Adrian Steel Co.

National Labor Relations Board - Board Decisions

Feb 28, 1961

130 N.L.R.B. 847 (N.L.R.B. 1961)

ADRIAN STEEL CO. 847
4. By its course of conduct in this respect , Union Taxi Corporation has also inter-
fered with , restrained , and coerced employees and applicants for employment in the
exercise of rights guaranteed in Section 7 of the Act; it has thereby engaged in and
continues to engage in unfair labor practices within the meaning of Section 8(a) (1)
of the Act , as amended.
5. By its participation in the execution , maintenance , and enforcement of trade
agreements with union -security provisions invalid under the Act, as amended-and
by its action in causing Union Taxi Corporation to discriminate against employees,
applicants for employment , and Wayne B. Lewis in particular, in violation of Section
8(a) (3) of the Act, as amended-Teamsters Automotive & Chauffeurs Local Union
No. 165 did engage in and continues to engage in unfair labor practices within the
meaning of Section 8(b) (2) of the Act, as amended.
6. By its course of conduct in this respect , Teamsters Automotive & Chauffeurs
Local Union No. 165 has also restrained and coerced employees and applicants for
employment in the exercise of rights guaranteed in Section 7 of the Act; it has
thereby engaged in and continues to engage in unfair labor practices within the
meaning of Section 8(b) (1) (A ) of the Act, as amended.
7. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act, as amended.
[Recommendations omitted from publication.]
Adrian Steel Co. and International Union , United Automobile,
Aircraft & Agricultural Implement Workers of America,
UAW-AFL-CIO. Case No. 7-CA-2751. February 28, 1961
DECISION AND ORDER
On December 7, 1960, Trial Examiner Earl S. Bellman issued his
Intermediate Report in this case, 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 an unfair labor practice alleged in the complaint,
and recommended that such allegation be dismissed.' Thereafter, the
Respondent filed exceptions to the Intermediate Report and a support-
ing brief.
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's findings, conclusions,
and recommendations.
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 Adrian Steel Co.,
Adrian, Michigan , its officers, agents, successors , and assigns, shall:
No exceptions were filed to this recommendation , and we therefore adopt it pro forma.
130 NLRB No. 104.
848--'' ^ DEOISIO'NS "OF NATIONAL LABOR ' RELATIONS BOARD --
1. Cease and desist from :
(a) Discouraging membership in International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-AFL-CIO, or in any other labor organization of its employees,
by discriminating in regard to the hire or tenure of employment or
any term or condition of employment of any of its employees.
(b) Polling employees concerning their union interests or desires,
promulgating or posting rules against organizational activities on
company premises during nonworking time, threatening to close its
plant if the Union is successful in organizing its employees, or engag-
ing in surveillance of union meetings.
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of their right to self-organization, to
form, join, or assist International Union, United Automobile, Air-
craft & Agricultural Implement Workers of America, UAW-AFL-
CIO, or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in concerted activi-
ties for the purpose of collective bargaining or other mutual aid or
protection, or to refrain from any and all such activities, except to
the extent that such rights may be affected by an agreement requiring
membership in a labor organization as a condition of employment, as
authorized by Section 8(a) (3) of the Act, as modified by the Labor-
Management Reporting and Disclosure Act of 1959.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Offer to Douglas Jackson immediate and full reinstatement to
his former or substantially equivalent position, without prejudice to
his seniority or other rights and privileges, and make him whole for
any loss of pay suffered because of the discrimination against him
in the manner set forth in the section of the Intermediate Report
entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents, for examination and copying, all payroll records, social
security payment records, timecards, personnel records and reports,
and all other reports necessary to determine the amount of backpay
due under the terms of this Order.
(c) Post at its plant in Adrian, Michigan, copies of the notice
attached hereto marked "Appendix." 2 Copies of said notice, to be
furnished by the Regional Director of the Seventh Region, shall,
after being duly signed by the Respondent's authorized represent-
ative, be posted by the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days thereafter, in con-
2 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."
ADRIAN STEEL CO. 849
spicuous places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered by
any other material.
(d) Notify the Regional Director for the Seventh Region, in
writing, within 10 days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed insofar as it alleges that the Respondent, through its super-
visor, Gilbert Nash, threatened employees with loss of overtime work
in violation of Section 8 (a) (1) of the Act.
MEMBER JENKINS took no part in the consideration of the above
Decision and 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 poll our employees about their desire to be repre-
sented by International Union, United Automobile, Aircraft &
Agricultural Implement Workers of America , UAW-AFL-CIO,
or by any other labor organization.
WE WILL NOT promulgate or post rules against employee or-
ganizational activity on company premises during nonworking
time.
WE WILL NOT threaten to close our plant if the above-named
Union, or any other labor organization , is successful in seeking
to represent the employees.
WE WILL NOT engage in surveillance of meetings of the above-
named Union, or any other labor organization , which is attempt-
ing to organize our employees.
WE WILL NOT discourage membership in International Union,
United Automobile, Aircraft & Agricultural Implement Workers
of America , UAW-AFL-CIO, or any other labor organization, by
discharging, or in any other manner discriminating against any
employee in regard to his hire or tenure of employment, or any
other term or condition of employment , or in any other manner
interfere with , restrain , or coerce our employees in the exercise of
their right to self -organization , to form , join, or assist the afore-
said Union, or any other labor organization , to bargain collec-
tively through representatives of their own choosing , or to engage
in concerted activities for the purpose of collective bargaining
597254-61--vol. 130-55
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or other mutual aid or protection, or to refrain from any and all
such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization
as a condition of employment, as authorized in Section 8(a) (3)'
of the Act, as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
WE WILL offer Douglas Jackson immediate and full reinstate-
ment to his former or substantially equivalent position, without
prejudice to his seniority or other rights and privileges, and make
him whole for any loss of pay suffered as a result of our dis-
crimination against him.
All our employees are free to become or remain, or to refrain from
becoming or remaining, members of International Union, United
Automobile, Aircraft & Agricultural Implement Workers of America,
UAW-AFL-CIO, or any other labor organization, except to the extent
that this right may be affected by an agreement in conformity with
Section 8 (a) (3) of the Act, as modified.
ADRIAN STEEL CO.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
This proceeding , in which all parties were represented and were afforded full
opportunity to participate , to argue orally, and to file briefs, was heard before the
duly designated Trial Examiner in Adrian, Michigan , on August 8 and 9 , 1960, upon
a duly issued complaint and notice of hearing of the General Counsel, dated June 17,
and amended July 12, 1960 , and a duly filed answer of Adrian Steel Co., the Re-
spondent herein . The issues litigated at the hearing were whether or not the
Repondent , in violation of Section 8(a)(3) and (1) of the National Labor Re-
lations Act, as amended , herein called the Act, discriminatorily discharged Douglas
Jackson about April 21, 1960, and has, since about the first of April of this year,'
engaged in "a continuous course of interference , restraint and coercion of its em-
ployees," including five separately enumerated and later -described types of alleged
8(a)(1) violations . At the close of the hearing, the parties waived oral argument.
The General Counsel and the Respondent subsequently filed able briefs which have
been carefully considered.
Upon the entire record , and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Adrian Steel Co., a Michigan corporation having its plant and principal place
of business in Adrian, Michigan , is engaged in the manufacture , sale, and distri-
bution of automobile seat frames and related products . During the calendar year
preceding June 17, 1960, a period representative of all times herein material, the
Respondent , herein sometimes called the Company, in the operation of its business,
purchased , transferred , and delivered to its Adrian plant, steel and other goods and
3 When the year is omitted , It will be understood to be 1960.
ADRIAN STEEL CO. 851
materials valued in excess of $150 ,000 of which goods and materials valued in
excess of $100,000 , were transported to said plant directly from States of the United
States other than the State of Michigan. During this same year's period, the Re-
spondent sold, shipped , and caused to be delivered finished products valued in
excess of $300,000, to, among others, Stubnitz-Greene Corp., of Adrian, Michigan.
That corporation , in turn , annually both ships and receives goods and materials
valued in excess of $50,000 directly to and from points outside the State of Michi-
gan. The Respondent admits that it is engaged in commerce within the meaning
of the Act, and I find that it will effectuate the policies thereof to assert jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aircraft & Agricultural Implement
Workers of America , UAW-AFL-CIO, is admittedly a labor organization , within
the meaning of Section 2(5) of the Act. The Union admits to membership em-
ployees of the Respondent 's Adrian plant.
III. THE UNFAIR LABOR PRACTICES 2
A. The setting and the issues
The number of employees in the Respondent's Adrian plant , all of whom are
men, fluctuates between 50 and 75. About two-thirds of these employees work on
the first or day shift , which ends at 3:30 p .m. The remaining third work on the
second or night shift , which does not begin until 4 p.m., thus leaving half an hour
between shifts. Robert Westfall is president of the Respondent . He shares an
office with Carl Tavierne, the Respondent's vice president, who functions "like a
general manager" at the plant . Gilbert Nash , who is directly under Tavierne, is
essentially "superintendent of the plant," and is responsible for its production. The
foreman in charge of the night shift is James McCarley, who is responsible to
Nash . Except for some 10 men on the day shift who fabricate parts in the job
shop , the rest of the Respondent's plant employees are all engaged in production
welding. This production welding, in which "one man with one jig does the com-
plete seat," is all done for the above-mentioned Adrian firm of Stubnitz-Greene,
which furnishes the Respondent the necessary parts. The parts thus furnished are
then placed by the Respondent 's production welders in the Respondent 's jigs,
welded together, inspected , packed , and shipped back to Stubnitz -Greene, "where
they put the springs on them for your automotive seats." 3
During the latter part of March 1960, Webb Magnor, a representative of the
Union, visited the home of Lonnie Spence, one of the Respondent's welders, in
response to a request from Spence for assistance in organizing the employees at
he Adrian plant . Magnor told Spence to call seven or eight men together for a
meeting at which they could sign union authorization cards, and that later on they
could have "those men call more men in and proceed in that manner." 4 Following
Magnor 's suggestion , on Monday , March 28, Spence , along with 10 other employees,
including Douglas Jackson , whose discharge is in issue in this case, attended the
first of a series of 3 meetings , which were held about a week apart at the Union's
hall in Adrian .5 At this first meeting , all but 2 of the 11 men present signed
authorization cards.
With the foregoing setting , we turn to the issues . Two of the above-mentioned
five alleged independent 8(a)(1) violations concern threats . The complaint alleged
Where there is essentially no conflict in the evidence , testimony relied upon In
making findings will not always be identified . However, there are some things about
which the evidence is flatly contradictory , and others about which the evidence falls
short of being consistent . In such situations , salient evidence will be summarized, and
my principal reasons for resolutions will be stated . But what follows does not purport
to expound fully the record, the contentions of the parties , or my reasons for reaching
resolutions and conclusions . The parties may be assured, nevertheless , that in reaching
all resolutions , findings, and conclusions herein , all of the evidence has been carefully
reviewed ; that all of the cases cited, along with others , have been studied ; and that
each of the contentions advanced has been duly weighed , even if not specifically discussed.
3 The quotations in the above paragraph are from testimony of President Westfall, upon
whose testimony the findings in said paragraph are largely based.
' The above quotation is from testimony of Spence , who took the initiative in getting
organization started and who impressed me as a forthright and accurate witness.
5 Among those attending the second and third meetings were also both Spence and
Douglas.
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, about April 5, 1960, Nash threatened employees "with loss of overtime work
if the Union were successful in its organizational drive." It further alleged that,
about April 7, Westfall threatened employees that the Adrian "plant would close
down" if the Union were successful in organizing. With respect to the first alle-
gation, the Respondent's answer averred that Nash rather advised employees that
it would "be impossible to continue the extensive overtime work being done if
union scale was installed." With respect to the second, the answer stated that
Westfall, in representing the Company's financial position, advised employees that
if a strike resulted, the Company's "major customer would undoubtedly withdraw
their business from the plant which would result in a shutdown."
The other three independent 8(a)(1) allegations in the complaint pertain to a
poll, a notice, and surveillance. With respect to the poll, the complaint alleged
that, about April 5, McCarley initiated, authorized, and caused the taking of a
poll among employees "concerning their union membership, and activities, and
desires." The Respondent's answer denied that McCarley initiated such an inquiry
as to the feelings of night-shift employees, and averred that "said poll was taken
by four of the employees, on their own initiative, and a report was made to James
McCarley unrequested."
As to the posted notice, the complaint alleged that, about April 5, Westfall
caused the posting of a notice at the plant warning employees that they would be
subject to disciplinary action if they did not refrain from engaging in "any union
organizational activities on Respondent's property." The answer stated that on
April 5 Westfall posted a notice "warning all persons on the premises not to engage
in activities, either for or against the union on company time and on company
property."
As to surveillance, the complaint alleged that about April 11 Nash "engaged in
surveillance of the meeting place, meeting, and other activities of the Union."
The answer stated that Nash "unintentionally observed said employees entering
a meeting place; and thereafter did, only at the time, take notice of the persons
entering the meeting."
With respect to the discharge of Douglas Jackson on April 21, 1960, alleged in
the complaint to have taken place because of Jackson's "membership in, sympathies
for, and activity on behalf of the Union," the answer denied such basis for Jack-
son's discharge and alleged that he was discharged because Jackson "did threaten a
fellow employee and did use vile, abusive and threatening language toward said
fellow employee while on company property."
Study of the issues and of the evidence convinces me that findings and conclusions
can more expeditiously be presented by grouping them around the foregoing issues,
rather than by first setting out further factual findings chronologically. Hence, keep-
ing in mind the general plant setting and the inception of union activity, we will
proceed to consider the foregoing issues framed by the pleadings, taking them essen-
tially in chronological order, and developing the facts as to each. We start with the
alleged threats of Superintendent Nash.
B. Interference, restraint, and coercion
1. The alleged threats of Nash concerning loss of overtime
It was evidently not long after the Union held its first meeting on March 28 that
the Respondent became aware of organizational activities among its employees.
Possibly this took place on an occasion, apparently prior to Monday, April 4,6 when
Foreman McCarley, having found that one of the employees had taken "authoriza-
tion cards in on the night shift to have them signed for the Union," ordered that
employee "out of the shop." In any event, on April 4, Superintendent Nash called
a meeting of the first-shift employees to be held after they "got off of work"; they
actually waited at the plant until night-shift employees arrived for work so that Nash
could have the meeting when "all of the fellows would be there." 9 During this
meeting in the plant, which lasted about 30 or 45 minutes and was attended by most
of the plant employees, Superintendent Nash told the employees, among other things,
6 The findings in the above sentence are based on credited and uncontradicted testimony
of Spence as to what Nash told him during a conversation, discussed below, on the evening
of April 4.
] The quotations in the above sentence and throughout the remainder of this paragraph
are from credited and uncontradicted testimony of Douglas Jackson. Nash was not called
as a witness While Jackson testified that the meeting took place about April "the 5th
or 6th, somewhere along in there," I am satisfied that the meeting actually took place
,on April 4, prior to the later discussed visit of Nash to Spence's home that evening.
ADRIAN STEEL CO. 853
that it had come to his attention that some of the men wanted a union in the plant;
that he did not know why they wanted a union, since the benefits the Company was
giving were "about the same thing a union would give"; that if the Union came into
the plant, the Company would "have to pay overtime over forty hours a week"; and
that while the Company "didn't have anything against the union," it could not afford
to pay overtime.
On the evening of April 4, Nash went to the home of Spence , where he and Spence
"talked from nine o'clock to about one thirty in the morning." 8 Nash told Spence
about the "session with the employees after work" which Nash had had at the plant
that afternoon, and which Spence, who works on the first shift, apparently had not
attended. Nash asked Spence "what the men wanted at the shop." Spence told Nash
that they "wanted a seniority basis" whereby they would have rights such that they
would not "be fired any time somebody got a little peeved" at them. Nash informed
Spence that it had been agreed "to appoint two or three men to go into the office and
thrash things out with the office." Spence asked "who was going to appoint the
committee," the Company or the employees, and Nash told him that "they would
have a vote through the employees to appoint them." 8 During their discussion,
Nash repeatedly said that he "couldn't understand why Rodriguz wanted to have a
union." 10 Nash also told Spence about "learning that one of the employees" had
taken authorization cards "in on the night shift to have them signed up for the Union,"
and that "the night boss" had ordered that employees "out of the shop." In addition,
Nash, who led Spence "to believe he was worried," told Spence that Westfall had
said that "he would probably close the plant down if we ever had to have a union
in there, that they couldn't afford it"; that the Company could not afford to pay time
and a half for overtime; and that Westfall "would probably make a warehouse" out
of the plant.
The foregoing findings are warranted by credibly given testimony of Spence on
direct examination. It is noteworthy, however, that when Spence was asked, on
cross-examination, whether Nash had said that "the shop absolutely would be closed
if there was a union there," Spence replied that Nash "didn't say nothing definite like
that." It is also noteworthy that thereafter Spence answered affirmatively this ques-
tion, which was next asked on cross-examination:
Was his conversation rather along the lines that if there were a union , resulting
in extensive overtime, that they could not afford it which might result m the
closing of the shop?
The Respondent 's brief, pointing specifically to the foregoing question and answer
during cross-examination of Spence, and contending that Nash was only explaining
that the Company could not afford "extensive overtime under regular union scale,"
states:
This was merely an explanation of the company 's economic position and a pure
statement of fact. It did not constitute a threat in the nature of loss of overtime
work if the company were unionized.
Obviously Superintendent Nash's talk to plant employees on the afternoon of
April 4, and his discussion that evening with Spence, must be kept in mind in evaluat-
ing developments later considered. I am not convinced, however, that the evidence
as a whole establishes that Superintendent Nash thereby threatened employees of
the Respondent with loss of overtime work if the Union succeeded in organizing
them. Accordingly, it will be recommended below that said allegation of the com-
plaint be dismissed.
2. The poll of employees on the night shift
That a poll was taken of employees on the night shift is clear. But explanations
thereof are quite varied. The first explanation given by the Respondent was in a
letter, dated May 23, 1960, which President Robert Westfall wrote to the Board's
Seventh Regional Office, after receiving a copy of the Union's charge and a letter,
dated May 13, from the Regional Director, requesting the Respondent's account of
8 According to credited testimony of Spence, upon which findings in the above para-
graph are based, the only other person present was his wife.
9 According to Spence, this "never took place," and while the charge contains an
8(a) (2) allegation, there is no allegation in the complaint concerning any "Grievance
Committee."
10 Employee Oscar Rodriguz works on the day shift. It is not clear what he had done
to so impress Nash, but it is possible that he had been trying to get other employees to
join the Union.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the facts" and its position. With respect to the alleged violation of the Act by
"polling individual employees on company time and property concerning their union
sympathies and affiliations," Westfall's letter stated:
We again strongly object to the implication that we polled employees relative
to their union sympathies and affiliations . A poll was taken to determine if
the union had sufficient strength to win an election , and questioning an employee
as to union sympathies or affiliations was never a part of this survey. In fact,
the poll came about on our night shift , and spontaneously , too. Because there
was so much worry and consternation prevailing and permeating our employees,
our night foreman, on impulse, decided to resolve the question of either having
a union or not; by asking his shift to indicate a preference of a union or not,
so that their fears could be allayed . ( It might be interesting to interject here,
that no one indicated a preference for a union.) We, of course, upon hearing
about it the next morning, discontinued any further such practices.
I notice in this charge that great care is taken to point out that this survey
took place on company time and property. I want to emphasize very emphati-
cally that this survey took place many days prior to the posting of the company
notice in Charge No. 4 following.
The second explanation of the Respondent is that in its answer of June 20, earlier
noted, which denies any initiative on the part of Foreman McCarley, and attributes
the poll to the initiative of four employees, who reported to "McCarley unrequested."
The Respondent's third explanation was made at the hearing through the testimony
of three of its witnesses, McCarley, Westfall, and Leo Bachtal, an employee who
concededly does not have supervisory authority, but works under McCarley on the
night shift.
James McCarley, who had been a welder until about a year ago when he became
the second-shift foreman, testified that he had "heard the guys talking" about a poll;
that he did not actually know what they were really talking about, but "just gathered
it was something concerning union"; and that he had not had any part whatever in
taking the poll. McCarley also testified that he had first heard about the polling
of employees "after it was all done and over"; that while he did not know the date,
it was "pretty close to the end of the shift"; that he had never discussed the poll with
anybody from management; and that he did not know of anyone being reprimanded
in any way for said polling.
Robert Westfall, who followed McCarley as a witness for the Respondent, testi-
fied, on direct examination, with respect to the explanation of the poll which he had
made in his letter to the Board, that he had played no part in taking the poll; that
he had made the statements as to the poll in said letter on the assumption that
"McCarley had stuffed the tickets under the door as the only means of communi-
cating with the day shift"; that "any messages that the night foreman wanted to pass
on" to his day-shift superiors "are generally stuck under our office door"; that he
thus "assumed McCarley was the one who had initiated this polling"; that he did not
"recall even talking to [McCarleyl about it"; and that he actually did not know
`until this hearing that [McCarley] had nothing to do with" the poll.
On cross-examination as to the polling, Westfall testified that when he opened his
office door "the next morning," he found the "green tags" used in taking the poll;
that there was "some kind of a heading" on them, "either for a union or against a
union or something"; that he thought some of the cards were signed by employees;
that he did not recall whether he had questioned any of the employees about those
cards; that "about the only one [he] discussed it with" was Carl Tavierne. the vice
president who shares the office with him; that it was "just as much news to [Taviernel
as it was to" him: and that as he recalled the cards, "there didn't seem to be any
show of strength for a union." After saying that the matter "wasn't a big issue" to
him, Westfall also testified that he "didn't recall questioning anybody about the
polling" before writing his above-quoted explanation to the Board.
The Respondent's third witness, Leo Bachtal, claimed sole responsibility for taking
the poll in issue. This is the gist of Bachtal's explanation, on direct examination, of
how the poll came about. The night before, "this person had come in passing out
union cards for us guys to sign " It was "right then and there" that Bachtal knew
that the Uninn "was trying to come in." The next night there was "quite a bit of
talk and stuff like that for and against" the Union, so Bachtal decided "to find out
just how the shop stood " During the night-shift lunch hour, Bachtal "took a bunch
of shipping tags that was up in the cage," and wrote on them "who's for and who was
against" the Union, with possibly a space to indicate "if it was indifferent." There-
after Bachtal took the tags and "went on to each welder," asking him to indicate his
choice on one of the tags. and telling him that "he could sign it or he wouldn't have
to." According to Bachtal, it was all "done under [his] own direction" and, as far
ADRIAN STEEL CO. 855
as Bachtal knew , no company official or foreman "was aware of it." On cross-
examination , Bachtal testified that no one else helped him pass out the tags, and
that he was prompted to take this poll because he "wanted to know what the ma-
jority was," as he thought he "would go with the majority ." Bachtal also insisted
that he did not tell the results of this poll to anyone."
Prior to the testimony given by the above 'three witnesses for the Respondent, two
night-shift employees , Jammie Holland and Wesley Powers, had testified as witnesses
for the General Counsel about being polled by Bachtal concerning their desires as
to the Union . Each placed his conversation with Bachtal on this matter as about
April 5 , and each testified that Bachtal came to his place of work while he was
working in the plant . It is noteworthy that Bachtal did not specifically deny any of
the convincingly given testimony of Holland and Powers, which will now be
summarized.
This is Powers' version . Bachtal came around with a green shipping tag. He told
Powers that "the Company wanted to know whether [he] was for a union or whether
[he] wasn 't for a union," and that Powers was to "either write yes or no" on the
tag. Powers , without taking time to read what was on the tag, told Bachtal that he
wanted "nothing to do with it" and that he "wasn 't signing nothing." Having thus
refused to participate in the poll, Powers went back to work.
This is the gist of Holland 's testimony which bears directly on the poll. Bachtal
came to where Holland was working with two sets of green stock cards, one set
marked "for a union and one against a union ." Bachtal asked Holland to sign
a ,tag to indicate one choice or the other. Bachtal told Holland that "our foreman
Jim wanted it" in order to know "which guys was for a union or against a union."
Bachtal also told Holland that the cards "wouldn 't go in the office" as McCarley
just wanted "to find out for himself ." Holland at first said that he would not sign
a card because "a guy could get in trouble signing one way or the other ," but even-
tually he "made a check mark against the Union ." The "very next day," McCarley
told Holland that Westfall wanted to talk to him . Holland went to Westfall 's office,
where Westfall said , "I've heard that you've been threatened ." Holland told West-
fall that he had not been threatened , but had "just told Leo that a guy could get in
trouble one way or the other." Westfall said that if anybody threatened Holland,
"either for the union or against it, to let him know and he'll see that he's discharged."
During the remainder of their conversation , which will be discussed subsequently in
considering alleged threats , Westfall indicated apprehension as to consequences if
the Union organized the employees.
Before proceeding to closely contested issues of fact and law as to this poll, it
should be pointed out that said poll must be viewed in relation to conduct , elsewhere
discussed herein , of an employer concerned about possible economic repercussions
if the Union were successful in organizing and should insist on union conditions.
Moreover , whatever advice was received as to how far it could go legally in resisting
organization , the Respondent 's brief , with commendable forthrightness, states:
Respondent has never denied that it has not favored the unionization of its
plant . In all honesty , it has tried to combat the unionization of said plant by
such methods as it thought were entirely proper and legal.
The Respondent , asserting in its brief that the General Counsel has "completely
failed to substantiate said charge ," essentially contends that Westfall's testimony
explains how mistaken assumptions on his part led to an erroneous explanation of
the poll inhis letter to the .Regional Director ; that McCarley "had absolutely nothing
to do" with the poll; and that "the Company should not be charged with the actions"
of an admittedly nonsupervisory employee "in taking the poll on his own."
In sharp contrast , the General Counsel's brief, stating that "the factual issue
regarding the poll is one of credibility " and distinguishing Board decisions in which
employee activity has been held not violative of the Act,12 essentially contends that
there are several inconsistencies inherent in the Respondent 's explanations and the
testimony of its witnesses ; that if Baohtal actually "was polling employees for his
n With respect to Bachtal 's insistence upon the completely self-contained nature of this
poll, it is noteworthy that, during subsequently discussed testimony about events related
to the discharge of Jackson , Bachtal referred to another night -shift employee , Frederick
Barnoske , Jr, as "this buddy," and Barnoske , in turn , referred to Bachtal as "my buddy."
"The General Counsel distinguishes Thomason Plywood Corporation , 109 NLRB 898, at
917 and 918 , and The Newton Company, 112 NLRB 465 , 474, in this way :
The Respondent herein received the information from the rank -and-file employee,
Bachtal , and the credible evidence established that the company initiated and directed
Bachtal 's activity of polling.
856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own benefit," he would not have "jeopardized his employment by alleging the com-
pany or his foreman was the instigator of the poll"; that the testimony of the General
Counsel's two employee witnesses has "a truer ring when considered in conjunction
with" Westfall's letter to the Regional Director; and that because the evidence as a
whole shows that Bachtal was acting as the Respondent's agent in taking the poll,
the Respondent thereby violated the Act.
After giving this complex problem painstaking consideration, I am persuaded that
the weight of the credible evidence, and the reasonable inferences to be drawn
from the record as a whole, tips the scales in favor of the General Counsel's position,
although the matter is not entirely free from doubt. This is so for many reasons,
the more cogent of which will now be noted.
To begin with, I am satisfied that the convincingly given testimony of employees
Powers and Holland accurately depicts the way in which Bachtal, who admittedly
went to every employee on the night shift, conducted the poll. Thus essentially
what Bachtal did was to ask each of the some 20 to 25 night-shift employees to sign
a ballot showing whether he was for or against the Union, representing to said
employees that their foreman or the Company wanted them to do so. In addition,
the testimony of President Westfall establishes that, the next morning, he received
said ballots, some of which were signed by employees.
As to Bachtal's insistence that his polling was a completely self-initiated and self-
contained project, not only was his testimony to that effect unconvincingly given,
but on its face it is improbable. If Bachtal had been motivated along lines which he
testified, there would have been no reason for keeping the results secret from other
employees, one of whom he characterized as his "buddy." And it is highly unlikely
that Bachtal, who must have known that Foreman McCarley had earlier ordered
an employee out of the plant who was trying to get union authorizations signed by
night-shift employees, would have engaged openly in such extensive activity on
company time and property, if Bachtal had not known that he had McCarley's
approval. Further, under all of the circumstances, it strains credulity to believe that
Bachtal would have told his fellow employees what he did, that McCarley or the
Company wanted them to indicate their preferences in the poll, if Bachtal had not
actually been proceeding according to McCarley's wishes. Moreover, that Bachtal
was acting for the Respondent in conducting this poll is further indicated by the
fact that the following morning, Westfall received, by means through which Mc-
Carley customarily communicated with his superiors on the day shift, the ballots
secured by Bachtal. And finally, the conversation about being threatened, which
Westfall had with employee Holland the day after the poll, strongly suggests that
Westfall received a fuller report of the poll than just a bunch of tickets stuffed
under his office door.
As to when the poll was conducted, everything duly weighed, I am convinced and
find that Bachtal conducted this poll on the night of April 4. The General Counsel's
brief places the poll as having been conducted on the night of April 5, after the
notice, next to be discussed, prohibiting union activity on company time and property,
had been posted on April 5, the date stipulated for the posting of said notice. It is
my opinion, however, that Westfall, in his letter to the Board, correctly placed the
poll before the posting of the notice, just as he correctly attributed the initiation of
the poll to "our night foreman." And I believe also that, as Westfall's letter puts
it, "upon hearing about it the next morning," it was decided to discontinue such
practices.
On all of the evidence, credibility being carefully considered,13 I infer and find
that, following the expression of anxiety about the Union by Superintendent Nash
during the meeting which he conducted in the plant on the afternoon of April 4, and
while Nash was engaged that evening in his discussion with Spence about the possi-
bility of Westfall closing the plant if the Union came in, Foreman McCarley, who
reports directly to Nash, had Bachtal conduct the poll of the night-shift employees;
that McCarley thereupon conveyed the results of said poll to his superiors on the
day shift; and that thereafter, said poll having shown no strength for the Union,
Respondent posted its notice of April 5, next discussed. Since McCarley admittedly
is the night-shift foreman, and a supervisor within the meaning of the Act, I find
that, in acting for McCarley, employee Bachtal was acting as an agent of the Re-
spondent, and that the Respondent hence is chargeable with the poll which Bachtal
conducted. Finally, I find that the General Counsel correctly distinguishes such
cases as those cited above, in footnote 12; that said poll cannot be excused by
11 McCarley's testimony as a whole about this poll was unconvincingly given, as was
that part of Westfall's testimony by which he attempted to explain purported errors con-
cerning the poll in his letter to the Board.
ADRIAN STEEL CO. 857
rationale based on Blue Flash; 14 and that by said poll, the Respondent interfered
with, restrained, and coerced its employees in the exercise of their rights, in violation
of Section 8(a)( I) of the Act.25
3. The notice posted on April 5, 1960
On April 5, the Respondent posted a notice on a bulletin board which employees
see every day, as it is located next to the Respondent's only timeclock. This notice,
which was signed "Adrian Steel," read as follows:
Employees will not be permitted to engage in organizational activities for or
against any labor organization on company time or property. Violators will
be subject to disciplinary action."
In his brief, the General Counsel contends that the foregoing notice, admittedly
posted by the Respondent on April 5, 1960, prohibits union solicitation on company
property by employees during nonworking time and that hence said notice "on its
face is presumptively illegal," under the decision of the Board in Walton Manu-
facturing.ie The General Counsel further contends that because the Respondent has
failed to show that there were any special circumstances necessitating the promulga-
tion of the rule contained in said notice, such as the maintenance of production or
discipline in its Adrian plant, the Respondent has violated Section 8 (a) (1) of the Act.
The Respondent's brief, stating that said notice was posted "in accordance with
instructions of one of respondent's attorneys," and indicating that "at about the time"
said notice was posted "there was considerable conflict in the prevailing cases relative
to this type of notice," admits that, while the Respondent "acted in good faith and
upon advice," the notice which it posted, "under prevailing decisions, would not
now be proper."
The Board's decision in Walton Manufacturing, relied on primarily by the General
Counsel, was issued on February 18, 1960.17 In determining, in said decision,
whether or not the respondent in that case had violated Section 8(a)(1) of the Act
"by promulgating a no-solicitation rule applicable to its employees, which was not
limited to their working time," the Board discussed three landmark decisions of the
Supreme Court of the United States 18 bearing on such rules, and interpreted said
decisions of the Supreme Court as establishing "rules of law with respect to em-
ployer no-solicitation rules." In my judgment, the following rule of law, the first
of three spelled out in the Walton Manufacturing decision, is controlling on the
issue now under consideration:
No-solicitation or no-distribution rules which prohibit union solicitation or dis-
tribution of union literature on company property by employees during their
non-working time are presumptively an unreasonable impediment to self-organ-
ization, and are therefore presumptively invalid both as to their promulgation
and enforcement; however, such rules may be validated by evidence that special
circumstances make the rule necessary in order to maintain production or dis-
cipline. [Citing cases in footnote 2 of said decision.]
On its face, the Respondent's notice promulgated a broad no-solicitation rule which
applies to company property at all times. Hence, since said rule prohibits union
solicitation on company property by employees during their nonworking time, it is
presumptively invalid, both as to its promulgation and its enforcement. Moreover,
no necessity for such a rule is suggested by the nature of the Respondent's operations,
14 See Blue Flash Express , Inc., 109 NLRB 591. Not only was there no legitimate pur-
pose herein which was communicated to the employees, but the employees were not assured
that no reprisal would take place. In addition, the polling herein did not occur against a
background free of employer hostility to the Union. Moreover, considering all of the cir-
cumstances in this case, it cannot be said that the polling of all of the night-shift em-
ployees constituted a form of interrogation which was isolated or free from restraining or
coercing effects.
15 Compare Venango Plastics, Inc., 119 NLRB 1318, 1320, cited by the General Counsel,
which differs in several respects in total context.
19 See Walton Manufacturing Company, 126 NLRB 697.
17 See also Johnston Lawn Hower Corporation, 110 NLRB 1955, cited by the General
Counsel, in which the Board held illegal what it called "a board no-solicitation rule be-
cause it applied on company property at all times."
>e Republic Aviation Corporation v. N.L.R.B., 324 U.S. 793; N.L.R.B. v. The Babcock &
Wilcox Company, 351 U.S. 105; and N.L.R.B. v. United Steelworkers of America, CIO
(Nutone Inc.), 357 U.S. 357.
858 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nor does the Respondent advance any special circumstances to justify said rule.
Accordingly, realizing that labor relations often involve problems as to which it is
difficult to keep abreast of the latest legal developments, I hold that, whatever may
have been the nature of the Respondent's intentions and the legal advice which it
received pertaining to the promulgation and posting of the rule in its notice of April
5, 1960, the Respondent, by said promulgation and posting, nevertheless interfered
with, restrained, and coerced its employees in the exercise of their rights in violation
of Section 8 (a) (1) of the Act.
4. The surveillance by Superintendent Nash
On April 11, 1960, the day of the last of the above-mentioned three meetings held
at the Union's hall in Adrian, Superintendent Nash was observed across the street
from the union hall by a number of employees of the Respondent who attended
that meeting.19
About 4:30 p.m. on April 11, a clear day, Nash arrived across the street from the
union hall. He thereupon stood for at least half an hour in the doorway of a "bowl-
ing alley [located] directly across the street from the union hall," approximately
75 feet from the doorway of the union hall, which is in a building with a glass front
through which employees observed Nash. Nash then went north up the street to a
point of about 150 to 200 feet from the union hall, where he stood for some 30 to
45 minutes "back between a stack of tires and the wall" of a shed then used as a
"Firestone tire changing shed." Employees of the Respondent, who observed Nash
during the above period of over an hour, discussed among themselves, his presence
across the street from the union hall.
It will be remembered that the Respondent's answer referred to Nash as "uninten-
tionally" observing employees entering a meeting place. In its answer, the Respond-
ent seems to admit that what it therein refers to as "the unauthorized surveillance
of the union meeting by one of its foremen" was an unfair labor practice, but points
out that while "Nash did observe one union meeting," there is "no testimony that
other activities were surveyed" or that such an act was "ever engaged in again by
the employer."
In his letter of May 23, 1960, to the Board, President Westfall had the following
to say as to the allegation of surveillance in the Union's charge:
We submit that we never maintained a surveillance of places where our em-
ployees met. We admit to watching the Union Hall on one occasion from a
vantage point conspicuous enough for the union to immediately call us and
inform us that they were quite aware of the presence and location of our agent.
We wish to emphasize that , at no time , was a list prepared of those attending;
and our only purpose was to determine the union 's numerical strength. Inas-
much as the term "surveillance" implies "cloak and dagger" techniques, we
object to the phraseology because our representative was evidently in plain
enough view of the union from the outset to be immediately recognized.
In my opinion, all factors of the case taken into consideration, the above-described
behavior of Nash cannot be considered unintentional, or unauthorized, or treated
as an isolated incident, but must be viewed as part of a course of conduct growing
out of the Respondent's desire to keep its employees from organizing. Further, such
conduct on the part of its plant superintendent cannot be justified by any such pur-
pose as that set out in Westfall's letter, and by its very nature interferes with, re-
strains, and coerces employees in exercising rights guaranteed by the Act. In short,
I am convinced and find that the Respondent is chargeable with the conduct of
Nash on April 11, and that such conduct constituted illegal surveillance, in viola-
tion of Section 8 (a) (1) of the Act.
5. Threats to close the plant
We come now to the allegation that about April 7, President Westfall threatened
to close the plant if the Union were successful in organizing. The Respondent's
answer, it will be remembered, explained that Westfall had advised employees that if
there were to be a strike, "the company' s major customer would undoubtedly with-
draw their business from the plant which could result in a shutdown." It will also
19 Three employees who were called as witnesses by the General Counsel, Lyle Cleghorn,
Lonnie Spence, and Douglas Jackson, credibly testified that they were among employees
who so observed Nash. The findings which follow as to what Nash did that day are made
principally upon testimony of Spence, who gave the most detailed account of this episode.
It will be remembered that Nash was not called as a witness.
ADRIAN STEEL CO. 859
be remembered that on the night of April 4 , Superintendent Nash , following the
meeting which he conducted of employees in the plant , told Lonnie Spence, among
other things explained more fully above in section III, B , 1, that Westfall had said
that if the Union got in he "would probably close the plant down " and make a
warehouse out of it.
From Westfall 's testimony it is evident that the information that the Respond-
ent's employees were being organized by the Union "came as a kind of a bolt out of
the blue" to Westfall , who felt that the employees "were making good money" and
that the majority of them "were very happy." It is also evident from Westfall's
testimony that beginning "almost immediately " after the Respondent found out about
the Union 's organizational activity , Westfall undertook to have all of the employees
called into his office so that he could talk to them about the situation ; that Westfall
did talk to "probably fifty to sixty employees " during a period of "a week to ten
days"; that he talked to most of the employees individually , although some em-
ployees were called into his office in groups of "probably six or eight "; that some
employees were interviewed more than once ; and that while there were "a few
cases where" Westfall talked to employees between shifts, most of the employees
were called into his office during their working hours. There is, however, sufficient
difference as to what was said during these discussions between the version of West-
fall and those given by four witnesses for the General Counsel that I deem it desir-
able to summarize the testimony in some detail . This is particularly so because the
issue of law involved as to where an employer's freedom of speech ends and coercive
threats to employees begin is a close one with respect to this series of interviews.
We begin with Westfall 's already partially discussed talk with Holland the day
after the poll had been taken of employees on the night shift ?o This is Holland's
version on direct -examination of what occurred on April 5 , after Westfall had told
Holland , who was the only employee present in the office , to let him know if anyone
threatened him "either for the union or against it." Westfall asked Holland, "How
do you feel about a union coming into the shop ?" Holland replied that he thought
they were "better off without a union ." Westfall then told Holland , "If a union does
come in here half of you guys is going to be looking for work because we cannot
pay union wages." Westfall also told Holland that should "the CIO union" tell him
that if the Company closed down they could place him in Stubnitz -Greene, he had
been over there that day and Stubnitz -Greene didn 't have "room to put their own
stock ." 21 In going "ahead on the subject ," Westfall told Holland that he "had
money enough that if a union did come in," he could close the plant and "make a
warehouse out of it ." Westfall eventually told Holland that their discussion was-
"strictly between" them, and that if it went outside the shop he would "swear that it
was a lie." On cross-examination, Holland testified , with respect to the general
nature of their discussion , that Westfall said that if the plant became unionized, the
Company might lose part of its Stubnitz-Greene business ; that if that happened,
"then there would not be as much employment as there had been in the past";
and that if the Company had .to pay the "regular union scale," it would not be able
to keep the same number of employees.
On April 7 , Superintendent Nash sent Lyle Cleghorn to Westfall 's office where,
with only Cleghorn and Westfall present, Westfall told Cleghorn about "the prices"
which the Company received on the seats it welded , and explained "how he wouldn't
possibly be able to afford a union should it come about in the shop ." Westfall also
asked Cleghorn if he had been threatened , and told him that if he should be to "let
him know and he would see that it was taken care of." 22
About April 10, Oscar Rodriguz , a day-shift employee, was called to Westfall's
office where , with only Westfall and Rodriguz present, Westfall told him , so far as
Rodriguz could recall , only that "if the union would come in that he'd probably lose
some production and have to lay some of the fellows off." 23
20 The first part of this conversation is presented about the middle of section III, B, 2,
hereinabove.
"For details as to the relationship between the Respondent and Stubnitz -Greene, from
which the Respondent gets most of its work , see the text in section I and at footnote 3,
hereinabove.
22 The above findings are made on credited testimony of Cleghorn on direct -examination ;
Cleghorn was not questioned as to this conversation during cross-examination
av Rodriguz could not recall any mention being made about closing down the plant, and
testified on cross-examination that the conversation was "solely as to the probability of a
loss of production resulting in lay -offs." It will be remembered that Rodriguz is the
employee Nash kept mentioning during his talk with Spence on April 4. See footnote 10,
above.
860 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On April 21, the day following the incident discussed in the next section of this
report which resulted in the discharge of Douglas Jackson, Wesley Powers, the
earlier-mentioned night-shift employee who had refused to participate in the poll
conducted on his shift some 21/2 weeks earlier, was sent to Westfall's office shortly
after 8 p.m. by Foreman McCarley. Only the two were present during the approxi-
mately 30-minute discussion which Westfall thereupon had with Powers. This is
Powers' credibly given version of what occurred. Westfall, who had some papers on
the table showing "the different prices of seats" which the Company welded for
Stubnitz-Greene, told Powers that he wanted to talk with him "man to man."
Asserting that some of the "fellows in the plant had figured that he was making twice
or triple on the seats what he actually was making," Westfall "took quite some time"
to discuss details as to his prices and profits "on the different seats" which the Re-
spondent was welding for Stubnitz-Greene. Westfall explained that, in view of the
"price he was getting for the seats," he could not meet union wage rates. Westfall
then "wondered how [Powers] felt about the union." Powers told Westfall about
"the raw deal" he had got from a CIO union in a foundry where he had once worked
and that he was hence not for the Union. Westfall then told Powers that if the
Union got into the plant, "no doubt he'd lose fifty percent of his production" from
Stubnitz-Greene and therefore would "have to lay off some of the employees." West-
fall also told Powers that he was not "trying to make [Powers'] mind up" for him;
that Powers was on his own; that it was up to him; and that if Powers "wanted to go
along with" the Union, Westfall "wasn't going to try to stop" Powers.
On May 12, employee Cleghorn had a second conversation with Westfall. As
had been true during their first conversation on April 7, Cleghorn and Westfall were
the only ones in the office during their second conversation, which started out
similarly to the first one. However, during this second conversation, Westfall also
said that he would not lose anything or be hurt "should the plant close down," be-
cause he would be in a position "to lease the plant and property to Stubnitz-Greene."
Westfall said that he knew he could lease the plant to that firm because it had been
giving the Respondent welding to do because Stubnitz-Greene "didn't have enough
room" in their plant to do that welding.
We come now to Westfall's version as to the content of his discussions with em-
ployees in his office. When asked, on direct examination by counsel for the Respond-
ent, what he had said to employee Cleghorn "relative to the closing of the plant,"
Westfall replied that he "actually didn't recall coming out and making a statement
that the plant is going to close if the union gets in." Westfall then proceeded to
"relate the best that I can recall" what he "told all of the employees." Westfall did
not thereafter differentiate as to any of the employees, and did not specifically deny
or discuss further the testimony of any of the foregoing witnesses for the General
Counsel. This is the essence of Westfall's version of his interviews.
Westfall started out by telling the employees that "they were making a very
momentous decision"; asking them if they were "interested in hearing both sides of
the issue"; and indicating that he would be "happy to present the company' s side."
Westfall then said that he was not sure "what the beef is all about," but that he
had heard rumors of a threatening nature to the effect that if employees "didn't go
along with the union such and such would happen to them," for example, that if one
"didn't sign a card," the Union would see to it that when it got into the plant, that
such a "fellow didn't have a job." Westfall also said that he thought that was
"against the law" and that the Union could not do that. In this connection, Westfall
stressed with all employees that the Respondent "would not tolerate any of our em-
ployees being threatened, either for or against the union." As to what could happen
"from an economic standpoint if the union came in," Westfall told employees that
the Company "could possibly lose fifty percent of our business or even more " He
explained that the Company was "the sole supplier" of Stubnitz-Greene, and that he
knew of no other firm in the automotive field that was "dependent on one supplier."
Westfall also told the employees that while the Company then had 100 percent of
Stubnitz-Greene's business, "I'm sure that if we do have a union shop that we're
going to lose fifty percent of our business." Westfall further said that if the Company
did lose 50 percent of its business, it would have three alternatives:
We would either have to automate the work somehow, or farm it out if it was
possible, or get out of it entirely because this company could not operate unless
it made a profit.
At some point during the discussion, Westfall also pointed out that the Respondent
does not "operate under a standard," but rather under "a break-even point," which
is arrived at by relating costs and selling price to determine how many frames "per
hour a man has to have to break even."
ADRIAN STEEL CO. 861
Westfall, whom I am satisfied was concerned about possible economic repercus-
sions on the Respondent's business if the Union was successful in organizing its em-
ployees, gave the above-summarized testimony as to the nature of his talks with
employees in a manner more convincing than his testimony on some other matters.
But I am convinced that Westfall, who did not claim that he read a statement or
followed notes in giving a set talk to each employee, must have varied his discussion
considerably from employee to employee, depending on such factors as the amount
of time at his disposal, how well he knew the particular employee, and the sort of
response he was getting. Also as the shock of learning about the Union's activity,
which was undoubtedly reflected in what Superintendent Nash had to tell employee
Spence on the evening of April 4, wore off somewhat, and probably as legal advice
was assimilated, Westfall's initial reaction may have in most cases become more
guarded.
In any event, it may well be that Westfall's talk with most of the employees, while
not actually following the prototype presented in his testimony, constituted permis-
sible expression of views, argument, and opinion, along the lines Westfall testified.
I am persuaded, however, that the four witnesses for the General Counsel presented
accurate examples of variations in what Westfall had to say on some occasions.
Moreover, granted that during these interviews, Westfall explained the Respondent's
determination that its employees should be free from threats either for or against the
Union, as the testimony as a whole shows, and assuming that much of Westfall's
economic discussion was protected by Section 8(c) of the Act, I am convinced and
find, under all of the circumstances of this case, that at least on the occasions of
the above-detailed interviews of April 5 with employee Holland and of May 12
with employee Cleghorn, what Westfall had to say, considered in total context, was
tantamount to threatening to close the plant if the Union were successful in its or-
ganizational drive, and hence, under a preponderance of Board decisions in this
quite complicated field, violative of Section 8(a) (1) of the Act.24
C. The discharge of Douglas Jackson
1. Chronology of undisputed facts
The evidence as to Jackson's discharge, which the complaint alleges as discrimina-
tory and the answer states was because Jackson used vile and abusive language to-
ward a fellow employee whom he threatened while on company property, is partly
undisputed and partly highly contradictory. We will proceed to establish a frame of
reference by first presenting the undisputed evidence chronologically.
Douglas Jackson, who started working for the Respondent on December 2, 1957,
attended all three of the above-mentioned meetings of the Union and was one of
the employees who signed an application for membership in the Union at the first
meeting on March 28, 1960. On the afternoon of April 20, during the half-hour
break between the shifts, while the first shift, upon which Jackson worked, was leav-
ing the plant and the second-shift employees were entering it, Jackson asked a second-
shift employee to attend a meeting the following Saturday afternoon which the Union
had scheduled in order to make it possible for second-shift employees to be
present.25 While the evidence is sharply in conflict as to what thereupon transpired,
it is clear that Jackson had checked out at the time that he asked the second-shift
employee, Donald Stubli, to come to the meeting. And it is equally clear that
Stubli's shift had not started work. So whatever altercation may have taken place
between Jackson and Stubli following Jackson's invitation to attend the meeting, it
26 See, for instance , B.M C. Manufacturing Corporation , 113 NLRB 823, 824. Also, com-
pare Plum Creek Logging Company, Inc, 113 NLRB 800, 806, 813; and New England
Upholstery Co., Inc, 121 NLRB 234, 236. While the Respondent's brief takes the position
that "no categorical threat to close the plant if the union were successful was made by
Mr. Westfall," the brief also admits that "such conversations could be interpreted as a
threat," depending on the Trial Examiner's "interpretation of such testimony." It should
be noted that the General Counsel's brief, under the heading "Threats to close the plant,"
refers to "interrogations" by Westfall, and other types of threats by Westfall, such as
leasing the plant and having to lay off employees. All such matters have been given
careful attention While there is evidence suggesting that interrogation within the
meaning of Blue Flash may have taken place, interrogation, which was alleged in the
Union's charge, was not alleged in the complaint, and I do not feel that such an issue can
fairly be said to have been litigated. For similar reasons, I do not pass on other types
of threats not alleged to have been made by Westfall.
25Previous meetings had been held earlier in the week at times when the second shift
was working.
862 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
is established without dispute that this crucial occurrence took place between the
shifts on company property, but not on working time.
On Wednesday, April 20, sometime after Jackson had extended an invitation to
Stubli to attend the union meeting scheduled for Saturday afternoon, April 23, word
of what transpired between them reached Westfall in some manner not shown by the
record.26 In any event, Westfall called Stubli and three other second-shift employees,
Dewey Frayer, Leo Bachtal, and Frederick Barnoske, Jr., into his office, where he
asked Stubli "if he had been threatened" and the other employees "if they had
witnessed it." It would appear that Westfall then also wrote out in longhand one
statement which Stubli signed, and another statement which was signed jointly by
the other three employees 27 Having thus interviewed the four employees, Westfall
then discussed the matter with Vice President Tavierne and Superintendent Nash.
It was thereupon decided among them, on April 20, without according Jackson, who
had already left the plant, any opportunity to tell his side of the story, to discharge
Jackson.28 Thereafter "that evening" Nash telephoned Jackson and "told him he
was discharged."
The only version in the record of the telephone call by which Nash conveyed the
decision of the Respondent's top management to terminate the services of one of its
old employees without hearing his story was credibly given by Jackson. This is the
gist of it, largely in Jackson's own words. Nash opened the conversation by saying,
"This is Gilbert Nash of Adrian Steel. I've called you up to save you any embarrass-
ment. You're no longer with us. Bob Westfall has pulled your card." Jackson asked
Nash "what for," and Nash replied, "For union activity on company property."
Jackson then asked, "When was this supposed to be?" Nash said, "Well, never mind.
We've got the information." Jackson asked if he could get it in writing and Nash
replied in the affirmative. Jackson then said that he would be "over tomorrow to
pick up [his] tools if that was all right," and told Nash that he was making a mis-
take." Nash said, "Well, if we have, it's made."
The following morning, April 21, Jackson went to the plant about 7:30, where he
saw Tavierne and told him that he had come for his "tools and a slip." Tavierne
told Jackson that he could get his tools, but that as far as the slip was concerned,
he knew nothing about it, and that Jackson would have to see Westfall, who would
be back an hour or so later. Jackson returned later that morning, around 8:30 or
9 o'clock, and found both Tavierne and Westfall "sitting in the office." He told
Tavierne that he had come back for a slip. Tavierne said that they had to "send it
to the unemployment office" and that Jackson would have to get it there. Jackson
asked for his check and was told that he would get it in the mail." 29
Sometime on April 21, 1960, typed statements bearing that date were "subscribed
and sworn to before" Tavierne, who is a Notary Public.
Two such statements are in evidence, one being a two-paragraph statement bear-
ing the signature of Stubli, and the other a single-paragraph document bearing the
signatures of Bachtal, Frayer, and Barnoske. The statement signed by Stubli indi-
vidually, in addition to explaining why he decided to report the incident, describes
"an incident which took place on April 20, 1960, just before the beginning of the
second shift on the Adrian Steel Company premises" in the following language:
Douglas Jackson tried to force me into attending a union meeting under the
penalty of a physical beating or other reprisals if I refused or didn't show up to
the union meeting when next held.
2OWestfall testified that he could not recall how he got the information and could not
"even give you the time." Quotations which follow in the above paragraph are all from
Westfall's testimony.
2T As subsequently appears herein, these statements were thereafter typed up and signed
again the next day before a notary. The finding that the preliminary statements were
written in longhand is made upon testimony of Westfall. In connection with these state-
ments, it is noteworthy that Frayer's testimony shows that he did not swear to the first
statement which he signed in the office, and that he later signed a typed statement of
which there were three copies.
Is Westfall testified that the decision which he, Tavierne, and Nash reached was "par-
ticularly painful to us because Doug Jackson was one of our old employees," and also
that having "got the information like" he had, he had "no alternative but to get rid
of Jackson."
2 The findings as to these two visits to the office are made on credited testimony of
Jackson, the only testimony as to said visits. There is nothing to indicate that either
Tavierne or Westfall asked Jackson anything about his conduct the day before, or made
any explanation of the Respondent's reasons for his discharge.
ADRIAN STEEL CO. - 863
The second statement , subscribed and sworn to by the other three employees who had
been questioned the preceding day in Westfall's office, reads as follows:
The following employees of the Adrian Steel Company were present and heard
the conversation between Donald Stubli and Douglas Jackson which took place
on the premises of the Adrian Steel Company just before the second shift on
April 20, 1960, whereby Douglas Jackson threatened Donald Stubli with a
physical beating or other reprisals if Donald Stubli didn't attend the next union
meeting.
There are no further details as to the time, place, or nature of the event in either
of the signed statements , the only statements of their type ever secured by the Re-
spondent in connection with discharging an employee.
On April 27, 1960, the Michigan Employment Security Commission, herein called
the Commission, mailed to the Respondent , with respect to Douglas Jackson, a form
entitled, "Request to Employer for Wage and Separation Information ." On May 2,
the Respondent returned said form , with the following typed in the space provided
for any statement by an employer believing that the claimant should be disqualified
or is not eligible for benefits:
Discharged for disobedience to company orders by engaging in union activity
on company premises and for reason of using threats and abusive language
towards other employees while so doing.
During the first week in May, Tavierne sent employee Spence into Westfall's office
where, during a brief conversation , Westfall told Spence that he knew that Spence
was "still talking union on company property," and that if he did not stop it he
"would be fired." Westfall then reminded Spence "of the notice that had been put
on the bulletin board," and said, "You read the notice , didn't you?" Spence replied,
"Yes, sir." Westfall's remarks , during which another individual , identified only as
"Big Jim," was present , pertained only to company property; he did not contend that
Spence was engaging in union activity during working time.30
On May 12, the commission sent the Respondent a second form , entitled "Request
for Information Relative to the Possible Ineligibility or Disqualification of a Claim-
ant." This form recited that Jackson claimed that after he had rung out, he had
asked "a fellow employee to come to a Union Meeting on April 23rd at the Union
Hall," and that in doing so, he had "not threatened anyone" or used "any abusive
language." With respect to a request for information to assist the commission in
making a proper determination , the Respondent , returning said form on May 19,
inserted, in a space provided for "Reason for Separation," the following paragraph:
Contrary to a posted notice Douglas Jackson was discharged for engaging in
union activity on company premises , and for using threats and abusive language
towards our employees . Further we have affidavit from several employees to
substantiate our reasons for dismissal.
In the above-mentioned letter of May 23, 1960, which President Westfall wrote to
the Board with respect to the allegations in the Union's charge, Westfall had this to
say about the discharge of Jackson:
Contrary to our posted notice, Douglas Jackson not only engaged in union
activities on company property, but he did so in a threatening manner. We have
affidavits from several employees to substantiate these reasons for his dismissal.
2. The basic contentions of the parties as to Jackson 's discharge
In my opinion , it will help to clarify and to expedite matters if the basic conten-
tions of the parties in their respective briefs as to Jackson 's discharge are presented
before we turn to what the General Counsel 's brief appropriately characterizes as
"a maze of conflict and contradiction " in the testimony of six witnesses , two for
the General Counsel and four for the Respondent , as to what occurred between
Jackson and Stubli on the afternoon of April 20 . In doing this , we will, in order
better to focus attention , omit some of the details and all of the citations.
The General Counsel 's primary contention is that Jackson was discharged "because
he had engaged in union activities on the company premises contrary to the Re-
8' Findings in the above paragraph are made on unoontradicted and credited testimony
of Spence . There is no allegation in the complaint that Westfall 's threat of discharge
for union activity on company property on said occasion violated Section 8(a) (1) of the
Act. Accordingly , no such finding is made But compare New England Upholstery Co.,
Inc., 121 NLRB 234, 235 , particularly footnote 3.
864 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's illegally posted notice." The General Counsel additionally contends that
Jackson did not "threaten a fellow-employee" or use toward him "vile, abusive and
threatening language." The General Counsel alternatively states that should the
Trial Examiner find that Jackson actually used "said language as testified to" by
witnesses for the Respondent, that said language does not constitute "a threat, but is
the everyday `shop talk' used by the employees, and hence was not unprotected."
The General Counsel also contends that even if the Respondent acted on a good-faith
belief that Jackson threatened Stubli, the Respondent's good faith in so believing
would not be controlling because the evidence conclusively shows that "no threat
was involved."
This is the gist of the Respondent's position. While it is true that Nash told
Jackson that he "was fired because of his disobedience to the posted notice relative
to union activity," that was not "the main purpose for which Mr. Jackson was dis-
charged." Westfall had made it clear in his talks with employees that "he would not
tolerate any employee being threatened," either for or against the Union. For
employees had advised Westfall that "threats had been made against" Stubli by
Jackson, and the commission had been advised that Jackson was discharged for
"engaging in union activities and using threats and abusive language toward other
employees." The "predominating reason" for the discharge "was these commu-
nicated threats and abusive language." And "whether or not such language was
used or threats made," the Respondent had a right to discharge Jackson "as long as
the company honestly felt that such" had occurred. Despite the fact that "in factories
profane language is often used," the language herein involved "creates a disturbance
and is not the normal language of the shop." Hence, having believed that "such
language might have been used under the circumstances" testified to by witnesses
for the Respondent, no finding of violation of Section 8(a) (3) of the Act is warranted,
unless it is concluded that "the sole reason for firing Douglas Jackson was union
activity," because where the terms of employment are not fixed by any contractual
relationship, an employer has the right to discharge at his pleasure.
3. The conflicting evidence as to the Jackson-Stubli conversations and conclusions
pertaining thereto
With the foregoing contentions in mind, we turn to the "maze of conflict and
contradiction" in the evidence as to what transpired between Jackson and Stubli.
Since, as has earlier been noted, everything material occurred on company property
between shifts on nonworking-time, variations as to details as to time and place will
not be stressed, although it should be noted that painstaking analysis of all such
details shows essential consistency in such respects throughout the testimony of the
two witnesses for the General Counsel, Jackson and Spence, in contrast to that of the
Respondent's four witnesses, Stubli, Frayer, Bachtal, and Barnoske, the four em-
ployes signing the above-discussed statements dated April 21. Nor will any attempt
be made to present fully testimony as to facial expression, tone of voice, or personal
appraisal of the meaning of what was said, although all such matters have been duly
weighed. Further, I do not deem it necessary to protract this report by detailing
all of the variations and inconsistencies in the dozens of pages of testimony as to
what was said. I believe that it will suffice to epitomize, for the most part, the
testimony of each of the six witnesses on this crucial issue 3! We will start with the
testimony of the General Counsel's two witnesess.
This is Jackson's version of what occurred. Having washed up and checked out,
Jackson met Stubli "just inside the plant, right in the hallway on the aisle," as Jackson
was "going out and [Stubli] was coming in." During a brief conversation which
took some 15 seconds, Jackson, who had been asked by Union Representative
Chapman to invite second-shift employees to the special meeting scheduled for their
convenience, asked Stubli to come to it. Stubli said that he had "heard that was all
through" as there had been "only seven fellows that signed union cards." Jackson
told Stubli, "Well, you got the wrong information. You should come down and find
out about it." With that, Jackson went on "but through the back door" of the plant,
which opens onto a parking lot used by the employees. Stubli followed Jackson
through the door and "just outside the door," at a point some 20 feet from Jackson's
car, a somewhat longer conversation took place, during almost all of which Spence
was standing some 3 or 4 feet from Jackson. Jackson again invited Stubli to attend
the meeting. Stubli answered, "We don't want no union in here," and again said
that the Union "didn't have enough fellows to sign up." So Jackson reiterated that
Stubli "had the wrong information, that he should come down and find out about
$ Much of what has been said above, in footnote 2, has particular reference to matters
now under consideration.
ADRIAN STEEL CO. 865
it." Stubli again said, "We don't want no union in here," and told Jackson that if he
came "down here on the second shift" to organize for the Union. "We'll break your
neck." Jackson told Stubli that he believed "in the cigarette commercial, that every
man should think for himself," and added, "I don't care if you tell your foreman
what I said." Stubli thereupon returned to the plant through the back door while
Jackson and a few other employees "stood there and talked a little bit."
Jackson's testimony as to the locale and the content of these two conversations is
consistent. Jackson testified that the first conversation did not take place near the
timeclock; that Stubli was not sitting on "a pop cooler"; and that the second conversa-
tion did not take place near any of the cars. Jackson unequivocally denied, on cross-
examination, that he had "used any profane language" in speaking to Stubli; that he
had called Stubli a "SOB or anything like that"; and that he had told Stubli that "he
had better attend the union meeting or else."
This is the substance of the testimony on this matter given by Lonnie Spence 32
After punching out on April 20, Spence, who had not heard the conversation inside
of the plant between Jackson and Stubli, walked out of the back door of the plant
"just a few seconds behind" Jackson. In the parking lot just outside the back door
Spence found Jackson and Stubli in conversation. He stood only a few feet from
them and heard this exchange. Jackson said, "Don, why don't you come down to
the union meeting and see what's going on." Stubli told Jackson that "the Union
was out" because it had got only "six or seven men to sign cards." Jackson replied
that Stubli had "the wrong information," and said, "Why don't you think for your-
self like the cigarette commercial instead of letting others think for you." Stubli
told Jackson, "If you come down here on the night shift and try to organize we will
break your neck."
It is noteworthy that all of Spence's testimony as to what was said between
Jackson and Stubli was brought out, step by step, during cross-examination by
counsel for the Respondent, and that following the foregoing testimony, which was
given in a convincing manner, Spence, who preceded Jackson as a witness for the
General Counsel, unhesitatingly admitted that Jackson "is quite a bit larger" than
Stubli and that Stubli is a "very nervous" individual, characterizations which were
later confirmed by my own observation of Jackson and Stubli as witnesses.
We come now to the testimony of the Respondent's four witnesses, which con-
tains language attributed to Jackson which is variously referred to in the briefs
by such words as threatening, profane, abusive, and vile, and also by such phrases
as somewhat degrading, somewhat crude, everyday shop talk, not the normal
language of the shop, and a figure of speech. Where the question of the language
actually used is so central to the contentions of the parties, it is of little help to use
such characterizations as the foregoing. Hence, realizing, as do the courts and
the Board, that in dealing with some problems in the field of labor relations.
language used is not always selected with an eye to parlor niceties, I have decided
that the issues posed in this case can be squarely met only if the actual language
attributed by the Respondent's witnesses to Jackson is presented.
The testimony of Donald Stubli, without shelling out variations, comes down
essentially to this. The conversation of April 20 went through three phases at
three different places. The first phase took place rieht "by the timeclock." some 200
or 300 feet from the back door, while Stubli was "sitting on the pop cooler killing
time" before punching in for the second shift. Jackson was standing beside him at
the drinking fountain. Jackson asked Stubli if he "wanted to go to the union
meeting." Stubli said that he did not want to go and that the Union was "all over
with." Jackson said that it was not. Stubli said that at most the Union had signed
up only three to six men and that he wanted "nothing to do with the Union."
Jackson then asked Stubli, "Who's your mouthpiece, Jim McCarley?" Stubli
said, "No," that he had "enough backbone to stand no for" himself. Jackson's
retort was, "Well, be like the cigarette commercial. Think for Yourself. What's
the matter, you're a chicken-shit son-of-a-hitch, are vou?" Thereupon Stnhli "lust
gritted" his teeth and doubled up his fists, but held himself down and said, "Call it
what you want to. That's it. I'm not going." Thereafter Stubli got up to go
to get something out of his car. As he walked out the back door, Jackson said,
"Are you going to come tomorrow?" Stubli replied- "No." Stubli then went on
over to his car "in the middle of the parking lot." Lot his "stuff out of the car." and
was shutting his trunk when Jackson came up to him and told him, "You'd better
be there or else." Stubli. who "didn't know how to take it at all," just "stuck [hisr
nose up and walked away."
32 See footnote 4, hereinabove.
597254-61-vol. 130-56
:866 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Stubli also testified that it was only during the first phase of their conversation
at the pop cooler that Jackson had said anything which he considered objectionable;
that he did not say anything during their conversation to Jackson "about breaking
his neck or anything like that"; and that Jackson is "a pretty big boy" who is
able to "take care of himself."
Dewey Frayer testified that on April 20, he noticed Jackson and Stubli talking to
each other at the pop cooler "probably a couple hundred feet" from the back
door; that he thereupon "hesitated for a few seconds and listened to the con-
versation" between them; that he heard Jackson say to Stubli that Stubli "had
better be to the meeting . . . tomorrow . . . or else," 33 that he did not "hear
any profane language used"; that Jackson's "face was very stern and his voice was
gruff"; and that the foregoing was "the only part" of the conversation that he had
heard , because he then "walked on into the cage and started getting" out his helmet
to go to work.
The remaining two witnesses for the Respondent testified only as to what they
heard Jackson and Stubli saying to each other in the parking lot. Leo Bachtal, who
had taken the above-discussed poll of second-shift employees on April 4, testified
that he and his "buddy," Barnoske, got to the plant early that afternoon and, after
talking for a while in the shop, returned to "the parking lot by way of the back
door" to get something out of their car. On direct examination , Bachtal first testi-
fied that, having got what they wanted, he and Barnoske were standing "at the
front of the car there just talking" when Jackson, who was about 15 feet from the
back door and 10 or 15 feet from where Stubli was standing at his car, called
Stubli "a chicken-shit bastard and told him to be at the union meeting Saturday
morning or else." Asked then by counsel for the Respondent if there was any other
conversation at that time, Stubli said that he would "repeat and start at the be-
ginning." Stubli then testified:
Doug Jackson said that he was a chicken-shit bastard and that McCarley did
all of his thinking for him; and Don says, "Nobody does my thinking. I do my
own thinking."
Having given the foregoing version, which includes nothing about being at the
meeting "or else," Bachtal testified that, as far as he knew, the foregoing was the full
extent of the conversation.
On cross-examination, Bachtal testified, among other things, that where he and
Barnoske were standing "next to Fred's car" was 30 or 40 feet away from Stubli
and Jackson; that Stubli and Jackson were "both talking pretty loud"; that Stubli
"was actually never in [Jackson's] presence"; that Stubli was "pretty well shook
up at the names" Jackson was calling him; that Stubli "shrugged his shoulders and
got pretty red in the face and walked into the building"; and that Stubli "was trying
to control himself" and gave "a shit -ass grin toward Doug."
We come now to what Frederick Barnoske, Jr., testified happened on April 20
in the parking lot. Barnoske and his "buddy" (Bachtal) had "just pulled in the
parking lot." Jackson and Spence were "about two or three car lengths from us
by their car." And Stubli was "at his car getting something out of it." Under
these circumstances, Barnoske overheard a conversation between Jackson and
Stubli when he was some 45 feet from them. This is Barnoske's version of the
conversation, as restated toward the close of his testimony: 34 -
Doug told Don that he'd better be to the union meeting or else and that if he
didn't show up he was just chicken-shit; and Don didn't say anything. Then
Doug said, "Is McCarley your mouthpiece?" And Don said he didn't need
anybody to speak for him, that he'd talk for himself. And then Doug says,
"Well, you're just chicken-shit if you don't show up." And he said, "You'd
better be there or else."
To present a full analysis of this confused, conflicting, and contradictory testi-
mony would too greatly protract this report. Of the Respondent's four witnesses,
I was least favorably impressed with Bachtal and Stubli, and more favorably im-
pressed with Barnoske. But I was most favorably impressed with Spence of all
six witnesses , and Jackson also impresses me as being essentially truthful . Having
given the foregoing testimony , and numerous other details in the record , repeated
sa The meeting was actually scheduled for 3 days later, on April 23 It will be remem-
bered that the above type of remark was not attributed to Jackson by Stubli until they
were at Stubli's car in the middle of the parking lot.
84 Barnoske testified on the second day of the hearing . He had not been present when
the other five witnesses had given their versions. There is no inconsistency between the
quoted version as to what was said, and that given by Barnoske on direct examination.
ADRIAN STEEL CO. 867
and close scrutiny , I am convinced , for reasons which will partially be stated as we
proceed, that this is essentially what occurred
The initial conversation took place, essentially as testified to by Jackson, when
Jackson casually met Stubli as he was leaving the plant and Stubli was entering it.
During a brief exchange, Jackson extended an invitation to the Saturday meeting
of the Union; Stubli indicated that he understood that the Union was through
because only a few men had signed cards; and Jackson told Stubli that his infor-
mation was wrong and suggested that he come to the meeting to find out. It will be
remembered that, except as to place, there was no support in Frayer's testimony of
Stubli's version of this initial conversation, and I am satisfied, on all of the evidence,
that no implied threat occurred, as Frayer's testimony indicates, and that no name
calling occurred, as Stubli testified. Thus we arrive in the parking lot without any-
thing other than innocuous union activity on company property, namely a very
brief conversation, during which Jackson invited Stubli to a union meeting and dis-
agreed with Stubli that the Union was "all through."
As to what happened outside the plant, in sharp contrast with the version of
Stubli, which breaks the parking lot exchange into two very brief phases, the versions
of Jackson, Spence, Bachtal, and Barnoske all picture a single parking lot con-
versation , more extensive in nature . I am persuaded that there was just one such
exchange in the parking lot. Moreover, everything considered, I am convinced that
this occurred near the back door, and took approximately the form given in the
essentiailly consistent testimony of Jackson and Spence, with the possible exception
that Jackson, after referring to cigarette commercials about thinking for oneself,
may have strongly implied, or even possibly have said, that if Stubli did not have
courage enough to come to the next meeting to find out about the Union for him-
self, she would feel that Stubli was "chicken-shit," a figure of speech meaning
cowardly, in shop language. But even if, as Barnoske testified, such a term was
used by Jackson, I am satisfied that no other words to which objection could be
taken were used in connection therewith, and that the only possible "threat" in-
volved in what Jackson said to Stubli was not one of physical harm, but only that
Stubli had better come to the meeting "or else" Jackson would think of him as
cowardly. Moreover, if the term indicated in Barnoske's testimony actually was
used, its use occurred outside the plant, and it could scarcely have had any bearing
on plant morale or discipline. In addition, said term can scarcely be considered
other than mere shop parlance in the plant here involved, in which no women are
employed, and in which the evidence as a whole convinces me that such language
was not uncommon. Moreover, I believe that about the end of the parking lot con-
versation, Stubli told Jackson, as Jackson and Spence both testified, that if he
came down on the night shift to try to organize, "We will break your neck." In view
of the fact that Stubli must have known that the Respondent strongly opposed the
Union, and that there was little or no support for the Union among second-shift em-
ployees, I find nothing inconsistent or improbable in a smaller but high -strung
youth threatening an older but larger man as to what "we," thus obviously including
his night-shift buddies, would do if Jackson tried to organize them.
In short, on the record as a whole considered with great care, I conclude and find
that Jackson's remarks on April 20 to Stubli involved no threat whatsoever of
,physical harm at any time during the conversation, and that, at most, Jackson may
have used, during the parking lot part of the conversation in telling Stubli what he
would think of him if Stubli did not have sufficient courage to attend the union meet-
ing, some shop vernacular which does not render his concerted activity unprotected.
4. Conclusions at to Jackson's discharge
The conclusions as to what occurred on April 20, which have just been set out,
so clearly dispose of many of the earlier-stated contentions of the parties that I see
no reason for recapitulating such contentions. It has earlier been found that the
'Respondent illegally attempted to prevent union activity on company property
during nonworking-time by the rule which it promulgated and posted on April 5,
1960. Hence, under above-made findings, whatever the Respondent honestly may
have believed, as to its rule, on the one hand, or as to Jackson's conduct, on the other,
Jackson patently was discharged for engaging in what actually was protected union
activity on company property.
In my considered judgment, what now remains for determination is only whether
or not, under the Act, a good faith belief on the Respondent's part that Jackson used
"threats and abusive language," white engaging in union activity in disobedience of
the posted notice, can justify Jackson's discharge. There are several elements in
the case at bar, not the least of which is that Nash, in his terminal interview, told
Jackson only that he was being discharged for union activity on company property,
868 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
which suggest that some of the Respondent's defense is merely afterthought. I do,
not, however, deem it necessary to determine whether or not the Respondent actually
had such a good-faith belief as it contends as to Jackson's conduct.
This is so because, after consideration of all of the cases cited in the briefs, I am
convinced that the holding of the Board in its Hill & Hill decision, cited by the Gen-
eral Counsel, is controlling 35 In that decision, the Board assumed that if the
threats in issue therein had been made, said threats "would have justified the dis-
charge," and that "the Respondent honestly believed" that such threats had been
made. The Board, however, came to the following conclusion, which is squarely
in point in the instant matter:
Even so, as we find, upon the entire record, that threats actually were not made,
it is immaterial that the Respondent acted on a good-faith belief that they were
made. Accordingly, we find that Respondent discharged Knipe for engaging
in protected concerted activities... .
On the authority of the foregoing case, which is in line with long-standing Board
precedent,36 1 conclude and find that the Respondent discharged Douglas Jackson,
effective April 21, 1960, because Jackson engaged in protected concerted activities,
and that by so doing the Respondent violated Section 8(a)(3) and (1) of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Having found that the Respondent discriminated against Douglas Jackson with
respect to his hire and tenure of employment, I will recommend that it offer him
immediate and full reinstatement to his former or substantially equivalent position,
without prejudice to his seniority or other rights and privileges. 1 will also recom-
mend that the Respondent make Jackson whole for any loss of earnings he may have
suffered because of the discrimination against him, by payment to him of a sum of
money equal to the amount which be normally would have earned as wages, from
the date of the discharge to the date of the offer of reinstatement, less his net earn-
ings during said period, such backpay to be computed on a quarterly basis in the
manner established by the Board in F. W. Woolworth Company, 90 NLRB 289,
292-294. It will also be recommended that Respondent make available to the
Board, upon request, payroll and other records to facilitate the determination of the
amount due under the foregoing recommended remedy.
As the unfair labor practices herein found are of the type which strike at the very
roots of employee rights safeguarded under the Act, it wall also be recommended that
the Respondent cease and desist from interfering in any manner with the exercise
by its employees of rights guaranteed in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
case, I make the following:
CONCLUSIONS OF LAW
1. Adrian Steel Co. is engaged in commerce within the meaning of Section 2(6)
and (7) of the Act.
2. International Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, UAW-AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act.
3. By discharging Douglas Jackson, the Respondent has engaged in and is engag-
ing in unfair labor practices within the meaning of Section 8(a)(3) of the Act.
4. By the foregoing conduct, and by taking a poll of employees concerning their
union desires, by promulgating and posting a rule against organizational activity on
company premises during nonworking time, by threatening and admonishing its
employees that the Respondent's plant would be closed down if the Union success-
fully organized them, and by engaging in surveillance of the meeting place and a
15 See Hill ct Hill Truck Line, Inc., 120 NLRB 101, 102.
30 See, for Instance, Mid-Continent Petroleum Corporation, 54 NLRB 912, 933.
STOKELY-BORDO 869
meeting of the Union , the Respondent has interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed in Section 7 of the Act, and has thereby
engaged in and is engaging in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
6. The Respondent has not engaged in unfair labor practices within the meaning
,of Section 8(a) (1) of the Act, by threatening , through Gilbert Nash, loss of overtime
work if the Union were successful in organizing its employees.
[Recommendations omitted from publication.]
Stokely-Van Camp , Inc. and Bordo Products Co., d/b/a Stokely-
Bordo and International Chemical Workers Union and/or its
Local No. 666 , AFL-CIO and Citrus, Cannery, Food Process-
ing and Allied Workers, Drivers, Warehousemen and Helpers
Local Union No. 60, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America , Charging
Party. Cases Nos. 12-CA-906 and 12-CB-279. February 08,1961
DECISION AND ORDER
On February 11, 1960, Trial Examiner Lee J. Best issued his Inter-
mediate Report in the above-entitled proceeding, finding that the
Respondents had engaged in and were engaging in certain unfair
labor practices and recommending that they cease and desist there-
from and take certain affirmative action, as set forth in the copy of the
Intermediate Report attached hereto. Thereafter, the Respondents
filed exceptions to the Intermediate Report, together with supporting
briefs, and the General Counsel filed a brief in support of the Inter-
mediate Report.
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 this proceeding, and finds merit in certain of the Respondents' ex-
ceptions. Accordingly, the Board adopts the findings, conclusions,
and recommendations of the Trial Examiner with the following
modifications :
The Respondent Employer is a processor and freezer of citrus fruits.
During the period under discussion, it employed at its Haines City,
IIn their briefs , the Respondents requested that the Board reject the Intermediate
Report and order a new hearing, or in the alternative , decide the case de novo, on the
ground that the Trial Examiner considered posthearing evidence , supplied at his request
by the Regional Director of the Twelfth Region, over the objections of the Respondents.
The evidence referred to by the Respondents does not appear in the Board files , nor is its
substance revealed by the Respondents . Moreover , the Intermediate Report makes no
reference to any material not found in the record. In these circumstances, it is clear that
none of the parties were prejudiced by the Trial Examiner 's action, and accordingly, the
Respondents ' requests are denied.
130 NLRB No. 84.