Kimble Glass Co.

National Labor Relations Board - Board Decisions

Aug 11, 1955

113 N.L.R.B. 577 (N.L.R.B. 1955)

KIMBLE GLASS COMPANY 577
according to the shift he would have worked, had he not been laid off because he
wore a "Don't be a Scab!" button.
Upon the basis of the foregoing findings of fact, and upon the entire record
in the case, the Trial Examiner makes the following:
CONcLusIONs OF LAW
1. District No. 55, International Association of Machinists, A.F.L., is a labor
organization within the meaning of Section 2 (5) of the Act.
2. By discriminating in regard to the hire or tenure of employment of the em-
ployees whose names are set forth in footnote 11, supra, the Respondent, Cater-
pillar Tractor Co., has engaged in and is engaging in unfair labor practices within
the meaning of Section 8 (a) (3) of the Act.
3. By promulgating a rule against the wearing of the button bearing the words
"Don't be a Scab!" and by prohibiting its employees from the wearing of the de-
scribed button, the Respondent, Caterpillar Tractor Co., has interfered with, re-
strained, and coerced its employees in the exercise of the rights guaranteed to them
and each of them in Section 7 of the Act, in that it has interfered with the rights
of employees to engage in concerted activity for the purpose of collective bargain-
ing or other mutual aid or protection in contravention of 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 are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted frompublication.]
Kimble Glass Company and International Union of Electrical,
Radio and Machine Workers, CIO. Case No. 9-CA-719. August
11,1955
DECISION AND ORDER
On April 20, 1954, Trial Examiner C. W. Whittemore issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take certain affirmative
action, as set forth in the,copy of the Intermediate Report attached
hereto. Thereafter, the Respondent filed exceptions to the Intermedi-
ate Report and a supporting brief.'
The Board has reviewed the rulings made by the Trial Examiner
at the hearing and finds that no prejudicial error was committed.a
The rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions, and brief, and the entire record in the
case, and hereby adopts the Trial Examiner's conclusions and recom-
mendations with the following modifications : 3
1. We agree with the Trial Examiner that the Respondent violated
the Act by promulgating a rule prohibiting employees from wearing
' As the record and exceptions and brief adequately present the positions of the parties,
we deny the Respondent's request for oral argument.
0 Although we may have some doubt as to the correctness of the Trial Examiner's rul-
ings on the admissibility of certain evidence offered by the Respondent, we have consid-
ered this evidence, much of which was cumulative, and find that it is insufficient to war-
rant a determination contrary to that reached herein.
s We have carefully examined the record and find no substantial basis for the Respond-
ent's charge of bias and prejudice against the Trial Examiner.
113 NLRB No. 58.
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union badges on company property and by discharging 21 named
employees for disobeying this rule.
In the recent Boeing Airplane case,' the Board reaffirmed the well-
recognized principle that a rule prohibiting the wearing of union in-
signia in the plant interferes with employees' organizational rights
unless special circumstances make the rule necessary in order to main-
tain discipline and uninterrupted production e The Respondent does
not challenge the validity of this principle but contends that special
circumstances existed which justified the adoption and enforcement of
the no-badge rule. We do not agree with this contention.
The evidence in the record establishes that for a number of years
the Glass Bottle Blowers Association, AFL, has been the exclusive
bargaining representative for the Respondent's approximately 1,500
production and maintenance employees. At the time the events here-
inafter narrated occurred, the existing contract contained union-
security and no-strike provisions. In July 1953, about 5 weeks before
the expiration of this agreement, the International Union of Electri-
cal, Radio and Machine Workers, CIO, began its campaign to organize
the Respondent's employees. As part of this campaign, and shortly
after its commencement, several employees appeared at work wearing
badges with the inscription "IUE-CIO." At that time there was no
plant rule against wearing union insignia, and, indeed, it had been
the established practice for certain employees, members of the GBBA,
to wear the union insignia of their organization. With the appearance
of the rival union buttons, William Lewis, a GBBA executive board
member, complained to Plant Manager Gatti that the wearing of the
rival insignia was causing a tense and serious situation in the plant
and that there was a strong possibility of violence. Although Gatti
admittedly did not take Lewis' statement seriously, he nevertheless
told him that he would investigate the matter and confer with him
again if necessary. On August 14 the Respondent promulgated a
rule, effective immediately, prohibiting the wearing of any union in-
signia or badges on company property "at any time. Because 21 IUE
adherents continued to wear their union badges, the Respondent, on
August,19 and 20, discharged these employees. There can be no ques-
tion that the inscription on the union badges was neither offensive nor
inflammatory.
The incidents, which the Respondent asserts justified the adoption
of the rule, consist essentially of a series of warnings by GBBA offi-
cials to the Respondent that violence and work stoppages would ensue
unless the Respondent prohibited the wearing of the buttons by the
rival union adherents. It was made clear to the Respondent that their
opposition to the wearing of the buttons stemmed from their resent-
'Boeing Airplane Company, 103 NLRB 1025 , enfd. with mod ., 216 F. 2d 269 ( C. A. 9).
a Cf. Republic Aviation Corp . v. N. L. R. B.; 324 U. S. 793; Caterpillar Tractor Co.,
113 NLRB 553.
KIMBLE GLASS COMPANY 579
ment that another union was seeking to organize the plant. In addi=
tion, the Respondent relies on various threats of violence and work
stoppages by a number of employees, members of the GBBA.6 Thus,
sometime between August 6 and 14, Lewis, a GBBA executive board
member, reported that a machine operator had threatened personal
violence if CIO buttons continued to be worn; and Clark, superin-
tendent in the hot end department, reported that Fred Trimmer, a
machine operator, and Royce Frazier, machine operator and union
steward, had indicated to Clark that they would walk out if any
employee wearing a CIO button was put on their machines. Also,
employee Llewelyn Thiel told Ross, Gatti's administrative assistant,
that if the buttons were not voluntarily taken off, they would be
forcibly removed. Thiel, however, admitted at the hearing that he
did not know whether he personally would have committed any
violence.
In a plant of approximately 1,500 or more employees, we do not
believe that-the situation there prevailing, as indicated in the evidence
the Trial Examiner received and the evidence he excluded, constituted
the special circumstances contemplated by the Boeing principle which
warranted depriving employees of their rights to wear union insignia
in aid of their organizing campaign to supplant the GBBA.' In our
opinion, "special circumstances" require more than an employer's
submission to the demands of an incumbent union or its members to
prevent adherents of a rival union from exercising their legitimate
self-organizational rights. Indeed, it has long been the settled law
that an employer cannot excuse his interference with employees'
rights because of pressure exerted upon him by a union.' Yet, this
appears to be precisely the case here. Instead of taking appropriate
measures against the employees who threatened violence and a work
stoppage, as would normally be expected, the Respondent took the
course of least resistance and adopted the no-badge rule to the detri-
ment of fellow employees seeking to exercise their legitimate rights.9
In fact, with respect to the threatened work stoppages we note that
E Some of the proffered evidence excluded by the Trial Examiner dealt with similar
statements by other employees it appeals that these statements were not brought to the
Respondent's attention before the no-badge rule was adopted.
7 Contrary to our dissenting colleague's opinion, the facts found by the court in Boe-
ing Airplane Co v. N L R. B, 216 F. 2d 269 (C. A. 9), are plainly distinguishable from
those in the present case In that case, the court found an incendiary situation in the
plant stemming from a history of violence and intimidation during a recent illegal strike.
Moreover, we note that despite such history of violence and intimidation, the court di-
rected the reinstatement of a union steward discharged by the employer for wearing a
union steward button
81V. L. R. B. v. Hudson Motor Car Company, 128 F. 2d 528 (C A. 6) ; McQuay-Norris
Manufacturing Co. v N. L. R. B, 116 F. 2d 748 (C. A. 7) ; N. L R. B. v. Puerto Rico
Steamship Association, 211 F. 2d 274 (C. A. 1).
8 Although employee Thiel testified that he was told by management that he or any
other employee would be disciplined and subject to discharge if he got into a fight, there
is no evidence, nor does the Respondent assert, that the Respondent sought to calm the
allegedly disturbed atmosphere by disciplining in any manner those who uttered threats
of violence or work stoppage.
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such work stoppages would have been in clear violation of the Re-
spondent's contract with the GBBA.10 Moreover, threats of work
stoppages cannot be considered like threats of violence in determining
whether special circumstances exist for modifying the statutory rights
of employees. Strike threats offer no justification for limiting em-
ployee's organizational rights." While some circumstances may per-
mit modification of employee rights in the interest of maintaining
production," in our opinion, such circumstances are limited to those
which interrupt the carrying on of production when employees are at
work, not those which might affect production as a result of em-
ployees' withholding their services in a labor dispute because the
employer does not meet their demands. Our dissenting colleague,
however, apparently treats threats to strike equally with threats of
violence as justification for the proscription of the right to wear union
buttons.
Moreover, although the Respondent drafted a set of instructions
to its supervisors concerning the rights of employees and instructed
supervisors to warn employees that they would be subject to discharge
if they engaged in acts of violence, it did not use plantwide publicity
or the sanction of top management to inform all employees of these
matters as it did in announcing the no-button rule. On the contrary,
when on August 13, the day before the no-button rule was posted,
the Respondent's personnel director observed some employees engag-
ing in loud conversations and catcalls about other employees wearing
"IUE-CIO" buttons, he did not condemn the shouting or caution em-
ployees against participating in such disorder, but instead requested
the IUE-CIO adherents to remove their buttons. Again, on August
20, when employees directed catcalls and derogatory remarks at a
group of IUE-CIO advocates who were with the plant manager's
administrative assistant , that official took no steps to stop such- mis-
conduct . The plant manager, himself, when questioned by an em-
ployee as to why a new rule was necessary in view of the existing rule
against fighting, simply asserted that he could make any rule he saw
fit. It is difficult to believe that the Respondent could not have main-
tained complete order and efficiency by making clear to employees
15 The Trial Examiner excluded evidence offered by the Respondent to show that on an
earlier occasion employees were not deterred by the no-strike clause in its contract with
GBBA from engaging in a wildcat strike over a matter not relating to the wearing of
union buttons . Even if we were to accept such evidence as relevant , we would not be
persuaded to conclude that the disregard of the no-strike provision on one occasion justi-
fied the Respondent in curtailing a statutory right particularly where there is no evidence
that the Respondent had attempted to assert its rights under the contract and thus make
clear to the employees that it would not tolerate such breaches of contract obligation in
the future.
n See cases cited in footnote 7, above ; N. L. R. B. v. Star Publishing Company, 97 F. 2d
465 (C . A. 9) ; The Englander Company, Inc ., 108 NLRB 38; Wyandotte Chemicals Cor-
poration, 108 NLRB 1406 -
' See Peyton Packing Company, Inc., 49 NLRB 828, 843; May Department Stores Com-
pany, 59 NLRB 976 , 980, enfd. 154 F . 2d 533 ( C. A. 8), cert. denied 329 U. S. 725.
KIMBLE GLASS COMPANY 581
that it would punish violation of rules against disorder and interrup-
tion of production and by directing its managerial powers to that end
rather than to banning union insignia. Disciplinary measures are cus-
tomarily used not merely as punishment for infractions of rules but
as a means of deterring misconduct.
The Respondent also contends that it was not required to await
an actual outbreak of violence before taking appropriate measures to
.prevent it and therefore that it was privileged to adopt the no-badge
rule as a means to that end. While an employer may not be required
to wait for actual violence to occur in all circumstances, nevertheless,
in balancing the rights of employees to engage in reasonable and legiti-
mate union activities as against the rights of management to maintain
discipline and avoid interruption to production, we believe that in
the circumstances of this case it was incumbent upon the Respondent
to attempt to enjoin the abusive conduct before it prohibited other-
wise proper organizational activity and established as a condition of
employment that employees abandon their statutory rights in order
to forestall the misconduct. Whether all the facts and circumstances
surrounding the promulgation of the no-button rule were such as to
justify restricting the employees in the exercise of their statutory right
to wear union buttons is the issue in the case which the Board is duty
bound to decide. It is pointless to speak about substituting the Board's
judgment for the Respondent's as to the selection of methods to cope
with the situation. So, too, is it irrelevant to talk about the Respond-
ent's good-faith motivation 13 which the dissent also adverts to.
As we find that no such special circumstances existed in this case
as would justify the no-badge rule, we find that the Respondent vio-
lated Section 8 (a) (1) by its adoption. We further find that, as
the 21 named employees were discharged for disobeying this invalid
rule, they were discriminated against within the meaning of Section
8 (a) (3) and (1) of theAct.14
2. At the hearing, the General Counsel was permitted, with the
Respondent 's 'consent ," to amend the complaint so as to allege that
u See Republic Aviation Corp. v. N. L. R. B., 324 U. S 793; Radio Officers' Union etc.
v. N. L. R. B., 347 U. S. 451; N. L. R. B. v. Illinois Tool Works, 153 F. 2d 811 (C. A. 7).
u Republic Aviation Corp. v. N. L. R. B., 324 U . S. 793 . As the 21 dischargees were
privileged to refuse to obey the invalid no -badge rule, we find, contrary to the Respondent's
contention , that it would not effectuate the policies of the Act to deny them reinstate-
ment and back pay for such conduct. See Ferro Stamping and Manufacturing Co., 93
NLRB 1459, 1461.
We agree with the Trial Examiner that a preponderance of the evidence establishes
that Plant Manager Gatti, Personnel Director Anthony, and Assistant Foreman Chris-
topher interfered with the rights of employees to solicit union membership on their own
time. Although the Trial Examiner did not separately conclude that their conduct vio-
lated Section 8 (a) (1) of the Act, it is clear from his other findings and recommended
order that he intended to do so.
16 Although the Respondent consented to the specific amendment, it now challenges the
legality of the Trial Examiner 's finding based on this allegation on the ground that no
proper charge covering this specific violation was filed within 6 months of the occurrence
of the alleged violation . In view of our determination herein, we find it unnecessary to
pass on this contention.
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Respondent discriminatorily applied a rule prohibiting the dis-
tribution of union literature on two parking lots and a macadamized
area adjacent to the plant property by preventing the IUE from dis-
tributing literature while allowing the GBBA, the incumbent Union,
to do so. The Trial Examiner found, and we agree, that the record
does not support this allegation.
However, although not alleged as a violation, the Trial Examiner
found that Respondent unlawfully promulgated and invoked this no-
distribution rule. We do not adopt the Trial Examiner's conclusions
on this point. In our opinion, the present record does not warrant
a finding that the promulgation of the no-distribution rule constituted
a violation of Section 8 (a) (1).
ORDER
Upon the entire record in the case and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, Kimble Glass
Company, Columbus, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Discouraging membership in International Union of Electrical,
Radio and Machine Workers, CIO, or in any other labor organization
of its employees, by discriminatorily discharging any of them or by
discriminating in any other manner in regard to their hire or tenure
of employment, or any term or condition of employment.
(b) Threatening employees with reprisal for soliciting union mem-
bership on their own time or for wearing union badges with the
inscription "IUE-CIO" or any other union insignia while at work.
(c) Promulgating or enforcing rules which prohibit employees
from wearing union buttons, badges, or other union insignia while at
work.
.(d) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form
labor organizations, to join or assist the above-named or any other
labor organization, to bargain collectively through representatives of
their own choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protection, or
to refrain from any or all of such activities, except to the extent that
such rights may be , affected by an agreement requiring membership
in a labor organization as a condition of employment, as authorized
in Section 8 (a) (3) of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
KIMBLE GLASS COMPANY 583
(a) Rescind the rule promulgated on August 14, 1953, which pro-
hibits the wearing of any union insignia or badges on company
property at any time.
(b) Offer to the 21 employees listed in "Appendix A," attached
hereto, immediate and full reinstatement to their former or substan-
tially equivalent positions, without prejudice to their seniority or
other rights and privileges and make all said employees whole for
any loss of pay they may have suffered by reason of the discrimination
against them, in the manner set forth in the section of the Intermediate
Report entitled "The Remedy."
(c) Post at its Columbus, Ohio, plant, copies of the notice attached
hereto and marked "Appendix A." 16 Copies of said notice, to be
furnished by the Regional Director of the Ninth Region, shall, after
being duly signed by the Respondent, be posted by the Respondent
immediately upon receipt thereof and maintained by it for a period
of sixty (60) consecutive days thereafter in conspicuous places, includ-
ing all places where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to insure that said
notices are not altered, defaced, or covered by any other material.
(d) Preserve and upon request, make available to the Board or its
agents, for examination or copying, all payroll records, social-security
payment records, timecards, personnel records and reports, and all
other records necessary to analyze the amounts of back pay due under
the terms of this Order.
(e) Notify the Regional Director for the Ninth Region in writing,
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby is, dis-
missed, insofar as it alleges that the Respondent adopted a no-distribu-
tion rule in violation of Section 8 (a) (1) and (3) of the Act.
MEMBER RODGERS, dissenting :
I cannot agree with the majority that the Respondent, in the factual
context of this case, violated the Act by unlawfully promulgating a
rule prohibiting employees from wearing union badges on company
property and by discharging 21 named employees for disobeying this
rule.
As the circumstances under which the no-badge rule was promul-
gated were not fully developed in the Intermediate Report and are not
sufficiently stated in the majority opinion , I shall summarize them
here.
11 In the event that this Order is enforced by a decree of a United States Court of Appeals,
there shall be substituted for the words "Pursuant to a Decision and Order" the words
"Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order "
379288-56-vol. 113-38
584 'DECISIONS OF NATIONAL LABOR RELATIONS BOARD
For a number of years, GBBA has been the exclusive bargaining
representative of the Respondent's approximately 1,500 employees.
In July 1953, about 5 weeks before the expiration of the current con-
tract, the IUE-CIO began organizing these employees, and shortly
thereafter notified the Respondent of this fact. When it became ap-
parent that a rival union campaign was on, Plant Manager Gatti in
`consultation with the Respondent's attorneys drafted a set of instruc-
tions to supervisors which recognized the employees' right to cam-
paign in the plant during their nonworking hours to the extent that
it did not interfere with production. These instructions were made
applicable to the activities on behalf of both unions, without discrimi-
nation.
At about this time, several employees appeared at work wearing
large badges containing the legend "IUE-CIO." On August 6, 1953,
GBBA representative Lewis informed Plant Manager Gatti that the
wearing of these badges in the plant was creating a serious and tense
situation and would lead to violence and work stoppages, and that
bitter feeling among the employees was running so high that he did
not believe he could control the employees. Gatti checked on the situ-
ation over a period of days and found that it was "more serious" than
he had envisaged. From those personal observations and from reports
made to him by supervisors and employees, Gatti concluded that a
prohibition against wearing union buttons by adherents of either of
the unions was necessary to prevent violence and an interruption of
production. The following reports and observations contributed sub-
stantially to Gatti's decision to issue the rule in question:
On 2 or 3 occasions between August 6 and 14, Lewis called Gatti's
attention to several disturbing incidents among employees in the plant
which were occasioned by the wearing of the CIO badges. For ex-
ample, a threat had been made by a machine operator that if the CIO
badges continued to be worn "somebody is going to get a bar shoved
through their stomachs." On August 10, Superintendent Clark of one
of the departments told Gatti's administrative assistant that super-
visors in his department had reported trouble brewing because of the
appearance of badges in the plant, and that he had personally verified
these reports by interviewing at least six employees. Clark also re-
ported this information to Gatti, furnishing him with the names of
-employees who had threatened to do violence or walk off the job.
Clark reported that Machine Operator Trimmer had said, "I would
throw it [this work] in the hole and go home" if any employee wearing
the CIO badge was put on his machine. Machine Operator Frazier
told his shift foreman, "I would go along with the other operators and
-I would be one of the first to shut my machine down" if these badges
are worn.
BIMBLE GLASS COMPANY 585
Gatti thereupon directed Clark and other supervisors to warn em-
ployees that they would be subject to discharge if they engaged in acts
of violence. In this connection, the Trial Examiner erred in finding
that management's witnesses admitted that no such disciplinary move
was made. The record also shows that employee Thiel testified that
he was told by Administrative Assistant Ross that if he -(Thiel) or
any other employee got into a fight he would be disciplined and also
subject to discharge.
On August 12, GBBA Official Rodgers advised Gatti that the wear-
ing of CIO badges was going to cause violence and a work stoppage
and that if the badges were continued to be worn, "they were going to
close the front end down." Rodgers also predicted that an outbreak
of violence would result unless the badges were removed. Following
these reports by Lewis and Rodgers, Plant Manager Gatti, on August
12, conferred with his assistant, as well as with Personnel Director
Anthony, as to the measures to be adopted to guard against violence
and work stoppages, and also discussed the problem with the Respond-
ent's attorneys. On the evening of August 13, employees Oakes, Root,
and Cupp (who were also officials in the GBBA locals) informed Gatti
that a bad situation was developing in the plant and that they had
just witnessed an act of violence in front of the gate house. The inci-
dent involved a physical assault by an employee upon a CIO adherent
because of resentment over the latter's attempt to force the employee's
wife, also an employee, to take some union literature. Employees
Root,` Cupp, and Oakes also informed Gatti that abusive language
was being exchanged by employees, and that much bickering and un-
rest prevailed. They felt that some action should be taken -by Gatti
if he wanted to keep the plant going. Concerned over the safety of
the employees, they stated that the already explosive situation would
be aggravated when GBBA members began wearing GBBA badges
of comparable size to those being worn by the CIO adherents, which
the GBBA had ordered, and predicted that when this occurred, "Hell
was going to break loose around there." They also warned Gatti that
there would be another work stoppage, referring to a "wildcat" work
stoppage that had occurred on July 17. Gatti expressed his neutrality
and indicated that he contemplated promulgating a rule prohibiting
the wearing of union badges which would apply equally to both
unions. During this meeting, Personnel Director Anthony reported
an incident which he had just witnessed in which six employees had
caused a commotion in the plant by insisting on wearing their CIO
badges.
On August 12, employee Thiel complained to Gatti's administrative
assistant that "those damned CIO buttons were causing most of the
trouble, practically all of it, and if they weren't gotten out of the plant
by God we would get them out." Thiel stated further that "some of
the guys would be getting a flying wedge and just throw them all out
of there if the situation kept up the way it was." At the hearing, Thiel
586 DECISIONS, OF NATIONAL LABOR RELATIONS BOARD
testified that "you can wave a red flag in front of a bull so long and
you don't know what that bull is going to, do, and that's what would
have happened if they had kept waving it in front of me. I don't know
what I would have done in the end." -
Faced with this situation, which was both serious and threatening,
the Respondent, on August 14, posted the following notice setting
forth the rule here involved :
Effective at once and until further notice, the wearing of any
union insignia or badge is prohibited on company property at any
time.
Trouble among our employees has already occurred. This rule
is necessary in order to maintain harmonious relations in our
plant and to prevent anything of a real serious nature from de-
veloping.
We are instructing our foreman [sic] to enforce this rule, and
would sincerely appreciate voluntary cooperation of all of our
employees in this matter.
This rule was obviously a nondiscriminatory one. It was equally
applicable to the wearing of CIO and GBBA insignia. It is undis-
puted that 21 CIO adherents continued to wear their union insignia
despite this rule and despite the urgent requests of management offi-
cials to remove them so as to avoid violence in the plant. Indeed, on
August 17-3 days after the rule had been posted-it was observed that
a group of 12 to 15 employees were wearing CIO badges in defiance
of the rule; when Plant Manager Gatti learned of this, he had the
group assembled in the plant and urged them to take off the badges so
that it would not be necessary to discharge them, and he explained to
them why the Respondent felt that the rule was necessary. This cer-
tainly was an indication that the Respondent had no other motivation
than the safety of its employees and the desire to continue production..
With these factual circumstances in mind, the application of the law
seems perfectly clear. In Republicy Aviation Corporation v.
N. L. R. B., 324 U. S. 793, the United States Supreme Court stated:
These cases bring here for review the action of the National Labor
Relations Board in working out an adjustment between the un-
disputed right of self-organization assured to employees under
the Wagner Act and the equally undisputed right of employers
to maintain discipline in their establishments. Like so many
others, these rights are not unlimited in the sense that they can be
exercised without regard to any duty which the existence of rights-
in others may place upon employer or employee. Opportunity to
organize and proper discipline are both essential elements in a
balanced society.
In Boeing Airplane Company, 103 NLRB 1025, the Board reaffirmed
the established principle that a rule prohibiting the wearing of union-
KIMBLE GLASS COMPANY 587
insignia in the plant interferes with employees ' organizational rights
unless special circumstances make the rule necessary in order to main-
tain discipline and uninterrupted production . The Ninth Circuit, in
reviewing this decision , took special note of the fact that "With such
extremely inflammable materials as the passions of the rival unions,
the Teamsters and 751, the wearing of the streamers and shop buttons
must be viewed as the spark which might in a second set everything
mire again. No doctrine can give immunity to symbols and expressions
which are incitements to crime or violent action in breach of peace." 17
[Emphasis supplied.]
If ever there was a situation where special circumstances existed
which warranted the promulgation of a rule designed to avert violence
between adherents of rival unions , this is it. The record is abundantly
clear that the Respondent was genuinely concerned over the repeated
and persistent threats of violence and work stoppages provoked by the
wearing of the union insignia . The promulgation of the rule prohibit-
ing the wearing of these insignia under such circumstances was clearly
calculated to avert, in the words of the Ninth Circuit, "the spark
which might in a second set everything afire again."
The majority state that the Respondent , instead of adopting the
rule in question , should have taken appropriate measures against em-
ployees who threatened violence or work stoppages, and the Trial
Examiner suggested that the Respondent should have sought out all
employees in the plant who might have made any threats and subjected
them to individual reprimands and warnings . This line of reasoning
wholly ignores the fact, well-recognized in the industrial world, that
in a plant of some 1,700 employees , discipline cannot reasonably be
maintained and enforced on any individual person-by-person basis.
Nor should the Board, in this factual context, arrogate to itself the se-
lection of alternative methods for coping with an explosive situation-
a choice which those actually confronted with the situation, and there-
fore closer to it , are far better suited to make.
It seems to me, whatever other measures may have been open to the
Respondent, that under the circumstances prevailing here it cannot be
said that the no -badge rule was anything other than a reasonable ex-
-ercise of the recognized responsibilities of management.
It is my opinion, in such circumstances as are present here, that the
employer has not only the right , but the duty to act , both in the inter-
ests of the safety of all his employees and in the interests of the con-
tinued effective operation of his enterprise . To hold otherwise is to
hold that an employer must abandon his entire operation to chaos,
lest whatever action he take be viewed with disfavor by the Members
of this Board.
17 Boeing Airplane Company v . N L. R. B., 216 F 2d 269 (C. A. 9).
588 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Where, as here, circumstances clearly indicate that the promulga-
tion of such a rule is necessary to maintain discipline and insure con-
tinued production, that rule should be sustained by this Board. The
Employer should not be held to 'have violated the law merely because
a majority of the Members of this Board, in an ex post facto situa-
tion, far removed from the exigencies of the problem, feel, in their
judgment, that some other action or actions on the part of the em-
ployer might possibly have been sufficient to cope with the situation.
Such a holding, and it is implicit in the majority decision, represents
nothing more than a substitution of the judgment of this Agency for
the judgment of the Respondent. Aside from constituting poor pub-
lic administration, such a decision establishes nothing as to what con-
duct in these circumstances can reasonably be relied upon from one
case to another as being within the law. Indeed it imparts an ele-
ment of undue peril to the performance of even the most routine re-
sponsibilities of management.
Neither can I agree with the implication in the majority decision
that the Respondent was obligated to await an outbreak of actual vio-
lence before it acted to remove the cause. The Fourth Circuit an-
swered this point of view in concise fashion in Maryland Drydock
Company v. N. L. R. B., 183 F. 2d 538, as follows :
The trouble here is that the Board has proceeded upon an errone-
ous theory of law in holding that, because no actual disruption
of discipline is shown, the company may not forbid the distribu-
tion of literature the reasonable tendency of which is to cause its
disruption.... To allow the finding of an unfair labor practice
to stand against the company under the circumstances here would
.... deny to the company the right to forbid on its premises con-
duct which is manifestly destructive of discipline.
Since I am convinced that the promulgation of this particular no-
badge rule was nothing more than a reasonable exercise of the,neces-
sary, responsibilities of management, and in no way a violation of the
Act, I would dismiss the complaint in its entirety.18
CHAIRMAN FARMER and MEMBER LEEDOM took no part in the consid-
eration of the above Decision and Order.
' The Trial Examiner relied on certain isolated statements of Plant Manager Gatti,
Personnel Director Anthony, and Assistant Foreman Christopher , which purported to
limit employees ' rights to engage in union solicitation in the plant , as evidence that the
Respondent was illegally motivated in promulgating the no -badge rule . The majority
adopted his findings, although he made no specific findings that these statements consti-
tuted independent violations of Section 8 (a) (1). Considering the entire record in the
case and particularly the content and circumstances under which these statements were
made, I am persuaded that these statements amount to no more than requests to the
employees in question not to interfere with other employees at work or to solicit in a
manner which -would create disturbances in the plant . For this reason, I would 'find-that
the statements in question do not establish illegal motivation or constitute violations of
the Act.
KIMBLE GLASS COMPANY
APPENDIX A
NOTICE TO ALL EMPLOYEES
589
Pursuant to a Decision and Order 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 employees that :
WE WILL NOT discourage membership in International Union
of Electrical, Radio and Machine Workers, CIO, or in any other
labor organization of our employees, by discriminatorily discharg-
ing any of our employees, or by discriminating in any other
manner in regard to their hire or tenure of employment or any
term or condition of their employment.
WE WILL NOT threaten employees with reprisal for soliciting
union membership on their own time or for wearing union badges
with the inscription "IUE-CIO" or any other union insignia
while at work.
WE WILL NOT promulgate or enforce rules which prohibit em-
ployees from wearing union badges or other union insignia while
at work.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form labor organizations, to join or assist the above-named
or any other labor organization, to bargain collectively through
representatives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any or all of such
activities, except to the extent that such right may be affected by
an agreement requiring membership in a labor organization as a
condition of employment, as authorized in Section 8 (a) (3) of
the Act.
WE WILL rescind the rule promulgated on August 14,1953, which
prohibits the wearing of any union insignia or badges on company
property at any time.
WE WILL offer immediate and full reinstatement to the follow-
ing named employees, to their former or substantially equivalent
positions, without prejudice to any seniority or other rights and
privileges previously enjoyed, and make them whole for any loss
of pay suffered as a result of the discrimination against them.
Thos. Mattingly Bill Whitt, Jr. William Messer
Bill Moore Billy Copley Elmer Hicks
Denver Scarberry Johnny Fitch Orville Bostic
John Sorenson Elva Cordle Edward DeLong
Rolin Hudson Ernest Wright Lacy Harvey
Virgil Ross Joel K. Cossnear Ernest Stewart
Kenneth Tackett Kennard Niner Donald Wells
590 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD ,
All our employees are free to become, remain , or to refrain from
becoming or remaining , members of the above -named or any other
labor organization , except to the extent that this right may be affected
by an agreement authorized by Section 8 (a) (3) of the Act.
KIMBLE GLASS COMPANY,
Employer.
Dated---------------- By-------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Charges having been duly filed and served, a complaint and notice of hearing
thereon having been issued and served by the General Counsel of the National
Labor Relations Board , and an answer having been filed by the above-named
Respondent Company, a hearing involving allegations of unfair labor practices in
violation of Section 8 (a) (1) and ( 3) of the National Labor Relations Act, as
amended , 61 Stat . 136, herein called the Act, was held in Columbus , Ohio, on
March 15 , 16, and 17 , 1954, before the duly designated Trial Examiner.
In substance the complaint , as amended at the hearing, alleges and the answer
denies that the Respondent : ( 1) In August 1953, to discourage membership in
the Charging Union: (a) promulgated and invoked rules prohibiting union activity
on nonworking time and the wearing of union buttons on company property; (b)
threatened employees with discharge ; and (c ) discriminatorily discharged 21 named
employees because they wore union buttons in the plant; and (2) by such conduct
interfered -with , restrained , and coerced employees in the exercise of rights guaran-
teed employees by Section 7 of the Act. The Respondent , in its answer , admitted
having taken some of the action alleged , but alleged affirmative and legal reasons
therefor.
At the hearing all parties were represented and were afforded full opportunity
to be heard , to examine and cross -examine witnesses , to introduce evidence perti-
nent to the issues, to argue orally upon the record , and to file briefs and proposed
findings and conclusions. General Counsel argued orally . A brief has been received
from the Respondent.
Disposition of the Respondent 's motion to dismiss the complaint , made at the
close of the hearing, is made by the following findings, conclusions , and recom-
mendations.
Upon the entire record in the case, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Kimble Glass Company is an Ohio corporation and is a wholly owned subsidiary
of Owens-Illinois Glass Company, also an Ohio corporation . Its principal office
is in Toledo , Ohio, and its plant herein involved is located in Columbus , Ohio, where
it is engaged in the manufacture , sale, and distribution of television picture tubes
and allied products.
During the year before issuance of the complaint the Respondent caused mate-
rials and equipment used by it, and valued at more than $500,000, to be purchased
and transported into the State of Ohio from and through other States of the United
States. During the same period it produced , sold, and shipped from its Columbus
plant products valued at more than $ 1,000 ,000 to points outside the State of Ohio.
The Respondent concedes that it is engaged in commerce within the meaning
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical , Radio and Machine Workers, CIO, is a labor
organization admitting to membership employees of the Respondent.
KIMBLE GLASS COMPANY
III. THE UNFAIR LABOR PRACTICES
591
A. The facts
The issues here in dispute all arose in the summer of 1953 when a number of the
Respondent's 1,500 production employees-all of whom were required by contract
to be members of an AFL union-endeavored to organize in the Charging Union, a
CIO affiliate. The effort began shortly before the expiration date of the union-
shop contract, and was intensified since, in order to obtain the necessary percentage
standard for filing of a petition with the Board, the Charging Union sought a con-
siderable number of applications or authorizations. It appears that the Charging
Union used the customary organizing methods: distribution. of literature, solicitation
of signatures to cards, and the wearing of union buttons in the plant.
That management did not wish to have its contractual relationship with the AFL
union upset and that this wish provided a reasonable motive for taking sides seem
to be premises well-supported by undisputed and credible evidence. The plant
manager himself, Raymond Gatti, had been the eastern representative of the Amer-
ican Flint Glass Workers Union, an AFL affiliate, for a period which he fixed as
"1936 to 1940, in there." Marcus Clark, hot end superintendent, testified not only
that he informed his superiors that individuals in his department were wearing CIO
buttons, but also that he was "disturbed" and "concerned" by the CIO coming in
to organize and that he did everything he could in an attempt to find out what the
employees' reaction would be.
That the officers of the AFL union, which for years had had a contract with the
employer, were moved to open resentment by the invasion of the CIO-thus display-
ing a reasonable motive for the coloration of testimony they gave on behalf of the
Employer-is established by their candid statements. "I was worried about the
plant," said W. J. Lewis, the director for Ohio of the Glass Bottle Blowers Associa-
tion, which held the contract. "I think they [the Charging Union] have got all
they can do to organize the unorganized," he also said. Bertie Louise Cupp, financial
secretary of the women's local of the GBBA, admitted that she conveyed the idea
to Gatti that they were not "going to stand for another union getting in there and
attempting to organize. . , " And Cupp's testimony, on this point as well as others,
was "adopted" by Julia Root, president of the women's local.
Reviewing the incidents at issue chronologically, it appears that the first occurred
about July 10, shortly after the Charging Union's organizing campaign began. On
or about that date Assistant Foreman C. J. Christopher came up to a group of 3 or 4
employees, including Elva Cordle and William Messer, and told them that "anybody
caught signing up CIO cards will be fired." I The evidence establishes that
Christopher at the time was a supervisor within the meaning of the Act.
Late in July or early in August several employees began wearing, while at work,
buttons indicating their allegiance to the Charging Union. They bore the letters
"IUE-CIO." The wearing of the buttons violated neither an existing rule nor prac-
tice, since credible evidence establishes that at least the AFL stewards were until
then accustomed to wearing distinguishing buttons. Nor has the Respondent claimed
that the wearing of the buttons, or that the buttons themselves, created a working
hazard, endangering the safety of the worker, or impeding his production.
There is no dispute that in mid-August the Respondent posted a rule prohibiting
the wearing of such buttons and that a few days later it discharged 21 employees
who declined to be thus deprived of rights which they believed were protected by
the Act.
Gatti posted on August 14 the following plant bulletin: -
Effective at once and until further. notice, the wearing of any union insignia
or badge is prohibited on company property at any time.
The quotes are from Messer's credible testimony, corroborated by that of Cordle. The
finding is based not only upon the demeanor of the witnesses, but also upon the uncon-
vincing denial of Christopher When asked directly by the Respondent's counsel whether
or not he had uttered the threat attributed to him, Christopher, he said : "No, sir, I did
not, without any qualification In fact, if I . . Interrupted by another question as to
whether or not he knew of the CIO campaign on July 10, Christopher said that he did not,
and was not aware of it until after July 19. On cross-examination he admitted talking
to this group of employees in July, and when asked if he could remember what he said
to them, he replied, "Word for word, no sir, nor in substance" He added, "I wouldn't
know even the probable substance of it." [Emphasis supplied.]
592 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trouble among our employees has already occurred. This rule is necessary
in order to maintain harmonious relations in our plant and to prevent anything
of a real serious nature from developing.
We are instructing our foreman [sic] to enforce this rule , and would sincerely
appreciate voluntary cooperation of all of our employees in this matter.
At the time of the shift change the night before the above notice was posted, ac-
cording to his own testimony, Personnel Director Phillip, Anthony asked at least
six employees to take off the CIO buttons. Anthony also told the employees that
they were not allowed to "sign cards in the plant." 2
The day after the notice was posted Superintendent Clark, previously identified,
approached employee Tackett at a time when the employee was not wearing his
button, and asked him if he was "one of the guys wearing a CIO badge." Tackett
admitted it. Clark asked him what he thought he had to gain?
On August 17, according to the testimony of management witnesses, Gatti rounded
up a considerable number of employees who continued to wear JUE buttons de-
spite the posted order. Gatti then not only warned them that unless they took
off the buttons they would be discharged, but also told them they could not sign
up CIO cards on company property at any time-before work or during their breaks.4
After consulting among themselves the employees agreed to remove the buttons
until they could obtain counsel of their Union.
Having been advised that it was not illegal to wear buttons, several IUE sup-
porters put them on again. And on August 19 management began discharging them.
On that day and the next 21 employees were summarily discharged-after being
given the flat choice of dismissal or taking off the buttons .5 The Respondent readily
admits that the discharges were because the employees declined to remove their IUE
buttons while in the plant.
During the same material period the Respondent imposed and enforced another
new rule: this relating to the handing out of union leaflets outside the plant gate.
Although the details will be reviewed below, in substance the facts are that all
distribution of such literature was prohibited in the two parking lots near the
plant and in an area near but outside the plant entrance used by the workers.
2 This finding is based upon the credible testimony of employee Messer. Anthony's
denial is not accepted as credible. The personnel manager himself testified that on the
same occasion he ordered employee Cordle to accompany him to be interviewed by a plant
guard for identification as one whom the guard reported as having seen engaging, on com-
pany property, but before working hours, in "signing up union membership." Since the
official took the direct action, by his own admission, to identify an employee whom he had
been informed was soliciting on company property, and on his own time, his denial of
cautioning others lacks any reasonable ground for belief. Anthony's claim, moreover,
that he cautioned Cordle, ". . . as I did the rest of the group, to exercise great care in
their solicitation so as to not bring about an incident that would lead to violence," limps
visibly as an explanation since, in his preceding sentence, Anthony said : ". . . there was
no indication that the incident was harmful to anyone, and . no one complained."
O The finding rests upon Tackett's straightforward and credible testimony. Clark's de-
mal of the remark is not credited. The superintendent readily admitted, on cross-exam-
ination, having talked to at least a dozen employees at this time concerning their union
activities, but said he could not identify them. He also admitted that Tackett was under
his supervision, and that he could not remember either what he said to these dozen or
what they said to him Furthermore, as found heretofore, Clark also testified that he was
"concerned" about the CIO's effort to organize, and did everything he could to find out the
employee's reaction to it.
4 Although Gatti at first denied telling employees they could not solicit on company prop-
erty on their own time, his later attempt to explain just what he did say, when considered
in the light of other undisputed facts, deprives his denial of reasonable belief. He claimed,
in effect, that he merely told them they must not interfere with others who were working,
although they themselves might be on their own time As noted before, Personnel Man-
ager Anthony had already taken to task one employee, Cordle, for solicitating on company
property before working hours A new rule had been suddenly set up proscribing even
the wearing of a button on company property and, as described hereinafter, at the same
time management prohibited the distribution of union literature even outside the plant
enclosure, at any time
5 Thos Mattingly, Bill Moore, Denver Scarberry, John Sorenson, Rolin Hudson, Virgil
Ross, Kenneth Tackett, Bill Whitt, Jr., Billy Copley, Johnny Fitch, Elva Cordle, Ernest
Wright, Joel K. Cossnear, Kennard Niner, William Messer, Elmer Hicks, Orville Bostic,
Edward DeLong, Lacy Harvey, Ernest Stewart, and Donald Wells.
KIMBLE GLASS COMPANY 593
B. Conclusions
General Counsel claims that the imposition of the button rule was restraint of
employees ' rights under the Act and that the dismissal of 21 employees because
they would not abide by it was discrimination in order to discourage membership in
and activity on behalf of the Charging Union. The Respondent denies interference
and discrimination and affirmatively claims that both the rule and the discharges
were necessary to prevent violence in the plant and consequent interruption of pro-
duction.
The Trial Examiner believes that the present Board adheres to the policy followed
down through the years as enunciated in Armour & Company, 8 NLRB 1100, at 1111
and 1112. There the Board found that the discharge of a union steward for re-
fusing to remove his steward's button was in violation of the Act, despite the em-
ployer's assertion that the wearing of the button "was causing confusion and com-
motion in the plant" and that "there was very likely to be trouble, friction, fights, and
even riots." The Board specifically found that the order directing the removal of
the button,was interference with rights accorded by the Act, that the employee was
justified in refusing to comply with the order, and that the discharge was discrimi-
natory and illegal.
In the same case the Board also found: "... the evidence does not show any
basis for the fear asserted by the Respondent regarding a serious disturbance in the
plant." The credible evidence in the present case leads to a similar conclusion.
In the first place, in this plant of 1,500 employees, no actual incidents of violence
,on company property or interruption of production are claimed by the Respondent.
It is reasonable to believe that had any violent acts occurred, some management
representative would at least have said he heard about one of them. The record
is barren of the most rudimentary basis for "fear" that violence would occur-that
of precedent.
The Respondent did call, as its own witnesses, a number of GBBA officials-from
an international representative on down-who blandly testified that they had threat-
ened-unless the IUE adherents were required to remove their buttons-to take re-
taliatory measures ranging from an actual strike (this despite a contractual no-strike
clause) to forcibly taking the buttons from the persons of the wearers. According
to Gatti such threats were brought to him by a GBBA official as early as August 6.
That any fear was instilled in the plant manager on this occasion is a finding which
his own testimony clearly prevents. For he said, "I must be truthful and admit that
I didn't put too great of a stock in what he was telling me." No evidence indicates
that any violence occurred in the plant between August 6 and August 14, when the
rule was posted. As described in the preceding section, however, management pro-
ceeded-to discourage the wearing-of the buttons even before posting-of the notice:
particularly in the case of the personnel manager who asked at least six-employees to
take them off on August 13.
No incident happened between August 6 and 14 which reasonably might have
altered Gatti's initial low estimate of the stock value of the union official's threat.
Yet apparently he would have the Trial Examiner and the Board believe that when
several GBBA officials voiced similar threats on August 13 he was forced to believe
they would be carried out. Such a conclusion would be naive indeed, in view of the
testimony of Howard Rodgers, secretary of the GBBA and a witness for the Em-
ployer, concerning his final interview with Gatti before the latter posted the notice.
Rodgers said that just before leaving the office he was asked by Gatti if he was "pretty
sure there would be violence," and he had replied that he "could guarantee him that
there would be violence unless the buttons were taken off."
Contrary to the crisis which management witnesses declared was threatening plant
peace and production, the actual facts depicit a situation more resembling one of
cheerful collaboration. The GBBA officials were understandably concerned about
the IUE campaign. As Lewis said on the witness stand, he thought the IUE had
enough to do to organize the unorganized, and two other GBBA officials admitted
that they made it clear to Gatti that they did not intend to stand for another union
coming into the plant. Reasonably enough they desired the aid of management in
curbing the organizing activities of the IUE. And they gained that end by the process
commonly known as "doing it by mirrors." On the day before issuing the rule, ac-
cording to Gatti's own testimony, (1) Rodgers came in promising violence; (2) he
asked the union official "what in his mind was the thing we could do [to] prevent this
violence"; and (3) Rodgers replied "prevent the wearing of these union buttons";
594 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
whereupon , according to Rodgers , he was asked if he was "pretty sure" there would
otherwise be violence and he said he could "guarantee" it.
Reasonably appraised , it would appear that had management entertained any real'
fear of impending disaster , some move would have been made to warn or discipline
those who said they would bring it about . Yet management witnesses admitted that
no such disciplinary move was made. On the contrary, as noted above, both the per-
sonnel manager and the superintendent as well as Gatti went instead to the button-
wearers and, in effect; urged and threatened them that unless they took off the but-
tons they would have to be discharged to prevent their being victims of violence. If
the real desire of management had been to maintain peace and uninterrupted produc-
tion , reason would have suggested , it appears to the Trial Examiner , that action be
taken against those who threatened misconduct and not against the prospective vic-
tims.
Upon all the evidence, the Trial Examiner is persuaded that the Respondent pos-
sessed a justifiable disinclination to have its peaceable relationship with the GBBA up-
set by a heated campaign, a Board election, and the possibility of having to adjust itself
to a new bargaining agent. The conclusion is supported not only by previous findings,
but also by conduct of management officials when many of the 21 employees were
discharged . One group was kept by management about an hour before being per-
mitted to leave. They were asked by the officials why they were wearing the CIO
buttons, and what was wrong with the AFL. The employees protested that there
already was a rule in the plant against fighting and asked Gatti why this new rule was
necessary. Gatti replied that he would make any rule he wanted to. Gatti also told
them that when they were on company property no time was their own, and that there
would be no signing up of cards on company property at any time. Even before the
men were herded into the office , the officials displayed their real reason for the im-
pending action . It is undisputed that Gatti himself approached one employee, not
wearing a button, and asked him if he had one. The employee had a badge in his
pocket and admitted he did have one, whereupon Gatti ordered him to come along
with the rest. He was fired. Raymond Ross, Gatti's assistant, readily admitted that
just before the group discharges "I toured the plant to determine whether or not there
were any other employees displaying CIO buttons. .. As Ross accompanied the
.group collected , also according to his own testimony , "we passed a group of women
who made catcalls and derogatory remarks to this CIO group.. . So far as the
record shows Ross took no action against the employees making the disturbance, but
merely took the IUE adherents along to the office for discharge.
Coincident with the posting of the rule and the discharges was another phase of
the Respondent's effort to curb the organizing efforts of the IUE: the prohibition of
distributing literature near the plant entrance.
In broad terms, it is General Counsel's contention that the Respondent discrimina-
torily prohibited such distribution by the Charging Union "at or about the entrance"
to the plant . During the hearing he made it plain that by "discriminatorily " he meant,
in part, that the Charging Union was prevented from such activity while the GBBA
was permitted to engage in it . There is insufficient evidence to support the allega-
tion of disparity of treatment. While it may have been that in an isolated case some
guard may have turned his head aside when a GBBA representative was passing out
handbills, it must be found that management 's instructions to the guards were in-
tended to prevent both labor organizations from using the forbidden area, and that
in general these instructions were carried out.
Effectual, if not actual, discrimination, however, was caused by the very issuance
of the order . In the existing situation-caused by the union-shop contract-the
GBBA already enjoyed a favored position in contest with any other labor organiza-
tion. All employees in the recognized unit were required to be members of it.
Appeals for adherence to it were unnecessary until the IUE began its campaign. And
any company action depriving employees of their legal right to receive information
for possible consideration in exercising their legal right to choose another bargaining
representative would , under the circumstances existing , effectively discriminate in
favor of the union holding the contract and against the union seeking members.
Three principal places are in question : two parking lots and an area near the
entrance used by production employees while entering or leaving the plant. On the
basis of all the evidence , the Trial Examiner cannot find that management was un-
justified in preventing circularization in the parking lots. Gatti's testimony is not
seriously challenged to the effect that parking facilities were inadequate for the large
number of employees using them , and that particularly at shift-changing hours con-
ditions were hazardous . No credible reason was advanced by management, how-
ever, for preventing distribution on its property near the employees' entrance. The
KIMBLE GLASS COMPANY 595
latter area is macadamized and is commonly used for disembarking employees or
others coming to the plant by cab. That this space, running back about 35 feet from
the public road to the guardhouse entrance, was company property is undisputed.
But it appears to have been , and still is being, used by the public generally. It is
open, unfenced. The public street which this area approaches is narrow-being but
23 feet from curb to curb, and is crowded with automobile traffic when employees
enter and leave the plant. In the absence of any justifiable reason for barring dis-
tribution in this area, and in view of foregoing findings that management had made
it clear that it would permit no IUE activity on company property at any time, the
Trial Examiner concludes and finds that establishing and invoking the rule prohibit-
ing distribution here was in restraint of employees' rights under the Act and for the
purpose of discouraging membership in the Charging Union.
In summary, the Trial Examiner concludes and finds that the preponderance of
credible evidence: (1) Does not support the Respondent's contentions as to the merits
of its stated reasons for the discharge of the 21 employees, and for the inauguration
and enforcement of the rules concerning button wearing in the plant and the dis-
tribution of union literature outside the entrance to the plant; and (2) sustains the
allegations of the complaint that such action was discriminatory, for the purpose of
discouraging membership in the Charging Union, and constituted interference, re-
straint, and coercion of employees in the exercise of rights guaranteed by the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above , occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce in the sev-
eral States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices, the Trial
Examiner will recommend that it cease and desist therefrom and take certain affirm-
ative action which will effectuate the policies of the Act.
Having found that the Respondent has discriminated in regard to the hire and
tenure of employment of 21 employees, the Trial Examiner will recommend that
the Respondent offer them immediate and full reinstatement to`their former or sub-
stantially equivalent positions, without prejudice to their seniority and. other rights
and privileges, and make them whole for any loss of pay they may have suffered
as a result of the discrimination against them by payment to each of them of a sum
of money equal to that which he would normally have earned from the date of such
discrimination to the offer of reinstatement, less his net earnings during such period.
The back pay is to be computed in the manner established by the Board in F. W.
Woolworth Company (90 NLRB 289). It will also be recommended that the Re-
spondent preserve and upon reasonable request make all pertinent records avail-
able to the Board or its agents for the checking of amounts due.
In view of the nature of the unfair labor practices committed, the commission
of similar and other unfair labor practices may be anticipated. The remedy should
be coextensive with the threat. It will therefore be recommended that the Respond-
ent cease and desist from infringing in any manner upon the rights guaranteed em-
ployees in Section 7 of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. International Union of Electrical, Radio and Machine Workers, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act. `
2. By discriminating in regard to the hire and tenure of employment of the 21
employees named in Appendix A, thereby discouraging membership in the above-
named labor organization, the Respondent has engaged in and is engaging in unfair
labor practices within the meaning of Section 8 (a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is en-
gaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2 (6) and (7) of the Act.
[Recommendations omitted from publication.]
I