McGraw-Edison Co.

National Labor Relations Board - Board Decisions

Aug 24, 1971

192 N.L.R.B. 995 (N.L.R.B. 1971)

SPEED QUEEN 995
Speed - Queen, a Division of McGraw-Edison Co. and
United Steelworkers of America , AFL-CIO. Case
26-CA-3723
August 24, 1971
DECISION AND ORDER
BY MEMBERS FANNING, BROWN, AND JENKINS,
On January, 15, 1971, Trial Examiner - John G.
Gregg issued his Decision in the above-entitled
proceeding, finding that the Respondent had 'en-
gaged 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 attached Trial Examiner's Decision.
Thereafter, the Respondent filed exceptions. to the
Decision and a supporting brief, and the General
Counsel filed a brief in support of the , Trial
Examiner's Decision.',
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board had delegated- its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made, at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the, exceptions and briefs, and
the entire record in the case, and hereby, adopts the
findings,, conclusions, and recommendations of the
Trial Examiner.2
ORDER`
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Trial Examiner and hereby orders
that the Respondent, Speed Queen, A Division of
McGraw Edison Co.,,Searcy, Arkansas, its officers,
agents, successors, and - assigns, shall take the, action
set forth in the Trial Examiner's recommended
Order, with the following modification:
Delete paragraph 2(a) and substitute the following:
"(a) Offer, Billy- Wayne Nixon immediate and full
reinstatement to his former job or, ifI sueh'job no
longer exists , to a substantially equivalent position
without prejudice to his seniority and other rights
and privileges and make him whole for any, loss of
pay he may have suffered as a result of the
discrimination against him, in the manner set forth in
The Remedy section of the Trial Examiner's Deci-
sion."
1 Subsequent to the hearing, the General Counsel filed a motion to
amend complaint . As this motion is untimely and deals with violations
alleged to have occurred after the hearing, it is hereby denied. Champion
Pneumatic Machinery Co.,- 152 NLRB -300.
y findingsz The Respondent's exceptions arein part dire cted to credibilit
made by the Trial Examiner. It is the Board's established policy not to
overrule a Trial Examiner's resolutions with respect to credibility unless the
clear preponderance of all the relevant evidence convinces us that the
resolutions were incorrect . Such a conclusion is not warranted here.
Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A.
3). Nor do we find merit in the Respondent's contention -that because the
Trial Examiner credited generally the General Counsel's witnesses and
discredited 'the Respondent's witnesses, his credibility resolutions , are
erroneous or attended by bias or prejudice. N L.RB. v. Pittsburgh Steaship
Co., 337 US. 656. Accordingly, we find no basis for disturbing the Trial
Examiner's credibility findings in this case.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE'CASE
JorN G. GREGG, Trial Examiner : This trial was
conducted at Searcy, Arkansas , on October 27, 28, and 29,
1970, based on an original charge filed June 29, 1970, and
an amended charge filed August 5, 1970, - by United
Steelworkers of America , AFL-CIO, and a complaint
issued September 25, 1970, by the Regional Director for
Region 26 of the National Labor Relations Board.
The complaint alleges , essentially that - the Respondent
committed unfair labor practices 'through acts of interroga-
tion of employees ; surveillance and creating the impression
of surveillance of employee activities ; promises -of benefits;
warnings to refrain - from union activity; the maintaining
and enforcing of an unlawful no-solicitation, circulation,
and distribution rule;- the exhibition of an inflammatory
film; and the discharge of a union adherent; -and that
thereby the Respondent violated Section 8(axl) and (3) of
the National Labor Relations Act, as amended.' ' In its
answer the Respondent denies the commission of any
unfair labor practices.
Upon the entire record in this case, from my observation
of the demeanor of the witnesses as they testified , and after
careful consideration ' of the argument and briefs herein, I
make the following: -
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Speed Queen, a Division of McGraw , Edison Co.,
hereafter- referred, to as the Respondent, is now and has
been at all times material herein , a corporation with an
office and plant located at Searcy, Arkansas, where it is
engaged in the manufacture of washers and dryers.
During the past 12, months, the Respondent, in the
course and conduct of its business operations, received at
its Searcy, Arkansas, location goods and materials valued
in-excess of $50,000 directly from points 'outside the State
of Arkansas, and during the,, same period of time,
Respondent sold and shipped from its Searcy, Arkansas,
plant, goods and materials ,valued in excess of $50,000
directly to, points -located outside the State of Arkansas.
The Respondent is now, and-has been at all times
material herein, an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
192 NLRB No. 142
996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
II, THE LABOR ORGANIZATION INVOLVED becoming- or remaining a member.-of,, the Union, or giving
any assistance or support, to it.
The complaint also alleges that the Respondent, by its
supervisor and agent, It H. Springstroh, at its Searcy,
Arkansas, plant on or, about March 17, 1970, warned its
employees that if they did not refrain from union activity
the plant would not expand; in April and in May 1970, the
exact date being unknown, interrogated employees con-
cerning their union ,membership, activities, and desires;
and on or about June 25, 1970, at the Holiday Inn in
Searcy, Arkansas, on Highway 67, kept under surveillance
the meeting places, meeting, and activites of the Union, or
other concerted activities of its employees in which- they
engaged for the purpose of collective bargaining or' other
mutual aid or protection.'
There' 'was' testimony of record` by Billy Hensley an
employee of the Respondent at Searcy, Arkansas from
April until June 1970. Hensley stated 'that when he went to
work at the Respondent's plant he had two job interviews
conducted by Springstroh. At the first interview, about a
week before he went to work Springstroh asked him what
he thought about the Union. Hensley testified "-I told him I
didn't think much about it, and he, said you ,mean ,you
wouldn't rather pay the dues to me and I said yes."
Hensley stated that subsequently, in a second interview
which involved a group of eight people just before going to
work Springstroh showed them pictures of the plant; gave
them each a booklet, went over the plant rules with'them,
and told them "that there wouldn't be nobody iii` the plant
to disturb anybody about getting something signed;" like the
Union, or even if it was for a baseball team or donations or
assembly." Concerning the picture of the plant which was
shown to the eight people at the meeting with Springstroh,
Hensley ,testified that this was a rendering-of the outside of
the, plant not a floor planor anything that would indicate
future expansion. He stated further that nothing was said
at these interviews about future expansion. There was some
confusion in Hensley's testimony as to whether the Union
was mentioned by Springstroh in the first or second
interview. Based on my observation of the demeanor of
Hensley as he testified I credit his testimony and I, am
persuaded from his testimony that he, was certain that
Springstroh had mentioned the subject ot'the Union at one
of theinter'views. '
There was testimony of record by Bobby L.' Eady
formerly employed by the Respondent from approximately
the` middle of'March"until August 24, 1970. Eady testified
that when he first went 'to work at the Respondent's'plant
he had two job interviews. -According to Eady on the day
he was hired Springstroll mentioned, the Union and., said
that the plant was due for expansion and it would depend
partially on whether the plant was organized or not. Bady
remembered Springstroh saying something about the
benefits or disadvantages of the` Union but did not
remember what' it was. According' to Eady during the
-interview with 'Springstroh when-he firs't'went to work,
Springstroh told him that he would d`o`anything within the
law to keep the plant from going union. Eady testified in ' a
straightforward, convincing ' manner and based on ' my
observation of Eady as he testified I credit his testimony.
There was testimony of record by Jerry Hensley, who
United Steelworkers of America, AFL-CIO, hereinafter
referred to as the Union, ,is now, and has been at all times
material herein, a labor organization within the meaning of
Section 2(5) of the Act.
IIL THE ALLEGED UNFAIR LABOR PRACTICES
There is no dispute, as to the background facts. The
Respondent is engaged in the manufacture of washers and
dryers at its plant located in Searcy, Arkansas. Prior to
locating in Searcy the Respondent operated a temporary
facility at Judsonia, Arkansas. In January 1970, the
Judsonia plant was moved to its present permanent site in
Searcy, Arkansas, with production beginning sometime in
March. R. H. Springstroh, the plant manager, participated
in the selection of the Respondent's temporary Judsonia
site and permanent Searcy site for the Respondent's
Arkansas, operations. Among othenthings, the existence of
the Arkansas eight-to-work law was a factor considered in
the choice of the Searcy, Arkansas, location for the
expansion of the Respondent's activities.
In October or November 1969, Carl Reeves, a represent-
ative of the United Steelworkers of America, went to
Searcy, to ,explore the,, feasibility of initiating, a union
campaign. He contacted Respondent's employee, Billy
Wayne Nixon,, at his home, recruited him for participation
in the union campaign, then Nixon recruited employees
Heathscott and Cook. Subsequently the campaign was put
aside pending the achievement of., the „move to the
permanent location at Searcy and the achievement of a
more representative work force. On June, 25, 1970, a group
of employees met with union- representatives at the
Holiday Inn on, Highway 67 in Searcy. The Respondent's
vacation period began on June 27 and employees returned
to work on, July 13,,. 1970. The, ' Respondent's general
manager, R.IL Springstroh, interviewed job applicants and
conducted orientation programs for newly hired employees
about to go to work.
A. Alleged Acts of Interference, Restraint, and
Coercion by Hines and Springstroh
The complaint alleges that the Respondent, by its
supervisor and -agent, 'Harold Hines, at its Searcy,
Arkansas,, plant, inJanuaty 1970, created"the impression'of
surveillance- of its employees' union `activities by telling
employees that Respondent was aware` of each and every
visit they had from a""union' representative; that on or
about June '12, 1970, Hines created the impression of
surveillance of an 'employee's union' membership and
activity by telling the employee thattheRespondent knew
about- his union activites,' and threatened that employee
with discharge if he` did- not abandon his activities on
behalf of the Union; Hines in April 1970, June 1970, and
around June 126, 1970,,-'the exact dates being unknown,
interrogated employees concerning their union activities'
and desires; and ; that oil or about ' June 12, 1970, Hines
promised an" employee better opportunities for 'promotion
to better positions of employment if he would refrain from
SPEED QUEEN 997
was employed by-the Respondent since the first of October
1969, that he had attended union meetings including one at
the Holiday Inn which took place just before his vacation
around June 25, 1970. Hensley testified that about 25 or 30
employees attended this meeting. Hensley testified that he
learned about the meeting from his foreman, Hines.
According to Hensley, Hines told the employees that the
Company knew there, was a union meeting at the Holiday
Inn that evening and told them what time, it was going to
be, that this took place before the meeting and before the
employees got off from work. While he was at this meeting
Hensley saw Springstroh in a red mustang. Hensley
testified further that when he came back from vacation he
attended a meeting at the plant where .a film was exhibited
and that after the exhibition of the film Springstroh gave a
little talk in which he mentioned that there was a plant
which closed during an organizing campaign. According to
Hensley, Springstroh said that the pipe that they were
making at that plant did not sell as well as they had
planned and at the same time the Union was organizing so
they decided it would not be a profitable business, or
something like that. -
Hensley, testified that on one occasion Hines came up to
Hensley and some other employees and asked, "are you
boys getting organized?" Hensley also testified that prior to
the meeting at Holiday Inn, Hines came over to Hensley
while he was alone and told him.that if they were getting a
union they should get the Steelworkers because the
Company could get along with the Steelworkers. Based on
my observation of, the demeanor , of the witness as he
testified I credit his testimony.
There was 'testimony of record by Phillip White who
testified that he was employed by the Respondent since
March 23, 1970. White testified he had several - job
interviews by Springstroh when he first started working.
According to White, in'the group interview, that he had
Springstroh said he thought they could work better without
the Union and Springstroh said he would prefer that they
would not engage in union activity on-the plant premises or
around the plant. White testified further that he attended
the union, meeting at the Holiday Inn just before going on
vacation in June and that he saw Springstroh on the Magic
Mart parking lot in a red mustang. At that time
Springstroh was looking toward the Holiday Inn . On cross-
examination White stated that at the group interview with
Springstroh, when he went to work along with six other
employees , Springstroh did not say anything about a plant
rule not to participate in union activity in the plant. There
was apparent conflict in White's testimony of this point.
There was testimony of record "by Roland Springstroh,
plant manager of the Respondent at the Searcy, Arkansas,
plant . ' Springstroh testified concerning his presence at the
Magic Mart parking lot adjacent to 'the Holiday Inn at
Searcy, ' Arkansas, on or about June 25 , 1970, at a time
when a union organizational meeting was -going on at the
Holiday Inn in a room which was within the sight of the
parking lot . Springstroh stated that he had been planning
on going on vacation that evening so he took off early that
afternoon to get ready for and to depart on his vacation.
According to Springstroh, he ran several-errands for his
family in a company rented red mustang, went to the bank
to get some money, and took care of things to be done
before vacation. He then went on to the Magic Mart to do
some shopping. While -at the Magic Mart , according to
Springstroh, he noticed employees and employee cars at
the adjacent Holiday, Inn and wondered what they were
doing. "I was extremely curious. It was difficult to
understand what employees were doing at a Holiday Inn,
going into a Holiday Inn room when they live in town."
Springstr'oh testified that he noticed 12, 15, or 18 cars but
did not -see that many people . He stated some of the people
were already in the room. Springstroh stated he did not
know at that time what the employees were doing. He
stated. that he drove off, and came•back and looked again.
He stated that he believed he did that twice. Springstroh
testified essentially that he was in the area about the center
of the Magic Mart- parking lot,- close to the door-of the
store and that he was never , in the area adjacent to the
grassy area which is adjacent to the Holiday Inn. He stated
he was not in the Holiday Inn parking lot. Springstroh
denied that he had gone down to the parking lot of Magic
Mart to survey the union activity going on at the Holiday
Inn. He stated he did not know there was any union
activity going on.
In further testimony Springstroh-stated that during -the
orientation -for new employees there is included a.little
section on how the Company intends to operate its plant
and during that discussion , according to Springstroh, the
employees are told that the Respondentintends -to operate
without a union, "that we don't want one and we feel there
is no good reason to have one." According to Springstroh,
during this orientation he goes on to discuss with.them the
reasons for this, which include according to Springstroh
the economic factors involved, the fact that the employer-
employee relationship is closer - in a nonunion plant, and
the fact that you do not hear of work stoppages in
nonunion plants . Springstroh would sum it ,up by restating
that "we just do not feel like there is any good reason to
have our plant organized." Springstroh stated further that
during the orientation he points out to the employees a
photograph on the wall in the conference room which
shows pictures of all of the plants in the Respondent's
Speed - Queen Division . He said he did not -have, nor ever
had a sketch or drawing .showing an expanded plant.
However, Springstroh stated he did talk about expansion
in the orientation, "We are trying to motivate employees to
do a good job and we say to them that Speed-Queen has
plans for some_ .expansion at this plant and as a result of
expansion we hope there will beadditional job opportuni-
ties for our employees and we, hope , that we can make a
good showing so that we can in fact have these expansions
developed." - - ,
Springstroh could not remember in, the interview with
Eady making, any remarks that the plant was due for
expansion ` and that future expansion would - depend
partially - upon whether the plant was organized or not.
Springstroh stated he had never -said that to a new,
employee, but that he had indicated to new employees that
things would have to go well at - the plant -before it could
expand.
Springstroh testified that in the orientation of employees
when he advised them that he intended to operate Without
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a union, he had an, outline which he followed. He stated
that among the economic factors that he would point out
was that it cost , the Company -money to deal with the
Union, negotiations, contracts and other factors, which
effect the total cost, of operation and that possible work
stoppages are expensive. Springstroh stated that in his
statement that employee-employer relationships are closer
where a plant is nonunion, he told the employees that the
Respondent feels that" without organization employees
have the opportunity to speak more for themselves, "We
don't have a disinterested third party to talk between, us."
Springstroh stated that it is at the orientation meeting
where he talked about die, Union or the Company's
attitude toward the Union that,he also told the employees
that things would have to go well, before there is an
expansion. Springstroh denied that he had ever asked an
employee whether he had worked at an organized plant or
whether or not any had crossed a picket line. -Based on my
observation of the witness Springstroh as he testified I do
not credit his, testimony 'which, although provided with
facile responses, imparted to me a distinctly contrived
flavor.
There is no question on this record and it is admitted by
Springstroh that he engaged in surveillance of the activities
of the Respondent's employees at the Holiday Inn as
alleged in the complaint. The only question is whether such
surveillance was based as stated by Springstroh on simple
curiosity or. whether , as alleged in the complaint it was
based on a desire .to observe ,the Union or other concerted
activity of the Respondent's employees. Bearing in mind
my credibility findings as., stated hereinabove I am
persuaded and I; find that Springstroh `engaged in surveil-
lance of the 'union activities of the employees as charged in
the complaint and that thereby the Respondent violated
Section 8(a)(1) of the Act.
Similarly, while Springstroh did not on this record
specifically warn employees that "if they did not refrain
from union activities the, plant would not expand" I am
convinced that under the circumstances herein, the
exposure 'of the orientation group to, the pictures or
renderings of the plant coupled with remarks by Spring-
stroh concerning expansion and-union activities, that' the
impression was conveyed, that if the employees did not
refrain' from union activity the plant would not expand.
While I have taken into,' account the Respondent's
argument .herein concerning 'the alleged acts of interfer-
ence,,restraint, and coercion that the relevant testimony is
largely provided by Nixon, Cook, Heathscott, and Jerry
Hensley and that the first, three were the nucleus of the
Union's organizational strength, I find no basis therein for
discrediting their testimony. They provided credible,
credited testimony some of which was partly corroborated
by the testimony of Springstroh, and concerning which the
denials by-Springstroh were not credited. The Respondent
urges that no inference be drawn from the failure to
present Foreman Hines. V have in fact drawn no such
inference but have weighed the relevant testimony of
record independently. I have'accorded sufficient weight'to
the credited and uncontradicted testimony of the afore-
mentioned witnesses to conclude that the General Counsel
has `amply met his burden of proof.
The ;Respondent also urges that it should not be held
responsible for, Hines' statements since Hines' loyalties are
more -, closely aligned with the Union 's organizational
efforts , than with the , Respondent's,-lawful preference to
operate unencumbered by a union, implying that a union
might improperly utilize the Board's process to further a
union campaign - by instructing ' a- sympathetic first echelon
supervisor to subvert "the Act. There is no evidence - on this
record concerning the loyalties of Hines nor of ,,any abuse
of the Board's process , and since these matters were not
litigated at the trial I find no basis for treating the"acts of
Hines otherwise than 'as' constituting interference, restraint,
and coercion within the meaning of the Act. _I am not
persuaded , otherwise>by the Board's practice of `excluding
union authorization cards obtained by supervisors as urged
by the Respondent. While the Respondent urges -that the
interrogation , herein was noncoercive, citing criteria set
forth in Bourne v. N.L.R.B., 332 F.2d 47,. 48, I find the
situation at hand readily distinguishable in that:the record
reveals employer hostility, and the interrogation by-Hines
was not simply a general inquiry . Considering, testimony of
record of Nixon,' Cook, Billy Hensley, Eady, and White, all
of whom testified in a;straightforward manner; and all of
whom I credit- as L -to- the statements of 'Hines and
Springstroh and in view-of the fact that Hines did not
appear as a `witness at the trial , and bearingin mind my
adverse credibility ;finding as explicated hereinabove
relative to Springstroh, I find ample credited testimony of
record to establish that as alleged in the complaint Hines
interrogated employees in April and June 1`970 concerning
their union membership and activities ; that Hines by
indicating that union activists would not be around long
and ., by, emphasizing Cook's job opportunity potential
made promise of benefit and threat of discharge ; that in
various conversations with Nixon , Cook, and Heathscott
Hines .created an unmistakable " impression of surveillance
of the union activities of- the' Respondent 's employees and
that by each, of said acts and by all, the Respondent
interfered with, restrained , and coerced its employees in
their exercise of activities protected by the Act in violation
of Section 8(a)(1) of the Act.
Additionally, turning to the alleged acts 'of interference;
restraint, and ' coercion by Springstroh as alleged in the
complaint, and bearing in mind the credibility f` diin_gs'as
explicated hereinabove, I find ample credited testimony of
record to establish that , as alleged in' the complaint, on or
about March , 17, 1970; Springstroh warned that if'employ-
ees did not refrain from union activities the plant would
not 1expand ;a that in April and' May 1970 Springstroh
interrogated employees concerning their union member-
ship, activities, and desires ; and that on June 25, 1970,
Springstroh kept under , surveillance the meeting - place,
meeting, and the protected activities of the Union at the
Holiday Inn in Searcy, Arkansas, and that by each of said
acts the' Respondent interfered with, restrained, and
coerced its employees in their exercise of rights guaranteed
by the Act, each and all in violation of Section 8(a)(1) of
the Act:
SPEED QUEEN 999
B. The Exhibition of the Film "And Women Must
Weep"
The complaint alleges additionally that the Respondent
on or about July 13, 1970, at its Searcy , Arkansas, plant,
showed the film entitled "And Women Must Weep" to its
employees and that by such act the Respondent did,
interfere with, restrain, and coerce its employees in the
exercise , of rights guaranteed in Section 7 of the Act and
thereby did engage in an unfair labor practice affecting
commerce within the meaning of Sections 8(a)(1) and 2(6)
and (7) of the Act.
Springstroh , the Respondent's general manager, testified
that he showed the .film to groups of the Respondent's
employees on Monday, July 13 , 1970, the day the
employees returned from their vacation. The film was
exhibited three or four times on that day. Springstroh
stated that at each showing he had some words to say to
the employees . The record indicates that the film was
exhibited on company premises during working hours,
during the employees ' paid time.
The Respondent admits that the film was exhibited to its
employees and recognizes that the sole question presented
is whether the showing of the film unlawfully interfered'
with the rights of its employees guaranteed by Section 7 of
the Act.
During the course of the trial I viewed the film in
question . While there are some omissions and changes, I
am convinced ' and I find that the film I viewed was in its
totality essentially the film to which the Board directed its
attention in South Wire Company v . N.L.R.B., 155 NLRB
394, as described and reviewed by the United States'Court
of Appeals for the, Fifth - Circuit in South Wire Company v.
N.L.R.B., 383 F.2d 235 [ 1967].
I am convinced and I find that the showing of this film
during the union campaign herein constitutes interference
with, restraint, and coercion of the Respondent's employ-
ees, in their exercise of rights guaranteed to them by
Section 7 of the Act. In South Wire Company, supra the
Board 'concluded that the exhibition of the film was a
violation of Section 8(a)(1), and has subsequently reaf-
firmed this position; - Kelwood Company (International
Ladies Garment Workers . Union), 178 NLRB No. 8;
Hawthorn Company, 166 NLRB 251 [1967 ]. While the Fifth
Circuit holds the exhibition of the film to be protected free
speech under Sec. 8 (c) of the Act, it has suggested that were
there a threat of force or 'reprisal the exhibition of the
movie could amount- to- a violation of Sec. 8(axl ). In its
review of the South Wire case, supra the Fifth Circuit
found no such threat of force ovreprisal . The court therein
stated "We begin by saying that whatever the case the film
is not an unfair labor practice unless it amounts to a threat
of reprisal or force by Respondent againsts its employees
or a promise of benefit.°"The court • therein treated the film
as antiunion propaganda and assumed that it was an
exaggeration of the strike which it claimed to depict so as
to reflect unfavorably on unions generally . The- court
therein noted that "The law has developed in this area to
distinguish between a threat of action which the employer
can impose or control and a prediction as to an event over
which the employer has no control. The threat is not
privileged but the prediction is.... Respondent urges
that the content of the film amounted to no more than a
mere prediction since it had no control over what a union
might do." The court did not reach this defense but Tested
its decision on the absence of proof in , the record that the
film constituted a threat of reprisal or force by the
Respondent against its employees.
I find the exhibition of the film herein to be unmistak-
ably coercive , constituting a threat of reprisal or force that
if the employees , choose the union they -can anticipate
disastrous economic and social effects and danger to the
physical well being of themselves and members of their
families. In so finding I have considered that in our
complex society and in the contemporary sophistication of
labor-management relations the actions, reactions, and
intereaction of the parties ultimately blur'in a state of
confusion from which it is increasingly difficult to extract a
clear and well-defined cause and effect syndrome. It is
unquestionably within -the control of both management
and of labor whether a disastrous sequence of events is to
be triggered . In my opinion it would be possible for either
of the parties to trigger the syndrome depicted in the film
under consideration . It is therefore clear to me that the
exhibition by the Respondent of the film "And Women
Must Weep" carried with it a threat of disastrous
economic , social; and physical- consequences to be antici-
pated if the choice was made for the Union. Accordingly, I
am persuaded and I find that under the: facts and
circumstances of this case the exhibition by the Respon-
dent of the film "And Women Must Weep"- is an
interference with , restraint, and coercion of the employees
of the Respondent in their exercise of rights guaranteed by
Section 7 of the Act and is a violation of Section 8(a)(l) of
the Act. - -
C. The Maintenance and Enforcement of the
Alleged Invalid Rule
The complaint alleges additionally that since January
1970, and at all times thereafter , Respondent has main-
tained and enforced . a rule at its Searcy, Arkansas, plant
prohibiting the solicitation of membership inany organiza-
tion and the circulation or distribution of written material
on company property at any time.
There is no dispute as to the fact that the Respondent
published and distributed to its employees ;in the "Speed
Queen Employee Handbook" a no-solicitation and distrib-
ution rule prohibiting solicitation of contributions -for, or
memberships in any cause or organization on company
property at , any time. The, circulating or -distribution of
printed or written material including petitions was also
prohibited. This rule as published , and distributed is
presumptively invalid. Stoddard-Quirk Manufacturing Co.,
138 NLRB 615.
The Respondent urges that on August 7, 1970, since the
issuance of the complaint herein, the rule was changed and
a notice posted noting the change. The Respondent also
urges that the mere promulgation of the original rule
without any evidence of an attempt to enforce it is not per
se a violation of the Act . The General Counsel urges that
the change in the rule was made without individual
notification in writing or orally and that there is no
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
assurance that the Employer would not remove or change
the current valid rule.
In view of testimony of record by Billy Hensley which I
credit indicating that Springstroh had directed some
remarks to the applicability of the old rule to union activity
I am satisfied and I find based on ample credited
testimony of record that by publishing and distributing an
invalid no-solicitation and distribution rule to its,employ-
ees the Respondent interfered with, restrained, and coerced
its employees' in their exercise of rights guaranteed, by
Section 7 of the Act and thereby violated Section 8(a)(1) of
the Act.
D. The Alleged Discriminatory Discharge of Nixon
The complaint alleges ,finally that on or about June 18,
1970, the Respondent discharged employee Billy Wayne
Nixon because he joined or assisted the Union or engaged
in other union or concerted activity. The Respondent
contends that it discharged Nixon, for repeated violations
of plant safety rules.
The , Respondent's employee handbook contains the
following pertinent provisions under the - heading of
"Company Rules."
Committing any of the following offenses will be
sufficient: grounds for disciplinary action ranging from
.a warning to a suspension of work for some period of
time, even to discharge:
The handbook then refers to violation of established safety
rules as a prohibited, act. Additionally, the handbook'
provides as follows: -;
2. Goggles or face shield must be worn when
grinding-buffing, polishing, handling acid, spot welding
chipping and trimming, using caustic materials, or
when performing other hazardous jobs.
Roland Springstroh, plant manager in charge of opera-
tions at the Respondent's Searcy plant, testified that he
discharged Billy Wayne Nixon on June 18, for repeated
violation of safety rules. Springstroh could not state how
many -times Nixon violated the rules and indicated that he
had not discharged-any other employee for violation of the
safety =rules : Springstroh stated that while taking a new
group of employees ow a traditional plant tour, he walked
down the aisle about 25 feet distant from Nixon's work-
area and noticed that Nixon was again ; not wearing his
safety glasses . Springstroh stated that as he walked up to
the machine to discipline Nixon, Nixon was in the process
of putting on his glasses as Springstroh approached.
Springstroh stated -that at that time the machine was
running. He stated that he observed that the spindle was
turning, and'thatthe machine was turning so it had to be in
gear . Springstroh stated that Mr. Roberson, Nixon's
foreman , `was°,at- the`'next machine, that Roberson had
authority to tell Nixon to get on his glasses . Springstroh
testified that the plant warning system,for employees for
violating safety regulations-included a, written notice put
into' the file-,of the employee who has been warned.
Springstroh stated that copies of the warnings placed -in
Nixon's file were not given to Nixon nor was he advised
that he was being written up. Springstroh stated that before
notices were-'placed in Nixon's file, Nixon was warned
about infractions of the safety rules. There were two
warnings in Nixon's file prior to his discharge. Springstroh
stated that for the period March ,l to October 1, 1970, there
was only one other written warning in the Respondent's
files.
Concerning the wearing of glasses Springstroh stated
that it is the Respondent's policy to issue glasses when a
man starts in a new job or when a new man is assigned to a'
job that requires glasses. Springstroh stated that he
assumed, that Nixon was issued glasses ' at the time he
started the turret lathe job, but he did not know it to be a
fact. Springstroh stated' that -he had a policy of 'constant
reminders on infractions of rules, that as he went through
the plant he would tell the foremen to remind employees,
and that with respect to Nixon he reminded Nixon about
not having on his glasses at least 10 times and at other
times he asked the foreman to remind him. He stated that
Nixon was an obvious violator of the rule and that
Springstroh had become personally concerned about it.
Springstroh, stated , that he did not' discuss Nixon''s
discharge with the "Foreman Dave Roberson before
deciding to discharge Nixon,
Springstroh ,stated that he first became aware of Nixon's
union ' activities 'when the charge was filed on Nixon's
behalf by the Union, which = would be June 26, 1970.
Springstroh stated he was aware of some handbilling by
the Union at the plant on the parking lot, but that the first
knowledge he had about union activity was during the
plant vacation period when several employees reported
that they had been to a meeting before vacation at the
Holiday Inn.
Dave Roberson testified that he was foreman in the
fabrication department for the Respondent, that he, put a
turret lathe into operation about the second week in March
1970 and that Nixon operated it. Roberson stated
subsequently in April 1970 the machine went into
production operated by Nixon. Roberson testified that
Nixon was issued safety glasses within a week after he went
on the machine. According-to Roberson the Respondent's
policy was -that when,, an operator goes on a job that
requires, safety glasses he is issued safety glasses; that
Nixon's machine required the vyearing.of safety glasses
because of turning metal and flying chips dangerous to the
eyes.
-Roberson testified that after glasses ,had been issued to
Nixon, Roberson would notice that Nixon wasnt wearing
them and the machine was running so Roberson reminded
Nixon several times to put his-safety glasses on. According
to Roberson -Nixon Complied, with these reminders.
Roberson testified further that Springstroh had repri-
manded Nixon for not wearing his safety glasses and told
Nixon it was, the, last time he -was going to warn him.
Roberson testified that in the.operation of the-machine if
a part,gets out of tolerance the tools are adjusted and reset,
and a part is, run ands checked,. and that this is done on
downtime. Roberson testified that when the machine is
running,the spindle turns.
According to. -Roberson, on June, `18, Roberson was
working on the machine next to Nixon when Springstroh
came through with some . new employees, stopped in the
aisle, and called out Roberson to the-aisle. At this time
according to Roberson, Nixon's machine was running.
SPEED QUEEN 1001
Springstroh told Roberson that "Billy Nixon is not wearing
"his safety glasses , and I have warned him my last time."
Nixon ` put on his glasses as Springstroh approached.
Springstroh then told Nixon to go home and he would let
Nixon know what he decided to do.
Roberson stated that he had not noticed that Nixon was
not wearing his glasses that morning and Roberson didn't
think he had told Nixon that he would talk to Springstroh
later to explain the situation. - I
Roberson testified concerning the written reports placed
in employeese ' files that Springstroh instructed him to start
writing written reports sometime after Nixon's discharge.
Billy Wayne Nixon testified essentially that Springstroh
suspended him for allegedly not wearing his glasses, then
the next ' day discharged him by registered letter. Nixon
testified that prior to the time Springstroh suspended him
Nixon had closed the machine down because parts were
running bad, that he, Roberson and a quality control man
started checking the parts, Nixon clocked off of incentive
work and went on hourly work to adjust the machine.
Nixon stated that he had the machine almost adjusted and
was on top of the machine , when Springstroh came by
Nixon's glasses dropped into the machine reservoir. Nixon
retrieved his glasses , Springstroh approached and said
"you aren't wearing your safety glasses" then "I am
suspending you right now." According to Nixon , Roberson
didn't say a word, and all Nixon could start to say in the
middle of Springstroh 's sentence was "I".
According to Nixon when Springstroh left Nixon said to
Roberson "I was not operating the machine" to which
according to Nixon Roberson responded that he was aware
of that and knew that Nixon shut
_
down the machine.
According to Nixon, Roberson said he would talk to
Springstroh about it later in the day but that Springstroh
was in no mood for it then.
Nixon stated that while he was not operating his
machine the machine was nevertheless running with the
transmission off, the gear not turning.
Nixon placed the date on which he received safety
glasses sometime between May I and 15, 1970.
Based on my observation of the demeanor of the
witnesses as they testified I credit the . testimony of Billy
Wayne Nixon who testified in a sincere, straightforward,
and unhesitating manner. I credit his statement and I find
that at the time of his suspension his machine was not in.
operation but in the process of adjustment . This is borne
out by the Respondent 's records of downtime for the
period in question . I credit Nixon 's testimony that he was
permitted to work the machine without glasses until
around May 1 which is borne out by straightforward
testimony of record by employee Edwards whose testimo-
ny I credit indicating that Edwards was issued glasses
around April 29, 1970. When linked to the testimony of
Roberson who stated that Nixon was issued glasses, about
the same time as Edwards the date of issuance is clearly
established as around April 29 . Nixon therefore was
permitted to work without glasses from March 16 until
April 28, 1970.
Based on my careful consideration of the record as a
whole and my credibility findings as explicated herein I am
convinced and I' find from ample credible testimony of
record that Nixon was discharged because of his member-
ship in and activities on behalf of the Union and that the
reason advanced for his discharge by Sprinstroh was a
pretext to disguise the true motivation. I do not credit
Springstroh's testimony that he first became aware of
union activity during the vacation period which woul be
subsequent to the discharge of Nixon. The record ply
supports a finding that Hines , a supervisor for the
Respondent, was clearly aware of such activity as early as
January 1970, and that Nixon had advised Springstroh that
after Nixon's house caught fire Nixon had been visited by
a union representative. I find ' that Springstroh had
knowledge of Nixon's union activities prior to June 18,
1970. Accordingly, I find that the Respondent had
knowledge of union activity and specifically of Nixon's
union activity prior to the date of his discharge; the
Respondent entertained union animus as displayed in the
acts of interference, restraint , and coercion as found
hereinabove. It is clear that aside from Nixon there had
been no other disciplinary -actions but for one writeup
against other employees although Springstroh in his
testimony indicated an incessant sequence of signals to
employees for safety violations; and very significantly the
Respondent ignored its own procedure for progressive
discipline as set forth in the employee 's handbook by
compressing Nixon's suspension -into a discharge for the
same infraction without any logical or reasonable explana-
tion and finally the very nature of the discharge, that is the
fact that Springstroh gave Nixon no opportunity to explain
the fact that the machine was not in operation , and by-his
own testimony made no investigation, in fact did not
discuss the matter with Nixon's foreman who had been
intimately involved in the adjustment to the machine and
who was adjacent to Nixon at the critical time of the
alleged violation. Under these circumstances I am con-
vinced that Springstroh, with knowledge of Nixon's union
activities, seized on a very questionable infraction as a
vehicle to effect the discharge of Nixon thereby hoping to
obscure the true reason for the discharge which was
Nixon's union activity.
I find, therefore, that in the discharge of Nixon, the
Respondent discriminated against its employee in the
terms, tenure , and condition of his employment in order to
discourage union membership , and protected activity in
violation of Section 8(aX3) and (1) of the Act.
Conclusions of Law
1. Speed Queen , A Division of McGraw-Edison Co., is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
2. United Steelworkers of America, AFL-CIO, is a
labor organization within the meaning of Section 2(5) of
the Act.
3. By discriminatorily discharging its employee, Billy
Wayne Nixon, on June 18, 1970, thereby discouraging
membership in the aforementioned labor organization, the
Respondent has engaged in unfair labor practices within
the meaning of Section 8(a)(3) and (1) of the Act.
4. By each of the acts alleged in the complaint, the
Respondent has interfered with, restrained, and coerced"its
employees in their exercise of rights guaranteed by Section
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7 of the Act and has thereby engaged in unfair labor
practices within the meaning of Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair-labor
practices within the meaning of Section 2(6) and (7) of the
Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent' set forth in section III,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
The Remedy
In order to effectuate the policies of the Act, I find that it
is necessary that the Respondent be ordered to cease and
desist from the unfair labor practices `found and from like
or related invasions of the employees' Section 7 rights;- to
take certain affirmative action, including the offering of
reinstatement to Billy Wayne Nixon, with backpay
computed on a quarterly basis, plus interest at 6 percent
per annum, as prescribed in F. W. Woolworth Company, 90
NLRB 289, and Isis Plumbing & Heating Co., 138 NLRB
716; and to post appropriate notices.
Upon the foregoing findings of fact, conclusions of'law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER
The Respondent, Speed Queen, A Division of McGraw-
Edison Co., its officers, agents, successors, and assigns,
shall: `
1. Cease and desist from: -
(a) Discharging or otherwise discriminating against
employees , in order to discourage membership in or
support of United Steelworkers of America, AFL-CIO, or
any other labor organization.
(b), interrogating employees concerning union , member-
ship and activities ; surveillance and creating the impres-
sion of surveillance of the union activities of employees;
warnings that the plant will not expand if employees do'not
refrain from union activity; and promise of benefit if
employees would refrain from union membership or
activities.
(c) Instituting, maintaining , and enforcing a rule at the
Searcy, Arkansas , plant unlawfully prohibiting the solicita-
tion of membership in any organization and prohibiting
the circulation or distribution of written material on
company property at any time ; and exhibiting the motion
picture , "And Women Must Weep to its employees on
company property during working hours and on paid time.
(d) In any ; other manner interfering with,, restraining, or
coercing its employees in the exercise of their right to self-
organization , to form , join, or assist United Steelworkers of
America, AFL-CIO, or any other labor organization, to
bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for
the purpose of collective bargaining or mutual aid or
protection, or to refrain -from any or all such activities.
2. Take the,following affirmative action necessary to
effectuate the policies of the Act:
(a) Make whole Billy Wayne Nixon for any loss of pay
he may have suffered by reason of Respondent's discrimi-
natory discharge, in, the manner set forth in the section
herein entitled "The Remedy."
(b) Notify immediately the above-named individual if
presently, serving in the, Armed Forces of the United States
of the right to full reinstatement upon application after
discharge from the Armed Forces in accordance with the
Selective Service Act and the Universal Military Training
and Service Act.
(c) Preserve and, upon request, make available to the
Board or its agents, , for examination and copying, all
payroll records,, social security payment records, timecards,
personnel records and reports, and all, other ` records
necessary to determine the amount of backpay due under
the terms of this recommended Order.
(d) Post at its plant at Searcy, Arkansas, copies of the
notice marked "Appendix." I Copies of said notice on
forms provided by the Regional Director for Region 26,
after being duly signed by a duly authorized representative
of Respondent, shall be posted by it immediately upon
receipt thereof and be maintained by it for 60 consecutive
days thereafter, in `conspicuous places, including all places
where notices to employees are - customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are'not altered, defaced, or covered by
any other material.
(e) Notify the Regional Director for Region 26, in
writing within-20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.2
1 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the , words in the notice read "Posted by
Order of the National Labor Relations Board" shaft be changed to read
"Posted Pursuant to a Judgment of the United States Court 'of Appeals
Enforcing an Order of the National Labor Relations Board."
2 In the event that this recommended Order is adopted by the Board
after exceptions have been filed, this provision shall be modified to read:
"Notify the Regional Director for Region 26; in writing , within 20 days
from the date of this Order, what steps the Respondent has taken to comply
herewith:'
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The ;National Labor Relations Board having found after a
trial that we violated Federal law by, the discriminatory
discharge of an employee -because of his union activity,
and,, by committing acts of interference, restraint, and
coercion of our employees in their exercise of rights
protected by the law:
WE WILL OFFER Billy Wayne Nixon full reinstate-
ment and pay him for any earnings he lost as a result of
his discharge plus 6 percent interest.
WE WILL NOT discharge or discriminate against any
SPEED QUEEN
employee forisupporting United Steelworkers of Amer-
ica, AFL-CIO, or any other union.
-WE WILL NOT unlawfully interrogate employees
concerning their union activities; maintain surveillance
or create the impression of surveillance of- the union
activities of our employees; exhibit the motion picture
"And Women Must - Weep" to our employees, on
company property during working hours on paid time;
institute, maintain, and enforce unlawful rules prohibit-
ing no-solicitation of membership in any organization
and prohibiting the circulation or distribution of
written material on company property at any time;
warn employees that the plant will not expand if
employees do not refrain from union activity; and
promise benefits if employees will refrain from union
membership or activities.
WE WILL NOT in any other like or similar manner
interfere with, restrain, or coerce our employees in the
exercise of their rights to join or assist unions or to
refrain from so doing, nor from engaging in other
protected, concerted activity for their mutual aid or
protection.
1003
SPEED QUEEN, A
DIVISION OF MCGRAW
EDISON Co.
(Employer)
Dated By
(Representative) (Title)
WE WILL NOTIFY immediately- the above-named individual
if presently serving in the Armed Forces of the United
States of the right to full reinstatement upon application
after discharge from the Arme&Forces in accordance with
the Selective Service Act and the Universal Military
Training and Service Act.
This is an official notice and must not be defaced by
anyone.
This notice must remain posted.for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.,
Any questions concerning this notice or compliance with
its provisions may be directed to the Board's, Office, 36th
Floor Federal Building, 26 Federal Plaza, New York, New
York 10007, Telephone 212-264-3311.