F. P. Adams Co., Inc.

National Labor Relations Board - Board Decisions

Aug 1, 1967

166 N.L.R.B. 967 (N.L.R.B. 1967)

F.P. ADAMS CO., INC. 967
F. P. Adams Co., Inc. and Sales Drivers, Food
Processors , Warehousemen & Helpers, Local Union
No. 952, International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America
F. P. Adams Co ., Inc. and Sales Drivers, Food
Processors, Warehousemen & Helpers, Local Union
No. 952 , International Brotherhood of Teamsters,
Chauffeurs , Warehousemen & Helpers of America,
Petitioner . Cases 21-CA-7371 and
21-RC-10169
August 1, 1967
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
By MEMBERS FANNING, JENKINS, AND ZAGORIA
On April 19, 1967, Trial Examiner Howard
Myers issued his Decision in the above-entitled
proceeding, finding that the Respondent had en-
gaged in the unfair labor practice alleged in the com-
plaint and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner further recommended that Ob-
jection 1 to the election in Case 21-RC-10169 be
sustained. Thereafter, the Respondent filed excep-
tions to the Trial Examiner's Decision and a sup-
porting brief, and the General Counsel filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in this case, and finds
merit in the exceptions of the Respondent. Ac-
cordingly, the Board adopts the Trial Examiner's
Decision only to the extent consistent herewith.
Union organizational activity commenced on
July 26, 1966. A demand for recognition was made
on August 9 and rejected by the Respondent on
August 11. On the same date Respondent posted a
notice on plant bulletin boards stating its opposition
to the Union. Paragraph (6) of the notice announced
the following no-solicitation rule:
No person will be allowed to carry on union
organizing activities on the job. Anybody who
does so and who thereby neglects his own work
or interfer-s [sic] with the work of others will
be subject to discharge.
The notice was also mailed to each employee.
On August 22, in response to the Union's charge
of ambiguity in the rule, Respondent posted and
mailed to all employees a second notice which
stated in pertinent part:
. no employee will be allowed to carry on
activities for or against the union on working
time . . . . If you want to talk about the
Dodgers or Angels, whichever your favorite
baseball team may be, or about anything else
before or after work, during meal periods and
during rest periods, this, of course, is your
privilege.'
On September 22, the Regional Director, follow-
ing a hearing on a petition filed by the Union,2
directed the conduct of an election on October 21.
The preelection campaign was vigorously waged
by both parties and included numerous mailings of
campaign propaganda to individual employees. The
Union lost the election by a vote of 34-21. On Oc-
tober 28, the Union simultaneously filed objections
to the election and charges of unfair labor practices,
specifying the same five items in each. On
December 13 the Regional Director overruled Ob-
jections 2, 3, 4, and 5, and noted that Objection 1,
alleging the unlawful promulgation of the no-
solicitation rule here in issue, was the subject of a
complaint issued on December 9. He ordered the
cases consolidated for hearing.
Following a hearing held on February 16 and 17,
1967,'the Trial Examiner issued his Decision find-
ing that Respondent violated Section 8(a)(1) in that
the promulgation and posting of the no-solicitation
rule was motivated by an antiunion animus. The
Trial Examiner expressed the opinion that Re-
spondent's campaign letters to its employees, in the
context of the organizational campaign, necessarily
imparted to the August 11 notice an illegal coercive
effect, which effect was illustrated by the cessation
of discussion of union matters after August 1 I ex-
cept amongst known union adherents. The Trial
Examiner cites Greensboro Hosiery Mills, Inc.,
162 NLRB 1275, in support of his conclusions.
Contrary to the Trial Examiner, we find that the
record as a whole does not substantiate a finding of
unlawful motivation in the promulgation of the rule.
The rule on its face is presumptively valid since it
seeks to regulate employee activity only during
working hours. In the past the Board has found the
presumption rebutted and the rule invalid where cir-
cumstances surrounding the promulgation and en-
forcement of similar rules necessarily imparted to
' Emphasis supplied. Both notices were taken down on September 2. 2 Case 21-RC-10169.
166 NLRB No. 112
968 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
them an illegal coercive effect .3 William H. Block
Company, 150 NLRB 341; Ward Manufacturing,
Inc., 152 NLRB 1270; Serv-Air. Inc., 161 NLRB
382; TRW , Inc., 161 NLRB 690. In William H.
Block , the Board found the rule unnecessary to
maintain production and discipline . It further found
the rule disparately enforced within a context of nu-
merous other unfair labor practices . In Ward there
was evidence of discriminatory promulgation and
enforcement . No justification for the promulgation
of the rule was presented by the Employer. The
Serv-Air rule was promulgated and enforced within
a context of other unfair labor practices , including
discriminatory discharges , which were found to be
an integral part of a campaign to combat union or-
ganization . And in TRW, the Board adopted the
Trial Examiner 's finding of discriminatory promul-
gation where there was evidence of disparate en-
forcement of the rule and no evidence of prior em-
ployer experience as to the effect of union organiza-
tion on production and discipline . Such circum-
stances are absent in this case . Here, the surround-
ing context is deviod of unlawful activity.4
Moreover , Respondent ' s uncontroverted evidence
as to the nature of the operation involved supports
its contention that the rule was promulgated in the
interest of serving production , order, and
discipline .5 In view of the foregoing , and the fact
that the rule in question was limited to on -the-job
solicitation interfering with production,6 we shall
dismiss the complaint in Case 21-CA-7371 in its
entirety , and overrule Objection I in Case
21-RC-10169. As the tally of the ballots in the
latter case shows that the Petitioner has not
received a majority of the valid ballots cast, we shall
certify the results of the election.
ORDER
It is hereby ordered that the complaint in Case
21-CA-7371 be, and the same hereby is, dismissed
in its entirety.
3 The Trial Examiner 's reliance on Greensboro is inapposite . That case
was not directly concerned with a no-solicitation rule The sole issue
raised by the complaint in this case is Respondent ' s motivation in promul-
gating its no-solicitation rule
4 We find , contrary to the Trial Examiner , that the testimony of em-
ployees Kissel, Anderson , and Smith contradicts the testimony of em-
ployee Haskins , and that their testimony supports a finding that full and
free discussion of union matters among Respondent 's employees con-
tinued after the posting of the August 11 notice
5 Respondent 's employees operate large injection molding machines
which apply from 100-450 tons of clamping pressure Damage generally
occurs when an operator fails to reach into his machine between mold pat-
terns at the end of a cycle to remove all the plastic parts A cycle vanes in
length from 10 to 75 seconds Respondent 's general manager testified that
even under normal conditions the plant has experienced an accident rate
26 percent above the norm for the industry
6 Any ambiguity as to the scope of the rule would appear to have been
clanfied by the August 22 notice which specifically permitted union ac-
tivity on the premises "before or after work , during meal penods and dur-
ing rest penods "
CERTIFICATION OF RESULTS
OF ELECTION
It is hereby certified that a majority of the valid
votes in Case 21-RC-10169 has not been cast for
the Sales Drivers, Food Processors,
Warehousemen & Helpers, Local Union No. 952,
International Brotherhood of Teamsters, Chauf-
feurs, Warehousemen & Helpers of America, and
that said labor organization is not the exclusive
representative of the employees in the unit found
appropriate within the meaning of Section 9(a) of
the National Labor Relations Act, as amended.
TRIAL EXAMINER 'S DECISION
STATEMENT OF THE CASE
HOWARD MYERS , Trial Examiner : Upon a charge
(Case 21 -CA-7371) duly filed on October 31, 19661 by
Sales Drivers, Food Processors , Warehousemen & Hel-
pers, Loca! Union No. 952, International Brotherhood of
Teamsters , Chauffeurs , Warehousemen & Helpers of
America, herein called the Union , the General Counsel
of the National Labor Relations Board, herein respective-
ly called the General Counsel2 and the Board , through the
Regional Director for Region 21 ( Los Angeles , Califor-
nia), issued a complaint dated October 31, against F.P.
Adams Co ., Inc., herein called either Respondent or the
Employer, alleging that Respondent has engaged in, and
is engaging in, unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the National Labor Relations Act, as amended
from time to time , 36 Stat . 136, herein called the Act.
Pursuant to a petition (Case 21-RC-10169) duly filed
by the Union , seeking to be certified as the statutory
collective-bargaining representative of the Employer's
production and maintenance employees , a heanng was
duly held before a Hearing Examiner of the Board.
On September 22, the aforementioned Regional
Director, for and on behalf of the Board , issued and
served on the parties copies of a Decision and Direction
of Election.
Pursuant to the aforesaid Decision and Direction of
Election , an election by secret ballot was conducted
under the auspices of said Regional Director on October
21 among Respondent 's employees in the unit found ap-
propriate for the purposes of collective bargaining. The
Union lost the election.3
On October 28, the Union filed and served due and
timely objections to the Employer's conduct affecting the
results of the election ; specifying therein five items.
On December 13, the said Regional Director issued a
Supplemental Decision in which he overruled Objections
2, 3, 4, and 5 , and noted that Objection 1 was based on
the same facts as the allegations of the complaint in Case
21-C A-7371, and that Objection I "can best be resolved
in a consolidated heanng with Case 21-CA-7371." The
Regional Director in said Supplemental Decision4 then
1 Unless otherwise noted, all dates mentioned herein refer to 1966
' This term specifically includes counsel for the General Counsel ap-
peanng at the hearing
J Of the appropriate 58 eligible voters, 57 cast ballots Twenty-three
ballots were cast for the Union and 34 against
4 Actually , the Decision is entitled "Supplemental Decision and Order
Directing Hearing , Order Consolidating Cases and Notice of Hearing "
F.P. ADAMS CO., INC. 969
ordered that Case 21-CA-7371 and Case 21-RC-10169
"be consolidated for the purposes of hearing , ruling, and
decision by a Trial Examiner , and that, thereafter, Case
21-RC-10169 be transferred to and continued before the
Board in Washington , D.C., and that the provisions of
Section 102 .46 and 102 .69(e) of the [Board 's Rules and
Regulations, Series 8, as amended ] shall govern the filing
of exceptions."
Copies of the charge , the complaint, the Union's objec-
tions to the election , the Regional Director 's Supplemen-
tal Decision , with respect to said objections , were duly
served on Respondent and the Union. 5
On January 16, 1967, Respondent duly filed an answer
denying the commission of the unfair labor practices al-
leged.
Pursuant to due notice , a hearing was held at Los An-
geles, California, on February 16 and 17 , 1967, before
me. The General Counsel and Respondent were
represented by counsel and participated in the hearing.
Full and complete opportunity was afforded the parties to
be heard , to examine and cross -examine witnesses, to in-
troduce evidence relevant to the issues , to argue orally on
the record at the conclusion of the taking of the evidence,
and to file briefs on or before March 24, 1967. Briefs
have been received from the General Counsel and from
Respondent 's counsel which have been carefully read and
considered.6
Upon the basis of the entire record in the case and from
my observation of the witnesses , I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS OPERATIONS
Respondent, a California corporation, has its principal
offices and place of business at Fullerton, California,
where it is engaged in the manufacture, sale, and distribu-
tion of molded plastic products.
Respondent's 1965 out-of-State sales of finished
products amounted in excess of $50,000.
Upon the basis of the above facts, the Trial Examiner
finds, in line with established Board authority, that
Respondent is engaged in, and during all times material
was engaged in, a business affecting commerce within the
meaning of Section 2(6) and (7) of the Act, and that its
business operations meet the standards fixed by the
Board for the assertion of jurisdiction.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization admitting to mem-
bership employees of Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Interference, Restraint, and Coercion
1. The pertinent facts 7
The record discloses no union organizational activities
among Respondent's employees prior to July 1966, even
though Respondent has been in business since about
1955. In the latter part of July, the Union commenced a
campaign to unionize Respondent's production and main-
tenance employees.
The Union's campaign soon came to Respondent's at-
tention and Jack R. Adams, general manager, member of
the board of directors, and brother of the founder of
Respondent, reacted thereto by writing and mailing to the
home of each employee a letter, dated August 2, in which
he, after stating "It has recently come to our attention
that the Teamsters Union Local 952 are (sic) attempting
to organize you by having you sign a consent card so that
only they (sic) can act in your behalf," stated that he
wanted "each employee to know our feelings on this
matter and we in turn will respect yours." These "views,"
expressed in no uncertain terms, clearly disclosed
management's union hostility. The letter's concluding
paragraph reads:
Please think this over carefully and ask yourselves if
you and your family can afford to turn over a large
part of your pay check every month in hopes that the
union will fulfill the many promises they will make.
Remember, they cannot guarantee you anything in
the way of better wages, working conditions, or job
security. The only guarantee will be dues, fines, and
assessments.
Under date of August 9, the Union wrote Respondent
a registered letter- addressing it to Jack Adams and ad-
mittedly received by him the following day-stating that
it represented a majority of Respondent's production and
maintenance employees for the purpose of collective bar-
gaining, requesting to be recognized and dealt with as the
bargaining agent of the employees involved, and suggest-
ing, if Respondent doubted the Union's claim of majority
status, the Union "would be pleased to permit a check by
the State Conciliation Service or [by] any other responsi-
ble disinterested third party of the authorization cards in
our possession."
On August 11, the day following the receipt of the
Union's letter referred to immediately above, Respond-
ent posted on its three plant bulletin boards the following
notice:
TO ALL EMPLOYEES
Since the Teamsters are putting on a campaign to get
in here, a good many questions have arisen with re-
gard to the following matters. We have decided to
state the company's position on these questions as
clearly as we can for everybody alike:
(1) This matter is, of course, one of concern to the
company. It is also, however, a matter of serious
concern to you and our sincere belief is that if
the union were to get in here it would not work
to your benefit but in the long run would be
against your best interest.
(2) It is our intention to oppose the union and by
every legal and proper means to prevent it from
coming into this operation.
5 Naturally, the charge was not served on the Union.
6 The General Counsel appended to his brief proposed remedy, conclu-
sions of law, recommended order, and notice. These proposals are
disposed of in accordance with the findings, conclusions, and recommen-
dations hereinafter set forth.
There is present for decision this question: Whether under the circum-
stances of this case, Respondent's so-called "non-solicitation" rule
promulgated and posted on August 11, 1966, and thereafter maintained
and enforced, interfered with, restrained, and coerced the employees in
the exercise of the rights guaranteed in Section 7 of the Act
970 DECISIONS OF NATIONAL
(3) We would like to make it clear that it is not
necessary, and it is not going to be necessary,
for anybody to belong to the Teamsters, or any
other union, in order to work for this company.
(4) Those who might join or belong to a union are
not going to get any advantages or any
preferred treatment of any sort over those who
do not join or belong to any union.
(5) If anybody causes you any trouble at your work
or puts you under any sort of pressure to join the
union, you should let the compan) know, and we
will undertake to see that this is stopped.
(6) No person will be allowed to carry on union or-
ganizing activities on the job Anybody who does
so and who thereby neglects his own work or in-
terfers (sic) with the work of others will be sub-
ject to discharge.
Apparently, to be sure that each employee knew that it
intended to oppose the Union's efforts to unionize the
plant, Respondent, on the very day it posted the afore-
mentioned notice, mailed a copy thereof to the home of
each employee. The communication sent to the em-
ployee's home was in letter form, on Respondent's letter-
head, and signed by Jack Adams. After the saluation,
"Dear Fellow Employees," the letter stated
To insure full communication of our position against
organization attempts by the Teamsters we had
posted the following in our plant.
The concluding paragraphs of the aforesaid communica-
tion are:
Anybody who tells you anything contrary to the
foregoing is not telling you the truth
We will keep you up todate on any further develop-
ments.
Admittedly, Respondent, prior to or at the time of the
posting of the notice, had no knowledge that any em-
ployee had discussed the Union in the plant before, dur-
ing, or after work, nor had it any knowledge that any em-
8 It is significant to note at this juncture , that the above- quoted notice is
almost identical to the notice which was under attack in Greensboro
Hosiery Mills, Inc, 162 NLRB 1275, decided January 30, 1967 For con-
venience , the Greensboro notice is set forth here at length
TO ALL EMPLOYEES
Since the Union is putting on a campaign to try to get in here, a
good many questions have arisen with regard to the following mat-
ters. We believe that we should answer these questions as clearly as
we can for everybody alike It seems to us, furthermore, that you are
all entitled to know definitely what the Company's position is on
these subjects
(1) This matter is, of course , one of c one ern to the Company
It is also , however, a matter of serious concern to you and our
sincere belief is that if this Union were to get in here , it would not
work to your benefit but, in the long run , would itselfoperate to
your serious harm
(2) It is our positive intention to oppose this Union and by
every proper means to prevent it from coming in here
(3) We would like to make it clear that it is not necessary, and
it is not ever going to be necessary, for anybodi to belong to the
LABOR RELATIONS BOARD
ployee had carried on any union activity in the plant be-
fore, during, or after work. The record, furthermore, does
not support the notice's self-serving statement, "A good
many questions have arisen with regards" to the Union's
campaign.
On August 11, Adams wrote the Union that Respond-
ent (1) could not recognize or deal with it on the basis of
a card check, (2) seriously questioned whether the em-
ployees desired to be represented by the Union, (3)
questioned the appropriateness of the claimed unit, and
(4) in its opinion, the entire matter should be resolved by
the Board.
In response to Adams' above-referred to letter of Au-
gust 11, the Union wrote him as follows:
In your letter of August 11, 1966, you seek to justify
your refusal to bargain with this organization on two
grounds:
1. You question whether the employees (i.e.,
presumably, a majority of them) desire to be
represented by Local 952.
2. You question whether the unit of employees we
seek to represent is appropriate for purposes of col-
lective bargaining.
As regards the appropriate unit, since the unit we
seek has been found appropriate for purposes of col-
lective bargaining by the National Labor Relations
Board in many, many thousands of cases, and has
never been found inappropriate, your "question" is
easily answered. You are completely mistaken.
As regards whether Local 952 represents a majority
of the employees, that "question" may be easily
resolved. Simply agree to have an election conducted
by the National Labor Relations Board at the earliest
possible date.
In your letter of August 2, 1966, to the employees
you state, "We are not opposed to unions, but ..."
On our part, we would be disposed to believe your
statement of non-opposition of August 2, but on Au-
gust 11, 1966 you informed the employees, "It is our
Hosiery Workers AFL-CIO Union, or any other Union, in order
to work for this Company The law of North Carolina guaran-
tees this to you
(4) Those who might join or sign up with this Union are not
going to get any advantages or any perferred treatment of any
sort over those who do not join or belong to any Union
(5) If anybody causes you any trouble at your work or puts
you under any sort of pressure to join the Union, you should let
the Company know, and we will undertake to see that this is
stopped
(6) No person will be allowed to carry on Union organizing
activities on the job Anybody who does so and who thereby
neglects his own work or interferes with the work of others will be
subject to discharge
Anybody who tells you anything contrary to what is stated above
is not telling you the truth
GREENSBORO DIVISION
KAYSER- ROTH HOISERY
COMPANY
F.P. ADAMS CO., INC. 971
intention to oppose the union by every legal and
proper means to prevent it from coming into this
operation."
It would appear, therefore, that what your August 2
statement really means is: you do not oppose any
union except whatever union your employees favor.
Your letter to the employees of August 11 contains
a "no solicitation" rule. As expressed, however, the
rule is ambiguous , and is unlawfully one sided, as
well. First, as your attorney will inform you, you may
not prohibit union organizing activities on the job so
long as those activities are conducted on the em-
ployee's own time (e.g., during the meal period, be-
fore and after work, and during rest periods). Second,
you will have to enforce the rule impartially. That is,
you will have to prohibit your supervisors and any-
one else from campaigning against the union during
working hours. We hereby formally request you to
clarify your statement of the "no solicitation" rule in
accordance with the foregoing in an official commu-
nication to your employees. Absent that, your "full
communication" of August 11 of your opposition to
our organizational campaign is unlawful.
On August 22, Respondent posted the following notice
on its plant bulletin boards:9
NOTICE TO ALL EMPLOYEES
Some question has be raised as to whether the mean-
ing of our no solicitation rule is clear to our em-
ployees. As published, it stated "No person will be
allowed to carry on Union organization activities on
the job." In order that there may be no misun-
derstanding whatever as to the meaning of the rule,
we want you to know that this rule simply means that
no employee will be allowed to carry on activities for
or against the Union on working time, and this was,
of course, our intention at all times in promulgating
the rule. If you want to talk about the Dodgers or the
Angels, whichever your favorite baseball team may
be, or about anything else before or after work, dur-
ing meal periods and during rest periods, this, of
course, is your privilege. to
Regarding the posting of the August 11 and 22 notices,
Sharon Haskins credibly testified, and without contradic-
tion, that she has been a Respondent press operator on
the first shift for a year; that commencing with the passing
out of the first union leaflet on July 26, until the posting
of the August 11 "non-solicitation" notice, the em-
ployees freely discussed the Union among themselves on
"our breaks, lunch hours, and in the backroom";lt that
after the August 11 notice had been posted the Union
was discussed only by the union adherents with other
known union adherents even though said discussions
were had during nonworking time ; and that prior to Au-
gust 11, it was the normal practice for the backroom em-
ployees to carry on conversations during working hours
in the presence of supervisors about any topic what-
soever, including the Union; and that after the posting of
the August 11 notice the backroom employees complete-
ly ceased to talk about the Union in the backroom.
Under date of October 7, Adams addressed a person-
al I? letter to each employee to his or her home calling at-
tention to the forthcoming October 21 Board election.
The letter was sent to the employees' homes to quote
from the letter, "[to] officially notify you of the coming
election and also to remind you that you are eligible to
vote" therein, to advise the addressee the election will be
conducted by secret ballot under the auspices of the Na-
tional Labor Relations Board, and "you have the legal
and moral right to vote `No' or however you wish,
whether or not you signed a union authorization card."
The letter, in pertinent part, continues as follows:
... I can tell you that there is no doubt that the fu-
ture holds even better things for all of us. I have al-
ready talked with you about the fact that Adams has
become a member of the Stanley Home Family just
this year. In this short period of time we have already
seen results. In the talk I had with you on July 25th,
I told you about our new group insurance program,
the new job evaluation and rate range program, and
the new merit rating review program. All three pro-
grams are now in effect, and you are reaping the
benefits. In addition, we have already commenced
work on our new building. As you know, our new
building will be a substantial improvement, and will
provide you with better air circulation to help dis-
sipate the heat, better lighting, new air-conditioned
restrooms, a large private cot room, and a special
lunchroom area and facilities. This was done without
the prodding of an outside union!
* * * *
Between now and the election you should carefully
consider the facts ... not empty campaign promises.
You should carefully consider what Adams stands
for and what you can expect from it in the future as
a member of the Stanley Home Family, and decide
whether or not to forget all this because of something
a paid-professional union organizer may say in an
election campaign- in the hopes of winning your
vote and your dues money.
Under date of October 10, Adams addressed a two-
page personal letter to the employees at their homes,
setting out in detail manner the annual compensation
received by the Union's business agents, and that Team-
sters International President James Hoffa's annual salary
is $100,000 plus a $1,000,000 for his attorney's fees.
The letter then asks, "Where do you think this money
[comes] from?" which question is thus answered by:
First of all, there are monthly union dues. The dues
of Local 952 were raised from $6.00 per month to
$7.00 per month as of October 1, 1966. This sum
would come out of your check each and every
month. With this in mind, no one has to think very
9 The record does not disclose whether the August 11 notice (the first
so-called "non-solicitation" rule) was removed from the bulletin boards
when the August 22 notice (second so-called "non-solicitation" rule) was
posted. The record , however, does disclose that the first notice remained
posted for two or three weeks and the second until September 2.
11 Apparently, the only one who questioned the ambiguity of the mean-
ing of the notice was the Union and that was done in its August 18 letter
which Respondent left unacknowledged.
11 The "backroom" is that section of the plant 's working area where
parts are trimmed.
12 Meaning , addressing the employee by his or her first name and sig-
ning the letter, "Sincerely, Jack "
972 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
long or very hard about why the Teamsters are here.
They hope to take a substantial amount of money per
year out of your paychecks in dues alone.
After stating, among other things, "If you are forced to
join the Teamsters Union you can be fined for doing
anything Teamster officials do not approve of. You can
be forced to pay tribute, which the Teamsters call an as-
sessment. The Teamsters like your money, the waiving
of initiation fees is a 'gimmick,' in order to trick you into
voting to join them," the letter concludes as follows:
If you believe that the Teamsters are really in-
terested in you and not in the dues, initiation fees,
fines and assessments you represent, the next time a
professional Union organizer is around, ask him this
question. Ask him if his Union will agree in writing
that should they happen to win the election, they will
never ask the Company to sign a contract requiring
everyone of you to pay Union dues or agree to never
ask us to fire any employee because he fails to pay
Union dues, initiation fees, or any other money to
this Union. Let's see who the Union is really worried
about!
This Union has been making you promises. Your
Company tells you facts' Everything contained in
this letter was taken from Official Government
Records. I ask you to think this over carefully and
then ask yourself whether you and your family want
to turn over a large part of your paycheck every
month just because some Union made promises to
you. Vote "NO"'
Under date of October 13, Adams sent another two-
page personal letter to each employee directed to his or
her home, stressing: (1) the Union is in a position of only
promising the employees better wages and working con-
ditions, (2) if the Union happens to win the Board-con-
ducted election it still is in the "promising" position, and
(3) it is only the Employer who is able to grant increased
employee benefits. The letter, after asking the employees
to, "just stop for a minute and consider what would hap-
pen if the Union should be successful in its efforts to gain
control over you and your fellow workers by winning the
election," then states, "If the Union should win, we
would not suddenly, by some form of magic, change our
whole way of doing business. All the Company would be
required to do would be to sit down with the Union
Representatives and bargain in good faith [but] ... No
one knows what would result from these negotiations.
You might get more, you could get less, or you could
receive the same as you are now getting. . Don't throw
away something you know is good to put the Union in a
position to horse trade with your wages, benefits, working
conditions, and even your job."
Under date of October 15, Adams wrote a three-page
personal letter containing a sample of a Board election
ballot with a cross marked in the "No Union" box, to
each employee directed to his or her home, enumerating
18 separate instances where the Teamsters Union in the
past year had struck plants in the Los Angeles area, and
concluding with the comment, "Remember, shops with
NO unions have NO strikes."
The Union lost the Board-conducted October 21 elec-
tion by a vote of 34 to 23.
The following day, October 22, Adams wrote each em-
ployee the following personal letter directed to his or her
home:
I want to take this opportunity to thank you for the
substantial vote in favor of the Company at the ballot
box last Friday, and to let you know that I deeply ap-
preciate your confidence.
The issue has now been decided, and rightly so, in
our traditionally American democratic manner.
Now, irrespective of how you may have voted, let's
all work together to make the Adams Company an
even better place to work for all of us.
2. Concluding findings
Adams, in his August 2, 11, Ociiober 7, 10, 13, 15, and
22, 1966, letters, firmly and graphically conveyed to
Respondent's employees management's hostility to the
Union's attempt to organize the plant. Of course, Section
8(c) of the Act, reflecting the constitutional protection of
speech in general , permits such management arguments
and expression provided, however, that they do not con-
tain a "threat of reprisal or force or promise of benefit."
It is true that much of the language in the aforemen-
tioned letters clearly constituted privileged "free
speech ," within the meaning of Section 8 (c) of the Act,
especially when viewed in isolation, portion by portion.
But the letters, especially when viewed under the circum-
stances they were written, to whom and in the manner
they were addressed, must be considered in their entirety,
as indeed, the employees receiving the letters were
required to do. Thus, it is clear, as the Foarth Circuit
points out in Daniel Construction Co., Inc., v. N.L.R.B.,
341 F.2d 805, 811, "Words and phrases, each lawful
when considered alone can be united in such a fashion as
to yield an improper end product."13
So when viewed, individually or collectively, the letters
created a picture of inevitable employee grief and
economic hardship consequent to the employees' selec-
tion of the Union.
Adams' basic theme, as disclosed by the letters, was
that the improvement in employee conditions could only
come from Respondent and that the best the Union could
do was to request benefits and to cause a strike and possi-
ble shutdown of the plant if Respondent did not accede to
the Union's requests. Emphasis was exclusively upon the
adverse conditions of organization and the suggestion
was more than plain that no possible improvements in
employee conditions could result from instituting collec-
tive bargaining. Adams, moreover, never balanced his re-
marks with any assurance to the employees that there
would be no deliberate reprisals for unionization. Rather,
13 The Daniel opinion continues with the oft-quoted quotation from
Judge Learned Hand in N L R B v Federbush Company, Inc, 121 F 2d
954, 957 (C A 2), "Words are not pebbles in alien juxtaposition they
have only a communal existence ; and not only does the meaning of each
interpenetrate the other, but all in their aggregate take their purport from
the setting in which they are used, of which the relation between the
speaker and the hearer is perhaps the most important part What to an out-
sider will be more than the vigorous presentation of a conviction, to an
employee may be the manifestation of a determination which it is not safe
to thwart The Board must decide how far the second aspect obliterates
the first " See also N L R B v. Brown-Dunkin Company, Inc, 287 F.2d
17, 18 (C A 10)
F.P. ADAMS CO., INC. 973
he repeatedly stressed the importance to the employees
of their remaining in their Employer's favor, for all
benefits must come from it and the Union could not ob-
tain what the Employer did not want to grant. In short,
the letters were adroitly and strategically timed to im-
press upon the employees that continued adherence to
the Union was a fruitless gesture which would bring them
naught, and they could rely on their Employer's unilateral
generosity to obtain their needs. As Adams put it,
Respondent was the source of all employee benefits, and
only when it was able and willing to do so would addi-
tional benefits be offered and no "outsider" could suc-
ceed in getting additional employee benefits if Respond-
ent did not care to grant them. Hence, the prediction of
dire prospects could well be coercive to employees who
were obliged to consider the events predicted lay within
Adams' power to translate into reality.
Thus, in the above-described setting and in the context
of the Union's organizational campaign , the August 11
notice necessarily acquired, as the Board stated, inter
alia, in Greensboro HosieryMills, Inc., supra at 1278-79,
in passing upon a notice practically identical with the
above-quoted August 11 notice, "an illegal coercive ef-
fect," and thereby "not only [was it] deliberately calcu-
lated to, but [did] result in creating a fear of job insecuri-
ty and loss of existing benefits should the employees ex-
ercise their statutory right to select a Union representa-
tive."
In addition, the record discloses, and I find, that the
employees, before the posting of the August 11 notice,
were permitted to engage in any topic of conversation in
the plant's working area during working hours, provided
the conversation did not "last too long," and that since
said posting the employees were permitted to discuss
among themselves in their working areas during working
hours any topic except "union matters." The record
further clearly establishes, and I find, that before and
since the posting of the August 11 notice, employees
were permitted to engage in, while at work, certain non-
union-connected activities. These findings become in-
escapable when consideration is given to the following:
The August 11 notice, in no uncertain terms, states that
the employees were forbidden "to carry on Union or-
ganizational activities on the job" under pain of
discharge. Whereas, the August 22 notice, after explain-
ing that the August 11 nonunion organizational activities
on the job provision merely meant that such activities
were intended to be restricted to working time only, the
notice then concludes, "If you want to talk about the
Dodgers or the Angels, whichever your favorite baseball
team may be, or about anything else before or after work,
during meal periods and during rest periods, this, of
course, is your privilege." The omission of all reference
to discussion to any union activity in the August 22
notice forcefully disclosed that such topics were tabooed
in the plant at all times. "To conclude otherwise would be
to ignore the realities of industrial life." 14
Respondent, while completely ignoring the right of em-
ployees to inform other employees of union activities and
to solicit their interest, attempts to bring its action, as
described above, within the ambit of protected activity by
relying, in the main, upon Adams' self-serving, uncon-
vincing testimony. Respondent's brief (page 4) correctly
summarizes Adams' testimony in this regard as follows:
Adams testified that the no-solicitation part of
such notice was posted because he felt employees
might neglect their work to engage in activities con-
cerning the Union, pro or con, during an organizing
campaign. Although Adams had no actual knowledge
of any employee engaging in activities for or against
the Union on working time in the plant... as an em-
ployee, he had had prior experience with Union
campaigns15 and he felt that there could be some
very distracting conversations on a pro or con ba-
sis -that there could be some very pointed views as
to whether employees were pro-Union or anti-
Union- and that this should not be allowed at the
machines during working time.
Large injection molding machines used in the plant
apply from 100 tons of clamping pressure to as high
as 450 tons . . . that in order to avert a catastrophy,
it is vital that the operators not be distracted or
disturbed while at their machines. This catastrophy
(if an operator is not careful) could be in the form of
great personal harm to an operator, or in the form of
very costly damage to a machine. Such costly
damage , up to several thousands of dollars, has oc-
curred many times in the past. This damage occurs
when an operator fails to reach into the machine
between the mold patters at the end of a cycle and
remove all the plastic parts inside. Accordingly, the
Employer posted the notice before it experienced
any actual problems either with breakage of
machines or with an accident.
It is apparently clear, under the circumstances here dis-
closed, Respondent's aforementioned defense fails to
meet the test laid down in N.L.R.B. v. Babcock & Wilcox
Co., 351 U.S. 105. In that case which stands for the
proposition that an employer cannot interfere with his
employees' right to distribute union literature and solicit
union interest among themselves on company property,
without having a valid reason to the management, produc-
tion, or discipline of the plant, the Supreme Court stated
at page 113, "No restriction may be placed on the em-
ployees' right to discuss self-organization among them-
selves, unless the employer can demonstrate that a
restriction is necessary to maintain production or
discipline."16 Accordingly, I find that the August 11
notice was discriminatorily promulgated and posted, that
said action was motivated by animus against the Union,
and that by so doing Respondent interfered with,
restrained, and coerced its employees in the exercise of
the rights guaranteed in Section 7 of the Act, thereby
violating Section 8(a)(1) thereof.
14 Greensboro, supra at 1279.
15 With respect to this "experience with organizing campaigns ," Adams
testified under examination by Respondent's counsel, that some 20 years
ago, while employed elsewhere as a nonsupervisory employee, a union or
unions carried on organizational campaigns. No other testimony on that
point was elicited and the matter was thus dropped . Even if we assume
that Adams' letters and the promulgation and the posting of the notice
were prompted by his experience while employed elsewhere, he was not
justified in "making the anticipated events the subject of threats . . to
force the abandonment of the Union by the employees " N.L.R B v
Parma Water Lifter Co., 211 F.2d 258, 262 (C.A. 9); accord N L.R.B v
McCatron, dibla Price Valley Lumber Co., etc., 216 F.2d 212-216 (C.A.
9).
16 See also Republic Aviation Corporation v. N.L.R B , 324 U.S. 793.
974 DECISIONS OF NATIONAL
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section III,
above, occurring in connection with the business opera-
tions of Respondent as described in section 1, 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 com-
merce and the free flow of commerce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices violative of Section 8(a)(I) of the Act, I
will recommend that it be ordered to cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act
Except for the unlawful conduct found above, the
record does not disclose that a danger exists that Re-
spondent in the future may commit other unfair labor
practices unrelated in kind to those found. Under the cir-
cumstances, I will not recommend that the Board issue
the usual broad cease-and-desist order
LABOR RELATIONS BOARD
Upon the basis of the foregoing findings of fact and
upon the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is, and during all times material was, an
employer engaged in commerce and in a business affect-
ing commerce within the meaning of Section 2(6) and (7)
of the Act.
2. The Union is, and during all times material was, a
labor organization within the meaning of Section 2(5) of
the Act.
3. By promulgating, posting, and maintaining an un-
lawful no-solicitation rule, the Respondent interfered
with, restrained, and coerced employees in the exercise
of rights guaranteed them by Section 7 of the Act and by
such conduct has engaged in, and is engaging 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 commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]