Monroe Auto Equipment Co.

National Labor Relations Board - Board Decisions

May 4, 1964

146 N.L.R.B. 1267 (N.L.R.B. 1964)

MONROE AUTO EQUIPMENT COMPANY '1267
and litigation. - While they remained members of the Interna-
tional, they were not members of Local 24, and many who applied
for membership in Local 24 were denied it.
During the summer of 1963 the Petitioner undertook an organizing
campaign among employees of the Employer. The Employer alleges,
and Skopp, business manager of the Petitioner, admits, that during
the course of the campaign Skopp stated to employees that if the
Petitioner lost the election, they would have to stop working for the
Employer or face charges of violating the International constitution
by working for a nonunion contractor. We agree with the Regional
Director that this statement, in the context in which it was made,
interfered with the employees' free choice. Thus, a responsible union
official threatened employees that if the Petitioner lost the election,
they would be confronted with the choice of giving up their jobs or
facing union charges. We think that employees could reasonably be-
lieve that if union charges were brought against them, various penal-
ties might be imposed on them and that these charges might otherwise
adversely affect their good standing in the International and thus
jeopardize their opportunities for jobs on union projects. Under all
the circumstances, we find that Skopp's statements to the employees
threatened retaliation if the Petitioner lost the election and thereby
interfered with the employees' exercise of free choice. Accordingly,
we shall set the election aside and order a new one.'
[The Board set aside the election conducted on October 18,1963.]
[Text of Direction of Second Election omitted from publication.]
MEMBER JENKINS took no part in the consideration of the above
Decision, Order, and Direction of Second Election.
2 The Petitioner asserts that its conduct is protected by the proviso to Section
8(b) (1) (A ) of the Act concerning ". . . the right of a labor organization to prescribe
its own rules with respect to the acquisition or retention of membership ." Without de-
ciding the extent to which this proviso, which relates to an unfair labor practice section,
affects representation proceedings under Section 9 of the Act , we hold that threats of
reprisal, such as made in the instant case, which interfere with employees ' free choice in
an election , do not fall under the protection of this proviso . Our decision herein makes
it unnecessary for us to consider other issues raised by the exceptions.
Monroe Auto Equipment Company and International Union,
United Automobile , Aerospace and Agricultural Implement
Workers of America , AFL-CIO. Cases Nos. 17-CA-.123 and
17-CA-2185. M ay 4, 19641
DECISION AND ORDER
On December- 30, 1963, Trial Examiner W. Edwin Youngblood
issued his Decision in the above case, finding that the Respondent had
146 NLRB No. 168.
1268 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
engaged in and was engaging in certain unfair labor practices within
the meaning of the Act and recommending that it cease and desist
therefrom and take certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. Thereafter, the Respondent filed
exceptions to the Decision and a supporting brief. The General
Counsel and the Charging Party filed cross-exceptions to the Decision
and supporting briefs.'
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Chairman McCulloch and Mein-
bers Leedom and Jenkins].
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, cross-exceptions, and briefs, and
the entire record in the case, and hereby adopts the findings,' conclu-
sions, and recommendations of the Trial Examiner, except as modified
herein.'
ORDER
The Board adopts as its Order the Recommended Order of the
Trial Examiner with the modifications noted below :
1. Substitute for the first paragraph therein the following :
Upon the entire record in this case, and pursuant to Section
10(c) of the National Labor Relations Act, as amended, the Na-
1 The Respondent filed a motion to deny admission of the Charging Party's cross-
exceptions , alleging, inter alia, that they were untimely filed and failed to meet the neces-
sary requirements laid down in the amendments to Section 102.46( b) (c) and /or (e) of
the Board 's Rules and Regulations , Series 8, as amended. We have examined the argu-
ments in support of the motion and find that the cross- exceptions are in compliance with
the amendments to Section 102.46 (e) of the Board's Rules and Regulations , Series 8, as
amended, which specifically governs the filing of cross- exceptions . Accordingly, the
motion is denied.
2 Although, like the Trial Examiner , we find the speech of February 18, delivered by
Plant Manager Fisk, to be violative of Section 8(a) (1) of the Act, we rely only on the
statement in this speech that "if the Union was successful , and machines broke down or
employees ran out of stock for machines , employees would be sent home rather than re-
assigning them to other work... . We do not find other portions of the speech to be
violative of the Act.
s The Respondent has excepted to the Trial Examiner's unfair labor practice finding in
which, by reference to admissions contained in Respondent ' s answer to the complaint, he
supported his recommendation that the Respondent be required to cease and desist from
assisting in the preparation of newspaper editions containing threats of economic re-
prisals, including closing the plant if employees selected the Union as their bargaining
representative ." The Chairman and Member Jenkins find merit in this exception. Al-
though the Respondent admits the allegations contained in subparagraph ( c) of para-
graph 8 of the second amended complaint , they find that this portion of the complaint is
ambiguous , and does not clearly delineate a violation of the Act. Accordingly, the Trial
Examiner's proposed order shall be modified by deleting the reference to the above recom-
mendation . Member Leedom agrees with this modification but does so only because he
finds it unnecessary to pass on the allegation in question as the Board 's order broadly
enjoins unlawful threats.
MONROE AUTO EQUIPMENT COMPANY 1269
tional Labor Relations Board hereby orders that Respondent,
Monroe Auto Equipment Company, its officers, agents, successors,
and assigns, shall:
2. Delete paragraph 1 (b) and substitute the following :
(b) Threatening its employees with loss of overtime, loss of paid
holidays and vacations, lower wages, loss of employment, and
closing its plant if the employees select the Union as their bar-
gaining representative; threatening its employees with discharge
for union activities; threatening its employees by stating that
they would be unable to obtain other employment in the area if
they were discharged for union activities; threatening union rep=
resentatives in the presence of employees with violence and adopt-
ing and ratifying such threats; threatening to send employees
home when they ran out of-work rather than reassigning them to
other work if they select the Union as their bargaining repre-
sentative; permitting its employees to circulate an antiunion peti-
tion during working hours; 'and adopting and ratifying threats
to close the plant contained in the newspaper editions.
3. Delete the second indented paragraph from the notice, and sub-
stitute the following :
WE WILL NOT threaten our employees with loss of overtime, loss
of paid holidays and vacations, lower wages, loss of employment
and closing the plant if the employees select the Union as their
bargaining representative; threaten our employees with discharge
for union activities; threaten our employees by stating that they
will be unable to obtain other employment in the area if they are
discharged for union activities; threaten union representatives in
the presence of employees with violence or adopt and ratify such
threats; threaten to send employees home when they run out of
work rather than reassign them to other work if they select the
union as their bargaining representative; permit our employees
to circulate an antiunion petition during work hours; or adopt
and ratify threats to close the plant contained in newspaper
editions.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge and amended charges filed on February 27, March 26, and April
15 and 25, 1963,1 in Case No. 17-CA-2123, and a charge filed on May 10 in Case
No. 17-CA-2185 by International Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, AFL-CIO, herein called the Union, the
General Counsel of the National Labor Relations Board , by the Regional Director
for the Seventeenth Region (Kansas City, Missouri ), issued a consolidated com-
plaint on July 29, alleging the commission of unfair labor practices by Respondent
in violation of Section 8(a)(1) and affecting commerce within the meaning of
Section 2 ( 6) and (7) of the National Labor Relations Act, herein called the Act.
1 Unless otherwise noted, all dates herein refer to the year 1963.
1270 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The consolidated complaint was further amended prior to the hearing herein which
was held in Lexington, Nebraska, on August 27 and 28 before Trial Examiner
W. Edwin Youngblood. Respondent filed an answer denying the. alleged unfair
labor practices. Briefs were received from the General Counsel and Respondent
and had been duly considered.
Upon the entire record in the consolidated cases,2 and from my observation of
the witnesses, I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Michigan corporation, is engaged at its plant in Cozad, Nebraska,
in the manufacture, reconditioning, and wholesale distribution of automotive shock
absorbers, and annually receives goods valued in excess of $50,000, from outside
the State of Nebraska. Respondent admits, and I find, that it is engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act .3
II. THE LABOR ORGANIZATION INVOLVED
International Union , United Automobile , Aerospace and Agricultural Implement
Workers of America , AFL-CIO, is a labor organization within the meaning of
Section 2 (5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. Interference , restraint, and coercion
Prefatory Statement
The Union began its organizing drive at the Respondent 's Cozad plant about
February 16. Following this, the General Counsel contends Respondent , through
its supervisors , interfered with , restrained , and coerced its employees by various
acts and conduct . The charge in Case No . 17-CA-2123 was filed on February 27,
and a settlement agreement was approved on April 26 by the Regional Director.
The Regional Director withdrew his approval of the settlement agreement by letter
to the Respondent dated June 26 (General Counsel's Exhibit No. 18 ). The Regional
Director's letter stated that approval was withdrawn because Respondent failed to
perform its obligations under the settlement agreement in that : ( 1) Respondent
posted a separate notice (General Counsel 's Exhibit No. 16) next to the notice
called for by the settlement agreement which destroyed any remedial effect the
Board 's notice was designed to bring about ; and (2 ) Respondent engaged in additional
unfair labor practices after the execution of the settlement agreement which were
closely related to those complained of prior to the settlement agreement. The
notice ( General Counsel 's Exhibit No. 15), which was attached to the settlement
agreement and posted by Respondent , contained a provision inter alia reciting that
Respondent would not threaten to close its plant if the Union succeeded in organizing
its employees.
We will first consider Respondent 's postsettlement agreement conduct.
1. Postsettlement conduct
a. Newspaper publications of May 6 and 9
The complaint, as amended, alleges in paragraphs 8(c) and (d) that Respondent
did:
(c) Assist certain newspapers, to-wit: the Cozad Local of Cozad, Nebraska,
and the Dawson County Herald of Lexington, Nebraska, in the preparation of
certain editions, published on May 6 and 9, respectively, which contained
threats of economic reprisals to employees if the latter selected the Union as
their collective bargaining representative, even though the said Cozad Local
ever since March, had published a number of editorials attacking the Union
and suggesting that Respondent's employees should not select the Union as
their collective bargaining representative-W. D. McIntyre, Respondent's
s After the hearing, the General Counsel filed a motion to correct some of the errors in
the transcript of testimony. This motion, which was not opposed, Is herewith granted.
8 Respondent also operates a plant In Monroe , Michigan , to which further reference will
be made herein.
MONROE AUTO EQUIPMENT COMPANY 1271
executive vice-president and general manager , William Trusdale , Respondent's
attorney, Jack Stoner , manager of Respondent 's plant at Monroe , Michigan,
and George Streicher , Respondent 's vice president in charge of manufacturing,
between April 18 and May 9, both dates inclusive.
(d) Adopt and ratify threats of plant closing contained in the newspaper edi-
tions described in (c) above-plant manager LeVerne Fisk, May 6 and 9, at
the plant.
Respondent admitted the foregoing allegations.
Accordingly, I find Respondent violated Section 8(a) (1) of the Act by assisting in
the preparation of newspaper editions which contained threats of economic reprisals
including closing the plant if employees selected the Union as their bargaining
representative and by adopting and ratifying threats to close the plant continued in
the newspaper editions.
b. The events of May 8
On May 8, a meeting of the Union organizing committee was called to ascertain
why a Board election had been postponed. The meeting was to be held at the home
of employee Betty DeWitt. Word had spread about the meeting, in fact, some anti-
union employees and at least one supervisor,' Wayne Fyfe, had.been invited by a
union committeeman , Joseph Swink, to attend the meeting.4 A large crowd of some
60 employees gathered in front of the DeWitt home about 3:30 p.m. In addition to
employees, the meeting was attended by Union Representatives Carl Shier, Curly
Severs, and Herb Stocker. Carl Shier attempted to explain why the election had
been postponed. There was much confusion and discussion. A letter from the
Regional Director was handed to an employee to read and as she handed it back
to'the union representative, another employee, Buck Hartman, grabbed the letter,
wrinkled it up, threw it on the ground, and stepped on it . Wayne Fyfe, who is
6 feet 31/2 inches tall and weighs 300 pounds, said to the union representatives, "We
ought to give you guys four hours to get out of town." This statement was appar-
ently repeated by others, including an employee named Larry Gibson. Stocker
said, "If anybody laid a hand on him, they would die." The crowd by this time was
in an uproar, and an employee named Paul Younger became very upset and started
screaming that he hated the Union and started in the direction of Shier with doubled
fists . Younger was restrained by Gibson, Fyfe, and another employee named
Dave Earl.5
Fyfe's threat of violence directed to the union representatives in the presence of
employees clearly interfered with, restrained, and coerced employees in the exercise
of their rights, and I find Respondent thereby violated Section 8(a)(1) of the Act.
R. A. Kyle, personnel manager , and Dale Ballmer, foreman, observed the pro-
ceedings described above at the DeWitt home from the porch of Ballmer's house.
Kyle and Ballmer were observed on the Ballmer porch by several employees who
were at the DeWitt home. Ballmer lived two houses north of the DeWitt home.
Kyle had received a telephone call at work from his wife telling him she had gone
to the Ballmer home for coffee and that he should ride home with Ballmer. When
they reached the area of Ballmer's home they saw a large crowd in front of the
DeWitt home and stood on the Ballmer porch and watched to see what was going
on. Admittedly they knew they were watching some kind of a union meeting. At
times, Foreman Gene Peterson was also on the Ballmer porch observing the pro-
ceedings. Peterson had also been invited by Swink to come to the DeWitt home
but went to Ballmer's home instead because of the large crowd at DeWitt's. Other
people in the area were standing in their yards watching the commotion at the
DeWitt home.e
The complaint alleges that the presence of Fyfe, Kyle, and Ballmer constituted
surveillance and. a violation of the Act. The attendance of Supervisor Fyfe during
these events pursuant to the invitation of Union Committeeman Swink cannot be
4 The . parties stipulated that Fyfe and all other supervisors referred to herein are
supervisors within the meaning of the Act.
"Based on the credited testimony of Betty DeWitt, Burton Slack, Bobble Bedford, and
Joseph Swink. While Fyfe admitted making the statement quoted above, his testimony
Indicated a different sequence of events. I believe the events as set forth above represent
a more accurate version of what happened. They are more in accord with the probabilities,
and I was not as impressed with Fyfe's recollection of the events as I was with that of
the witnesses named above.
Based on the credited and uncontradicted testimony of witnesses for the General
Counsel and Respondent.
1272 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
considered surveillance. Cf. Union Transfer and Storage Company, 134 NLRB
24, 31. Under these circumstances, the presence in the area of other supervisors
does not constitute surveillance. I will recommend dismissal of this allegation.
c. The events of May 9
The complaint, as amended, alleges that Respondent adopted and ratified the
threat of violence uttered by Fyfe. On the morning of May 9, Plant Manager Fisk
talked to several employees, including Wayne Fyfe, about the events at the DeWitt
home the previous evening. As Fisk testified, "It was common gossip throughout
the plant." Under these circumstances it is reasonable to find, and I do find, that
Fisk knew of Fyfe's threat to the union representatives. After Fisk acquired this
knowledge, be made a speech to the employees (General Counsel's Exhibit No. 13)
on May 9 in which he referred to the events at the DeWitt home, and urged the
employees to continue to "fight" to defeat the Union.7
Under these circumstances, I find Respondent adopted and ratified Fyfe's threat
and did thereby violate Section 8(a)(1) of the Act.8
In view of the conduct found above to be violative of the Act, I find the Regional
Director acted properly in setting aside the settlement agreement .9
We' will now consider the presettlement conduct of Respondent.
2. Presettlement conduct
a. Fisk's speech of February 18
On February 18, about 3:30 p.m., Fisk spoke to about 225 employees in the ship-
ping and packing area.. Attendance at the meeting was voluntary and it was conducted
on a question-and-answer basis. Fisk stated that he had once belonged to the Union
and that the UAW represented the employees at the Monroe, Michigan, plant of
Respondent. He stated that the Union had ruined the State of 'Michigan by high
wages and businesses were leaving on account of high wages, adding that they were
"run out by unions." Fisk stated that so far. as he knew there were only two em-
ployees responsible for the Union starting its campaign at Cozad. During the speech,
Fisk had a couple of union pamphlets in his hand. One pamphlet referred to wages
paid at the Monroe, Michigan, plant of Respondent which were higher than wages
paid at the Cozad plant. Fisk stated that many people were unemployed in the
State of Michigan and that the Monroe plant had employed 1,200 people at one time
whereas it now employed about 200 employees. Fisk also talked about special union
assessments on employees, and questioned why employees should pay for the Union
to represent them when they could bargain for themselves, adding that the door was
open. Fisk also said that no one's job was in jeopardy over the union cards. Fisk
further stated that if a union came in and wages went up so high the Company could
not show a profit, the Company would have to close but stated this would not be
done unless the Company could not show a profit. Fisk also stated in effect that if
the Union came in the Cozad plant and employees ran out of stock for machines or
machines broke down, employees would be sent home after only 4 hours. (At the
time the speech was delivered, Respondent's practice if employees ran out of work was
to reassign them to other jobs in the plant.) 10
I find that Fisk's statements about the unionization of the plant at Monroe followed
by references to higher wages, reduction in the employee complement, and closing
the plant were reasonably calculated to create the impression that loss of jobs or
closing the plant would be the result of unionization at the Cozad plant, and were
therefore coercive and violative of Section 8(a) (1) of the Act. Cf. Collins & Aikman
Corp., 143 NLRB 15 (IR); Threads-Incorporated, 124 NLRB 968, 974; Miller Elec-
tric Manufacturing Co., Inc., 120 NLRB 298, 316.. In addition, I find Fisk' s state-
r Fisk's denial that he then knew of the events of May 8 Is not credited.
8In its brief, Respondent contends that Fisk did not adopt or ratify Fyfe' s conduct.
This contention is apparently based on Fisk's statement to employees Joseph Swink and
Burton Slack about the middle of March that he would not tolerate violence or threats of
violence, and the fact that Fisk posted a notice to employees to that effect in March. I do
not believe this earlier conduct of Respondent relieves it of responsibility for Fisk's adop-
tion and ratification of Fyfe's threat. This contention is therefore rejected.
O Because of the above finding, I consider it unnecessary to pass upon the other ground
stated by the Regional Director for setting aside the settlement agreement, specifically the
notice posted by Respondent adjacent to the Board notice.
10 The contents of the speech are virtually undisputed. The foregoing findings are based
on the testimony of employees James Rickey, Orel Rickey, Robert Bemiss, William Kufeldt,
Burton Slack , and Plant Manager Fisk.
MONROE AUTO EQUIPMENT COMPANY 1273
ment that if the Union was successful, and machines broke down or ran out of stock,
employees would be sent home rather than reassigning them to other work was
clearly coercive and violative of Section 8(a) (1) of the Act.
General Counsel contends that Fisk's statement that so far as he knew only two
employees were responsible for the Union starting its campaign at Cozad violated the
Act because it created the impression of surveillance. Fisk did not name the em-
ployees, or otherwise refer to the union activities of the employees, or in any way
refer to the basis for this statement. In my view, this bare statement of Fisk is
insufficient, to support the-finding sought by the General Counsel. I will recommend
this allegation be dismissed.
b. The circulation of the antiunion petition
Joseph Swink was employed during the last part of March or the first week in
April on the assembly line on the second shift. Swink credibly testified that during
this period of time he saw a petition (General Counsel's Exhibit No. 17) being
passed around on worktime in the assembly line area by employees Larry Gibson.and
Bill Kyle.ii Gibson worked on the piston grinder which was about 100 feet from
the assembly line, and Kyle worked as a picker in the packing area some 150 feet
from the assembly line. Swink stated that he saw two of the employees, Callahan
and Lang, sign the petition on worktime at the request of Kyle or Gibson. As is
apparent from the petition and as Swink testified, the petition was designed to force
the union representatives to leave the county. Swink further testified that Gibson
and Kyle remained in the area of the assembly line for 45 minutes to an hour on the
day he saw them circulating the petition. While Gibson and Kyle were circulating
the petition, the foreman of the assembly line, Floyd Ralston was "on the assembly'line
walking up and down, and sometimes he was sitting at the desk." At times Gibson and
Kyle were within 25 to 35 feet of Ralston. About 40 people were in the area of
the assembly line, and while Ralston was in the area a group of employees gathered
to read the petition. During the time Gibson and Kyle were in the assembly area
with the petition, Swink asked Ralston "what business they had on the assembly line
with the clip board and petition, and he said he didn't know."
Ralston denied having seen Gibson and Kyle circulate the petition. He admitted
however that Swink informed him of their activities and that he believed what Swink
told him. The only action he took was to go to the area where Swink said they were,
and not finding them there did nothing more. Ralston did not ask any other em-
ployees in his department if they had seen Gibson and Kyle nor did he ask Gibson or
Kyle if they had been in his department with a petition.
It is apparent that Gibson and Kyle were in the assembly area for a substantial
period of time talking to employees, and that employees gathered in at least one
group. Ralston was in the area at least part of the time this was going on. Ralston
was an unimpressive witness and on cross-examination demonstrated a- conveniently
poor memory. Under these. circumstances, I reject Ralston's denial and infer and -find
that Ralston saw Gibson and Kyle circulating the antiunion petition.12 In any event,
Ralston admittedly was informed by Swink of Gibson's and Kyle's activities.
About 8:30 a.m. of the day the petition was circulated, Swink credibly testified that.
he talked with Harold Sweeney, foreman in the packing area. Swink asked Sweeney
what the petition was that Gibson had. Sweeney replied that there was a petition
in the packing-area and he was going to find out what it was.'?
According to Swink's credited and undisputed testimony, Respondent "on the
first day the Union came in" through its supervisors issued instructions to employees
not to discuss the Union on worktime. In addition, Plant Manager Fisk admitted
that he told supervisors that employees were not to read union literature on company
time.
William Kufeldt, an employee on the third shift, credibly testified that during late
March or early April he saw employee Harold Hood with the petition (General Coun-
sel's Exhibit No. 17) or a copy of it on a clipboard talking to some of the em-
ployees. Kufeldt said that he saw Hood approximately a half dozen- times during
the next 4 hours talking to employees. Hood was employed as a shop repairman
on the assembly line and worked approximately 150 to 200 feet from Kufeldt's work
area.
u Kyle is the brother of Personnel Manager R. A. Kyle.
v In view of this finding, I consider it unnecessary to resolve the question about which
there was some testimony of whether Gibson and Kyle could have been in the assembly
line area on company business during March and April. Assuming that they could have
been in the area on company business, they clearly were not so engaged on this occasion.
33 Sweeney 's denial that he made this statement is rejected.
0
1274 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Plant Manager Fisk admitted that an employee told him "We are going to try
to get this union thing stopped or over with through this petition."
Plainly, the antiunion petition was openly criculated in the plant in several areas
during working hours with the knowledge and tacit consent of at least one supervisor,
Ralston. Respondent did nothing to deter the circulation of the petition and so far as
the record shows took no action to discipline or reprimand employees in any way
for circulating the antiunion petition on company time and property. All this con-
duct openly took place despite Respondent's rule prohibiting union activities on
worktime. Moreover, as found herein, Respondent's supervisors during this period
of time threatened employees with discharge if they passed out union cards or even
mentioned the Union. Under the circumstances, it is clear and I find that Respond-
ent, as alleged in the complaint, knowingly permitted the circulation of the anti-
union petition during working hours and thereby violated Section 8(a)(1) of the
Act.14
c. Supervisory conduct
In February, Line Foreman Floyd Ralston in a conversation with employee Burton
Slack on the assembly line said that he did not know whether the Union would do
anybody any good, or any harm, but that he thought if the Union came in em-
ployees would lose paid holidays and paid vacations. In late February or early
March, Assistant Plant Manager Horst Tobaben had two conversations with Slack
on the assembly line. Tobaben asked Slack how the other workers responded to the.
idea of a union, how the majority felt, and if Slack thought the Union would do
employees "some good."
In late February or early March, Line Foreman Gene Peterson talked to Slack
several times on the assembly line. Peterson said that he definitely did not want
a union and did not want somebody standing around telling him what to do. Fur-
ther he said that one of the reasons Respondent's plant at Monroe, Michigan, had
closed down was because of union wages , adding that they could no longer show a
profit and had to close their plant and lay off all the employees and he did not want
that to happen at this plant . Also Peterson said that the Company would start
the wages of employees back at the State law level which would be $1.25 an hour
(Slack was then making $1.61 an hour).
Further Peterson stated that if the Union came in , employees would go to a 40-
hour week and if they belonged to a union , they could not work on a part-time
job, they could not hold another job. (Normally employees were then working
48 hours weekly.) Peterson also said that if employees went on a strike, they
could not get another job and work at it while they were on strike. Peterson fur-
ther said that there would be special assessments by the Union whenever they
wanted to assess the employees and the Union could raise dues anytime they
wanted to.is
Foreman Harold Sweeney in a conversation in the packing area told employee
Carroll Bemiss on an occasion in March that if the Union "got in" all overtime
would be cut out.16
Foreman Ollie Goa told employees James Richey, Beanblossam , and Page in the
salvage area on February 18, that if the Union got in , employees would more than
likely lose their paid holidays and paid vacations, and would have to bargain on
wages at $1.15 an hour.17
Foreman Bob Houborg in several conversations at lunch with employee Charles
Balcon and other employees in March asked Balcon how he felt about the Union.18
Foreman Paul Kjar in a conversation with employee Bud Sabin in February told
him that unions were no good and asked him if he went to a union meeting and what
"kind of baloney" they told him at the meeting.19
14 Cf. Kit Manufacturing Company, Inc., 142 NLRB 957 (IR), and cases cited therein.
1s Ralson did not recall the conversation with Slack. Tobaben at first substantially
denied Slack's testimony, then after being shown his Board affidavit changed his testi-
mony to substantially admit Slack's testimony. Peterson did not dispute Slack's testimony,
in fact, he admitted the truth of at least part of it. Accordingly, I have credited Slack's
testimony.
10 Sweeney at first denied than substantially admitted this conversation. Accordingly,
I have credited Bemiss.
11 Goa substantially admitted making the statement related above. I have credited
Richey's testimony.
7s Houborg's vague denials are rejected and Balcon's testimony is credited.
1o Based on the credited and undented testimony of Sabin.
MONROE • AUTO EQUIPMENT COMPANY 1275
Foreman Harvey Chamberlin about February 19 asked employee William Morris
why he did not have his union button on. Morris replied he had changed his mind
about the Union and Chamberlin said he was "glad of it if[he] got fired there be-
cause of union [he] couldn't get any job with any hay mill in the valley." 20
. On an occasion in February, employee Robert Carr and two other employees were
going back to work from lunch when Foreman Warren Kloepping said that if any-
body "wants to get fired, a quick way to get fired is mention the union." Foreman
Paul Kjar also stated that "the quickest way of getting fired is to mention the union." 21
Foreman Ollie Goa in the latter part of March or first of April had several con-
versations with employee Joseph Swink about the Union. Goa asked Swink why
he was "pushing" the Union and told Swink that if he was caught passing out union
cards or talking union he could be dismissed.22
Concluding Findings 23
I find Respondent violated Section 8(a) (1) of the Act by:
1. Ralston's threat to Slack that employees would lose paid holidays and paid
vacations if the Union came in.
2. Tobaben's interrogation of Slack about how other employees felt about the
Union.
3. Peterson's statements to Slack that one of the reasons the Monroe, Michigan,
plant closed was because of union wages were reasonably calculated to create the
impression that Respondent's Cozad plant would close if employees selected the
Union as their bargaining representative, and were coercive in the circumstances of
this case. Further Peterson's statements that wages and the number of hours worked
weekly would be reduced if the Union came in were coercive.
4. Sweeney's threat to Bemiss that if the Union got in overtime would be cut out.
5. Goa's threat to employees on February 18 that if the Union got in employees
would likely lose their paid holidays and paid vacations, and have to bargain on
wages at $1.15 an hour.
6. Houborg's several interrogations of Balcon about how he felt about the Union.
7. Kjar's interrogation of Sabin about whether he attended a union meeting and
what he was told there.
8. Chamberlin's interrogation of Morris as to why he had removed his union
button and Chamberlin's statement that if Morris was discharged because of the
Union he could not get a job with any "hay mill in the valley."
9. Kloepping and Kjar's threat to Carr and other employees that employees would
be discharged if they "mentioned" the Union.
10. Goa's interrogation of Swink as to why he was "pushing" the Union and
threat that he would be discharged if he were "caught" passing out union cards or
talking union.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Respondent's activities found to be unfair labor practices in section III, above,
occurring in connection with the operations of Respondent described in section 1,
above, have a close , intimate , and substantial relation to trade , traffic , and commerce
among the several States, and tend to lead to labor disputes burdening and obstruct-
ing commerce and the free flow of commerce.
20 The credited and undenied testimony of Morris.
22 Kloepping at first denied and then admitted he might have made the statement related
above. Kjar did not recall making the statement related above. Carr's testimony is
credited.
M The credited and undenied testimony of Swink.
23 In its brief , Respondent contends that its conduct did not have the effect of inter-
ference, restraint , or coercion because employees testified they did not feel restrained or
coerced. The Board and courts have long held that the test of legality is not the subject
reaction of employees but whether specific acts reasonably tended to coerce employees.
This contention is rejected . Cf. Hendrix Manufacturing Company, Inc . v. N.L.B.B., 321
F. 2d 100 (C.A. 5). Likewise, I reject the contention that supervisors' statements to
employees are not violative of the Act if given as their own opinion. Section 8(c) does
not protect threats of economic reprisals merely because they may be given as personal
opinions. Nor can I conclude that the widespread acts of interference, restraint, and
coercion engaged in by supervisors with numerous employees are not violative or were
neutralized because of separate conversations with a few employees in which Fisk said
Respondent could not " take anything away " from employees that they already had.
1276 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
V. THE REMEDY
In view of my finding that Respondent has interfered with, restrained, and coerced
employees in the exercise of their rights under the Act, I shall recommend that it
cease and desist therefrom and post an appropriate notice.
Upon the basis of the foregoing findings of fact, and upon the entire record in
this case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
the rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
5. Respondent has not, as alleged in the complaint, violated the Act by: (a) the
conduct set forth in paragraph 4(d) or (b) the conduct set forth in paragraph.8(a).
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, the entire
record, and pursuant to Section 10(c) of the Act, it is recommended that Respond-
ent, Monroe Auto Equipment Company, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating any of its employees concerning their union activities in a man-
ner constituting interference, restraint, and"coercion in violation of Section 8(a)(1)
of the Act.
. (b) Threatening its employees with loss Of overtime, loss of paid holidays and
vacations, lower wages, loss of employment, and closing its plant if the employees
select the Union as their bargaining representative; threatening its employees with
discharge for union activities; threatening its employees by stating that they would
be unable to obtain other employment in the area if they were discharged for union
activities; threatening' union representatives in the presence of employees with vio-
lence and adopting and ratifying such threats; threatening to'send employees home.
when they ran out of work rather than reassigning them to other work if they select
the Union as their bargaining representative;,permitting its employees to circulate an
antiunion petition during working hours; assisting in the preparation of newspaper
editions containing threats of economic reprisals including closing the plant if em-
ployees selected the Union as their. bargaining representative; and adopting and
ratifying threats to close the plant contained in the newspaper editions.
(c) In any 'like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is necessary to effectuate. the
policies of the Act:
(a) Post at its Cozad plant, copies. of the attached notice marked "Appendix." 24
Copies of said notice, to be furnished by the Regional Director for the Seventeenth
Region, shall, after being duly signed by the Respondent's representative, be posted
by it immediately upon receipt thereof, and be maintained by it for at least 60 con-
secutive days thereafter, in conspicuous places, including all places where. notices to
employees are customarily posted. Reasonable steps shall be taken by the Respond-
ent to insure that said notices are not altered, defaced, or covered.by any ,other
material.
(b) Notify said Regional Director, in writing, within 20 days from the receipt of
this Trial Examiner's Decision, what steps the Respondent has taken to comply
herewith 2a
"If this Recommended Order should be adopted by the Board, the words."As Ordered
by" shall be substituted for "As Recommended by a Trial Examiner of" in the notice. In.
the further event that the Board's Order he enforced by a United States Court of Appeals,
the words "A Decree of a United States Court of Appeals, Enforcing an-Order of" shall'
be substituted for "As Ordered by."
ze In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days of
the date of this Order, what steps the Respondent has taken to comply herewith."
BERNEL FOAM PRODUCTS CO., INC . 1277
I further recommend the dismissal of the complaint insofar as it alleges Respond-
ent violated the Act by : ( a) the conduct set forth in paragraph 4(d) and (b) the
conduct set forth in paragraph 8(a).
APPENDIX
NOTICE TO ALL EMPLOYEES
As recommended by a Trial Examiner of the National Labor Relations Board
we are posting this notice to inform our employees of the rights guaranteed them
by the National Labor Relations Act:
WE WILL NOT interrogate any of our employees concerning their union
activities in a manner constituting interference , restraint, or coercion in viola-
tion of Section 8 ( a) (1) of the Act.
WE WILL NOT threaten our employees with loss of overtime , loss of paid
holidays and vacations , lower wages , loss of employment , and closing the plant
if the employees select the Union as their bargaining representative ; threaten our
employees with discharge for union activities ; threaten our employees by stating
that they will be unable to obtain other employment in the area if they are
discharged for union activities ; threaten union representatives in the presence
of employees with violence or adopt and ratify such threats; threaten to send
employees home when they run out of work rather than reassign them to other
work if they select the Union as bargaining representative ; permit our employees
to circulate an antiunion petition during working hours; assist in the preparation
of newspaper editions containing threats of economic reprisal including closing
the plant if employees selected the Union as their bargaining representative; or
adopt and ratify threats to close the plant contained in the newspaper editions.
WE WILL NOT violate any of the rights which you have under the National
Labor Relations Act to join a union of your own choice or not to engage in any
union activities.
All our employees are free to become or remain members of Internationl Union,
United Automobile , Aerospace and Agricultural Implement Workers of America,
AFL-CIO, or any other union , and they are also free to refrain from joining any
union.
MONROE AUTO EQUIPMENT COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and it must not be altered , defaced, or covered by any other material.
Employees may communicate directly with the Board 's Regional Office, 1200
Rialto Building, 906 Grand Avenue, Kansas City , Missouri , Telephone No. Baltimore
1-7000. Extension 731, if they have any questions concerning this notice or compli-
ance with its provisions.
Bernel Foam Products Co., Inc. and Textile Workers Union of
America, AFL-CIO, Charging Party. Case No. 3-CA-1995.
May 4, 1964
DECISION AND ORDER
On September 16, 1963, Trial Examiner Sidney D. Goldberg issued
his Decision in the above-entitled proceeding, finding that Respond-
ent had engaged in and was engaging in certain unfair labor practices
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion. He further found that the Respondent had not engaged in cer-
tain other unfair labor practices alleged in the complaint and recom-
146 NLRB No. 161.