United Aircraft Corp.

National Labor Relations Board - Board Decisions

Dec 27, 1961

134 N.L.R.B. 1632 (N.L.R.B. 1961)

1632 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reiterated on June 5 to Davis and Lumiere when they offered to hire all un-
replaced strikers. Consistently with this testimony , Davis asserted that he under-
stood that the committee 's application on June 3 and the later individual applications
constituted a request that all or none be rehired . Moreover , it was stipulated at the
hearing that the Respondent did rehire prior to June 5 two employees who joined in
the "stoppage " of June 2 but did not associate themselves with the group or indi-
vidual applications on June 3 . 13 I am persuaded by the foregoing circumstances,
as well as by the fact that the Respondent a few hours after work resumed on
June 5 offered to rehire all those claimants who had not yet been replaced, that
Respondent on June 3 would have accepted the applications of those claimants who
had not yet been replaced 14 but for its understanding that they were conditioned,
as in fact they were, on reinstatement of all the claimants . Respondent was not re-
quired to accept the foregoing condition , but was privileged by reason of such condi-
tion to reject ,the applications in toto. I find therefore that such rejection did not
violate the Act, and will recommend dismissal of the complaint.
[Recommendations omitted from publication.]
19 One, Holcomb, applied for rehire in the evening of June 2, and the other, Dennis,
applied on June 4.
14 As it did those of Holcomb and Dennis . See preceding footnote
United Aircraft Corporation , Pratt & Whitney Aircraft Divi-
sion and District Lodge #91, Lodge 1746, International Asso-
ciation of Machinists, AFL-CIO . Case No. 1-CA=3351. Decem-
ber 27, 1961
DECISION AND ORDER
On June 9, 1961, Trial Examiner Robert E. Mullin issued his Inter-
mediate Report in the above-entitled proceeding, finding that the Re-
spondent had engaged in and is engaging in certain unfair labor
practices, and recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the Intermediate Report
attached hereto. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds that -no prejudicial error was committed. The
rulings are hereby affirmed. The Board has considered the entire
record in this case, including the Intermediate Report and the excep-
tions and brief, and finds merit in 'the Respondent's exceptions. The
Board therefore adopts the Trial Examiner's findings and conclu-
sions only to the extent consistent herewith.'
IOn November 20, 1961 , the Board received an undated motion from the Charging
Party requesting oral argument and requesting that the Board strike the Respondent's
defense , upon which the Trial Examiner relied, that the Respondent' s ban did not occur
in the context of other unfair labor practices . The motion requested the Board to take
official notice of Cases Nos 1-CA-3355, 1-CA-3357, 1-CA-3358, 1-CA-3359, 1-CA-3372,
1-CA-3396, 1-CA-3430, 1-CA-343'4, 1-CA-3435, 1-CA-3528, 1-CA-3532, and 1-CA-3571.
The charges in these cases , some of which were filed prior to the hearing in the instant
case, allege generally (1) a discriminatory delay in recalling "loyal" strikers , and (2) a
discriminatory refusal to reinstate and recall some "loyal" strikers after January 1, 1961.
In this connection , the Board , on November 15, 1961, denied Respondent ' s motion to revoke
certain precomplaint subpenas duces tecum issued September 16, 1961, and Respondent's
subsequent motion for reconsideration . The Charging Party urges that the Respondent's
refusal to comply therewith is relevant to its defense herein. However , as it appears that
134 NLRB No. 153.
UNITED AIRCRAFT CORP., PRATT & WHITNEY DIV. 1633
The Trial Examiner found that the Respondent violated Section
8(a) (1) by its prohibition on the wearing of certain pins which the
Union sold and distributed to "loyal" strikers. The Trial Examiner
found that the Respondent also violated Section 8(a) (3) by suspend-
ing Mackay, an employee, for wearing said pin. We do not agree.
As noted by the Trial Examiner, the Respondent and the Union had
enjoyed amicable bargaining relations extending back to 1946. On
June 9, 1960, the employees engaged in an economic strike which lasted
some 9 weeks and was attended by mass picketing and violence? As a
result, the Respondent filed charges against the Union alleging that
such strike misconduct violated Section 8(b) (1) (A) of the Act. On
the basis of these charges, the Regional Director for the First Region
initiated proceedings in a U.S. district court for an injunction against
the Union under Section 10 (j) of the Act. On June 16, 1960, the Re-
spondent and Union entered into a stipulation in the injunction
proceeding whereby the Union agreed to cease its unlawful activity.
Thereafter, on August 9, 1960, the parties executed a new bargaining
agreement and a strike settlement was reached on August 11, 1960.
Of some 16,000 striking employees, all but about 4,500 returned to
work at various times during the strike. On or about October 10,
1960, the Union sold emblems, known generally as "Club 9" pins, to
some 615 strikers to symbolize their union loyalty during the "9"
weeks of the strike. Only those employees who had not crossed the
picket lines during the entire period of the strike were eligible to pur-
chase and,wear the pins.
The Respondent did not post a formal rule banning the wearing of
"Club 9" pins. Instead, the Respondent instructed its supervisory
personnel to request any employee who appeared at work wearing the
pin to remove it, and to explain to the employee that this was being
done because the Company wanted to promote harmony among the
employees.'
Bernard Mackay, an employee who had remained on strike during
the full 9-week period, secured a pin on October 26, 1960, and wore it
the matters alleged in the motion , and to which the subpenas relate, were known to, and'
could have been raised by , the Charging Party during the course of the hearing, that
the Charging Party chose not to raise these matters through timely filed exceptions to
the Intermediate Report; and that under Section 102 .46(b) of the Board's Rules and
Regulations , Series 8, "no matter not included in a statement of exceptions may there-
after be urged before the Board , or in any further proceeding ," we find no merit to the
Charging Party's motion and, accordingly , it is hereby denied Also denied is the Charg-
ing Party 's request for oral argument as the record adequately sets forth the-issues and
the positions of the parties with respect thereto
2 No contention is made that the strike arose out of unfair labor practices or that the
walkout was converted into an unfair labor practice strike
3 As found by the Trial Examiner , after the strike settlement was reached but prior to
the Union's sale of "Club 9" pins, the Respondent sent a letter to each of its employees
soliciting their cooperation in returning the plant to a normal and harmonious atmosphere
Letters were also sent to Respondent ' s supervisors reminding them to welcome back the
strikers.
630849-62-vol . 134-104
1634 DECISIONS Or NATIONAL LABOR RELATIONS BOARD
in the plant. Shortly after reporting for work, Respondent informed
Mackay that unless he removed the pin he would be suspended. Upon
his refusal, Mackay was suspended and told that he could return at
any time, as long as he did not wear the "Club 9" pin' About 10 days
later, Mackay reported to Respondent without the pin and he was re-
hired to his former position without prejudice.
Based on these facts, the Trial Examiner concluded that the Re-
spondent's ban on "Club 9" pins was an unlawful intrusion on the
employees' right to display union insignia, and that Respondent's
alleged apprehension that the wearing of this emblem would provoke
breaches of discipline and disrupt production was not such "special
circumstances" under Board decisions as to render the prohibition
lawful.
We agree with the Respondent that under the circumstances its
-ban on the wearing of "Club 9" pins was not unlawful. In reaching
this conclusion, we rely not only upon the facts as found by the Trial
Examiner and stated in his Intermediate Report, but also upon con-
,sideration of further facts which have been urged by the Respondent
in its exceptions and brief, and which are fully supported by the
record. These facts bolster the Respondent's position and make en-
tirely reasonable its apprehension that the "Club 9" pins would pro-
mote disorder and engender further divisiveness between the strikers
and nonstrikers. Thus, the record indicates that (1) in a conversa-
tion between the Respondent's personnel manager and the Union's
president concerning an altercation which occurred between a striker
and nonstriker, the union president agreed that the "Club 9" pins
would only serve to continue the animosity between the two groups of
employees; S (2) on December 12, 1960, Charles McCaffrey, a candi-
date for the presidency of the Union, circulated a vituperative letter
:aimed in part at employees who crossed the picket line. One portion
of this letter read as follows : "If I am elected I pledge that every
strikebreaker will be hunted down like 'the' economic animal he
is...."; (3) at the conclusion of the strike and after the strike settle-
ment was reached, a local newspaper published a letter which had
been signed by the Union's vice president. This letter stated, in part:
... the cry `scabbie' will ring loud and clear throughout Connecti-
cut for many years to come. It will follow some employees to their
graves. For them the strike is just beginning"; (4) in October 1960,
* The Respondent did not ban the wearing of other union insignia . Indeed, it appears
that upon his return to work Mackay ( as well as other employees ) displayed an IAM
button without protest from Respondent.
5 Respondent adverted to the fact that a similar situation arose at its North Haven plant
where, after a strike, the union there issued "honor badges" to loyal strikers When
respondent suggested to the.umon at North Haven that the badges would be disruptive of
morale the union instructed its members to remove them In the instant case , Respond-
'ent's personnel manager testified, without contradiction, that he informed the Union of
what had transpired at North Haven and requested that it adopt the same course of
:action ; the Union in the instant case did nothing
UNITED AIRCRAFT CORP., PRATT & WHITNEY DIV. 1635
the Union's vice president prepared a list of approximately 150 em-
ployees which contained the following heading : "This list is furnished
you courtesy of 963 Strike Committee. These scabs crossed the picket
lines between June 8 and August 9." It appears that some 30 to 40
copies were distributed to plant employees; and (5) strikers testified
that upon their return to work after the strike ended they bore only
disrespect and ill-will for the nonstrikers.
We believe these facts, when coupled with the poststrike instances
of discord and bitterness between the two employees groups,s amply
justified Respondent's apprehension of plant disorder resulting from
wearing the "Club 9" pins. The Respondent's ban on the pins was,
in our opinion, a reasonable precautionary measure under the circum-
stances, and we therefore conclude that Respondent did not violate
the Act by taking the action under consideration here. Accordingly,
we shall dismiss the complaint in its entirety.
[The Board dismissed the complaint.]
MEMBER LEEDOM took no part in the consideration of the above
Decision and Order.
61n addition to the foregoing facts, some of which the Trial Examiner considered, the
Trial Examiner found that subsequent to the strike settlement two grievances were filed
involving fighting between the "loyal " strikers and those who crossed the picket line,
and that three grievances arose out of incidents involving "name-calling" between strikers
and nonstrikers.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
This proceeding , brought under Section 10 (b) of the Labor Management Relations
Act of 1947, as amended , 61 Stat . 136, 73 Stat . 519, herein called the Act, was heard
before Robert E . Mullin, the duly designated Trial Examiner, in Hartford , Connecti-
cut, on January 23 to 25 , 1961 , pursuant to due notice to all parties . The complaint,
issued by the General Counsel of the National Labor Relations Board , and based
on charges duly filed and served , alleged that the Respondent had engaged in unfair
labor practices proscribed by Section 8(a)(1) and ( 3) of the Act . In its answer,
duly filed, the Respondent conceded that it was engaged in commerce within the
meaning of the 'Act, but,it denied the commission of any unfair labor practices.
At the hearing all parties were afforded full opportunity to be heard , to examine
and cross-examine witnesses , to introduce relevant evidence , and to argue orally. At
the close of the hearing the Respondent moved to dismiss the complaint . This motion
is disposed of as appears hereinafter in this report .' Oral argument was had by the
'Charging Party, but was waived by the other parties to the proceeding . Subsequent
to the hearing, both the General Counsel and the Respondent submitted able and
comprehensive briefs which have been most helpful to a consideration of the issues.2
Upon the entire record in the case, and from my observation of the witnesses,
I make the following:
1 Also at the close of the hearing the General Counsel moved to conform the pleadings
to the proof The transcript reflects no ruling on this motion . It is now granted
2In his brief, the General . Counsel moved that a change be made in the transcript as to
one line of testimony that appears therein The Respondent has taken no position with
respect to this _ proposed change There are a number of obvious errors in the transcript,
none of which , however, appear to be material The change requested by the General
Counsel does not go to the substance of the testimony in question In view of -this fact
and my further conclusion that if there are to be any changes in the transcript they
should be made by a joint stipulation of the parties which would correct not one but all
the errors , the General Counsel's motion as to this issue is hereby denied.
1636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
The Respondent, a Delaware corporation with its principal office in East Hartford,
Connecticut, is engaged in the manufacture and distribution of aircraft engines, heli-
copters, propulsion systems, electronic devices, and related components and acces-
sories. It operates plants at East Hartford, North Haven, Windsor Locks, Broad
Brook, and Stratford in the State of Connecticut, and, in addition, has other plants
in the States of Florida, New York, and California. Only the plant at East Hartford
is involved in the present proceeding. In the course and conduct of its operations in
Connecticut the Respondent's annual purchases of goods and materials from
points outside that State exceed $1,000,000. Similarly, it annually ships to other
States products valued in excess of $1,000,000, which have been manufactured at
its Connecticut plants. Upon the foregoing facts, the Respondent concedes and I
find, that United Aircraft Corporation, Pratt & Whitney Aircraft Division, is engaged
in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
District Lodge #91, Lodge 1746, International Association of Machinists, AFL-
CIO, herein called Lodge 1746 or Union, is a labor organization within the meaning
of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Introduction and sequence of events
The Charging Union represents approximately 17,000 employees in a production
and maintenance unit at the East Hartford plant, the only installation of the Respond-
ent involved in this case. On June 9, 1960, Lodge 1746 went on a strike 3 which
was not settled until August 11, 1960, when the Company and the Union agreed on
the terms of a new collective-bargaining agreement. Many of the employees in the
unit returned to work before the strike ended. At the time of the settlement approxi-
mately 4,500 employees were still on strike and most of them requested reemploy-
ment. A substantial number were returned to their former jobs immediately. Those
for whom no work was available were placed on preferential hiring lists, pursuant
to the terms of the strike settlement agreement. At the time of the hearing in the
instant case about 500 strikers in the latter caegory had no been reemployed.
The work stoppage that occurred at the East Hartford plant was an economic
strike. The General Counsel does not contend that it arose out of unfair labor
practices or that the walkout itself was converted at any time into an unfair labor
practice strike. Less than a third of the employees in the unit remained away from
work throughout the entire course of the long strike. Subsequent to the settlement
of the dispute, Lodge 1746 sought to commemorate those who had remained stead-
fast during the entire 9 weeks of the walkout by authorizing them to wear an emblem
that would symbolize their loyalty. This emblem was known generally, and in the
record, as a "Club Nine" pin. The Union sold these to its members for $1 each and
made them available only to the employees who had refused to cross the picket lines
during the course of the strike. The Union's plan for memorializing the strikers
immediately encountered resistance from the Respondent. The Company did not
post a rule forbidding the exstrikers to wear the Club Nine pin. On the other hand,
whenever an employee appeared at work with this emblem on his uniform he was
asked by his foreman to remove it. If the employee refused, he was sent to the general
foreman of the department who repeated this request. If the employee still declined
to remove the pin he was sent to a personnel adviser who told the employee that
unless he discontinued wearing the emblem he would be suspended until such time as
he did so.
From about October 10, 1960, when the Union first offered the pins to its members
until the date of the hearing, it sold about 615 emblems to those eligible to wear them.
Counsel for the Respondent stated that approximately 43 employees appeared in the
plant wearing these badges and were asked to remove them. All except one of the
latter complied with the request. This was Bernard Mackay.
Mackay, an employee who had remained out on strike for the full 9 weeks, secured
a Club Nine emblem on October 26 and wore it to the plant that day. Soon after
reporting for duty, his foreman, Randy Galinet, told him that he would have to remove
30n or about the same date In June, other unions which represented the Respondent's
employees at its plants in Windsor, Broad Brook, Stratford, and North Haven, Connecticut,
also went on strike.
UNITED AIRCRAFT CORP., PRATT & WHITNEY DIV. 1637
the pin. When Mackay declined to do so, Galinet sent him to Charles Murphy,
the general foreman. Murphy repeated Galinet's request and explained that the
Company did not want any segregation among the employees. Upon Mackay's fur-
ther refusal to remove the pin he was sent to the personnel department. There he
was interviewed by a Mr. Hawkins, one of the personnel advisers, who informed
Mackay that unless he removed the pin he would be suspended. Mackay again
refused. Shortly thereafter Galinet told him that he had been suspended, escorted
him to the plant gate, and ordered him to leave. At the same time, however, the
foreman told Mackay that he could return to work as soon as he reappeared without
the pin. Mackay remained off duty for about 11/z weeks and then reported back to
the plant without the pin. He was immediately reemployed and never subjected to
.any subsequent discipline for having worn the disputed insignia.
B. Analysis of the evidence
In addition to the introductory findings set forth above, certain additional facts
must be considered.
Soon after the strike began the Company filed 8(b)(1)(A) charges against
Lodge 1746, as well as three other unions.4 A short time later the Regional Director
for the First Region petitioned the Federal District Court for Connecticut for an in-
junction against Lodge 1746 and the other unions under Section 10(j) of the Act.
On June 16, 1960, the parties entered into a stipulation whereby Lodge 1746 agreed 5
that the alleged unlawful activity would cease and further, in the event of a resump-
tion of such activity, the court could issue a temporary restraining order without
notice to the unions involved. Thereafter no application for such relief was ever
made to the court. The complaint in the related unfair labor practice case against
the Charging Party was settled on September 9, 1960. In conformity with the cus-
tomary practice as to settlements, the Company posted the Union's notice of its
,acquiescence and later the Company was notified by the Regional Director that the
,case against Lodge 1746 had been closed because of the Union's compliance with
the settlement agreement.
On August 11, 1960, when the strike ended, the Company sent a letter to each of
its employees soliciting their cooperation in returning the plant to a normal and
harmonious atmosphere. The Company likewise issued instructions to its foremen
which were designed to insure fair treatment to the returning strikers. The General
(Counsel contends that these measures were fully effective in maintaining production
and discipline. In support of this contention the General Counsel points out that
on only one occasion did the Union complain formally to the Company that a
returning striker had been mistreated 6 and that, from the end of the strike until
January 1961, only two grievances had been filed involving fighting and only three
involving name calling in a unit of 17,000 employees.
The Respondent asserts that, in addition to the foregoing, many other incidents
must be considered with respect to its2 ban on the Club Nine pins. Most of the
testimony in this connection was that of Nathaniel Morse, personnel manager of the
Respondent. Thus, Morse testified that after June 16, 1960, he personally observed
pickets obstructing access to the plant, placing tacks in the road at the entrances, and
cursing nonstrikers as they entered the plant. Morse further testified that over 800
instances of property damage arising out of the strike were brought to the attention
of the Company and that, as a result, nonstrikers received compensation totaling
$30,000, of which sum the Company paid over $8,000 on claims that were not com-
pensated by insurance. As an index of the animosity which the strikers felt toward
those employees who had crossed the picket lines, the Company points to a "letter to
the editor" which appeared in the Hartford Times on August 15, 1960. This was
signed by Edwin Noyes at the time a shop committeeman and later a vice president
of Lodge 1746. After reviewing the strike and its termination the letter writer stated:
... the cry "scabbie" will ring loud and clear throughout Connecticut for many
years to come. It will follow some employees to their graves. For them the
strike is just beginning.?
4 Namely, JAM Lodge 743, UAW Local 877, and UAW Local 1234 These unions repre-
sented the Respondent's employees at the plants in Windsor and Broad Brook (IAT1
Lodge 743), Stratford (UAW Local 877), and North Haven, Connecticut (UAW Local 1234)
5 This agreement was also signed by -IAM Lodge 743
6 This complaint was lodged by the Union on August 19, 1960.
7 At the hearing Noyes denied that he had written this letter. He admitted, however,
that he had signed the letter and authorized its publication Moreover, he made no effort
to establish that he had ever disavowed the views set forth in the published letter
1638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In October Noyes prepared a list of approximately 150 employees which he mimeo-
graphed at the union office. , This sheet contained the heading:
This list is furnished to you courtesy of 963 Strike Committee. These scabs
crossed the picket lines between June 8 and August 9.
Noyes conceded that he had about 200 copies mimeographed and distributed 30 or 40
to the union steward on the second shift in his department.
According to Morse, when the Club Nine pins appeared at the East Hartford plant
in October they raised a problem similar to that at United's North Haven plant
several months earlier. At the latter plant the UAW,had conducted a strike which
had been marked by violence and conduct which had caused the UAW local there
to be joined as a respondent in the Regional Director's Section 10(j) proceeding in
June. After the cessation of the strike at the North Haven plant, the UAW at
first issued "honor badges" to those strikers who observed the picket lines, through-
out the strike. Morse testified, however, that when the Company suggested that
these badges would be disruptive to morale in the North Haven plant the UAW
instructed its members not to wear the badges while at work. According to Morse,
thereafter when he asked Lodge 1746 to adopt the same course of action as to the
Club Nine pins the latter union did nothing.
C. Contentions of the parties; conclusions with respect thereto
The General Counsel contends that the Company's ban on the Club Nine pins was,
an unlawful instrusion on the employees'-right to display union insignia and that the
ban was not justified by the Respondent's apprehension that the wearing of this
emblem would provoke breaches of discipline and disrupt production. The Re-
spondent, on the other hand, asserts that its prohibition on wearing the Club Nine
pin was not violative of the Act in that the rule constituted no more than a reason-
able effort on its part to eliminate or to reduce the intra-employee bitterness which
remained as an aftermath of the strike.
The General Counsel contends that an employee has an almost absolute right
to display union insignia at work, and that this right; may be limited only where a
breach of discipline or disruption of production may attend its exercise. The General
Counsel further contends that the Respondent's ban on the pins was not justified be-
cause there was no evidence of any particular discipline or production problems at
the plant attributable to animus between strikers and nonstrikers either before
or after the issuance of the Club Nine insignia. Finally, ,the General Counsel asserts
that the Respondent cannot justify the ban merely because it was fearful that the
Club Nine pin would disrupt production and create disciplinary problems. In sup-
port of the latter argument the General Counsel attacks the competency of the
testimony offered by Personnel Director Morse as to the reports he had received
of extensive damage to the property of nonstrikers that occurred both during and
after the strike. The General Counsel alsocdiscounts Morse's testimony as to the
amount of money paid out in property damage claims as hearsay. From these de-
ductions the General Counsel argues that "the Respondent's fears and anxieties .
without more" (Caterpillar Tractor Company, 113 NLRB 553, at 556), were not such
special circumstances as would justify the imposition of the rule in question.
The Respondent contends that its action here was proper on the ground that the
grudges nurtured during the long strike were not forgotten immediately upon its ter-
mination and that there was substantial evidence that, unless the Respondent made
every effort to heal the breach between strikers and nonstrikers, plant discipline and
production would -be impaired. It contends that the wearing of the Club Nine em-
blem, as distinguished from the usual type of union insignia, had no reasonable
connection with any proper union activity and, was symbolic only of the 9-week
strike so that it served to segregate strikers and nonstrikers at their place of work in
the plant. The Respondent also contends that there is nothing in the Act which
requires an employer to exhaust all other alternatives before imposing a ban on
activity calculated to disrupt discipline and, further, that its rule on the Club Nine pins
was a reasonable exercise of its managerial discretion in acting to restrain reason-
ably anticipated violence or disruption.
Although in this case the General Counsel now appears to gloss over the Union's
conduct during the strike it is relevant to note that on June 15, 1960, in the petition
filed in the Section 10(j) proceeding the General Counsel averred that Lodge 1746
(as well as the other unions engaged in the strike) :
,In furtherance of their strike against United, respondents, since on or
about June 7, 1960, have engaged in mass picketing at and blockading of en-
UNITED AIRCRAFT CORP., PRATT & WHITNEY DIV. 1639'
trances or roads to, United's Hartford, North Haven, Windsor, Broad Brook
and Stratford plants. Respondents also have engaged in acts of violence and
threats of violence at the gates and entrances of the aforesaid plants of United,
including stoning, rocking and damaging of automobiles, attempting to overturn,
destroy or damage automobiles; deflating, cutting or damaging automobile tires,
assaults upon occupants of automobiles or other persons attempting to enter
said plants; threatening physical violence or other injury; using abusive, coercive
or intimidatory language; and threatening economic reprisals.
It seems of particular relevance to the present case that the General Counsel should
have sought an injunction under Section 10(j) to restrain ,the strike conduct of
Lodge 1746 and its sister unions. The General Counsel's authority to secure such
relief is used infrequently .8 That he should have resorted to this action in the
early stages of the strike is indicative of the concern with which the General Counsel
and the Regional Director viewed the union conduct of that period. In endeavoring
to arrive at an index for the assessment of the strike background in this case no other
factor is as significant as the General Counsel's resort to Section 10(j) and his peti-
tion for injunctive relief to prevent further violence. From this alone it is apparent
that ' he strike here involved was one from which much employee bitterness could
arse.
Before the dispute was settled in August 1960 over two-thirds of the 16,000
employees in the unit had crossed the picket lines to return to work. That this
wholesale desertion should have caused much resentment among the 4,500 strikers
who did not falter in their loyalty to Lodge 1746 is a well-known fact of labor-
management relations. Nor is it surprising that on August 15, Noyes' letter should
have expressed the sentiment that,
... the cry "scabbie" will ring loud and clear throughout Connecticut for
many years to come. It will follow some employees to their graves. For
them the strike is just beginning.
Noyes' subsequent distribution of "scab" lists in October was further evidence of a
determination on the part of a vocal group of strikers that they did not intend that
the divisiveness of the strike be forgotten. At approximately the same time, Lodge
1746 began the sale of Club Nine pins so as to further distinguish the loyal strikers
from the nonstrikers and from the union members of wavering fealty.
This case does not present the issue raised when an employer bans the wearing of'
all union insignia at work. The IAM has represented the employees in the bar-
gaining unit at the East Hartford plant for many years. It was undisputed that the
employees there were at all times free, both before and after the strike, to wear-
their regular JAM insignia and various other union emblems. The General Counsel
did not allege that the prohibition in issue covered anything other than the Club
Nine emblems Furthermore, this is not a case in which the rule in question was
promulgated as part of a campaign to discourage a union organizational campaign.
Nor is there evidence of any antiunion animus on the part of the Respondent
in its effectuation of the rule. Finally, it is similarly undisputed that Mackay was.
not singled out for suspension on any ground other than his refusal to remove the
Club Nine emblem.
The Board has consistently held that employer prohibitions on the display of
union insignia violate the Act absent "special circumstances" which may justify "the
Respondent's intrusion upon its employees' congressionally bestowed right to wear
that insignia while at work." Caterpillar Tractor Co, 113 NLRB 553, 557, order
set aside 230 F. 2d 357 (C.A. 7). See also Boeing Airplane Company, 103 NLRB
1025, 1026-1027, enforcement denied as to this point 217 F 2d 369, 374-375, 377
(C.A. 9); Murphy Diesel Company, 120 NLRB 917, 9-19-920, order set aside 263
F. 2d 301 (C.A. 7); Century Cement Manufacturing Company, Inc., 100 NLRB
1323, 1324, footnote 1, enf. as mod. 208 F. 2d 84 (C.A. 2); George C. Knight Com-
pany, 102 NLRB 1198, 1199, 1212,4215; Kimble Glass Company, 113 NLRB 577,
579-581, enfd. 230 F. 2d 484 (C.A. 6). It is true, as the Respondent contends in its
brief, that all of these decisions are distinguishable on their facts in some fashion or
8In the fiscal year 1959, the latest year for which statistics have been published, the
General Counsel filed petitions for injunctive relief under Section 10(j) in only five cases
Twenty-fourth Annual Report of the National Labor Relations Board (1959), pp 140-
143, 179.
1640 DECISIONS OI' NATIONAL LABOR RELATIONS BOARD
other from the instant matter. In several of the foregoing cases, the Board seemed
to rely to some extent on the inoffensive character of the insignia, as well as their
occurrence in the context of other unfair labor practices by the Employer. Murphy
Diesel, supra, at 919; Boeing Airplane, supra, at 1027; Century Cement, supra, at
1339; George C. Knight, supra, at 1215. In Kimble Glass, where the employer
sought to justify its ban on the emblems of one union on the grounds that a rival
organization had threatened that violence would ensue if CIO buttons continued to
be worn, the Board held that the employer violated the Act by prohibiting the CIO
Insignia, and stated, "'special circumstances' require more than an employer's sub-
mission to the demands of an incumbent union or its members to prevent adherents
of a rival union from exercising their legitimate self-organizational rights." Kimble
Glass, supra, at 579. Finally, in the Caterpillar Tractor case there was present the
fact that the union there involved was engaged in an active organizational campaign,
a factor, as noted above, that is not present here. Caterpillar Tractor, supra, at 554.
Notwithstanding the elements in the foregoing cases which differentiate them
from the one now under consideration, it is my conclusion that the Board's rule, as
set forth in these decisions, requires that I find that the Respondent herein violated
Section 8(a)(1) of the Act by its prohibition on the wearing of the Club Nine pin.
In so holding I am acutely aware of the fact that the Respondent's position finds
strong support in several circuit court opinions: Caterpillar Tractor Co. v. N.L.R.B.,
230 F. 2d 357, 358-359 (C.A. 7); Boeing Airplane Company v. N.L.R.B., 217 F. 2d
369, 375, 377 (C.A. 9); NL.R.B. v. Murphy Diesel Company, 263 F. 2d 301, 303-
304 (C.A. 7); Maryland Drydock Company v. N.L.R.B., 183 F. 2d 538, 541-542
(C.A. 4). Insofar as these latter opinions conflict with the Board's position, the
Trial Examiner is bound to follow the Board. The Board has reminded the Trial
Examiners, at times sharply, that "it is not for a Trial Examiner to speculate as to
what course the Board should follow where a circuit court has expressed disagree-
ment with its views." Insurance Agents' International Union, AFL-CIO (The
Prudential Insurance Company of America), 119 NLRB 768, 773, reversed 361 U.S.
477. Novak Logging Company, 119 NLRB 1573, 1575-1576. Consequently, and in
accordance with the Board's decisions cited above, it is my conclusion, and I find,
that the Respondent violated Section 8(a)(1) of the Act by its prohibition of the
Club Nine insignia. From this it must also follow that the Company further violated
Section 8(a)(3) of the Act when it suspended Mackay for disobeying the invalid
ban. I so find Kimble Glass Company, supra, at 581.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent set forth in section I, above, have a
close, intimate, and substantial relationship 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
Since it has been found that the Respondent has engaged in unfair labor practices
within the meaning of Section 8(a) (1) and (3) of the Act, I will recommend that it
cease and desist therefrom and take certain affirmative action in order to effectuate
the policies of the Act.
Upon the basis of the foregoing findings of fact, and upon the entire record in the
case, I make the following:
CONCLUSIONS OF LAW
1. The Respondent is engaged in commerce and the Union is a labor organization,
all within the meaning of the Act.
2. By discriminating in regard to the tenure of employment of Bernard Mackay,
the Respondent has engaged in and is engaging in unfair labor practices within the
meaning of Section 8(a) (3) of the Act.
3. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]