Clark Bros. Co., Inc.

National Labor Relations Board - Board Decisions

Aug 26, 1946

70 N.L.R.B. 802 (N.L.R.B. 1946)

In the Matter of CLARK BROS. CO., INC. and UNITED AUTOMOBILE, AIR-
CRAFT AND AGRICULTURAL IMPLEMENT WORKERS OF AMERICA, CIO
Case No. 3-C-775.-Decided August 26, 1946
Mr. Francis X. Helgesen, for the Board.
McAfee, Grossman, Hanning at Newcomer, by Mr. Maurice F. Han-
ning, of Cleveland, Ohio, and Messrs. Thomas L. Moody and James
A. Hughes, of Cleveland, Ohio, for the respondent.
Mr. Peter J. Zanghi, of Buffalo, N. Y., for the CIO.
Mr. Ralph Winkler, of counsel to the Board.
DECISION
AND
ORDER
On November 15, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the copy of the Intermediate Report
attached hereto. Thereafter, the respondent filed exceptions, with a
supporting brief, to the Intermediate Report. On February 14, 1946,
the Board at Washington, D. C., heard oral argument in which the
respondent participated; the Union did not appear.
9 The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was'commltted. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and brief, the contentions advanced by the
respondent at the oral argument, and the entire record in the case, and
hereby adopts the findings, conclusions, and recommendations of the
Trial Examiner, with the following additions and modifications.'
3 On October 3, 1945, the CIO filed with the Board another petition for certification, and
following a hearing thereon the Board issued a Decision and Direction of Election on March
15, 1946 ( 66 N L R. B . 849). In connection with this representation case, the CIO waived,
in writing, any right that it might have to protest the election on any of the grounds set
forth in the complaint in the instant case. The election was held on April 9 , 1946 , and the
Association was thereafter certified as the collective bargaining representative for the em-
ployees involved . On May 21, 1946, the respondent filed with the Board a Petition For
Dismissal of the complaint in the present proceedings , stating as basis therefor that the
issues had been rendered moot by virtue of the representation proceeding . We do not agree
that the respondent 's unfair labor practices are rendered moot by the resolution of the
question concerning representation . Accordingly , the Petition For Dismissal is hereby
denied.
70 N. L. R. B., No. 60.
802
CLARK BROS. CO., INC. 803
1. The Trial Examiner found that the respondent violated Section
8, (1) of the Act by promulgating and enforcing Shop Rule 6, insofar
as this rule proscribed union solicitation on company premises by the
employees during their non-working time. The Trial Examiner also
found that the respondent discriminatorily enforced this rule by deny-
ing to the CIO the privilege of distributing union literature on com-
pany premises during non-working time while extending such a privi-
lege to the Association, a rival organization, and distributing its own
anti-CIO literature at the plant during working time. We agree with
the Trial Examiner that, by the prohibition contained in Shop Rule 6
against union solicitation on company premises during the employees'
non-working time and by its discriminatory application of this rule,
the respondent violated Section 8 (1) of the Act.
2. The Trial Examiner found that Thomas L. Moody, the respond-
ent's labor relations director, engaged in surveillance by visiting a
drinking establishment on several occasions for the specific purpose of
overhearing employee conversations regarding the organizational cam-
paign of the CIO. We agree that such conduct is violative of the Act.
It is not a defense to such action, as the respondent asserts, that the
employees may have been without knowledge of the surveillance.
"Any real surveillance by the employer over the union activity of em-
ployees, whether frankly open or carefully concealed, falls under the
prohibitions of the Act." 2
3. The Trial Examiner also found that the respondent injected itself
into the then pending run-off election for the purpose of insuring the
defeat of the CIO and obtaining the selection of the Association; that
it was "determined," as its labor relations director conceded, "to con-
duct an aggressive campaign against the CIO"; that in furtherance of
this objective the respondent, within a span of 5 days, mailed anti-CIO
leaflets to its employees, inserted paid advertisements hostile to the
CIO in the local newspaper, made anti-CIO speeches which included
suggestions of the possibility of job insecurity through its officials at
the plant during working hours and required its employees to hear
these speeches, and distributed anti-CIO statements to the employees
on company premises during working hours; that it promulgated and
enforced the afore-mentioned shop rule unlawfully prohibiting union
solicitation at the plant during non-working time; that it discriminated
against the CIO by disparate treatment of that organization in regard
to the distribution of organizational literature; and that it engaged in
surveillance of the CIO. This occurred in a situation in which there
were two competing unions, so that there was especially little justifica-
tion for the respondent's intrusion as a "participant" in the preelection
2N. L R B. v. Collins f Aikman Corporation , 146 F. ( 2d) 454, 455 (C C. A 4), en-
forcing 55 N. L R B 735, 736.
712344-47-vol. 70-52
804 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign. We agree with the Trial Examiner that, by the totality of
such acts and statements, as more fully revealed in the Intermediate
Report, the respondent interfered with, restrained, and coerced its em-
ployees in the exercise of their self-organizational rights. We also
find, in agreement with the Trial Examiner, that the respondent's cam-
paign statements (most of which went far beyond what might have
been thought necessary to reply to possible misstatements of fact by
pro-CIO campaigners), viewed in the setting in which they were made,
constitute an integral and inseparable part of the respondent's' coercive
course of conduct violative of the Act.3
4. The Trial Examiner also found that, in one instance a mere hour
before the polls were to open for the run-off election between the
CIO and the Association, the employees were compelled by the re-
spondent to assemble at the plant during working time to listen to
anti-CIO campaign speeches of the respondent's officials. The
speeches were made on the premises during working hours and were
-broadcast throughout the entire plant. The power and engines were
shut down. All plant operations were suspended and the employees
were directed by the respondent, through some foremen and by the
public address system, to assemble to listen to the speeches. Thus,
the employees were required to listen to these speeches because the
respondent controlled the manner in which the employees were to
occupy their time. The only way the employees could have avoided
hearing the speeches would have been for them to leave the premises,
which they were not at liberty to do during working hours. The
Trial Examiner concluded on these facts that the despondent, by its
control over its employees during working hours, not only paid its
employees for listening to its anti-CIO solicitation, but that the
manner of exercising such control gave the respondent, under the
stated circumstances, assured and, during working hours, exclusive
access to its employees in a matter relating to their organizational
activities. We agree.
We are also of the opinion, and find, that the conduct of the re-
spondent in compelling its employees to listen to a speech on self-
organization under the circumstances hereinabove outlined and as
more fully revealed in the Intermediate Report, independently con-
stitutes interference, restraint, and coercion within the meaning of
the Act. Section 7 of the Act guarantees to employees the "right to
self-organization, to form, join, or assist.labor organizations" and
8 Peter J. Schweitzer, Inc v. N. L R. B., 144 F (2d) 520, 524-525 (App. D C.) ; N. L.
R. B. Y. American Laundry Machinery Company, 152 F. (2d) 400 (C C. A 2) ; N. L. R B. v.
Trojan Powder Company , 135 F ( 2d)337 (C. C A. 3 ), cert. denied 320 U S . 768; Reliance
Manufacturing Company v . N. L R B , 143 F. ( 2d) 761, 763 ( C C. A 7 ) The Reliance case,
like the instant one, concerned an election in which two competing unions were on the ballot.
CLARK BROS. CO., INC. 805
"to bargain collectively through representatives of their own choos-
ing." The Board has long recognized that "the rights guaranteed
to employees by the Act include the full freedom to receive aid,
advice, and information from others, concerning those rights and
their enjoyment ." 4 Such freedom is meaningless , however, unless
the employees are also free to determine whether or not to receive such
aid, advice ,.and information . To force employees to receive such aid,
advice, and information impairs that freedom ; it is calculated to,
and does, interfere With the selection of a representative of the em-
ployees' choice. And this is so, wholly apart from the fact that the
speech itself may be privileged under the Constitution.
The compulsory audience was not, as the record shows, the only
avenue available to the respondent for conveying to the employees
its opinion on self -organization . It was not an inseparable part of
the speech,' any more than might be the act of a speaker in holding
physically the person whom he addresses in order to assure his at-
tention . The law may and does prevent such a use of force without
denying the right to speak. Similarly we must perform our function
of protecting employees against that use of the employer's economic
power which is inherent in his ability to control their actions during
working hours" • Such use of his power is an independent circum-
stance, the nature,and effect of which are to be independently ap-
praised. We conclude , therefore , that the respondent exercised its
superior economic power in coercing its employees to listen to speeches
relating to their organizational activities , and thereby independently
violated Section 8 (1) of the Act.7
We do not believe that the American Tube Bending case 8 is disposi-
tive of the issue. It is true, as our dissenting colleague points out, that
there happened in that case to have been a "captive audience." But
following the then existing precedents ( 1942 ), the Board had not con-
sidered whether the employer 's action in compelling an audience was,
taken by itself , an unfair labor practice , and it made no independent
findings of unfair labor practice on that point.9 Hence, the Circuit
Court of Appeals did not consider the point , even if it could.", In
applying for a writ of certiorari , the facts were mentioned , but the
point was not separately briefed or urged as an independent ground for
4 Matter of Harlan Fuel Company, 8 N . L. R. B. 25, 32.
8 Cf. Thomas v. Collins, 323 U. S 516
8 Cf. People of New York v. Ford Motor Co., decided June 26 , 1946, N Y. Sup. Ct, App
Div. (3rd Dep't).
1 In so holding, however, we do not rest our finding upon or adopt that portion of the
Intermediate Report which refers to a "constitutional right of non -assembly."
8N. L. R. B. v. American Tube Bending Co., 134 F. ( 2d) 993 (C. C. A 2), cert denied
.320 U . S. 768.
0 44 N. L. R. B. 121,
10 Cf B. E. C. v . Chenery Corp., 318 U S. 80, 87-88.
806 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reversal; it could not have been, in that posture of the case 11 We
therefore consider the question an open one.
5. We agree with all of the opening paragraph of Mr. Reilly's dis-
sent except the last sentence. We cannot leave unanswered his sug-
gestion that the majority is insensitive to the importance of the First
Amendment,12 or the apparent attempt to convert a difference as to
the emphasis to be given certain facts into a basic disagreement con-
cerning a constitutional axiom. No less than our dissenting col-
league, we recognize that, in a sense, "it is a constitution we are ex-
pounding." 13 We simply do not share his view that there is anything
in the reasoning or language of the recent Supreme Court and Circuit
Court decisions he cites which requires'the Board to treat this particu-
lar respondent as though it had done no more than make an appeal to
the reasoning faculties of its employees.
The record makes it clear that there were coercive acts here, and
not mere expressions of opinions. Nothing in the facts or in the
Supreme Court's decisions in the two Virginia Electric cases 14 suggests
that this Board is required, on this particular record, to depart from
established doctrine or to abdicate its function of protecting employees
from employer interference and coercion of such unreserved character.
6.- In Section G of the Intermediate Report, the Trial Examiner
referred to certain testimony by employees which was offered to dem-
onstrate that the respondent's activities had their intended coercive
effect upon the employees. This testimony related generally to the
employees' "feelings" and, in some instances, to action taken by the
employees as a result thereof. The test of interference, restraint, and
coercion under Section 8 (1) of the Act does not turn upon the success
or failure of the attempted coercion, but rather upon whether the
employer engaged in conduct which, it may reasonably be said, tends,
to interfere with the exercise of employee rights under the Act. Ac-
cordingly, we do not rely upon such testimony and believe that it
should not have been received as part of this record.
Ibid.
'1z See, for example , the following recent cases where we found that certain anti-union
statements did not constitute interference , restraint , and coercion within the meaning of
the Act. Matter of Oval Wood Dish Corporation , 62 N. L R B. 1129, 1138 ; Matter of
Mississippi Valley Structural Steel Company, 64 N. L. R. B 78, 80; Matter of The Ebco
Mfg Co., 67 N. L. R. B. 210; Matter of Strathmore Packing House Company, 68 N. L.
R B 214 ; Matter of Philadelphia Gear Work8, Inc., 69 N L. R B. 11.
'3 Marshall , C J, in McCulloch v Maryland, 4 wheat. 316, 407.
14 N. L. R. B. v. Virginia Electric & Power Co., 314 U. S. 469; Virginia Electric & Power
Company v. N. L. R B., 319 U. S. 533.
CLARK BROS. CO., INC.
ORDER
807
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Clark Bros. Co., Inc., Olean,
New York, and its officers, agents, successors, and assigns shall :
1. Cease and desist from:
(a) Engaging in surveillance of its employees' self-organizational
activities upon behalf of United Automobile, Aircraft and Agricul-
tural Implement Workers of America, CIO, or any other labor or-
ganization ;
(b) Promulgating or enforcing a rule prohibiting union solicitation
on company premises during non-working time;
(c) Discriminating against United Automobile, Aircraft and Agri-
cultural Implement Workers of America, CIO, by denying to it th9
privilege of distributing union literature at the plant while at the
same time granting such privilege to Employees Association, Inc.,
of Clark Bros. Co. ;
(d) Compelling its employees during working time to listen to
speeches relating to self-organization and the selection of a bargaining
representative;
(e) Interfering with its employees in the exercise of the right to
self-organization, and to join or assist United Automobile, Aircraft
and Agricultural Implement Workers of America, CIO, or any other
labor organization.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Rescind immediately Shop Rule 6 insofar as it prohibits union
solicitation on the respondent's premises during the employees' non-
working time;
(b) Mail to each of its employees a copy of the notice attached
hereto, marked "Appendix A";
(c) Post at its plant at Olean, New York, copies of the notice at-
tached hereto, marked "Appendix A." Copies of said notice, to be
furnished by the Regional Director of the Third Region, shall, after
being duly signed by the respondent's representative, be posted by the
respondent immediately upon receipt thereof, and maintained by it
for sixty (60) consecutive days thereafter, in conspicuous places, in-
cluding 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;
to
808 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps the re-
spondent has taken to comply herewith.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
1. We will not engage in surveillance of our employees in
their self-organizational activities upon behalf of United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, CIO, or any other labor organization.
2. We hereby rescind Shop Rule 6 insofar as it prohibits union
solicitation on our premises during the employees' nonworking
time.
3. We will not discriminate against United Automobile, Air-
craft and Agricultural Implement Workers of America, CIO, by
denying to it the privilege of distributing union literature at the
plant, while at the same time granting such privilege to Em-
ployees Association, Inc., of Clark Bros. Co.
4. We will not compel our employees during working time to
listen to speeches relating to self-organization and the selection
of a bargaining representative.
5. We will not interfere with our employees in the exercise of
the right to self-organization and to join or assist United Auto-
mobile, Aircraft and Agricultural Implement Workers of
America, CIO, or any other labor-organization.
6. All our employees are free to become or remain members of
United Automobile, Aircraft and Agricultural Implement Work-
ers of America, CIO, or any other labor organization.
CLARK BROS. Co., INC.,
By ---------------------
Dated--------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
MR. GERARD D. REILLY, dissenting :
I have always conceived that the duty of applying the Constitution,
as interpreted by the Supreme Court of the United States, rests as
heavily upon administrative agencies of the executive branch of the
Government as it does upon State courts and the lower courts of,our
Federal judicial system. Once a broad principle on a disputed issue of
CLARK BROS. CO., INC. 809
constitutional law has been determined by the highest court, it would
seem incumbent upon tribunals which have followed another rule of
decision to acquiesce in the ultimate judicial pronouncement, even
though the litigants aggrieved by lack of conforinity on the part of the
inferior tribunal may appeal to the higher courts for redress. It is sub-
mitted that the majority opinion is in derogation of this well estab-
lished canon of judicial procedure.
Until recent years this Board.had always assumed that an employer
had no right to express his opinions to his employees with respect to a
union which might be seeking to act as their representative. Numerous
decisions of the Board laid down the principle that it was the duty of
an employer to remain completely neutral so far as his utterances in
the plant were concerned. Consequently, any appeals by employers
against unions or in favor of particular unions which were made in
verbal addresses to the employees or reduced to written form and dis-
tributed on plant bulletin boards, in handbills, or in envelopes which
reached the workers were considered to be violations of Subsection
8 (1) of the Act, on the theory that such arguments were "an interfer-
ence" with the right of self-organization guaranteed to employees by
Section 7 of the Act. Although I always thought that this doctrine was
somewhat questionable, as a matter of sound labor relations policy,
since employees have an indirect stake in the continued financial suc-
cess of the company which employs them, this principle has been enun-
ciated so repeatedly that I concurred in it the first 2 years I was a
member of this agency on the theory of stare decisis.
During this period, our rule of decision was frequently criticized
by employers affected by it, as well as by such interested outside organ-
izations as the American Civil Liberties Union, on the ground that
such a construction of the Act was repugnant to the guarantee of
freedom of speech in the First Amendment yet it was not for several
years that any case squarely presenting this issue reached the Supreme
Court. To be sure the issue had been litigated many times on enforce-
ment orders in Circuit Courts of Appeals, and while some conflicts
had resulted'15 an authoritative opinion of the Circuit Court for the
Second Circuit,'° written by Judge Learned Hand, was generally re-
garded by the bar as having settled the point in the Board's favor.
This doctrine was repudiated, however, in 1942 when the Supreme
Court in the Virginia Electric d Power case 17 passed upon a bulletin
posted by the company containing arguments against joining outside
unions and appealing to the employees to form an inside union of their
'6 Cf. Federbush case of the Second Circuit with Ford case of the Sixth Circuit (N. L.
R B. v. Federbush Co, Inc, 121 F (2d) 954 (C. C. A. 2 ), enf'g 24 N L . R. B 829; N. L.
R. B V. Ford Motor Company, 114 F. (2d) 905 ( C. C A 6 ), enf'g in part , 1 4 N. L. R. B.
346.)
16 N. L. R. B. v. Federbush , footnote 15, supra.
17 N. L. R. B. v. Virginia Electric t Power Company, 314 U. S. 469.
810 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
own. In this case the Court specifically held that an employer's right
to express his opinion to the workers in his plant with respect to issues
of labor organization was protected by the First Amendment, if it fell
short of being coercive. It remanded the case to the Board for con-
sideration of the question as to why any language in this bulletin was
coercive in fact. Upon reconsideration of the case, the Board found
that the language contained in the posted notice inviting the employees
to form a union of their own was part of a scheme of the company to
form and dominate a labor organization in violation of Subsection
8 (2) (the case contained an independent allegation of a violation of
this Subsection), and, so viewed, was indeed an interference with their
organizational freedom. In this posture the case again went to the
courts and the Board's order was sustained.
In the meantime, another Board decision had come to the Circuit
Court of Appeals of the Second Circuit for review."' In this case
an employer on the eve of an election had assembled his employees
during working hours to listen to a paper which he read advising them
against voting for a union in the coming election. The text of this
speech contained arguments implying that outside organizers were
insincere in their expressed solicitude for the welfare of the employees.
It implied that the company would never sign a closed-shop agree-
ment, and appealed to the employees who wished to continue the
friendly relationship which existed between themselves and the com-
pany to vote for the employer (that is, vote "No") rather than for
the union. The Board held the employer's conduct unneutral and
issued an order requiring him to desist from such "interference."
The Circuit Court of Appeals held that this order was improper in the
light of the Virginia Electric d Power case,19 although it conceded
that under its own ruling expressed in the Federbush case 20 such an
order would have been valid. It therefore overruled the Federbush
case. The Board then petitioned for certiorari, advancing many of
the identical arguments which were advanced in this case.21 The
petition was nevertheless denied. Within a few months other Circuit
Courts of Appeals which had previously supported the Board's point
of view changed their positions.22
18 N L R B v American Tube Bending Co, 134 F. ( 2d) 993 (C. C. A 2) 1943, cert.
denied 320 U. S. 768.
20 See footnote 17, supra.
20 See footnote 15, supra.
21 For example, the compulsory audience feature and the superior economic power fea-
ture were points (1) and ( 2) in the Board's brief.
22 See Peter J Schweitzer, Inc. v N. L. R B, 144 F (2d) 520 (App D. C ), enf'g as
mod. 54 N. L R. B 813. Sept 23, 1944 (App. D C ), rehearing denied; Budd Manufac-
turing Company v N L. R B., 138 F. (2d) 86 (C C. A 3), enf'g 41 N. L R. B. 872, 321
U. S 773 cert. denied ; and decision of 7th Circuit in Reliance Mfg. Co. v. N. L. R B , 125
F. (2d) 311 (C. C. A. 7), which stands out as an exception.
CLARK BROS. CO., INC. 811
Of course a denial of certiorari is not necessarily conclusive of the
views of the Supreme Court, although certainly its action in this case
was already foreshadowed not only by its pronouncement in Virginia
Electric & Power but also in its decision in the Hague case, in which
the Court said, "The right to discuss and inform people concerning
the advantages and disadvantages of unions and joining them is
protected not only as part of free speech, but as part of free
assembly." 23
Whatever doubt remained on the point was dissipated by the
Supreme Court's decision the following term in the case of Thomas v.
Collins,24 in which a majority of the Court held unconstitutional a
State statute placing certain restrictions upon union organizers when
applied to a speech made by a trade union official during an organizing
campaign preceding a Labor Board election. In its decision the
majority opinion made it clear that the right to make arguments for
or against unions was fully privileged by the First Amendment, and
that it applied to employers as well as to employees and union organ-
izers.25 In order to remove all doubt the Court noted with approval
the-Americam, Tube Bending 26 ruling. This Board eventually acqui-
esced in this decision and for a time ceased to set aside elections or to
issue cease and desist orders against employers who made anti-union
speeches or circulated anti-union literature, if they refrained from
threats or intimidatory conduct.
Recently, however, there has been a disturbing tendency by the
Board to return to its old line of decisions on the theory that because
there was some minor aspect of interference, a speech should be viewed
as part of a "pattern of coercive conduct," even in cases where it was
clear that the offending speech was only coercive or "inextricably inter-
twined" in the most highly metaphorical sense.27 Such findings have
been made even where employers were confronted with highly inflam-
matory union literature, although one of the foremost labor lawyers
in the country recognized, in a recent article in the official organ of
the A. F. of L., that "if freedom of speech is to survive for trade unions
and their members, it must not be denied, directly or indirectly, to
employers." 28
The case at bar resembles the "pattern of conduct" cases in that the
Board relies somewhat upon findings (based on no more than a scin-
23 Hague v. Committee for Industrial Organization , 307 U. S. 496.
24 323 U. S 516.
26 The court noted with approval the decisions of the Second and Sixth Circuit Courts of
Appeals, respectively , in which the original ruling of the Board was repudiated.
26 Footnote 18, supra.
zr Matter of Goodall Company, 68 N. L. R. B. 252, issued May 28, 1946 ; Matter of Monu-
mental Life Insurance Co., 67 N. L. R. B . 244, issued April 11, 1946.
28 Joseph Padway, Esq., in "The Federationist ." June 1944, p. 28.
812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tilla of evidence) that there was disparity of treatment as between
competing labor organizations in the distribution of campaign litera-
ture in the plant,29 and a finding that one of the company officials
engaged in surveillance.30
But this decision is more retrogressive than the general run in that
it finds the mere fact that the employees were assembled in the plant
during working time to listen to anti-CIO campaign speeches of
respondent's officials was itself a violation of the Act, the theory being
that the employees were not at liberty during working hours to avoid
hearing the speeches. It must be remembered, however, that these
were the same circumstances under which the crucial speech in Ameri-
can Tube Bending case was made and virtually the identical argument
in support of the Board's disapproval of it was urged unsuccessfully
upon the courts. It ignores the fact that the whole Board doctrine
of employer neutrality developed with respect to employers using the
plant facilities as channels for their propaganda. It was this doctrine
of the Board that the courts repudiated, not some notion that an em-
ployer did not have access to public media of expression, for no Board
decision had ever held this to be illegal per se.
Similarly, the idea that there was some interference because the
employer himself distributed literature on the premises, despite the
"no solicitation" rule, is equally unconvincing, for the rule was not
directed at the management.
Although the majority opinion professes to reject the ingenious
theory advanced by the Trial Examiner with respect to the existence
of a constitutional right of non-assembly, it really, in effect, adopts
this doctrine by propounding the idea that the exercise of constitu-
tional rights on time paid for by another is an unconditional one.
This argument was disposed of some years ago by Holmes, J.,
McAuliffe v. Mayor, City of New Bedford, 29 N. E. 517, with the
statement that "A policeman may have a Constitutional right to talk
politics, but he does not have a Constitutional right to be a policeman."
The policy grounds upon which the majority opinion is rested seem
to be equally unpersuasive. I refer to the premise that since the
respondent had "superior economic power," the fact that it paid the
workers for the time they listened to the speech should be appraised
as interference with their organizational activities. Granted that this
company, like most industrial concerns, has greater economic power
than its own employees, such an analogy, when referring to an election
contest undertaken by one of the most powerful CIO unions, is falla-
This conclusion is reached despite a finding of the Trial Examiner that after the Direc-
tion of Election issued, neither organization was permitted to distribute an3 literature on
the premises
31 How this surveillance could be viewed as "context " in which the emplo , Fees might in-
terpret the speech as coercive , in view of the fact that the employees were igiiorant of it, is
not explained.
CLARK BROS. CO., INC. 813
cious. We have frequently frowned upon employers adopting the
notion that in a Board election the employer and the union are rival
candidates,31 but it is no more far-fetched than viewing the employees
themselves as candidates. The employees are the voters, the "candi-
dates" are the choices on the ballots. This Board knows from its own
experience the vast amount of money spent in organizing campaigns
and it is doubtful that any concerns, other than the largest corporate
enterprises, can match the financial resources which are available to
national industrial unions like the petitioner in such contests.
I therefore feel, as a matter of policy as well as established judicial
precedent by which we should be guided, that this case should be
dismissed.
INTERMEDIATE REPORT
Mr. Francis X. Helgesen , for the Board.
McAfee, Grossman , Hanniing & Newcomer , by Mr. Maui we F. Hanning, of
Cleveland , Ohio, and Messrs Thomas L. Moody and Jaines A. Hughes , of Cleve-
land, Ohio , for the respondent.
Mr. Peter J. Zanghi, of Buffalo, N. Y ., for the CIO
STATEMENT OF THE CASE
Upon a charge duly filed by United Automobile, Aircraft and Agricultural
Implement Workers of America, C. I. 0, herein called the CIO, the National
Labor Relations Board, herein called the Board, by the Regional Director for
the Third Region (Buffalo, New York), issued its complaint dated June 11, 1945,
against Clark Bros. Co. Inc, 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, accompanied by a notice of hearing, were duly served upon
the respondent and the CIO.
With respect to the unfair labor practices, the complaint alleged in substance
that from on or about January 19, 1945, to February 8, 1945, on which latter date
an employee election was conducted under the supervision of the Regional Direc-
tor, the respondent (1) by compelling its employees to listen to speeches delivered
by the respondent's officers at its plant during working hours, by newspaper
advertisements, and by publications prepared by the respondent and distributed
and communicated to its employees, urged, persuaded, warned, and coerced its
employees to refrain from assisting, becoming, or remaining members of the CIO
or any other nationally affiliated labor organization, or voting for the CIO in
the election referred to, vilified, disparaged, and expressed disapproval of the
CIO and all other nationally affiliated labor organizations, and threatened its
employees with loss of employment if they aided, became, or remained members
of or voted for the CIO; (2) forbade activity on behalf of, solicitation of funds
for, or membership in, the CIO, by its employees at the respondent's plant on the
employees own time; (3) assisted, promoted, contributed support to, solicited
membership for, and campaigned in behalf of Employees Association, Inc., of
Clark Bros. Co. Inc., herein called the Association ; and (4) by such acts engaged
in unfair labor practices within the meaning of Section 8 (1) of the Act.
81 Matter of American Tube Bending Co , 44 N. L. It. B. 121.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pursuant to notice, a hearing was held from June 28 to July 5, 1945, at Olean,
New York, before Arthur Leff, the undersigned Trial Examiner duly designated
by the Chief Trial Examiner. The Board and the respondent were represented
by counsel and the CIO by an official representative. Full opportunity to be
heard, to examine and cross-examine witnesses, and to introduce evidence bear-
ing on the issues was afforded all parties. During the Board's case, the under-
signed granted a motion of counsel for the Board to amend the complaint by
adding an allegation that the respondent, from on or about July 1, 1944 to
February 8, 1945, engaged in surveillance of the activities of the CIO,and of
the union activities of its employees. At the close of the Board's case, the under-
signed granted a motion of counsel for the Board to conform the pleadings
to the proof with respect to names, dates, and other minor variances. At the
close of the Board's case, the undersigned denied with leave to renew a motion
by the respondent to dismiss the complaint for want of proof ; and upon re-
newal of the motion at the close of the entire case, reserved decision thereon.
The motion is hereby denied. At the conclusion of the hearing, counsel for the
Board and counsel for the respondent argued orally before the undersigned.
Subsequent to the hearing, counsel for the respondent filed a brief with the
undersigned.
Upon the entire record in the case and from his observation of the witnesses,
the undersigned makes the following :
FINDINGS OF FACT 1
I. THE BUSINESS OF THE RESPONDENT
The respondent, Clark Bros. Co., Inc., a wholly owned affiliate of Dresser
Industries, Inc., is a New York corporation, maintaining its principal office and
place of business at Olean, New York, where it is engaged in the design, manu-
facture, sale, and distribution of gas engines, compressors, and related products.
During 1944, the respondent in the course and conduct of its business operations
purchased for use at its Olean plant raw materials, consisting principally of
steel, copper, aluminum, brass, and copper wire, valued in excess of $1,000,000,
of which approximately 10 percent was transported to its Olean plant from
States other than the State of New York. During the same year, the respondent
manufactured at its Olean plant products valued in excess of $1,000,000, of which
approximately 90 percent was transported into and through States other than
the State of New York.
The respondent admits that it is engaged in commerce within ,the meaning
of the Act.
H. THE ORGANIZATIONS INVOLVED
United Automobile, Aircraft and Agricultural Implement Workers of America,
affiliated with the Congress of Industrial Organizations, and Employees Asso-
ciation, Inc, of Clark Bros. Co., affiliated with the Confederated Unions of
America, are labor organizations, admitting to membership employees of the
respondent.
111. THE UNFAIR LABOR PRACTICES
A. Introduction
The respondent with approximately 1,200 persons on its pay roll is the largest
employer of labor in Olean, a city populated by about 22,000 and located in a rural
i Unless otherwise indicated, the findings of fact are based upon admitted facts or un-
contradicted evidence which the undersigned credits.
CLARK BROS. CO., INC. 815
section of western New York. There are only some 6 other employers in the
community employing 100 or more. At one time the Pennsylvania Railroad main-
tained shops in Olean employing approximately 3,000, but following a strike and
other labor disturbances, about 20 years ago, the operation of these shops was
substantially discontinued, and the shops did not reopen until about 1940.
For some years the respondent and the Employees Association Inc., of Clark
Bros. Co., herein called the Association, have enjoyed contractual relations. The
Association, although now affiliated with the Confederated Unions of America,
regards itself as an "independent" union,: as distinguished from an "outside"
union, and it is similarly regarded by the respondent and its employees.
B. The 1944-1945 CIO campaign; the election of January 19, 1945
After an unsuccessful campaign conducted in 1942-1943, the CIO in the early
spring of 1944 launched a new drive to organize the respondent's employees. In
conducting its drive, the CIO utilized the usual media of communication available
to unions. By means of leaflets, bulletins, and other publications distributed
outside the plant gates to employees who were free to accept or reject them, in
public meetings which employees might or might not attend, on 2 or 3 occasions
by advertisements inserted in the local press, and, on one occasion, in a radio
address, the CIO sought by argument, traditional in form, to convince the respond-
ent's employees of the advantages of collective bargaining through its agency.
In broad outline, the CIO deprecated the effectiveness of independent labor organi-
zations generally and the Association in particular ; stressed the advantages of an
"outside" labor organization ; pointed to its own size, financial resources, and bar-
gaining strength ; criticized to some extent existing wages, working conditions and
unsettled grievances at the plant ; and offered to attain for employees greater job
security, a more efficient and democratic grievance representation. improved work-
ing conditions, and elimination of favoritism in promotions and inequalities in
pay. The CIO campaign as revealed by its campaign literature, advertisements,
and radio addresses, all of which are in evidence, was, by and large, free of
vituperation or intemperate attacks directed against the respondent or its officials.
By the year end, the CIO had succeeded to a point in its organizational drive
where it was prepared to test its strength in an election. On December 22, 1944, it
filed with the Board a petition for certification pursuant to Section 9 (c) of the
Act. On January 2, 1945, the respondent and the Association joined the CIO in a
consent election agreement.
The election, held on January 19, 1945, proved inconclusive. The CIO received
444 votes, the Association 448, and 34 votes were cast for neither organization. No
choice on the ballot having received a majority of the votes cast, it became neces-
sary under the terms of the consent election agreement to conduct a run-off
election with the "neither" choice dropped from the ballot and the employees left
with a choice only of one or the other of the two competing labor organizations.
On or about January 25, 1945, the date of the run-off election was set for
February 8, 1945
C. The respondent's deteivuination to participate in the run-off election campaign
The respondent, for many months prior to January 25, 1945, had kept itself
closely abreast of the CIO campaign. Thomas L. Moody, the respondent's labor
relations director, testified that he made it a point of learning what was being
done and said, relying not only on CIO literature but on reports received from a
2 Notwithstanding the testimony of an Association official to the contrary, this is clearly
revealed by the Association's publications in evidence.
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"multitude" of sources-"soine came from employees, inquiries made of people
throughout the plant, and statements repeated by one or another that were heard,
to have been made." On a "couple" of occasions, according to Moody, he even
went to the point of visiting bars frequented by the respondent's employees for
the express purpose of listening to (although not participating in) employee con-
versations bearing on the campaign. Principally, however, Moody testified, the
respondent received information concerning the campaign from CIO literature
and from reports of foremen who had been instructed not to make statements to
employees or answer their questions, but merely to report to the personnel office
all questions, conversations, comments, and criticisms overheard by them Al-
though, according to Moody, this instruction to foremen was of general application
and was not intended to relate specifically to union matters, the instruction was
broad enough to have caused the supervisory forces to assume they were under
the duty of reporting such matters. At times, Moody's testimony disclosed, the
supervisors' reports contained information as to an individual employee's union
activities.'
Notwithstanding its full knowledge of the almost year old CIO campaign, which
did not thereafter alter in character or content, the respondent, prior to the
January 19 election, maintained a "hands-olf" policy and refrained from inject-
ing itself into the election contest. It issued no literature, published no advertise-
ments, and its representatives made no speeches. It abstained entirely from
publicly expressing its prelerence as between the competing labor organizations,
or for that matter, for the "neither" choice
At various times prior to the January 19 election there had been discussions
between Moody' and Paul Clark, the respondent's president, concerning the
advisability of presenting to the employees the respondent's position and answer-
ing CIO propaganda, but these discussions, according to Clark, had never gone
beyond the point of casual consideration Several weeks before the January 19
election, Moody, according to his testimony, received a visit from certain un-
identified A. F. of L. representatives who advised him that the A. F. of L was
throwing its strength to the CIO in the forthcoming election, and that "they
[the CIO] are going to knock you off this time." Admittedly prompted in part
by this information, Moody, according to his testimony, came to the determination
at that time, that the respondent should inject itself into the campaign. He so
informed Clark, but Clark said, "Let's not'do anything at present, until we see
what occurs." A few days before the January 19 election, Moody, according to
his further testimony, again spoke to Clark and told hii`h that he thought "we
made it mistake in not imposing [on the employees] the Company's views in this
situation." Clark told him, "Maybe so, but there is nothing you can do about
it now."
But once the results of the January 19 election became known and the date
of the run-off election was set, the respondent promptly decided to embark upon
an "aggressive" campaign in opposition to the CIO, and, correlatively, in support
of the Association, the only other choice on the ballot. The decision was made
at a conference of company officials, held in Olean immediately after Moody had
Moody's testimony on this point was as follows :
Q These reports that you got from supervisors did they include any information as
to who was active?
A. No, they did not There might have been-I would not say there might not have
been some report at one time or another, the nature of which would have been that, such
a man is quite interested in the CIO and that he is spending a lot of time during work-
ing hours trying to organize ; we did get reports of that character-
* Moody served as labor relations director of the respondent in a consultive capacity and.
on a part-time basis . His principal position was that of industrial relations director of
Dresser Industries , Inc., the respondent 's parent corporation.
CLARK BROS. CO., INC. 817
returned from a meeting at the Regional Director's office in Buffalo where
arrangements had been made for the holding of the run-off election. In a chance
meeting with Peter J. Zanghi, CIO organizer, in a local hotel lobby on February 3,
1945, DIoody told Zanghi, according to latter's undenied and credited testimony,
"I don't mind telling you, Zanghi, we are going to go out to beat you We are
going to answer some of your vicious literature, and we are going to retaliate
in so far as your organization is concerned. We are satisfied with the Asso-
ciation, and we are going to do everything in our power to get the UAW
[CIO] out of the plant"
D. The respondent's anti-CIO campaign,
The respondent's intention to participate in the election campaign was first
announced to its employees on or about February 3, 1945 The respondent, in a
letter signed by President Clark, after expressing its "deep interest" in the forth-
coming run-off election and its desire that all employees vote, stated that its
attitude was that the employees had a right to choose their bargaining agent,
but that it desired "to make certain that all the facts and the record are put
before the men so that they might make an intelligent selection " For that reason
and because certain false charges implicating the respondent had been made,
wrote Clark, the respondent proposed to put before the employees "certain infor-
mation to give [then] the whole truth, untarnished by ulterior or selfish
motives."
The respondent concentrated its entire campaign in the short span of approxi-
mately 5 days which intervened between Clark's announcement letter and the
date of the run-off election. During that period the respondent (a) published and
distributed by mail to the eniploi ees' homes four separate issues of a special
publication entitled "The Facts and the Record" ; (b) inserted an advertisement
pertaining to the election in the local piess on 2 separate days; and (c) assembled
its employees during working hours on 2 separate occasions for the purpose of
having them hear addresses by J. B. O'Connor, its vice-president, and Clark, its
president. The respondent's printing, mailing, and advertising costs alone
amounted to over $000.
(1) "The Facts and the Record"
The publication, The Facts and the Record, was in the form of a five-column
tabloid size newspaper consisting of 1 or 2 pages. Its entire content was ad-
dressed to the election campaign The record does not disclose that the re-
spondent at any time previously had ever issued to its employees a publication
of any kind.
Only one of the approximately 30 columns of printed matter in the 4 issues of
The Facts and the Record was addressed specifically to charges made by the
CIO implicating the respondent's management. This column, characterizing the
charges as "vicious, vindictive and false," took up specifically and denied two
charges alleged to have been made by the CIO ; one, a charge that the Company
had some time ago taken advantage of a War Labor Board directive to grant wage
increases for the purpose of defeating the C10; the other, a charge (made in a
letter dated January 11, 1944, more than a year previously) that the respondent
had used "a few dirty tricks" and had written a coercive letter in order to intimi-
date employees in an election held in 1943. The column in question concluded
with this admonition :
Remember-no union ever made a job. It takes orders plus management-
employee cooperation and harmonious relationship to keep any business going
and growing. It would be a regrettable event if the harmonious relationship
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that has prevailed in the Clark plant over the years were severed by an'
organization making false and malicious accusations of company manage-
ment for their own selfish ends.
Principally, however, the several issues of The Facts and the Record were
devoted to articles, statements, editorials, and cartoons disparaging the purposes,
motives, and leadership of "outside" unions in general and the CIO in particular ;
suggesting that strikes and resultant economic loss could be expected as a
natural and probable consequence flowing from the advent of an "outside"- union
in the plant; emphasizing the economic detriment to employees through dues and
assessments levied by "outside" unions ; discrediting the CIO campaign state-
ments and promises concerning wages and working conditions; indicating that
the CIO could obtain for employees no benefits or advantages which they did not
already enjoy or which the respondent, in accordance with its established princi-
ples, would not otherwise be prepared to offer them ; and implying that the
injection of an "outside" union was almost certainly bound to create disruption
in management-labor relations, interference with plant operations, loss of busi-
ness, and consequent impairment of job security. Following are examples of the
manner in which some of these subjects were presented :
The first issue of The Facts and the Record reproduced a full page of news-
paper clippings about strikes called in other plants by outside unions, together
with an insert, bearing the caption "Let's NOT Add Clark To This List", which
read :
With big noise and much ado the UAW-CIO is attempting to add Cl.irk
Brothers to a long list of companies who have sul'tered their attentions.
Scanning the list President Paul Clark said, "Each Clark employee is
free to cast his ballot in-the coming election strictly according to the dictates
of his own conscience."
And, then. taking a paper from his desk, he remarked, "So far during this
war, no Clark employee has lost a single day's work because of a strike. I
hope, however, with all my heart, that Clark men and women will never add
Clark Brothers to THIS list.
Subsequent issues repeated the theme that organization by outside unions led
to strikes, and strikes to disruption of production, loss of orders, and idleness.
Another issue was featured by a cartoon depicting a racketeer, labeled "outside
unions," standing at the entrance of a toll bridge leading to the plant, marked
"maintenance of membership" and "closed shop," and engaging in exacting tribute
in the form of dues from unwilling workers as a condition to their right to work.
The racketeer was saying to the employees, "Kick in chums." Still another issue
had a lead article entitled "Unions Violate `No Strike' Pledge But keep Main-
tenance of Membership Prize," which purported to describe maintenance of mem-
bership contracts, making it appear that all employees under such a contract
would be required to pay dues as a condition of work, and which painted a picture
of substantial assessments, in addition to dues, which would be checked off from
an employee's wages for political as well as union purposes. The article added :
After an election is won and negotiations start on a contract, the first thing
the international officers asic is maintenance of membership.
The unions appear to have an unwritten rule that they get the mainte-
nance FIRST. The remainder of the issues such as working conditions,
hours, wages and vacations come later, if at all.
The professional union leaders protect their own position first, to be sure
of a supply of dues money every month s
5 Emphasis as in text.
CLARK BROS. CO., INC. 819
No effort was made in the publications to conceal the respondent 's hostility and
opposition to the CIO . Thus, in an article entitled "Why Does Clark Oppose
Outside Unions ? Worker Asks ," Clark was quote as saying,
We would be less than truthful unless we, tated frankly our opinion that
the injection of outside professional unionism into the affairs of this plant
would cause interference with plant operation , introduce a discordant note
into postwar plans and do nothing to make a better job for anyone.
Further, it was clearly implied that an employee 's advocacy of the CIO would
be construed by management not only as antagonistic to the interests of the re-
spondent but as un -American and a reflection upon the employee's intelligence.
In an editorial , entitled "Clark ' s Creed," appearing in bold face type, the follow-
ing observations were made:
We believe it is our duty to work for more production and to build a finer
business , which is the only way to create better jobs, higher pay, greater job
security.
We believe that to obtain these objectives it is necessary to have, under-
standing, harmony, decency and teamwork between worker and management.
We believe that it is not only our right but our duty to resist with all
our power any effort by outside forces to drive a wedge between labor and
management.
We believe in the American worker and think that he represents the
highest type of honest -to-God American, and has a head full of common sense
and that he will make the proper decision when he has all the facts and
knows the truth.
At two points in The Facts and the Record , reference was made to the right
and privilege of employees to choose their own representatives . But in each
instance these statements were joined in context with other observations clearly
reflecting the respondent ' s marked opposition to that course
The Association was not specifically mentioned by name in any of the articles.
Frequent reference was made, however , to the harmony , fellowship , and mutual
trust which had prevailed in labor-management relations in the past and a
desire was expressed for its continuance . Of the two choices on the ballot, only
the CIO was made the object of the respondent 's attack, and the employees were
strongly urged not to fail to vote. The respondent 's choice was thus made
unmistakably clear.
(2) The advertisements
In a newspaper advertisement inserted in the Olean Vines Herald on Feb-
ruary 5 and 6, 1945, the respondent publicly declared its opposition and hostility
toward the CIO and in effect appealed for community support in the campaign
which it was waging against the CIO. ,
The advertisement accused "outside organizers" of misleading employees into
believing that they were underpaid and underprivileged, of making "promises
they cannot keep under the law" and of contending that "the progress the
Company has made under peaceful harmonious conditions is a bad thing for
men and women in the Clark organization who are your friends and neighbors."
It then stated :
Clark Brothers has no intent to suggest that its employees do not enjoy
the unhampered right to select the bargaining agent of their choice but we
do object to misleading and untruthful propaganda by self-serving pro-
fessional organizers.
6 One such instance is quoted above in conjunction with Clark ' s comments concerning
the strike clippings
712344-47-vol. 70-53
820 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
After pointing to the fact that the respondent had been a member of the Olean
community for a long number of years and enjoyed a good reputation in the
community , the advertisement referred to "the far reaching plans Clark Bros.
has instituted for providing postwar work for all of its people and for others in
the local area", emphasized the absence of labor disturbances and the wartime
production record at its plant and concluded by stating-
We know the citizens of Olean have a pride and interest in one of their
neighbor groups with this record behind it and do not take lightly unsub-
stantiated charges by self seeking organizers that will hinder the continu-
ance of the progress that has already been made
We bring this message to the people of Olean so they will have full knowl-
edge of the reason why the Company is opposing outside pressure groups
whose salesmen seek to impose their organization on our employees through
misrepresentation.
(3) The speeches
As noted above, both Vice President O'Connor and President Clark, as part
of the respondent 's counter-campaign , addressed the employees on the subject
of the election. O'Connor's speech was made a day or two preceding the election.
Clark's speech was made on the very day of the election, to the day shift within
an hour of the time that the employees were to go to the polls.' The speeches were
made on company premises during regular working hours, the employees being
directed by announcement over the public address system, and in some instanc'.s
by their foremen as well, to assemble on the shipping floor for the express purpose
of listening to the speeches. The employees were paid for the time devoted by
them in attendance at the speeches. While the speeches were being delivered,
all manufacturing operations were suspended and the power and engines were
shut down.' The speeches were also broadcast over the public address system
which was audible throughout the plant On occasions in the past, the em-
ployees had been addressed in the plant on such matters as the Community Chest,
the Red Cross and bond drives, but the addresses on such occasions had always
been made during the regular lunch hour when employees were free to leave the
plant.9
Copies of the two speeches were printed and distributed to the employees.
O'Connor's speech was mailed to their homes Clark's speech, made on the day
of the election, was distributed during regular working hours that morning to
employees by their foremen on the plant floor.
O'Connor and Clark in thew speeches, copies of which are hereto attached as
Appendix A and Appendix B, respectively, again expressed the respondent's
opposition to the CIO, and, for the first time, made explicit reference to the
Association of which they spoke in terms of favor Among other things, the
speeches adverted to the cooperative and peaceful relationship which had existed
between "within the plant employee representation" and the respondent, and at-
tributed to that "healthy relationship" the growth and prosperity of the business.
At the same time, the speakers played on the employees' fear of job insecurity
by further reference to the ideas to which the minds of the employees had already
been conditioned through the respondent's barrage of campaign literature, making
it appear that the advent of an outside union would lead to an impairment of
management-labor relations, on which it was stated the respondent's continued
T O'Connor and Clank each delivered suhstantiall } the same speeches to both the night
and the day shifts.
I The record shoes that it was extaordinary to shut down the engines which were kept
in operation even din ing the regular lunch hour when the men were not at work
B Although employees ale paid for then lunch periods, the lunch period is not regarded
as part of the regular woi king hours.
CLARK BROS. CO., INC. 821
success and employees' job security were dependent The employees were warned
that increases in the respondent's labor costs would impair its competitive posi-
tion in the market, leading to loss of business and jobs They were, in effect,
cautioned that although representation by an outside union would prove costly
to them, they could not reasonably expect to gain anything in return. The CIO
was disparaged expressly or by clear implication as being untruthful, self-seeking,
insincere, and not interested in the welfare of the employees but only in dues.
Throughout the speeches, as in the earlier literature, the respondent, in effect,
identified itself with the Association as a candidate and distorted the election
issue as a contest between the respondent and the CIO for the allegiance of the
employees. Although expressly stating what the law requires, that there would
be no discrimination or retaliation against employees because they favored any
organization, the general tenor of the speeches, as well as the preceding literature,
was such as to make it clear that the respondent considered an employee's support
of the CIO not only as opposed to the interests of the Company, but as a serious
reflection on the sound judgment and good sense of the employee as well The
employees were urged to vote, and it was expressly recommended that they vote
against the CIO
E. The results of the ran-off election
The run-off election resulted in a decisive victory for the Association : Five
hundred and eighty-five votes were cast for the Association, 394 for the CIO,
and 14 votes were challenged. Contrasted to the January 19 election in which
the Association received but 4 more votes than the CIO, the difference between
the Association and the CIO vote in the second election was 131 Although 53
more employees ^ oted in the second election, the CIO in that election received
50 votes less than in the earlier one.
F The purpose and intent of the respondent's campaign
In the announcement of its campaign, the respondent, as noted, disclaimed any
"ulterior or selfish motives" and professed that its object was to answer certain
"false" charges implicating the management and to aid its employees in making
an intelligent selection. It is relevant to determine whether the facts and the
record in this case support the validity of these assertions
It was the testimony of Clark that the respondent was motivated to inject
itself into the campaign because of what it considered to be unfair statements
made by the CIO. But Moody, who recommended the campaign and was the
architect of its design, conceded while testifying that the decision to engage in
the campaign was substantially motivated as well by information received by
him that the CIO had a good chance of winning the election. It was the respond-
ent's determination, further testified Moody, not to confine itself with "definite
certainty to the answering of exact charges in all cases" but "to conduct an
aggressive campaign against the CIO." Clark in his testimony admitted that he
was "thoroughly opposed" to the organization of the respondent's employees
into an outside union. And there is testimony of Moody to the effect that this
general opposition to outside unions was considered and contributed to the
respondent's determination to conduct an "aggressive" campaign. Moody's com-
ments to Zanghi, quoted above, concerning the object of the campaign reveal that
additionally contributing factors in the determination were the respondent's
satisfaction with the Association as a bargaining agent and its desire to insure
the defeat of the CIO.
An analysis and comparison of the campaign material issued by the CIO and
that issued by the respondent shows, as Moody freely admitted, that the respond-
ent in its campaign went far beyond the limits of answering the CIO statements
0
822 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
and campaign promises. Although Moody at the hearing pointed to a number of
items in the CIO campaign literature which he claimed were untrue or mislead-
ing, he admitted that the respondent's literature and speeches left unanswered
the greater portion of these. Significantly, the alleged false and misleading
statements to which Moody pointed had been made and repeated for many months
prior to the respondent's decision to enter the campaign, some, which Moody con-
sidered most damaging to the respondent, as much as a year before; yet the
respondent made no effort to answer them until the eve of the run-off election,
after the CIO strength had been disclosed in the original election and it had
become obvious that the CIO chances for success were no longer remote. Signifi-
cantly also, the respondent did not see fit to answer campaign statements made
by the Association with respect to which, Clark and Moody both testified, the
respondent had also taken exception to
%The foregoing circumstances, coupled with the form, character, and general
content of the respondent's campaign literature, particularly The Facts and
the Record as well as the volume and timing of the literature and speeches,
impel the conclusion that, notwithstanding the contrary testimony of Clark and
Moody, which is not credited, the respondent was not in fact motivated to engage
in its anti-CIO campaign for the reasons expressed in its announcement letter.
Rather, the undersigned is convinced, and finds on the basis of the entire record,
that the respondent's pre-election campaign, described above, was intended, cal-
culated, and designed solely for the purpose of insuring the defeat of the CIO
ii., its election contest with the Association.
G. Testimony as to effect of the respondent ' s campaign upon self -organization
of its employees
A number of employee witnesses called by the Board testified, in substance,
that because of-the respondent's marked hostility and opposition to the CIO,
as reflected by the content, volume, and intensity of the respondent's literature
and speeches, they were left with the impression that their job security would
be endangered or their promotional and job opportunities limited if they con-
tinued openly to support the CIO, and this notwithstanding expressions by the
respondent to the contrary.13 At least one of these employees, Dominic Panado,
as appears from his credited testimony, actually ceased all union activities and
attendance at meetings because he was "scared" of his job as a direct conse-
quence of the respondent's campaign." Panado and two other employee wit-
nesses for the Board testified that the literature mailed to their homes was read
by members of their families who expressed the fear that their identification
with a union to which their employer was opposed might endanger their job
security, and who therefore urged them in the interests of family welfare to
abandon their open CIO support. Employee witnesses for the Board further
testified that immediately following the commencement of the respondent's cam-
paign many of their fellow employees became unreceptive to and shied away
0
10 See Matter of Precision Scientific Company, 53 N. L. R. B. 560.
11 One of the Board witnesses, Joseph Scutella, explained his reaction as follows :
Well, I thought I was no friend of the boss when he was fighting against the CIO.
I figures when you monkey around with the boss you are no friend of his any more
when you cross him up.
lz Another witness, George Smith, likewise testified that he discontinued his union activ-
ities altogether ; however, it appears from his over-all testimony that the proximate cause
of his action was not the company campaign but what he considered to be job discrimina-
tion on account of his CIO activities, an issue neither pleaded nor litigated. The remain-
ing witnesses who testified on this point, all active union members, admitted that despite
their fears, they continued their union activity.
CLARK BROS . CO., INC. 823
from the CIO and expressed themselves as being fearful of engaging in or con-
tinuing activity on behalf of the CIO . The testimony of these witnesses is to
be considered in conjunction with that of President Clark who testified that
he considered employees engaged in organizational work for outside unions as
being engaged in activities opposed to the interests of the company and the plant
as a whole . Clark further testified on the basis of his experience as an employer
and as an employee , that an employee protects his job and secures advancement
by being well thought of by his employer ; that an employee who engages in
union activity on behalf of an organization considered by his employer to be
detrimental to the employer 's interest and that of fellow employees does not
enhance his popularity or reputation with the employer ; and that, other things
being equal, it would be a natural inclination for management to select first for
lay-off the employee who has engaged in activities considered by the employer
to be detrimental to the interests of the plant . The testimony of these witnesses
is also to be considered in the light of the economic realities of the employer-
employee relationship frequently recognized by the Board and the Courts."
So considered , this testimony with respect to the fears engendered in them and
in their fellow employees by the respondent 's campaign and the retarding effect
of that campaign on CIO organizational activities cannot be said to be unrea-
sonable . And since the Board ' s witnesses themselves impressed the undersigned
as truthful , their testimony as above outlined is credited and accepted as fact"
H. The respondent 's rule against solicitation ; its interpretation and application
Since on or before June 26, 1943 , the respondent has had a plant rule, known
as Shop Rule 6, which reads :
No collecting , soliciting , selling, or visiting is permitted unless proper
authorization is received.
Although not specifically expressed in the written rule itself , it appears from
the testimony of President Clark and Industrial Relations Manager Moody, that
union solicitation activities are deemed embraced within the scope of this rule.
Concerning the purpose and necessity for this rule , Moody testified as follows
(and this is the only testimony on that point in the record) :
At one time we had a problem with the distribution of lottery tickets in
the plant . We were trying to guard against that . We were likewise putting
everyone on notice with respect to the distribution of union literature in
the plant and the distribution of anything else in the plant or the soliciting
of contributions or anything else without company sponsorship . That was
the real purpose of the rule.
38 See footnote 23, infra.
"In arriving at this determination , the undersigned has taken into account the testi-
mony of the several witnesses called by the respondent to testify concerning their reaction
to the campaign. One, Paul Nickel , secretary-treasurer of the Association , testified gen-
erally that the employees felt free to express their choice because of the secret ballot, but
was neither questioned nor did he testify concerning the equally important consideration as
to whether or not employees felt restrained from engaging openly in union activities. An-
other Association official , Arthur Forney , testified ( unreasonably ) that he understood that
the respondent was merely proclaiming its neutrality and that he did not know what union
it favored . A third witness , Walter Remman , testified that be was impressed primarily
by the fact that the respondent wanted all emplo' ees to vote , he admitted , however, that
at the time he was not interested in either union and did not pay much attention to the
campaign , and, further , that as an employee he would not do anything ( such as passing
out literature ) to which his employer might be opposed . The fourth , Kearnon C. Lane,
testified merely that he was impressed mainly by the fact that the respondent wanted its
employees to vote, that he did not care much for either union, that nevertheless he voted
in the run -off election ( where there was no "neither " choice ), although he did not vote in
the first election.
824 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner LEFF: Did you desire to accomplish any object from the
point of view of plant efficiency or something of that kind?
The WITNESS : In a way, we were trying to prohibit the wasting of time
by individuals in distributing various things or undertaking to take up
collections of one kind or another, things of that sort, some of which had
taken place prior to the issuance of this-as I say, we had a little trouble
with raffles of or lottery tickets or something of that sort. I was never
exactly certain of their exact nature. I could not get my hands on it, but
the story came to me that there was some kind of raffle or lottery going on
in the plant.
As noted above, the respondent, on the day of the run-off election, distributed
to its employees on plant property during working hours printed copies of Clark's
speech. The Association was freely permitted, except during the period imme-
diately preceding the election (the period beginning on the posting date of the
notice of election), to distribute inside the plant copies of its official monthly
publication, The Union Bulletin.16 Although distribution of The Union Bulletin
was apparently made during nonworking hours, Shop Rule 6, according to Moody,
prohibited the distribution of union literature in the plant at any time. The
rule was actually so construed and applied in the case of Sam Alaimo under the
circumstances narrated' below.
Several weeks after the run-off election, employee Sam Alaimo entered the
plant about 12 minutes before the start of the regular work day at 7 a. in.
Between 6: 48 a. m. and 7 a. in, according to his credited testimony, he distributed
inside the plant copies of a CIO leaflet announcing that the election held on
February 8, 1945, had been set aside by the "National Labor Relations Board" : 16
he continued distributing the literature until the whistle blew at 7 a. in. at which
time he immediately went to his station, of work. Alaimo was observed by Paul
Nickel, secretary-treasurer of the Association, who complained to the personnel
office that Alaimo was passing out literature in the shop. Later that morning,
Alaimo was summoned to the personnel office where, in the presence of the plant
superintendent and the assistant foundry superintendent, he was reprimanded
by Personnel Director Cases for his conduct in passing out the CIO leaflets and
was told that this was a violation of Shop Rule 6. Despite Alaimo's protestations
that he had distributed the leaflets on his own time and that Association publica-
tions as well as Clark's speech were permitted to be distributed in the plant,
Alaimo was given a written warning slip charging him with violation of Shop
Rule 6 and warning him that a repetition of that or other violations would lead to
his suspension"
I. Conclusions
The record establishes, and the undersigned finds, that the respondent injected
itself into the run-off election contest, the object of which was to determine what
11 The contract between the respondent and the Association makes no provision for such
distribution.
16 The election was in fact set aside by the Board's Regional Director who was acting
pursuant to authority vested in him under the consent election agreement.
17 Except as otherwise noted, the facts set forth in this paragraph are based upon the
undisputed and credited testimony of Alaimo. Although Nickel at one point in his testi-
mony testified that Alaimo's distribution activities occurred after 7 a. in. his testimony in
this respect was vacillating, at another point he testified that it was "before seven," and
at a third point that it was "close to seven " Moreover, Nickel admitted that when he
complained to Cases , he said nothing about Alaimo 's distribution being on company time,
that he "did not give a damn about that," and that the only thing [he] was complaining
about was the way the damned bulletin read " To the extent that Nickel's testimony
indicates that the distribution was after 7 a. m., it 'is not credited, and it is found in any
event that Alaimo was warned because he passed out union literature on company premises
rather than on company time.
CLARK BROS . CO., INC. 825
employee bargaining agent should sit with it at the bargaining table, and there-
after organized and conducted on the side of the Association an intensive and
admittedly agressive campaign in opposition to the CIO, for the purpose and with
the intent of insuring the defeat of the CIO and the selection of the Association,
the only alternative choice on the ballot's Had the respondent supplied the
Association with its mailing list, paid for advertisements inserted by the Asso-
ciation in the local press, and, while denying like privileges to the CIO, allowed
the Association the use of its time and property to conduct a campaign against
the CIO, clearly its conduct would have been regarded as constituting illegal
support and assistance to the Association and an interference with the self-
organizational rights of employees guaranteed by the Act.'9 The question here is
ii hether the respondent's course of conduct was any the less illegal because the
respondent itself conducted that campaign against the CIO.
The respondent, standing on its constitutional right of free speech, asserts that
as an employer it had a privilege equal to that of employees, to express its views
concerning the choice by its employees of their bargaining representative and that
since its campaign utterances contained on their face no explicit threats of dis-
crimination or economic reprisal its'conduct was not violative of the Act
It is unquestionably true that an employer in the exercise of the freedom of
speech protected by the First Amendment is privileged to entertain and express
his opinion on labor policies and problems 20 But this privilege is not an absolute
one It does not guarantee him who speaks immunity from responsibilities for
the intended or reasonably foreseeable consequences of his utterances insofar as
they may restrain or impair the rights of others.21 Where the utterances them-
selves, viewed against the background of the employer's total activities, take on
the character of coercion, or where, in conjunction with the speech, the employer
otherwise makes use of his economic power over his employees to influence their
action, the employer exceeds the protected limits of the right of free speech 22 It
thus becomes necessary in the instant case to determine, first, whether the re-
spondent's campaign statements considered in context with its entire course of
conduct assumed a coercive character, and, secondly (but not conditioned on
the determination made with respect to the first point), whether the respondent
(lid more than speak in its effort to defeat the CIO
In evaluating what the respondent said and did, it must be remembered pri-
marily that it is the normal effect (proven by direct evidence or reasonably
is Since, as has been found above, the respondent's real purpose was not, as professed in
Its campaign, to answer campaign utterances of the CIO, it is not necessary to decide in
the instant case whether, by what means, or to what extent the respondent was justified
In correcting any misstatements of fact which the CIO may have made.
19 International Association of Machinists v. N. L. R. B., 311 U. S 72, 78 • "Known hos-
tility to one union and clear discrimination against it may indeed make seemingly trivial
intimations of preference for another union powerful assistance for it." It has been held
that the very existence of a labor organization which the employees suppose to be favored
by the employer deprives them of the full freedom of choice 'which the Act demands.
Westinghouse Electric & Mfg. Co v. N L. R B, 112 F. (2d) 657 (C C A 2) aff'd 312 U. S
660, N L R B v. Waterman Steamship Corporation, 309 U S 206; N L. R B. v. Southern
Bell Telephone and Telegraph Company, 319 U S 50
2O N L R B v. Virginia Electric & Power Co , 314 U S 469, 477 , Thomas v Collins,
32:3 U S 516
21N L R B v New Eta Die Co . 118 F (2d) 500, 505 (C. C. A. 3) ; N. L R. B V.
M S Blatt Co, 143 F (2d) 268, 274 (C C A 3), cert den 323 U S. 774
2' N. L. R. B. v. Virginia Electric cf Power Co., supra; Thomas v. Collins, supra. Mr.
Justice Douglas in his concurring-opinion in the Thomas case (in which Mr. Justice Black
and Mr. Justice Murphy joined) said:
No one may be required to obtain a license in order to speak But once he uses the
economic power which he has over other men and their jobs to influence their action,
lie is doing more than exercising the freedom of speech protreted by the First
Amendment.
826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
presumed) on employees which is the point of inquiry. Further, whether the
words or conduct of an employer constitute interference, restraint, or coercion
within the meaning of the Act must be judged not as an abstract proposition,
but realistically in the light of the economic relationship between the employer
and his employees. It need hardly be stressed that their economic dependence
renders employees unduly responsive to the suggestions of their employer, whose
good will is so necessary, and gives to the employer's statements, whether or not
ostensibly couched as argument or advice, an immediate and compelling effect
that they would not possess if they were addressed to economic equals. "What
to an outsider will be no more than the vigorous presentation of a conviction, to
an employee may be a manifestation of a determination which it is not safe to
thwart." Si And, therefore, under certain circumstances, even "slight sugges-
tions as to the employer's choice between unions may have a telling effect upon
men who know the consequences of incurring that employer' s strong dis-
pleasure." 24
That is not to say that any show of bias or departure from neutrality is suf-
cient to amount to coercion. Much depends on the surrounding circumstances.
Where the circumstances disclose that the statements made by the employer are
designed not merely to persuade to action but form part of a course of conduct
which is deliberately calculated to and has the effect of restraining or coercing
employees in their free choice, then "pressure exerted vocally by the employer
may no more be disregarded than pressure exerted in other ways " n And in
determining whether a course of conduct attains the stature of restraint or
coercion, the manner and degree (measured both in terms of quality and quantity)
in which the employer departs from neutrality and manifests his opposition to a
union are relevant considerations. Thus, standing alone and in the absence of
other evidence, the presentation of an argument, temperate in form and con-
taining no intimations of reprisal, such as appeared in the American Tube Bend-
ing case, may not support an inference of coercion sufficient to outweigh the
employer's right of free expression." But the situation is quite different where,
as here, it is'clear that the employer's purpose is not merely to express its views,
but rather to engage in an organized, intensive, and aggressive campaign forming
part of a general "course of conduct ... aimed at achieving objectives- forbidden
by the Act." 27 For, to employees, conscious of the necessity of maintaining
23N. L R. B. v. Federbush Co, Inc, 121 F. (2d) 954, 957 (O C A. 2). See also
N. L. R. B. v. Griswold Mfg. Co., 106 F. (2d) 713, 722 (C. C. A. 3) ; N. L. R. B. v. Falk
Corp, 102 F. (2d) 383, 389, (C. C. A. 7), aff'd 308 U. S. 453; N. L. R. B. v. M E. Blatt
Co., 143 F. (2d) 268, 273 (C. C. A. 3) ; N. L. R. B. v. Link-Belt Company, 311 U. S. 584,
600 N
24 N. L. R. B v. Virginia Electric & Power Co., supra, quoting with approval Interna-
tional Association of Machinists v N. L. R B , supra.
25 N L. R. B v. Virginia Electric & Power Co., supra.
26 N. L R. B. v. American Tube Bending Co., 134 F. (2d) 993 (C. C. A. 2), cert. den.
320 U. S. 768. Cf N L R B. v M. E. Blatt Co., supra.
27 See N. L. it. B v. Virginia Electric & Power Co , supra, at 479 ; Matter of Tomlinson
of High Point, Inc., 58 N. L. R. B 982; Matter of Agar Packing & Provision Corporation,
58 N' L R B. 738; cf J. L Brandeis & Sons, 53 N. L. R. B. 352, rev'd 142 F. (2d) 977
(C. C A. 8). The following court decisions indicate the validity of this proposition:
Schweitzer v. N. L. R. B., 144 F. (2d) 520 (App D. C ) "We do not hold this [the em-
ployer's right to comment] justifies an organized campaign or a protracted distribution
of propaganda " Reliance Mfg. Co. v N L R. B, 125 F. (2d) 311 (C C A. 7) "While
management may have a right under some circumstances to express its opinion'as to a
union or its preference between unions, such right certainly does not extend to the point
where it becomes a participant in a contest to which it is not a party." International
Association of Machinists v. N. L R. B , supra, at 78. "The freedom of activity permitted
one group and the close surveillance gn en another may be more powerful support for the
CLARK BROS . CO., INC. 827
their employer's good will, an employer's aggressive participation in a campaign
against a union, particularly where, as here, it reflects an uncompromising atti-
tude of hostility toward one union and favor for the other, more than a "vigorous
presentation of a conviction," becomes "a manifestation of a determination which
it is not safe to thwart."
In the instant case, the form, content, volume, and concentration of the respond-
ent's campaign propaganda, which was directed not only to the employees but to
their families and the community as well, make it clear that the respondent's
campaign was designed to go beyond mere persuasion and to achieve a restrain-
ing and 'coercive effect upon its employees' free expression of their organizational
will. It is true that the respondent carefully avoided any explicit threats, largely
by the device of placing the onus upon the CIO for any consequences that might
follow their employees' selection of that organization. But the respondent
achieved substantially the same effect in playing on its employees' fears of job
insecurity by making it appear that the advent of the CIO would almost inevit-
ably lead to disruption of harmonious management-labor relations, to resultant
strikes and loss of production, business , and jobs, and to an impairment of-the
respondent's competitive position in the market 1a The impact of this type of
propaganda must be assessed, as it is here, in the setting of the locale in which
it was presented :-a relatively small community, with limited job opportunities,
in which the respondent was the chief employer of labor, and a community which
had already witnessed the virtual shut-down of the shops of a leading employer
as a result of labor trouble. Moreover, the respondent did more than exploit its
influential employer position to support and assist the Association by its state-
ments disparaging and discrediting the CIO, and the purposes, motives, and cam-
paign promises of that organization ; by its emphasis and distortion of the
negative aspects of CIO membership such as employee liability for dues and assess-
ments ; and by its assurances that employees could expect from CIO representa-
tion no benefits or advantages which they did not already possess or would not
otherwise obtain from the respondent. The expression of these views, con-
sidered in the setting of the respondent's undisguised offensive against the CIO,
and coupled with the respondent's repeated emphasis that the CIO was an-
tagonistic to its interests, as well as with its intimations that American workers
of sound sense could not support the CIO, were such as could not but serve to
inspire in employees the fear that their open identification with the Union which
the respondent opposed would cause the respondent to regard them as disloyal
and unfit, would incur the respondent's "strong displeasure," and would impair
their potentialities for advancement and security in the plant.
That the respondent's propaganda had its intended coercive effect is apparent
from the credited testimony, reported above, of employee witnesses on that point.
Although it is not necessary to establish by direct evidence that the respondent's
campaign had an actual coercive effect, the presence of this proof nevertheless
confirms and fortifies the conclusion, which the record here justifies even inde-
pendently thereof, that the respondent's campaign did in fact restrain and coerce
the respondent's employees in their exercise of the right of self-organization.
formes than campaign ut,4erances" (Emphasis supplied ) See also N L R. B. V. Trojan
Powder Co, 135 F (2d) 337 (C. C A 3), cert den 320 U S 768, where the court upheld
the Board's cease and desist order based largely upon a "barrage" of letters to the em-
ployees, which the court found contained no explicit threat.
Is The Board has recently declared that an employer' s fear of loss of business result-
ing from the unionization of his employees, although genuine, does not justify him in
warning his employees that the security of their employment would be impaired by their
continued support of the union. See Matter of A. J. Showalter Company, 64 N. L. R. B.
573.
'828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The coercive character and effect of the respondent's campaign statements, as
well as the respondent's conduct as a whole, were not neutralized by the state-
ments interspersed in some of its literature and in the speeches that employees
were free to vote as they chose and that there would be no discrimination These
statements were fused with and colored by the general mass of the respondent's
statements, the predominant tenor of which was to reflect the respondent's de-
termined opposition to the CIO .' The vehemence of the respondent 's opposition
to "outside unions," as evidenced particularly by The Facts and the Record, and
the intensity, volume, and tinung of the respondent's campaign were such as to
render suspect in the eyes of the employees the sincerity of the respondent's asser-
tions that it would refrain from discrimination 30 Nor did the fact that the
balloting at the election was secret obliterate the restraining effect of the
respondent's campaign ; for the right of the employees, without fear of retaliation,
to expose themselves in an open campaign for the Union of their choice was as
important to the success of their candidate and to their own exercise of the right
of self-organization as was their right to vote a free ballot.
.But the finding of interference, restraint, and coercion made in this case need
not and does not rest alone upon what the respondent said in its literature and
speeches ; nor is it necessarily dependent upon the finding of restraint and coer-
cion made with respect to the statements standing alone. It is based as well
upon what the respondent did in conjunction with what it said and as part of its
total course of conduct ; upon the use made by the respondent of its economic
power over its employees in its general effort to influence and interfere with
their free action. And clearly, what the respondent did, as distinguished from
what it said was not protected by its constitutional privilege of free speech, even
if it be assumed that the utterances , standing alone, were non-coercive . What the
respondent did will now be considered.
As elsewhere found herein, the respondent during the period in question had a
plant rule (the validity of which will be hereinafter considered) under which,
as the rule was interpreted and applied, the CIO was barred from using company
time or property to solicit members, to distribute its campaign literature, or
otherwise to engage in its union activities. On the other hand, and notwith-
standing the rule, the respondent , by making speeches and by distributing copies
of one of these speeches during working hours, utilized the same time and
property, which it denied to the CIO, to conduct, in part, its campaign against
the CIO and on behalf of the Association. Moreover, the respondent took ad-
vantage of its economic control over its employees to compel its employees, who
could not with impunity disregard the direction of their employer during work-
ing time, to assemble and to give heed to its campaign arguments , consisting in
effect of anti -CIO solicitation. It implemented its managerial authority by paying
29 This is illustrated by the testimony of one employee witness. Sam Alaimo , who, asked
to explain his testimony that Clark "did not mean it" when Clark said there would be no
discrimination, testified :
Why do I say he don ' t mean it? Last word he say, "You don ' t need outside union
When he got through speak , put the words all together That is what he mean
See N. L. R . B. v Federbush , supra : "Words are not pebbles in alien juxtaposition , they
have only a communal existence , and not only does the meamn°g of each impenetrate the
other, but all in their aggregate take their purport from the setting in which they are used,
of which the relation between the speaker and the hearer is perhaps the most important
part"
30 In N L. R B . v Virginia Elects is if Power Co , supra , the Supreme Court recognized
that the purport of utterances setting "forth the right of the employees to do as they
please without fear of retaliation by the Company" may "be altered by imponderable
subtleties at work." These subtleties are present here. See Matter of Agar Packing J
Provision Corporation , supra.
CLARK BROS. CO., INC. 829
its employees for the time spent by them in listening to these arguments. It
made use of a channel of communication, closed to the CIO and one where the
free competition of ideas envisaged by the First Amendment could not operate,
to campaign in opposition to the CIO and in support of the Association, without
affording the CIO an equal means to reach the employees to counter this cam-
paign. In short, the respondent disparately utilized not only its time and prop-
erty but its economic power and its control over its employees and their jobs
as well for the purpose of assisting, promoting, and supporting the Association
in its election contest with the CIO, thereby affording the Association a sub-
stantial tactical advantage.31
By compelling its employees to assemble on company time and property to
listen to its campaign speeches, the respondent did more than make an improper
use of its economic power over its employees to interfere with their free
choice of a bargaining agent. It also directly infringed upon a right of its
employees, as basic as the employer's right of free speech itself. The em-
ployees' right of self-organization is a "fundamental right," 33 which is not only
part, of the right of free speech but of free assembly as well83 The prohibition
by Congress against interference by employers with the selection of employee
representatives was based upon a recognition of that right, the safeguard of
which, protected by the First Amendment from governmental infringement, in
its application to employee self-organizational activities was made operative
by the Act upon employers as well 34 Just as the right of free speech includes
the right to refrain from speaking 35 so also does the right of free assembly
carry with it the right to refrain from assembling. It can scarcely be doubted,
for example, that a governmental decree requiring all citizens in a community
to assemble at a political rally would represent an abridgement of their right
of free assembly protected by the First Amendment. The corollary right of
employees to assemble freely (or to refuse to assemble) for self-organizational
purposes having by statutory recognition and implementation likewise been
safeguarded from employer interference, the action of the respondent in forcing
its employees to assemble and to give heed to its campaign speeches was no
less an abridgement of their right of free assembly. It is no answer to say
that the employees were then on company time and under company control
Title, under their contract of hire, the employees subjected themselves to the
control of the respondent during working hours, certainly with respect to all
incidents of the master-servant relationship, and possibly also with respect
to such matters as fund raising drives, which although not direct incidents
of that relationship are nevertheless not protected from employer interference
by statutory implementation of the fundamental right. But the employees'
right to self-organization is not an incident of the employment relationship
which the respondent could control, for Congress has specifically prohibited an
employer's interference with that right. Having in conjunction with its addresses
to the captive audience of its employees infringed upon employee rights of
31S(,e Matter of Thompson Products, Inc., 60 N L R B. 885 An employer's dis-
parate treatment of competing labor organizations in an election campaign has fre-
quently been held by the Board to constitute discriminatory and improper assistance and
interference by the employer with the exercise by the employees of their free choice of
baigainung representatives, See Matter of Joshua Heady Iron Works, 53 N L R B. 1411 ;
Matter of Croslep Corporation, 60 N L R B 623
si N L R B v Jones cC Laughlin Steel Corp , 301 U. S. 1, 33
Thomas v. Collins, supra
34 See N L R. B v Jones if Laughlin, supra, at pp 33-34; Hague v CIO, 307 U S.
496, 510
35 Board of Education v Barnette , 319 U. S . 624, 634, 645.
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
11
equal stature with its own right of free speech, the respondent cannot now
shield itself behind its constitutional privilege and claim immunity for its
conduct.
But even if it be considered that the mere conflict of competing rights on
the same level does not necessarily warrant the abridgement of the right of
him who precipitates the clash, but requires, rather, the balancing and accom-
modation of the competing rights, one to the other, the result reached is the
same. On this assumption it is necessary, in accordance with recognized prin-
ciples, to determine what in fact will be the prejudice to employees in allowing
the employer to address them on the subject of employee organization during
working hours and what will be the employees' benefit and the employer's preju-
dice in disallowing it. Obviously, if an employer is permitted to address compul-
sory employee audience,;, on the subject of employee organization it would give rise
to grave danger of irreparable damage to employees. For the employer alone has
assured access to all the employees, and exponents of a contrary view'(incltiding
employees who may not exercise their own right of free speech on this subject
during working hours), having no equal means of matching the employer's
advantage in this respect, are thus precluded from competing on equal terms
with him in the presentation of facts and argument. And this is particularly
true where, as here, the employees are addressed during working hours on
the day of the election and no fair opportunity is afforded others to counter
the employer's statements. On the other hand, the disallowance of such ad-
dresses during working hours entails relatively harmless prejudice to the em-
ployer's exercise of his right of free speech, for he still may avail himself
during non-working hours of the avenues of communication open to employees
and labor organizations. For, these reasons, it is found that the interest of
the employees to be free from employer compulsion under the circumstances
here considered outweigh the respondent's interest in its right of free speech.
There remain for consideration the allegations of the complaint relating to
the respondent's prohibition of union solicitation on the employees' own time
and relating to the respondent's surveillance of union activities, both to be
considered in connection with the respondent's total course of conduct.
The respondent's rule, known as Shop Rule 6, although making no specific
reference to union solicitation, is broad enough on its face to cover such solici-
tation, even on the employees' own time, and the record establishes that it was
in fact so interpreted and applied by the respondent. Moreover, the record
shows, and it is found, that the rule was discriminatorily applied by the re-
spondent. While enforcing this no-solicitation rule against the CIO by pro-
hibiting distribution of a CIO leaflet during non-working time, the respondent
engaged in anti-CIO solicitation during working hours and on company property
by distributing copies of O'Connor's speech ; 38 further, except during the period
immediately preceding the election, the respondent permitted the Association
to distribute its "Bulletin" on company property. Nothing in the rule or in
the record indicates that, at least insofar as it applied to union solicitation
activities on the employees' own time, the rule was either necessary or reason-
ably calculated to insure plant discipline or efficiency. It is found that the re-
spondent's no-solicitation rule is violative of the Act insofar as it prohibits union
solicitation by employees on company property during non-working hours '
This unlawful prohibition in the rule is a recognized impediment to self or-
ganization and, aside from its discriminatory application, handicapped the CIO
30 See Matter of Tomlinson of High Point, supra.
a, Matter of Republic Aviation Corporation , 51 N L. R . R. 1186 , enf'd 324 U. S. 793
(16 L. R. R. 300).
CLARK BROS. CO., INC. 831
which was trying to gain a foothold in the plant more than it did the Associa-
tion, the established and recognized bargaining agent. Thus, the very existence
of this rule as interpreted and applied had the necessary effect of impeding the
employees in the exercise of their right to transfer their allegiance from the
Association. The restraint was not cured iq this case by the qualification,
"unless proper authorization is received" ; on the contrary, so qualified, the
rule 'exercised a still greater restraining influence due to the natural reluctance
of employees to disclose to their employer their interest in a union. It is noted
that the rule contains no prohibition directed specifically to "distribution" of
literature, although "solicitation" was apparently interpreted by the respondent
to include "distribution." The undersigned finds it unnecessary in this case
to determine whether or not the respondent could validly promulgate a rule
prohibiting such distribution on company property covering even the employees'
own time ; it is obvious that in any event it would be required under the Act
to apply such a rule on a non-discriminatory basis.
The allegation of surveillance, added by amendment at the hearing, is based on
Moody's testimony, more fully adverted to above, that the respondent kept itself
informed on the CIO campaign by (a) reports from supervisors, statements of
employees, inquiries made about the plant, and statements of employees heard
in the plant, and (b) Moody's conduct in visiting bars frequented by employees
on a "couple" of occasions for the express purpose of overhearing conversations
bearing on the campaign. With respect to the first aspect of Moody's testimony,
concerning the information secured by the respondent in and about the plant,
the undersigned is not persuaded on the record as it stands that there is sufficient
to sustain the allegation of surveillance Although this aspect of Moody's
testimony tends to indicate a lack of proper recognition on the respondent's part
that union organization and activities are primarily matters of employee and
not employer concern, the record does not clearly establish that the reporting
supervisors obtained their information improperly, that the statements made by
the employees were encouraged by the respondent,'8 that the inquiries made were
directed to employees, or that the statements of employees.overheard in the plant
were such as would not normally have been overheard by the respondent's man-
agement employees without any attempt at surveillance. However, with respect
to the second aspect of Moody's testimony, concerning his visits to the bars, the
undersigned finds, particularly in view of Moody's express admission as to the
purpose of his visits, that Moody's conduct constituted surveillance by the
respondent of union activities and of the union activities of its employees. This
finding is not affected by the fact that Moody also testified that his object was not
to find out what employees were interested in the union but rather to learn what
was being said in the campaign. It is obvious that campaign statements of
employees cannot be divorced from organizational activities and that what em-
ployees say under such circumstances will reflect their attitude toward and even
membership in a union. The respondent's defense that there is no showing that
any of the employees had any knowledge that Moody overheard any of their
conversations, or that any employees were discriminated against as a result there-
of, is clearly without merit.' Moody's conduct was nonetheless an interference
with the employees' rights to self organization.
Upon, the record viewed as a whole, the undersigned is convinced and finds
that the acts and statements of the respondent outlined above, including the
respondent's campaign of literature, advertisements, and speeches, which opposed
the CIO and assisted, promoted, and contributed support to the Association ;
38 Cf. Matter of S H Camp and Company, 60 N. L. R. B 263.
0N. L. R. B. v. Grower Shipper Vegetable A88'n , 122 F. (2d) 368 (C. C. A. 9) ; Beth-
lehem Steel Co. v. N. L. R. B., 74 App. D. C. 52, 120 F. (2d) 641.
r
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the respondent's disparate use in conjunction with that campaign of its time
and property and of its economic power over its employees to give the Association
a tactical advantage over the CIO in the election contest ; the respondent's action
in compelling its employees to assemble at its plant during working hours and
to listen to speeches delivered by its officers on the subject of their selection of
a bargaining agent ; the respondent's use of a no-solicitation rule which prohibited
union activities during non-working hours and which, moreover, was discrimina-
torily applied ; the respondent's surveillance of the union activities of its em-
ployees ; and the totality of these activities, constituted a course of conduct
which the respondent intended should, and which in fact did, interfere with,
restrain, and coerce its employees in the exercise of the rights guaranteed in
Section 7 of the Act. It is further concluded and found that since-the respond-
ent's campaign statements were an integral part of the respondent's total course
of conduct, which interfered with, restrained, and coerced the employees in the
exercise of such rights, the statements were not privileged under the Constitution.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES 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
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act. It having been
found that the respondent's rule known as Shop Rule 6, insofar as it_prohibits
union solicitation by employees during their non-working hours, is violative
of the Act, it will be recommended that the respondent be ordered to rescind
immediately the rule to that extent.
Upon the basis of the foregoing findings of fact and upon the entire record
in the case the undersigned makes the following :
CONCLUSIONS OF LAw
1. United Automobile, Aircraft and Agricultural Implement Workers of Amer-
ica, C. I. 0., is a labor organization within the meaning of Section 2 (5) of the
Act.
2. By interfering with, restraining, and coercing its employees in the exercise
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.
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 recommends that the respondent, Clark Bros. Co. Inc., Olean, New York,
and its officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Engaging, in conjunction with any election contest held to designate
bargaining representatives for its employees, in any campaign for the purpose
CLARK BROS. CO., INC. 833
of interfering with, restraining, or coercing its employees in the exercise of
their right to select representatives of their own choosing.
(b) In any other manner interfering with, restraining or coercing its em-
ployees in the exercise of the right to self-organization, to form labor organiza-
tions, to join or assist United Automobile, Aircraft and Agricultural Implement
Workers of America, C. I. 0., or any other labor organization, to bargain col-
lectively through representatives of their own choosing, and to engage in con-
certed activities for the purpose of collective bargaining or other mutual aid
or protection as guaranteed in Section 7 of the Act.
2. Take the following affirmative action, which the undersigned finds will
effectuate the policies of the Act:
(a) Rescind immediately Shop Rule 6 insofar as it prohibits union solicitation
on-the employees' own time;
(b) Mail to each of its employees a copy of the notice attached hereto, marked
"Appendix C";
(c) Post at its plant at Olean, New York, copies of the notice attached hereto,
marked "Appendix C." Copies of said notice, to be furnished by the Regional
Director of the Third Region, shall, after being duly signed by the respondent's
representative, be posted by the respondent immediately upon receipt thereof, and
maintained by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily posted. Reason-
able steps shall be taken by the respondent to insure that said notices are not
altered, defaced, or covered by any other material ;
(d) Notify the Regional Dnector for the Third Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that unless on or before ten (1,0) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Director
in writing that it will comply with the foregoing recommendations, the National
Labor Relations Board issue an order requiring the respondent to take the action
aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective July 12, 1944,
any party or counsel for the Board may within fifteen (15) days from the date
of the entry of the order transferring the case to the Board, pursuant to Section
32 of Article II 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 proceeding (including rulings upon all motions or objections)
as is relied upon, together with the original and four copies of a brief in support
thereof. Immediately upon the filing of such statement of exceptions and/or
brief, 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.
As further provided in said Section 33, should any party desire permission to argue
orally before the Board, request therefor must be made in writing within ten (10)
days from the date of the order transferring the case to the Board.
ARTHUR LEFT,
Trial Evamener.
Dated November 15, 1945
APPENDIX A
Fellow Employees of Clark Bros.:
This meeting has been called in response to requests of a number of employees
asking that the Company make a statement regarding Thursday's election. I'm
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
glad to have the opportunity to talk to you. I should like to just stand here and
tell you all the thoughts that are going through my mind But our lawyer tells
us that we should not do that ; that the National Labor Relations Act limits us in
what we can say to you. So it has been necessary to write it all out to read to
you so that afterwards no one could claim that I had said something different.
In order that you may review what I have said and check any points in question,
an exact copy of this talk will be sent to your home address through the mails.
The main thing our lawyer objected to was that I might try to make you vote
one way or another. I told him that we just didn't operate that way and that
the employees knew it. We feel and we always have, that whether you folks
belong or don't belong to a church or a lodge or a union is just-plain none of our
business.
I do feel though, that, regardless of what anybody says, we've gotten along so
well together through all these troublesome years that I don't want you to get
some outsider in between us, unless after hearing everything I can honestly and
fairly tell you, you still feel that's necessary.
As you know, the National Labor Relations Board has directed that a run-off
election be held in the plant on February 8, 1945, to determine whether or not
you wish to make a change in your collective bargaining agent. In other words,
you as an employee of the Company, will have an opportunity to cast a vote
either in favor of, or against, the philosophy, policies and relationships under
which we have been working together for many years.
Because such an election is to be held, this talk is to briefly review the history
of the campaigns conducted and the attacks waged by professional organizers,in
the interest of International Unions and to explain to you our beliefs in the
matter. You may then vote as you please.
PRESENT CAMPAIGN FOLLOWS PATTERN
The present drive no doubt causes new employees both wonderment and un-
easiness. Those of you who are relatively newcomers have no way of knowing
whether or not all statements made are true or false, particularly when they
concern individuals or departments other than you or your own, or when they
attack people whom you have not had the opportunity to know and thus form your
own first hand judgment.
Older employees with the company say the current drive follows a well worn
groove They remember that since around 1941 there has been a constant stream
of propaganda thrust upon employees at the gates. They have heard whispering
campaigns before which have charged the company with unfair behavior toward
its employees. They have heard stories before that Clark workers can only get
what they deserve through representation by an outside organization.
The management of this company has striven with all of its energy and dili-
gence to establish good labor relations and a genuine feeling of friendliness
throughout the Clark plant. The management of the Company is in the hands
of men who have, for the most part, come up from the ranks They have worked
with you, and some of your fathers and grandfathers-over the-years in building
this Company to its present position of trust and public confidence They have
all spent' practically their entire business lives with the Company. They have
sought to pursue a policy of direct and decent dealings with all employees of
the Company.
We have attempted to provide a positive organization policy that provides
opportunity, advancement, recognition, appreciation and security And today
we have a clean shop where we all can work reasonable hours, in pleasant sur-
CLARK BROS. CO., INC. 835
roundings, and at rates of pay as high or higher than in any plant in this area.
These are facts. We do recognize that every man in the Clark organization has
hopes and ambitions of his own. We want our supervisory organization to
meet the wishes and desires of the people who are associated with the Company,
not as members of masses but as human individuals.
As the result of this healthy relationship, Clark employees have learned to get
along together and settle their differences with management through "within
the plant employee representation", organized and controlled by the employees
only. Without the control of professionals the principle has worked well and
the Company and its business have grown The wages and working conditions
of individuals have grown proportionately with the Company The Army-Navy
"E" flag with stars for countless achievements flies proudly over our plant. The
Company's war production record stands as a shining light against the back-
ground of endless strikes and work stoppages that have occurred in other plants
where outside organizers have been in charge.
Compare the employee-management cooperation that has made this record
possible to the war record of the organization which now seeks to take over the
Clark plant. It is stretching the truth pretty far to say that an organization
which, throughout this war period has had tens of thousands of men idle all
over America on strike, may claim that they can take the leadership of th6 Clark
plant and do a better war production job.
Attempts have been made over a long period of time to convince you that you
should turn your affairs over to outsiders If you wish to do so it is your right
and privilege. The Clark management will respect your decision but the man-
agement of this Company believes we can best promote and establish good work-
ing conditions by working closely and directly with you through your own in-
dependent organization with whom we have had many dealings and contracts
in the past. In laying all our cards on the table, neither of us can stand alone.
We cannot get along without each other. I-low prosperous and how successful
we are together depends upon our mutual confidence and ability Think well
before you turn to outside leadership.
WHY DO WE OPPOSE OUTSIDE UNIONS?
There is honest question in the minds of some employees as to why we op-
pose outside unions The fact is that we have sought no quarrel with outside
unions. The question should be "why have outside unions carried on cam-
paigns of falsehoods respecting the Clark management and its treatment of
the individual?" If you have read all the hand bills over a period of time
you have undoubtedly noted charges and statements which, if believed, could
have no other effect than to completely destroy confidence within the organiza-
tion. Ask yourself, in the light of what you kpow about the Company, if it
isn't sheer self-serving malicious propaganda when the outside organizers in
their hand bills and bulletins imply that
"Favoritism rules at Clarks.
That the entire official family is dishonest.
That workmen who speak well of the Company are stooges and stool
pigeons."
In their desperate attempt to find something to criticize, these outsiders have
started the battle cry "down with the merit system." Why do they resort to
this when the adoption of this plan has put added money in the pockets of
Clark employees after all other effort to obtain outright increases had failed?
71 2 3 4 4-4 7-vol 70-54
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IF CHARGES ARE TRUE, WHERE IS THE EVIDENCE?
According to all the propaganda which has been spread by the outside
organizers , .there is nothing good about Clark Bros ., or its management. In
all of the literature that has been distributed , never one word of commenda-
tion regarding the Company or its policies has been uttered . And never have
they made one suggestion of how business could be increased , more jobs made,
nor how to make present jobs more secure. We manufacture and sell special-
ties in the Oil Industry . (We have no cost-plus contracts . If we expect to
sell our products our prices have to be competitive . Labor is our chief cost.
If we can 't compete we lose business and you lose your jobs . If we can com-
pete and make a fair profit that means more jobs . Those of you who have
been with us for 18 to 20 years know how we've grown and continued to buy
more and more equipment which in turn has meant more and more jobs. Now
these are fundamental things and I don't care who tells you he can get more
for you, there are certain limits and if we go beyond those we destroy our
business and your jobs.
If, as the outside organizations claim, the Company is unfair , how then does
it happen that the vast majority of workers who have left the Clark plant to
work elsewhere have returned for their old jobs with the statement that "I
prefer to work at Clark's rather than any other place I have ever been?" If
conditions in the plant are as bad as they have been painted by outsiders how
does it happen that with all of the changes in employment being made through-
out the country, not 25 men have left Clark Bros employment of their own
accord in the past year. This is a phenomenal record and it means something.
The success or lack of success of these attempts on the part of outside
organizations has had close attention at the hands of officials, high in the
ranks of outside organizations . They are willing to expend large sums of
money in their attempts to organize Clark Bros. and they know that once suc-
cessful, to them it will mean a steady flow of funds to their treasury every
month.
ASK YOURSELF THESE QUESTIONS
Ask yourself if your status as it has been outlined to you in all sincerity
by the Company is something that can be improved by paying this money to
outsiders to act as your leaders. Ask yourself if it is sincere leadership in-
terested in your personal welfare, or if it is self-seeking leadership that you
desire. Ask yourself soberly why outsiders would become so vitally interested
in your welfare. They started all of this personal interest in you before they
had ever seen one of you.
When we review the organizing campaign which has been conducted in our
plant and when we reflect upon the experience of other companies with these
outside organizations, particularly with respect to their record of war time
strikes and production stoppages, it is obvious that it would be extremely dif-
ficult to maintain the same harmonious relationship which now exists should an
outside organization inject itself into ours.
Clark Bros. has an abiding faith in the good sense of the men and women who
make up this Company. We believe the American workman has lots of intelli-
gence and that it is no fault of his that he is sometimes short of information be-
cause we who are managers have not always given him the benefit of the facts
in our possession.
I wish to stress in closing that at the forthcoming election you will be absolutely
free to vote in accordance with your own desire That the election will be con-
ducted by secret ballot and no one but yourself will know your vote. That the
CLARK BROS. CO., INC. 837
election will be conducted in a fair and impartial manner. That there will be
no retaliation or discrimination against employees because they favor any organi-
zation. The Company will abide by the result of the election.
By letters and other releases we have attempted to provide you with factual
information which we are hopeful will assist you in your deliberations. There
was much more ,that could have been said. There may be those who will question
the right of the Company to discuss these matters with you so openly and frankly.
You are a part of the organization and our own people. Frank and open discus-
sions between associates is the American way and we rest the question with your
good judgment.
Mr. Clark, President of the Company, will make a final statement to you tomor-
row over this same speaker. I am sure that you will be very glad to hear from
him personally.
APPENDIX B
Johnny O'Connor told me yesterday that I would make the Company's final
statement about tomorrow's election., I too am going to read mine. It will be
short and to the point. Just a while ago, Mr. Scheitinger of the U A. W.-C. I. O.
took me to task in a radio address for the Company's interest in the election,
and he directed to me a lot of questions over the radio, which, I, of course, had no
opportunity to answer.
I do think however, I should point out to you that answers to practically all
of the questions asked by Mr. Scheitinger are to be found in material which is
already in your hands. Naturally, the Company is interested in any election
that is for the purpose of selecting the people with whom the Company must deal,
regarding your interests and our interests. It isn't at all necessary, but I deny
that this interest is motivated by selfishness as some would try to have you believe.
I was asked to explain the difference between Clark Bros. rates in 1941 and
those existing in the automobile factories in Detroit in 1941. I don't think the
rates applying in the automobile manufacturing business have anything to do
with rates in Clark Bros. at Olean. Neither do 1941 rates have anything to
do with rates today, which, as we have pointed out a number of times, are
controlled by the War Labor Board policy. In presenting his questions, Mr.
Scheitinger did not ask me, to explain how it happens that his organization
published a statement several days ago showing that the C. I. O. workers country-
wide are now enjoying an average hourly rate of 80.7¢ per hour, whereas Clark
workers are enjoying an average rate of 95¢ per hour. Does Mr Scheitinger
wish this explained too? Does he wish me to explain that since 1941 Clark rates
have gone up from an average of 640 an hour to 95¢ an hour, whereas rates in
plants represented by C I. O. have increased only from 75¢ to 80.7¢ by his own
admission.
I want to say that if you think you would be better off with an outside union
and that you need them to protect your interest, then vote it in. Nobody in this
plant, as long as I am running it, will be discriminated against because of the
way be votes or the way he thinks.
This company has engaged in collective bargaining over a period of years with
an organization made up of and controlled by the men in this plant. Working
with this organization, we have been able to go a long way in improving condi-
tions in the plant and increasing the advantages and benefits to workers. It has
been done in an honorable and straight-forward way without the disturbing in-
fluences that have prevailed in many plants where outsiders held sway. You can't
please all of the people all the time, we know. However you know a good job
has been done here. Anything that has the-possibility of disturbing the peaceful
progress is a matter of deep concern to us.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have been working for this company a long time, just as many of you have.
My job depends on your performance, just as your job depends on my perform-
ance If we can't get along together without outside groups coming between us,
my personal feeling is that we will not be making the most of our opportunity.
It so happens that being an officer of the Company, I have no vote, but I am
going to tell you straight from the shoulder what my action would be if I did
have one. I would not vote an outside union into the plant. I would not do it
because there is no need of it. That is my honest opinion for whatever it is worth
to you in making your final decision. i
One other thing I would like to ask you to do, and that is for every man to
go to the ballot box and vote his conviction, but above all vote.
APPENDIX C
NOTICE TO EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
0
Relations Board,'and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
We will not engage, in conjunction with any election contest held to
designate bargaining representatives for our employees, in any campaign for
the purpose of interfering with, restraining, or coercing our employees in
the exercise of their right to select bargaining representatives of their
own choosing.
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 l::boi•
organizations, to join or assist United Automobile, Aircraft and Agricultural
Implement Workers of America, C. I. O , or any other labor organization, to
bargain collectively through representatives of their own choosing, and to
engage in concerted activities for the purpose of collective bargaining or
other mutual aid or protection. All our employees are free to become or
remain members of this union, or any other labor organization.
CLARK BROS. CO. INC.
Dated----------------------- By ----------e-------------------------
(Representative ) (Title)
This notice must remain posted for 60 days from the date hereof, and must
not be altered, defaced, or covered by any other material.