Remington Rand Corp.

National Labor Relations Board - Board Decisions

Apr 2, 1963

141 N.L.R.B. 1052 (N.L.R.B. 1963)

[052 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, we find that IBEW Local 22 is not and was not en-
titled by means proscribed by Section 8(b) (4) (ii) (D) to force or
require FEC to assign the disputed work to Local 22 members.
DETERMINATION OF DISPUTE
Upon the basis of the foregoing findings, and the entire record in
the case, the Board makes the following Determination of Dispute,
pursuant to Section 10(k) of the Act:
1. Employees engaged as engineers and technicians by Federal
Electric Corporation in the installation, testing, and maintenance of
Project 465L equipment at Offut Air Force Base, Nebraska, are en-
titled to the assignment of such work. Accordingly, International
Brotherhood of Electrical Workers, AFL-CIO, Local 22, is not en-
titled, by means proscribed by Section 8(b) (4) (ii) (D) of the Act,
to force or require Federal Electric Corporation to assign the above-
mentioned disputed work to its members.
2. Within 10 days from the date of the Board's Decision and Deter-
mination, the Union shall notify the Regional Director for the Seven-
teenth Region, in writing, whether or not it will refrain from forcing
or requiring Federal Electric Corporation, by means proscribed by
Section 8(b) (4) (ii) (D), to assign the work in a manner inconsistent
with the above determination.
Remington Rand Corporation and International Association of
Machinists , AFL-CIO. Ca.Se No. 26-CA-1271. April 2, 1963
DECISION AND ORDER
On October 31, 1962, Trial Examiner Stanley Gilbert issued his
Intermediate Report in the above-entitled proceeding, finding that the
Respondent had engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Intermediate
Report. The Trial Examiner also found that the Respondent had not
engaged in certain other unfair labor practices alleged in the com-
plaint and recommended dismissal of these allegations. Thereafter,
the General Counsel and the Respondent filed exceptions to the Inter-
mediate Report with supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Members Rodgers, Fanning, and Brown].
The Board has reviewed the rulings made by the Trial Examiner at
the hearing and finds that no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
141 NLRB No. 90.
REMINGTON RAND CORPORATION 1053
mediate Report, the exceptions and briefs, and the entire record in this
case, and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner except as modified below.
1. Contrary to the Trial Examiner, we agree with the General
Counsel's contention that Akers, Respondent's plant manager, violated
Section 8(a) (1) of the Act, in a speech delivered to the 'employees on
April 24, 1962. In this speech, Akers said :
Therefore, I believe you must strongly resist this organizing ef-
fort, because if you allow a union to come in and dissipate the
advantages we now enjoy at this location, it could very well be that
Remington Rand could no longer justify our existence here, and
might move our entire operation into some of the I/., million square
feet of empty plant they now have at Elmira that was created
when the union demands forced them to move the portable divi-
sion to Europe or get out of the business.
A careful review of the speech evidences a design to create and instill
in the minds of the employees the futility of selecting the Union- as
their collective-bargaining representative=and a fear of economic suf-
fering and loss of benefits as a result of such selection. This con-
clusion becomes more pronounced when the implications of plant clos-
ing contained in Akers' speech are viewed in context with the other
threats by Respondent's supervisors that the plant would close if the
Union came in, threats which we find constitute independent 8 (a) (1)
violations. In such circumstances, we find that Respondent violated
Section 8(a) (1) of the Act when Akers impliedly threatened that if
the employees selected the Union as their collective-bargaining repre-
sentative, Respondent would close the plant.'
2. We also find merit in the General Counsel's exception to the Trial
Examiner 's ruling that Respondent did not violate that Act by virtue
of Pessa's statements to Conway and Payne on April 27, 1962.2 The
Trial Examiner categorized Pessa's statement as "friendly advice."
In our opinion, the record does not support such a finding. The very
words used clearly refute the contention that the advice was "friendly."
On the contrary, the statement in our opinion carried the implication
that Respondent was "out to get" union adherents and that any one seen
talking to union adherents would be discharged. In addition, it does
not appear that Pessa had any knowledge as to the topic being dis-
cussed , thus creating the impression by his reference to "talking union"
that talking to any employees about the Union at any time would result
' Member Rodgers agrees with the Trial Examiner that Akers' speech falls within the
purview of Section 8(c) of the Act . Consequently he would not find a violation based
upon Akers' speech
a Conway testified that Pessa ran up while he and Payne were talking and said* "God
damn it to hell, what are you trying to do , get you both fired9 If Harry Young sees you
talking to Leonard he will swear you are talking Union The Company has got to be
careful and so does the Union."
1054 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in a discharge. In such circumstances, and when the statement is
viewed in context with Respondent's other 8 (a) (1) conduct, we find
that Pessa's statement of April 27, 1962, violated Section 8(a) (1) of
the Act.3
3. We also agree with the General Counsel and find, in disagreement
with the Trial Examiner, that James F. Lercher is a supervisor within
the meaning of Section 2(11) of the Act. The record shows that
Lercher is the only leadman assigned to the night shift, that he
receives considerably more pay than the other employees on the night
shift, that he has the authority to assign and check work, and that he
has the authority to send an employee home for the remainder of
the workday for infractions of the Respondent's safety rules. In our
opinion, the record adequately supports the conclusion that Lercher
responsibly directs the work of the approximately 25 employees work-
ing on the night shift. Further, to find that Lercher is not a supervisor
would result in approximately 25 employees working the night shift
without any responsible supervisory representative of Respondent
present during the major portion of the shift. In such circumstances,
we find that Lercher is a supervisor within the meaning of the Act.
Having found Lercher to be a supervisor, we find that Respondent,
by Lercher's statements to Couch and Kirkland that the plant would
close if the Union came in and that the "company would make a lot
of trouble for us," violated Section 8 (a) (1) of the Act. In addition, we
also find that Respondent further violated Section 8(a) (1) by
Lercher's interrogation of and statements to Billy Walker Smith on or
about May 3, 1962, inquiring as to whether Smith was "mixed up" in
the Union and threatening Smith that the Respondent was going to get
rough and that Smith might lose his job.
Moreover, even if Lercher were not a sueprvisor, we would find Re-
spondent liable for Lercher's acts. As set forth in the Intermediate
Report, Respondent authorized Lercher to act as its agent for the pur-
pose of preventing union organization of its Searcy plant, and pursu-
ant to this authorization Lercher first made threatening statements to
Couch and Kirkland. Having authorized Lercher to speak on its be-
half, Respondent was responsible for Lercher's unlawful conduct in-
cluding not only the threats made to Couch and Kirkland, but in the
absence of any evidence to show that this relationship was terminated,
Lercher's subsequent interrogation of and threats to Smith.4
3 Member Rodgers would affirm the Trial Examiner's finding that Supervisor Pessa's
statement amounted to nothing more than friendly advice. The record clearly shows that
these two employees were engaged in a conversation during working time at the work
station of one of the employees In the circumstances, Pessa's action in warning them
rather than initiating disciplinary action because of their nonattendance to work clearly
refutes any contention that he Intended to, or did interfere with, their Section 7 rights
4 Member Rodgers agrees with the finding that Lercher continued to act as an agent of
Respondent when he interrogated and threatened Smith and that Respondent violated
8(a) (1) of the Act by his conduct. In view of this finding, Member Rodgers finds it
unnecessary to pass upon Lercher's supervisory status.
REMINGTON RAND CORPORATION 1055
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner."
5 The Order and notice to all employees shall be modified by (1) deleting the period after
"representative" in paragraph 1(b) of the Order and adding the following: "and inter-
rogating their employees regarding their union affiliation in a manner constituting inter-
ference, restraint, and coercion within the meaning of Section 8(a)(1) of the Act";
(2) deleting the period after "organization" in the second paragraph of the notice and
adding the following: "or Interrogating our employees regarding their union affiliation in
a manner constituting interference, restraint, or coercion within the meaning of Section
8(a) (1) of the Act" ; and (3) Inserting the following immediately below the signature
line In the notice:
NOTE.-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended, after discharge from the Armed Forces
For the reasons stated In the dissenting opinion in Isis Plumbing & Heating Co., 138
NLRB 716, Member Rodgers would not award interest on backpay.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
STATEMENT OF THE CASE
Upon a charge filed on May 1, 1962, by the International Association of Machinists,
AFL-CIO ( hereinafter referred to as the Union ), and subsequently amended on
June 8 and 14, 1962 , the complaint herein was issued on June 14, 1962, against
Remington Rand Corporation ( hereinafter referred to as the Company or Respond-
ent) alleging that the Respondent violated and is continuing to violate Section
8(a) (1) and (3) of the National Labor Relations Act, as amended (hereinafter
referred to as the Act).' In its answer, as amended during the course of the
hearing, Respondent denied that it was guilty of any of the unfair labor practices
alleged in the complaint , as amended.
A hearing was held on July 24, 1962 , at Searcy , Arkansas , before Trial Examiner
Stanley Gilbert . All parties were represented and were given full opportunity to
examine and cross-examine witnesses , to introduce evidence bearing on the issues, to
present oral argument at the close of the hearing, and to file briefs . Oral argument
was waived by all parties , and the General Counsel and Respondent filed briefs within
the time designated therefor.
Upon the entire record in this proceeding , and upon my observation of the
demeanor of the witnesses , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent, a Delaware corporation, is engaged in the manufacture of adding
machines and cash registers in the plant involved herein which is located at Searcy,
Arkansas. During the 12 months preceding the issuance of the complaint, a repre-
sentative period, Respondent in the course of its operations at said plant purchased
and received materials and supplies valued in excess of $50,000 directly from
sources outside the State of Arkansas, and, during the same period, sold and shipped
from said plant finished products valued in excess of $50,000 directly to points
outside said State.
As is admitted by Respondent, it is an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
As is admitted by Respondent, the Union is a labor organization within the
meaning of Section 2 (5) of the Act.
1 During the course of the hearing the complaint was amended, upon motion granted
by me, by adding an additional allegation of a violation of Section 8(a) (1).
1056 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE UNFAIR LABOR PRACTICES
In essence, it is alleged that Respondent violated Section 8(a) (1) of the Act by
the following conduct:
(1) Maintaining in effect in the plant a rule prohibiting "solicitations," "circula-
tion of petitions," and the distribution of "written or printed matter" without the prior
approval of management.
(2) Through its plant manager, John B. Akers, in a speech made by him to the
employees, threatening to close the plant if the Union succeeded in organizing them.
(3) Through James F. Lercher, as its supervisor or agent, interrogating employees
about the Union, threatening them with economic reprisals, and offering them benefits
to discourage their adherence to the Union.
(4) Through Richard Stanley Pessa, its supervisor, warning employees that they
would be discharged if found discussing union affairs.
(5) Through Bernard Bennett, its supervisor, engaging in surveillance of a union
meeting of its employees.
There is a further allegation in the complaint of unlawful interrogation of an
employee by Curtis Walker, an admitted supervisor. Although there was testimony
introduced into the record related to this allegation (that of Idabelle Davis), it
appears that it fails to support the allegation and General Counsel made no reference
in his brief to the issue raised by this allegation?
It is also alleged that Respondent violated Section 8(a)(3) and (1) of the Act
by discriminatorily demoting and reducing the wages of Billy Walker Smith, one of
its employees.
1. The no-solicitation, no-distribution rules
It was stipulated at the hearing that Respondent's booklet entitled "Personnel
Policies, Remington Rand, Division of Sperry Rand Corporation, Searcy, Arkansas,"
has been promulgated and maintained by Respondent for more than 1 year prior
to the date of the hearing, and that during that time new employees had been hired
and given a copy of the booklet. It was further stipulated that the rules and regula-
tions concerning distribution and solicitation were promulgated in 1957, and, that
although the booklet has been republished thereafter, these rules remained the same.
The first of these rules appears on the page of the handbook entitled "General
Rules" and reads as follows:
Solicitations
Solicitations, collections (including those for the purpose of purchasing gifts
for fellow employees, including supervisors) and circulation of petitions of any
nature, frequently results in favoritism, discrimination and misunderstandings.
To protect your interests and the Company's only solicitations, collections, and
petitions approved by the General Manager will be permitted.
The second rule appears on the page entitled "Rules of Personal Conduct" and reads
as follows:
The willful commission of the following acts is strictly prohibited . . . . 12.
Distributing written or printed matter on Company property without approval
from the Personnel Department.
The above rules are so broad that they would impliedly include solicitation of union
authorizations during nonworking time and distribution of union literature in non-
working areas. There is no evidence in the record to show such special circumstances
exist as would make it necessary that the rules extend to nonworking time and non-
working areas in order to maintain production or discipline.3 Therefore, I find said
rules to be invalid .4
2 Davis testified that on an occasion when Walker passed by her machine she asked him
if he had attended a union meeting , and he laughed and replied, "No, have you""
9I do not find that the statement in the first rule of the purpose thereof (to avoid
"favoritism, discrimination and misunderstandings") constitutes evidence of the necessity
of the rule to maintain discipline or production
'The Board stated in Walton Manufacturing Company, 126 NLRB 697, 698-699
Although the rule does not specifically state that the prohibition applies to the
solicitation of union memberships or the distribution of union literature, it must be
construed as having such application, in view of its all-inclusive prohibition of
"solicitation" and "circulating ," and its implied description of union solicitation and
distribution of union literature. Moreover, as the rule does not purport in any way
to limit the prohibition to working time, It must be construed as also applying to the
REMINGTON RAND CORPORATION 1057
Respondent points out that there is no evidence that the Respondent enforced the
rules in a discriminatory fashion and from this argues that, therefore, no unfair labor
practice has been proved. This argument does not meet the issue raised herein, but is
predicated on the assumption that the rules involved herein are valid. The issue herein
is whether the rules are valid, not whether valid rules have been discriminatory en-
forced. Neither does there appear to be merit in the point made by Respondent that
the rules provide for suspension of their prohibition if prior approval is obtained from
management. In J. R. Simplot Company Food Processing Division, 137 NLRB 1552,
the Board, in considering the argument that a rule is valid because it permits solicita-
tion, if authorized, stated, "This position proceeds on an erroneous assumption that
an Employer can predicate the exercise of a Section 7 right upon its own
authorization."
2. The speech by Akers
It was stipulated at the hearing that General Counsel's Exhibit No. 2 is a true and
correct copy of a speech delivered verbatim on April 24, 1962, by John B. Akers,
Respondent's plant manager, to both shifts of production and maintenance employees
on company property and during working hours.
General Counsel contends that Akers "overstepped" the privilege afforded by
Section 8(c) of the Act by the following statement:
Therefore, I believe you must strongly resist this organizing effort, because if you
allow a union to come in and dissipate the advantages we now enjoy at this loca-
tion, it could very well be that Remington Rand could no longer justify our
existence here, and might move our entire operation into some of the i/2 million
square feet of empty plant they now have at Elmira that was created when the
union demands forced them to move the portable division to Europe or get out
of the business.
In his speech Akers outlined in considerable detail the advantages and disadvantages
to the Company in operating the plant at Searcy, Arkansas. The only advantage
afforded the Company, according to Akers, is the flexibility in job classifications, and
he predicted that, upon the advent of the Union, "We will lose the flexibility lust men-
tioned that has been a major key to our success." In support of this prediction he
stated that unions "like" strict adherence to job classifications.
Undoubtedly the speech was carefully worded as a statement of opinion and an
economic prediction, and I do not find, nor does General Counsel contend, that it con-
tains any misrepresentation of fact. In essence, it conveys to the employs this mes-
sage: If you choose to have the Union represent you, it will very likely demand strict
adherence to job classifications, and the Company might have to move its operations
from Searcy, because it would not find it economically "justified" to continue opera-
tions in this location, if it be required to accede to the Union's demand. I do not
find, and apparently General Counsel does not contend, that this much of Akers'
message is violative of Section 8(a)(1). Bilton Insulation, Inc., 129 NLRB 1296.5
However, General Counsel does contend that the reference to the Elmira plant
being vacant because "union demands forced them [the Company] to move .. .
,or get out of the business" constituted a threat that the same would occur if the Searcy
plant were organized. While the reference to the move from the Elmira plant was
,ostensibly offered as an explanation of why it was vacant, it was gratuitous, for there
was no need to make the explanation. Therefore, I feel it appropriate to infer that it
was intended, and could reasonably be understood, as an indication that the Company
had in the past resorted to moving out of a plant when it found it impossible to operate
there on a competitive basis under conditions demanded by a union. Obviously it
was also intended and could be reasonably understood as a parallel situation to that
which was predicted might occur at the Searcy plant. Nevertheless, I do not find this
to constitute a threat, but rather an illustration of the consequences should unioniza-
tion of the Searcy plant lead to a situation in which the Company found itself unable
employees ' nonworking time. Accordingly, we have here a no-solicitation and no-
distribution rule applicable to employees during their nonworking time, which rule is
presumptively invalid, in the absence of evidence that special circumstances make the
rule necessary in order to maintain production or discipline
See also Stoddard-Quirk Manufacturing Co., 138 NLRB 615, for Board's analysis of prin-
ciples applicable to no-solicitation and no-distribution rules.
I In the case cited the employer stated, In essence , that in the event the Union came
in and required him to grant very many additional benefits, he would be put in a non-
competitive position and have to go out of business The Board did not consider such a
statement to be violative of Section 8(a) (1), but merely an interpretation of the possible
economic consequences of unionization (which is what Akers' message appears to be)
1058 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to operate on a competitive basis upon the conditions which, it is predicted, would be
required by the Union. I do not find that the holding in the case cited in support of
this contention by General Counsel, Bridgeport Brass Company, Aluminum Division,
130 NLRB 1332, applicable to the facts herein. In that case it appears that the em-
ployer, without more explanation, posted a photograph of its closed plant with the
notation, "This was where you worked before the Union got so bad we had to leave."
In the instant case, there was a full explanation of the economic factors leading to the
implication that the same situation might develop at the Searcy plant as caused the
Company to close its Elmira plant.
Therefore, I do not find that the Company, by reason of Akers' speech, "threatened"
to close the plant in violation of Section 8(a)(1) of the Act. In any event, I do
find hereinbelow that the company did make such a threat in violation of said
section by reason of the conduct of James F. Lercher.
3. Conduct of James F. Lercher
Three employees (Benjamin Couch, Jesse B. Kirkland, and Billy Walker Smith)
testified to certain conduct of Lercher which General Counsel contends should be
found to constitute violations by the Company of Section 8 (a) (1) of the Act. The
testimony as to Lercher's conduct is not controverted, but Respondent argues that
it cannot be held responsible therefor (contending that Lercher is not a supervisor
within the meaning of the Act, and that he was not acting as its agent in the course
of the conduct involved).
Couch testified that, on or about May 1, 1962, Lercher took him to the plant
conference room where they talked for about 45 minutes (for which time, he, Couch,
was paid by the Company). The conference room cannot be used by employees
without consent of management and Lercher stated to Couch that he had obtained
the necessary permission. Kirkland testified that Lercher approached him during
working time on April 27, 1962, told him to shut off his machine, and took him into
the conference room to talk to him. (The testimony as to what was said in the
conference room is set forth hereinbelow.)
While I find it appropriate (for the reasons set forth below) that Respondent be
held responsible for Lercher's statements to which Couch and Kirkland testified, I
do not make such a finding with respect to his statements to which Smith testified,
and, therefore, will not set forth Smith's testimony of what was said to him by Lercher.
I find that Lercher, who has the classification of "leadman," cannot be considered
a supervisor within the meaning of the Act. It was stipulated that in Lercher's
department there are approximately 80 employees; that Harry Young is the super-
intendent and Stroud Jennings the assistant superintendent of the department; and
that there are 3 leadmen and 6 "set-up men." It was further stipulated that 25 men
worked on the night shift. Lercher testified that he worked mostly on the night
shift, and that one or more of the setup men work on that shift with the same authority
he has and perform the same work he does with the possible exception that, as
leadman, he has authority to send an employee home for the remainder of the
workday for infraction of company rules (apparently those pertaining to safety) .6
While he has authority to assign work, so do the setup men, and, in any event, the
assignment is of a routine nature. Most of his time is spent in production work;
he is paid on an hourly basis, has no authority to hire or fire, to alter any terms or
conditions of employment or to effectively recommend any action with respect thereto;
and he does not attend meetings of foremen and supervisors. Although for the greater
part of the time neither of the admitted department supervisors is present during the
night shift, it appears that Lercher performs his work in accordance with their in-
structions, and that on occasions he consults with the superintendent or assistant
superintendent by telephone. I do not believe that Lercher can be regarded as a
supervisor within the meaning of the Act, and it appears that neither management
nor rank-and-file employees regarded him as being on a supervisory level.?
Prior to his meetings in the conference room with Couch and Kirkland, Lercher
obtained permission from Walker (personnel manager) and Young (superintendent
of Lercher's department) to use the room to talk to some of the employees about
the Union. It is evident that Lercher made it clear to Walker and Young that he
intended to talk against the Union. They told him that they hoped that "he could
9 He testified that he did not know whether setup men have such authority, that he did
not know of any occasion when a setup man did exercise such authority, but that he did
on one occasion.
7 Kirkland testified that he did not regard Lercher as his "boss," that he did not feel he
was responsible to Lercher.
REMINGTON RAND CORPORATION 1059
do some good ." Lercher testified that he took three employees into the conference
room for the purpose he indicated to Walker and Young.
From the facts that the employees to whom Lercher talked were brought into the
conference room which is vested with the aura of management ( since it was part
of the office area and could be used only by management or with permission of man-
agement ) and that , at least in the case of Couch and Kirkland , the employees were
taken from their work and paid for the period they spent in the conference room
with Lercher , I believe it appropriate to conclude that the employees reasonably
could have assumed that Lercher was speaking for management . Furthermore, since
management gave its permission to Lercher to use the conference room and company
time for the purpose which he stated and indicated to him that they approved of his
objective , I believe it appropriate to conclude that they authorized him to take
the action he did and thereby assumed responsibility for the manner in which he
attempted to carry out his avowed purpose. Therefore , I find that Lercher acted as
agent of the Company in his meetings in the conference room with the three em-
ployees (particularly with Couch and Kirkland , there being no testimony as to what
Lercher said to the third employee ). I do not find that the circumstances under
which Lercher talked to Smith ( to which Smith testified ) warrant a finding that
Lercher was acting as agent of the Company with respect thereto or that Smith could
have reasonably understood that Lercher was speaking for management.
Couch's uncontradicted testimony as to what Lercher said to him in the conference
room is as follows:
Well, first off , he said "I don't know how you feel about the Union ," and then
at that time I told him that I had signed a Union card and had attended meetings,
and he said , "this is a serious thing and we have got to make a stand one way
or the other ." He said "I know within two years time the plant will move if
the Union comes in," and he then said he was going to talk to some of the other
guys and see how they felt about it, and he said that the Union couldn't help
us in any way." He said the Company would make a lot of trouble for us, and
that if I would go to Harry Young and tell him that I was through with the
Union that he would not hold any Union activities against me.8
Kirkland testified without contradiction to the conference room episode as follows:
Well, he [Lercher] came back to my machine and told me to shut it off and
come with him, and I went to the conference room and he sat down and he told
me that he didn't know how I felt concerning the Union , but that he wanted to
talk to me and tell me how he felt . He said that he liked his job and wanted to
keep the job and he didn 't know how I felt about mine. He said that he had
been personally told by some for the company officials that if the Union came in
that the plant would be closed down.
It is not established by the above testimony that Lercher attempted to interrogate
Couch or Kirkland as to their union sentiments or activities , but it is evident that he
threatened both Couch and Kirkland with the closing of the Searcy plant if the Union
came in and Couch with some economic reprisal if he did not cease his activities on
behalf of the Union. In the course of the hearing Respondent raised the point of
the hearsay character of Kirkland's testimony as to Lercher 's statement of what com-
pany officials told him with respect to closing the plant . While such testimony is not
admissible to prove that company officials did tell Lercher what Lercher stated to
Kirkland , it is admissible to prove that Lercher made the statement to Kirkland. It
is of no moment , in determining the coercive nature of Lercher's conduct , as an agent
of the Company, whether what he told Kirkland was true, but only whether Kirkland
could have reasonably believed it to be true ; and I find that Kirkland reasonably could
have believed the statement to be true.
Therefore, I find that the Company , through Lercher as its agent , violated Section
8(a) (1) of the Act by threatening to close the plant if the Union came in and by
threatening Couch with economic reprisal if he did not cease his activities on behalf of
the Union.
4. Conduct of Richard Stanley Pessa
Edward David Conway, Jr., a former employee of the Company , testified without
contradiction to a statement made to him on April 27, 1962 (at which time he was
still an employee ), by Richard Stanley Pessa, the Company's supervisor of inspec-
9 Harry Young is identified above as the superintendent of the department in which
Couch worked:
708-000-64-vol. 141-68
1060 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion and admittedly a supervisor within the meaning of the Act. Conway's testi-
mony is as follows:
I was on my way back from the tool room-it is in the back part of the plant-
and I stopped by to say a few words to Leonard Payne, and I was watching
his work, and he [Pessa] ran over there right quick and said, "God damn it to hell,
what are you trying to do, get both of you fired? If Harry Young sees you talking
to Leonard he will swear you are talking Union." And then he said, "The Com-
pany has got to be careful and so does the Union."
I am of the opinion that Pessa's statement was offered by way of friendly advice.
Furthermore, I am persuaded that the warning was directed at "talking Union" on com-
pany time in view of the circumstances which gave rise to the admonition and the
explanation that both the Company and the Union have to be careful. I interpret the
reference to the Union having to be careful to mean that it should take care not to
conduct its campaign in a manner which would give the Company good cause to
discharge an employee for violation of a no-solicitation rule. Therefore, I do not
consider Pessa's statement to Conway to be a threat in violation of Section 8(a)(1)
of the Act.
5. Conduct of Bernard Bennett
It is alleged that the Company, through Bernard Bennett, admittedly a supervisor
within the meaning of the Act, engaged in unlawful surveillance of a union meeting
of its employees on April 19, 1962. James Garrison, an employee, testified that on
that day he "got off work" at 4:30 p.m. and that he and another employee, James
Henderson, proceeded to the meeting which was attended by about 20 employees of
Respondent. When he and Henderson left at 6 p.m. they observed Bennett seated
in his car parked by the restaurant (Bill's Grill) which is next to the motel (Nobel
Motel) where the meeting was held.9 It appears that Bennett's car was parked about
200 to 300 feet from the motel room in which the meeting was held, and that, although
Bennett could not see the door to the room from his car, he was in a position to
recognize anyone going to or from the room. Bennett testified that he saw many of
the employees, while he was seated in his car, from a distance of about 150 to 200 feet
(including Garrison whom he identified at the hearing).
Respondent's position is that Bennett's surveillance of employees attending the
meeting was unintentional, that he was at the spot for an entirely different purpose.
According to Bennett he arrived at the spot about 4:30 p.m. It is noted that this
apparently was also about the time for which the meeting was called (according to
Garrison's testimony as to when he and Henderson went to the meeting). Bennett
testified that he had an appointment with a salesman to meet at the restaurant at 5 p in.,
and, since the salesman had not arrived, he waited for him in his car. When asked
why he did not wait in the restaurant, his explanation was that he was in his working
clothes and did not "particularly care about going in and hanging around the place"
dressed as he was. According to Bennett's testimony, after waiting for approximately
15 minutes he went to his place of business (which he runs during the hours he is not
employed by the Company) where he changed his clothes. He then returned to the
restaurant about 5 : 30 p.m . and again remained in his car for a "good half hour" until
the saleman "showed up about 6 o'clock." When he was asked why, having changed
his clothes , he did not go into the restaurant to wait for the saleman , he stated:
Well, let me put it this way. I had just as soon sit in the car and listen to the local
news on the radio if the person I am wanting to see was not there . I had no
real reason for being in Bill 's Grill until he appeared . That was my purpose in
going there anyway.
Bennett testified that he was aware of the Union 's organizational campaign when it
started in March , that thereafter he frequently heard employees discussing union
matters, and that some of them told him meetings were being held. He testified as
follows to one occasion of being informed of a meeting:
Well, one I can recall vividly and this person asked me one morning , "Say, are
you going to the Union meeting tonight?" Why he walked up and told me that,
I don 't know.
According to Bennett 's own testimony he sat in his car in a position to observe those
who were going to or coming from the meeting between 4:30 p.m. (about the time the
meeting started ) until around 6 p.m. (apparently about the time the meeting ad-
journed ) except for the period of 15 or 20 minutes during which he went to his
c It was stipulated that if Henderson were to testify , he would testify to the same facts
as did Garrison.
REMINGTON RAND CORPORATION 1061
place of business and changed his clothes , thus absenting himself at the very time
of his appointment with the salesman.
I am not persuaded that Bennett 's surveillance of the meeting was unintentional
as Respondent contends, particularly in view of the following: that it appears appro-
priate to infer that he knew the meeting was to held; that he sat in his car during
periods which were timed to enable him to see many of the employees either going
to or coming from the meeting; that although his appointment was for 5 p.m. he
arrived there a half-hour early (about the time the meeting was to start) and left
for his place of business shortly before the salesman was supposed to meet him;
and that the reasons he advanced for remaining in the car instead of waiting in the
restaurant were not persuasive (based on the nature of his reasons as well as his
demeanor in testifying thereto).
Therefore, I am led to conclude that the Respondent, through Bennett, did engage
in surveillance of a union meeting of its employees in violation of Section 8(a)( I)
of the Act.
The Violation of Section 8(a)(3)
It is alleged that Billy Walker Smith was demoted and his salary reduced because
of his union activities. Respondent admits the demotion and reduction in salary,
but denies that it was discriminatorily motivated.
Smith started working in the Searcy plant in November 1958 as a "box boy" and
then became a machine operator. It appears that the next two classifications above
that of machine operator are, first, machine operator and setup man, and, second,
the higher classification of setup man. Sometime in 1961, Smith was promoted to a
higher classification than machine operator. Smith testified that he was promoted
to the next higher classification (machine operator and setup man), but, according
to Walker, the Company's personnel manager, Smith did not go into that intermediate
classification, but was promoted to setup man. I accept Walker's version, since he,
as personnel manager, is in the better position to know what Smith's official classifica-
tion was, and the record appears to confirm this conclusion. Before being promoted
to setup man Smith was reprimanded two or three times for his slow production as
a machine operator. On at least three occasions, after he became a setup man, he
received raises of 5 cents an hour, and was told by Young, superintendent of the
department in which Smith worked, to "keep up the good work." The last of these
occasions was on February 1, 1962.
The union campaign began at the Remington Rand plant about March 20, 1962.
Smith testified that he signed a card in March attended union meetings, informed
other employees of the meetings, asked them to attend, and passed out a number of
union cards. Conway testified that, aside from himself, Smith was the most active
union adherent in the plant. For the week prior to Smith's demotion, every morning
during the coffee break , a number of employees met at Smith's machine to discuss
union organizational plans.
Young, whose decision it was to demote Smith , admitted that he had heard rumors
of union activity in April or May, had noticed unusual congregations of employees,
and had heard early in April that Smith was probably a member of the Union.
Young further testified that as many as 10 or 12 employees had volunteered informa-
tion to him concerning the union organizational campaign in the plant. James
Lercher testified that it was "general shop talk" in the plant that Billy Smith was
leading the Union.
On April 23 , 1962 , approximately a week after the union adherents had begun
meeting around Smiths ' machine and shortly after the union meeting at the Nobel
Motel (on April 19 ), Smith was demoted from setup man to machine operator.
According to Young 's testimony it appears that he did not offer an explanation to
Smith for this action . However, on April 25 , Smith had a conversation with Young,
to which Smith testified without contradiction as follows:
He came to my machine and asked me how much I was making and I said
$1.57 an hour, and he said , "Well, $1.30 an hour is all you are worth." After
we discussed this for several minutes I asked him if he meant he was going
to cut my wages 27 cents an hour , and he said, "Oh, I'm going to wait a few
days and see what happens first."
It would appear from this conversation that Young was attempting to threaten Smith
with a reduction in wages, ostensibly for poor work performance . However, in light
of all the circumstances , particularly the pay raise Young gave Smith about 3 months
earlier, I am of the opinion that Young, by the statement that he was going to wait
a few days to see what happens, had in mind that a possible change in Smith's
attitude toward the Union might affect his thoughts about what wages Smith was
1062 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
worth. There is nothing in the record to indicate what other event he could have been
awaiting which would motivate him to reduce or not to reduce Smith's wages. I do
not believe it reasonable to assume that he intended to indicate that he was waiting
to see if Smith's work improved in "a few days." Young testified that he reduced
Smith's wages some 3 weeks later because at that time he received a report on
production requirements which prompted him to decide that he did not need to
retain Smith as a setup man.
About 2 weeks after he was notified that he was demoted to machine operator,
Smith was reprimanded by Young in Walker's office for poor work performance."
Walker's testimony of what was said by Young is as follows:
. he told him in my presence that his work was very poor, that he was taking
entirely too much time on set-up and much longer than the other set-up men,
and that he would have to improve his work. I believe a week was used, a
week's time, within the next week he would have to improve or he would have
to take some definite action as far as Billy Smith was concerned because he could
not-because it wasn't fair to the other set-up men to let him slide by and not
do his work in the same manner that they were.
If Smith's demotion had been predicated on his poor work performance as a setup
man, it would appear that the reprimand would have preceded the demotion or at
least coincided with it, instead of being given 2 weeks after he had ceased performing
the duties of a setup man. In any event, since he had been demoted to machine
operator, he could not very well have demonstrated improvement in his performance
of the duties of a setup man. This fact, when considered in the context of the timing
of the reprimand and the raises Smith had received as a setup man, leads me to con-
clude that the reprimand was not made in good faith, but, rather, was an attempt to
supply justification for the action taken.
On May 14, 1962, Young notified Smith that he was reducing his wages from $1.57
per hour to $1.45 per hour. As above indicated, Young testified that he delayed re-
ducing Smith's wages until he was advised of what the production requirements would
be and could determine how many setup men he would need, and that on May 14 he
concluded he should reduce the number of setup men by one (Smith). This reason
apparently was never stated to Smith and appears to have been an afterthought, at
least with respect to the demotion, if not also with respect to the reduction of his
wages.
It does not appear that the reprimands for slowness Smith received a considerable
time before his demotion had any bearing on the demotion. The reprimands had
been with respect to his performance as a machine operator. Young testified that it
is possible for a man to be a good setup man and not a good machine operator. This
would appear to have been the case with Smith, for after he became a setup man he
received at least three 5-cent per hour raises and was told by Young to "keep up the
good work."
I am of the opinion that it is appropriate to infer that Young was aware, or
strongly suspected, that Smith was a leading figure in the Union's organizational cam-
paign. In view of Young's authorization of Lercher's use of the conference room to
dissuade union adherents and his expression of hope in Lercher's success, I believe
it appropriate to infer that Young was hostile to the Union. These inferences, con-
sidered in the context of the timing of Smith's demotion and reduction in wages
and the lack of persuasiveness of Young's explanation of the reasons therefor," lead
me to conclude that the demotion and reduction were discriminatorily motivated.ia
10 Although Smith testified that he received this reprimand on April 23, Walker placed
the date from his written office records as May 8. I am of the opinion that the written
record is more reliable than Smith's recollection. Young testified that 3 or 4 weeks
elapsed between Smith's demotion and the reduction in his wages which would confirm
Smith's testimony as to the date of his demotion.
11 This is predicated among other things, on Young's demeanor in testifying as to the
reasons, on the fact that, while Young emphasized the unsatisfactory character of Smith's
work, it appears that less than 3 months prior to the demotion he had given Smith a raise
and told him to "keep up the good work," and upon the timing of the reprimand for his
work as a setup man.
12 In reaching this conclusion I do not rely on Smith 's testimony with respect to state-
ments made to him by Lercher to the effect that he (Lercher) would "fix it up" with
Young if Smith abandoned the Union. I have not found Lercher to be a supervisor,
and there does not appear to be a sufficient basis to infer that Lercher was acting as an
agent for Respondent in making such statements , or that Young authorized or ratified
the statements.
REMINGTON RAND CORPORATION 1063
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow thereof.
V. THE REMEDY
Having found that the Respondent engaged in certain unfair labor practices, I shall
recommend that it cease and desist therefrom and that it take certain affirmative action
designed to effectuate the policies of the Act. In view of the nature of the unfair labor
practices committed and the conduct of the Respondent with respect to the attempts
of its employees to organize, it would appear that the issuance of a broad order
is warranted. -
Having found that Respondent discriminatorily demoted Billy Walker Smith and
reduced his wages, I shall recommend that it offer to Smith immediate and full rein-
statement to his former or substantially equivalent position, without prejudice to
his former rights and privileges.
It will be further recommended that Respondent make said Smith whole for any
loss of pay suffered by reason of the discrimination against him by payment to him of
a sum of money equal to the amount of wages he would have earned, but for his
wages being reduced, between the date said reduction was put into effect and the date
his rate of pay is restored to its former level together with interest thereon, as provided
below, and that the loss of pay be computed in accordance with the formula and
method prescribed by the Board in F. W. Woolworth Company, 90 NLRB 289. Gen-
eral Counsel has urged that interest at 6 percent be allowed on the backpay award.
I find that the requirement of the payment of interest as provided would be ap-
propriate. Isis Plumbing & Heating Co., 138 NLRB 716. The interest payable as
stated above, shall be computed at the rate of 6 percent per annum on the amount due
in each instance for each calendar quarter (under the Woolworth formula) beginning
with the end of the first calendar quarter and continuing for each succeeding calendar
quarter until payment of such amount is properly made.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. Respondent is an employer - engaged in commerce within the meaning of the
Act.
2. The Union is a labor organization within the meaning of the Act.
3. By continuing to maintain rules prohibiting employees from soliciting union
membership on nonworktime and circulating written or printed union material in
nonworking areas on company property , Respondent violated Section 8(a) (1) of the
Act.
4. By threatening employees with economic reprisals for activities on behalf of the
Union, and the closing of the plant , in the event the Union be selected by them as
their bargaining representative , Respondent violated Section 8(a)(1) of the Act.
5. By engaging in surveillance of its employees ' attendance of a union meeting,
Respondent violated Section 8(a) (1) of the Act
6. By demoting and reducing the wages of Billy Walker Smith , Respondent violated
Section 8 ( a) (1) and ( 3) of the Act.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law, and upon
the entire record in the case, it is recommended that the Respondent, Remington Rand
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Discouraging membership in the Union, or in any other labor organization, by
demoting or reducing the wages of any of its employees or in any other manner
discriminating against any employee or applicant for employment in regard to their
hire or tenure of employment or any term or condition thereof because of their union
affiliation or activities.
(b) Threatening employees with economic reprisals or closing of its plant should
they seek to have the Union or any other labor organization act as their collective-
bargaining representative.
(c) Engaging in surevillance of organizational activities of its employees.
1064 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Promulgating or maintaining rules prohibiting employees from soliciting union
membership on nonworking time, or circulating written or printed union material in
nonworking areas on company property.
(e) In any other manner interfering with, restraining, or coercing employees or
applicants for employment in the exercise of their right to self-organization, to form,
join, or assist any labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the purpose of collective
bargaining or other mutual aid or protection, or to refrain from any or all such
activities.
2. Take the following affirmative action designed to effectuate the policies of the
Act:
(a) Offer Billy Walker Smith reinstatement to the same or substantially equivalent
position as that which he enjoyed before he was demoted to the classification of ma-
chine operator at the rate of pay the received before his rate of pay was reduced.
(b) Make said Smith whole for losses suffered as a result of the Respondent's
discrimination against him, together with interest thereon at 6 percent per annum, as
provided in the section entitled "The Remedy."
(c) Preserve and, upon request, make available to the Board or its agents, for
examination and copying, all payroll records, social security payment records, time-
cards, personnel records and reports, and all other records relevant to a determina-
tion of the amount of backpay due under the terms of this Recommended Order.
(d) Post at its plant in Searcy, Arkansas, copies of the attached notice marked
"Appendix." 13 Copies of said notice, to be furnished by the Regional Director for
the Twenty-sixth Region, shall, after being duly signed by Respondent's representative,
be posted by it immediately upon receipt thereof, and maintained by it for at least
60 consecutive days thereafter, in conspicuous places, including all places - where
notices to employees and applicants for employment are customarily posted. Reason-
able steps shall be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify said Regional Director, in writing, within 20 days from receipt of this
Intermediate Report, what steps Respondent has taken to comply herewith.14
"In the event that this Recommended Order be adopted by the Board, the words "A.
Decision and Order" shall be substituted for the words "The Recommended Order of a
Trial Examiner" in the notice. In the further event that the Board's Order be enforced,
by a decree of a United States Court of Appeals, the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order" shall be substituted for the words
"Pursuant to a Decision and Order."
141n 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
from the date of this Order, what steps the Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board , and in order to effectuate the policies of the National Labor Relations
Act, as amended , we hereby notify our employees that:
WE WILL NOT discourage membership in International Association of Ma-
chinists , AFL-CIO , or in any other labor organization of our employees, by de-
moting or reducing the wages of any of our employees , or by discriminating in
any other manner against employees or applicants for employment, in regard to
their hire or tenure of employment or any term or condition thereof.
WE WILL NOT threaten our employees to discontinue operations or with
economic reprisals because of their membership in, or activities on behalf of, the
aforesaid Union , or any other labor organization.
WE WILL NOT engage in surveillance of the activities of our employees with
respect to the aforesaid Union , or any other labor organization.
WE WILL NOT promulgate or maintain any rule prohibiting the solicitation of
union membership on nonworktime or the circulation of written or printed
union material in nonworking areas on company property.
WE WILL NOT in any other manner interfere with , restrain , or coerce our em-
ployees in the exercise of their rights to self-organization , to form labor organi-
zations, to join or assist the aforesaid Union, or any other labor organization, to
bargain collectively through representatives of their own choosing , and to en-
gage in other concerted activities for the purposes of collective bargaining or other
mutual aid or protection, and to refrain from any and all such activities
JOHN STEPP'S FRIENDLY FORD, INC. 1065
WE WILL offer to Billy Walker Smith immediate and full reinstatement to the
position he held before he was demoted , or to a substantially equivalent position,
without prejudice to his seniority and rights and privileges at the rate he was paid
before said rate was reduced , and will make him whole for any loss of pay he may
have suffered by our discrimination against him.
All our employees are free to become , remain , or refrain from becoming or remain-
ing members of the aforesaid Union, or any other labor organization.
REMINGTON RAND CORPORATION,
Employer.
Dated------------------- By-------------------------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date of posting , and must
not be altered , defaced , or covered by any other material.
Employees may communicate directly with the Board 's Regional Office , 714 Falls
Building, 22 North Front Street , Memphis, Tennessee , Telephone No. Jackson 7-5451,
if they have any questions concerning this notice or compliance with its provisions.
John Stepp's Friendly Ford , Inc. and Teamsters Local No. 959,
International Brotherhood of Teamsters, Chauffeurs, Ware-
housemen & Helpers of America . Case No. 19-CA-2445. April
2, 1963
DECISION AND ORDER
On November 28, 1962, Trial Examiner Sidney Lindner issued his
Intermediate Report in the above-entitled proceeding, finding that
the Respondent had engaged in and was engaging in certain unfair
labor practices and recommending that it cease and desist therefrom
and take certain affirmative action, as set forth in the attached Inter-
mediate Report. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
Pursuant to the provisions of Section 3(b) of the Act, the Board
has delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Leedom and Fanning].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report and the entire record in the case, including the excep-
tions and brief, and hereby adopts the findings, conclusions, and rec-
ommendations of the Trial Examiner.
ORDER
The Board adopts as its Order the Recommended Order of the Trial
Examiner.'
'The Appendix attached to the Intermediate Report is hereby modified by adding the
following immediately below the signature line at the bottom of the notice:
NOTE).-We will notify the above-named employee if presently serving in the Armed
Forces of the United States of his right to full reinstatement upon application in
accordance with the Selective Service Act and the Universal Military Training and
Service Act of 1948, as amended , after discharge from the Armed Forces.
141 NLRB No. 94.