondent to insure that said notices are not altered, defaced, or covered
by any other material.
(d) Notify the Regional Director for the Thirteenth Region, in
writing within ten (10) days from the date of this Order, of the steps
the Respondent has taken to comply herewith.
7In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an order."
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, as amended, we hereby notify our employees that :
WE WILL NOT discourage membership in District No. 10, Inter-
national Association of Machinists, AFL-CIO, or in any other
labor organization of our employees, by laying off employees for
displaying on their persons and personal property signs adver-
tising an impending strike, or in any other manner discriminating
against them as to their hire or tenure of employment, or any
term or condition of employment. I -
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the rights guaranteed in
Section 7 of the Act.
922 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL make whole all the employees named in "Appendix
B" attached to the Intermediate Report for any loss of pay suf-
fered by reason of the discrimination practiced against them.
MURPHY DIESEL COMPANY.
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 AND RECOMMENDED ORDER
The complaint herein alleges that the Company has violated Section 8 (a) (1),
and (3) of the National Labor Relations Act, as amended, 61 Stat. 136, by dis-
criminatorily laying off the 155 employees, named in Appendix B attached hereto,,
because they had engaged in protected concerted union activities. The answer
admits the layoff of a "substantial number" of employees, but denies discriminatory
motivation and further denies that the activities engaged in were protected concerted
activities within the meaning of the Act.
A hearing was held before me at Milwaukee, Wisconsin, on July 23 and 24, 1957.
Pursuant, to leave granted, briefs have been filed by the General Counsel and the
Company, the time to do so having been extended.
The Company in its answer moved to strike from the complaint the. allegation
that by the discrimination alleged it "did thereby and is thereby discouraging
concerted activity for mutual aid or protection." This motion was not pressed.
But it was repeated and formally presented at the close of the General Counsel's
case. The evidence to the latter point did not indicate that the Company's conduct
had discouraged, or was even intended to discourage, or was connected with
union activities. The testimony elicited from his witnesses by the General Counsel
showed, to the contrary, that the Union had disclaimed sponsorship, authorization,
responsibility, or any other connection with the employees' acts to which the Com-
pany responded. That was the General Counsel's evidence, and it stood uncon-
tradicted. The Company urged this in its motion to dismiss the allegation. There
has not been even an attempt to show how steps taken by the Company against
action which was not connected with the Union could discourage membership
in the Union or in any union. Certainly there is no evidence that the layoffs
either stemmed from or discouraged union activities mentioned, such as the bar-
gaining negotiations or the processing of grievances, within the meaning of Section
8 (a) (3).
The motion to dismiss the allegation at the close of the General Counsel's case
was granted, reason therefor together with argument by Counsel being noted on
the record. It was particularly noted that it did not appear to me that "the con-
duct complained of can have the proximate and predictable effect of encouraging
or discouraging membership in a labor organization." 3 As the court said in its
J. I. Case opinion,
We cannot however find any basis of circumstance or testimony in the record
to warrant an inference that the employer would not just as promptly have
made the , discharges and layoffs, had the situation been one in which the
(postings) had (been made by) non-union employees, or that the employer's
disciplinary action reasonably would be likely to create a belief in the minds
of the employees that union targeting was involved.
We can also here adopt the following language from that decision:
Union hostility or interference (not alleged in the instant case) with unioni-
zation efforts were not proved against the employer.
The General Counsel argued that several leaflets (these are again referred to infra)
distributed by the Company and received in evidence indicate that the Company is
in fact hostile toward the Union. But such hostility or interference was not even
alleged, much less proved. On the issue of discrimination, it is no more relevant
than is the Company's proof of harmonious relations with the Union. (On the
1N. L. R. B. v. J. I. Case Company, Bettendorf Works, 198 F . 2d 919, 923 (C. A. 8).
MURPHY DIESEL COMPANY 923
issue of interference, as we shall see infra, neither of these aspects of the testimony,
pro or con, is determinative or necessary: the evidence immediately relevant and
directly connected with the posting of signs is clear and sufficient.) The Com-
pany's general attitude toward the Union and union activities generally is not in
issue here. Further, even if the leaflets had been alleged to be violative and the
right of free speech were not recognized, the leaflets, like the layoffs, would not
constitute more than a violation of Section 8 (a) (1).
Thereafter, during the Compnay's case, the General Counsel elicited from Lewis,
the plant manager, the statement that he permitted Grunke, the union business
agent, to join a meeting between Lewis and the bargaining and grievance com-
mittee because Lewis thought that the posting by one employee, Blumke, was a
union matter and that Grunke might persuade Blumke to remove his sign. Cer-
tainly the visit provision of the contract between the Company and the Union
provided for access to the plant at any time to investigate and aid in the settlement
of disputes. As the employees' representative, the Union has an interest in disputes
involving employees even if the Union is not itself involved as a party or principal
in such disputes. (The Union's interest in the results which stemmed from the
employees' acts, and its activity thereafter did not make those acts union activities.)
Aside from the fact that later testimony would not cure. the earlier defect and
the further fact that a respondent is entitled to a ruling on the evidence submitted
up to the close of the General Counsel's case ; if, as the General Counsel main-
tained, the Union was not in fact connected with the posting, what the Company
thought about a connection would not discourage union membership. Section
8 (a) (3) declares it to be a violation "for an employer . . . to encourage or dis-
courage membership. .. . Even an act of discrimination is not declared to be a
violation of the section where there is no encouragement or discouragement; no
more violative of that section is mere discriminatory intent. (The absence here
of union connection distinguishes this case from those where, with discriminatory
intent, an employer acts against an employee under a mistaken impression that he
is connected with a,union, but where in fact there is a general union connection
in the situation even if not with the given employee.)
On the other hand, it has long since been settled that, where there has been
interference with concerted activities and discrimination with respect to hire and
tenure although no encouragement or discouragement of membership in a labor
organization, an order for back pay is warranted under Section 8 (a) (1) of the
Act even if not under Section 8 (a) (3) .2
The General Counsel cites several cases as holding that discharge because of con-
certed activity within the meaning of Section 7 of the Act is violative of Section 8
(a) (1) and (3). In two of those cases, the discharges were for wearing union
buttons. In each of the other cases which he cites, the Board clearly declared that
its remedy was appropriate without regard to whether the discharges be deemed viola-
five of one section or the other. In one of the latter cases, the Board specifically
limited certain discharge violations to Section 8 (a) (1); it found violation of Section
8 (a) (3) with respect to other discharges only because "the employees involved
constituted themselves a labor organization" in presenting a joint grievance. The
question of employer intent and cases cited thereon are irrelevant to present
consideration.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT (WITH REASONS THEREFOR)
1. THE COMPANY'S BUSINESS AND THE LABOR ORGANIZATION INVOLVED
It was admitted and I find that the Company, a Delaware corporation with prin-
cipal office and manufacturing plant in Milwaukee, Wisconsin, is engaged in the
manufacture and sale of diesel engines; that during 1956 it purchased and transported
to its Milwaukee plant from points outside the State of Wisconsin raw material valued
at more than $1,000,000; that during said period it sold and transported from its
Milwaukee plant to points outside the State of Wisconsin its finished products in an
amount valued at more than $1,000,000; and that the Company is engaged in com-
merce within the meaning of the Act.
It was admitted and I find that the Union is a labor organization, within the
meaning of the Act.
2 Rome ,Specialty Co., Inc., 84 NLRB 55. See also N. L. R. B. v. J., I. Case Company,
Bettendorf Works, supra, at 924.
'924 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II. THE UNFAIR LABOR PRACTICES
A. The concerted activities
Under date of August 16, 1956, the Union wrote to the Company and requested
that their collective-bargaining agreement be reopened for the purpose of wage
negotiations. While such negotiations were thereafter being conducted, reports on
lack of progress were made at monthly meetings of the Murphy Diesel Group, i. e.,
the members of the local union who were employed by the Company. A special
meeting was held on October 24 to report the results of the negotiations and to enable
the Group to take action on acceptance or rejection of the results of the negotiations.
The Company's offer was rejected and a vote was taken to obtain strike sanction from
the International Union, the local Federation, and the Teamsters.
At the regular monthly meeting on November 3, the report was that there was
no change in the negotiations, and it was voted to set a strike deadline of 7 a. m. on
November 20. One member suggested that the men post signs on their own property
to notify those who were not at the meeting that the deadline had been set. This
suggestion was greeted with general applause, but beyond such informal approval
there was no vote or other apparent formal indorsement. We need not pass on the
credibility of Grunke's and Blumke's testimony concerning the anonymity of the
proposal on November 3 to post the signs, and the informal spontaneity of the later
decision on November 7 to post them again. We have seen that both the General
Counsel and. the Company relied on this, the former in disclaiming union respon-
sibility, the latter in its motion to dismiss the allegation of violation of Section
8 (a) (3).
On the following workday, Monday, November 5, signs appeared in profusion on
the men's clothing and toolboxes, in their hand, and on what is admittedly company
property, such as machines, walls, and bulletin boards. The signs bore the legend
"Nov. 20, 7 A. M." (in this or substantially similar form-one such sign , approxi-
mately 14" x 18", was received in evidence; others were described as containing
similar language and being variously 2" x 3" or larger.) At the Company's direc-
tion, the men then removed the signs for which each was personally responsible, i. e.,
those on their person or personal property. (While this earlier action introduced
the later, the issues before us do not revolve around earlier posting and removal.)
Bradee, chairman of the Group's shop committee, was asked by Banse, a foreman,
and did remove various signs on company property.
One of the employees, Blumke, posted a sign that day on his toolbox and two on
the assembly line bulletin boards. (He did not post his name on those bulletin board
notices since he had no official direction, as the Group's recording secretary, to post
them. Nor did' he ask the Group's secretary-treasurer, who puts notices on the
boards for the Group, to do so with this notice. Whatever may be urged concerning
such posting or even Blumke's admitted preparation of signs for other men during
working hours, these acts are not in issue. Blumke was laid off because of his refusal
to remove the sign from his toolbox.) Blumke also circled the November 20 date
on four calendars which were posted on the walls. He testified that calendars were
put up by anyone who brought-them in and that he had, without protest, posted signs
or clippings on his toolbox before November 5, as he has since. Banse told Blumke
to remove the signs from the bulletin boards, saying that he thought it was foolish-
ness. Blumke asked then whether it was all right to keep the sign on his toolbox,
and Banse, shrugging his shoulders, made no comment. Blumke was not told on
November 5 to remove his toolbox signs
On November 6, at about 2:45 p. m., Banse told Blumke to remove the sign inside
his toolbox cover and some pinup pictures also. Blumke did not reply, but asked
Bradee whether he had to remove the sign . Bradee spoke with Lewis about it, and
reported to Blumke that Lewis had said that Blumke would have to take it down or
get out. To this, Blumke replied that he did not care what Lewis said; what did the
Committee say? Bradee told him to take it down, and Blumke did.
On the following morning, November 7, Blumke posted the sign on his toolbox
again . He testified that he did not think it was harming anyone; he did not need a
reminder, but wanted it. Whatever the respective rights, the issue was now one of
personalities, face-saving, even assertion of authority. But the question of authority
depends on the overall issue of law. If the direction to remove the signs was unlaw-
ful, the Company had no authority to insist and to lay men off for refusal to obey.
There is a suggestion here that the Company's objection to the posting of signs was an
afterthought. But the Company's general objection on November 5 is clear, and if it had
the right to Insist on removal, it could overrule Banse's apparent assent ; Blumke was
given notice of the Company's objection.
MURPHY DIESEL COMPANY 925
Disagreement was followed by defiance. But such defiance is not necessarily to be
equated with insubordination which justifies discharge; the underlying disagreement
must be analyzed to determine whether there has been violation of management's
prerogatives or of employees' rights under the Act. At 7:45 that morning, Banse
told Blumke 'to remove the sign 'or he would have to lay him off. Blumke replied
that he hated "to be insubordinate if that's the word," but he did not feel that he had
to take it off his personal property. Blumke testified further that he then asked
whether Banse wanted him to take it off, and Banse replied, "No," and walked off.
I do not credit this last that Banse indicated that Blumke was not required to remove
the sign ; it is entirely out of keeping with the very reason for Banse's approach at the
time and with the circumstances before and after. But in any event, as we have seen,
this cannot itself be considered a bar to the Company's later insistence that he remove
the sign if it was otherwise within its fights in calling for removal.
That morning, Lewis had seen a large November 20 sign on the wall as he entered
the plant. He removed it (dropping it on the flood!), later saw it up again, and
then took it. The fact that Blumke had a sign on his box was called to Lewis'
attention , and he asked the Group's bargaining and grievance committee to come
into his office to discuss the situation with him, particularly Blumke's sign. Lewis
told them that if a grievance was pending concerning the signs (as it was), and
if Blumke continued to display his sigh, he (Lewis) would have no alternative but
to fire him. The committee asked for time to communicate with Grunke, and asked
Lewis to withhold action until they did so communicate. Called by Bradee, Grunke
came to the plant and met with Lewis. Grunke maintained that it was within
Blumke's rights to post a sign on his personal property. Lewis insisted ,that Blumke
take his sign down and, when Blumke persisted in his refusal, told him that he was
laid off for 1 week. (As Lewis stated at the time, this was a 'change from his
original warning that he would discharge Blumke.)
Grunke and the others left Lewis' office at about 11:45, and Gfvnke told the others
to pass around word that a meeting would be held during the 12 to 12:30 lunch
period. Thus informally called together, the production and maintenance employees
at this meeting were told that Blumke had been laid off for 1 week because he would
not remove the sign; someone moved and it was unanimously ca'rri'ed that when they
returned to the plant each would put up a November 20 sign. (According to
Bradee, the decision was reached "through voice," but without a vote.) They were
advised to put the signs on their personal property and not to make the sign on
company time or use 'company material. Upon their return to the plant they
posted signs, and the 155 were laid off, some before and others after they went to
work. (The time lost thus varied, with those on the night shift apparently losing
the entire day; while this was indicated, proof will await the compliance stage.) On
the following morning, November 8, company and union representatives agreed that
November 20 signs would be posted on the bulletin boards and the men would not
post any on their own property; and that the layoff would be shortened, the men
to be called back to work for Monday, November 12.
To the allegation that the 155 were discriminatorily discharged, the defense
offered is that they had engaged in unprotected activities in that they posted and
refused to remove the signs after being directed by the Company to remove them.
In issue was the question whether all 155 had displayed and refused to remove such
signs and had therefore been laid off. Further, with distinction raised between
signs'dn'the person or personal, property (counsel for'the Company claimed that the
men's toolboxes in the plant are to be considered company property) and 'signs
on company property, it was necessary to be iiiforined, if the distinction 4 was valid
and material, which, 'if any, of the employees had been laid 'off iii connection with
sighs on the person or personal property, and which, if any, for signs on company
property. '
Before details were received concerning posting on company property, and when
it appeared that, whatever the employees'-right to post on their own, there might
be additional restrictions and relevant valid limitations on their posting on company
property,5 I poihted out to counsel that an agreement that layoffs were made be-
cause signs 'were posted, some of. them on company property and some on personal
property, might warrant a finding of violation and specifically "(considering the
distinction insisted upon between company and personal property) for the layoff
of employees who posted signs on their person or personal property only. But
I further pointed out 'that, if such a finding of violation were made, I might still
4 Evidence relating to the posting of signs on company property is briefly considered
infra.
a This question was later disposed of by Lewis' testimony , as we shall see infra.
926 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be unable to perform the further necessary function of recommending a remedy
unless it were shown which employees were within each category , i. e., where each
posted signs. What the facts were and what the testimony would show I , did not
know; but further evidence was necessary to a proper disposition of the issue.
Postponing for the moment any question concerning location of signs ( see infra),
we must consider whether posting of the signs, even on the person, was per se un-
protected activity . The reason , given for posting of the signs (aside from Blumke's
statement that he did not need but wanted a reminder ), to give notice to those
members who were not at the November 7 noon gathering , is transparent and
hardly to be accepted. Only men who came into the plant would see such signs; and
those who were in the plant were effectively notified orally on November 5 to remove
the signs and on November 7 to attend the noon meeting , word of the latter being
spread in some 15 minutes. Further , previous strike votes had been publicized
orally and on the bulletin boards. I cannot regard the signs as anything but an
attempt to taunt the Company; certainly they went beyond any mere notice of the
strike call , and flaunted the warning or threat of strike . Nor did the need to
publicize the deadline increase because of Blumke 's layoff . In personal relations,
such acts would reflect questionable manners; in labor relations , they might be
deemed questionable tactics. But the issue before us is whether they were unlawfully
provocative and unprotected . Aside from any question of manners or tactics, if
Blumke had a right to post the sign which he refused to remove and was unlawfully
laid off for doing that, the other men had similar rights and further could lawfully
post signs in protest of Blumke 's layoff . Their compliance with the earlier requests
that the signs be removed, and the Union 's interim acceptance of such requests,
did not limit their right later to refuse or Blumke's any more than , as we have seen,
Banse 's assent to Blumke 's sign affected the Company's right to insist later that
the sign be removed . As Bradee testified, the signs caused neither disorder nor
interference with production on November 7. Lewis testified that plant discipline
had gotten out of hand , the men being insubordinate in their refusals to take the
signs down (this brings us back to the question of authority which depends on
the issue of law); the signs made a big "display" so that customers wondered what
what was going on (this would not affect the rights of employees); and men were
not working . The latter statement directly contradicts Bradee's testimony that
there was no interference with production . Understandably the picture was different
-after 12 : 30 on November 7 when, as Lewis testified, there was a great deal of con-
fusion and very little or no attempt to go to work as the men displayed signs
and the foreman laid them off after giving them the alternative to remove the signs.
But in no case was failure to work or interference with production cited as the
reason , or even a reason for the layoff. The record does not disclose that failure to
work or interference with production resulted from the posting of the signs 6 except as
they were brought about by the layoffs or the Company 's warnings of discharge or
layoff.
The Caterpillar Tractor decision does not quite answer the question here. While
the Board in that case found that the wearing of "scab" buttons was protected,
the court held contrariwise that such buttons were offensive to other employees.
In the instant case, the signs were at most offensive to the employer ; but many
activities by employees, including strikes, are recognized as protected however of-
fensive they may appear to be to employers . If, following the court in Caterpillar
Tractor, we reflect on offense to employees, there is no evidence in this case that
those who did not post signs were offended . Nor were the signs here of a type similar
to those in the cited case ; there is no reasonable basis for "anticipation that . .
(they ) would prove disruptive of employee harmony . . and destructive of dis-
cipline in production . . That the reaction of the employer was not there cited
as determinative suggests that it is no more so here.
Although the court in Caterpillar Tractor found the "scab" buttons offensive to
employees , neither the court nor the Board held that the wearing of buttons - did
not constitute an activity engaged in for the employees ' mutual aid or protection;
the issue there was over the alleged offensiveness of some of - the buttons wom.
If the wearing of buttons is protected activity when they are not offensive, then
the posting of signs, as here, is likewise protected activity . Buttons may be con-
sidered a means of obtaining support from other employees in the event of a strike;
signs may be considered to serve a similar 4 function , whatever reason the employees
might give or fail to give. The protected status of an activity does not depend on
0 Caterpillar Tractor Company, a Corporation v. N. L. R. B., 230 F. 2d 357, 359
( C. A 7), setting aside 113 NLRB 553.
? This is not intended to limit the purpose of signs or buttons.
MURPHY DIESEL COMPANY 927
their acumen or legal ability. Nor is it for an employer to determine the nature
of a concerted activity: the question is whether the activity is otherwise unprotected,
as when it is offensive to other employees.
Even further removed from the instant situation is the Personal Products case,8
where the issue was whether harassing tactics, themselves apparently protected
activities, reflected bad faith. In the instant case there is no issue or claim of bad
faith; and the tactics employed have not been alleged to be harassing; much less
are they unprotected.
B. The location of the signs
Lewis testified that on November 7 many signs remained on castings and skids,
and he did not know who had written those. While he issued the orders for removal
of the various signs and layoff of those men who refused to comply, he did not
think that anyone other than Bradee was requested to remove the signs from com-
pany property. It follows, then, that the requests to remove signs on November 7
referred to the signs on the person or the men's personal property. This testimony
by Lewis covers Blumke, who he further testified was the only one who refused
to remove his sign on the morning of November 7, and who was refused for that
alleged insubordination.
Thus even if the signs on company property on November 5 and 6 were not
protected and were considered by the Company on November 7 in connection with
the layoff, of Blumke and the other employees, it is now clear from Lewis' testimony
that there would have been no layoffs but for the November 7 postings on the
person or personal property, and the refusals. (This met the problem of proof
previously noted when it appeared or was claimed that some of the employees may
have posted signs on company property only.) Aside from the fact that Lewis did
not know who had posted the signs on company property, such posting, even if
unlawful, did not itself lead to the layoffs. "In order to supply a basis for inferring
discrimination, it is necessary to show that one reason for the discharge is that the
employee was engaging in protected activity. It need not be the only reason but
it is sufficient if it is a substantial or motivating reason, despite the fact that other
reasons may exist." 9 Here other reasons have hardly been suggested . The postings
on November 7 were lawful, and the layoffs based thereon were not.
It may be mentioned parenthetically that there is evidence of previous posting,
although not in such profusion, of signs of different kinds on company property
without protest by the Company. There is no evidence of a preexisting company
rule against such posting. Under such circumstances , to forbid posting of, the signs
which indicated the strike deadline was discriminatory, and the layoffs which flowed
therefrom was violative. In short, unless the signs were themselves offensive within
the meaning of the Caterpillar Tractor case (and we have seen that they were not),
they could not justify the layoffs; and it is clear that Lewis acted on the refusal to
remove the signs from the person or personal property.
C. The grievance procedure followed
Counsel for the Company has argued that the Union first undertook to arbitrate
the issue, but then went to the Board, the filing of the charge being only an after-
thought. On November 6 the Union filed a grievance with the Company, protesting
the earlier requests to take the signs down. After the men were laid off on November
7, the Union filed grievances on -the various layoffs; these were first submitted to
the Company on January 24. They were discussed at the meeting on the morning
of November 8, and Houston, the Company's president, suggested that it would be
unnecessary to press these latter grievances and that only the first needed to be
processed. The Company and the Union later agreed on an arbitrator in connection
with the first grievance , but the Union then charged the Company with changing
its position (as it affected the other grievances) in the arbitration proceeding, and
on February 11, -1957, withdrew that grievance without prejudice. There followed
correspondence concerning proposed arbitration of the other grievances , but dis-
agreement developed concerning the submission or the terms of the arbitration,
and the Union thereupon filed the charge herein. Grunke testified that the group
of grievances after the layoffs were processed through the third step of the griev-
ance procedure to the point of selecting an arbitrator. The layoffs were not in fact
arbitrated; the related grievances have not been' withdrawn.
8Testile Workers Union of America, CIU (Personal Products Corp .) v. N. L. R. B.,
227 F. 2d 409 (C. A., D. C.).
9 N. L. R. B. v. Whitin Machine Works, 204 F. 2d 883 , 885 (C. A. 1).
'928 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Had the grievance procedure been followed through arbitration with respect to
the layoffs, the Board would not thereby be estopped from considering the allegation
here.10 A fortiori an aggrieved person, having taken steps toward settlement via a
grievance claim, 'is not to be deprived of the benefit of Board processes provided
by the Act.
D. 'Other questions raised
As indicated supra, counsel for the Company adduced testimony of hariilonious
relations between the Company and the Union for many years, as well as Lewis'
conclusion that he considers the relationship with the 'Union to have been good.
The General Counsel, on the other hand, pointed 'to distribution by the Company
of leaflets which, without mentioning this union, are generally antiunion or, as
company counsel declared, are anticompulsory unionization. The evidence which
bears directly on the limited issues before us is quite `sufficient for decision; we
need not rely on generalizations or matter which is itself outside the statutory period
for any reflection on the evidence received concerning the acts alleged and their
legality.
We need not consider whether the Company might lawfully have laid off em-
ployees for reasons other than those which it cited at the time,ii as for example,
'the committeemen's absence from their jobs between 11:45 and noon on Novem-
ber 7 while they notified other employees of the noon meeting; or, adopting the
argument of counsel for the Company, for use of working time and company
property in the preparation of the signs; or for posting signs on bulletin boards.
The layoffs were not attributed to such possible reasons.
Counsel for the Company has cited the Republic Aviation case 12 as covering
the case of employees distributing leaflets on company parking lots. Those were
the facts in the companion LeTourneau case. But those cases are inapposite. The
issue before us does not involve any longstanding rule against distribution of
literature, nor does it even involve distribution of literature. As for solicitation,
those cases are concerned with active solicitation, not with the soliciting effect' of
signs already posted. This is borne out in the maxim that working time is for
work, cited by counsel for the Company. All of the 155 employees here were in the
plant; they were not distributing literature; they were not charged with distribu-
tion; they were not soliciting; and we have already noted that they were not charged
with failure to work. The Company .charged them with refusing to take down
signs which each maintained on his person or personal property. Neither, unlike
the Republic Aviation and similar cases, does the General Counsel allege any
inaccessibility here. In citing those cases, counsel for the Company has done no
more than cite the inapposite and then argue that it does not support the General
Counsel's position. (As for distribution of literature, we have seen that this was
done by the Company. Any antilittering objection,13 if made, would be met by the
uncontradicted testimony that the Company distributed leaflets, many of which
were dropped on the floor, and that the Union had at various times brought litera-
ture into the plant and distributed it without objection. There is no evidence here
that the signs littered the floor except when Lewis himself took one down the first
time on November 7 and dropped it on the floor.)
No more need we reflect on Blumke's testimony that, when he left on November 7,
he saw two other signs in the shop, one on a post, the other on the toolbox of
another employee, Spreen. It has not been alleged that Blumke was singled out
for special discrimination or interference; the issue, as always here, has revolved
around the general order to all employees. In this connection also, Lewis testified
that, when Spreen's sign was mentioned to him, he directed its removal. (Spreen
was among those laid off.)
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Company set forth in section II, above, occurring in con-
nection with the operation`s described in section I, above, have a close, intimate,
io Cf. Mo'ns'anto Chemical Company, 97 NLRB 517, 520.
ii Even if nondiscriminatory reasons exist and are sufficient to warrant layoffs, such
layoffs are violative if they are based on discriminatory reasons. Clearly, the refusals to
remove the signs "weighed more heavily" in the decision to, lay the men off thin did
possible reasons which were not even declared Cf N. L. R. B. v. Whitin Machine Works,
supra
12 Republic Aviation Corporation v. N. L. R. B., 324 U. S 793; N. L. R. B v. LeToiirneau
Company of Georgia, ibid.
>s Monolith Portland Cement Company, 94 NLRB 1358, 1366.
MURPHY DIESEL COMPANY 929
and substantial relation to trade , traffic , and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
IV. THE REMEDY
Having found that the Company engaged in and is engaging in certain unfair
labor practices affecting commerce, I shall recommend that it cease and desist
therefrom and take certain affirmative action in order to effectuate the purposes
of the Act.
It has been found that the Company, by laying off the 155 employees named in
Appendix B attached hereto, interfered with, restrained, and coerced its employees
in violation of Section 8 (a) (1) of the Act. I shall therefore recommend that it
cease and desist from infringing in any manner upon the rights guaranteed in
Section 7 of the Act. I shall further recommend that the Company make said
employees whole for loss of pay sustained by each of them, computation to be
made in the customary manner.14
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. District No. 10, International Association of Machinists, AFL-CIO, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By laying off employees because of their protected concerted activities, thereby
interfering with, restraining , and coercing its employees in the exercise of the rights
guaranteed in Section 7 of the Act, the Company 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 com-
merce, within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
14 The Chase National Bank of the City of New York , San Juan, Puerto Rico, Branch,
65 NLRB 827; Crossett Lumber Company, 8 NLRB 440; Republic Steel Corporation v.
N. L. R. B., 311 U. S. 7; F. W. Woolworth Company, 90 NLRB 289.
APPENDIX B
Ackermann , Reginald Demski, John Lipowski, Aloysius
Anderson, Earl A. Dieball, Arnold Lisiecki, Henry
Anderson, Frank Duszynski, Louis Martins, Timothy
Ayotte, Edward Eggers, Laverne J. Mahoney, Patrick
Azzolina, Salvatore Fischer, Frank Mertl, Karl
Balzer, Frank Fischer, Joseph Millious, Ronald
Beattie, Jack Fuchs, John Miller, Chester
Becker, Melvin A. Giordano, Charles Morin, Eldren B.
Becker, Norman Giordano, James Morin, Francis
Behringer, Frank Greenwald, Alphonse Monday, Clarence
Bergmann , Kenneth Guszynski, 'Chester Navin, William
Bialozynski, Frank Haig, Clarence Nasiatka, Francis
Billman , Donald Haydin, Eugene Nedved, Edward
Blumke, Harold O. •Hermening, Fred Nickel, Eugene
Boccaccio, Joseph Hirsch, Walter Nikolaus, John
Boccaccio, Nicholas Janichek, Rudolph Olszewski, Clarence
Bolf, Tony. Johnson, Earl Osowicz, George
Boutin, John Johnson, LaVerne Paradowski, Robert
Bradee, William Kachelmeyer,, Daniel Peterson, Walter
Buchholz, Kenneth Kasten, Henry Perkovich, Thomas
Burdick, Wayne Kasten, Edwin Pozorski, Anton
Burg, Francis Kaminski, John Podobnik, Emil
Cantrell, Billy Kiss, Louis Ponton, Erwin
Cerniglia,. Anthony Krivitz, Ferdinand Ponton, Erwin, Jr.
Chaput, Francis Krempel, Henry Poplawski, Stanley
Chouinard, Richard Krug, Andrew Pross, Charles
Coffey, Frank M. Kiisnier, -John Reineking, 'John
Czarnecki, Kenneth Kirchner, 'Ch'arles Reinholz, Melvin
Dewitt, Lawrence 'J. Kulaszewicz, Anton Rinzel , Arthur
Devine, Mike L'eggate, William Robakowski , Raymond
483142-59-vol . 120-60
930 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robinson, John Weber, Andrew High , Leighton
Roddy, Ray Wegener, Ernst Kaja, Joseph
Romanowicz , Thomas West, Edward Ruechler, Ralph
Sauve, Raymond Whelan , Francis LaVine, Raymond
Schumacher, Forrest Wiener, John Ligman, Michael
Shade, Harold Williams, Elmer Matsdorf, Clarence
Schmidt, Daniel Wiltzins, Henry Misch, Herman
Schwabe, Raymond Wolff, Henry Narewski, Boleslaus
Semashcko , Michael Lessener, Frank Nowak, Michael
Sonnenburg , Arnold Babisch , Rudolph Patkos, John
Spreen , Charles Baumel , Victor Schaefer, Fred
Stolarczyk , Stanley Beffa , Gerald Schaefer , William
Stelmaszewski , Anthony Beffa, Wayne Shively, Cletus
Syme, Elmer Brunslik, Edward Shively, Marvin
Theisen, Frank Bue, Virgil Schrinner , George
Thompson, Carl Burgoon , Robert Sell, Byron
Torcivia, Anthony Ellwitz, Herbert Schneider, Emil
Versailles, Raymond Erickson, Duane Stanek, Horst
Volkmann, Le Roy Frost, Anthony Steeves, Ralph, Jr.
Wagner , Emmett Fry, Lane Szczepanski, Stanley
Walwick, Thomas Guse, Erwin Wilbur, Paul
Weber, Andrew Herrell, Ryland
Local 250, United Association of Journeymen and Apprentices of
the Plumbing and Pipe Fitting Industry of the U. S. and
Canada, AFL-CIO [Bechtel Corporation and Southern Cali-
fornia Chapter, Associated General Contractors ] and Pat-
rick J. Meehan . Case No. 21-CB-831. May 14, 1958
DECISION AND ORDER
On April 30, 1957, Trial Examiner Howard Myers issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the copy of the Inter-
mediate 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 National Labor
Relations Act, the Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Leedom and
Members Bean and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire `record in
this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, as modified hereinafter: i
1 We have adopted the Trial Examiner 's finding that the Respondent, which operated an
exclusive contractual hiring hall for members of Southern California Chapter, Associated
General Contractors , violated Section 8 (b) (2) and (1) (A) of the Act by refusing to
refer Meehan to any job from August 4 through September 7, 1956, because he had
120 NLRB No. 131.