Caster Mold & Machine Co., Inc.

National Labor Relations Board - Board Decisions

Oct 9, 1964

148 N.L.R.B. 1614 (N.L.R.B. 1964)

1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
realized in 1961 that a union would not help you here but could hurt you, and so you
voted against them in the Labor Board election . Since a large majority of you
realized these facts in 1961-again in 1962 when the Teamsters Union tried to get
in here-I have no doubt that you will defeat the union again this year if an election
is held . In fact , already several of you have come to us and told us that you were
mislead into signing a card, now want them back, and don 't want any part of a union.
Mayfair has made its position clear to you on many occasions . And I want to make
it clear to you that I feel the same way as Mr. Goff , Glenn Gordon and Del Tickel.
If there is any question in anyone 's mind, let me say again ; WE DON'T WANT A
UNION HERE, AND WE INTEND TO USE EVERY LEGAL MEANS TO
KEEP THEM OUT OF MAYFAIR. ( Pause ) That is one of the reasons we are
so disappointed that some of you have made the mistake of signing these cards.
Mayfair does not have a union in any of its plants, and I don't intend for this one
to be an exception.
I want to tell you this also; I'm no stranger to unions . I know what they are, and
I know what they can do to you and to a company like this one . I have fought unions
before, and I'm prepared to do it again.
Now, sometime in the near future, the National Labor Relations Board will hold a
hearing, probably in Indianapolis . After that , the Board will decide whether or not
there will be an election . We will keep you fully advised of all the facts and details.
Now, for the next several weeks-or perhaps months-the union organizers will be
swarming over you, bothering you, and make all sorts of promises to you. Therefore,
i want you to remember a few things. First of all , anytime you have any questions or
there is anything you want to discuss or talk about , you should see me or your super-
visor . We will give you the facts, don't go to the agitators and trouble makers who
will not tell you the truth or who will make promises to you that they know they
can not keep.
Second , remember you do not have to talk or listen to the union organizers. You
can always tell them to go peddle their troubles somewhere else.
Third, even if you were one of those who made this mistake of signing a union
card because you didn't know what you were getting into, you can still vote against
the union if an election is held here.
In conclusion , I want to remnid you that this union has nothing to offer but
troubles and empty promises . It has no way of keeping these promises . ( Pause) I
also want to thank those of you, who have come to us and told us how you feel. We
appreciate your confidence and sincerity . I'm sure that by working together we can
keep the union and its troubles and problems out of here. Again if you have any
questions or comments , feel free to see me.
Caster Mold & Machine Company , Inc. and United Steelworkers
of America , AFL-CIO. Case No. 8-CA-3334. October 9, 1964
DECISION AND ORDER
On May 5, 1964, Trial Examiner Samuel M. Singer issued his.
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended that the complaint be dis-
missed with respect to the latter allegations. The General Counsel
and the Charging Party each filed exceptions to that portion of the
Trial Examiner's Decision in which Respondent was found not to
have violated the Act, and each filed briefs in support thereof.
148 NLRB No. 157.
CASTER MOLD & MACHINE COMPANY, INC . 1615
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel. [Members Fanning, Brown 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 this case, including the Trial Examiner's Decision, the ex-
ceptions, and the briefs, and hereby adopts the Trial Examiner's
findings, conclusions, and recommendations.
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 and orders that the Respondent, Cas-
ter Mold & Machine Company, Inc., its officers, agents, successors, and
assigns, shall take the action set forth in the Trial Examiner's
Recommended Order.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and it
hereby is, dismissed insofar as it alleges violations not found herein.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This case was heard before Trial Examiner Samuel M . Singer at Akron, Ohio, on
January 28 and 29, 1964 , pursuant to a charge filed November 5, 1963, and a com-
plaint issued December 19, 1963. The complaint alleged that Respondent ( herein
sometimes called the Company) violated Section 8(a)(1) and (5) of the Act by cer-
tain acts and conduct. Respondent in its answer denied the commission of the alleged
unfair labor practices.
Upon the entire record in-the case , including my observation of the witnesses, and
after due consideration of the parties' briefs , I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY; THE LABOR ORGANIZATION INVOLVED
Respondent, an Ohio corporation , is engaged in the manufacture and sale of metal
products such as rural mailboxes and automobile jacks at its plant in Barberton, Ohio.
It annually receives goods valued in excess of $50,000 directly from States other than
Ohio and it annually ships from its plant directly to points outside Ohio products
valued in excess of $50,000. On these facts I find that Respondent is engaged in
commerce within the meaning of the Act.
The Charging Party, United Steelworkers of America, AFL-CIO herein called the
Union , is a labor organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
The major issues litigated in this case were : (1) whether Respondent violated Sec-
tion 8 ( a)(5) and (1) of the Act by refusing to furnish to the Union financial data in
support of its alleged claim of inability to grant the Union's wage demands; (2)
.whether Respondent 's failure to supply the requested information and other alleged
unlawful conduct caused or prolonged a strike called by the Union on November 1,
1963; and ( 3) whether Respondent interfered with , restrained , or coerced its employ-
ees in violation of Section 8(a) (1) of the Act.
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. The refusal to furnish financial data; the nature of the Union's strike
1. The October 27 bargaining meeting
Meriam E. Cole and her son, Stanton; are, respectively, secretary-treasurer and
president of the Company. They purchased and commenced operating the Company
(apparently a nonunion plant) on December 21, 1962, and continued to operate it
under the name of the former owner. On May 6, 1963,1 Respondent and the Union
entered into a 1-year collective-bargaining contract with a wage reopener clause per-
mitting either party, after September 1, to renegotiate wages.2 On August 29, the
Union notified Respondent of its desire to open wage negotiations and a meeting for
this purpose was thereafter held on October 26 in the office of Federal Mediator Hal
Roache in Akron.3
Representing the Company at the October 26 meeting were Harvey Rector, a labor
consultant,4 and Stanton Cole. The Union was represented by International Repre-
sentative Michael Katchur and employees Donald Wahlen (the local's president),
Jerry Batten (vice president), Pauline Arkey (recording secretary), and Helen
McLaughlin. At the outset of the meeting Katchur presented the Union's wage de-
mands calling for increases in each classification in the unit. Rector indicated that
the wage demands were steep, remarking, "This thing looked like about a $.50 pack-
age" (i.e., an average 50-cent increase per hour for each employee). Katchur re-
plied, "I believe it is about $.49." Katchur then produced a letter prepared in antici-
pation of the meeting, requesting balance sheets, income statements, production data,
and other detailed financial information such as costs and earnings for the past 5
years of operation .5 Rector advised Cole that if the Company pleaded inability to
pay, it would have to present some but not all of the requested information. Cole
said he "didn't know. He would have to talk to his mother." The discussion then
turned to a recent arbitration decision concerning certain grievances theretofore filed
by the Union over administration of the contract.
The foregoing findings are based on substantially undisputed testimony. There is,
however, a sharp dispute as to whether the Company actually pleaded inability to pay
at the October 26 meeting. International Representative Katchur and several com-
mitteemen (Wahlen, Arkey, and Batten) testified that Rector or Cole definitely made
such plea. Employee Helen McLaughlin was, however, equivocal on this point.
Stanton Cole denied that Rector, he, or anyone else ever pleaded inability to give pay
increases at any time, including the October 26 meeting. Rector testified that he at no
time made a formal plea of inability to pay on behalf of the Company.
Based upon the entire record, the inherent probabilities of'the situation, and the
comparative demeanor of the witnesses, I credit the unequivocal denials of Stanton
Cole and Rector that they had pleaded inability to pay in response to the Union's wage
demands. I am convinced that the October 26 meeting (the first between the parties)
was no more than what Stanton Cole described it to be-a brief preliminary meet-
ing in which the Union presented steep wage demands. Katchur then told the Com-
pany's representative, "If [the Company] couldn't agree to this they would like to see
[the Company's] financial structure to back this up," and he handed the Company
the "form" letter calling for data by which the Company could prove inability to
pay. , Cole's account of the events had the authentic ring of truth and is entirely in
i Unless hereafter otherwise stated all date references are to 1963.
The Union had been certified as exclusive bargaining representative in a unit of all
production and maintenance employees of Respondent (with the usual statutory excep-
tions) on April 19
s The meeting was originally scheduled for October 17 but at the behest of the Union's
negotiating committee it was rescheduled for October 26. Unable to agree on the locale
of the negotiations, the parties decided to use the offices of the United States Mediation
and Conciliation Service The Service (as well as the Company) had theretofore been
served with the notice of labor dispute required by Section 8(d) of the Act.
* Rector also represented Respondent at the instant hearing.
5 Explaining his reason for requesting information for a 5-year period, although the
Company had only been in operation 10 months, Katchur testified that the letter was a
"form" used by the International in negotiations where it anticipated pleas of "inability
to pay" and was not tailored to meet the situation of the particular employer with which
it was dealing He also testified that members of his committee had informed him of
"rumors" that the Company "was going to plead inability to pay" and so he came pre-
pared with the form letter. -
CASTER MOLD & MACHINE COMPANY, INC. 1617
harmony with the realities of the situation. In my view, it is improbable that Stan-
ton a relatively young and immature man of 28 who is apparently under the com-
plete domination of his mother-the controlling figure in the corporation-would-
have taken it upon himself to make such a plea, or have authorized Rector to make
one, on behalf of Respondent. And Rector, the only other company representative
at the October 26 meeting, credibly testified that he neither did so nor had authority to
do so.6 On the other hand the testimony of General Counsel's witnesses (all union
officers or strikers) impressed me as less than forthright and as too pat and sweeping.?
I received the distinct impression that they studiedly attempted to conform their testi-
mony to what they considered to be in their best interest and in the interest of the
Union.
I find that the Company did not plead inability to pay wage increases at the October
26 meeting.
2. The October 31 meeting
The next meeting held on October 31 was, like the-first, attended by Federal Medi-
ator Roache. Stanton Cole and his mother, Meriam Cole, represented the Company.
(Rector was there briefly but left before it started.) The Union was represented by
Katchur and the union committee.
General Counsel's witnesses testified that in answer to the Union's request for wage
increases, Mrs. Cole proposed a cut in wages. Mrs. Cole conceded making an off-
handed remark about "cutting wages," but stated that she did so in a context entirely
different from that attributed to her. She testified that right after the mediator
called the meeting to order, she "facetiously" said: "Mr. Roache, do you think
we ought to cut wages instead of raising them?" Katchur responded in a simi-
lar humorous vein and the matter thereafter was forgotten.
All things considered, I have no hesitancy in accepting Mrs. Cole's version of the
incident. She impressed me as a vivacious and spirited lady who is characteristically'
given to this type of good-natured banter. International Representative Katchur's
own account of the incident, as well as that of Union President Wahlen, leaves no
room for doubt that the meeting opened in a spirit of levity and that all there under-
stood Mrs. Cole's remarks no more than an attempted bon mot. Thus, Katchur
testified the mediator started the meeting by remarking that he wanted it conducted
in an orderly and "peaceable" manner. , Mrs. Cole rejoined, "You mean no guns,"
adding with "a little chuckle," "You know the purpose of my meeting here today is not
to give a raise but to ask for a cut in wages if I am permitted to do so." Retrospec-
tively, in view of what happened, this may have been humor misspent, but I am satis-
fied that humor it was. I find that Mrs. Cole's remarks about "cutting wages"- was
no more than an extension of the banter regarding "guns," and that the attempt of the
Union's officials at the hearing to picture the remark as a serious threat or offer to cut
wages is an unwarranted attempt to fashion a case against the Company.
Mrs. Cole also testified that at the beginning of the October 31 meeting, the media-
tor asked her: "Can anything be done to settle this? Can you give them anything."
Mrs. Cole replied, "Well, I will find out just what information I could give them."
Thereafter, Mrs. Cole telephoned her auditor and reported back that "nothing was
available" because the Company had not yet been- in business a full year. Several of
General Counsel's witnesses corroborated this testimony. The Union in its brief
contends that the clear import of Mrs. Cole's testimony is that she pleaded inability
to pay. Learned counsel for the Union argues: "The obvious question is why would
Mrs. Cole call her accountant in the first place if a plea of inability to pay a wage
increase had not been made by Respondent . . .. In my view, Mrs. Cole's offer to
supply any available information is equally consistent with an effort on her part to
settle the dispute, if the giving of such information would,'as the mediator apparently
O As noted, Rector testified he made no "formal" plea of inability to pay. In the cir-
cumstances of this case-including Stanton Cole's credited testimony that Respondent
took no position respecting the Union's wage demands at the October 26 meeting-I attach
no particular significance to Rector's use of the term "formal " I do not believe that his
use of this term in his testimony was intended in the literal sense nor that he intended
thereby to equivocate.
7 Thus, for example, Batten testified that the Company pleaded inability to pav "just
about every meeting I was at. That is exactly what they done." When asked if "nothing
else was discussed,"'he`replied "A few words, odds and ends, that didn't amount to any-
thing. - They wouldn't bargain, they wouldn't talk."
760-577-65-vol: 148-103
1618 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
felt, help to resolve it. I must reject the Union's argument that the inference must be
drawn that in offering to secure the information, Mrs. Cole's purpose could only
have been to buttress a contention of inability to pay.8
In view of all of the foregoing, I find, contrary to the contentions of General Coun-
sel and the Union, that the Company did not, at either the October 31 or the October
26 meeting, assert inability to pay as a defense to the Union's wage demands .9
3. The strike commencing November 1; the parties' attempt to settle the dispute
On the evening of October 31 the Union held at meeting. Katchur testified that
he told the membership that the Union had been unable to reach agreement with
Respondent; that Mrs. Cole "ask[ed] for a cut rather than make any wage conces-
sions"; and that Respondent had refused to provide financial data in support of a
claim that it could not afford to grant wage raises. The membership voted unani-
mously in favor of a strike, effective at midnight In the course of the meeting the
employees were told that they "could legally be replaced." 10 The strike commenced
the next day, November 1, with all of the approximately 30 production and mainte-
nance employees participating.
Sometime after the start of the strike, Respondent petitioned the Common Pleas
Court of Summit County, Ohio, to enjoin the Union and strikers from alleged un-
lawful conduct, including blocking entry into the plant, picketing, and name calling.
By an order dated December 26, the court enjoined one of the strikers, Donald
Wahlen (individually, and as president of the local), from interfering with ingress and
egress to the plant "and from using vile or offensive language against any officers or
employees" of Respondent.
On November 7, while the strike was still in progress, the Union met with Gilbert
Townsend, a stockholder and sales manager of Respondent, to "explore the possi-
bility" of settling the dispute.11 Townsend testified that the parties came up "with
what I thought was a basis of a settlement" which he agreed to present to Mrs. Cole.
Under the proposed settlement the Union agreed to terminate the strike and the Com-
pany agreed to "furnish the Union a copy of their U.S. Corporation Income Tax Re-
turn-1963 (Form 1120) not later than January 15, 1964." Mrs.-Cole, however, de-
clined to supply the income tax return, offering instead to submit the company audi-
tor's "financial statement . . . covering 1963" by January 15, 1964.12 Townsend
testified that although he was not an auditor he thought the document would be "a
complete auditor's financial report" and cover profit and loss. Katchur testified that
although the Union "didn't know just what [it] meant," he took no steps to ascertain
8 Union President Walden testified that in the course of the meeting the Company ex-
pressly pleaded "inability to pay" Neither Katchur nor Arkey (the Union's recording
secretary), both of whom were also there, so testified, each of them referring only to
Mrs. Cole's alleged wage-cutting proposal. Mrs Cole denied that she at any time (in-
cluding the October 31 meeting) claimed inability to pay a wage increase I credit her
denial. My resolution of the credibility issue respecting the inability-to-pay testimony in
favor of Mrs. Cole is not, however, to be extended to all other aspects of her testimony
(particularly her testimony on the kind of records the Company kept-an issue not reached
here). During part of her cross-examination Mrs. Cole frequently "fenced" with counsel
for the Union, so much so as to invite admonition to give forthright answers But it
was apparent to me that Mrs Cole, obviously unfamiliar with litigation, labored under
the impression that counsel was out "to trap" her and that she must be alert to outiuit
hun if possible
e Katehur also testified that it was at the October 31 nneeting"that the Union advised
the mediator that it would settle the dispute for a 10-cent an hour wage increase, but thei e ,
is no evidence that this offer was communicated to the Company. Respondent specifically
denied receiving such an offer. i
"Union President Wahlen testified that at the meeting with the mediator just prior to
the strike (October 31) the latter informed him that, in the event of a strike, the em-
ployees "could be legally replaced" and that he so informed the membership. Employee
Wiley testified that the Company's right to, replace the employees was, announced at the
October 31 strike meeting
n Rector was present before the meeting, but did not attend it
L Mrs Cole testified that-she first refused to, sign the settlement agreement in any_forW,
but did so only after Townsend and'Rector spent 2 hours urging her to settle the strike as
"best for everyone " Thereupon she signed the, agreement as revised , stating, "Okay, as .
long as we can settle the strike I will be happy to sign." -
CASTER MOLD & MACHINE COMPANY, INC. 1619
from the Company what data would be included in the auditor's report. • The Union's
membership rejected the settlement agreement as revised by Respondent and the
parties did not meet again.
On November 9 the Company sent a letter to each striker stating: "This is to notify
you that unless you return to your job by 8:00 a in. Tuesday, November 12, 1963,
you will be permanently replaced."
By letter dated November 14, the Union renewed its request for bargaining infor-
mation. Respondent apparently did not reply to the Union's letter.
4. Conclusions with respect to Respondent's refusal to submit bargaining data
The complaint alleges that Respondent unlawfully refused to bargain collectively
with the Union in violation of Section 8(a)(5) and (1) of the Act "in that Re-
spondent, after having been requested to do so by the Union, refused, and continues
to refuse, to furnish the Union with financial data and information to support its
claim of inability to grant a wage increase." Respondent does not dispute the well-
settled proposition that a refusal to substantiate a claim of inability to pay increased
wages constitutes a failure to bargain in good faith. See N.L R.B. v. Truitt Mfg. Co.,
351 U S. 149, 153. Respondent's position is that it at no time pleaded inability to
pay, a contention that presents a purely factual question.
I have already resolved the conflicting evidence on the inability-to-pay issue in
favor of Respondent and against General Counsel and the Charging Party. The
credible evidence shows, as I have found, that on October 26, the first meeting be-
tween the parties, Respondent's representatives took no position respecting the Union's
wage demands, Stanton Cole promising to consult his mother who had the dominant
voice in the business Neither he nor Rector, Respondent's labor consultant who also
attended this meeting (the only one which he participated), pleaded inability to pay.
At the second meeting (October 31) Mrs. Cole offered to supply information which
her accountant would make available-not in support of any inability-to-pay conten-
tion, but in response to the mediator's request whether "anything" could be done to
satisfy the Union's demands for wage information and "to settle" the dispute. Inso-
far as appears, Respondent has not yet at this point taken any position regarding the
Union's wage requests, the bargaining apparently not having reached the stage where
the Company was prepared for, or felt bound to take, a position on this matter. (The
parties had met only twice over a 5-day period, October 26-31). Moreover, it may
well be that the Company having given the employees a substantial wage increase
only 6 months earlier (on signing the collective-bargaining contract) was not disposed
toward a demand for a further increase. On November 7, a week after the strike
began, Respondent again offered to submit information-this time its auditor's 1963
financial report (in place of the 1963 corporate tax return demanded by the Union),
but again in an attempt to settle the strike and return the workers to their jobs rather
than in justification of any inability-to-pay plea 13
I conclude that the preponderance of credible evidence does not support Generar
Counsel's contention that Respondent at any time during the negotiations claimed'
inability to pay as a defense to the Union's pay demands. It follows that Respondent's
failure to furnish the wage information requested by the Union did not constitute
a refusal to bargain in good faith within the meaning of the Act See Pine Industrial
Relations Committee, Inc., et al., 118 NLRB 1055, 1060-1061, affd. 263 F. 2d 483•
(C.A.D.C.).14
5. Conclusions respecting the'nature of the strike
Having found that Respondent 'did not plead inability to pay the wage increases.
demanded by the Union in the two bargaining sessions preceding the November 1
strike and that it was under no legal obligation to furnish the Union with financial'
information to substantiate such plea, it follows that the strike was,not caused by
13 General Counsel introduced excerpts from the,transcript of the State Injunction hear-
ing (supra, section B, 3) showing that Respondent's then attorney (Andrew Michaels),
in presenting oral argument in the case, characterized' the strike as an "economic strike"
based upon demands for wage Increases which "this Company cannot afford " Comider-
Ing the apparently offhand and random nature of the remarks, and the circum't inces.
under which they were uttered, I cannot regard them as definitive In the total situation
here unveiled. , , • u,.
141n view of the foregoing conclusion, I do-not reach,the question whether the Union,
was entitled to the information in'the'form requested. Cf.,Cinoinnati,Steel Castsnps Cam-
pang, , 86 NLRB 592; 593-594 .,; 11 , . r , 1 , .
1620 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's.alleged unfair labor practice in refusing to supply bargaining informa-
tion. On the basis of the whole record I find that the strike was an economic strike,
invoked by the Union because the Company had failed to meet its wage demands.
The Union thus put into effect the intention it expressed in its August 24 notice to
the Company (given pursuant to Section 8(d) of the Act)-long before the alleged
unfair labor practice took place-to "resort to strike in support of its position" by
"midnight of October 31," if such action became necessary.15 I further find that
there is no evidence that the Company's conduct after the commencement and during
the strike operated to convert the economic strike into an unfair labor practice strike.16
B. Interference, restraint, and coercion
The complaint alleges that Respondent restrained, coerced, and interfered with the
employees' union and concerted activities in violation of Section 8(a)( I) of the Act
by certain acts and conduct. I now turn to the incidents relied on by General Counsel.
1. General Counsel alleges that Respondent unlawfully solicited and threatened
the strikers by sending the November 9 letter notifying them that they would be per-
manently replaced if they failed to return to work by November 12. I disagree.
General Counsel's contention is apparently predicated on the claim that the strike
was an unfair labor strike, a claim I have rejected. I find that the letter was no more
than an assertion of legal consequences resulting from replacement of economic
strikers, within permissible bounds of employer communication to such strikers.
-Orange Premium Stamps (Division of Alfred M. Lewis, Inc.), 127 NLRB 1491, 1943;
Titan Metal Manufacturing Co., 135 NLRB 196, 199-202.
2. General Counsel further alleges that Respondent verbally induced individual
strikers to abandon the strike on the first day of the strike (November 1) as they came
to the company office for their paychecks. Margaret Rankin testified that Mrs. Cole
asked her in the office if she would be "interested in dropping out," to which she re-
plied, "No." Noel Walters testified that when he went in to pick up his check, Mrs.
Cole "talked like I would get more money if I would come" back. At a later point
he testified that she made a firm offer to pay him more money if he returned to work.
On cross-examination he again said that Mrs. Cole only "talked like she was going to
give me more money," but "didn't tell" him "she would." Martha Wiley testified that
when she went in to get her check, Mrs. Cole asked her if she was going back to work.
Wiley replied that she would abide by her husband's decision and would not cross the
picket line. According to Wiley, Mrs. Cole further stated in the course of the con-
versation, "Well, you know if you do go out on strike, I will have to replace you.
This will not be a union shop when you come back to work." However, in repeating
the substance of the conversation on cross-examination, Wiley omitted this last state-
ment. Mrs. Cole categorically denied that she solicited strikers to return to work or
sought to induce them to return through threats or promises.
I credit Mrs. Cole's unequivocal denial. Even if made, Mrs. Cole's statement to
Rankin about "dropping out" is too vague and ambiguous to warrant a finding that it
was coercive. The tesitmony of both Walters and Wiley was vacillating and evasive.
In any event, Mrs. Cole's alleged statement to Walters that she "talked like I would
get more money if I would come" back appears to be a subjective and conclusionary
appraisal by Walters of what Cole had in mind, as distinguished from a repetition of
what she actually said. And Mrs. Cole's alleged request to Wiley to return to work
because she might be replaced and the shop would become nonunion, is consistent
with the interpretation that the Company would not capitulate to the Union. Cf.
Neuman Transit Co., Inc., 138 NLRB 659, 679. Where a statement is subject to
both an innocent and noninnocent interpretation or meaning, it is incumbent upon
General Counsel to estabilsh that it is not innocent. Titan Metal Manufacturing Co.,
135 NLRB 196. This he has failed to do. Cf. United States Gypsum Company, 93
NLRB 966, 969.
16As hereafter found, Respondent (through Foreman Hamrick) engaged in some con-
duct before the strike which is violative of Section 8(a) (1) of the Act. However, there
is no evidence (and General Counsel in his brief does not claim) that this conduct was a
factor in the employees' decision to strike. It is noteworthy that none of General
Counsel's witnesses made any reference to a discussion of such conduct at the October 31
union meeting preceding the strike.
16 As hereafter found, Respondent did not engage in any Section 8(a)(1) conduct after
the strike. As already indicated, the Union in-its November 14 letter,to,Respondent re-
newed its request for bargaining information , but this (like the preceding requests) was,
predicated on the Company's .alleged pleas of inability to pay; prior to-the;,^strike-pleas
`I'have found were not-in fact advanced by Respondent.
CASTER MOLD & MACHINE COMPANY, INC. 1621
3. It is further alleged that the Company (through Foreman Hamrick) told several
employees, prior to the strike, that they would be fired if they went out on strike.
Donald Wahlen testified that shortly before the strike Hamrick telephoned him at
home and told him that if the Union went out on strike "the Company is prepared and
are ready to bring in a full shift"; that "they have already got a trucking company to
haul the freight"; and that "[e]verybody that participates in the strike will be fired and
replaced." Other employees testified that Hamrick made similar statements to them
at work. Employee Arkey quoted Hamrick as stating that Mrs. Cole "would be
tickled to death if we went out on strike so that she would fire us all." Employees
Wiley, Rankin, and McLaughlin testified that Hamrick warned each of them that the
Company already had a crew to replace the employees in the event that they went out
on strike.17
Hamrick was not called as a witness and the statements attributed to him by the
employees remain uncontradicted. I credit their mutually corroborative testimony
and find that Hamrick's statements that the employees would be fired if they went
out on strike were coercive. _
Respondent seeks to escape liability for Hamrick's conduct by contending that
inasmuch as Hamrick was extremely friendly with the employees, his statements
cannot be construed as coercive. Indeed, Respondent in its brief goes so far as to
characterize Hamrick as "an agent for the Union" and the one who "instigated" and
advised the employees to join it. These allegations have no support in the record
and I reject them. The record shows, and I find, that Hamrick was on very friendly
terms with the employees. His friendship for them is demonstrated by the fact that
he quit the Company at the start of the strike in sympathy for the strikers. But I
agree with General Counsel that warnings from a friendly supervisor, close to man-
agement, are no less a threat than warnings from a hostile supervisor. Indeed, warn-
ings from such a friendly source may carry a greater aura of reliability and truth-
fulness and may therefore in a sense be doubly effective. Cf. N.L.R.B. v. Marval
Poultry Company, Inc., 292 F. 2d 454 (C.A. 4).
4. Finally, it is alleged that the Company engaged in a course of harassment, sur-
veillance, and discipline of at least one union officer in order to discourage union
activity. Union President Wahlen testified that on September 17 Hamrick presented
him with a disciplinary slip for spending too much time talking to truckdrivers and
told him that the Company was trying to get rid of him and that he had better watch
his step. Wahlen was further advised that Mrs. Cole said the receipt of three such
warning slips would result in discharge. The next day (September 18) Hamrick
summoned several employees into his office, Wahlen included, and stated that he was
told to give them a talk. Hamrick told the employees that the Company was trying
to get rid of Wahlen because he is the union leader and if they got rid of him they
could "bust it"; that any time they were caught talking to Wahlen they would get a
pink slip and the receipt of three such slips would result in discharge. Wahlen tes-
tified that Mrs. Cole had also warned him against "talking to anybody" in the shop
and that if he continued to do so she would take "drastic steps."
Wahlen's testimony is in part corroborated by one of the employees (Walters) sum-
moned by Hamrick on September 18. As already noted, Hamrick did not testify at
the hearing; but Mrs. Cole did not deny directing Hamrick to talk to the employees,
nor did she in any way disavow any of the remarks attributed to Hamrick.
I find that Foreman Hamrick made the statements attributed to him by Wahlen,
and that these statements constituted interference, restraint, and coercion in violative
of Section 8 (a) (1) of the Act. In his statements Hamrick in effect warned Wahlen
(and in the September 18 conversation also other employees) that Respondent's em-
ployees were subject to surveillance and that Respondent was out to "get rid" of
Wahlen because he was the Union's leader.
III. THE REMEDY
Having found that Respondent has engaged in certain unfair labor practices, I
will recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
17 McLaughlin also quoted Hamrick as stating that the Company had already placed ads
In the newspapers to replace strikers. General Counsel's evidence showed that the Com-
pany ran help wanted ads In newspapers with greater frequency before the strike in
October than in prior months. Gilbert Townsend, the Company's sales manager, sought
to explain the Increased ads by pointing out that the Company had Introduced a new
tripod jack in July which resulted in progressively increased business and the need of
additional help.
1622 DECISIONS,OF NATIONAL LABOR RELATIONS BOARD
-CONCLUSIONS OF LAW
1. Respondent did not violate Section 8(a)(5) of the Act by refusing to furnish
information to the Union.
2. Respondent did not cause or prolong the strike of November 1 by any unfair
labor practices.
3. The strike commencing November 1 was an economic strike.
4. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed by Section 7 of the Act, Respondent engaged in unfair labor prac-
tices within the meaning of Section 8(a)(1) and Section 2(6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in this proceeding,-I recommend that the Respondent, Caster Mold
and Machine Company, Inc., its agents, officers, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening employees with reprisals, including threats to discharge employees
if they strike, and warning them that they are under surveillance in order to discour-
age union activity.
(b) Engaging in like or related conduct.
2. Take the following affirmative action which I find will effectuate the policies of
the Act:
(a) Post at its place of business in Barberton, Ohio, copies of the attached notice
marked "Appendix." 18 Copies of said notice, to be furnished by the Regional Di-
rector for Region 8, shall, after being duly signed by the Respondent's representa-
tive, be posted by Respondent immediately after receipt thereof, and be maintained
by it for 60 consecutive days thereafter, in conspicuous places, including all places
where notices to its employees are customarily posted. Reasonable steps shall be
taken by the Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify the Regional Director for Region 8, in writing, within 20 days from
the receipt of this Recommended Order, what steps it has taken to comply herewith.19
It is further recommended that the Board dismiss the allegations of the complaint
insofar as they refer to conduct other than the conduct found to be violations of the
Act.
19 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 is 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 "
31 In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read "Notify the Regional Director for Region 8, in writing, within
10 days from the date of this Order, what steps have been taken to comply herewith."
APPENDIX
Pursuant to the Recommended Order of a Trial Examiher of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT threaten our employees with discharge if they go out on strike
or warn them that they will be under surveillance while engaging in union
activities.
WE WILL NOT in any like or related manner restrain or coerce employees in
the exercise of their rights to engage in union or other concerted activities -for
- the purpose of collective bargaining or other mutual aid or protection.
CASTER MOLD & MACHINE COMPANY, INC.,
Employer.
Dated------------------- By--------------------------------------------
(Representative) (Title)
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.
FABRI-TEK INCORPORATED 1623
Employees may communicate directly with the Board 's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue , Cleveland, Ohio, Telephone No. Main 1 -4465, if they
have any question concerning this notice or compliance with its provisions.
Fabri-Tek Incorporated and International Brotherhood of Elec-
trical Workers , AFL-CIO. Case No. 18-CA-1728. October 9,
1964
DECISION AND ORDER
On April 17, 1964, Trial Examiner Sidney D. Goldberg issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent 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 Decision. Thereafter,
the Respondent filed exceptions to the Decision and a supporting
brief. The Charging Party filed a brief in support of the Decision.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a, three-member panel [Chairman McCulloch and Mem-
bers Leedom and Brown].
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 Trial
Examiner's Decision, the exceptions and briefs, and the entire record
in this case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.
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, and orders that Respondent, Fabri-
Tek Incorporated, its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's Recommended
Order.
TRIAL EXAMINER'S DECISION
The sole question in this proceeding is whether Respondent 's interference with its
employees wearing of oversize "VOTE I.B.E.W." buttons and other union insignia
in the plant during the preelection campaign infringed upon rights guaranteed them
under the Act.
The complaint herein 1 alleges that Respondent discharged six employees because
they wore union insignia in violation of a company rule; that it has refused to re-
instate them ; and that it thereby violated Section 8 (a)(3) and ( 1) of the National
Labor Relations Act, as amended (29 USC Secs. 151-168, herein called the Act).
'Issued October 21, 1963 , on a charge filed October 3 and an amended charge filed
October 8, 1963.
148 NLRB No. 156.