Aladdin Industries, Inc.

National Labor Relations Board - Board Decisions

Jun 30, 1964

147 N.L.R.B. 1392 (N.L.R.B. 1964)

1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Aladdin Industries , Inc. and United Steelworkers of America,
AFL-CIO and Teamsters , Chauffeurs, Helpers & Taxicab
Drivers Union Local 327, International Brotherhood of Team-
sters, Chauffeurs , Warehousemen & Helpers of America and
Charles I. Mason and Charles N. Lee and Bobby H. Crumley.
Cases Nos. 26-CA-1475, 26-CA-1480, 26-CA-1562-1, 26-CA-
1562-2, and 26-CA-1582. June 30, 1964
DECISION AND ORDER
On September 9, 1963, Trial Examiner George A. Downing issued
his Decision in the above-entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Intermediate
Report. He also found that Respondent had not engaged in certain
other unfair labor practices and recommended dismissal of the com-
plaint as to them. Thereafter, the Respondent, the General Counsel,
and United Steel Workers of America, AFL-CIO, the Charging Party
in Case No. 26-CA-1475, filed exceptions to the Intermediate Report
and supporting briefs.
Pursuant to the provisions of Section 3 ('b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that no prejudicial.error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in these cases, including the Intermediate Report and the ex-
ceptions and briefs, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following additions
and modifications.
1. We agree with the Trial Examiner that Respondent is responsible
for the statements of its supervisors which the Trial Examiner found
to constitute (1) unlawful interrogations of employees as to their union
activities; (2) threats of job loss or other economic injury if the Team-
sters union won an election; and (3).statements which created the im-
pression of surveillance of the pro-Teamster activities of employees.'
'However , we do not find Foreman Bitner 's statement to Charles Frazier that "You
know what has been good for you in the past and do you know what Is good for you
now?" to be unlawful interrogation of Frazier as to his union activities : We agree with
the Trial Examiner that such statement was unlawful as a threat or warning designed
to coerce Frazier to vote against the Teamsters . We reach the same conclusions with
respect to Foreman Allen's statement to J. T. Bdker that "If 'I were you I wouldn't be
passing out the wrong opinion or being an agitator , especially, during the present situa-
tion" and Allen 's statement to Carl Gately that "He hoped none of you boys get mixed up
in it back here."
147 NLRB No. 167.
ALADDIN INDUSTRIES, INC. 1393
2. The Trial Examiner found that employees Ward and Powell were
discharged because of their pro-Teamster activities, and not because
they violated Respondent's no-solicitation rule.2 For the reasons set
forth by the Trial Examiner we agree with his findings and conclusions
in this regard. In the case of Ward, however, we also rely on the fact
that the wearing of a union sticker such as the one worn by Ward is a
protected activity which cannot be prohibited by a no-solicitation rule,
even though such rule properly enjoins the distribution of union liter-
ature and the solicitation of union membership' While there may be
circumstances in which an employer may validly prohibit the wearing
of union buttons and campaign stickers,4 such circumstances are not
present herein. Accordingly, as Ward was discharged for wearing a
union sticker, a protected concerted activity, we find that his discharge
violated Section 8 (a) (3) and (1) of the Act.'
3. On June 30, 1964, the Board having duly considered the matter,
issued its order granting the request of the Charging Party in Case
No. 26-CA-1480 for permission to withdraw its charges that Respond-
ent has violated Section 8(a) (2) of the Act, and dismissing those al-
legations of the consolidated complaint in Cases Nos. 26-CA-1475 and
26-CA-1480 which allege that Respondent has violated Section
8(a) (2) of the Act.
Accordingly, the Board does not adopt the Trial Examiner's find-
ings, conclusions, and recommendations resliecting the 8(a) (2)
allegations.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act, as
amended, the Board hereby adopts as its Order, the Order recom-
mended by the Trial Examiner, as modified herein, and orders that the
Respondent, Aladdin Industries, Inc., its officers, agents, successors,
and assigns, shall take the action set forth in the Trial Examiner's
Recommended Order with the following modifications:
2 In the case of Powell , we do not view the Trial Examiner 's finding that his circula-
tion of a petition during working time was a protected concerted activity as meaning
that it was not subject to the strictures of Respondent 's no-solicitation rule, which as
conceded by the General Counsel, appears to be valid on its face . It is apparent from
other passages in the Trial Examiner 's decision that he recognized that such activity
could be circumscribed by a valid no-solicitation rule, but that he found that, even assum-
ing that Powell's activity violated a valid no-solicitation rule, he was not discharged for
such violation ; rather the invocation of the rule was a mere pretext designed to screen
Respondent 's true motive to discourage the progress of the Teamsters ' organizational
campaign and defeat the Teamsters in the pending election.
' Republic Aviation Corporation v. N.L.R .B., 324 U . S. 793, 802 . Standard Fittings Co.,
et al., 133 NLRB 928 , 934, 945; Stewart Hog Ring Company, Inc ., 131 NLRB 310, 339;
Kimble Yflaas Company, 113 NLRB 577 , enfd. 230 F. 2d 484 , 485 (C .A. 6), cert denied
352 U.S. 836.
4 Caterpillar Tractor Company, a Corporation v. N.L.R.B., 230 F. 2d 357 (C.A. 7)
Boeing Airplane Company v. N.L.R .B., 217 F. 2d 369 ( C.A. 9).
e Standard Fittings Co., et al., supra.
756-236-65-vol. 147-89
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Paragraph 1(e) is modified to read as follows :
(e). Invalidly and discriminatorily enforcing its no-solicitation
rule to prohibit employees from wearing union buttons, badges,
campaign stickers, or other union insignia while at work or on
Respondent's premises, or from otherwise engaging in solicitation
of union membership during nonworking time.
Paragraph 1(g) is deleted.
Paragraph 1(h) is redesignated as paragraph 1(g).
Paragraph 2(d) is redesignated as paragraph 2(e), and a new
paragraph 2 (d) is inserted as follows :
Notify the above-named employees if presently serving in the
Armed Forces of the United States of their right to full rein-
statement upon application in accordance with the Selective
Service Act and the Universal Military Training and Service
Act of 1948, as amended, after discharge from the Armed Forces.
The seventh paragraph of the notice, attached to the Trial Ex-
aminer's Decision as Appendix A, is modified by striking the period
after the word "rule" and adding thereto the words "to prohibit em-
ployees from wearing union buttons, badges, campaign stickers, or
other union insignia while at work or on Respondent's premises, or
from otherwise engaging in solicitation of union membership during
nonworking time." o
The eighth paragraph of the above described notice is deleted.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
These are consolidated proceedings which are brought under Section 10(b) of
the National Labor Relations ' Act, as amended (61 Stat . 136; 73 Stat . 519). The
complaint in Cases Nos. 26-CA-1475 and 26-CA-1480 was issued on April 19,
1963, by the General Counsel of the National Labor Relations Board on charges dated
February 27, March 8 , and April 9 , 1963, and was heard at Nashville , Tennessee,
on June 18 and 19 , before Trial Examiner George A. Downing, pursuant to due
notice. The complaint in Cases Nos. 26-CA-1562-1 and 26-CA-1562-2 was:
issued July 1, on charges dated June 20 and 27; and, following the General Counsel's
motion and the Trial Examiner 's order of July 10, ordering a consolidation and a re-
opening of the hearing, was heard on July 24. The complaint in Case No.
26-CA-1582, based on a charge dated July 23, was issued on August 6; and , following
the General Counsel 's motion and the Trial Examiner 's Order of August 12 , ordering
a further consolidation , was heard on August 21.
The first complaint charged Respondent with engaging in unfair labor practices
proscribed by Section 8(a)(1), (2), and (3 ) of'the Act by various specified acts of
interference, restraint, and coercion ,' and of assistance in February 1963, and by
discriminatorily discharging James Powell on February 25 and Fred Ward on
February 27. 'The second complaint charged Respondent with violations of Section
8 (a) (1), (3 ) and (4 ) of the Act by discharging Charles I. Mason and Charles N. Lee
(who testified for the General Counsel on June 18) on June 20, because of their,
'I.e., interrogation ( including the use of lie detector tests ), threats of reprisals and
loss of employment, surveillance , and discriminatory enforcement of a no-solicitation rule.
An amendment made at the hearing , directed to fuithei unlawful interrogation through
Respondent 's attorney , William P. Hutcheson , was dismissed at the close of the hearing,
without objection by the General Counsel , for lack of proof.
ALADDIN INDUSTRIES, INC. 1395
Teamsters or other concerted activities and/or because they had given testimony under
the Act. The final complaint in Case No. 26-CA-1582 alleged that Respondent sus-
pended and terminated Bobby H. Crumley on or about July 12 for similar discrimina-
tory reasons?
Respondent denied all the unfair labor practices with which it was charged. Its
defenses will be more explicitly outlined under section III, A, infra.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
I. JURISDICTIONAL FINDINGS
Respondent, an Illinois corporation, is engaged at its Nashville plant in the manu-
facture of vacuum bottles, lunch kits, and other products. Its annual purchases from
extrastate points exceed $100,000, and its annual sales and shipments to extrastate
points exceed $100,000. Respondent is therefore engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
United Steelworkers of America , AFL-CIO, herein called Steelworkers , and Team-
sters, Chauffeurs , Helpers & Taxicab Drivers Union Local 327, International Brother-
hood of Teamsters , Chauffeurs , Warehousemen & Helpers of America, herein called
Teamsters , are labor organizations within the meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and issues
At the time of the conduct complained of herein, Respondent and Steelworkers
were parties to a collective-bargaining agreement which was to expire on March 31,
1963. Following certain organizational activity in late 1962, Teamsters filed a
representation petition on January 3, 1963, in Case No. 26-RC-1883, and a hearing
was held on January 18. At an election held on March 1, Steelworkers received
227 votes and Teamsters ' 129; there were 4 votes for neither, 1 void ballot, and
2 challenges. Teamsters filed objections, based on essentially the.same conduct as
that which is here involved under the Section 8(a)(1) allegations (see footnote 1,
supra); and 'after investigation the Regional Director, on April 12, set aside the first.
election and ordered a second one. - That order is now before the Board on Respond-
ent's 'request for review.
Practically all of the alleged unlawful conduct under the first' complaint occurred
in the week preceding the election, during which Respondent itself campaigned
actively against Teamsters. Many of the 8(a)(1) statements to which the General
Counsel's witnesses testified were denied and others were defended as privileged speech'
under Section 8(c). Denying surveillance, Respondent defended its use of a camera
as necessary to procure evidence of anticipated violence. It defended its lie detector
tests as voluntarily taken, as necessary to resolve credibility issues concerning the
violation of a work rule, and as not involving interrogation concerning union or other
concerted activities.
The issues as to the Ward and Powell discharges were whether they were discharged
because of their pro-Teamsters conduct or because of their violation of the current con-
tract and of a no-solicitation rule on company time, and for interference with their
own work and that of other employees. In Ward's case Respondent assigned also con-
duct which was calculated to engender disrespect of management personnel, and in
Powell's it claimed that he had impeded Respondent's investigation of his own work-
rule violation by falsely implicating two, other employees. Respondent asserted as a
2 Following the reopened hearing on August 21 , the General Counsel moved on August 26
to withdraw the complaint and to sever Case No . 26-'CA-1582 , conceding that the pre-
ponderance of the evidence did not 'establish that complaint . Respondent filed an oppo-
sition to said motion and also objected to the Trial Examiner's suggestion that the Gen-
eral Counsel 's motion be - treated as a motion to dismiss. The General Counsel expressed
no objection to that suggestion . I overrule Respondent ' s objection , and I now hereby
dismiss the complaint In Case No . 26-CA-1582 and as to the Charging Party, Bobby H.
Crumley.
Though no further reference will . be made to , that case 'herein, I have considered the
evidence taken at the hearing on August 21 , in resolving the credibility issues on Crumley's
testimony given at the initial hearing.
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
further defense the fact that the existing contract contained grievance provisions for
settling all disputes, with binding arbitration as the last step; that grievances con-
cerning those discharges were being processed when the complaint issued; and
that the Regional Director acted improperly in issuing the complaint.
The issues in Cases Nos. 26-CA-1562-1 and 26-CA-1562-2 were whether Lee
and Mason were discharged because of their Teamster activities and/or because they
had testified in this proceeding, or whether, as Respondent contends, it was because
they lied to Respondent on their lie detector tests during Respondent's investigation
of Powell's work-rule violation.
All evidence concerning alleged Section 8(a)(1) conduct is summarized in sec-
tion B, infra, except for the lie detector tests and the enforcement of the no-solicita-
tion rule, which were directly related to and which are considered in connection with
the discharges of Powell and/or Ward, section C, infra. Conclusions concerning
alleged assistance violative of Section 8(a) (2), which are based on Respondent's con-
duct as summarized in sections B and C, are made in section D, infra.
B. Interference, restraint, and coercion
1. Statements by supervisors
a. Introduction
The General Counsel offered the testimony of some 16 employee witnesses to a.
variety of alleged Section 8(a) (1) statements , strongly anti-Teamster in tone, as
made to them by some 7 of Respondent's supervisors, mainly during worktime, in
the workweek prior to the election. Their testimony plainly showed that Respondent's
supervisors were engaged in a common course of conduct directed toward defeating
Teamsters in the election, a fact which was confirmed by testimony of the supervisors
and by other evidence which Respondent offered.
Thus the evidence showed that Respondent issued to its supervisors a handbook
of instructions in which they were informed of company policy regarding the forth-
coming election and which contained some 60-odd pages of materials devoted almost
exclusively to "the Teamsters record" as developed in congressional committee hear-
ings and reports, in court, and in the public press. The supervisors were informed
that though the Company's policy would ordinarily be to take a neutral position in the
rival-union situation , Respondent and its supervisors had a legal right to express
their views absent threats, promises, etc., and that Respondent strongly opposed the
representation of its employees by Hoffa and Teamsters because of "ample docu-
mentary evidence" that Teamsters was not a reputable union and because of its
failure to rid itself of corrupt influences. Though the supervisors were instructed
that they were not to initiate any discussions with employees of the materials in the
handbook, they were informed that they might answer employee questions concerning
the campaign and might talk with the employees either during or outside of work-
time and either at or away from their work locations.
It was plain from the entire evidence, and I find, that the campaign was a widespread
one,3 that in many cases the supervisors had initiated the conversations, that they had
talked with the employees both at their work stations and after calling them off the
job, and that the supervisors did not always confine themselves to the materials con-
tained in the handbook. The chief issue to be decided under the Section 8(a)(1)
allegations is the extent to which the supervisors' statements, where found to be
made, constituted coercive interrogation, threats, or promises.
The testimony will be briefly reviewed in the light of that issue, eliminating as
much as possible such statements as were privileged under Section 8(c) and other
matters which are covered by the findings above. The evidence has been organized so
as to set forth under the name of the particular supervisor the statements which were
attributed to each by the General Counsel's witnesses.
b. The testimony
(1) Sam Anderson
John A. Talley, Jr., testified that Foreman Anderson in speaking with him concern-
ing Steelworkers and Teamsters stated in part that if Teamsters were to get in the
plant he did not believe the Company would allow it, that he would lose his job, and
BHoward Baggett admitted ' talking to some 10 to 15 employees , Connie M. Gatley, Jr.,
to some 40 or 50 , and Roy (Duke ) Cleaver admitted that he talked to "all of the fellows"
In his department.
ALADDIN INDUSTRIES, INC. 1397
that Talley would also lose his. When Talley stated he would rather vote "no union"
than for Steelworkers , Anderson replied that that would amount to two votes for
Teamsters , and that "we had rather you vote for the Steelworkers than for the Team-
sters." Bobby Crumley testified that during Anderson 's discussion of Teamsters,
Crumley inquired whether the Company could fire anyone for voting for Teamsters,
and Anderson replied the Company could always find a reason for dismissing a
person. Minnie Smith testified that Anderson referred to "the organization that was
coming in" and stated that he would not be there if it did, and that Smith would
not be there .4
Anderson , while admitting having anti-Teamsters discussions with the above
employees , denied making the' remarks which are summarized above.
(2) Ralph High
Arlie King testified that during the course of an anti -Teamsters discussion, Fore-
man High stated among other things that if the Teamsters came in , "we might all
be out of a job ." King testified that though he did not consider that statement a
threat, he did take it that High was "just trying to scare me."
High admitted discussing the election with King , but denied stating that if the
Teamsters came in, they would all be out of a job.5
(3) Roy (Duke ) Cleaver
Mary Russell testified that Foreman Cleaver told her the Company was going
to do everything it could to keep the Teamsters out and that it would mean his
job as well as hers if the Teamsters got in . Cleaver also stated he heard that Rus-
sell was for Teamsters, and when she asked how he knew, Cleaver replied that be
had a way of finding out, and he asked if her husband would let her attend any
of the Teamsters meetings . Ernest Stroud testified that in discussing Teamsters
with him, Cleaver stated he had heard that Stroud was for Teamsters and that he
thought Stroud should have better sense. Cleaver commented further that the
union which the employees had was a good union, and he did not see why they
wanted to change. Bobby Crumley testified that in expressing to him the Company's
views about Teamsters, Cleaver asked what Crumley thought of his job and that
when Crumley replied he was being underpaid, Cleaver inquired whether Crumley
was looking for other work.6
Cleaver denied discussing Teamsters with either Russell or Crumley. Though
admitting that he talked to "all of the fellows" in his department , he denied that
he talked to any of the ladies. He did not deny Stroud's testimony.
(4) Connie M. Gatley, Jr.
James Galley testified that Foreman Connie Gatley, who is his second cousin,
questioned him concerning his opinion of the election and whether he had attended
any Teamsters meetings. Connie stated also that he for one would not be working
if Teamsters came in and that Johnson (Respondent's president ) would not make
any agreement with Teamsters if they should happen to win the election.
Connie admitted talking with some 40 or 50 employees, including James, about
the union situation , and admitted asking James what he thought about the election,
but he denied stating that Johnson would not enter into a contract with the Teamsters.
(5) Edwin Bitner
Walter Moore testified that in discussing the election with him, Foreman Bitner
stated he heard that Moore had "started it," by which Moore assumed that 'Bitner
meant Teamsters, and that Bitner continued by stating what "a rough bunch" they
were. Bobby Crumley testified that in discussing with him the Company's views
about Teamsters, Bitner asked what Crumley thought of his job and that when he
replied he was underpaid, Bitner inquired whether he was looking for other work.
'The General Counsel's brief does not rely on testimony by Lila Turner, Naomi David-
son, and Sammy Julian (who also testified to conversations with Anderson) as establish-
ing violations of Section 8(a) (1). '
' The General Counsel's brief does not assign as violative of Section 8(a) (1) certain
testimony by Juanita Corbitt and Billy Joe Randolph concerning statements by High
which were apparently based on the handbook materials.
6 Though' Sammy Julian testified that Cleaver threatened to fire -him, his testimony and
Cleaver's 'showed that the threat related to putting a Teamsters' sticker an plant
machinery.
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Charles Frazier testified that in discussing the campaign with him , Bitner remarked
concerning Steelworkers , "You know what has been good for you in the past and do
you know what is good for you now?"
Bitner admitted asking Crumley during a discussion of Teamsters whether he
liked his work and how he was getting along with it , but he denied asking if Crumley
was looking for other work. Admitting the conversation with Frazier, Bitner denied
the statement which Frazier attributed to him . In Moore's case, Bitner testified
that Moore himself mentioned the fact he had been accused of having something
to do with bringing Teamsters in and that thereupon he, Bitner , acknowledged hav-
ing heard such a report.
(ib) Howard Baggett
Mary Russell testified that in replying to her inquiry as to why there were so
many extra foremen and guards around, Foreman Baggett stated that they were
going to make every effort they could to keep the-Teamsters out, that he wanted
to find out who was. "talking it up," and that "`they [were] going to be watching."
Baggett admitted that he told Russell the Company proposed to do everything
it could "legally" to keep the Teamsters out but denied the remainder. of Russell's
testimony.
(7) Charles Allen
J. T. Baker testified that Foreman Allen spoke to him several times concerning the
election and on one occasion told him, "If I were you I wouldn't be passing out the
wrong opinion or being an agitator; especially during the present situation. Allen
also made a comparison of "X" and "Y" unions, terming one a "bad union," which
had corrupt people in it, and the other a "good union," which did not bother anyone.
James Gatley testified that Allen asked him how he was betting on the election,
and made some remark about giving Gatley 2-to-i odds. Carl Gatley testified that
in discussing with him "the big mess," Allen stated no union was better than its
members and he hoped that "none of you boys get mixed up in it back here."
Allen was not called as a witness.
c. Concluding findings
It is to be observed initially that the handbook itself was not distributed among
the employees and that the anti-Teamsters statements contained in it reached the
employees only through the words of the individual supervisors. As previously
found, Respondent's supervisors ignored the instruction that they were not to
initiate discussions with the employees and that they were to use the handbook mate-
rials in answering questions of employees concerning the Teamsters' organizing
campaign. Indeed, in a number of instances employees were called away from their
work stations for the discussions, sometimes after the supervisor had arranged for
a relief operator. Under all the circumstances, it would not be surprising, in
a campaign of such widespread scope, that some of the supervisors might otherwise
have departed from the letter of their instructions. "When, as done here, an
employer sets out to campaign against a union, one of the risks is that out of zeal,
ignorance, or otherwise, foremen, supervisors, and similar representatives in cham-
pioning the antiunion cause will overstep the mark." Hendrix Manufacturing Com-
pany, Inc., V. N.L.R.B., 321 F. 2d 100 (C.A. 5).
The General Counsel's evidence is that they did so, and in view of the entire
situation the cumulative weight of the testimony of his numerous witnesses heavily
preponderates over the denials of the individual supervisors, particularly since in
some cases the supervisor made no attempt to follow the materials in the hand-
book, as Sam Anderson, for example, admitted. A single exception is made, how-
ever, in the case of General Counsel's witness Bobby Crumley, whom I find, on
the basis of the evidence taken at the August 21 hearing, not to be a credible witness.
With that exception, I credit the testimony of the General Counsel's witnesses, and
I conclude and find that by the following conduct, Respondent interfered with,
restrained, and coerced employees in the exercise of their rights guaranteed in Sec-
tion 7 of the Act:
. 1. The interrogations by Bitner of Moore and Frazier; by Connie M. Gatley, Jr.,
of James Gatley; by Cleaver of Stroud and Russell; and by Allen of Baker, James
Gatley, and Carl Gatley. Those interrogations plainly occurred in the 'coercive
atmosphere created by Respondent's openly avowed hostility to Teamsters and by
the other unlawful conduct of Respondent's supervisors, as found below. (See
International Ladies' Garment Workers' Union, AFL-CIO, 142 NLRB 82.)
2. The threats and warnings by Anderson to Talley and Smith; by High to King;
by Cleaver to Russell; by Connie Gatley, Jr., to James Gatley; by Bitner to Frazier;
and by Allen to Baker and Carl Gatley.
ALADDIN INDUSTRIES, INC. ,1399
3. Baggett's statement to Russell that the extra guards were to keep watch and
to keep Teamsters out and Cleaver's statement to Russell that he had ways for find-
ing out that she was for Teamsters . Those statements were plainly calculated to
create the impression of surveillance of union activities.
2. President Johnson 's speech
The compaint alleged that a speech made by Respondent's president, Victor John-
son, on or about February 27, was violative of Section 8(a)(1). The General
Counsel points first to the fact that the speech was directed solely against Teamsters,
with no mention being made of Steelworkers , and also to Johnson 's statement early
in the speech, "Friday's NLRB election is vitally important to you, your families,
'and our community," and he then assigns the following excerpt as containing the
gist of the alleged violation:
Now let's get down to the bread and butter facts. Section 8(b) (7) (d) [sic)
of the National Labor Relations Act of the United States states that, and I
quote , "The obligation to bargain in good faith does not compel either party to
agree to a proposal or require the making of a concession." End of quote.
The same provision of this federal law declares that we -do not have to
sign a contract with any union . unless and . until . we reach agreement on all
terms and all provisions. Until a contract on all terms is reached the company
is not required to give any wage increase. The only weapon that a union has
to attempt to enforce its demands is to call a strike. In the event of such a strike,
the Company has a legal right to replace permanently the striking employees.
The United States Supreme Court expressly held that in N.L.R.B. v. Mackey
Radio reported in the Official Reports of the United States -Supreme Court, at
304 U.S. 333. In the event of a strike, Aladdin shall continue to operate even
with newly, hired. employees if that were unfortunately necessary. And I say
unfortunately because, through the years, I have grown to know all of you and
I have learned to respect most of you . Because you know Aladdin is a fine
place to work, I am sure you will not be surprised to learn that there are over
one thousand applications for employment right now on file.
The General Counsel also cites Johnson's concluding remark, "Now it is in your
hands: what kind of a future you and your family are going to have. I hope, and
I expect, Aladdin people to repudiate overwhelmingly Broda, Ewing King, Hoffa,
and everything they stand for."
That speech, the General Counsel contends, occurring in the context of Respond-
ent's other acts and statements, violated Section 8(a)(1) of the Act by impressing
upon the employees the futility of selecting Teamsters as their bargaining representa-
tive and by giving the clear impression that should such selection occur, that
strikes would follow with resultant loss of jobs and replacement. In his oral argu-
ment, however, the General Counsel agreed that if Johnson had prefaced his state-
ments about the strike by remarks concerning 'the economic nature of the strike,
"it would have been perfectly all right" (to inform the employees they could be
permanently replaced).
I conclude and find that neither' the evidence nor existing precedent supports the
General Counsel's contentions.
Johnson's references to bargaining were statements of Respondent 's legal obliga-
tions under Section 8(d), and there was no implication, as there was in Texas
Industries, Inc., et al., 139 NLRB 365, that the would not bargain in good faith with
the Union, and none that a strike and a resultant loss of jobs through replacement
were therefore inevitable consequences of union representation, Texas Boot Manu-
facturing Company, Inc., 143 NLRB 264, at footnote 1. Nor was there, as there
was in Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, any theme that
a strike was inevitable if Teamsters won, and no warning that Respondent intended
so to conduct negotiations with that union that a strike would result. Indeed, the
language to which the General Counsel objects is the substantial equivalent of that
,contained in a speech in Texas Boot, supra, which the Board found not to exceed
the protection afforded by the Act. There, as here, the president referred to the
company's right to replace strikers permanently in the event of a strike and added,
as here, a reference to the number of applications on file. There, ' as here, the
speaker did not preface his statement by remarks concerning the economic nature
of the strike.
I find the Texas Boot case to be controlling here and that Johnson's speech, con-
sidered by itself, did not exceed the bounds of free speech.
1400 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
But the General Counsel attempts further to connect the speech with the con-
duct which the supervisors engaged in as found above. Though I have found some
of those statements to be violative of Section 8(a) (1), they were those which went
beyond anything contained in either the handbook materials or the speech. Though
Respondent is responsible for what the supervisors said, having sent them out to
campaign among the employees (Hendrix Manufacturing Company, Inc., supra),
the evidence indicates that the supervisors exceeded the letter of their instructions in
making the statements which I found to be unlawful. Certainly if they had con-
fined themselves to the handbook materials and the contents of the speech, there
could have been no finding of a violation . Under the circumstances I am unable
to consider the speech itself as given in the context of the unlawful conduct of the
supervisors or as tainted by the illegality of the latter, and I conclude and find that
the speech was therefore not violative of the Act.
3. Surveillance by camera
George Broda, Teamsters organizer, testified that during the week before the
election he was frequently engaged in distributing handbills to employees at the
employee entrance to the plant and that Steelworkers' representatives were similarly
engaged in distributing some at the same time . On two occasions Broda saw some-
one inside the guardhouse apparently attempting to take photographs of his move-
ments. On one of those occasions Steelworkers' representatives were also present.
John Gribble and Fred Ward gave testimony to similar effect, with Ward adding
that George Hastings, director of industrial relations, was also in the guardhouse.
Hastings testified that , because he anticipated acts of violence , he directed one
S. B. Huse to take motion pictures from the vicinity of the guardhouse at times, when
there might be "problems" at the gate, and that the purpose was to record any
action which took place. He testified, however, that no film was shot and no pic-
tures were actually taken, though he was present when the operator adjusted or
focused the camera for distance, which, by actual measurement, was 110 feet
from the gate. Hastings explained that he did not call the police because that would
have been useless unless an act of violence did occur, and that none occurred.
As is seen, there was no claim that actual photographing took place, and the
testimony of the General Counsel's witnesses is otherwise reconcilable with Hastings'
testimony and with the view that what they saw was the preparatory focusing of
the camera. Though Hastings' testimony did not establish that there was any real
need or justification for his action ( i.e., no strike was in progress and he did not
call the police), it was plain from all the evidence that any impression of surveillance
which might have been created was at worst a "fleeting" one, as the General Counsel
conceded in oral argument.
I therefore do not find that the evidence concerning the use of a camera established
a violation of the Act.
C. Discrimination
1. Introduction; the work rules; the contract provisions
All of the discharges with which we are now concerned stemmed directly from
violations of Respondent's no-solicitation rule, though other reasons were also as-
signed. Respondent had altogether a dozen (printed) rules of conduct, appended
to which was a statement that violation of any of them would subject the offender
to "disciplinary action up to and including dismissal." In addition, a specific pro-
vision for "dismissal" was contained in rule 9 (willful destruction or sabotage of
property ) and for "immediate dismissal" in rule 2 (punching another 's timecard,
etc.), in rule 7 (insubordination, interference, fighting, etc.), and in rule 12 (theft
of property). No specific penalty was provided for infractions of the other rules,
including those which are material to the discharges, i.e., rule 1, which forbade visit-
ing, loitering, or going to other departments without permission, and rule 11, which
reads as'follows:
Debating, agitating, circularizing, soliciting for funds, dues, etc., or soliciting
for membership in organizations is not permitted on Company time unless
approved in advance by the Company.
Article IV, section 2, of the existing contract provided also that there should be
no solicitation for union membership or participation in any union activity on
company time other than as provided in the agreement, though there appeared to be
no implementation of that exception. Section 3 provided that there should be no
production retardings or other similar interruptions of, or interference with work,
and that any employee who violated that section "will be subject to discharge."
ALADDIN INDUSTRIES, INC. 1401
Prior to the Ward and Powell discharges, no violations of rule 1 or 11 had occurred,
and there was therefore no background against which the harshness of the penalty
could be measured. However, Respondent's witness, Foreman Ralph High, testified
that Respondent's normal practice was to talk with an employee concerning a minor
first infraction, pointing out the infraction, and then to take further steps if it should
happen again.
2. The discharge of Fred Ward
Fred Ward had been employed for approximately 3 years, without complaint con-
cerning either his conduct or his work. Though he was serving as a committeeman
for Steelworkers, he was one of the leaders in the movement against that union and
took an active part in the organizational activities of -Teamsters in the latter part of
1962. The actual signing of authorization cards began in December, and early
in January Ward attempted to resign as committeeman for Steelworkers, but his
resignation was rejected. Ward did not inform Steelworkers at the time of his
pro-Teamsters activities and did not resign his membership in Steelworkers. He
continued to serve as committeeman-still without disclosure of his Teamsters ac-
tivities either to Steelworkers or to Respondent-until February 25, when he handed
Steelworkers a formal written resignation. Respondent in turn received notice from
Steelworkers on February 26 that Ward was no longer a committeeman.
In the peceding week it was Ward who had typed at the office of Teamsters rep-
resentatives the petition opposing the Steelworkers' party, for circulation of which
Powell was later to be discharged. Ward testified that after handing in his resigna-
tion to Steelworkers on February 25, he worked a full day. He finished his work at
11:27 p.m. and went to his locker until the bell rang (at 11:30) to mark the change
of shifts.7 As he walked to the end of the line of some 25 to. 30 employees who
were checking out, someone unknown to him reached out and stuck on his shirt a
brightly colored Teamsters campaign sticker, approximately 3 by 4% inches in
dimensions, which bore the following legend:
WOULD YOU LIKE TO
BE REPRESENTED BY
THE TEAMSTERS UNION
LOCAL 327?
THEN MARK AN X
IN THE FIRST BOX
q q
Ward testified that he had his coat on and that only one-half of the sticker showed
but that he did not remove it because of some statement made by a foreman earlier
that if anyone were caught with a sticker in his hand he would be fired on the spot.
Ward explained that his purpose was to leave the premises without touching the
sticker with his hand . As that explanation was plainly puerile and transparent, I
find that Ward knowingly and intentionally wore the sticker on company time up to
the time he checked out.
Ward testified that he talked to no one about the Union while he. was in the check-
out line and he denied that he walked back and forth in front of the line with the
sticker on him. Ward also denied that he at . any time solicited votes for Teamsters
on company time.
Other witnesses for the General Counsel testified that they did not see or hear
Ward solicit anyone in the checkout line; and , though some of them also claimed, as
Ward did , that the shift change bell had rung before Ward reached the line, the
preponderance of the evidence established that the line was waiting for the bell to
ring, pursuant to Respondent 's rule which forbade clocking out before the end of
the shift. Indeed , testimony by Respondent's witnesses to that effect received cor-
roboration from General Counsel 's witness Ernest Stroud , who testified that as he
was coming in to work shortly before 11:30 , he saw Ward in the line and spoke to
him about the sticker.
After checking out, Ward walked past a guard , Dave Harrison , who blocked his
exit until Foreman Anderson came over and tore the sticker from his shirt and ordered
him to report to Kriel 's office the next morning.
7 At shift changes Respondent allowed the outgoing employees a "grace" period of a
few minutes within which to prepare to check out.
1402 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The next morning Ward was interviewed by Hastings, director of industrial and
public relations, who repeatedly accused Ward of lying in denying knowledge of the
source of the sticker and who suggested that Ward take a lie detector test. When
Ward refused, Hastings suspended him pending further investigation.
On March 1, Ward served as observer for Teamsters at the election. On March 9,
he was summoned to Hastings' office and was discharged by Anderson in the presence
of Hastings and Ernest Stroud, the Steelworkers' committeeman on the third shift.
The grounds assigned were that Ward had arrogantly worn the sticker soliciting votes
for Teamsters, in violation of the company rule, that his actions. tended to discredit
management, and that he had interfered with production by talking with employees
during worktime and by going to places he was not supposed to be.
Respondent's evidence went mainly to disputing Ward's testimony concerning
his conduct in the line and his attitude when stopped by the guard and Anderson.
Foremen Howard Baggett and Duke Cleaver testified that Ward was openly wear-
ing the sticker in the line before the bell rang for shift change and that he was turn-
ing back and forth and grinning and trying to attract everyone's attention to it.
Ethel Trotter testified similarly that when apprehended by Anderson, Ward was
"smiling all the time . . . like he was enjoying it." 8 Anderson testified that Ward's
attitude toward him was very abusive and that Ward told him to "Get your dirty,
hands off of me." He testified that in assigning the grounds for discharge, he meant
by arrogance, Wards flouting of authority in his disrespectful attitude, and that by
discrediting management, he was referring to the fact that Ward was trying to make
fools of them with the stickers.
I credit the testimony of Trotter, Baggett, and Cleaver concerning Ward's attitude,
which, as will be seen, corresponded with Hastings' evaluation of it.
Hastings testified that he interpreted Ward's conduct as discrediting company
management in that Ward was making "a big scene" by "showing off" to the other
employees by wearing the sticker in full view of two supervisors. Of greater signi-
ficance, bearing on Respondent's interpretation of its no-solicitation rule, was Hast-
ings' continuing testimony that Ward-
[T] hen not satisfied with that decided that he would, wear it all the way out past
another foreman and a guard and out to the -guard office where he would pass
another guard and many employees and out to the parking lot.
Indeed, Hastings added that under his interpretation, Ward had no right to wear
the sticker while he was on his own time on his way out of the plant and that the
rule would even prohibit the wearing of Teamsters stickers on the parking lot or in
the cafeteria during lunch hours.9
3. The discharge of James' Powell'
James Powell had been employed since 1950, without complaint concerning either
his work or his conduct save for a single reprimand for smoking in a no-smoking
area some 4 to 5 years ago. He had been a member of Steelworkers for 10 years,
and his dues were checked off by the Company. Although he made application for
membership in Teamsters in late January, he did not resign from Steelworkers and
did not disclose to anyone his interest in Teamsters.
On the morning of February 18, another employee, Charles Mason, stopped
Powell, pulled a paper out of his pocket, handed. it to Powell, and asked if he would
8 Although Trotter also testified as to solicitation by Ward on one occasion on work-
time, she added that she did not report the matter to anyone. If there were other such,
reports, Respondent failed to identify the informants and failed ' to call witnesses to
testify directly concerning any such conduct by Ward. Under the circumstances there was
no direct support for Respondent 's claim that Ward frequently violated Anderson's rule
about visiting employees on the pluggers' platform without permission, thereby inter-
fering with the work of the female employees.
6 Though Respondent's counsel argued orally that Ward was seized by the guard and
Anderson because of his conduct before checking out, Hastings' testimony showed plainly
that Respondent was also concerned with Ward's conduct after checking out. Further-
more, Foremen Baggett and Cleaver saw Ward with the sticker in the line, but made no
attempt to stop him or to remove it.
ALADDIN INDUSTRIES, INC. 1403
get some signatures to it. Both employees were on worktime at the time. The
petition read as follows:
WE, THE UNDERSIGNED MEMBERS OF THE UNITED STEELWORK-
ERS UNION, LOCAL 4802, REQUEST C. ALLEN HIGH, ATTORNEY, TO
REPRESENT US IN FILING SUIT TO STOP UNLAWFUL SPENDING OF
UNION FUNDS ON PROPOSED PARTY, WHICH IS TO BE HELD ON
THE 23RD DAY OF FEBRUARY, 1963.
.The party had been voted for in an election held among the employees, had been
carried by a narrow margin, and Powell had voted against it. C. Allen High was,
to, Respondent's knowledge, the attorney who represented Teamsters at the repre-
sentation hearing.
Powell testified that he thereafter got some of the employees to sign the petition;
during his own worktime and during the worktime of some of the signatories, with-
out seeking permission from supervision. . When introduced in evidence, it con-
tained 14 signatures besides his own. Powell was apprehended around 1 p.m. by
Foreman Ralph L. High, and informed High that he received the petition from
Charles Mason and that Mason stated he got the petition .from Charles Lee.
Thereafter Powell was interviewed separately by Superintendent Dunn, by Edward
Kriel, manager of industrial relations, and by Hastings, director of industrial rela-
tions, all of whom informed him that his breaking of the company rule against
solicitation on company time was a serious matter, and Hastings , added that the
matter would have to' be investigated and that 'Powell was being suspended pending
the investigation.
Respondent's investigation included in part interviewing Charles Mason and
Charles Lee, both of whom denied any connection with the petition and both of
whom agreed voluntarily to take a lie detector test. They each also signed written
statements for Respondent in which they denied any knowledge of, or connection
with, the petition. Powell also agreed voluntarily to take a lie detector test and
also signed a written statement for the Company in which he repeated his claims
concerning Mason and Lee.
Polygraph tests. were thereafter given the three employees by one Lee A. Enoch,
Jr., a private investigator, who was specially employed by Respondent for that
purpose. Under Enoch's evaluation of the tests as thereafter given to Respondent,
Powell was lying in implicating Mason and Lee and the latter were telling the truth
in denying any connection with the petition. Eliminating irrelevant questions, all of
the questioning related to the petition and 'was directed at discovering the source of
the petition. There was no reference to and no suggestion of either union, of union
activity, or of the pending campaign.
On February 23, Powell was called into Hastings' office, into the presence of
Hastings, Lawrence Biggs , his supervisor, and George Wright, the shop steward.
Briggs informed Powell that he was terminated because of breaking the company
rule about solicitation as well as the rule against loitering or going to other depart
ments without permission, because he attempted to involve two employees who had
nothing to do with the incident, because he. had refused to cooperate in the investiga-
tion'of the incident (i.e., by lying), and because he had violated article IV, sections
2 and, 3, of the existing, collective-bargaining agreement (see section 1, supra).
Powell, Mason, and Lee testified as witnesses for the General Counsel at the hear=
ing on June 18. Powell's testimony. accorded with his, statements given to the
Company on the lie detector test, but both Mason and Lee testified that they in fact
lied during those. tests. Mason.' admitted that he gave the petition to Powell, as
Powell testified, and that Lee had given it to him, and Lee in turn, confirmed the
latter fact.
4. The discharge of Charles.. Lee and Charles Mason
Charles Lee had been employed for some 4 years, and had received one "write-up"
(for improper work or conduct) and one oral reprimand. Charles Mason, em=
ployed since 1950 with one 2-year interruption for military service, received one
written complaint about his work, but no reprimand for violating company rules.
Following their appearance as witnesses on June 18, Lee and Mason were dis-
charged on June 20 for the assigned reason that they lied and withheld or concealed
facts during Respondent's investigation, 10 Hastings testified that the decision was
10 Credited testimony of Foremen Bitner, High, and Cleaver, who denied testimony by
Lee and 'Mason that Bitner also referred specifically to their connection with the petition.
1404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reached after consulting with Respondent 's trial counsel , Lansden and Hutcheson,
as to whether Respondent would have the legal right to discipline Lee. and Mason,
up to and including discharge , for having lied to the Company and concealed in-
formation during the course of the investigation . Receiving an affirmative answer,
a committee of management representatives decided that dismissal was appropriate
and did not consider any lesser form of punishment.
5. Concluding findings
a. The no-solicitation rule; the discharges of Ward and Powell
As has been seen , the discharges of Ward and Powell stemmed from their alleged
violation of Respondent's no-solicitation rule; and although other reasons were
assigned , Respondent 's counsel conceded in final argument that it was the rule
violation upon which Respondent relied chiefly for its defense . The General Counsel
makes two principal contentions concerning that violation . Conceding that on its
face , without regard to other evidence , the no-solicitation rule would "probably be
valid ," the General Counsel argues first , that Hastings ' own interpretation of it and
all the circumstances surrounding the discharges established that Respondent was
invalidly and discriminatorily enforcing its rule as part and parcel of its campaign
to defeat Teamsters in the election , li and second , that the evidence established fur-
ther that the rule violation was only a pretext which Respondent used to cover its
true motive , to discourage the Teamsters movement , and to defeat Teamsters.
I conclude and find , for reasons stated below , that the evidence summarized in
the preceding sections supports those contentions.
As to the status of the rule , there is no question under Hastings ' broad inter-
pretation that the rule would be invalidly enforced . But Respondent argues that
Hastings was merely expressing his opinion as to hypothetical situations ( e.g., solicita-
tion in the company cafeteria or other nonwork areas during lunchtime and other
nonworktime ), and that there was no evidence that the rule was ever enforced on
the broad basis of Hastings' interpretation . I reject those contentions for two
reasons : First, it is inconceivable that an official of Hastings ' rank would not know
and could not correctly testify to the manner in which Respondent interpreted and
applied its no-solicitation rule.12 Secondly, Hastings applied his interpretation to
Ward's conduct in an actual , not a hypothetical , situation , and in that actual situation,
applied the rule as covering Ward 's nonworktime after he checked out and while in
the course of leaving the plant on the way to the parking lot.
Though Respondent seeks further to justify a broad interpretation of the rule by
pointing to distinctions which the Board made in Stoddard-Quirk, supra, between the
validity of rules as applied to oral solicitation , on the one hand, and to the distribution
of literature on the other , that distinction affords no support for Respondent 's posi-
tion here , for both Ward and Powell were engaged. in solicitation and not in the
distribution of literature. The fact that the campaign sticker and the petition were
in written form is no warrant for applying distinctions which are appropriate only to
the distribution of literature.
I therefore conclude and find that by invalidly enforcing its no -solicitation rule,
Respondent interfered with , restrained , and coerced its employees in the exercise of
their Section 7 rights . I also conclude and find that both the circulation of the
petition and the wearing of the Teamsters sticker constituted concerted activities
falling within the protection of Section 7. N.L.R.B.'v. Phoenix Mutual Life In-
surance Company, 167 F . 2d 983, 988 (C.A. 7); Salt River Valley Water Users'
Association v. N.L.R .B., 206 F . 2d 325 , 328 (C .A. 9); N.L.R.B. v. Hymie Schwartz,
d/b/a Lion Brand Manufacturing Company , 146 F . 2d 773 (C.A. 5).
Turning now to the question whether the rule violation was the true reason for
the discharges, it is well settled that a justifiable ground for dismissal is no defense
if it is a pretext and not the moving cause . N.L.R.B . v. Solo Cup Company, 237
u Neither the complaint nor the General Counsel's brief assigns as an unfair labor prac-
tice Respondent 's violation of its own no-solicitation rule. See N.L.R.B. v. United Steel-
workers of America, CIO , Petitioner ( Nutone, Inc.,, Intervenor), 357 U . S. 357.
12 Even were Respondent 's argument soundly based on fact, an appropriate remedial
order should nevertheless be-entered because of the grave danger that Hastings ' interpre-
tation will be applied to future situations . Cf. Stoddard -Quirk Manufacturing Co., 138
NLRB 615, 623 ; N.L.R.B. v. Firedoor Corporation , of America, 291 F. 2d 328 , 331.332
( C.A. 2), cert . denied 368 U.S. 921.
ALADDIN INDUSTRIES, INC. 1405
F. 2d 521, 525 (C.A. 8). And though I find that, absent invalid and discriminatory
enforcement of its no-solicitation rule, the violation of that rule could furnish justi-
fiable cause, I conclude and find that the following facts establish that the rule
violation'was only a pretext which Respondent used to screen its true motive to dis-
courage the progress of Teamsters' organizational campaign and to defeat Teamsters
in the forthcoming election:
(1) Respondent's position was one of bitter and unremitting hostility to Teamsters
as disclosed by Johnson's speech and by the contents of the supervisors' handbook,
and it openly engaged through its supervisors in an unlawful campaign among the
employees to defeat Teamsters in the election as found in Section B, 1, supra.
Such "antiunion bias and demonstrated unlawful hostility are proper and high sig-
nificant factors for Board evaluation in determining motive." N.L.R.B. v. Dan
River Mills, Incorporated, Alabama Division, 274 F. 2d 381, 384 (C.A. 5).
'(2) The dischargees had aligned themselves with Teamsters, which fact was known
to the Respondent prior to the discharges, and the concerted activity in which they
were engaged at the time was on behalf of Teamsters. Though Respondent denies
that the petition was such as to apprise it of Teamsters' backing, Respondent plainly
could reasonably have suspected that such was the case from the suggested em-
ployment of Attorney High to stop the Steelworkers' party, since High was to Re-
spondent's knowledge the Teamsters' attorney at the representation hearing. Indeed,
Hastings admitted that he would "suspect" as much but could not "know" it.
(3) Neither rule 1 nor rule 11 provided, as other rules specifically did, for the
penalty of discharge or immediate discharge. Respondent's normal practice, accord-
ing to Foreman High, was only. to point' out to an employee a minor first infraction,
with disciplinary action to be taken if repeated. Here there was neither prior warn-
ing.nor threat of discharge. Cf. N.L.R.B. v. Robbins Tire & Rubber Company, Inc.,
161 F. 2d 798, 801 (C.A. 5).
(4) The dischargees were.employees of long standing whose work and conduct
records were free of blemish. The penalty of discharge, under those circumstances,
was extremely harsh for a first and a minor infraction.
(5) No substantial interference with production or with worktime was shown.
Indeed, the extent of such interference, or the lack of it, was not a matter which
• concerned Respondent, as shown by a comparison of all the discharge cases. Thus,
though some encroachment on worktime was apparent from Powell's circulation of
the petition, the only connection which Lee and Mason had with it was. to place it
in Powell's hands. Ward's momentary flaunting of the Teamsters' sticker on work-
time was without consequential effect, for it occurred at a time when the employees
were not engaged in productive activities. Though the evidence indicates that a
single employee was working nearby, there was no showing either that he was a
witness to, or that he was distracted by, Ward's conduct. Plainly any interference
resulting from Ward's conduct was negligible-as Respondent's, counsel conceded
o in final argument-if not, in fact, nil.
(6) The intensive investigation which Respondent resorted to regarding the source
of the petition, particularly after catching Powell red-handed and obtaining a full
confession, showed plainly that Respondent was not concerned with the rule violation
as such, but rather with ferreting out those who were responsible for bringing into
the plant a document which could only advance the Teamsters' cause in the pending
election campaign.13 For that reason I conclude and find that Respondent's true
purpose in conducting the lie detector tests was to learn of the employees' Teamsters
or other concerted activities, and that -thereby Respondent engaged in interference,
restraint, and coercion within the -meaning of Section 8(a)(1).
The foregoing findings have disposed specifically of Respondent's defenses based
on its work and conduct rules Nos. 1 and -11. Since the,contract provisions on which
Respondent relies correspond generally with those rules-in that .they proscribe
solicitation and interference with work and production-the foregoing findings
v Though Respondent's counsel contended in final argument that Respondent was charge-
able at most with knowledge that the petition was backed by an anti-Steelworkers faction,
that position falls before the naming of Teamsters' Attorney High to bring the proposed
litigation to stop the party. Furthermore, the distinction which Respondent seeks to
urge is of slight solace to it in view of the rival union campaign (in which Respondent
was an active participant); for to be anti-Steelworkers in that situation was plainly
equivalent to being pro-Teamsters, and vice versa. Of no moment therefore, -as a prac-
tical matter; is the question whether resultant discrimination' would discourage member-
ship in Teamsters or - only encourage membership in Steelworkers, for either would be
equally violative of Section' 8(a) (3). In actual effect, both. will result if either is found.
1406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
similarly dispose of them as a valid defense. Furthermore, Respondent was plainly
not entitled to advance as a defense provisions in its Steelworkers contract which it
was discriminatorily applying and enforcing as a campaign weapon against Teamsters.
.See, e.g., Gale Products, Div. of Outboard Marine Corp., 142 NLRB. 1246.
Other grounds, which Anderson assigned for Ward's discharge may be briefly dis-
posed of, for Respondent offered no substantial evidence to support them, and
Respondent's counsel conceded in final argument that he was relying chiefly on the
rule violation. The credited testimony of Respondent's witnesses, Foremen Baggett
and Cleaver and employee Ethel Trotter, plainly negatived Respondent's claim of
arrogance and of discrediting management. No evidence was offered concerning
other alleged solicitation or interference with production save for Trotter's testimony
(see footnote 8), and Respondent's asserted reliance on that was exploded by her
admission that she reported the single incident of solicitation to no one. I conclude
and find, under all the circumstances herein, that the foregoing grounds were mere
makeweights which Respondent, assigned as further screening of its discriminatory
motivation.
There remains for final disposition Respondent's reliance on the grievance and.
arbitration provisions of the contract. The evidence showed that. both the unfair
labor practice charges and the grievances on behalf of Powell and Ward were filed
more or less contemporaneously and that the processing of the grievance was sus-
pended when Respondent was unofficially advised by the 'Board that a complaint
would issue on the charges. Those charges have now been fully litigated in this
proceeding. '
It is difficult under .the circumstances to understand how the Board would be
justified in withholding the exercise of its exclusive jurisdiction under Section 10(a)
of the Act to adjudicate the unfair labor practices and to order a cessation thereof
under Section 10(c). The case of United Steelworkers v. 'Warrior and Gulf Naviga-
tion Company, 363 .U.S. 574, upon which Respondent relies, is not in point. ' That
case did not involve any question concerning an unfair labor practice, for the.Su-
preme Court there merely affirmed the right of a labor organization to sue under
Section 301(a) of the Act to enforce the arbitration of a' grievance regarding the
subcontracting of work as an alleged violation of the collective-bargaining agreement.
Aside from the foregoing, it is most questionable whether the grievances were (1)
such as qualified for consideration under the contract or (2) such as could fairly be
resolved thereunder. On the first point, the procedure purported to extend only
to such grievances as concerned "any difference, disagreement, or dispute arising
between the parties hereto as to the application or interpretation' of the provisions
of this agreement." The Ward and Powell grievances plainly' did not qualify under
that definition, for what Ward' charged, for example, was that he was suspended
and discharged for alleged union activity. In addition, even were it assumed
arguendo that an arbitrator were empowered to adjudicate issues involving an unfair
labor practice, he would be without the statutory powers contained in Section 10(a)
and (c) to order the cessation of, and to prevent the commission of future, unfair
labor practices.
On the second point, it is difficult to envision how, in the existing situation, griev-
ance proceedings could result in a fair and equitable disposition of grievances which
involved concerted activities aimed at supplanting the incumbent union, for that
union, as the contractual representative of the grievants, would be placed in the
anomalous position of advancing interests which were directly opposed to its own.
Indeed, there was no dispute between.the contracting parties, Respondent and Steel-
workers, and they were aligned in interest against Ward and Powell (and Teamsters).
Cf. International Harvester Company (Indianapolis Works), 138 NLRB 923, 928,
footnote 20.
I therefore reject Respondent's defense based upon the grievance procedure, and
I conclude and find that Respondent discharged Ward and Powell because of their
concerted activities in behalf of Teamsters, and thereby discriminated to discourage
membership in that Union.
b. The discharge of Lee and Mason
It was plain from all the evidence that if, during Respondent's investigation of the
petition, Lee and Mason had admitted their connection with it, they would have
been discharged along with Powell. Once their participation became known to
Respondent, therefore, it was only an inevitable (and predictable)'. consequence that
they would share Powell's fate. Thus the three discharges were inextricably'bound
together as part and parcel of the petition incident, and they constituted a single
subject matter (though'a further issue is presented whether Lee and Mason were
ALADDIN INDUSTRIES, INC. 1407
discharged because they testified). The same considerations which were determina-
tive of the discriminatory nature of Powell's discharge therefore apply here and lead
to the same conclusion, i.e., that Respondent's action was motivated by Teamsters
animus and by its desire to dissuade and to discourage employees who were engaged
in activities on behalf of Teamsters. Indeed, Respondent's investigation was directed
specifically at requiring Lee and Mason to divulge their participation in that activity.
Of course, the employee's normal reluctance to divulge to his employer knowl-
edge of and participation in concerted activities (a fact attested to by evidence in
many, if not most, unfair labor practice proceedings) was augmented here by the
intensity of Respondent's investigation and by .the fact that Powell, who had im-
plicated them, had already been suspended for engaging in that activity. It is dif-
ficult to believe that Respondent, under the circumstances, could reasonably have
expected Lee and Mason to admit any complicity in the matter, see, e .g., St. Louis
Car Company, 108 NLRB 1523, 1525-1526; and the Board has held that such dis-
charges for lying in response to questions concerning organizing activities to be
violative of the Act. Id., and see Etiwan Fertilizer Company, 113 NLRB 93, 96.
I therefore conclude and find that Respondent, by discharging Lee and Mason be-
cause of their connection with the petition and because they lied to it' during the
investigation in denying that connection, engaged in discrimination to discourage
their Teamsters activities, in violation of Section 8(a) (3) and (1) of the Act.
There remains the issue whether the discharge was also violative of Section 8(a)
(4) of the Act. The evidence showed plainly that Lee and Mason, under the com-
pulsion of an oath, gave truthful testimony concerning their concerted activities
which resulted directly in, and which formed the actual basis of, their discharges, i.e.,
the truth they told then established the lie for which they were discharged. Thus
their loss of employment was due to an act which was compelled by the Board. As
the court held in Eugen Pedersen (Modern Linen and Laundry Service, Inc.) v.
N.L.R.B., 234 F. 2d 417, 420 (C.A. 2), the Board is "required to utilize every
resource at its command to protect witnesses, such as [Mason and Lee], who have
been placed in jeopardy because the Board has required. them to appear and give
testimony." It is a permissible inference, the court held, that Congress intended
the protection of Section 8(a)(4) to be as broad as the Board's subpena powers
under Section 11 of the Act.
It is also well established that the right of employees to appear and to testify in
Board proceedings is a right which is guaranteed under Section 7 of the Act, Duralite
Co., Inc., 128 NLRB 648, 651, for, "Clearly inherent in the employees' statutory
rights is the right to seek their vindication in Board proceedings" through the giving
of testimony. Better Monkey Grip Company, 115 NLRB 1170; Dal-Tex Optical
Company, Inc., 131 NLRB 715, 731, enfd. 310 F. 2d 58 (C.A. 5). See also I. C.
Sutton; Sr., d/b/a I. C. Sutton Handle Factory, 125 NLRB 1094, 1096; N.L.R.B. v.
Northwestern Mutual Fire Association, 142 F. 2d 866, enfg. 46 NLRB 825; Jack
Lewis, et al., d/b/a California Footwear Company, 122 NLRB 37, 38-39 (supple-
mental decision); Modern Linen and Laundry Service, Inc. (on remand), 116 NLRB
1974, concurring opinion. at 1976-1977. The Board would plainly be left without
power to protect its processes if employers were free to discriminate against em-
ployees who have been compelled to give testimony concerning their concerted ac-
tivities. Jack Lewis, et al., d/b/a California Footwear Company, supra.
I therefore conclude and find that Respondent discharged Mason and Lee because
they gave testimony. under the Act, thereby violating Section 8(a)(4) of the Act.
D. Assistance and support
An employer is not required to remain neutral as between competing unions in an
election campaign but may express its preference if it does so in a noncoercive
manner. Respondent's unlawful conduct as found in the preceding sections of this
decision exceeded permissible limits, being plainly directed to aiding, assisting, and
supporting Steelworkers in winning the election and in retaining its status as the
incumbent bargaining representative of Respondent's employees.. It is not material,
of course, whether Steelworkers sought or willingly accepted such aid,14 Precision
Fittings, Inc., 141 NLRB 1034; it is the fact of assistance, not the solicitation of it
from a union, which establishes a violation by an employer of Section 8(a)(2).
14 There is no evidence that it did ; and the election results indicated that it needed
no help.
1408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I therefore conclude and find that by engaging in the conduct which I have found
herein to be violative of Section 8(a)(1) and 8(a)(3),15 Precision Fittings, Inc.,
supra; Campco Plastics Company, a Division of Chicago Molded Products Corpo-
ration, 142 NLRB 1272, Respondent rendered unlawful aid, assistance, and support
to Steelworkers within the meaning of Section 8(a) (2).
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative ac-
tion which is conventionally ordered in such cases as provided in the Recommended
Order below, which I find necessary to remedy and to remove the effects of the un-
fair labor practices and to effectuate the policies of the Act. For reasons which
are stated in Consolidated Industries, Inc., 108 NLRB 60, 61, and cases there cited,
I shall recommend a broad cease-and-desist order.
Upon the basis of the foregoing findings of fact, and upon the entire record in
the case, I make the following:
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor prac-
tices proscribed by Section 8(a) (1) of the Act.
2. By suspending and discharging James Powell and Fred Ward and by discharg-
ing Charles I. Mason and Charles N. Lee, and by thereafter refusing to reinstate
them, Respondent engaged in discrimination to discourage membership in Teamsters
Local 327, thereby engaging in unfair labor practices proscribed by Section 8(a)(3)
and (1) of the Act.
3. By discharging Charles I. Mason and Charles N. Lee because they gave testi-
mony under the Act, Respondent engaged in unfair labor practices proscribed by
Section 8(a)(4)and(1)oftheAct. •
4. By rendering unlawful aid, assistance, and support to United Steelworkers of
America, AFL-CIO, Respondent engaged in unfair labor practices proscribed by
Section 8(a) (2) of the Act.
5. The aforesaid unfair labor practices affect 'commerce' within the meaning of
Section 2(6)-and (7) of the Act.
RECOMMENDED ORDER
Upon the foregoing findings of fact and conclusions of law and the entire record,
and pursuant to Section 10(c) of the Act; I hereby recommend that the Respondent,
Aladdin Industries , Inc., its officers , agents, successors , and assigns , shall:
1. Cease and desist from: '
(a) Interrogating coercively employees regarding their union membership and
activities. •
(b) Conducting lie detector tests among its employees for the purpose of learning
of their union or other concerted activities.
(c) Threatening employees with economic reprisals and loss of employment if
they should support Teamsters or select Teamsters as their bargaining representative.
(d) Creating the impression of surveillance of union activities of its employees.
(e) Invalidly and discriminatorily enforcing its no -solicitation rule.
(f) Discouraging membership in Teamsters Local 327, or any other labor or-
ganization of its employees , by discharging or failing to reinstate them , or -in any
other manner discriminating in regard to their hire or tenure of employment or any
term or condition of employment.
(g) Rendering unlawful aid,' assistance , or support to United : Steelworkers of
America , AFL-CIO, or any other labor organization.
(h) In any . other manner interfering with , restraining, or coercing its employees
in the exercise of their right to self-organization , to form , join, or assist said
Teamsters Local 327, or any other labor organization, to bargain collectively through
representatives of their own choosing , or to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection , or to refrain
from any or all such activities.
15 Though only the Ward and Powell discharges were included in the original complaint
allegations, the subsequent discharges of Lee and Mason were inseparably linked with
Powell's and constituted unlawful assistance and support in the same manner and degree
as Powell's and Ward's.
ALADDIN INDUSTRIES, INC. 1409
2. Take the following affirmative action:
(a) Offer to lames Powell, Fred Ward, Charles I. Mason, and Charles N. Lee
immediate and full reinstatement to their former or substantially equivalent positions,
without prejudice to their seniority or other rights and privileges, and make each of
them whole for any loss of pay which he may have suffered by payment to him
of a sum of money equal to that which he would normally have earned from the
date of the discrimination against him as herein found to the date of the offer of
reinstatement, less his net earnings during said period (Crossett Lumber Company,
8 NLRB 440), said backpay to be computed in a quarterly basis in the manner
established by the Board in F. W. Woolworth Company, 90 NLRB 289, together
with interest thereon at the rate of 6 percent per annum. Isis Plumbing & Heating
Co., 138 NLRB 716.
(b) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records necessary to analyze the
amounts of backpay due under this Recommended Order.
(c) Post in its plant and offices, copies of the attached notice marked "Appendix
A." 16 Copies of said notice, to be furnished by the Regional Director for the
Twenty-sixth Region,. shall, after being signed by Respondent's representative, be
posted by Respondent immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable, steps shall be taken by
Respondent to insure that said notices are not altered, defaced, or. covered by any
other material.
(d) Notify the Regional Director for the Twenty-sixth Region, in writing, within
20 days from the date of the receipt of this Decision, what steps Respondent has
taken to comply herewith.17
16 In the event that. this Recommended Order be . adopted by the Board , the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced
by a decree, of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order."
17 In the event that this Recommended Order be adopted by the Board , this provision
shall be modifi ed to read : "Notify said Regional Director, in writing , within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith."
APPENDIX A
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify you that:
. WE WILL' NOT discourage membership in Teamsters , Chauffeurs, Helpers &
Taxicab Drivers Union Local 327, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America , or any other labor organiza-
tion , by discharging or failing to reinstate employees or in any other manner
discriminate in regard to their hire or . tenure of employment or any term or
condition of employment.
WE WILL NOT discharge or otherwise discriminate' against employees because
they have filed charges or given testimony under the Act.
WE WILL NOT interrogate coercively our employees regarding their union
membership and activities.
WE WILL NOT .conduct lie detector tests among our employees for the purpose
of learning of their union or other concerted activities.
WE WILL NOT threaten employees with economic reprisals or loss of employ-
ment if they should support said Teamsters Local 327 or select said organization
as their bargaining representative.
WE WILL NOT create the impression of surveillance of union activities of our
employees.
WE WILL NOT invalidly or discriminatorily enforce our no-solicitation rule.
WE WILL NOT render unlawful aid, assistance , or support to United Steel-
workers of America, AFL-CIO, or any other labor organization.
756-230-85-vol. 147-90
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with , restrain , or coerce our
employees in the exercise of their right to self-organization , to form , join, or
assist said Teamsters Local 327, or United Steelworkers of America , AFL-CIO,
or any other labor organization , to bargain collectively through representatives
of their own choosing , or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection , or to refrain from
any or all such activities.
WE WILL offer to James Powell , Fred Ward , Charles I. Mason , and Charles N.
Lee immediate and full reinstatement to their former or substantially equivalent
positions , without prejudice to their seniority or other rights and privileges,
and make each of them whole in the manner provided in the Trial Examiner's
Decision for any loss of pay they may have suffered as a result of our dis-
crimination against them.
All our employees are free to become, remain , or to refrain from becoming or
remaining members of the above named or any other labor organizations.
ALADDIN INDUSTRIES, INC.,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
NOTE.-We will notify any of the above-named employees if presently serving in
the Armed Forces of the United States of their right to full reinstatement upon ap-
plication in accordance with the Selective Service Act and the Universal Military
Training and Service Act of 1948 , as amended , after discharge from the Armed
Forces.
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, Seventh
Floor , Falls Building, 22 North Front Street, Memphis, Tennessee, Telephone No.
527-5451 , if they have any question concerning this notice or compliance with its
provisions.
Cloverleaf Division of Adams Dairy Co .' and Bakery and General
Sales Drivers and Employees Local Union No. 28 , affiliated
with the International Brotherhood of Teamsters , Chauffeurs,
Warehousemen & Helpers of America . Case No. 17-CA-2007.
June 30, 1964
DECISION AND ORDER
On April 1, 1963, Trial Examiner C. W. Whittemore issued his In-
termediate Report in the above -entitled proceeding recommending
that the complaint be dismissed in its entirety, as set forth in the at-
tached Intermediate Report. Thereafter, gill parties filed exceptions to
the Intermediate Report and supporting briefs. Pursuant to an order
of the Board remanding the proceeding for further hearing , the Trial
Examiner issued his Supplemental Intermediate Report on Septem-
ber 27 , 1963 , recommending that the complaint be dismissed in its en-
tirety, as set forth in the attached Supplemental Intermediate Report.
i Respondent 's name appears as corrected by stipulation of the parties at the hearing.
147 NLRB No. 133.