Aeronca Manufacturing Corp.

National Labor Relations Board - Board Decisions

Jul 3, 1957

118 N.L.R.B. 461 (N.L.R.B. 1957)

AERONCA MANUFACTURING CORPORATION 461
Aeronca Manufacturing Corporation and International Union,
United Automobile, Aircraft and Agricultural Implement
Workers of America (UAW-AFL-CIO). Case No. 9-RC-2586.
July 3,1957
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Direction of Election issued on Decem-
ber 28, 1955,1 an election by secret ballot was conducted on January
18, 1956, under the direction and supervision of the Regional Director
for the Ninth Region, among the employees in the unit found ap-
propriate by the Board. Following the election, the parties were
furnished a tally of ballots. The tally shows that of approximately
1,200 eligible voters, 1,176 cast valid ballots, of which 457 were cast
for the Petitioner, and 705 were cast for the Intervenor, Aeronca Inde-
pendent Union.
On January 23, 1956, the Petitioner filed timely objections to con-
duct affecting the results of the election. In accordance with the Rules
and Regulations of the Board, the Regional Director conducted an
investigation of the objections and, on March 28, 1956, issued and
served upon the parties his report on objections to election, in which
he recommended that the objections be overruled and that an ap-
propriate certification of representatives issue.
The Petitioner filed exceptions to the Regional Director's report
on April 9, 1956, and a supporting brief on April 19, 1956. On May
21, 1956, the Board, having found that the Petitioner's objections and
exceptions appear to raise substantial and material issues with respect
to the conduct of the election which could best be resolved by a
hearing, issued an order directing that a hearing be held thereon.
On June 26 to 30, inclusive, 1956, a hearing was held before Herbert
Silberman, hearing officer. On October 25, 1956, the hearing officer
issued and caused to be served on the parties his report and recom-
mendations on objections to election, recommending that the Peti-
tioner's objections be overruled and that an appropriate certification
of representatives issue, as set forth in the copy of the report attached
hereto.
Thereafter, the Petitioner filed exceptions to hearing officer's report
and recommendations on objections to election, proposed findings of
fact and conclusions of law, and a supporting brief, requests for
1 114 NLRB 1516.
118 NLRB No. 57.
462 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
oral argument,2 and other communications; 9 the Employer filed an
opposition to Petitioner's exceptions and Employer's exception, and
a brief; and the Intervenor filed a statement in opposition to Peti-
tioner's exceptions to hearing officer's report and recommendations on
objections to election, and a brief.
The hearing officer's rulings made at the hearing are 'free from
prejudicial error and are hereby affirmed.' The Board has considered
the hearing officer's report, the exceptions, briefs, oppositions, state-
ments, and the entire record in this case, and finds merit in the Peti-
tioner's exceptions for the reasons hereinafter set forth.
A. The hearing officer's findings
The report sets forth in considerable detail the Employer's acts and
statements which the Petitioner claims constituted interference with
the election, finds that most of them occurred as alleged by the Peti-
tioner, but finds further that they do not, separately or cumulatively,
warrant setting aside the election. The report disposes of the various
incidents or statements on one or more of the following grounds :
They were within the Employer's area of permissible campaigning
and expressions of preference ; the economic disadvantages which they
predicted were based on what the Petitioner would do, not on
threatened Employer reprisals; they were engaged in by a small
proportion of the supervisors or by supervisors below the managerial
level; they were directed at relatively few of the 1,200 employees in
the unit; they were not established as having occurred during the
crucial period; certain testimony was not credible; or the statements
were not coercive, did not contain promises of benefit, were insignifi-
cant, or were otherwise unobjectionable.
B. interference with the election
In our opinion, the incidents which the hearing officer found to
have occurred clearly established that the Employer interfered with
2 As the exceptions , briefs , statements , and other documents filed herein , in our opinion,
adequately present the issues and the positions of the parties , the Petitioner 's requests for
oral argument are hereby denied.
3 On December 10 and 14 , 1956 , the Petitioner sent letters to the Board commenting
upon the possible effect on the instant case of recent decisions in certain Board cases.
As these letters were not timely filed for consideration as part of the Board's formal record,
they are hereby rejected, and the arguments contained therein will be disregarded.
6 During the hearing , the Regional Director's representative made available to the Em-
ployer affidavits which had been obtained in the course of the investigation in this case.
The Employer was permitted to introduce some of these affidavits into evidence for im-
peachment purposes . The Petitioner objected , at the hearing and in its brief , and main-
tained that the affidavits should have been treated as confidential documents for the
exclusive use of the Board. The propriety of the Board' s use of such affidavits for impeach-
ment purposes is well established (N. L. R. B. v. Quest-Shon Mark Brassiere Co., Inc., 185
F. 2d 285, 289 (C. A. 2) ; Seaboard Terminal and Refrigeration Company, 114 NLRB 754 ;
Bridgeport Castings Company, 109 NLRB 749, 752). As the Board could have used the
affidavits for this purpose, it was not prejudicial error for the Regional Director's repre-
sentative to permit their use by another party to the proceeding for the same purpose.
AERONCA MANUFACTURING CORPORATION 463
the election by making coercive remarks and promises of benefit, by
campaigning intensively against the Petitioner and for the Intervenor,
and by the sum total of its conduct, which created an atmosphere of
fear in the plant and deprived the employees of their freedom of
choice.
The Employer's business consists primarily of the manufacture of
airplane parts for Boeing Aircraft Company, which in turn produces
airplanes for the United States Air Force. The contracts with Boeing
establish production schedules, and are subject to cancellation if these
schedules are not maintained.
During the critical preelection period,' various employer representa-
tives, on frequent occasions, told employees that selection of the
Petitioner would result in Boeing and other customers withdrawing
orders, which would cause a curtailment of production and of jobs.
Statements to this effect were made by Lawler, president of the
Employer, as well as by various foremen. They were made in
speeches, letters, and conversations. In fact, the hearing officer refers
to such statements as the Employer's "principal propaganda theme."
For example, one of the Employer's letters to the employees, signed
by Lawler, stated in part:
Do you think our customers and our government are going to
stand around and wait for vital plane parts, if a bunch of CIO
toughs tie up our plant with a reign of terror so they can collect
dues from Aeronca men and women?
Lawler told employee Adkins that if the Petitioner "gets in here we
will lose an awful lot of orders. . . . Boeing would pull the orders,
because they wouldn't stand for trouble, their work would be held
up." He told employee Suitt that Boeing was "concerned about our
production schedules and our labor relationship," and indicated that
"Boeing would transfer half their contracts to other companies in
order to insure an alternate source for parts if the Employer were to
have labor troubles." Other officials and supervisors made similar
statements. Employee Mullins was summoned to the office of Per-
sonnel Director Moore, who presented his anti-Petitioner views at
length, and stated that Lawler was on his way to Boeing to find out
if Boeing was going to change the contracts, and "was looking mighty
worried when he left." Foreman Anthony told a departmental
meeting that "if the CIO became the bargaining representative Boeing
Aircraft Company would transfer 40 percent of their orders with the
Employer elsewhere in order to insure an alternate source for parts
in the event of a strike at Aeronca and that would mean a 40 percent
layoff by the Employer." Employee Eaton was told by his supervisor,
5 The critical period in this case ran from December 28, 1955, when the Decision and
Direction of Election issued, to January 18 , 1956, the date of the election . F. W. Wool-
worth Co ., 109 NLRB 1446.
464 DECISIONS OF NATIONAL LABOR ' RELATIONS BOARD
Hamilton, "if the election was won by the CIO that half of the
contracts that we had at that time would be pulled." Employee Hall
was told by his supervisor, Lee, that "if the CIO won the election the
Employer would lose some of its contracts." The chief of the Air
Force inspectors stationed at the plant told some employees that if
the Petitioner won the election he had orders to pull contracts.'
Some of these statements indicated that a loss of orders and of
jobs would result if the Petitioner were to win the election; others
were conditioned upon the Petitioner causing labor strife, but these
were accompanied by constant references to the probability of strikes
if the Petitioner were to become the bargaining representative.
Moreover, it is significant that the Employer at no time informed its
employees of any statements or communications from Boeing or other
customers on which its warnings of withdrawal of orders were
based, so that, as far as the employees were concerned, the references to
the loss of jobs following a Petitioner victory emanated from the
Employer. Under the circumstances, we are convinced that the Em-
ployer was making its constant references to the withdrawal of orders
for the purpose of implanting in the employees a fear that a loss of
jobs would inevitably follow a Petitioner victory.'
We therefore conclude and find that the statements in question
clearly contained threats to the employees of loss of jobs, bolstered
by the Employer's references to Boeing and other customers With-
drawing orders, which the employees had to accept at face value.
As already found, the statements were made by a number of super-
visors 8 up to and including the president of the Company, and were
The hearing officer found no significance in this as (1) the chief inspector was
an employee of the Air Force, not of the Employer, and (2) the remarks were made to only
4 employees , 2 of whom had already voted , shortly before the polls closed , and there was
no evidence that they were communicated to other employees . As to ( 1), the Board,
where a proper election atmosphere is in issue , will consider conduct affecting this atmos-
phere whether or not it is attributable to the parties. ( Poinsett Lumber and Manufactur-
ing Company, 116 NLRB 1732 ; The Falmouth Company, 114 NLRB 896 ; Southdown
Sugars, 108 NLRB 114.) As to (2), the chief inspector's remarks cannot be viewed in
isolation , but were part of what the report refers to as " the many predictions and rumors
of possible loss of employment should the Petitioner be certified which had been circulat-
ing among the employees during the preelection period."
P Cf. Zeller Corporation , 115 NLRB 762, where the employer enclosed with his letter
to the employees it letter from the customer in question so the employees could make their
own evaluation of the customer's statements . In that case , moreover , the employer's
remarks were found not to constitute a threat to the employees' jobs.
8 The hearing officer found that some of the Employer's statements referred to above
were permissible on the ground , among others, that they were made by foremen and not
by "higher managerial representatives." As we stated recently, however, in Hardware
Engineering Co., 117 NLRB 896: "With respect to the foreman, it is not controlling that
his statement may not have been expressly authorized or subsequently ratified by higher
management , since at the time lie made the statement , lie was an admitted supervisory
employee for whose conduct an employer is normally responsible."
We likewise find no merit in the hearing officer's finding that certain conduct was per-
missible because the employees were not actually intimidated thereby, but, on occasion,
debated with their supervisors the relative merits of the two unions. As we stated in
Internationa7 Brotherhood of Teamsters, etc., Local No. 659 (Ready Mixed Concrete Com-
pany), 117 NLRB 1266, "It is well-settled that the Act does not require proof that coercive
conduct had its desired effect."
AERONCA MANUFACTURING CORPORATION 465
made so frequently that, as the record shows, their effect was felt
throughout the plant. Under these circumstances, we find that the
Employer's numerous statements that selecting the Petitioner would
result in a withdrawal of orders and a loss of jobs were coercive.
Furthermore, these coercive statements were made in the course of
the Employer's intensive election campaign, during which the em-
ployees were subjected to a constant barrage of propaganda in the
form of speeches, letters, department meetings, and group. and indi-
vidual discussions, all emphasizing, as the report describes it, "the
Employer's thesis that the employees' best interests would be served
by preserving the status quo and that' all they could anticipate from
a change of bargaining representative was strikes and economic suf-
fering." This campaign propaganda contained a great many vilify-
ing references to the Petitioner, its mercenary leadership, and its
frequent violent strikes. The following are examples of the
Employer's derogatory references to the Petitioner during this period :
Strike-happy outfit.
CIO troublemakers.
CIO toughs.
CIO salesmen . . . hate the truth.
I [Lawler] cannot see how the CIO could do anything but
threaten our future and hurt us all.
If we lose our customers, we lose our jobs. We who have jobs at
Aeronca know that, but the CIO organizers who came from out-
side to cause us trouble don't seem to know it.
This could be very real threat to our job security. If the CIO
muscle men move in on us, and if trouble happens as it has in so
many other places, we stand a good chance of losing some of these
orders. If we lose orders, we lose jobs.
In contrast, the Employer at the same time was lauding the Inter-
venor for its assistance when the Employer was in financial difficulty
in 1949, its record of 10 years without a strike, its ability to obtain
a wage increase for the employees every year, and the "one big, happy
family" relationship which existed with the Intervenor representing
the employees. In its numerous expressions of preference between
the two competing unions, the Employer never made reference to the
employees' "no-union" choice.
In addition to describing the Intervenor's help when the Employer
was in financial difficulty, Lawler's speeches reminded employees
that he came to the plant in 1949 when he "had the difficult job of
trying to bring back to life an almost dead Aeronca," and how well
he had succeeded in that job. In some of his conversations with
employees, Lawler indicated that he would leave the plant if the
Petitioner became the bargaining representative of the employees.
450553--58-vol. 11831
466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We agree with the Petitioner that these remarks of Lawler about
leaving should be read in the context of his statements about saving
the Company from economic disaster.
During this period, there were also numerous conversations between
supervisors and employees in which the supervisors expressed their
strong anti-Petitioner' and pro-Intervenor views. In the course of
these conversations, some of the supervisors made remarks to em-
ployees which were coercive or contained promises of benefit. For
example, employee Eaton was told by his supervisor, Hamilton, that
"The Company would deal with an Independent Union better than
they would with the CIO"; employee Hall was told by his supervisor,
Lee that "it would be better to continue the Independent as bargaining
agent in order to avoid loss of employee privileges "; and employee
Lower , was told by his supervisor , Richter, that "in case the CIO
comes in they will ask fora lot of things and the Company will tighten
up on a lot' of things."'
Furthermore, several supervisors wore Intervenor buttons in the
plant. While, as the hearing officer points out, very few did so, and
they wore them for a short time only, nevertheless it was long enough
to be observed by a number of employees in various departments.
The hearing officer refers to a number of cases in which employers
were given considerable latitude by the Board in apprising employees
of their preferences with regard to unions seeking representative
status. We are satisfied that in the present case, the Employer has
exceeded those broad boundaries of permissible conduct.
It is well established that .the Act gives employees the right to an
"untrammeled and free choice" 1e of a bargaining representative; the
Board has held, in cases involving objections to an election, that each
case must be decided on its own unique combination of facts ; 11 the
courts have recognized the Board's "wide degree of discretion in
establishing the procedure and safeguards necessary to insure the
fair and free choice of bargaining representatives by employees"; 12
and the Board and the courts have held that the Board may set
aside an election because of speeches which are not coercive,13 conduct
9 We do not agree with the hearing officer that this conduct can be excused on the
ground that it did not directly reach all or nearly all the employees. Just as the remarks
about Boeing withdrawing orders permeated the entire plant , so also, we find, did its re-
peated expressions of preference for the Intervenor, the statements about the friendly
relations which had existed with the Intervenor being imperiled if the Petitioner were
selected , and the indications that Lawler , who had saved the plant from economic disaster,
would leave if the Petitioner won.
1o Dallas City Packing Company, 116 NLRB 1609; Lloyd A. Fry Roofing Company,
Incorporated , 116 NLRB 1360; Bata Shoe Company, Inc., 116 NLRB 1239.
11 The Liberal Market, 108 NLRB 1481, 1486.
12 N. L. R. B. v. National Truck Rental Co., 239 F . 2d 422 (C. A., D. C., Oct. 18, 1956),
quoting N. L. R. B. V . National Container Corp., 211 F. 2d 525 ( C. A. 2), which quoted
from N. L. R. B. v. A. J. Tower Co., 329 U. S. 324, 330.
13 Foreman R Clark, Inc. v. N. L. R. B. , 215 F. 2d 396. (C. A. 9), cert. denied 348 U. S.
887.
AERONCA MANUFACTURING CORPORATION 467
which does not constitute unfair labor practices'14 or coercive remarks
even if made to relatively few employees,15 or even if they are veiled,l6
hinted,17 or merely implied,18 if, in the exercise of the Board's discre-
tion, such conduct interfered with the employees' freedom of choice.'
We find, on the basis of the entire record, that the Employer, by
its remarks about the withdrawal of orders by Boeing and other cus-
tomers, and the resulting loss of jobs, by its vilification of the Peti-
tioner in contrast with its praise of the Intervenor, by the coercive
remarks and promises of benefit made by supervisors, and by the
totality of its election campaign conduct, generated "an atmosphere
of fear" 20 among its employees which deprived them of their freedom
of choice.
[The Board set aside the election held on January 18, 1956.],
[Text of Direction of Election omitted from publication.].
CHAIRMAN LEEDOM and MEMBER RODGERS, dissenting :
We do not agree with our colleagues that there is any foundation,,
in: fact or in law, for upsetting the results of the election which has
been held among the 1,200 employees in the unit here involved, and
which resulted in a decisive victory for the Intervenor. The hearing
officer's report contains an exhaustive discussion of the evidence in
this case, as well as a painstaking analysis of the pertinent Board'
and court decisions, and concludes that the incidents in question did
not constitute improper interference with the election whether con-
sidered separately or cumulatively. We agree with the hearing officer,
and would adopt his findings, conclusions, and recommendations. As
his attached report is so detailed and complete, we shall advert only
briefly to the reasons why we disagree with the result reached by the
majority.
The majority's determination that the Employer's preelection cam-
paign conduct requires that a new election be directed is based upon
14 N. L. R . B. v. Bar-Brook Manufacturing Co., Inc., 220 F . 2d 832 (C. A. 5). -
15 Lloyd A. Fry Roofing Company, Incorporated , 116 NLRB 1300.
16 The Humko Co., Inc ., 117 NLRB 825.
11 Norris-Thermador Corporation , 117 NLRB 1340.
12 Paramount Cap Manufacturing Company, 116 NLRB 993, 1001.
12 As the Board stated in 13 eta Shoe Company, supra, quoting from The Gummed Prod-
nets Company, 112 NLRB 1092 , 1094, it "will set aside an election when `the challenged
propaganda has lowered the standards of campaigning to the point where it may be said
that the uninhibited desires of the employees cannot be determined in an election.' "
p Poinsett Lumber and Manufacturing Company, 116 NLRB 1732 , 1739 . Cf. The Fal-
mouth Company, 114 NLRB 896 , where threats had been made by local businessmen and
two alleged supervisors . The Board there stated that it was unnecessary to determine
whether the employer and the businessmen had acted in concert, or whether the employer
was responsible for the activity of the two alleged supervisors, in view of the fact that a
"fear of economic loss so permeated the atmosphere surrounding the election as to render
impossible the rational , uncoerced selection of a bargaining representative contemplated
by the Act."
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(1) remarks which our colleagues deem coercive, and (2) the totality
of the Employer's conduct.
(1) The first ground rests on strained interpretations of remarks
made by a small proportion of the supervisors in the plant. These
remarks, on their face, consist merely of expressions of opinion or
predictions as to the likely effect of a Petitioner victory based upon
the Petitioner's conduct in other plants, and are therefore clearly pro-
tected by Section 8 (c). Primarily, the remarks on which the ma-
jority opinion relies were to the effect that Boeing, the Employer's
prime contractor, would withdraw some of its contracts if the Pe-
titioner became the employees' bargaining agent. The Employer,
under its contracts with Boeing, made airplane parts which Boeing,
in turn, utilized in the production of airplanes for the United States
Air Force. The Employer was required by its contracts with Boeing
to maintain rigid production schedules, in unification with the Boeing
schedules, so that all necessary parts for the Boeing airplanes would
be available when required.
After 10 years of harmonious strike-free relations with the Inter-
venor, the Employer was justified in believing it likely that this rela-
tionship would continue if the Intervenor were again selected by the
employees. In contrast, the Employer had factual evidence, which it
distributed to the employees, of bitter, violent, and costly strikes in
which the Petitioner had engaged at other plants. Accordingly, the
Employer pointed out to the employees, as it was clearly privileged by
Section 8 (c) to do, the greater likelihood of industrial peace with
the Intervenor representing the employees. The remarks about the
Boeing withdrawal of contracts were couched in terms of prediction.
The Employer's reference was to what might eventuate should the
Petitioner become the bargaining agent and cause strikes, which would
disrupt the Employer's production schedules. In such circumstances,
the Employer indicated that Boeing could cancel its contracts and
could thereby bring about a reduction in employment.21 The major-
ity culls out of these remarks 1 or 2 which were not expressly condi-
tioned upon the occurrence of labor strife, and imports into all of them
a meaning-completely at variance with their content-that the Em-
ployer itself was threatening to cut production and reduce employ-
ment if the Petitioner won the election 22
2' The majority opinion points to the fact that the Employer did not, as in Zeller Ca.-
poration, 115 NLRB 762, give the employees evidence to support its predictions about the
withdrawal of Boeing orders. These predictions were clearly justified by the production
schedules required by the contract.
The majority ' s reliance on cases like 11 'orris-Thermalor Corporation , 117 NLRB 1340,
is unfounded . In that case , the employer " hinted" that he would terminate certain
benefits if the union won the election . That is clearly distinguishable from the state-
ments herein that a third party would cancel its contract with the Employer if the
Petitioner won the election and then caused work stoppages , which would prevent com-
pliance with the contract schedules.
AERONCA MANUFACTURING CORPORATION 469
(2) The second ground on which our colleagues rely is equally with-
out merit. The majority apparently concludes that certain incidents,
each of which is permissible under Section 8 (c), nevertheless add up
to unlawful interference with an election. The total number of inci-
dents seems small when measured against the 1,200 employees and
more than 88 supervisors. The majority nevertheless seems to argue,
from the number of incidents, that there was unlawful interference
with the election. But as none of these incidents actually contained a
threat or promise of benefit, any number of them, legally as well as
mathematically, add up to nothing.
Accordingly, like the hearing officer, we would find that the Em-
ployer's conduct did not preclude the employees from a free expression
of their choice, protected by the secrecy of the ballot box. As the em-
ployees cast their ballots decisively for the Intervenor, the Intervenor
should be certified as their bargaining agent.
HEARING OFFICER'S REPORT AND RECOMMENDATIONS ON
OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
Following the initial hearing in this matter, on December 28, 1955, the Board
issued its Decision, 114 NLRB 1516, directing an election among the employees of
the Employer in a described appropriate unit to determine whether they desire to
be represented for purposes of collective bargaining by the Petitioner, by the
Intervenor, or by neither. Pursuant thereto an election by secret ballot was conducted
on January 18, 1956. The tally of ballots shows:
Approximate number of eligible voters----------------------- 1, 200
Void ballots----------------------------------------------- 3
Votes cast for Petitioner------------------------------------ 457
Votes cast for Intervenor----------------------------------- 705
Votes cast against participating labor organizations ------------ 14
Valid votes counted---------------------------------------- 1,176
Challenged ballots----------------------------------------- 16
Valid votes counted plus challenged ballots------------------- 1, 192
On January 23, 1956, the Petitioner filed timely objections to conduct affecting
the results of the election. The objections are as follows:
1. Campaign tactics and propaganda employed by the Intervenor herein
and the Employer herein lowered the standards of campaigning to the point
that the uninhibited desires of the employees could not be determined in said
election.
2. That during said election campaign and after the Direction of Election
said Employer gave raises to certain of its employees for the purpose of influenc-
ing their votes for the Intervenor.
3. On or about Jan. 13, 1956 the Chief Inspector for the Air Corps stated in
the plant to employees that if the CIO won the election the company would lose
40% of its contracts. He further stated that the Air Corps would pull 40%
of said contracts and that he would have to pay off part of his inspectors if the
CIO won the election. He is assigned to the plant by the Air Corps.
4. That the Employer through its agent stated that if the CIO won the
election Boeing would pull its contracts.
5. That the Employer during the election campaign and after the Direction
of Election through its agents held meetings of small groups of employees on
company time and property and contacted single employees for the purpose of
telling them to vote against the CIO and in favor of the Intervenor, and so
advised them.
6. That Supervisors of the Employer wore campaign buttons of the Intervenor.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7. That the Employer on the day of the election permitted the Intervenor to
;place its "vote for Independent signs" on the company property along a company
.fence, use of which was not offered or permitted to the petitioner.
8. That the Employer furnished facilities and employees to the Intervenor
,for the publication of its propaganda.
9. The Employer during the election campaign and after the Direction of
Election through its agents said that if the CIO won the election the company
`would turn its business over to its competitors and go out of business and that
the new construction now in process would be stopped.
10. That the Employer permitted the free run of the plant for electioneering
by the Intervenor but denied the same right to the petitioner.
11. That the Employer distributed publications to its employees during the
election campaign and after the direction of election urging its employees to
vote for the Intervenor and against the petitioner.
12. That the Employer threatened loss of employment if the employees voted
for the petitioner.
13. That the election did not reflect the free choice of the employees in that
the company and the Intervenor released and published false and misleading
information as to the effect upon the company's business if the petitioner won
the election.
14. And for other misconduct and misrepresentations on the part of the
Employer and Intervenor which interfered with said election in violation of the
Act.
Thereupon the Regional Director conducted an investigation and, on March 28,
1956, issued and served upon the parties a report recommending that the objections
be overruled. The Petitioner duly filed exceptions to this report. Upon consideration
of the matter, the Board on May 21, 1956, issued an order directing a hearing to
resolve the issues raised by the Petitioner's objections and exceptions.
Pursuant to said order and upon due notice to all parties a hearing was held
at Middletown, Ohio, on June 26 through 30, 1956, before the hearing officer, duly
designated by the Chief Trial Examiner. All parties to this proceeding appeared and
were represented by counsel and were afforded full opportunity to be heard, to
examine and cross-examine witnesses, to introduce evidence bearing upon the issues,
to engage in oral argument, and to submit briefs to the hearing officer. Briefs were
duly filed on behalf of the Petitioner, the Intervenor, and the Employer which have
been carefully considered.
Upon the entire record in the case, and from my observation of the deameanor
,of the witnesses who testified before me, I make the following:
FINDINGS OF FACT
PRELIMINARY STATEMENT
In the interest of brevity, discussions of testimony which the hearing officer finds
has no probative value because of lack of credibility or materiality will be relegated
to Appendix E attached hereto.
The Board having issued its Direction of Election on December 28, 1955, and
the balloting having taken place 21 days later, on January 18, 1956, only misconduct
which occurred during this period can be relied upon as the basis for setting aside
the election. M. W. Breman, 115 NLRB 1581; F. W. Woolworth Co., 109 NLRB
1446. Antecedent events, however, may be considered as background evidence to
clarify and impart meaning to specific occurrences within the critical period. For
this purpose only consideration has been given to evidence of activities antedating
the Direction of Election.
Since 1946 the Employer has recognized the Intervenor as the statutory representa-
tive of the employees in the appropriate unit described in the Board's Decision in
this case and has entered into a series of collective-bargaining agreements with that
union, the last of which was executed in March 1955. The evidence shows that rela-
tions between the contracting parties have been amicable. The Intervenor never
called a strike against the Employer and during a period when the Company was
in financial distress cooperated with the Employer in solving its economic problems.
Understandably, the Employer has opposed the efforts of the Petitioner to replace
the Intervenor as the bargaining agent for the Company's employees.
All the interested parties campaigned vigorously during the critical preelection
period. Petitioner avers that both the Employer and the Intervenor have been
guilty of campaign misconduct. However, substantially all the evidence adduced
by the Petitioner at the instant hearing in support of its objections is directed against
the electioneering activities of the Employer and its agents.
AERONCA MANUFACTURING CORPORATION 471
1. Intervenor 's campaign literature
The only culpable act attributed to the Intervenor by the Petitioner concerns
certain handbills and notices distributed to the employees by the former. These
were either mailed or passed out by hand. Neither at the hearing nor in its brief
did the Petitioner advert to any specific impropriety in the content of the Intervenor's
campaign literature. The gist of the Petitioner's objections in this regard, iterated
in its brief in support of its exceptions to the Regional Director's report, is that
"the Board should find that the activities of the Company and the [Intervenor]
against the Petitioner were in the nature of a joint enterprise. If this be true, the
[Intervenor's] publications, . . . become equally the publications of the Employer"
and so considered exceed the permissible limits of campaign propaganda. In its
brief to the hearing officer the Petitioner advances the somewhat different argument
that "where a company participates in an election on the side of one of the
[competing] unions, it makes that union its agent and is bound by its acts. Clearly
the publications of the [Intervenor] were not legitimate election propaganda for
the company to have distributed." As to Petitioner's first contention, there is no
evidence indicating any concert of action between the Employer and the Intervenor.
The fact that each actively opposed the organizational efforts of the Petitioner is
not proof of common activity "in the nature of a joint enterprise." Likewise, as
to the alternative argument, there is no evidence indicating any agency relationship
between the Employer and the Intervenor, and I find no merit in the Petitioner's
argument that responsibility for the Intervenor's campaign literature should be
imputed to the Employer only by virtue of the congruity of their election objectives.
The DeVilbiss Company, 115 NLRB 1164; Morganton Full Fashioned Hosiery
Company, 107 NLRB 1534. It is the policy of the Board not to censor or police
preelection propaganda unless there was resort to forgery, trickery, or conduct so
misleading as to have deprived the employees of the opportunity sensibly to evaluate
the utterances. Twentieth Annual Report of the National Labor Relations Board,
pp. 62-63. I have read the handbills and notices disseminated by the Intervenor
which were introduced in evidence at the hearing' and, whether considered sepa-
rately or collectively, I find that they do not exceed the scope of legitimate union
campaign activity. Accordingly, I shall recommend that the Petitioner's objections
to the preelection conduct of the Intervenor be overruled.
2. Employer's campaign literature
The Petitioner strenuously argues that publications disseminated to the employees
by the Employer during the preelection period contained express or implied threats
of reprisal in the event the Petitioner was successful in the forthcoming election, and
promises of benefit for the employees should they reject the Petitioner at the polls.
In support of these objections the Petitioner introduced in evidence seven letters
together with certain attachments which had been mailed to•the affected employees 2
and a newsletter which was distributed to employees in the plant.'
I am attaching to this report as Appendix A copies of most of these exhibits'
together with the Petitioner's specific objections to each and the hearing officer's
analysis of the objections. Viewing the Employer's preelection literature as a
1 These publications were marked in evidence at the instant hearing as Petitioner's
Exhibits 11-A through 11-K and are the identical documents attached to the Regional
Director's report on objections to election and marked by the Regional Director as Ex-
hibits J through W.
2 These letters which were marked in evidence as Petitioner's Exhibits 2a through 2g
are the identical documents attached to the Regional Director's report on objections to
election as Exhibits A through G, except that attached to Petitioner's Exhibit 2c (Re-
gional Director's Exhibit C) when mailed to the employees was a booklet entitled "Kohler
of Kohler News" for April 1955 which was published by the Kohler Company of Wis-
consin . This booklet was admitted in evidence at the instant hearing as Petitioner's
Exhibit 3.
Petitioner's Exhibit 2h.
Omitted are a letter to the employees mailed on December 8, 1955, which antedates
the direction of election herein, and the newsletter, which is dated January 13, 1956, but
as to which the Petitioner has not advanced any specific complaint. The only possible
objectionable feature of the newsletter is a clause which reads, "the election will decide
the future of all our jobs and our company." Viewed together with the Employer's other
campaign literature this statement suggests that should the Petitioner win the election
it might call a strike which could result in a permanent reduction in the work force.
Such prediction is not considered by the Board to be coercive.
472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whole, it shows the Company's antipathy towards the Petitioner; it suggests that
the Petitioner would be unable to fulfill its campaign promises; it predicts loss of
employment, other economic detriments, and less friendly relations between manage-
ment and the workers should the Petitioner be selected as the employees' bargaining
agent; it urges employees to vote against the Petitioner and, by alluding to the
benefits the employees already had obtained and the amicable relationship that has
existed between the employees and company officials while the Intervenor was acting
as their representative, intimates that the employees' best interests lie in continued
representation by the Intervenor.
The Employer's campaign propaganda contained no direct threats of reprisal or
promises of benefit conditioned upon the outcome of the election. The Petitioner,
however, construes much of it to bear by implication threats and promises. I
cannot concur with the Petitioner's interpretations. It is the Board's usual practice
to give "effect to the plain meaning of the words used." F. W. Woolworth Co., 111
NLRB 766, 768 6 This does not mean that in appropriate circumstances threats or
promises may not be implied from ambiguous or guarded languge. But it does
mean that language, particularly when used as propaganda during union election
campaigns, should not be artfully analyzed to the point of distortion so as to torture
from it implications not readily apparent to the rank-and-file employees. I find
for reasons more fully explicated in Appendix A that the Employer in its campaign
literature did not do more than express its views, arguments, and opinions with
regard to the pending election.
The Petitioner further argues that defamatory descriptions of the Petitioner and
its agents contained in the aforesaid publications led the employees to believe that
it would be futile to select the Petitioner as their representative because the Employer
would never bargain with the Petitioner and lowered the standards of campaigning
to an extent that it impaired the ability of the employees to exercise a free choice
of representatives at the election. The statements the Petitioner relies upon to
support these contentions are:
The CIO boys . . . anxious to get their hands on a slice of your pay check.
Heaven forbid that these conditions ever happen to use here at Aeronca.
They cannot guarantee anything.
CIO salesmen know every slick trick in the book.
They hate . . . the truth.
It is not necessary for a company "to give in to them."
Strike-happy outfit.
CIO troublemakers don't have to depend upon our customers for their bread
and butter.
If a bunch of CIO toughs tie up our plant with a reign of terror so they can
collect dues from Aeronca men and women.
CIO muscle-men.
Professional organizers who recently dropped in on us to pick up some easy
dues money.
Similar statements, however, have been considered by the Board and have been
found to be within the area of permissible campaigning. See Bridgeport Moulded
Products, Inc., 115 NLRB 1751; The Zeller Corporation, 115 NLRB 762; South-
wester Co., 111 NLRB 805, 806; Esquire, Inc., 107 NLRB 1238; General Shoe Cor-
poration, 77 NLRB 124, 125.
Finally, the Petitioner contends that whenever an employer injects itself into a
union election campaign its very participation interferes with the employees' freedom
of choice. Unquestionably the Employer here published the literature complained
of with the object of inducing its employees to reject the Petitioner at the polls. It
has been observed that "slight suggestions as to the employer's choice between unions
may have telling effect among men who know the consequences of incurring
that employer's strong displeasure." International Association of Machinists v.
N. L. R. B., 311 U. S. 72, 87. It may therefore be assumed that the Company's
campaign was highly effective. But the degree of success which the Employer
experiences is not the rod by which to measure the propriety of its conduct. An
employer is no longer required to remain aloof and to pretend indifference to the
outcome while a union it opposes attempts to organize its employees. The Board's
early employer-neutrality doctrine has been firmly overruled. N. L. R. B. v.
Virginia Electric & Power Company, 314 U. S. 469; N. L. R. B. v. American Tube
Bending Co., 134 F. 2d 993 (C. A. 2); N. L. R. B. v. J. L. Brandeis & Sons, 145 F.
2d 556, 564 (C. A. 8). It is now well settled that not only may an employer make
known its preference between two unions competing for its employees' allegiance
6 See also Silver Knit Hosiery Mills, Inc. , 99 NLRB 422, 425.
AERONCA MANUFACTURING CORPORATION 473
but may also seek to persuade the employees to make the selection which the
employer favors so long as it does not resort to threats of reprisal , promises of
benefit, trickery, or other objectionable conduct. The DeVilbiss Company, 115
NLRB 1164; Sylvania Electric Products, Inc., 106 NLRB 1210; Stewart-Warner
Corporation, 102 NLRB 1153.
3. Conduct of Employer's president, John Lawler
John Lawler, the Employer's president, plainly advertised his opposition to the
Petitioner and, by indicating his satisfaction with the relationship between manage-
ment and the employees while the Intervenor was acting as their representative,
his preference for that union continuing as bargaining agent. Petitioner adverts to
letters which were sent all employees by Lawler, a speech he made in the plant,
and interviews he had with individual employees during the preelection period as
having exceeded the limits of permissible employer campaign activity.
a. Lawler's speech
On December 29, 1955, the day the Employer received its copy of the Direction
of Election, Lawler made a speech to the employees in which he keynoted the
Employer's position with regard thereto. He repeated the theme of his address in
a series of letters which were later mailed to the employees. These letters have
been considered above. Lawler read his speech from a prepared text, a copy of
which is attached hereto as Appendix B. He opened the speech by advising the
employees that there would be an election "to decide whether you are going to
continue to be represented by your local Independent Union or whether you will
be represented by the International CIO Union." Following this he reminded the
employees that since 1949, when the Company was struggling through a financial
crisis, the Employer had increased wage rates an average of 65 cents per hour,
"which is greater than any company in this area and which is greater than those
settled on an International level," and that while the Company has kept its promises
to the employees, "for people on the outside it is easy to make a lot of promises
which can never be fulfilled." He concluded his speech by telling the employees,
"Your future and the future of the Company rests in your hands. That is the
reason knowing the fine people we have had here through the years that I have
the utmost faith in the outcome of the election."
Petitioner correctly argues that Lawler's expression of "faith" in the outcome of
the election considered together with his failure to mention "no union" as a possible
choice at the polls indicated to the employees that he favored the Intervenor. How-
ever, since an Employer may advertise his preference among competing unions, this
is not objectionable. Vita Food Products, Inc. of Maryland, 116 NLRB 1215.
The Petitioner further argues that Lawler, in effect, said to the employees that if
the Petitioner were to win the election "the Company's policy on wages will cease,
and [the employees'] future and the future of the Company will be imperilled."
I agree that Lawler suggested to his audience that a victory for the Petitioner might
eventuate in economic injury to the employees and the Company. However, I
disagree that he indicated that the Company would initiate action to bring about
any such unfortunate consequences. By questioning the contestants' unselfishness,
their interest in the employees' personal welfare, and their records at other plants,
Lawler implied that the Petitioner, if designated as bargaining agent, would serve
to advance its own interests to the detriment of the employees ' welfare. Thus, he
predicted in his speech that, rather than the Employer, it would be the Petitioner,
if victorious, who would be the cause of any economic harm the employees might
suffer. I also do not agree with the Petitioner that the implications to be drawn
from Lawler's address are the same as were drawn from the speech described in
Scripto, Inc., 103 NLRB 713. For the reasons explicated above in regard to the
Employer's campaign literature, I find nothing coercive in Lawler's December 29
speech.
b. Lawler's interviews with employees
The Petitioner called upon five employees to testify concerning conversations
they had with Lawler during the preelection period. It is Petitioner's contention
that in the course of these interviews Lawler made threats and promises related to
the pending election. I have carefully considered this contention and find it without
merit. Attached hereto as Appendix C are my findings in regard to each of the
five interviews upon which the Petitioner relies. The Petitioner further contends
that, independent of any threats or promises, Lawler's suggestions to the employees
during these interviews that they should vote against the Petitioner and for the
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intervenor are reasons enough to set aside the election herein under the theory
expressed in Economic Machinery Company, 111 NLRB 947. I find no merit to
this argument. Absent circumstances such as were present in the Economic Ma-
chinery case, an Employer who talks with individual employees and tries to persuade
them to vote in a Board election for the choice he favors has not engaged in
conduct which per se justifies setting aside the election. Lawler's conversations
with 5 employees out of a unit of 1,200 at the places where they normally work,
in and of itself, was not objectionable. Mall Tool Company, 112 NLRB 1313.
4. Activities of Foreman John Wise
During the times material herein John Wise was foreman of the paint shop,
department 9, which had a complement of 64 employees, 40 on the first shift and
24 on the second shift. Wise worked during the first shift.
The Employer expected its foremen to hold occasional meetings with the men
they supervised for the purpose of discussing departmental problems and other
matters of mutual concern. There was evidence that at three such departmental
meetings held between December 28, 1955, and January 18, 1956, questions relating
to the pending election were discussed.
Wise testified that unlike the other foremen, and in violation of the Company's
policy, he did not hold any departmental meetings. Instead he followed the practice
of speaking with the employees in his department individually. During the critical
preelection period, he spoke with 12 or 15 employees. Wise testified that "the
origin of each conversation with each employee was just about the same thing,
how he liked his employment there and how he liked me as a foreman, and general
likes and dislikes."
The Petitioner contends that in four of these conversations, as to which evidence
was adduced at the hearing, Wise made threats or promises of benefit which con-
stituted interference with the election. Although Wise suggested to these four
employees that they vote against the Petitioner, I find that Wise did not implement
his recommendations with either threats or promises. In Appendix D attached
hereto is a summary of the evidence relating to Wise's interviews and my specific
findings in regard thereto.
The Petitioner further argues that Wise's private interviews during the preelection
period "offends the rule in the Economic Machinery line of cases." Among the
cases which have applied the principle of the Economic Machinery Company de-
cision, the facts in The Gallaher Drug Company, 115 NLRB 1379, present the
closest approximation to the situation under consideration here. In the Gallaher
case, 393 ballots were cast in an election held among employees who worked in
27 drugstores composing a multiplant appropriate unit. Gahris, the manager of
1 of the stores, conducted individual interviews with 20 out of the 29 employees
under his supervision for the purpose of urging them to reject the Petitioner in the
election. (In some of the interviews Gahris limited himself to describing the dis-
advantages of having a union.) The Board, citing Economic Machinery Company,
Ill NLRB 947, held that this conduct "interfered with a free election, regardless
of whether or not his remarks contained any threats of reprisal or promises of
benefit."
In Economic Machinery Company, the Board reaffirmed the principle that it will
presume the results of an election do not represent "the employees' own true wishes" 6
where the employer adopts the technique of having a responsible representative of
management interview in comparative privacy substantially all employees in the unit
individually or in small groups and urge them to vote in the manner favored by
the employer. In The Gallaher Drug Company case, the Board expanded this
principle by equating substantially all the employees in one plant of a multiplant
unit to substantially all the employees in the entire unit.
The evidence concerning Wise's interviews cannot be equated with the facts in
the Gallaher case. The significant difference between the 2 cases is that Wise urged
only-4 employees to vote against the Petitioner,7 or one-tenth of those he supervised,
whereas in the Gallaher case, Manager Gahris interviewed more than two-thirds
of the employees subject to his direction. A further difference is that in the
Gallaher case the employees supervised by Manager Gahris worked in premises
6 General Shoe Corporation, 77 NLRB 124, 127.
7 Although Wise testified he may have interviewed as many as 15 employees during the
preelection period, there is no evidence that he urged any employees other than the four
named in Appendix D to vote against the Petitioner.
AERONCA MANUFACTURING CORPORATION 475
separate from the premises where the other employees in the unit worked and
Gahris was the principal representative of management regularly at the store, while
here, Wise was foreman of only one of many departments housed in the Employer's
plant 1 and at almost all times his superiors in management's hierarchy were present
on the premises.8
The Board is of the view that "the results of a secret ballot . . . should not be
lightly set aside" 9 and, therefore, it is only "in the rare extreme case" 10 that it will
vacate an election upon the basis of employer conduct which would not amount to
interference, restraint, or coercion within the meaning of Section 8 (a) (1) of the
Act. Because the Economic Machinery case represents an exception to the Board's
general policy it should be sparingly applied as precedent only in situations which
parallel its facts or the facts in one of the later cases which the Board specifically
held was governed by the same rule. Since the evidence relating to Wise's interviews
does not show any systematic attempt by Wise to influence the vote of any sub-
stantial number of employees under his supervision and presents a considerably less
aggravated situation than was present in the Gallaher Drug case, I find, contrary
to the Petitioner, that Wise's interviews did not offend the rule in the Economic
Machinery case. See The American Envelope Co., 97 NLRB 1541, 1543.
5. Conduct of General Foreman Claus Richter
Claus Richter is general foreman for the night shift at Plant 1, the largest of the
Company's three Middletown plants. Four employees testified to events involving
Richter which Petitioner contends coercively interfered with the employees' oppor-
tunity to exercise a free choice in the election. Richter either denied or offered
an exculpatory version of the incidents. Upon the basis of his demeanor and the
fact that his testimony in part impressed me as having been contrived to provide
a facile explanation for his alleged campaign misconduct, in agreement with the
Petitioner, I find that Richter was not a reliable witness.
William Woolums testified that on the night of January 11, 1956, as he was
leaving the plant together with about a dozen other employees, Richter said to him,
after referring to the pending election, that "an Army inspector from Wright-Patterson
said that half our contracts would probably be taken away if the CIO got in." I
credit this testimony despite Richter's denial," but do not find the foregoing remark
g This is significant because the theory of the Economic Machinery rule is that the
interviews are conducted tinder such circumstances as "creates an atmosphere which pre-
vents the employees from expressing themselves as freely and fully as they otherwise
might." Radiant Lamp Corporation, 116 NLRB 40. It is likely that employees are more
inhibited in expressing themselves to the principal representative of management regu-
larly present in the plant than they are to a supervisor who is near the bottom of man-
agement's hierarchy. The evidence shows that the employees interviewed by Wise felt
no constraint upon their right to express themselves and engaged in free debate with him.
U The Liberal Market, Inc., 108 NLRB 1481, 1482.
'° General Shoe Corporation, 77 NLRB 124, 127.
"The Employer contends that \Voolums was not a credible witness and in support of
this contention, among other things, refers to Woolums' evident animus towards Richter
and alleged inconsistencies between his testimony at the hearing and statements con-
tained in a prior affidavit which he executed for a field examiner of the National Labor
Relations Board. At the hearing Woolunis, after referring to certain notes, fixed the
time of a particular departmental meeting as having taken place on January 4, 1956.
In his affidavit Woolums said, "the meeting was held fairly close to election time or as
the election was approaching. I made a note of the date of the meeting at the time and
the matters said in the meeting but I no longer have those notes. \Iy best recollection
is that it would be approximately a month before the election was held." Since there
is no evidence that at the time he gave his affidavit to the field examiner Woolums was
aware of the critical significance of the dates on which events relating to the Petitioner's
objections occurred, the 2 weeks' discrepancy between the date of the meeting fixed in his
oral testimony and the date of the meeting fixed in his affidavit, particularly because the
affidavit also states that the "meeting was held fairly close to election time," was an
inconsequential variance. In his affidavit Woolums also stated that the conversation
with Lawler was the only conversation lie had with a company representative about the
Union. The fact that at the time he executed the affidavit Woolums overlooked the re-
mark Richter made to him is understandable. According to Woolums' testimony, the
remark was casually made to him as a group of employees was leaving the plant. It
may well be that he attached no special significance to the remark because, in general
character, it was not unlike the many predictions and rumors of possible loss of employ-
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was coercive. This statement is of the same character as other predictions which
were being voiced to the employees that certification of the Petitioner might eventuate
u n the loss of business for the Employer. The basis for such prognostications, which
:the record shows must have been well known by the employees generally because of
:its specific iteration by the Employer and also because of the employees' knowledge
of the Company's business, was that as a subcontractor the Employer's orders were
:subject to cancellation if it should fail to meet delivery schedules for any reason,
zincluding strikes. The Employer and the Intervenor in their campaign propaganda
emphasized the alleged propensity of the Petitioner to enforce its contract demands
by strikes. Woolums testified that during the weeks immediately preceding the
election the employees among themselves discussed the possibility of a strike being
called if the Petitioner were to win the election. The remark Richter made to
Woolums must be evaluated in this background and so considered does not carry
any threatening overtones that the Employer would engage in reprisals against the
employees if the Petitioner were to be selected as their representative.
Floyd Adkins testified that 2 or 3 weeks before the election Richter began a con-
versation with him. According to Adkins, Richter said, "'Adkins, what do you
think about this union trying to get in here?' At the time I had on a CIO sweater,
so naturally I told him I was for it. He said, `well, if they come in here,' he said,
`there's going to be an awful lot of trouble. I understand the first thing they are
going to do is ask for a 30 cent raise.' He said, `the Company won't stand for that,
they will go out on strike, we will lose orders right and left.' He said, `they will
pull them so fast we won't know which way they went. . . I understand that they
are going to stop the work on the new building here until after the election, to see
how the election comes out.' "
Richter remembered the conversation with Adkins. According to Richter, Adkins
said "that they should have more money, and I believe I asked him how much
more, and he said at least 30 cents an hour. And there was something mentioned
about the possibility of a strike if they didn't get it. And I said, `well,' as I recall,
I said, `if the thing comes to that, the Company may go 10 cents an hour, but I
doubt if they would ever pay a general increase of 30 cents an hour.' " Richter
denied having said anything to Adkins about the Company losing orders, or that
there would be trouble if the CIO came in or that the Company was going to stop
work on the new building which was then in the process of construction.
Adkins did not impress me as having been a forthright witness. His testimony not
,only bore the tone of aggressive partisanship but the much greater hesitancy with
-which he answered questions on cross-examination than on direct examination in-
'dicated a calculated effort to preserve the effectiveness of the evidence he was of-
fering on behalf of the Petitioner rather than to recount the facts exactly as he re-
:membered them.
I do not credit Adkins' testimony that he was told by Richter that the latter under-
stood the Company was going to stop work on the new building until after the elec-
tion . Not only was this denied by Richter but the undisputed evidence shows that
the construction was not suspended at any time during the preelection period. On
the other hand, Adkins' version of the balance of their conversation is more plausible
than Richter's. According to Adkins' testimony, what Richter said to him was
substantially what he was told by Lawler. Lawler for the most part corroborated
Adkins' version of their conversation. It is more likely that Richter was acquainted
with Lawler's views and repeated them to Adkins rather than that Richter made
the extremely cautious statement he testified he made to Adkins. However, for
the same reasons that I have found Lawler's remarks to Adkins were not coercive I
find that Richter's statements to Adkins were not coercive. The Petitioner speci-
fically argues that Richter's question, "what do you think about the Union trying
to get in here" was unlawful interrogation. Apart from the fact that the Board does
not usually view a supervisor's casual inquiry as to an employee's view upon the
progress of union organization as being coercive, it certainly could not have been in
the case of Adkins because Adkins openly advertised his support of the Petitioner
by wearing UAW-CIO insignia in the plant.
Joseph Lower testified that about 2 weeks before the election he asked Richter
whether the latter "knew anything about in case the CIO gets in whether the con-
tracts would be pulled." Richter replied that was what he had heard. Richter's recol-
lection of this conversation differs from Lower's. However, I credit Lower's version.
ment should the Petitioner be certified which had been circulating among the employees
during the preelection period. Woolums impressed me as having been a completely honest
witness. His manner while testifying was direct and unevasive. Despite his unconcealed
interest in this proceeding, I find that Woolums was a credible witness.
AERONCA MANUFACTURING CORPORATION 477
Lower further testified that whenever he met Richter in the plant they would
exchange a few words. Another time, in a conversation with Richter, the latter
said: "He hates to see the CIO come in, because it will really change things." Lower
did not fix the time of this conversation. Finally, Lower testified that within 10
days before the election Richter said to him "in case the CIO comes in they will
ask for a lot of things and the Company will tighten up on a lot of things." Richter
did not deny having made this statement to Lower.
It is unnecessary to consider the import of Richter's remark that it will really
change things if the CIO came in because the evidence does not establish that it was
made after the issuance of the Direction of Election. Richter's confirmation of the
rumor that a victory for the Petitioner might result in Boeing canceling orders, in
the circumstances herein, was not coercive. F. W. Woolworth, 111 NLRB 766,.
768-769. Finally, Richter's opinion as to the course collective-bargaining negotia-
tions might take if the Petitioner became the employees' representative, for reasons,
explicated in La Pointe Machine Tool Company, 113 NLRB 171, 173, likewise is,
not considered by the Board to be coercive.
Buster Back testified that sometime after the Direction of Election issued Richter
told him to remove a UAW emblem from his toolbox. In a prior affidavit which.
Back gave to a field examiner of the National Labor Relations Board, he fixed the
time of this event as "sometime before Thanksgiving, 1955." Richter admitted
that he told Back to remove the emblem from his toolbox and placed the incident
as having occurred in July or August 1955. Richter further testified that after
consulting the Company's personnel office he learned that he should not have di-
rected employees to take emblems off their personal property and subsequently
apologized to Back for his mistake. This is uncontradicted.
I find that the Petitioner has failed to establish that the foregoing incident oc-
curred after the issuance of the Direction of Election herein. Furthermore, because-
Richter's testimony is uncontradicted that he later apologized to Back for his error
in directing him to remove the CIO emblem and there is no evidence that Back ever
complied with Richter's direction 12 or was even punished or reprimanded for failing.
to do so, the incident even if timely was inconsequential.
6. Activities of Personnel Director Paul Moore
Employees Floyd Adkins and Hobert Mullins testified to conversations they had
with the Employer's personnel director, Paul Moore. Adkins testified that about 2'
weeks before the election he began a conversation with Moore after he had noticed
that the latter had been "out all over the shop talking to the guys." According to
Adkins, "I said, 'Paul, what are you doing, out drumming up votes for the Inde-
pendent Union?' He said, 'Hell, yes,' he said, 'Somebody's got to."' Moore denied
the incident. For reasons expressed above I find that Adkins was not a reliable wit-
ness. I do not credit Adkins ' testimony regarding his conversation with Moore
despite my reservations concerning Moore's credibility.
Hobert Mullins testified that on January 10, 1956, he had a meeting with Moore
in the latter's office which was arranged by Charles Cremeans, the assistant fore-
man of the department in which Mullins worked. Earlier that day, according to
Mullins, "Cremeans came to me at work and told me that I had quite a bit of influ-
ence on the people in the department, and he also stated that, he said, 'Mullins,
don't you think if you worked as hard for the Independent Union as you are for
the CIO, don't you think we could have a strong Union?"' Mullins replied that
"things have been going kind of rough" and that he'd like the employees to be repre-
sented by a union which would get them additional benefits. About an hour later
Cremeans returned and told Mullins that he had made arrangements for Mullins
to speak with Paul Moore.13 Mullins went to Moore's office and the two spoke to-
gether for longer than an hour. In the course of their conversation Moore described
the Company's financial condition and asserted that the Employer absolutely could
not afford to give a wage increase of 30 to 35 cents per hour which the Petitioner
presumably would ask for if it became bargaining agent, that there would be labor
disputes and that as a result probably "the company would not be working within 4
months." Moore also said, "that Lawler, Mr. John Lawler, was worried about the
contracts, and that he was on his way at the moment to Boeing Aircraft to find out if
Boeing was going to arrange different situations for their contracts. He also said
"In his affidavit Back specifically said that he did not remove the sticker.
1' Crenieans' version of the incident differs somewhat from Mullins'. Because I believe
Mullins was the more reliable witness, to the extent that there is conflict between the
testimony of Mullins and Cremeans, I credit Mullins.
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that, `Mr. John Lawler was looking mighty worried when he left.' " Upon the conclu-
sion of their conversation, as Mullins was leaving Moore's office, the latter said,
"Do you know, Hobert, you could do a lot of good for the people if you would."
Moore's version of his conversation with Mullins in part corroborates Mullins, in
part amplifies Mullins' version, and in some matters contradicts Mullins. As be-
tween the two it is my opinion that Mullins was the more reliable witness. Mullins
testified with candor and assurance. He had a clear recollection of the events about
which he testified and recounted them without any apparent embellishments. His
appearance as a witness was of impressive frankness. On the other hand, I am of
the opinion that Moore supplemented his memory of events in issue by interpolating
what he probably reasoned he should have said to Mullins rather than limiting his
testimony to precisely what he remembered himself as having said.
I find, in disagreement with the Petitioner, that neither Moore nor Cremeans made
any statements to Mullins which fairly may be construed as containing any threat
of reprisal or promise of benefit. However, I find that Cremeans, directly, and
Moore, more subtly, suggested to Mullins that he would promote the best interests
of his fellow employees by campaigning for the Intervenor instead of for the
Petitioner. It might be argued that these suggestions are similar in nature to actual
solicitation of union membership by supervisors, which the Board usually finds
constitutes unlawful assistance. However, there is a substantial difference in the
two situations. Where an employer, through its agents, actively seeks to enroll
members into a labor organization which it favors, it is engaged in conduct which
furnishes material support for that organization. Here, however, Moore and
Cremeans in their efforts to induce Mullins to transfer his sympathies and activities
from the Petitioner to the Intervenor used only arguments and expressions of opinion
and did not, therefore, exceed the freedom of persuasion which the Act accords
employers.
7. Activities of Assistant Foreman Charles Cremeans
Employee Walter Reynolds testified that on January 9, 1956, he had the following
conversation with Charles Cremeans:
Mr. Cremeans asked me what I wanted with the CIO in at Aeronca, when we
had a good union as it was. He also gave me orders not to speak to his
employees, because he knew that I was for the CIO, and he didn't want the
CIO people bunching up together.14
This testimony was not further clarified on the record.
Cremeans was assistant foreman for department 9, which is the paint shop. At
the time of the described incident Reynolds, who was in the inspection department,
department 50, was assigned as an inspector in department 9. Reynolds was super-
vised by the foremen for department 50 and not by the paint foremen. Reynolds
also. testified that many people knew that he was an active supporter of the Peti-
tioner. Assuming that Cremeans attempted-to engage Reynolds in a debate about
the relative advantages of the two competing unions, there is no evidence that
Cremeans used any threats or caused Reynolds to believe that he might be the subject
of any reprisals because of his advocacy of the Petitioner. There may have been
several reasons for Cremeans' direction to Reynolds that he avoid speaking to the
painters. One possible explanation is that the order was given in the interest of ef-
ficiency and discipline. Reynolds, however, attributed a discriminatory motive to
the order. It does not appear that Reynolds' explanation of Cremeans' order is
based upon anything more than speculation. Reynolds' testimony does not support a
finding that Cremeans communicated to Reynolds his purported reason for the
order. Accordingly, I find nothing objectionable with Cremeans' direction to
Reynolds not to speak to the painters. See Larsen-Hogue Electric Co., 97 NLRB
1405, 1407.
Reynolds also testified that 9 or 10 days before the election he saw Cremeans pin
a badge indicating support for the Intervenor on another employee, Mrs. Hattix.
Cremeans denied he had done so and Mrs. Hattix was not called as a witness.
Even were I to credit Reynolds' testimony there are too many innocuous explana-
tions for the incident to permit any incriminatory inferences to be drawn from it.
Joseph Patterson testified that 2 or 3 days before the election Cremeans pulled
pencils out of his pocket and tore the tops, which had UAW-CIO printed thereon,
off the pencils. Cremeans denied the occurrence. Patterson is a deaf person. At
the hearing counsel submitted their questions to him in writing and Patterson
answered orally. Patterson could be understood, although with difficulty. For
UAlthough Cremeans gave a different account of the conversation, I credit Reynolds.
AERONCA MANUFACTURING CORPORATION 479
these reasons his examination both on direct and cross was not extensive and no
genuine effort was made to obtain from him any full description of the events about
which he testified or otherwise to test his credibility . In the circumstance, I can-
not give any greater weight to Patterson 's testimony than to Cremeans ' denials.
Hence, I do no credit the foregoing testimony by Patterson.
8. Activities of Assistant Foreman Seevers
Employee Otho Wisman testified that about a week before the election he
had the following conversation with William Seevers:
I told [Seevers] I didn 't see any use of an election , or something like that, and he
said, well , the bunch of CIO was just a bunch of commies , to his estimations;
he had been there fourteen years and he had got along without them, he didn't
see why the people couldn 't get along without them now.
This was not denied . The Petitioner argues that Seevers' statement was coercive
and defamatory. I do not find that the statement was coercive. Although Seevers'
reference to the Petitioner was disparaging, vilification of a labor organization does
not constitute a ground for setting aside an election.
9. Activities of Foremen Webster and Duke
Employee William H. Hood who works on the first shift was temporarily
transferred to the second shift for a period of about 2 weeks beginning on January
3, 1956. His foreman on the first shift was William Webster and on the second
shift was David Duke. According to Hood , a couple of days before he went on
the second shift he had a conversation with Webster during which the latter asked
Hood what he thought about the coming election and how he was going to vote
and told Hood that "if the CIO did get in , we would lose contracts ." Hood further
testified that on another occasion before he was transferred to the second shift,
Webster came over to him and said he knew only nine people who would vote for the
CIO. Hood replied that he himself knew more than nine people.15 On cross-
examination Hood testified that the latter incident occurred while he was working
on the second shift . When reminded of his testimony on direct examination Hood
explained he might have been mistaken and that the conversation might have oc-
curred either while he was working on the first or on the second shift . As to his
first conversation with Webster, Hood testified on cross-examination that it could
have taken place as long as week before the second conversation . When it is re-
called that the Board 's Decision and the Direction of Election herein was issued on
Wednesday, December 28, 1955, and thereafter Hood worked only 2 more days on
the first shift before he was transferred to the second shift, it is uncertain from
Hood's testimony whether either of the described incidents took place on or
after December 28, 1955.
In evaluating evidence offered in support of a party's objections to an election,
it is the Board 's policy to ignore misconduct which occurred before issuance of
the decision and direction of the election (F. W. Woolworth Co., 109 NLRB 1446),
primarily because such events are deemed to have been "unreasonably remote"
from the date of the election . M. W. Breman , 115 NLRB 1581. Unlike a
statute of limitations , which must be affirmatively pleaded by the party asserting
the same, the timeliness of election misconduct is always in issue in a representation
proceeding regardless of whether specifically raised by any of the contesting
parties. This is because a hearing on objections to an election is not an adversary
proceeding but a means used by the Board of implementing its functions under
Section 9 of the Act of determining in the public interest questions of representation.
The Woolworth case, therefore , establishes a rule of relevancy, and it is the obliga-
tion of the proponent of an objection to establish that the conduct it relies upon
was sufficiently proximate to the date of the election as to have had a substantial
effect on the results. Because it has not been adequately established that the
aforedescribed conversations between Hood and Webster took place on or after
December 28, 1955, the date of the Board' s Decision and Direction of Election
herein, no weight may be given thereto in this proceeding.
Hood further testified that after he had been transferred to the second shift
Webster "came over one afternoon and said he was betting three to two that
the CIO wouldn't get in ." Duke, who was present on that occasion , said, "I
will give the same bet." Webster did not deny the incident , although Duke did.
However, assuming the event as testified to by Hood , I do not spell from it any
151 credit Rood's testimony rather than Webster's circumspect denials.
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
indicium of interference. The record is replete with evidence that the Petitioner's
supporters among the employees were not timid about advertising their union
sympathies and arguing the merits of their choice with supervisors and other repre-
sentatives of management who may have indicated preference for the Intervenor.
In the environment of free, uninhibited debate which prevailed during the critical
preelection period in this case Webster's offer to wager on the outcome of the
election did not bear any coercive implications. Calvine Cotton Mills, Inc., 98
NLRB 843, 846.
10. Activities of Assistant Foreman Rollie Hamilton
Arnold Buchanan testified to a conversation with Hamilton. The Petitioner relies
upon the incident not because of any asserted impropriety in the remarks made by
Hamilton, but because it illustrates "the extent of Hamilton's campaigning efforts."
However, I find that even for this limited purpose no weight may be given to
the incident because it was not established that the conversation took place within
the critical preelection period.16
Employee Eugene Eaton, who impressed me as having an excellent recollection
of the events about which he was questioned, credibly testified that about the
first week in January 1956 he had the following conversation with Hamilton:
Q. And what did he say to you?-A. He said, "There is no use of me asking
you how you are going to vote," he said, "You with a CIO shirt on, and two
buttons: I guess that speaks very plain." And I said, "Yes, I guess it does."
Q. What else did he say to you?-A. He said, "You have got a pretty
good car, I would hate to see you lose it." And I said, "Well, I would hate
to lose it, but we ain't going on no strike, not for a long while."
Q. Did he say anything about the Independent Union?-A. He said, "You
ought to be able to see things as I do." He said, "The Independent has been
awfully good to us in the last few years we have had it, they have always
come up with a raise every year."
Q. Did he say anything about contracts?-A. He said that he was told
that if the election was won by the CIO that half of the contracts that we
had at the time would be pulled.
Upon the basis of the cases cited above, I find that the foregoing is not deemed to
be objectionable by the Board.
Eaton further testified credibly that Hamilton said to him that "the Company
would deal with an Independent Union better than they would with the CIO."
The coercive effect of this remark must be evaluated by considering its source
and its background. Hamilton was 1 of approximately 88 foremen and assistant
foremen in the Company's employ. There is no evidence that he enjoyed any
special confidence of management or that the employees thought he did. The
Employer through the agency of its president, John Lawler, industrial relations
manager, Jack Linzie, and personnel manager, Paul Moore, widely published its
views on the election, including its forecasts as to what the employees might anticipate
if the Petitioner were to win. No statement attributed to Lawler, or even to Linzie
or Moore, indicated that the Employer would deal differently with the Petitioner
than with the Intervenor. Thus, Hamilton's statement to Eaton in that regard can-
not be considered as a reflection of management's attitude, but was rather an
expression of Hamilton's personal opinion. The record shows that there was much
union discussion during the preelection period among the employees (during non-
16 Buchanan in testifying to an incident involving Foreman Lee first said he did not
know when it occurred. When reminded that he fixed January 10, 1950, as the time of
the event in an affidavit previously submitted to a Board representative (which affidavit
was admitted in evidence for the purpose of impeachment to show inconsistent testimony
by the witness with respect to dates) he answered, "If that's the statement, I presume
it is more accurate than what I could tell you." Thus, Buchanan's testimony shows he
merely adopted the date given in the affidavit and that reference to the affidavit did not
refresh his recollection of the event. As to the conversation with Hamilton, Buchanan
testified that he was unable to recall how long before the election it took place, but he
presumed it was about the same time as the incident involving Lee. However, in the
same affidavit where Buchanan stated that the Lee incident occurred on January 10,
1956, he estimated his conversation with Hamilton as having occurred 3 or 4 weeks
before the election. Even were Buchanan's testimony credited, it does not establish with
acceptable certainty that his conversation with Hamilton followed the issuance of the
Decision and Direction of Election herein.
AERONCA MANUFACTURING CORPORATION 481
working hours and covertly during working time ) and between employees and
supervisors . Likewise , the record demonstrates that in discussions with supervisors
and even with Company President Lawler the Petitioner 's adherents , in general,
were not hesitant about defending their choice and at times were quite aggressive
in presenting their views . In these circumstances and considering the vigor with
which all parties were campaigning , Hamilton's remark was not significant enough
to have had any effect upon the results of the election . Morganton Full Fashioned
Hosiery Company, 107 NLRB 1534, 1538.
Billy Paul Winebarger testified as follows:
Q. Did anybody ever ask you to take off your CIO badge that you were
wearing?-A . Well, they didn 't exactly tell me to take it off , they just gave it
to me in a way that I had better take it off.
Q. Who gave that to you?-A. Well, Rollie Hamilton, he came and told
me a couple of times, said he couldn 't hardly believe his eyes when he saw
me with a CIO badge on.
Q. He didn't order you to take it off , did he?-A. No.
Contrary to the Petitioner , I find no evidence of coercion in this testimony.
11. Activities of Assistant Foreman Dale Lee
Employee Roy Hall testified to a conversation with Assistant Foreman Dale
Lee. Lee was not called as a witness . Therefore, upon the basis of Hall 's uncon-
tradicted testimony , I find that the following took place:
On January 10 or 11 , 1956, Lee in a conversation with Hall told the latter
that if the CIO won the election the Employer would lose some of its contracts,
and that it would be better to continue the Independent as bargaining agent in
order to avoid loss of employee privileges . Lee also referred to the good record
of the Intervenor , namely, that there had not been a strike in 10 years, and to
the Petitioner 's reputation for calling strikes and suggested the possibility of a strike
at Aeronca should the Petitioner win the election . For reasons referred to in other
sections of the report ( see particularly discussion of conversation between Rollie
Hamilton and Eaton ) I find nothing significantly coercive in the foregoing.
12. Activities of General Foreman Elmer Weirauch
Ben Heitfield testified that about a week before the election , during a de-
partmental meeting, the following occurred:
He [another employee] asked the question how Elmer thought about the
coming election , and Mr. Weirauch said that he was impartial to it, he had
been through these things before, that he said he understood that outside
interests were going to ask for a 25 cent raise , and that , he casually opened
his notebook at that time, and he said that 25 cents an hour raise, and he
multiplied that by the number of people working at Aeronca, times 40 hours
a week, times 52 weeks a year, and he came up with something around
$750,000, and he said the Company couldn't afford it, they would go broke.
By itself, I find nothing objectionable in the foregoing.
13. Activities of Foreman Malcolm Profitt
Employee Bertha Cooley testified without contradiction that at a departmental
meeting held by Profitt about January 11, 1956, he said that he hoped the employees
would vote the right way because in the event of labor unrest it was possible
that the Company would lose contracts. Profitt then asked for comments and
one of the employees asked him, "Do you mean to say that if-that Boeing will
not let their contracts to anyone that has the CIO?" Profitt replied, No, he didn't
mean it that way, he meant that if there was labor unrest Boeing would be afraid
that Aeronca would be unable to meet its delivery schedules. At this point Cooley
with her own specific problem in mind asked whether foremen were being unfair
in favoring some employees by promising them raises and whether this was the
reason employees wanted a different union. Profitt said that he agreed to some
extent. Subsequently, on the day before the election, Cooley stopped Profitt and
asked whether he had given any further thought about obtaining a raise for her.
Profitt answered, "I don't see any reason why I can't get you a raise. Others are
reclassifying their employees , and getting them raises, and I don 't see why I can't
you. I think that I could get you reclassified to a B-7 assembler and that way
450553-58-vol. 118-32
482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
you can make the same money as the rest of them in here." Cooley did not re-
ceive a raise.
I find, contrary to the Petitioner, nothing objectionable has been proved by
Cooley's testimony. As to the raise, she initiated the discussion and, except for
the time she herself selected for bringing up the matter, there was no relationship
between Profitt's comments about her raise and the pending election. The Liberal
Market, Inc., 108 NLRB 1481, 1484-1485.
14. Activities of Foreman Robert Anthony
Considerable evidence was offered concerning a departmental meeting held by
Foreman Anthony. Upon consideration of all the testimony offered with regard
to the event and my opinion as to the relative credibility of the various witnesses
who testified upon the subject, I find that the most reliable account of the incident
was given by William Woolums. I therefore credit the following testimony by
Woolums: Foreman Anthony held a meeting of the second-shift employees of the
department which he supervised on January 4, 1956. He opened the meeting with
a discussion of departmental problems. Then, referring to the pending election,
said that if the CIO became the bargaining representative Boeing Aircraft Company
would transfer 40 percent of their orders with the Employer elsewhere in order
to insure an alternate source for parts in the event of a strike at Aeronca and that
would mean a 40-percent layoff by the Employer. In response to questions asked
by employees attending the meeting Anthony said that with the CIO as repre-
sentative a small number of employees could authorize a strike and pickets would
be paid only $1 per day. Some of Petitioner's adherents in the audience contra-
dicted Anthony with respect to several of his assertions.
Anthony's comments on the occasion in question fall into the category of prophecy
which the Board normally does not find constitutes objectionable employer cam-
paigning. The Petitioner argues that the departmental meetings 'held by Anthony,
Weirauch, and Profitt during the critical preelection period whereat these foremen,
in effect, urged the employees in their respective departments to vote against the
Petitioner, constituted interference with the election. Petitioner cites Radiant Lamp
Corporation, 116 NLRB 40, in support of its position. In the Radiant Lamp case,
the employees in groups of 30 were brought into the recreation room where a
company officer described to them the disadvantages which they might anticipate
with union representation . In this fashion the company propagandized approxi-
mately 180 out of 190 eligible voters.11 The Board held that such interviews
"creates an atmosphere which prevents the employees from expressing themselves
as freely and fully as they otherwise might, and constitutes conduct calculated
to interfere with their free choice in the election regardless of the noncoercive
tenor of the Employer 's remarks ." The circumstances here are altogether different.
The three meetings referred to by Petitioner were regular departmental meetings at
which only incidentally was the pending election discussed and were not meetings
of employees specially called for the sole purpose of presenting the Employer's
campaign position. Furthermore, the meetings here were conducted by foremen
rather than higher managerial representatives , and unlike the Radiant Lamp case,
the rank-and-file employees freely expressed themselves at the meetings . Finally,
and most significantly, only about 120 employees in the unit of 1,200 or approxi-
mately one-tenth of the eligible voters, attended these meetings, whereas in the
Radiant Lamp Corporation case substantially all eligible voters were interviewed.
I find, therefore , that the principle expressed in the Radiant Lamp case is not
applicable here.
15. The no-solicitation rule
For more than 10 years the Employer has had in effect the following no -solicitation
rule:
No Aeronca employee will be permitted to make any solicitation on Company
premises without permission from the Personnel Department.
This rule is not per se unlawful. Without disputing this fact the Petitioner, however,
urges:
It is our contention that the no-solicitation rule of the Company was utilized
for the purpose of preventing and impeding the organizational activity of the
UAW because:
17 See also Supreme Trailer Company, 115 NLRB 962, where the Board set aside an
election because the Company's attorney interviewed all the employees with only 1 ex-
ception in groups of less than 24.
AERONCA _MANUFACTURING CORPORATION 483
1. The Company permitted supervisors, including group leaders, to solicit
employees on Company time and property; 18
2. The Company permitted independent representatives to solicit on Company
time and property;
3. The enforcement of the rule was not for the purpose of increasing plant
production and efficiency but to discourage the employees from voting for
the UAW.
The record does not sustain the Petitioner's second and third arguments, quoted
above. Considerable evidence was adduced on behalf of the Petitioner as to various
violations of the no-solicitation rule by representatives of the Intervenor. However,
the record also shows that during the preelection period the Petitioner's adherents
likewise engaged in union solicitation on company time. The Petitioner sought to
prove that the Employer condoned violations of the no-solicitation rule by the
supporters of the Intervenor during the preelection period. I have reviewed all the
evidence in this regard and find that the Petitioner has not succeeded in proving
such fact. I find that there is insufficient evidence to establish that union solicitation
on the part of any rank-and-file employee was done with the approval, express or
implied, of the Employer. It may be true that the Intervenor's representatives, who
were permitted to process grievances during working hours under the terms of the
collective-bargaining agreement with the Employer, had more chances to engage
in covert solicitation on company time than had the supporters of the Petitioner
and took full advantage of their opportunities, 19 but this is not proof that the
Employer knew of and condoned such conduct.20 I find that it has not been estab-
lished that the Employer either enforced its no-solicitation rule to interfere with
the Petitioner's election campaign or applied the rule in a discriminatory manner
in order to assist the Intervenor.
On the other hand, there were frequent violations of the no-solicitation rule during
the preelection period by various supervisors. The question then is raised whether
it is interference with an election for an employer through the agency of its super-
visors to ignore a no-solicitation rule which is being enforced against the rank-and-
file employees. Is this such a disparate application of an otherwise valid no-solicita-
tion rule as will prevent a free choice of representatives? The Petitioner cites The
Gruen Watch Company, 108 NLRB 3, 5, where the Board said:
It is well established that an employer's discriminatory application of an other-
wise valid no-solicitation rule violates the Act where, as here, it is enforced
against union solicitation and the employer uses its premises as a forum for
solicitation against the union.
However, the Petitioner recognizes that the foregoing was subsequently modified in
Peerless Plywood Company, 107 NLRB 427. Analogously, the Board in Livingston
Shirt Corporation, 107 NLRB 400, held that there was no violation of employee
protected rights when in the face of a no-solicitation rule the employer several days
before a Board election made an antiunion speech during working hours to as-
sembled employees and denied the union an opportunity to reply under similar
circumstances. More recently, in Nutone, Incorporated, 112 NLRB 1153, 1154,
the Board held that: "Valid plant rules against solicitation and other forms of union
activity do not control an employer's actions. Management prerogative certainly
18 In the Petitioner's original objections herein the only reference to any violation of
the no-solicitation rule was "that the Employer permitted the free run of the plant for
electioneering by the Intervenor but denied the same right to the Petitioner." This ob-
jection does not raise any issue with regard to violation of the rule by supervisors. How-
ever, in its exceptions to the Regional Director's report on the objections the Petitioner
alleged
Although the Employer had a rule against electioneering on working time, it per-
mitted supervisors to wear the Independent's buttons, and the Employer, itself,
electioneered on Company time and property against the Petitioner and for the
Independent.
Because the Board ordered the instant hearing to resolve the "issues raised by the said
objections and exceptions," without indicating any limitations, the hearing officer is of
the opinion that pursuant to this order the Petitioner was entitled to litigate matters
raised for the first time in its exceptions to the Regional Director's report. Cf. General
Electric Company, 115 NLRB 306.
lg See Seaboard Terminal and Refrigeration Company, 114 NLRB 754, 755.
211 likewise find that the Intervenor affixed posters to plant fences on the day of the
election without permission or advance knowledge or other approval of the Employer.
484 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
extends far enough so as to permit an employer to make rules that do not bind
himself." There are, of course, factual differences between the instant case and
the Peerless Plywood, Livingston, and Nutone cases, but no distinction in principle.
The fact that the Employer permitted supervisors to campaign against the Petitioner
during working hours while denying similar privileges to rank-and-file employees
did not deprive the employees of the opportunity for expression during times when
they were not being paid to work by the Employer and did not prevent them. from
exercising a free choice in the election.
16. Supervisors wearing campaign buttons
The Petitioner adduced evidence that five supervisors during the preelection period
for brief intervals wore buttons or badges indicating sympathy for the Intervenor.
The credited evidence shows that Richter, Seevers, Lee, Webster, and Hart 21 each
wore such buttons only once and for a period of between 5 minutes and 1 hour.
Although unquestionably this conduct indicated the wearer's preference for the
Intervenor, I do not find that it interfered with the election. By this finding I do
not mean to pass upon the question of whether interference might not be spelled
out in other circumstances where a greater proportion of supervisors were to wear
union badges for more extensive periods of time. Here, a total of 5 supervisors
out of more than 88 wore badges for a combined total of time not exceeding 5 hours
during a period when the election campaign was being vigorously fought by all
participants. In such circumstance, the impact of this conduct was too trivial to
have had any significant influence upon the results of the election. Rheern
Manufacturing Company, 114 NLRB 404, 406.
Conclusion
I have found, as did the Regional Director in his report on objections, that no
single incident or group of related incidents interfered with the employees' oppor-
tunity to register freely their choice at the polls. However, Petitioner in its exceptions
to the Regional Director's report contended:
Petitioner's Objection to Election is leveled at the total misconduct of the.
Employer. The Regional Director has mistakenly considered each numbered
allegation of fact or specification as a separate objection. Whether this approach
was deliberate or in error, he has employed it for the purpose of treating each
allegation of fact as an isolated incident. Thus he was enabled to wholly ignore
the accumulated effect of the Employer's misconduct. We claim that he was
in error in not considering the accumulated effect of the Employer's misconduct
on the results of the election. Had he considered the accumulated effect of the
Employer's misconduct he would have found that the atmosphere caused by
the Employer was incompatible with the employees ' exercising a freedom of
choice for bargaining representative.
This argument raises the question whether, even absent any specific improprieties„
the Employer's campaign activities considered in their entirety unfairly affected
the results of the election.
From the perspective of the number of voters reached by its propaganda, the
Employer's most important campaign tactics were President Lawler's talk to the
employees and the Employer's publications which were disseminated to them. On
Thursday, December 29, 1955, the day after the Board issued the Direction of
Election, President Lawler, in a speech to the employees, recounted to them the
benefits they had received while they were being represented by the Intervenor and
predicted economic suffering for them if the incumbent representative were replaced
by the Petitioner. Then, on January 3, 1956, following the New Year's holiday,.
the attack upon the Petitioner was renewed in a letter from Industrial Relations
Manager Jack Linzie which was mailed to all employees in the unit. The following
week the Employer accelerated the tempo of its campaign. On Monday, Wednesday,
Thursday, and Saturday, January 9, 11, 12, and. 14, 1956, additional letters, all
bearing President Lawler's signature, were mailed to the employees. These letters re-
emphasized the Employer's thesis that the employees' best interests would be served
211 accept Floyd Buchanan's testimony that George Hart was an assistant foreman
only because it was not contradicted at the hearing, although the Employer's compila-
tion of supervisors and lea.dmen which was accepted as an exhibit in this case after the
close of the hearing shows that Hart was a leadman. There was testimony about George
Harsch. However, the witness who testified was uncertain as to whether Harsch was a
foreman, and I find that his supervisory status was not established at the hearing,
AERONCA MANUFACTURING CORPORATION 485
by preserving the status quo and that all they could anticipate from a change of
bargaining representative was strikes and economic suffering . On Friday (January
13) of the same week, in its newsletter distributed to the employees, the Em-
ployer advised them that "the election will decide the future of all our jobs and
our Company." With the election scheduled for Wednesday, January 18, 1956, the
Employer wound up its campaign with a letter from Personnel Manager Paul Moore
which was mailed to the employees on Monday, January 16. To add color to its
principal propaganda theme that a victory for the Petitioner would probably be
followed by an economic setback for the employees, the Employer made frequent
disparaging references to the Petitioner and its agents and with not too much subtlety
suggested that the Petitioner was concerned with advancing its own selfish interests
rather than the employees' welfare.
The basis expressed by the Employer for, its many predictions that economic suffer-
ing would follow selection of the Petitioner as bargaining representative was that
the Petitioner as an aggressive union probably would seek to enforce excessive wage
demands with a strike, and the possible consequence of a strike would be loss of
business for the Employer with a consequent reduction in its work force. This theme
found its substance in the fact that the Employer' s business is largely devoted to
the manufacture of airframe parts under subcontracts from Boeing Aircraft Company,
and in the event of a strike or other labor difficulties which would affect production
Boeing could cancel a substantitial portion of its orders. The Petitioner contends
that this propaganda • was deceptive. However, the evidence shows that the Em-
ployer's deliveries are geared to Boeing's production schedules and that the contract
between Aeronca and Boeing provides that in the event Aeronca is unable to meet
its delivery commitments Boeing has the right to cancel the agreement. Thus, a
strike at Aeronca which would stop or delay production could result in cancellation
by Boeing of its contract. There is no savings clause in the agreement which excuses
non-performance in the event of a strike as there is no clause which gives Boeing
the right to cancel merely because of the existence of a strike. The employees were
well aware of these conditions of the Employer's contractual arrangement with
Boeing. I find, therefore, contrary to the Petitioner, that the Employer did not
thereby engage in deceptive campaigning.
Also, during the critical preelection period, there were three departmental meet-
ings and a number of conversations between employees and representatives of man-
agement at which directly or indirectly the employees involved were urged to vote
against the Petitioner. Unlike the Employer's publications, this conduct does not
appear to have been deliberately included as part of the Employer 's planned elec-
tioneering campaign. In large part these attempts at personal persuasion were
the natural responses of the Employer's agents to opportunities which arose whereby
they could engage in electioneering and express their views with respect to the
pending election. Less than 200 employees were involved in the 3 departmental
meetings and the personal interviews in contrast with the fact that the Employer's
campaign literature was disseminated to all 1,200 employees in the voting unit. These
casual and informal personal approaches to a relatively small proportion of em-
ployees in the unit, particularly because they did not include any threats of reprisal
or promises of benefit, I find did not change the essential nature of the Employer's
election campaign.
The sum of the Employer's activities during the critical preelection period totals
to an intensive electioneering campaign. In the landmark General Shoe Corporation
case,22 the Board stated:
We do not subscribe to the view, apparently held by our two dissenting
colleagues, that the criteria applied by the Board in a representation proceeding
to determine whether certain alleged misconduct interfered with an election
need necessarily be identical to those employed in testing whether an unfair
labor practice was committed, although the result will ordinarily be the same.
In election proceedings, it is the Board's function to provide a laboratory in which
an experiment may be conducted, under conditions as nearly ideal as possible,
to determine the uninhibited desires of the employees. It is our duty to estab-
lish those conditions; it is also our duty to determine whether they have been
fulfilled. When, in the rare extreme case, the standard drops too low, because
of our fault or that of others, the requisite laboratory conditions are not present
and the experiment must be conducted over again.
The Board thus recognizes that it is only a rare extreme case which offers justification
for vacating an election in the absence of conduct which in a complaint proceeding
77 NLRB 124, 127.
486 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be found to be an unfair labor practice. Examples of such cases are provided
by Peerless Plywood Company, 107 NLRB 427; Economic Machinery Company,
111 NLRB 947; Falmouth Company, 115 NLRB 1533; The Electric Auto-Lite
Company, 116 NLRB 788; and Bata Shoe Company, Inc., 116 NLRB 1239. The
only basis for including the instant proceeding in the "rare extreme case" category
is that the Employer was vigorous in its preelection campaigning . But this cannot
be objectionable. It is now clear (contrary to the Board 's policy during the early
days of its administration of the Act) that an employer has the right to express its
preference between competing unions and to supplement his opinion with reasons in
order to persuade the employees to vote for the choice he favors. If the Employer
may seek to influence the employees in their selection of a bargaining agent, logically,,
he may do so in a manner which has the greatest likelihood of success provided
only that he does not engage in prohibited conduct. So long as there is no require-
ment that an employer maintain an attitude of neutrality during a union election
campaign, there can be no legitimate reason why there should be any fetters upon
the intensity of his electioneering activities.
The record demonstrates that not only the Employer but the Petitioner and the
Intervenor also campaigned vigorously during the preelection period. The sup-
porters of both unions among the employees engaged in free and uninhibited debate
about the merits of their choice. The Employer did not impose any unlawful curbs
upon free expression by the employees. Campaign insignia was openly worn in the
plant by the Petitioner's adherents as well as by the supporters of the Intervenor.
Literature published by the Petitioner was distributed openly at the entrances to.
the plants and was brought inside the plants just as freely as the literature distributed
by the Intervenor. The rank-and-file employees not only argued the merits of the
contesting unions among themselves, but also freely debated the question with
their supervisors and even with the Employer's president. Although one witness
testified, in effect, that he feared reprisals for his support of the Petitioner, upon
consideration of all the testimony adduced before me, I am of the opinion that
the Petitioner's supporters among the employees had no genuine fears of reprisal.
Certainly the openness, and ofttimes the belligerency, with which they expressed
themselves at the plant would belie any contention that they were denied the op-
portunity of free expression during the preelection period. If the Employer's
campaign was effective, as I assume it was, it was effective not because the Em-
ployer created an atmosphere of unreasoning fear in its plants so that the employees'
opportunity to exercise a free choice at the polls was impaired, but because the
Employer was adroit in advertising its preference and persuading the employees
to accept it.
I conclude, therefore, that the Employer's total conduct during the critical pre-
election period did not interfere with the employees' ability and opportunity to,
exercise a free reasoned choice in the election.
RECOMMENDATION
It is recommended that the Petitioner's objections to conduct affecting the results
of election in this case be overruled in their entirety and that an appropriate
Certification of Representatives issue.
APPENDIX A
PETITIONER'S EXHIBIT 2B
AERONCA MANUFACTURING CORPORATION
Middletown, Ohio
Phone: 2-2751
January 3, 1956
To All Aeronca Men and Women:
The CIO has started their hocus-pocus to mislead you. They (the CIO)
pulled from thin air the idea that the Government caught the Company making
Secret Deals with the Independent Union. This is far from the truth.
The Labor Board stated in their decision:
"We conclude, under all the circumstances of this case, that the July 27
supplement did not meet the clear and explicit requirements of the contract
it purported to modify. It -failed, therefore, effectively to suspend the unlawful
union security provision of the contract."
This twisting of the truth is just a method of the CIO to divert your attention
from the real issue. It is somewhat like the magician who in putting on
his show makes a lot of motions with one hand so you cannot tell what
AERONCA MANUFACTURING CORPORATION 487
is actually happening to the main issue in the other hand. That is the situation
here. The CIO is picking on a technicality in the law and using it to divert
your attention from the real issues in the forthcoming election.
Here are the facts of the case:
(a) On March 3 the Independent Union and the Company signed the
present contract which contained many clauses such as seniority, sick leave,
vacations, and other things affecting wages, hours, and conditions. One clause
in the contract which is typical of union contracts, including the CIO, deals with
union security. This clause states that if you become a member of the union
you must remain a member of the union until the anniversary date of the
contract. This is the clause that the CIO is shouting about even though they
have it in their contracts.
(b) Under the National Labor Relations Law it states if you have a security
clause in your contract that the Union must be in compliance on their non-
communist affidavits and their financial statements. The Independent Union
did not have their certificate of compliance when the March 3 contract was
signed. Therefore, under the law the contract signed by the Independent
Union and the Company on March 3 would not be a bar to an election. In
all other respects it was a legal and binding contract.
(c) The fact that a contract is not a bar means that a rival union can
petition for an election and in this case the CIO could have asked for an elec-
tion any time they were campaigning from last November until the Independent
Union came into compliance.
(d) On July 27 the agreement which the CIO plays up was merely a statement
from the Independent Union saying they would like to suspend the union
security clause until the compliance papers were received from Washington.
To this the Company agreed.
(e) Normally it would have been a matter of a few days until compliance
had been received from Washington but due to the forms having to be re-
submitted on two occasions to the Government, the final compliance was not
received until August 25. The CIO had filed their petition on August 19. Had
they filed their petition six or seven days later it would have been disallowed
and the contract would have stood as a bar. Their petition was allowed
because of the technicality and the time of the filing.
In closing I would like to leave these thoughts in mind with you.
(1) The coming election is not to decide technicalities of the law-but what
kind of conditions and relations will exist here at Aeronca after the election.
(2) The contract with the Independent Union is a valid contract and only
one clause of that contract was questioned. The contract was not disallowed
by the National Labor Relations Board but it only gave the right to the CIO
to petition for an election.
The brief of the hearing in Cincinnati and of the decision by the Labor Board'
are available in the Personnel office. If you have any questions concerning-
either the hearing or the order, please drop in and examine the official docu-
ments of the Labor Board.
Sincerely yours,
( Signed ) Jack Linzie.
JACK LINZIE.
Petitioner 's Argument:
The Petitioner refers to the paragraph next to the last in the above letter and
argues that it bears the following implication:
If employees voted for the Petitioner and the Petitioner won, employees would
be bound by provisions of Independent 's contract, including the union -security-
clause . Thus a vote for the Petitioner would be futile. This is a false and
misleading statement of material proportions.
Comment:
The above-quoted letter purports to answer the Petitioner 's accusation that "the-
Government caught the Company making Secret Deals with the Independent Union."
The author attempts to explain the meaning of the Board 's decision in the represen-
tation proceeding . The paragraph referred to by the Petitioner means no more-
than that the National Labor Relations Board has not declared the entire contract
between the Company and the Intervenor invalid , which is the fact . See N. L. R. B.
v. Rockaway News Supply Company, Inc., 345 U. S. 71. Nowhere in the letter is
it stated that the employees would continue to be bound by the terms of the contract
were the Petitioner to win the election . Therefore, Petitioner's criticism of the letter
is not aimed at what was falsely stated , but at what was left unsaid . In essence,
488 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Petitioner's argument is that the author's failure to discuss the effect of certification of
the Petitioner upon the continuity of the agreement ( see American Seating Company,
106 NLRB 250) was construed by the employees to mean that it would have no
effect whatsoever . Why the employees should have obtained such impression from
the author's omission (this, of course, assumes without any supporting proof that
the employees closely analyzed the letter and noticed it made no reference to the
status of the current agreement in the event that the incumbent union were to lose
the election ) is not explained by the Petitioner . I find nothing in the language of the
letter to support Petitioner's suggested construction. I find, therefore, that the letter
does not include any false or misleading statements of material proportions. Unity
Manufacturing Company, 107 NLRB 21; Stewart-Warner Corporation, 102 NLRB
1153, 1157-1158.
PETITIONER 'S EXHIBIT 2c
AERONCA MANUFACTURING CORPORATION
Middletown, Ohio
Phone: 2-2751
January 9, 1956
To All Aeronca Men and Women:
Most important date on your calendar-and mine-is January 18, 1956.
That was chosen as Election Day by the Labor Board when they met in Cin-
cinnati with the Independent Union, the CIO and the Company. The election
will be held in each of our three plants . The bulletin board in your plant will
announce the exact hour and place where you can cast your vote.
You will remember that at our meeting of all Aeronca folks a few weeks ago,
I explained how vitally important this coming election is to you, your family
and our Company . We have come a long way from the dark days of 1949. As
our Company income increased , our wages , too, were increased . We lost no
time because of strikes; our jobs were not threatened because of labor trouble
within our organization . We worked in peace and harmony; the future of our
jobs seemed brighter and more secure as our orders increased. Last year, our
Company was able to make a profit ; not large, ( 3 cents on each dollar of sales)
but it looked encouraging . It began to look like 1956 would be a good year
for all of us who worked at Aeronca.
Now the CIO boys have moved in, anxious to get their hands on a big
slice of your paycheck . These men are outsiders-from outside of our or-
ganization , outside of our community . To get their hands into your pockets,
they promise you the moon , if you would believe them . Since their arrival
in town , they have already told enough deliberate untruths to show how eager
they must be to get a cut of the wages of Aeronca men and women. What
other purpose could these outsiders have, except to line their own pockets with
your money?
In case you might be led to believe that CIO methods are all sweetness and
beauty, take a look at the enclosed booklet . The pictures and words describe
a sample of what happened when the CIO outfit decided to muscle in on the
employees of the Kohler Company. See what happened to a peaceful town,
to peaceful homes. Heaven forbid that these same conditions ever happened
to us here at Aeronca!
That is why I remind you again of the importance of your vote in the Jan-
uary 18 election . That election will decide the future of our jobs and our Com-
pany. It will affect the security of every Aeronca family.
I shall keep you informed of how the election campaign is going. Mean-
while, I seriously suggest you talk over with your family the tragic, but true,
story in the enclosed booklet, and consider it most thoughtfully.
Sincerely yours,
( Signed ) J. A. Lawler.
JOHN A . LAWLER.
Petitioner's Argument:
The Petitioner argues that the next to the last paragraph of the letter contains
a threat of reprisal because it implies that "if the UAW wins, the Company's
disposition would be such toward the UAW as to cause loss of employment."
Comment:
The letter contains no threat that the Employer will use its economic power to
cause loss of employment. At most it prophesies that successful organization
by the Petitioner might be attended by strikes which ultimately could lead to loss
of employment . Such prognostication is not considered by the Board to be coercive.
AERONCA MANUFACTURING CORPORATION 489
Lanthier Machine Works, 116 NLRB 1029; Barber Colman Company, 116 NLRB 24,
and cases therein cited. Furthermore, enclosed with the letter was the Kohler
of Kohler News for April 1955. This booklet accuses the UAW of responsibility
for the troubles at the Kohler plant and suggests that the Kohler Company and its
employees are the innocent victims of the UAW's struggle for power. Particularly
when the letter is considered together with the enclosed Kohler News its predictions.
of possible future loss of employment are derived from anticipated action by the
Petitioner rather than by the Employer. Accordingly, I find that the letter does
not carry the implication suggested by the Petitioner.
PETITIONER'S EXHIBIT 2D
AERONCA MANUFACTURING CORPORATION
Middletown, Ohio
Phone 2-2751
January 11, 1956
To All Aeronca Men and Women:
This coming election, as far as our Company is concerned, is not a
"battle of promises." In the heat of a campaign, when we are -being attacked
savagely, we shall not resort to wild promises that we cannot fulfill. We are
a responsible business concern, doing a most important job that Uncle Sam
wants done at an important time in our nation's history. We have the responsi-
bility of making enough money to meet out payroll regularly every payday,
and doing business honestly, legally and above-board. We can not, and will
not, resort to giving rash promises that we can not carry out when the time
comes to make good on them.
You may remember when we all met on that Thursday just before New Years.
I recalled to you at that time the promises our Company made to you several years.
ago, and which I felt had been fulfilled to the best of our ability. You can be sure
that we will always strive to improve things at Aeronca, make them better as we
are able. We will honestly and faithfully keep our word in the future as we have
in the past.
On the other hand, during this election campaign, many promises have been
made, and more will be made, by the CIO. That is one of their specialties.
They hire high-priced, professional organizers and propaganda writers who do
nothing else, day after day and year after year, but write and talk about
the CIO. They are professional promise-makers. They hold meetings where
people hear only one side of the story-the CIO story. In these private
meetings , these CIO organizers can be most careless with the truth. They can
make really BIG promises to you. They need not be responsible, for none
of their. wild promises are put into writing or signed. If you want to try
them out, ask them to sign the details of what they are going to do and
exactly how they are going to do it. They cannot guarantee anything.
Like the blue-sky salesmen who sell swampy land to trusting widows, these
CIO salesmen know every slick truck in the book. They also hate the hard,
honest facts, the truth. That is why they resent very much, and smear us,
if we try to put the spotlight on truth on their background, their purposes,
their statements. We here at Aeronca believe in an open and fair discussion
of all the issues in the election, and we will continue to give the facts, no matter
what the CIO promise-makers say.
An old trick of the CIO, to try to convince you they can make good their
promises, is to tell you that if THEY are chosen to represent you, the Company
MUST agree to their demands. But you should clearly understand that when
those demands are outrageous-as they often are-Companies do not have
to agree. It is not necessary for a company to "give in" to them, but only to
meet and negotiate in good faith.
And when a company is not in a position to meet their wild demands,
or does not agree, there is only one way for the CIO to go-a strike, with
all its hardships, loss of pay days, unrest and general misery and unhappiness
for men and women and their families. You can see the sad results of such
strikes which developed at the Kohler Company, Perfect Circle Company,
Westinghouse, and many others.
How dependable are the CIO promises for your security? You can judge
from the record of strikes that marks their trail in the past. In comparison,
you can judge our own company and its proved ability to carry out its promises
in the past.
We have enjoyed fine cooperation between employees and management at
Aeronca as our business has improved over the years. We have been able
490 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to make good on all our promises by peaceful means. I cannot see how the
CIO could do anything but threaten our future and hurt us all. The CIO,
with its unclean record of trouble and broken promises, is too much of a
gamble on which to risk the future of our jobs and our families' security.
Sincerely yours,
(Signed ) J. A. Lawler.
JOHN A. LAWLER.
Enclosure Which Was Mailed With Above Letter
RECORD PROVES CIO STRIKE-HAPPY
Look at this list of CIO strikes in our own part of the country. This is
typical of the way the CIO brings "peace" to a plant and a community. Some
of their strikes are accompanied by shooting, dynamiting and vicious beating
of employees. You will remember the shameful strike at the Perfect Circle
Company in Indiana, in which there was shooting and rioting. On the day
before last Thanksgiving, the Governor had to send the National Guard in
again to protect the workers from the wrath of the CIO bosses.
What have you and your family to gain by entrusting your security to a
strike-happy outfit like the CIO? What benefits can they bring you except the
troubles and misery of lost work? This list is typical of CIO "accomplish-
ments." Is this what you want at Aeronca?
Standard Thompson and Company (Dayton)-6 weeks strike.
Fosdick Machine Tool Co. (Cincinnati)-16 weeks strike.
General Motors (Hamilton)-1 week strike.
Aluminum Industries (Cincinnati)-10 weeks strike.
Ohio Paper Company (Dayton)-4 weeks strike.
Hunnefeld Company (Cincinnati)-18 weeks strike.
Cincinnati Butchers Supply Co. (Cincinnati)-15 weeks strike.
Lockwood Mfg. Co. (Cincinnati)-10 weeks strike.
Harris Seybolt Company (Dayton)-3 weeks strike.
Powell Valve Co. (Cincinnati)-10 weeks and 8 weeks strike.
Huffman Mfg. Co. (Dayton)-2 weeks strike.
Lunkenheimer Co. (Cincinnati)-10 weeks strike.
United Aircraft Products (Dayton)-5 weeks strike.
National Lead Co. (Cincinnati) Magnus Brass-12 weeks strike.
American Laundry Machine Co. (Cincinnati)-10 weeks strike.
Westinghouse (Columbus)-12 weeks strike and not over yet.
Williamson Heater Co. (Cincinnati)-10 weeks strike.
Sawbrook Steel Casting Co. (Cincinnati)-10 weeks strike.
United Welding Co. (Middletown)-10 weeks strike.
Cincinnati Engineering Tool Co. (Cincinnati)-9 weeks strike.
Bickford Machine Tool Co. (Cincinnati)-6 months and 13 weeks strike.
Barklew Electric (Middletown)-8 weeks strike.
Queen City Heat Treating Co. (Cincinnati)-9 weeks strike.
Goldsmith Metal Lathe Co. (Cincinnati)-8 weeks strike.
G. A. Gray Co. (Cincinnati)-12 weeks strike.
Heekin Can Co. (Cincinnati)-7 weeks strike.
Edwards Mfg. Co. (Cincinnati)-10 weeks strike.
(And many others.)
Petitioner 's Argument:
The Petitioner contends that the letter contained both threats of reprisal and
promises of benefits . The bases for its contentions are as follows:
. . we shall not resort to wild promises that we cannot fulfill. . . . We
cannot , and will not , resort to giving rash promises that we cannot carry out
when the time comes to make good on them.
. . You can be sure that we will always strive to improve things at
Aeronca , make them better as we are able . We will honestly and faithfully
keep our word in the future as we have in the past."
And: the UAW "cannot guarantee anything."
IMPLICATION : The Petitioner can guarantee you nothing ; the Company
guarantees that it will " improve things" and make "them better" without strikes
if you vote against the Petitioner.
This is a promise of a benefit.
AERONCA MANUFACTURING CORPORATION 491
"We have been able to make good on all our promises by peaceful means. I
cannot see how the CIO could do anything but threaten our future and hurt
us all."
IMPLICATION: Vote against the Petitioner and for the Independent, and,
we promise you no strikes. Vote for the Petitioner, and the Company will use
its economic power to force strikes. We will see that you are- not hurt if you
vote against the Petitioner.
This is both a promise of a benefit and a threat of reprisal.
"But you should clearly understand that when those demands are outrageous
(CIO demands)-as they often are-companies do not have to agree. It is
not necessary for a company to `give in' to them, but only to meet and negotiate
in good faith."
IMPLICATION: It is futile for an employee to vote for the CIO since the
Company will not "give in" to its demands but will use its economic power to
force it to go on strike. This is anticipatory refusal to bargain.
This is a threat of reprisal.
Comment:
Lawler's reference to the fact that the Petitioner cannot guarantee anything in the
context of his thesis that the Petitioner makes wild promises without genuine hope of
fulfillment merely suggested that the employees exercise caution before placing
reliance upon promises made by the Petitioner. The writer's statement to the
employees that the Company "will always strive to improve things at Aeronca, make
them better as we are able" was an expression of policy. The letter does not
indicate that continuation of this policy depended upon rejection of the Petitioner
in the election. The Zeller Corporation, 115 NLRB 762; Robberson Steel Company,
114 NLRB 344; Esquire, Inc., 107 NLRB 1238, 1240. Likewise, the fact that the
author reminded the employees that in the past they enjoyed improvements in their
conditions of employment "by peaceful means" was not a promise conditioned upon
the outcome of the election. Lawler's further statement that he cannot see how the
Petitioner "could do anything but threaten our future and hurt us all" is merely
speculation when read together with his references to the Petitioner's strike record
and "wild" promises. There is no suggestion in the letter that the Company would
take action to precipitate a strike or other economic injury to the employees. On
the other hand it does suggest that the Petitioner by aggressive action following the
presentation of "outrageous" demands would itself precipitate a strike. Similarly,
the statement in the letter that it is not necessary for a company to "give in" to
"outrageous" demands, but only to meet and negotiate in good faith is not considered
by the Board to be a concealed threat that it will not bargain with the Petitioner in
good faith should that union become certified. Troy Engine & Machine Co., 115
NLRB 883; The Lux Clock Manufacturing Company, Inc., 113 NLRB 1194, 1199,
and 1201. La Pointe Machine Tool Company, 113 NLRB 171, 173. The entire
letter, which unequivocally suggests to the employees that they vote against the
Petitioner in the election by reminding them of past benefits and improvements
obtained during the period of time when the employees were represented by the
Intervenor and predicting that designation of the Petitioner as bargaining repre-
sentative might eventuate in a strike or other labor trouble, is within the legitimate
scope of an employer's preelection campaigning. There is nothing in the letter
which specifically conditions future employee benefits upon rejection of the Peti-
tioner at the polls or threatens employees with reprisals if they should designate
the Petitioner at the election. The author's prophecy that the employees would be
worse off were the Petitioner designated as collective-bargaining representative is not
improper campaign propaganda. Accordingly, I find no merit to the Petitioner's
specific objections to this letter.
PETITIONER 'S EXHIBIT 2E
AERONCA MANUFACTURING CORPORATION
Middletown, Ohio
Phone : 2-2751
January 12, 1956
To All Aeronca Men and Women:
If we lose our customers , we lose our jobs. We who have jobs at Aeronca
know that, but the CIO organizers who came from outside to cause us trouble
don't seem to know it-or else they are not interested in whether we have steady
jobs or not . The CIO troublemakers don't have to depend upon our customers
492 DECISIONS OF NATIONAL I ABOR RELATIONS BOARD
for their bread and butter. Their salaries go on just the same, whether-
Aeronca men and women have jobs or not.
You know we are making important parts for several big customers. You.
know the names of these customers . I believe you also know how important
it is to Uncle Sam and our national security that certain parts get through
our plant and into the plants of our customers . If there is any delay on our
part or any chance that we would have any interruption in our production, we
could lose those orders quick as a flash. Do you think our customers and our
Government are going to stand around and wait for vital plane parts , if a bunch
of CIO toughs tie up our plant with a reign of terror so they can collect dues.
from Aeronca men and women?
This could be a very real threat to our job security . If the CIO muscle
men move in on us, and if trouble happens as it has in so many . many other
places, we stand a good chance of losing some of these orders . If we lose
orders, we lose jobs. It's that simple.
Some of you can remember those days a few years ago when several big.
truckloads of material rolled into our plant to be made up into airplane parts.
If we have a work interruption at Aeronca , history could repeat itself. A few
big trucks could drive up to our plant and haul away our jobs, too, just as they
brought jobs to us a few years ago.
Aeronca men and women have earned the reputation of being good work-
ers-dependable , reliable, able to get material out on time. You built that
reputation without the help of CIO Headquarters at Detroit or their pro-
fessional organizers who recently dropped in on us to pick up some easy
dues money. Whether the CIO likes it or not, we want to keep the orders.
we have, and the jobs that go with those orders . Whether we have full pay-
checks , steady work , and jobs, depends not one bit on the CIO, but on our-
customers . The security of every Aeronca family depends upon that election,
next Wednesday!
Sincerely yours,
( Signed ) J. A. Lawler.
JOHN A. LAWLER.
Petitioner 's Argument:
The Petitioner contends that this letter contained a threat of reprisal , that if the.
employees vote for the Petitioner, the employees would lose their jobs and the-
trucks which brought jobs into the plant would haul those jobs away.
Comment:
The implication from this letter, particularly when considered with the letter writ--
ten by Mr. Lawler to the employees on the previous day, is that designation of the
Petitioner as bargaining agent might result in a strike and if that were to happen
the Company might lose orders . This , too, is merely a prediction of possible events-
to come should the Petitioner win the election . It is not a threat by the Company
that it will itself take steps to abrogate its contracts and orders should the Petitioner
win the election . A threat is an expression of intent to cause an event to happen.
The letter quoted above does not indicate any intent on the part of the Company to,
do anything itself which will cause a loss of employment . The writer 's speculation
as to the possible consequences of the selection of the Petitioner as bargaining:
representative falls into the category of prophecy or prediction . Such predictions.
are considered by the Board as legitimate employer campaign activity. The
Zeller Corporation , 115 NLRB 762; Chicopee Manufacturing Corporation, 107
NLRB 106; Morganton Full Fashioned Hosiery Company , 107 NLRB 1534, 1537;
Sylvania Electric Products , Inc., 106 NLRB 1210.
PETITIONER' S EXHIBIT 2F
AERONCA MANUFACTURING CORPORATION
Middletown, Ohio
Phone: 2-2751
January 14, 1956
To all Aeronca Men and Women:
Never before have I been with a company where I felt as close to all the
employees as I have been with the men and women of Aeronca . You did me
a great honor in 1949, when I had the difficult job of trying to bring back to
life an almost dead Aeronca . At that time the men and women of Aeronca
were willing to risk going without pay so that our company and our jobs would
AERONCA MANUFACTURING CORPORATION 493
be secure. That story of Aeronca and its people became known nation wide;
it's a story of which we can all be proud. And it was one of the finest tributes
to me that any man could possibly have. I have told you on many occasions
how much I appreciated that wonderful spirit of yours, which brought us
through those rough days. It is one of my brightest memories of the past.
We have enjoyed together a lot of benefits that many other plants in our indus-
try would like to enjoy, but can't. We have had the kind of friendly atmosphere
between us that allows us to discuss your problems and our company problems
without suspicion and bitterness. You and I are both Aeronca people; we
work together because we want our company and our jobs to bring security to
all of us. We can discuss our mutual problems freely, because we are not
strangers. We know one another as individuals; we see one another at work
and on the streets. We are all members of the same family-the Aeronca
family.
There has been more than friendship to hold us together during the years.
Aeronca has always tried, and successfully I believe, to pay wages that were
fair, to provide good working conditions, and to treat all Aeronca people fairly
and on the level. Among our own group we have had the intelligence and
the ability to conduct our affairs for ourselves. And today, we can hold our
heads high, because we have as good an average of high wages and as good
working conditions as any other plant like ours in the industry. That was
accomplished without having to go through the hate and harm and loss of
income that result from strikes.
During these years when we were building up our company, the CIO made
almost a dozen attempts to try to sell itself to the men and women of Aeronca.
Only once before did the CIO get as far as facing a free election and they
lost heavily that time. On every try they made, you defeated them. Over the
years, you. have been able to keep your independence and handle your own
affairs, peacefully. You must have had good reasons to choose against the
CIO and its labor troubles for so long a time. You have an opportunity to do
it again next Wednesday.
I shall always be grateful for the faith you people of Aeronca placed in
me. And I, in return , have faith that you will make a fair decision when you
vote at the election next Wednesday. I would like to be able to continue to
work with you, as friends, for an even bigger and better future for all of us
at Aeronca!
Sincerely yours,
(Signed ) John Lawler.
Jolt A. LAWLER.
Petitioner's Argument:
Petitioner contends that the implication to be derived from the last paragraph of
the above-quoted letter is "a vote for the Petitioner and against the Independent
will be viewed as an unfriendly act for which the Company will invoke reprisals,
reprisals which will deny a `bigger and better' future."
Comment:
Construed in the light most favorable to the Petitioner's position, the author of
the letter merely suggested that the friendly atmosphere which presently prevails in
the plant might be lost if the Petitioner were selected as bargaining representative.
This too merely is a prediction of the possible consequences of a victory by the
Petitioner. It is not a threat of reprisal. The Zeller Corporation, 115 NLRB 762.
PETITIONER'S EXHIBIT 2G
AERONCA MANUFACTURING CORPORATION
To All Aeronca Men and Women:
Middletown, Ohio
Phone: 2-751
January 16, 1956
I have been disturbed by false rumors that have been circulated by the CIO
organizers saying that Aeronca wages were lower than the wages being paid at
other plants where the CIO was doing the bargaining. If you were to believe
these wild tales you might think Aeronca wages were out of line and on the
low side. This is not true and I should like to set the record straight.
It is a part of my duty as Personnel Director to know the wage scale for
,every Aeronca job. We must keep in touch with other companies to learn
494 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
their wage scales. In my office I have a printed list of our wages, and along
side it the wages of other plants-including plants where the CIO is the
bargaining agent.
In some cases the wages are the same on both lists. In many, cases Aeronca
wages are higher than in the CIO plants. This information is not secret-you
are welcome to come into my office any time .and look at the list. It is subject,
also, to any checking-up you might like to do to assure yourself the figures
are genuine. Our company has nothing to hide.
In previous negotiations, the North American Aviation, Inc., of Columbus,.
Ohio, had a strike called by the CIO. For fifty-four days the men and women
of that plant were off from work. There was rioting on the picket line. There
was suffering among families of employees who had no payday for fifty-four
days during the CIO strike. When the men finally returned to work they
received the same wages they had been offered by their company before they
went on strike. These new wages were in line with the wages we have now
at our Aeronca plants, and Aeronca men and women have not had to suffer
from the CIO strike method of bargaining.
I hope I have answered some of the untrue rumors about wages which the-
CIO has been spreading among Aeronca men and women. I would welcome-
your inspection of the wage list in my office at your convenience.
Sincerely yours,
(Signed) Paul Moore.
PAUL MOORE.
Petitioner's Argument:
Petitioner argues that the statements contained in the letter with reference to the
developments following the strike against North American Aviation, Inc., was a..
deliberate untruth.
Comment:
At the hearing the Petitioner sought to prove Moore was incorrect in his state-
ment that "when the men finally returned to work they received the same wages.
they had been offered by their company before they went on strike." The testimony
adduced through Petitioner's witness, Ray Ross, was that upon the conclusion of
the strike at North American Aviation, Inc.,. the employees were given the same
general across-the-board wage increase which had been offered to, them immediately
before the beginning of the strike, but that some adjustments to correct wage rate
inequities for particular job classifications were made so that the final wage settle-
ment, in toto, was higher than the increase which the company had offered prior
to the strike. This testimony, 'at most, indicates a minor inaccuracy but does not
establish' that the author of the letter had engaged in "a deliberate untruth." I
find the letter was not sufficiently misleading to have affected adversely the results
of the election in this proceeding. The DeVilbiss Company, 115 NLRB 1164; Unity
Manufacturing Company, 107 NLRB 21; Verson Manufacturing Co., 114 NLRB'
1297.
APPENDIX B
SPEECH DELIVERED BY JOHN LAWLER TO AN ASSEMBLED GROUP OF EMPLOYEES ON
DECEMBER 29, 1955
As most of you know, we have been waiting for a decision from the National'.
Labor Relations Board as to whether or not an election would be held here at
Aeronca to decide a bargaining agent, the Independent Union wanted an election
for some time.
This afternoon we' received word from the National Labor Relations Board that
an election will be held to decide whether you are going to continue to be represented
by your local Independent Union or whether you will be represented by the
International CIO Union.
The choice is one which you as an American citizen and as an Aeronca employee
are free to make. Before reaching your decision, however, we believe you will
seriously consider both sides of the question. Naturally we have a very under
standable desire to give you the Company's position as the union organizers have
given you theirs.
For the past 7 years I have had the real privilege and pleasure of coming out and
talking with you with the utmost frankness on vital information about your company
and mine. In these speeches we have been able to cover a lot of territory, we
have had some tough times together, and we have had some good times. It has
been one of my greatest pleasures to come out and discuss problems with you as
they arise. I recall that when the company was going through perhaps its most
AERONCA MANUFACTURING CORPORATION 495
difficult time in 1949 with the financial hardships that we held such a meeting. At
that time the statement was made, and one which I firmly believe in, that as Aeronca
came out of the financial crisis that it was in, that we would take care of the people
concerned with Aeronca in the following manner: First, we had to produce for our
customer. For if we were unable to produce for our customer, it would mean
that none of us would have jobs, there would be no money to meet payrolls, and
we would be out of business. The second statement we made was after we manu-
factured the product, the monies we would receive would first be used to compen-
sate the people here at Aeronca. That promise was fulfilled in two ways-first,
there were those employees during that period who had gone without pay, and they
were reimbursed for that money as soon as it was available. The second part of
that was that Aeronca would bring their rates up as rapidly as possible to the point
where they were paying as high rate as possible in our type of business.
If we compare since that period our rate increases, Aeronca's average rates have
gone up 65 cents on the hour which is greater than any company in this area and
which is greater than those settled on an International level. There has been no
reason to change this policy and we see absolutely no reason to change this policy
in the future.
We also promised our creditors those people to whom we owed money. That
promise has now been fulfilled. Then and only then we take care of the stock-
holders. However, the common stockholders which by far are the greatest number
of the people who have invested money in Aeronca have not yet received any
payments to date. Dividends have been paid on some of those prior issues which
were issued on monies invested in Aeronca at a time the Company looked like it
was practically bankrupt.
We have had many other occasions for these talks since that one back in 1949-
such as our talks when we have been able to meet very tight production schedules,
where we have been able to compliment the fine group of employees we have today.
There have been others too where we have had such problems as the one we had not
too long ago on quality where we discussed it with you and your reaction was to roll
up your sleeves and do a good job improving our quality.
I have pointed out these promises that were made by the Company several years
ago and ones which I feel that have been fulfilled to the best of our ability. The
reason I bring out promises is that in any type of election campaign such as will
ensue in the coming weeks a lot of promises and statements will be made. I think
you should look into these statements very carefully because it is very easy for
anyone who has not had the responsibility of making decisions to sit back and say
this is true and that is true. It is a little bit like the drugstore quarterbacks on Monday
afternoon who decides how the game should have been played the preceding Saturday.
They weren't in there on the firing line. So for the people on the outside it is
easy to make a lot of promises which can never be fulfilled. Therefore, in arriving
at your decision as to how you will vote I think very careful consideration should
be given to the fact of eliminating any wild promises that anyone might make.
One more thing I would like to suggest, this is an important election and for many
of you it is the most important one you have ever voted in. It bears directly on your
welfare and that of those dependent on you. To what kind of leadership are you
going to entrust your future with the Company.
Is it unselfish or is it not?
Is it interested in your personal individual welfare or merely a self " seeking
organization?
On the basis of its past and present record in other places and right here in Ohio
is it open and above board and dependable or don't you know?
These are the questions you should think about and talk over at home. Your
future and 'the future of the Company rests in your hands. That is the. reason
knowing the fine people we have had here through the years that I have the utmost
faith in the outcome of the election.
APPENDIX C
LAWLER'S INTERVIEWS WITH EMPLOYEES
Floyd Adkins: This witness testified that about 2 weeks before the election he met
Lawler in the plant and the latter began a brief conversation with the remark,
"I see you have got a new sweater, Floyd," referring to the sweater Adkins was
wearing which bore markings indicating he supported the Petitioner. After the
witness asked Lawler, "How do you like it," the Company's president replied,
"Well, I haven't got too much agin it , but I guess you know if this outfit [Petitioner]
gets in here we will lose an awful lot of our orders." Lawler amplified this remark
496 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the explanation that "if they [ Petitioner ] got in there they would have trouble,
probably strikes , and if there was trouble that, I [Adkins] believe he said , Boeing
would pull the orders, because they wouldn 't stand for trouble, their work would be
held up." 1 Lawler concluded the conversation by saying with reference to the pending
election , "Well, I can 't change you over , and for damn sure you can 't convert me."
Lawler did not contradict Adkins in any substantial respect.2
Petitioner argues that Lawler 's statement about possible loss of the Boeing con-
tract was "calculated to influence the vote of Adkins" and was "a most effective
instrument of employer coercion ." I do not agree that this remark was coercive.
It was nothing more than mere speculation by Lawler as to possible future events
which might follow an election victory by the Petitioner . It may be true that Lawler
intended to influence Adkins' vote but that is not objectionable . Mall Tool Company,
112 NLRB 1313.
Virgil Suitt: Virgil Suitt testified about a lengthy conversation he had with John
Lawler 3 to 4 days before the election . Toward the end of the employees' lunch
hour as Lawler was walking through the plant , Suitt , who was with a small group of
employees , asked Lawler whether he was checking up on production "to see how far
behind we are before the CIO comes in ." 3 This began a conversation in which
Lawler said the only objection he had to the Petitioner was "work stoppage." When
the lunch period ended the other employees returned to their work but Suitt continued
his discussion with Lawler. The two talked for about 11/2 hours. Lawler explained
the reasons for his opposition to the Petitioner while Suitt , who volunteered the
information that he supported the Petitioner , argued in its defense . According to
Suitt , among other things Lawler said to him was that if the Petitioner became
the bargaining representative it would ask for a wage increase larger than the
Company could afford to pay and that based upon the Petitioner 's past performance
it would call a strike regardless of the employees ' wishes. Lawler attempted by
citing "figures" to prove to Suitt that the Company was financially unable to give
the employees a substantial wage increase . Also, Lawler said "that he had been to
Boeing and that they wanted to know day -by-day progress of the CIO and Independent
Union, and that if the CIO got in they would pull half of our contracts and give them
to someone else so that they would have another source of parts in case we should
have labor trouble ." Lawler indicated to Suitt his satisfaction with the Intervenor
by telling Suitt that "one thing that he liked about the Independent Union , and that
if the CIO got in that we couldn't have what he liked , to be one big, happy family,
and he could come through the plant and talk to the people and be a member of
them as one big, happy family , and if the CIO got in he couldn 't do that." Finally,
Lawler said that it was his intention to leave the Company if the Petitioner were to
win the election . Lawler concluded the conversation with the remark that Suitt
"was an intelligent man, that he was going to watch my progress , and that I was
going places with the Company , and he would like to see me just five years from
today."
Lawler also testified about his conversation with Suitt . The Petitioner contends
that resolving the differences in their testimony presents "an important question of
credibility ." With this I disagree . Both witnesses impressed me favorably with their
apparent truthfulness . Suitt , a man of personable appearance , testified in a straight-
forward and frank manner without any indication that he was coloring or em-
bellishing his testimony to further his partisan interests . John Lawler likewise was
a sincere witness. There was no attempt on his part to be evasive or to withhold
information . He was no less cooperative when cross-examined than when questioned
by the Employer 's attorney . The discrepancies between Suitt 's and Lawler's testi-
mony are minor . Principally they are differences in the employment and use of
language rather than in meaning.
Thus, although Lawler did not recall saying that the only thing he had against
the CIO was work stoppages , he testified that he said there was a likelihood of strikes
1 A substantial portion of the Company 's business is based upon subcontracts from
Boeing Aircraft Corporation.
2 The principal difference in their testimony is that Lawler did not recall having said
anything about Boeing canceling any contracts with the Company . But he testified it was
possible that he said to Adkins "because of work stoppages or anything that would delay
the production schedules , that Boeing would have to protect itself, and if necessary they
mould have to take such action ." ( The action referred to was "that Boeing was going to
take the contracts out in the event we had a strike.")
a According to Suitt, the reason for this remark was that a rumor had been circulating
in the plant "that the CIO was so bad that if we got in we would go away behind schedule
and lose all our contracts."
AERONCA MANUFACTURING CORPORATION 497
or work stoppages if the CIO were to win the election. Lawler denied that he. said
the CIO would demand a wage increase which the Company could not afford to
pay. He testified that the two "discussed how it would affect the Company and
what it would cost if a demand was made on us for a substantial rate increase" and
that he invited Suitt to his office where he could more adequately show what Alle.
Company's problems would be in trying to meet a demand for a large wage in-
crease. Even assuming that Lawler 's recollection was the more accurate , never-
theless, this portion of the discussion would leave Suitt with the impression that
Lawler had said, in effect, that the Company could not afford to make any sub-
stantial upward adjustment of its wage scales. Similarly, Lawler denied that he
made a statement to Suitt that "Boeing would pull its contract if the CIO got in,"
but testified that he told Suitt he had been to the Boeing plant and "they were con-
cerned about our production schedules and our labor relationship, and they wanted
to know very much in detail how that was going to affect their schedules, and if I
could give them any substantial information, and any accurate information, so that
if they had to do anything to readjust their schedules they could do so." Certainly,
when considered together with the fact there had been propaganda about the plant
that Boeing might cancel some of its contracts with the Employer should the Peti-
tioner win the election, which Lawler admitted he might have confirmed to Adkins
and other employees,4 it is understandable that Suitt's specific recollection of Lawler's
statement in that regard was to the effect that Boeing would transfer half their con-
tracts to other companies in order to insure an alternate source for parts if the
Employer were to have labor troubles.
The Petitioner argues that the above-described conversation reflects threats of
reprisal and promises of benefit. I do not agree. Lawler's prediction that the
Petitioner, if certified, would demand a larger wage increase than the Company
would be able to pay and that the Petitioner would seek to enforce its demands by
a strike is permissible campaigning. It does not connote, as the' Petitioner contends,
that it would be futile for the employees to select the Petitioner, while with the In-
tervenor as bargaining agent "they would have every chance to gain." Lawler's
reference to possible loss of part of the Boeing orders also falls into the category of
prophecy because the statement did not in any way indicate that the Employer would
cause or aid such eventuality. Lawler's expression of satisfaction with the Inter-
venor and his further statement that if the Petitioner were elected representative he
might be denied the privilege of walking through the plant and visiting with the
men is of no different character than a similar statement which the Board in Zeller
Corporation, 115 NLRB 762, found unobjectionable. Also, unobjectionable was
Lawler's intimation that he might leave the Company if the Petitioner won the
election . The Falmouth Company, 115 NLRB 1533.5 Lastly, unlike the Peti-
tioner, I do not interpret Lawler's compliment to Suitt as "a promise of future
benefit as an inducement to vote against the CIO."
Joseph Lower: Lower testified that the week before the election he had a brief
exchange of words with Lawler during which the latter asked who was going to
4 Lawler testified as follows :
TRIAL EXAMINER : During the period December 28 to January 18, 1956, did you
make a statement to one or more employees, to the effect that if there was a strike
stoppage at Aeronca, Boeing might pull some of its contracts it had with Aeronca
Manufacturing Corporation?
The WITNESS : If I may state in the words I made it?
Q. (By Mr. Silberman.) Certainly.-A. Each time I made a statement like that, I
made it in relation to work stoppages, because anything that would affect our delivery
schedule, for example, if we could not get technical information to produce a part on
time, that would affect our delivery schedule. If we could not get outside materials
delivered to us on time, that would affect the delivery schedules. So it was important
to tell the employees if we had a strike that would affect schedules. Boeing would
cancel the contract, not because of the CIO, but because we did not meet our delivery
schedules.
s Rempel Manufacturing, Inc., 116 NLRB 1220, is distinguishable because in that case
the company's president "made it clear to the employees that the future success of his
Company was dependent solely on his active and personal promotion of the new product"
so that his threat to leave the company if the employees voted for the union was equiva-
lent to a threat that the employees would suffer a reduction in their earnings and even
possible loss of their jobs.
450553-58-vol. 118-33
498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
win the election. Such casual inquiry, contrary to Petitioner's argument, I find is
not coercive interrogation. The Liberal Market, Inc., 108 NLRB 1481, 1485.
William Woolums: About January 10, 1956, Lawler initiated a conversation
with William Woolums about the reason for the latter's complaint that he had been
mistreated. Woolums, who had been a group leader, was downgraded the preceding
month. According to Woolums, after he told his story to Lawler, the latter sug-
gested that Woolums could file a grievance through the Intervenor, which then
represented the employees, but Woolums explained that he chose not to do so.
Lawler's reply which concluded the conversation was, "well, after the election is
over, you stop in and talk to me." Lawler testified that it has been his practice
to walk through the plant and converse with the employees. Sometimes the con-
versations are initiated by himself and on other occasions by employees and the
subjects vary from discussions of personal affairs to business problems. On the day
in question, he spoke to Woolums and to another employee, Arnold Buchanan,
because it had been reported to him that both employees had complaints about their
treatment. The Company then had been having difficulty in meeting their schedules
in the fabrication department and Lawler explained that his specific reason for ap-
proaching Woolums and Buchanan was: "Usually if you are not getting out pro-
duction you talk to the people and find ways to correct the problems." According
to Lawler, Woolums complained that he had not been treated fairly when he was
downgraded. Lawler testified that he referred Woolums' grievance to the personnel
department and also told Woolums to take up the matter with the personnel de-
partment. Lawler further testified that the conversation with Woolums drifted to
the subject of the latter's background, education, and objectives in life. Lawler
suggested that Woolums might promote his ambitions by taking a blueprint reading
course offered to the employees by the Company or going to night school.6 The
conversation concluded, according to Lawler, by his saying to Woolums, "If you
are interested in talking to me about night school, I would be interested in the first
place in trying to help you out, Bill."
The divergence between the testimony of Lawler and Woolums reflects not
so much any contradictions as it does the fact that each remembered different parts
of their conversation more clearly. The Petitioner adverts to Woolums' testimony
that the conversation concluded immediately after the discussion of Woolums' griev-
ance with Lawler's statement, "Well, after the election is over, you stop in and
talk to me." The Petitioner argues that the implication from this remark is that
there would be no point in Woolums talking to Lawler after the election if the
Petitioner won. However, Woolums' testimony refutes such construction of this
remark, even if made,7 because Woolums testified that Lawler made it clear "he
meant . . . to talk about the mistreatment I had and not about the election coming
up." Furthermore, I credit Lawler's testimony that the invitation to Woolums for
further conversation was related to their discussion about Woolums' career rather
than his grievance.8 Accordingly, I find that Lawler's invitation to Woolums that
they have a further conversation did not imply a promise of benefit conditioned
upon the Petitioner's defeat in the pending election.
The Petitioner's counsel further argues that the fact that Lawler initiated the
conversation with Woolums about the latter's grievance "as well as his promise to
help Woolums in the future to obtain a higher rate or by offering him an oppor-
tunity to go to `blueprint' school or by talking to him privately about his assisting
him in matriculating him in the night school, was calculated to influence Woolums'
vote in the election by promise of benefit." Whether Lawler had such subtle purpose
is a matter of conjecture. Lawler made no direct or indirect promise of benefit to
Woolums and certainly nothing Lawler said was conditioned upon the outcome
6 Woolums offered no testimony either in affirmance or denial of Lawler's testimony
that the conversation also included a discussion about the latter's background, education,
and ambitions.
7 Lawler admitted that the conversation concluded with an invitation for Woolums to
speak to him again. However, he did not testify that he suggested that any further dis-
cussion be deferred until after the election.
8 It should be noted that the Petitioner does not suggest discrediting Lawler with
regard to his testimony that the conversation dealt with Woolums' career and that he
told Woolums to take up his grievance with the personnel department. In fact, the
Petitioner relies on this testimony, in part, to support its further argument, discussed
below.
AERONCA MANUFACTURING CORPORATION 499
of the election or Woolums abandoning pro-Petitioner sentiments or activities. Ac-
cordingly, the usual rule in appraising preelection conduct is to evaluate the specific
language used and not to spell out a threat or objectionable promise by relating
the words used to matters unexpressed or facts which do not appear to have im-
mediate, specific, and cogent application so that it must be considered as modifying
the verbiage. I find, contrary to the Petitioner's argument, that it has not been
established that Lawler made any promises of benefit to Woolums in order to in-
fluence the latter's vote in the election.
Arnold Buchanan: Lawler spoke to Arnold Buchanan the same night and for
about the same reason that impelled him to speak with Woolums. Apart from the
variance in language used there was only small difference between the substance of
the testimony of each about their conversation. Lawler testified:
I approached Arnold, if my memory is correct, and I said, "Arnold, what ig
the trouble with us here?" I believe he had a CIO shirt or some badge or some
identification on him. I said, "I sort of feel I haven't got the right thing here,
if you feel this way about us." He said, "No, John, you are not the fellow
that is causing this difficulty. It is the foremen in this department. They are:
not handling us right." I talked to him a little bit about that, and I said,
"Well, I guess you know how difficult it is to get good men and good supervision,,
and we are trying to do our best." I don't know, I think Arnold and I talked
just generally ten or fifteen minutes.
According to Buchanan, Lawler also said to him:
Well, he says when he got in places that he found that he didn't like, that he
usually went somewhere else; and he continued on and says that if the CIO
got in there that he didn't figure he could get along with those fellows. .
He says, "you know, I won't be around here if those fellows gets in." And
I told him that was his privilege, and he said, "Well, if things go on, stop by
my office sometime, if things go on as they are stop by my office sometime."
Lawler was unable to remember having made these remarks, although he did
not specifically deny them and did testify that if he had said anything about leaving,
"I gave him the same answer I gave to the others." (See discussion of Suitt's
testimony, supra.)
The Petitioner argues, upon the basis of the foregoing, that Lawler was seeking
to find out how he could "placate" Buchanan so that he would take off the CIO
insignia and, when he learned that Buchanan's complaint was against poor super-
vision, made a promise of benefit in that Lawler said the Company was going to
do its best to improve its supervision. However, if a promise may be implied from
this portion of their conversation it was unrelated to the outcome of the election.
Lawler was apparently in agreement with Buchanan that supervision could be better
and his acknowledgment of this fact together with his statement that the Employer
was doing its best to improve the situation can hardly be interpreted as a proposed
change in a condition of employment for the purpose of influencing the employees'
vote in the election. The Petitioner also argues that Lawler's statement, "if things
go as they are, stop by my office sometime," was a promise of benefit. I cannot
read into this ambiguous remark a promise to Buchanan that "if Independent
won, Buchanan could expect special consideration from Lawler."
Finally, the Petitioner argues that Lawler's remark to the effect that he might
leave the employ of the Company if the Petitioner won the election was a threat
of discharge. The Petitioner's reasoning is:
Since Lawler's speech of December 29 and his letters indicate that he was
responsible for the present sound financial condition of the Company and
that he had brought the Company from the edge of bankruptcy to solvency,
the suggestion that he would leave if the CIO won carried with it a connotation
that the plant could not survive if the CIO won the election. He was saying
to the employees-now the Company has Lawler and prosperity, if the em-
ployees choose the CIO, the Company will have no Lawler but ruin. This
indeed is coercion of a sneaky sort.
This reasoning is overly subtle and does not have realistic application in the arena
of union elections. I do not find Lawler's remark was coercive. The Falmouth
Company, 115 NLRB 1533.9
9 See footnote 5, supra.
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX D
INTERVIEWS WITH FOREMAN JOHN WISE
Hobert Mullins: Mullins testified to a private conversation he had about Janu-
ary 5, 1956, with John Wise. During the discussion, Mullins complained that
he had not received a wage increase which the personnel office, at the time he was
hired, promised he would be given upon the completion of his probationary period
of employment. Wise said he would investigate the matter and the following week
Mullins received the promised increase. The Petitioner argues that "the wage
raise obtained by Wise constituted interference." There is no evidence of any
connection between Mullins' raise and the election. The evidence indicates only
that Wise saw to it that an oversight was corrected and Mullins obtained the benefit
of an automatic wage progression which he had been promised and to which he
had become entitled at the completion of his probationary period of employment
some 2 or 3 weeks earlier. This incident, therefore, is not evidence of employer
interference with the election.
Mullins also testified that during his conversation with Wise the latter expressed
his satisfaction with labor relations at Aeronca and voiced his complaints
against the Petitioner. In sum, Wise suggested to Mullins that he support the
Intervenor. The Petitioner does not allege, and I do not find, that Wise made
any coercive remarks to Mullins.
Walter Reynolds: Reynolds testified to a conversation he had with Wise about
January 12, 1956. Wise's testimony with regard thereto conflicted in several
respects with Reynolds'. Although I do not believe Reynolds was an insincere
witness, Wise impressed me as being the more reliable witness. Accordingly, I
credit Wise's version of their conversation. As in the case of Mullins, Wise in
effect urged Reynolds to vote for the Intervenor and against the Petitioner. During
their conversation, Reynolds said that "should the CIO not get in, he might as
well look for another job." Wise made no reply to this. I cannot attribute any
coercive implications to Wise's silence at this juncture in the discussion, particularly
since Reynolds was an inspector and was not subject to Paint Foreman Wise's
supervision. I find no evidence of coercion in the conversation between the two.
Joseph Patterson: Patterson testified to a conversation with Wise which took place
about 2 weeks before the election. Even if I were to credit Patterson' s entire
account it comes to no more than that Wise by alluding to the possible dis-
advantages of representation by the Petitioner was suggesting that Patterson support
the Intervenor. However, for reasons discussed elsewhere in this report, I do not
credit Patterson where his testimony conflicts with Wise's. I find nothing coercive
in this incident.
Vernon Walters: I credit Wise's denial that he interrogated Walters as to the
latter's voting intentions. Wise did not deny Walters' testimony that about 8 or
10 days before the election he said to Walters, "If the CIO got in that they might
have a strike and we would be laid off." Although this suggested to Walters
that he vote against the Petitioner, for reasons already considered above, I find
this remark was not coercive.
APPENDIX E
REJECTED TESTIMONY
A. Because of failure to establish agency relationship
An issue raised at the hearing was whether responsibility for alleged pre-
election misconduct of six men may be attributed to the Employer. One of these
men concededly was never in the Company's direct employ. Testimony was
offered that twice on the night of the election William Ratchford, who is the chief
Air Force inspector at the Company's plants, made statements to the effect that if
the Petitioner wins the election he has orders to "pull contracts." 1 The testimony
indicates that these remarks were heard by only four employees. The statement
was first made by Ratchford in a conversation with Floyd Buchanan which was
overheard by Buchanan's working partner, Ella Gilley. Both Buchanan and Gilley
testified that they voted soon thereafter and there is no evidence that either repeated
Ratchford's statement to any other employee before the polls closed. Laura
Demerecz testified that she overheard Ratchford make such statement to an unnamed
employee with whom she was returning to work after having cast her ballot and
1 These remarks signified that the Company would suffer a loss of business and would
therefore be compelled to reduce its work force.
AERONCA MANUFACTURING CORPORATION 501
did not tell of the incident to anyone before the polls closed. Although the
Petitioner does not contend that the Employer was in any way responsible for
Ratchford's conduct, or had an opportunity to disavow it, or even acquired any
timely knowledge of it, the Petitioner argues that Ratchford's alleged threat, as in
The Falmouth Company case, 114 NLRB 896, "so permeated the atmosphere
surrounding the election as to render impossible the rational, uncoerced selection
of a bargaining representative." I do not agree that the Falmouth case is apposite.
In that case "the employees were, in fact, on all fronts barraged by verbal and
written warnings" (The DeVilbiss Company, 115 NLRB 1164) so that "the election
was held in the face of widespread fear that the Employer would close up the
plant and move should the AFL win the election." In the instant case, the pur-
ported threat was made to only 4 employees on the night shift (2 of whom had
already voted) just prior to the closing of the polls and there is no evidence that
the threat was communicated to any other employees. Thus, Ratchford's remarks,
which had such limited currency, did not have any significant effect upon the results
of the election. Morganton Full Fashioned Hosiery Company, 107 NLRB 1534,
1538; The Liberal Market, Inc., 108 NLRB 1481, 1485. Furthermore, as there is
no evidence that Ratchford was acting in behalf of the Employer, the latter cannot
be held accountable for Ratchford's utterances.
The Petitioner asserts that certain remarks made by Richard Mather to Virgil
Suitt constituted interference with the election. Although I do not agree that
Mather's statements were objectionable, it is not necessary to consider them specifi-
cally because any misconduct on his part cannot be attributed to the Employer.
Mather is a clerk in the Company's personnel office. The Petitioner does not dis-
pute this but argues that because it is necessary to pass through Mather's office
to enter the office of Jack Linzie, who heads the Company's industrial relations
department, that "is enough to bind the Company with statements he made on
labor relations." Perhaps there would be some merit to this argument were
Mather the sole occupant of an anteroom to Linzie's oice. However, the evidence
shows that Mather occupies a general office with 3 or 4 female employees. In the
circumstances, it is unlikely that an impression would be created in employees'
minds merely from the location of Mather's desk that any special relationship existed
between him and Linzie so that he was in a position to reflect management's views.
I find no more significance, as it affected the results of the election, in Mather's remarks
to Suitt than if they had been made by any other rank-and-file employee.
The remaining agency issue, which was exhaustively litigated, concerns the status
of leadmen. The Petitioner contends that Bynum Bruce, Gene Flint, Joe Heller,
and Charles Heilman (sometimes spelled "Hillman" in the record), all of whom are
leadmen,2 are supervisors so that their conduct may be attributed to the Employer.
In its petition which initiated this proceeding, the Petitioner requested the inclusion
of leadmen in the appropriate unit although at the same time it requested the
exclusion of all supervisors. At the initial representation hearing in this matter,
the parties, including the Petitioner, stipulated that leadmen should be included in
the appropriate unit, but that all supervisors should be excluded. The Board
accepted the parties' stipulation and included leadmen in the appropriate unit
described in its Decision and Direction of Election herein. Now, inconsistent with
the position it adopted at the inception of this representation case, the Petitioner
contends that leadmen are supervisors. In effect, the Petitioner seeks to litigate in
this hearing on the objections to the election a unit problem which should have
been raised at the initial representation hearing. Despite the hearing officer's doubts
as to the propriety of contesting in this supplementary proceeding a question already
the sabject of the Board's decision in the same case, the parties, nevertheless, were
afforded full opportunity to offer evidence at the instant hearing bearing upon the
supervisory status of leadmen. The evidence shows that leadmen are included on
the seniority list with other rank-and-file employees and spend 90 to 95 percent of
their time doing the same kind of work as the other men in their respective groups.
Because the leadmen are the top mechanics in each group, they are available to
assist the other men with their work problems. In addition, leadmen make routine
assignments of work. At the start of each shift, the foreman for each department
distributes work orders to the leadmen who, in turn, reassign the work among the
members of their respective groups. Leadmen also have authority to sign passes
permitting employees to leave their departments temporarily.3 On the other hand,
2 Leadmen are sometimes referred to as group leaders or as section leaders.
3 There was evidence of 3 or 4 instances of the exercise of other purportedly super-
visory functions by various leadmen. However, I am satisfied that these instances repre-
sented mere sporadic deviations from the leadmen's normally limited authority.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leadmen have no authority to hire or fire employees, to transfer employees from
department to department, or to issue reprimands, or to make effective recommen-
dations in these matters. Leadmen are subject to the immediate supervision of the
foreman and assistant foreman for their respective departments. Upon the basis of
the foregoing, I find that leadmen, or group leaders, are not supervisors. N. L. R. B.
V. Newton Company, 236 F. 2d 438 (C. A. 5); New York Shipping Association,
Inc., 116 NLRB 1183; Nutone, Incorporated, 112 NLRB 1153, 1164; The Clinton
Construction Company, 107 NLRB 946, 948; Hodgdon Brothers-Goudy & Stevens,
106 NLRB No. 211 (not reported in printed volumes of Board Decisions and Orders).
Absent any other basis for attributing to the Employer responsibility for alleged
misconduct by leadmen, their activities may not be considered in support of the
objections to the election herein. Parenthetically, it may be observed that even
were leadmen supervisors by reason of the technical definition in the Act they occupy
so insignificant a position in the Company's supervisory hierarchy that it is improb-
able that they are identified in the minds of the employees as spokesmen for man-
agement . See Rheem Manufacturing Company, 114 NLRB 404, 405-406.
B. Because of lack of credibility
John Frank Robison: Employee John Frank Robison testified about events
involving his foreman, Charles Barker. Barker was not called as a witness and
therefore Robison's testimony is unrefuted. Shortly before the instant hearing
Robison was downgraded, an action which he resented. Robison went to the
Petitioner's office in Middletown seeking their assistance in his endeavor to obtain
restoration of his previous grade. Then, for the first time, he revealed to the
Petitioner the facts about which he testified at the hearing. On cross-examination,
when Robison was questioned about the circumstances which prompted him to
disclose the information within his possession to the Petitioner he was evasive.
On direct examination , Robison testified that 4 or 5 days before the election
Foreman Barker began a conversation with him. According to Robison, Barker
specifically asked him how he intended to vote and his response was, "Well, I just
come around and told him that was my business, I would vote to suit myself."
However, on cross-examination Robison testified that the foregoing conversation
occurred about 2 weeks before the election and possibly earlier. Later he testified
that he remembered the election took place on the 18th but was unable to recall
of which month. Then, in further contradiction of his testimony on direct examina-
tion , he testified, that Barker asked, " `Who are you going to vote for? It looks like
you have got a CIO badge on.' And I said, `Yes, I have,' and I told him I was
aiming to vote for the CIO, the way I told him."
Robison also gave a confused account of an incident wherein Barker assisted
several employees in placing the Intervenor's insignia on T shirts.
Despite the fact that no evidence was offered to contradict Robison, because he
was evasive, confused, and self-contradictory and because I find his motive for
making himself available as a witness in this hearing was vengeful, I place no reliance
upon his testimony and therefore do not credit any of it.
Billy Paul Winebarger: Employee Billy Paul Winebarger testified about a conver-
sation he had with Employment Manager Wilbur Fisher. All significant facets of
Winebarger's testimony were contradicted by Fisher. It is my opinion, upon con-
sideration of all the testimony of both witnesses and their demeanor on the witness
stand, that Fisher's testimony was the more reliable. Accordingly, I credit Fisher's
denials of Winebarger's testimony.
"M" System, Inc., Mobile Nome Division , Mid-States Corp. and
Lodge 1243 , International Association of Machinists, AFL-CIO.
Case No. 16-CA-906.1 July 5,1957
DECISION AND ORDER
On March 20, 1957, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
1 The instant case was consolidated for the purpose of hearing with Case No. 16-RC-
1773 because substantially similar issues involving the Respondent's alleged interference
118 NLRB No. 61.