Joslyn Mfg. and Supply Co.

National Labor Relations Board - Board Decisions

Sep 8, 1967

167 N.L.R.B. 353 (N.L.R.B. 1967)

JOSLYN STAINLESS STEELS 353
Joslyn Stainless Steels, a Division of Joslyn Mfg. and
Supply Co . and United Steelworkers of America,
AFL-CIO. Case 25-CA-2641'
September 8, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
25-RC-3307 from Case 25-CA-2641 and remanding the former to the
• Regional Director for final determination Consequently the validity of
the election in the representation case is not an issue for Board determina-
tion in this case
P The Trial Examiner found that employee Dorothy Shirley testified
that she disseminated to other employees Plant Supervisor Stuntz' threat
that there would be a loss of job classifications in the event of a union vic-
tory We find nothing in the record to support this finding of dissemination
and reverse the Trial Examiner' s finding as to this point
3 With the exception of that portion of the Recommended Order which
pertains to the represen tation proceeding See fn 1, supra
Delete from paragraph 2(a) of the Trial Examiner 's Recommended
Order that part thereof which reads " to be furnished" and substitute
therefor "on forms provided "
On April 7, 1967, Trial Examiner Stanley N.
Ohlbaum issued his Decision and Report on Objec-
tion to Election in the above-entitled case, finding
that the Respondent had engaged in and was engag-
ing in certain unfair labor practices within the mean-
ing of the National Labor Relations Act, as
amended, and recommending that it cease and de-
sist therefrom and take certain affirmative action,
as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint and recommended that such
allegations be dismissed. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Deci-
sion and a supporting brief and the General Counsel
filed a brief in support of the Trial Examiner's Deci-
sion.
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 hereby
adopts the findings,2 conclusions, and recommenda-
tions of the Trial Examiner.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner3 and hereby
orders that the Respondent, Joslyn Stainless Steels,
a Division of Joslyn Mfg. and Supply Co., Fort
Wayne, Indiana, its officers, agents, successors,
and assigns , shall take the action set forth in the
Trial Examiner's Recommended Order.
' This complaint was originally consolidated by the Regional Director
with the related representation proceeding (Case 25-RC-3307) for pur-
poses of taking evidence on common issues Since the election had been
conducted pursuant to a consent-election agreement entered into by the,
parties under Section 102 62(a) of the Rules and Regulations of the Na-
tional Labor Relations Board , as amended , the Board , after issuance of
the Trial Examiner ' s Decision , issued an Order severing Case
TRIAL EXAMINER'S DECISION AND
REPORT ON OBJECTION TO ELECTION
STANLEY N. OHLBAUM, Trial Examiner: This con-
solidated case,' involving alleged violations of Section
8(a)(1) of the National Labor Relations Act, as amended,
25 U.S.C. Sec. 151, et seq. (Act), and Employer conduct
said to have affected Board election results, was heard
before me in Fort Wayne, Indiana, on February 1, 1967.
All parties appeared and participated throughout by
counsel, who were afforded full opportunity to present
evidence and contentions, file briefs, and propose
findings and conclusions. Subsequent to the hearing,
briefs were received from General Counsel and Respond-
ent, which have also been carefully considered.
Upon the entire record2 and my observation of the wit-
nesses, I make the following:
FINDINGS OF FACT
1. RESPONDENT'S BUSINESS; LABOR ORGANIZATION IN-
VOLVED; JURISDICTION
At all material times, Respondent has been and is an Il-
linois corporation, engaged in manufacturing stainless
steel products , with a place of business in Fort Wayne,
Indiana, where , during the representative 12 months im-
mediately preceding issuance of the complaint , it manu-
factured , and whence it sold and shipped directly in in-
terstate commerce to points outside of Indiana, such
products worth over $50,000. I find that at all said times
Respondent was and is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
' Unless otherwise specified , dates are 1966 throughout.
Procedural historical data - Charge filed by United Steelworkers of
America , AFL-CIO (Union), October 20 , complaint issued by Acting
Regional Director , Region 25 , December 8, Acting Regional Director's
Report and Order on Union Objections (timely filed on October 12 to Oc-
tober 5 Board-conducted consent election ), and order consolidating
representation election case (Case 25-RC-3307 ) with unfair labor prac-
tices case (Case 25-CA-2641), December 8. Two of the three October
12 union objections to election were overruled by the Acting Regional
Director , who in his consolidation order referred the remaining objection
(No 11) to the Trial Examiner (and transferred the representation case to
the Board ), since it involved issues in common with the complaint case,
dependent upon credibility resolution The union objection thus referred
here states that on or about September 30, 1966 [i.e , 5 days before the
election], Respondent through its supervisors threatened elimination of
unit jobs if the Union was selected by the employees as their bargaining
representative
z Hearing transcript corrected by Trial Examiner 's March 17, 1967,
order on notice , and further corrected in accordance with Respondent's
unopposed March 31 , 1967, letter application , which is hereby granted.
167 NLRB No. 43
354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that, at all material times the Union was and is a
labor organization within the meaning of Section 2(5) of
the Act.
I find that assertion of jurisdiction in this case is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
The issues presented in the unfair labor practices case
are whether, in violation of Section 8(a)(1) of the Act,
Respondent at various times in 1966 interfered with,
restrained, and coerced employees in the exercise of
rights guaranteed by Section 7 of the Act through (1)
threats and acts of economic detriment for union mem-
bership or support" and (2) solicitation to employees "to
harass" certain other employees who were union adhe-
rents.' The issue referred in the representation case
likewise concerns alleged economic threats, shortly be-
fore the election, in the event employees selected the
Union as their bargaining agent.
Background
Union organizational activity commenced in July
among Respondent's appropriate unit office, plant cleri-
cal, and technical employees. The ensuing October 5
Board-conducted representation election, based upon the
Union's August 26 petition and the parties' agreement for
consent election approved September 15, was lost by the
Union by a 35 to 22 vote of 59 eligibles. The alleged un-
fair labor practices and objectionable preelection conduct
by Respondent Employer here for consideration, are said
to have occurred from the end of July to October 6.
A. Alleged Violations of Section 8(a)(1) of the Act: In-
terference, Restraint , and Coercion
1. July
Respondent's IBM department keypunch operator
Maryann Wyss, a member of the prosposed bargaining
unit, testified as General Counsel's witness that on July
25 or 26 her supervisor, Albert Murphy informed her and
other employees that the established practices of per-
mitting lunchtime overtime work, sick leave without doc-
tors' certificates, and conversation during other than
fixed "break" time were being discontinued.5
The testimony of Respondent's Supervisors Murphy
(Data Supervisor, Wyss' immediate supervisor) and Hut-
ton (Chief Plant Accountant, Murphy's immediate super-
visor) indicates that these more restrictive personnel
rules, substantially as described by Wyss,6 were an-
nounced by Murphy, on the date mentioned by Wyss,
upon instructions of Hutton after Hutton had learned for
the first time earlier that day from Murphy about union
organizational activity, perhaps specifically on the part of
Wyss. Murhpy also testified that during his meeting with
the employees on July 25 when he announced these
tightened rules, he was questioned by employees Wyss
and Covault about shop practice consequences of
unionization , to which he replied noncommittally except
that he stated that in the event of any reduction-in-force
following unionization there would be transfers rather
than discharges.
Further according to Wyss, later that day (July 25 or
26) Murphy told her he was "surprised that [you] would
participate in Union activities; and ... that Mr. [Hutton]
told him that he knew who had gone to the Union meeting
and who were passing out cards." When, thereupon,
Wyss asked Murphy the reason for the changed rules he
had announced that morning, Murphy replied, "You're
not so dumb that you don't know that the Company
doesn't want a Union."7 Questioned about this episode,
Murphy did not appear to testify with unequivocal direct-
ness about it; stating, for example, that Wyss did not
speak to him "about the union ," that he "know[s]
nothing about the conversation," and that, as to whether
he spoke to Wyss at all then, "I don't remember. I can't
say that I did or didn't."
My observations of Wyss' demeanor as a witness per-
suade me that her testimony deserves credence. To the
extent that her testimony in regard to the July 25 or 26
events is in certai"espects inconsistent with that of
Hutton8 and Murphy, upon the basis of demeanor com-
parsions evaluated within the frame of reference of the
record as a whole, I credit Wyss' testimony.
I find that the statements made to Respondent' s assem-
bled IBM department employees by its Supervisor
Murphy on July 25, timed as they were upon learning of
the employees' union organizational activity, and directed
as they were to a restrictive tightening of Respondent's
existing relaxed personnel rules and practices regarding
overtime and other matters9of significance to employees,
were tied to the employees' exercise of organizational
rights guaranteed to them by the Act, and were of coer-
cive impact and effect in interference therewith.
Complaint pars 5(b), (c), (e), (f), and (g), the last two added through
amendment at the hearing
4 Id, par 5(d)
5 Although these new rules were, I find, undoubtly promulgated sub-
stantially as testified by Wyss, it appears that, other than lunchtime over-
time proscription during the ensuing month or two, they were not actually
enforced According to Respondent's Supervisor Murphy, there was a
return to lunchtime overtime about 2 weeks after his July 25 announce-
ment to the contrary.
6 Although on cross-examination Murphy indicated that the announced
proscription of lunchtime overtime was limited by him to lunchtime over-
time " [un ] approved by the supervisor," if his own additional testimony
that such overtime had never been without his authorization is given cre-
dence, no reason appears for the announcement , other than his own
testimonial explanation that he made it "Because I was instructed, sir, by
my supervisor [ Hutton] ," to whom he had admittedly reported the blos-
soming union organizational activity earlier that day.
' Hutton conceded that he preferred not to see the Union in the plant.
Employee Shirley 's undisputed testimony establishes that Plant Superin-
tendent Stuntz entertained similar sentiments more strongly expressed.
9 Including Wyss' account of a July 14 episode with Hutton concerning
lunchtime overtime, with regard to which her highly persuasive version on
rebuttal was unrebutted by Respondent
9 Respondent urges that lunchtime overtime was a continuing problem
which had been met in the same way on prior occasions Even assuming
this to have been true, I find there was no substantial credible evidence
that the announcement of the tightening of that policy, timed immediately
following Respondent 's learning of the employees' union organizational
activity, was a routine handling of that "problem," but that it was, within
the context of the circumstances shown and upon the entire record, for
coercive reasons to discourage the organizational activity. It is noted, in
this connection , that there was at the same time an apparently un-
precedented accompanying sudden stringent tightening up of other bene-
ficent personnel policies (e.g., easy sick leave and on-the-job conversa-
tion) affecting employees
2. August
JOSLYN STAINLESS STEELS 355
On August 8, Dorothy E. Shirley, also a member of the
proposed bargaining unit, secretary to Respondent's
Purchasing Agent James Rinehart, wrote a letter to Plant
Superintendent Stuntz, calling to his attention that she
had been invited to attend a union organizational meeting,
expressing her general disfavor of unionism, and raising
questions as to the effects upon her of plant unionization.
Although Stuntz did not respond to this letter in writing,
he promptly informed Mrs. Shirley on the telephone that
he was "pleased" at it. A few days later, in Stuntz' office,
to which Mrs. Shirley had gone concerning a company
news periodical, Stuntz:
... suggested that I tell the Union advocates to get
out of the plant; to tell the Union to get out ... that
I should go over and talk to these people. He named
a couple of them [Maryann Wyss and Tom Bell]
who were involved in this, and suggested that I talk
to them. He said I would probably be called some
names, but my comment to that was, that I had been
called names before. And that I should actively work
on them to get the Union out; that we didn't want
this.
*
... to go into the I.B.M. or to go to these people
and to ask them to tell the Union to get out, to active-
ly just tell them that we just didn't want this, to make
sure that they understood that we did not want a
Union.
Stuntz added that since Mrs. Shirley "had no friends out
there anyhow ... it would not hurt [your] position to tell
them, " specifically naming employees Wyss (in the
forefront of the union organizational activity) and Bell to
her. Mrs. Shirley later did in fact disseminate this
message to employees.
In substantial credible essence, the version of Plant Su-
perintendent Stuntz (who recalled Mrs. Shirley's
described visit to his office), responsive to the foregoing
testimony of Mrs. Shirley, may be summed up in Stuntz'
own testimony:
For the life of me I cannot remember the contents of
this conversation. 10
Inasmuch as Mrs. Shirley impressed me as a highly
credible witness, I credit her account of this conversation
with Plant Superintendent Stuntz, as well as her
testimony that she disseminated Stuntz' remarks among
other employees.
Although it would have been unexceptionable under
the Act for Stuntz to indicate to Mrs. Shirley that
Respondent did not favor the Union, and even to request
her to assist him in lawfully propagating that view among
10 In response to leading -type questioning by Respondent 's counsel,
Stuntz did, however, express a broad argumentative disclaimer of asking
Mrs Shirley to "tell people that the Company does not want the Union"
since he "would not have told that to anyone " However, he promptly
added and reiterated a number of times that he was unable to remember
the contents of his conversation with Mrs Shirley
" "Employees are not likely to miss the inference that the source of
benefits now conferred is also the source from which future benefits must
flow and which may dry up if it is not obliged " Harlan , J , in N L R B v
Exchange Parts Company, 375 U S 405, 409 " it is common ex-
perience that the desire of employees to unionize is raised or lowered by
the advantages thought to be attained by such action " Reed, J , in Radio
Officers' Union [A. H. Bull Steamship Co.] v. N.L.R.B , 347 U S 17,51
employees, Stuntz went beyond this when he utilized
Mrs. Shirley to convey Respondent's message to "tell the
Union advocates to get out of the plant." Coming as it did
from the responsible head of the plant, this message could
mean nothing other to the employees than that the Com-
pany did not desire to continue in its employ those em-
ployees who wished to exercise their organizational rights
under the Act. I find that this was in interference with and
in coercion of the employees' free exercise of those
guaranteed rights."
3. September
Mrs. Shirley further testified that, upon hearing plant
rumors to that effect, toward the end of Sep-
tember-shortly before the October 5 election-she
asked Plant Superintendent Stuntz whether "there
[would] be a loss of job classifications contingent upon
the outcome of the election," to which Stuntz replied,
"Yes .... It is true" and that "if the Union became the
bargaining unit or the representative of the office and
technical people, they would lose two classifications ....
It was based upon work that had recently been coming
in from Chicago, that had been transferred from Chicago
into the Fort Wayne Office and that work would be sent
back ... this was the work that had been brought down
from Chicago that they did not want it being handled by
Union people."12 Such a change of classifications, in the
accounting department, according to Mrs. Shirley, could
affect her own job. Stuntz also commented to Mrs. Shir-
ley at this time, that:
... no one made you stay and work at Joslyns. You
could leave if you didn't like the working conditions
or the way things were; that they felt that you could
get another job.
With regard to this episode, as with his earlier (August)
conversation with Mrs. Shirley, although Plant Superin-
tendent Stuntz recalled the occasion he allegedly could
not recall the conversation. 13
Favorably impressed as I was with the testimonial
demeanor of Mrs. Shirley, I also credit her version of this
conversation with Plant Superintendent Stuntz, which I
find constituted a threat of economic detriment to
Respondent's employees in the event of unionization, in
interference with and coercion of their organizational
rights guaranteed under the Act.
4. August-October
According to further testimony of Mrs. Shirley, from
the time she first learned (in late July or early August) of
the union organizational activity, up to the October 5
Union election, "frequent" conversations occurred
"Language may serve to enlighten a hearer, though it also betray the
speaker's feelings and desires , but the light it sheds will be in some degree
clouded , if the hearer is in his power." Learned Hand, J., in N L R B. v
Federbush Company, Inc , 121 F. 2d 954,957 (C A 2) It is to be remem-
bered that to the employees here the message emanated from a source
with power to make it good. Cf N L R B v. Eastern Die Co, 340 F 2d
607 (C A 1), cert denied 381 U S 951
12 Stuntz testified that unionization would not have resulted in a loss of
job classifications
13 As with regard to the August conversation , again the argumentative
disclaimer was elicited from Stuntz on direct examination that he did not
"believe" he "would have told anyone that "
310-5410-70-24
356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
between her supervisor Rinehart and herself regarding
"changes that would occur if the Union came in." Some
of these discussions were opened up by her, others by
Rinehart "volunteer[ing] this information." Speaking of
"some of the [existing] unwritten job benefits," Rinehart
told her that if the Union came in:
. we would have to go back to having to punch
time cards because they would like to have an exact
time as to the amount of time we were on the job.
... the company would want a better assessment of
when [i.e., time] we arrived. In some cases now you
can be several minutes late and this can be excused;
also, that there would be no more personal phone
calls at work to be received or to be given. This
would be limited because with the Union shop these
things always went. You would need a doctor's cer-
tificate when you had been out ill because these
things were normally required .... I would not be
able to handle my personal affairs in the office. Previ-
ous to this I had been granted time off to go to court
to pursue child support; that this would not be easy
to arrange; and various other things.14
Conceding that he had such discussions with Mrs. Shir-
ley, Rinehart (Respondent's purchasing agent) attempted
to portray that these occurred in an atmosphere of non-
committal responses on his part to questions by Mrs.
Shirley, such as "I didn't know" to questions about
timecards. Asked whether he ever predicted unionization
consequences, Rinehart's testimonial response was, "I
don't believe so"; asked whether he ever volunteered in-
formation on this subject to Mrs. Shirley "on his own,"
his response was, "Not to my knowledge"; asked
whether Mrs. Shirley ever discussed loss of job classifica-
tions in the event of unionization, his response was, "I
don't remember," and, asked whether Mrs. Shirley ever
told him she spoke to Plant Superintendent Stuntz about
it, his response was, "I don't recall." While admitting, on
cross-examination, familiarity with union matters through
previous employment under union conditions, he also
testified that when Mrs. Shirley "asked me about the ad-
vantages and disadvantages of the Union and I really
could not tell her."
Although Rinehart demonstrated improved recollec-
tive powers at the hearing over his alleged recollective
powers when he executed a pretrial affidavit for a Board
agent, it was apparent that those recollective faculties
were still substantially deficient at the hearing. As ob-
served, his testimonial performance could not justifiably
be preferred to that of Mrs. Shirley, who, as already in-
dicated, impressed me highly favorably as worthy of be-
lief. I accordingly credit Mrs. Shirley's described
testimony in this aspect as well, in preference to
Rinehart's defective and other recall, and further find that
the described statements by Rinehart were in fair contem-
14 Mrs. Shirley had always been able to place and receive personal
telephone calls at the office , no medical certificate had been required in
case of illness ; and she had taken time off, without loss of pay, to attend
court to seek child support.
15 Harlan, J., in Textile Workers Union v. Darlington Manufacturing
Co. et al., 380 U.S. 263, 275 Although Mrs Shirley conceded that
Rinehart detailed to her the supposed consequences of unionization as
"possibilities" or in "a half kidding manner ," nevertheless it was brought
home to her that "you were aware that these things could happen ." It has
been pointed out that "executives who threaten in jest run the risk that
plation calculated to "chill unionism " 5 or the exercise by
employees of organizational rights guaranteed under the
Act.
5. September
On September 13, Maryann Wyss asked her super-
visor Murphy for the next "day off' in order to attend a
Board hearing scheduled for 10 a.m. on September 14.
Murphy told her that since she was not due there until 10,
she would have to work until 9 or 9:30. Wyss accordingly
reported for work on September 14 at her regular 8 a.m.
starting time and left between 9 and 9:30 for the hearing.
Her normal workday was 8 to 5, with 1 hour for lunch.
She had not been subpenaed to the hearing. According to
Wyss' testimony, although she had wanted the entire day
off, Murphy only gave her permission to attend the hear-
ing itself, without additional time off. Although Murphy
only intended to give her the necessary time off to attend
the hearing, he conceded that he did not expressly tell her
when to return. When the hearing was concluded at 1
p.m., she had not had her lunch, and it would have taken
her about 25 minutes to return to the plant. After the
hearing she took 2-1/2 hours for lunch and spent the rest
of the day at a hotel on union business, without returning
to or notifying the plant she would not be back. Only one
of the five other employees at the hearing on that shift
returned to work that day. Wyss was in no way
disciplined, reprimanded, or even spoken to for her
described action, and was paid for the full day. However,
during the afternoon, Murphy, seeing others back from
the hearing, was heard to remark "that he thought they
[i.e., Wyss and other unreturned employees] ought to be
back by now"; and, later that day, while Murphy was
being driven from the plant by keypunch operator
Maryann Jellison, the latter asked him, "Could they be
fired over this" and Murphy replied, "Well, they could
be." At a departmental meeting on January 16, 1967,
Murphy admitted to Wyss what he had remarked to Jel-
lison in response to Jellison' s question.16
It is alleged (complaint, par. 5(g)) that the foregoing
episode constituted a threat of discharge by Murphy for
union activity or support. I find that it did not. The
evidence establishes that Murphy intended merely to give
Wyss (and her fellow employees attending the hearing)
the necessary time off reasonably required to attend the
hearing, but failed expressly to specify when they were to
return; that the employees were nevertheless under
reasonable notice and implied obligation to return after
the hearing, but failed to do so; that Murphy did no more
than express the justifiable opinion in a noncoercive
manner during the afternoon that it was time to be back,
and that he similarly -in response to Jellison's question
after work in the car - expressed his bona fide, reasonable
opinion in a noncoercive manner , that employees who
stayed away from work unjustifiably "could be" subject
those subject to their power might take them in earnest and conclude the
remarks to be coercive ." A. P. Green Fire Brick Company v. N.L.R B ,
326 F 2d 910, 914 (C A . 8). "Even though such statements may be ex-
pressive of opinion only, if their reasonable tendency is coercive in effect,
they are violative of Section 8(a)(I)." N.L.R.B. v. E. S. Kingsford, d/bla
Kingsford Motor Car Co., 313 F.2d 826, 832 (C.A . 6), and cases cited.
See also fn. 11, supra.
1e The foregoing is based upon the composite credited testimony of
General Counsel witnesses Wyss and Jellison and of Respondent's wit-
ness Murphy, all essentially consistent.
JOSLYN STAINLESS STEELS
to discharge. I find that the substantial credible evidence
fails to establish that Murphy's remarks or actions in the
described context were coercive of or in interference with
employee rights or otherwise unlawful or improper under
the Act.
6. October
Respondent's Junior Programmer Roland C. Kerr, a
member of the bargaining unit here involved, testified that
on October 6, the day after the union election, he plainly
heard Plant Accountant and Supervisor Hutton
pronounce in a loud voice in the hallway just outside of
the open door to Kerr's office, as Respondent's Rolling
Mill Superintendent and Supervisor Spittal passed by,
that "since the outcome of the election yesterday, `We are
going to do some clean sweeping as soon as this thing is
settled."'
Hutton's contribution to the problem of resolution of
the issue of fact created by the foregoing testimony of
Kerr, an impressively straightforward witness, was to tes-
tify, "I did not say that ... I do not recall saying it to any-
one at any time ... I do not recall having said that to any-
one in the last six months of 1966; and I did not say it to
Bob [Spittal] individually" (emphasis supplied); and ad-
mitting on cross-examination that he may at some other
time have made such a remark "in reference to politics or
many things." Respondent's Rolling Mill Superintendent
Spittal, also called as a witness by Respondent, testified
he could not "recall" that "to my knowledge" Hutton
made the described remark to him in a loud voice. Asked
whether he recalled discussing the union election with
Hutton the next day, he first testified, "Not necessarily,"
then "No." Asked thereupon whether he could recall
"any" remarks "about anything" by Hutton during the
week following the election, his response was, "Right
now, no." Subsequently, asked whether Hutton ever
made any remark concerning the election being over, or
ever discussing the subject with Hutton, his answer was,
"I don't believe so ... I am pretty sure that he did not say
anything to me about that ... I am pretty sure we didn't."
According to Spittal's testimony, he was also unable to
remember presence at Kerr's door on the day after the
election.
The testimony of Hutton and Spittal on this subject im-
pressed me as equivocating or, at best, demonstrating de-
fective recall; whereas I was favorably impressed by the
straightforward nature of Kerr's testimony, which rang
true. I accordingly credit Kerr's testimony, and further
find that the described remark was, as narrated by Kerr,
made in a loud enough voice in a public place under cir-
cumstances such as to negate any claim that it was con-
fidential in nature between supervisory, personnel (i.e.,
" Cf Wigwam Mills, Inc , 149 NLRB 1601, 1610, in. 27, and cases
cited , enfd 351 F 2d 591 (C A 7)
19 If "the danger inherent in well-timed increases in benefits is the sug-
gestion of a fist inside the velvet glove" ( Harlan, J., in N.L R B v
Exchange Parts Co , 375 U S. 405, 409), the danger inherent in well-
timed removal of benefits is no less and suggests the fist without the velvet
glove
19 There is no substantial credible evidence to support the conclusion
that Mrs Shirley engaged in an entrapment scheme vis-a-vis either Stuntz
or Rinehart Any conclusion to the contrary would not only be purely
speculative, but imaginative without relationship to the record
20 Cf Morganton Dyeing and Finishing Corporation, 154 N LRB 404,
41 l,Star Cooler Corporation, 129 NLRB 1075, 1076,fn 3
357
Hutton and Spittal) intended only for supervisory "ears
... within hearing";17 and that it was in contemplation
coercive in nature, designed and with the effect to serve
as a threat to employees of discharge or other reprisals for
having engaged in or for continuing to exercise their
rights, guaranteed by the Act, to engage in union or-
ganizational activity.
B. Respondent's Contentions
Respondent urges, with regard to the workrule changes
concededly promulgated by Murphy on the same day as
he learned of the union organizational activity, that these
were not threats since he "merely announced some
changes to take effect immediately." (Respondent's brief,
p. 4.) The timing and circumstances persuade me other-
wise, it being well settled that such "mere announce-
ments" can be, as they were in this case, highly coercive
in character. 1I
With regard to the episodes involving Mrs. Shirley and
Plant Superintendent Stuntz, Respondent appears to take
the view that the circumstance of Mrs. Shirley's having
solicited the information upon the basis of impressing
Stuntz with her solid antiunion virtue, served to insulate
what passed between them from taint of impropriety
under the Act. I do not share this view. Merely because
an employee asks an employer for his views, such as on
the consequences of plant unionization, does not free the
employer with impunity to make economic threats and
otherwise engage in broad-spectrum violation of the Act.
Nor does the fact that an employer believes he is talking
into a friendly ear provide license to violate the Act.19
For one thing, such an argument assumes that Mrs. Shir-
ley's views were immutably fixed, and that she was not at
least in part merely subjecting those views to the acid test
of her employer's reaction. If anything, those reactions
could only have tended to lock her firmly into her
professed antiunion views. But what if, as later eventu-
ated, a cloud upon her own job title should develop,
stemming from the employer's threats of loss of job clas-
sifications in the event of unionization? Would the threat
be any the less potent because of her antiunion views?
Furthermore, experience teaches that friend as well as
foe may be coerced ;20 perhaps, indeed, more readily
because more desirous of maintaining friendship or sup-
posed preferential status, or because less suspicious of
blandishment or more receptive to the lure.21
Nevertheless, as indicated above, it is not Stuntz' ex-
pressions of antiunion sentiments, nor even any enlist-
ment by him of Mrs. Shirley to disseminate such a view
by lawful persuasion, which were improper here. It was,
however, improper for Stuntz (1) to procure Mrs. Shirley
to spread Respondent's word that union adherents should
21 Nor would it be of consequence that the particular employee to
whom the statements were made did not feel coerced thereby, since the
offense to the Act is to be measured independently of the actual subjective
effect of the words upon the person to whom made Cf. Zimnox Coal
Company, 140 NLRB 1229, 1234, enfd as modified 336 F.2d 516 (C.A
6); Eastern Die Company, 142 NLRB 601, 602, in. 2, enfd 340 F.2d 607
(C A 1), cert denied 381 U S 951, Drennon Food Products Co , 122
NLRB 1353, 1356, The Rein Company, 114 NLRB 694, 697-698; The
Dalton Company, inc , 109 NLRB 1228, 1229 It is further to be
presumed that such statements are passed on and circulated around
among employees Cf Frankel Associates , Inc., 146 NLRB 1556, 1557
Indeed , here Mrs. Shirley expressly testified that she did so
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leave Respondent's employ, and (2) to state that
unionization would result in loss of existing job classifica-
tions. It cannot be doubted that when Stuntz expressly
acknowledged to Mrs. Shirley (who passed the word on)
that unionization would result in loss of job classifica-
tions, this was no less than the plant head telling the em-
ployees in plain terms that jobs would be lost or
jeopardized if they chose the Union as their bargaining
representative-a right guaranteed to them, free from
such restraint, under the Act. The fact that, as now'
claimed, the job classifications involved were of such a
nature that they could not be filled by union ad-
herents-i . e., jobs in the accounting department , involv-
ing access to data concerning plant expansion plans,
which could conceivably be "useful" for further union or-
ganizational purposes - cannot here be considered deter-
minative, since the jobs were not classified as confidential
or as exempted from the bargaining unit, and all sides
were apparently content to regard their incumbents as
eligible to vote in the Union election. Furthermore, there
is no evidence that any such clear delimitation of or ex-
planation regarding the job classifications to be abolished
in the event of unionization, was borne home to the em-
ployees. Nor am I persuaded, by that substantial credible
evidence which is required, that the alleged jobs were
really of such a confidential character as is now claimed,
it being noted that Stuntz himself testified that the clas-
sifications would not have been abolished in case of
unionization. Moreover, even if they were and even if
Respondent could legally have abolished or transferred
them from its Fort Wayne plant in the event of unioniza-
tion, because of their allegedly confidential nature, it was
nonetheless coercive to threaten employees so to do as
the price they would have to pay for exercising rights
guaranteed to them under the Act.
With regard to the statements made by Rinehart to
Mrs. Shirley (his secretary, but concededly a member of
the bargaining unit), much that has already been said re-
garding Stuntz is equally applicable thereto. Respond-
ent's suggestion that unit secretaries are fair game for
otherwise unlawful interference and coercion , is unper-
suasive. My attention has not been called to any provi-
sion of the Act or decision construing it, exempting this
employee catagory from the Act's protections. In
absence of such exemption, it would appear proper to
presume at least an equivalent need.
Respondent urges that the words and actions com-
plained of must in any event be regarded as inconsequen-
tial and trifling. I am unable to write them off with so
temptingly easy a flourish, or to discount their operative
efficacy in the contest for the employees' minds. Rather,
I incline toward viewing them, because of their direct
economic connotations - which of course play strongest
and with the most resonant overtones among most em-
ployees -as moving the fulcrum of the contest out of fair
balance. We are adjured to be mindful in these situations
that regardless of the post facto inconstancy of the signal
22 Although credited testimony of Wyss supplies basis for finding that
Respondent also conveyed the impression of surveillance of employees'
protected concerted activities , such finding is here omitted in view of the
failure to place Respondent on fair notice through the complaint or other-
wise at the hearing that it was being required to defend against such an al-
legation.
23 Cf Industrial Steel Products Company, Inc, 143 NLRB 336,
Playskool Manufacturing Company, 140 NLRB 1417, 1419, Dal-Tex
which such threats appear to outsiders to have emitted, to
employees toward whose economic interests they were
beamed they emanated from a source with authority to
carry the threats out to the employees' detriment. Cf.
N.L.R B. v. Eastern Die Company, 340 F.2d 607, 608
(C. A. 1). It is, of course, settled that a threat need not ac-
tually be carried out in order to be coercive. Id., 142
NLRB 601, 602, fn. 2; Forest Oil Corporation, 85
NLRB 85, 86. Although it may be presumed that threats
of this type are spread to other employees by the em-
ployee to whom made, cf. Frankel Associates, Inc., 146
NLRB 1556, 1557, here Mrs. Shirley's credited
testimony expressly establishes that she disseminated at
least the worst of the threats; i.e., loss of job classifica-
tions in the event of unionization. Surely other employees
had every justification to regard Mrs. Shirley, because of
her position , as having obtained accurate information and
being a reliable conduit from "the boss" himself.22
III. REPORT ON OBJECTION TO ELECTION
What has already been said is dispositive of union ob-
jection II to alleged employer conduct affecting the Oc-
tober 5 election. That objection, timely filed, is based
upon Stuntz' described threat to Mrs. Shirley on or about
September 30, to eliminate unit job classifications or jobs
in the event the Union was selected by the employees as
their bargaining representative. I have already found the
corresponding unfair labor practice alleged in the com-
plaint (par. 5(e)) to have been established. It cannot be
said that the threat of loss of job classifications by the
Employer just before the election did not unfairly hobble
the Union by placing a prohibitive price on organizational
adherence. It follows23 that union objection II to Em-
ployer conduct affecting the October 5 election outcome
should be sustained, and I so recommend.
Upon the foregoing findings and the entire record, I
state the following:
CONCLUSIONS OF LAW
1. Joslyn Stainless Steels, a Division of Joslyn Mfg. &
Supply Co., Respondent herein , is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America , AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By the conduct set forth in section II which has
been found to constitute unfair labor practices, Respond-
ent has interfered with , restrained , and coerced its em-
ployees in the exercise of rights guaranteed to them by
Section 7 of the Act, and thereby 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 affect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
Optical Company, Inc, 137 NLRB 1782, 1786-87 It cannot be
presumed that a threat by the plant chief, a scant few days before the elec-
tion, to do away with job classifications in the event of unionization, was
without powerful coercive effect upon the employee voters and therefore
the election outcome Employees , as voters generally, may be expected to
vote against something they fear may cost them their jobs See cases
quoted and cited supra, fn I I
JOSLYN STAINLESS STEELS 359
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend that it cease and desist
therefrom and take certain affirmative action designed to
effectuate the policies of the Act. Inasmuch as the unfair
labor practices involved strike at the roots of employee
rights intended to be secured by the Act, I shall further
recommend that Respondent refrain from like or related
acts infringing upon employees' untrammeled exercise of
Section 7 rights. I shall also recommend that Respondent
be required to post an appropriate notice.
I am also recommending that union objection II to the
election of October 5, 1966, in Case 25-RC-3307 be
sustained, that said election be set aside, and that said
case be remanded to the Regional Director for Region 25
to conduct a new election at such time as he deems cir-
cumstances permit free choice of bargaining representa-
tive.
Upon the basis of the foregoing findings of fact and
conclusions of law and upon the entire record in this con-
solidated proceeding, and pursuant to Section 10(c) of the
Act, I hereby make the following:
RECOMMENDED ORDER
Joslyn Stainless Steels, a Division of Joslyn Mfg. &
Supply Co., its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening employees with loss of any existing
work or work condition, overtime or overtime practice,
or fringe or other benefits or favorable personnel policy
or practice, in case of or by reason of union membership,
adherence, assistance, activity, support, or sympathy.
(b) Threatening or indicating to employees that if they
desire to become or remain union members or to assist or
support a union, they should quit Rspondent's employ.
(c) Threatening to eliminate, reduce, or transfer job
classification, jobs, or work, or any employee incumbent
of any thereof, in the event of unionization of Respond-
ent's plant or portion thereof, or by reason of union
membership, adherence, assistance, activity, support, or
sympathy.
(d) Threatening discharge of or any reprisal against
any employee by reason of voting for a union or other-
wise in any Board-conducted election, or because of
union membership, adherence, assistance, activity, sup-
port, or sympathy.
(e) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights to self-organization; to form, join, or assist any
labor organization; to bargain collectively through
representatives of their own choosing; to engage in con-
certed activities for the purposes of collective bargaining
or other mutual aid or protection; or to refrain from any
and all such activities.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its plant in Fort Wayne, Indiana, copies of
the attached notice marked "Appendix."24 Copies of said
notice, to be furnished by the Regional Director for Re-
gion 25, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
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 Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify said Regional Director , in writing, within 20
days from the receipt of this Decision , what steps have
been taken to comply herewith.25
I FURTHER RECOMMEND that the complaint in Case
25-CA-2641 be and the same is hereby dismissed as to
all violations alleged but not herein found ; 26 and that the
election held on October 5, 1966 , in Case 25-RC-3307
be set aside and that said case be remanded to the Re-
gional Director for Region 25 to conduct a new election
at such time as he deems that circumstances permit free
choice of bargaining representative.27
24 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 Ap-
peals Enforcing an Order" shall be substituted for the words "a. Decision
and Order "
25 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read. "Notify said Regional Director,
in writing, within 10 days from the date of this Order, what steps Re-
spondent has taken to comply herewith "
26 On brief, Respondent renews its contention that the complaint should
be dismissed because its allegations, although responsively pleaded to in
the answer and now litigated, are not coterminous with the charge. As at
the hearing, the motion is denied, since Respondent overstates the
requirement Cf. Act, Sec 10(b), N.L.R.B v Fant Milling Co , 360 U S.
301, 307-308, National Licorice Company v N L R B, 309 U S. 350,
368-369, Consolidated Edison Co v N.L.R.B, 305 U.S 197, 224-225,
NLRB v Mackay Radio & Telegraph Co, 304 U S 333, 349-351,
Bakery Wagon Drivers and Salesmen, Local 484 [Continental Bakery
Co.] v N L R B, 321 F 2d 353, 356 (C A D.C ), N L.R.B v Wichita
Television Corporation, dlbla KARD-TV, 277 F 2d 579, 583 (C A 10),
cert denied 364 U S 871
29 In the event Respondent refuses or fails to comply with the terms of
the Order in Case 25-CA-2641, I recommend that said Regional Director
should also be authorized to conduct the new election herein recom-
mended, upon written request of the Union Ideal Baking Company of
Tennessee, Inc, 143 NLRB 546, 554, fn. 9
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
WE WILL NOT threaten employees with loss of any
existing work or work condition, overtime or over-
time practice, or fringe or other benefit or favorable
personnel policy or practice, in case of or by reason
of union membership, adherence, assistance, activi-
ty, support, or sympathy.
WE WILL NOT threaten or indicate to employees
that if they desire to become or remain union mem-
bers or to assist or support a union, they should quit
our employ.
WE WILL NOT threaten to eliminate, reduce, or
transfer job classification, jobs, or work, or any em-
ployee incumbent of any thereof, in the event of
unionization of our plant or portion thereof, or by
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
reason of union membership , adherence , assistance,
activity , support , or sympathy.
WE WILL NOT threaten discharge of or any reprisal
against any employee by reason of voting for a union
or otherwise in any Board -conducted election, or
because of union membership , adherence,
assistance , activity, support , or sympathy.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of their rights , guaranteed by Congress , to self-
organization , to form labor organizations , to join or
assist any labor organization , to bargain collectively
through representatives of their own choosing, to en-
gage in concerted activities for the purposes of col-
lective bargaining or other mutual aid or protection;
or to refrain from engaging in any or all such activi-
ties.
WE WILL NOT in any manner interfere with the
right of our employees to make a free and untram-
meled choice in any election conducted by the Na-
tional Labor Relations Board.
All employees are free to become , remain , or refrain
from becoming or remaining , members of United Steel-
workers of America, AFL-CIO, or any other labor or-
ganization.
JOSLYN STAINLESS STEELS,
A DIVISION OF JOSLYN MFG.
& SUPPLY CO.
(Employer)
Dated By
(Representative) (Title)
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 provisions , they may communicate
directly with the Board ' s Regional Office, 614 ISTA
Center, 150 West Market Street , Indianapolis , Indiana
46204, Telephone Melrose 3-8921.