Standard Manufacturing Co.

National Labor Relations Board - Board Decisions

Jul 14, 1964

147 N.L.R.B. 1608 (N.L.R.B. 1964)

1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) Post at its business office and meeting hall, copies of the attached notice
marked "Appendix." 14 Copies of said notice, to be furnished by the Regional
Director for the Twenty-third Region, shall, after being duly signed by an authorized
representative of Respondent, be posted by it immediately upon receipt thereof, and
be maintained for a period of 60 consecutive days thereafter, in conspicious places,
including all places where notices to members are customarily posted (including all
such places in the Hughes plant). Reasonable steps shall be taken by it to ensure
that said notices are not altered, defaced, or covered by any other material.
(c) Mail to said Regional Director signed copies of said notice for posting by
Local 2, if that local so desires, in places where notices to its members are customarily
posted.
(d) Notify said Regional Director, in writing, within 20 days from the receipt
of this Intermediate Report and Recommended Order, what steps it has taken to
comply herewith.15
14 In the event that this Recommended Order be adopted by the Board, the words "as
Ordered by" shall be substituted for the words "as Recommended by a Trial Examiner
of" 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 of" shall be inserted immediately following the words "as
Ordered by."
1 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 Respondent has taken to comply herewith."
APPENDIX .
NOTICE TO EMPLOYEES OF HUGHES TOOL COMPANY
As recommended by a Trial Examiner of the National Labor Relations Board
and in order to conduct our union as required by the National Labor Relations Act,
we notify you that in the event we should become the bargaining representative of
the employees:
WE WILL NOT execute any contract which discriminates among employees as
to job opportunities, or any other term or condition of employment, because of
race or color.
WE WILL investigate and handle any grievance brought to us by an employee
without regard to his race or color.
INDEPENDENT METAL WORKERS
UNION, LOCAL No. 1,
Labor Organization.
Dated------------------- 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.
Employees may communicate directly with the Board's Regional Office, 6617
Federal Office Building, 515 Rusk Avenue, Houston, Texas, Telephone No. Capitol
8-0611, Extension 296, if they have any question concerning this notice or compliance
with its provisions.
Standard Manufacturing Company and United Steelworkers of
America , AFL-CIO. Case No. 16-CA-1911. July 14, 1964
DECISION AND ORDER
On December 13, 1963, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices in
violation of Section 8(a) (1) of the Act. With respect to certain other
147 NLRB No. 169.
STANDARD MANUFACTURING COMPANY 1609
unfair labor practice allegations, the Trial Examiner recommended
dismissal. Thereafter, the Respondent filed exceptions to the Deci-
sion and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, the Board has delegated its powers in connection with
this case to a three-member panel [Members Fanning, Brown, and
Jenkins].
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 entire rec-
ord in this case, including the Trial Examiner's Decision, the excep-
tions, and brief, and hereby adopts the findings, conclusions, and
recommendations of the Trial Examiner except as modified herein.'
We concur in the Trial Examiner's conclusion that Respondent was
discriminatorily motivated in promulgating a no-solicitation rule and
did so in retaliation for an announced union organizational campaign.
In so concluding, we rely not only on the timing of the rule's promul-
gation but on the fact that Respondent had previously permitted
solicitations of various kinds on working time, and subsequently par-
ticipated in a campaign to revoke employees' union authorization
cards on working time.2 The Respondent also discriminatorily en-
forced its rule in that it permitted employees to distribute and circu-
late forms revoking employees' union authorization cards during
working time subsequent to promulgation of the no-solicitation rule.
One employee, Crabtree, testifying about the antiunion solicitations,
stated that "they [employees] came through in a,,continual stream to
talk to him [giggle] all through Monday and through Tuesday until
he signed his withdrawal." The circulation and execution of with-
drawal forms were conducted during working time with employer
knowledge and with only a token effort to enforce its no-solicitation
rule against antiunion adherents .3 Such disparate application of the
rule substantiates our conclusion that the promulgation of the rule
as well as its enforcement was tainted with discriminatory motives,
and not by a lawful concern for efficient production or discipline, and
was, therefore, violative of Section 8(a) (1).4
'As there were no exceptions to the Trial Examiner ' s finding that employee Haney
was not discriminatorily discharged, we adopt such finding pro forma.
'While the no-solicitation rule encompassed "company time ," we construe it to be
limited to "working time" in the absence of evidence that it was applicable to nonwork-
ing time.
3 One of Respondent 's supervisors admitted knowledge of employee solicitation and dis-
tribution of union revocation forms and told one employee to stop such activity after
seeing it for the second time.
4 N.L R.B v. Hill & Hill Truck Line , Inc, 266 F. 2d 883, 886 ( C.A 5) ; Revere Camera
Company, 133 NLRB 1658 , enfd. 304 F 2d 162 ( C.A. 7) ; Bannon Mills, Inc, 146 NLRB
611; Memphis Publishing Company, 133 NLRB '1435 See also Peyton Packing Com-
pany, 49 NLRB 828, 843 , enfd. 142 F . 2d 1009 ( C.A. 5), cert. denied 1323 U.S. 730, and
Republic Aviation Corporation v., N.L.R.B , 324 U.S. 793, 798
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We also agree with the Trial Examiner's conclusion that Respond-
ent, by its involvement in the campaign to secure the revocation of
union authorizations, further violated Section 8 (a) (1) . ,9
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 Order recommended by the Trial Examiner, and orders
that the Respondent, Standard Manufacturing Company, its offi-
cers, agents, successors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, with the following
modifications :
Delete the language contained in 1(a) and substitute therefor the
following language :
"1. Cease and desist from :
"(a) Discriminatorily promulgating or applying a no-solicitation
rule for the purpose of impeding union organization."
The first paragraph of the notice shall be deleted and the follow-
ing language substituted therefor :
WE WILL NOT discriminatorily promulgate or apply any no-
solicitation rule for the purpose of impeding union organization
in the United Steelworkers of America, AFL-CIO, or any other
labor organization.
5 Respondent 's president himself engaged in the activity . For example , employee Tracy
testified that President Oswald told him that he knew Tracy 'had joined the Union and
that "it wasn ' t too late to come back to the company if I wanted to and that they
wouldn't hold anything against me until that time." See Movie Star, Inc., 145 NLRB
319; United Biscuit Company of America , 101 NLRB 1552 , affd. 208 F. 2d 52 (C.A. 8),
cert. denied 347 U.S. 934.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
Upon a charge filed by the above-named labor organization on July 31, 1963,
the General Counsel of the National Labor Relations Board on September 8, 1963,
issued his complaint and notice of hearing, alleging that the above-named Respondent
had engaged in unfair labor practices in violation of Section 8(a)(1) and (3) of
the National Labor Relations Act, as amended. The Respondent duly filed an
answer denying the commission of unfair labor practices . Pursuant to notice a
hearing was held in Dallas, Texas, on October 21 and 22, 1963, before Trial
Examiner C. W. Whittemore.
At the hearing all parties were represented and were afforded full opportunity
to present evidence pertinent to the issues, to argue orally, and to file briefs . Briefs
have been received from the Respondent and General Counsel.
Disposition of the Respondent 's motion to dismiss the complaint , upon which
ruling was reserved at the hearing , is made by the following findings, conclusions,
and recommendations.
Upon the record thus made, and from his observation of the witnesses, the
Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
Standard Manufacturing Company is a Texas corporation , with principal office
and place of business in Dallas, Texas, where it is engaged in the manufacture and
STANDARD MANUFACTURING COMPANY 1611
sale of oilfield equipment and ground-handling equipment for the United States
Armed Forces.
During the year preceding issuance of the complaint the Respondent sold and
shipped finished porducts valued at more than $50,000 from its plant to customers
located outside the State of Texas. During the same period, as a national defense
contractor, the Respondent sold and distributed, for the United States Armed Forces,
products valued at more than $4,000,000. The Respondent's operations have a
substantial impact upon national defense.
The complaint alleges, the answer admits, and it is here found that the Respondent
is engaged in commerce within the meaning of the Act.
II. THE CHARGING UNION
United Steelworkers of America, AFL-CIO, is a labor organization admitting to
membership employees of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Setting and major issues
The above-named labor organization began organizing the Respondent's em-
ployees in May 1963. On July 10, a Steelworkers representative sent a wire to the
Respondent containing a list of 25 individuals, all of whom, the wire claims, were
members of the Union and of its "voluntary organizing committee." The wire also
stated that this information was forwarded "so that the company may not deny
knowledee of the union membership of its above-named committee."
On the list was the name of Thomas N. Haney, alleged by the complaint to have
been unlawfully discharged on July 31, to discourage union activity. This allega-
tion the Respondent denies.
Other issues raised by the complaint include the Respondent's sudden "promulga-
tion" of a no-solicitation rule and its own solicitation among employees to withdraw
from the Union.
B. The discharge of Haney
1. Relevant facts
Haney had been employed only about 6 months when he was discharged on
July 31, 1963.
As to his union activity, according to Haney's own testimony he talked to one or
two fellow workers about it, but "never talked much except just on a friendly basis,"
never trying "to push or anything." The record does not disclose whether he was
more or less active than any of the other 24 employees on the "voluntary organizing
committee," none of whom, so far as the record shows, were discriminated against in
any manner. There is no evidence that Haney was ever reprimanded, threatened,
or warned by any supervisor concerning his union activity, whatever its extent.
According to his own testimony, however, from the first day of his hire, and by
the two foremen under whom he served during his brief period of employment, he
was repeatedly warned about engaging in religious activities during working hours.
It appears that Haney is a minister of the gospel and a Sunday school superintendent.
Upon being hired he was promptly cautioned by Foreman Woodard, according to
the employee's own testimony, that he must not "visit around" the plant during
working hours "witnessing" to other employees as had his predecessor, one "Reverend
Nottingham." (Nottingham, Haney testified, had referred him to the job.)
- While it appears that Haney assured Woodard that he would not waste his own
or others' time "preaching," as a witness he admitted that he was reprimanded a
number of times for failing to abide by instructions given when hired.
After working under Woodard for 2 or 3 months he asked to be transferred to
Foreman Graves' department. Woodard interposed no objections since, according
to his foreman, Haney had not performed his work "satisfactorily."
According to Haney's own testimony, also, Foreman Graves promptly warned him
not to engage in his preaching activities while supposed to be engaged in more
mundane production. Despite such warnings, Haney admitted, he continued to
leave his machine to talk to employees on matters of religious faith, and that he took
time from his work to do so. Graves called him down for talking to other employees
at least six times, Haney admitted, the last time being about 3 days before his
discharge.
Haney also admitted that Graves complained' to him about his production and
about not cleaning up his machine. On July 30, the day before his discharge and
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
according to his own testimony he left his machine while it was running. Something
happened to it, it began to "chatter," and another employee had to come over to
shut it off.
According to Graves' credible testimony, he told the company president, W. N.
Oswald, that evening that he could not use Haney any longer as an employee.
The next morning Haney was called into the office. Oswald and the two foremen
were there. The president told Haney that he was being dismissed and both fore-
men reviewed his several and varied derelictions. Oswald then assured Haney that
he was not being fired for any union activities he may have engaged in.
2. Conclusions
Under circumstances described by Haney himself the Trial Examiner is unable
to find that General Counsel has sustained his burden of proving by a preponderance
of evidence that this employee was discharged unlawfully and for the purpose of
discouraging union membership and activity. As noted, there is no evidence that
Haney was either a leader or particularly active in organizing his fellow employees-
except in religious matters, and for this latter activity he admitted having been
called to account on many occasions. It may not be said that his employment service
covered a long period and that his faliure to abide by instructions and to turn out
work of a satisfactory nature had been condoned while disciplinary dismissal only
came after the Respondent learned that he was one of 25 purportedly on an organizing
committee for the Union.
In short, the Trial Examiner concludes that the allegations of the complaint as
to Haney are not sustained by the preponderance of credible evidence
C. Interference, restraint, and coercion
1. Relevant facts
Promptly upon receipt of the union wire of July 10, the Respondent had posted in
the plant a three-page bulletin, signed by C. C. Garner, an administrative official and
company attorney. This bulletin quoted the Union's wire in full. It continued, in
part:
We assure you that the company will not discriminate against these persons
nor take any other action against them in any manner whatsoever because of
their membership or interest in the union.
But this does not give them any special privileges.
We want to explain to you and to face squarely the following facts:
1. We regret that the above-message implies that the members of the
Voluntary Organization Committee can solicit membership and engage in
organizing activity on company time. This is absolutely not true. The
Labor Management Relations Act does not give anyone the authority to
solicit, loiter nor engage in organizing activity on company time We
have a strict rule against solicitation of any kind on company time and this
rule applies equally to solicitation for union membership or any other
type.
President Oswald, as a witness, admitted that he did not know that any such "no-
solicitation" rule had ever been "handed out" before, but claimed that new employees
had been told about it when hired. No credible evidence sustains his claim. On the
contrary, there is undisputed testimony to the effect that solicitations of various
natures had been commonly conducted during working hours in the plant.
According to Garner's testimony, he took other prompt measures to combat union
organization upon receipt of the union wire. He drafted and had his secretary type
(and apparently duplicate) a considerable number of forms entitled- "Withdrawal
of Membership Application and Withdrawal of Collective Bargaining Authoriza-
tion." "She placed a quantity of them on her desk," he testified. According to this
official's further testimony "the last of" his "positive knowledge of the distribution
of those forms" was telling his secretary, "We had better not sponsor the distribu-
tion of these. If anyone asks you for these forms you now have them ready "
Garner's secretary was not a witness and the Respondent offered no competent
evidence in the record as to how these forms left the secretary's office and got into
the hands of two or three employees who proceeded to get several of them signed.'
1 Since Garner admitted his responsibility for preparing the documents, it seems reason-
able to believe that be was, also responsible for their distribution.
STANDARD MANUFACTURING COMPANY 1613
Documentary evidence establishes that the Respondent paid for the postage on some
of the revocations sent to the Union-the Respondent" finally conceding that the
U.S. Post Office has assigned only to the Respondent the Pitney-Bowes postal number
appearing on the envelopes.
Seven of the eleven revocations prepared by the Respondent bear the signature of
employee Olin T. Smith as "witness." It is clear from the testimony of Assembly
Foreman Tilley that he was aware of Smith's activity in soliciting revocations. He
admitted that at least "two times" he discovered Smith's "job wasn't moving along fast
enough" and "found" that he was "working against the union on company time."
Despite the newly promulgated "no-solicitation" rule, according to Tilley he merely
told Smith to stop.
2. Conclusions
Although the Trial Examiner has concluded that the evidence is insufficient to
find that employee Haney was discharged to discourage union membership and
activity, he is of the opinion that management 's conduct both in imposing the no-
solicitation rule and in preparing, permitting the circulation of, and paying postage
for the revocation forms was designed to and was successful in discouraging union
adherence among its employees.
The Respondent offered no credible evidence to rebut the clear inference drawn
from the timing of the bulletin to the effect that it was designed and distributed in
retaliation for announcement that its employees were organizing . Nothing in the
Union's wire warrants the gratuitous statement, quoted above, in the company's
bulletin: "We regret that the above message implies that the members of the Volun-
tary Organization Committee can solicit membership and engage in organizing
activity on company time."
The unlawful nature of the Respondent's part in the revocation campaign is
tacitly admitted by Garner in his admission that he told his secretary she had "better"
not distribute them. He also said that he had them prepared "after hours," because
he thought "furnish[ing] that sort of thing" "was in a gray area." The Trial Ex-
aminer is not aware that an employer may evade responsibility for unlawful con-
duct merely by engaging in it "after hours."
In short, the Trial Examiner concludes that by publishing the no-solicitation rule,
because of its retaliatory nature, and by the preparation and sponsoring of the
revocation campaign the Respondent interfered with, restrained, and coerced em-
ployees in the exercise of rights guaranteed employees by Section 7 of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
Certain of the activities of the Respondent, set forth in section III, above, occur-
ring in connection with the operations of the Respondent described in section I,
above, have a close, intimate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor disputes burdening and
obstructing commerce and the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in certain unfair labor practices
the Trial Examiner will recommend that it cease and desist therefrom -and take cer-
tain affirmative action to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact and.upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. United Steelworkers of America, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
2. By interfering with, restraining, and coercing employees in the exercise of
rights guaranteed by Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
4. By discharging employee Haney the Respondent did not engage in unfair labor
practices within the meaning of the Act.
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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, Standard
Manufacturing Company, its officers , agents, successors , and assigns , shall: 2
1. Cease and desist from:
(a) Promulgating any rule or regulation in retaliation against self-organization
among its employees.
(b) Preparing or sponsoring the distribution of revocation forms to discourage
membership in United Steelworkers of America, AFL-CIO, or in any other labor
organization.
(c) In any like or related manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action to effectuate the policies of the Act:
(a) Post at its Dallas, Texas, plant copies of the attached notice marked "Ap-
pendix." 3 Copies of said notice, to be furnished by the Regional Director for the
Sixteenth Region, shall, after being duly signed by the Respondent's authorized rep-
resentative, be posted by the Respondent immediately upon receipt thereof, in con-
spicuous places, including all places where notices to employees are customarily
posted, and be maintained by it for a period of 60 consecutive days. Reasonable
steps shall be taken to insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the said Regional Director, in writing, within 20 days from the date
of the receipt of this Trial Examiner's Decision , what steps it has taken to comply
herewith .4
Finally, it is recommended that the allegation of the complaint be dismissed as to
the discharge of employee Haney.
2 In the event the Board adopts this Recommended Order the above paragraph shall be
amended to read:
Upon the entire record in this case, and pursuant to Section 10(c) of the National
Labor Relations Act, as amended, the National Labor Relations Board hereby orders
that the Respondent, its officers, agents, successors, and assigns, shall:
'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 "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be substituted for the words "a Decision
and Order"
4In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify the 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 conduct our labor relations in compliance with the
National Labor Relations Act, we notify you that:
WE WILL NOT invoke any rule or regulation in retaliation for your joining
United Steelworkers of America , AFL-CIO, or any other labor organization
of your own choice.
WE WILL NOT prepare , sponsor, or support any campaign designed to dis-
courage your membership in, or to cause your withdrawal from , the above-
named or any other labor organization.
WE WILL NOT violate any of the rights you have under the National Labor
Relations Act to join a union of your own choice or not to engage in any union
activities.
STANDARD MANUFACTURING COMPANY,
Employer.
Dated------------------- 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.
BRICKLAYERS, MASONS, ETC., LOCAL NO. 26 1615
Employees may communicate directly with the Board's Regional Office, Sixth
Floor, Meacham Building , 110 West Fifth Street, Fort Worth, Texas, Telephone
No. Edison 5-4211, Extension 2131, if they have any question concerning this notice
or compliance with its provisions.
Bricklayers , Masons and Plasterers ' International Union of
America, Local No. 26 and Fox Valley General Contractors
Association [August Wilson & Son Company]. Case No. 13-
CD-134.1 July 15, 1964
DECISION AND DETERMINATION OF DISPUTE
This is a proceeding under Section 10(k) of the Act, following a
charge filed by Fox Valley General Contractors Association, herein
called the Association, alleging that Bricklayers, Masons and Plas-
terers' International Union of America, Local No. 26, herein called the
Bricklayers or Local 26, had violated Section 8(b) (4) (D) of the Act
by inducing and encouraging employees of August Wilson & Son Com-
pany, herein called the Employer, to cease work for the purpose of
forcing or requiring the Employer to assign the work in dispute to em-
ployees who are members of the Bricklayers, rather than to employees
who are represented by Operative Plasterers' and Cement Masons'
International Association of the United States and Canada, Local
No. 638, herein called the Plasterers or Local 638. A hearing was held
before Hearing Officer Allen P. Haas, on April 27, 1964. All parties
who appeared at the hearing were afforded full opportunity to be
heard, to examine and cross-examine witnesses, and to adduce evidence
bearing on the issues. Thereafter, briefs were filed by the Association,
the Bricklayers, and the Plasterers.
Upon the entire record in the case, the Board' makes the following
findings :
1. The business of the Employer
August Wilson & Son Company is engaged in the building con-
struction industry in Geneva, Kane County, Illinois. During 1963, it
purchased materials valued in excess of $50,000 which were shipped to
its plant in Geneva from points outside the State of Illinois. We find
that the Employer is engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate the policies of
the Act to assert jurisdiction herein.
i On March 27, 1964, the Regional Director issued an Order consolidating this case with
Case No. 13-CD-125. At the hearing , the Hearing Officer granted a motion of the
Charging Party in Case No. 13-CD-125 for severance in view of a settlement reached
during the hearing.
2 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 Leedom , Fanning,
and Brown].
147 NLRB No. 171.