Lily-Tulip Cup Corp.

National Labor Relations Board - Board Decisions

Aug 26, 1955

113 N.L.R.B. 1267 (N.L.R.B. 1955)

LILY-TULIP CUP CORPORATION 1267
Lily-Tulip Cup Corporation and International Union , United.
Automobile Workers of America , AFL. Case No. 17-CA-757.
August 26,1955
DECISION AND ORDER
On December 28, 1954, Trial Examiner Stephen S. Bean issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had not engaged in the unfair labor practices alleged in
the complaint and recommending that the complaint be dismissed in
its entirety, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the General Counsel and the Union filed
exceptions to the Intermediate Report and supporting briefs and the
Respondent filed a brief in support of the Intermediate Report.
The Board has reviewed the rulings of the Trial Examiner made
at,the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Interme-
diate Report, the exceptions and briefs, and the entire record in this
case and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner, with the following modifications :
1. The Trial Examiner recommended dismissal of the complaint in
its entirety, including allegations that the Respondent violated Sec-
tion 8 (a) (1) of the Act by interrogating-its employees concerning
union activities.
An organizing drive was waged at the Respondent's plant from late
1953 to May 26, 1954, when a Board-directed election was held, and the
employees voted "no union." During this campaign, the Respond-
ent's supervisors were frequently told by management that they should
not interrogate employees concerning their union membership, or
threaten them with reprisals on account of such membership, or
promise them benefits if they refrained from such activity. They
were instructed that they might answer any questions that employees
might ask them on the subject of unionization. The record shows
that about 750 to 800 employees were in the Respondent's employ dur-
ing this period, and that an active preelection campaign was conducted
among them. Against this background, it appears that 4 out of a
total of 34 to 35 supervisors 1 interrogated 7 out of a total-of about 750
to 800 employees concerning relatively minor matters. It also appears
that the 10 instances of alleged interrogation, fully set forth in the In-
termediate Report, occurred at a point in time relatively remote with
respect to the date of the election, and that the questions were more
in the nature of passing inquiries, evidently reflecting the general in-
1 The Tiial Examiner inadvertently referred to "40 to 45" supervisors, which we hereby
correct. This crier in no way affects our concurrence in the Trial Examiner's ultimate
findings.
113 NLRB No. 116.
1268 DECISIONS OF, NATIONAL LABOR RELATIONS BOARD
terest that had been invoked, during the course of an exciting cam-
paign in which three unions were involved and which had been in
progress for a period of months.
In Blue Flash Express, Inc.,' the Board (Members Murdock and
Peterson dissenting) held, in accord with the great majority of the
courts, 3 that interrogation was not unlawful per se, and further held
that "the test is whether, under all the circumstances, the interrogation
reasonably tends to restrain or interfere with the employees in the ex--
ercise of rights guaranteed by the Act." 4 The Board made it clear in
this decision that "The rule which we adopt will require the Trial
Examiners and the Board to carefully weigh and evaluate the evidence
in such case, but that is what we believe the statute requires us to do.
The only alternatives, both of which we reject, are either to find all
interrogation per se unlawful, or to find that interrogation under all
circumstances is permissible under the statute:" Our conclusions con-
form to this test. It seems clear that an application of these stated
principles necessarily leads to the finding that the' interrogation, in the
circumstances present here, does not reasonably tend to restrain or
interfere with the employees in the exercise of their statutory rights.
In keeping with the above rule, the Trial Examiner weighed and evalu-
ated the evidence in the case, and, in our opinion, drew reasonable in-
ferences therefrom, based on an overall perspective of the factual sit-
uation. From our reading of the record, we perceive no valid reason
for disturbing his conclusions. Accordingly, we adopt his recom-
mended dismissals of the Section 8 (a) ' (1) allegations predicated on
interrogation.
2. The Trial Examiner also recommended dismissal of the com-
plaint insofar as it alleged that the Respondent violated Section 8 (a)
(1) by threatening its employees with discharge or loss of economic
benefits if they engaged in union activities, and making promises' of
benefit to them if they refrained from engaging in such activities.
Like the Trial Examiner, we find that Breedlove's remark to Nease
of the possibility that a union would not financially benefit women
workers, and might conceivably jeopardize their work opportunities,
was hypothetical in nature as to the results of unionization, and cannot
reasonably be construed as a threat violative of Section 8 (a) (1).
Similarly, we agree that McCarty's comment to Trantham that he "and
the company can do more for you than any union can," adjusting his
2 109 NLRB 591.
3 Op. cit., 593, and footnote 3.
4 The Blue Flash test, as set forth above, has been uniformly approved by the courts
See N. L. R. B. v. Armco Dra4nage & Metal Products , Inc., 220 F. 2d 573 (C. A. 6)
N. L. R. B. v. Wagner Iron Works , 220 F. 2d 126 (C. A. 7) ; N. L. It. B. v. Protein Blenders,
Inc, 215 F. 2d 749 (C. A. 8) ; N. L. It. B. v. Price Valley Lumber Co ., et al, 216 F. 2d
212 (C. A. 9).
LILY-TULIP.CUP CORPORATION , , 1269
shirt cuff and tie 'while making that remark,5 does, not warrant a find-
ing that the Respondent thereby violated Section 8 (a) (1). To -at-
tribute a degree of significance to,McCarty's gesture that would con-
vert it into an unfair labor practice is to strain the facts,out of pro-
portion to the circumstances. The ,Trial Examiner also found that
the Respondent did not violate, Section 8 (a) (1) by certain state-
ments respecting union solicitation which Haley allegedly made to,
employees Smith and Bateman. He based his finding on a lack of
evidence that Haley's statements, in the context in which they were
made, referred to offduty solicitation. The record as a whole supports
this conclusion. As it is no violation of the Act to warn an employee
against union solicitation on company time, we adopt the Trial Ex-
aminer 's finding. Finally, with respect to Breedlove's alleged remark
to Nease that he found reason every day for firing,an employee for
wearing a union button, we note that Breedlove denied making the
statement, and that the Trial Examiner, predicating his resolution of
this credibility question on Breedlove's appearance on the witness
stand and the opportunity he had to appraise Breedlove's judgment,
credited in substantial effect Breedlove's denial. We adopt this find-
ing. Under the circumstances, unlike the Trial Examiner, we deem
it unnecessary to pass on the possible isolated effect of the statement,
if made. The Trial Examiner also correctly resolved by credibility
findings other Section 8 (a) (1) allegations, and in accordance with
established Board and court policy we adopt those findings and con-
clusions without further comment. 6
As we view all the factual circumstances of this case, we cannot
agree with our dissenting colleagues that the acts of interrogation
occurred "in a context of other unfair labor practices." In agree-
ment with the Trial Examiner, who as trier of the facts with the op-
portunity to observe witnesses firsthand and to formulate judgments
on that basis, we find no warrant for concluding that any such con-
text "of other unfair labor practices" exists here. We are finding that
the alleged acts of interrogation-and that is all that, in our opinion,
we have in this case-did not, within the meaning of the Blue Flash
doctrine, reasonably tend to restrain or interfere with the employees
in their statutory rights. Our colleagues are therefore in error when
5 Rank-and -file employees wear uniforms while supervisors wear shirts and ties. The
General Counsel suggested the inference that this was McCarty 's way of indicating a
reward, I. e ., a promotion , if Trantham refrained from union activity.
O Needless to state, we do not subscribe to the following views attributed to us by our
dissenting colleagues : ( 1) Coercive conduct should not be remedied by this Board on the
ground that only a small proportion of employees were covered by a small proportion of
supervisors ; ( 2) unlawful threats of economic reprisal are protected under the Act, if some
plausible argument against unionization is contained therein; and ( 3) statements imply-
ing that promotion will be forthcoming only upon abandonment of union activities do not
violate the Act The conclusions that our dissenting colleagues would draw are based upon
the erroneous premise that the Respondent's conduct and statements constitute "threat of
reprisal or promise of benefit ." They do not.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
they state that we have "chosen to depart from the Blue Flask crite-
rion." As already indicated, and now repeated for emphasis, we are
deciding this case in conformity to the principle enunciated in the
Blue Flash decision.
3. The Trial Examiner found, and we agree, that Raymond L.
Smith was discharged for cause, and that his discharge was therefore
not violative of Section 8 (a) (3) of the Act.
[The Board dismissed the complaint.]
MEMBERS MI"iRDOCK and PETERSON, dissenting in part:
The issues in this case are whether the Respondent, within the mean-
ing of the Board's Blue Flash decision, violated Section 8 (a) (1) of
the -Act by unlawfully interrogating its employees concerning their
union activities, and whether the Respondent unlawfully threatened
its employees with discharge or loss of economic benefits if they en-
gaged in union activities and made promises of benefit to them if they
refrained from engaging in such activities. Our colleagues find that
the Respondent did not engage in any of the foregoing misconduct.
In doing so, we are convinced that the majority have chosen to depart
from the test of the legality of interrogation set forth in the Blue
flask case, and have committed serious,error in dismissing the allega-
tions concerning the threats and promises of benefit.
In the. Blue Flash case, a decision in which we dissented, a majority
of the Board rejected a line of well-established Board and court de-
cisions holding that the interrogation of employees concerning their
union activities constitutes a per se violation of Section 8 (a) (1) of
the Act. Instead, the majority there announced that henceforth the
test of the lawfulness of interrogation "is whether, under all the cir-
cumstances, the interrogation reasonably tends to restrain or interfere
with the employees in the exercise of rights guaranteed by the Act."
In the Blue Flash case, the majority found that the systematic inter-
rogation of employees as to whether they had signed union cards was
not unlawful because the questions were propounded in order to en-
able the employer to ascertain the union's majority status in the face
of its request fcr, recognition, and because the questioning occurred in
a background free of employer hostility,to union organization.
In adopting the Trial Examiner's recommended dismissals of the al-
legations pertaining to the acts of interrogation, the majority contents
itself with the observation that "the Trial Examiner weighed and
evaluated the evidence in the case, and, in our opinion, drew reason-
able inferences therefrom, based on an over-all perspective of the fac-
tual situation," noting that the acts of interrogation concerned "rela-
tively minor matters" which were "in the nature of passing inquiries."
LILY-TULIP CUP CORPORATION 1271
Let us look at the overall factual situation and the nature of the ques-
tions asked.
A lively organizational campaign among the Respondent's employ-
ees commenced late in 1953 and continued until the election on May
26, 1954. The Trial Examiner found, and our colleagues apparently
concede, that the "Respondent was aware of, and made clear its oppo-
sition to, the attempt to unionize its plant." The Trial Examiner also
found, and the majority agrees, that 4 of the Respondent's supervisors
engaged in 10 specific acts of interrogation concerning its employees'
union activities or sympathies between the end of January 1954 and
the latter part of March 1954. Thus, the supervisors asked the em-
ployees such questions as whether they belonged to a union; -what
unions they favored; and why they wore union buttons. At least three
of these inquiries - were accompanied by threats from the inquiring
supervisors that the- employees would suffer discharge or economic
loss if the Union was successful or that they would enjoy economic
gain if they refrained from union•activities.
It is difficult if not impossible to perceive how the majority can
characterize questions like the foregoing, when viewed against the
backdrop of the Respondent's expressed opposition to unionization
and with the concomitant threats to the employees questioned, as con-
cerning "relatively minor matters" "in the nature of passing inquir-
ies," particularly when the majority at the same time expressly adopts
the Trial Examiner's inferences and conclusions which implicitly rec-
ognize the intrinsically coercive character of the interrogation but dis-
miss because the Respondent's supervisors were not shown to have
asked a "sufficiently numerous quantity of coercive questions of the
Respondent's employees." [Emphasis supplied.] It is even more
difficult to under,tand how our colleagues can conclude that the Trial
Examiner's recommended dismissals of the allegations as to interroga-
tion conformed to the rule set forth in Blue Flash. The Trial Exam-
iner dismissed these allegations on the ground that "only 4 supervisors
out of a total of from 40 to 45 [the record establishes this figure to be
34 to 35] asked questions-concerning union affairs-and that only
7 employees out of a total number of from 750 to 800 were thus in-
terrogated," concluding that the General Counsel had failed to prove'
that "an adequately large group of employees were asked a sufficiently
numerous quantity of coercive questions to warrant the -conclusion
that the Respondent violated the Act." The plain words of the Blue
Flash decision do not contain the slightest suggestion that the legality
of interrogation turns upon the number of coercive questions asked
and the number of employees thus interrogated, but rather whether
"the interrogation reasonably tends to restrain or interfere with the
employees In the exercise of rights guaranteed by", Section 7 of the
37988-56--vol . 113-81
1272 DECISIONS ,OF NATIONAL LABOR RELATIONS BOARD
Act. Certainly, the inferences and conclusions of the Trial Examiner,
adopted by the majority, to the effect that this Respondent's ad-
mittedly coercive conduct should not be remedied by this Board on'
the ground that only a small proportion of employees were coerced by
a small proportion of supervisors is a^ completely new concept in the
field of labor relations never before suggested by any Board or court
decision, and completely alien to the rule set forth in Blue Flash.
The majority necessarily accept such a fallacious theory (although
paradoxically denying it in a footnote) by adopting the Trial Exam,
iner's, inferences and conclusions as no other rationale for the result
is stated. In so doing the majority ignores the serious impact of such
coercive conduct on all employees of the Employer. It should take
no great practical experience to appreciate the fact that coercion di-
rected to a few employees because of their union sympathies by a few
supervisors is swiftly communicated to other employees. A few stones
can produce many ripples in a pond. The result is that a inuch larger
number of then: understand full well that their livelihood is in jeop-
ardy because of their union adherence. This is exactly the fear that
Congress attempted to eliminate in the area of labor relations by
granting employees the right to unionize without interference by their
employers under Section 7 of the Act. Yet the majority in this deci-
sion permits an employer to coerce directly a few employees and in-
directly to coerce all of its employees regardless of their right clearly
and specifically stated in this statute to be protected through this
Board from such interference, restraint, and coercion. Either Blue
Flash means what it says or it means nothing. The majority cannot
have it both ways.
What we have here is a case where various supervisors of the Re-
spondent, which had expressed its opposition to attempts to unionize
its plant, engaged in questioning employees concerning their union
activities or sympathies, not because , as was the case in Blue Flash,
of any alleged proper desire to ascertain the majority status of the
competing unions involved to answer a claim for recognition, for none
of these labor organizations had made a claim for recognition dur-
ing the period in question. This, in our opinion, is precisely the situa-
tion contemplated by that decision for finding that interrogation
which had no conceivable justification tended to restrain and interfere
with employees' rights under the Act. In fact; this Board, applying
the Blue Flash criterion, so found in a recent case'' involving facts,
paralleling those presented herein, which the majority chooses to
ignore.
There are still further circumstances in this case which point up the
coercive character and illegality of the various acts of interrogation-
indulged in by the Respondent's supervisors and which require such
7 Union New8 Comp any, 112 NLRB 420.
LILY-TULIP CUP CORPORATION 1273
a finding under the Blue Flash criterion. The complaint alleged and
the evidence shows that the Respondent also violated Section' 8 (a)
(1), of the Act by making the following threats of reprisal and prom-
ises of economic benefit. Some of these threats and promises actually
accompanied the acts of interrogation, although -the Trial Examiner.
and the majority have conveniently chosen to treat the interrogation
and the concomitant threats and promises as though they occurred in
complete isolation from each other. Thus the situation is wholly dif-
ferent from Blue Flash where one of the reasons for finding the in-
terrogation not coercive was that there "the Respondent did nothing
to afford them [the employees interrogated] a reasonable basis for be-,
lieving that the Respondent might resort to reprisals because of their
union membership or activity." [Emphasis supplied.]
1. Employee Nease testified that, at the time Supervisor Breedlove
interrogated her as to what she thought she would gain by joining the
Union, Breedlove informed her that " as far as the union getting us
[female employees ] a raise, that Lily-Tulip wouldn't pay us any more
because if they were going to pay men's wages they would get rid of
the women and hire men in our place." The Trial Examiner found
that Breedlove "did suggest to Nease the possibility that a union
would not financially benefit women workers and might conceivably
jeopardize their work opportunities" but that "Breedlove advanced'
a plausible argument against unionization. For that I do not believe
that his employer should stand convicted of committing an unfair
labor practice." Our-colleagues adopt this finding, asserting that the'
threat was merely "hypothetical in nature as to the'results of union-
ization."
The record indicates that Nease, who 'is employed in the cone de-
partment, works in connection with the printing presses which print
designs on small paper cups. Her duties consist of keeping the print
clean and assisting the machine operator. 'The record fails to disclose
in what respect, if any, the discharge of female workers and the em-
ployment of males to perform this ,work would be financially,' opera-
tionally, or otherwise beneficial to the Respondent. Yet our col-.
leagues find that Breedlove's threat of replacement of females in the
event' of unionization; made during the height of an organizational,
campaign which the Respondent opposed, and unrelated to "any in-
crease in productivity or operational efficiency which might result
from such replacement, "was hypothetical in. nature as to the results'
of,unionization" and thus was not violative of Section 8 (a) (1) of
the-Act. If we understand this position correctly, this is tantamount
to" saying that unlawful threats of economic reprisal are protected
under the Act if the threatened economic detriment is made contingent
upon the success of the Union's organizational campaign.
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In Idaho Egg Producers,' this Board unanimously found that a,
supervisor's statement to a'union adherent during an, organizational
campaign that lie had plans in the safe for the installation of machin-
ery that would substantially reduce the number of personnel required
to operate the plant constituted a violation of Section 8 (a) (1) of the
Act since the statement introduced the possibility of technological
change as a threat of reprisal for engaging in union activities. In
our opinion, Breedlove's statement to Nease that female employees
would be replaced by males if the Union became the bargaining agent
of the employees and demanded equal pay for equal work is no less
a threat of reprisal for union activities than the statement in the
Idaho case set forth above. We fail to perceive how one statement
can be characterized as "hypothetical" while another statement of
similar content is found to be violative of the Act. Certainly, our col-
leagues advance no reason for this, disparate treatment. In our opin-
ion, Breedlove's statement to Nease regarding the replacement of fe-
male workers violated Section 8 (a) (1) of the Act. Contrary to the
majority, we would so find.
2. The Trial Examiner found that Supervisor McCarty asked em-
ployee Trantham what the latter expected to benefit by union repre-
sentation. According to Trantliam's testimony, which was undenied,
Trantham-replied that he desired job security, seniority, and possibly a
pay raise. McCarty then stated, "Well, if the union does come in the
company, we have our own set of rules for dealing with the union."
Trantham further testified that, "At the end of our conversation, Mr.
McCarty said, `Rex, I believe that myself and the company can do more
for you than any union can.' And when he said that, he adjusted the
cuff on his shirt and adjusted his tie, which was in proper place-in the
first place." The record discloses that special shirts and ties are parts
of apparel worn only by supervisors.
In dismissing the complaint's allegation that McCarty's statements
to Trantham constituted an unlawful promise of economic benefit
for refraining from union activities, the Trial Examiner observed
that "If McCarty thus expressed himself, he spoke an irrefutable
truth. No one supposes that anyone other than employers promote
employees" and that "McCarty expressed a reminder of the hard fact
that unions do not select bosses." The Trial Examiner therefore
found that the General Counsel failed to sustain the burden that
Trantham was promised a reward for abstaining from union activi-
ties. The majority adopts this finding, asserting that "To attribute
a degree of significance to McCarty's gesture that would convert it into
an unfair labor practice is to strain the facts out of proportion to the
circumstances."
8 111 NLRB 93.
LILY-TULIP CUP CORPORATION 1275
We cannot understand how our colleagues can justify dismissal of
this allegation in the complaint on the ground that McCarty's state-
ment constituted merely "a reminder of the hard fact that unions do
not select bosses" and that to find a violation here would " strain facts
out of proportion to the circumstances." Taken in the context of
McCarty's interrogation of a known union adherent and Trantham's
expressed desire to achieve certain economic benefits by union repre-
sentation; McCarty's statements and conduct in adjusting his collar
and tie, symbols which the majority concedes connote supervisory
status, leave little doubt that they were reasonably intended to convey
to Trantham the implication that promotion would be more likely if
Trantham discontinued his union adherence. We know of no doctrine,
and certainly the majority points to none, which holds that only
words, and not gestures, may form the basis of promises or coercion.
McCarty's gesture, connoting all that it does, together with McCarty's-
statement that he and the Respondent could do more for Trantham
than the Union could, are the blunt facts with which we are dealing
in connection with the allegation in the complaint that the Respondent
unlawfully promised economic benefit to Trantham for refraining
from union activity. We are unable to agree,, as our colleagues ap-
parently do, that statements accompanied by gestures such as in-
volved here which imply that promotion will be forthcoming only
upon the abandonment of union activities do not violate Section 8 (a)
(1) of the Act. Accordingly, we find that the Respondent violated
the Act by McCarty's implied promise of economic benefit to
Trantham should the latter refrain from his support of the Uriion 9
3. The complaint alleged that the Respondent "threatened to dis-
charge any employee soliciting other employees for membership in
the Union or any other labor organization." The evidence in sup-
port,of this allegation came from employees Smith and Bateman.
Smith testified that, in March 1954, Supervisor Haley stated to Smith
and Bateman that "I am going to 'tell you something, if anybody
comes to me and tells me that you have been trying to get them to
sign these union cards . . . we will fire you within the hour." On
cross-examination by the Respondent, Smith was asked whether Haley
instructed him "that you were not to sign employees up in the union
while you were working ." Smith answered affirmatively , stating
"Well, it was kind of indirectly with Mr. Haley. He just said,
`If anybody comes to me and tells me that you have been trying, it
don't make a damn who ... we will fire you within an hour.' ". Smith
thereupon denied that he had solicited on company time. Bateman
testified that Haley told Bateman and Smith that "he [Haley] told
?See The Dalton Company , Inc., 109 NLRB 1228; Northern Fruit Company , Inc., 108
NLRB1017 ; Majestic Metal Spectialties , Inc., 92 NLRB 1854.
.1276 DECISIONS' OF NATIONAL, LABORi RELATIONS BOARD
some of the -employees' around the • plant that -if anybody hit him up
-the side of the union card to be sure'to let him know personally and
,he'd see to it `that they was fired within twenty minutes." Bateman
was not asked whether Haley intended his statement to apply only to
solicitation-on company time.
, While Haley denied making the foregoing statements to Smith
-and Bateman, the Trial Examiner apparently did not credit his de-
nial. Rather,,nbting'that the complaint generally alleged threats of
discharge for soliciting membership without reference to time and
place, the Trial Examiner concluded that "This aspect of the case
'seems to have been tried .:. on the theory that Smith was threatened
with discharge if he should solicit memberships on the job." To sup-
'port this' conclusion, the Trial Examiner relied upon Smith's responses
.to questions as to whether he had tried to solicit signatures on com-
pany time. 'Observing that an employer may discipline an employee
for soliciting or engaging in any other personal activity when he is
,on the job, the Trial Examiner found that the General Counsel had
failed to sustain the burden of establishing "the broad allegation"
that the Respondent violated Section 8 (a) (1) of the Act by Haley's
-threats concerning solicitation. Again, our colleagues adopt this
-finding. '
It should require no citation to establish 'that a statement in which
employees are threatened with discharge for soliciting union mem-
bership, without any qualification as to time or place of such solici-
tation, is violative of the Act. When the General Counsel elicited
from Smith and Bateman'the statements attributed to Haley, the
General Counsel had made out a prima facie case of a violation of the
Act, and it was then incumbent- upon the Respondent to come forward
-with evidence to rebut the testimony of Smith and Bateman or to
.establish that Haley's admonition against solicitation was directed
only to the pursuit of such activity on company time. This, in our
opinion, the Respondent failed to do. Unlike our colleagues, we be-
lieve that Haley's statements to Smith and Bateman consitituted a
clear threat of, discharge for solicitation -without regard to the time
or place of such solicitation and thereby violated Section 8 (a) (1)
of 'the Act.
Since the decision, in Blue Flash, this Board has not hesitated to
find, acts 'of, interrogation of the same nature as those involved herein
•tb, be violative of Section 8 (a) (1) of the Act where they occurred
iii the context of other unfair labor practices, 10 although the coinci-
dence of these independent violations is apparently * not demanded-
See, e. g., Geo. Byers Sons, Inc., 111 NLRB 304; Hammond Brick Company, 111
NLRB 1. ,
LILY-TULIP CUP CORPORATION, 1277
under the'Blue Flash criterion." .While we are convinced that the"acts
of interrogation herein meet the test of illegality set forth in Blue
Flash, we are satisfied that the independent unfair labor practices in
which the Respondent engaged provide further support for our con-
clusion that the majority's decision to dismiss the complaint insofar as
it alleges that the Respondent violated the Act by interrogating its
employees, threatening them with reprisals because of their union ac-
tivities, and promising them benefits for abstaining from union activi-
ties, is manifestly wrong. We would fashion a remedial order in this
case to correct this serious error.
u See majority decision in Blue Flash at p 4 • "Contrary to the assertion of our dis-
senting colleagues , we are not holding in this decision that interrogation must be accom-
panied by other unfair labor practices before it can violate the Act. We are merely hold-
ing that interrogation of employees by an employer as to such matters as their union
membership or union activities , which, when viewed in the context in which the interroga-
tion occurred , falls short of interference or coercion , is not unlawful "
INTERMEDIATE REPORT
STATEMENT OF THE CASE
Upon charges duly filed on March 15 , 1954 , and April 21 , 1954 , by International
Union , United Automobile Workers of America , AFL, herein called the Union or
International , the General Counsel for the National Labor Relations Board , herein
respectively called the General Counsel and the Board , by the Regional Director of
the Seventeenth Region (Kansas City, Missouri ), issued his complaint dated Septem-
ber 3 , 1954, against Lily-Tulip Cup Corporation , herein called the Respondent , alleg-
ing that Respondent had engaged in and was engaging in unfair labor practices affect-
ing commerce within the meaning of Section 8 (a) (1) and ( 3) and Section 2 (6)
and (7 ) of the National Labor Relations Act, as amended , 61 Stat . 136, herein called
the Act . Copies of the charges , the complaint , and a notice of hearing were duly
served upon the parties.
With respect to the unfair labor practices , the original complaint alleged in sub-
stance that : ( 1) Respondent has interfered with , restrained , and coerced , and is inter-
fering with , restraining , and coercing , its employees in violation of Section 8 (a) (1)
of the Act; 1 and ( 2) Respondent has discriminated against and is discriminating
against its employee Raymond Smith in violation of Section 8 (a) (1) and (3) of
the Act . Respondent filed an answer dated September 3, 195 4 , in which it admitted
the jurisdictional allegations of the complaint ; neither admitted nor denied that the
Union is a labor organization within the meaning of the Act; and denied that it had
committed any of the asserted unfair labor practices.
Pursuant to notice a hearing was held before me at Springfield , Missouri , on Sep-
tember 21 , 22, and 23 , 1954. The General Counsel and the Respondent were repre-
sented by counsel ; the Union by its regional representative . All parties were afforded
1 The specific 8 (a) (1) allegations were as follows.
a questioned its employees about their union and other concerted activities ;
b. engaged , and created the impression that it engaged , in surveillance of its em-
lployee's union and other concerted activties;
c threatened to discharge any employee soliciting other employees for membership
in the Union or any other labor organization
d. warned employees not to wear union buttons or other emblems of union mem-
bership, adherence, or sympathy, if they did not want to be discharged ,
e. threatened employees with the loss of certain benefits and privileges if a labor
nrganizatinn "got into the plant" :
f. warned employees that the Respondent Company would close its Springfield
plant if any labor organization came into it;
g told employees they would be "bho'ed around still more" if they wore union
buttons and other insignia of union inembeiship, adherence, or sympathy, and,
h. advised employees that Respondent Company " could do more" for them than
any union could ever do.
1278 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
full opportunity to examine and cross-examine witnesses, to introduce testimony
bearing on the issues, to argue orally on the record, and to file briefs. Forceful briefs
from both the General Counsel and the Respondent have been received.
Over Respondent's objections, I allowed amendments to the complaint made during
the hearing and while the taking of evidence on behalf of the General Counsel was
still in progress. These amendments added the names of James E. Anderson, Vivian
F. Mason, and T. J. Dugan to the list of seven supervisors purported to have engaged
in 8 (a ) (1) violations.
I denied the General Counsel's motions, made after the evidence closed, to further
amend the complaint as follows: (1) To strike the allegation that Respondent warned
employees the plant would close if a labor organization came in and to substitute
therefor the allegation that Respondent curtailed or withheld overtime work from
known or suspected union adherents; and (2) to add to the allegation that Respond-
ent advised employees it could do more for them than any union the allegation that
Respondent announced wage and benefit increases.2
So well is it established that a complaint may allege conduct not included in a
charge, merely an original paper setting in motion the Board's investigatory powers,
that I perceive no merit in Respondent's contention that incidents falling within the
purview of the complaint were not litigable because they were not spelled out in the
two charges.
Motions having to do with other contentions made during the course of the hear-
ing, on which rulings were reserved, are disposed of in accordance with the findings
of fact and rulings of law made below.
Upon the entire record in the case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Respondent, at all times material to these proceedings, has been a corporation
domesticated in the State of Missouri. It is an integrated multistate enterprise and
maintains its home office in the City of New York. State of New York. It has vari-
ous plants and, other places of business in several States of the United States, in-
cluding a plant located at Springfield, Missouri. It is engaged in the maufacture,
sale, and distribution throughout the United States of paper cups, containers, and
related items. During the calendar-year 1953; Respondent produced in all its plants
goods valued in excess of $2,000,000, more than half of which goods were shipped
directly to customers located outside of the State in which such goods had been
manufactured. During the same period, Respondent's Springfield, Missouri, plant
produced goods valued at in excess of $500,000, more than half of which goods were
shipped directly to customers outside of the State of Missouri.
I find that Respondent Company and its Springfield, Missouri, plant each, are en-
gaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The purpose of International Union, United Automobile Workers of America,
AFL, is to represent employees who are its members, in matters relative to wages,
hours, and working conditions. It is a subsidiary and affiliate of, and chartered by,
the American Federation of Labor. Organizational campaigns are conducted- by
International, which files for certification in its name. Once certification has, been
obtained, the Board is petitioned to amend the certification to-the name of the local
union which is established after a given plant is organized. In the course of an
organizational drive among employees of Respondent in Springfield in 1953 and
It Is a truism of modern practice that litigants should be allowed to present their
various claims and defenses without too strict regard to the precise content of their formal
pleadings. In nonjury, and particularly, in administrative cases, reasonable latitude should
be granted the parties for the full development of their respective theories Respondent
here, took advantage of the opportunity it received to defend against the contentions
alleged in the amendments made before the General Counsel rested. With respect to the
amendments undertaken to be made after all parties had rested, however, Respondent, al-
though It had offered some evidence bearing on the allegations cannot be said to have had
an opportunity to so completely defend against them as it might have done, had they been
seasonably made. To adopt the extreme of liberality and allow the General Counsel ex-
tensively to utilize a hearing before a Trial Examiner as a means of investigating a case
or as a vehicle of retrospection, would be disruptive of the very essence of the adversary
proceeding Section 7 of the Administrative Procedure Act was designed to provide.
LILY-TULIP CUP CORPORATION 1279
1954, the Union held itself out to such employees as a labor organization and re-
quested them to select it as their collective-bargaining representative. Respondent's
motion that the complaint be dismissed for the reason that the Union is not a labor
organization authorized by its own constitution to represent Respondent's employees
was denied. By no means does the Union's failure, in its declaration of jurisdiction
to include an industry such as that in which Respondent is engaged, affiliated or
allied, exclude, as Respondent seems to feel, the Union from falling within the term
"labor organization" as defined in Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction
Starting in late 1953 and continuing until an election on May 26, 1954, when on
choices of the Union, two other labor organizations or "no union," some 60 to 65
percent of several hundred employees voted "no union," a lively campaign was con-
ducted. Handbills were distributed at the gate of Respondent's plant, employees
began to wear union insignia , and posters both prounion and antiunion appeared
from time to time in various working areas. These posters were ordered removed
and were taken down rather promptly. There is some suggestion, not amounting
to substantial proof, that on occasion signs opposing unions were not removed as
quickly as those favoring them.
Respondent was aware of, and made clear its opposition to, the attempt to union-
ize its plant . In January and again in March , in circulars to its employees , Respond-
ent asked them if they realized that dues would be a "take" and a "plum" for paid
organizers coming from far and wide. The Company pointed with pride to its plant
as a good place in which work, with conditions geared to employees' comfort, per-
sonal habits, and needs. It referred to seniority and job security, and held out the
possibility of losses due to unemployment, layoffs, and strikes. The Company ex-
pressed its confidence that its employees would do their part in avoiding such situa-
tions as a 73-day strike which had occurred at another of its plants and a 36-day
strike which had taken place at a competitor's plant with but dreary results to the
workers While asserting that whether employees joined, or refused to join, a union
would not affect their jobs, Respondent stated that at a time when the automobile
industry was laying people off every day, it was able to furnish steady work and
intimated that the United Automobile Workers Union needed more members to
fatten up its treasury.
During the continuance of the organizing campaigns, Respondent's supervisors
were frequently informed by management in general terms that they should neither
interrogate employees concerning, nor threaten them with reprisals on account of,
their union membership or activities nor promise them benefits for refraining there-
from. They were also told that they might answer any questions employees should
ask them about the subject of unionization. As will be seen, a considerable amount
of conversation concerning union matters took place between employees and super-
visors. It is apparent that some of the supervisors involved in these discussions were
opposed to the various unions' desire to represent employees and not firmly denied
that some of their statements viewed in isolation and "unrealistic of the true situa-
tion" could be susceptible of being found violative of the Act under a strict inter-
pretation of Section 8 (a) (1). Whether proven conduct of these supervisors is of
sufficient gravity to warrant the issuance of a restraining order is a problem that
will necessarily be considered in a subsequent section of this report.
On March 11, 1954, Gilbert Jewell, regional representative of the Union (who on
March 15 filed a charge that Respondent had interrogated and intimidated employees
and threatened them with reprisals or promised them benefits), told Plant Manager
Rufus Hovey that he wanted to talk to him about a situation at the plant that had
to do with decency, harmony, and other matters. Hovey told Jewell that the Com-
pany did not need to discuss those subjects.
At 6:30 a. m. April 22, 1954, there was posted on the plant bulletin board a
notice to employees announcing that effective May 3 there would be a wage increase
of 5cents an hour for all hourly paid employees, additional rate increases for a few
job classifications, an increase of 2 cents an hour in the shift differential, and that
effective July 1 each employee would receive at company expense, an individual
type contract for Blue Cross-Blue Shield, hospital, medical, surgery benefits. At
6:30 p. m., April 23, 1954, the Regional Director mailed from his office in Kansas
City to the Respondent in Springfield a copy of a petition for representation filed by
the Union on April 21, stating that a request for representation as-bargaining rep-
resentative would be made by April 22, 1954. There is credible evidence that the
increase had been under discussion and consideration by officials of the Company
1280 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for from 6 weeks to 4 months before its terms were decided upon and the employees
notified.
Although the General Counsel convincingly advances reasons' for suspecting
Respondent knew or believed a request for recognition was about to be made when
it announced the increase, he has not sustained the burden of proving such to have
been the fact.
The record contains evidence, presumably offered to support a finding, that since
March of this year 2 employees did not receive an amount of overtime proportionate
to that given 2 others and to lead to a conclusion of discrimination. It is apparent
that of the 4, only 1 was a known union adherent and 2 who did not get it had
declined extra work. There is also evidence that 3 other known supporters of
the Union did not receive work cleaning up machines on 2 Sundays and that this
special job was completed before Respondent had called upon all the employees
who had signified their willingness to work on the Sabbath. The complaint does
not allege that Respondent's failure to give the employees an opportunity to make
some extra money constituted a violation of Section 8 (a) (1). The proof adds
little to the established fact that Respondent did not welcome the entry of a
union into its Springfield plant.
It is within the framework of the various factors outlined in this introductory
section that we now come to a consideration of the allegations of the complaint.
B Interference, restraint, and coercion
1. Interrogation
Smith testified that in March, Warren L. McCarty, who was at that time fore-
man of the print department, said that he would like to know what good the union
badge Smith was wearing was and what benefits he expected from a union. McCarty
denied making the statement. He testified that Smith asked him for a private
interview for the purpose of discussing complaints and grievances, a list of which
he had at his home, and that he told Smith he could only recognize him in connec-
tion with any individual grievances he might personally have.
Employee Marguerite Hines testified that one day Basil E. Ferrentino, presently
production manager and previously a foreman over 250 employees, asked her why she
was wearing a union button. Ferrentino testified that he possibly asked Hines if
there were something she wanted to talk about. She was an inspector and fre-
quently he would ask inspectors such a question and employees would ask him
types of questions concerning the propriety of wearing antiunion badges.
Employee Kathryn Malicoat testified that after she put on a union badge Ferrentino
asked her what the badge meant . Ferrentino was not specifically interrogated
concerning this assertion.
Employee Jack H. Miles testified that McCarty asked him if he had signed a
union card. McCarty testified that a considerable time before the election he
asked Miles what his opinion was, and what he thought about the situation, but
did not "just like that" ask him whether or not he belonged to the Union.
Employee Maggie L. Crowder testified that Foreman George G. Paganini asked
her what was the Union's "beef," what she thought a union would do for her,
and whether she was mad at Mr. Breedlove (John E. Breedlove, supervisor of the
second shift) or himself. Paganini testified that he does not believe he asked
Crowder a question about a "beef" or one to that effect but that he did ask her
whether she was mad at him or Breedlove. Crowder also testified that later
Paganini asked her what union she favored and when she named the instant Union,
asked her if that was the Stevens' union (Stevens apparently being a representative
of a pressmen's union ), and upon receiving a negative reply asked her if her union
was the one supported by Nick (Nick being Paul Nicholson-a mechanical employee),
and when told "No," finally asked her if it was a women's union . Paganini admitted
that he asked Crowder if the union whose insignia she was wearing was the one
represented by Stevens and testified he may have asked her if it was the one
favored by Nicholson. Crowder further testified that during a third conversation,
Paganini asked her if she was going to give him a card and sign him up. Paganini's
version of this incident was that Crowder had said a union would be advantageous
to him; he took her remark jokingly and told her that he would sign up.
Employee Imojune Nease testified that Breedlove asked her what more privileges
she thought a union could gain for employees than they already enjoyed. Breedlove
testified that he "imagines" he asked Nease what she thought she would gain by
joining a union.
LILY-TULIP CUP CORPORATION 1281
Employee Robert G. Bateman testified that McCarty asked him what kind of
a button he was wearing and when he replied that it was a union button, McCarty
asked him whether he thought a union would help the employees and later asked
him what the union organizer had said about uniforms. McCarty, during his
appearance on the witness stand, was not called upon to admit or deny making these
inquiries.
Employee Rex W. Trantham testified that at a time when he was wearing a
union button McCarty asked him "What is it?" and when he told McCarty it
was an International Association of Machinists' button, McCarty asked him what
benefits he expected to get out of it. McCarty was not examined concerning any
conversation he might have had with Trantham along this line.
An analysis of this testimony will show that there were 10 questions directed to em-
ployees by supervisors concerning union activities, which inquiries were either wholly
or partially admitted or not denied, to the following effect: (1) Ferrentino to Hines as
to why she was wearing a union button; (2) Ferrentino to Malicoat as to what a union
badge meant; (3) McCarty to Miles as to whether he had signed for or belonged to the
Union; (4) Paganini to Crowdei as to what unions she favored, (5) Breedlove to Nease
as to what she thought she would gain by joining a union; (6) McCarty to Bateman as
to what kind of a button he was wearing; (7) McCarty to Bateman as to whether he
thought a union would help employees; (8) McCarty to Bateman as to whether the
union organizer had said anything about uniforms; 3 (9) McCarty to Trantham as to
what a union button was; and (10) McCarty to Trantham as to what he expected to
get out of a union.4
It is -argued that instead of informing supervisors that they might discuss union
matters with employees initiating the subject but not make any unprompted inquiries
nor threats of reprisal nor offers of reward, Respondent, in order to avoid liability under
the Act, should have ordered supervisors to turn deaf ears to employees who might
bring up the question and that its failure to do so amounted to an invitation to the
supervisory force to go out and actively campaign against unionization. No matter
how guarded the instructions an employer might give its supervisors it can scarcely
be expected that at no time during the excitement of a lively organizational campaign,
carried on by several competing labor organizations over a period of months, would
some of them become involved with employees in discussions about such an emo-
tional subject. We live and work in a democracy, not under a caste system shackling
speech between worker and boss. A surprising feature of this case is, that so far as
has been shown, only 4 supervisors out of a total number of from 40 to 45 asked
questions concerning union affairs-and those relatively innocuous and remote in time
from the date of the election-and that only 7 employees out of a total number of from
750 to 800 were thus interrogated. One should not allow his sense of proportion to be
overcome by attaching undue significance to a few ephemeral inquiries made of a
minuscule number of hundreds of employees all naturally deeply interested in so vital
a subject. When viewed in true perspective, I am not satisfied by the General Counsel's
proof that it has been shown that an adequately large group of employees were asked
a sufficiently numerous quantity of coercive questions to warrant the conclusion that
Respondent violated the Act. The few inquiries that were made were either in dis-
regard of specific instructions to supervisors or emerged from discussions initiated
by rank-and-file employees.
2. Surveillance
Smith testified that Personnel Manager James E. Anderson said he had heard, and
McCarty had informed him, that Smith was the Union's ringleader and the one who
started all the union activities. Anderson was not interrogated concerning this as-
sertion during the course of a lengthy examination which related chiefly to facts
bearing upon Smith's discharge on April- 17.
.s As will appear in subsection "5" hereunder dealing with alleged threats of loss of
benefits, the record contains testimony to the effect that some employees were told by
supervisors that if they became represented by a union they would no longer be supplied
with, but would have to purchase and launder, their own uniforms.
4 As the remaining earlier-related undenied or virtually admitted statements of super-
visors cannot, in my opinion, be construed to be interrogations violative of Section 8 (a)'
(1) of the Act, it is unnecessary to rule whether they were in fact made. I expressly find
that the General Counsel has not sustained the burden of proving that McCarty asked
Smith what good a union badge was and what be expected from the Union-although it is
a fact that McCarty told Smith that if he did not stop messing around he was going to
fire him and that a union badge would not help him.
1282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Smith testified that Marvin W. Haley, who recently became foreman of the print
shop and who previously had been a foreman trainee, gave the impression he was
watching him more than others , that he could not go to the restroom and any place in
the plant without Haley coming a few feet behind, and that usually when he would
leave his machine Haley or McCarty would be close by. Haley testified that he
found Smith roaming all , over and that he was instructed to remain in his department
and not leave it without clearing with a foreman, that all employees were similarly
-instructed and that it seemed that each time he would go to the restroom he would
find Smith there. McCarty testified that Smith's assertion that he constantly followed
him- is not true but he did tell him he would have to get permission to go to the spare
parts room.
Miles testified that McCarty said he was going to call employees aside to find out how
many cards the Union had procured. McCarty was not directly questioned about
this, or at least did not directly answer any question relating thereto.
Bateman's testimony that Haley said he knew everybody who signed a union card
and everybody who attended a union meeting stands undenied as does Trantham's
testimony that Haley told him it would be no use trying to be secretive about getting
membership cards, that Respondent knew how many attended union meetings, ap-
proximately how many cards were being signed , and knew the fact of signing within
20 minutes after a signature had been procured.
Respondent says there is evidence that Supervisor Helen Straight drove in front of
a union hall one night. (Straight is now deceased. Obviously Respondent could
offer no evidence to deny or explain the fact.)
Anderson's statement that he knew Smith was conspicuously prominent in union
affairs may scarcely be deemed an indication of surveillance in view of the fact that
Smith wore union insignia , passed out union literature , as he admitted , in the sight
of Supervisors McCarty, Haley, Dugan , Paganini , and quite a number of others,
including probably Plant Manager Hovey , and boasted to supervision that he was
recruiting union members . The evidence that Smith , Bateman , and Trantharn were
followed by McCarty and Haley in their plant peregrinations and ordered to stay on
the job and the contention that they were more stringently confined than nonunion
supporters is unpersuasive of selective eavesdropping . There is but little question
that Haley's claim of detailed knowledge of union transpirings is evidence supportive
of the allegation of creation of the impression of surveillance. But does that testi-
mony standing alone suffice to establish a violation of Section 8 (a) (1)? I think not.
There appears to have been no attempt on the part of any employees who favored
unions to conceal their support. On the contrary, many of them openly distributed
union literature and wore union insignia . It is quite obvious to me that a claim of
awareness of employees ' less conspicuous union support is too insignificant in the sum
total of their clearly evident union activities during the organizational period to
warrant any finding prejudicial to Respondent.
3. Threats of discharge
Smith testified that Haley told him and Bateman that if anyone informed him the
two had been trying to get them to sign a union card he would fire them within an
hour. Bateman testified that Haley told him and Smith that he had notified some of
the employees that if anybody "hit him up the side of a union card to be sure to let
him know personally and he'd see to it that they was fired within 20 minutes." Haley
flatly denied having engaged in such a conversation and testified that the only occa-
sion he had anything to do with Smith relative to signing up people was when upon
observing Smith writing something down while holding a list of names and a union
authorization card, he asked him what he was doing and that Smith replied he was
signing them up but that he was smart enough nbt to be caught doing so on the job.
Smith further testified that Haley "kind of indirectly" told him he was not to sign up
employees in the Union while he was working.
The complaint incorporates only threats of discharge for soliciting membership
without reference to time and place. This aspect of the case seems to have been
tried, however, on the theory that Smith was threatened with discharge if he should
solicit memberships while on the job. Thus in redirect examination in answer to a
question which assumed that Haley had told him not to sign up any employees during
working time, Smith testified that he had forgotten all the conversation and partially
repeated his testimony in direct examination that Haley told him if anyone reported
he had "tried" he would be fired . In response to the next question , Smith testified
that he never signed up any employees during working time.
Since working time is for work an employer may discipline an employee for solicit-
ing or engaging in any other personal activity when he is on the job . And, in the
LILY-TULIP CUP CORPORATION 1283
absence of substantial proof of discriminatory departure from a rule or custom, an
employer cannot be found to have violated the Act because he has threatened to dis-
charge an employee for doing something other than working while being paid for his
labor. Here , there is no evidence that , assuming Haley had warned Smith and Bate-
man they would be discharged for procuring union memberships, other employees
who he might learn had procured memberships during working time would be dis-
similarly treated. To the contrary, the evidence is that all who were caught would
be fired . The quite notable discrepancies between Smith 's and Bateman 's accounts
of the alleged conversation , Smith 's admission of hazy memory and Haley's denial
of their testimony, all conspire to shroud the subject with so much doubt that, at the
very least , a conclusion there was a threat of discharge extending to off-duty solicita-,
tion would be entirely, unwarranted. The General Counsel has failed to sustain the
burden of establishing the broad allegation of violation of the Act that Respondent
threatened to discharge any employee soliciting other employees for membership in
the Union or any other labor organization.
4. Warning against wearing emblems of union support
Smith testified that while he was wearing a union button and Bateman was holding
one in his hand, Haley told Bateman that if he put the badge on he was going to be
walking the street like Smith was pretty soon. Bateman testified that at a time when
Smith was , and he was not, wearing a big union button , Haley came up and said that
Bateman was "a smart boy , he isn 't going to be out walking the street like Smitty
[Smith] is one of these days." Haley testified that he absolutely did not make these
statements , that he does not recall any similar incident or ever seeing a badge in
Bateman 's hand although he has seen him wearing one.
Smith testified that McCarty told him if he did not "quit messing around" the
Company was going to fire him and that not even his badge was going to help him.
McCarty testified that to some extent he said what Smith asserted, that the occasion
was when he learned Smith had left the building at noon without clocking out as
required; McCarty said he was tired of Smith fooling around, was telling him for the
last time he was to stay in, and if he did not he was going to warn him out.
Employee Hazel I. Ramsey testified that when she came to work with a'badge on,
Ferrentino said, "Look at our new shop stewardess. She is wearing a badge. . .
You have a small badge" and dared her to wear a big badge in the cafeteria in front
of Hovey. Ferrentino testified that one morning when Ramsey was wearing a little
UAW button, he believes for the first time, he said, "look, we have a new shop
steward" and asked why she didn't wear a large button, which she produced, in some
more crowded place.
Ramsey further testified that Straight stated people who wore badges were "stupid."
As noted above, Straight is'deceased. Nease testified that Breedlove said he found
reason every day for firing an employee for wearing a union button. Breedlove de-
nied making the statement "because I don't have that privilege."
Such relative trivialities as a supervisor informing an employee who had violated
a rule that a union badge would not protect him-for certainly union adherence is
not a guarantee against disciplinary action-or declaring doltish or holding up to
contumely one who wears a badge, offensive as they may well be to an employee af-
fected weigh but lightly in the balance of unfair labor practices. Of more signifi-
cance, if true, is evidence that a supervisor warned one employee that should he
wear a union button he would be out of a job. ' Upon scrutiny, Smith's testimony
bears more on the subject of his own eventual discharge-a matter to be considered
infra-than upon a threat to discharge Bateman . Two facts are clear: Bateman
later wore a button; he was not discharged. Smith testified that Bateman was hold-
ing a button. Bateman made no mention of that fact. Rather he said that Smith
was wearing a big button and he was not. Furthermore Bateman made no allusion
-as did Smith-to Haley saying anything about a button at the time of the alleged
conversation. I cannot curtly cast aside Haley's denial. As I observed his appear-
ance on the witness stand I have a distinct feeling that for him to have made the
remark attributed to him, would have been completely out of character. Such a
threat can in no sense be regarded as in accord with the policy of the Company nor
encouraged or acquiesced in by its more responsible officials, opposed though they
indubitably were to the establishment of a union within the plant. •
Breedlove somewhat retracted from the force of his refutation of Nease's testi-
mony by ascribing what seems to me a weak reason for his denial. Nevertheless, on
the basis of what opportunity I had to appraise the man's judgment while he was a
witness, I am unable to believe that he gratuitously and intentionally conveyed to
Nease the impression of coercion under which she apparently labors. In any event,
1284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
apart from ,the grave doubt 'as to whether either Haley or Breedlove uttered the
words ascribed to them, I am of the opinion that any such possible statements were
so isolated in character as not to warrant a finding that, as alleged, Respondent in
violation of the Act, warned employees not to wear union buttons or other emblems
of union membership, adherence, or sympathy, if they did not want to be discharged.
5. Threats of loss of benefits
In subsection A of this section III, above,, reference was made to certain claims
that some employees were not given as much work after the organizational activities
commenced as they received before that time and it was found that, in the premises,
no violation of Section 8 (a) (1) had been made out. The testimony seeking to sup-
port these claims slightly impinges on the contention, now under consideration, that
employees had been threatened with certain loss of benefits and privileges if a labor
union "got into the plant." As matters eventuated, no labor organization got into
the plant in the sense that it became the selected bargaining representative of a
majority of an appropriate unit of Respondent's employees. If, however, this rather
vague allegation refers to the entry of a union into the plant in the sense of attempt-
ing io unionize the unorganized employees who worked there, what has previously
been found, disposes of, adversely to the General Counsel, the aspect of the allegation
insofar as it relates to loss of work.
"A further phase of this feature of the case is the claim that employees had been
threatened with the loss of benefits and privileges apart from those which it was un-
successfully contended they had already sustained before the time of filing the com-
plaint. The evidence bearing upon this issue was as follows: Crowder testified
that Paganini said employees were supplied with uniforms and "if there is unions,
you won't have uniforms . . . your uniforms will be taken away. . . . You have
breaks ... if the Union gets in you have to work harder. . . There won't be any
breaks or you will be time[d?] on your breaks if there is breaks . . . you won't have
time for your breaks. There won't be any breaks . . . your coffee will be wheeled in
by [on] a cart and you will grab your coffee and sandwich off the cart." Paganini
testified that he probably said that he had been in plants, one plant, where uniforms are
not free and told Crowder that in another of Respondent's plants there is a cart system
around to the various machines.
Nease testified that Breedlove- said as far as the Union getting women employees
a raise (was concerned), Respondent would not pay them any more because if it
was going to (have to) pay men's wages it would get rid of the women and hire men
in their places. 5 Breedlove testified he did not make "in those words" the statement
attributed to him by Nease but said any raise would have to be negotiated. As has
been previously noted, Bateman testified that McCarty asked him what the union
organizer had said about uniforms. McCarty was not interrogated concerning this
paltriness. Trantham testified Paganini said he understood the Company was go-
ing to start making Cadillacs 6 and cutting from 48 hours to 40 'hours a week.
Counsel displayed commendable restraint in refraining from asking Paganini whether
he indulged in this dubious witticism.
I am of the opinion that Crowder overstated Paganini's remarks and that what he
said in substance amounted to no more than that in some plants uniforms are not
supplied and coffee breaks not allowed. I read into the conversation no more than
a prediction that employees might be deprived of these boons. In its context a find-
ing of threat violative of Section 8 (a) (1) would place a strained construction upon
words. I am satisfied that despite Breedlove's partial denial, he did suggest to Nease
the possibility that a union would not financially benefit women workers and might
conceivably jeopardize their work opportunities. Can it be said, however, that the
suggestion was an unreasonable one? May not an employer's relatively minor su-
pervisors occasionally express hypothetical opinions respecting the results of unioniza-
tion without their company being found guilty of having violated the Act? How
could discrimination be found should it develop after an employer had agreed in
good faith to pay equal wages for equal work, women came to be laid off because
men proved to be more satisfactory? Breedlove advanced a plausible argument
against unionization. For that I do not believe his Employer should stand convicted
of committing an unfair labor practice. Such a random facetious remark as Paga-
I it is to he noted that there is no specific allegation that discharges would result from
the unionization of the plant.
6 A reference of course, if said, to the Charging Union, reminiscent of Hovey's March
13 quip about putting wheels oh cups.
LILY-TULIP CUP CORPORATION 1285
nini 's about the hours of work in the automobile industry is clearly not substantial
evidence of a threat of reprisal.
6. Warning of plant closing
As previously noted , the General Counsel 's motion to strike from the complaint
the allegation that the Company would close . its Springfield plant if any labor organ-
ization came into it and to substitute other language in its stead was denied. The
record contains no substantial evidence in support of the allegation and it must be
dismissed.
7. Shoving employees around
Smith testified that Haley in the presence of himself and three other employees said,
"We are going to shove you around and make it so rough on you that you will have to
quit." None of the three other employees were called as witnesses to corroborate this
testimony. Haley denied giving vent to this or any similar utterance.
There was testimony that when Ramsey was talking to Ferrentino about a union
button, the latter said, "If you put one on I'll push you, around more than ever."
Ramsey's version of the claimed conversation was that before she wore a badge,
she said to Ferrentino, "When I wear a badge you won't push me around" and he re-
plied, "I'll push you around worse than ever." Ferrentino denied making such a
statement and testified that his only remark to Ramsey relating to wearing a button
was that related in subsection 4, above. ,
I,do not credit Smith's unsupported testimony which Haley denied. But even if
Haley did become "perturbed," as Smith puts it, upon hearing employees talking about
a union and blurted out something to the purport that discipline would become intoler-
able, it would be fatuous to conclude that the policies of the Act would in any way be
effectuated by requiring Respondent to notify its multitude of employees they would
not be retold they would be "shoved around" if they wore union buttons and other
insignia of union membership, adherence, or sympathy. Rather incredible is Ramsey's
testimony anent "pushing around more than ever." There is no substantial proof
that she ever had been harassed before the alleged conversation. Quite meaningless is
it to say that one who has never been abused is going to be oppressed more than ever.
The only indication that she felt she had been imposed upon, first comes after the pur-
ported Ferrentino' fulmination and following her finally emblazoning herself with a
button, when she claims Mrs. Straight piled work upon her. I believe Ferrentino told
the truth.
8. Advising that Respondent could do more for employees than could unions
I construe this final 8 (a) (1) allegation to mean that Respondent promised em-
ployees rewards for refraining from union activities. Trantham testified that McCarty
said he believed that he "and the Company can do more for you than any union can,"
adjusting his shirt cuff and tie the while. (Rank-and-file workers wear uniforms;
supervisors, shirt and ties ) If McCarty thus expressed himself, he spoke an ir-
refutable truth. No one supposes that anyone other than employers promote em-
ployees. The General Counsel wants the inference drawn that McCarty made it
apparent to Trantham that his chances of advancement depended upon his opposing
unions. But he has only shown that Trantham said McCarty expiessed a reminder of
the hard fact that unions do not select bosses. On the slender evidence adduced, he
has failed to sustain the burden of proving that Trantham was promised a reward for
abstaining from union support.
The General Counsel has alluringly invited me to pursue the primrose path, of
picking from his painstakingly tended bower of testimony, and finding delectable,
only those buds blending in fragrancy with his beds of interference, restraint, and co-
ercion and wreathing the selected blooms into a bank of obliviousness to the prickly
thorns of denial, the offsetting shrubs of veracity, and the harsh brambles of reality.
But mine is a digger's task, not a dreamer's stroll, to grub for truth on knees, where-
from understanding is sought.
On the record as a whole I shall recommend dismissal of allegations of the complaint
that Respondent interfered with, restrained, and coerced its employees in violaticn of
Section 8 (a) (1) of the Act See N. L. R B. v Associated Dry Goods Corporation,
209 F. 2d 593 (C. A. 2); N L. R. B. v Syracuse Color Press, Inc., 209 F. 2d 596 (C. A.
2); N. L. R. B. v. Montgomery Ward & Co., 192 F. 2d 160 (C. A. 2); N. L. R B. v.
Superior Company, Inc., 199 F. 2d 39, 43 (C. A. 6) ; Container Mfg. Co v N L R. B.,
171 F. 2d 769 (C. A. 7); N. L. R. B. v. Arthur Winer, Inc., 194 F. 2d 370 (C. A. 7);
N. L. R. B. v. England Brothers, 201 F. 2d 395 (C. A. 1). _
1286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Discrimination
1. Introduction
Raymond L. Smith entered Respondent's employ on February 17, 1953, and was
discharged on April 17, 1954. His jobs, in order, were machine cleaner on an arch
press, helper on a slitter; arch press operator, and blank handler on a Kidder press.
His duties on the latter job included stripping wrapping from paper rolls, knocking
out the chucks, shafting the rolls, moving rolls close to the press in position to be put
in place-then after the press was stopped-cleaning in and around it, taking off the
empty shaft, putting on the loaded shaft-and then after the press was started-assist-
ing in its operation.
His employment record discloses nothing of unusual significance concerning the
first 6 months of Smith's employment. In August 1953 it was noted that he was doing
a fair job as a blank handler and was offered and refused a promotion which involved
changing shifts at any time. In November 1953 when he was talked to on account of
tardiness, he admitted he had been late too often and would do better. In December
1953 after he had spent 20 minutes away from work and his department talking with
another employee and said he was sorry he stayed too long, he was told that it would
be necessary to get a foreman's permission whenever he left his work for any length
of time. On March 1, 1954, after he had been observed making frequent trips to an-
other press and talking with employees working there, he was ordered to stay on his
own job. On March'5 after admitting he had left the building at noon without clock-
ing out but stating he was unaware of the fact that he was supposed to clock out, he was
told that the supervisor was tired of ordering him to stay at his machine and not to
wander around and doing such things as lying on rolls of paper and that if he'kept it
up he was going to be out of the plant. On March 16, when Smith was late reporting
to his machine, he was told the offense could very well result in a third "warning" and
the warning system (a subject immediately to be described) was explained to him.
Before the occurrence of the events with which,this case is concerned, Respondent
'instituted a system whereby employees customarily would be given two formal warn-
ings or "black marks" for violation of rules before discharge for a third offense. A
first such warning was given Smith, as well as another employee who was involved,
on November 12, 1953, for engaging in horseplay. A second warning was given
him on March 12, 1954, for passing out union literature during working hours .7
Despite these signs of dissatisfaction with Smith, Respondent continued him in its
employ after each occasion when he was reprimanded and after the two warnings.-
(There is no indication that three warnings were a sine qua non of discharge. It
cannot be believed that Respondent would thus attentuate its'efficiency of operation.)
Of the enthusiastic support Smith gave the Union and Respondent's knowledge of
the degree of his zealousness, there is no question. He was prominent in the organ-
izational movement from late 1953 onward, solicited memberships, distributed union
literature and wore union insignia in the presence of many of the Company's super-
7 Although it is clearly within the prerogative of management to decide what situations
warrant discipline or warnings, the facts surrounding the second warning deserve adumbra-
tion, not as proof of the commission of any unfair labor practice but because of the light
they may cast upon Smith's union allegiance and Respondent's general attitude towards
its employees' collective-bargaining activities On but slightly conflicting testimony, I
find that on March 12, 1954, Smith had in his possession a mimeographed copy of an
"open letter to Plant Manager Hovey" from "UAW-AFL Lily-Tulip Organizing Committee"
stating that unless supervisors discontinued intimidating, discriminating against, and
coercing employees, contemptible tactics, questioning employees about union membership,
making snide, sarcastic, and insulting remarks to and about, and threatening and attempt-
ing to intimidate, employees wearing union buttons, it would be obvious to all that these
tactics had Hovey's blessing and were representative of Respondent's policy Foreman
T. J. Dugan while checking machines came into the presence of Smith, Bateman, Trant-
ham; and Miles. As he approached the group, the two latter walked away Smith was, or
became engaged in, jogging and Bateman was washing plates. When Dugan asked him
how he was feeling Smith replied that he felt fine now that he had dropped that line to
Mr. Hovey. Upon being requested to explain his enigmatic words Smith handed Dugan the
"open letter." When Dugan started to go away with the paper Smith asked for its return
but Dugan walked off with it and made haste to take it to Anderson Smith was called
before Anderson, McCarty, and Dugan and told by Anderson that he had passed out theJ
open letter to Dugan, the Company would not have that sort of thing on company time,
that he was being given a second warning, and that if he should get a third, it would
mean his dismissal.
LILY-TULIP CUP CORPORATION - 1 287
visory staff. Although the first careless rapture of Smith's devotion to the cause
seems to have slackened as spring advanced, I have no reason to question the
veracity of the testimony that at one time Respondent's personnel manager told
Smith he was regarded as the ringleader of the Union. >
2. The discharge
Located in an area 15 to 20 feet from the Kidder press on which Smith went to
work as usual on April 17, 1954, there were approximately 19 cylinder racks on
which are placed cylinders not in immediate use, for the purpose of protecting their
plates and punch units. Further away, near the Manhasset press, there was another
group of about 10 racks. The racks are on rollers. Each when empty' weighed
about 100 pounds. There is no satisfactory evidence as to their exact weight
when loaded or as to how many were loaded on the morning in qusetion. Although
there is a regular crew of cleaners which cares for the cement floor around the
presses and racks, it does not clean out debris such as pieces of wrapping rolls which
fall into, under, and between the racks. From time to time this rubbish accumulates
to an extent that it becomes necessary or desirable to clean it up and employees
working on the presses are requested to do so. As part of their daily tasks, blank
handlers clean the presses themselves during the relatively short periods when they
are shut down between runs, particularly at the end of a shift. The last employee
ordered to clean and sweep around cylinder racks previous to April 17 was a man
named Patterson.
On the morning of the 17th, Haley noticed that the space near the racks was
dirty and told Smith he wanted him to move and sweep under them and put them
back in place. Smith stated • he was busy and did not have time to do the job
but would attend to it later when he had time. Haley testified that there were around
3 stripped rolls next to the machine and about 6 more stripped rolls a short
way back of them, a sufficient number to allow time in which to do the cleaning
before more rolls would have to be stripped and readied for the press. Smith
testified he could not possibly have had time to do the work then and had but 2
or 3 rolls prepared to go on the machine. The General Counsel's proof indicates
the press would be "down" a shorter time after the printing of one roll had been
completed and ii new roll had been put on, than does Respondent's. Respondent's
proof indicates that it would take less time to clean up around the racks than does
the General Counsel's. It is undisputed, however, that employees had been instructed,
on account of the cost item, to avoid letting the press go down solely to provide
time for cleaning up.
Haley told Smith he did have time to clean up then and to go and do it. Smith
repeated that he did not have time and told Haley to stop picking on him. When
Haley denied abusing him, Smith uttered a vile and obscene expression.8 Thereupon
Haley said they would have to see Anderson. Haley related the incident to Anderson,
who, after consultations with Hovey and Respondent's home office official in charge
of employee relations who between them decided to discharge Smith, announced
their verdict to Smith. In doing so Anderson told Smith that he was in a serious
mess, that he had refused to obey the order of a supervisor and had called him an
obscene name. Smith at first refused to admit either the refusal or the obscenity,
but after being pressed, admitted both. He asserted he applied these words to all
supervisors rather than to Haley alone. Before the close of the discharge interview,
Smith said to Anderson, as well as Haley and McCarty wiio were also in the room,
that "they" were going to pay for this; that he had no conscience about it; and
that he was going to "get" each one of them
Of no great import is the question of whether to have obeyed Haley's order
might have resulted in the loss of potential earnings due to the idleness of the
Kidder press while the cleaning was in progress. The responsibility for deciding
what work an employee shall do and chancing financial loss was Haley's, not Smith's.
Assuming that Smith had in mind earlier instructions not to clean at the expense
of wasting the usefulness of'the press and genuinely felt he had been asked to inter-
8 The expression is better left buried in the record. I do not credit Smith's scarcely
emphatic denials of using the term, if they may be called denials. They are scarcely im-
pressive. He testified, inter alia that "not that I remember" ; "I can't remember," was
he asked if he said vile, obscene words ; "I just do not remember on that. I would
not say either way" that he did not do it ; "It is possible" he may recall at some other
time if he were asked if lie called Haley an obscene name ; and, "At this time, no,
I 'don't remember" cursing or calling Haley an obscene name
379288-56-vol. 113-82
1288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rupt his work at an inopportune moment and assuming that Haley was mistaken
in believing that there was time to do the cleaning without interfering with produc-
tion, Smith's reliance on his own judgment rather than that of his responsible superior
constitutes no excuse for his twice refusing to obey an order. An employee, no more
than the Board, can dictate to an employer how he should run his business.
Likewise,,the evidence of Smith's waywardness during his career with the Company
before April 17, apart from the two incidents resulting in warnings, is of no great
relevancy. There seems to be no contention that discharge was due to a culmina-
tion of events the camel's back of which was broken when Smith refused to clean
the racks. It is unnecessary to consider whether the Company was over-tolerant
in not having penalized him with discharge long before it did. It would be vainly
laborious to conjecture whether Respondent's trial strategy in presenting this evidence
was adopted as a collateral attempt to piece out its defense by prejudicing someone
against the complainant.
In either event, I do not feel that the emphasis placed upon Respondent's dis-
pleasure with Smith's past conduct supports the theory, urged by the General
Counsel, that Respondent has proffered varied and inconsistent reasons for the
discharge and hence it should be deemed that the grounds advanced are apocryphal.
Nor do I find persuasive as leading toward the conclusion that Smith was fobbed
off in violation of the Act, the argument of ground shifting from the reason of
refusal to obey an order asserted before the hearing to the reasons of refusal to
obey and obscenity utterance advanced during the hearing. The two are so inter-
locked that an attempted disentanglement would be mere casuistry. Utterance
of the abominable obscenity, infinitely more offensive and indecent than the name
applied to a supervisor, which the court in Boeing -Airplane Co. v. N. L. R. B.9
agreed was justification for dismissal, only serves to intensify the degree of Smith's
inexcusable rebelliousness.
I do not doubt that Respondent was relieved to see Smith go. And I can readily
believe that it gained comfort through the excision of what it felt was a dolorous
thorn-in-side inflicted in the brush with unionism. But this is not to say that the
General Counsel has satisfied me, as to prevail he must, that Smith's union activity
was the reason for his discharge. On the contrary, upon a preponderance of the
evidence, it is clear to me that this insubordinate and impertinent employee was
discharged for cause unrelated to the Company's opposition to his and the Union's
effort to organize its employees.
Ever to claim full mastery of the truth is audacious. Yet here it may not be
presumptuous to say I do not feel I have wholly missed it.
On the record as a whole, I shall recommend dismissal of the allegation of the
complaint that Respondent discriminated against Raymond L. Smith in violation of
Section 8 (a) (3) of the Act.
CONCLUSIONS OF LAW
1. The operations of Lily-Tulip Cup Corporation constitute and affect trade,
traffic, and commerce among the several States, within the meaning of Section 2 (5)
of the Act.
2. International Union, United Automobile Workers of America, AFL, is a labor
organization within the meaning of Section 2 (5) of the Act.
3. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (1) and (3) of the Act.
[Recommendations omitted from publication.]
8216 F. '2d 369 (C A. 9) -the expression was "a damned liar"
Wooster Division'of Borg-Warner Corporation and International
Union, United Automobile, Aircraft & Agricultural Implement
Workers of America, CIO. Case No. 8-CA-830. August 1̂96, 1955
DECISION AND ORDER
On September 15, 1954, Trial Examiner Lloyd Buchanan issued his
Intermediate Report in the above-entitled proceeding , finding that the
113 NLRB No. 120 . -, I . 1 .. 1