Standard Coil Products, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1952

99 N.L.R.B. 899 (N.L.R.B. 1952)

STANDARD COIL PRODUCTS, INC. 899
6. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
[Recommendations omitted from publication in this volume.]
STANDARD COIL PRODUCTS, INC. and UNITED AUTOMOBILE WORKERS Or
AMERICA, AFL. Case No. 7-CA-536. June 95,1952
Decision and Order
On August 30, 1951, 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 in violation of the Act, 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
also found that the Respondent had not engaged in certain other al-
leged unfair labor practices, and recommended dismissal of these al-
legations of the complaint. Thereafter, the Respondent and the Gen-
eral Counsel filed exceptions to the Intermediate Report and support-
ing briefs, and the Respondent filed a reply brief.
The Respondent also filed a motion to reopen the record in this
proceeding to require a representative of the Board, Field Examiner
Porterfield, to produce all written documents and notes given to him
by witnesses for the General Counsel and to testify with respect to
conversations with such witnesses, for the purpose of showing that
those witnesses who testified with respect to an incident of alleged sur-
veillance by Personnel Manager Howard on October 26, 1950, had
never informed Porterfield of these facts and that they therefore must
have fabricated their testimony with respect to this incident." The
General Counsel filed objections to this motion. The granting of the
Respondent's motion lies solely within the discretion of the Board, as
the documents requested by the Respondent are confidential and are
not available for public inspection.2 Moreover , representatives of the
' The documents and evidence requested by the Respondent were obtained by Field
Examiner Porterfield during his investigation of the Union ' s objections to the election
held on October 27, 1950, in Case No. 7-RC-1144 , and not during the investigation of the
instant proceeding . The Union 's objections were sustained and, on December 12, 1950,
the Regional Director ordered this election set aside.
2 Section 102 . 89 (b) of the Board's Rules and Regulations, Series 6, as amended, pro-
vides that "all files, documents , reports, memoranda , and records pertaining to . . . the
investigation or disposition of charges or petitions during the nonpublic investigative
stages of proceedings . . . and all matters of evidence obtained by the Board or any of
its agents in the course of investigation , which have not been offered in evidence at a
hearing before a trial examiner . . . or have not been made part of an official record by
stipulation, . . . are . . . confidential and are not matters of official record or available
to public inspection , unless permitted by the Board , its chairman , the general counsel,
or any regional director."
99 NLRB No. 131.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Board, such as a field examiner, are not permitted to produce such
documents or to testify with respect thereto or with respect to any
matters coming to their knowledge in their official capacity, except
with the written consent of the Board or the General Counsel .3 We
believe that no useful purpose would be served by permitting the pro-
duction of the documents requested by the Respondent or the testi-
mony of the field examiner with respect to his conversations with these
witnesses. To reopen the record for this purpose would be, as the Trial
Examiner concluded, no more than a fishing expedition. Particularly
is this so where, as here, most of the witnesses who testified to the
October 26 incident of surveillance did not themselves inform Field
Examiner Porterfield of this incident or give any documents or notes
to him, but, instead, reported this incident to Union Representative
Schrader. The extent of these witnesses' disclosure to Schrader and the
resulting action by Schrader of passing along any or all of this in-
formation to the field examiner, in the form of documents or notes
made by these witnesses or in Schrader's own 'written statements,
clearly do not reflect upon the credibility of the witnesses who testi-
fied with respect to this incident at the hearing and who were cross-
examined by the Respondent with respect to such testimony. Accord-
ingly, the Respondent's motion to reopen the record is hereby denied.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial error was committed 4 The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
this case, and hereby adopts the findings,5 conclusions, and recom-
8 Section 102 90 of the Board 's Rules and Regulations , Series 6, as amended , prohibits
any representative of the Board from producing or presenting "any files, documents,
reports, memoranda , or records of the Board " or from testifying "with respect to any
information , facts, or other matter coming to his knowledge in his official capacity or
with respect to the contents of any files , documents , reports , memoranda , or records of the
Board . . . without the written consent of the Board or the chairman of the Board .. .
or the general counsel See General Armature d• Manufacturing Co , 89 NLRB 654,
enfd. 192 F . 2d 316 ( C. A. 3, 1951 ), where the Board and the court held that the respondent
had not been denied due process by the refusal of a field examiner , subpenaed by the
respondent , to testify at the hearing where the respondent had made no effort to obtain
the consent of the Board or the General Counsel to this testimony.
4 At the hearing , the Trial Examiner denied a motion made by the Respondent, sub-
stantially similar to its later motion to the Board to reopen the record , to require Field
Examiner Porterfield to produce all documents and notes relating to the October 26
incident of surveillance . In its brief , the Respondent contends that the Trial Examiner's
denial of this motion constitutes reversible error. As Section 102.90 of the Board's Rules
and Regulations , footnote 3, Supra, prohibits a field examiner from producing such docu-
ments without the permission of the General Counsel, the Trial Examiner was without
authority to grant, and properly denied, the Respondent 's motion. General Armature cI
Manufacturing Co., footnote 3, Supra.
s The Intermediate Report contains two misstatements of fact or inadvertences , neither
of which affects the Trial Examiner 's ultimate conclusions or our concurrence therein.
However, we note the following corrections : ( 1) The Trial Examiner inadvertently stated
that the Union filed its petition for certification on July 29 , 1950 , instead of on September
29, 1950; and ( 2) in discussing Howard's presence at a gas station on the evening of
September 20, 1950, the Trial Examiner referred to Howard as the Union's personnel
manager rather than as the Respondent 's personnel manager.
STANDARD COIL PRODUCTS, INC . 901
mendations of the Trial Examiner to the extent indicated below and
with the following additions and modifications :
1. For the reasons hereinafter stated, we find, as did the Trial
Examiner, that the Respondent's postponement of the wage increase
at its Bangor plant was not violative of the Act. The facts surround-
ing the deferment of the wage increase are as follows : In July 1950,
International Union of Electrical, Radio & Machine Workers, CIO,
began an organizational campaign at the Respondent's Bangor, Michi-
gan, plant. Early in September 1950, the charging union, United
Automobile Workers of America, AFL, herein called the Union, also
attempted to organize the employees of this plant. The Union held its
first meeting on September 11, 1950, and on September 29 filed its
petition in Case No. 7-RC-1144. On September 18, before the Union's
petition was filed, but during the unions' organizational campaigns,
the Respondent, at a meeting of its board of directors in Chicago,
decided to grant wage increases up to 10 cents an hour to all employees
of its Chicago plants. The question of granting a wage increase to
its Bangor plant employees was also discussed at this meeting, but,
upon the advice of the Respondent's attorney who was present at the
meeting, the Respondent decided that, in view of the unions' organiza-
tional campaigns, the granting of any increase at its Bangor plant
would be withheld until after the representation issue had been re-
solved.6 The Respondent granted a 10-cent an hour increase to em-
ployees of its Chicago plants on October 1. On October 5, Plant
Manager Adams, in a speech to all employees of the Bangor plant,
stated :
I am making this statement in answer to many inquiries by our
employees about a wage increase.
At a meeting of the board of directors, . . . held in mid-
September, your board decided on a substantial wage increase
for all employees in its Chicago and Bangor Plants. Based on
that action, a 100 per hour increase has gone into effect in our
Chicago Plant starting October 1st of this week.
We have been advised by the attorney for the Company that
we cannot put into effect any wage increase in our Bangor Plant
while there is pending here effort by the unions to organize this
Plant. It is our attorney's legal opinion that if we allow you this
wage increase at this time the unions will charge your Company
with an unfair labor practice before the National Labor Rela-
tions Board.
6 The facts with respect to the September 18 meeting of the Respondent's board of
directors are based upon the minutes of the meeting , a certified copy of which was intro-
duced into evidence by the Respondent.
215233-53-58
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I am authorized to tell you that this contemplated wage in-
crease was decided upon because economic conditions make it fair
that it be paid to you and it was not intended to influence you one
way or another on these pending union questions. . . .
I am authorized to tell you that there will be granted to you a
substantial increase as soon as our attorney informs us that the
problems presented by the union's request to represent you has
(sic) been finally resolved one way or another. . . .
I promise, however, on behalf of the Company that you will
be granted a substantial wage increase whether or not you
finally decide you wish to be represented by the union. We cannot
however, put that increase into effect until the union question is
finally settled... .
On October 18, a consent-election agreement was signed and, on
October 27, an election was conducted among the Respondent's Ban-
gor employees, which the Union lost. On October 30, the first regular
workday after the election, the Respondent informed the employees at
its Bangor plant that, effective as of 8 a. in. that day, they had been
granted a 10-cent an hour wage increase.
The General Counsel asserts that, in mid-September 1950, the Re-
spondent, solely for economic reasons, granted a wage increase of 10
cents an hour to all employees of its Chicago and Bangor plants, to
become effective on October 1; and that, in order to discourage its
Bangor plant employees from becoming members of and supporting
the Union, the Respondent postponed the effective date of this in-
crease at its Bangor plant, thereby violating Section 8 (a) (3) and
8 (a) (1) of the Act. The Respondent contends, on the other hand,
.that it deferred all consideration of a wage increase for its Bangor
plant employees until after the election had been held and that, there-
fore, no wage increase was ever withheld. It argues, further, that,
even if an increase had actually been withheld, the Respondent's con-
duct would not be violative of the Act, as the Respondent acted in
good-faith reliance on the advice of its counsel, "who stressed the
possibility that such an increase under the then decisions of the Board
would constitute an unfair labor practice."
Although, as pointed out above, there is some dispute as to whether
or not the wage increase was actually decided upon before the repre-
sentation election, we, like the Trial Examiner, find it unnecessary to
resolve this conflict. Thus, even if, as the General Counsel con-
tends, the Respondent actually postponed the effective date of the
increase at its Bangor plant because of the pendency of the unions'
organizational campaigns, there is nothing in the record to support
the General Counsel's position, in effect, that the Respondent did so
because the employees at this plant were engaging in concerted activity
STANDARD COIL PRODUCTS, INC. 903
protected by the Act.7 On the contrary, the facts support the Re-
spondent's contention that, in postponing the wage increase , the Re-
spondent acted in good-faith reliance on the advice of its counsel and
was motivated by a desire to avoid violating the Act rather than to
'penalize its employees for engaging in protected concerted activity.
Thus, in Adams' October 5 speech to the employees, he clearly stated
that the wage increase was being postponed because of the Respond-
ent's fear of violating the Act if it did otherwise, and he assured the
employees that the increase would be granted as soon as the repre-
sentation issue was resolved, regardless of the results of the election.
Moreover, it cannot be said that the Respondent's fear of violating
the Act if it granted the wage increase on October 1, while the Union's
representation petition was pending, was unfounded or was not a
real one. This was not a situation where the raise under consider-
ation was one which was regularly or periodically granted or one
which the employees normally expected to receive.8 Indeed, under
the circumstances, the Respondent might well have been unwilling
to take the risk of being able to justify before this Board the granting
of such an increase at that time.
Nor do we find any merit in the General Counsel's further conten-
tion that, even if the Respondent acted in good faith in deferring the
wage increase, its conduct violated Section 8 (a) (3) of the Act be-
cause the effect of postponing the increase was to discourage union
membership and activity. This is not to say that under certain cir-
cumstances, where the natural and necessary effect of an employer's
action is the discouragement of union activity, and the employer takes
no action to abate such consequences,, the Board may not dispense with
an affirmative showing of unlawful motive and infer that the employer
intended the natural consequences of its acts.9 However, this is not
' The General Counsel contends that Adams ' statement to a group of employees, 4 or 5
weeks after the election, that the increase could have been granted sooner had there
been no union activity , is proof of the Respondent's unlawful motive in postponing the
wage increase . In view of our findings infra, that Adams' post-election statement was
merely a reaffirmation of the statements made in his October 5 speech, we find no merit
in the General Counsel's contention.
9 The General Counsel relies upon Bonwit Teller, Inc., 96 NLRB 608, in support of his
position that the Respondent 's asserted fear of violating the Act did not justify the with-
holding of the raise. That case, however, involved the withholding of regular, semi-
annual wage increases assertedly because of the respondent 's fear of unfair labor practice
charges if it granted any increases during a union 's organizational campaign . Moreover,
although the Trial Examiner found this withholding to be violative of the Act , the Board
did not actually reach that issue because of the proscription imposed by Section 10 (b)
of the Act.
9 See Sullivan Dry Dock & Repair Corporation , 67 NLRB 627, at 635 , where the Board
held that the withholding of a regular , annual bonus , assertedly because of the respondent's
fear of violating the wage Stabilization Act if it granted the bonus , constituted a viola-
tion of Section 8 (3) of the Act . In support of his contention that the Respondent's
motive in postponing the increase is irrelevant , the General Counsel relies primarily on
the Sullivan case and particularly on the following language of the Trial Examiner in
overruling the contention of the respondent in that case that its reliance on the advice
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a case. Here, the Respondent's failure to grant the wage increase
on October 1 did not result in a change in the terms of employment of
its Bangor plant employees, as it did not deprive the employees of an
increase which was regularly granted or one which the employees nor-
mally expected to receive. Therefore, the deferment of the increase
did not have the natural and necessary effect of discouraging union
membership and activity. The General Counsel argues, in fact, that
if the Respondent had not made its October 5 announcement with re-
spect to the postponement of the wage increase, the employees would
not even have known of the granting or deferment of the raise. More-
over, even assuming that the natural consequence of the postponement
of the increase, standing alone, would have been the discouragement
of union activity, we find that the Respondent, by notifying its em-
ployees at the time of the reason for the deferment and by assuring
them that they would receive a raise regardless of the results of the
forthcoming election, effectively abated such an effect.
Accordingly, we conclude that, by postponing the wage increase at
its Bangor plant from October 1 until October 30, the Respondent did
not violate Section 8 (a) (3) or 8 (a) (1) of the Act.
2. We also find, in agreement with the conclusion of the Trial Ex-
aminer, that the Respondent did not violate the Act by informing its
employees of the contemplated wage increase and of its deferment.
As stated above, on October 5, 1950, Plant Manager Adams addressed
the Respondent's Bangor plant employees, assertedly "in answer to
many inquiries by [the] employees about a wage increase." Adams in-
formed them that the Respondent had decided to grant a substantial
increase, but that the increase could not be put into effect during the
unions' organizational campaigns because, as the Respondent's attor-
ney had so advised, the granting of an increase at the Bangor plant
at that time would subject the Respondent to unfair labor practice
charges. Adams stated, however, that the increase would be granted
as soon as the representation matter was resolved and regardless of the
results of the election. The Trial Examiner concluded that Adams'
of its attorney , even though such advice may have been incorrect, precluded an inference
of intent to discourage union membership :
. . , the natural consequences which would be expected to flow from the Respond-
ent's . . . action was the discouragement of self-organization of employees. This
effect was reasonably known and , without anything done to abate it, must be pre-
sumed to be intended . Under such circumstances it is unnecessary to find affirma-
tively a motive to interfere with unionization ; in fact, such motive may be
absent. .. .
However, the Board's findings in that case did not turn on this rationale , as the Board
concluded that the respondent 's asserted fear of violating the wage Stabilization Act
was a mere pretext for its action in withholding the bonus from the timekeepers, and
that the respondent's conduct, in according disparate treatment to its timekeepers, was
motivated , not by any honest doubt concerning its rights under the wage Stabilization
Act, but by the fact that the timekeepers , unlike its other employees , were represented
by a union.
F STANDARD COIL PRODUCTS, INC. 905
announcement was "a proper and factual response" to inquiries by the
employees and that it was therefore not violative of the Act. The
General Counsel has excepted to these conclusions contending, first,
that the evidence does not establish that the employees made such in-
quiries and, second, that even if the employees had asked about the
raise, such inquiries would not justify the Respondent's announcement
at that time.
We find no merit in the General Counsel's contentions. Although
the General Counsel asserts that there is no other evidence to support
a finding that the Respondent's Bangor plant employees inquired
about a raise, Adams' credited testimony to that effect was neither
controverted nor impugned. Similarly, Adams expressly stated in
his October 5 speech that he was making the announcement in answer
to such inquiries. Accordingly, we find, as did the Trial Examiner,
that the employees at the Bangor plant, having learned of the raise
granted at the Respondent's Chicago plant,10 inquired about that raise
and asked Adams whether they, too, would receive an increase; and
that, in answer to these inquiries, Adams delivered his October 5
speech. Furthermore, we find that all announcement directed to
answering such inquiries, if devoid of unlawful purpose and within
the prescribed limits of Section 8 (c) of the Act, did not run afoul
of the Act."
We find nothing in the record to support the General Counsel's
contention that the Respondent made the October 5 announcement
for the purpose of discouraging union activity or for the purpose of
influencing the decision of its employees in the election of October 27.
Although Adams' statement with respect to the contemplated wage
increase was made while the Union's representation petition was pend-
ing, and only 3 weeks before the election, the Respondent could hardly
have chosen any less critical time to make this announcement .12 Thus,
the Respondent's determination with respect to the wage increase was
made on September 18 and the Chicago raise, which apparently gave
rise to the inquiries at the Bangor plant, did not go into effect until
October 1. Moreover, on October 5, when Adams made his announce-
10 The record reveals that there is some interchange of employees between the Respond-
ent's Chicago and Bangor plants.
li The Board and the courts have repeatedly held that , although an employer is not
foreclosed from announcing or granting economic benefits during a union's organizational
campaign or during the pendency of a Board-ordered election , "what is unlawful under
the Act is the employer ' s granting or announcing such benefits ( although previously deter-
mined upon bona fide ) for the purpose of causing the employees to accept or reject a
representative for collective bargaining." ( Emphasis supplied .) Hudson Hosiery Com-
pany, 72 NLRB 1434, at 1437; quoted with approval in: Joy Silk Mills, Inc., 85 NLRB
1263, at 1287 , enfd. 185 F. 2d 732 (C. A. D. C., 1950) ; Bonwit Teller, Inc., footnote 8, supra.
12 But cf. Hudson Hosiery Company, footnote 11, supra, where the employer waited more
than a month after it had decided to grant wage increases to inform its employees, 2 days
before the election , that the increases , already decided upon, were being postponed because
of the pending election , but would be granted as soon as possible.
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ment, no election date had yet been set. That the speech preceded the,
election by only 3 weeks was caused by the fact that all the interested
parties were able to agree upon a consent election on October 18, al-
most 2 weeks after the wage announcement. Under these circum-
stances, we find that the Respondent's announcement with respect to^
the wage increase was not deliberately timed to influence the decision
of its employees in the election of October 27.13 Nor do we find any-
thing in the language of the announcement itself that is either sug-
gestive of any unlawful purpose or beyond the protected scope of
Section 8 (c) of the Act.
We conclude, therefore, on the basis of the entire record, that the
Respondent's October 5 statement regarding the wage increase was
not violative of the Act.-
3. We agree with the Trial Examiner's conclusion that the Re-
spondent independently violated Section 8 (a) (1) of the Act. In
adopting the Trial Examiner's conclusion, however, we rely solely
on the following preelection conduct of the Respondent's supervisors :15
(a) Personnel Manager Howard's presence in front of the Union's
meeting place on October 23 and October 26, 1950.
The Respondent asserts that Howard's presence in front of the
Union's meeting place on the evening of October 23 was incidental,
to the personal errands which Howard daily performed after work
and that, in view of the small size of the town of Bangor and the fact
that the Union's meeting was being held in the center of town, Howard
could not have avoided passing by the Odd Fellows Hall, where the
Union's meeting was being conducted. The record establishes, how-
ever, that Howard did not merely pass by the Odd Fellows Hall, but
that he stopped in front of the entrance to the hall and remained there,
talking to the employees entering the hall, for 10 to 25 minutes. More-
over, Howard informed the employees, during these conversations,
that he was "counting noses" of those who were attending the. meet-
n But Cf. Queen City Values, Inc, 93 NLRB 1576; Minnesota Mining & Manufacturing
Company, 81 NLRB 557; Wilson & Co., Inc, 77 NLRB 959. at 971, and cases cited in
footnote 11, supra, where the Board relied primarily on the timing of the announcement in
concluding that economic benefits were announced for the purpose of influencing the deci-
sion of the employees in a representation election. In all these cases, with the exception
of Minnesota Mining & Manufacturing Company, the announcement was made after the
election was scheduled and not more than a week before the election was held. In the
Minnesota case, the conduct occurred in the interval between the hearing on the rep-
resentation petition and the issuance of the Board's Decision and Direction of Election
14 Bonwit Teller, Inc., footnote 8, supra, where the Board held that an employer's pre-
election announcements of pending wage increases did not contain any threat of reprisal,
as there was nothing in these announcements "to suggest that the pending wage increases
would be withheld beyond the date of the election, or that they would not be granted if
the [union] won the election."
16 As no exceptions have been filed to the Trial Examiner's failure to find that the
Respondent further violated Section 8 (a) (1) of the Act by Cortright's statement to
employees Harden and Shepherd that the plant might close if the Union won the election,
or by Shine's interrogation of employee Snyder, we deem it unnecessary to pass upon these
issues.
STANDARD COIL PRODUCTS, INC. 907
ing.'6 Under these circumstances, we find that Howard's presence in
front of the Odd Fellows Hall on the evening of October 23 was
deliberate and constituted surveillance of the Union's meeting, in
violation of Section 8 (a) (1).
With respect to the Union's meeting on the evening of October 26,
the record reveals that Howard arrived at the Odd Fellows Hall,
where the meeting was being held, shortly after 5 p. in., before the
meeting started, and that he was seen there by employees leaving the
hall, after the meeting ended, at approximately-6 p. m. Accordingly,
we conclude that Howard's unexplained presence in front of the Odd
Fellows Hall for an extended period of time on the evening of October
26, when coupled with his admitted interest in "counting noses" at
the October 23 meeting, also constituted surveillance of the Union's
meeting, in violation of Section 8 (a) (1) 17
(b) Plant Manager Adams' statement, in his speech of October
25, 1950, that if the employees refused to pay "special assessments"
to the Union after a majority of the employees had voted for the
Union, the Respondent could not keep these employees in its employ
even if it wanted to.
The Respondent contends that this statement, even though based
upon a misinterpretation of the law, was an expression of opinion
protected by Section 8 (c) of the Act. Unlike the Trial Examiner, we
find it unnecessary to determine, in the abstract, whether "a state-
ment of the law by a layman is . . . an expression of . . . opinion
under Section 8 (c)." It is sufficient in this case, and we find, that
Adams' statement is not protected by Section 8 (c) of the Act as it
contained a clear threat of reprisal.'s
.(c) The following instances of interrogation, threats of reprisals,
and promises of benefits by the Respondent's supervisors :
(1) Yates' interrogation of employee Helm as to whether Helm
was going to vote for the Union ; and her threat to employee Myers
that, if the Union won the election, the Respondent would move its
plant to Chicago.
(2) Cortright's interrogation of employee Hollman as to whether
Hollman was in favor of the Union, and her interrogation of employee
Newell with respect to Newell 's reasons for wanting the Union and
her husband's attitude toward the Union; Cortright's threat to Holl-
man that, if the Union won the election, she could not keep Hollman
1e Although the Trial Examiner did not find it necessary to fix the exact date on which
the "counting noses" remark was made , we find , as the record establishes , that this remark
was made on October 23.
17 The Regional Director's failure to mention this incident in his report on objections in
Case No 7-RC-1144 in no way impugns the credibility of the witnesses who testified to
this incident of surveillance.
's Intertown Corporation (Michigan ), 90 NLRB 1145, at 1178-1179.
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in her department as the latter was too slow a worker; and her threats
to employee Hunt that, if the Union won the election, the employees
would be "worse off" and that the Respondent would move the plant
out of town.
(3) Stedman's promises of benefits, including an improved bonus
system, greater holiday, vacation, and overtime benefits, and a 10-
cent an hour wage increase, contingent on the Union's losing the
election, to employees Hunt, Pearson, Harden, Wines, and Wanecek;
his interrogation of employee Harden and two other employees with
respect to their feelings about the Union; his interrogation of em-
ployee Wines as to why she was in favor of the Union and as to which
of the other employees favored the Union; and his request to Wanecek
that she try to talk Wines out of voting for the Union.
(4) Gunnarson's interrogation of employee Wines as to whether
Wines had changed her mind about voting for the Union, and her in-
terrogation of employee Youngblood with respect to the latter's
feelings about the Union.
(5) Babor's interrogation of employee Samilson as to her reasons
for favoring the Union.
(6) Meeker's interrogation of employee Youngblood as to the lat-
ter's feelings about the Union.
The Trial Examiner found that the Respondent further violated
Section 8 (a) (1) of the Act by Adams' statement to a group of em-
ployees, 4 or 5 weeks after the election and after the wage increase had
been granted, that the employees could have received this increase
sooner had there been no union activity. We do not agree. We find
nothing in Adams' post-election statement which is inconsistent with
the statements made in his October 5 speech, explaining the reasons for
the Respondent's failure to grant the wage increase before the election.
Rather than viewing this statement, as the Trial Examiner did, as "a
clear indication of loss as the result of [union] activity," we find that
Adams' post-election statement was merely a reaffirmation of his
earlier explanation to the employees, which we have found was not
violative of the Act. Accordingly, we conclude that the Respondent
did not thereby violate Section 8 (a) (1) of the Act.
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, Standard Coil
Products, Inc., Bangor, Michigan, its officers, agents, successors, and
assigns , shall :
STANDARD COIL PRODUCTS, INC. 909
1. Cease and desist from :
(a) Engaging in surveillance of its employees' self-organizational
activities; interrogating its employees concerning their union sympa-
thies and the union sympathies of their fellow employees, their reasons
for wanting a union, and how they intend to vote in a Board-conducted
election; promising its employees benefits, including higher wages, an
improved bonus system, and greater holiday, vacation, and overtime
benefits, if they reject the Union in a Board-conducted election;
threatening to move its plant if the Union should win an election;
threatening its employees with economic reprisals, including loss of
employment, if the Union should win an election and if, after the
Union wins an election, the employees should refuse to pay "special
assessments" to the Union; and attempting to induce its employees to
discourage their fellow employees from voting for the Union in a
Board-conducted election.
(b) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Automobile Workers of
America, AFL, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in concerted
activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any or all of such activities, except
to the extent that such right may be affected by an agreement requir-
ing membership in a labor organization as a condition of employment,
as authorized in amended Section 8 (a) (3) of the Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Bangor, Michigan, copies of the notice
attached hereto and marked "Appendix A." 19 Copies of said notice,
to be furnished by the Regional Director for the Seventh 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 sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted.
Reasonable steps shall be taken by'the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Seventh Region, in writ-
ing, within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT Is FuRT$ER ORDERED that the complaint, insofar as it alleges other
violiazis,of the Act, be,,and it hereby is, dismissed.
w In 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."
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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 engage in surveillance of our employees' self-
organizational activities; interrogate our employees concerning
their union sympathies or the union sympathies of their fellow
employees, their reasons for wanting a union, or how they intend
to vote in a Board-conducted election; promise our employees
benefits, including higher wages, an improved bonus system, and
greater holiday, vacation, and overtime benefits, if they reject
UNITED AUTOMOBILE WORKERS OF AMERICA, AFL, in a Board-
conducted election; threaten to move our plant if UNITED AUTO-
MOBILE WORKERS OF AMERICA, AFL, should win a Board-con-
ducted election; threaten our employees with economic reprisals,
including loss of employment, if UNITED AUT01VIOBILE WORKERS
OF AMERICA, AFL, should win a Board-conducted election and
if, after it wins an election, our employees should refuse to pay
"special assessments" to UNITED AUTOMOBILE WORKERS OF
AMERICA, AFL; or attempt to induce our employees to discourage
their fellow employees from voting for UNITED AUTOMOBILE
WORKERS OF AMERICA, AFL, in a Board-conducted election.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self -organiza-
tion, to form labor organizations , to join or assist UNITED AUTO-
MOBILE WORKERS OF AMERICA, AFL, or any other labor organiza-
tion, to bargain collectively through representatives of their
own choosing, to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent
that such right may be affected by an agreement requiring mem-
bership in a labor organization as a condition of employment, as
authorized in amended Section 8 (a) (3) of the Act.
All our employees are free to become, remain , or to refrain from
becoming or remaining, members of the above-named union or any
other labor organization, except to the extent that this right may be
affected by an agreement in conformity with amended Section 8 (a)
(3) of the Act.
STANDARD COIL PRODUCTS, INC.,
Employer.
By ------------------------------------
(Representative ) ( Title)
Dated --------------------
STANDARD COIL PRODUCTS, INC. 911
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, as amended at the hearing, alleged that the Respondent
violated Section 8 (a) (3) of the National Labor Relations Act, as amended,
61 Stat. 136, by postponing a wage increase to its employees in order to dis-
courage union membership and support, and Section 8 (a) (1) of the Act by
said alleged act and by surveillance of union meetings ; interrogation concerning
union membership, sympathy, and activities ; threats to close and move the plant
and to transfer employees union-and promise of benefits if-the Union were
rejected in a pending election ; informing employees of the postponement of the
wage increase; discriminatorily prohibiting prounion employees from conversing
during working hours ; and informing employees that union authorization cards
would be subject to the Respondent's inspection. The answer denied the allega-
tions of unfair labor practice and declared that the wage increase was postponed
pending the election on the advice of counsel.
A hearing was held before me at Bangor, Michigan, on July 31 and August 1,
1951. Pursuant to leave granted to all parties, briefs were thereafter filed by
General Counsel and the Respondent.
Upon the entire record in the case and from my observation of the witnesses,
I make the following :
FINDINGS OF FACT
1. THE RESPONDENT'S BUSINESS AND THE LABOR ORGANIZATION
The Respondent, an Illinois corporation with plants in Illinois, California, and
Bangor, Michigan, manufactures and sells radio and television parts, electrical
windings, and similar articles. In the conduct of its business in Bangor, the
Respondent during 1950 purchased raw materials valued at more than $500,000,
of which more than 95 percent was purchased and shipped from points outside
the State of Michigan to Bangor. During the same period, the Respondent sold
.products of its Bangor plant valued at more than $1,000,000, of which more than
135 percent was sold and shipped to points outside the State.
It was admitted, and I.find, that the -Respondent is engaged in commerce within
the meaning of the Act, and that the Union is a labor organization and admits
to membership employees of the Respondent's Bangor plant.
II. THE UNFAIR LABOR PRACTICES
A. The alleged violation' of Section 8 (a) (1)
On July 29, 1950, the Union filed with the Board a petition for certification. The
first organizational meeting was held 5 or 6 miles out of Bangor on September 11,
1950. The second meeting was held in town on September 20.
McDonnell, husband of one of the employees,' testified that, while waiting for
his wife who was attending the Union's first meeting in town, he saw Howard,
the Union's personnel manager, at a gas station on the corner directly across the
3 "Independent," so-called, as distinguished from "derivative" violation of Section 8
(a) (1).
There is no need for distinction, and none will be made, between the currently employed,
the discharged, and those in layoff status. All were employed at the time of the respective
events mentioned.
912 DECISIONS OF NATIONAL LABOR' RELATIONS BOARD
street from the Legion Hall, where this meeting was held ; and that Howard
remained there for approximately 15 minutes watching the hall.
Howard denied that he was guilty of surveillance on this occasion. He ex-
plained that he lived down the block from the gas station, and that he frequently
visited the proprietor, who was his friend. Howard's home is located on the
same block as the gas station. It is down the side street *which runs off at a
right angle, and the block is a short one in that direction.* s (McDonnell testi-
fied that Howard's home is a "full block" from the gas station.)
It does not appear that Howard was at the gas station when employees entered
or left the meeting place. In any event, I am not satisfied that he was "watching"
the meeting, and I find that no surveillance was committed in that connection.
I do not credit Gallup's testimony that Howard observed the Legion Hall meeting
from the hotel across the street.
McDonnell testified further that on the same day he saw three supervisors
seated at a table in the window of a restaurant almost directly across the street
from the Legion Hall. Two of these supervisors testified that (with a third
supervisor whom McDonnell did not name, but not with the third party to whom
he did refer and who denied that she was in the group during this period) they
daily stopped for coffee at this restaurant or for ice cream or a soft drink else-
where, depending on the weather. They denied that they sat "in" the window of
the restaurant. *The restaurant was the nearest to the Respondent's plant. The
structure has a store front with a plate glass window 6 feet wide. Inside and
behind this window is a platform which is 1 foot high and extends back for some
5 feet ; the table at the window was located behind this platform.* 4
How long these supervisors were in the restaurant on this occasion, and
whether they were there when the employees entered or left, does not directly
appear from McDonnell's testimony. De Kreek, another employee who was
active in the Union's organization campaign, testified that as she emerged from
the Legion Hall with Schrader, the Union's regional representative, she saw two
of the supervisors in the restaurant across the street. Schrader did not testify
that he saw the supervisors. It is doubtful that De Kreek could see and recognize
people seated at a table in a building some 90 feet away and several feet behind
a window. Considering those circumstances and the supervisor's explanation of
their presence there, I find that they were not guilty of surveillance. Nor do
I credit McDonnell's testimony that each of them later declared in his hearing
that she knew everyone in her line who had gone into the meeting.
Union meetings were held on October 23 and 26, 1950 (a consent election was
conducted by the Board on October 27) at the Odd Fellows Hall, which is on
Main Street, 11/2 blocks west of the Legion Hall and 2 blocks west of the
Respondent's plant. On the 26th, one meeting was called for 4 p. in. for night
shift workers, who were due on the job at 5 p. in., and a second was held shortly
after 5 p. m. for day shift employees.
Several employees testified to seeing Howard in front of and immediately
adjacent to the meeting hall on both dates. Howard explained that he daily
shops on Main Street at or about 5 p. in., and that he calls for his mail at the
post office, which is across the street from the Odd Fellows Hall. He testified
that he stood in front of the hall between 5 and 10 minutes on October 23,
joked o with four or five employees and said something about lending his moral
- e Between"the, asterisks ' are-facts which I noted ,° and which were ' agreed to by -the respec-
tive attorneys , on a view which I took of the premises at the close of the bearing at the
request of and accompanied by counsel and representatives of the respective parties.
4 See footnote 3.
9 Whether on this or another occasion he "counted ( 42 or 43) noses" need not be de-
termined ; but he did make statements to that effect.
STANDARD COIL PRODUCTS, INC. 913
support to their campaign. Whether for 5 or 10 minutes, or 25 as otherwise
testified, Howard's presence at the meeting hall, aside from shopping or other
personal duties which he may have performed on Main Street that day, con-
stituted interference with the employees' organizational activities, and I so find.°
Howard denied that he went to Odd Fellows Hall on October 26, although he
thought it "likely" that he was on Main Street. He did not recall meeting
any employees there at about the time of the meeting, and denied that he spoke
with any. Various employees, arriving singly or in pairs, testified to his
presence in front of the meeting hall on October 26, and some to seeing him
there on both the 23rd and the 26th. I find that Howard was on Main Street
on October 26, while not engaged in shopping or other normal and proper pursuits,
and remained in front of the meeting hall (there can be no question of knowledge
of the scheduled meeting) thereby interfering with employees' organizational
activities.'
In a speech to all employees 8 on August 23, 1950, during the early part of
the Union's organization campaign, Adams, the plant manager, declared that
after a Union files authorization cards with the Board "the company then has
the right to question whether or not these are actually cards of the employees
and generally has the signatures on the cards compared with those on the pay-
roll checks." It is not correct to say that the company has the signatures com-
pared, and the statement that it does, with its suggestion of company exami-
nation o of union authorization cards, constitutes interference with employees'
union activities. An employer may not submit to employees a distorted picture of
procedure which represents secret organization activities as becoming notorious,
and information properly withheld as available to all. The offense is aggravated
when combined with the employer's expression, itself lawful, of union disfavor
for now that disfavor attaches to the activity of the employee which putatively
will come to the employer's notice. That Adams did not mean that the Respond-
ent would itself verify the signature does not lessen the interference inherent in
his remarks.
In another speech, on October 25, Adams, referring to union "special assess-
ments," stated, ". . . and if you refuse to pay this assessment after the
majority of you have voted for the union, we cannot hold you in your job even
though we wish to do so." The clear import of this statement overlooks the
requirements to be met before a valid union-security agreement may be entered
into, and the further fact that assessments, unlike dues and initiation fees, are
not mentioned in the proviso in Section 8 (a) (3) of the Act. A statement of
the law by a layman is not an expression of views, argument, or opinion under
Section 8 (c) of the Act. Incorrect and tending to deter employees from engaging
in organization activities, it constitutes interference.
9 Some evidence was submitted to show that such interference actually occurred as dis-
tinguished from the reasonable tendency to interfere; the latter is itself violative of the
Act. (Goodall Company, 86 NLRB 814 )
'+ As for the Regional Director's omission , in his report on objections to the election, of
reference to surveillance on October 26, that is no more indicative of what was reported
in that connection and binding in this proceeding than are the conclusions therein con-
tained; and the Respondent would strenuously object to receipt or consideration of those
conclusions. Nor is a fishing expedition warranted to inquire whether a given witness
reported such surveillance especially since the witness in question (Schrader) could not
testify of his own knowledge and others, who could, did so testify.
8 There were approximately 550 during the period August-October 1950; there are
considerably fewer at present.
9 On the payday following, employees were for the first time asked to sign their name
and clock number on a check list.
914 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October 2610 issue of "The Bangor Advance," the local weekly, appeared
a full-page advertisement which was sponsored by a "Citizens Committee" and
which, generally urging that the employees vote against the Union in the election
scheduled for the 27th, concluded with a warning that the plant might be closed.
The advertisement violates Section 8 (a) (1) of the Act, but we must consider
the Respondent's responsibility for it. General Counsel did not claim that the
Respondent sponsored the advertisement ; he argues that there was "ratification."
Howard testified that on the evening of October 24 the newspaper editor called
and told him about the forthcoming advertisement and invited him to come to
see it. Howard went to the newspaper office, read a proof, and told the editor
that he "didn't like it." It does not appear whether Howard's dislike was
directed toward the entire advertisement or toward only a paragraph which
appeared to be critical of the Respondent.
The paper was distributed free outside the plant on October 27 by newsboys
who were not the Respondent's employees. Adams purchased several copies,
picking them up from the table where they are usually left, at the entrance to
the building. At least eight copies were also distributed inside the plant by a
newsboy, that number being handed out free in the toolroom.11 This slight
distribution by the newsboy inside the plant, and the greater one outside, do not
warrant a finding that the Respondent adopted or ratified the advertisement and
thereby violated the Act 12
With respect to violation by promise of benefit and by inquiry concerning
union membership and voting intent, there were many instances of such viola-
tion. (The Respondent's opposition to organization activities was made clear
to its employees.) While the respective supervisors generally denied making
the inquiries and promises, discussion between supervisors and employees con-
cerning union matters is admitted. Gunnarson testified that she had not asked
employees "directly" how they felt about unions. Cortright "never asked anyone
[whether she was a member of the Union]. If they offered the information
to [her,] all right." According to Yates, everybody was interested in a raise,
and she discussed it with some of her girls. Stedman participated in the "gen-
eral discussion throughout the plant in regard to wage increases and union
activities."
I credit the testimony of the employees and the admissions of the supervisors
in this connection, and find the following instances of interrogation and promise
of benefit (and concomitant threat) by supervisors: Yates asked Helm whether
she was going to vote for the Union ; Cortright twice directed a similar inquiry
to Holtman and threatened that if the Union got in she would not keep her in
the department because she was slow (this was not denied) ; Cortright told
Hunt that conditions would be worse and the shop would move out of town if
the Union got in ; Cortright'3 asked Newell why she was for the Union and
what her husband thought about it ; Babor asked Samilson why she was for the
Union ; Gunnarson asked Wines whether she had changed her mind about
voting for the Union ; Gunnarson and Meeker inquired concerning Youngblood's
10 The paper was printed and available on the evening of the 25th.
"Union handbills were distributed off the Respondent's property ; but in bad weather,
distribution was made on its property , but outside the building . It was further testified
that handbills were brought into the plant , but not distributed there.
12 Contrast L d H Shirt Company, Inc., 84 NLRB 248, with Empire Pencil Company,
86 NLRB 1187 . See also Salant d Salant, Incorporated , 87 NLRB 215; Bibb Manufac-
turing Company, 82 NLRB 338 ; Vermont American Furniture Corporation, id at 408.
11 If the testimony be credited, Cortwright's offer to provide a bandaid for Speicher if
the latter would vote against the Union would not be considered to have been seriously
made, and would not constitute interference. It would further indicate Cortright's
attitude and activity , of which there is sufficient proof.
STANDARD COIL PRODUCTS, INC . 915
attitude toward the Union ; Stedman 14 told Hunt that the work would be made
easier if the Union did not get in, and on the same condition promised Pearson
various benefits while telling her that her work was good ; he also asked Harden
and two other employees what they thought of the Union, and made contingent
promises of benefit; Stedman asked Wines why she was for the Union and
whether she knew other girls who favored it, promised her and her friend,
Wanecek, benefits if the Union did not get in, and asked the latter to pursuade
Wines to forsake the Union.15
Myers, the janitor, testified that approximately a week before the election
Yates told him that the Company would move to Chicago if the Union got in.
Yates denied making any such threat, but declared that "a conversation started
over the union, . . . [they] got into an argument, . . . [and each] expressed his
feelings." I credit Myers, and find that Yates interfered by threat.
Four or five weeks after the election and after a general increase had been
granted, a group of employees met with Adams and requested another increase.
In reply, he told them the increase received would have been granted sooner if
there had been no union activity. Such a statement is a clear indication of loss
as the result of such activity and constitutes an unlawful threat and interference
with future organizational activities.
Harden testified that she and Cortright, who was not her supervisor, were
given a ride home by Shepherd, a machine shop employee, after work one day
early in October 1950. It appears that Shepherd urged Cortright to buy an
automobile and that the latter replied, according to Harden, that the shop
would probably close down and that she was afraid of her job if the Union came
in. Removed from the site of employment, on an automobile ride, during the
course and as part of a personal discussion in which there appeared to be no
suggestion of employee-supervisor relationship, Cortright was here expressing a
fear, justified or not, of loss of her own job. There is no claim to the contrary.
Of course, the eventuality which she feared would carry with it the loss of Har-
den's job also. But under the special circumstances of this conversation, I do not
find that Cortright's statement constituted a threat to Harden.
Nor do I find violative of the Act, Gunnarson's remark, made to Harden and
another employee during the week of the election, that the Respondent could
shut the plant down if it wanted to. The atmosphere which prevailed is rec-
ognized, but if Gunnarson indicated that her warning was connected with the
Union's success, the record does not show it. Harden, it may be noted, was a
sincere and careful witness 16
Myers testified that Howard told him, about 2 weeks before the election,
to stop talking while he swept the aisles during the other employees' lunch hour.
Howard testified without contradiction that he had reprimanded Myers pre-
viously for talking too much and now did so again, pointing out that Myers was
14 Stedman is a time- and motion-study engineer . He not only studies production
problems , but also settles them without intervention by higher management representatives.
He has an office girl ( certainly a mark of authority in this plant ), and attends super-
visor's meetings. Of all who were claimed to be supervisors, Stedman alone was omitted
from the stipulation early entered into , but I find that he was regarded as and was such
within the meaning of the Act.
15 Stedman did not deny all of the violations attributed to him Nor did he explain why
he discussed bonus and other benefits with employees or why, whatever he had in mind,
he told them only, as he testified, that benefits might be delayed by the presence of a third
party.
16 A copy of notes which Harden had made and concerning which she had testified was
read into the record during the course of her cross-examination. So far from being a
"plant," these notes, produced only after insistence by the Respondent 's counsel , corroborate
her testimony that she considered certain facts important and recorded them. -
916 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neglecting his work. The record does not indicate that the restraint alleged was
directed against discussion of the Union ; it was rather against Myers' permitting
such or any other discussion to interfere with his work.
Testimony was received concerning interrogation by Shine, a laboratory engi-
neer. One of the supervisors is "occasionally" away, and Shine "usually" sub-
stitutes for him. The supervisor appears not to have been away on the day
in question. The record does not show that Shine was a supervisor within
the meaning of the Act, or that his statements were attributable to the Re-
spondent.
With respect to postponement of the wage increase, infra, announcement of
such increase followed inquiry by several employees and their reference to the
increase granted in the Respondent's Chicago plant. The announcement was
thus not provocative, but a proper and factual response to a situation the
propriety of which will now be considered.
B. The alleged violation of Section 8 (a) (3)
In a speech delivered October 5, 1950, Adams told all employees that the Re-
spondent's board of directors had decided on a "substantial wage increase" for
all employees in its Chicago and Bangor plants, and that a 10-cent an hour in-
crease had gone into effect in Chicago the beginning of that week ; but that on
the advice of counsel that an increase was improper while the Union's organi-
zation effort was pending, it would be postponed until the problems involved had
been "finally resolved one way or the other." An increase was promised re-
gardless of the outcome of the representation proceeding. A general 10-cent
an hour increase was granted and made effective on October 30, the first regular
workday after the election.
To grant or to withhold benefits is unlawful if done with intent to discourage
union membership. 17 General Counsel urges that because a wage increase may
be announced and granted by an employer pending an election if it is not done
to influence employees' organizational activities and voting,18 the withholding
thereof constitutes an unfair labor practice even in the absence of proof of in-
tent so to influence. Although denying the necessity of such proof of intent,
General Counsel in effect relies on the withholding as proof per se. In fact,
the complaint alleges that the effective date of the increase was postponed "to
discourage union membership and support."
But we must not overlook the condition ("if it is not done to influence ... ")
above cited on granting such an increase, and the employer's burden of offering
proof to meet the inference, that an attempt was indeed made to influence em-
ployees thereby. Motives are weighed, and business custom or practice and pre-
vailing economic conditions have been deemed to justify such increases ; the Re-
spondent would therefore have to prove those or similar circumstances to sup-
port its action." A refusal to assume that burden and to proceed at one's own
peril is not discriminatory.20
17 Joy Silk Mills, Inc., 85 NLRB 1263.
18 Cf. Mallinkrodt Chemical Works, 79 NLRB 1399.
19 Spengler-Loomis Mfg. Co., 95 NLRB 243; Wilson & Co., Inc., 95 NLRB 882.
2° Cf. .Kansas-Nebraska Natural Gas Company, Inc., 90 NLRB 1423. No question has at
any time been raised concerning the possibility of variation in the "substantial amount"
promised on October 5, according to the outcome of the election. The testimony is con-
flicting on this point : In his speech on October 25, Adams indicated to the employees that
the amount had been agreed upon, while on the stand he declared that the amount was
decided upon on October 28. The latter appears to find support in the advice of the
Respondent's counsel at the corporate director's meeting that "`consideration [of a wage
STANDARD COIL PRODUCTS, INC. 917
In the instant case , the union activities were commenced prior to the announce-
ment of the prospective but deferred increase. The evidence indicates further
that the increase was granted in the Respondent 's Chicago plant, employees at
Bangorinquired of Adams concerning such increases , and the announcement
followed such inquiries . This is not a case of increases previously expected but
deferred because of a supervening election : the Respondent 's burden to show
that grant of an increase was proper would have been even greater.Z"
As for proof of intent to influence the voting by withholding the increase,
there is none. The Respondent 's desire to persuade its employees to vote against
'the Union is clear . As found in the preceding subsection , that desire was at times
expressed unlawfully . But it does not follow that the postponement of the in-
crease was motivated by that desire , nor do I find that it was, especially since
the Respondent acted upon advice in an attempt to avoid a charge of unlawful
benefit. While that advice overlooked the possibility of lawfully granting an
increase even pending the election , no improper motive may be charged in that
connection '; and, as noted , the Respondent in any event could properly under the
existing circumstances refuse to take the risk of allowing such a benefit at that
time.
If it be urged that because an antiunion attitude existed there was per se
improper motivation in withholding the increase , it might as well be argued,
if the increase had not been postponed , that the benefit was motivated by the
same desire : in short, that since the Respondent declared its opposition to the
Union , whatever action it took was discriminatory. (Post hoc, propter hoc.)
Unless the postponement was per se improper and unlawful intent is presumed,
.such intent has not been shown.`
(Note must also be taken of the unchallenged testimony that "there were
economic factors also " in connection with the delay of the increase at Bangor.
Adams' later statement to a group of employees that the increase would have
been received sooner if there had been no union activity, found , supra, to have
constituted interference when uttered , did not prove the Respondent 's motive
increase ] be withheld until the determination of the representation proceedings. . . .
The resolution there adopted provided that "such increase shall be considered upon the
completion of the pending election regardless of the results of such election."
The Respondent in its brief argues that the increase was not actually voted by its
directors prior to the election , and postponed . This issue and the question of the Board's
power to "grant that increase retroactively " need not be considered in view of the decision
made on the question of law.
s' Although the Union could not exculpate the Respondent for wrong committed, it did
not, although it could without risk, encourage the Respondent to grant the increase by a
statement that it would not itself charge an unfair labor practice it an increase were at
once granted . Cf Wilson & Co., Inc., supra.
a Support for this holding may be found in the recent case of Foley's Mill and Cabinet
Works, 95 NLRB 743, where , in another type of situation in which an employer was called
upon to decide which of two courses of action it should follow, the Board declared :
Under the second proviso of Section 8 (a) (3) of the Act, the Respondent could
not comply with the Union 's request and retain the benefit of immunity provided in
the first proviso of that Section, if it had reason to believe that membership was not
available to the employees whose discharge was requested on the same terms and
conditions generally applicable to other members . Whether the Respondent 's position
in the "back dues" question was the correct one is not in issue here. Suffice it to say
that the Respondent 's alleged contractual breach was consistent with its statutory
obligation under this Section in order to avoid the commission of unfair labor practices,
and, so far as the record shows, clearly not in furtherance of any design to interfere
with or rid itself of the chosen representative of its employees . [Emphasis supplied.]
For "statutory obligation " is substituted , in the instant case, the recognized obligation
under previous rulings in point. In both cases, the respondents ' good faith rather than
their accuracy in interpreting the law is in issue
215233-53 59
918 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2 months earlier in the light of the circumstances and details connected with the
postponement as fully brought out by General Counsel Despite his position in
the plant, Adams occupied a subordinate status in connection with the earlier
action, which was determined by the Respondent's board of directors. His later
statement is contrary to the previously authorized remarks and does not reflect
on the motive of the sponsors of those remarks and the action now under con-
sideration. It may even be questioned whether, considering the events of the
intervening period, Adams' statement in response to a request for a second in-
crease, 4 or 5 weeks after the election, reflected his own attitude at the beginning
of October.)
It is argued further that, aside from intent, to permit postponement of benefits
pending an election is to discourage employees from seeking certification of a
representative. But employees may as readily be discouraged from seeking
certification of a representative when an employer refuses to agree to a union-
security clause or other terms of a proposed agreement. Such action does not
ipso facto "discourage membership in any labor organization" even if it be as-
sumed that it discourages employees from seeking certification of a representa-
tive ; 23 it is not violative of the Act. The postponement of announced benefit
was here determined upon regardless of union membership, whether of individual
employees or the majority. I find no violation in this connection.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section II, above, occurring in
connection with the operations described in Section I, above, have a close, intimate,
and substantial relation to trade, traffic, and commerce among the several States,
and tend to lead to labor disputes burdening and obstructing commerce and the
free flow of commerce.
1V. THE REMEDY
Since it has been found that the Respondent has 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 policies of the Act.
I shall recommend that the Respondent cease and desist from interfering with,
restraining, or coercing its employees in violation of Section 8 (a) (1) of the
Act by surveillance of union meetings; interrogation of employees concerning
organizational activity ; threat and promise of benefit in connection with an
election of a collective bargaining representative ; and any statement that union-
authorization cards would be subject to the Respondent's inspection. ,
The interference, restraint, and coercion found herein indicate a purpose to
limit the lawful concerted activities of the Respondent's employees. Such pur-
pose is related to other unfair labor practices, and I find that the danger of
their commission is reasonably to be apprehended. I shall therefore recommend
a broad cease and desist order, prohibiting infringement in any manner upon
the rights guaranteed in Section 7 of the Act.
For the reasons stated in the subsection entitled "The alleged violation of
Section 8 (a) (3)," I shall recommend that the complaint be dismissed insofar
as it alleges violation of Section 8 (a) (3) of the Act.
Upon the basis of the above findings of fact and upon the entire record in the
case, I make the following :
- See also footnote 21. 0
SCOTT & WILLIAMS, INCORPORATED
CONCLUsIONH OF LAW
919
1. United Automobile Workers of America, AFL, is a labor organization within
the meaning of Section 2 (5) of the Act.
2. By surveillance of union meetings ; interrogation of employees concerning
organizational activity ; threat and promise of benefit in connection with an
election of a collective bargaining representative ; and a statement that union-
authorization cards would be subject to its inspection, thereby interfering with,
restraining , and coercing its employees in the exercise of rights guaranteed in
Section 7 of the Act, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid labor practices are unfair labor practices affecting commerce,
within the meaning of Section 2 (6) and (7) of the Act.
4. The Respondent has not engaged in unfair labor practices within the mean-
ing of Section 8 (a) (3) of the Act.
[Recommendations omitted from publication in this volume.]
SCOTT & WILLIAMS. INCORPORATED and UNITED STEELWORKERS OF
AMERICA, C. I. O. Case No. 1-CA-864. June 25,195R
Decision and Order
On September 12, 1951, Trial Examiner John Lewis 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 also found
that the Respondent had not engaged in certain other unfair labor
practices alleged in the complaint and recommended dismissal of
those allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.'
The Board 2 has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are affirmed. The Board has considered the Intermediate
Report, the exceptions and brief, and the entire record in the case,
and adopts the finding's, conclusions, and recommendations of the
Trial Examiner.
The Trial Examiner found that Victor Dyer was discriminatorily
discharge in violation of Section 8 (a) (1) and 8 (a) (3) of the
Act. We agree, particularly for the following reasons : In July 1950
I The Respondent has requested oral argument . In our opinion the record , 'the excep-
tions, and brief fully present the issues and the positions of the parties . Accordingly, this
request is denied.
2 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 Herzog and Members Houston and Murdock].
99 NLRB No. 140.