SNC Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Jan 21, 1969

174 N.L.R.B. 159 (N.L.R.B. 1969)

SNC MFG . CO., INC.
SNC Manufacturing Co., Inc. and International
Union of Electrical Radio & Machine Workers,
Local 806 (IUE-AFL-CIO). Cases 30-CA-738 and
30-RC-771
January 21, 1969
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On September 4, 1968, Trial Examiner Leo F.
Lightner issued his Decision in the above-entitled
proceeding, finding that Respondent had engaged in
and was engaging in certain unfair labor practices in
violation of the National Labor Relations Act, as
amended, and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision. He
also found in Case 30-RC-771, that the Respondent
interfered with a Board election held on January 10,
1968, and recommended that the election be set
aside and that case be severed. Thereafter, the
Respondent and the Union filed exceptions to the
Trial Examiner's Decision, and briefs in support of
their exceptions.
Pursuant to the provisions of Section 3(b) of the
Act, as amended, the National Labor Relations
Board has delegated its powers in connection with
these cases to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in these cases, and hereby adopts
the findings, conclusions, and recommendations of
the Trial Examiner with the following modifications.
1. The Trial Examiner found, and we agree, that
the Respondent violated Section 8(a)(1) of the Act
by promulgating and enforcing a broad
no-distribution rule which precluded employees from
distributing union literature while on nonworking
time and in nonworking areas of the plant. We also
agree with the Trial Examiner that threats of
disciplinary action for distributing literature in the
plant constituted interference, restraint, and
coercion, and were violative of Section 8(a)(1). We
further agree with the Trial Examiner's finding, for
the reasons stated in his Decision,' that the
suspension of employee Towns was motivated by
antiunion considerations and in violation of Section
8(a)(3) and (1) of the Act.
2. The Union excepts to the Trial Examiner's
failure to find that Respondent's posted "no
solicitation" rule was invalid. We find merit in this
exception. The rule, admittedly posted from January
In reaching our conclusions, unlike the Trial Examiner , we do not rely
on the conduct of Respondent found unlawful in a prior case.
159
1967 until the day prior to the hearing, reads:
It is the rule of the Company that unauthorized
solicitations of employees or customers upon the
premises or in the area of the plant by or on
behalf of any club, society, labor union, religious
organization, political party or similar association
is strictly prohibited. The prohibition applies both
to employees on working time and to outsiders,
and it covers soliciting in any form, whether for
membership, for subscription, or for payment of
money.
Respondent acknowledged that it invoked this
rule in prohibiting the distribution of literature and
claims that it ceased distribution of Company
literature in the plant pursuant to this rule.
However, the rule on its face is too broad, in that it
prohibits employee solicitation anywhere on
Company property, and is therefore presumptively
invalid. Respondent has introduced no evidence
which justifies a restriction on employee solicitation
during an employee's own time. Therefore, we find
that although the original promulgation occurred
more than 6 months prior to the filing of charges,
the continued maintenance of the rule as posted,
within the 10(b) period, violated Section 8(a)(1) of
the Act.2
3. The Trial Examiner found that the Respondent
interfered with, restrained, and coerced its
employees by granting a wage increase on December
9, payable December 15, during the pendency of an
election without adequate justification or
explanation. On the facts of this case, we do not
agree.
The record shows that Plant Manager Esslinger
approached Respondent's President Vette, sometime
in early September 1967 regarding the increase in
the minimum wage law to take effect in February
1968. Esslinger proposed that Respondent use the
method the company had used in the past, which
included achieving the minimum prior to the
effective date of the new Federal law and
maintaining wage differentials in the plant. By way
of explanation, Esslinger pointed out that twice in
the past Respondent had achieved the minimums
required by law at least 6 months prior to the
effective date. Vette also accepted Esslinger's
recommendation that Respondent accomplish the
raises in groups rather than all in one pay period,
and directed Esslinger to implement his proposals
for all wage increases prior to the end of 1967.
In implementing its decision to grant increases in
groups, Respondent began its program in the pay
period October 1 to 14, 1967, when five employees
received increases of 6 to 8 cents per hour.
Thereafter, in successive pay periods, Respondent
granted increases of from 5 to 8 cents per hour to
58 employees during the October 15 to 28 pay
'Mason & HangerSilas Mason Co, Inc, 167 NLRB No 122, enfd in
this respect 405 F 2d 1 (C.A. 5, 1968), cf Campbell Soup Co, 159 NLRB
74, 82, enfd in this respect 380 F 2d 372, 373 (C.A 5, 1967)
174 NLRB No. 31
160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
period: granted increases of the same amounts to 67
employees during the October 29 to November 11
pay period; granted 21 employees raises of from 5
to 8 cents per hour during the November 12 to 25
pay period; and granted 50 employees raises in the
November 26 to December 9 pay period.3 None of
the raises were announced and none were merit
increases. However, at a meeting in the Board's
Regional Office, subsequent to the last pay period
but prior to issuance of the employees' checks, the
company representative advised the union
representative that a substantial number of increases
were being effected. The Union, at that time, did
not object. Esslinger's testimony, which is
uncontroverted, explains that Respondent granted
all employees increases in order to maintain
differentials and to meet competition in the labor
market, in addition to advancing minimum wages so
that all rates would equal or exceed the new
minimum wage.
The General Counsel alleged that only the raises
in the last pay period were violative of the Act. In
support of that allegation, the General Counsel
introduced only a summary of Respondent's payroll
records for late 1967. The Trial Examiner analyzed
those records, found some discrepancies, rejected
Respondent's explanations, and concluded that
Respondent granted the last increases during the
pendency of an election without adequate
justification or explanation, and thereby violated
Section 8(a)(1).
Contrary to the Trial Examiner, we do not believe
that the final wage increase violated Section 8(a)(1).
In the first place, according to uncontradicted
testimony, the decision to increase wages occurred 3
months prior to the filing of the Union's petition.
Pursuant to that decision, numerous increases, not
alleged to be violative of the Act, had already been
implemented before the increase in question, the last
of the series, which was paid after the petition was
filed. Under these circumstances, it has not been
shown that the decision to grant these wage benefits
was prompted by the Union's presence. Nor can any
inference of employer misconduct be drawn from
the time of the final payment. Further, we cannot
agree with the Trial Examiner's analysis of the
payroll data. Thus, almost all employees received at
least one wage increase4 and the increases were
generally 5 to 8 cents per hour, although some
employees on the night shift received increases of 12
cents per hour. Those employees below the new
minimum wage advanced in separate steps to
achieve the new required minimum or slightly
above. Finally, in analyzing the payroll data, it
appears to us that the increases, in most part,
uniformly followed steps within the Respondent's
wage program.5 We find, from the uncontroverted
evidence and under all the circumstances, that
Respondent's grants of wage increases were in
The Union filed its petition December 4
implementation of its decision made prior to the
Union's organizational efforts to achieve the new
minimum wage rates required by Federal law before
the effective date thereof, and in doing so,
Respondent attempted to maintain wage
differentials. In addition, the evidence revealed that
Respondent's competitors for the labor market had
already advanced their wage rates at the time
Respondent initiated its increases. Therefore, we
cannot find, as did the Trial Examiner, that
Respondent failed adequately to explain and justify
its grant of wage benefits. Accordingly, we shall
dismiss the allegation that Respondent violated
Section 8(a)(1) of the Act by granting wage
increases.6
4. We agree with the Trial Examiner, that the
election held on January 10, 1968, in Case
30-RC-771, be set aside and that case be severed
and remanded to the Regional Director for Region
30.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby adopts as its Order the
Recommended Order of the Trial Examiner, as
modified herein,, and orders that the Respondent,
SNC Manufacturing Co., Inc., Oshkosh, Wisconsin,
its officers, agents, successors, and assigns, shall
take the action set forth in the Trial Examiner's
Recommended Order, as so modified:
1. Delete the present paragraph 1(b), and
substitute therefor the following paragraph 1(b):
(b) Maintaining or enforcing any rule which
prohibits Union solicitation on Company property
on the employees' own time.
2. Delete the second indented paragraph of the
notice marked "Appendix," and substitute therefor
the following-
WE WILL NOT maintain or enforce any rule
which prohibits Union solicitation on Company
property during the nonwork time of the
employees.
IT IS HEREBY ORDERED that the complaint be, and
it hereby is, dismissed insofar as it alleges violations
of the Act not found herein.
IT IS HEREBY FURTHER ORDERED that the election,
held on January 10, 1968 in Case 30-RC-771, be,
and it hereby is, set aside, and that case be
remanded to the Regional Director for Region 30
for the purpose of conducting a new election at such
It is not significant to us that the witnesses appearing for the General
Counsel received but one increase , as this was true of the majority of
employees
'As pointed out in In . 12 of the Trial Examiner's Decision, five
employees received an additional 5 cent increase in the last pay period We
note, however, that according to the record , one of these employees,
Chellow, was active in passing out union literature in the women's
lockerroom.
'See, Fashion Fair , Inc., 173 NLRB No. 28, Oxco Brush Division of
Vistron Corp, 171 NLRB No. 70.
SNC MFG. CO., INC.
time as he deems circumstances permit free choice
of a bargaining representative.
[DIRECTION OF SECOND ELECTION7
omitted from publication.]
'An election eligibility list, containing the names and addresses of all the
eligible voters , must be filed by the Employer with the Regional Director
for Region 30 within 7 days after the date of issuance of the Notice of
Second Election by the Regional Director The Regional Director shall
make the list available to all parties to the election . No extension of time
to file this list shall be granted by the Regional Director except in
extraordinary circumstances. Failure to comply with this requirement shall
be grounds for setting aside the election whenever proper objections are
filed. Excelsior Underwear Inc, 156 NLRB 1236
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
LEO F. LIGHTNER, Trial Examiner: This proceeding was
heard before me in Oshkosh, Wisconsin, on May 21,
1968, on the complaint of General Counsel and the answer
of SNC Manufacturing Co., 'Inc., herein called the
Respondent.' The complaint alleges violation of Section
8(a)(3) and (1) and Section 2(6) and (7) of the Labor
Management Relations Act, 1947, as amended, 61 Stat.
136, herein called the Act. Resolution of the validity of
the objections is set forth infra. The parties waived oral
argument and briefs filed by the General Counsel and the
Respondent, and a brief filed on behalf of the Petitioner
addressed to the Objections, have been carefully
considered.
Upon the entire record, and from my observation of the
witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent is an Illinois corporation , engaged in the
manufacture and sale of transformers, maintaining its
offices and plant in Oshkosh , Wisconsin : During the year
preceding the issuance of the complaint, a representative
-period , Respondent sold and shipped , in interstate
commerce , products valued in excess of $50,000, to points
outside the State of Wisconsin . The complaint alleges, the
answer admits, and I find, that the Respondent is an
employer engaged in commerce and in activities affecting
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
II. THE LABOR ORGANIZATION INVOLVED
International Union of Electrical, Radio & Machine
Workers, Local 806, (IUE-AFL-CIO), herein called the
Union, is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Issues
The principal issues raised by the complaint and
answer, and litigated at the hearing, are whether the
'A charge was filed on January 15 , 1968, and the complaint was issued
on March 11 , 1968, On March 11 , 1968, the Regional Director for Region
30, issued an Order consolidating the hearing on Petitioner's objections to
an election , held on January 10, 1968,, with the hearing of the issues raised
by the complaint.
161
Respondent: (1) Engaged in conduct constituting
interference, restraint, and coercion, therefore violative of
Section 8(a)(1) of the Act by, (a) granting a wage increase
on or about December 9, 1967, or (b) by the conduct of
Superintendent Esslinger, in ordering employees not to
distribute union literature anywhere in the plant or on
company property, on November 30, 1967, and January 4
and 9, 1968, or (c) by the conduct of Foremen Crahen and
Ziebell, in ordering employees not to distribute union
literature anywhere in the plant on January 4, 1968, or (d)
by Superintendent Esslinger, on November 30, 1967, or
January 4, 1968, or Foreman Crahen, on the latter date,
threatening employees with disciplinary action for
distributing literature in the plant during non-worktime, or
(e) by Respondent discriminatorily applying a
no-solicitation rule, since on or about November 30, 1967;
or whether Respondent discriminatorily suspended Dawn
Towns, on January 9, 1968, in contravention of the
provisions of Section 8(a)(3) and (1). Respondent denies
the commission of any unfair labor practice and asserts
that the layoff was by reason of insubordination.
Identical issues are raised as objections to conduct
affecting the results of the election and are set forth and
considered infra.
Supervisory Personnel
The complaint alleges, the answer admits, and I find,
that John Vette, president, Daniel Esslinger, plant
superintendent, James Crahen and Charles Ziebell,
foremen, are supervisors within the meaning of Section
2(11) of the Act, and were agents of the Respondent, at
all times material herein.
Background
Commencing in February, 1963, the Union undertook
the organization of Respondent's employees.
Subsequently, on June 26, 1964, the Board, having found
that Respondent had engaged in unfair labor practices,
within the meaning of Section 8(a)(1), (2), and (5), issued
a Bernel Foam' type order. Thereafter, Respondent and
the Union entered into a collective-bargaining agreement,
which, by its terms, became effective July 1, 1966, and
provided for its expiration on July 1, 1967, upon
appropriate notice of termination, by either party, which
notice was, in fact, given by the Union. Respondent
challenged the continued existence of the Union's majority
representation, and, on December 4, 1967, the Union filed
a Petition for Election, in Case 30-RC-771. A Stipulation
for Certification Upon Consent Election was executed by
the parties and approved by the Regional Director, on
December 19, 1967. A secret ballot election was
conducted by the Regional Director on January 10, 1968.
Petitioner filed timely objections to conduct affecting the
results of the election, on January 15, 1968.
On March 11, 1968, the Regional Director issued a
Report finding, inter alia, that the issues raised by
petitioner's objections, as modified, involve the same
factual and credibility issues involved in an unfair labor
practice complaint, issued the same day, and Ordered
Consolidation.
The Regional Director's Report reflects that there were
approximately 150 eligible voters who cast 64 votes for
petitioner, 68 votes against petitioner, 4 challenged ballots,
'Bernet Foam Products Co., Inc, 146 NLRB 1277
162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and 1 void ballot. In the earlier case the Board found that
the unit was comprised of a total of 76 employees.
Interference, Restraint, and Coercion
A. Wage Increases
It is alleged that Respondent, on or about December 9,
1967, granted wage increases to discourage employees
from becoming members of, giving assistance to, or voting
for, the Union.
Respondent's payroll records, for the latter part of 1967
reflect: the hourly rate of each employee, in the payroll
period of September 17 to 30; that 5 employees received
pay increases in the pay period of October I to 14, 3 of 6
cents per hour and 2 of 8 cents per hour; that 58
employees received increases in the pay period of October
15 to 28, 57 of them being between 5 and 7 cents per hour
and 1 of 8 cents; in the pay period of October 29 to
November 11, 67 employees received increases , 60 being
between 5 and 7 cents per hour and seven receiving 8
cents per hour; in the pay period of November 12 to 25,
21 received increases, 18 being between 5 and 7 cents per
hour and 3 of 8 cents per hour. Thus, of the 157
employees, listed as being employed at least some of the
time between September 17 and November 26,' 146
received a raise in one of the four pay periods preceding
the payroll period complained of; i e November 26 to
December 9.4 Eight employees each received two pay
raises, in the first four pay periods.'
General Counsel's complaint is addressed to the 476
who were given raises in the pay period from November
26 to December 9, payable December 15. Thirty-seven of
these had received one or more pay raises, of 5 cents per
hour or more, each, in one or more, of the previous pay
periods described.7 In fact, five of those named had
received two pay raises in the previous pay periods and
received a third pay raise in the period of November 26 to
December 9.' While the bulk of these raises were between
5 and 7 cents per hour, the reason for granting six
employees an increase of 12 cents per hour is obscure.'
Since Respondent asserts the increase in the Minimum
Wage Act, as justification, it is appropriate to note that
only seven of these employees were below the $1.60
minimum rate at the time of this pay increase 11
'I exclude Bricci and Gavin, who appear to have been hired in the pay
period of November 26 to December 9
4The 11 who received no raise included 3, Ebel, Schilling, and Stadler
who received no increase at any time ; Caldwell and Finch apparently hired
initially in the October 29 to November 11 period, and raised from $1.47
to $1.60, in the pay period complained of, J. Raddatz , apparently
separated in October ; and Brandt , F Jones, Kallin , Kempinger and
Rosenthal , each of whom received a single 5- or 6-cent raise , except
Kempinger who received 12 cents, in the period which began November 26.
'Berndt, Gelhar , Hassler and Weigand were increased, in two steps, from
$1,40 to $1.60 Stewart , in two steps , from $1 40 to $1 53 Binder, Lloyd,
and Ratchman , in two steps , from $1 . 76 to $1.90.
'I have excluded Brehmer, whose raise of 10 cents per hour , as explained
by Respondent , was clearly marked as a night shift differential I have also
excluded Bricci and Gavin apparently hired on or after November 26
Adams A Jones
Appleby Ford (9)
Bahr Kaminski
Bergman Klotzbuecher
Berndt Lueck
Chellow Mathe
Davis Novis
Deasteal (9) Nimmer
Eagen Oilman
Eberhart A. Potratz
Frank Kresal (f)
Plant Superintendent Esslinger has been in that position
for 7 years and is in charge of personnel and production,
including the administration of a wage plan in the
production unit. Esslinger asserted that it had been
Respondent's policy, at the request of President Vette to
achieve the minimums required by Federal Law prior to
the effective date of each By way of explanation,
Esslinger asserted that when the minimum became $1.25
effective in September, 1963, it was achieved, by
Respondent, in May. When the minimum was raised to
$1.40, effective February 1, 1967, Respondent achieved it
in July 1966. Esslinger asserted in view of the required
increase to $1.60, effective February 1, 1968, he had a
discussion with Vette in September 1967, and it was
determined to use the method they had in the past and
accomplish it before the effective date. However, it was
determined to accomplish it in groups rather than all in
one pay period. In addition, Esslinger asserted
Respondent was faced with competition for the female
help available in Oshkosh, by such firms as Victory Lite
Candle Co., Hoffmaster Co., Miles-Kimball, and
Standard Kollsman Respondent made no explanation of
the reason for the additional raises for the 37 listed as
having received raises. Only 10 who had not received
previous raises, were given raises in this period."
Esslinger's effort to explain the discrepancy in the
amount of the raise to each employee, including the raises
in the November 26 pay period, as an effort to maintain
differentials is patently erroneous. Esslinger asserted those
in the higher pay grades received only one increase while,
inferentially, those in the lower grades received multiple
increases. In its brief, Respondent describes the last
increase as the final "installment" of the plantwide
increase, and as an across-the-board increase - "past
practice dictated the maintenance of the wage differentials
within the plant." The contrary appears to be true.12
William Daseke, executive vice president and chief
engineer, asserted that the Union was advised, at a
meeting at the Board's Regional Office, on December 13,
that a substantial number of increases were being placed
in effect, by reason of the minimum wage law changes and
to remain competitive in the labor market. He
acknowledged these raises had not been announced to the
employees. Daseke asserted these were general increases,
not merit increases.
Gelhar Sira
Glebke Strandlie
Gomall Stewart
Hassler Thresher
Hazelwood Vaughn
Herzig Washmeski
Horne Weigand
Wischow
'Berndt, Gelhar , Hassler, Stewart , and Weigand , resulting in an hourly
rate of $1.65 for each.
'Kempinger , Klotzbuecher , Novis, Scheinpflug , Sira, and Stewart Those
named were increased from $1 63 to $ 1 75, except Scheinpflug and Stewart
whose new rate was $1.65
"Brandt , Caldwell, Finch, Mathwig, Oswald , Scheinpflug , and Stewart,
most of whom were new employees.
"Brandt, Caldwell , Finch, F Jones , Kallin, Kempinger , Mathwig,
Oswald, Rosenthal , and Scheinpflug
'=E g., on September 17, hourly rates varied from $1.40 to $2.79, 28
employees had a rate of $1.59, all received a 6-cent increase to $1 65 in the
October 15 to 28 pay period Five of these , for unexplained reasons,
received an additional 5-cent raise in the November 26 to December 9 pay
period Why Chellow, Glebke, Herzig, Home, and Ford , were so singled
out is unexplained.
SNC MFG. CO., INC.
B. Events Related to the Distribution of Union
Literature on November 30, 1967, and January 4,
1968
It ns undisputed that, commencing January 3, 1967, and
continuing until the day preceding the hearing herein,
May 20, 1968, the following notice appeared on
Respondent's bulletin board, on a sheet of Respondent's
stationery, over the signature of Dan I. Esslinger, plant
superintendent, under the title of "No Solicitation Rules":
It is the rule of the Company that unauthorized
solicitations of employees or customers upon the
premises or in the area of the plant by or on behalf of
any club, society, labor union, religious organization,
political party or similar association is strictly
prohibited. The prohibition applies both to employees
on working time and to outsiders, and it covers
soliciting in any form, whether for membership, for
subscription, or for payment of money.
Clifford Kinderman, an employee in the plastics
department, since October 1966, credibly related that on
Thursday, November 30, 1967, at about 7:35 a.m., he was
standing outside the building, adjacent to the employees
entrance, distributing an announcement of a union
meeting scheduled for the following Sunday. Plant
Superintendent Esslinger and Foreman Ziebell approached
him. 'Esslinger advised Kinderman that he was not allowed
to distribute literature on company property and should
go out on the road. Kinderman complied with Esslinger's
instructions. Kinderman whose work hours at that time
were 8 a.m. to 4:30 p.m., acknowledged that Iae had
punched the timeclock at approximately 7:25 a.m., prior
to engaging in his distribution activity. After Kinderman
had reported to his work station, the same morning,
Esslinger approached him and inquired "Don't you think
you're getting yourself in a little deep?" Kinderman made
no response. Kinderman acknowledged that Esslinger also
reminded him of a company rule about punching in and
then leaving the Company premises, and acknowledged
leaving the Company premises after being told to do so by
Esslinger."
It appears undisputed that Respondent's employees
have a morning break period, approximating 10 minutes,
which is staggered, and a lunch period which is also
staggered. However, the afternoon break period, which
commences at 2:30, for a period of 10 minutes, is taken
by all employees at the same time. It appears undisputed
that Marie Beyer, an employee for approximately 13
years, presently a tester, is also president of Local 806 and
chairman of the organizing committee. Dawn Towns, has
been employed for approximately 5 years, is also a tester
in the assembly department, and has been chief steward
for the Union for 5 years. While Beyer asserted that she
and Towns distributed additional copies of the notice
distributed by Kinderman, before work that morning, the
distribution by Beyer and Towns was during the afternoon
break the same day and was made in the plastics
department, the shipping area, and the subassembly and
assembly departments, to employees who were either
sitting; at their work stations or walking around, there is
no evidence that this activity was observed by
Respondent's managerial employees.
"Foreman Ziebell was not called as a witness While Esslinger appeared
as a witness he was not questioned about the recitation of Kinderman,
relative to these events of November 30 However, he acknowledged
observing distribution on that date.
163
Beyer related that on December 14, during the 2:30
p.m. break period, she, Towns and Myrtle Kaul
distributed the lower portion of a union notice of a
meeting to be held on Sunday, December 17, and this
distribution was likewise made in work areas However,
there is no evidence that any managerial employee was
aware of this distribution. It appears undisputed that the
upper portion of the same notice was likewise distributed,
during the break period of December 20, and related to a
special meeting relative to the NLRB election, scheduled
for January 10, 1968. Similarly there is no evidence of any
management employee being aware of this distribution
Beyer credibly related that a Christmas Scroll, with a
Christmas message to all employees and their families,
from the officers, stewards and Executive Board of Local
806, was distributed near the timeclock, by Beyer and
Towns, before work, on December 22, 1967. They
distributed approximately 100 copies, including a copy
given to Plant Superintendent Esslingen. Esslinger
acknowledged receiving a copy of the Christmas message
from either Beyer or Towns. He did not object to the
distribution of it, explaining, "It was a nice thing. It was
just before Christmas. It was okay."
Beyer related that on Thursday, January 4, 1968,
during the 2 30 p.m. break period, she distributed 20 or 25
copies of a union notice of a meeting scheduled for
Sunday, January 7, in the plastics department, shipping
area and subassembly, to employees who were sitting at
their work benches or walking around. While she was so
engaged in the subassembly department, Foreman Ziebeli
advised her, "Marie, you are, not allowed to pass out
Union literature in the plant on Danny's [Esslingen]
orders." Beyer asserted that she responded, "Well, Danny
knows that we can pass out literature on our own time."
Ziebell responded, "Well, Marie, I have to take orders."
Beyer responded that she understood and returned to her
work area. As Beyer was placing the balance of the
literature in her possession into a box, she was approached
by Esslinger, who advised her, "Marie, you are not to
pass out literature in the building." Beyer related that she
responded, "Well, Danny, you know we can pass them out
on our own time." Esslinger shook his head in the
negative. Beyer related that she then asserted, "Well, you
can check with the law that we aren't doing anything
wrong." Esslinger again shook his head in the negative,
and advised, "I am making a statement The next time
that anyone is caught passing out literature in the building
they will be asked to leave." Beyer asserted that Towns,
Florence Jones, and other female employees were present
during this conversation. Beyer related that the employees
had been instructed by the union representatives, Kitzinger
and Burden, that they were not to distribute literature
during worktime. Towns, who asserted that she was
present, during the exchange between Beyer and Esslinger,
corroborated the assertions of Beyer, particularly in
relation to his statement that anyone passing union
literature in the plant would be asked to leave the plant."
Esslinger corroborated the assertion of Beyer, asserting,
"I believe this was the date [January 4] that I told Marie
[Beyer] and Dawn [Towns] to stop distributing literature
in the plant." Esslinger acknowledged that they complied
with that request.
Myrtle Kaul has been employed, in the plastics
department, for approximately 2 years. On January 4,
while she was employed in the lead room, and during the
2.30 break, Kaul passed out leaflets in' the lead
"Florence Jones did not appear as a witness
164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
department, approximately six in number, to several girls
who were sitting at a table looking at catalogues. It is
undisputed that this is a work area. She approached
Foreman Ziebell, who was standing at the entrance to his
office, and inquired if he wanted a copy. Ziebell
responded, "No, I am sorry, you can't pass those out,
Myrtle, on orders of Danny Esslinger." Kaul responded
that she would take the remaining pamphlets back where
she got them.' S
Lucille Schessler has been employed for approximately
6 1/2 years in plastics assembly, and is secretary-treasurer
of the Union. Schessler credibly related that, on January
4, during the' 2:30 break period, she distributed
approximately 20 copies of the union pamphlet, in the
aisles of the plastics department. At the end of the break
period, after she had returned to work, Schessler observed
Esslinger talking to her foreman, Crahen. Crahen then
approached 'Schessler and, according to Schessler, advised
her that Esslinger had advised Crahen that Schessler was
not supposed to pass out leaflets in the plant, "and the
next time that I did it I would be subject to disciplinary
action." Crahen then explained that Esslinger had talked
to a lawyer about the matter. Schessler responded, "Well,
Marie [Beyer] said that we could pass leaflets out in the
plant." Schessler then inquired as to what the lawyer had
said and was advised by Crahen that he did not know.
Crahen then advised Schessler that she should not get
mixed up in this union thing. Schessler then advised
Crahen that if he did not want her to pass out any more
leaflets that she would not do so. Crahen did not appear
as a witness and Schessler's recitation, which stands
undisputed, is credited.
The Events of January 9 - Suspension of Towns
Towns credibly related that on January 9, during the
2:30 break period, she was passing out a Union bulletin,
which urged the employees to vote "yes" in the election
scheduled for the following day. Towns was standing in a
passageway adjacent to the men's locker room and passed
out approximately 10 copies of the leaflet. Esslinger
approached and inquired as to what Towns was doing.
Towns responded that she was passing out leaflets and
inquired if he wished a copy. Esslinger responded in the
negative and inquired, "What did I say the other day?"
When Towns did not respond, Esslinger repeated the
question, then added, "If anybody was passing leaflets in
the plant I would ask them to leave. I am asking you to
leave." Towns inquired, "Am I fired?" Eslinger
responded, "No, I just want you to leave the plant."
Towns again asked if she was fired. Esslinger then
responded, "No, I want you to leave the plant as
disciplinary action. You can come back in the morning."
Towns responded, "Okay." Towns proceeded to the girls
locker room, where she found Beyer and Rita Chellow
passing out leaflets. When Towns put her jacket on, Beyer
inquired as to where she was going, and Towns explained
to Beyer and the others present that she had been told by
Esslmger to leave. Beyer advised Towns that she should
not leave because the law said that she could pass out
union literature in a non-working area on her own time.
Towns placed her jacket back on the hanger and, when
the bell rang at 2:40, returned to work. At approximately
3.20 p.m. Esslinger came to her work station and advised
Towns that he thought he had asked her to leave. She
"Ziebell did not appear as a witness and I credit the undisputed
assertions of Kaul
acknowledged that he had. He then inquired if she was
not going to leave. She responded that she did not do
anything wrong Esslinger then advised that he was giving
her 5 minutes to leave the plant. Towns again inquired if
she was being fired. Esslinger responded, "No, I am
asking you to leave the plant as a disciplinary action "
Esslinger then advised her that if she did not leave the
plant she would be discharged. Towns complied with
Esslinger's request.
Esslinger's version of his conversation with Towns, on
January 9, is not at substantial variance with the
recitation of Towns. Esslinger asserted that he asked
Towns if she remembered the statement that he had made
to her a few days before. Esslinger asserted, "I don't
recall the exact wording, but it was fairly accurate in the
testimony this morning [of Towns] that if she did this
again or if anyone did this again, they would be charged
with a disciplinary action and asked to leave the
premises." Esslinger acknowledged advising Towns that he
was asking her to leave. Esslinger, at variance with
Towns, asserted that Towns responded, "You'll have to
fire me first." Esslinger asserted that he responded, "No,
I won't fire you, for a thing such as this, I'm just asking
you, to leave." Esslinger asserted that she raised her voice
and repeated that he would have to fire her first. Esslinger
asserted that he again responded in the negative, that
Towns then stated that she had a legal right to do what
she was doing and he advised her that he was ordering her
to leave, and assumed that she was complying. An hour
later, he found her still at her work station and again
requested her to leave. Esslinger asserted that Towns
responded that she did not have to leave. Thereupon,
Esslinger advised her that if she did not leave within 5
minutes she would be discharged for insubordination.
Towns denied having raised her voice on either occasion,
and denied that Esslinger raised his voice. Towns also
denied advising Esslinger that he would have to fire her
before she would leave the plant On the basis of
demeanor and on the basis of the undisputed facts,
particularly the fact that Towns did leave the plant
without being fired, and by reason of certain
inconsistencies which I find in the testimony of Esslinger,
I credit Towns where her testimony is at variance with
that of Esslinger. Janice Kallin, an employee in the
assembly department, was with Towns throughout the
initial episode with Esslinger and corroborated Towns, in
the latter's assertion that she inquired if she was being
fired, as distinguished from Esslinger's version.
The Alleged No-Distribution Rule and Its
Enforcement
I have found , supra, that on January 3, 1967,
Respondent promulgated and posted a "No Solicitation
Rule." Esslinger asserted that he posted the rule at the
request of President Vette. Esslinger described it as a
legally approved "No Solicitation Rule" which he had
obtained from a Prentice Hall manual. Esslmger's
asserted reason for posting was that a local attorney was
walking through the employee's entrance and soliciting
one of the employees about a parental case, and Esslinger
asserted that he was advised that since the individual was
an attorney , that he should have some legal basis for not
allowing his trespass . In addition , Esslinger asserted that
sales people were soliciting employees after an
engagement or wedding announcement , and Esslinger was
advised that he had to have some basis for barring such
individuals from the plant . Esslinger asserted that, since
SNC MFG. CO., INC.
there was a contract with the Union in force, he called the
officers of the Union and explained that this was not
intended to hamper their collection of dues. Esslinger
asserted that in the past they would on occasion take up a
collection for someone who was ill, or by reason of a
relative's death, or a marriage, and the rule was not
intended to preclude this activity, which would be
permitted to continue.
Esslinger asserted that on an unspecified later date the
Respondent changed its policies with respect to
distribution of company material m the plant to
employees. Esslinger asserted they decided that they would
no longer write company letters and pass them out among
the employees because it was disturbing and distracting
and interfered with production. Therefore, according to
Esslinger, anything too lengthy to be read from a bulletin
board would be mailed to the employees' homes. Esslinger
acknowledged that, inferentially in May 1968, which he
described as 2 or 3 weeks prior to his testimony, on May
21, the Company did distribute a booklet entitled "It Pays
to be Profit-minded in Your Job," a 16-page booklet,
approximating 2 by 5 inches in size, distributed with
paychecks sometime during the morning work hours.
Esslinger asserted it was distributed "just before lunch
period, which gave people an opportunity to read it during
lunch or take it home or whatever."
I have found, supra, Esslinger made no explanation to
Kinderman, as to the reason why Kinderman could not
distribute union bulletins on Respondent's parking lot.
Initially, Esslinger asserted that the distribution, on
January 4, was "creating havoc." Asked to explain his
meaning, Esslinger asserted, "It was interfering with
production and it has always been the past practice with
our company, whether it be distributing union literature or
anything else, if the thing becomes a nuisance, other
people are annoyed by it, or it becomes an annoyance to
the production of the product we are trying to make, we
put a stop to it." Esslinger then asserted that the
employees would discuss the pamphlets and read it at
their 'work place after the bell had sounded for resumption
of work. Asked to specify the nature of the disturbance,
Esslinger asserted that three individuals, including two
foremen, had complained to him, and that the foremen
had specifically named employees who had come to them
reporting an annoyance by reason of the distribution.
Esslinger attributed this report of annoyance by certain
employees as one reason for halting distribution. Esslinger
thus vacillated between the "annoyance," expressed by
employees, and loss of production as the reason
underlying his announcement of a no-distribution rule.
Neither assertion is supportable upon close scrutiny of the
evidence.
Esslinger denied any knowledge of union distribution in
the plant, prior to January 4, except the Christmas
distribution to which he did not object. The asserted
"annoyance" was not corroborated by anyone. I have
found that Foremen Ziebell and Crahen within the span of
the break period, 2:30 to 2:40 p.m., advised employees,
that, on orders from Esslinger, they could not make any
distribution in the plant without being subject to
disciplinary action. Obviously, no impact on production
could have been determined, as resulting from the
distribution, prior to the resumption of production.
Esslinger was an outstanding proponent of conduct found
by the Board, in the prior case, to have demonstrated
antiunion animus by Respondent. Esslinger was unable to
identify anyone who reported being "annoyed" by the
distribution, and admitted there had been no such
165
complaint prior to January 4. Even if he had, it is an
insufficient reason for a total bar on distribution. I find no
credible evidence of "annoyance" being expressed by
anyone, except Esslingen.
After asserting that production did show a measurable
loss as a result of the distribution of literature, Esslinger
then asserted that he could not pinpoint a specific day
when production was bad, but that it applied to part of
December and all of January. Yet, Esslinger
acknowledged he knew of no distribution in the plant in
December, except the Christmas letter to which he did not
object. Esslinger then acknowledged that a lack of orders
from the Allan Bradley Company resulted in a reduction
in force of some 60 to 65 employees, inferentially, in late
December, and this was the reason for a substantial loss
of production.
When Esslinger's attention was called to a letter
distributed to the employees, by Respondent, over
Esslinger's signature, on March 4, 1968, in which he
attributed the reason for Respondent's restriction on
distribution of literature as being due to an "untidy
condition" which created extra work for the janitorial
personnel, Esslinger asserted that this was an additional
reason for the restriction on distribution. I find significant
Respondent's failure to assert either "annoyance" or loss
of production as the underlying reason for the rule, in this
letter. Both appear to be afterthoughts, to justify unlawful
conduct.
In the light of Esslinger's acknowledgement that he had
instructed employees that there was to be no distribution
of literature in the plant, I find of no consequence
Esslinger's assertion that he did not admonish, reprimand,
or discipline any employee with respect to distribution of
literature in lunch rooms or lockerrooms. I similarly find
of no consequence Respondent's effort to establish that
the aisleway, where Towns was distributing literature,
during the break period on January 9, was a storage area
for parts kept in bins and moved to assembly areas, as
needed, during worktime, and therefore a work area.
Esslinger's attention was called to the fact that in the
same letter Respondent asserted the reason for the layoff
of Towns was "for insolence" (emphasis in letter).
Esslinger asserted the insolence resulted from Towns
having raised her voice to him. Asked if he had not
already, at that time, indicated to Towns that she was
being laid off, Esslinger responded "Yes, but she wanted
to be fired " Respondent's effort to establish a' "Union
plot" to create an incident by getting Towns fired was
stillborn.
CONCLUDING FINDINGS
C. Wage Increases
I have found, supra, that by reason of Respondent's
challenge relative to the continued existence of the
Union's majority representation, the Union, on December
4, 1967, filed a Petition for Election, Case 30-RC-771.
Daseke, Respondent's executive vice president, related
that he attended a meeting at the Regional Board Office
on Wednesday, December 13, at which Kitsinger and
Burden, International Representatives of the Union,
Beyer, Local president, Glaeser, an employee, and George
Strick, a Board employee, as wel'. as Respondent's
attorney were present. In the words of Daseke, near the
end of the meeting Daseke announced that a substantial
number of wage increases were being placed in effect, for
the pay period of November 26 to December 9, payable
166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on December 15, "to meet the new minimum standard
wages, and second, to remain in a competitive labor
market." In answer to an inquiry, Daseke acknowledged
that the raise had not been announced and the first notice
the people would have of it would be when they received
their paychecks. Daseke then explained that these were
general increases and not merit increases.
I have found, supra, that in the preceding payroll
periods of October 1-14, October 15-28, October
29-November 11, and November 12-25, a total of 157
employees are listed as being employed, in the unit, during
at least a portion of the period described, and 146 of these
received at least one pay raise, while some received two
pay raises. I have also found that the amounts of the pay
raise, without considering multiples, were from 5 cents to
12 cents per hour. It appears undisputed that 47
employees were given a raise in November 26 to
December 9 pay period. Thirty-seven of these had received
one or more pay raises of 5 cents per hour, or more, in
the previous pay periods described, five having received
two previous pay raises of 5 cents or more and also
received a third pay raise in the period complained of. I
have also found that only 7 of the 47 granted raises, were
below the $1.60 minimum rates at the time of this last pay
increase Only 10 of the 47 receiving a pay increase in the
last pay period had not received a pay increase in the
previous pay periods.
Respondent's effort, in its brief, to describe the
increases complained of as across-the-board is patently
erroneous. While some employees were raised, in steps,
from $1.40 or $1.47 to $1.65, per hour, and others
received a single or multiple increase which totalled 12
cents per hour, it is interesting to note that those who
appeared herein as witnesses for the General Counsel were
not among the more fortunate: Beyer, Kaul, Kallin,
Kinderman, Schessler, and Towns, each received a single
5- or 6-cent raise in the entire period.16 The alleged
"maintenance of the wage differentials within the plant,"
asserted by Esslinger as the basis for the. last increases is
thus patently false. The assertion of Respondent, in its
brief, that the wage increase was determined prior to the
Union organizing campaign, since "three months passed
between the decision on the questioned increase" must
similarly be rejected. There is no evidence of uniform
increases, in fact the contrary is true. The record contains
no explanation of the disparity in the amount of the
increases
Respondent urges that the Union representatives when
informed, on December 13, of the pending increases
approved them. Respondent asserts that Beyer "seemed
delighted." Respondent urges that the Union could have
postponed the election "if it thought it's cause might be
prejudiced by the increases." The short answer is that it is
for General Counsel and the Board to determine if the
"laboratory conditions" which the Board attempts to
obtain in every election were interfered with.
In the Exchange Parts case" the Supreme Court held.
The broad purpose of Section 8(a)(1) is to establish
"the right of employees to organize for mutual aid
without employer interference." We have no doubt that
it prohibits not only intrusive threats and promises but
also conduct immediately favorable to employees which
is undertaken with the express purpose of impinging
"The resultant rates, of Kaul at $1.65 Schessler at $1.70 and Kallm at
$176 do not substantiate the assertion of Esslmger that it was the
employees "in the higher grades" who only received one increase
"N.L R B v Exchange Parts Co., 375 U S 405, 409
upon their freedom of choice for or against unionization
and is reasonably calculated to have that effect. - The
danger inherent in well-timed increases in benefits is the
suggestion of a fist inside the velvet glove. Employees
are not likely to miss the inference that the source of
benefits now conferred is also the source from which
future benefits must flow and which may dry up if it is
not obliged. (Citations omitted.)
This Respondent in the prior case" a was found to have
engaged in a wide variety of violations of Section 8(a)(1),
including, specifically, the granting of wage adjustments of
5 to 15 cents per hour, to affect the outcome of the earlier
election.
Numerous Board and Court decisions have held that a
mere promise of benefits, during the pendency of an
election is violative of Section 8(a)(1) of the Act." A
fortiori, granting benefits during such a period, without
adequate justification or explanation, must fall in the
same category.
The wage increases complained of, admittedly without
prior announcement, were granted after the filing of the
Petition for Election. Other misconduct by Respondent,
during the period of the pendency of the election is set
forth infra. Accordingly, on the evidence in the record as
a whole, for the reasons stated, supra, I find the granting
of the wage increases constituted interference, restraint,
and coercion and was violative of the provisions of
Section 8(a)(1) of the Act.
D. The No-Distribution Rule - Events of November
30 and January 4
The complaint alleges that Esslinger, on November 30,
1967, and January 4 and 9, 1968, ordered employees not
to distribute union literature anywhere in the plant or on
Company property, and, on the first two dates threatened
employees with disciplinary action for engaging in the
distribution of literature anywhere in the plant during
non-worktime. It is also alleged that Crahen and Ziebell,
on January 4, ordered employees not to distribute union
literature anywhere in the plant, and that Crahen, on the
same date threatened employees with disciplinary action
for engaging in such conduct during non-worktime. It is
also alleged that Respondent, since November 30, 1967,
discriminatorily applied the existing no-solicitation rule.
It appears undisputed, and I have found, supra, that on
November 30 Esslinger advised Kinderman to leave the
Company parking lot and go out to the road as he was
not allowed to distribute literature on Company property.
Thereafter, after Kinderman had reported to his work
station, Esslinger inquired, "Don't you think you are
getting yourself in a little deep?", and reminded
Kinderman of a Company rule about punching in and
then leaving the Company premises Esslinger, who later
relied on the "annoyance" caused to other employees by
reason of distribution of literature, acknowledged, that the
"annoyance" was not reported to him prior to January 4.
Esslinger's conduct on November 30 stands unexplained.
It appears undisputed, and I have found, supra, that on
January 4 Esslinger advised Beyer, in the presence of
Towns and Jones, either during or immediately following
a break period, that anyone passing out union literature in
the plant would be asked to leave the plant, with no
differentiation made between work areas and nonwork
"147 NLRB 809
"See, e g , Ralph Printing & Lithographing Co., 158 NLRB 1353, and
fn. 3, enfd in pertinent part 379 F.2d 687 (C.A 8)
SNC MFG. CO., INC.
areas. This conversation followed the advice of Foreman
Ziebelll, which immediately preceded it, that Beyer was
not allowed to pass out literature in the plant on
Esslinger's orders. Esslinger acknowledged advising the
employees "to stop distributing literature in the plant." I
have also found that Kaul was similarly advised, on the
same date, during the break period, by Ziebell. I have also
found that on the same date, during the break period,
Schessler was advised by Foreman Crahen that she was
not to pass out leaflets in the plant and that the next time
she did it she would be subject to disciplinary action, and
this was pursuant to instructions from Esslinger.
It is patent that the no-solicitation rule, posted by
Respondent on January 3, 1967, is unrelated, by its terms,
to the subject of no distribution. The no-distribution rule
was first announced by Esslinger on January 4, 1968, and
was, as stated, a restriction against any distribution in the
plant, at any time. It thus encompassed both work areas
and nonwork areas, worktime and free time. Accordingly,
it was inherently violative of the rights accorded
employees by Section 7 of the Act.
In the Le Tourneau case '20 the Board held that a
no-distribution rule precluding distribution of union
literature, by employees, on the parking lot placed an
unreasonable impediment on the- freedom of
communication essential to the exercise of employees right
to self-organization, and that the suspension of employees
for engaging in such activity constituted discrimination.
The Board has held in numerous cases, with court
approval, that an employer may make and enforce a rule
forbidding his employees to engage in union solicitation
during worktime. However, a broad no-solicitation rule, in
the absence of special circumstances making such a rule
necessary in order to maintain production or discipline, is
presumptively an unreasonable impediment to
self-organization and is therefore presumptively invalid.'
The Board, in the Minneapolis-Honeywell case,22 found
the presumption of invalidity unrebutted The Board
distinguished between a rule that had application limited
to areas where the employees have their work stations and
a broader proscription of distribution of union literature,
absent a showing of special circumstances involving
maintenance of production or discipline. The Board
asserted] that it unanimously adheres to the Walton view23
that a ban on distribution of literature was presumptively
invalid, in normal circumstances, if and insofar as it
precludes employees from distributing union literature
when they are on nonworking time and also in
nonworking areas of the employer's establishment. Herein,
no special circumstances are asserted or established.
Respondent, in its brief, incorrectly asserts the question
to be whether an employer can prevent distribution in
work areas during non-worktime, without violating the
Act. The rule enunciated by Esslinger prohibited
distribution in the plant. This necessarily encompassed
both work and non-work areas, worktime and free time.
Being all encompassing it was violative of the Act. North
American Aviation Inc., 163 NLRB 863, enfd 389 F.2d
"Le Teurneau Company of Georgia, 54 NLRB 1253, affd. 324 U.S
793. -
"See Peyton Packing Co., 49 NLRB 828, cited with approval in
Republic A viation Corp. v. N.L R B., 324 U.S. 793; 28th Annual Report
of the National Labor Relations Board, p. 66, Idaho Potato Processors
Inc., 137 NLRB 910, enfd 322 F.2d 573 (C.A. 9).
"Minneapolis-Honeywell Regulator Company, 139 NLRB 849, 851
"Walton Manufacturing Company, 126 NLRB 697, enfd. 289 F 2d 177
(C A 5). See also, Southwire Company, 145 NLRB 1329.
167
866 (C. A. 10).
Respondent's assertion that the rule was adopted more
than 6 months prior to the filing of the charge herein is
without merit. The no-solicitation rule of Respondent has
no application to the matter of distribution.
Accordingly, I find the enunciation of the Rule, by
Esslinger, on January 4, 1968, the restriction placed on
the activity of Kinderman by Esslinger, on November 30,
1967, the orders issued by Crahen and Ziebell, on January
4, 1968, and the threats of disciplinary action, if
employees distributed literature in the plant, made by
Esslinger and Crahen, on January 4, 1968, were, in each
instance, conduct constituting interference, restraint and
coercion, and were thus violative of Section 8(a)(1) of the
Act.
E. The Suspension of Towns
It appears undisputed that Towns was suspended on
January 9, the day before the election, because she was
distributing a Union bulletin, in the plant, during the
afternoon break period, contrary to the instructions of
Esslinger, issued on January 4. It is undisputed that
Esslinger advised Towns that he was asking her to leave
the plant "as a disciplinary action." Later, when Esslinger
became aware of the fact that Towns had not complied
with his request to leave, he advised her that if she did not
leave within 5 minutes she would be discharged for
insubordination.
Esslinger acknowledged that he had had no disciplinary
problems with Towns prior to January 9. Esslinger
acknolwedged that disciplinary layoffs were, in his words,
"very extraordinary," being confined to approximately
one each year during the past 2 or 3 years.24 Esslinger
acknowledged that the matter of Towns' layoff had been
noted in her personnel folder.
It appears undisputed that the fact of Esslinger's
summary action against Towns became a matter of
common knowledge to other employees in the unit, as
related in detail by Schessler, Kaul, Beyer and Towns.
General Counsel correctly urges that the motivation for
the suspension of Towns resulted solely from her exercise
of her Section 7 rights and in order to dissuade others
from asserting such rights. I concur.
Esslinger, without corroboration, sought to establish
that the distribution of literature caused "havoc" and
interfered with production "to some extent" because
employees continued to talk about the literature after the
break period on January 4 and 9. These assertions
constitute little more than self-serving afterthoughts. In
evaluating them it is necessary to begin with Esslinger's
conduct on November 30, outside the plant, before
worktime, for which Esslinger did not even attempt any
justification of the restrictions he placed on Kinderman. It
appears without question that Esslinger's announcement of
the rule on January 4 occurred during the break period,
thus, he did not have an opportunity to evaluate the after
effects, during the subsequent production period which
had not commenced at the time he promulgated the Rule.
His assertion of "complaints" from other employees and
foremen must be rejected out of hand as an insufficient
basis, even if true, for the enforcement of the Rule which
"Esslmger detailed the reasons for the prior disciplinary actions as
resulting from an employee leaving before the end of the shift without
permission, and having an unsatisfactory record, described by Esslinger as
"You could name it, she's done it " The second individual was described
by Esslinger as having excessive unexcused absences.
168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was enunciated. Section 7 rights are not subject to
popularity contests.
Respondent's reliance on the fact that the distribution
by Towns, on January 9, was in a work area is misplaced.
Respondent concedes that perhaps neither Towns nor
Kallin were aware of the fact that it was a work area
since neither could see the passageway from their work
station. We are treating here with the application of an
invalid rule.
In the Burnup and Sims case's the Supreme Court
stated:
We find it unnecessary to reach the questions raised
under Section 8(a)(3) for we are of the view that in the
context of this record Section 8(a)(1) was plainly
violated, whatever the Employer's motive
In sum, Section 8(a)(1) is violated if it is shown that
the discharged employee was at the time in a protected
activity, that the Employer knew it was such, that the
basis of the discharge was an alleged act of misconduct
in the course of that activity, and that the employee
was not, in fact, guilty of that misconduct.
The timing of the suspension by Esslinger, the day
preceding the election; the announcement and enforcement
of an invalid no-distribution rule by Esslinger,
commencing January 4, 1968; Esslinger's conduct found to
be violative of the Act and to demonstrate his antiunion
animus in the earlier SNC case, which included the
announcement of wage increases and other benefits, to
discourage adherence to the Union, and an effort to
establish a shop committee in lieu of the Union; the total
absence of any justifiable reason for the suspension of
Towns, other than her engagement in protected activities;
in my view are sufficient to establish the pretextuous
nature of Respondent's action and require a finding that
the suspension was discriminatorily motivated and
violative of the provisions of Section 8(a)(3) and (I) of the
Act. 26
D. Objections to the Election
The objections to the election, timely filed by the
Union, are premised upon: (1) the effect of the wage
increases of December 15, 1967, upon employee votes; (2)
Respondent's discouragement of Union activity by threats
of discharge or disciplinary action if employees distributed
union literature on Company premises, as announced on
January 4, 1968; and (3) the unlawful disciplinary layoff
of Towns on January 9, 1968, for distributing union
literature on Company property. Thus the objections
encompass the acts and conduct complained of, as unfair
labor practices, in the complaint.
The Board has held in Dal-Tex Optical Co. Inc., 137
NLRB 1782, 1786, that: Conduct violative of Section
8(a)(1) is, a fortiori, conduct which interferes with the
exercise of a free and untrammelled choice in an election.
The Board stated that this is so because the test of
conduct which may interfere with the "laboratory
conditions" for an election is considerably more restrictive
than the test of conduct which amounts to interference,
restraint, or coercion, which violates Section 8(a)(1).
Accordingly, having found that the conduct complained
of in the objections, was violative of Section 8(a)(1), I will
recommend that the Union's objections be sustained, and
that the 1968 election be set aside.
6IN.L R B v. Burnup and Sims , Inc , 379 U.S. 21, 22-23
"Le Tourneau of Georgia, supra.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section III,
above, occurring in connection with the 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 obstructing commerce and the free flow of
commerce.
V. THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall Recommend that it cease
and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act.
Respondent having discriminatorily suspended Dawn
Towns on January 9, 1968, because of her protected
activities, I recommend that Respondent make her whole
for any loss of pay she may have suffered by reason of the
suspension of that date. Interest on backpay shall be
computed in the manner set forth in Isis Plumbing &
Heating Co., 138 NLRB 716. I further recommend that
Respondent be ordered to strike any reference to such
alleged disciplinary action from its records.
It is also recommended that Respondent be ordered to
make available to the Board, upon request, payroll and
other records to facilitate the checking of the amount of
earnings due.
In view of the nature of the unfair labor practices
committed the commission of similar and other unfair
labor practices reasonably may be anticipated. I shall
therefore recommend that Respondent be ordered to cease
and desist from any manner infringing upon rights
guaranteed its employees by Section 7 of the Act.
I also recommend that the election, held on January 10,
1968, in Case 30-RC-771, be set aside and that said case
be severed and remanded to the Regional Director for
Region 30, with instructions to conduct a new election at
such time as he deems circumstances permit free choice of
a bargaining representative.
Upon 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 Section 2(2), (6), and (7) of the
Act.
2. International Union of Electrical Radio & Machine
Workers, Local 806 (IUE-AFL-CIO), is a labor
organization within the meaning of Section 2(5) of the
Act.
3. By engaging in the conduct set forth in the section
entitled "Interference, Restraint, and Coercion," to the
extent therein found, the Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning
of Section 8(a)(1) of the Act.
4. By discriminating with respect to the hire and tenure
of employment, and terms and conditions of employment,
of Dawn Towns, on January 9, 1968, thereby discouraging
the free exercise of rights guaranteed by Section 7 of the
Act, and discouraging membership in or activities for the
above-named labor organization, Respondent has engaged
in, and is engaging in, unfair labor practices within the
meaning of Section 8(a)(3) and (1) of the Act.
SNC MFG. CO., INC. 169
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of
Section 2(6) and (7) 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,
I Recommend that Respondent, SNC Manufacturing Co.,
Inc., its officers, Agents, successors, and assigns , shall:
1. Crease and desist from:
(a) Discouraging membership in International Union of
Electrical, Radio & Machine Workers, Local 806
(IUE-AFL-CIO), or any other labor organization of its
employees, by suspending or otherwise discriminating
against employees in regard to their hire or tenure of
employment, or any term or condition of employment.
(b) Granting wage increases to discourage employees
from becoming members of, giving assistance to, or voting
for the Union.
(c) Promulgating, publishing, or enforcing any rule
proscribing or prohibiting the distribution of Union
literature in the plant or on Company property, to the
extent such rule is applied to the non-worktime of the
employees, or nonwork areas of the plant.
(d) Threatening employees with disciplinary action for
engaging in the distribution of Union literature during the
non-worktime of employees, or in nonwork areas of the
plant.
(e) In any other manner interfering with, restraining, or
coercing its employees in the exercise of the right to
self-organization, to form labor organizations, to join or
assist the above-named Union, or any other labor
organization, to bargain collectively through
representatives of their own choosing, and to engage in
any other concerted activity for the purpose of collective
bargaining or other mutual aid or protection, or to refrain
from any and all such activities, except to the extent that
such right may be affected by an agreement requiring
membership in a labor organization as a condition of
employment, as authorized in Section 8(a)(3) of the Act,
as modified by the Labor-Management Reporting and
Disclosure Act of 1959.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Make whole Dawn Towns for any loss of pay she
may have suffered by reason of Respondent's
discrimination against her, on January 9, 1968, in
accordance with the recommendations set forth in "The
Remedy," including the excision from its records provided
for.
(b) Preserve and make available to the Board, or its
agents, upon request, for inspection and reporduction, all
payroll records, social security reports, timecards,
personnel files, and all other records necessary to analyze,
compute and determine the amount of backpay to which
Dawn Towns may be entitled under the terms of this Trial
Examiner's Decision.
(c) Post at its plant in Oshkosh, Wisconsin, copies of
the attached notice marked "Appendix." 27 Copies of said
notice to be furnished by the Regional Director for
Region 30, shall, after being signed by Respondent's
representative, be posted by the Respondent and
maintained by it for 60 consecutive days thereafter in
conspicuous places, including each of Respondent's
bulletin boards. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(d) Notify the Regional Director for Region 30, in
writing, within 20 days from the date of the receipt of this
Trial Examiner's Decision, what steps the Respondent has
taken to comply for the foregoing Recommended Order.
IT IS FURTHER RECOMMENDED that unless within 20
days from the date of the receipt of this Trial Examiner's
Decision the Respondent shall notify said Regional
Director in writing, it will comply with the foregoing
Recommended Order,28 the National Labor Relations
Board issue an Order requiring Respondent to take the
aforesaid action.
"In the event that this Recommended Order be adopted by the Board,
the words "a Decision and Order" shall be substituted for the words
"Recommendations 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 "a Decree of the United States Court of
Appeals Enforcing an Order" shall be substituted for the words "a
Decision and Order "
"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 from the date of this Order , what steps the
Respondent has taken to comply therewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order 6 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 Union of Electrical, Radio & Machine
Workers Local 806 (IUE-AFL-CIO), or any other
labor organization of our employees, by suspending or
otherwise discriminating against employees in regard to
their hire or tenure of employment, or any term or
condition of employment.
WE WILL NOT grant wage increases to discourage
employees from becoming members of, giving
assistance to, or voting for the Union.
WE WILL NOT promulgate, publish, or enforce any
Rule proscribing or prohibiting distribution of Union
literature in the plant or on Company property, during
the non-worktime of the employees, or in nonwork
areas of the plant.
WE WILL NOT threaten employees with disciplinary
action for engaging in the distribution of Union
literature during non-worktime of the employees, in
nonwork areas of the plant
WE WILL NOT in any other manner interfere with,
restrain, or coerce, our employees in the exercise of the
right to self-organization, to form labor organizations,
to join or assist the above-named Union, or any other
labor organization, to bargain collectively through
representatives of their own choosing and to engage in
any other concerted activity for the purpose of
collective bargaining or other mutual aid or protection,
or to refrain from any and all such activities, except to
the extent that such right may be affected by an
agreement requiring membership in a labor
organization as a condition of employment, as
authorized in Section 8(a)(3) of the Act, as modified by
the Labor-Management Reporting and Disclosure Act
of 1959.
WE WILL make whole Dawn Towns for any loss of,
pay she may have suffered by reason of our
discrimination against her on January 9, 1968.
170 DECISIONS OF NATIONAL LABOR RELATIONS BOARDm
All our employees are free to become, to remain, or to
refrain from becoming or remaining, members of a labor
organization of their own choosing.
Dated
SNC MANUFACTURING
CO., INC.
(Employer)
By
(Representative) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 2nd Floor
Commerce Building, 744 North 4th Street, Milwaukee,
Wisconsin 53203, Telephone 272-3861.