Hobart Cabinet Co.

National Labor Relations Board - Board Decisions

Jul 22, 1940

25 N.L.R.B. 727 (N.L.R.B. 1940)

In' the Matter of CHARLES C. HOBART, DOING BUSINESS AS HOBART
CABINET Co. and AMERICAN FEDERATION OF LABOR
Case No. C-1579.-Decided July 22, 1940
Jurisdiction : cabinet manufacturing industry
Unfair Labor Practices
In general: responsibility of employer for activities of supervisory employees.
Interference, Restravnt, and Coercion: interviewing employees individually at
a time when they were attempting to organize; grant of wage increases
following previous disclaimer of inability to raise wages, to forestall the
movement toward self-organization by eliminating the major incentive for
such employee action ; taking vote requesting employees to indicate their
preference between propositions stated ; inducing employee to deal individu-
ally regarding his wages.
Remedial Orders : employer ordered to cease and desist unfair labor practices.
Mr. Max W. Johnstone, for the Board.
Shipman' & Shipman, by Mr. F. L. Shipman and Mr. L. H. Ship-
man.; and Mr. Baird Broomhall and Mr. Irvine L. Dungan, all' of Troy,
Ohio, for the respondent.
Air. W. H. Whetro, of Ironton, Ohio, for the Union.
Mr. Edwin L. Swope, of counsel to the Board:
DECISION
AND
ORDER
STATEMENT OF THE CASE
Upon charges and amended charges duly filed by American Fed-
eration of Labor, herein called the Union, the National Labor Rela-
tions Board, herein called the Board, by the Regional Director for the
Eighth Region (Cleveland, Ohio) issued its complaint dated March
19, 1940, against Charles C. Hobart, doing business under the firm
name and style of Hobart Cabinet Co., Troy, Ohio, the respondent
herein, alleging that the respondent had engaged in and was engaging
in unfair labor practices affecting commerce, within the meaning of
Section 8 (1) and Section 2 (6) and (7) of the National Labor Rela-
tions Act, 49 Stat. 449, herein called the Act. A copy of the com-
plaint and a notice of hearing thereon, were duly served upon the
respondent and the Union. -
25 N L. R B, No 80.
727
728 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The complaint alleged, in substance, that the respondent interfered
with, restrained, and coerced his employees in the exercise of the
rights guaranteed them under Section 7 of the Act. The complaint
alleged (1) that on or about January 1, 1940, the respondent asked
one of his employees why the respondent's employees desired a union
and stated to said employee that if the respondent was forced to
raise wages it would result in lay-offs; (2) that on February 14,
1940, the respondent distributed cards among his employees and in-
structed them to vote on the questions presented thereon,' and to
sign and return said cards so marked to the respondent's agents,
and (3) that the respondent by various other acts and various other
methods and means discouraged the Union and membership therein.
On March 29, 1940, the respondent filed an answer to the complaint
denying and admitting certain allegations concerning the nature and
scope of his business and denying the material averments in the com-
plaint relating to the alleged unfair labor practices.
Pursuant to notice,- a hearing was held in Troy, Ohio, on April
1, 1940, before Martin Raphael, the Trial Examiner duly designated
by the Board. The Board, the respondent, and the Union were
represented by counsel and participated in the hearing. Full op-
portunity to be heard, to examine and cross-examine witnesses, and
to introduce evidence bearing upon the issues was afforded all parties.
During the course of the hearing the Trial Examiner made various
rulings on motions and objections to the admission of evidence. The
Board has reviewed all the rulings of the Trial Examiner and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
On May 9, 1940, the Trial Examiner filed an Intermediate Report,
a copy of which was duly served on all parties. ' He found that the -
respondent had engaged in and was engaging in unfair labor prac-
tices affecting commerce within the. meaning of Section 8 (1) and
Section 2 (6) and (7) of the Act, and lie recommended that the
respondent cease and desist from his unfair labor practices and that
he take certain other action to remedy the situation brought about
by the unfair labor practices. On June 1, 1940. the respondent filed
exceptions to the, Intermediate Report, and on June 14, 1940, he filed
a brief. The Board has considered the exceptions and brief filed
by the respondent and, save as the exceptions are consistent with
the findings, conclusions, and order set forth below, finds them to
be without merit.
Upon the entire record in the case, the Board makes the following:
1 The questions were as follo^s . "Do you wish a union to bargain for your rate of
pay"' and "Or would you rather have things as they are now with nage increase when
I can justify it and chance of extra later on"'
CHARLES C HOBARf 729
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT 2
The respondent is an individual doing business as the Hobart
Cabinet Company. He maintains and operates a plant located in
Troy, Ohio, where he manufactures filing cabinets, desks, stock
storage equipment, and other items. During 1939 raw materials
consisting of steel, paint, lumber, and other items, valued at approx-
imately $250,000, were purchased and used by the respondent in the
manufacture of his products. Of these materials approximately
88 per cent were secured from within the State of Ohio while the re-
maining 12 per cent were obtained from without the State of Ohio.
During 1939 the respondent sold about $776,630 worth of his manu-
factured products, of which approximately 88 per cent were shipped
outside the State of Ohio, while the remaining 12 per cent went to
destinations within the State of Ohio.
II. THE ORGANIZATION INVOLVED
The American Federation of Labor is a labor organization within
the meaning of Section-2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference, restraint, and coercion
In December 1939 several of the respondent's employees manifested
a desire to engage in collective bargaining. One of them, Harry
Keyton,, prepared a- petition bearing, the following -heading :
We, the undersigned employees. of the Hobart Cabinet Co. 111
S. Water Street Troy, Ohio do hereby sign this petition of
our own free will to organize for the purpose of Collective Bar-
gaining as a group as defined under the labor laws of the United
States.
At various times between December 26, 1939, and the third week
of January 1940, Dale Yeager, Paul Cruikshank, Beecher Carey, and
Paul Schurr, all employees of the respondent, obtained signatures
thereto from their fellow employees in the plant.
On about December 29, 1939, Hobart, then on vacation in Florida,
received a telephone, call from, his wife in Troy. - She told him that
Superintendent Wright thought that he should be notified of a cer-
tain restlessness in the plant and "conditions there." The next day
Hobart telephoned Wright. In the course of this conversation,
Wright told Hobart that the men were gathering in the plant in
2 The findings in this section are based primarily upon a stipulation of facts between
counsel for the Board , counsel for the respondent , and counsel for the Union
730 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
groups ; and that they were dissatisfied because they had not re-
ceived their usual Christmas bonus. Although Hobart testified that
it was his impression that Wright did not say anything about unions,
he admitted that Wright might have mentioned unions.
On January 5, 1940, Hobart returned to Troy from Florida. Im-
mediately after his return, he interviewed, individually, virtually all
of his 130 employees. His stated purpose in doing so was to learn
more about the unrest and dissatisfaction in the plant concerning
which he had been informed. Hobart admitted that his information
related in part to the activities of some of his employees in securing
signatures to the petition, although he denied knowing the exact pur-
port of the petition. Hobart also admitted that he knew that a few
men were interested in forming a union in the plant.
Lester Williams was one of the first men to be called into Hobart's
office. This occurred promptly on Hobart's' return, Friday, Janu-
ary 5. Williams testified that Hobart asked him "why the trouble
was brewing in the shop," and that he replied that it was "because
wages were too low to make a fair living," whereupon Hobart ex-,
plained that a raise in wages would necessitate raising the price of
cabinets which would make his 'prices higher. than those of his com-
petitors which would result in fewer cabinets being manufactured,
thereby diminishing the number of jobs in the plant. Williams also
testified that Hobart stated "that he understood the fellows wanted
to organize and that he did not like to see it, but that if they did,
he, would just have to deal with us, that there was nothing he could
do about it"; and also that "he would rather deal with the fellows
direct, instead of having collective bargaining by a union."
According to Hobart's version of his conversation with Williams,
he told Williams that-there had been some unrest in the plant and
asked if Williams had "anything that he had to complain of him-
self, or if there was anything I could do to explain wage conditions
or anything in general that I could explain to him." Hobart testi-
fied that at this point Williams "spoke immediately about, as near
as I remember, about the fact that some of the boys, he said, were
going to organize. I didn't ask him that especially, but that was
the explanation that he volunteered." Hobart testified further that
after stating that the men had a right to organize, he told Williams
that "the only possible difficulty I could see with collective bargaining
was that there might be an increase in costs" which might, through
its competitive effects, mean a loss of employment. The Trial Ex-
aminer, who had an opportunity to . observe the demeanor of the
witnesses credited Williams' testimony. We find that Hobart made
the statements attributed to him by Williams.
Between January 5 and January 20 Hobart, as we have said,
interviewed, individually, almost all his 130 employees. The precise
CHARLE'S C. HOBART 731
content of each of these conversations is not disclosed in the record.
Among those called into Hobart's office besides Williams, were
Campbell, Braswell, Casey, Yenger, and Cruikshank. These em-
ployees testified in substance that Hobart asked them whether they
were satisfied with their wages; to some he stated that competitive
conditions disabled him from granting wage increases. The week
following January 5, 1940, Hobart raised the wages of virtually
all his employees.
. On February 13, 1940, several of the respondent's employees
applied for and received from Coleman Claherty, a representative of
the American Federation of Labor, a charter establishing a union
in the plant. At the same time Claherty gave them membership
application cards. During the morning of February 14 these cards
were distributed to and collected from employees in the plant before
work started and during the morning and the noon hour on that
day. About 5 minutes before quitting time of the same day, fore-
men, distributed to the respondent's employees cards, prepared at
Hobart's direction, containing two ` questions :
Do you wish to bargain for your rate of pay?
Or would you rather have things as they are now -with wage
increase when I can justify it and chance of extra later on?
Pursuant to Hobart's instructions, the foreman and the timekeeper
told the employees that it was unnecessary for them to sign the cards,
but that they were to indicate their preference between the two
propositions stated in the questions by marking one or the other
and to place the cards in ballot boxes provided by the respondent.
Of approximately 131 cards distributed, 93 were returned marked
and 43 of the 93 were signed.
Paul Cruikshank, an employee, testified that on February 16 his
foreman, Jesse Arthur, commenced a conversation with him while
Cruikshank was working, and told Cruikshank that if Hobart
"found out who signed or started this union, he was going to lay
them oil or fire them"; and that Arthur also stated that Hobart could
not afford to pay $1.00 or $1.25 an hour as wages. Arthur first
testified that he could not.recall whether he spoke to Cruikshank
on February 16, but later admitted that he "probably" did speak to
him on that day. Arthur denied telling Cruikshank that if Hobart
found out who belonged to the Union, "he'd fire them or lay them
off." As to whether he made the statement about Hobart's not,
being able to pay $1.00 or $1.25 an hour, Arthur's testimony was as
follows : That he did not say it; that he was pretty sure he did not
say it; that he might have said it; and finally that he might have
told Cruikshank, "that Mr. Hobart could not afford to pay a dollar
an hour."
732 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A few days after February 14 Arthur, according to the testimony
of Beecher Carey, an employee, asked Carey whether he had "re-
ceived a card to join the union," and when Carey replied in the
negative, Arthur stated, "Well, 'l seen some of the other fellows have
them" and added, "Well, they can join if they want to, but I don't
think it is going to do them any good." Carey also testified that
Arthur stated that "Hobart didn't have to run this shop" and if
Hobart was forced to raise wages, "he would have to close the shop."
Arthur testified as follows regarding his conversation with Carey:
.Q. Tell us the conversation.
A. Yes, something about-I says, "Well, anybody that wants
to join the union is perfectly welcome." I says "That's O. K.
with me; I have got no jurisdiction over none of them. They
are welcome to join the union."
The Trial Examiner, who had an opportunity to observe the
demeanor of the witnesses, found that Arthur was not a credible wit-
ness. We find that Arthur made the statements attributed to hun
by Cruikshank and Carey.
The respondent urges in his brief that even if it is conceded that
Arthur made the statements he did so without the respondent's au-
thority, and was merely expressing his own opinion. We find, how-
ever, that the respondent, having clothed Arthur with supervisory
authority and power, is chargeable for his above-described
statements.3
Dale Yenger was one of the employees who was interviewed by
Hobart about January 5. Approximately two weeks later, Roy
Brown, his foreman, asked him whether he "wanted collective bar-
gaining" on his wages, and Yenger replied that he did not wish to
bargain with Brown, but that he thought he should have an increase
in wages. Yenger told Brown that he was receiving 43 cents an
hour and that he desired a 10 cents an hour increase. Brown then
went into "the office," and about 20 minutes later returned and told
Yenger that the respondent's "offer was 33 cents an hour." Yenger
told Brown that he was already receiving 43 cents an hour, where-
upon Brown stated that he would give the matter further consider-
ation. Brown did not testify.
On February 21, 1940, after Hobart had been informed that charges
had been filed with the Board against him, he posted the following
notice on the plant bulletin board which remained posted several
days.
3 ". . . with respect to the acts of the supervisory foreman, the doctiines of respondent
superior applies, and the petitioner [ the employer ] is responsible for the actions of the
supervisory foreman , even though it had no actual participation therein " See N. L. R B
V Swift & Company, 106 F. (2d) 87, 1939 (C. C A. 10).
CHARLES C. -TOBART 733
It has come to my attention that the questions asked you
about a week ago were construed by some to mean that I was
interfering with your rights for collective bargaining.
It was not my intention at that time nor is it now to interfere
with anyone's rights.
You will remember that in my personal interview, I stated to
each of you very definitely that I did not want to say a word
against your organizing.
If any of you have misinterpreted the meaning of my card
with the questions, I wish to correct this erroneous impression.
Charles C. Hobart
The respondent's conduct in questioning each of his employees at
a time when they were attempting to organize for the purpose of
collective bargaining, and his statements to Williams that the diffi-
culty "with collective bargaining was that there might be an in-
crease in costs" and that he would "rather deal with the fellows
direct'instead of 'having collective bargaining," coupled with the
warning that a wage increase would result in a reduction in the num-
ber of jobs, constituted a direct interference with and deterrent to
the employees' exercise of the rights protected by the Act.4
Similarly the taking of the vote in the form and in the manner
hereinabove set forth was a further interference with his employees'
union activvities.5 Iii fact, Hobart admitted at the hearing when he
was asked whether the cards were circulated with the idea of dis-
couraging or interfering with the formation of a union, that "there
* Matter of Knoxville Publishing Company and American Newspapei Guild , The Knox-
ville Newspaper Guild, 12 N . L. R. B 1209, 1212-17; Matter of Harry Schwartz Yarn
Co, Inc and Textile Workers Organizing Committee, 12 N. L . R B. 1139, 1146--51;
Matter of Nebel Knitting Company, Inc and American Federation of Hosiery Workers,
6 N L R B 284, 286, 288-S9 , 293, order enforced National Labor Relations Board v
Nebel Knitting Commpany, Inc., 103 F (2d) 594-95 (C. C. A. 4) . National Labor Relations
Board v American Mauiifacturrng Company and Nu-Art Employees, Inc., 106 F (2d)
61 (C C A. 2) ; National Labor Relations Board v. Arthur L Cotten and Abe J. Colman,
Co-Partners , doing business as Kiddie Hover Manufacturing Company , 105 F ( 2d) 179,
181-(C C >A 6) , Virginia Perry Corporation v. National Labor Relations Board; 101
F. (2d). 103, 104-06 (C. C A 4) ; National Labor Relations Board v. A. S Abell Company,
97 F. (2d ) 951, 955-56 (C C. A. 4) ; of Virginian Ry. Co. v System Federation No. 40,
etc, 84 F ( 2d) 641 , 643-44 (C C A. 4), 300 U S 515, 544
' The respondent urges in part that the vote was not a prohibited interference because
the voters were not required to declare their identity by s;gning the ballots This con-
tention is \%ithout merit since the propositions posed necessarily conveyed unmistakably
to the employees the respondent 's opposition to self-organization and collective bargain-
ing. Moreover , in fact, many employees did sign the ballots See Matter of Arthur L.
Cotten, and A J. Colman, Co-Partners , doing business as Kiddie Kover Manufacturing
Company and Amalgamated Clothing Workers of America, 6 N . L. R. B. 355, enf'd in
N L R B v Arthur L. Colter, et al , 105 F. ( 2d) 179 ( C. C. A. 6 ) ; Matter of American
Manufacturing Company and Textile Workers ' Organizing Committee, 5 N. L R. B 443,
enf'd in N. L. R. B v Ainerican - Manufacturing Company, et al , 106 F ( 2d) 61.
734 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
may have been a shade of it." 6 Within a week, of his disclaimer of
ability to increase wages the respondent did grant nearly all his
employees wage increases to forestall the movement toward self-
organization by eliminating the major incentive for such employee
action.' For the same purpose, the respondent sought to induce
Yenger to substitute bargaining on an individual basis with respect
to his wages, for,collective bargaining."
The respondent contends that none of his acts or statements 9 here-
inabove set forth was intended to interfere with his employees'
exercise of the rights guaranteed by the Act but rather reflected his
legitimate desire to ascertain for business reasons the current situa-
tion in the plant. We are not persuaded by the contention. His
conduct was plainly directed against the movement toward self-
organization among his employees although his ultimate motive may
well have been to prevent adverse effects on his business which he
apprehended would result from his employees' assertion of the rights
guaranteed by the Act. We find that the respondent intended the
necessary consequences of his conduct; but, irrespective of his motive,
the conduct itself falls within the proscription of the Act. The re-
spondent further asserts that his statements are within the protection
of the'constitutional guarantee of freedom of speech because they were
not coercive of his employees. This contention is without merit in
view of our findings hereinabove and hereinafter made concerning
the coercive nature of both his statements and acts.'°
We find that the respondent, by interviewing his employees, by
immediately raising their wages, by taking the vote, by the state-
ments of Foreman Arthur, and by its efforts to have Yenger deal
individually regarding his wages, has interfered with, restrained,
and coerced his employees in the exercise of the rights to self-organi-
zation, to form, join, or assist labor organizations, to bargain col-
9 Hobart' s precise testimony was as follows.
Q. Now, did you circulate this card with any idea of interfering or discouraging
the formation of the union?
A. I don't think-there may have been a shade of it, but not enough to feel-it
was largely for my own information . Not the formation of a union , however.
See Matter of The H. M. Ritzwoller Company and Coopers' International Union of
North America, Local No. 28, 15 N. L. R B. 15, enf'd as mod. in The H. M Ritzwoller
Company v N. L. R. B, decided May 8 , 1940, (C. C. A. 7) ; Matter ,of American . Potash, &
Chemical Corporation and Borax & Potash Workers' Union No. 20181, 3 N L R. B. 140,
enf'd in N. L. R. B. v. American Potash and Chemical Corp 98 F. (2d) 488 (C. C. A
9th) cert. denied 306 U. S. 643; Matter of The Dow Chemical Company and United Mine
Workers of America, District No. 50, 13 N. L. R. B. 993.
'See Matter of the Stolle Corporation' and Metal Polishers , Buffers, Platers and Helpers
International Union, 13 N., L It, B. 370; Matter of The Jacobs Bros Co ; Inc. and United
Electrical and Radio Workers of America, 5 N. L. It. B. 620; Matter of David E. Kennedy,
Inc. and Isidore Greenberg, 6 N. L It. B 699
9 As heretofore indicated, the respondent contended that he was not responsible for
Arthur's statements, if made, which contention we have rejected.
'o Matter of Ford Motor Company and United Automobile Workers of America, Local
No 32.5, 23 N. L. It. B 342, and the cases cited in footnotes 10 and 11 thereof.
CHARLES C. HOBART 735
lectively through representatives, of their own choosing, and to en-
gage in concerted activities for, the purpose of collective bargaining
or other mutual aid or protection guaranteed in Section 7 of the Act..
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
We find That the activities of the respondent set forth in Section
III above, occurring in connection with the"operations of the respond'
ent described in Section I above, have a close, intimate, and sub-
stantial relation to trade, traffic, and commerce among the several
States, and tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce.
V. THE REMEDY
Since we have found that the respondent has engaged in certain
unfair labor practices, we shall order him to cease and desist there-
from. In order to effectuate the purposes and policies of the Act, and
as a means of removing and avoiding the consequences of the re-
spondent's unfair labor practices, it is essential that in aid of our
cease and desist order the respondent be directed to post appropriate
notices to his employees in the form hereinafter set forth."
Upon the basis of the foregoing findings of fact and upon the
entire record of the case, the Board makes the following:
CONCLUSIONS OF LAW
1 American Federation of Labor is a labor organization, within
the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing his employees in
the exercise of the rights guaranteed by Section 7 of the Act, the
respondent has engaged in and is engaging in unfair labor practices,
within the meaning "of Section 8 (1) of the Act.
ORDER
Upon the basis of the above findings of fact and conclusions of
law, and pursuant to Section 10 (c) of the National Labor Relations
Act, the National Labor Relations Board hereby orders that the
respondent; Charles C. Hobart, doing business as Hobart Cabinet
Co., and his agents, successors, and assigns shall:
1. Cease and desist from:
(a) In any manner interfering with, restraining, or, coercing his
employees in the exercise of the right to self-organization, to form,
join, or assist labor organizations, to bargain collectively through
"We do not consider the notice posted by the respondent on February 21, 1940, ade-
quate to remedy the effect of the unfair labor practices found.
796 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
representatives of their own choosing, and to engage in concerted
activities for the purpose of collective bargaining or other mutual
aid or protection, as guaranteed in'Section 7 of the Act.
2. Take the following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post immediately in conspicuous places in his plant, and main-
tain for a period of at least sixty (60) consecutive days from the
date of posting, notices to his employees stating: (1) that the re-
spondent will not engage in the conduct from which he is ordered
to cease and desist in paragraph 1 (a) of this Order; and (2) that
the respondent's employees are free to become or remain members of
the American Federation of Labor or any other labor organization,
and the respondent will not discriminate against any employee
because of membership or activity in such organization;'
(b) Notify the Regional Director for the Eighth Region in writing
within ten (10) days from the date of this Order what steps the
respondent has taken to comply therewith.
Mr. WILLIAM M. LEISERSON took no part in the consideration of
the above Decision and Order.