ÆäÀÌÁö À̹ÌÁö
PDF
ePub

attempting to deal individually with strikers in disregard of their duly designated exclusive bargaining agent; 19 interfering with the attendance of employees at union meetings by rearranging work schedules or similar devices; 20 and extending favored treatment to antiunion employees or to one of two rival unions.21

Again, as in other years, the Board reaffirmed the principle that interference, restraint, or coercion is not measured by the employer's intent or the effectiveness of his action, but rather by whether the conduct is reasonably calculated, or tends, to interfere with the free exercise of employees' rights under the act.22

In addition to those mentioned above, certain other types of conduct involving violations of section 8 (a) (1) were considered in cases disposed of during the past fiscal year and were decided in accordance with previously established principles. Several cases raised questions concerning the validity of the promulgation or application of company rules restricting union solicitation on company property. Applying its settled policy,23 the Board found lawful the promulgation of rules which prohibited union solicitation or activity during working time.24 On the other hand, rules prohibiting such activities on the employer's premises during the employees' free time, in the absence of special considerations such as are present in the case of department stores," have been found violative of section 8 (a) (1) as an unwarranted impediment to the right of self-organization.26 The latter principle and its underlying reasoning were applied in one case this year in which the Board found unlawful a no-solicitation rule made applicable and enforced with respect to the employees' paid lunch periods." Affirm

25

19 E. g. Matter of Sam'l Bingham's Son Mfg. Co., 80 N. L. R. B., No. 244 (Member Gray dissenting). The Board did not find unlawful the individual solicitation of strikers to return to work where the strike violated a no-strike clause in a collective bargaining agreement. Matter of United Elastic Corporation, 84 N. L. R. B., No. 87.

20 E. g. Matter of Pacific Powder Company, 84 N. L. R. B., No. 31; Matter of Kelco Corporation, 79 N. L. R. B. 759; Matter of Barton Brass Works and Precision Parts Company, 78 N. L. R. B. 431; Matter of Super-Cold Southwestern Company, 81 N. L. R. B., No. 18.

21 E. g. Matter of James R. Kearney Corporation, 81 N. L. R. B., No. 8; Matter of Granite State Machine Company, Inc., 80 N. L. R. B., No. 20.

22 Matter of Dixie Shirt Company, Inc., 79 N. L. R. B. 127; Matter of Columbian Carbon Co., 79 N. L. R. B. 62; Matter of Minnesota Mining and Manufacturing Co., 81 N. L. R. B., No. 99; Matter of Steinberg and Company, 78 N. L. R. B. 211.

23 See Thirteenth Annual Report, p. 52; Eleventh Annual Report, p. 34; Ninth Annual Report, p. 28. 24 Matter of W. T. Smith Lumber Co., 79 N. L. R. B. 606; Matter of The Texas Company, 80 N. L. R. B., No. 140. Similarly in Matter of McKinney Lumber Company, Inc., 82 N. L. R. B., No. 2, the Board found no violation of section 8 (a) (1) in the employer's ejection from the working premises of a union organizer who was soliciting employees during working hours, when there was no indication that it was not possible to contact them during nonworking hours. However, in Matter of Aldora Mills, 79 N. L. R. B. 1, the Board found that the employer had violated section 8 (a) (1) by removing and causing the arrest of a union organizer for distributing union literature at the plant gate.

25 See Thirteenth Annual Report, p. 52.

26 Matter of Boss Manufacturing Company, 78 N. L. R. B. 538; Matter of Kentucky Utilities Company 83 N. L. R. B., No. 139.

27 Matter of I. F. Sales Company, 82 N. L. R. B., No. 238.

ing another well-established principle,28 the Board again held that a no-solicitation rule, though lawful in its content, may run afoul of section 8 (a) (1) if it has been promulgated or enforced in a discriminatory manner. Thus a rule against all kinds of solicitation which had been consistently enforced, however, only against union solicitation was found to be a violation of section 8 (a) (1).29 Likewise, a company rule which on its face prohibited the distribution of any kind of literature on the employer's premises, but which, in fact, had been designed and used solely to prevent the distribution of union literature was found violative of this section.30

31

Section 8 (a) (1), as construed in earlier years, has been held to prohibit, in the absence of special circumstances, the execution of a contract granting exclusive recognition to one union at a time when, to the employer's knowledge, a question of representation has been validly raised by another labor organization. This rule, which has become known as the Midwest Piping doctrine,32 was reaffirmed and found applicable in several cases decided during the past fiscal year.33 In one of these,34 the employer sought to defend its conduct on the ground that the union requested by the petitioning labor organization might be found inappropriate, and therefore that no real question of representation had been raised by that union's claim. Rejecting this contention, the Board noted that by entering into the contract the employer arrogated to itself the resolution of the representation question-which includes a determination of the appropriate unit—a function vested exclusively in the Board, and thereby inhibited its employees from freely selecting their bargaining representative by secret ballot in a Board-directed election.35

In a few cases decided during the fiscal year 1949 employers had endeavored by coercive means to prevent employees from utilizing the processes of the Board and thereby had interfered with the enjoyment of the rights guaranteed employees by the act. Such conduct, found

28 See Thirteenth Annual Report, p. 52.

29 Matter of Macon Textiles, Inc., 80 N. L. R. B., No. 238.

30 Matter of American Book-Stratford Press, Inc., 80 N. L. R. B., No. 142.

31 See Thirteenth Annual Report, pp. 52-53.

32 Matter of Midwest Piping and Supply Co. Inc., 63 N. L. R. B. 1060, see Eleventh Annual Report, pp. 35-36.

"E. g. Matter of Stanislaus Food Products Company, 79 N. L. R. B. 260; Matter of The Standard Steel Spring Company, 80 N. L. R. B., No. 167. A related issue was presented in Matter of C. Pappas Company, Inc., where the Board found an employer to have violated section 8 (a) (1) by dealing with a committee of his employees without requiring proof of its majority status in the face of a union's claim for recognition. 34 Matter of The Standard Steel Spring Company, 80 N. L. R. B., No. 167.

35 The issue of whether an employer, himself, may properly determine the appropriate unit was treated directly in Matter of Chicago Freight Car and Parts Co., 83 N. L. R. B., No. 167. The employer voluntarily extended a union-security agreement to cover employees in a new plant. The new operation either in combination or on a two-plant basis would have been appropriate for bargaining purposes. The Board (Member Murdock dissenting) concluded that because the employees of the new plant constituted a "distinct new group," and no bargaining history had indicated acquiescence in a larger unit, that these employ. ees could not properly be included in the combined unit without a self-determination election. The unionsecurity agreement when executed thus encompassed a unit which, in the absence of a prior expression by employees of a desire to be in the larger unit, was not deemed appropriate. It was thereby invalid, and its execution a violation of section 8 (a) (1).

violative of section 8 (a) (1),36 included threats or promises designed to induce employees to withdraw unfair labor practice charges,37 or to refrain from testifying at a Board hearing; 38 efforts to secure perjured testimony at a Board hearing; 39 and, barring employees from admission to the polls in a representation election.40

In cases in which the alleged violation of section 8 (a) (1) involved oral or printed statements made by the employer, the defense that the statements were privileged under the Constitution, and more particularly under section 8 (c) of the amended act, has frequently been urged. Section 8 (c) provides that

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic or visual form, shall not constitute or be evidence of any unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

The Board's interpretation of section 8 (c) in cases decided during the past fiscal year has consistently followed the principles enunciated in cases considered immediately after the act as amended, described in the Annual Report for the fiscal year 1948.41 Thus the Board this year has found to be unlawful employer utterances with respect to employee organizational activities which contain a "threat of reprisal or force or promise of benefit." 42 On the other hand, expressions of opinion which contain no such threats or promises have been held protected by section 8 (c), even though they may be strongly antiunion. Thus, in a number of cases decided this year the Board has considered as privileged and lawful statements which vilified, ridiculed, or disparaged unions, their organizers, or their adherents, but which contained no threats or promises.43 Likewise, the Board has again refused to consider remarks, noncoercive in their content, as violative of the act because delivered to a "compulsory audience," " or because

36 Of course, where such conduct involves a discharge or other discrimination in employment it is also violative of section 8 (a) (4).

37 Matter of D. D. Bean & Sons Co., 79 N. L. R. B. 724.

38 Matter of Amory Garment Co., 80 N. L. R. B., No. 41.

39 Matter of The Russell Manufacturing Co., Incorporated, 82 N. L. R. B., No. 136.

40 Matter of Macon Textiles, 80 N. L. R. B., No. 238.

41 Thirteenth Annual Report pp. 49-50.

42 See cases cited supra footnotes 7 and 8.

43 E. g. Matter of The Hinde & Dauch Paper Company, 78 N. L. R. B. 488; Mutter of Dixie Shirt Co., 79 N. L. R. B. 127; Matter of John Deere Plow Company of St. Louis, 82 N. L. R. B., No. 4; Matter of C. Pappas Company, Inc., 82 N. L. R. B., No. 90. In Matter of Tennessee Coach Company, 84 N. L. R. B., No. 85, a majority of the Board found an employer's request that employees vote against the union protected as an utterance which contained no threat of reprisal or promise of benefit. Chairman Herzog and Member Houston dissented on the ground that in the circumstances the statement was equivalent to an instruction and was not an expression of opinion within the meaning of section 8 (c).

44 E. g. Matter of The Hinde & Dauch Paper Company, 78 N. L. R. B. 488; Matter of The National Plastic Products Company, 78 N. L. R. B. 699; Matter of D. D. Bean & Sons Co., 79 N. L. R. B. 724; Matter of E. A. Laboratories, Inc., 80 N. L. R. B., No. 109; Matter of Agar Packing & Provision Corporation, 81 N. L. R. B., No. 199.

at other times, or on other occasions, the employer has committed unfair labor practices.45

On the other hand, the Board has pointed out that an employer's utterances do not come within the protection of section 8 (c) unless they are, in fact, expressions of "views, argument, or opinion." Thus the Board has consistently ruled that the interrogation of employees concerning union matters is not an expression of "views, argument, or opinion," but is rather a verbal form of interference, restraint, and coercion, per se, a violation of section 8 (a) (1).46 Similarly the announcement of a wage increase or other benefit is not an expression of "views, argument, or opinion," but a verbal act whose legality under section 8 (a) (1) is determined without reference to section 8 (c). Moreover, the Board has held that an employer cannot avoid responsibility for what is clearly a coercive statement merely by couching it in the form of an expression of opinion.48

47

In addition to determining the kinds of employer conduct proscribed by section 8 (a) (1), the Board this year, as before, has been called upon to consider the responsibility of employers for the behavior of those acting for employers. Because of the position that supervisors hold as management representatives, an employer is generally responsible under the act for the conduct of its supervisors.49 An employer may also be held responsible for the conduct of employees who technically are not supervisors, if the employees in question have been authorized by the employer to engage in the conduct,50 or have been clothed by the employer with the attributes of management so as reasonably to lead employees to regard them as being in a position to express the policies and desires of management.51 Where employers have sought to avoid liability for the antiunion behavior of their super visory employees by some allegedly counteracting conduct or statement, the Board has looked to see whether the employer's effort was

45 E. g. Matter of John Deere Plow Company of St. Louis, 82 N. L. R. B., No. 4; Matter of M. Snower & Company, 83 N. L. R. B., No. 38; Matter of D. D. Bean & Sons Co., 79 N. L. R. B. 724; Matter of D. H. Holmes Co. Ltd., 81 N. L. R. B., No. 125.

46 E. g. Matter of Steinberg & Company, 78 N. L. R. B. 211; Matter of Minnesota Mining & Manufacturing Co., 81 N. L. R. B., No. 99; Matter of Tennessee Valley Broadcasting Company, 83 N. L. R. B., No. 134. 47 E. g. Matter of Minnesota Mining & Manufacturing Co., 81 N. L. R. B., No. 99.

48 Matter of J. S. Abercrombie Company, 83 N. L. R. B., No. 85. Here a supervisor had made the following statement, "if the outfit went union everything would be contracted out and we wouldn't have no job." The Board concluded that this was not an indication of probable result in the event of unionization but a threat of reprisal.

49 E. g. Matter of J. S. Abercrombie Company, 83 N. L. R. B., No. 85. The Board has further noted that the fact that the conduct may have been inspired by personal animosity to the union rather than service in the interest of the employer does not absolve the employer of responsibility. Matter of Beatrice Foods Company, 84 N. L. R. B., No. 62.

30 E. g. Matter of Superior Engraving Company, 83 N. L. R. B., No. 29; Matter of Electric City Dyeing Company, 79 N. L. R. B. 872.

51 E. g. Matter of Sioux City Brewing Company, 82 N. L. R. B., No. 135. See also Matter of North Electric Manufacturing Company, 84 N. L. R. B., No. 23; cf, Matter of Mylan-Sparta Company, Inc., 78 N. L. R. B. 1144; Matter of Interchemical Corporation, 83 N. L. R. B., No. 95; Matter of Solomon Company, 84 N. L. R. B., No. 29; Matter of Rome Specialty Company, Inc., 84 N. L. R. B., No. 9; Matter of American Thread Company, 84 N. L. R. B., No. 70.

effective to repudiate the supervisory action. In one case the Board refused to attribute to an employer responsibility for certain coercive statements of a supervisor, where the employer had posted a notice clearly indicating that the supervisor in question had no authority to speak with respect to the employer's union policy.52 In another case, however, after various supervisory officials had engaged in threats and interrogation, the employer sent a letter merely announcing a general policy of neutrality. The Board held that this letter, which in no way repudiated the earlier conduct, failed to absolve the employer of responsibility for such conduct.53

54

55

A related problem is the responsibility of the employer for acts of interference, restraint, and coercion committed by outsiders against his employees. Where the employer has specifically authorized the commission of the unlawful acts by such outside agents, he is clearly answerable for their conduct. But responsibility has also been predicated on the failure of the employer to repudiate known anticonduct of outsiders when by such inaction he reasonably led his employees to believe that he acquiesced in and approved of that conduct.56 In Matter of The Russell Manufacturing Co., Incorporated,57 various outside individuals, including police officers, had engaged in antiunion conduct ranging from surveillance to physical attacks on a union organizer. The Board found that some of this conduct had been specifically authorized by the employer. As to other conduct, the Board found that, by failure to repudiate it in the face of knowledge that it had been done in the employer's name, the employer had ratified it. On these facts, the Board concluded that the individuals in question had acted as "agents" of the employer. As such, not only was the employer responsible for their conduct, but the individuals were themselves "employers" within the meaning of the act.58 Accordingly the Board issued separate cease and desist orders against the individuals in question.

2. Dominating, Interfering With, or Supporting the Formation or Administration of a Labor Organization

Under section 8 (a) (2) of the act, as amended, it is an unfair labor practice for an employer to dominate or interfere with the formation.

52 Matter of Beatrice Foods Company, 84 N. L. R. B., No. 62.

53 Matter of Columbian Carbon Company, 79 N. L. R. B. 62.

See Fifth Annual Report, pp. 33-34.

55 E. g. Matter of Bibb Manufacturing Company, 82 N. L. R. B., No. 38 (use of police officials); Matter of Atlantic Towing Company, 79 N. L. R. B. 820 (use of a detective).

56 E. g. Matter of Waynline, Inc., 81 N. L. R. B., No. 95; Matter of L & H Shirt Company, Inc., 84 N. L. R. B., No. 30. Both of these cases involved statements made to employees by local businessmen. $7 82 N. L. R. B., No. 136.

$ Section 2 (2) of the act, as amended, defines an "employer" to include "any person acting as an agent of an employer, directly or indirectly."

« ÀÌÀü°è¼Ó »