Alliance Rubber Co.

National Labor Relations Board - Board Decisions

Mar 3, 1948

76 N.L.R.B. 514 (N.L.R.B. 1948)

III the Matter Of WILLIAM SPENCER, DOING BUSINESS AS ALLIANCE
RUBBER COMPANY and UNITED RUBBER , CORK, LINOLEUM & PLASTIC
WORKERS OF AMERICA, INTERNATIONAL UNIO_\`, C. I. O.
Case No. 8-C4,006.-Decided March 3, 1948
Mr. John A. Hull, Jr., for the Board.
Mr. Peter DiLeone , of Cleveland , Ohio, and Mr. J. B. Blunnzenstiel,
of Alliance , Ohio, for the respondent.
Mr. G. P. Maher, of Akron, Ohio, for the Union.
DECISION
AND
ORDER
On April 25, 1947, Trial Examiner A. Bruce Hunt issued his Inter-
mediate Report in the above-entitled proceeding, finding that the re-
spondent, William Spencer, doing business as Alliance Rubber Com-
pany, had engaged in and was engaging in certain unfair labor prac-
tices, and recommending that he cease and desist therefrom and take
certain affirmative action, as set forth in the copy of the Intermediate
Report attached hereto. Thereafter, the respondent filed exceptions
and ft supporting brief.
The Board has considered the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed. The
i ulings are hereby affirmed. The Board has considered the Internle-
dlate Report, the exceptions and brief filed by the respondent, and the
entire record in the case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner with the additions and
modifications set forth below.'
The record shows that, shortly after the Union appeared in the
plant in June 1946, William Spencer, the principal owner and man-
ager of the business, delivered a speech to all the employees in the
plant. Although the precise language used is not in evidence, the
record reveals, as the Trial Examiner substantially found, that Spen-
1 The provisions of Section 8 (1) of the National Labor Relations Act, which the Tiial
Examiner herein found were violated, are continued in Section 8 (a) (1) of the Act as
amended by the Labor Management Relations Act, 1947.
76 N. L. R. B., No. 82
514
ALLIANCE RUBBER COMPAN Y 515
eer's remarks were calculated to impress the employees with the fact
that the Union was an unnecessary "outside influence" which he pre-
ferred not to have in his plant. At the end of his speech, Spencer
polled the employees on the issue of whether or not he should "step
out completely and let the business go on its own power."
On these facts, we agree with the Trial Examiner that respondent's
total conduct in this respect was coercive and violative of the provisions
of Section 8 (1) of the Act. In our opinion, the poll and Spencer's
remarks immediately preceding it could only convey one meaning of
the employees, that is, that in the event they chose the union they
would be faced with the cessation of operations in the plant, and-the
consequent loss of employment. Although it is true that an employer
may cease operating his business at will, he may not threaten to do so
in order to coerce his employees in their decisions regarding union
organization. The choice as to whether employees wish to engage in
collective bargaining is one for the employees alone; and an employer
may not use his economic power to affect the employees' exercise of
their independent judgment with respect thereto. As the United
States Circuit Court of Appeals for the Sixth Circuit has stated :
a threat of prediction that [a plant] might close if unionized,
must necessarily affect the judgment of its employees and
interfere with their freedom of choice=
TILE REMEDY
Because of the respondent's unlawful conduct in threatening its
employees with economic reprisals should they join the union, and in
interrogating them with respect to their union activities, we are con-
vinced and find that the unfair labor practices found are persuasively
related to other unfair labor practices proscribed by the Act, and that
a danger of their commission in the future is to be anticipated from
the course of the respondent's conduct in the past. The preventive
purpose of the Act will be thwarted unless our order is coextensive with
the threat. In order, therefore, to make effective the interdependent
guarantees of Section 7 to prevent a recurrence of unfair labor prac-
tices, and therefore minimize strife which burdens and obstructs
commerce and thus effectuate the policies of the Act, we shall order
respondent to cease and desist from not only engaging in the unfair
labor practices found, but in any other manner infringing upon the
rights guaranteed in Section 7 of the Act.
IAtlas Underwear Company v N. L R. B, 116 F (2d) 1020, 1023 (C C A. 6) See also
N. L R. B v Asheville Hosiery Company, 108 F ( 2d) 288 , 2 91, 292 (C. C A 4) , N L. R B.
v. Blair Quarries, Inc, 152 F (2d) 25, 26 (C C A 4).
781902-48-vol 76 34
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the respondent, William Spencer,
doing business as Alliance Rubber Company, Alliance, Ohio, and his
agents, successors, and assigns shall
1. Cease and desist from :
(a) Threatening to increase the work load of employees should they
join the union; threatening to discharge employees who join labor
organizations; threatening to move the operations of the plant to
another State should the employees join a labor organization; asking
the employees to vote upon the question of whether they prefer to
forego their rights under the Act, in order to insure the continued
operation of the plant;
(b) In any other manner interfering with, restraining, or coercing
his employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist United Rubber, Cork, Linoleum
^C Plastic Workers of America, International Union, affiliated with
the Congress of Industrial Organizations, or any other labor organi-
zation, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection, as guaranteed in
Section 7 of the Act.
2. Take the following affirmative action, which the Board finds, will
effectuate the policies of the Act :
(a) Post at his plant in Alliance, Ohio, copies of the notice attached
to the Intermediate Report and marked "Appendix A." 3 Copies of
the notice, to be furnished by the Regional Director for the Eighth
Region, shall, after being duly signed by the respondent or his repre-
sentatives, be posted by the respondent immediately upon receipt
thereof, and maintained by him for at least sixty (60) consecutive
days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the respondent to insure that said notices are not altered,
defaced, or covered by any other material ;
(b) Notify the Regional Director for the Eighth Region in writing,
within ten (10) days from the date of this Order, what steps the
respondent has taken to comply herewith.
' Said notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "The recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Oider" and by striking from the last paragraph
thereof the void "like" and substituting in lieu thereof the word "other " In the event
this Order is enforced by decree of a Circuit Court of Appeals there shall he inserted before
the words "A Decision and Order," the words, "A decree of the United States Circuit Court
of Appeals enforcing"
ALLIANCE RUBBER COMPANY
INTERMEDIATE REPORT
517
Al?. John A Hall, Ji , for the Board
Mr Peter 1lrLeovc, of Cleveland, Ohio, and Mr. J B. Blavienstael, of Alliance
Ohio, for the respondent.
Mr. U. P Maher, of Akron, Ohio, for the Union.
STATEMENT OF THE CASE
Upon an amended charge duly filed by United Rubber, Cork, Linoleum & Plastic
Workers of America, International Union, affiliated with the Congress of In-
dustrial Organizations, herein called the Union, the National Labor Relations
Board, herein called the Board, by the Regional Director for the Eighth Region
(Cleveland, Ohio), issued its complaint dated March 14, 1947, against William
Spencer, an individual doing business as Alliance Rubber Company, Alliance, Ohio,
herein called the respondent, alleging that the respondent had engaged in and was
engaging in unfair labor practices affecting commerce within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the National Labor Relations Act,
49 Stat. 449, herein called the Act Copies of the complaint, together with notice
of hearing thereon, were duly served upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged in substance
that by deprecating the Union and labor organizations in general, by urging,
persuading, and ordering the employees to withdraw their moon membership
and to discontinue their union activity, by threatening to close the plant and
to move his operations to the State of Arkansas because of the employees' union
membership and activities, by threatening to lay off the employees because of their
union membership and activities, by threatening to reduce wage rates and to
withdraw other economic benefits and privileges previously enjoyed, by threaten-
ing to increase production quotas if the employees continued their union activities,
by questioning and polling the employees as to their union membership and
activities, and by requiring the employees to listen to an address vilifying and
deprecating the Union, the respondent interfered with, restrained, and coerced,
and is interfering with, restraining, and coercing his employees in the exercise of
the rights guaranteed in Section 7 of the Act.
On March 19, 1947,-the respondent filed his answer, admitting certain allega-
tions of the complaint concerning his business activities, but denying that lie had
engaged in unfair labor practices.
Pursuant to notice, a hearing was held in Alliance, Ohio, on March 31, 1947,
before the undersigned, the Trial Examiner designated by the Chief Trial
Examiner The Board and the respondent were represented by counsel, and the
Union by a representative, and all participated in the hearing Full opportunity
to be heard, to examine and cross-examine witnesses, and to introduce evidence
bearing on the issues was afforded all parties. At the close of the Board's case,
the respondent moved that the complaint be dismissed upon the ground that the
evidence of the Board (lid not establish a prima facie case. This motion was
denied by the undersigned At the close of the hearing, the respondent again
moved that the complaint be dismissed, and this motion was taken under advise-
ment by the undersigned It is hereby denied. Counsel for the Board moved to
conform the pleadings to the proof as to formal matters, and this motion was
granted without objection The parties (lid not avail themselves of an oppor-
tunity to argue orally before the undersigned after the presentation of all the
evidence, but, pursuant to leave granted at the hearing, on April 14, 1947, the
respondent filed a brief with the undersigned.
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
I. THE BUSINESS OF THE RESPONDENT
The respondent, William Spencer, is an individual doing business as Alliance
Rubber Company. He operates a plant at Alliance, Ohio, where he is engaged
in the manufacture of rubber bands. During the year 1946, the respondent pur-
chased raw materials, principally rubber, valued in excess of $75,000, of which
more than 70 percent was shipped to the plant from points outside the State of
Ohio. During the same year, the respondent manufactured finished products
valued in excess of $250,000, of which more than 00 percent ^^ as shipped to points
outside the State of Ohio. The respondent concedes that he is engaged in com-
merce within the meaning of the Act.
II THE ORGANIZATION INVOLVED
United Rubber, Cork, Linoleum & Plastic Workers of America, International
Union, affiliated with the Congress of Industrial Organizations. is a labor organ-
ization admitting to membership employees of the respondent
III. 'IIIE UNFAIR LAiOR PRACTICES
A The clironology of events
On, or about June 20, 1946, the Union commenced a campaign to organize the
respondent's employees On June 27 and within the next several days, Floyd
Bourne, a supervisory employee, made certain remarks to various employees, and
on July 10 the respondent, Spencer, made an address to the employees The
problems presented here are to determine what Bourne and Spencer said, whether
their remarks were in violation of the Act and, if so, whether the respondent is
bound by the remarks of Bourne The respondent concedes, of course, that lie
is bound by his own statements to the employees
During June 1946, the respondent operated three shifts., On June 27, Bourne,
whose duties and position are discussed below, called to a small office in the plant
the 10 to 12 women on the second shift and talked to them about the Union. They
ceased work to listen to his remarks and were compensated for the time so spent.
Bourne told the employees that be had heard of the organizing activity and that
such activity would be unsuccessful "so long as he had anything to do with it "
He stated also that, if the activity were successful, he would "ride" the employees
and work them "to death," that the employees who joined the Union would be
discharged and replaced by individuals who would work fora lesser wage, or that
the plant would be moved to Arkansas, where the respondent maintains executive
offices and engages in certain experimental work. He suggested that, if the em-
ployees desire to organize, they should consider the formation of a "shop union
His language, at times, was profane.
Within several days after the above event, Bourne called the same employees
to the office and conferred with them individually. He polled them as to their
attitude toward the Union and made written notes on their responses Bourne,
ALLIANCE RUBBER COMPANY 519
a witness for the respondent, testified that his conduct on this occasion was to
ascertain whether the employees had applied for membership in the Union.'
At the time of Bourne's acts above described, and for approximately 2 months
prior thereto, the respondent, Spencer, was in Arkansas. He returned to the
plant about July 2. His arrival there followed within a day or two the receipt by
the respondent's officials of a letter from the Board's Regional Office informing
them that charges had been filed by the Union. On July 10, Spencer addressed
the employees, who were assembled in the plant to hear him and who were paid
their regular wages for the time so spent. Although a shorthand reporter was
present and recorded Spencer's remarks, the respondent's counsel stated at the
hearing that there was no transcript of the address, and it is necessary, therefore,
to consider the testimony.
According to Harold Newshutz, an employee who testified for the Board,
Spencer commenced his address by mentioning the Act and the fact that it
contains certain penal provisions in Section 12, remarking that "if he went to
jail, why, he hoped one of the girls would bring hiin some coffee . . .
Newshutz testified further that Spencer told the employees that during the
depression lie had endeavored "to keep the factory going" in order that the
employees might not be on "the bread lines," that he would "put forth his best
efforts to build the business up," that he had made provisions in his will so that
the employees would be protected upon his death, that lie had been a member of
several labor organizations, that he "starts to rebel" when he is told "what to do"
by someone who does not keep as many notes on the business as he keeps, and
that lie asked for a vote by the employees at the end of the address. Newshutz
understood from Spencer's address that Spencer meaht to inform the employees
that the business had piogressed well in the past and that, in the absence of
''outside interference" in the form of a labor organization, similar progress
could be made in the tutui e
Spencer's testimony varies from that of Newshutz. He testified that he made
a few preliminary remarks to the employees, expressing pleasure at having re-
turned to the plant, that he spoke of his interest in their welfare and of their
cooperation with him, of the difficulties in securing raw materials and producing
1 The findings respecting the remai ks of Bourne to the employees as a group are based
upon the reliable testimony of witnesses for the Board Bourne's testimony is in conflict
therewith, but is uni eliable and not of such probative value as to warrant rejection of the
Board's evidence Bouine testified that the employees regarded hum as an "advisory coin-
mittee or something," that a number of then had come to him for advice about the Union,
that he had informed them that lie was without "authority ' and could not tell them what
to do, and that he had told them also that lie had gained nothing fi om his ov n membership
in labor organizations on earlier occasions Bourne testified also that the employees were
spending so much time in discussing the Union that he believed a meeting should be called
so that they could "have it out, and go back to work." Having called the meet-
ing for this purpose, according to Bourne. lie tried to explain "the good points" and "the
bad points ' to the employees. Boui ne did not relate what he told the employees in that
connection, however, but lie denied that he told them to resign fiorn the Union, or not to
join it and that he told them that the operations would be moved to Arkansas, that those
who Joined the Union would be laid off or given wage reductions , and that their woik loads
would be increased The undersigned is unable to accept these denials. In view of Bourne's
failure to relate his oimn iersion of the remaiks to the employees, his admission that be
did not regard the Union with favoi, and the fact that lie thereafter polled the employees
to ascertain their attitude, it is clear that he was not a disinterested supervisor who sought
only to give the eniplovees "the good points" and "the bad points " The undersigned
must reject Bouine's testimony in favor of that given by the Board's witnesses, who created
trustworthy and credible appearances
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a satisfactory product, of the national debt, and of `outside influences'
Spencer testified also that he made reference to the various written notes which
he had made in connection with the business and "for the benefit of the em-
ployees," and that he told them of his prior connections with labor organizations.
He acknowledged that he "asked for a vote of confidence," the employees to
vote by a show of hands upon the question of whether they wished him "to
go ahead and manage the situation "
Another witness who testified for the respondent concerning Spencer's address
is Joseph J. Kunes, the personnel director, purchasing agent, and administrative
assistant to Spencer Kunes testified in general about the remarks and, in
particular, that Spencer's i efei ence to his will was a statement that he had
made provisions for the continued operation of the business after his death
"so that somebody else couldn't move in and perhaps take over and throw them
[the employees] out of jobs," that Spencer made a reference to his union member-
ship in days past, that he may have "said he hoped I e wasn't violating the Act
by talking to employees," and that there was a "vote of confidence" after Spencer
"asked if they wanted him to step out completely and let the business go along
on its own power, or whether they wanted him to,remain at the helm "
Upon all the evidence, and particularly upon that detailed above, the under-
signed finds that Spencer talked to the employees about the operation of the
business and the difficulties incident thereto, that he spoke of "outside influences,"
saying that he "starts to rebel" when lie is told "what to do" by someone who
does not make as many notes on the business as be makes himself, and that the
reference to "outside influences" clearly ', as a reference to the organization of
the employees then under way. The undersigned finds further that Spencer,
the sole owner and operator of the business, expressed to the employees an in-
terest in their welfare, saying that he had provided for such interest to be mani-
fested in the form of job security even after his death, and that he asked the
employees to vote upon the question of whether they wished him to step aside
as the operator of the business.
B Conclusions
As stated above, the first issue presented is whether the remarks of Bourne
and Spencer are proscribed by the Act In the instance of Bourne, the answer
is manifest His remarks to the employees as a group were patently anti-
union and coercive, and the law is so well settled and voluminous as not to
require citation of authority. Moreover, his questioning and polling of em-
ployees individually as to their attitude toward the Union is a type of conduct
by employers which the Board and the Courts have never condoned. Therefore,
the real question as respects Bourne is whether the respondent is chargeable
with his conduct, and a determination of this issue requires a discussion of
(1) Bourne's various duties and responsibilities at the plant, and (2) whether
there is merit in the respondent's contention that Bourne was disciplined for
said conduct so that the respondent has purged himself of any unfair labor
practices which Bourne may have committed,
2 Spencei testified, however, that in speaking of "outside influences" lie had in mind that
ccitam trade secrets and articles of the business had been stolen, that he had experienced
domestic difficulties, that certain persons tavored the operation of the business by his wife,
and that the nation might be "captured" by "Joe Stalin " Spencer acknowledged that
lie did not inform the employees of what lie had in mind in referring to "outside influences"
since, as lie testified, he "felt" that because of past remarks the "older employees" would
understand him There were present, however, "very many new employees "
ALLIANCE RUBBER COMPANY 521
The respondent asserts that at the time of Bourne's conduct he was a working
foreman in charge of the "mill room," a division within the plant, that he had
no supervisory authority over the girls to whom he spoke, and that he was with-
out authority to hire or discharge or to recommend such action. For a period
during the war the plant was closed, but it was reopened during August 1944
During the following October, Bourne was employed. He was given complete
supervision of production operations and he exercised the authority to hire
About 13 or 14 months later, in late 194:"n, certain foremen were employed,
and they assumed some of the duties which had been performed by Bourne.
During April 1946, about 2 months before the conduct of Bourne considered
herein, the respondent employed Kunes as personnel director, purchasing agent,
and administrative assistant to Spencer. At that time, according to Spencer,
Bourne became a working foreman in the mill room.
Kunes testified that Bourne was a working foreman in the mill room when
he, Kunes, was employed, and that he assumed "fall authority over hiring and
tiring, layoffs, and everything pertaining to personnel " His testimony as to
his duties is supported by that of Spencer, who testified that Kunes was "Per-
sonnel director and in charge of eniplo^ ees." It appears, then efore, that Kunes
assumed certain personnel duties formerly handled by Bourne, but it does not
appear that Kunes relieved Bourne of the latter's production duties indeed,
Newshutz, a witness who testified credibly I'm the Board, testified that he was
employed subsequent to the employment of Kunes, that at an indefinite time
after his employment a "supervision chart" bearing the approval of Spencer
was placed upon the bulletin boas d, that tile chart remained posted for a period
of at least 4 weeks, that the name of Bourne appealed on the chart as "Works
manager," and that the name of Kunes appeared thereon with authority over
the office principally. The respondent otfered no evidence to establish that
Newshutz's recollection of the chart was in error, nor (lid the respondent
produce the chart itself, but Kunes testified that on July 19, subsequent to the
return of Spencer from Arkansas, a notice was placed on the bulletin board
to the effect that Spencer was assuming charge of operations and that the
"chart" was thereby canceled In addition to the credible and uncontradtcted
evidence that the respondent held out Bourne to the employees as "Woi ks man.t-
ger" during the period in question, there is the reliable evidence of witnesses for
the Board that they regarded Bourne as superintendent of the plant and that
lie informed one of them, Joan Itulil, that "he was taking Alr. Spencer's place,
and he just had full charge of the entire plant." s
The undersigned finds that at all times material herein the respondent held
out Bourne to the employees as "Works manager" with authority over production
operations, and that Bourne was a supervisory employee of such status as to
make his anti-union conduct attributable to the respondent We turn, therefore,
to the question of whether the respondent has absolved himself of responsibility
for Bourne's conduct.
3 The respondent argues that on April 26 a notice was posted for the attention of the
employees , informing them of Runes' employment as personnel director "in full charge
of employees " Runes' testimony that the employees "should have known " that Bourne
"had no more authority " thereafter is a conclusion which is unsupported by the testimony
concerning the notice Runes testified that lie could not recall that the employees were
informed at that time of any specific ieduction in Bourne's duties, and it is clear that the
chart remained posted. Moreover, Spencer testified that the notice of April 26 was to the
effect that Runes had been employed , and that the next notice to the employees was that
of July 19 in which Spencer informed the employees that he was taking "complete charge"
and that Runes would remain as personnel manager and purchasing agent.
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Kunes, who testified that Bourne earned $460 per month as a working foreman
in the mill room at the time of Kunes' employment, testified also that he remon-
strated with Bourne for having talked with the employees, that he did not have
authority to decrease Bourne's remuneration , that Spencer "resented" the occur-
rences , and that, after the return of Spencer, Bourne was reduced to the status
of an ordinary employee at $1.35 per hour. At an undisclosed date thereafter,
according to Kunes, Bourne again was made a working foreman in the mill room
and his remuneration was increased to $1.60 per hour. The reason for the demo-
tion, so Kunes testified, was that Bourne had tallied to eniplo^ees outside his
jurisdiction, i, e., to girls who were not employed in the mill room, and that Bourne
was without authority to discuss the Union with thew Boutne's demotion,
according to Kunes, was made known to the employees in the notice of July 19
in which Spencer informed them that he was taking charge of operations, but the
employees were not informed of the reason for Bourne's demotion Kunes testi-
fied that Spencer told him the reason for the demotion, but that lie believed it was
sufficient to notify the employees of the fact without the necessity of informing
them of the reason.
Spencer's testimony does not support that of Kunes Spencer did not testify,
for instance, that he "resented" Bourne's conduct and consequently demoted him
with a decrease in salary. Instead, Spencer testified that he was advised that
Bourne "had stepped out of bounds to talk to the employees," that he did not
know, however, that Bourne had talked to them about union activities, although
he thought that such had been the subject, and that he did not confer with Bourne
about the matter. Spencer testified fuither that the decrease in salary had been
a matter "left over from" Spencer's previous visit to the plant at the time of Kunes'
employment in April, which he had not handled then because he had been "rushed
to leave." In addition, Spencer did not testify that Bourne was reduced to the
status of an ordinary employee at any time.
The respondent's position is that Bourne was disciplined for having talked w ith
the employees about their union activities anti having polled them on their attitude
toward the Union, and that the respondent thereby absolved himself of respon-
sibility for Bourne's conduct. The recoid does not support this contention.
It is clear from Spencer's testimony, for instance, that the decrease in salary for
Bourne from $460 per month to $135 per hour. which became effective on July
15, 1946, was not a matter arising from Bourne's conduct, but instead was a matter
"left ovei" from the tune of hones' employment. Too, Spencer could not have
demoted Boui ne for talking with the employees about the Union since he testified
that lie did not know, but only thought, that such had been the subject matter of
Bourne 's remarks . Finally, the employees were not advised of the alleged reason
for Bourne's demotion and decrease in salary, and the respondent took no steps
to inform them that he repudiated Bourne's conduct and that they could exercise
their rights under the Act without fear of discrimination at his hands. The
undersigned finds that the respondent has not absolved himself of responsibility
for Bourne's conduct 4 and that it is immaterial that Bourne was without express
authorization from the respondent to so conduct himself a
ICf If J Heinz Co v. N L R B, 311 U S 514, 521 , 61 S Ct 320 . 323, wheiciii the
Court said, " petitioner , when advised of the participation of his supervising em-
ployees in the organization campaign , took no steps, so far as appears , to notify the em-
ployees that those activities were unauthorized , or to correct the impression of the employees
that support of the Union was not favored by petitioner and would result in reprisals "
Intcmiiational Acsoeiatioa of Machinists , etc v . N L. R B , 311 U S . 72, 61 S. Ct 83
T1 J Heinz Co v N L R B, footnote 4.
ALLIANCE RUBBER COMPANY 523
Turning next to Spencer's address to the employees, it is clear that he did not
utilize the, occasion as one in which to repudiate the recent conduct of Bourne,
or in which to assure the employees of his willingness to abide by the requirements
of the-Act. Instead, he expressed the hope that his remarks would not be in viola-
tion of the Act's provisions and, after making known his objection to "outside
influences," he asked the employees to vote upon the question of whether they
wished him to step aside as the operator of the business. The respondent argues
that his remarks were in the realm of free speech. The undersigned does not
agree. No doubt many of his individual statements were privileged, but not his
conduct in asking the employees to vote. That issue, whether he should "step
out completely and let the business go along on its own power," when raised under
the circumstances present here where union activities were under way and the
respondent was the sole operator of the plant, was clearly to pose the question
of whether the employees preferred to forego their rights under the Act in order
to assure the continuance of their jobs. Such conduct on the part of an employer
is patently coercive It is not an appeal to reason, but to fear.' Therefore, it is
not privileged, and, contrary to the respondent's contention, it is immaterial that
the employees were not actually subjected to discrimination, or were not told in
exact and precise language that they were not free to join the Union.
The undersigned finds that by the remarks of Spencer and Bourne to the em-
ployees, and by Bourne's polling the employees on their attitude toward the Union,
the respondent interfered with, restrained, and coerced the employees in the exer-
cise of the rights guaranteed in Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PR.\CTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above, occurring in
connection with the operations of the respondent described in Section I, above,
have a,close, intimate, and substantial relation to trade, traffic, and commerce
among the several States, and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V THE REMEDY
Having found that the respondent has engaged in certain unfair labor prac-
tices, the undersigned will recommend that he cease and desist therefrom and
that he take certain affirmative action designed to effectuate the policies of
the Act.
Upon the basis of the above findings of fact, and upon the entire record in
the case, the undersigned makes the following :
CONCLUSIONS OF LAW
1. United Rubber, Cork, Linoleum & Plastic Workers of America, Interna-
tional Union, affiliated with the Congress of Industrial Organizations, is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing his employees in the exer-
cise of the rights guaranteed in Section 7 of the Act, the respondent has engaged
in and is engaging in unfair labor practices within the meaning of Section 8
(1) of the Act.
N. L. R. B . V. West Kentucky Coal Company , 152 F. ( 2d) 198 (C C. A. 6)
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3 The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
RECOMMENDATIONS
Upon the basis of the above findings of fact and conclusions of law, the under-
signed hereby recommends that the respondent, William Spencer, an individual
doing business as Alliance Rubber Company, his officers, agents, successors,
and assigns shall:
1. Cease and desist from threatening to increase the work load of employees,
to discharge employ ees who join labor organizations, and to move the opera-
tions of the plant to another State, ttoni asking the employees to vote upon
the question of whether they prefer to forego their rights under the Act, in
order to assure the continued operation of the plant, and in any like manner
interfering with, restraining, or coercing his employees in the exercise of
the right to self-organization, to form labor organizations, to join or assist
United Rubber, Cork, Linoleum & Plastic Workers of America, International
Union, affiliated with the Congress of Industrial Organizations, or any other
labor organization, to bargain collectively through representatives of their own
choosing, or to engage in concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection as guaranteed in Section 7 of the
Act
2. Take the following atlas ntative action which the undersigned finds will
effectuate the policies of the Act:
(a) Post at its plant in Alliance, Ohio, copies of the notice attached hereto
and marked "Appendix A " Copies of the notice, to be furnished by the Regional
Director for the Eighth Region, shall, after being duly signed by the respond-
ent's representative, be posted by the respondent immediately upon receipt
thereof, and maintained by him for at least sixty (60) consecutive days there-
after, in conspicuous places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken by the respondem,
to insure that said notices ate not altered, defaced, or covered by any other
materials; and
(b) File with the Regional Director for the Eighth Region within ten (10)
days from the receipt of this Intermediate Report, a report in writing. setting
forth in detail the manner and foam in'which the respondent has complied
with the foregoing recommendations
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that he will comply with the foregoing recommendations, the National
Labor Relations Boai d issue an order requiring the respondent to take the action
aforesaid
As provided in Section 203 39 of the Rules and Regulations of the National
Labor Relations Board, Series 4, effective September 11, 1946, any party or
counsel for the Board may, within fifteen (15) days from the date of service of
the order transferring the case to the Board, pursuant to Section 203.38 of said
Rules and Regulations, file with the Board, Rochambeau Building, Washington 25,
D C., an original and four copies of a statement in writing setting forth such
exceptions to the intermediate Report or to any other part of the record or pro-
ceeding (including rulings upon all motions or objections) as he relies upon,
together with the original and four copies of a brief in support thereof ; and any
party or counsel for the Board may, within the same period, file an original
ALLIANCE RUBBER COMPANY 525
and four copies of a brief in support of the Intermediate Report Immediately
upon the filing of such statement of exceptions and/or briefs, the party or counsel
for the Board filing the same shall serve a copy thereof upon each of the other
parties and shall file a copy with the Regional Director. Proof of service on the
other parties of all papers filed with the Board shall be promptly made as required
by Section 203 655. As further provided in said Section 203 39, should any party
desire permission to gigue orally before the Board, request therefor must be made
in writing to the Board within ten (10) (lays from the date of service of the
order transferring the case to the Board
A BRUCE HUNT,
Trial E:rani'iner.
Dated April 2;. 1947
APPENDIX A
NoilcE TO Ai.i, EMPloYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in ordet to effectuate the policies of the National Labor
Relations Act. II e hei ebb notity our employees that :
WE WILL NOT threaten to increase the work load of employees because of
their union membership or activities, nor will we threaten to discharge enI-
ployees who join labor organizations, nor will we threaten to move the
operations of this plant to another State
WE WILL NOT ask the employees to vote upon the question of whether they
are willing to forego their rights under the National Labor Relations Act in
order to assure the continued operation of the plant.
WE•wU.L NOT in any like manner interfere with, restrain or coerce our
employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist UNrrED RUBBER, CORK, LINOLEUM & PLASTIC
WORKERS OF AMERICA, INTERNATIONAL UNION, afiuhated with the CONGRESS OF
INDUSTRIAL ORGANIZATIONS, or any other labor organization, to bargain col-
lectively through representatives of their own choosing, or to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection.
ALLIANCE RUBBER COMPANY,
Employer.
By -------------------------------
(Representative) (Title)
Dated ------------------------
This notice must remain posted for 60 clays from the date hereof and must not
be altered, defaced, or covered by any other material