The Smith Meal Co, Inc.

National Labor Relations Board - Board Decisions

Feb 23, 1954

107 N.L.R.B. 1222 (N.L.R.B. 1954)

1222 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
repeated Board orders unnecessary , and would have led to disposition of the matter with-
in a short period of time from the date of the first Direction of Election. In addition, it
seems clear that the Employer had opportunity at all times to make its position clear
to its employees; if it failed to take advantage of these opportunities, the blame cannot
be charged to the Board.
It is recommended that Objections Nos. 6 and 7 be overruled.
Objections Nos. 8, 10, 11, and 13: These objections state, in effect, that Turnbaugh's activ-
ities on June 16, 1953, influenced the election results to the prejudice of the Employer.
I find that Turnbaugh, field examiner and Board agent in charge of the election duly or-
dered by the Board, was meticulous in his conduct, tactful in his speech, dignified in his
approach, and extremely fair in his handling of the situation. He was firm in the carrying
out of the task assigned to him but was neither officious nor overzealous. Sweetwood's
report of the incidents at the mine on June 16, 1953, is complete substantiation of the views
herein expressed by the undersigned concerning Turnbaugh. An overzealous or officious
person might have attempted to conduct the election off of the premises leased by the Em-
ployer in defiance of Cutler, the reservation policeman But Turnbaugh, when informed
by Cutler that he would be evicted, gracefully withdrew and sought other means by which
to carry out the Board's mandate.
No criticism of Turnbaugh's conduct is warranted. Whatever impression the employees
received from overhearing Turnbaugh's conversations with the Employer's representatives
is not chargeable to the Board. It seems pertinent to note that (a) there is no evidence that
the employees were influenced adversely to the Employer by Turnbaugh's activities on June
16; and (b) Turnbaugh, in addressing the employees, made no mention of the Employer,
and specifically exonerated the Employer from blame for the delays in the election. ie
It is recommended that Objections Nos. 8, 10, 11, and 13 be overruled
There remains the fact that the Notice of Election enclosed with each,mail ballot stated
that the ballot should be received in the Regional Office not later than June 22, 1953. Ac-
tually, the ballots were not received by the employees until June 22, 1953, and the ballots
were received in the Regional Office from June 24 to July 3. The question arises whether
this technicality failed to "provide a laboratory in which an experiment may be conducted
under conditions as nearly ideal as possible to determine the uninhibited desires of the
employees." In the undersigned's opinion, all the conditions of a true test have been met.
Over 80 percent of the eligible voters participated in the election and the election was
conducted with proper safeguards.
Since there is no evidence that the failure to receive the ballots by June 22 was pre-
judicial or interfered with the election, it' is recommended that mere failure by the Re-
gional Director to notify the employees of the extension of time does not raise substantial
and material issues with respect to the election.
Since the undersigned hearing officer has concluded and found that none of the objections
raise substantial and material issues with respect to the election, he recommends that
the Board overrule the objections.
As provided by the Board's Order of August 20, 1953, within 10 days of receipt of this re-
port, any party may file with the Board in Washington, D. C., an original and 6 copies of
exceptions thereto. Immediately upon the filing of such exceptions,-the party filing the
same shall serve a copy thereof upon each of the other parties and shall also file a copy
thereof with the Regional Director.
16 In making the foregoing appraisal and findings concerning Turnbaugh 's conduct, the hearing
officer relies upon the testimony of witnesses who are officials of the Employer, and the
documents admitted into evidence. Turnbaugh, himself, did not take the stand.
THE SMITH MEAL COMPANY, INC. and INTERNATIONAL
FUR AND LEATHER WORKERS UNION. Case No. 2-CA-
2607. February 23, 1954
DECISION AND ORDER
On July 22, 1953, Trial Examiner Arthur E. Reyman issued
his Intermediate Report in the above -entitled proceeding, finding
107 NLRB No. 259.
THE SMITH MEAL COMPANY, INC. 1223
that the Respondent had not engaged in certain unfair labor
practices and recommending that the complaint be dismissedin
its entirety. Thereafter, the General Counsel, the charging
party, and the Respondent filed exceptions to the Intermediate
Report, and supporting briefs. The charging party also
requested oral argument. The request is denied because, in
our opinion, the record, exceptions, and briefs adequately
present the issues and positions of the parties.
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 exceptions and briefs,
and the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the Trial Ex-
aminer with the following additions and modifications.'
According to the credited testimony of Plant Superintendent
Bolyard, the union organizers at the July 15 morning visit
told him that they wanted to call a meeting of the employees
and have them vote on joining the Union. Bolyard answered
that they could call out the men in the barracks, who were not
working. The union spokesman said that he wanted all the men
together at one time . Construing this statement as a demand
that the Respondent shut down its operations in order to as-
semble all employees for the Union's benefit, Bolyard replied,
"Well, we are operating a factory. We can't stop the factory to
have you fellows have a meeting." As the Respondent was
operating its factory on a 24-hour basis, all employees could
be assembled at one time only by halting operations . Bolyard,
therefore , reasonably construed the organizer ' s request as
one to shut down the plant. In any event, it does not appear that
after Bolyard ' s remark , the organizers protested that he was
misstating their request . Whatever a union's right of access to
an employer's property for the purpose of engaging in organiz-
ing activity , it does not include the right to require an employer
to suspend its operations and assemble its employees for the
convenience of the union's organizational efforts. Accordingly,
we agree with the Trial Examiner that by Superintendent
Bolyard's conduct on the morning of July 15, 1952, the Re-
spondent did not unlawfully interfere with the organizing ef-
forts of its employees.
In adopting the findings of the Trial Examiner, we are not
to be considered as also adopting the Trial Examiner's im-
plied holding that a union does not have a right of access to an
employer's property for organizational purposes unless em-
ployees have requested the union ' s assistance and the union
has made a prior request to the employer for leave to enter the
employer ' s premises . That issue is not necessary to a dis-
position of the case and we do not pass upon it.
[The Board dismissed the complaint.]
IIn adopting the Trial Examiner 's findings, we have accepted his resolutions of credi-
bility. Standard Dry Wall Products, Inc., 91 NLRB 544.
1224 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Intermediate Report
STATEMENT OF THE CASE
The General Counsel of the National Labor Relations Board by the Regional Director for
the Second Region issued a complaint against The Smith Meal Company, Inc , herein called
the Respondent, on March 20, 1953, alleging violations by the Respondent of Section 8 (a)
(1) of the National Labor Relations Act, as amended, 61 Stat. 136, herein referred to as the
Act. The issuance of the complaint followed the filing of a charge dated July 17, 1952,
and a first amended charge dated October 27, 1952, by International Fur and Leather Workers
Union, herein called the Union. The complaint in substance asserts that the Respondent has
been and is engaged in unfair labor practices intended to prevent the employees of the Re-
spondent from enjoying the rights guaranteed them under the provisions of Section 7 of the Act.
The complaint specifically alleges:
[Section] 8. Since on or about July 12, 1952, Respondent, by its agents, officers and/or
representatives , has interfered with, restrained and coerced and is interfering with, re-
straining and coercing its employees at its Promised Land plant in the exercise of the
rights guaranteed by Section 7 of the Act by:
(a) Interrogating employees as to their membership in, activities on behalf of, and
sympathies with, the Union.
(b) Preventing representatives of the Union from soliciting membership among its
employees or engaging in other organizational activities among its employees on company
property during non-working hours.
(c) Preventing its employees from holding meetings or other group activities or dis-
cussions for organizational purposes and affiliation with the Union, on company property
during non-working hours.
(d) Placing serious and unreasonable hinderances, impediments and obstructions in the
way of representatives of the Union who desired to communicate with Respondents' em-
ployees, at or near the Respondents' plant during employees' non-working hours, and
denying them access to said employees for the purpose of preventing their organization
and affiliation with the Union.
(e) Placing serious and unreasonable hinderances , impediments and obstructions in
the way of its employees who desire to engage in meetings, group discussions or other
concerted activities, on company property during non-working hours, looking toward
their organization and affiliation with the Union.
and that these acts constitute unfair labor practices affecting commerce within the meaning
of Section 8 (a) (1) and Section 2 (6) and (7) of the Act.
The Respondent filed its answer to the complaint on April 2, 1953, denying the unfair labor
practices alleged in the complaint and praying that the complaint and the charge upon which
it is based be dismissed in their entirety.
On the issues raised in the complaint and answer and pursuant to notice, a hearing was
held before the undersigned Trial Examiner at New York, New York, beginning on May 18,
1953. At the hearing all parties were represented by counsel. Full opportunity to be heard.
to examine and cross -examine witnesses and to introduce evidence bearing on the issues,
to argue orally upon the record, and to file briefs, proposedfmdings of fact, and proposed
conclusions of law were afforded each party. Motions to strike and to dismiss made by
counsel for the Respondent at the hearing are here resolved by the findings of fact and con-
clusions of law set forth below.
Subsequent to the closing of the hearing on May 21, 1953, the Respondent filed a motion with
the Trial Examiner to reopen the hearing for the purpose of submitting newly discovered
evidence. Upon consideration of that motion, and bearing in mind the issues, raised before the
filing of the motion by the pleadings and the evidence, the Trial Examiner reopened the hearing
by appropriate order, and heard further testimony at a. hearing held for the purpose at New
York, New York, on June 29, 1953.1 The parties were represented by counsel at the re-
i The order dated June 22, 1953, reads in part as follows:
NOW, upon consideration of the Respondent's motion to reopen the hearing , and upon
examination of the motion papers , and it appearing to the Trial Examiner that questions
concerning the credibility of certain witnesses may be more readily resolved thereby
THE SMITH MEAL COMPANY, INC. 1225
opening of the hearing , and were given full opportunity to be heard and to preserve all their
rights upon the record.:
Upon the entire record of the case , from his observation of the witnesses , and after full
consideration , the Trial Examiner makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, The Smith Meal Company, Inc., is a corporation organized under and
existing by virtue of the laws of the State of New York, and at all of the times mentioned in
the complaint herein has maintained its principal office and place of business at Amagansett,
county of Suffolk. in the State of New York, where it is now and has been engaged at its
Promised Land plant in the manufacture, sale, and distribution of fish oil, fish meal, fish
solubles, and related products. During the year 1952, in the course and conduct of its business
operations, the Respondent caused to be purchased, transferred, and delivered to its Promised
Land plant menhaden (a marine fish) and other materials valued at in excess of $ 800,000 of
which approximately 75 percent was transported to said plant in interstate commerce from
States of the United States other than the State of New York. During the year 1952, the Re-
spondent, in the course and conduct of its business operations, caused to be manufactured at
its Promised Land plant products valued at in excess of $1 million, of which approximately
65 percent was transported from said plant in interstate commerce to States of the United
States other than the State of New York.
The Respondent is a wholly owned subsidiary of J. Howard Smith, Inc., a corporation doing
business at Port Monmouth, in the State of New Jersey.
The Trial Examiner finds that the Respondent is engaged in commerce within the meaning
of the Act.
IL THE LABOP ORGANIZATION INVOLVED
International Fur and Leather Workers Union is a labor organization within the meaning of
Section 2 (5) of the Act, admitting to membership employees of the Respondent.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Location and description of the Promised Land plant
The Promised Land plant of the Respondent , sometimes hereinafter called the plant, is
situated at water 's edge in an identation of Gardiner ' s Bay, on the north shore of Long island,
approximately 8 miles west and in a southerly direction from Montauk Point , the most
easterly point in Long Island . Gardiner ' s Bay opens into Block Island Sound to the east and
north, which in turn opens into Long Island Sound and the Atlantic Ocean , Commercial fishing
boats operating in these waters furnish the plant with their catch.
The plant is located on Cranberry Hole Road approximately 2.1 miles east and northerly from
the village of Amagansett .3 Just at about the east boundary of Amagansett , Cranberry Hole
Road as it runs east crosses Montauk Highway , a main thoroughfare coming from the west
and that the Trial Examiner may be aided in making his Intermediate Report and Rec-
ommendations with respect to the question of remedy herein,%it is
ORDERED:
That the hearing herein be reopened for the purpose of receiving evidence alleged to
be newly discovered bearing upon the credibility of certain witnesses, representatives
of International Fur and Leather Workers Union; and in regard to the cDntention of
the Respondent that representatives of the said Union should not be granted access
to the premises of the Respondent; , .. (See footnote 10]
2 See footnote 10.
3 The village of Amagansett adjoins the town of Easthampton, in the township of East
Hampton. The permanent population of the village is asserted by the General Counsel, with-
out proof, to be about 1,100; the population of the township, which is within a popular summer
resort area, is much greater, and was estimated by 1 witness to be about 15,000 during the
summer months.
1226 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
through Amagansett and continuing on in an easterly direction, somewhat south of Cranberry
Hole Road, to Montauk Point. After it intersects Montauk Highway, Cranberry Hole Road
continues past the plant for a distance variously estimated, but which seems to be several
hundred feet, until it is met by an extension of Lazy Point Road. From this point, Lazy Point
Road leads back to Montauk Highway, a distance of about a mile. Thus, the plant may be ap-
proached by road only over Cranberry Hole Road from the west or over Cranberry Hole Road
by Lazy Point Road from the east.
A branch or spur of the Long Island Railroad runs from about a half mile into the plant from
the railroad's Montauk division line No passengers arecarried on the branch No bus line, or
other means of public conveyance which would enable persons to reach the plant, except by
taxicab, seems to have been available during the times pertinent hereto. Consequently, the
usual method of travel between the plant and nearby settlements was and is now by privately
owned automobile, by bicycle, or by foot.
The front of the plant faces south on Cranberry Hole Road, a public thoroughfare. The
frontage of approximately 200 feet is taken up by the walls of 2 warehouses, walls of other
buildings and fences. Between the south walls of these 2 warehouses the main entrance to
the plant is spanned by a gate across the road leading into the plant area From north to south,
these premises are approximately 400 feet deep. A fence on the west side and another fence
on the east side, and Gardiner's Bay on the north side, complete the enclosed boundaries of the
plant.
There are two entrances in the enclosure around the plant other than through the main gate:
each is a gate in a fence located relatively near the waterfront--one on the west and the other
on the east.
The main gate opens into the factory area within which are located some 15 structures--
3 warehouse buildings, 2 barracks, a kitchen, a carpenter shop, a factory building, a cool room,
a net house, 2 salt sheds, and a workshop. The roadway through the main gate into the enclosed
plant is some 20 feet wide, it runs into the grounds between 2 warehouses and passes two,
2-story frame buildings used for the occupancy of employees, called barracks Immediately
across the roadway from the barracks is the factory building. The office building sets apart
from the other structures above-mentioned, near the waterfront, some 40 feet north of the
factory. The kitchen, also set apart, is used to furnish meals to employees housed on the
premises during each fishing season. Approximately opposite the main gate, on the south side
of Cranberry Hole Road, on company controlled premises, are 4 structures called barracks,
1 dwelling house, and a garage. The barracks are occupied during the fishing season by em-
ployees; the house is occupied by a supervisory employee. These buildings stand some 30
feet south of Cranberry Hale Road. The main entrance to the plant is approximately 20 feet
north of this road, so that there is a comparatively large open space between the enclosed
area of the plant and the company controlled property, including barracks, on the south side
of Cranberry Hole Road. This area (on the south side of the plant area) in unenclosed, has a
frontage on Cranberry Hole Road of approximately 100 feet, and is artificially lighted at
night by floodlights on the warehouses across the road
The Respondent customarily, during the fishing season, receives fish caught for commercial
purposes at its docks at the plant Employees at the plant are engaged in the several oc-
cupations necessary to process fish into commercial products, the employees at the plant,
except for the minority who live in Amagansert or nearby, are not permanent residents of
the community, but come principally from New York City and from some Southern States to
report for work at the plant at the beginning of a season.
Of the approximately 75 employees at work early in the month of July 1952, some 25 were
residents of the general area around Amagansett, approximately 50 others lived in barracks
either on the north side of Cranberry Hole Road within the enclosed area of the plant or on the
south side of the road in the open or unenclosed barracks At this time, about one-half of the
transient employees lived within the enclosed plant area , including 4 employees who lived in
the kitchen; the other half lived in barracks on the south side of the road. The Respondent
generally gets the same personnel back each season , some previously employed persons re-
turning without prior communication--that is either with respect to inquiry from the Re-
spondent as to availability for work or inquiry by the employee as to possibility of work. At
the beginning of the 1952 season, 2 or 3 persons arrived by automobile to report for work;
others came by train.
The employees of the Company who work in the factory proper , and those in the scrap shed
and those other than the dock and raw box employees are on a definite working schedule, and
work on one of the two 12-hour shifts in these departments of the plant. There is no scheduled
THE SMITH MEAL COMPANY, INC. 1227
working time for employees working on the dock and in the raw box, their time of work de-
pending upon the time of arrival of fishing vessels- -accordingly , they may be called to duty
at any time of the day or night . By means of a ship-to-shore communication system, plant
management is advised of the expected arrival of boats, so that the employees on the dock
and raw box usually are advised in advance that their services will be needed at particular
times during a 24-hour period . There is no Sunday work at the plant.
As to those employees who live on company premises , they may in their off-duty hours
come and go as they please . Of course , those employees who do not live on the premises
leave after they finish their duties each day, and it seems that no restrictions are placed
upon others of the employees regarding the times they may leave the plant or the times they
may return , so long as they are available for duty during their regularly scheduled hours or,
in the case of the dock and raw box employees , that they are available when the fishing boats
are in. It is uncontradicted upon the record that the main gate , while usually locked at night
during the operating season , is manned by awatchman between the hours of 7 p . m, and 3 a. m.,
and that employees returning to the plant between these hours are let in by the watchman or,
after 3 a. in,, have the use of a key to the gate . The west gate is always kept locked during the
fishing season, while the east gate is always open while operations are in progress at the plant.
Employees are not required to check in or check out of the plant area , the preponderance of
the evidence shows that they have free time which they spend either on or off the premises ac-
cording to their individual desire From testimony adduced at the hearing , it appears that
about 20 employees , including the year-round residents of Amagansett , owned or had use of
privately owned automobiles during the 1952 season, and that they customarily furnished rides
to others . Although the plant is located in a comparatively remote neighborhood, employees
certainly were not isolated at the plant , but could get back and forth between the plant and the
town without undue difficulty!
There is some testimony to the effectthat persons other than employees are freely admitted
to the enclosed area of the plant and to the bar racks on the south side of Cranberry Hole Road.
Among these persons a re members of the families of employees living in the barracks , drivers
of trucks and other vehicles , salesmen , and others.
The Respondent employs both white and colored persons at its plant, and members of both
races live in the barracks on the premises without distinction as to their color . In July 1952,
34 Negro employees and 16 white employees were living in barracks at the plant.
B. Union organizing activities at the Promised Land plant
Concerted effort by representatives and members of the Union to meet with employees of
the Respondent, so far as appears from the record, began on or about July 14, 1952,6 when
Irving Stern, editor of the union newspaper and an organizer , Herbert Kurzer, employed by
the Furriers Joint Counsel (a subdivision of the Union), and Vincent Castiglione, an organizer
employed by the Union, arrived in Amagansett for the purpose.'
According to the testimony of Stern, he, together with Kurzer and Castiglione, drove to the
plant at about 9:30 p. m, on July 14, stayed there approximately an hour, and left. He said that
40n the property next to the enclosed plant area, and approximately 200 feet away from
the east fence gate, a telephone is accessible 24 hours a day; this pay telephone is located
next to a candy and newspaper shed, or shop, which remains open all day and is open at
night when a vessel docks at the Respondent' s plant.
sUnless otherwise specifically shown, thedates for themonth of July, hereinafter mentioned,
are for the year 1952,
6 Previous organizing efforts of the Union were described by Gladstone Smith, a business
agent for the Fur Joint Board, and Castiglione. According to the testimony of Gladstone
Smith, he was employed by J. Howard Smith, Inc., at Port Monmouth, New Jersey, as a
laborer, during late June and early July 1952; that he obtained employment at Port Monmouth
with "instructions from the international" [meaning the Union] to find out "if these workers
actually wanted to be organized." While there, he said, he was approached by "a couple
of men asking me if I was willing to talk to the company officials there [meaning the Promised
Land plant ], find out whether any conditions could be gotten for them better than what they
had at the present time." The men who approached him were reported to be employees of
the Respondent. Castiglione testified that during the year 1951, he, as an organizer for the
Union, conducted union organizing activities near the premises of the plant and "obtained
signatures" to union cards- - impliedly, signatures of Respondent 's employees.
1228 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on the following morning about 10.30 a m . he, together with Kurzer and Castiglione , the latter
driving the automobile occupied by them, left Amagansett to go to the plant, that shortly after
they crossed the intersection with Montauk Highway, they noticed that they were being fol-
lowed by another automobile . They continued along Cranberry Hole Road until they reached
the plant where they stopped on the road and started to get out of their car. At that time,
Stern said , there was a group of men--5, 6 . or 7,--standing around outside the barracks on
the south side of the road . At the same time the car which had been following them drew up
and stopped about 15 feet behind the car in which they had been riding , and a police officer,
later identified as Harry M. Steele , chief of the police force of East Hampton Township,
approached them with a drawn gun. Confronting them, Steele wanted to know what they were
doing there and told them they had no right to be there. They protested that he need not use
his gun and Kurzer took a card from his pocket for the purpose of identifying himself The 4
men, Stern , Steele, Kurzer , and Castiglione continued their conversation for a few minutes,
the police officer continuing to tell them that they had no business being there , and that they
were on company property and that they did not represent the men in the plant. In turn the
union organizers insisted that they were there peacefully and on union business and had a per-
fect right to be there . They said that they were there to talk to some of the members of the
plant concerning union affairs . Steele ordered the car away from the position in which
Castiglione had parked it and Castiglione entered the car and drove it along the road while
Stern and'Kurzer continued to talk to Steele. Steele then turned and approached his automo-
bile, continuing to warn them that they had no right to be in that area and would have to leave
it. As Steele entered his automobile Stern followed him and sat down next to him and con-
tinued to engage Steele in conversation , during the course of which Steele drew a document
from his pocket and referred to the right of automobiles to be on a public road after a certain
length of time, and said that the number of pickets permitted in front of a plant were limited
by a regulation which he cited from the document . He refused to permit Stern to read from
the document . Stern left the car and rejoined Kurzer and Castiglione , who had been in their
car during the course of Stern 's separate discussion with Steele. According to Stern again,
shortly after he got out of Steele ' s car a man came out of the plant , was introduced by Steele
to Stern as being the superintendent of the plant, and Steele informed this man, later identi-
fied as Frank Bolyard, that he was then engaged in removing the union organizers from the
immediate vicinity. In Stern ' s words:
Shortly after he had introduced us and told him what he was doing with relation to us,
we started to talk to Mr. Bolyard . We again explained to him that we were here on
union business; and that we represented workers in the plant . He denied that we rep-
resented the workers in the plant , and seemed to challenge our knowledge of conditions.
We then engaged in a discussion of the conditions in the plant , as well as the conditions
of their civic orders. He challenged our knowledge of the wage rates and the working
conditions. We indicated to him that we had full knowledge , based on conversations with
the workers in the plant, and he seemed to become very enraged , and kept right on
reiterating that we did not represent the workers in the plant . Finally , when it was clearly
apparent that we knew all the conditions prevailing in this plant, he sort of turned
seriously to walk back to the plant , and he asked Steele to " kick these guys out of here,
they have no business here."
Further , according to Stern, during the whole period of time from the stopping of their auto-
mobile and their preliminary conversation with Steele to the conclusion of their conversation
with Steele and Bolyard and with Bolyard alone , workers were in or about the barracks
situated on the south side of the roadway, at different times walking in and out of the barracks;
and Stern said he paid particular attention to them because he was interested in "the effect
it was having upon these workers ." He asserted that after asking Bolyard for permission to
speak to the workers and being refused such permission he and his two companions left, and
as they left he noticed that Steele and Bolyard were engaged in conversation in front of the
plant . They returned to Amagansett where, according to Stern, they spent the rest of the day.
On the evening of July 15 Stern , Kurzer, and Castiglione left Amagansett, and traveled
along Montauk Highway to Lazy Point Road, turned left there , and approached the plant from
the east, stopping their car several hundred feet before they reached the plant entrance and
the barracks on the south side of the road . In another car following them were four men, later
identified as employees of J. Howard Smith Company , Inc., who at that time were on strike.?
7 The strike at Port Monmouth will be discussed below.
THE SMITH MEAL COMPANY, INC. 1229
The men from Port Monmouth (hereinafter sometimes referred to as the strikers) had been
requested by Stern and his colleagues to accompany them for the purpose of interviewing em-
ployees of the Respondent at the plant that night. After the two cars were parked on Cranberry
Hole Road the strikers proceeded on foot toward the barracks, a few minutes later one of them
returned and informed the organizers that they had talked to some employees and that the
organizers were invited into thebarracks . Stern and Kurzer then entered the barracks and pro-
ceeded to address the employees gathered there on the benefits of union organization and re-
lated matters. Castiglione remained outside of the barracks ; while Stern and Kurzer were
talking to the employees in the barracks the door was thrown open and a police officer entered
and ordered them out . Again , in Stern's words:
Just as we were about to conclude our arrangements for a meeting , a police officer broke
into the--came into the barracks--with his hand on his holster, and demanded what
business we had being on this property We told him that we ' re here engaged in union
business , and we insisted that we had a right to conduct ourselves as we were . He said,
"No, we did not"; that we'd got to get off the Company's property. He started to push some
Negro workers, and fearful that this would have a bad effect, we decided that we were all
going to leave . We walked out of the barracks [Emphasis supplied].
The organizers left the barracks after the strikers had been put out by the officer and the
officer followed them to the roadway where the organizers were told that they would have 5
minutes to get off the company property. Stern demanded to see the plant superintendent.
About that time another car came down the road and stopped beside the group standing there.
A man later identified as Gilbert P. Smith, an officer of the Respondent, approached and was
told by the officer, later identified by name as one O'Rourke, that he was "kicking us off the
premises , we were union men ." The organizers explained to Gilbert Smith that they were there
on union business, that they represented the workers in his plant and offered to hold an
election; that if Gilbert Smith had any doubt as to whether the Union represented the men the
Union would accept any person that he would designate as "the judge ." According to Stern,
Gilbert Smith became infuriated and repeatedly instructed O'Rourke to get the organizers
away from there; that O'Rourke kept saying that he would give them 5 minutes to get away.
This conversation took place alongside the barracks near the road and continued for a time
variously estimated but probably for about half an hour.
According to Kurzer , he, Stern, and Castiglione arrived at the plant at about 9:30 o'clock
on the evening of July 14, Castiglione and Stern entered the barracks from the south side of
Cranberry Hole Road and then tried to discover whether or not any employees were in the
barracks ; they found no one after entering one barracks building and walking around the
others; they got back into their car, found it was stuck in the sand and while attempting to get
the car out , were approached by a police officer who offered to call a tow car to help them out;
they then went back to Amagansett and returned on the following morning The events related
by Kurzer from that point on are substantially as described by Stern, with respect to the
conversation with Steele and Bolyard on themorningof July 15 and the ocurrences in and near
the barracks on the evening of July 15, except that where Stern saw 5, 6, or 7 employees
gathered in front of the barracks on the morning of July 15, Kurzer saw 15 or 20 of them. With
respect to the occurrences on this morning , Kurzer said:
He [Steele] told us that this was a hostile town to unions ; that he knew what happened
up at Port Monmouth; and we should know they wouldn't tolerate the same situation
that existed in Port Monmouth, and that he had a sheriff and he had plenty of deputies,
and had sufficient men under his control to handle any kind of a situation . We explained
to the officer that we were not concerned about bringing any difficulties , any troubles;
that we were, peaceful and orderly, and all we wanted to do was to have an opportunity
to speak to these men, which was our right under the Taft-Hartley law He told us that
he knew nothing about the law , Federal law , all he knew was we were trespassing on
private property, and insisted that we get off the property. He was belligerent, very
belligerent, and we tried to calm him down, and tried to discuss it in what we con-
sidered to be a gentlemanly way, and then Mr Stern further pursued the discussion
with the officer, walked after him, apd when the officer got in the car, sat in the car
with the officer.
With respect to the conversation with Bolyard at which Stern, Castiglione, and Steele were
present , Kurzer testified that:
337593 0 - 55 - 79
1230 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We told the plant superintendent that we were here on a peaceful , orderly mission,
we were union organizers , and we'd like to speak to the men . He told us that, "My
men are not interested in your union ." We explained to him that the law gave us the
right to speak to these men . We explained to him that we had been summoned by the
men; that the men were discontented with their working conditions . He said to us,
"Well, what do you know about their working conditions ? " We explained to him that
we knew about their working conditions , and we asked whether he would sit in with
us to discuss the working conditions and improving the working conditions, and he
told us that he had no business with us, he didn 't want to talk to us any more; and
he told the police officer to get us off the private property.
Concerning the occurrences at and in the barracks that night , Kurzer's testimony was
substantially the same as that of Stern . He said that the strikers had been sent ahead from
the point the cars were parked on Cranberry Hole Road to see if any of the employees
were gathered in the barracks ; that after being summoned to the barracks by one of the
strikers , he and Stern entered the building, where approximately 10 or 12 men were gathered
together with the 4 strikers from Port Monmouth . His description of the entrance of O'Rourke
was in these words:
While we were discussing these matters with the men, there was a crash at the front
door, as if somebody had kicked it wide open, and we turned around and saw this police
officer coming in withhis gun drawn, and he said to us, "Get out. Get out, or I'll blow your
brains out." He was very excited. We spoke to him very softly. I spoke to him, I told
him, "Look, officer, there's no need to be excited. We are union organizers, we are
here on regular union business, we have a right to be here, we have the right under
the law in such situations where men sleep in, and men cannot be seen, and other
places. It is the right of a union to come into such a place as this, and discuss the
rights to the men." He responded, "I don't know anything about that law. I don't care
anything about that law. All I know is that you men are trespassing, you're on private
property. I've got complaints, and I'll give you 5 minutes to get out."
All this occurred in the presence of the employees of the Respondent in that building.
After leaving the barracks his version of the conversation with Gilbert Smith at which
he said Stern, O'Rourke, another person with Gilbert Smith, and two strikers were present
was this:
Mr. Smith told us that he, didn't care anything about the law; that on his premises he
is the law. We asked Mr. Smith for an opportunity to go in and talk to the men in a
peaceful manner. He refused. We asked him to unlock the gates and permit the workers
to come out from the locked gates so we could discuss things with them. He refused.
We asked him, "Why do you have these men locked up behind these locked gates? "
He said, "Well, we want to protect them from you." I then offered that he permit us
to go alone behind the locked gates , together with this police officer, and he refused.
And then he said to us, and to the police officer, "I have nothing further to discuss
with these men. Get them off this property." Whereupon we were ordered by the police
officer to leave - which we did.
The testimony of Castiglione with respect to conversations between the union represen-
tatives and Steele, Bolyard, O'Rourke, Gilbert Smith, and others substantially was the same
as that of Stern and Kurzer Castiglione as the driver of the automobile occupied by the
union organizers, was not present at all times, because during the conversation with Steele
he had been ordered to move the car and was in it and driving it back and forth on the
road during the times of the events of that morning; on the evening of that day he remained
outside of the barracks while Stern and Kurzer were inside. Castiglione was present at the
discussion in which Clarke and Gilbert Smith were parties, and his version of what was
said, in most part, was this:
The conversation, in essence, was that Mr. Smith and the policeman said we had no
right to be there, that this was private property and that his men did not want a union,
that his men were satisfied; that he has been conducting his affairs for many, many
years, the men come up from the south, and they are very much satisfied with the
THE SMITH MEAL. COMPANY, INC. 1231
conditions . And we told him that we had a right to organize , and that since we didn't
have access to these men , that we had a right to talk to them on the premises . Mr. Smith
insisted that we get out of the area, and in fact, at first , the policeman insisted that the
automobiles should get out of the area, and to avoid any trouble , we suggested to these
men that they get into their cars and patrol the road up and down, and just wait for us
until we got through. I met with these men for a while , walked the men over to their cars
to get them off .... I later rejoined the group , and there must have been a discussion
going on for approximately 45 minutes or an hour , I don't know exactly. Finally , Mr. Gil-
bert insisted he - rather Mr. Smith insisted - that we getout of the area and he asked the
cop to get us out.
Frank Bolyard, the plant superintendent, a credible witness, testified that on the morning
of July 15, when he was engaged at work within the enclosed plant area, near the factory,
that he was approached by the chief of police, Steele, who told him that there were 2
union organizers outside the plant near the driveway , who desired to speak to him; that
he accompanied Steele to where these 2 men were standing and engaged in conversation
with them; that they introduced themselves as organizers and said that they would like
to call a meeting to have the men vote as to whether they wanted to join the Union or not;
that he, Bolyard, suggested that they call the men out from the barracks on the south side
of the road and conduct a vote; that the 2 men said they didn't want to call them out there
and have them vote then but they wanted all the employees together at the same time.
Bolyard further testified that he informed them in effect that he couldn't stop the factory
to let them have a meeting and that after he finished the conversation with them he went
back into the factory and left the 2 men, Stern and Kurzer, standing on the road by them-
selves.
Lawrence Clarke, president of the Respondent Company, testified that on July 15 he
had stayed in the plant late that evening with Gilbert Smith, until boats which had come
in earlier were unloaded; that as they were leaving the plant together in Smith's automo-
bile and were driving out the main gate, they observed another automobile parked on the
Respondent's property some 50 or 60 feet east of the main entrance to the plant; that he
and Smith discussed the significance of the car being parked there (they having previously
known of the activities of the union organizers in the vicinity the evening before and on
that morning); that when they reached Amagansett they stopped at an inn and called the East
Hampton Police Department and asked that someone go down and investigate the automo-
bile parked on the company premises. Thereupon, having put in the telephone call to the
police department and some 20 minutes after they had left the plant for the first time,
he and Smith returned to the plant where they observed O'Rourke escorting 2 men out of
1 of the barracks; that they remained in the vicinity of Smith's car; that the 2 union or-
ganizers later identified as Stern and Kurzer, then engaged in a conversation , reported
by Clarke as follows:
The general topic of the conversation , as to why - that is from the point of view of the
union people - why are you demanding that we get out of your houses? And we said
that we wanted them out of the houses for the protection of the men ; that it was an un-
reasonable hour for them to be in there. One of them said they had a right to be there,
that we had no right to exclude them , and a very hot argument followed about our rights
and their rights . . . I asked Officer O'Rourke to eject the men from the premises,
and the men refused to get off the premises , and I was really seriously concerned on
some of the topics of conversation, and I requested Mr. Bolyard to call the State Po-
lice . . . They { Kurzer, Stern, and Castiglione] said, for one thing, that "You got the
upper hand on us now" They said, "You have nothing to be afraid of. We are not armed
this time. The next time we come back here , we will bring a couple hundred men with
us." But even so, I wasn 't trusting the situation , as Mr. Smith was 83 years old, and
I wanted the thing handled as peacefully as possible . So I thought it was best to have
additional police protection there , and I called the State Police.
Clarke testified further that at the conclusion of the argument the union representatives
got in their cars and left and that about 5 minutes later , a State trooper arrived from Bridge-
hampton. 8
8Steele appeared briefly as a witness at the hearing under a subpena issued at the in-
stance of the General Counsel. Other than testifyingas to his official position and as to the ter-
ritorial jurisdiction .of the township of East Hampton police force, he refused to answer
1232 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
C. Facilities for Union or employees ' meetings
The General Counsels during the course of his case - in-chief undertook to prove that
the employees of the Respondent at the plant had , during the times pertinent here, no facilities
for holding meetings other than very limited facilities in the open or possibly at some place or
places at a distance away from the plant. In a rather indirect way he undertook to establish
that white employees, who were permanent residents of Amagansett or the vicinity, did not in-
vite colored employees to their homes, and that they did not mingle socially otherwise with
colored employees, so that private homes were not available to all employees for general meet-
ings of employees or members of the Union, or both. The position of the General Counsel is
clear only in one respect--that the Respondent is obligated to afford the opportunity to union
organizers to talk to the men on company property during the nonworking hours. It is not clear
whether the General Counsel contends that the Company should be required to furnish a meet-
ing place for the Union and its members on company property, although the implication is that
barracks should be allowed to be used for that purpose.
The Respondent takes the position that it should not be required to permit union meet-
ings on its premises ; and that because of the unusual circumstances discussed below it
was justified , during the times covered by the complaint herein , in its refusal to permit
union organizers access to its plant property.
The Respondent in its case - in-chief, and in rebuttal to the implied position of the General
Counsel that there were no available public places for meetings of the employees , under-
took to show that there were and are a number of places available for hire or rent for public
meetings , without regard to race or color of those attending the meetings, in and near
the village of Amagansett. Edward F. Cook, a credible witness presented by the Respondent,
testified that he was engaged in the insurance and real estate business in the township
of East Hampton, with an office in Easthampton, about 2 miles west of the village of Ama-
gansett, and had been so engaged there, for some 12 years, and that he was familiar with
various halls and places around the township of East Hampton that were available for hire.
He said , there were 6 or 7 such , and he enumerated them by name and location.
He also mentioned a restaurant frequented by colored people, called Cottage Inn , located
about a half mile north and east of Easthampton, and a colored residential section, called
Free Town , about 6 or 7 miles from the plant . He said that the American Legion Hall is
owned by the American Legion , the local branch, the Veterans of Foreign Wars Hall is
owned by the Veterans of Foreign Wars, the local branch, the Amagansett Hall is owned
by the Presbyterian Church; the Ashawagh Hall is owned by the Spring Village Improve-
ments Society , and Settlement House is owned by the Easthampton Visiting Nurses Associa-
tion His uncontradicted testimony establishes that there are a number of meeting places
available for hire in and near Amagansett , which were and are accessible to the Union.
In the face of competent testimony , uncontradicted upon the record , the implication
advanced through witnesses presented by the General Counsel to the effect that the em-
ployees of the Respondent were or are strictly confined to plant premises or to the bar-
racks during their nonworking hours , must be rejected. Contrary facts appear too plainly--
the men were able to freely move in and out of the plant during their nonworking hours,
without checking in or out, and although usual urban transportation facilities were not
available to them , the ordinanry and customary methods of transportation were available
to them in the rural district where the plant is located Although the plant is set away
from the village of Amagansett and other settlements on this part of Long Island, it never-
theless is not remote or isolated It would seem, as a practical matter, that if employees
living within the plant wished it, a minimum of organization could have provided trans-
portation for them to a public meeting place not too far away.
further on advice of counsel , on the ground that any other answers he might give might
tend to degrade or incriminate him. At a later time during the course of the hearing, the
Trial Examiner was advised that it was not the intention of the .General Counsel to move
to enforce the subpena. O'Rourke, the other police officer hose name was mentioned during
the course of the hearing, was not called to testify; Respondent in its brief asserts that he
was under subpena by the General Counsel and present in the hearing room during the
course of the hearing . The State trooper remains unidentified.
9 As will impliedly appear from context, the use of the title General Counsel as sometimes
used herein refers to counsel for the General Counsel.
THE SMITH MEAL COMPANY, INC. 1233
D. Union activities at the plant of J. Howard Smith and
relevance hereto
Witnesses called by the General Counsel during the course of his case - in-chief referred
to union organizing activities at the J. Howard Smith , Inc., plant at Port Monmouth, New
Jersey It appears that just prior to July 14 , a strike had been called by the Union at this
plant, and was in progress on July 14 and 15 . The strikers mentioned above were employees
of J. Howard Smith, Inc., and apparently were at the Promised Land plant of Respondent
on July 14 and 15 at the §uggestion of Gladstone Smith, who at that time was working at
Port Monmouth . The strikers obviously were brought in by the union organizers to assist
them in dealing with employees of the Respondent. That a strike was in progress at Port
Monmouth on these days was confirmed in the first instance by the testimony of members
of the Union.
Clarke testified that a strike had been called at Port Monmouth a few days prior to July
13, when he , Clarke , traveled to Amagansett from New York , the principal purpose of his
visit there being that he was concerned about the property at the Promised Land plant and
the men employed there- -concerned in the sense that he was worried about the protection
of the property and the welfare of the individuals living there He described his fear that
occurrences reported to him as occurring at Port Monmouth would be repeated at the
Promised Land plant , and that there might be damage to the property and injury to em-
ployees unless steps were taken to afford protection it had been reported to him that
there was mass picketing at the Port Monmouth plant; that there had been a sound truck
run into the property there by the union ; and that the union organizers there were demanding
that all the men quit their jobs. Another reason creating concern in his mind, he said,
for the welfare of the premises and individuals at the Promised Land plant , was the fact
that nine vessels operating out of the Promised Land plant for the Respondent at the be-
ginning of the fishing season in the previous year , due to attempted union organization
of the crews of those vessels , were unable to operate because many men comprising the
crews did not report for duty by reason of threats placed against them by union organizers
working in Reedville , Virginia, against their homes, automobiles , and families if they re-
ported for duty on those vessels Clarke said his knowledge of reported activities of the
Union at Port Monmouth was derived either from the president of J Howard Smith or the
bookkeeper at that plant, and those at Reedville from Walter A. Mercer , superintendent
at Menhaden Products , Inc., at Reedville
On July 15, Clarke said he was driving past the property adjoining the plant, over Cran-
berry Hole Road, when he noticed an automobile occupied by four colored persons sitting
by the roadside , that he stopped and asked them what they wanted, because he was con-
cerned about "the general situation ", that they said they wanted jobs--that they were from
the Port Monmouth plant, that he replied that there were no jobs at the Promised Land
plant and inquired why they did not go back to Port Monmouth, and that they replied that
it was shut down, and they "couldn't work there " Clarke, a forthright and careful witness,
made plain his then apprehension for the safety of the premises under his charge after
first hearing about the excitement at Port Monmouth and then seeing strikers from Port
Monmouth in the vicinity of the Promised Land plant w
10 Upon the reopening of the hearing on June 29, 1953, the Respondent presented one witness
who testified to events which had occurred at the J Howard Smith plant at Port Monmouth
on May 23, 1953, 2 days after the close of the hearing first opened on May 18. After direct
examination, counsel for the Union moved to strike the testimony of the witness After
indication by the Trial Examiner that he was inclined to grant the motion , counsel for the Re-
spondent submitted an offer of proof of facts covering circumstances and events alleged to
have occurred at Port Monmouth on May 23, 1953, mainly as set forth in support of the
motion to ropen the hearing. After considering the offer of proof, the Trial Examiner was
of the opinion that the facts proposed to be proven were irrelevant and immaterial to the
issues framed by the pleadings , and that no newly discovered evidence was discernible in
respect to proof first taken and within the issues framed by the pleadings. The offer of proof
was therefore rejected , and the motion to strike was granted . For convenience , the affidavit
in support of the Respondent's motion to reopen the hearing, referred to in the offer of proof,
is quoted here in its substantial parts:
On Saturday, May 23, 1953, at about 7:30 A. M. a mass of men representing the
Petitioner broke into the plant of the Employer's parent corporation, J. Howard Smith,
1234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
So far as the record herein discloses, the Union at no time made a formal approach to
management of the Respondent, either to request recognition as representative of the
majority of the employees, or to request visitation rights, or for any other purpose in
connection with union activities Castiglione was not called upon to elaborate upon his
brief testimony to the effect that he "obtained signatures to union cards" near the plant
in the year 1951. The first request for visitation rights, if it may be so regarded, was the
demand made upon Bolyard, in front of the plant on July 15, that the union representa-
tives be then and there, or later , admitted to the premises. This request or demand, how-
ever it may be regarded, was repeated to Gilbert Smith in the presence of Clarke and
Bolyard later that night, under strain and unnatural conditions, after Clarke had requested
police protection of the plant premises. These two incidents embrace the only assertions
by the Union to the Respondent regarding the right of the union organizers to enter upon
Respondent's premises to meet with plant employees The organizers made no subsequent
effort to discuss the question with management , but almost immediately, on July 17, caused
Inc., at Port Monmouth, N. J., forced aside the watchman stationed at the gate of the
plant, and spread throughout the plant area storming into many of the buildings therein.
At this time the plant was in full operation and many of the employees of J. Howard
Smith, Inc. had been assigned to and were at work. Once having gained access to the
plant, these representatives of Petitioner entered various buildings shouting and yell-
ing that there was a strike going on and everyone had to get out. They forcibly removed
and kidnapped a majority of the employees from the plant. Only colored employees
were kidnapped, no attempt being made to take the white employees. The employees that
were taken out were held by each arm with men behind them to make sure they could
not escape. They attempted to force the man in charge of the power plant to abandon
the power plant. Had they been successful not only the plant but the surrounding area
would have been placed in an extremely precarious position. The product of the Com-
pany is oil. Highly inflammable materials are used in refining oil. If the power plant
had been left unattended there could have been an explosion and fire. In the course of
such activity, they not only assaulted some of the employees but, in addition, violently
attacked the Superintendent of the plant. They knocked the Superintendent to the ground
at least twice and threatened him with further bodily injury if he attempted to interfere
with the kidnapping of the employees. One of those knocking down the Superintendent
was a man almost 400 lbs. and upon information and belief known as the "Angel", a
professional wrestler. Threats of various sorts including the burning down of the bar-
racks where some of the employees lived were made. Trucks and cars attempting
to enter the plant were rocked and almost turned over. After successfully dragging
the employees away from the plant, efforts were made to get some of the employees
intoxicated in an effort to get them to sign authorization cards. It was not until 1:30
P M. that all of the employees returned to the plant. Until 2 P. M of that day a picket
line was set-up in front of the plant gate with signs representing that the plant was on
strike. Such a representation was completely false. In all, the plant was forced to
abandon operations for at least four hours on that day.
a
Evidence as to this activity carried on at the J. Howard Smith, Inc. plant on May
23, 1953, is also relevant to the instant case for the reason that two of the witnesses
used by Counsel for the General Counsel were active leaders at Port Monmouth on May
23rd. One of the leaders was Gladstone Smith who testified at the hearing that he sent
organizers down to Amagansett. The other witness and the main leader of the May
23rd affair was Irving Stern. There were numerous witnesses who will testify that
Mr. Stern led the group who forced their way into the plant, threatened the employees
and pirated the employees out of the plant. Such evidence is important and material
because the Employer presented testimony through its President that threats had
been made in his presence by the union organizers, including Mr. Stern, on the night
of July 15, 1952. Mr. Stern denied any threats were made by him or the other two
organizers. In fact Mr. Stern attempted to leave the empression that Petitioner used
only peaceful methods in its organizing activities. Thus, evidence of Mr. Stern's con-
duct on May 23rd not only reflects on his credibility but also further supports the
position of the Employer that Petitioner should not be granted access to Employer's
premises.
THE SMITH MEAL COMPANY, INC. 1235
a charge to be filed with the Regional Director of the Board in New York City against the
Respondent, alleging as a basis therefore that:
The employees live in Company owned houses. Although invited by the employees,
their representatives have been denied access to such houses by the employer and
have been prevented by it from meeting with the employees. The employer has threat-
ened to evict the employees if they meet with representatives of the Union. Such in-
cidents have occurred repeatedly since July 14, 1952. iv
There is no proof that prior to or subsequent to July 15, representatives of the Union
were denied access or were prevented from meeting with employees. And, opposite to the
allegation that the employer had threatened or did threaten to evict employees from their
houses, uncontroverted testimony at the hearing was to the effect that certain employees
who were living in the south barracks requested a representative of management to move
them within 'the enclosed plant area barracks so they would not be molested at night by
the entrance of the union organizers.
The denial of access on July 15, under the circumstances, raises a sharp question as
to the right of the Union to expect that Bolyard, as representative of the Respondent, should
have consented forthwith, during working hours, that organizers be permitted to enter
the plant to attempt to accomplish their express purposes, or whether Gilbert Smith and
Clarke should, after the union organizers had invaded the barracks in the night time by
invitation or otherwise, immediately that same night, have yielded to the demands of the
organizers
At the hearing, the Trial Examiner was informed by counsel that the General Counsel
did not rely upon any relationship of principal and agent between the Respondent and any
police force or police officer, in connection with the activities of Steel and O'Rourke. The
Trial Examiner cannot find a scintilla of proof of such a relationship, or that the officers,
in ordering the organizers and the strikers away from the plant area, were acting other-
wise than in a manner they considered consistent with their duty. They may have been
overzealous, or even have exceeded their authority, but nothing has been shown, assuming
this to be true, that in any way would make the Respondent responsible for their actions,
other than that they were there in response to the Respondent's request for police protec-
tion The scouting of the barracks on the night of July 14, and the activities of the union
representatives and strikers on July 15, together with almost concurrent unrest at the
parent corporation's plant at Port Monmouth, formed the basis of the request by the Res-
pondent for plant protection In the absence of proof, it cannot be assumed that the police
officers were acting under the instructions of the Respondent.[[
E. Alleged interrogation of employees
The General Counsel and the Respondent have stipulated that "Gilbert P Smith, an
officer of the corporation, to wit: treasurer, has interrogated one Carl Peterson, an em-
ployee of the Company, concerning his union sentiment during the times mentioned in the
complaint concerning interrogation " Without more, the General Counsel rested his case
as to the interrogation of employees as to their membership in, activities on behalf of,
and sympathies with, the Union. The Respondent submitted on proof that Peterson was a
supervisor within the meaning of Section 2 (11) of the Act The Trial Examiner
has considered the empty stipulation together with the evidence regarding Peterson's
duties, and finds that Peterson was a supervisor, and therefore not an employee entitled
to the guarantees expressed in Section 7 of the Act.
Concluding Findings
The principal question to be decided here is whether the general right accorded under
the Act to union representatives to confer with employees during nonworking hours is
extinguished in the circumstances of this case by the right of the Respondent to provide
adequate protection for its plant and property while acting under fear of possible dis-
order, or fear of disruption of normal operations, if the union representatives were freely
accorded right of access and visitation.
n Cf, Russell Manufacturing Company, 82 NLRB 1081, modified in part 187 F. 2d 296 (C. A. 5).
12 36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Board in LeTourneau Company of Georgia, 54 NLRB 1253, laid down the general
rule that employees cannot realize the benefits of the right to self-organization guaranteed
to them by the Act, unless there are adequate avenues of communication open to them
whereby they may be informed or advised as to the precise nature of their rights under
the Act and the advantages of self-organization, and may have an opportunity of interchange
of ideas necessary to the exercise of their right to self-organization. This principle is
stated in several different ways in different circumstances and followed in the so-called
"company town" cases, those involving access to ships, and others concerning the right
of union agents to enter upon company property in isolated locations such as mining and
lumber camps. In its Sixth Annual Report, the National Labor Relations Board said:
The rights of self-organization and collective bargaining guaranteed employees by
the Act include the right "to receive aid, advice and information from others, con-
cerning these rights and their enjoyment." In industries where the employees must
spend virtually all of their time upon the employer's property, it is apparent that the
employer can effectively prevent their enjoyment of these rights by denying union
representatives'access to its property. The Board has accordingly held that the exclu-
sion of union representatives from the employer's property under such circumstances
constitutes "serious interference" with the exercise of the rights guaranteed in Sec-
tion 7 of the Act.
See and compare the cases there discussed by the Board. Sixth Annual Report,
43,44.
The facts in the instant case show that the employees of the Respondent could, had they
so desired, have met with union representative away from the plant area. Except for the testi-
mony of Gladstone Smith, there is no showing of any request to the Union by employees of
the Respondent for aid, advice, or information, and the record is barren of any showing
that the employees or any of them, either prior to or after July 15, had requested their
Employer to permit union representatives to visit them on the plant premises. Gladstone
Smith could not identify the men he said approached him while he was employed by J. How-
ard Smith, Inc., and the Trial Examiner has some doubt as to the reliability of his testi-
mony in this respect.
In Republic Aviation Corporation v. N. L. R. B., 324 U. S. 793, the Court, in discussing
the facts in the case, observed that no evidence was offered that any unusual conditions
existed in labor relations, the plant location, or otherwise to support any contention that
conditions at this plant differed from those occurring normally at any other large esta-
blishment; and said, too, that the LeTourneau Company of Georgia case (passed on at the
same time) "is also barren of special circumstances " The Court noted and discussed
previous leading Board cases dealing with an employer's right to make rules concerning
restrictions of conduct of its employees, and quoted the principle enunciated in Peyton
Packing Company, 49 NLRB 828 at 843, regarding the promulgation by the employer of
rules governing working time The Court also referred to "the undisputed right of self-
organization assured to employees under the Wagner Act and the equally undisputed right
of employers to maintain discipline "
The instant case is somewhat different than Republic Aviation and the cases discussed
therein.
Here, the Respondent takes the plain position that in the circumstances of this case,
which Respondent claims are unusual, it had the right to deny access to the Union at
the times it did, on July 15, in order to prevent anticipated acts of violence and disorder
which it had grounds to believe might then occur because they had occurred or were oc-
curring at the plant of its parent corporation. The Trial Examiner believes the Company
had a perfect right, considering the unannounced nighttime visit of the union organizers
on July 14, to invoke police protection, he, believes that the union representatives might
well have requested the Employer its permission for them to meet with employees on the
plant premises before taking matters into their own hands, and he gives reasonable credence
to the fear expressed by the president of the Respondent concerning what conceivably could
have happened at the plant in view of the almost concurrent happenings at Port Monmouth. 12
Is At the hearing, the Trial Examiner was informed by counsel that the Union had filed
a charge with the Regional Director for the Fourth Region, based on the happenings at
Port Monmouth, above referred to, and that the charge had been later dismissed for lack of
merit.
THE SMITH MEAL COMPANY, INC. 1237
In its Seventeenth Annual Report, the Board says:
The right guaranteed to employees by the Act to organize freely for collective bar-
gaining "comprehends whatever may be lawful to accomplish and maintain such or-'
ganization " The Supreme Court has declared that this includes "their right fully
and freely to discuss and be informed concerning this choice, privately and in public
assembly."
However, against this statutory right of employees, the Board must balance
the property right of management to conduct its business with efficiency and
discipline In striking this balance of rights, the Board has consistently held
that, in the interest of plant efficiency and discipline, an employer may prohibit
union activities on the plant premises during the employees' actual working time.
But to prohibit these union activities during the employees' off-duty time in the
plant , such as lunch hours or rest periods, ordinarily constitutes unlawful in-
terference with the employees' right to self-organization (Seventeenth Annual Report,
114)
Under these principles of law, the Trial Examiner finds that Bolyard was justified
in his refusal to permit the union orga nizers to enter upon the plant premises
for the purpose of meeting with employees on the morning of July 15, and that
Gilbert Smith and Clarke, on the night of July 15, during the heat and acrimony of
that discussion, had reasonable reason and justification to refuse to discuss the
demands of the union representatives. In observing the witnesses, the Trial Ex-
aminer was inclined to believe that the testimony of the union representatives,
particularly Stearn, was somewhat colored, and that the report of the conversation
on the night of July 15, as stated by Clarke, is a fair summary of what actually
was said and contains the full import of the discussion between the men at that
time.
In any event, the question arises as to whether the conversation between Bol-
yard and the union representatives in the morning and the discussion between
Clarke and Gilbert Smith and the union representatives that night, even if re-
garded as a final and complete refusal of the Respondent to grant access under
any circumstances at any time to the union representatives, are not such isolated
incidents as to be insufficient to warrant the recommendation by the Trial Ex-
aminer of a remedial order. Cf. Gazette Publishing Company, 101 NLRB 1694. This
is not to say that an employer may always be able to obstruct or prevent union rep-
resentatives from meeting with employees upon a mere showing of apprehension
of fear of property damage or impairment of discipline
The Trial Examiner finds that in the circumstances shown herein by the
preponderance of the evidence, the Respondent was jusitfied in engaging
in the activities complained of, and that such activities were not in contravention
of the Act
Upon the basis of the foregoing findings of fact and upon the entire record in the case,
the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The operations of the Respondent, The Smith Meal Co., Inc., constitute trade, traffic,
and commerce among the several States, within the meaning of Section 2 (6) of
the Act.
2 International Fur and Leather Workers Union is a labor organization within the mean-
ing of Section 2 (5) of the Act.
3 The Respondent has not engaged in unfair labor practices within the meaning of Section
8 (1) of the Act.
[Recommendations omitted from publication]