The Deming Co.

National Labor Relations Board - Board Decisions

Feb 9, 1954

107 N.L.R.B. 1100 (N.L.R.B. 1954)

1 100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE DEMING COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO
THE DEMING COMPANY and UNITED STEELWORKERS OF
AMERICA, CIO, Petitioner . Cases Nos. 8-CA-762 and
8-RC-1776 . February 9, 1954
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
On August 5, 1953, Trial Examiner Richard N. Ivins issued
his Intermediate Report in the above -entitled proceeding, finding
that the Respondent had not engaged in the unfair labor practices
alleged in the complaint and recommending that the complaint
be dismissed in its entirety. In the Intermediate Report, the
Trial Examiner further found that the Respondent had not inter-
fered with an election conducted by the Board on November 5,
1952, among the Respondent's employees to determine their
representative for the purposes of collective bargaining,' and
he recommended that the Union's objections to the election be
overruled. Thereafter, the Union filed exceptions to the Inter-
mediate Report and a supporting brief.
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 Intermediate Report, the Union's exceptions and
brief, and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Exam-
iner, with the additions and modifications noted below.2
1. The Trial Examiner found that the Respondent did not
threaten its employees in violation of Section 8 (a) (1) of the
Act, as alleged in the complaint.
As appears from the Intermediate Report, the General Coun-
sel and the Respondent adduced conflicting testimony at the
hearing on the allegations of the complaint. The Trial Examiner
accepted the testimony of the Respondent's witnesses and dis-
credited the testimony of the witnesses called on behalf of the
General Counsel. On the basis of the testimony credited by him,
the Trial Examiner found, and we agree, that the Respondent
i The tally of ballots showed that of approximately 668 eligible voters, 260 voted for, and
382 voted against, the Petitioner. There were 14 challenged ballots.
2 The Intermediate Report contains minor misstatements of fact, none of which affect the
Trial Examiner's ultimate conclusions. Accordingly, we make the following corrections:
The record fails to show, as the Trial Examiner finds, that, in the three representation
matters involving the Union which have been before the Board,-the Union sought a change in
the bargaining unit "to gain an advantage in the bargaining." Nor does the record show, as
the Trial Examiner seems to find, that employee Cobbs corroborated all the testimony given
by Foreman Grady regarding the latter's conversation with employee McCluggage during the
latter part of October 1952.
107 NLRB No. 233.
THE DEMING COMPANY 1 101
did not violate the Act as alleged in the complaint.3 In its
exceptions and brief, the Union contends that the Trial Examiner
erred in his credibility resolutions.
The Board attaches great weight to the credibility findings of
Trial Examiners insofar as they are based on demeanor, and
accordingly does not overrule a Trial Examiner's resolution of
credibility except where the clear preponderance of all the
relevant evidence convinces the Board that his resolution was
incorrect." No such conclusion is warranted in this case. We
therefore adopt the Trial Examiner's credibility findings.
On the basis of all the foregoing, and the entire record, we.
find, as did the Trial Examiner, that the Respondent did not
interfere with, restrain, or coerce its employees in the exer-
cise of the rights guaranteed in Section 7 of the Act. We shall,
therefore, dismiss the complaint.
2. The present case is a consolidation of two separate pro-
ceedings--the unfair labor practice proceeding dealt with above
and representation proceeding. Involved in the latter proceeding
are the objections filed by the Union to the representation
election.
According to the Trial Examiner, "the objections to the
election involve substantially the same matters set forth in
the complaint." Thus, having found that the complaint's alle-
gations were not sustained, the Trial Examiner concluded that
the Respondent neither violated Section 8 (a) (1) of the Act nor
improperly interfered with the election. As the Union points
out in its brief, however, the allegations in the complaint and
the objections to the election do not raise wholly identical
issues. Accordingly, even though we agree with the Trial
Examiner that the complaint should be dismissed, we find it
necessary to consider separately the objections tothe election,
as amended at the hearing..
As for the objection based ontheallegationthat the Respond-
ent urged employees to vote against the Union, it is plain that
this fact does not warrant a finding that the Respondent improp-
erly interfered with the election.5 We therefore overrule this
objection.
The objection which alleges that the Respondent indicated to
employees that a strike would ensue, the plant would be shut
down, and employees would lose work in the event of a victory
3 There is no merit to the Union 's contention that Foreman Bennett unlawfully threatened
employee Pappas on about September 1, 1952, when, according to Bennett's own testimony
which is not reported in the Intermediate Report, he told Pappas , "Jim, I understand the
Union means 40 hours ." For the record makes it plain that this statement by Bennett was no
more than a prediction of the possible impact of unionization upon the employees ' working
hours , unaccompanied by any threat that the Respondent would use its economic power to
make the prediction come true. See Chicopee Manufacturing Company , 107 NLRB 106.
4Standard Dry Wall Products, Inc., 91 NLRB 544, enfd. 188 F. 2d 362 (C. A. 3).
s Cf. Stewart- Warner Corporation, 102 NLRB 1153; Joy Togs, Inc., 83 NLRB 1024.
337593 0 - 55 - 71
1 102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
by the Union is not supported by the credible testimony in the
record. For this reason, therefore, apart from other considera-
tions, we overrule the objection.
In connection with its objection based on the allegation that
the Respondent restricted campaigning on behalf of the Union
during the period prior to the election, while its supervisors
campaigned against the Union, the Union charges the Respond-
ent with discriminatory or disparate treatment of employee
McCluggage.6 In our opinion, however, the record does not
support this claim. McCluggage, by his own admission, spent
more time in conversation with fellow employees after the
advent of the Union than he did, without interference from the
Respondent, before the appearance of the Union. The record as
a whole indicates that, in curbing this talking by McCluggage, 7
which is the action complained about in the instant connection,
the Respondent was motivated by the amount of working time
consumed thereby rather than by antiunion considerations.8
Whether, during the Union's organizational campaign, super-
visors of the Respondent spent as much time as McCluggage in
conversation with employees about matters unrelated to their
work is a fact not shown by the record. Under all the circum-
stances, we find that the evidence bearing on the objection under
discussion furnishes no basis for setting aside the election. The
objection is therefore overruled.
As we have overruled the objections to the election, and as
the tally of ballots shows that the Union lost the election, we
shall issue a certification of results of election to this effect.
[The Board dismissed the complaint.]
[The Board certified that a majority of the valid ballots was
not cast for United Steelworkers of America, CIO, and that the
said labor organization is not the exclusive representative of
the employees in the appropriate unit in this case.]
6McCluggage became a member of the Union's organizing committee on about September
3, 1952. The Union's organizational campaign began about 7 months earlier.
7 On some occasions McCluggage talked about the Union; at other times his conversations
were wholly unrelated to union matters.
8 When, for example, Vice- President Dawson told McCluggage sometime before the election
that he understood that McCluggage had, for 6 months, been spending a good deal of time
around the plant on other than company business and that the best thing for McCluggage to do
was to tend to his own work, the Union was not adverted to in any way.
Intermediate Report and Recommended Order
STATEMENT OF THE CASE
A charge having been filed by the United Steelworkers of America, CIO, herein called the
Union; a complaint and notice of hearing thereon having been issued and served on the parties
by the General Counsel of the National Labor Relations Board, herein called respectively
the General Counsel and the Board; and an answer having been filed by The Deming Company,
herein called the Respondent, a hearing involving allegations of unfair labor practices in viola-
THE DEMING COMPANY 1 103
tion of the National Labor Relations Act, 61 Stat. 136, herein called the Act, was held upon due
notice at Salem, Ohio, on April 20 and April 21, 1953, before the undersigned, the duly desig-
nated Trial Examiner. By order of the Board, consolidated with said hearing was a hearing on
objections filed by the Union on November 12, 1952, to an election conducted by the Board on
November 5, 1952. All parties were represented at the hearing where they were afforded full
opportunity to be heard, to examine and cross-examine witnesses, to argue the issues orally
upon the record, and to file briefs and/or proposed findings of fact and conclusions of law.
All parties orally argued the case. Since the hearing an excellent brief has been received
from the Respondent. The General Counsel, and the Union did not file briefs.
The allegations with respect tounfair labor practices are, in substance, that the Respondent,
in violation of Section 8 (a) (1) of the Act, through its supervisors and agents , and Wilbur
Bennett, D. Dusenberry, Perry Grady, Pete McNabb, Edwin Kirchgesner, and Jo Lippiatt,
during the months of August through November 1952, (1) threatened and warned its employees
that if the Union was selected as a bargaining representative, the number of employees would
be reduced, overtime eliminated, and the working hours reduced; (2) threatened and warned
its employees that they would have to strike before they would receive similar wages as in
union shops; and (3) threatened and warned its employees that they would suffer reprisals
from the Respondent if they favored the union and the Union was selected as bargaining
representative. The Respondent in its answer denied the commission of the alleged unfair
labor practices.
The objections to the election involved substantially the same matters set forth in the
complaint.
At the hearing the Union upon motion , and in the absence of objection , was permitted to
intervene in the unfair labor practice case , and to enter an appearance in the election case.
Upon the entire record in the case and from my observation of the witnesses, I make the
following:
FINDINGS OF FACT'
1. THE BUSINESS OF THE RESPONDENT
The Deming Company , an Ohio corporation , is and has been for the past 80 years engaged at
Salem, Ohio , in the manufacture of pumps. During the 12 months preceding the hearing, the
Company in the operation of its business from its plant in Salem , annually causes and has
continuously caused an excess of 75 percent of its products , said products having a total value
in excess of $ 7 million, to be sold, delivered , and transported in interstate commerce to and
through the various States of the United States other than the State of Ohio from its Salem
plant, and annually causes and has continuously caused in excess of 50 percent of its raw
materials , consisting of iron, copper , and steel having a total value in excess of $ 3 million,
to be purchased, delivered, and transported in interstate commerce from and through the
various States of the United States other than the State of Ohio to its Salem plant. At all times
material to these proceedings the Company employed approximately 900 persons on its pay-
roll, approximately 668 of which were and are production and maintenance employees, there
being about 800 employees on the factory payroll and about 100 of the office payroll, totaling
900 employees more or less.
I find , as the Respondent concedes , that it is engaged in commerce within the meaning of
the Act.
II. THE LABOR ORGANIZATION INVOLVED
United Steel Workers of America, CIO, is a labor organization within the meaning of the
Act.
i The findings of fact are based upon a consideration of the entire record and observation
of witnesses . To avoid unnecessarily burdening this report , all evidence on disputed points
is not set forth , but all has been considered , and where necessary resolved. In determining
credibility , the undersigned has considered inter alia demeanor and conduct of the witnesses;
their means and opportunity for knowledge of the things about which they testified; their
candor or lack thereof; apparent fairness, bias or prejudice; their interest or lack thereof;
and whether they have been contradicted or otherwise impeached.
1 104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
III. THE ALLEGED UNFAIR LABOR PRACTICES
On August 19, 1952, the Union filed its petition to the Board for certification as bargaining
representative of the Respondent 's production and maintenance employees ; on September 3,
1952, a representation hearing was held in the council chambers of the City Hall in Salem,
Ohio , on the petition ; on October 13,1952 , the Board issued its decision and directed an election
to be held. At the election on November 5, 1952, only 260 of 642 valid votes were cast for, and
382 votes were cast against, representation by the Union.
The Union filed its objections and exceptions to the conduct affecting the results of the
election with the Board on November 12, 1952. The Regional Director of the National Labor
Relations Board for the Eighth Region in a report on objections dated March 16, 1953, set
forth that an investigation had been made by the issues raised, both by the objections to the
election and unfair labor practice charges which had been filed in Case No. 8-CA-762, by the
Union on September 16, 1952 . The report recommended that on the basis of the investigation
a complaint should issue and formal hearing be held and that the formal hearing be held on
the objections to the election be consolidated with Case No. 8-CA-762. The Board in an order
entered April 1, 1953 , directed that a hearing be held on the issues raised by such objections
and that same be consolidated for hearing with charges filed in Case No. 8-CA -762, and
authorized the Regional Director to issue notice for consolidated hearing of both cases.
Copies of the Union 's objections to the election , the Regional Director 's report of objections,
and order of the Board directing the hearing were duly served upon the parties.
These events led up to the hearing which is covered in this report.
It should be noted at the outset that the records of the Board disclose that the organizational
campaign and election , out of which the present charges arise , are the third in the history of
the Respondent . On each of these occasions there has been a difference as to the bargaining
unit . The Union sought to have such unit change from time to time to gain an advantage in the
bargaining. The Board has determined the unit on each occasion when the question was
presented to it, and the employees had been given an opportunity to express their preferences
as to whether or not they desired the Union to act as their bargaining agent . On each of these
occasions the employees have voted overwhelming against the Union . Neither in the unfair
labor practice charges filed by the Union nor in the objections to the election is any claim
made that management of the Respondent was guilty of any violations of the Act. Instead, com-
plaints have been made regarding alleged coercive and threatening statements which are
claimed to have been made by foreman and assistant foreman of the Respondent to one or
more of the rank-and-file employees during the period of the organizational activities and
during the several months preceding the actual election, which resulted in the Union's petition
being rejected and repudiated by, as has already been stated, an overwhelming majority of the
duly qualified, voting employees.
Issues Presented
The pleadings present 2 narrow issues for determination by the Trial Examiner, namely:
(1) Were statements alleged to have been made by 6 supervisory employees of the Respondent
to rank-and -file employees prior to the representation election violative of Section 8 (a) (1) of
the Act, because of being coercive, intimidative, and interfering with the exercise by the em-
ployees of the rights guaranteed to them by Section 7 , of the Act; and (2) were these alleged
statements of such nature as to prevent the participating employees from registering a free
and untrammeled choice in the bargaining election . If the supervisors ' statements contained
predictions of reprisals , or promises of benefits dependent upon whether the employees voted
for, or against , the Union , such statements would be attributable to the Respondent and would
constitute violations of Section 8 (a) (1). If on the other hand the supervisors'statements did
not contain threat of reprisal , or promise of reward to the employees , they could not consti-
tute violations, because they were specifically authorized by the provisions of the Act dealing
with "free speech."
Incidents Involving Alleged Violations
The union organizational campaign among the employees of the Respondent was commenced
about 9 months prior to the Board election on November 5, 1952 . All of the events mentioned
in this report occurred in the year 1952 , unless otherwise indicated.
LeRoy McCluggage , the first witness for the General Counsel , has worked for the Respondent
7 years as an electrician , and was a member of the union organizing committee . He testified
THE DEMING COMPANY 1 105
that on October 16 he was at the plant storeroom, with Oscar Barrier, another electrician,
hooking up the coffee machine. He relates that he was on a ladder, and that Foreman Peter E.
McNabb was standing at the foot of the ladder and that McNabb said "We can run Dept. 7 with
half of the men that we have there and by God we will do it too if the Union comes in."
McCluggage says that James Baxter, a storekeeper, was also present. He admits that he was
not engaged in a conversation with McNabb, but states that he took the alleged statement of
McNabb as being intended for his benefit. Oscar Burrier, who has been employed by the
Respondent for 27 years, is also an electrician. He recalls the incident of the wiring of the
coffee machine that he was putting up electrical receptals on the outside wall of the store-
room, where the machine was located, while McCluggage was on a ladder on the inside of the
storeroom working. He did not recall seeing Foreman McNabb in the vicinity of the installation,
and did not hear McNabb or anyone else make the statements attributed to McNabb by
McCluggage. James Baxter, the storekeeper, who has worked for Respondent 14 years,
testified that he remembers the occasion when the coffee machine was being hooked up at the
storeroom, on or about October 16; that McChiggage was working on the inside of the store-
room, and Barrier on the outside was of the storeroom, but that he does not recall that
Freman McNabb was present. McNabb testified that he was not present in the vicinity of the
storeroom while the coffee machine was being put into service, and had no knowledge of the
installation for at least a day after the work was completed, did not make the statement attrib-
uted to him by McChuggage, and would not have done so had he been present. I was favorably
impressed with the appearance and demeanor of Foreman McNabb, Barrier, and Baxter, and
with their apparent fairness and candor. I was not so impressed with the testimony of LeRoy
McCluggage, who evidenced interest, and a disinclination to testify fairly and frankly and fully
on the matters regarding which he was interrogated.
LeRoy McCluggage further testified that about the middle of October, that Foreman Perry
Grady of the plant paint shop, was in the electrical shop where McCluggage worked. No one
else was present. According to McCluggage, Grady told him that he had worked in plants that
had unions, and said, "All they do is cause you trouble. Like if they come in here, they will
probably be on strike and you won't be getting the overtime hours that you are now--You will
find that conditions are worse than they are at the present time." McCluggage also described
another conversation with Foreman Grady which he says occurred in the paintroom about a
week later. He alleges that he was going past the paintroom and Grady "just sort of motioned
me over. And I stopped and talked to him. It was all along the same line, the same thing as he
told me before. He said, "You guys want a union here. All they will cause you is trouble. You
will monkey around and lose your overtime--you won't gain nothing."
McCluggage further testified that he was inthepaint department talking to his cousin, Virgil
Cobbs, when Foreman Grady came up and asked him if he had any work in that department, or
had been sent there by his foreman. McCluggage admitted that he was not there in connection
with his duties, and Grady told him to leave the department.
Foreman Grady admits that he had a conversation with McCluggage about October 13, but
says that it occurred in his department, rather than the electrical shop. Grady's version of
this conversation is that McCluggage came to him and asked what he thought about the Union,
and continues,
I told him what I thought. He asked me what I thought about it, and I told him that I had
been there a good many years with The Deming Company and I didn't believe that we
need a union in the shop; that I never saw any unfair play in the years I had been there.
The men had all been treated fair and honest.
Grady admitted that about a week later he had another conversation with McCluggage.
McCluggage had stopped in his department and was talking to Virgil Cobbs, one of Grady's men.
Grady described this occurrence as follows:
... I walked over and asked him(McCluggage) if he had any work to do in this department,
and in a sneeringlike manner he said, "yes, I did." I said, "Has your foreman sent
you out here? " He said, "No." Well, I said, "I will have to ask you, then, to leave the
department." .. he said, "Why is this now? " I said, "Listen, Mac, we don't argue
in the factory." He wanted to argue. I said, "We don't argue in the factory." I said,
"If we do any arguing, we will have to do it outside the factory." That's about all that
was said. He went on his way....
1106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
It will be remembered that there was no other person within hearing distance when the first
conversation between McCluggage and Foreman Grady occurred, and that on the second occa-
sion, Virgil Lee Cobbs, a cousin of McCluggage, and a rank-and-file worker, was present.
As stated above, Iwas not favorably impressed with the appearance or demeanor of the witness
McCluggage, or of his willingness to tell a full, frank story of the matters about which he
testified I was favorably impressed with the appearance, and demeanor of Foreman Grady,
and accept and credit his version of these conversations, and reject the version given by
McCluggage Incidentally, Grady's testimony as to the later conversation is corroborated by
Virgil Lee Cobbs, with whose manner and demeanor also favorably impressed me.
McCluggage further testified that during the union organizational campaign he was asked to
leave several departments of the plant because he was talking to fellow employees during
working hours about matters not connected with his work He admitted that he was reported
to the management of the plant on at least 6 occasions for doing this. On 1 occasion he was
ordered to leave department 20, and was directed to report to Edwin S. Dawson, the vice
president and general superintendent He reported to Mr. Dawson in his office, and had a
conversation about McCluggage visiting around in the plant and keeping other employees from
carrying on their work by talking to them in connection with matters not connected with their
jobs He admitted that Mr. Dawson made no mention of the Union in this conversation, and
says that "he tried to watch it a little more" after this warning from Mr Dawson. The testi-
mony'of McCluggage, even if taken at face value as to the incidents previously referred to,
which I am far from being able to do, does not suggest the occurrence of any unfair labor
practices in connection with-his meanderings over the plant talking with his fellow employees,
or of his being called in to Mr Dawson's office and being warned about talking to employees
during working hours regarding matters not connected with the plant operation.
Richard Weikart, a clerk in the plant-production department, who has been in the employ of
the Respondent about 3 years, was the General Counsel's second witness He was also a mem-
ber of the union organizing committee and an observer at the election, Weikart testified that
most of the conversations which he and the other employees of the production department
carried on about the Union were held while Foreman Donald Dusenberry was away from that
department. He told of one instance about a week before the election, when he and other em-
ployees were discussing the objectives and merits of the Union in the production office. He
stated that Dusenberry was present, and entered into the conversation Weikart defended the
Union and the accuracy of its handbills, and Dusenberry stated that the handbills were not
accurate or otherwise they would have been sent through the mail, and if they had been sent
through the mail the Union would have been sued for libel According to Weikart, Dusenberry
went on to say that his reasons for not wanting a union in the plant "were primarily the same
as many of our other objectives, that the Company would reduce overtime and reduce the em-
ployees." Weikart reported what Dusenberry had said about the handbills which the Union had
distributed in a brown envelope through the mails. Foreman Dusenberry tells a different
story of the incident when he made a statement regarding the union handbills He testified
that handbills had been distributed by the Union to the plant employees "about every morning,
it seemed, and I just couldn't see why these handbills couldn't be sent to the employees'
homes, rather than be handed out at the shop every morning and take about an hour of each
of the men's time to read and discuss the handbills." He further testified that he had not
directed his remarks particularly to Weikart, but to his entire office force who were engaged
in a discussion of the Union He inquired of the group why the union handbills couldn't be sent
through the mail, and testified that "I didn't think that these handbills should be sent to the
shop. I couldn't see why they couldn't send them out to the employees, if The Deming Com-
pany sends a letter , they send them to the home, to let the family look over the situation and
decide it, instead of passing handbills out at the shop." He admitted receiving a complete set
of all the handbills released by the Union up to that time, through the mails a couple of days
later, together with a letter from Mr. Shipka of the Union, stating that this was proof that
the handbills could be sent through the mails. Dusenberry specifically denied having made the
statement attributed to him by Weikart to the effect that the Union would be subject to suit for
libel if the handbills were sent through the mails, and also categorically denied that he had
ever threatened Weikart with reprisals, reduction in number of employees in the plant, reduc-
tion of working hours, the elimination of overtime, or otherwise. He concluded his testimony
by saying, "I never threatened any man " None of the other production department employees
who were present during the handbill incident were called as witnesses.
Foreman Dusenberry has been an employee of The Deming Company for 12 years His
manner and demeanor are that of an honest, trustworthy, and reliable witness, accordingly,
THE DEMING COMPANY 1107
I credit and accept his version of the matters about which he testified, and reject the testi-
mony of Weikart, who did not impress me so favorably, to the extent that it is in conflict with
Dusenberry's version.
Weikart also testified as to another incident which he says occurred about 12 or 12:30 on
a Saturday afternoon in the storeroom, where he was working overtime taking inventory
James Baxter, the storekeeper, was present According to Weikart, he and Baxter were
talking when Night Superintendent Elvin Kirchgessner came in to buy some doughnuts. He had
only seen Kirchgessner on one previous occasion, and someone had told Weikart who he was.
Continuing, Weikart said, "I don't know how the discussion got into the Union, but somehow
he (Kirchgessner) opened up and made the remark that if the Union got in we would lose our
overtime, and only half of us would be working, and I would be damned lucky if I held my job
at all." Weikart says that Kirchgessner "left as soon as he spoke because he realized he
couldn't talk me off." Foreman Kirchgessner remembers the occasion in the storeroom.
Incidentally, he denies going in for doughnuts, which he denies eating. He describes this occur-
rence as follows:
I went in there, there were four or five of them in there talking, arguing around, and
I said, "It kind of looks to me like you fellows come in here and work about six months
and try to run us fellows out who have been here 30 or 35 years."
Kirchgessner denied that he said anything further to Weikart or the other present on that
occasion, and categorically denied, threatened, or warned any employees as to what might
happen if the Union succeeded in organizing the plant. The testimony of James Baxter fails
to shed any light on what actually transpired on the occasion just discussed, since he does
not remember whether or not Kirchgessner was in the storeroom on the afternoon in ques-
tion However, Kirchgessner has been an employee of the Respondent for more than 30 years,
and I was favorably impressed by his appearance and demeanor and testimony as being a
trustworthy witness. I, accordingly, accept and credit his testimony, and reject the testimony
of Weikart, who, as already indicated, did not impress me as an entirely credible witness.
John Hartman and Fred Hartman, brothers, were the next witnesses who were called by the
General Counsel Since they both testified to the same incident, their testimony will be con-
sidered together They both claim that they work in department 11 under Foreman Jo Lippiatt.
They likewise both said that on one occasion Assistant Foreman Lippiatt came over to the
group composed of the two Hartmans, one Arthur Tontsch, who were standing near a machine
operated by Jonny Candle, and said "You see what happened over at Sanitary ... The same
thing will happen here, if we wanted to get more money, we would have to go on strike, and
we would be cut down to eight hours a day and five days a week " John Hartman is employed
as a helper and his brother Fred operates machines in the department over which Lippiatt is
assistant foreman Fred also testified that Lippiatt came by J Eagleton's machine, near
where he was working one morning, and said "if the union gets in, you will have your head
in a noose," and Hartman answered, "If the union gets in you are going to have your head in
a noose " John Hartman admits that while he was serving in the department 11, as a helper,
Patsy Romano, an old man, had a wheelbarrow load of chips. He told Lippiatt "I can't handle
this wheelbarrow, load of chips," Lippiatt asked John Hartman to help Romano, and Hartman
refused to do so. Fredrick Hartman admits that on one occasion he threw a block through one
of the plant windows. He was asked whether Lippiatt had always been "fair and square with
you," and answered, "Yes, sir " Joe Lippiatt commenced his present term of employment
with the Respondent some 13 years ago and is now machine foreman in department 11. Lippiatt
denied that he had made either of the statements attributed to him by the Hartman brothers
He admitted that he discussed the Union with workers who came to him for that purpose, but
denies ever having made any threats of reprisal, or being guilty of any of the other violations
with which he is charged in the complaint. John Candle, an engine lathe operator in department
11, stated that he had no knowledge of Lippiatt making any talk to the Hartmans and Arthur
Tontsch, near the machine Candle was operating, about a week before the union election When
asked by the Trial Examiner whether he had ever heard Lippiatt make any statements about
the Union, he replied in the negative I was impressed by the unprepossessing appearance,
demeanor, and conduct of the two Hartman brothers on the witness stand, do not consider their
testimony entitled to full faith and credit, and therefore reject it I was favorably impressed
with the appearance and demeanor of Lippiatt, and his willingness to answer the questions
propounded to him I was also favorably impressed with the testimony of Candle, and credit it.
Consequently, I accept Lippiatt's testimony as to what he did and said on the occasions under
consideration, and reject the testimony of the Hartman brothers as unworthy of belief.
1 108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Pappas is employed in department 7. He has been with the Respondent 8 years, and
was the next witness presented by the General Counsel At the time of the representation
hearing he was working on the night shift in department 8. Wilbur Bennett was his foreman.
He testified that he talked with Foreman Bennett on 2 occasions about the Union; that the first
time was about 11 p m., on Friday before the representation hearing was held in Youngstown,
Ohio, on September 3 He testified that he was working at his machine , when Joe Stanyard,
night foreman of department 7, was passing by and said in a joking manner to him "When the
Union gets in here, you ' ll be making more money ." He answered , "yes," joking back and
forth Just about that time Foreman Bennett came up and started in on the Union . Stanyard
moved on and Wilbur Bennett started telling him about the different fellows that he knew at
different jobs that worked where there were unions , that they were having union trouble, they
weren't working steady, and he said if we got a union in there that we would receive the same
wages as the Myers Pump get, and those were below the wages we were getting now And he
said if the Union got in there, whenever there wasn't any work on our machines , instead of
moving me over to another machine , that I would have to go home , and that we wouldn't work
steady, we would be cut down to8hours a day , and only 40 hours a week , because they couldn't
pay union wages and pay a lot of overtime like we are getting now. He told me "if the union
decides that they want to strike here, why, they just tell you, and you have to go out on strike.
You haven' t got a thing to say about whether you want to strike or not." I told him, "Oh, yes,
we do. We vote onthat ." Hesaid, "Is that what they told you?" I said, "Yes." He said, "Well,
you are mistaken . They have been feeding you a lot of stuff . That isn't true.... you better find
out for sure." He said , " The Steelworkers up in Youngstown didn't have anything to say,
whether they would go out on strike or not. We were talking about 2 hours there. Toward the
end I remember distinctly I stopped talking to him and he pointed his finger at me and he
said, "Jim, I am tellingyou right now , if you get that union in here you are going to be sorry "
Pappas testified that the second conversation with Bennett occurred on Friday night fol-
lowing the representation hearing on September 3 Bennett happened to be passing Pappas'
machine in the shop and made some remark , and Pappas said, "I was up to the preliminary
hearing on September 3. That was Wednesday ." I said, " I was up there Wednesday and, --
I asked them those questions and a few things you told me about , and the way you told me,
they are not true," he looked at me and laughed , and said , "Jim, you don't really believe the
stuff that they tell you, do you ? I said, "Yes, sir, I do. I believe in what they told me."
Pappas claimed that this conversation lasted about anhour , but admitted on cross-examination
that Bennett made no threats to him at that time
Foreman Bennett and Foreman Stanyard both testified that the first conversation between
them and Pappas did not last more than 5 or 6 minutes . Bennett stated the Myers Pump Com-
pany was mentioned because Pappas was comparing rates at The Deming Company with the
rates at the Bliss Company , and that he suggested that a more proper comparison would be
with the Myers Pump Company , because that company was in a similar type of production,
but that the Bliss Company , which Pappas thought Deming rates should be compared with,
was engaged in an entirely different type of production . He said that something was said about
how a strike vote would be settled . Pappas said that he would have an opportunity to vote on
it, and I said , " I don't think you would -- I don't know , but I don't think you would." .... then
I told him, I said , " Well , Jim, you better find out for sure whether you have that vote or
whether you don't. If you want to belong to the union, why, you should know those things."
Pappas mentioned belonging to a union was like belonging to a church ; that you have the right
to belong to a union if you believed in it , the same as you went to the church you believed in.
And I agreed with him I said , " Sure , Jim, this is a free country. That is one of the things
you went to fight for Keep it that way ." Bennett specifically denied that he shook his finger at
Pappas , as Pappas claimed, and said "Jim , if that union gets in here you are going to be
sorry." Bennett denied that he threatened Pappas in any way, or that he had threatened or
warned employees in connection with the bargaining election , as alleged in the complaint.
Both Bennett and Stanyard testified that at the completion of the conversation with Pappas they
both left together . As to the second conversation which Pappas told of having with Bennett,
Bennett testified that a few nights after the first conversation, he was passing Pappas' machine,
when Pappas stopped him , and told him that he got straightened out on some of those questions
we were asking him, and that he knew definitely now. Stanyard in his testimony also denied that
he had ever threatened any of the Respondent ' s employees regarding the bargaining election or
otherwise as alleged in the complaint . Stanyard has been employed by the Respondent for 20
years, and Bennett for 16 years . Iwas favorably impressed by their appearance and demeanor,
and that their testimony should be given full faith and credit . I, therefore , accept and credit
THE DEMING COMPANY 1 109
their testimony regarding these matters , and reject the testimony of Pappas , who did not so
impress me, to the extent that it is in conflict with their versions of these occurrences.
Harvey Breitenstein , the General Counsel 's next and final witness , works in department
7, under Foreman McNabb This witness said that after working hours on the night before
the election, he went to McNabb's office to see Assistant Foreman Tom Charnesky; that
after he had finished with Charnesky , McNabbaskedhim " Are you going to win the election?"
Breitenstein continued , " He meant me ." Rather he put it, "Are you. I said, "Yes." I said,
"We are .. We have considerably over half the shop signed up." He said, " if you don't,
I suppose you will be like Bryan ." And I said, " If you are referring to Bryan running for
President of the United States several times and didn't make it , ... yes, I will.... I am a
union man and I always will be." He said , "you want to be a little bit careful . You are getting
to be an old man." On cross - examination Breitenstein admitted throwing a block through a
window at the plant because he wanted more air than the other men, and had opened the
window 3 different ' times, and someone else had closed it . He insisted that that occurred
some 3 years previously, and that it was not the night before the election , and not at the time
of his throwing the block through the window when McNabb had made the statement to him
described above. Breitenstein did not impress me through his appearance or demeanor He
appeared to be prejudiced , and evidenced reluctance to answer fully and frankly the questions
propounded to him on cross-examination.
Both McNabb and Charnesky testified that Breitenstein had not been in their office to their
knowledge on such occasion , and that no such conversation as described by him took place.
McNabb also testified as to the incident when the window breaking came to his attention,
stating that he went to Breitenstein and said ''Harvey, you are getting to be an old man and
know better than to do that, you might have hurt someone walking along the street." In my
opinion Breitenstein simply attempted to attach this statement by McNabb to a fictitious
state of facts which he claims occurred the night before the election.
Edwin S. Dawson , vice president and general superintendent of the Respondent, testified
that he had complaints from foreman and assistant foreman that McCluggage had been
spending time in departments of the plant when he was not on company business, that his
assistant, Mr. Wilson, had told him that McCluggage had been in the toolroom one day
talking to the employees . He testified that he then called McCluggage into his office, told
him that he understood he had been spending a good deal of time around the plant on other
than company business , that it had been going on for several months , and that the best thing
for him to do was to tend to his own work . He asked McCluggage , " Are you going to try to
do better on this'" And he said , " Yes, sir ." He admitted that he didn't want the Union in
the plant.
It should be noted that there is no claim that the Respondent discharged , or invoked any
economic sanctions against any of its employees on account of their activities in behalf of
the Union during the organization campaign.
Discussion
The complaint does not attribute any violations of the Act to the Respondent ' s management.
Instead , it charges that 6 of the Respondent 's 44 supervisors made coercive and intimidative
statements to 6 of the Respondent's rank -and-file employees; during the union organizational
campaign. These statements are said to be violative of Section 8 (a) (1) of the Act, because
allegedly preventing the employees from exercising the rights guaranteed to them by Section
7, of the Act. It is also claimed that such statements and conduct on the part of these super-
visors created an atmosphere which prevented the participating employees from registering
a free and untrammeled choice in the bargaining election.
The question of whether the employees' rights under Section 7 of the Act have been unlaw-
fully invaded depends upon whether the utterances of the supervisors are privileged by the
free speech guarantees of the Constitution, or the provisions of Section 8 (c) of the Act.
Amendment 1 to the Constitution of the United States, provides:
Congress shall make no law respecting an establishment of religion , or prohibiting the
free exercise thereof; or abridging the freedom of speech, or of the press ; or the right
2 It is noted that only 6 out of the 668 employees in the bargaining unit testified as to the
alleged coercive statements attributed to the 6 supervisors Their testimony was refuted or
explained by 13 witnesses who testified for the Respondent, part of whom were rank-and-file
employees.
1110 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the people peaceably to assemble, and to petition the Government for redress of
grievances (Emphasis supplied.)
Section 8 (c) of the Act provides:
The expressing of any views, argument, or opinion, or the dissemination thereof, whether
in written, printed, graphic, or visual form, shall not constitute or be evidenced of an
unfair labor practice under any of the provisions of this Act, if such expression contains
no threat of reprisal or force or promise of benefit. (Emphasis supplied.)
The problem of when statements made by an employer, or by his supervisors, and thus
properly attributable to him, exceed the bounds of free speech, and become interference,
intimidation, and coercion, and violative of the Act, is not susceptible to any precise rule of
thumb, or standard formula of universal application. However, the problem has been con-
sidered in many reported cases, and reference to and application of a few of the pertinent
decisions disposes of the case at bar.
The United States Court of Appeals for the Fifth Circuit, in Continental Box Company
v N L. R. B., 113 F. 2d 93, stated:
The constitutional right to free speech in regard to labor matters is as clearly a right
of employers as of employees, and if the National Labor Relations Act purported to take
away the right, the Act could not stand.
The Eighth Circuit in N. L R. B v. American Pearl Button Company, 149 F 2d 311, com-
mented:
The right to discuss and inform people concerning advantages and disadvantages of
unions and joining them is protected not only as free speech, but as part of free assembly.
The Eighth Circuit, more recently , in N L. R. B. v Montgomery Ward & Company. 157 F
2d 486, held , inter alia:
The right of free speech guaranteed by the First Amendment is not limited to any class
and is not denied an employer by the National Labor Relations Act which only forbids
the abuse of such right in attempting to coerce employees.
As said by Mr. Justice Rutledge for the Supreme Court in Thomas v. Collins, 323 U S
516, referring to the constitutional guarantee of free speech, commented:
The right is a national right, federally guaranteed. There is some modicum of freedom
of thought, speech and assembly which all citizens of the Republic may exercise through-
out its length and breadth, which no State, nor all together, nor the Nation itself, can
prohibit, restrain or impede.
See also Port Chester Electrical Corp. 97 NLRB 354, The Jackson Press. Inc , 96 NLRB
897, Dolores. Inc., 98NLRB550, DinionCoilCo., Inc.,96NLRB1151, 201 F 2d 484: N. L R. B.
v Va. Electric Power Co., 314 U. S. 469 Cf. Standard Coll Products, Inc., 99 NLRB 222.
It is abundantly clear from the casescitedthat an employer and his supervisors are entirely
within their constitutional and statutory rights in discussing freely and frankly union matters
with the rank-and-file employees, unless, and until they make some threat of reprisal, or
offer some economic benefit to induce the employees to disfavor the Union. As I have here-
mabove resolved credibility, the credited testimony does not include any evidence of inter-
ference, intimidation, or coercion on the part of the Respondent's supervisors as alleged in
the complaint. While it is true that Mr. Dawson, the operating head of the plant, frankly
admitted that he did not want the Union to organize the Company's employees, there is no
claim or evidence to indicate that he was guilty of any violation of the Act. Furthermore,
while the Act forbids an employer from committing unfair labor practices in connection
with a union organizational campaign, the Act contains no provisions requiring an employer
to welcome the Union into his plant with open arms, or to entertain regard and esteem for the
Union. Consequently, no violation of the Act could be grounded on Mr. Dawson's admission
that he did not want the Union to organize the Company's plant.
PERMANENTE STEAMSHIP CORPORATION
In consideration of all of the foregoing , I find that the Respondent did not violate Section 8
(a) (1) of the Act, and that the Respondent did not prevent its participating employees from
registering a free and untrammeled choice in the bargaining election held on November 5,
1952.
CONCLUSIONS OF LAW
1. United Steel Workers, CIO, is a labor organization within the meaning of Section 2
(6) and (7) of the Act.
2. Respondent , The Deming Company, Inc., is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
3. Respondent , The Deming Company, Inc ., has not engaged in any unfair labor practices
within the meaning of the Act.
4. Respondent , The Deming Company, Inc., did not prevent its participating employees
from registering a free and untrammeled choice in the bargaining election held on November
5, 1952.
[Recommendations omitted from publication. ]
PERMANENTE STEAMSHIP CORPORATION and WILLIAM
POWELL
NATIONAL UNION OF MARINE COOKS & STEWARDS and
WILLIAM POWELL Cases Nos . 20-CA-614 and 20-CB-208.
February 10, 1954
DECISION AND ORDER
On April 28, 1952, Trial Examiner A. Bruce Hunt issued his
Intermediate Report in the above -entitled proceeding finding
that the Respondents had engaged in and were engaging in cer-
tain unfair labor practices , and recommending that they cease
and desist therefrom and take certain affirmative action as set
forth in the copy of the Intermediate Report attached hereto.
Thereafter , the Respondent Union filed exceptions to the Inter-
mediate Report.
On January 7, 1953, the Board issued an order reopening the
record, and on February 10, 1953, a corrected order reopening
the record for the purpose of enabling the parties to present
certain evidence deemed relevant to the issues in the case.
Pursuant to these orders , a further hearing was held before
Trial Examiner Hunt . On June 8, 1953 , the Trial Examiner
issued his Supplemental Intermediate Report, a copy of which
is attached hereto, reversing in part his prior findings and rec-
ommending the dismissal of certain allegations of the com-
plaint . He further recommended that the Respondents cease
and desist from certain conduct found to be violative of the Act
and take certain affirmative action . Thereafter , both the
General Counsel and the charging Party filed exceptions to the
Supplemental Intermediate Report and supporting briefs.
The Board has reviewed the rulings of the Trial Examiner
made at the hearings and finds that no prejudicial error was
107 NLRB No, 234.