Commercial Controls Corp.

National Labor Relations Board - Board Decisions

Sep 13, 1957

118 N.L.R.B. 1344 (N.L.R.B. 1957)

1344 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in small numerals below the "NO" square., the number 30445, which
coincides with the badge number of an employee who voted in the
election. Having examined the ballot, we find that the markings in
question were deliberately made and so unique as to give rise to the
possibility of revealing the identity of the voter. For this reason we
find the Employer's objection, as did the Regional Director, to be
without merit .3
As no exceptions were filed to the Regional Director's conclusion that
the remaining objections are without merit, we hereby adopt his con-
clusion on these objections. Having found no merit in any of the
Employer's objections to the election or in any of the challenges to
ballots, we hereby overrule both the objections and the challenges.
As the ballots to which challenges have been made and overruled are
sufficient in number to affect the results of the election, we shall direct
that they be opened and counted with the other ballots.
[The Board directed that the Regional Director for the Twenty-
first Region shall, within ten (10) days from the date of this direction,
open and count the ballots of Edward Carrington, Dora Conchola,
Eleanor Jaurigi, and P. A. Mclnturff and serve upon the parties a sup-
plemental tally of ballots.]
8 Staindard-Coosa -Thatcher Company, 115 NLRB 1790 ; Eagle Iron Works, 117 NLRB
1053.
Commercial Controls Corporation and District Lodge No. 6,
International Association of Machinists, AFL-CIO. Case No.
3-CA-959. September 13,1957
DECISION AND ORDER
On January 23, 1957, Trial Examiner Herbert Silberman 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 to the Intermediate Report and a sup-
porting brief.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Murdock, Rodgers, and Bean].
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Intermediate Report, the Respondent's exceptions and brief, and the
118 NLRB No. 181.
COMMERCIAL CONTROLS CORPORATION 1345
entire record in this case, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.
The Trial Examiner found that the Respondent discriminated
against Herman Hartman in violation of Section 8 (a) (3) and (1)
of the Act. In all the circumstances of the case, we agree. The
Respondent demonstrated its opposition to the Union early in the
Union's campaign through the coercive conduct of its supervisors
as found by the Trial Examiner. Among other things, Department
Manager Sauer warned adherents of the Union that they were being
watched. And, as further found by the Trial Examiner, during
the organizational campaign the Respondent announced a prohibi-
tion against the distribution of literature on company property,
which was not formally promulgated or generally publicized but
was orally announced on a few occasions to certain specific employees
who, the Respondent had reason to believe, were about to distribute
literature on behalf of the Union. This prohibition was unlawful
because, as found by the Trial Examiner, it was not designed for the
accomplishment of legitimate objectives such as the prevention of
litter in the Respondent's plant, but had as its purpose the deterrence
and circumvention of the employees' union organizational activi-
ties. The proscription was made applicable to company premises
both within and without the plant proper. When employee Hart-
man joined the Union, about June 13, 1956, he immediately made
the fact known to his supervisor, Department Manager.Beechey, and
stated his intention to do all he could to further the Union. Beech-
ey's reply was that he already knew this. On June 19, Beechey was
informed by a number of people that Hartman was planning to pass
out literature, and after management representatives conferred,
Hartman was called to the office of the factory superintendent and
told that "the company policy was that nobody is to pass any printed
matter or literature at any time on company property." On July 10,
just 2 days before Hartman was discharged, Beechey said to him:
"If I were you, whether the union gets in or not, I would get out
of this company, because it will get you if it takes ten years, and
you're a marked man." This we find, in accord with the Trial Ex-
aminer to be a threat of reprisal in violation of Section 8 (a) (1) of
the Act. On July 11, Hartman handed out union authorization
cards to employees as they were leaving their jobs; and the next
morning was discharged for such activity. The testimony of Vice
President Kaiser makes clear, despite the Respondent's defense to
the contrary that Hartman was discharged for insubordination and
misconduct, that Hartman was in fact discharged because he dis-
obeyed the Respondent's unlawful prohibition with regard to dis-
tributing literature. Kaiser, who admitted that he knew before July
11 that Hartman was an active union advocate, described in detail
450553-58-vol . 118-86
1346 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
• the meeting which he called on July 12 at which -time Hartman was
discharged. He made no mention of insubordination by Hartman.
He testified, in part, as follows :
I said, [to Hartman] "And did you last night, at 4: 42 stand
up in front of our time clock and pass out literature?"
And again he tried to tell me they were union cards, and I
said I didn't care what it was, I didn't know whether he was a
union member or he was not a union member, but he was not to
pass out any literature. He admitted he did, and with that I said
he was fired.
In view, therefore, of the coercive conduct of Respondent's supervisors
generally, the discriminatory motivation indicated by the testimony
of its officials, and the illegal character of its no-distribution rule, we
concur in the Trial Examiner's finding that Hartman was discrimina-
torily discharged in violation of Section 8 (a) (3) and (1) of the Act.
ORDER
Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the Respondent, Commercial Controls Cor-
poration, Rochester, New York, its officers, agents, successors, and
assigns, shall :
-1. Cease and desist from :
(a) Discouraging membership in District Lodge No. 6, Interna-
tional Association of Machinists, AFL-CIO, or any other labor or-
ganization of its employees, by discriminatorily discharging any of
its employees, or by discriminating in any other manner in regard
to their hire, tenure of employment or any term or condition of
employment.
(b) Threatening employees with reprisals because of their union
affiliations and activities.
(c) Prohibiting employees from distributing union literature on
company property during nonworking time.
(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist District Lodge No. 6, Interna-
tional Association of Machinists, AFL-CIO, or any other labor or-
• ganization, to bargain collectively through representatives of their
own choosing or to engage in other concerted activities for the purpose
of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities, except to the extent that such right
may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section
S (a) (3) of the National Labor Relations Act, as amended.
COMMERCIAL CONTROLS CORPORATION 1347
2. Take the following affirmative action which the Board-.finds will
,effectuate the policies of the Act :
(a) Offer Herman Hartman immediate and full reinstatement to
his former, or a substantially equivalent, position without prejudice
to his seniority or other rights and privileges and make him whole for
any loss of earnings he may have suffered by reason of Respondent's
discrimination against him, as herein found, in the manner provided
for in the section of the Intermediate Report entitled "The Remedy."
(b) Preserve and, upon request, make available to the Board or
its agents for examination and copying, all records necessary and
useful to determine the amount of back pay due under the terms of
this Order, including pertinent social security payment records, time-
cards and personnel records and reports.
(c) Post at its plant in Rochester, New York, copies of the notice
:attached hereto and marked "Appendix." 1 Copies of said notice,
to be furnished by the Regional Director for the Third Region, after
being signed by Respondent's representative, shall be posted by Re-
spondent 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 Respondent to insure that said notices
are not altered, defaced, or covered by any other material.
(d) Notify the Regional Director for the Third Region, in writing,
within ten (10) days from the date of this Order, what steps Respond-
ent has taken to comply herewith.
I In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order."
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 Labor Management
Relations Act, we hereby notify our employees that :
WE WILL NOT threaten our employees with reprisals because of
their union or concerted activities.
WE WILL NOT prohibit employees from distributing union litera-
ture on company property during nonworking time.
WE WILL NOT discourage membership in District Lodge No. 6
International Association of Machinists, AFL-CIO, or any other
labor organization of our employees by discriminatorily discharg-
ing any of our employees, or by discriminating in any other
manner against them in regard to their hire, tenure of employ-
ment or any term or condition of employment.
1348 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
.WE WILL NOT in any other manner interfere with, restrain,
or coerce our employees in the exercise of the right to self-
organization, to form labor organizations, to join or assist District
Lodge No. 6, International Association of Machinists, AFL=CIO,
or any other labor organization, to bargain collectively through
representatives of their own choosing, or to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of
the National Labor Relations Act, as amended.
WE WILL offer Herman Hartman immediate and full reinstate-
ment to his former, or a substantially equivalent, position with-
out prejudice to his seniority or other rights and privileges, and
will make him Whole for any loss of earnings suffered by reason
of his discharge.
All our employees are free to become or remain, or refrain from
becoming members of the above-named union, or any other labor
organization, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the Act.
COMIIIERCIAL CONTROLS CORPORATION,
Employer.
Dated---------------- By-------------------------------------
3 (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.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge duly filed by District Lodge No. 6, International Association of
Machinists, AFL-CIO, herein called the Union, the General Counsel of the National
Labor Relations Board, by the Acting Regional Director for the Third Region
(Buffalo, New York), issued a complaint on October 2, 1956, against the Respondent,
Commercial Controls Corporation, alleging that the Respondent had engaged in
and was engaging in unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and ( 3) and Section 2 ( 6) and (7) of the National Labor.
Relations Act, 61 Stat . 136, herein called the Act. Copies of the charge, complaint,
and notice of hearing thereon were duly served upon the parties.
With respect to the unfair labor practices , the complaint alleges, in substance,
that: (1) The Respondent , on July 12, 1956, discharged Herman Hartman because
of his activities on behalf of the Union and since said date has refused to reinstate
said employee to his former, or a substantially equivalent , position, in violation of
Section 8 (a) (3) of the Act; and (2) the Respondent since May 1956 by reason
of the foregoing and other acts set forth in the complaint has interfered with, re-
strained , and coerced its employees in the exercise of the rights guaranteed them
in Section 7 of the Act, in violation of Section 8 (a) (1) thereof. The Respondent
duly filed a verified answer denying that it committed the alleged unfair labor
practices and affirmatively averring that Herman Hartman was discharged because
he had violated a company rule regarding the distribution of literature or printed
COMMERCIAL CONTROLS CORPORATION 1349
matter on company time or on company property, after he had been warned against
such conduct, and because of his insubordination at the time he was requested to
stop such activities.
Pursuant to notice, a hearing was held on October 23, 1956, at Rochester, New
York, before Herbert Silberman, the duly designated Trial Examiner. The General
Counsel and the Respondent were represented at the hearing by counsel and the
Union was represented by a business representative and a Grand Lodge representative.
Full opportunity to be heard, to examine and cross-examine witnesses, and to intro-
duce evidence pertinent to the issues was afforded all parties. Decision was reserved
on Respondent's motion to dismiss the complaint, made at the close of the hearing.
The motion is disposed of in accordance with the findings of fact and conclusions of
law made below. The parties waived the opportunity afforded them to engage in
oral argument at the close of the hearing. Briefs were duly -filed with the Trial
Examiner by the General Counsel and by the Respondent which have been care-
fully considered.
Upon the entire record in the case, and from my observation of the demeanor of
the witnesses,. I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Commercial Controls Corporation, a Delaware corporation which maintains its
principal office and place of business in Rochester, New York, is engaged in the
manufacture and sale of business machines, electric heaters, and component parts
for business machines. During the year 1955, which is representative of all times
material hereto, Respondent manufactured and sold products having- a value of
approximately $9 million, and about 80 percent of these products was sold directly
to purchasers located outside the State of New York. I find that the Respondent
is engaged in commerce within the meaning of Section 2 (6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
District Lodge No. 6, International Association of Machinists, AFL-CIO, is a
labor organization within the meaning of Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
The essential facts in this case are not in dispute. In April 1956 the Union began
a campaign to organize the employees at Respondent's Rochester plant. As part of
its organizing effort the Union from time to time distributed leaflets and handbills
at the entrances to the plant. On May 23, 1956, a leaflet was handed out which
named those of Respondent's employees who were members of the Union's
organizing committee. Following this distribution a number of the committeemen,
to wit, Henry Muhs, Charles L. Froyd, George J. Lawn, Floyd L. Donaldson, and
Robert George Burgholzer, were interviewed by their supervisors and other manage-
ment officials with regard to their reasons for seeking union representation. The
General Counsel's position is that during these conversations Respondent's repre-
sentatives made statements which infringed upon the employees right to self-
organization. Respondent denies this and avers that the only purpose its representa-
tives had for speaking to the committeemen was "to inform the Company of
possible employee dissatisfaction, and the basis of the Union's appeal."
Henry Muhs testified that on May 24, Jerome Richard Ahrns, the assistant
manager of the department to which he was assigned, asked him what advantages he
expected from union representation. When Muhs stated his views Ahms argued
that the employees could not possibly gain the benefits Muhs anticipated.' During
this conversation Ahrns voiced his opinion that the International Business Machines
Company, one of Respondent's principal customers, "would pull their work out as
soon as Commercial Controls went union." Muhs also testified that 2 or 3 days later
he had a similar conversation with his department manager, Joseph E. Eisenhart,
and at the latter's suggestion the discussion was continued with Respondent's vice presi-
dent and general works manager, William John Kaiser. Respondent's objective, as
testified to by Eisenhart, was "to sell him on the company's policy," that is to con-
vince Muhs he would not gain through union representation.
A few days after the May 23 union leaflet was distributed Frank A. Sauer, manager
of the toolroom, questioned Charles L. Froyd as to what he expected to gain from
1 Ahrns testified that he also explained to Muhs that the employees already enjoyed
many benefits which Muhs hoped to obtain through the Union's intercession.
1350 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
promoting the Union's organizational campaign? Subsequently, Ernest Francis
Ghedi, an assistant foreman, mentioned to Froyd the possibility that IBM would
withdraw its work if Respondent's employees selected the Union as bargaining
representative.
On May 24, 1956, Frank Sauer asked Floyd L. Donaldson why he had aligned
himself with the Union and whether he was dissatisfied with working conditions at
the plant. Sauer told Donaldson that "IBM is not union and if the union got in
here IBM would be liable to take all the work out." Donaldson testified that on
another occasion Sauer repeated his prediction that unionization of Respondent's
employees might result in Respondent's loss of IBM work. Sauer also said that' if
this occurred it would necessitate a substantial layoff and Sauer insinuated that Donald-
son, who had less than 3 years' seniority, might be caught in the layoff.
George J. Lawn testified that in the latter part of May his department manager,
George F. Merritt, questioned him as to what he hoped to gain from union represen-
tation.
Finally, Robert George Burgholzer testified that on May 24, 1956, his department
manager, Larry Francis Verwulst, said to him that when the latter saw Burgholzer's
name on the Union's May 23 leaflet "it was just like a slap in the face." 3
I agree with the Respondent that the foregoing does not establish any invasion
of their employees' statutory rights. Each employee who was interviewed had ad-
vertised himself as an organizer for the Union. The evidence shows that in the de-
scribed conversations they freely presented to Respondent's officials their views as
to the benefits expected from unionization, they were subject to no restraints and
their freedom of expression was in no way circumscribed. The predictions voiced
by Department Managers Ahrns, Ghedi, and Sauer that Respondent might lose its
IBM work with a consequent layoff if the plant were to become unionized was only
prophetic speculation such as the Board has held lies within the employer's area of
free expression. Morganton Full Fashioned Hosiery Company, 107 NLRB 1534,
1537; Lily-Tulip Cup Corporation, 113 NLRB 1267. 1268; N. L. R. B. v. Associated
Dry Goods Corporation, 209 F. 2d 593 (C. A. 2).
Other Conduct on the Part of Sauer
Although I do not find the foregoing interviews violated protected employees'
rights, other conduct by Department Manager Frank A. Sauer was unlawfully co-
ercive. In June 1956, Sauer warned Donaldson and employees Grafton Thomas
Houser and Vincent J. O'Neill, all of whom wore union buttons in the plant and
worked near one another, that they should stay close to their machines because they
were being watched and they should not mention the warning to anyone. The
implication of Sauer's warning was that Respondent was seeking reason to discharge
them in reprisal for their open advocacy of the Union.
About July of the same year Sauer told Donaldson and O'Neill that if he had
his way he would fire all the men wearing union buttons. Sauer testified he made the
remark in jest. However, Sauer also testified that he "felt bad" about the fact that they
were active in behalf of the Union because he believed the employees had a "good
deal" with the Company and he was unable to understand what they expected to gain
through union representation. Thus, despite the fact that he may have made the
remark objected to with a pretense at banter, when it is related to his chagrin occa-
sioned by Donaldson's and O'Neill's union activities and his warning to them that
they were being watched, his statement that if he were free to do so he would
discharge all employees wearing union buttons conveyed a clear threat that he was
disposed to take reprisals against them for supporting the Union. Monarch
Foundry Company, 106 NLRB 377. Similarly, I find Sauer's questioning Houser
on several occasions in July as to when Houser intended to take off the union
button he was wearing was unlawfully coercive. It may be presumed that Houser
was acquainted with Sauer's expressed attitude toward employees who wore union
zI credit Sauer's testimony that he did not speak to Froyd about the IBM.,
3 Verwulst substantially agreed with Burgholzer's version of their conversation. Al-
though Verwulst denied having used the expression, "it was like a slap in the face," he
admitted he said to Burgholzer, with regard to the latter having become a member of
the Union's organizing committee, that "it surprised me, it made me feel bad to think
that, after all, I was his boss and we were trying to do everything we could to help
people in there, and by him joining the Union it made me feel as though I wasn't doing
my job right."
COMMERCIAL CONTROLS CORPORATION 1351
buttons.4 Therefore, the interrogation of Houser with regard to how long he
planned to support the Union, in the circumstances, was a veiled threat that Houser's
continued union support might result in reprisals being taken against him.
I find that Respondent violated Section 8 (a) (1) of the Act by reason of Sauer's
threats of reprisal against employees subject to his direction, who had advertised their
union allegiance, as evidenced by his warning to them that they were being watched,
his statement that he would discharge union supporters if he had his way, and his
interrogation of Houser with regard to how long the latter was going to support the
Union.
On the other hand, I find nothing objectionable in Sauer's having refused to recom-
mend a raise for Houser in July 1956 for the expressed reason that Houser's attitude
was wrong in view of Sauer's credible explanation that he was not referring to Houser's
union allegiance but to the fact that Houser "would always gripe." Also, I do not spell
out a violation of the Act from O'Neill's uncontradicted testimony that, in July
1956, Sauer said to him, "I think that everybody that belongs to the Union is a
Communist." Statements disparaging unions and union members which contain
no threats of reprisal or promises of benefit are considered by the Board as permissible
expressions of opinion. General Shoe Corporation, 77 NLRB 124, 125.
The No-Distribution Rule; Hartman's Discharge
Respondent contends that it discharged Herman Hartman for violation of a rule
prohibiting the distribution of literature or printed matter on company property.
This alleged rule was never posted or circulated to the employees or department
managers,5 nor was any general announcement of the rule ever made to the
employees. The rule, according to Respondent's witnesses, was developed in June
1956 during the Union's organizational campaign. It's first appearance occurred
early in the month after it had been reported to Vice President William John
Kaiser that some employees intended to pass out an antiunion piece of literature.
Kaiser had the three men involved brought to his office and told them, "it was
against the company rules to pass out literature of any kind without our per-
mission." 6 The only other pronouncements of the rule were made on June 19
to employees Burgholzer -and Hartman under the circumstances described below.
On the evening of June 18 Department Manager Verwulst noticed union authori-
zation cards 7 in a drawer of Burgholzer's work bench. The next morning Verwulst
told factory superintendent Elmer F. Abell that he "had found literature in one of
the drawers" and asked for advice as to what to do about it.8 Abell asked Verwulst
to bring Burgholzer to his office. With respect to the meeting between Burgholzer
and Abell, the latter testified:
Well, I said-Mr. Verwulst come into my office and indicated that he, Burg-
holzer, had brought literature into the plant and had it in his bench drawer,
and I asked whether he intended to pass it out. To that I don't have an answer,
but I said, "I want to make clear to you what the company policy is on passing
out literature," and I told him it was against Company policy to pass out
literature of any kind on company property, and that included our parking
lot, at any time. . . . He agreed that he would not.
Herman Hartman, unlike the other members of the organizing committee, did
not become active in the Union's campaign at Respondent's plant until June 13,
1956. He attended a union meeting that night at which time he signed an authoriza-
tion card and volunteered to organize the employees in his department. The next
morning Hartman informed his department manager, Ernest G. Beechey, that he
had joined the Union and intended "to do everything I can to further the union in
this department." Beechey merely replied that he already knew this. Several
days later, on the morning of June 19, a number of people informed Beechey
A "Expressions of Company attitudes, even to small groups of individuals, were likely
to be rapidly disseminated around the plant during the struggle of organization." Bausch
& Lomb Optical Company v. N. L. R. B., 217 F. 2d 575 (C. A. 2).
5 The department managers are issued copies of a Standard Practice Book containing
information and instructions for their guidance. Although this manual includes detailed
instructions with regard to posting notices on plant bulletin boards, it makes no mention
of the purported no-distribution rule.
6It is uncertain whether the rule, as thus expressed, applied to nonworking time and
to the Company's parking lot.
7 These were 3 inches by 5 inches in size.
11 Verwulst testified, "I had never seen them pass any out."
1352 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that "Herman Hartman is planning on passing out some literature." Beechey
decided to speak to Factory Superintendent Abell about the matter. Beechey
testified that until then he had received no instructions regarding the distribution
of literature by employees and he "wanted to know whether passing out literature
on company property was permissible." Beechey went to Abell and the latter
said that "he would have to confer and that he would let [Beechey] know." 9
Later that morning, upon Abell's instructions, Beechey brought Hartman to Abell's
office.
Abell testified that when Beechey told him Hartman had brought printed matter
into the plant, "I said `I will confer with Mr. Kaiser' which I did.'() I went to Mr.
Kaiser's office and I said, `we believe'-it was very informal-'we believe that
Herman has brought in some printing matter in the plant and probably intends to
pass it out. What is our decision?' We had a session on it, and the decision was
no printed matter was to be passed out at any time on company property, and Mr.
Kaiser said, `You call Herman into your office and make that clear to him."' it
Abell further testified that when Hartman came to his office that morning he
advised him that "the company policy was that nobody is to pass any printed matter
or literature at any time on company property." Hartman had with him several
union publications and said he would not pass them out.12 There is no evidence
in the record of any further enunciation of Respondent's alleged no-distribution
rule prior to Hartman's discharge on July 12, 1956.
The next incident relating to Hartman's union activities occurred on July 10,
1956. Hartman, believing that his job was being speeded up, protested the fact
to Beechey. In voicing his complaint, he said, "I don't intend to be pushed around
and overburdened with work because I'm a union man." Beechey denied that any
attempt was being made to retaliate against Hartman because of his union activities.
Beechey then said, "If I were you, whether the union gets in or not, I would get
out of this company, because it will get you if it takes ten years, and you're a
marked man." I find Respondent violated Section 8 (a) (1) of the Act by reason
of this threat of reprisal against Hartman for having engaged in union activities.
The events which led to Hartman's discharge took place on July 11 after quitting
time. Hartman stationed himself at the time clock and handed out a total of 8 or 9
union authorization cards to employees as they were leaving their jobs. Before
he had finished doing so Beechey approached Hartman and asked him to go to
Abell's office. Hartman replied, "Mr. Beechey, I have already punched out. I am
on my own time, and I will not go with you. . . . Don't interfere with me."
Beechey remained near Hartman. At one point Hartman gave Beechey one of the
cards to show Beechey what he was passing out. Then, according to Hartman,
As I was leaving, I said, `I will see you in the morning,' meaning that I would see
him in the morning and go with him to see Mr. Abell, on the company's time."
Beechey's version of the incident coincides with Hartman's. Beechey further
testified that before quitting time on July 11 several employees told him that Hart-
man had some literature with him. Beechey relayed this information to Abell who
then conferred with Kaiser. Finally, Beechey received instructions to see whether
Hartman was going to pass out literature and, if he did, to ask him to stop and
bring him to the office. After Hartman left the plant that night, Beechey took the
union authorization card which he had been given to Mr. Abell.
Vice President Kaiser testified that the next morning he met with several other
company officials and they decided to terminate Hartman's employment. Hartman
was summoned to the meeting. Kaiser 'asked him whether he had been instructed
on June 19 not to pass out literature of any kind. Hartman replied in the affirma-
9 Although Kaiser testified that he told three employees earlier In the same month that
It was against company rules to pass out literature, he did not testify that the rule was
promulgated generally. Beechey's testimony indicates that the rule was never brought to
the attention of other rank-and-file employees or the department managers. Abell testified
that the no-distribution rule was formulated in the morning of June 19, 1956.
10 This conference also preceded Abell's interview with Burgholzer.
11 Thus, the rule as formulated at this conference was broader than when it was first
voiced by Kaiser earlier the same month because it was now made applicable to non-
working time , as well as working time , and to Respondent 's parking lot, as well as to
the plant proper.
12 Hartman testified that he had only single copies of several publications with him
which were for his personal use and he had no intention of giving away any. Although
Hartman testified that he was never advised that there was a company rule forbidding
employees to pass out literature he testified that Abell had said to him that he was not
to distribute literature on company property.
COMMERCIAL CONTROLS CORPORATION 1353
tive. Kaiser then asked whether he had passed out literature the previous evening.
Hartman said he had not passed out literature but that he only had passed out union
authorization cards.13 Kaiser then informed Hartman that he was fired for disobey-
ing a company order.14
The first question relative to Hartman's discharge is whether he disobeyed a
lawfully imposed order. The evidence does not establish that there was any effective
company rule of general applicability relating to the distribution of literature by
employees. But the evidence shows that five employees,15 including Hartman, were
individually advised of a prohibition against the distribution of literature. First,
early in June, three unidentified employees who were active in opposing the Union
were told by Kaiser that "it was against company rules to pass out literature of any
kind without permission." I will pass the question as to whether this instruction
was an unlawful infringement upon the right of those three employees to engage in
concerted action with the object of preventing the Union's designation as their
statutory representative because Kaiser's instruction to them was ambiguous in that
it could be interpreted to apply to working time only. However, the instructions
given Burgholzer and Hartman on June 19 were significantly broader. They were
told that they were prohibited from distributing literature at any time, including
non-working hours, and at any place on company property, including its parking lot.
Section 7 of the Act guarantees employees "the right to self-organization . . . to
engage in other concerted activities for the purpose of collective bargaining or other
mutual aid or protection, and . . . the right to refrain from any or all of such
activities... ." The protection of the statute envelops all lawful conduct in further-
ance of these guarantees . On the other hand, the employer in the exercise of his
right to control the use of his property and to obtain the benefit of his employees'
productive efforts during the times for which they are paid to work may impose
reasonable rules relating to their behavior for the purpose of preserving his property
and maintaining good order, discipline, and efficiency in the plant. When a con-
flict occurs between the employees' statutory rights and the employer's property
rights a sensible adjustment must be made to achieve maximum harmony between
the two with the minimum impairment of the rights of each.
As a derivative of their statutory right to self-organization employees have the
right to disseminate information in written form, as well as orally, relative to such
matters.16 On the other hand, an employer has a legitimate interest in keeping his
plant clean and orderly. In striking a balance between these two sometimes con-
flicting rights the Board had held that an employer can lawfully prohibit distribution
of literature in the plant proper at all times.17 Because the problem of litter is less
significant outside the plant premises, it has been held that, absent unusual circum-
stances, the employer may not forbid employees the privilege of distributing or-
ganizational literature outside the plant proper, as for instance in a company-owned
parking lot.18 Furthermore, an otherwise valid no-distribution rule if promulgated
or utilized to impede the employees in the exercise of their statutory rights, rather
than for the legitimate business reason of maintaining plant cleanliness and order-
is Because I find that the alleged no-distribution rule in this case was unlawful, it is
unnecessary to determine whether merely passing out union authorization cards would
be a violation of a valid no-distribution rule.
1+It is clear from Kaiser 's testimony that Hartman was discharged because he had
disobeyed Abell 's June 19 instruction with regard to passing out literature and for no
other reason.
>S The charge indicates that Respondent employs 1,100 persons at its Rochester plant.
19 Equally protected is the right of employees through concerted action to oppose the
designation of any union as their collective -bargaining representative and in aid thereof
to distribute explanatory literature.
17 Monolith Portland Cement Company, 94 NLRB 1358, 1366. See United Steel
Workers of America, CIO v. N. L. R. B . ( Nutone Incorporated ), 243 F. 2d 593 ( C. A., D. C.).
' Monarch Machine Tool Co., 102 NLRB 1242 , 1248, enfd . 210 F. 2d 183 ( C. A. 6).
In N. L. R. B. v. LeTourneau Company of Georgia , 324 U. S. 793 , the Supreme Court
affirmed the Board 's ruling that it was an unlawful infringement of employees ' rights
for the employer to ban distribution of union literature in the company 's parking lot.
The Supreme Court specifically noted that the rule was adopted to control littering and
petty pilfering from parked autos and that the Board had determined there was no union
bias or discrimination in the enforcement of the rule. The Court also noted that it
cannot "properly be said that there was evidence or a finding that the plant's physical
location made solicitation away from company property ineffective to reach prospective
union members."
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
liness, is an unlawful infringement on employees' rights and violates Section 8 (a) (1)
of the Act.
The record in this case is barren of evidence indicating that the warnings issued
to Hartman, Burgholzer, and the three unidentified employees about distributing
literature was prompted by considerations of plant cleanliness, while the preponder-
ance of testimony shows that the purpose of the warnings was to limit the employees'
opportunities to circulate information relative to organizational matters. First, the
purported no-distribution rule was announced to only five rank-and-file employees.
If Respondent's real interest was to avoid litter on its property it would have pub-
licized such rule generally. Instead Respondent notified only those employees whom
it knew were active in the organizational campaign, either in favor of or in opposition
to the Union, and whom it suspected might attempt to influence other employees
through the distribution of propaganda expressing their views. This was a most
effective means of interfering with and restraining these employees from engaging
in union activities or other concerted action. Second, the rule was invoked for the
first time during the period of heightened organizational activity at the plant.19
Since no evidence was introduced showing any increase in plant litter because of
the organizational campaign, it would appear that the purported rule was not in-
spired by reasons of plant cleanliness but to inhibit organizational activities. Third,
singling out Burgholzer, who had union authorization cards in his bench drawer,
on June 19 for explication of Respondent's prohibition when he had given no overt
indication of an intent to distribute them indicates a purpose to impede employees'
opportunities to engage in lawful solicitation of union members rather than to take
protective measures in anticipation that they might cause litter in the plant. This
inference is supported by Beechey's testimony that he was requested-by Abell to
report the presence of union literature in the plant.2° Fourth, the rule was made
applicable to the Company's parking lot. Thus, even were the alleged no-distribution
rule otherwise lawfully promulgated, its application to company premises outside
the plant proper would have been unlawfully broad. Finally, no witness for Re-
spondent testified that the purpose of the alleged rule was to prevent litter.
Upon the basis of the foregoing, I find that on June 19, when Burgholzer and
Hartman were warned not to distribute printed matter at any time on company
property, Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed them by Section 7 and thereby violated Section 8 (a) (1)
of the Act.21 In consequence, Hartman's discharge for having failed to observe
such rule was likewise unlawful. I find, therefore, that Hartman was discharged
for having engaged in union activity protected by Section 7 of the Act 22 By thus
discharging Hartman and thereafter failing to reinstate him, Respondent discriminated
with regard to his hire and tenure of employment, thereby discouraging membership
in the Union and interfering with, restraining, and coercing its employees in the
exercise of rights guaranteed them by Section 7 of the Act, in violation of Section
8 (a) (1) and (3) thereof.
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 thereof.
V. THE REMEDY
Having found that the Respondent has engaged in and is engaging in unfair labor
practices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Having found that the Respondent discriminatorily discharged Herman Hartman
on July 12, 1956, it will be recommended that the Respondent offer Herman Hartman
18 Respondent's announcement of the rule to employees who opposed the Union as well
as to employees who supported the Union would be as much an infringement upon the
protected rights of the former as of the latter.
20 See Morehead City Garment Company, Inc., 94 NLRB 245, 247, enfd. 191 F. 2d
1021 (C. A. 4).
21 Glen Raven Silk Milks, Inc., 101 NLRB 239, enfd. 203 F. 2d 946 (C. A. 4) ; Delta
-.Finishing Company, 111 NLRB 659, 661.
22 Avondale Mills, 115 NLRB 840; Republic Aviation Corporation v. N. L. R. B.,
824 U. S. 793.
FLEETWOOD TRAILER CO., INC . 1355
immediate and full reinstatement to his former, or a substantially equivalent, position
without prejudice to his seniority or other rights and privileges, and make him whole
for any loss of earnings he may have suffered by reason of said discrimination by
payment to him of a sum of money equal to that which he normally would have
earned from the date of his discharge to the date of Respondent's offer of reinstate-
ment, less his net earnings during said period. Said loss of earnings shall be
computed in accordance with the customary formula of the National Labor Relations
Board. See N. L. R. B. v. Seven-Up Bottling Company of Miami, Inc., 344 U. S.
344, and F. W. Woolworth Company, 90 NLRB 289. It will also be recommended
that the Respondent preserve and, upon request, make available to the Board or its
agents for examination and copying all records necessary and useful to determine
the amount of back pay due under the terms of this Recommended Order, including
pertinent social-security payment records, timecards, and personnel records and
reports.
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. By discharging Herman Hartman and thereafter failing and refusing to re-
instate him to his former, or substantially equivalent, position, the Respondent has
engaged in and is engaging in unfair labor practices within the meaning of Section
8 (a) (1) and (3) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed them in Section 7 of the Act, the Respondent has engaged in
and is engaging in unfair labor practices within the meaning of Section 8 (a) (1)
of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
Fleetwood Trailer Co., Inc. and Amalgamated Local No. 990,
International Union, Allied Industrial Workers of America,
AFL-CIO. Case No. 2.1-CA-12527. September 13, 1957
DECISION AND ORDER
On March 18, 1957, Trial Examiner Wallace E. Royster 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 Inter-
mediate Report attached hereto. Thereafter, the Respondent filed
exceptions to the Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3 (b) of the National Labor
Relations Act, the Board has delegated its powers in. connection with
this case to a three-member panel [Chairman Leedom_ and Members
Bean and Jenkins].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and brief, and the entire record in the
118 NLRB No. 179.