Rockwell Manufacturing Co.

National Labor Relations Board - Board Decisions

Aug 6, 1958

121 N.L.R.B. 288 (N.L.R.B. 1958)

288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
including both proprietors and employees . The witnesses who made the deliveries
described the personnel in the retail outlets and what they were doing at the time
of the delivery From that testimony, I deem it a fair inference , and I find, that
they were what they appeared to be-bartenders , cooks, waiters , and that they were
employees of the retail establishments To require more exact proof as to the
status of each person in the establishment as either owner or employee would be
to carry the technical requirement of proof to unrealistic lengths.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Union set forth in section III, above , occurring in connection
with the operations of the Company described in section I, above, have a close, inti-
mate, 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.
V. THE REMEDY
Having found that the Union has engaged in unfair labor practices, it will be
recommended that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act
Upon the basis of the foregoing findings and conclusions , and upon the entire
record in the case, I make the following
CONCLUSIONS OF LAW
1. International Union of United Brewery, Flour, Cereal, Soft Drink and Distillery
Workers of America, AFL-CIO, and Local No 366, of the aforesaid International,
herein referred to collectively as the Union, are labor organizations within the mean-
ing of Section 2 (5) of the Act
2. By inducing and encouraging employees of retail outlets of Adolph Coors Com-
pany to engage in a concerted refusal to perform services for their employers, with
an object of requiring the retail outlets to cease doing business with Coors, the Union
has engaged in unfair labor practices within the meaning of Section 8 (b) (4) (A)
of the Act
3. By inducing and encouraging employees of Otterstein and Company to engage
in a concerted refusal to perform services for their employer, with an object of
requiring the employer to cease doing business with Adolph Coors Company, the
Union has engaged in unfair labor practices within the meaning of Section
8 (b) (4) (A) of the Act
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Rockwell Manufacturing Company (Du Bois Division) and
International Union of Electrical, Radio and Machine Workers,
AFL-CIO. Case No. 6-CA-1118. AugU8t 6, 19558
DECISION AND ORDER
On November 22, 1957 , Trial Examiner Louis Plost issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. The Trial Examiner further
found that the Respondent had not engaged in certain other unfair
labor practices alleged in the complaint and recommended dismissal
121 NLRB No. 47.
ROCKWELL MANUFACTURING COMPANY 289
of those allegations. Thereafter, the General Counsel and the Re-
spondent filed exceptions to the Intermediate Report and support-
ing briefs.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection
with this case to a three-member panel [Chairman Leedom and
Members Bean and Fanning].
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 exceptions and briefs, and the entire record
in the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner with the exceptions, additions,
and modifications noted below.
The Trial Examiner found that, since the Respondent had a valid
rule prohibiting unauthorized distribution of literature, it did not
engage in an unfair labor practice'by denying an employee request
to distribute union literature on the company parking lot and that
the general manager had the right to order employees to distribute
such literature outside of Respondent's parking lot. We do not
agree.
The record indicates that on the day the Charging Union first
distributed literature at Respondent's plant the Respondent posted
a notice which prohibited the distribution of literature of any kind
on company property without the approval of the personnel depart-
ment. It further indicates 4 employees thereafter requested permis-
sion of Respondent's personnel manager to distribute union litera-
ture on company property outside the doors of the' plant which led
to the time clocks, that the Respondent took no action on the em-
ployees' request, and that 1 employee was ordered to leave company
property by the Respondent's general manager when he attempted
to distribute union literature on a company-owned parking lot ad-
jacent to the plant. Having found that the rule against distribu-
tion of literature was valid, the Trial Examiner was constrained to
find that this conduct of the Respondent was not violative of the Act.
The Board has long recognized that an employer may promulgate
and enforce a nondiscriminatory rule prohibiting employees from
distributing union literature in the plant proper during nonworking
hours in the interest of keeping the plant clean and orderly.' The
Board has not, however, applied the same rule to company-owned
parking lots or to other areas without the plant proper' As the
1 Tabin-Picker cE Co., 50 NLRB 928; Monolith Portland Cement Company, 94 NLRB
1358, 1366.
2 LeTourneau Company of Georgia, infra.
487926-59-vol. 121-20
290 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board stated in LeTourneau Company of Georgia,3 "considerations
of efficiency and order which may be deemed of first importance
within buildings where production is being carried on, do not have
the same force in the case of parking lots."
We do not imply that an employer may not, under any circum-
stances, promulgate a rule against distribution of literature on park-
ing lots. The Respondent, however, has asserted no reason for its
rule in this case. Indeed, the Respondent appears to have relied ex-
clusively upon its position that it had the absolute right, regardless of
the reason, to prohibit distribution of union literature on its parking
lot. The leading case on this matter is N. L. R. B. v. The Babcock &
Wilcox -Co., 351 U. S. 105, wherein the Court distinguished between
the rights of employees and nonemployees to distribute union litera-
ture on company parking lots and with respect to the former said :
The distinction is one of substance. No restriction may be placed
on the employees' right to discuss self-organization among em-
ployees themselves, unless the employer can demonstrate that a
restriction is necessary to maintain production or discipline.
Republic Aviation Corp. v. N. L. R. B., 324 U. S. 793, 803... .
We find that since the Respondent did not have an unqualified right
to prohibit employees from distributing union literature on its park-
ing lots and, since it' failed to offer any valid reason for the applica-
tion of its no-distribution rule, it unreasonably impeded and inter-
fered with the right of self-organization guaranteed its employees
by Section 8 (a) (1) of the Act.
The Trial Examiner found that the Respondent did not violate
Section 8 ' (a) (1) of the Act by reason of its supervisors' interroga-
tion of, or threats to, employees Youngren, Case, and Lenkerd. The
record indicates that in the early part of February 1957, Foreman
Hoskavich admonished Youngren to be careful and said he had heard
that Youngren was one of the instigators of the union activity in the
plant and that at about the same time Hoskavich asked a group of
employees which included Case what they thought of the Union. It
further appears that sometime in May or June 1957, Foreman Domi-
trovich told employee Frank Lenkerd that if the Union were in he,
Lenkerd, would not be working. The Trial Examiner regarded
Hoskavich's statements as isolated chance inquiries and recommended
dismissal of the complaint insofar as its allegations related to the
remark of Domitrovich to Lenkerd. We do not agree with the Trial
Examiner's appraisal of the foremen's remarks. We find that, in the
context of the Respondent's admitted hostility to the Union, as mani-
a LeTourneau Company of Georgia, 54 NLRB 1253, 1255 ; N. L. R. B. v. LeTourneau
Company of Georgia, 324 U. S. 793 ; Cranston Print Works Company, 117 NLRB 1834,
1842.
ROCKWELL MANUFACTURING COMPANY 291
fested in the general manager's speech of February 5, 1957, and its
unlawful prohibition of the distribution of union literature on the
company parking lot by employees, at the inception of the Union's
organizing campaign, the remarks of the foremen to Youngren, Case,
and Lenkerd were coercive and violative of Section 8 (a) (1) of
the Act.
We find, contrary to the Trial Examiner, that the general manager's
speech on February 5, 1957, did not violate Section 8 (a) (1) of the
Act. The Trial Examiner found such a violation in (1) the intimation
that another plant of the Respondent had sharply diminished its
labor force because of the presence of a union and (2) in the sugges-
tion that employees who thought a union was the answer to their
problems go to work somewhere where there was a union. We deem
the remarks contained in the speech of February 5, 1957, to be the
expression of views, argument, and opinion which is innocent of
any threat of reprisal or force or promise of benefit and that they
are, therefore, privileged under Section 8 (c) of the Act. We also
reject the Trial Examiner's finding that the reading of a verbatim
copy of the general manager's speech to the employees of the Respond-
ent's Sykesville plant constituted an unfair labor practice.
ORDER
Upon the entire record in this case, and pursuant to Section 10
(c) of the National Labor Relations Act, as amended, the National
Labor Relations Board hereby orders that the Respondent, Rockwell
Manufacturing Company ,(Du Bois Division), Du Bois, Pennsylvania,
its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Preventing its employees from distributing union literature
in the Respondent's parking lot. The Respondent may, however, if
necessary, establish reasonable, nondiscriminatory regulations govern-
ing such distribution.
(b) Interrogating its employees concerning their membership in,
or activities on behalf of, International Union of Electrical, Radio
and Machine Workers, AFL-CIO, and threatening employees with
job loss and loss of work assignments because of membership in, and
activities on behalf of, the above-named labor organization, or any
other labor organization in a manner constituting interference, re-
straint, and coercion in violation of Section 8 (a) (1).
(c) In any like or related manner interfering with, restraining,
,or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act, except to the extent that such rights may be
affected by an agreement requiring membership in a labor organ-
ization as a condition of employment as authorized in Section 8 (a)
(3) of the Act.
292 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which the Board finds
will effectuate the policies of the Act :
(a) Post at its office and places of business at Du Bois, Pennsyl-
vania, copies of the notice attached hereto marked "Appendix." 4
Copies of said notice, to be furnished by the Regional Director for
the Sixth Region, shall, after being duly signed by a representative
of the Respondent, be posted by it 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 Respondent to insure that these notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director for the Sixth Region, in writing,
within ten (10) days from the date of this Order, what steps it has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges other
violations of Section 8 (a) (1) of the Act not specifically found herein
be, and it hereby is, dismissed.
• In the event that this Order is enforced by a decree of a United States Court of Ap-
peals, the notice shall be amended by substituting 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
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 you that :
WE WILL NOT threaten our employees with reprisals because of
their membership in any labor organization or activities in behalf
of any labor organization.
WE WILL NOT interrogate our employees concerning their mem-
bership in, or activity on behalf of, any labor organization.
WE, WILL NOT prevent employees from distributing union litera-
ture on our parking lot.
WE WILL NOT, in any like or related manner, interfere with,
restrain, or coerce our employees in the exercise of the rights to
self-organization, to form labor organizations, to join or assist
International Union of Electrical, Radio and Machine Workers,
AFL-CIO, • or any other labor organization, to bargain collec-
tively through representatives of their own choosing, and to en-
gage in other concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from
any or all such activities except to the extent that such rights may
be affected by an agreement requiring membership in a labor
ROCKWELL MANUFACTURING COMPANY 293
organization as a. condition of employment, as authorized in
Section 8 (a) (3) of the Act.
All our employees are free to join or assist any labor organization,
and to engage in any self-organization or other concerted activities
for the purpose of collective bargaining or other mutual aid or protec-
tion or to refrain from such activities except to the extent that such
right is affected by an agreement made in conformity with Section
8 (a) (3) of the Act.
ROCKWELL MANUFACTURING COMPANY
(Du Bois DIvISION),
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
STATEMENT OF THE CASE
Upon a First Amended Charge filed August 10, 1957, by International Union
of Electrical, Radio and Machine Workers, AFL-CIO (Union) the General Counsel
of the National Labor Relations Board, herein called respectively General Counsel
and Board, by the Regional Director for the Sixth Region, Pittsburgh, Pennsylvania,
issued an amended complaint' dated October 7, 1957, against Rockwell Manu-
facturing Company (Du Bois Division ), Du Bois , Pennsylvania (Respondent) al-
leging that the Respondent had engaged in and was engaging in unfair labor
practices affecting commerce within the meaning of Section 8 (a) (1) and Section
2 (6) and (7) of the National Labor Relations Act, as amended, 61 Stat. 136
(Act). Due notice was given the parties involved, and a date set for hearing.
The amended complaint alleged that the Respondent by certain specified con-
duct had engaged in conduct violative of Section 8 (a) (1) and Section 2 (6) and
(7) of the Act. The Respondent duly filed an answer denying the allegations.
Pursuant to notice a hearing was held at Du Bois, Pennsylvania, before Louis
Plost, the duly designated Trial Examiner. The General Counsel and the Re-
spondent were represented by counsel and the Charging Union by an international
representative, all referred to herein in the names of their principals.
The Trial Examiner denied a motion by the General Counsel to strike certain
matter from the answer. The parties were afforded full opportunity to be heard,
to examine and cross-examine witnesses, to introduce evidence bearing on the
issues, to argue orally on the record and to file briefs, findings and/or conclusions
with the Trial Examiner. The parties waived oral argument. The Trial Examiner
denied motions by the Respondent (at the close of the General Counsel's case-in-
chief and again at the close of the hearing), to dismiss the complaint. The Trial
Examiner granted an unopposed motion by the General Counsel to conform the
pleadings to the proof with respect to dates, spellings, and like minor variances.
A brief has been received from the Respondent.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
N
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation , having its principal office at Pittsburgh, Penn-
sylvania, and is engaged in the business of manufacturing valves, meters, power
1 The original charge was filed February 18, 1957; due notice was given. The original
complaint was dated September 13, 1957.
294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tools, and other items of industrial equipment. Only Respondent's operations at
its Du Bois Division, including its plants at Du Bois, Pennsylvania, and Sykesville,
Pennsylvania, are involved in this proceeding.'
During the year ending August 31, 1957, the Respondent, in the course and
conduct of its business operations at the plants of its Du Bois Division, purchased
materials, supplies, and equipment valued in excess of $1,000,000, which were
transported and shipped in interstate commerce to the said plants of the said Du
Bois Division from and through States of the United States other than the Com-
monwealth of Pennsylvania.
During the year ending August 31, 1957, the Respondent, in the course and
conduct of its business operations at the plants of its Du Bois Division, manu-
factured products valued in excess of $100,000, which were sold, shipped, and
transported from the said plants of the said Du Bois Division in interstate com-
merce to States of the United States other than the Commonwealth of Pennsylvania.
It. THE ORGANIZATION INVOLVED
International Union of Electrical, Radio and Machine Workers, AFL-CIO, is
a labor organization within the meaning of Section 2 (5) of the Act, and admits
employees of the Respondent to membership.
III. THE UNFAIR LABOR PRACTICES ALLEGED IN THE AMENDED COMPLAINT
Distribution of Literature
Fred H. Mensch, international representative of the Union, testified without
contradiction, that he first met with a group of the Respondent's employees from
the plants involved herein, on January 19, 1957, the meeting taking place in
Punxsutawney, Pennsylvania; that he first came to Du Bois on February 3; that
on February 8 he made the first general distribution of union literature to the
Respondent 's employees in Du Bois , the distribution being made in front of "Plant
Number 2" between 6:30 a. m. and 7 a. in.
Employee Vernon C. Shaffer testified that on February 8, 1957, between 6:30
a. in. and 7 a. m. he distributed union literature in front of the Respondent's NYA
building in Du Bois.
Employee Harold Brubaker testified that he also distributed union leaflets on
February 8.
Earl Hudson, the Respondent's general manager at Du Bois, testified that on
February 8, 1957, he had the following notice posted in the Du Bois plant:
NOTICE
FEBRUARY 8, 1957.
To All Employees:
A regulation of long standing provides that the Personnel Department shall
be responsible for the posting and approval of all 'employee communica-
tions.
It has been reported that literature has been distributed to the employees
on Company premises without Company approval. Such practices are pro-
hibited by established Company rules. Persons who post notices, and dis-
tribute literature of any kind, on Company property will be subject to dis-
ciplinary action which may result in discharge.
Your cooperation in helping your Company operate an orderly and efficient
plant will be appreciated.
(Signed ) W. L. Cunningham,
W. L. CUNNINGHAM,
Factory Manager.
As to the notice being "a regulation of long standing," General Manager Hudson
testified the rule prohibiting distribution of literature in the plant without official
permission was first promulgated in 1951. He admitted that it was never posted,
being told to employees by their foremen and the personnel managers. The rule
does not appear in the Respondent's "Information Booklet on Shop Policy" fur-
nished to all employees. However, the testimony adduced by the General Counsel
that newspapers, welfare, and health material were distributed in the plant and
advertising material and political cards were placed in cars on the Respondent's
parking lot and that merchandise is available from vending machines in the
plant all falls short, in the opinion of the Trial Examiner, of proving such open
ROCKWELL MANUFACTURING COMPANY 295
'disregard or nonexistence of the rule as to offset the general manager 's testimony
that any such, distribution was without the knowledge of the Respondent.
On the entire record the Trial Examiner credits Hudson and finds that a rule
intended to prohibit distribution of all literature at the plant unless specifically
authorized existed since 1951.
Two incidents of alleged interference with legitimate distribution of the Union's
literature were brought forward by the General Counsel.
Employee Vernon C. Shaffer testified that he together with three other employees
requested permission of the Respondent to distribute the Union 's literature on the
Respondent's premises outside the doors leading to the time clocks . No reply
was given them which effectively acted as a refusal . Shaffer was corroborated by
employee Harold Brubaker . General Manager Hudson admitted that the request
was made and no reply given.
Employee Jerome ^ Krishart testified that on a day early in March 1957 while
he was handing out the the Union 's literature to cars entering the Respondent 's park-
ing lot a truck stopped in the driveway whereupon he walked around the truck
into the lot and:
I started to proceed passing pamphlets again , and looked up, and it was
Mr. Hudson , and he said-when I looked up he was pointing at me like
that-and he said "You keep off our property", and then he pointed where
I went around the truck, and he said "That 's our property there."
-Krishart was corroborated by employee Harold Brubaker who also testified that
at the time Hudson spoke Krishart was "ten or fifteen feet inside the lot."
General Manager Hudson denied that he ordered Krishart to leave the park-
ing lot ; he testified, "I just pointed and said `That's our property.' "
Having found that the Respondent had a valid rule against unauthorized distribu-
tion of literature , the Trial Examiner must find that the Respondent did not engage
in an unfair labor practice by denying a request to distribute literature on its
property.
Accepting the employee 's version of the parking lot incident , the conclusion must
still be that the general manager had the legal right to order them to make their
distribution of literature out of the parking lot.
Upon the entire record the Trial Examiner is persuaded that the Respondent
did not "on February 8, 1957, and thereafter, discriminatorily promulgate and en-
force a rule denying its employees the right to distribute any literature on its
property, including parking lots and other areas adjacent to the buildings com-
prising the plants of its Du Bois plants." The Trial Examiner will recommend
that the complaint be dismissed insofar as it so alleges.
Speeches to Employees
Employee Lamar Puyda testified that on February 5, 1957, all of the em-
ployees in the Respondent 's plant number 1 in Du Bois were assembled and ad-
dressed by General Manager Earl Hudson who in the course of his talk announced
a general pay increase to take effect March 3, but which in fact was not made
effect until March 15, 1957.
Puyda further testified that after announcing the pay raise Hudson spoke of
"union activity" among the employees. According to Puyda, Hudson stated that
"there was a small minority in the shop that was trying to start a union," and
"those that want a union can seek employment elsewhere," and stated "we do not
want a union." According to Puyda the general manager continued, "one of the
reasons we are working today is because unions made undue demands elsewhere,"
and that he then told his audience the American Meter Company in Erie "was
slowly but surely going out of Erie because of union trouble," that Vulcan Soot
had moved from Du Bois "because of union trouble," that then Hudson spoke of
the Respondent's plant in Pittsburgh:
Q. (By Mr. Weintraub.) What did he say about the Rockwell plant in
Pittsburgh?-A. Well, he said they had a union there, and at one time they
employed twelve hundred people, and now they employ about fifty-four. He
says "This could happen in Du Bois."
Puyda further testified that Hudson spoke of the insurance benefits the employees
received ; the "company was very good to the employees "; "there is hardly a day
a request for a personal loan doesn 't come across my desk ," and asked "can a
union do this for you?"
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Vernon C. Shaffer corroborated Puyda's testimony with respect to
the matters touched upon by Hudson in his remarks regarding unions. Shaffer
testified also that Hudson began his remarks regarding the organizational effort
of the employees as follows:
Q. What did he say about unions?-A. He said he understood there was
a small minority in the plant that wanted a union, that they didn' t want a
union , and he wished those that did want a union would seek employment
elsewhere.
General Manager Hudson testified that he delivered an address to the Respond-
ent's Du Bois employees on February 5, 1957. According to Hudson the talk
had been first reduced to writing and was used by him during the address. He
testified:
Q. Did you dictate this to somebody who reproduced it for you, I pre-
sume?-A. Well, actually I wrote it.
Q. But it is your words that you were reading?-A. Yes, sir.
Without objection a purported copy of Hudson's talk was admitted in evidence.
Hudson testified that only that portion of the speech relating to unionization 2
was read "verbatim" by him.
He admitted that at the time he prepared the talk he knew of union activity
among the Du Bois Division employees "by rumor"; in fact, at the outset of that
portion of the speech dealing with " unions" the text of Respondent's Exhibit
Number 1 reads, "We understand that some of our employees have been engaged
in this kind of talk [forming a union] in recent weeks." However , on examination
after Respondent's Exhibit Number I had been admitted, Hudson admitted that
the original speech had been typed by his office manager but that the document
admitted as Respondent's Exhibit Number I was not the original document so
prepared, was not the document from which he read at the time , was not a carbon
copy or other mechanical reproduction of the original, but was a copy of a copy
(but not of an original mechanically produced copy), the original having been
destroyed. Hudson testified:
TRIAL EXAMINER: Are these documents that have been put in as Respond-
ent's Exhibit Number 1 actual carbon copies of that original? I didn't say
copies. I said carbon copies.
The WITNESS: These?
TRIAL EXAMINER: Yes.
The WITNESS: These are Thermofax copies.
TRIAL EXAMINER: Of the original?
The WITNESS: Not the original of the speech, no.
TRIAL EXAMINER: It is not a copy of the original. Now, how was this
copy made?
The WITNESS: By Thermofax.
TRIAL EXAMINER: You say the original sheet was taken and put into the
machine?
The WITNESS: I believe not. I believe it was a copy.
TRIAL EXAMINER: The original was copied, the original typewritten sheet,
as I get it now, was copied on another sheet, and from that sheet the repro-
duction of this were made?
,The WITNESS: That's right.
TRIAL EXAMINER: Who made the copy?
The WITNESS: My office manager.
TRIAL EXAMINER: And he made the original one, too?
The WITNESS: Yes.
Hudson also testified that he had no knowledge of certain handwritten material
that appears "on the thermofax" copy of Respondent's Exhibit Number 1.
In the opinion of the Trial Examiner the value of Respondent's Exhibit Number
1 as a true copy of Hudson's speech is at least problematical. Hudson, however,
admitted that: He mentioned the fact that American Meter Company was slowly
moving out of Erie because of union troubles; he spoke of the decline of the
Respondent's Pittsburgh plant; his remarks to the effect that employees desiring
to work under a union contract might seek employment elsewhere was prefixed
by the words "I suggest" and denied telling his auditors "we do not want a union."
2 Exhibit A, attached hereto.
ROCKWELL MANUFACTURING COMPANY 297
Respondent's Exhibit Number 1, offered as the verbatim report of Hudson's talk
on February 5, reads, inter alia:
Several times in the past 20 years, a few people, who have not given enough
clear thinking to the matter have expressed the belief that forming a union
would be an advantage to themselves and this Division. We understand that
some of our employees have been engaged in this kind of talk in recent weeks.
If these people really think that a Union is the answer to all of their problems,
then I would suggest they go to work somewhere where there is a union because
we do not have one_ here. I firmly believe that the majority of our employees
realize that they do not have anything to gain by joining a union and don't want
one.
Now I ask you what can a Union or Union organizer do for you that your
Company cannot and has not done better? Can he go out and sell meters so
that your wages can be paid? There is absolutely'no guarantee that he can
ever fulfill any of those promises, because no company is required to give any-
thing to any union or union organizer simply because he asks for it. Time and
again in Rockwell Manufacturing Company, this has been demonstrated to
the Union representatives. Some of the Unions did not believe what the com-
pany said and some of these companies are not working today.
One of the reasons why you people are working here today and have worked
steadily for the past five years is because Unions have made undue demands
in other Rockwell factories which your company could not and would not
accept. When it becomes unsound economically to continue to operate under
these conditions, Rockwell has closed its plants and moved elsewhere. - How
many of you would be working today if only the Tin Meters were being pro-
duced in DuBois? Not very many.
Yet, you will recall our first cast meters came from Pittsburgh in 1947 and
1948 . At that time Pittsburgh had 1200 employees on their hourly payroll,
each one a Union Member. Today there are 52. If a Union was good for
those people and good for the Company too, why doesn't that plant prosper
today and why aren't those people working? [Emphasis supplied.]
Conclusion as to the Speech of General Manager Hudson
Although an employer faced with unwelcome efforts toward unionization by his
employees is free to combat it, under the provisions of the Act he must keep the
expression of his views, argument, and opinion free of threats of reprisal or force
or promise of benefit.
Accepting Respondent's Exhibit Number 1 as the verbatim report of Hudson's
talk one must be naive indeed to believe that Hudson's remarks regarding the
Respondent 's Pittsburgh plant as well as his intimations that its general attitude
toward unions in its plants was such that "some of these companies are not working
today," as well as his statement, "If these people really think that a union is the
answer to all their problems, then I would suggest they go to work somewhere where
there is a union because we do not have one here," was merely a forensic exercise
designed to spread good feeling.
The Trial Examiner feels that it is well worth while at this late date to call atten-
tion to the landmark set up by Judge Learned Hand in the Federbush case .3 Although
written to interpret the Wagner Act, Judge Hand's statement applies with equal force
to the present Act.
The privilege of "free speech," like other privileges, is not absolute; it has
its seasons ; a democratic society had an acute interest in its protection and can-
not indeed live without it; but it is an interest measured by its purpose. That
purpose is to enable others to make an informed judgment as to what concerns
them , and ends so far as the utterances do not contribute to the result. Lan-
guage may serve to enlighten a hearer, though it also betrays the speaker's
feelings and desires; but the light it sheds will be in some degree clouded, if the
hearer is in his power.
Arguments by an employer directed to his employees have such an ambivalent
character; they are legitimate enough as such, and pro tanto the privilege of
"free speech" protects them; but, so far as they also disclose his wishes, as
they generally do, they have a force independent of persuasion. The Board
is vested with power to measure these two factors against each other, a power
whose exercise does not trench upon the First Amendment.
N. L. R . B. v. The Federbueh Company, Inc., 121 F. 2d 954 (C. A. 2) (1941).
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Words are not pebbles in alien juxtaposition; they have only a communal
existence ; and not only does the meaning of each interpenetrate the other, but
all in their aggregate take their purport from the setting in which they are used,
of which the relation between the speaker and the hearer is perhaps the most
important part. What to an outsider will be no more than the vigorous
presentation of a conviction , to an employee may be the manifestation of a
determination which it is not safe to thwart... .
On the entire record considered as a whole it is the opinion of the Trial Examiner
that General Manager Earl Hudson sought to create the impression with his February
5 audience that if they brought the Union into the plant there would result a loss
of benefit including discharge of participants and the closing of the Du Bois Division
plants.
The Trial Examiner finds that by this conduct on the part of General Manager
Hudson the Respondent violated the provisions of the Act.
General Manager Hudson testified he gave a copy of his February 5 talk to
Joseph Colley, the assistant factory manager of the Respondent's Du Bois Division
plant at Sykesville, Pennsylvania, with instructions to read it to the Respondent's
employees at Sykesville .4
Employee Joseph Krenciglova testified that he was in the audience assembled in
the Sykesville plant for the purpose of hearing Colley on "the first or second week
of February"; that Colley stated "we don't want a union," spoke of the situation
in the Respondent's plant at Pittsburgh and
He said "If you want to work for a union go where there is a union to work,"
or something to that effect.
Regardless of any conflict, assuming that Colley read the verbatim copy of Re-
spondent's Exhibit Number I to the Sykesville employees, it is clear that his decla-
mation to the Sykesville employees constituted an unfair labor practice by the
Respondent, and for the same reasons as did the speech he read. The Trial Examiner
so finds.
Other Alleged Unfair Labor Practices
Employee -Vernon C. Shaffer testified that sometime in early February 1957
Foreman Joseph Hoskavich called together a group of "proving room" employees
and spoke to them. According to Shaffer:
This was just before lunch one night, and he said to the group that he had
called together from the proving room, he said, "I am to tell you fellows you
are not allowed to congregate or bunch up." Someone said "Why? Are they
watching us?" and he said "You think that is something? I am not even
supposed to eat with you."
TRIAL EXAMINER: He said that?
The WITNESS: Yes. And then the question again was "Why?", and he said
"You fellows know darn well why."
Shaffer was corroborated by employee Frank Lenkerd.
Employee John Case testified that "some time in January" 1957 Foreman
Hoskavich asked a group of employees "what our opinion was of the union."
George Vasilauskas and Louis Notto corroborated Case but Case placed the incident
as occurring "after Hudson made that speech."
Employee Verner Youngren testified to a conversation with Foreman Hoskavich
"the first part of February" as follows:
Q. Now, what did Mr. Hoskavich say to you?-A. He said "Verne, be
careful. I heard that you are one of the instigators of this union trying to get
in here."
Q. What did you say to him?-A. I thanked him.
Q. That was all?-A. That was all.
With respect to Shaffer's testimony Foreman Hoskavich testified:
On several occasions I went around, not only in his department, but every
department I was in charge of, and told all of the people to stay in their
department. We had a new building over there being under construction, and
we had very poor lighting in it at the time, and the material was all over the
floor, so for safety first I told all of them to stay in their own department,
4 At a later point the Respondent offered a stipulation that Hudson's talk was read to
all employees in the various Du Bois Division plants.
ROCKWELL MANUFACTURING COMPANY 299
and that way just a group at a time would leave instead of the whole bunch
at one time.
Hoskavich further testified that he never ate with the proving room employees
but "ate with the shipping men every night."
The General Counsel 's witnesses to the incident admitted that Hoskavich never
mentioned "union" to them and had never eaten with them at any time.
With respect to Case's account Hoskavich testified:
Q. Now, in the case of a Mr. John Case, I believe he said-strike that, will
you, please? Do you recall when that incident took place?-A. I don't recall
exactly what month , but I know it was near quitting time . I would say about
ten minutes to twelve, and I was making my-rounds , picking up time cards,
and there were these - five men right there , and I asked them as a group what
they thought of the union , and that was it. That was the question I asked,
one question.
The Trial Examiner is persuaded on the entire record that the above affairs
represent only isolated chance inquiries by the foreman not chargeable as an unfair
labor practice.
Hoskavich admitted Youngren 's testimony. He testified:
I just heard the rumor that he was one of the leaders. I didn't believe it, so
I went up to him and I said to Mr. Youngren "tI understand you are one of the
leaders", and I said "Be careful", and I walked away from him.
Again it appears to the Trial Examiner that the above represents an isolated
instance , without meaning as the foundation for an allegation of unfair labor
practice on the part of the Respondent.
On the entire record the Trial Examiner accepts Hoskavich's version of the
above-related occurrences and will recommend that the complaint be dismissed
insofar as it is alleged that these incidents constitute unfair labor practices chargeable
to the Respondent.
Employee Frank Lenkerd testified that sometime in May or June while he was
at work a towtruck brushed against his coat hanging on the wall and he reported
the incident of Foreman George Domitrovich. According to Lenkerd:
I stepped across the aisle to him and told him what was coming off, and he
followed me back to the machine, and he was sort of hot under the collar, and
he said "Since this union business got in here", he said, "everybody gets hot
real quick", and I said "Well, as big a company as Rockwell is, they ought
to have a place big enough to hang your coats so the tow motor don't rub
over them and get them all dirty." He said, "Well, you are lucky you are
working. You are lucky you are working." He said "If the union wasn't-"
Q. Take your time.-A. "If the union was in," he said "you wouldn't be
working now. We are making meters for stock." He said, "You don't think
you would be making meters for stock?"
Employee John Nowak was also called to testify with respect to antiunion conduct
of Foreman Domitrovich. Nowak testified to an occurrence in May as follows:
Q. Will you tell the examiner what Mr. Domitrovich said to you about the
union and the events leading up to it, if any?-A. He says "If you had a
union here now you would be sent home."
Q. What were you talking about that made him say that?-A. The line was
slack a little bit, and we were waiting around for meters.
Domitrovich testified that he told Lenkerd:
Ever since this union business came up you guys have been on edge. Every
little thing that comes up you try to make a big thing of it.
He testified as to Nowak:
The meters were coming down slow, and he began to holler about his meters,
is where this all started, and he began to tell me that the meters were this
and that, and I said "You've got lots of time to fix them. If you wasn't doing
that you wouldn't even be here."
As to Lenkerd and Nowak the General Counsel's dredging produced no gold.
The Trial Examiner will recommend that the complaint be dismissed insofar as
any allegations of unfair labor practices therein are founded on the above-related
incidents from the testimony of Frank Lenkerd and John Nowak.
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Employee Anthony Bernardo testified that at a "stag party" given by the Veterans
of Foreign Wars Club in February, while he and one Olin Ackers were seated at
the bar "between two and three o'clock in the morning," Ackers asked if Bernardo
had signed a card for the Union and remarked that the Respondent "would eventu-
ally fire all of us that signed a card."
There is considerable doubt as to Ackers' supervisory status. General Manager
Hudson testified that Ackers was a time-study clerk. The General Counsel though
contending that Ackers was a supervisor produced no witness who worked with or
under Ackers or who described his work.
Ackers was not available as a witness.
On the state of the record the Trial Examiner credits Hudson's testimony to the
effect that Ackers was not a supervisor whose acts bound the Respondent. The
statements attributed to Ackers by Bernardo must therefore remain the passing
palaver of two ex-soldiers here recorded by another as of no consequence in the
scheme of things.
Employee Anthony Weseliski testified that shortly after Hudson's speech of
February 5, Foreman Howard Garvin asked him about the Union. Weseliski
testified:
Q. What did Mr. Garvin say to you?-A. He asked me how the union was
making out, and then he asked me what I thought about the union.
Q. Did you make any reply -to him?-A. I -told him this same thing; that
I didn't know what to think about it. I didn't know whether it would be a
good thing or whether it wouldn't.
Q. Did Mr. Garvin make any reply to this?-A. Yes. He said if the union
come in Rockwell would pull the plant out of DuBois. He did in Pittsburgh
and he would do it here.
Weseliski further testified that on another occasion Garvin asked how many em-
ployees Weseliski had signed into the Union and remarked to Weseliski, "You are
secretary, aren't you?" and that on a third occasion:
He asked me what I was trying to do; sign another member up for the union?
And he kept on going.
Q. He kept on going?-A. Yes.
Foreman Garvin testified:
Well, one day he and another fellow were passing the time of day until the final
buzzer rang, and I just asked him if he was trying to sign up cards, just the
same as I would go down and ask him what the weather was like outside.
Garvin testified he could not recall ever remarking that Weseliski was secretary of
the Union, and further:
Q. Did you ever tell him the Rockwell plant would move?-A. No.
Q. If the union came in there?-A. No, I wouldn't have any authority to
tell anybody such a thing as that.
The Trial Examiner on the entire record, the evidence considered as a whole, and
his observation of the witnesses, is of the opinion that the apparently chance jocu-
larities of Foreman Garvin directed to employee Weseliski can hardly be stretched
over the line dividing ordinary free speech into prohibited unfair labor practices,
and will therefore recommend dismissal of the complaint insofar as it alleges
Foreman Garvin's remarks to employee Anthony Weseliski to be such.
Weseliski further testified that Paul Griffith, assistant factory manager of Plant
.Number 1, stopped at his (Weseliski's) bench to speak to him for "a couple of
minutes," according to Weseliski's testimony:
Q. (By Mr. Weintraub.) Mr. Weseliski, what did Paul Griffith say to you
about the union?-A. Well, he come to me one day and asked me what I
thought about this shit that's going on.
Q. What did you say?-A. I asked him what shit.
Q. What did he say?-A. "This damn union."
Q. Did you reply to him?-A. I told him I didn't know whether it would be
a good thing or whether it wouldn't.
Q. Did he make any comment then?-A. Griffy said "If the union comes in
we will all be looking for work."
Weseliski further testified "he didn't think anything of it" at the time.
ROCKWELL MANUFACTURING COMPANY 301
Griffith testified:
I asked Tony Weseliski what he thought about the union organizing, and he
said that he didn't know, and he says "Do you think they will take this plant
out if they would organize? Do you think they would take this plant out of
here?" I said "I don't know."
On the entire record and from his observation of the witnesses the Trial Examiner
credits Griffith and finds that he did ask about the Union's organizing but did not
state that the plant would close in the event of unionization of the employees. The
Trial Examiner finds that the Respondent did not engage in conduct violative of the
Act by reason of any conversation between Assistant Factory Manager Paul Griffith
and employee Anthony Weseliski.
George Vasilauskas testified that on February 5, 1957, Melvin Wray, superin-
tendent of Plant Number 1, engaged him in conversation "right after the speech"
(Hudson's talk). Vasilauskas testified:
Well, when I was on my way back to work he stopped me and he said "I hear
you are the ring leader," and I said "I don't know what you are talking about,"
and he said "The union."
The Trial Examiner finds no ground for a finding of violation on the above-
related inquiry and remark, which is credited.
Conclusion as to Interference, Restraint, and Coercion
The Trial Examiner has found that General Manager Earl Hudson and Assistant
Factory Manager Joseph Colley delivered speeches to the Respondent's employees
at Du Bois and Skyesville, Pennsylvania, respectively, couched in such manner as to
create the impression that if the employees of the Respondent's Du Bois Division
brought the Union into the Respondent's organization the employees would lose
benefits and the Du Bois Division plants might be abandoned by the Respondent.
The Respondent is of course charged with the conduct of its officials.
The Trial Examiner finds that the above-found statements contain a clear threat
of reprisal. It is moreover apparent that the threat remained in the memories of
employees to whom it was made and therefore the Trial Examiner believes it fair to
infer and does infer that the threatening remarks affected the employees' subsequent
conduct with respect to their union activities . While all of Hudson's talk save these
remarks may have been privileged, yet with the threatening remarks found herein,
he left the realm of intellectual persuasion and crossed the boundary into the pro-
hibited area of interference , restraint , and coercion in direct violation of the rights
guaranteed in Section 7 of the Act, more particularly Section 8 (a) (1) thereof.
The Trial Examiner so finds.
In sum the Trial Examiner finds that by the foregoing conduct the Respondent
has interfered with,-restrained , and coerced its employees in the exercise of rights
guaranteed by Section 7 of the Act.
W. THE EFFECT OF UNFAIR LABOR PRACTICES
The activities of the Respondent set forth in section III, above , occurring in
connection with the operations of the Respondent described in- section 1, above,
have a close , intimate, and substantial relation to trade , traffic, and commerce among
the several States and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the
Trial Examiner will recommend that it cease and desist therefrom and take certain
affirmative action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. Rockwell Manufacturing Company (Du Bois Division ), Du Bois , and Sykes-
ville, Pennsylvania, is engaged in commerce within the meaning of the Act.
2. International Union of Electrical, Radio and Machine Workers, AFL-CIO,
is a labor organization within the meaning of Section 2 (5) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and
-302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of
the Act.
4. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2 (6) and (7) of the Act.
5. The Respondent has not engaged in any alleged unfair labor practice not
specifically found herein.
[Recommendations omitted from publication.]
EXHIBIT A
That Portion of General Manager Earl Hudson's Speech Relating to Unionization
Several times in the past 20 years, a few people, who have not given enough
clear thinking to the matter have expressed the belief that forming a union would be
an advantage to themselves and this Division. We understand that some of our
employees have been engaged in this kind of talk in recent weeks. If these people
really think that a Union is the answer to all of their problems, then I would suggest
they go to work somewhere where there is a union because we do not have one
-here. I firmly believe that the majority of our employees realize that they do not
have anything to gain by joining a union and don't want one.
Now I ask you what can a Union or Union organizer do for you that your
Company cannot and has not done better? Can he provide you with jobs? Will
he build new factories for you? Will he go out and sell meters so that your wages
can be paid? There is absolutely no guarantee that he can ever fulfill any of these
-promises, because no -company is required to give anything to any union or union
organizer simply because he asks for it. Time and again in Rockwell Manufacturing
Company, this has been demonstrated to the Union representatives. Some of the
Unions did not believe what the company said and some of these companies are
not working today.
One of the reasons why you people are working here today and have worked
steadily for the past five years is because Unions have made undue demands in other
Rockwell factories which your company could not and would not accept. When
it becomes unsound economically to continue to operate under those conditions,
Rockwell has closed its plants and moved elsewhere. How many of you would
be working today if only the Tin Meters were being' produced in DuBois? Not
very many.
Yet, you will recall our first cast meters came from Pittsburgh in 1947 and 1948.
At that time Pittsburgh had 1200 employees on their hourly payroll, each one a
Union member. Today there are 52. If a Union was good for those people and
good for the Company too, why doesn't that plant prosper today and why aren't
those people working?
There is instance after instance in which union organizers with fast talk, an atti-
tude of trying to help you, and a few beers have duped employees into signing up
and voting for a union. Then the trouble begins-strikes, violence, lost pay, and lost
jobs are often the result. Most of it is caused by internal union politics. Look
at what is occurring in Miami Beach today. The heads of all the big unions are
down there in sunny Florida trying to settle a family squabble. As you have read
in the newspapers you know that the Teamsters are accused of being. racket ridden
and because they refuse to answer questions of a congressional investigating com-
mittee the other unions are mad at them. You have also read in the newspapers
that the former building trades groups are mad at the industrial trades groups such
as the steelworkers, automobile workers, and vice versa. This is all political and
the whole trouble stems from the fact that these two union groups each want to
pick the ripe plums which are represented by potential dues-paying members which
are not now organized-MAINLY YOU.
Those unions and their own political strife exist on initiation fees and dues
secured by organizers who try to create suspicion, distrust and unrest to bring a
union into a company so their international union might have more members and
more dues. Those fellows operate a big business-much bigger than ours. Did
you know that the Steel Workers Union alone is worth over 20 million dollars?
If a Union were to get 500 members in this Division, their income per month would
be $2,500, or an income per year of $30,000, of your hard earned dollars to give you
the privilege of carrying a Union card.
You fellows and girls have worked steadily here for five years and during that
time there has never been a layoff. Contrast this with American Motor Company
or Superior Meter Company, one of which has had two strikes and the other one in the
last five years. American Motor is moving out of Erie for obvious reasons while
CELANESE CORPORATION OF AMERICA 303
Superior voted 2 to I against union organization in their Punxsutawney plant
recently.
Think of the benefits you have had here over the period of five years . The fact
that on many of our assembly lines today we are building stock meters to keep
your pay checks rolling in and the fact that with our own Rockwell organization,
DuBois has the reputation of being tops among our plants . This includes the union-
ized plants as well as the others . At the present time plans are to move dies into
this plant from Canton, Ohio, for making punch press stampings for the parking
meters.
CONCLUSION
We actually brought you together today to inform you of the rate adjustment, but
I did feel that since some of our people have been entertaining the idea of a Union,
we wanted to make sure that these people as well as all of you other people including
the old timers know that REGARDLESS OF WHETHER OR NOT A UNION IS
IN THE PICTURE, WHAT WE CAN AND WILL DO FOR OUR EMPLOYEES
WILL NOT BE GOVERNED BY PRESSURE FROM ANY SUCH GROUP.
Again I say look at the record that has been built up by the loyal cooperation
of you people and your management over the years in DuBois without a Union.
Look at your benefits you and your families receive in a year 's time . CAN YOU
BEAT IT?
Celanese Corporation of America and Textile Workers Union of
America, AFL-CIO, Petitioner. Case No. 9-RC-3313. August 6,
1958
DECISION AND CERTIFICATION OF REPRESENTATIVES
Pursuant to a stipulation for certification upon consent election,
approved by the Regional Director for the Ninth Region on March 5,
1958, an election was conducted on March 12, 1958, under the direction
and supervision of the Regional Director, among the employees at the
Employer's Gallipolis Ferry, West Virginia, plant. At the conclusion
of the election, the parties were furnished a tally of ballots which
showed that of approximately 50 eligible voters, 47 cast ballots, of
which 25 were for the Petitioner and 22 against. There were no chal-
lenged ballots.
On March 19, 1958, the Employer filed timely objections to conduct
affecting the results of the election. On April 7, 1958, the Regional
Director issued and duly served upon the parties his report on objec
tions, in which he recommended that the objections be overruled and
that the Board issue an appropriate certification of representatives.
The Employer filed timely exceptions to the Regional Director's
recommendations 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 Leedom and Members Rodgers and Jenkins].
The Employer's request for oral argument is hereby denied, because
the record, including the exceptions and brief, adequately presents the
issues and the positions of the parties. The Employer's request for a
hearing on its objections is likewise denied, because the Employer
raises no issue as to material facts.
121 NLRB No. 42.