Libbey-Owens-Ford Glass Co.

National Labor Relations Board - Board Decisions

Jul 31, 1945

63 N.L.R.B. 1 (N.L.R.B. 1945)

In the Matter of LIBBEY- OWENS-FORD GLASS COMPANY and FEDERATION
OF GLASS, CERAMIC AND SILICA SAND WORKERS OF AMERICA, CIO
Case No. 9-C-2092-Decided July 31,1945
DECISION
AND
ORDER
On February 17, 1945, the Trial Examiner issued his Intermediate
Report in the above-entitled proceeding, finding that the respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending 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
Intermediate Report and a supporting brief. Oral argument, in
which the respondent and the Union participated, was held before
the Board in Washington, D. C., on July 10, 1945. The Board has
reviewed the rulings of the Trial Examiner at the hearing and finds
that no prejudicial errors were committed. The rulings are hereby
affirmed.
The Board has considered the Intermediate Report, the respondent's
exceptions and brief, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner, except insofar as they are inconsistent with our findings and
order hereinafter set forth.
1. The Trial Examiner found that the respondent violated Section
8 (1) of the Act by Supervisor Kuhn's statements to employee Pritt
that the respondent would have someone at the election "to check on
how, or check if" employees voted, and would consider those voting as
voting for the Union, and those not voting as favoring the respondent.
We do not concur in this finding. While we agree that such state-
ments may constitute coercive conduct, we nevertheless are of the
opinion that the coercive effect of Kuhn's statements was neutralized
by the statement in the respondent's letter of September 8, 1944, urging
employees "to be sure to vote" in the election. As the Trial Examiner
has observed, Kuhn's statements were directly contrary to the forego-
ing statement in the respondent's letter, which was sent to the office and
clerical employees shortly after Kuhn made the remarks under con-
63 N. L R B, No. 1.
1
2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sideration. Pritt testified that he understood that the respondent, as
well as the Union, would have an observer at the election. He also
acknowledged that he had received and read a copy of the letter of
September 8, and that he understood from the above-mentioned state-
ment therein that Kuhn's utterances did not reflect the respondent's
policy. Although we agree with the Trial Examiner that the letter
of September 8 in its entirety constituted an argument against unions
and against the Union as representative of the office and clerical em-
ployees, and are therefore satisfied that the respondent's general prot-
estations of neutrality failed to neutralize the illegal conduct
hereinafter mentioned, we are convinced and find that the specific
admonition in the letter to vote in the election dissipated the coercive
effect of Kuhn's previous statements to the contrary.
2. The Trial Examiner found, and we agree, that the evidence is
insufficient to sustain the allegations of surveillance. He neverthe-
less found that the respondent interfered with, restrained, and coerced
its employees by the statements of Supervisor Hall to employee Brown
concerning what employee Hollandsworth had told Hall about Office
Manager Givens' alleged surveillance of union members. We do not
agree with this finding. Although we have held that statements by a
supervisory employee as to what another supervisory employee has told
him may be violative of the Act,' the remarks attributed to Hall are
the statements of a supervisor (Hall) as to what a nonsupervisory
employee (Hollandsworth) had told him another supervisor (Givens)
had said to her. Moreover, the coercive effect, if any, of Hall's state-
ments was neutralized by his concluding statement that he had given
Office Manager Givens "hell for letting anything like that happen."
Under all the circumstances, we find that Hall's statements are insuffi-
cient to warrant a finding that the respondent thereby violated the Act.
3. The Trial Examiner found, and we agree, that the respondent
violated Section 8 (1) of the Act by Supervisor Moore's inquiries of
employees Akers and Campbell as to whether they had signed union
cards, and by Plant Manager Martin's interrogation of employee Gil-
lespie as to how he voted in the election of September 12, 1944. We
have frequently held that interrogation of employees concerning their
union membership or activities contravenes the Act.2 And we regard
as especially objectionable the questioning of employees as to how
they voted in an election by secret ballot to determine whether they
desired bargaining, representation. Plainly, such conduct invades
' See, e . g , Matter of Morris P. Kirk t Son, Inc ., et al., 41 N. L. R. B. 807. 1
2 See, e . g, Matter of Peter Freund Knitting Mills, 61 N . L. R. B. 118 • Matter of Vail
Manufacturting Company, 61 N. L. R. B. 181 ; Matter of, English Freight Company, 61
N L R B. 375 ; P H Glatfelter Company v N. L. R. B., 141 F. (20) 631 (C. C. A. 3) ;
H J Heinz Company v. N. L R B, 311 U. S. 514
LIBBEY-OWENS -FORD COMPANY 3
the employee's right to exercise a free and unfettered choice through
a statutory method designed to insure this freedom.3
The respondent contends, in substance, that the letter of September
8, 1944, served to neutralize any coercive conduct in which it may have
been engaged. We do not agree.4 While we do not regard the letter,
either standing alone or as part of the totality of the respondent's
conduct, as violative of the Act,' we nevertheless agree with the Trial
Examiner that the letter in its entirety reflects an attitude of opposi-
tion to the Union as the representative of the employees here concerned.
Because of this, and absent any express and specific disavowal of the
respondent's illegal conduct, we are convinced and find that the letter
failed to dissipate the coercive effect of the inquiries of Supervisor
Moore and Plant Manager Martin.
Nor are we impressed by the respondent's argument that the his-
tory of collective bargaining between it and the Union and other
unions makes it "highly improbable" that it "would engage in unfair
labor practices against the Union." While the respondent for several
years has negotiated contracts with the Union governing the terms
and conditions of employment of the production and maintenance em-
ployees 6 no such favorable background is shown with respect to the
office and clerical employees here involved. On the contrary, by the
letter of September 8, 1944, as well as by the unlawful inquiries of
Supervisor Moore and Plant Manager Martin, the respondent has-
indicated an attitude of opposition to the organizational efforts of
the office and clerical employees.
ORDER
Upon the entire record in the case, and pursuant to Section 10 (c)
of the National Labor Relations Act, the National Labor Relations
Board hereby orders that the respondent, Libbey-Owens-Ford Glass
Company, Charleston, West Virginia, and its officers, agents, suc-
cessors, and assigns, shall:
1. Cease and desist from in any manner interfering with, restrain-
ing, or coercing its employees in the exercise of the right to self-or-
ganization, to form labor organizations, to join or assist Federation
8In Matter of A. J. Tower Company , 60 N L R B 1414 , we said that " such a practice
would nullify the very purpose of the secret ballot to insure a free and untrammeled
choice" See also Matter of E. J. Anderson d/b/a Andei son Manufacturing Company, 58
N. L R. B 1511.
4 Except to the extent , previously noted , that the letter specifically contradicts the state-
ments of Supervisor Kuhn to Pritt.
5 See N. L. R. B. v. Virginia Electric & Power Company, 314 U. S. 469. Although the
letter in its entirety is anti -union in tenor and is relevant in evaluating the respondent's
other conduct , the statements therein do not transcend the limits of free expression. Nor
do we feel that the unfair labor practices found above are of such a nature as to lead
employees to interpret the statements in the letter , otherwise privileged , as coercive.
Compare Peter J Schweitzer, Inc v. N. L If. B, 144 F. (2d) 520 (App. D C ).
8 At the Charleston plant, the respondent has negotiated contracts covering production
and maintenance employees with the Union of its predecessor since about 1933.
662514-46-vol 63-2
4 DECISIONS OF. NATIONAL LABOR RELATIONS BOARD
of Glass, Ceramic and Silica Sand Workers of America, CIO, affiliated
with the Congress of Industrial Organizations, or any other labor
organization, to bargain collectively through representatives of their
own choosing, and to engage in concerted activities for the purpose
of collective bargaining or other mutual aid or protection, as guar-
anteed in Section 7 of the Act.
2. Take the.following affirmative action, which the Board finds
will effectuate the policies of the Act :
(a) Post at its plant at Charleston, West Virginia, copies of the
notice attached hereto, marked "Appendix A." Copies of said notice,
to be furnished by the Regional Director of the Ninth Region, shall,
after being duly signed by the respondent's representative, be posted
by the respondent immediately upon receipt, thereof, and maintained
by it for sixty (60) consecutive days thereafter, in conspicuous places,
including all places where notices to employees are customarily
posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced; or'covered by other material;
(b) 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.
CHAIRMAN HERZOG took no part in the consideration of the above
Decision and Order.
3 APPENDIX A
NOTICE TO ALL EMPLOYEES
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, we hereby notify our employees that :
We will not in any manner interfere with, restrain, or coerce
our employees in the exercise of their right to self-organization,
to form labor organizations, to join or assist Federation of Glass,
Ceramic and Silica Sand Workers of America, CIO, affiliated with
Congress of Industrial Organizations or any other labor organi-
zation, 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.
All our employees are free to become or remain members of this
union, or any other labor organization.
LIBBEY-OWENS-FORD GLASS COMPANY,
By ----------------------------------
(Representative)
----------------------------------
Dated------------------------
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
LIBBEY-OWENS-FORD COMPANY
INTERMEDIATE REPORT
5
Mr. William R. Cameron, for the Board.
Marshall, Melhorn, Wall and Bloch, of Toledo, Ohio, by Mr. Arnold F. Bunge,
for the respondent.
Holmes, Lewis and Mennendez, by Mr. W. T. Lewis, and Mr. Burl Phares, of
Columbus , Ohio, for the Union.
STATEMENT OF THE CASE
Upon a charge duly filed on October 2S, 1944, by Federation of Glass, Ceramic
and Silica Sand Workers of America, CIO, affiliated with the Congress of Indus-
trial Organizations , herein called the Union , the National Labor Relations Board,
herein called the Board, by its Regional Director for the Ninth Region (Cincinnati,
Ohio ), issued its complaint on December 23, 1944, against Libbey-Owens-Ford
Glass Company, Charleston, West Virginia, herein called the respondent, alleging
that the respondent had engaged and was engaging in unfair labor practices
affecting .commerce within the meaning of Section 8 ( 1) and Section 2 (6) and (7)
of the National Labor Relations Act, 49 Stat. 449, herein called the Act. Copies
of the complaint , accompanied by#otice of hearing thereon, were duly served
upon the respondent and the Union.
With respect to the unfair labor practices, the complaint alleged, in substance,
that the respondent, on or about May 1, 1944, and at various times thereafter, by
(1) interrogating its employees concerning their union affiliation and other union
matters, ( 2) maintaining surveillance over union meetings, ( 3) interrogating its
employees regarding their votes in a representation election conducted by the
Board, and ( 4) mailing to its employees , shortly prior to said election , a letter
setting forth its opposition to the Union, and urging its employees to vote against
the Union , has interfered with , restrained , and coerced its employees in the
exercise of the rights guaranteed in Section 7 of the Act.
The respondent's answer, filed on January 11, 1945, admits the allegations in
the complaint concerning the nature of the business involved and its operation in
interstate commerce , denies the commission of any unfair labor practices, and
admits that it mailed a letter to its employees , a copy of which is annexed to its
answer, but asserts that the same was a lawful exercise of the rights guaranteed
by the First Amendment to the Constitution.
Pursuant to due notice, a hearing was held at Charleston , West Virginia, on
January 11 and 12, 1945, before Irving Rogosin , the Trial Examiner , duly desig-
nated by the Acting Chief Trial Examiner . The Board and the respondent were
represented by counsel, and the Union, by counsel and one of its representatives.
All parties participated in the hearing and were afforded full opportunity to be
heard, to examine and cross-examine witnesses , and to introduce evidence bear-
ing upon the issues . On January 8, 1945, the respondent filed a motion with the
Regional Director to make definite and certain or for a bill of particulars. This
motion was renewed at the commencement of the hearing . The Board furnished
certain particulars to the respondent on the day before the hearing, as well as at
the commencement thereof. With respect to particulars not furnished by the
Board, the motion was denied .' At the conclusion of the Board's case, the re-
I At the commencement of the hearing, the respondent moved for a postponement on the
ground that it was unwilling to proceed with the hearing until the information sought
by the motion to make definite or for a bill of particulars had been furnished , and an oppor-
tunity afforded to investigate the same, and upon the further ground that it required the
attendance at the hearing of Roy Givens, its office manager, who was unable to be present
by reason of illness . It was suggested by the undersigned that the Board proceed with
its case and that if at the conclusion thereof the respondent should discover that it had
6 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent moved to dismiss the complaint for lack of proof. The motion was
denied. Ruling on the respondent's motion to strike the testimony of certain
witnesses, with respect to an election conducted by the Board in 1941,2 was
reserved. Ruling was similarly reserved on a motion to strike certain affidavits
received in connection with the testimony of a Board witness. These motions are
hereby denied. The respondent renewed its motion to dismiss at the close of the
hearing. Ruling on this motion having been reserved, the same is hereby denied.
Although afforded an opportunity to do so, none of the parties availed themselves
of the opportunity to argue orally upon the record. All parties, however, filed
briefs with the undersigned.
Upon the entire record in the case, and from his observation of the witnesses,
the undersigned makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Libbey-Owens-Ford Glass Company, an Ohio corporation with a principal
office and place of business in Toledo, Ohio, Wd operating a plant at Charleston,
West Virginia, is engaged in the manufacture, sale and distribution of window
glass and plate glass blanks. During the past twelve months the respondent
purchased, in the conduct of its business at its Charleston plant, raw materials
valued in excess of $100,000, of which approximately 90 percent was shipped to
its plant at Charleston from points outside the State of West Virginia. During
the same period, the respondent manufactured, sold and shipped from its Charles-
ton plant, finished products valued in excess of $150,000, of which approximately
99 percent was shipped to points outside the State of West Virginia. The re-
spondent concedes that it is engaged in commerce within the meaning of the Act.
II. THE ORGANIZATION INVOLVED
Federation of Glass, Ceramic and Silica Sand Workers of America, CIO, affili-
ated with the Congress of Industrial Organizations, is a labor organization admit-
ting to membership employees of the respondent.
III. THE UNFAIR LABOR PRACTICES
A. Background
On January 30, 1939, following a card check, the Union' was certified as the
exclusive collective bargaining representative of all the production and mainte-
nance employees of the respondent at its several plants. On May 3, 1941, the
been taken by surprise, the Trial Examiner would entertain a motion for a reasonable
continuance to enable the respondent to meet the evidence adduced by the Board. The
undersigned also announced that a postponement would be granted the respondent at the
conclusion of the available evidence, to afford it an opportunity to introduce the testimony
of Roy Givens, at such time as his condition would permit. The hearing proceeded on this
basis Prior to the close of the hearing, counsel for the respondent stated orally upon the
record that he did not desire the opportunity of calling Mr Givens, and rested. Counsel
for the respondent further announced that he was content that the respondent had been
affoided an opportunity to present all the evidence that was relevant and material to the
issues raised by the complaint.
2 Although the witnesses referred to this election as having been held in 1942, it is apparent
that reterence td the May 1941 election was actually intended
2 The union which was certified by the Bqard was known as Federation of Flat Glass
workers of America, affiliated with the American Federation of Labor. Later it affiliated
with the Congress of Industrial Organizations and became known as Federation of Glass,
Ceramic and Silica Sand Workers of America. See Matter of Lrbbey-Owens-Ford Glass
Company, 10 N. L. R. B. 1470.
LIBBEY-OWENS-FORD COMPANY 7
Board issued a Decision and Direction of Election among the office, clerical and
laboratory employees of the respondent at the Charleston plant, here involved'
No bargaining representative was selected as a result of the election held there-
after, and the petition was dismissed.'
B Interference, restraint, and coci cton
In the spring of 1944, the Union instituted an organizational campaign among
the office and clerical employees of the respondent at its Charleston plant. Dur-
ing the first two weeks of May, 1944, Lyle O. Moore, supervisor of the bonus
department, was absent from the plant on a trip to the respondent's Shreve-
port, Louisiana plant. Upon his return, he observed that there was considerable
unrest in his department, which he attributed, in part, at least, to the Union's
organizational campaign About 10 days hater, in an effort to determine the
cause of this "unrest", lie solicited the advice of Roberta Akers and Ethel Camp-
bell, two of the three oldest employees in his department, who he had learned had
signed union application cards ° On an occasion when Akers was in Moore's
office to consult with him relative to leaving the respondent's employ to accept
a position elsewhere,' Moore inquired of her what the trouble seemed to be in
the office, indicating that there appeared to be an "under current" of unrest.
He then asked her if he might ask a personal question. She assented, and he
remarked, "I heard that you signed a card before I returned from Shreveport."
She replied, "No, Mr Moore, that's not true. I signed just a couple (sic) days
ago." According to Akers, Moore replied, "Well, I want it understood that this
has no effect whatsoever on either of us. That's your own business."
With respect to Campbell. Moore testified that he sent for her on the same day
for the express purpose of discussing the unrest in the office.' Moore asked her
if she could offer any explanation for the cause of the unrest. Campbell stated
that she was dissatisfied with the type of work she was doing, that she had been
promised an increase which she had not received, and that she preferred the
work that she had previously been performing Moore told her that he thought
that could be arranged, and she was subsequently assigned to the work for which
she had expressed a preference. According to Campbell, i\Ioore told her that he
had heard that she had signed a union card and asked her if it was true. She
informed him that she had, but that she had not signed it at the time that he
thought she had, and that she was neither for nor against the Union. Both
Akers and Campbell testified that Moore made no attempt to influence or coerce
them in their union activity.' Although Moore contended that the respondent
See Matter of Libbey-Owens-Ford Glass Company, 31 N. L R B 569. The petitioner
was Local No. 103, United Office and Professional Workers of America, affiliated with the
Congress of Industrial Organizations
6 See Matter of Libbey-Owens-Foa d Glass Company, 32 N L R B 293.
9 With respect to Akers, Moore testified that he spoke to her because she was the'oldest
female employee in his department and ". . . I most always let her advise me on the
feelings and conduct of the various girls, where I would not get the information but she
would, and I would try to smooth these things out and keep everyone happy." As to
Campbell, he testified that he had known her for a number of years, "Consequently, I depend
a great deal on her thought and ideas and feel free to ask her about any unrest or any hard
feelings that might occur and could get Delp, to help straighten them out "
'Moore testified that he had intended to "eventually call [Akers] in to discuss the
unrest, but she beat me to it, so we killed two birds with one stone."
8 According to Campbell, Moore sent for her because he had "noticed a difference in me,
and he wanted to find out what the trouble was."
9 The above findings are based upon the testimony of Akers, Campbell and Moore, who
were in substantial agreement as to what transpired in these conversations. Although
Akers and Campbell were called as witnesses by the Board , they appeared in response to
subpenas and, while not demonstrated to have been hostile, were apparently reticent to
testify to the statements made by Moore. Furthermore, they evinced a desire to exonerate
Moore from any charge of having influenced or coerced them.
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pursued a "hands off" policy regarding participation by supervisors in the union
affairs of its employees, "o nevertheless, despite this contention, Moore, while
ostensibly seeking to determine the cause of the apparent unrest in his depart-
ment, utilized this opportunity to ascertain whether two of his employees whom
he regarded as most trusted and confidential had signed application cards in the
Union. His purpose in doing this, according to him, was to satisfy his curiosity.
Once his curiosity was satisfied he dropped the matter. There were, at the time,
about 10 employees in his department. The undercurrent of unrest was apparent
throughout the department, and his principal purpose in discussing it with Akers
and Campbell was to attempt to ameliorate this condition. Apparently, dis-
satisfaction was of two types, "general dissatisfaction" in the department as well
as personal dissatisfaction on the part of these two employees." Although
Campbell testified that Moore usually consulted all the girls in the department
concerning "unrest", Campbell and Akers were the only employees consulted
on this occasion as to the reasons for their dissatisfaction. However, with re-
spect to their personal complaints, Moore promptly set out to placate them after
ascertaining that each had signed a union application card.
Although Moore sought to justify his interrogation of these employees on the
ground that he was acting on his own initiative, on the basis of his personal
friendship and interest, rather than in his official capacity, stressing the fact
that they need not make any disclosure, his conduct, in the circumstances under
which these discussions took place, following his absence from the plant during
which organizational activity had occurred, in view of his cognizance of an
undercurrent of unrest, and his transparent attempt to retain the allegiance of
these employees, constituted an unwarranted intrusion into the organizational
affairs of the respondent's employees.' The testimony of Akers and Campbell,
that Moore's conduct did not have the effect of interfering with, restraining, or
coercing them in the exercise of their rights to self-organization, is not decisive of
these issues." Furthermore, it is significant that neither of these two employees
were union members at the time of the hearing, Campbell testifying that, although
she voted for the Union, she "was finished with it" when it was defeated in the
subsequent election Upon the basis of the foregoing, the undersigned finds that,
by the interrogation by Moore of Akers and Campbell, the respondent interfered
with, restrained, and coerced its employees in the exercise of the rights guaranteed
them under the Act.
On September 12, 1044, an election was held among the office and clerical
employees of the respondent, under the auspices of the Board, to select a collec-
tive bargaining representative. About a week before the election, Alban Gillespie,
pay-roll clerk and timekeeper in the pay-roll department , had a conversation with
'0 Although Moore testified that the respondent maintained a "hands off" policy regarding
the union activities of its employees, Hall, who had been in the employ of the respondent
for the past 22 years and a supervisor for the past 11 years, testified that, although the
respondent acted in accordance with such a policy , he had never heard it enunciated. In
any event , the record does not indicate that this policy was ever communicated to its
employees
"Akers testified that during her conversation with Moore she explained that one reason
she was dissatisfied and was considering accepting another position was the "dissension"
and "undercurrent" in the office , and that when she mentioned that, Moore asked her if
she felt he had "let her down" because she had not received an increase which he had
attempted to obtain for her.
" See Elastic Stop Nut Corporation v. N. L. R . B., 142 F. (2d) 371 ( C. C. A. 8 ), cert.
den 323 U S 722, and cases cited therein.
13 Western Cartridge Co. v. N. L. R. B., 134 F. (2d) 240 ( C. C. A. 7), cert. den. 320 U. S.
746; Matter of Marshall Field & Co., 34 N. L. It. B. 1, enf ' d. Feb. 26, 1942 (C. C. A. 71.
See also Matter of Agar Packing iC Provision Corporation , 58 N L . It. B. 738 ; Elastic Stop
Nut Corporation v N. L R B., supra.
LIBBEY-OWENS-FORD COMPANY 9
Roy Givens, the respondent's office manager, in which Gillespie informed him
that he had heard rumors to the effect that his position at the plant was in
jeopardy. Givens assured him that he had nothing to worry about, and Gillespie
voted in the election under a challenged ballot." Gillespie testified that he had
heard unfavorable comment among the employees concerning the position he had
taken with respect to voting a challenged ballot and, in consequence, went to the
office of Plant Manager C. W. Martin, the day following the election, told him
about the remarks he had heard and asked him if Martin felt that he "had clerks
in his department who [were] not trustworthy." According to Gillespie, Martin
told him that he had nothing to worry about respecting the possibility of being
discharged and that the rumors were unfounded. Gillespie testified that Martin
thereupon remarked, "I would be willing to bet, if I were a betting man, that
there will be one vote in there against the Union . . . Would I win my bet?"
Gillespie replied, "Well, wait until the ballots are opened, Mr. Martin." Martin
persisted, "I asked you a question." Gillespie replied that he had answered it,
to which Martin remarked, "The opening of the ballots will reveal the darkness
of the secrecy."'
Although, as Martin testified, it was "too late" at that time to influence
Gillespie in connection with the election that had occurred the preceding day,
and both Givens and Martin had assured him that his job was not in jeopardy,
the foregoing remarks by Martin to Gillespie, however subtle, could not have
failed to impress Gillespie with Martin's sentiments regarding Gillespie's ad-
herence to the Union. Moreover, Martin's interrogation of Gillespie, which
obviously sought to ascertain how he voted in the election, is clearly proscribed
by the Act.16 As such it constituted unlawful interference in the organizational
activities of the employees.
About a week or ten days before the election, J. N. Kuhn, supervisor and chief
engineer of the power and water department, asked Clyde M. Pritt, one of his
employees, if he intended to vote in the forthcoming election. Pritt replied that
he did. Kuhn asked him if he realized that the respondent would have someone
there "to check on how, or check if you vote." According to Pritt, Kuhn there-
upon told him that the respondent would consider that those employees who
voted would be voting for the Union and those not voting, as favoring the re-
spondent." Although Pritt had signed an authorization card prior to the election,
he did not join the Union and was not a member at the time of the hearing.
19 Gillespie , whose duties had not changed since he had voted in the May 1941 election,
testified that his name did not appear on the list of employees eligible to vote in the election
of September 12, 1944, and that he therefore voted under a challenged ballot. There was
no contention of any improper conduct on the part of the respondent in challenging his
ballot at this election.
11 Martin testified that Gillespie ' s testimony regarding this episode was "In effect, . . .
nearly correct"; that after assuring him that "his position was safe with the Company
regardless of his challenged vote , and that if I were to wager as to his loyalty , I don't
believe I 'd lose my wager ," " I asked him if that was correct, and he said it was ." Accord-
ing to Martin 's own version of this conversation , the innuendo , that allegiance to, or
interest in, the Union was incompatible with loyalty to the respondent , is quite obvious.
The undersigned was favorably impressed with Gillespie 's testimony and, in view of
Martin's partial corroboration , credits Gillespie ' s version of what, transpired at this
incident.
16 See Matter of E. J Anderson , d/b/a Anderson Manufacturing Company, 58 N. L. R. B.
1511.
11 Kuhn denied that he engaged in any such conversation with Pritt . The undersigned,
however, found Kuhn's testimony unimpressive and unconvincing , and his attitude and
demeanor on the witness stand contentious , if not hostile Pritt, on the other hand,
impressed the undersigned as displaying an attempt to relate the incident with meticulous
regard for the facts as be believed they occurred . Furthermore , Pritt's testimony on cross-
examination , that he mentioned the incident that day or the following day to Powers,
a fellow -employee in the power plant office , remained unchallenged . The undersigned,
10 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Pritt testified that he understood that the respondent, as well as the Union would
have an observer at the election. Although Kuhn's statement, that the respondent
would have someone at the polls to observe whether employees voted, may have
been construed in this light, it is evident that Kuhn sought to'creat the impression
upon Pritt that the respondent intended to utilize this opportunity to "check on
how" employees voted, particularly when considered in conjunction with his accom-
panying statement that the respondent would assume that those who voted would
be deemed to have voted for the Union. Pritt acknowledged that he subsequently
received a copy of the letter dated September 8, 1944, hereinafter discussed, in
which the respondent purported to announce its complete neutrality and policy of
non-discrimination. He testified that he understood from this letter that the
statement made by Kuhn did not represent the position of the respondent. How-
ever, as has already been stated with respect to the incident concerning Supervisor
Moore and employees Akers and Campbell, the absence of any coercive effect in
the statement of the supervisor is not decisive. Furthermore, the undersigned is
of the opinion, and finds, that the letter, which in no way expressly disavowed any
coercive conduct which may have been committed by its supervisors, did not neu-
tralize the effect of the statement made by Kuhn. Upon the basis of the foregoing,
the undersigned finds that, by the statement of Supervisor Kuhn to Pritt, the
respondent has interfered with, restrained, and coerced its employees in their
rights guaranteed under the Act.
The alleged surveillance
Sometime between July 1, and July 15, 1944, Robert L. Brown, a pay-roll clerk,
encountered Glenn Hall, a supervisor in the stock and order department, at a
restaurant known as "The Steak House". The following recital is Brown's ver-
sion of an incident related to him by Hall. Hall remarked, ". . . I did a nice
thing yesterday." He then stated that employee Rosemary Hollandsworth bad
called at his office to ascertain the names of the female employees in his depart-
ment. Hall told Brown that it had not occurred to him what her purpose was in
doing this until he had furnished her with the information. However, when she
told Hall that she wanted the names for Office Manager Givens, because Givens
"wanted to find out the persons that had attended the Union meetings," Hall went
into Givens' office and ". . . gave Roy [Givens] hell for letting anything like
that happen." 18
According to Hall's testimony, Hollandsworth came to hint one morning with a
list of the names of employees, and asked to have him identify three of the four
girls working in his department. One of the four was already known to her. Hall
pointed out the girls in question to Hollandsworth and she thereupon left. Hall
denied that she told him she was obtaining the names for Givens in order that he
might ascertain who attended the union meetings, and stated further that she
did not tell Hall the purpose for which she desired this information. He appar-
therefore , credits Pritt 's testimony concerning this episode . Kuhn's view , it will be noted,
although directly contrary to the position of the respondent in its letter of September 8,
1944, hereinafter discussed , in which it urged employees to vote, was apparently based on
his own conception of the course which would be most advantageous to the respondent.
Nevertheless , it was consistent , in effect, with the view expressed by the respondent in its
letter , insofar as both Kuhn's statement and the letter in its entirety , constituted an
argument against unions.
18 Brown testified , on cross-examination , that Hollandsworth was present at three union
meetings which he attended . According to Brown, it was on the day following one of
these union meetings that Hollandsworth went to Hall ' s office to obtain the names of
the female employees in his department , and Brown 's conversation with Hall occurred
on the evening of that same day.
LIBBEY-OWENS-FORD COMPANY 11
ently concluded that she "was rather new on the job" and unacquainted with the
persons working in his or other departments, and that she was seeking this in-
formation in the pursuit of her usual duties. However, it later occurred to him
that the incident might "create suspicion" in the minds of the employees, in view
of their organizational activities at the time, and he reported the incident to
Givens. Hall testified that Givens informed him that he had not known that
Hollandsworth had been to Hall's office, and that in his opinion it was "in line
with her regular payroll duties." Although Hall further testified that there was
nothing unusual, "under normal circumstances", in Hollandsworth's, or other
clerks', coming in to check on tardiness or absences of employees, he admitted that
this was the only occasion on which he reported such an occurrence to Givens.
Rosemary Hollandsworth was employed in the payroll department on May 1,
1944. In connection with her duties, which involved taking care of the time of
salaried employees, she checked daily absenteeism and tardiness of employees.
She had been employed with the respondent for a month to six weeks when she
was taken ill and was absent from the plant for six weeks According to her
testimony, during that absence she had forgotten many of "the names and faces
of the girls" and went to Hall's office to ask him to help her familiarize herself with
them. She testified that she had not been requested to do so by any supervisor of
the respondent and did this on her own initiative. Although she had never signed
a union authorization card, she attended three or four union meetings, but was
unable to state when she last attended one. She denied, however, that she was ever
requested by anyone in behalf of the respondent to conduct any surveillance of
union activities, or that she ever discussed what occurred at those meetings with
any supervisor, except for her husband, who was a foreman in the pyrometer
department'9
Hollandsworth's explanation of the purpose of her visit to Hall's office appeared
to be patently plausible. However, her admission that all the girls whom she
sought to have Hall identify had been employed by the respondent at the time
she first went to work there and her admission that she had seen these girls at
union meetings and knew them at the time, seriously impugns her explanation.
Furthermore, her testimony, that of the list of names approximately 130 em-
ployees, in her possession when she entered Hall's office, she was unfamiliar with,
and sought to ascertain the identity of only five girls, three of whom were in
Hall's office and two, in an adjoining office, seems implausible. Moreover, there
was no contention that there was, at the time she attempted to ascertain the
identity of these employees, any occasion for procuring that information beyond
the possibility that it might be required at some time in the future?°
Although Hollandsworth's conduct is not altogether free from suspicion, par-
ticularly in view of the fact that the incident appears to have occurred on the
morning following a union meeting, the undersigned is not satisfied that the
evidence, based in part upon uncorroborated hearsay, is sufficient to sustain the
allegations of surveillance. The undersigned will, therefore, recommend that
these allegations in the complaint be dismissed. However, Hall admitted being
present with Brown at "The Steak House" on the night in question, although he
denied discussing with Brown the incident related by the latter. It is undisputed
that Hollandsworth did in fact request Hall to point out certain girls in his
department to her, on the occasion and under the circumstances hereinabove
"There was no, evidence to support a finding that these were other than personal
conversations, not reported by her husband to the respondent.
20 Hollandsworth 's testimony , on the whole , was not very impressive or convincing. It
was frequently evasive and characterized by a lack of recollection as to when she attended
union meetings , except that it was at the commencement of the organizational campaign.
However, she was unable to state whether it )was before or after her absence due to illness.
12 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
related, although the respondent sought to place a different interpretation upon
the incident. - Under all the circumstances, the undersigned is, therefore, per-
suaded and finds that Hall made the statements in his conversation with Brown
substantially as testified to by the latter. Upon the basis of the foregoing, the
undersigned finds that, by the said statements of Hall to Brown, the respondent
has interfered with, restrained, and coerced its employees in the exercise of their
rights guaranteed by the Act.21
The letter of September 8, 1944
On September 8, 1944, four days before the impending election under the
auspices of the Board, the respondent mailed, on its stationery over the signature
of R. L. Givens, its office manager, to all the office and clerical workers, at the
Charleston plant, a letter, the text of which follows :
The Company has consented to an election which will be held on Tuesday,
September 12, under the auspices of the National Labor Relations Board.
The issues involved in this election are of such importance to you personally
that I feel it necessary to discuss them with you at some length
The Union represented to the Company that it had been chosen by a
majority of you to act as your exclusive representative in bargaining with
the management in respect to your rates of pay, wages, hours of employment,
or other conditions of employment. Believing that the only fair way to deter-
mine whether or not you wished to delegate this particular union to represent
you in such matters was in a free election and by secret ballot where you
could secretly vote your own choice free from coercion by anyone, the Com-
pany consented to this election. This does not constitute an endorsement
by the Company of this or any other union.
In order that the position of the Company, its management, and myself
may be clear, we neither urge you to become a member of this or any other
union nor to refrain from becoming a member. Union members and non-
union members will continue to be treated without discrimination by the
Company.
Few of us who work in offices have had experience with unions and we
are apt to overlook an obvious fact ; namely, that the outcome of this election
will determine the pattern of the future relations between all office employees
included in the unit and the management of the Charleston plant. Once
a union is certified as sole collective bargaining representative for a unit
of employees (and they are so certified if more than half of the employees
voting indicate they desire a union to represent them), then all matters relat-
ing to conditions of employment such as wages, seniority, promotion, and
privileges become matters of contract, negotiation. Under such circumstances,
questions concerning working conditions may no longer be considered in-
dividually, whatever might be the merits of any particular case.
n Evidence was also introduced by the Board, by way of background, that, following
an election among the office employees in 1942 (apparently referring to the election actually
held in 1941 ), Plant Manager Martin sent for Brown and informed him that he had been
granted an increase . According to Brown , Martin remarked to him at the time, "If you
hadn't had anything to do with this Union you would have gotten this about a year ago "
Martin, who admitted that he had sent for Brown on this occasion to notify him of the
Increase, testified that he explained to him that "this could have been granted some months
prior to that, but due to the pending election, the Company didn't feel that we should
give it at that time", as it would appear that the respondent was "buying votes". In view
of the fact that Martin's remarks might readily have been misconstrued, and particularly
In view of the fact that it occurred prior to the period covered by the complaint and was
offered merely as background , the undersigned makes no finding with respect to this
Incident.
LIBBEY-OWENS-FORD COMPANY 13
Let me briefly summarize some of the various points to be considered
regarding this election :
(1) Should this union win the election it will then become your exclu-
sive bargaining representative whether you are a member or not. You
will lose your individuality to the extent that matters affecting your
future with the Company will be handled through union representation
(2) Whether a union is selected or not depends upon a majority of
those voting. Regardless of whether you may or may not wish a union,
in order to protect yourself and to express your personal desires, be
sure to vote Remember you are eligible to vote, whether you are a
member of this particular union or not.
(3) Even though you may be a union member or may have signed a
card applying for membership in the union or expressing a preference
for it, you are nevertheless free to vote as you see fit. The election will
be by secret ballot and you can vote in accordance with your own
individual desires.
(4) The election constitutes an expression by the office employees
of whether or not they wish this particular union to represent them in
future dealings with management. Accordingly, the following summa-
tion is appropriate :
(a) If you wish to retain your right and privilege of bargaining for
yourself, and improving your own terms and conditions of employment,
dealing directly with management-vote "NO" at the election.
(b) If you prefer to have some person or organization other than this
particular union to act as your bargaining representative-vote "NO".
(c) However, if you wish to relinquish the privilege of dealing for
yourself, individually, with management and to appoint this particular
union as your representative-vote "YES".
(5) All of us are apt to be confused when confronted with a situation
with which we are unfamiliar. Were I elegible to vote I believe I
would talk over the question of office unionism with members of my
family and other disinterested persons in whose judgn_'ent I have faith.
I believe that office employees have the ability to think problems through
for themselves if they are but given the proper information. The type
of questions most helpful in obtaining the facts upon'which a decision
can be based are specific and to the point, such as, for example:
(a) Will this particular union be able to do more for me than I can
do for myself?
(b) Can this particular union do more for me than some other union
could?
(c) If this union wins the election, will my eligibility for promotion,
advancement, or a better job depend solely on seniority, or will merit
and ability and value to the Company receive proper consideration?
(d) If this particular union wins the election, will it result in strikes,
lost time, and unrest?
(e) Will I gain any financial advantage to offset the cost of main-
taining membership in this union?
(f) If this union should win the election, who would be the persons
authoribed to represent me in bargaining with the Company, and will
they be qualified to give me the kind of representation I have a right
to expect?
14 DECISIONS OF NATIONAL LABOR RELATIONS BOARD,
I hope you will accept this letter as a personal answer to the many re-
quests that have come to me relating to the general problem of representa-
tion of office employees by a union. Whatever may be the outcome of this
election, I hope our relationship will continue to be cordial and that I can
continue a personal interest in your problems and welfare within whatever
restrictions may be imposed.
The respondent, both in its answer and at the hearing, admitted that it had
mailed the letter to its employees, but contended that the same was protected
as "a lawful exercise by the Company of the rights guaranteed by the First
Amendment to the Constitution."
An analysis of this letter indicates that it follows the, by now, familiar pattern
of its prototype in the American Tube Bending Co. case 22 The letter, after
informing the employees that the respondent had consented to an election, asserts
that the respondent neither urges employees to join nor refrain from joining
the Union or any other union, and enunciates a policy of non-discrimination
It points out the comparative lack of experience of office employees in dealing
with unions, and emphasizes the effect upon individual bargaining of the selec-
tion of a union as the exclusive collective bargaining representative of the
employees in the unit. It urges the employees to vote in the election, notwith-
standing their individual preferences, reminding them of their right to vote
for or against the Union regardless of their having previously signed applications
for membership The language, although not intemperate in form, proceeds to
contrast the desirability of the employees' "retaining" their right of individual
bargaining, with their willingness to "relinquish" that privilege Finally, it calls
upon the employees to weigh the disadvantages against the advantages of select-
ing the Union as its representative, posing the significant query as to whether
the winning of the election by "this particular union" will result in strikes, lost
time, and unrest, a result which by implication, at least, the respondent seems
to suggest, is inevitable. Although the letter is perhaps more skillfully drafted,
its general tenor, except for the attempt to direct the employees' attention to
the lack of experience of office employees in dealing with labor organizations,
shrewdly indicates the employer's preference in substantially the same manner
as the letter involved in the American Tube Bending case.
Here, however, the letter does not stand in isolation. It appears as the culmi-
nation of a series of episodes of interference by the respondent, during a period
of organizational activity, several days prior to a scheduled election, and after
an unsuccessful attempt at selecting a collective bargaining representative in the
election of May, 1941. An appraisal of this letter as an integral part of the
respondent's conduct, impels the conclusion that although the letter, standing
alone, may be entitled to the protection of the constitutional guarantee of freedom
of speech, the "complex of activities" of the respondent's conduct, in their totality,
constituted interference, restraint, and coercion 33
Upon the basis of the foregoing, and upon the entire record, the undersigned
concludes, and finds, that by the inquiries by Supervisor Moore of Akers and
Campbell, by the inquiries by Plant Manager Martin of Gillespie, by the state-
ments of Supervisor Kuhn to Pritt, by the statements of Supervisor Hall to
Brown, and by the totality of its conduct, including the letter of September 8,
1944, the respondent has interfered with, restrained, and coerced its employees
in the exercise of the rights guaranteed by Section 7 of the Act.
2' See N. L. R. B. v. American Tube Bending Co., 134 F. (2d) 993 (C C. A. 2), cert. den
320 U. S. 768.
23 N L. R B. v. Virginia Electric & Power Co., 314 U S 469; Matter of Agar Packing
& Provision Corporation, supra. See also N. L. R. B. v. Trojan Powder Co, 135 F. (2d)
337 (C. C. A. 3), cert. den. 320 U. S 768.
LIBBEY-OWENS-FORD COMPANY 15
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the respondent set forth in Section III, above_ occurring in
connection with the operations of the respondent described in Section I, above,
have a close, intimate, and substantial relation to trade, traffic, and commerce
among the several States and tend to lead to labor disputes burdening and ob-
structing commerce and the free flow of commerce.
V. THE REMEDY
f
Since it has been found that the respondent has engaged in unfair labor prac-
tices, it will be recommended that it cease and desist therefrom and take certain
affirmative action designed to effectuate the policies of the Act.
Upon the basis of the above findings and of fact and upon the entire record in
the case, the undersigned makes the following:
CONCLUSIONS OF LAW
1. Federation of Glass, Ceramic and Silica Sand Workers of America, CIO,
affiliated with the Congress of Industrial Organizations is a labor organization
within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act, the respondent has engaged and
is engaging in unfair labor practices, within the meaning of Section 8 (1) of
the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and (7) of the Act.
4. The respondent has not engaged in surveillance over union meetings as
alleged in the complaint.
RECOMMENDATIONS
Upon the basis of the foregoing findings of fact and conclusions of law, the
undersigned recommends that the respondent, Libbey-Owens-Ford Glass Com-
pany, Charleston, West Virginia, its successors and assigns shall:
1. Cease and desist from in any 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 Federation of Glass, Ceramic and Silica
Sand Workers of America, CIO, affiliated with the Congress of Industrial Organ-
izations, or any other labor organization, to bargain collectively through repre-
sentatives of their own choosing, and to engage in concerted activities for the
purpose of collective bargaining or other mutual aid or protection, as guaranteed
in Section 7 of the Act.
2. Take the following affirmative action which the undersigned finds will
effective the policies of the Act :
(a) Distribute to each of its employees to whom it mailed a copy of the
letter, dated September 8, 1944, by mail, postage prepaid, typed or mimeographed
copies, on its letterhead, of the notice attached hereto, marked "Appendix A",
and referred to in the sub-section hereunder ;
(b) Post at its plant at Charleston, West Virginia, copies of the notice at-
tached hereto, marked "Appendix A". Copies of said notice, to be furnished
by the Regional Director of the Ninth Region, shall, after being duly signed
by the respondent's representative, be posted by the respondent immediately upon
receipt thereof, and maintained by it for sixty (60) consecutive days thereafter,
in conspicuous places, including all places where notices to employees are custom-
16 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
arily posted. Reasonable steps shall be taken by the respondent to insure
that said notices are not altered, defaced, or covered by any other material;
(c) Notify the Regional Director for the Ninth Region in writing within ten
(10) days from the date of the receipt of this Intermediate Report what steps
the respondent has taken to comply herewith.
It is further recommended that the complaint be dismissed insofar as it alleges
that the respondent has engaged'in surveillance of union meetings.
It is further recommended that unless on or before ten (10) days from the
receipt of this Intermediate Report, the respondent notifies said Regional Direc-
tor in writing that it will comply with the foregoing recommendations, the
National Labor Relations Board issue an order requiring the respondent to take
the action aforesaid.
As provided in Section 33 of Article II of the Rules and Regulations of the
National Labor Relations Board, Series 3, as amended, effective November 26,
1943, any party or counsel for the Board may within fifteen (15) days from the
date of the entry of the order transferring the case to the Board, pursuant to
Section 32 of Article II of said Rules and Regulations, file with the Board, Roch-
ambeau Building, Washington 25, D. C, an original and four copies of a state-
ment in writing setting forth such exceptions to the Intermediate Report or to
any other part of the record or proceeding (including rulings upon all motions
or objections) as he relies upon, together with the original and four copies of
a brief in support thereof. Immediately upon the filing of such a'statement of
exceptions and/or brief, the party or counsel for the Board filing same shall
serve a copy thereof upon each of the other parties and shall file a copy with
the Regional Director. As further provided in said Section 33, should any
party desire permission to argue orally before the Board request therefor must
be made in writing to the Board within ten (10) days from the date of the order
transferring the case to the Board.
Dated February 17, 1945.
IRVINE ROGOSIN,
Trial Examiner.