Everest & Jennings, Inc.

National Labor Relations Board - Board Decisions

May 26, 1966

158 N.L.R.B. 1150 (N.L.R.B. 1966)

1150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT in any other manner interfere with, restrain , or coerce
employees in their right to join or assist any union or to bargain collectively
through representatives of their own choosing
WE WILL bargain collectively , upon request , with Teamsters, Chauffeurs and
Helpers Local Union No 215, a /w International Brotherhood of Teamsters,
Chauffeurs , Warehousemen and Helpers of America , as the exclusive repre-
sentative of all the employees in the bargaining unit described below, with
respect to rates of pay , wages , hours of employment , or other conditions of
employment , and, if an agreement is reached , embody it in a signed contract
The bargaining unit is
All wholesale and retail drivers and dock workers at the Evansville,
Indiana , establishment , but excluding all office and clerical employees,
all professional employees , guards and supervisors as defined in the Act
and all other employees
WE WILL , upon application , offer immediate and full reinstatement to their
former or substantially equivalent positions , without prejudice to their se-
niority of other rights and privileges , to all our employees who participated in
the strike , and who have not already been reinstated , dismissing , if necessary,
all persons hired on or after April 23, 1965
WE WILL make whole for any loss of pay they may have suffered those
employees who went on strike in accordance with the provisions herein
All our employees are free to become or remain , or to refrain from becoming
or remaining members in good standing of the above -named Union , or any other
labor organization
HOLLAND CUSTARD AND ICE CREAM, INC,
Employer
Dated------------------- By-------------------------------------------(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of post-
mg, and must not be altered , defaced, or covered by any other material
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office,
614 ISTA Center, 150 West Market 4treet, Indianapolis , Indiana, Telephone No
633-8921
Everest & Jennings , Inc. and Truesdell S. Brown, Jr.
International Association of Machinists and Aerospace Workers
(AFL-CIO)
Everest & Jennings, Inc. Petitioner, and International Associa-
tion of Machinists , District Lodge 1578 , AFL-CIO, Petitioner
Cases Nos 31-CA-45 (formerly 21-CA-6491), 31-CA-65 (formerly
21-CA-6620), 31-RM-2 (formerly 21-RM-1171), and 31-RC-10
(formerly 21-RC-9451) May 26,1966
DECISION AND ORDER
On Febi nary -16, 1966, Trial Examiner Wallace E Royster issued
his Decision in the abo-ve entitled proceeding, finding that the Re-
spondent had engaged in and was engaging in- certam unfair labor
practices and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the attached Trial Ex-
aminer s Decision - Thereafter, the Respondent filed exceptions to
the Decision and a supporting brief
158 NLRB No 113
EVEREST & JENNINGS, INC. 1151
Pursuant to the provisions of Section 00(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions 1 and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner, with the following
modifications.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete the period at the end of paragraph 1(a) of the Trial
Examiner's Recommended Order and add the following:
[", except to the extent that such right may be affected by an
agreement requiring membership in a labor organization a s a con-
dition of employment, as authorized in Section 8(a) (3) of the Act,
as modified by the Labor-Management Reporting and Disclosure
Act of 1959."
[IT IS FURTHER ORDERED that the election conducted on March 4, 1965,
in Cases Nos. 31-RM-2, 31-RC-10, be, and it hereby is set aside.]
[Text of Direction of Second Election omitted from publication.]
' The Respondent excepted to the Trial Examiner 's Decision on the ground that the
Trial Examiner manifested prejudice and bias against the Respondent during the course
of the hearing. Upon a careful examination of the entire record, we are satisfied that
the contentions of the Respondent in this regard are without merit.
2 We agree with the Trial Examiner's finding that Respondent interfered with the elec-
tion of March 4, 1965, and that the election should therefore be set aside, because of
Respondent 's statement to employee Davis that a union majority might or could cause
the closing of the plant and the statement to employee Medina that the selection of the
Union would cause the employees to lose a number of benefits . Therefore , we deem it
unnecessary to pass on the Trial Examiner 's further finding that the reference in the
Respondent 's letter of February 25 to union supporters as "malcontents " and the sug-
gestion that they find other jobs "constituted impermissible interference with the elec-
tion." Accordingly , we shall direct a new election. .
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This matter was tried before Trial Examiner Wallace E . Royster in Los Angeles,
California , on September 14, 15, and 16, 1965' At issue is whether Everest &
Jennings, Inc., herein the Respondent, by a variety of conduct interefered with,
restrained , and coerced its employees in the exercise of rights guaranteed in Section
7 of the Act, thus engaging in unfair labor practices within the meaning of Sec-,
tion 8 (a) (1)_f- the Act, and whether by the temporary layoff of Fred Davis and
the discharge of Truesdell Brown, the Respondent discriminated against these
individuals because of their activities in support of International Association of
' All dates mentioned are in 1965.
1152 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Machinists and Aerospace Workers (AFL-CIO), herein the Union , and thus
engaged in unfair labor practices within the meaning of Section 8(a)(3) of the
Act 2 Certain objections to conduct affecting the results of an election held in
the plant of the Respondent on March 4 , 1965 , were heard along with the evi-
dence concerning unfair labor practices A disposition of the objections is made
hereinafter
Upon the entire record in the case , upon consideration of the briefs filed, and
from my observation of the witnesses , I make the following
FINDINGS OF FACT
I THE BUSINESS OF THE RESPONDENT
The Respondent is a California corporation with its principal offices and place
of business in Los Angeles, California, where it is engaged in the manufacture of
wheelchairs In the course of its business operations the Respondent causes to be
transported from Los Angeles to customers located outside the State of California,
goods valued in excess of $50,000 annually
The Respondent concedes, and I find, that it is an employee engaged in coin-
merce and in a business affecting commerce within the meaning of Section 2(6)
and (7) of the Act
H THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of Section 2(5) of the Act
III THE UNFAIR LABOR PRACTICES
A The evidence
In early 1965 the Union began an attempt to organize Respondent's plant It
quickly found support among some of the employees and, perhaps as quickly,
aroused fears among others that it might succeed Respondent 's management
reacted promptly to the Union 's campaign In a letter to all employees dated Feb-
ruary 12 and distributed on that date or shortly thereafter , Respondent's president,
Gerald M Jennings , commented that the Union was making a "determined effort
to sign up our employees and add their dues and initiation fees to its treasury "
Jennings went on to characterize the campaign as consisting of `usual tricks and
"I pie in the sky' promises , warned that unions often impose "a proverbial straight
jacket by insisting on restrictive rules and featherbedding practices whicn hamstring
company flexibility and reduce its chances of competing successfully ", said that
both the Company and employees would suffer on that account, opined that the
Union would demand a union security agreement "which would simply mean that
if any of you failed or refused to join that union and pay your dues, fees, and
assessments on time the IAM could come to management and have you fired',
asserted that employees would subject themselves to the imposition of union
fines and penalties should they fall in violation of "pages and pages of small-print
union rules", told of the unhappy situation of the striker who could permanently
be replaced and who could draw no unemployment benefits, invited employees to
report any threats uttered by the union supporters so that prompt action could be
taken against guilty employees or union organizers, expressed his understanding
that the Union was using "various ruses" to obtain signatures on authorization
cards , told the employees of their right had they been victimized by a union
"trickster" to revoke their authorizations , and assured all that they were free to
join or assist any labor organization and were also free to oppose unions and "to
speak out in favor of the direct above-board relationship we have enjoyed in
the past "
On the same date in a separate communication , also distributed to all employees,
Jennings said that information had come to him concerning threatening statements
and violations of company rules He said that certain employees were conducting
union activities during working hours, were leaving work stations and going to
other departments for purposes unrelated to their work Jennings assured the
employees that none of them need join a union to preserve hi9 job or to insure
promotion and promised that he, "personally , will guarantee that no employee in
'Truesdell Brown filed his charge Februaiy 19 The Union filed c iarges on April 9
and June 7 The complaint issued June 25
EVEREST & JENNINGS, INC 1153
this plant will lose his job or otherwise suffer any penalty or inconvenience if he
decides that he does not wish to join any union or have a union represent him"
The letter continued
Any employee found guilty of spreading false rumors to the contrary will be
subject to severe discipline With respect to union activities on company
time or unauthorized absence of employees from their working stations, I
wish to remind everyone of the rules set forth in the Company Handbook
as follows
Starting and/or continuing false or malicious gossip or rumors regarding
Everest & Jennings , Inc, its Management , Employees , Product, Practices
and Policies-Quote page 38, paragraph 5-Handbook Unauthorized
absence from assigned place of work , inattention to duties , deliberate
idling on the job, reading or loitering in washrooms or elsewhere during
working hours-Quote page 38, paragraph 10-Handbook Leaving reg-
ular working place or leaving the Department during working hours with
out authorization from your Supervisor , except on occasion of health
purposes-Visiting during working hours , or going into other Depart-
ments except in the line of duty-Quote page 39, paragraphs 3 & 4-
Handbook
No one need join a labor organization to continue to enjoy the high level of
wages and benefits which Everest & Jennings provides
This letter quoting from the employees handbook is the first clear warning to
employees that they were forbidden to engage in any sort of union activity during
work periods Although in it Jennings seems to assert that the matter is covered
by the handbook it is not expressly mentioned there and I find that a familiarity
with Respondent 's rules governing employee conduct as they existed prior to the
February 12 letter would not clearly bring warning to an employee that he was
forbidden upon penalty of discipline to ask a fellow employee to join a union even
on working time The handbook clearl y enough forbids visiting and unauthorized
leaving of work station But employes are bound to communicate one with
another and the subjects of communication will not always be limited to matters
affecting the job Although it would be ridiculous for an employer to forbid an
employee in all situations to refrain from speaking to his fellow workers, an
employer may insist that working time is for work and to restrict employee con-
duct which threatens to deprive him of full-time service Thus a rule forbidding
union activity during working time is presumptively valid
At least after the distribution of the second February 12 letter, all employees
became aware that they were prohibited from proselytizing for the Union during
working hours They were also aware from the terms of the first letter that they
were invited "to speak out in favor of the direct above board relationship we have
enjoyed in the past " It would have been reasonable for an employee to -conclude
that overt support of the Union would be a chancy thing but that there was no
peril in opposing it
On this same February 12 perhaps before the letters summarizi ,d above were
written and surbly, before all employees were aware of their content, Mary Cor-
nelius , an employee in the upholstery department , came to the office of
Vice President Fred, Callahan Although Callahan was then meeting with Presi-
dent Jennings and Respondent 's labor consultant , Lyman Powell, Cornelius was
admitted She told the three men , she testified, that the Union was "going strong"
in the plant, to her distress and that of others, and asked what she could do to
combat this trend Powell said that those who opposed the Union had the same
rights as those who supported it but that any campaigning would have to be done
outside working time Cornelius said that another employee , Fred Davis, was
"pushing union" during working hours Powell said that she could submit a
sworn statement to that effect and that then such persons could be disciplined
According to Cornelius, Powell added that he was not encouraging her to take
such action but that she was privileged to do so On cross-examination Cornelius
testified that on February 11 or 12 ' shfle she and Davis were returning to their
work stations from a Warehouse to which their duties had taken them , Davis asked
her if she wanted to sift a union card Cornelius answered that she did not
This was the entire conversation and she was not approached again by Davis
221-731-67-vol 158-74
1154 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Leaving Callahan 's office, Cornelius returned to work where she told two other
employees , Geraldine Weems and Myrtle Miller that if Davis had bothered them
they had a right to sign a sworn statement to that effect in Respondent 's office
That day all three did so Also , on February 12 a total of about 20 employee
statements were filed with the Respondent asserting that certain individuals had
been soliciting for the Union
In her written statement about Davis, Cornelius said
I have been asked by Fred Davis to sign a card to get Union in Everest &
Jennings during working hours at different times and Wed morning Feb 10
1965 He explained all the advantages of Union in this Company
Weems' statement read
I have been asked numerous times by Fred Davis to sign a Union card dur-
ing working hour
Miller's report was
I have been asked on numerous occasions by Fred Davis, to sign a union
card during working hours
As a witness , Weems testified that on February 10 she had a conversation with her
supervisor , Don Reed, which caused her to be "just a little bit upset " Davis
then put his hand on her shoulder and said , "If you sign a card Jerri , you don't
have to take that guff " Weems admitted that this was the only occasion on
which Davis mentioned the Union to her and that her statement that he had asked
her to sign a card numerous times had reference to a campaign by the Union
about a year before Miller was not called as a witness
With the Cornelius , Weems, and Miller statements before him , Callahan con-
sulted with Ray Jenkins , superintendent of the plant in which Davis worked Re-
calling that in the union campaign about a year earlier Davis had been repri-
manded for engaging in union activity on company time, the decision was
reached to suspend Davis without pay for 3 days
In the afternoon of February 12 Davis was brought to Jenkm's office where he
learned from Jenkins that he had been charged with "harassing employees during
their working hours" with the result that he must suffer a 3 -day layoff Davis
testified that he denied the accusation and that when he did so Jenkins asserted
that he had three affidavits to support it but refused Davis ' request that they be
produced I note that the decision to inflict this layoff penalty on Davis was
reached without questioning his accusers and before Davis had opportunity to
admit or deny their charges
Davis returned from layoff on February 18 and continued in Respondent's em-
ploy until some date in May The circumstances of his termination are not
mentioned in the record On February 18, according to Davis , Superintendent
Jenkins said that a union was not needed in the plant and offered to bet Davis
$5 that it would lose the election To his subsequent sorrow, Davis apcepted the
bet
On February 24, still according to Davis, Foreman James Bredehoft spoke with
him for more than an hour in an attempt to persuade Davis that a union was not
needed Davis asserted that the Respondent was showing favoritism , that he
had been disciplined upon an accusation of soliciting for the Union during work-
ing hours but "Those girls back here, " meaning Cornelius , Weems , and Miller,
were displaying signs reading, "Down with the union " and like phrasings with-
out being disciplined Bredehoft commented that the girls were "for the com-
pany " Bredehoft said that other plants had closed because thy became orga-
nized and that this could happen with the Respondent According to Davis the
"girls" in his department , presumably referring to Cori ebus , Weems, and Miller,
spent much time talking among themselves in opposition to the Union and on
several occasions were late in returning to their work stations - at the conclusion of
coffee breaks
Bredehoft readily conceded in his testimony that he spoke to Davis on the oc-
casion described but recalled that the span of the conversation was abqut 15
minutes rather than the longer period Davis testified to. Bredehoft explained that
he was trying to persuade Davis that the Union would not advantage the employ-
ees and in doing so exhibited some wage comparisons whih demonstrated that the
Respondent was paying higher wages than those received by employees in plants
where a union was established Bredehoft denied that he made mention of the
plant closing but admitted telling Davis that the Union would probably break up
the friendly relationship then existing between employees and management and
EVEREST & JENNINGS, INC 1155
that in the event of a strike Davis could be replaced When Davis complained
about the antiunion campaign being waged by some of the women , he told Davis
that it was permissible if confined to nonworking time Bredehoft denied saying
that such campaigning was all right because it was "for the company "
In the afternoon of February 12, a number of affidavits were executed by em-
ployees and presented to management alleging that certain individuals had en-
gaged in soliciting for the Union during working hours Vice President Callahan
testified that he had no reason to question the credibility of the affiants and that,
additionally , the affidavits attributed union activity to individuals who were known
to supervision as persons who favored the Union In consequence, the Respondent
caused warning notices 3 to be issued to employees who were thus accused so
that, in the words of Callahan , "if disciplinary action is taken concerning an
employee, we have it in the file, we have in the file the advise that they have been
guilty of violation of rules before " In a few instances the warning notices were
withdrawn after an employee protested that he was not guilty of the charge and
after investigation disclosed that the afliant , after all, had reference to union
activity occurring during nonworking time In cases of flat dispute between the
accused and the accuser the warning notices were not rescinded In no case was
an employee provided with the name of the person informing about him
Among those receiving a warning notice on February 15 was Truesdell Brown,
a punch-press operator under William Hester, machine shop supervisor Brown
came to Respondent's employ in May 1963 He was regarded by Hester as a
"very good employee " On that day, Hester testified , Superintendent Robert
Godfrey handed him a warning notice directed to Brown and asked Hester to
see that Brown received it Hester testified that he knew Brown to be a union
supporter as he had heard that Brown was passing out union literature outside the
plant Hester commented in the course of his testimony that this involvement of
Brown came as a surprise to him because he considered Brown to be a quiet indi-
vidual who would not be interested in a union When Hester handed him the
notice, Brown testified , he asserted to Hester that he was not guilty but that he
would sign in order that his wife and children not be deprived of support Brown
testified that he thought a fellow employee , Lee Melstrom, could and would
verify his protestation of innocence and, in the presence of Hester , called upon
Melstrom to do so To Brown's astonishment , he testified , Melstrom said that
Brown had indeed solicited his support of the Union on the job Brown then
flew into a rage, called Melstrom a "lying son of a bitch ," and, according to Hester,
offered to strike Melstrom Hester managed to calm matters and Melstrom ex-
plained that he had been misunderstood , that Brown's solicitations had taken
place outside of working hours Brown apologized to Melstrom Before issuing
the warning slip Respondent had received an affidavit from Melstrom reading "I
was approached by Tony Brown to join Union while on job" and another from
employee Ervin Sinor which said "I was asked to join the I A M Union on com-
pany time by Truesdell Brown 't Smor's affidavit was filed after his supervisor,
Earl Ruffner, suggested that he do so
Hester reported this incident to Godfrey and their to the personnel office and to
Callahan Someone decreed that Brown had by his conduct earned another warn-
ing notice so one was draftee It read
NOTICE OF VIOLATION OF RULES
It is necessary to warn you of the violation of Company policy as set forth
in the Employees Handbook an$ Policy Manual Page 38, paragraph 8 On
Monday, February } 5, in the presence of your Supervisor , you fused abusive
language toward a fellow employee threatening physical violence
Any repetition of such+ction will subject , you to disciplinary action and with-
out further notice may result in lay-offor discharge
8 Seven such notices, received in evidence, were issued on F,Ibruary 15 the first working
day following the filing of the accusations In addition to naming the employee warned
and his foreman , they read >:
SUBJECT HARRASSMENT ( sic) OF FgLLOW EMPLOYEES
Due to a number of complaints by your fellow employees concerning interruption of
their work by you during working hours, you are- hereby warned to discontinue such
harrassment ( sic) of fellow employees Further such Action by you will subject you
to disciplinary action anti possible discharge
Only as long as yop devote eight hour a day to your job duties can Everest &
Jennings Inc continue to provide employment for you
1156 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On Tuesday, February 16, Hester and Godfrey brought the second warning to
Brown Brown started to read the notice and then, nervous and shaking, tore it
into four pieces Hester recalled that Brown "blew his top" and accused Godfrey
and Hester of "picking on him" According to Godfrey, Brown asserted that the
Respondent was trying to get rid of him Godfrey told Brown that this was not
true, that union activity had nothing to do with it At about this point, according
to Brown, he asked if it would clear matters if he again apologized to Melstrom,
that Hester accompanied him to Melstrom's work place where the apology was de-
livered, that he and Melstrom shook hands, and that Godfrey in leaving said,
"Let's make wheelchairs "
If Brown thought, as he testified, that this matter had been laid to rest, his mind
was quickly disabused Godfrey reported to Callahan and Jennings what had
happened Jennings said that Brown had been insubordinate and had destroyed
company property, he should be discharged After some discussion Hester was
instructed to bring Brown to Callahan's office and was told that Brown had been
fired Arriving at Callahan's office, Brown was told, he testified, that he was dis-
charged for insubordination or for destroying company property Brown said that
he had heard enough and left
Werner Woelke, hired in June 1963, was discharged in February 1964 because
he engaged in a fight with another employee A few days after the discharge he
was rehired In June 1964 Woelke learned that his vacation rights were being
calculated without credit for his employment service prior to his discharge
Woelke protested about this to the personnel office unsuccessfully In 1965 Woelke
became a union supporter and wore a union button at the plant On February
25, as Woelke recalled the date, his supervisor, James Bredehoft, said that a
union was not needed in the plant, that Respondent's employees were a big family
in which a union would bring about "no good relations" Woelke said that he
thought he had been mistreated by his employer and that he was still dissatisfied
about the determination concerning his seniority date According to Woelke,
Bredehoft asked if Woelke would like to see President Jennings about it and
Woelke answered that he would On the same day Bredehoft spoke with Jen-
nings and told him of Woelke's complaint Jennings agreed to discuss the matter
with Woelke Walking to the president's office with Bredehoft, Woelke testified,
Bredehoft suggested that Woelke remove the union button that he was wearing and
Woelke did so Woelke then met with Jennings, Callahan, Vice President Blick-
ensderfer, and Respondent's labor consultant, Lyman Powell After Woelke had
stated his complaint Powell said that he thought the Respondent by rehiring him
so quickly after the discharge had waived its right to change his seniority date
Powell's view prevailed and Woelke's seniority was restored
Bredehoft's testimopy concerning these incidents differs in some respects from
that of Woelke According to Bredehoft, Woelke asked him to ai range a meeting
with Jennings without suggestion from Bredehoft that this could be done and that
en route to the meeting Woelke removed his union button without any intimation
from Bredehoft that he should do so
Frank G Medina, an employee in the maintenance department, testified that
his supervisor, Edward Gibola, on February 26 said that Gibola did not want a
union in the plant and that should the plant become organized Medina would lose
about 85 cents in fringe benefits, that the Respondent could discontinue the Christ-
mas bongs, and that the practice of holding a spring dinner and Christmas break-
fast could be abandoned Gibola also said that Medina was free to matte his own
choice in the matter Medina assured Gibola that he would vote against the Union
A few days before the hearing, Medina testified, he told Gibola that "some lies
had been made lip concerning" Gibola He also told Respondent's counsel, Powell,
that there would be untrue testimony given at the hearing about Gibola
Gibola testified that he told the employees who worked under him that ex-
perience had disenchanted him about unions and that he showed them wage coin
parisons presumably to demonstrate that a union would not necessarily benefit
them He denied that he told Medina that fringe benefits or any other benefit
might be lost if the Union should win
Victor De Lao, Paul Graham, and William Brand, all of them union supporters
and each of them a recipient of,a "harassment" warning notice , testified that Cor-
nelius and Weems capipaigned against the Union during work time, De Lao also
testified that on the day of the election, Robert Bredehoft, a brother of the super-
visor, spent about a half hour urging De Lao to vote against the Union Accord-
ing to De Lao this occurred during working time, over his protests, and in hearing
of his supervisor, Donald Anderson Anderson testified that he did not recall such
EVEREST & JENNINGS, INS. 1157
a conversation and explained that he - is partially deaf. Robert Bredehoft did not
testify. Vice President Callahan testified that he saw Cornelius and Weems away
from their work stations after a lunch period had ended and at his 'direction each of
them was given a written warning against a repetition of that rule violation. Cor-
nelius and Weems testified that on only one occasion did they return late to their
posts and that this was the occasion about which they received their warnings.
B. Conclusions
The record in this case does not warrant a finding that prior to February 12 there
existed any rule in Respondent 's plant forbidding employees to engage in union
activity during working hours. Of course if such activity entailed leaving one's
working station or amounted to "inattention to duties, deliberate idling on the job,"
or "Visiting during working hours," the rules governing employee conduct as pub-
lished would have application and employees were fairly warned that they might
be disciplined for it. It will be recalled that Fred Davis had been warned during
the course of an earlier campaign about engaging in union activity while at work
but the record does not reveal whether on the earlier occasion he was absent from
his work station , or visiting, or idling. His action in asking Cornelius to sign a
union card while the two of them were walking from one work station to another
seems to me to have violated no rule that the Respondent then , on February 10 or
11, had promulgated . I have the same reaction to his comment to Weems that if
she would sign a card she would not have "to take that guff." There is nothing to
show that Davis was then away from his work station or was deliberately idling or
visiting . In any event the affidavits , upon the basis of which the Respondent issued
a number of warning notices asserting that the recipients had been "harassing"
employees , were no more than assertions by some employees that other employees
had asked them to join the Union or to sign a card while on the job or during work-
ing time. If this solicitation did not amount to "visiting " or "deliberate idling" or
"absence from assigned place of work," it violated no published rule.
Obviously , the Respondent encouraged its employees to report to it in affidavit
form any sort of solicitation engaged in by union supporters .4 Its counsel , Powell,
suggested this course to Cornelius . She passed it on to some of her fellow workers
and judging from the flood of affidavits filed in the afternoon of February 12,
knowledge of it spread quickly throughout the plant. That Supervisor Ruffner
advised an employee, Sinor, to avail himself of this opportunity has already been
mentioned.
Upon receipt of the affidavits the Respondent moved quickly and, without any
sort of investigation as to truth , falsity, or circumstances , caused warning notices
to be served upon the accused employees . In addition to the fact that such notices
were placed in the personnel files and could be used as a background of misconduct
affecting future discipline , they were couched in extravagant terms: "Harrassment
of Fellow Employees ." The Respondent did not know at the time that the conduct
complained of could reasonably be so characterized . The term was its own inven-
tion . I find that by encouraging the filing of affidavits against prounion employees
and by the issuance of the warning notices in the circumstances recited the Respond-
ent engaged in harassment of its employees and thus interfered with, restrained, and
coerced them in the exercise of rights guaranteed in Section .7 of the Act.
Cornelius and Weems stoutly opposed the Union , as was of course their right,
and campaigned throughout the plant, often well away from their work stations
against it. I credit the testimony of De Lao, Graham , Brand, and Davis that their
advocacy was not confined to nonwork time. I also credit the testimony of De Lao
that Anderson overheard Robert Bredehoft urge De Lao for a period of about a
half hour during work time to vote against the Union . Anderson 's testimony that
he recalled no such incident is too weak a denial to merit credence. I' believe that
the evidence in this connection fairly sustains the conclusion that the Respondent
viewed tolerantly any activity in the plant directed against the Union but had a
& At the close of the General Counsel's case I granted the motion of Respondent's
counsel to dismiss such an allegation in the complaint and refused to reverse this ruling
at the close of the hearing. Upon a review of the record I am now convinced that the
refusal to reverse was erroneous even if the original ruling was correct. The ruling of
dismissal is hereby vacated. The findings in respect to such encouragement rest on
testimony given by Respondent's witnesses, particularly Vice President Callahan, Super-
visor Ruffner , and Cornelius.
1158 DECISIONS OF NATIONAL-LABOR 'RELATIONS BOARD
markedly different 'attitude toward union supporters. The warning given to Cor-
nelius and Weems about returning late to their work station-was, I am convinced,
pro forma. - .
I credit the testimony of Woelke concerning the circumstances in which a senior-
ity date once denied' him was granted. It is clear that his supervisor offered to
arrange a meeting-with President Jennings in the matter and that Bredehoft did so
only after he learned why Woelke thought that the Union might gain fairer treat-
ment for him. I do not believe the testimony of Bredehoft that Woelke asked to
see Jennings or that Woelke was attempting to pursue a routine grievance proce-
dure. There is no direct evidence that Jennings or his counsel, Powell, thought that
a reversal of the earlier decision on seniority might deprive the Union of a vote, but
they had been in consultation with Bredehoft. He had this information. It is
unlikely that he withheld it and I find that he did not. Neither Jennings nor Powell
testified. I find that by granting a more advantageous seniority date to Woelke in
an attempt to weaken his interest in the Union, the Respondent discriminated in
regard to his tenure of employment to discourage activity in behalf of the Union
thereby engaging in unfair labor practices within the meaning of Section 8(a)(3)
and (1) of the Act.
I credit the testimony of Fred Davis that about February 24, Supervisor Brede-
hoft said that a union victory might or could cause the closing of the plant. Such
a prediction was consistent with the published view of the Respondent that a Union
might reduce its chances of competing successfully. In any event, I regard Davis as
a more credible witness than Bredehoft. I also credit the testimony of Frank G.
Medina that on February 26 his supervisor, Edward Gibola, said that a union would
bring about an end to fringe benefits totaling about 85 cents an hour and could or
would cost the employees their Christmas bonus, the spring dinner and the Christ-
mas breakfast. As a witness Medina was wholly ingenuous. It does not appear
that he was at any time a supporter of the Union. His warning to Gibola, given a
few days before the hearing, that untrue testimony would be or might be offered
against Gibola had no reference to Medina's own testimony. I find that the threats
and predictions made to Davis and Medina interfered with, restrained, and coerced
employees in the exercise of their rights under Section 7 of the Act and that the
Respondent thereby engaged in unfair labor practices within the meaning of Section
8(a)(1) of the Act. -
The penalty of a 3-day layoff imposed upon Fred Davis was an effectuation of
Respondent's policy of harassment toward active supporters of the Union. When it
was decided upon by Callahan and Jenkins, Callahan knew that Cornelius had com-
plained to the effect that Davis was "pushing union" during working hours; that she,
Weems, and Miller had filed affidavits containing that accusation; and that Respond-
ent's counsel, Powell, had said that persons carrying on union activity during work-
ing hours could be disciplined. None of the affiants was questioned to learn just
how valid their complaints were and Davis was not asked if he was guilty before
the decision was reached. I credit the testimony of Davis that he denied violating
any rule against solicitation. Indeed, as has been shown, no such rule existed on
the dates prior to February 12 when he spoke to Cornelius and Weems. Affidavits
concerning union activity were sought by the Respondent and when obtained were
used to intimidate employees who were thus identified as union supporters. I find
that the layoff of Davis was a discrimination in connection with his employment to
discourage membership in and activity in behalf of the Union and that by imposing
this discipline the Respondent has engaged in unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
As in the situation of Fred Davis, the two affidavits 5 filed against Truesdell
Brown recited acts of union solicitation occurring before the Respondent had pub-
lished any rule forbidding such activity. Also, as with Davis, Brown was served
with a warning notice without any investigation on the part of the Respondent as
to the trustworthiness of the accusations made. I have earlier found that this warn-
ing practice in the circumstances recited constituted a harassment of employees
believed to be union supporters. This finding is buttressed by Brown's reaction to
the incident. One who Supervisor Hester regarded as a "quiet" employee angrily
denied that he had violated any rule, called Melstrom a "lying son of a bitch," and
appeared to threaten violence. When Melstrom explained that his affidavit had
been misconstrued; that Brown had not solicited him during working hours, Brown
5 One signed by Lee Melstrom, the other by Ervin Sinor.
' EVEREST & JENNINGS, INC. 1159
apologized for his outburst and peace was restored. There can be no doubt, how-
ever, that Brown's conduct on this occasion was of, a character- disruptive of
employee harmony and good order in the plant.,
In the course of this incident Supervisor Hester learned that Meistrom denied
any rule violation on the part of Brown but there is no evidence that Hester con-
veyed this information, to Superintendent Godfrey in his report on the matter and
no evidence, that, before' decision was reached to issue a second warning, Ervin
'Sindr was interviewed to evaluate whether he as well as -Melstrom had filed an
inaccurate affidavits Then came the second warning, the tearing of the warning
slip, and the discharge. Viewed abstractly, an employee who addresses fighting
words to another employee and then, perhaps defiantly, destroys a warning notice
given him for that conduct has provided his employer with reasonable cause for dis-
charge. But Brown's conduct may not be so viewed. The first warning came to
him as an incident in the Respondent's campaign of harassment against the employ-
ees who supported the Union. Brown asserted and perhaps believed that he had
not solicited for the Union during working hours. A number of other employees
had been given warning notices on the same day and Brown thought, correctly,
that the Respondent was trying to make life hard for those who wanted a union.
The warning notice business was inherently provocative and it came to Brown, obvi-
ously, on a day when he was not the "quiet" employee that Hester knew. Brown
was a victim of Respondent's antiunion campaign. First he was warned about vio-
lating a rule before its publication and then warned again because he reacted
immoderately to the first warning. I think that Brown was provoked into the con-
duct that brought about his discharge and, because the provocation itself (the warn-
ing notice business to union sympathizers) was unlawful, so was his discharge.
"An employer cannot provoke an employee to the point where she commits such
an indiscretion . . . and then rely on this to terminate her employment." 7 I find
that the discharge of Truesdell Brown was discriminatorily motivated in that it was
inextricably intertwined with Respondent's unlawful campaign against the Union
through the medium of warning notices to union supporters. By the discharge the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a) (3) and (1) of the Act.
C. The objections to the election
By order of the Board I am required to make findings of fact and recommenda-
tions in respect to certain objections to' the March 4 election filed by the Union.
Objections numbered 5, 6, 7, 8, and 12 are bottomed upon written communications
from the Respondent to all employees distributed after the filing of the first petition
(February 19) and prior to the election. Through these mediums employees were
told that although the Union boasted about the absence of strikes in plants where it
was the bargaining representative, over the years it had participated in many of
them. A letter of February 25 referred to a 1959 strike by the Union at a nearby
plant (Hokanson) which lasted nearly a month and which gained the strikers noth-
ing. The Respondent commented that its employees enjoyed wages and conditions
at least equal to those existing at the Hokanson plant and asked "WHY PAY
SOMEONE 72 BUCKS A YEAR TO GET WHAT YOU ALREADY RECEIVE
FREE?" The letter continued:
We have a few malcontents in this plant who always think the grass is
greener on the other side of the fence. If they think they would be better
off under a contract of LAM Lodge 1578, then there is one just a short walk
down the street and we invite them to sign on there.
The next day another letter to the employees explained that economic strikers
could be replaced and that when this happened strikers simply lost their jobs. On
March 1 another letter reemphasized the asserted fact that the Union had been
involved in a number of large and costly strikes; that in no case did strikers
achieve their demands. This theme was pursued in a letter of March 2 which
purported to show how much an employee would lose in wages at various rates
in strikes of varying durations.
G From the witness stand Brown denied that he had done any soliciting during work
time. Sinor's contrary testimony is circumstantial and convincing. I find that Brown
urged Sinor to join the Union in a conversation of about 15 minutes while both were
at work.
7 N.L.R.B . v. M 4 B Headwear Co., Inc., 349 F. 2d 170 (C.A. 4).
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Also on March 2 the Respondent wrote:
JUST TO ADD A TOUCH OF ^ COLOR TO THE ELECTION ATMOS-
PHERE THE COMPANY IS PURCHASING $72 WORTH OF GROCERIES
FROM A LOCAL SUPERMARKET AND PLACING THEM ON DISPLAY
IN SHOPPING CARTS WHICH WILL BE MOVED AROUND TO THE
DIFFERENT BUILDINGS UP UNTIL THE ELECTION.
EVERY EMPLOYEE ENTERING THE POLLING AREA TO VOTE WILL
BE GIVEN A TICKET AND STUB. KEEP THE STUB AND DROP THE
TICKET INTO THE BOX PROVIDED. IMMEDIATELY AFTER THE
ELECTION, WE WILL ASK THE NLRB AGENT TO OPEN THE BOX
AND TAKE OUT A TICKET. IF THE TICKET CARRIES YOUR NUM-
BER ON THE STUB, YOU WILL WIN THE $72 WORTH OF GROCERIES
IN THE CART-FREE'
THERE -ARE NO GIMMICKS TO THIS DRAWING' AND IT DOESN'T
HAVE ANYTHING TO DO WITH HOW YOU VOTE' THIS IS JUST
OUR WAY OF ENCOURAGING YOU TO COME TO THE POLLS AND
EXERCISE YOUR DEMOCRATIC RIGHT OF FREE CHOICE!
The grocery-laden carts were placed near (but not in actual view of) the polling
places on the day of the election.
The Union's final objection (numbered 14) relates to alleged surveillance, inter-
ference, and interrogation of employees by Respondent's supervisors concerning
union sympathies.
What has been set forth above represents only a small part of the propaganda
issued to persuade employees that they should reject the Union. The Union did
not remain silent, of course, and issued its own arguments and assertions de-
signed to overcome or negate the Respondent's efforts.
That the Respondent accentuated the possibility of strikes and how dangerous
such actions can be to an employee's economic welfare, is evident. The tone of
the letters is such that an employee could well believe his vote for the Union con-
stituted a surrender of his right to decide his own fate; that once the Union came
in, the individual would become merely a pawn in a power play. This is an exag-
geration and an extreme one but the Union had opportunity to answer and did.
As the Board has often said, in such campaigns some faith must be given to the
good sense of the electorate to discriminate between fact and fantasy; to realize that
both the employer and •the union may be stretching things in order to persuade.
The Respondent may have thought the union supporters among its employees
to be badly misguided but this did not entitle it publicly to brand them as malcon-
tents and to invite them to take employment elsewhere. The Respondent had the
advice of counsel; it must have known that employees have a right to self-
organization and to pursue that right without jeopardy to their employment. The
reference to "malcontents" in the February 25 letter told employees that they
were regarded by their employer as undesirable and that they were invited to find
work elsewhere. Although this falls short of threatening union supporters with
discharge it surely would cause any employee so described to believe that his pros-
pect for advancement or retention might and probably would be affected by his
attitude toward the Union.
The business about the grocery carts constituted a demonstrative argument to
the voters that a year's dues to the Union would buy some quantity of groceries.
Perhaps this was electioneering at a point in the plant too close to the polling
places but this seems not to be the point of the objection. Just how this bit of
showmanship constituted conduct affecting the result of the election is unclear.
The Union's final objection (numbered 14) relates to unlawful surveillance,
interference, and interrogation of employees by Respondent's supervisors.
I find that the reference to malcontents in the February 25 letter and the sug-
gestion that they find other jobs constituted impermissible interference with the
election. So also did the threats and questioning of Fred Davis by Bredehoft and
of Medina by Gibola. On these grounds it will be recommended that the election
of March 4, 1965, be set aside.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with its operations described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among the several States and
EVEREST & JENNINGS, INC . 1161
tend to lead to labor disputes burdening and obstructing commerce and the free
flow of commerce. -
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices,
it will be recommended that it cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the Act . Having found that the
Respondent has discriminatorily laid off Fred Davis and discriminatorily discharged
Truesdell Brown , it will be recommended that the Respondent offer Brown imme-
diate and full reinstatement to his former or substantially equivalent position with-
out prejudice to seniority or other rights and privileges and make Davis and Brown
whole for any loss of pay suffered as a result of the discrimination by payment to
each of a sum of money equal to that which he would have earned as wages; in the
case of Davis for the period of his layoff, and in the case of Brown from the date
of discharge to the date of offer of reinstatement less his net earnings during such
period in accordance with the formula prescribed in F. W. Woolworth Company,
90 NLRB 289 , together with interest on such sums to be computed in accordance
with Isis Heating & Plumbing Co., 138 NLRB 716.
On the basis of the foregoing findings of fact and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Everest & Jennings , Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. By the layoff of Fred Davis and the discharge of Truesdell Brown the
Respondent has engaged in unfair labor practices within the meaning of Section
8(a)(3) of the Act.
3. By the layoff and discharge , by threatening the discontinuance of benefits
should the Union win the election , by encouraging employees to file accusatory
affidavits against union supporters , by granting an employee a preferential seniority
date to encourage him to oppose the Union, and by a systematic harassment of
employees believed to support the Union, the Respondent has interfered with,
restrained , and coerced employees in the exercise of rights guaranteed in Section
7 of the Act, and has thereby engaged in unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 ( 6) and (7) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact, conclusions of law and upon the
entire record in the case , I recommend that Everest & 'Jennings , Inc., Los Angeles,
California, its officers , agents, successors , and assigns , shall:
1. Cease and desist from threatening or harassing employees in connection with
their activities in support of the Union , or granting any benefit to any employee to
encourage him to oppose the Union, laying off or discharging any employee because
of his support of the Union , or in any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-organization , to form
labor organizations , to join or assist the Union or any other labor organization, to
bargain collectively through representatives of their own choosing , and to engage in
concerted activities for the purposes of collective bargaining or other mutual aid or
protection , or to refrain from any or all such activities.
2. Take the following affirmative action which I find will effectuate the policies
of the Act:
(a) Offer immediate and full reinstatement to Truesdell Brown and make Brown
and Fred Davis whole for any loss of earnings suffered as a result of the discrimi-
nation against them in the manner set forth in the section of this Decision entitled
"The Remedy."
(b) Preserve and, upon request , make available to the Board or its agents, for
examination and copying , all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records which are necessary to a
determination of the amounts due under the terms of this Recommended Order.
(c) Notify Truesdell Brown if presently serving in the Armed Forces of the
United States of his right to full reinstatement upon application in accordance with
the Selective Service Act and Universal Military , Training and Service Act, as
amended, after discharge from the Armed Forces.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Post at its plant in Los Angeles, California , copies of the attached notice
marked "Appendix " 9 Copies of the notice to be furnished by the Regional Direc-
tor for Region 31, shall, after being duly signed by the Respondent , be posted by it
immediately upon receipt thereof, and be maintained by it for 60 consecutive days
thereafter , in conspicuous places, including all places where notices to employees
are customarily posted Reasonable steps shall be taken by the Respondent to
insure that said notices are not altered , defaced , or covered by any other material
(e) Notify the Regional Director for Region 31, in writing , within 20 days from
receipt of this Decision , what steps it has taken in compliance 9
It is finally recommended that the election conducted among Respondent's
employees on March 4 , 1965 , be set aside
8 In the event that this Recommended Order is adopted by the Board the words "a
Decision and Order" shall be substituted for the words " the Recommended Order of a
Trial Examiner ' in the notice In the further event that the Board ' s Order is enforced
by a decree of a United States Court of Appeals the words ' a Decree of the United States
Court of Appeals , Enforcing an Order ' shall be substituted for the words a Decision
and Order"
0In the event that this Recommended Order be adopted by the Board this provision
shill be modified to read 'Notify said Regional Director , in writing within 10 days from
the date of this Order , what steps the Respondent has taken to comply herewith'
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended , we hereby notify our employees that
WE WILL NOT discourage our employees from becoming members of or from
engaging in activity in behalf of International Association of Machinists and
Aerospace Workers (AFL-CIO), or any other labor organization , by laying
off or discharging any employee , or by granting any employee a preferential
seniority date, or in any other manner discriminating against employees in
regard to hire or tenure of employment or any term or condition of
employment
WE WILL NOT threaten that employee benefits will be or may be forfeited or
that the plant may close if our employees choose the above -named Union or
any other labor organization to represent them
WE WILL NOT harass our employees with written warning notices because
they have evidenced support for any labor organization or in any other manner
interfere with, restrain , or coerce them in the exercise of their rights guaran-
teed in Section 7 of the National Labor Relations Act to join or not to join a
union or to be active in behalf of or against such an organization
WE WILL pay Fred Davis the wages he lost because of his 3 -day layoff
WE WILL offer to Truesdell Brown immediate and full reinstatement to his
former or substantially equivalent position without prejudice to his seniority
or other rights and privileges and make him whole for any loss of pay suffered
as a result of the discrimination against him
All our employees are free to become, remain , or refrain from becoming or
remaining , 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 National Labor Relations Act, as amended , as modified by
the Labor-Management Reporting Act of 1959
EVEREST & JENNINGS, INC,
Employer
Dated------------------- By-------------------------------------------(Representative ) ( Title)
NOTE -We will notify Truesdell Brown if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act , as amended , after discharge from the Aimed Forces
CONTINENTAL SALES COMPANY 1163
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its pro-
visions , they may communicate directly with the Board 's Regional Office , 312 North
Spring Street , Los Angeles , California , Telephone No. 688-5850.
Continental Sales Company and International Union , United
Automobile , Aerospace and Agricultural Implement Workers
of America (UAW), AFL-CIO. Cases Nos. 18-CA-1863,18-CA-
1941, and 18-CA-2035. May 27, 1966
DECISION AND ORDER
On October 13, 1965, Trial Examiner Phil Saunders issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in certain unfair labor practices and recommending
that it cease and desist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Decision. He also
found the Respondent had not engaged in other unfair labor prac-
tices and recommended that the complaint be dismissed as to them.
Thereafter, the Respondent filed exceptions to the Trial Examiner's
Decision and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Chairman McCulloch and Members Fanning and Brown].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the Respondent's exceptions and brief, and the
entire record in these cases, and hereby adopts the findings, conclu-
sions, and recommendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Delete from paragraph 1(a) of the Trial Examiner's
Recommended Order.
[", ... except as authorized by Section 8(a) (3) of the Act."
[2. Delete from paragraph 1(g) of the Trial Examiner's
Recommended Order.
1 We agree with the Trial Examiner that James Klein and Robert Klein are entitled to
reinstatement . We do not agree , however, that in the event they are reinstated they are
also entitled to payment under the profit -sharing plan. Instead, we provide that if they
are offered reinstatement and refuse it, they are to be paid their share under the plan,
including in their service the period from the date of the discrimination against them
to the date of an offer of reinstatement.
158 NLRB No. 111.