The F. C. Russell Co.

National Labor Relations Board - Board Decisions

Nov 22, 1950

92 N.L.R.B. 206 (N.L.R.B. 1950)

In the Matter of THE F. C. RUSSELL COMPANY and UNITED STEs1.-
WORKERS OF AMERICA, CIO
Case No. 8-CA-290.-Decided November 22, 1950
DECISION AND ORDER
On August 11, 1950, Trial Examiner Bertram G. Eadie issued his
Intermediate Report in the above-entitled proceeding, finding that the
Despondent had engaged in certain unfair labor practices, and recom-
m._ending that it cease and desist therefrom and take certain affirma-
tive action, as set forth in the copy of the Intermediate Report at-
tached hereto. Thereafter, the Respondent and the General Counsel
filed exceptions to the Intermediate Report and supporting briefs.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
this proceeding to a three-member panel [Chairman Herzog and
Members Murdock and Styles].
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.'
I At the hearing the Trial Examiner reserved ruling on the Respondent's notion to strike
the testimony of Owen Palmer , a witness produced by the General Counsel . The General
Counsel excepts to the Trial Examiner's failure subsequently to rule on this motion. Palmer
testified that he was present in the Respondent ' s plant on October 26 , 1950, having come
there for a job interview with Thomas , the Respondent ' s personnel director . When he
arrived at the plant Thomas was then conferring with Saverice, the Steelworkers' staff
representative , concerning the discharge of employee Edward C. Felde on the preceding
day. Upon the termination of the conference , Thomas engaged in discussion with Palmer
and, according to Palmer ' s testimony , remarked to him as follows
. . . that Mr. Saverice had been there to see about a man that had been dis-
charged. . . . that a man had come to him that he felt very strongly for, for a job,
that his wife was pregnant, and that he felt very strongly for the man, and he dice
give him a job. And he found out later that he was one of the biggest agitators and
organizers they had in the plant.
The General Counsel contends that the motion to strike this testimony should have been
denied and that the testimony should be credited and considered as proof of the Respond-
ent's discriminatory motive for the discharge of Felde . The Respondent, in its brief, argues,
in effect , that the testimony should be stricken because it cannot reasonably be related to
Felde, and also because it cannot reasonably be determined whether Thomas acquired the
knowledge concerning Felde's status as an "agitator " and "organizer" before or after
Felde's discharge.
We are satisfied as to the admissibility of the testimony . The Respondent ' s motion,.
therefore , is accordingly denied . It is clear from all the circumstances in the record that
Thomas' alleged remarks related to Felde. We are also satisfied that the tenor of the
92 NLRB No. 53.
206
THE F. C. RUSSELL COMPANY 207
The Board has considered the Intermediate Report, the exceptions
and briefs, and the entire record in the case, and hereby adopts the
findings,2 conclusions, and recommendations of the Trial Examiner
with the following additions and modifications :
1. The General Counsel has excepted to the Trial Examiner's failure
to find that the Respondent's conduct in connection with the straw
poll of June 19, 1949, violated Section 8 (a) (1) of the Act.
In April 1949, the Union actively initiated its organizing campaign.
The Respondent had knowledge of these activities. On about June
15, 1949, a conference between certain officials of the Respondent and,
a group of its employees was held at the Respondent's plant in the
office of General Manager Atkins. The management officials present
included Vice-President Schleusner, Vice-President Russell , Person-
nel Director Thomas, and Atkins. Among the five or six employees
in attendance was Jalo, then the temporary chairman of the Union.
However, none of the employees present officially represented the
Union. Thomas testified that the conference was called at the request,
of the employees and that the employee representatives had been
chosen by Jalo and employee Murray. Jalo, on the other hand, testi-
fied that he was informed by the Respondent that it had selected the
employee representatives. The conference discussion centered mainly
remarks and the circumstances under which they were allegedly made reflect union animus
which is relevant and material to the issues in this proceeding . We agree , however, with
the Respondent that it cannot reasonably be determined whether Thomas learned that
Felde was an "agitator" and "organizer" before or after the discharge. Accordingly, we
do not find , as urged by the General Counsel , that Thomas ' alleged remarks to Palmer
constitute proof of a discriminatory motive for the discharge of Felde. We find it unneces-
sary to credit or discredit Palmer ' s testimony in view of our 8 ( a) (1) findings herein,
and do not rely thereon in connection with these findings.
2 The Intermediate Report contains certain minor misstatements of fact and inadver-
tences, none of which affects the Trial Examiner ' s ultimate conclusions , or our concur-
rence in such conclusions . Accordingly , we make the following corrections : ( 1) The
consent election referred to in this proceeding was held on October 27 , 1949 , and not on,
October 20 , 1949 , as stated at one place in the Intermediate Report ; ( 2) the hearing in this
proceeding was held on May 23 to 25 . 1950 , and not on March 7, 1950 , as stated in the
Intermediate Report; ( 3) the Trial Examiner stated that the Respondent employs ap-
proximately 75 to 130 persons at its plant . The record shows that on September 6 or T,.
1949, the. Respondent employed 30 employees ; between these dates and about October 17,
1949 , the Respondent 's force had been increased to 50 or 60 employees ; during the period
of approximately October 17 , 1949 , to October 24, 1949, the force was increased to 120 to
130 employees ; ( 4) the Trial Examiner has incorrectly referred to Foreman Kominic as
Iiommic; ( 5) the following two statements appear in the Intermediate Report:
In making the findings herein , the Trial Examiner has considered and weighed the
entire evidence and the briefs presented . It would needlessly burden this report to
evaluate all the testimony on disputed points.
Although there is an apparent inconsistency in these statements we are convinced;
that the Trial Examiner meant to indicate , not that he failed to evaluate all the testimony;.
but that for the sake of brevity did not recite all the testimony in his Report . Regardless:
of the meaning of this statement , the Board ' s findings herein are based upon a d'e nova
review of the entire record and an evaluation of all the evidence, including an evaluation
of the testimony on disputed points. See Standard Dry Well Products. Inc., 91 NLRB' 544:.
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about terms of employment and the desires of employees for a written
statement by the Respondent as to those terms. Near the close of the
conference a suggestion was made by Murray, who was not a mem-
ber of the Union, that a straw poll be held to determine the desires of
the employees as to representation. Jalo protested on the ground
that the employees were not formally represented and that a decision
by the group as to a poll would not be binding on them. Apparently,
however, all persons at the conference finally agreed to conduct a
poll on June 17, 1949. Later, at the Respondent's request, this ckte
'was changed to June 19.
On the afternoon of June 19, the poll was held on the Employer's
premises in a room next tothe plant office. Jalo handed ballots to the
employees who voted secretly and dropped their ballots in a box which
was sealed at the close of the election. Jalo testified that the ballots
were sheets of tablet paper bearing the designations "International
Union," "Independent Union," and "No Union." Atkins testified
that the ballots were blank sheets on which the employees wrote "yes"
or "no." Jalo and at least 2 other employees were present during
the balloting. Atkins was also present and participated in counting
the ballots. The results of the afternoon balloting showed 21 em-
ployees in favor of the Union and 20 for an independent union. Later
that day, at 11 p. in., the night watchman, Bristol, reported for duty.
Jalo testified 'that Bristol was met by Atkins and employee Bennett
and was informed of the tally and was told, "We are on the fence,
and if you vote right it will be a tie." Atkins denied having spoken
to Bristol before he voted. Bristol voted and mingled his ballot with
the others. On the following morning the ballots were again counted
with Atkins participating and the tally showed a 21-21 tie.
We find it unnecessary to resolve the several conflicts in the fore-
going recital. ' The undisputed facts are that the decision to conduct
the poll was reached by and with the consent of the Respondent, and
that the poll was conducted with the full scale assistance of the Re-
spondent. Not only were arrangements for the poll made with the
active participation of the Respondent, but the date for the election
was changed at the Respondent's request to suit its own convenience;
the election was held on the Respondent's premises, and the Respond-
ent's.general manager was present during the balloting and took part
in the counting of the ballots. We find from these circumstances that
the Respondent was a principal participant in a private poll of its
employees designed to disclose to it the union sympathies of its em-
ployees as well as the strength of the Union, and that by its activities
in connection With the poll the Respondent unlawfully interfered with
THE F. C. RUSSELL COMPANY 209
the rights of employees guaranteed by Section 7 of the Act in viola-
tion of Section 8 (a) (1) of the Act.3
2. In his Intermediate Report, the Trial Examiner found that
Vice-President Russell had unlawfully interrogated employees con=
cerning their union views for the purpose of securing advance infor-
mation as to their voting intentions in the Board election of October
27, 1949. He found that by such conduct the Respondent had violated
Section 8 (a) (1) of the Act. We agree with this finding.
In his preliminary findings of fact the Trial Examiner enumerated
several conversations between General Manager Atkins and various
employees. He prefaced this enumeration with the statement that
Atkins by questioning these employees had "overstepped the rights
of the employees under the Act."' The Trial Examiner, however,
made no concluding findings of 8 (a) (1) violations based upon such
questioning, but on the other hand, appears to have exonerated the
Respondent therefrom by stating :
The Trial Examiner is of the opinion that the interviews and
interrogations of the employees by Atkins, the plant manager;
.. . was an endeavor to fraternize with the employees and to
best place them in the organization of Respondent. ... when
he entered into any conversation with an employee it was more
along the lines of friendship rather than acquiring knowledge
to be used for an ulterior motive.
Irrespective of Atkins' motives, we find that his 'interrogation of em-
ployee Bennett as to his views concerning the outcome of the Board
election', and his interrogation of employee Armstrong as to his union
views in which Atkins' concluding remark to Armstrong was "Well,
I guess we didn't have to worry about you," are per se violative of
Section 8 (a) (1) of the Act.'
The Remedy
The Trial Examiner inadvertently recommended that the Respond-
ent cease and desist discriminating in regard to the hire and tenure of
3 Paterson Fire Brick Company, 90 NLRB 660; Stainless Ware Company of America,
87 NLRB 138; Stocker Manu facturing Company, 86 NLRB 666; Granite State Machine
Company, Inc ., 80 NLRB 79; Ames Spot Welding Co ., Inc., 75 NLRB 352. We find no
merit in the Respondent 's contention that it is absolved from all responsibility for its
part in this election because the initial suggestion therefor was made by a rank-and-file
employee . The fact remains that the Respondent embraced the suggestion and proceeded
to engage in conduct which the Board has uniformly interdicted.
4 We do not agree with the Trial Examiner 's observation that Atkins in all of the
conversations with employees enumerated in the Intermediate Report had "overstepped
the rights of the employees under the Act." We limit our 8 (a) (1) findings to those
conversations to which we specifically advert herein.
6 Standard -Coosa-Thatcher Company, 85 NLRB 1358.
210 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employment of employees, notwithstanding the fact that he recom-
mended dismissal of the 8 (a) (3) allegation of the complaint. Ac-
cordingly, we Shall modify the recommended order by deleting there-
from the above recommendation.
The Trial Examiner, because he found no unlawful- conduct other
than the single 8 (a) (1) interrogation by Vice-President Russell,
concluded that the record discloses no danger of future commission by
the Respondent of unfair labor practices other than those related to
such interrogation. Accordingly, he recommended that the usual
broad cease and desist order should not be issued in this. case. We have
found, however, contrary to the Trial Examiner, that the Respondent
has committed additional unfair labor practices which together with
the record as a whole discloses a manifest hostility toward the attempts
by its employees at self-organization. Unlike the Trial Examiner,
therefore, we find that the unfair labor practices committed by the
Respondent are potentially related to other unfair labor practices
proscribed by the Act and that the danger of their commission in the
future is to be anticipated from the Respondent's past conduct. The
preventive purpose of the Act will be thwarted unless our order is co-
extensive with the threat. Accordingly, in order to make. effective
the interdependent guarantees of Section 7 and thus effectuate the
policies of the Act, we shall issue a broad cease and desist order.
ORDER
Upon the entire record in the 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, F. C. Russell
Company, Conneaut, Ohio, its officers, agents, successors, and assigns,
shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their union member-
ship, activities, or sympathies;
(b) Polling its employees to determine whether they desire to be
represented by United Steelworkers of America, CIO, or any other
labor organization;
(c) In any other manner interfering with, restraining, or coercing
its employees in the exercise of the right to self-organization, to form,
join or assist the United Steelworkers of America, CIO, or any other
labor organization, to bargain collectively through representatives
of their own choosing, to engage in concerted activities for the pur-
THE F. C. RUSSELL COMPANY 210-1
pose of collective bargaining or other mutual aid or protection, and
to refrain from any and all such activity except to the eNtent that such
rights 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 amended.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Conneaut, Ohio, copies of the notice attached
hereto and marked Appendix.' Copies of said notice, to b-^ furnished
by the Regional Director for the Eighth Region, shall, after being
duly signed by a representative of the Respondent, be posted by it
immediately upon receipt thereof and maintained by it for sixty (60)
consecutive days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to insure that said notices- are not
altered, defaced, or covered by any other material;
(b) Notify the Regional Director of the Eighth Region in writing
within ten (10) days from the date of this Order, what steps the
Respondent has taken to comply herewith.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees in any manner concern-
ing their union membership, activities, or sympathies.
WE WILL NOT poll our employees to determine whether they
desire to be represented by UNITED STEELWORKERS OF AMERICA,
CIO, or by any other labor organization.
WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of the right to self-organiza-
tion, to form, j oin, or assist the UNITED STEELWORKERS OF AMERICA,
CIO, or any other labor organization, to bargain collectively
through representatives of their own choosing, to engage in con-
U In the event this order is enforced by a decree of the United States Court of Appeals,
there shall be inserted before the words , "A Decision and Order ," the words , "A Decree
of the United States Court of Appeals Enforcing."
210-2 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certed activities for the purpose of collective bargaining or other
mutual aid or protection, or to refrain from any and all such
activity 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.
All of our employees are free to become, remain, or refrain from
becoming members of the afore-named union or any other labor organ-
ization. We will not discriminate in regard to hire or tenure of em-
ployment or any term or condition of employment against any em-
ployee because of membership in or activity on behalf of any such labor
organization, except to the extent that this right may be affected by
an agreement in conformity with Section 8 (a) (3) of the Act.
F. C. RUSSELL COMPANY
Employer.
Dated ------------------------ By ----------------------------
(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
INTERMEDIATE REPORT
Bernard NVes.s, Esq., for the General Counsel.
Janes R. Tritsehler, Esq., of Cleveland, Ohio, for the Respondent.
STATEMENT OF THE CASE
Upon a charge duly filed by United Steelworkers of America, CIO, herein
called the Union, the General Counsel of the National Labor Relations Board,
respectively called herein the General Counsel and the Board, by the Regional
Director of the Eighth Region (Cleveland, Ohio), issued a complaint dated April
14, 1950, against The F. C. Russell Company, herein called the Respondent, al-
leging that the Respondent had engaged in and was engaging in unfair labor prac-
tices within the meaning of Section 8 (a) (1) and (3) and Section 2 (6) and (7)
of the National Labor Relations Act, as amended, 61 Stat. 136, herein called the
Act. Copies of the complaint, charge, and notice of hearing were duly served
upon all the parties.
With respect to the unfair labor practices, the complaint alleges, in substance,
that the Respondent : (1) from on or about July 1949, continuously to date,
through its officers, agents, and supervisory employees has interrogated its em-
ployees in its Conneaut, Ohio, plant, concerning their union affiliations by threats
of reprisal and promises of benefit; threatened and warned its employees to
refrain from assisting, becoming members of, or remaining members of the
Union, or engaging in concerted activities for the purpose of collective bargain-
THE F. C. RUSSELL COMPANY 211
ing, and other mutual aid or protection; and (2) by conducting and sponsoring
a poll to determine the employees' choice of a bargaining representative, by soli-
citing opinions of employees about the Union and the employees' relationship
therewith and its, effect on management ; threatened and warned its employees
to refrain from assisting, becoming members of, or remaining members of the
Union or engaging in concerted activities for the purpose of collective bargain-
ing and other mutual aid and protection ; and (3) on or about October 25, 1949,
discharged Edward C. Fettle, an employee in its Conneaut, Ohio, plant, and has
since failed to, refused to, and continues to refuse to recall or reinstate him, for
the reason that he had joined, assisted, and favored the Union and engaged in
other concerted activities for the purpose of collective bargaining and other
mutual aid and protection.
By such acts and by each of said acts, Respondent did interfere with, restrain,
and coerce, and is interfering with, restraining, and coercing its employees in
the exercise of the rights guaranteed in Section 7 of the Act and did thereby
engage in and is thereby engaging in unfair labor practices within the meaning
of Section 8 (a) (1) and (3) and Section 2 (0) and (7) of the Act.
The answer of Respondent which was duly filed on April 24, 1950, admitted
the jurisdictional facts concerning interstate commerce on its part, the dis-
charge of Fettle, and that the United Steolworkers of America, CIO, is a labor
organization within the meaning of Section 2 (5) of the Act, and denied all
the alleged unfair labor practices.
Pursuant to notice, a hearing was held on March 7, 1950, at Conneaut, Ohio,
before the undersigned Trial Examiner, duly designated by the Chief Trial
Examiner. The General Counsel and the Respondent were represented by
counsel and participated in the hearing. All parties were afforded full op-
portunity to be heard, to examine and cross-examine witnesses, and to produce
evidence bearing upon the issues. The complaint was amended on motion of
the General Counsel over the objection of Respondent, by the Trial Examiner,
permitting an allegation to be incorporated therein to the effect that Respondent
committed an unfair labor practice "by conducting and sponsoring a poll to
determine the employees' choice of a bargaining representative, by soliciting
opinions of employees about the Union and the employees' relationship therewith
and its effect on management." The ruling on the objection was reserved but is
now denied and the amendment allowed. At the close of the whole case, the
General Counsel moved to conform the pleadings to the proof as to names,
dates, and other minor variances. The motion was granted without objection.
Counsel for Respondent moved to strike out Paragraph VII of the complaint
as amended together with Paragraphs VIII, IX, X, XI, and XII. He also moved
to dismiss the complaint. The motions were denied. All parties were afforded
an opportunity to be heard and file briefs or proposed findings of fact and con-
clusions of law, or both. The General Counsel and the Respondent have filed
briefs with the Trial Examiner.
Upon the entire record in the case, and from his observation of the witnesses,
the Trial Examiner make the following : '
I In making the findings herein, the Trial Examiner has considered and weighed the
entire evidence and the briefs presented. It would needlessly burden this report to
evaluate all the testimony: on disputed points. Such testimony or other evidence as is
in conflict with the findings herein is not credited.
212 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent is a corporation organized and existing under and by virtue
of the laws of the State of Ohio, with its general office and place of business at
Cleveland, Ohio. It operates four plants located in the State of Ohio and is
and has been engaged in the manufacture of metal awnings, storm doors, and
storm windows.
This proceeding is concerned only with Respondent's plant located at Conneaut,
Ohio. At its plant it employs approximately 75 to 130 persons.
Respondent, in the course and conduct of its business operations, causes and
has continuously caused annually in excess of 50 percent of its raw materials,
having a value in excess of $100,000, to be purchased, delivered, and transported
in interstate commerce from and through the States of the United States other
than the State of Ohio, to its plant located at Conneaut, Ohio, and causes and has
continuously caused annually in excess of 50 percent of its finished products,
having a total value in excess of $200,000, to be sold, delivered, and transported
in interstate commerce to and through States of the United States other than
the State of Ohio, from its said plant.
Respondent admits that it is engaged in commerce within the meaning of
Section 2 (6) and (7) of the Act.
II. THE ORGANIZATIONS INVOLVED
United Steelworkers of America, CIO, is a labor organization within the
meaning of Section 2 (5) of the Act which admits to membership employees
of the Respondent.
III. THE UNFAIR LABOR PRACTICES
A. Surrounding facts and circumstances
Respondent operated three plants in the State of Ohio, manufacturing storm
windows, storm sash, and combination storm doors. It opened its plant in Con-
neaut, Ohio, in November 1948, to manufacture seasonal items, awnings, jalousies,
and canopies to be made of aluminum. It was the first time that such items
were made of steel or aluminum.
The employees for the operation were recruited by Thomas, director of plants
personnel. Until January 10, 1949, there were only two maintenance men em-
Hokkanen and Jalo, together with an office assistant. Before hiring
further help, Thomas made a rate survey. He knew what jobs were going to
be put into effect as he wanted to pay a fair wage, and in order to get a good
idea of what was paid in the area. He took a week to make the survey. The
scale of wages proposed by him was approved by the vice president of the Respond-
ent at Cleveland, Ohio, for the purpose of hiring the needed employees.
The first thing he did thereafter was visit the Ohio State Employment Service
at Ashtabula and informed that agency he was interested in hiring at least 25 men.
He visited various sections of the town. He called upon the Masonic Lodge,
the church organizations, and the Knights of Columbus; informing them and
making it known throughout the town that he was hiring people.
By January 10, 1949, there was a whole book full of applications ; he looked
over all of them and tried to pick out the special skills needed by the plant. Some
were hired, others rejected, and he eventually depleted all the applications.
Other people came in and applied. Thomas was responsible for the hiring pro-
THE F. C. RUSSELL COMPANY 213
gram when the Respondent started production. There were 36 jobs to start with.
Some employees were recalled to the docks and railroads, as they had established
seniority in those jobs and naturally left the Respondent's employ. As they
dropped out he would replace them. Thomas personally hired all replacements.
Employment stayed at 36 for a long time until the door program came in. About
September 6, 1949, it was decided to increase the force from 36 to 120 at the
plant. Thomas went through the applications for employment to afford an inter-
view to the applicants who had not been previously interviewed. He called them
and requested that they come and see him. Some he could not reach, others
were working. He needed men immediately and stayed at the plant for 3 days,
from 7 a. in. until 1 a. in., hiring them.
Felde had previously filed an application and Thomas called him at his home
on September S. He was not there and Thomas left word for him to get in touch
with him. Thomas waited until 10 p. in. that night but Felde did not get in touch
with him.
Felde reported at the plant the next morning, with two others whom Thomas
had interviewed and employed the previous day, and had ordered them to
report for work that morning. Their time cards were placed in the rack. The
next morning Felde informed the plant manager that Thomas had hired him
the previous day and told him to report. The plant manager accepted him as
an employee and put him to work. As it was an exceptional circumstance he
called Thomas at the Cleveland plant and reported the facts to him. Thomas
told the manager that he could keep Felde at work and he would interview him
when lie was next at the plant.
B. Union activities on the part of Respondent
Shortly after the plant was opened and in April 1949, efforts were made by
certain of, the employees to organize a campaign for the Union at the plant.
Saverice and Halsey were staff representatives of the Union. Jalo, one of the
two maintenance men, took a prominent part in the campaign and later became
the leader of the prounion faction and thereafter the president of Local #4240
of the Union. There was a distinct line of demarcation between the union and
the nonunion men.
The Respondent appointed a committee including Jalo and several other
employees who had expressed their interest in organizing a union to meet with
Russell, Thomas, and Atkins, vice president, personnel director, and plant
manager of Respondent, respectively. The committee was composed as near as
possible of a neutral body composed of company, union, and nonunion interests
in attendance. It was there decided by that committee to hold an informal
election in June 1949, by secret ballot, as to the wishes of the employees, and
whether they desired any outside union. The Respondent showed no animosity
toward the employees by anything that was done up to that time.
The ballots were counted immediately after the vote was taken but before
the night watchman had voted. The return of the vote showed that the prounion
faction had received 21 votes and the nonunion faction 20. The watchman
voted later when he came on duty and cast his vote for nonunion which made
the result a tie vote. On October 7, 1949, the Union and Respondent entered
into an agreement for a consent election which was held on October 20, 1949.
A majority of the ballots were-cast for the Union, which was certified as the
exclusive representative of the employees.
214 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thomas made it his duty to interview each new employee shortly after he
was hired for the purpose of properly adjusting him to his, employment,
such interviews and the questions he asked of them in the Trial Examiner's
opinion in nowise transgressed the rights of the employees tinder the provisions
of the Act. However, the Trial Examiner finds that the plant manager, Atkins,
overstepped the rights of the employees under the Act in questioning the follow-
ing employees as follows :
Respondent 's witness, Summers :
A. Well, I was called to the office once or twice, and Atkins told me about
the Union, told me they tried to get in, or wanted to get in.
Q. What else?
A. And he told me it would be better-which would be best for me and
for the Company, and I agreed with him, I agreed with him before he even
started. My dad worked there before I started, and as I say, I was in union
shops, and I have been beat by the Union two or three times myself, my dad,
and my brother.
* * * * * * *
Q. Did he ask if you were against it?
A. Well, he told me I could join it if I wanted to, and if I didn't want to,
I didn't have to.
General Counsel's witness, Bennett :
Q. Do you remember shortly before the election whether Mr. Atkins
called you in his office?
A. He did.
Q. Will you tell us what was said in that conversation, as best you can
remember?
A. I can't remember very little of it. We talked back and forth about the
Union situation at that time, what I thought about the outcome of the
election, and so on.
I didn't pay attention enough to it to recall it word for word, and I wouldn't
try to.
* * * * * * *
Q. You said you talked back and forth about the Union?
A. Yes.
Q. What was back and what was forth'?
A. He knew how I stood on the Union, Mr. Atkins did. I can remember,
how I thought it was divided between the non-union and the union men in
the shop, and that was about the gist of the conversation, as I remember it.
* * * * * * *
Q. Did you tell him that you thought the election was going to be pretty
close?
A. I believe I did ; yes.
General Counsel 's witness , Armstrong:
Q. During your employment with the Company, were you ever called into
Mr. Atkins' office?
A. Yes, I was. -
Q. Do you recall when that was?
A. About two weeks before the election. _
Q. Well, tell us what was said?
A. Well, I came in and he asked me how I liked the work, and' I told him
all right.
THE F. C. RUSSELL COMPANY 215
And he told me that up to then he hadn't had any complaints on my work
and he told me a story about a milkman, that, say, the milkman had been
delivering the milk at your house at six o'clock in the morning, and then one
morning, all of a sudden, he would come in and tell you he wasn't going to
deliver the milk at six o'clock anymore, that he was going to bring it, say, at
twelve o'clock ; and he asked me how I felt about unions. I told him up
till then I never worked in a union place, and I was satisfied without one.
And the conversation ended with him saying, "Well, I guess we didn't
have to worry about you."
Russell, a vice president of the Respondent, also interviewed the employees
several days before. the scheduled election. Bennett testified as follows :
Q. Do you know a Mr. J. B. Russell?
A. Yes.
Q. Did you ever fee him at the plant?
A. Oh, yes, many times.
Q. Did he ever speak to you shortly before the election?
A. He did.
Q. About how long before the election?
A. Well, that was close to the election time that I talked with him. I
couldn't say how close, whether it was two or three days, possibly. It was
within a week, I would say.
Q. Tell us, what was said in that conversation, as best you can remember.
A. Well, as best I can remember, he had a list of the men working there,
and lie told me that he was taking a sort of a poll on the men to see where
they stood on the union question. That was as near as I can tell you about
the conversation.
Q. Were any specific names mentioned?
A. No, no specific names mentioned. He did go down the list and ask me
if I knew which side different men were on.
Q. Was that in reference to the Union?
A. In reference to the Union, correct.
Q. And did you tell him what you thought?
A. I told him what I knew. I didn't know where many of them stood,
because I didn't talk with anyone much about the Union.
Q. While you were telling him this was he writing it down? Did you
see him write it down?
A. He was writing something. I couldn't see what he wrote.
Russell testified as follows :
Q. Two days prior to the Labor Board election, you said you talked to the
employees in the plant?
A. That's right.
Q. Did you talk to them individually?
A. Yes.
Q. Did you talk to all of them?
A. No.
Q. There were some that you missed ; is that right?
A. That's right.
Q. Why did you miss them?
216 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I didn't have the time to talk to them all. It was my intention to. I
got into the plant around two-thirty and the day shift quit at 3: 30, and I
think I talked to four fellows before the day shift went home, and about 10
or 12 in the evening.
Q. Now, what was the nature of your conversation with these people?
A. I told them that I knew and they were aware of this election in a day
or so, I believe it was two days, and that the only thing that I wanted them
to know was the position of the Company.
I said that I understood that the union or their representatives have stated
that the Company is in favor of having the shop organized, and I said ih;it
is not true. We are not in favor of it.
And then I went on to say that the Company believed that they were
in a position to give the employees of the Conneaut plant as much consid-
eration as they could expect from a union and that I thought that in the
past we had shown our employees that we were 100 percent for them, and
doing everything within our power to make it a good place to work.
Q. Do you remember on that occasion talking to a Mr. Ralph Bennett?
A. I do.
Q. Was your conversation with Mr. Bennett along the same lines as you
have just related here?
A. Exactly!
C. The discharge of Edward C. Felde
Felde filed an application for employment with Respondent, dated September
9, 1949, in which he stated his only previous employment was with John Felde
(his father) as an auto mechanic and his base salary was $1 per hour. He
arrived at the plant with Armstrong and Meeker who had been employed by
Thomas and told to report the next morning. Their cards were in the rack.
Atkins saw the cards in the rack and knew that they had been engaged by
Thomas. Felde's card was not in the rack and when Atkins questioned him he
told Atkins that Thomas had employed him the previous night and told him
to report that morning. Atkins put him to work and then decided to call
Thomas at the Cleveland office. Thomas informed him that he never had seen
Felde, although he telephoned his home the previous evening and left word for
Felde to call him at the plant when he should arrive home. He had waited
at the plant until a late hour and not receiving a call from Felde had left for
Cleveland. He authorized Atkins to continue Felde's services and advised him
that he would interview Felde when he was next at the plant.
s Standard-Coosa-Thatcher Company, 85 NLRB 1358;
. . . interrogation of employees as to union matters constitutes, at the very least,
interference with the rights protected by Section 7. Whenever an employer directly
or indirectly attempts to secure information concerning the manner in which or
the extent to which his employees have chosen to engage in union organization or
,other concerted activity, he invades an area guaranteed to be exclusively the business
and concern of his employees.
This Board, with the approval of the Courts, has long recognized this right to
,privacy in condemning as unlawful interference such indirect attempt by an employer
-to secure information about the union activities of employees as resort to espionage
or surveillance. When espionage is successfully concealed, "restraint" and "coercion"
may perhaps be absent but the conduct is nevertheless vulnerable on the ground
of "interference" if on no other. So it is in the case of interrogation. The employer
may not legally seek information on those subjects which the statute makes the
-sole ,concern of his employees.
TIIE F. C. RUSSELL COMPANY 217
Felde was employed on "felting," one of the several operations. Most of the
time he was felting or putting on the glue to stick the felt on, or cutting the'
felt. There were three different operations. Atkins called him into his office
and told him his work was not satisfactory, that if it didn't improve he would
have to let him go, that there wasn't enough of it, and that "he was talking to
the other employees and he wasn't getting enough work out." Atkins testified
as follows :
Q. Did he leave his assigned place more frequently or for longer periods
of time than other employees?
A: That was definitely my impression, that he did.
Q. How did you form that impression?
A. Well, because I keep pretty well track of the fellows that work there ;
I was in charge of them.
Q. Did you ever have occasion to talk to any other representative of
management about him?
A. Yes, sir. I talked to him about a week after he started, Mr. Thomas
was there, and I told him he had hired me a lemon, and that he should let
him go.
Mr. Thomas said that there are three or four young fellows working there,
and I should give him, a chance on something else.
Q. What was he doing up to that time?
A. He was working on the felting table with the group of three or four
other young fellows.
Q. What was the particular task he had been doing?
A. I think he was glueing, running the glue gun.
Q. Was he assigned to anything else after that?
A. After Mr. Thomas told me to try him on. something else, I put him on
cutting felt, which is a much faster operation.
Q. Why did you select him to be put on felt cutting?
A. Because that is an operation all by itself, away ; at that time he had the
felt, cutting away from the group. I thought perhaps, by putting him by
himself, it would help him more, rather than having a bunch of young fel-
lows that he knew to talk to. At least I assumed he knew them.
Q. After he was transferred over to the felt cutting, did you ever have
occasion to talk to him again?
A. The cutting of the felt is the first operation. You have to have the felt
to put in the retainer angle, and naturally, that would be the thing that
would hold anybody up if they did not have the felt, and the fellows weren't
getting enough felt, and that is when I did talk to him. And that's when I
had him in the office again, and I complained to Mr. Thomas again.
Q. You had another conversation with Mr. Thomas?
A. That's right.
Q. What was the essence of that conversation?
A. That we needed men, let's keep him on and give him another try, and
maybe he would snap out of it.
Q. What did you say to Mr. Thomas?
A. I told him that he wasn't doing the job, and he was holding up the other
fellows.
Q. Did you ever discuss with Felde the question of a transfer from the
felting operation to glass cutting?
218 DECISIONS OF NATIONAL , LABOR RELATIONS BOARD
A. Yes, sir.
Q. What was that discussion? First, about when was that discussion?
A. About the same time as this discussion was in the office, he asked me
if he could go on glass cutting, and I said, "These occupations are all new,
and we are going to hire men for them, anyhow, and anybody that's here
would naturally have the first bid on them."
Q. What did he say to you about the glass cutting?
A. He wanted to know whether he could have the job.
I told him he could have the job. At that time there were actually no
bids, because we didn't have the system set up. I told him we were going
to hire men for the jobs, and the men that were already there could have
them.
Q. Weren't these.jobs posted?
A. That's right, but you had to have 60 days' seniority to bid for the job,
but seeing he was already in the shop, I said he could have it.
Q. Didn't you have more jobs than men to fill them?
A. That's right.
Felde was given several days to practice in glass cutting and was then assigned
to the night shift. After about 2 hours' work he requested permission to go
home as he felt sick. The next night he reported for work and was assigned by
Kommic, the night foreman, to work at glass cutting under the personal direction
of Lemmerman, a company engineer from the Cleveland plant, who had been
placed in charge of inaugurating the storm door pperation at the Conneaut plant.
About 10 o'clock that night, Lemmerman and Koinmic engaged in the following
conversation, to wit:
Q. After Dir. Felde had been assigned to Mr. Lemmerman, and had gone
on the cutting job for Mr. Lemmerman, did Mr. Lemmerman have any con-
versation with you about Felde?
A. He did.
Q. What did he say?.
A. At approximately 10 o'clock he came to me and asked me if the man
down there cutting glass was related to Mr. F. C. Russell himself, and laugh-
ingly I said, "Why?"
He said, "It so happens-"
Trial Examiner EADIE. Was this conversation in the presence of Mr.
Felde?
The WITNESS. No.
I said "Why, what seems to be the trouble?" And he stated he had been
trying to get glass from the cutting table that .Dir. Felde was operating, to
run these doors through, and he personally has to walk down there to get one
piece of glass and cannot find Felde there at his job. He finds him, he gets
the piece cut, and carries it back to the other end of the shop. He has it
installed in the door, and comes back for another one, and again Felde is not
there on the job.
Cross-examination of Kommic developed the following conversation between
Kommic and Lemmerman to wit :
Q. You say about 10: 00 o'clock Mr. Lemmerman spoke to you about Felde?
A. That's right.
.Q. What did he say?
THE F. C. RUSSELL COMPANY 219
A. He thought maybe I knew the boy . He wanted to know if he was
related to Mr. F. C. Russell himself.
Q. What did he say to you?
A. I asked why, and lie said, "Well, he certainly , isn't doing any work
clown there."
And I said, "Why isn ' t he doing any work?"
He said, "I gave him a list of glass to cut. " He said, "There isn't any cut,
and I don't see Felde. " He said , "I'll locate Felde and get a piece of glass
cut, and bring it up and install it , and come back down and want another
piece, and Felde is not there again."
Q. Did he ask you where he was?
A. No, he didn' t ask me where he was . He went down and located him
himself.
A. "Mr. Lemmerman," I said, "Thomas had given this man another chance,
and he should know of this man 's performance."
And Mr. Lemmerman went in to see Mr. Thomas.
Thomas testified as follows :
A. Lemmerman came into my office and he said "What do you do when
you have a fellow. that doesn't want to work?" I said, "Well, have you
talked to the roan?"
He said, "Yes , I assigned hint his work and tell him we need this much
glass cut, and I go down to the spline operators where the glass is inserted
into the window or door, and this man Felde was supposed to supply enough
glass to keep two spline operators going."
* * * * * * *
A. In the conversation I asked Bob Lemmerman if he had known the
fellow and he said, "No, I don't know the boy very well, but he doesn't even
stay at his work station. No. 2, he has only cut four pieces in 45 minutes."
I said, "What happened ? Where does he go?"
He said, "He wanders around the plant."
When I asked him the name of the man we were talking about, he said his
name is Felde.
* * * * * * *
Q. Did you know at the time Lemmerman started this conversation ; and
prior to the time you asked who he was talking about, did you have any idea
who he was talking about?
A. No, not until I asked his name. Then Lemmerman had to go, out and
find out his name frorn some of the other fellows. - He didn't know it off-
hand.
Q. What did you do then?
A. That's when I talked to John Atkins, who had been at the plant and I
said "It seems as if Felde just isn't making out. You made two requests to
discharge him." I said, "Lemmerman now comes and tells me that the boy
isn't making out and isn't interested in his job, and Lemmerman doesn't
know him from Adam, and so far as I am concerned, we better let the boy go."
That's when I called Ed in and told him, "You better get your hat and
coat on and leave. You don't seem interested in your job, and you better
find work some place else."
929979-51-vol. 92 16
220 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. Did you know whether or not Mr . Felde was a member of a union?
A. No, I did not.
Q. Did you know at the time that he was discharged?
A. No.
Q. Had you ever heard that he was active in promoting the Steelworkers
Union?
A. No ; I heard of others being active but not Felde.
Felde ascribes his discharge to his union activities . He commenced work
with the Respondent on September 9, 1949. The Union had been soliciting
members and having them sign cards from the previous April . On September
19, 1949, the Union advised the Respondent that a majority of the employees
had designated it as the exclusive bargaining agent , and a consent election was
held at the Respondent 's plant on October 27, 1949, at which the Union received
:a majority of the votes cast. About a week after Felde was employed he joined
the Union and became active in its promotion . He attended meetings , solicited
membership therein of his fellow employees , entered into discussion with other
,employees at luncheon periods, and advocated their support for the Union. He
received a 5-cent raise in pay after lie had been employed for 30 clays. His
pay for the glass-cutting job was $1 .25 per hour , an increase of 15 cents per
hour over his pay as felter. The 5 cents an hour raise was given to all em-
ployees after they had been employed for 30 clays and a further raise of 5 cents
after employment for 00 days . The $1 .25 an hour rate of pay was fixed by
Respondent for glass cutters and posted on the bulletin board together with
rates established for other skills. Felde in applying for the glass cutting job
stated to Atkins that lie had experience in glass cutting while working in his
.father's employ . However, felting or glass cutting required little , if any, ex-
perience and very little skill.
Felde knew that according to rules posted on the bulletin board of Respondent,
.as a new employee he would be considered on probation for a period of 60 days
and that Respondent may lay off probationary employees irrespective of em-
ployment dates.
Notwithstanding the statements in Felde 's application for employment, lie
testified that when he was about 15 years of age and attending school he worked
for his father after school in his garage . He quit school when he was 16 and
-then worked for his father for a couple of years . He also worked for the Nickel
Plate Railroad one winter shoveling snow. He also worked for Ward Products
in Ashtabula making car aerials and left there in 1947 to go in the Army. He
stayed in the Army 4 months and when he was discharged he went to work for his
father. He then sailed the Lakes for awhile in the employ of the Pittsburgh
Steamship Company. He didn't like sailing as he got a little seasick and stayed
with that company for a month or so. He went back to work for his father and
he does not remember whether he continued at work with him until he was
subsequently employed by the Respondent.
Conclusions
The Trial Examiner finds by creditable substantial evidence that John B.
Russell, a vice president of Respondent, went from the main office of Respondent
at Cleveland, Ohio, to its plant located at Conneaut, Ohio, where he got a list of
the employees from the office and interrogated them personally at the plant
during working hours, putting a symbol of some kind designating the depart-
went that the employee was in: He talked to Bennett, an employee, and at that
'THE F. C. RUSSELL COMPANY 221
time had a list of all the employees.. He told Bennett that he was taking a sort
of poll on the men to see where they stood on the union question. He did go
down the list and asked if Bennett knew which side different men were on, with
reference to the Union. Bennett pointed out to Russell several employees with
whom he was acquainted and stated that they were not in favor of the Union and
therefore there would be no reason for Russell to talk to them.
The inference drawn by the Trial Examiner is that Russell had visited the
plant injecting himself on behalf of the Respondent in the campaign of the Union
for representation which was then at its height for the purpose of securing a
record of the employees and was a veiled threat to them that a prounion vote
would be hurtful to their interests.
Russell admits the conversation in its entirety with the exception that he de-
nies asking Bennett whether or not any employee was or was not a.union member
or sympathizer. The Trial Examiner does not credit Russell's version of the
conversation and finds his interrogation was relative to union activities of the
employees. Russell succeeded in the interview with Bennett and his further
interrogations of other employees in getting and recording the information he
had traveled from the main office at Cleveland to secure. Bennett's testimony
is credited by the Trial Examiner ; while he was called as a witness for the
General Counsel, under no consideration could he be considered an adverse
witness to the Respondent. The Trial Examiner believes him to have been an
honest and reliable witness and his version of the conversation to have reflected
the truth.
The Trial Examiner is of the opinion that the interviews and interrogations of
the employees by Atkins, the plant manager, and/or Thomas, the director of
personnel, was an endeavor to fraternize with the employees and to best place
them in the organization of Respondent. It was routine on the part of both
Atkins and Thomas upon hiring a new employee to talk to him and endeavor to
place him in a satisfactory job, and thereafter, from time to time, ascertain
whether his working conditions were satisfactory. The responsibility was placed
upon Thomas to organize and engage the necessary force to operate the plant.
He secured applicants from all available sources. Likewise, Atkins was more
interested in production than in the political beliefs of the employees. Atkins
at one time had been-a union organizer, he had no bias or prejudice, so far as
the Trial Examiner finds, against unions and when he entered into any conver-
sation with an employee it was more along the lines of friendship rather than
acquiring knowledge to be used for an ulterior motive.
The argument of General Counsel to the effect that organizing the "storm door
operation" at the Conneaut plant was a reward anticipating the rejection of the
Union or a threat to withdraw it if the Union was successful does not appeal to
the Trial Examiner as tenable. The plant manufactured summer seasonal prod-
ucts, and it was desired to add to its products something that would round out
production throughout the winter. It was logical for the management to prepare
in mid-August for the winter project of the "storm door." The inauguration of
the project at the plant was to be taken neither as a promise nor threat by the
employees.
The discharge of Felde was justified, based on substantial reliable evidence in
the opinion of the Trial Examiner. Atkins who had first engaged him had
complained to Thomas and requested that he be discharged. Thomas insisted
that as he was only 19 years of age that he have another chance to make good.
Again Atkins complained and Thomas suggested a change in his occupation.
222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Atkins authorized his transfer to a higher paying job, that of glass cutting. He
then came under the supervision of Lemmerman, an engineer from the Cleveland
plant, who.complained to the night superintendent and also to Thomas about his
work. Thomas, knowing Lemmerman and that he did not know Felde and that
Lemmerman's only interest was in having an efficient employee under him, and
also giving weight to the previous complaints of Atkins, discharged him.
The argument of General Counsel that because Felde had received two raises
in pay, one of 5 cents an hour and the other of 15 cents an hour, proved him to.
be an efficient employee. The argument has no merit in the opinion of the
Trial Examiner under the existing facts and circumstances. The facts are
perfectly clear : the first raise came at the end of the first 30 days of employment..
That raise was automatic and was granted to each employee, the only qualifi-
cation being that the employee must have been employed for 30 days. The
Respondent, in its endeavor to recruit an operating force composed of various.
skills, posted a list setting forth the various jobs and the pay for same. Felde
signed as an applicant for glass cutter which carried the 15 cents per hour
increase and Atkins assigned him as such. The glass cutting job required
very little experience. The panes were small and were of single and double-
thick glass. The cutter itself was operated by hand and could be purchased at
any hardware store for a small amount.
While it is the contention of General Counsel that Felde's discharge was
brought about by his union activities, the Trial Examiner finds no substantial
evidence in support thereof, but finds on the other hand that there is substantial
evidence which preponderates in favor of the Respondent that it did not dis-
criminatorily discharge Edward Felde or refuse him reinstatement for the reason.
that he had joined, assisted, and favored the Union and engaged in other con
certed activities for the purpose of collective bargaining.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in Section 1.11, 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 burdening
and obstructing commerce and the free flow of commerce.
V. THE REMEDY
0
Having found that the Respondent has engaged in and is engaging in unfair
labor practices affecting commerce, it will be recommended that it cease and
desist therefrom and take certain affirmative action which the undersigned
finds is necessary to effectuate the policies of the Act.
The findings which have been made are based upon the Respondent's conduct
in interrogating its employees as to their union views and sympathies. The
record does not disclose that the Respondent engaged in any other unfair labor
practices, nor is the Trial Examiner persuaded from the record in this case that
a danger exists that the Respondent in the future may commit any other unfair
labor practices proscribed by the Act which are not directly related in kind
to the unfair labor practices which it has been found to have committed in the
past. Under the circumstances, it will not be recommended that the Board issue
the usual broad cease and desist order used where the commission of other unfair
labor practices is reasonably apprehended.
THE F. C. RUSSELL COMPANY 223
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 , CIO, is a labor organization within the
meaning of the Act.
2. By interfering with, restraining , and coercing its employees in the exercise
of rights guaranteed in Section 7 of the Act , the Respondent engaged in unfair
labor practices within the meaning of Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices are unfair labor practices affecting
commerce within the meaning of Section 2 (6) and ( 7) of the Act.
4. The Respondent has not discriminated against Edward Felde, as alleged
in the complaint.
IRecommended Order omitted from publication in this volume.]