Nashua Manufacturing Corp. of Texas

National Labor Relations Board - Board Decisions

May 11, 1954

108 N.L.R.B. 837 (N.L.R.B. 1954)

NASHUA MANUFACTURING CORPORATION OF TEXAS 837
For the reasons appearing above , I would quash the notice of
hearing in this case.
Member Beeson took no partintheconsiderationof the above
Decision and Determination of Dispute.
NASHUA MANUFACTURING CORPORATION OF TEXAS and
UNITED BROTHERHOOD OF CARPENTERS AND JOINERS
OF AMERICA , AFL. Case No. 16-CA-635. May 11, 1954
DECISION AND ORDER
On January 12, 1954, Trial Examiner Eugene F. Frey issued
his Intermediate Report in the above - entitled proceeding, find-
ing that the Respondent , Nashua Manufacturing Corporation of
Texas , had engaged in and was engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom
and take certain affirmative action , as set forth in the copy of
the Intermediate Report attached hereto . The Trial Examiner
also found that the Respondent had not engaged in certain other
unfair labor practices alleged in the complaint and recommended
dismissal of those allegations . Thereafter, the Respondent
filed exceptions to the Intermediate Report with a supporting
brief.
The Board has reviewed the rulings of the Trial Examiner and
finds that no prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Intermediate
Report, the exceptions and brief , and the entire record in the
case, and hereby adopts the findings , conclusions , and recom-
mendations of the Trial Examiner.,
ORDER
Upon the entire record in this case , and pursuant to Section
10 (c) of the National Labor Relations Act, as amended, the
National Labor Relations Board hereby orders that the Re-
spondent , Nashua Manufacturing Corporation of Texas, its
officers , agents , successors , and assigns, shall:
1. Cease and desist from:
(a) Interrogating applicants for employment concerning their
union affiliation , and employees concerning their union or other
concerted activities; creating or fostering the impression
among its employees that it is engaged in surveillance of
union activities and other employee concerted activities;
uIn adopting the Trial Examiner 's finding that the union organizational campaign was in
operation during February , March, and April, 1953 , and that the Respondent had knowledge of
that activity , the Board does not adopt and does not rely , however, upon any inference based
upon the size of the Employer 's plant and the small number of employees.
108 NLRB No. 117.
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
attempting by promises of benefit to procure reports on and
surveillance of union activities by employees ; and in any other
manner interfering with, restraining , and coercing its em-
ployees in the exercise of their right to self - organization, to
form labor organizations , to join or assist United Brotherhood
of Carpenters and Joiners of America, AFL, or any other labor
organization , to bargain collectively through representatives of
their own choosing , and to engage in other concerted activities
for the purposes of collective bargaining and other mutual aid
or protection , or to refrain from any or all of such activities,
except to the extent that such right may be affected by an agree-
ment requiring membership in a labor organization as a con-
dition of employment , as authorized in Section 8 (a) (3) of the
Act.
2. Take the following 'affirmative action, which the Board
finds will effectuate the policies of the Act:
(a) Post at its plant in Wichita Falls , Texas , copies of the
notice attached to the Intermediate Report .E Copies of said
notice , to be furnished by the Regional Director for the Sixteenth
Region , shall, after being duly signed by Respondent ' s repre-
sentative , be posted by Respondent immediately upon receipt
thereof and maintained by it for sixty ( 60) consecutive days
thereafter in conspicuous places, including all places where
notices to employees are customarily posted . Reasonable steps
shall be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director for the Sixteenth Region in
writing within ten (10 ) days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it
concerns allegations made in paragraphs 5b and 5e and insofar
as it concerns an allegation of interrogation of an employee in
paragraph 5c, be , and it hereby is , dismissed.
Member Rodgers took no part in the consideration of the
above Decision and Order.
2 This notice shall be amended by substituting for the words "The Recommendations of a
Trial Examiner," the words "A Decision and Order." In the event that this Order is enforced
by a decree of a United States Court of Appeals, the notice shall be further amended by sub-
stituting for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree
of the United States Court of Appeals, Enforcing an Order."
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
The issues in this case are whether Nashua Manufacturing Corporation of Texas, herein
called the Respondent, has on various dates since February 17, 1953, interrogated, threatened,
and warned its employees , and kept under surveillance the meetings and activities of the
United Brotherhood of Carpenters and Joiners of America, AFL, herein called the Union, and
the concerted activities of its employees, in violation of Sections 8 (a) (1) and 2 (6) and (7) of
NASHUA MANUFACTURING CORPORATION OF TEXAS 839
the Labor Management Relations Act, 61 Stat. 136, hereinafter called the Act. The issues arise
on a complaint issued September 24, 1953, by the General Counsel of the National Labor
Relations Board, herein called General Counsel and the Board, through the Board's Regional
Director for the Sixteenth Region (Fort Worth, Texas), on the basis of a charge duly filed by
the Union, and the answer ofRespondentdenying the commission of any unfair labor practices. i
Pursuant to notice, a hearing was held at Wichita Falls, Texas, on November 2, 1953, before
the undersigned Trial Examiner, at which all parties were represented by counsel and were
afforded full opportunity to be heard, to examine and cross-examine witnesses, and to introduce
evidence bearing on the issues. At the beginning of General Counsel's case, the Trial Examiner
denied Respondent's motion to dismiss paragraphs 5a, 5b, 5c, and 5e of the complaint as being
hearsay and lacking allegations of threats or coercion. At the close of General Counsel's
case, the Trial Examiner denied the Union's motion to continue the hearing indefinitely pend-
ing decision by the General Counsel of the Board on the Union's appeal from the refusal of the
Regional Director for the Sixteenth Region to include in the complaint herein allegations of
violations of Section 8 (a) (3) of the Act on the basis of the charge filed herein by the Union.2
The Trial Examiner granted Respondent's motion to dismiss paragraphs 5b, 5c, and 5e of the
complaint for lack of proof, insofar as they alleged interrogation of employees by agents of
Respondent. At the close of the case, decision was reserved on Respondent's motion to dis-
miss the remainder of the complaint on the merits; that motion is disposed of by the findings
and conclusions in this report. The Union's renewed motion to postpone the hearing indefinitely
on grounds previously stated was denied. General Counsel's motion to conform the pleadings
to the proofs in matters of minor variance was granted without objection. All parties waived
oral argument, and were given an opportunity to file briefs and proposed findings and con-
clusions with the Trial Examiner. Respondent and the Union have filed briefs.
Upon the entire record in the case, and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT, THE STATUS OF THE UNION
Respondent Nashua Manufacturing Corporation of Texas is and has been at all times material
herein a Texas corporation having its principal office, place of business, and plant in Wichita
Falls, Texas, where it is engaged in the manufacture, sale, and distribution of house trailers
and related products. In the year ending June 30, 1952, Respondent bought for use in its
business raw materials valued in excess of $182,000, of which more than 50 percent was
shipped to its plant from points outside Texas. In the same period it sold products valued in
excess of $ 832,000, of which more than 50 percent was shipped from its plant to points out-
side Texas. I find on the above facts that Respondent is engaged in commerce within the mean-
ing of the Act.
The Union is a labor organization within the meaning of Section 2 (5) of the Act, which ad-
mits to membership employees of Respondent.
II. THE UNFAIR LABOR PRACTICES
A. The union activity and Respondent's knowledge thereof
The record does not show exactly when the Union began to organize Respondent's plant, but
employee Clinton E. Muhlinghause became interested in the Union about 2 weeks after he
started work on February 17, 1953, at the plant, and he signed a union card a week later.
Employee Carl Harris became interested in the Union in March, and signed a union card in
late March or early April. In this period there was general, open discussion about the Union
among all the employees in the shop, and some of them talked to Production Manager Floyd
A. Green about it. The Union held a meeting for the employees on the night of March 24 or 25,
iThe charge, complaint, and notice of hearing thereon, were duly served on Respondent and
the Union.
2 The Regional Director made his decision September 1, 1953, and the Union appealed
September 11, 1953. The Trial Examiner has been advised by the office of the General
Counsel in Washington that the Union's appeal was denied on November 19, 1953.
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1953, and thereafter some of them told Green about it. During March and April, Respondent
had about 28 employees in its plant , and all of them , except an unstated number employed in
the paint shop, worked in the same room. These findings are based on credited testimony of
Muhlmghause and Harris, admissions of Green, and stipulations of the parties. I conclude and
find on the above facts that the union campaign was in progress during February, March, and
April, 1953, and that Respondent was aware of the union activity in its plant in this period.3
B. Interference, restraint, and coercion
When Clinton E. Muhlinghause sought employment at Respondent's plant on February 17,
1953, he was interviewed by Floyd A. Green, production manager at the plant, who looked
over his application blank and questioned himabouthis past experience. Green hired Muhlmg-
hause, telling him to start work at noon. He also asked Muhlinghause, "What union do you
belong to? " and Muhlinghause replied, "Not any." I find these facts on the credited testimony
of Muhlinghause, who testified in a clear and straightforward manner and impressed me as
being a truthful witness. Green did not deny the facts of the interview as stated by Muh-
lmghause, nor specifically deny this interrogation; he only denied generally any questioning of
employees about union affiliation on the above date. Furthermore, Muhlinghause's testimony
is corroborated to some extent by Green's admission that on 1 or 2 occasions he questioned
job applicants about their union affiliation; he recalled J. W. Needham as one thus questioned.
His excuse for such interrogations was that, in cases where the application indicated the
applicant came from a local firm where Green knew a strike was in progress , he desired to
find out whether the man intended to work only temporarily until the strike ended, in which
event he did not want to hire and train the man. Assuming the economic validity of this excuse,
it does not thereby prove that he did not on this occasion interrogate Muhlinghause, for there
is no proof one way or the other as to Muhlinghause's prior employment (if any), or as to the
lack of labor trouble in such prior employment. On the contrary, the nature of the excuse it-
self supports an inference that the admitted interrogations were for other than economic rea-
sons: if Green learned that an applicant had come from a strike-bound plant, he need only
have asked the man whether he intended to remain with Respondent, if hired, or return to his
former job when the strike there ended; an inquiry into his union affiliation at his former
place of employment would appear unnecessary, unless Greene really wanted to know whether
the man had gone on strike himself, or engaged in other concerted activity.
In the latter part of March 1953,4 the Union held a meeting at night which was attended by
employees of Respondent . The next day, as employee Jesse J. Halcomb was passing the plant
office, he saw Frank Moore, assistant production manager, sitting therein, writing on a piece
of paper. Halcomb asked Moore what was on the paper, and Moore answered, "A list of
names ." Halcomb asked what names, and Moore replied, "the ones that went to the meeting."
Halcomb looked down at the paper , and saw his name and those of Solomon Abraham, a lead-
man, and employee J. W. Needham listed on the paper. Halcomb asked Moore what he was
going to do with the names, and Moore replied, "Turn them over to Floyd. "5
31 do not credit testimony of Green and his assistant, Frank Moore, denying knowledge of
any union activity in the shop prior to the termination interview of one J. W. Needham. which
apparently took place in late March or early April.
4 Halcomb places the meeting on the 24th or 25th.
5 These findings are based on the credited testimony of Halcomb, who testified in a simple,
straightforward manner and impressed me as a reliable witness. While Moore categorically
denied any discussion with Halcomb as related by the latter, I do not credit his denials. I have
found that Respondent was aware of the union organizing campaign from February onward and
knew of the employees' interest in the Union. Respondent's interrogation of Muhlinghause in
February, as found above, and Green's unconvincing excuses for other interrogation of pros-
pective employees, indicate that Respondent was displaying an inordinate interest in the union
activities of prospective employees at least. Moore's listing of names of employees who
attended a union meeting is consonant with Respondent's previously displayed interest in
union affiliation of prospective employees, one of whom became an employee. I therefore also
accept Halcomb's testimony as to the Moore conversation as more inherently 'probable in the
circumstances than Moore's mere denial of the incident Moore's testimony indicating that he
may have had only a list of items needed for production in his possession is vague and un-
convincing, and I do not credit it.
NASHUA MANUFACTURING CORPORATION OF TEXAS 841
Later the same day, Production Manager Green called Halcomb into his office and asked him
who had been at the union meeting. Halcomb said he did not know, as he was not there. Green
then told Halcomb that the Company had tried a union in Missouri and had beat it there, and
they were not going to have it "here," either. Green also told Halcomb that if he would report
anything like the meeting to Green, he would appreciate it. Green further told Halcomb that he
had been in the plant long enough so that Green thought he ought to have a raise in pay. 6
The record shows, and I find, that bothGreen and Moore are supervisors within the meaning
of Section 2 (11) of the Act, and it is clear that their conduct found above is chargeable to
Respondent. It has been settled by many decisions of the Board, with the approval of the
courts , that employer interrogation of employees or prospective employees regarding any
aspect of their union or other concerted activities is per se an unlawful intrusion into a sphere
of employee activity reserved to them and protecteby the Act, and that such interrogation
constitutes interference with, restraint, and coercion of employees in violation of Section 8 (a)
(1) of the Act. I therefore conclude and find that, by Green's interrogation of Muhlmghause on
February 17, 1953, and his similar interrogation of Halcomb late in March, Respondent has
violated Section 8 (a) (1) of the Act.
Moore's statements to Halcomb that he was listing the names of employees who had attended
a union meeting the night before, and that he would turn it over to Floyd Green, his superior,
were calculated to foster the impression that Respondent was engaging in surveillance of
union meetings, and thus tended to intimidate employees, in violation of Section 8 (a) (1) of the
Act.7 Green's ensuing interrogation of Halcomb as to who attended the same meeting, followed
by his suggestion that Halcomb furnish him with reports regarding similar meetings, was con-
duct which further tended to foster the same impression and also was direct attempt to enlist
an employee in such unlawful surveillance inviolation of Section 8 (a) (1) of the Act. 8And when
Green, a supervisory official who had power effectively to recommend wage increases, coupled
this suggestion to Halcomb with the commentthathe was due for a raise, he was impliedly in-
dicating to Halcomb that if he aided Respondent in such surveillance he would receive a
material reward. This was an unlawful promise of benefit as a reward for spying which
further tended to coerce an employee in the exercise of rights guaranteed to him by Section 7
of the Act, in violation of Section 8 (a) (1) of the Act. 9
Employee Carl Harris testified that in theearlypart of April 1953, he had a talk with Frank
Moore in the plant, in which Moore said that the Company had phoned to the supervisors,
mentionlrg Floyd (Green), and told them that they would shut down the plant before they
would have a union there. Moore also said the Company had had to lay off some employees,
and that Halcomb came "back there popping off and he just laid him off, too." While Harris
testified clearly as to the treat of shutdown, he could not say who made the threat, other than
"the company," and he could not remember whether Moore coupled the statement as to the
6 These findings are based on credited testimony of Halcomb. Although Green denied cate-
gorically any request toHalcombto reportonunion meetings, and any offer of a raise in pay in
return therefor he did not deny specifically his inquiry of Halcomb as to who attended the union
meeting , nor his remarks regarding a union at Respondent's Missouri and Texas plants. I have
already found that Green interrogated prospective employees regarding their union affiliations.
Halcomb's testimony is corroborated circumstantially to some extent by the admissions of
Marion H. Musselwhite, general manager of the Wichita Falls plant, that all recommendations
for wage increases went throughGreen, and thatGreen's recommendations thereon are usually
followed by Musselwhite, and Green's admission that he frequently advises an employee lie
should get a raise, with the intention of making a recommendation on it, and that this is a
"normal" practice. In view of these admissions, the fact that neither Moore nor Green ever
actually recommended to Musselwhite, the plant manager, that Halcomb be given a wage in-
crease, and that Halcomb never received a raise, is immaterial. Green also admitted that he had
formerly worked at the Linden, Missouri, plant of Respondent. In the light of these admissions, I
consider it more probable that the conversation occurred as stated by Halcomb,than that it did not.
7 Knickerbocker Plastic Co., Inc., 96 NLRB 586; Roxboro Cotton Mills, 97 NLRB 1359.
Whether or not the surveillance indicated by Moore's remakrs and conduct was actual or pre-
tended, the coercive effect thereof was the same. F. W. Woolworth Co., 90 NLRB 289; Mike
Persia Chevrolet Co., Inc., 107 NLRB $77.
8See preceding footnote, and Dolores, Inc., 98 NLRB 550; Graniteville Company, 96 NLRB
456.
9 Foremost Dairies, Inc., 83 NLRB 1094.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
layoff with the fact that the laid-off men had signed up with the Union; and his testimony as to
Halcomb's l4yoff is vague and uncertain. Moore categorically denied having such a conver-
sation with Harris. Harris also testified that he talks almost every day with Moore about his
work and other matters, but this occasion was the only one in which Moore made any reference
to the Union. Harris also testified that he signed a union card sometime before his alleged
talk with Moore, that he is still employed by Respondent, and that Green once told him that
it made no difference as to his job whether he joined the Union. Green and Musselwhite, the
plant manager, also testified credibly that only Musselwhite handles communications between
Respondent's Texas plant and its Missouri plant and office. There is no proof that Respondent
ever shut down the plant, or that any like threats were uttered to other employees. Considering
all the circumstances I am unable to conclude that General Counsel has proved by a prepon-
derance of the credible evidence that Moore on this single occasion uttered a clear threat of
economic reprisal which was either calculated to, orin fact did, coerce employees in violation
of the Act. It should be noted that the threat of a plant shutdown is not alleged in paragraph 5
(e) of the complaint. The other remarks attributed to Moore by Harris do not violate the Act.
I conclude that General Counsel has not sustained the burden of proving paragraph 5 (e) of the
complaint by a preponderance of credible evidence, and shall recommend that said paragraph
of the complaint be dismissed.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section II, above, occurring in connection with the
operations of Respondent described in section I, above, have a close, intimate, and substantial
relation to trade, traffic, and commerce among the severul States and tend to lead to labor
disputes burdening and obstructing commerce and the free flow of commerce.
IV. THE REMEDY
I have found that Green, production manager and second in command in Respondent's
Wichita Falls plant, interrogated a prospective employee in February 1953, and that the same
official and his assistant created an impression of unlawful surveillance of employee con-
certed activities by their remarks late in March to a single employee, who was at the same
time interrogated by Green about a union meeting and importuned to aid in surveillance of
union meetings by a promise of benefit. In its brief Respondent in effect argues that the record
shows only a few, casual, isolated interrogations and remarks which were not coercive in
themselves or accompanied by threats or promises, and not related to restraint of employees
in their right of self-organization, citing decisions of various courts of appeal 10 Most of
these cases involved acts of interrogation, and were devoid of evidence of antiunion background
or a pattern of conduct hostile to unionism on the part of the employer. If the case before me
involved only the two interrogations found above, Iwould be inclined to agree with Respondent's
contention, for the record here contains no substantial proof of prior antiunion activity by
Respondent, nor of any subsequent antiunion conduct, or discrimination against the employees
who testified herein, or other employees, for which these interrogations might form a natural
prelude, ii Thus, the two incidents of interrogation, standing naked and alone, would not war-
rant a remedial order. B However, the interrogation of mid-February and the conduct and
remarks of Moore and Green on one day in late March have a common aspect: they all indicate
10 N. L. R. B. v. Montgomery Ward & Co., 192 F. 2d 160 (C, A. 2); N. L. R. B. v. Superior
Co., 199 F. 2d 39 (C. A. 6); N. L. R. B. v. Arthur Winer, Inc., 194 F 2d 370 (C. A. 7); N. L.
R. B. v. Tennessee Coach Co., 191 F. 2d 546 (C. A. 6); N. L. R. B. v. Clearwater Finishing
Co., 203 F. 2d 938 (C. A. 4); N. L. R. B. v. England Bros. Inc., 201 F. 2d 395 (C. A. 1).
"As noted above, General Counsel has sustained the Regional Director in his refusal to
issue a complaint based on alleged discriminatory terminations of employees in March and
April 1953. When Respondent tried to adduce evidence as to the reasons for layoffs in this
period on cross-examination of witnesses, I excluded such testimony on objection of the Union
as being outside the issues before me. I allowed cross-examination of witnesses of both sides
as to the circumstances surrounding the layoff of one J. W. Needham, as bearing on the time
when Respondent first learned of the union activities, but I make no findings thereon as to the
character or validity of Needham's termination,
12 New Mexico Transportation Company, Inc., 107 NLRB 47.
UNITED INSURANCE COMPANY 843
that Respondent was displaying an inordinate interest in the concerted activities of its em-
ployees and was taking definite steps to satisfythat interest , including an attempt to enlist the
aid of an employee for that purpose. In the light of the unconvincing excuse offered by Green
for admitted interrogations of other prospective employees, the inference is justified that
Respondent 's more than casual interest in employee concerted activities was not caused by a
natural business or economic interest butbyulterior motives. The Board has long recognized,
with the approval of the courts, that employees' self-organization and other concerted activ-
ities constitute an area of activity guaranteed by the Act as the exclusive business and concern
of the employees, and has condemned as an unlawful interference with this right of privacy
indirect attempts of employers through espionage or surveillance to secure information about
such activities of their employees.13 In the light of these principles, I cannot view these in-
terrogations , plus conduct giving the impression of surveillance and involving an attempt to
bribe an employee to assist in such surveillance, when indulged in by the second and third
ranking supervisory officials in a plant of only 28 employees, as mere casual or perfunctory
remarks or conduct lacking in any aspects of intimidation or coercion. I feel that it may rea-
sonably be anticipated, in line with past Board experience, that this type of conduct, if per-
mitted to continue, will probably be followed by efforts of the employer to hinder or defeat
employee. activity looking to self-organization. I therefore conclude that the decisions cited by
Respondent are not apposite or controlling here, and I shall recommend that Respondent be
ordered to cease and desist from the specific unfair labor practices found above, and from
interfering in any other manner with the rights of employees guaranteed by Section 7 of the
Act. M I shall also recommend that Respondent take certain affirmative action designed to
effectuate the policies of the Act.
Upon the foregoing findings of fact, and on the entire record in the case, I make the following:
CONCLUSIONS OF LAW
1. The above Union is a labor organization within the meaning of Section 2 (5) of the Act.
2. By interfering with, restraining, and coercing its employees to the extent found above in
the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting commerce
within the meaning of Section 2 (6) and (7) of the Act.
4. Respondent has not violated the Act by interrogation of employees as set forth in para-
graphs 5b and 5c of the complaint, nor has it committed any violation of the Act as set forth in
paragraph 5e of the complaint.
[Recommendations omitted from publication.]
13 Standard-Coosa-Thatcher Company, 85 NLRB 1358, 1360, 1361, and cases cited in footnotes
13 and 14.
14Mike Persia Chevrolet Co., Inc., 107 NLRB 377.
UNITED INSURANCE COMPANY and INSURANCE WORKERS
OF AMERICA, CIO, LOCAL NO. 5, Petitioner
UNITED INSURANCE COMPANY and INSURANCE AGENTS
INTERNATIONAL UNION, AFL, Petitioner. Cases Nos. 4-
RC-2052 and 4-RC-2110. May 11, 1954
DECISION, ORDER, AND DIRECTION OF ELECTION
Upon separate petitions duly filed under Section 9 (c) of the
National Labor Relations Act, a hearing in Case No. 4-RC-2052
and a consolidated hearing in Cases Nos. 4-RC-2052 and 4-RC-
108 NLRB No. 115.