Cannon Electric Co.

National Labor Relations Board - Board Decisions

Apr 7, 1965

151 N.L.R.B. 1465 (N.L.R.B. 1965)

CANNON ELECTRIC COMPANY 1465
Cannon Electric Company and Charles H. Warren. Case No.
21-CA-5319. April 7, 1965
DECISION AND ORDER
On August 4, 1964, Trial Examiner David F. Doyle issued his
Decision in the above-entitled proceeding, finding that Respondent
had not engaged in the unfair labor practices alleged in the com-
plaint, and recommending that the complaint be dismissed in its
entirety, as set forth in the attached Trial Examiner's Decision.
Thereafter, the Charging Party filed exceptions to the Trial Exam-
iner's Decision and a supporting brief. The Respondent filed a
brief in opposition to the exceptions.
The National Labor Relations Board has reviewed the rulings
of the Trial Examiner made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby affirmed. The
Board has considered the Trial Examiner's Decision, the excep-
tions, the briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommendations of the Trial
Examiner as modified below.
The Trial Examiner found that the discharge by Respondent
of employee Whittington in March 1963 did not violate Section
8(a) (3) of the Act and that numerous allegations of Section 8(a) (1)
violations beginning in December 1962 had not been proven. The
Trial Examiner's conclusions on these matters, except as to the
issues treated hereinafter, rest largely upon his credibility findings
which generally credit Respondent's witnesses and discredit the
General Counsel's witnesses. We affirm the Trial Examiner's con-
clusions on these matters, for we do not consider his credibility
determinations reversible under accepted standards.'
Two of the alleged violations of Section 8 (a) (1) do not involve
issues of fact. As to these, the Trial Examiner found that neither
Respondent's distribution of a letter to supervisory personnel re-
questing them to submit lists of union sympathizers, followed by
the submission of such lists, nor its elaborate polling of employees
concerning their views on an election campaign that had resulted
in the rejection of the Union, was violative of the Act. The facts
giving rise to the two issues are as follows :
On December 19, 1962, following several months of organizational
efforts by the Union and vigorous antiunion campaigning by Re-
spondent, the Board conducted a representation election among
Respondent's production and maintenance employees. The Union
lost the election. Immediately following the election, Respondent's
1 Standard Dry Wall Products, Inc., 91 NLRB 544, enfd . 188 F. 2d 362 (C.A. 3).
151 NLRB No. 141.
1466 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
personnel manager, Gerald Townsend, sent a memorandum to all
supervisors requesting them to submit an evaluation of the "union
campaign conducted by the Company." This evaluation, the memo-
randum explained, "would be most helpful for the future activities
of this kind, which we might have." The memorandum added :
It would also be helpful if each of you would indicate the
people who were active in the unionizing campaign, and had
strong sympathies in that direction.
Only a few of the supervisors replied to this memorandum. On
January 3, 1963, the Union wrote Respondent giving the names of
34 employees "to be added to the new IUE-AFL-CIO organizing
committee," thereby indicating that the effort to organize Respond-
ent's plant employees would be continued despite the loss of the
election. On January 9, 1963, Townsend wrote a second memo-
randum to supervisors complaining about the poor response to his
December 19 memorandum and stating :
It would be very much appreciated if you would take the time
to evaluate how you feel the people under your supervision
reacted to the campaign. Also we would appreciate your
indicating those people under your supervision who were active
in the anion campaign and also those who had strong sympathies
for the union.
The record contains responses from 25 supervisors to Townsend's
two memorandums. The responses vary considerably in length, range
of discussion, and the number of names of union activists and
sympathizers reported.
During the last week of February 1963, Townsend had employees
in groups of 40 to 50 brought into a conference room during work-
ing hours and asked them to fill out a lengthy "Employee Opinion
Questionnaire" and leave it in a box by the door before leaving the
room. Townsend, who was alone present in the room while the employ-
ees filled out the questionnaire, read to them the text printed on the
first page, which states in relevant part:
This poll is being conducted by the Personnel Manager. NO
OTHER PERSON IN THE COMPANY will see the question-
naire sheets.
The purpose of this poll is to ask you to help the company
in evaluating the recent union organizing campaign. Your
candid answers and/or comments will be valued and helpful.
A written summary of the opinions expressed will be presented
to the Management of the division. A report on the summary,
as 'well as comments on the results, will be given to all employees
of the Santa Ana Division at a later date.
CANNON ELECTRIC COMPANY 1467
You are strongly urged to express your frank opinions about
the questions . Further written comments are invited, but please
make no identifying marks of any kind on the sheets.
DO NOT SIGN YOUR NAME
The questionnaire had 13 questions on 5 pages. The questions
were of the multiple choice type, answerable by checking one of
the alternative responses provided. There was space on the last
page for "voluntary comments." The first three questions related
to the individual employee's sex, length of employment with Re-
spondent, and the name of the department in which the employee
worked. Other questions related to the employee's opinion of cam-
paign tactics, literature, and speeches by Respondent and Union
during the campaign, and reasons why employees voted for or against
the Union. Townsend said nothing to the employees about the
purpose of the questions relating to sex, length of service with Re-
spondent, and department in which the employee worked. Nor did
he give them any assurance that there would be no discriminatory
action taken upon the basis of answers made to the questionnaire.
There is of course no way to determine the truthfulness of the
answers to the questionnaire. However, the record shows that 10
employees did not fill in the answers to the sex, length of employ-
ment, and department questions while answering all other questions.
Townsend testified that the purpose of his memorandums to super-
visors and the questionnaire was to appraise the effectiveness of
Respondent's antiunion campaign. He further testified as to the
purpose of the memorandums that :
. .. the IU E had sent us letters ... -we wanted to know if
the-what the supervisors-who they felt were those people.
According to Townsend, the replies of the supervisors to his memo-
randums were filed in his office when received and have not since been
used. The questionnaires were given to a nonemployee who statis-
tically analyzed the answers. The questionnaires together with the
analysis were returned to Townsend, who had copies of the analysis
distributed among Respondent's management, and retained the ques-
tionnaires in his office.
The complaint alleged that since on or about January 9, 1963,
Respondent through its foremen, supervisors, and personnel manager,
Gerald Townsend, had engaged in surveillance of its employees to
determine their union sympathies and activities in violation of
Section 8 (a) (1) of the Act. To prove this allegation, the General
Counsel relied on the memorandums to supervisors and the question-
naires submitted to employees. The Trial Examiner found that
neither the memorandums nor the questionnaires were unlawful. As
1468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to the memorandums to supervisors, he found that employees did
not know of them and therefore could not have been coerced. As to
the questionnaires, he found them protected by Section 8(c) of
the Act. We disagree with these findings of the Trial Examiner
for the following reasons :
Memorandums to supervisors: As noted, the Trial Examiner found
that employees did not know of the instructions to supervisors
and therefore could not have been coerced. This finding of lack
of knowledge on the part of employees is improbable to us, and
we do not adopt it. The memorandums were sent to at least 25
foremen on 2 different occasions within a 1-month period. Foremen
were not instructed either orally or in writing to keep the contents
of the memorandums secret. It is therefore reasonable to infer
that at least some of these supervisors, not being under pledge of
secrecy, would have divulged to some employees the instructions
which could so vitally affect their interests. We further find that
Respondent's instructions to its supervisors encroached upon pro-
tected activities, "for a disclosure to employees that management
has set in motion a chain of events to ascertain and identify union
adherents can clearly restrain their freedom in expressing their
sentiments regarding organization." 2
Even if we were to accept the Trial Examiner's finding of lack
of employee knowledge of the instructions to supervisors, we would
still find that these instructions were unlawful .3 An employer cannot
discriminate against union adherents without first determining who
they are. The Board is continually confronted with cases involving
unlawful discrimination against employees where the prelude to
the discrimination was the employer's attempt systematically to in-
vestigate the sympathies of his employees .4 The frequency of a
pattern of employer conduct associating discrimination against union
adherents with employer's efforts to learn the names of union activists
supports the conclusion that there is a "danger inherent" 5 in such
conduct : a tendency toward interference with the exercise by em-
2 Daniel Construction Co. v. N.L .R.B., 341 F. 2d 805 ( C.A. 4).
3Kohler Co., 128 NLRB 1062 , 1099 . enfd. in relevant part 300 F . 2d 699 (C.A.D.C.)
H. N. Thayer Company, 99 NLRB 1122 , 1125, enfd . as modified 213 F. 2d 748 (C.A. 1),
cert. denied 348 U.S. 883 ; Virginia Electric and Power Company , 44 NLRB 404, 427,
affirmed 319 U.S. 533.
* At least one supervisor understood Townsend 's query to him in this sense. He replied
to Townsend 's memorandum:
I had very few, if any sympathizers . . . I can pinpoint but one employee,
Jim Doron . . . whom I think has a personal attitude about the whole thing and
since it is hard for him to express himself to small or large groups, he does not
carry too much weight . I will work with every conceivable means that I have to
discourage ham in this aspect and work to a means of final transfer or termination.
[Emphasis supplied.]
5 N.L.R.B. v. Exchange Parts Co ., Inc., 375 U.S . 405, 409.
CANNON ELECTRIC COMPANY 1469
ployees of their organizational rights .18 This tendency is not balanced
to any extent here by a legitimate employer interests, for as we said in
the Thayer 7 case, instructions to supervisors to ascertain the names
of union adherents "constitute an attempt to obtain the kind of in-
formation which can be used by the employer for no other purpose
than to interfere with the employees' right to self-organization." 8
Accordingly, we conclude that the tendency of Respondent's conduct
justifies outlawing it. "If such first steps leading to discriminatory
practices are outlawed, the commission of other unfair labor practices
may be thwarted." 9 Accordingly, we find that the instructions to
supervisors to report the names of union adherents and compliance
with such instructions interfered with employee rights under Sec-
tion 7 and thereby violated Section 8 (a) (1) of the Act.
Questionnaires: According to the Trial Examiner, the question-
naires were an expression of "views, arguments, or opinion" protected
by Section 8 (c) inasmuch as they contained no "threat of reprisal
or force or promise of benefit," and therefore were lawful. We
reject this argument. Interrogation, particularly systematic polling
of employees as to their union sympathies, is not an expression of
"views, argument, or opinion" within the meaning of Section 8 (c).10
The purpose of interrogation is not to express views, but to ascertain
those of the person interrogated.
There remains the question whether the questionnaires were viola-
tive of Section 8(a) (1), although not protected by Section 8(c).
0 "... It is the tendency of an employer 's conduct to interfere with the rights of his
employees protected by Section 8(a) (1), rather than his motives . . ." which determines
the legality of an employer 's conduct under Section 8 ( a)(1). Welch Scientific Com-
pany, Inc. v . N.L.R.B , 340 F . 2d 199, 203 ( C.A. 2).
Or as stated by the court in N.L.R.B. v. Illinois Tool Works, 153 F. 2d 811, 814 (C.A.
7) : "The test is whether the employer engaged in conduct which , it may reasonably be
said , tends to interfere with the free exercise of employee rights under the Act."
7H. N. Thayer Company, supra . A panel of the Board in General Engineering Inc.,
etc., 131 NLRB 648, 649 , refused to follow Thayer where instructions to supervisors
were not executed . In the present case, however , the supervisors did report the names
of union proponents . Accordingly , we adhere to Thayer without also deciding at this
time whether to overrule General Engineering.
8 Townsend 's testimony suggests no legitimate interest in the information sought by
him, compiled by the supervisors , and received by Townsend . Cf. Blue Flash Empress,
Inc., 109 NLRB 591; Burke Golf Equipment Corporation, 127 NLRB 241 . Plainly the
names of union activists and sympathizers were not relevant to an assessment by Respond.
ent of its campaign tactics. We read Townsend 's testimony as also suggesting that he
wanted to determine the accuracy of the Union 's list of its organizers . If such was
Townsend 's purpose , it would have been obvious to him that the appropriate way to
check this would be to submit the names listed to the appropriate supervisors stating
that the Union said the employee was an activist and requesting verification . Instead,
Townsend 's technique led the supervisors to submit information as to all employees. More-
over, if we were convinced that such was Townsend ' s purpose , we could give no weight
to such an interest here, for it is of no legitimate significance to Respondent If the
Union's list was accurate.
8 Wallace Press, Inc., 146 NLRB 1236.
is Standard-Coosa-Thatcher Company, 85 NLRB 1358 , 1363 ; Marten Sprocket & Gear
Co., Inc. v. N.L .R.B., 329 F. 2d 417 (C.A. 5.)
1470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
As recently stated by the Fifth Circuit, "Coercion by interrogation
is one of the `subtler' forms of management 's interference with labor's
protected rights." 11 Attempts have been made to formulate tests
for determining the proper limits of interrogation . 12 None of these
tests can be definitive , for "[I ] t is quite possible that intimidation
will occur even if all, or most , of these factors cut in favor of the
employer." 13 The factors formulated by the Second Circuit in the
Bourne case 14 for determining the legality of interrogation have
recently received the approval of the Fifth Circuit in the Camco
case.15 With a caveat that we consider these factors tentative only
and not of general applicability , we shall apply the Bourne factors
in the present case. The Bourne factors are : ( 1) the background,
particularly as it relates to the employer's hostility , if any ; ( 2) the
nature of the information sought, especially where it appears de-
signed to permit ascertainment of the identity of employees and
their support of the union; ( 3) the identity of the questioner;
(4) the place and method of interrogation ; and (5 ) the truth-
fulness of the reply.
There is no question of Respondent 's hostility to the Union. It
had recently engaged in a vigorous and successful campaign to
defeat the Union in an election . The expressed purpose of the
questionnaire was, as stated in the introduction , to evaluate the
campaign tactics used by both sides. The unstated purpose was,
of course , to enable Respondent to defeat the Union in future
organizational campaigns . The questions are directed to probing the
mind of the employee in detail as to why he voted as he did, why
other employees voted as they did, what he thought of various
propaganda devices, and related questions . Nobody could read
the answers to these questions without learning how the employee
felt about the Union . The interrogation was conducted by Person-
nel Manager Townsend , the top company official in charge of
personnel. He did not himself question the employees . But in the
introduction to the questionnaire , which he read to employees was
n N.L R.B. v. Cameo, Inc., 340 F. 2d 803, 804 (C.A. 5).
"Regardless of the employer' s motive interrogation can have an effect on the orga-
nizational drive. By indicating through his questions that he desires to learn about the
sympathies and activities of individual employees, the employer may convey an impres-
sion, rightly or wrongly , that he is considering reprisals against union supporters. In
this way, he may discourage particular employees from giving overt support to the union
and thus inhibit them from soliciting , attending union meetings , signing membership
cards, or even being seen talking with an organizer ." Bok, The Regulation of Campaign
Tactics in Representation Elections under the National Labor Relation Act, 78 Harv.
L. Rev. 38, 100 (1904).
12 Bourne, an individual d/b/a Bourne Co. v. N.L.R.B., 332 F. 2d 47 , 48 (CA. 2) ; Bok,
supra at 111-112.
zs Bok, supra at 109
34 Bourne Co. v. N L.R B., supra.
15 N.L.R.B. v. Cameo, Inc., supra.
CANNON ELECTRIC COMPANY 1471
the statement : "This poll is being conducted by the Personnel
Manager . NO OTHER PERSON IN THE COMPANY will see
the questionnaire sheets." This clearly implied that Townsend him-
self would read the answers. The employees did not appear volun-
tarily to answer the questionnaire. They were brought into the
conference room from their work stations by their supervisors
during working hours, and requested to fill out the questionnaire
before leaving the room. The atmosphere was thus redolent with
compulsion. Employees were asked not to sign their names to the
questionnaire sheet. And we do not know whether employees made
truthful answers to the questions. But employees were asked to
report their sex, length of employment with Respondent, and de-
partment in which they worked. From the answers to these ques-
tions, it would not be too difficult for Respondent to learn the identity
of each employee filling out the questionnaire ( and thus ascertain
which employees were for or against the Union) or at least the
employees could fear that such identification was possible. We deem
it significant of the coercion inherent in the questionnaire that 10
employees filling out the questionnaire did not answer these three
possible identifying questions, although answering all other questions.
Their failure to answer these questions has the same significance
in measuring coercive impact, we believe, as untruthful answers.
Moreover, the significance of these failures is highlighted if the
employees were aware of the earlier instructions to supervisors to
report the names of prounion employees . Finally, we note that Re-
spondent took no steps to allay employee fears created by the
questionnaire by assuring employees that no reprisals would be taken
because of attitudes expressed in the answers to the questionnaire.
We conclude that the questionnaires, particularly when considered
together with the instructions to supervisors to report the names
of union adherents , had a coercive impact, and therefore violated
Section 8 (a) (1) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain unfair
labor practices affecting commerce, we shall order that it cease
and desist therefrom and take certain affirmative action in order
to effectuate the purposes of the Act.
ADDITIONAL CONCLUSIONS or LAW
Upon the basis of the foregoing findings of fact and the entire
record in this case , we hereby delete the Trial Examiner 's conclusion
of law 3, and adopt new conclusions of law 3 through 6 as follows :
1472 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. By instructing its supervisors to submit lists of union activists
and sympathizers, Respondent has engaged in an unfair labor prac-
tice within the meaning of Section 8(a) (1) of the Act.
4. By having its employees complete the questionnaires involved in
this case under the circumstances set forth, Respondent has engaged
in an unfair labor practice within the meaning of Section 8(a) (1)
of the Act.
5. The aforesaid unfair labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and (7) of
the Act.
6. Respondent has not engaged in unfair labor practices within
the meaning of Section 8(a) (3) of the Act or, except as stated in
paragraphs 3 and 4 above, of Section 8(a) (1) of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby orders that
the Respondent, Cannon Electric Company, Inc., Santa Ana, Cali-
fornia, its officers, agents, successors, and assigns, shall:
1. Cease and desist from :
(a) Directing that lists be compiled of union activists and
sympathizers.
(b) Systematically polling or questioning its employees concerning
matters which permit conclusions to be drawn with respect to their
individual union sympathies or attitudes.
(c) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of the rights guaranteed in
Section 7 of the Act.
2. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
(a) Post at its plant in Santa Ana, California, copies of the
attached notice marked "Appendix." 16 Copies of said notice, to
be furnished by the Regional Director for Region 21, shall, after
being duly signed by authorized representatives of Respondent, be
posted by Respondent immediately upon receipt thereof, and be
maintained by it for a period of 60 consecutive days thereafter, in
conspicuous places, including all places where notices to its employees
are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notice is not altered, defaced, or covered by
any other material.
18 In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "a Decision and Order" the words "a
Decree of the United States Court of Appeals , Enforcing an Order."
CANNON ELECTRIC COMPANY 1473
(b) Notify the Regional Director, in writing, within 10 days from
the date of this Decision, what steps have been taken to comply
herewith.
IT IS HEREBY FURTHER ORDERED that the complaint herein be, and
it hereby is, dismissed insofar as it alleges violations of the Act not
found herein.
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify you that:
WE WILL NOT direct that lists be compiled of union activists
or sympathizers.
WE WILL NOT question or poll our employees concerning
matters which permit conclusions to be drawn with respect to
their individual union sympathies or attitudes.
WE WILL NOT in any like or related manner interfere with,
restrain, or coerce our employees in the exercise of their right
to self-organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their own
choosing, and to engage in other concerted activities for the
purpose of collective bargaining or other mutual aid or protec-
tion and to refrain from any or all such activities, except to
the extent that such right may be affected by an agreement re-
quiring membership in a labor organization as a condition of
employment as authorized in Section 8(a) (3) of the National
Labor Relations Act, as amended.
All our employees are free to become, remain, or refrain from
becoming, members of any labor organization.
CANNON ELECTRIC COMPANY, INC.,
Employer.
Dated---------------- By-------------------------------------
(Representative ) (Title)
This notice must remain posted for 60 consecutive days from the
date of posting, and must not be altered, defaced, or covered by any
other material.
Employees may communicate directly with the Board's Regional
Office, 849 South Broadway, Los Angeles, California, Telephone
No. 749-4711, Extension 1031, if they have any questions concerning
this notice or compliance with its provisions.
783-133-66-vol. 151-94
1474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
This proceeding, with the parties represented by counsel, was heard by Trial
Examiner David F. Doyle, in Los Angeles, California, on October 15 to 24, 1963,
on complaint of the General Counsel and answer of the Respondent The issues
litigated were whether the Respondent had violated Section 8(a)(1) and (3) of the
Act by certain conduct more fully described hereinafter.'
Upon the entire record, and from my observation of the witnesses , I hereby make
the following:
FINDINGS AND CONCLUSIONS
I. THE BUSINESS OF THE COMPANY
The Company concedes , and I find, that it is a California corporation engaged in
the manufacture of electrical connectors and related products with plants in various
States, one of which is located in Santa Ana, California, the plant involved in this
proceeding. During the 12-month period prior to issuance of the complaint the Com-
pany purchased goods and materials valued at a sum in excess of $50,000 from firms
and persons located outside the State of California , and has caused said goods and
materials to be shipped directly to its Santa Ana plant from such places outside the
State of California. During the same period the Company sold and shipped prod-
ucts valued at a sum in excess of $50,000 , and manufactured at its Santa Ana plant,
directly to companies located outside the State of California. Also during the same
period the Company received in excess of $100,000 for work performed which
directly and substantially affected the national defense.
The Company concedes , and I find, that it is an employer engaged in operations
affecting commerce within the meaning of Section 2 ( 2), (6), and ( 7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is not disputed , and I find, that the Union is a labor organization within the
meaning of Section 2 ( 5) of the Act.
1H. THE ALLEGED UNFAIR LABOR PRACTICES
A. The issues
The complaint in substance alleged that the Company ( 1) from on or about Decem-
ber 5, 1962 , engaged in a course of conduct which restrained and coerced its employ-
ees in the exercise of the rights guaranteed by Section 7 of the Act, and (2) on
March 18, 1963, the Company suspended and on March 22, 1963 , discharged
employee Sidney Whittington because he had joined and assisted the Union , thereby
violating Section 8 (a) (1) and (3) of the Act.
In its answer the Company denied that the discharge of Whittington was based
upon his union or concerted activities and alleged affirmatively that Whittington was
discharged for cause , insubordination . As to the alleged interference and coercion of
employees the Company either denied the occurrence of the conduct , or that the
conduct constituted unfair labor practices.
B. Undisputed facts; background-the election
It is undisputed that in the spring of 1962 the Union initiated a campaign to enroll
the employees of the Company into membership. On April 13, 1962, an international
representative of the Union notified the Company by telegram and letter that certain
of the Company's employees were members of the Union's organizing committee.
During ensuing months many of the Company's employees engaged in union activity
'In this Decision , Cannon Electric Company is referred to as the Respondent or the
Company ; International Union of Electrical , Radio and Machine Workers , AFIr-CIO, as
the Union ; the National Labor Relations Board, as the Board; the General Counsel of
the Board and his representative at the hearing , as the General Counsel ; and the Labor-
Management Relations Act, as amended , as the Act. The charge in this proceeding was
filed on April 30, 1963, and the instant complaint was issued by the Regional Director
(Region 21) on July 19, 1963. It should be noted that all dates in this decision are
in the year 1963 unless specified otherwise.
CANNON ELECTRIC COMPANY 1475
such as wearing buttons and passing out literature and leaflets at the entrances of the
Company's plant. Whittington testified that he became a member of the organizing
committee of the Union in August or September 1962.
It is undisputed that on December 19, 1962, an election by secret ballot was con-
ducted by the Board at the Company's Santa Ana plant. It is undisputed that in this
election 376 votes were cast against the Union; 201 votes for the Union; and 30 ballots
were challenged . On December 31, 1962, the acting Regional Director, Region 21,
certified the results of this election . It is also undisputed that no objections to the
conduct of election were filed.
On January 3, 1963, the Union sent a letter to Anderson , general manager of the
Company, advising him that the names of 34 employees were to be added to the
"new IUE-AFL-CIO organizing committee ." Among the names listed was that of
Sidney Whittington, the dischargee. This original list of 34 members of the new
organizing committee was supplemented from time to time by further letters from
the Union to the Company.
C. The discharge of Whittington
It is undisputed that Whittington was employed by the Company on June 2, 1958,
as an inspector , classification B. On June 21 , 1959, he was promoted to inspector,
classification A. Thereafter he received periodic increases of pay at the end of each
of his review periods, until he reached the top of his pay-grade.
It is undisputed that on Monday, March 18, Whittington was suspended for 5 days
pending the investigation of an incident which had occurred the previous Friday,
March 15. On Friday, March 22, Whittington was advised that he was being ter-
minated effective that date . At this point, there occurs a sharp conflict in testimony
between the parties.
It is the contention of Whittington and the General Counsel on his behalf that
the Company singled out Whittington for discharge because of his work on behalf
of the Union . Whittington testified that around December 15, prior to the union
election , Bridich , foreman of the modification shop, and Martin , the swing shift gen-
eral foreman , both spoke to him about his interest in the Union . Bridich expressed
the opinion that a union was not needed in the plant and stated that if a person kept
his nose clean that he could advance with the Company . Martin expressed the opin-
ion that, unlike England, unions in the United States were dominated by racketeers
and communists.
Whittington also testified that, on or about the day on which the Union notified
the Company of the membership of its organizing committee , Gipple, the employ-
ment supervisor in the personnel department , asked Whittington if he had fallen into
disfavor with the Union since his name did not appear at the top of the list. Also
early in January Whittington 's supervisor , Ernest Thompson, gave Whittington a
verbal warning for being away from his work station. Whittington explained to
Thompson at the time , that he had left his place of work to get some supplies which
he needed . Nevertheless , he was given the warning . It is undisputed that shortly after
this warning Whittington was denied the right to work overtime on Saturday, unless
a supervisor was present . Whittington filed a grievance to this warning as was allowed
by the company policy. Thereafter Whittington was put on a period of probation,
during which he was to stay at his work post . On or about January 22 , 1963, in the
course of a conversation between Gipple and Whittington , Gipple told Whittington
that he was still advocating the Union in the plant and that he ought to cut it out.
Whittington also testified that on or about March 5, 1963, Bilida, Whittington's then
supervisor, in the course of discussing Whittington's periodic merit review, told
Whittington that one of the factors against Whittington was his interest in the Union
and advised Whittington to drop the Union. According to Whittington, he also had
trouble with Foreman Bridich in the course of his "patrolling " of Bridich 's depart-
ment. Whittington testified that on several occasions Bridich told him to stay out of
the department and on one occasion pushed him away from employee Connelly.
According to Whittington he was not bothering any employees but was merely patrol-
ling as was his duty. Bridich seemed to object to this. This was the situation on
March 15, 1963, when the event occurred which triggered the discharge of
Whittington.
According to Whittington about 8 o'clock that evening Bridich, foreman of the
modification department , delivered a bag of 26 small parts called "end bells," to
Whittington for inspection. These parts had been machined and threaded by an out-
side contractor and the only work the Company had to perform on them was to drill
two small holes in these parts . The parts were scheduled to be anodized by an outside
1476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contractor the next morning and it was a rush order. Whittington inspected the two
small holes on each part and then he also inspected a larger thread at the end of each
end bell. This threading had been performed by the manufacturer of the part. Whit-
tington claims that this inspection of the large thread was in accordance with his
rights and duties as an inspector. Whittington found that 15 of the parts were defec-
tive as to the small holes, and, in his opinion, that an insufficient allowance had been
made for the anodizing of the large threads. According to Whittington, these threads
could not be accurately measured with the available gauges. At approximately 9 p.m.
Whittington prepared a rejection slip noting both types of defects. Bilida, Whitting-
ton's immediate superior, approved Whittington's rejection of the small holes on the
15 parts, but he said that Whittington should not have inspected the larger threads,
which had been inspected at the time the part had been accepted by the Company.
Bilida took issue with Whittington's rejection of the parts on that basis. At about
11 p.m. Whittington reinspected the same parts and when he found some of them still
defective Foreman Bridich again accepted them for rework. The parts were returned
to Whittington at approximately 12 p.m. for further inspection. Whittington
found the small holes proper and then he began to recheck the large threads because
he was still reluctant to place his stamp of approval on the parts. According to
Whittington at this point Bridich and Bilida approached him and Bilida asked what
was wrong with the parts. Whittington said the small holes were correct but that the
threading did not appear proper. Bilida said that the parts were all right and to pass
them. Whittington said that he could not do that but if Bilida was satisfied with the
parts, that Bilida as chief inspector could put his stamp of approval on them. Accord-
ing to Whittington at that point Bilida told Whittington to cut out the "chicken
s-t" and to approve the parts. At that Whittington replied that he had taken all he
could from Bilida and that he was telling Bilida "to get off my back and kiss my
a-." Whittington then put his approval stamp on the route slip for the parts.
It is undisputed that this incident in due course was reported to Thomas Hickey,
manager of quality control, and that as will be related hereafter Hickey discharged
Whittington.
Thomas Hickey, the manager of quality control and the direct superior of foreman
Bilida and Whittington, testified that his decision to terminate Whittington was not
based upon or motivated by any union or concerted activities of Whittington. Hickey
said that his decision to discharge Whittington was based on Whittington's insubordi-
nate conduct on Friday, March 15, as well as a review of Whittington's past perform-
ance. According to Hickey, Whittington's most prominent failure as an inspector
was his inclination to wander away from his post of duty. Whittington talked con-
tinuously to the employees in Bridich's department and seemed to be concerned with
operations which were beyond his normal duties. This intrusion into Bridich's depart-
ment and Whittington's habit of giving advice to Bridich's men was a cause of friction
between those individuals. According to Hickey Whittington's inclination to wander
around the plant became worse the latter part of 1962 and the early part of 1963.
On January 7, 1963, Whittington received a verbal warning from Foreman Thompson
because he was not making an adequate effort to keep up with the workload and he
was too often absent from his assigned work area, without an acceptable reason. At
this time Whittington was warned to avoid roaming around the plant and talking to
people who had no specific relation to his assigned work. As a result of this warning
from Thompson, Whittington was denied the right to work overtime on Saturdays
unless a supervisor was present.
On or about February 6, 1963, Hickey was at the plant during the swing shift. At
that time he observed Whittington and another employee named Harry Crowe come
out of a warehouse area in a new building, in which they had no business reason to
be. When Hickey questioned the men as to what they were doing there Crowe said
that they had felt a draft and had gone to see where it came from. Hickey informed
Whittington at that point that Hickey was going to postpone making a decision, on
whether or not Whittington would be permitted to work overtime on Saturdays with-
out supervision, for an additional 30 days. By this action Hickey in effect extended
Whittington's probationary period for an additional 30 days.
Alexander Bilida, the immediate supervisor of Whittington on March 15, had pre-
viously been an inspector of the same grade as Whittington and the two men had
been friendly. Bilida as a rank-and-file inspector had been in the Union and had
signed a card for the Union, prior to his promotion to supervisor in the inspection
department. Bilida testified that he knew that Whittington had been given a warning
for leaving his place of duty, and that in effect he was on probation. Bilida also
testified that Bridich, on several occasions, had asked him to keep Whittington from
carrying on unnecessary conversation with the employees under Bridich' s super-
CANNON ELECTRIC COMPANY 1477
vision. Bilida testified that on Thursday, March 14, Whittington asked him if he
would be permitted to work overtime on Saturday. Bilida stated that he didn't know
but that he would inquire from Hickey. On Friday Bilida made the inquiry of Hickey
who told him that Whittington would not be allowed to work, because he had violated
his probationary period, and that Whittington would not be permitted to work over-
time without supervision until at least April 1 when Hickey would again review
Whittington's record.
At the beginning of the swing shift on Friday Bilida informed Whittington of
Hickey's decision. Whittington became very angry and threatened to take the matter
to the National Labor Relations Board.
Foreman Bridich testified that about 5 p.m. on Friday, March 15, he informed
Whittington that certain parts had to be inspected so that if any rework was necessary
it could be done that night, because the parts were a rush order for the next morning.
Whittington told Bridich that he would inspect them as soon as he could. Bridich
pointed out that this was a rush job. In the next couple of hours, according to Bilida,
Whittington came to him with what Bilida termed " nuisance questions"-questions
which were within Whittington's knowledge and were entirely unnecessary. After
three or four of such questions Bilida instructed Whittington to make his inspection
and to note any nonconformance in his findings. About 8 p.m. Bridich asked Whit-
tington how the parts were, and Whittington replied that there were 15 bad ones.
When Bridich asked where the rejects were, Whittington indicated that they were in
a bag mixed with the good ones. Bridich asked Whittington if it wasn't his responsi-
bility to keep the bad parts separate from the good ones. Whittington did not answer.
Around 9 p.m. Whittington presented his notice of nonconformance to Bilida to the
effect that there were two discrepancies or deficiencies in the parts, the first was a
defect in the large thread at one end of the part, this did not conform to the blueprint,
the second defect was that the two small holes which had been threaded by the Com-
pany were undersized. There was considerable discussion between Bilida, Bridich,
and Whittington about this report but finally the parts were reworked and returned
to Whittington. When Bridich returned the parts, Whittington said he was busy,
but he would get to these parts as soon as he could. Bridich again reminded him
that the parts had to be ready by morning. When Bridich observed that Whittington
had not begun his inspection by 11:15 p.m., Bridich became concerned and went to
Whittington and reminded him about the parts. Bridich then watched as Whittington
completed his inspection of the small holes and then observed him measuring the
length and diameter of the large threads with calipers. Bridich asked Whittington
if the small holes were okay and Whittington replied that they were. When Bridich
asked him if the job was ready to go, Whittington said that it was not. Bridich then
asked Whittington if it was necessary for him to check outside dimensions of the
parts with calipers. Whittington then informed Bridich that Bridich was not his
boss, and that he should mind his own business. Bridich then went to the assembly
department and informed Bilida of what had occurred. A few moments later Bilida
and Bridich went to Whittington's desk. When they arrived at Whittington's desk,
Whittington was checking the outside dimensions of the parts. Bilida asked him
what he was doing and Whittington stated he was checking other areas. Bilida told
Whittington that he should know that it was not necessary to recheck items which
had already been approved by other inspectors. Whittington continued to inspect
the parts, so Bilida told him to put the calipers down and to pay attention. Instead
of doing this, Whittington continued to check the parts with the calipers. Whitting-
ton then told Bilida that Bridich was picking on him and that Bilida should tell Bridich
to stop it. Bilida then told Whittington that Bridich had a justified complaint about
Whittington. Whereupon Whittington said to Foreman Bilida, "Stop kissing a-."
Bilida then said, "I am not kissing a-, I am simply doing my job here" and "stop
this chicken s-t business here and get along, continue the job." At this point Whit-
tington said to Bilida, "Oh kiss my a-." Then Whittington placed his inspector's
stamp on the route card indicating acceptance of the parts.
Hickey, manager of the quality control, testified that the events of Friday,
March 15, were in due course reported to him and that after an investigation he made
a decision to suspend Whittington pending further investigation. In the course of this
investigation, when Whittington was questioned by Hickey about the incident, Whit-
tington admitted that he had continued working after Bilida told him to stop, and
that he had used profanity toward Bilida. Hickey said that mild profanity and vul-
garity were common and generally accepted in the plant, but that Whittington's
attitude was insubordinate and his use of profanity under the circumstances was
unacceptable. After a review of Whittington's entire record he recommended that
Whittington be terminated.
1478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Other alleged acts of interrogation
At the hearing the General Counsel sought to prove other alleged acts of interro-
gation or intimidation in addition to those contained in the testimony of Whittington.
Shirley Marolf, also referred to as Shirley Butcher, a former employee of the Com-
pany, testified to two incidents of alleged interrogation. She testified that in Decem-
ber, 1962, she was called into the office of Steve Williams, personnel assistant, on a
personal matter. She said that Williams told her that her husband had telephoned
the plant to inform Williams that Marolf had gone to a union meeting, and that her
absence from work for 3 days thereafter had been due to her intoxicated condition.
Marolf said that Williams then told her that she should give up the Union and that
then he interrogated her as to the names of the employees who attended the union
meetings.
Marolf also testified that in January or February 1963 she had an interview with
Eva Rupe, her supervisor, in which Rupe told her that she had received a bad merit
review because of her union activities. Marolf testified that she quit her employment
with the Company on September 1, 1963, when she was given a choice of quitting
with a recommendation or of being fired.
Williams testified that he had one conversation with Marolf in his office; that
Marolf's husband, with whom she was having trouble, had called the Company to
complain that she had been intoxicated for 3 days. Williams sent for Marolf and
told her that the Company should not be bothered by her personal affairs. Williams
said that this was the only conversation which he had with Marolf and that the Union
was not mentioned. Forewoman Rupe denied that she mentioned unions in any
discussions which she had with Marolf. She specifically denied that she informed
Marolf that her merit rating was low because of her union activities or that she had
advised Marolf to give up her union affiliation. Marolf's work record indicates that
her marital difficulties were a distracting factor in her work performance.
Harry Crowe, also an ex-employee of the Company, previously mentioned , testified
that during February he had a conversation with Hickey, manager of quality con-
trol, in which Hickey advised him that because of his union activities, Crowe would
not be considered for a supervisory job. On cross-examination, Crowe admitted
that in this conversation Hickey also asked him about the incident in which Hickey
observed Crowe and Whittington returning from the warehouse to their proper work
areas.
In the course of his testimony, Hickey stated that shortly after February 6 Hickey
had a discussion with Crowe in Hickey's office in which he advised Crowe that leav-
ing his work area without authority did not enhance his chances of becoming a super-
visor. Hickey denied that he told Crowe that the fact that Crowe had been actively
engaged in the union campaign hurt his chances of being promoted to a supervisory
position.
Employee Dinkins testified that Williams, previously mentioned , told him that the
Company was handing out good recommendations for employees who did not like
it at the Company. Dinkins also testified that supervisor Nebergall asked him if
Alice Morales was still active in the Union. Williams, in his turn, denied the
substance of Dinkins' testimony.
John Connelly, an ex-employee of the Company, testified that Foreman Bridich
discussed the Union with him on three occasions. In one conversation the foreman
and Connelly discussed the pros and cons of the Union and the foreman asked Con-
nelly if he was going to vote for the Union. On a second occasion Bridich removed
a union button from Connelly's jacket and put it in Connelly's pocket saying "you
don't want to wear that." The third incident occurred on the day of the election.
As Connelly left the department for the polling place Bridich called out, " Remember
to vote no."
Bndich testified that he could recall only one occasion on which he discussed the
Union with Connelly. This occurred in early December 1962, and the subject was
initiated by Connelly who asked Bridich about a handbill which the Union had dis-
tributed. Bndich denied that he inquired as to how Connelly was going to vote in
the election, or told him how to vote,
In the course of his cross-examination, Connelly stated that he had been employed
by the Company from July 30, 1962, until approximately March 1, 1963. In his
testimony he displayed his animosity toward Foreman Bridich. He said that on many
occasions he had sought the advice of Whittington on reading blueprints or on how
to perform certain work in his department, for on these occasions he had wandered
through the plant looking for Bridich to no avail. When he could not find Bridich
he had to look to Whittington for guidance. After some questioning , Connelly admit-
CANNON ELECTRIC COMPANY 1479
ted that Bridich had told him on one occasion that he was not to seek advice from
Whittington, that he was to seek advice from him (Bridich), who was his supervisor.
On this occasion, Bridich, who had been absent a few days due to illness, said that he
understood Whittington was trying to take over his job while Bridich was away.
Kenneth B. Cochran, another ex-employee of the Company, who according to
his testimony was fired on July 3, 1963, testified that about April 15 he was sum-
moned with Foreman Bilida to the office of Townsend, personnel manager. Accord-
ing to Cochran, he first talked to Townsend about a written warning which he had
received from Mr. Wells, at that time the manager of quality control. Then Town-
send asked Cochran if he knew that Whittington's hearing was coming up in a few
days and Townsend asked Cochran to testify on behalf of the Company. In this
conversation Townsend said that Whittington had "made quite a nuisance of himself
with his union promotion." When Cochran said that he didn't know that it had been
that bad, Townsend replied that "It was bad enough to get him fired." Townsend
then asked if Cochran would take the witness stand on behalf of the Company and
Cochran said that he would, but that he would testify that Whittington should be
put back on his job, that the whole thing had been blown up out of all proportion.
At that, Townsend closed the interview. On the way out of Townsend's office, Bilida
said to Cochran that Cochran had better watch his step if he wanted to work there.
Cochran also recalled that on the day after Whittington was fired Bilida came to
his station and told him that Whittington had finally been fired; that Bilida had told
Whittington several times to lay off the union stuff because they would fire him; but
Whittington wouldn't stop.
It appeared that Cochran was confused as to his dates and as to the hearing.
Apparently his alleged conversation with Townsend took place before a grievance
hearing on Whittington's case and not before the instant hearing. However, it devel-
oped that Cochran had given a statement to the General Counsel approximately 1
week before the instant hearing. Upon questioning by the Trial Examiner the
following colloquy occurred:
Q. [By TRIAL EXAMINER] Now, Mr. Cochran, you were discharged by the
company under the circumstances that you have told us?
A. Yes.
Q. Are you pretty angry or pretty put out with the company for your
treatment?
A. Not especially.
Q. How did it come about? What was the process by which you got Mr.
Canafax or gave Mr. Canafax this statement?
A. How we came together?
Q. Yes, how you came together-This statement was given where?
A. In Santa Ana, Orange County.
Q. At your home?
A. No, at Mr. Whittington's home.
Q. Mr. Whittington's home?
A. Yes.
Q. Mr. Canafax came out there and met you?
A. Yes.
Q. You-how did you come to be there with Mr. Whittington?
A. Well, I visited him occasionally and he said-he called me up and said-
"Are you coming over tonight?"
It was a certain evening there. I said, "I-" He said Mr. Canafax was going
to be there and would I like to talk to him. He said he was his lawyer.
Q. Now, when did you tell Mr. Whittington the facts of this conversation
with Mr. Townsend that you have just detailed to us?
A. Oh, I think a couple of weeks previous to this paper. We discussed it
informally then.
Q. How did it come about that you gave him this information?
A. Mr. Whittington asked me if there was anything that I could think of that
I could testify to what happened that would put some light on his being fired.
I thought back and thought back and finally put things together and did come
up with this.
Q. You then remembered these things that are in this statement?
A. Yes. [Emphasis supplied.]
In the course of his cross-examination Foreman Bilida testified that at the time
he discussed his merit review with Whittington, he pointed out to the latter, that the
Union had lost the election and that Whittington would be well-advised to concen-
1480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
trate on his work . Bilida also pointed out that Whittington was on probation because
of his habit of leaving his post of duty without permission , and that Whittington
should watch his step in that regard. I do not deem any of the Whittington -Bilida
conversations to be violative of the Act, because of the context in which they occurred.
Bilida and Whittington had been inspectors together , of the same grade, as rank-and-
file employees . They had been good friends and since both were prounion , they had
discussed the Union and the union campaign up to, and through the time of the elec-
tion . Bilida became a supervisor some weeks after the election , and this was the
occasion of Whittington 's first merit review after Bilida's promotion . Bilida's testi-
mony that this discussion was borne of his friendly interest in Whittington , is con-
sistent with the circumstances . I can perceive no coercion or restraint imposed on
Whittington by virtue of this friendly chat with Bilida.
E. The alleged surveillance and interrogation by means of
questionnaire and memorandum
In the course of the election of December 19, 1962, both sides campaigned vigor-
ously. The Union passed out leaflets at the gate and the union organizers made
speeches to the employees. The Company also issued a series of leaflets to employ-
ees, arranged for speeches to be made, and used placards. It is undisputed that after
the election Townsend, personnel manager of the Company, attempted to assess the
value of certain tactics employed by the Company, and the Union, which contributed
to the ultimate result of the election, which was favorable to the Company. It is
undisputed that on January 9, 1963, he issued a memo to all supervisors which
requested that they take the time to evaluate and estimate how the employees reacted
to the campaign of the Company and the campaign of the Union. This memo also
asked that the supervisors indicate "those people under your supervision who were
active in the Union campaign and also those who had strong sympathies for the
Union." It is undisputed that approximately 25 supervisors of various departments
submitted replies; that 5 supervisors reported on the union sympathies of certain
individuals and groups within their departments, and that among those individuals
identified on these lists were Whittington, Crowe, Dinkins, and Marolf.
It should be noted that this questionnaire which asked for an evaluation of certain
factors of the campaign of the Union and the Company was entirely an interman-
agement affair. These questionnaires were not directed to employees and the ques-
tions and answers were not made known to the employees. There is no evidence in
this record that any employee knew of their existence prior to the hearing. It should
also be noted that the list of employees forming the new organizing committee of
the Union named many more employees as union adherents.
During the last week of February 1963, Townsend also sought to assess the value
of union and company tactics during the election campaign by means of distributing
a questionnaire to all employees who had been eligible to vote in the election. Town-
send testified that the employees who were eligible to vote in the election were asked
to attend a series of meetings in groups of approximately 50 in a conference room
of the Company. Townsend explained to each group that the purpose of the ques-
tionnaire was to assemble their opinions anonymously. Townsend said that he
emphasized that the employees were not to sign their names or to do anything in
answering the questions which might disclose their identity. As the employees left
the room they were asked to place the questionnaires in a box near the exit. There
were no members of management standing near the box as the employees made their
exit. The questionnaires so collected were delivered to a retired industrial engineer
who made a compilation which management hoped would afford it an understanding
as to the effectiveness of the rival campaign tactics. The compilation of answers
was made known to only those persons in management who were referred to as the
"Management Group." The employees were not acquainted with the compilation
or the results of the assembled questionnaires.
The questionnaires which were quite lengthy asked the employees to answer ques-
tions on the following subjects: (1) sex; (2) length of employment by the Company;
(3) department.
The questionnaires then sought to elicit information as to what the employees
thought of (1) the Company's campaign letters and bulletins; (2) the reason the
employees voted against the Union; (3) the main reason some employees voted for
the Union; (4) the causes of employee dissatisfaction with working conditions and
the Company; (5) the factor that influenced the employee himself, etc.
CANNON ELECTRIC COMPANY 1481
Concluding Findings
The General Counsel contends that Whittington was persecuted by company offi-
cials for some months and then discharged on March 22 , 1963, because of his activi-
ties in behalf of the Union. In my judgment, this contention has no support in the
credible evidence.
Whittington's work record which is in evidence discloses that his persistent habits
of leaving his work station and talking excessively to the employees of Bridich's
department had been called to his attention on several occasions . These deficiences,
which he would not discontinue , finally precipitated the showdown that resulted in
his discharge . It should be noted that it was no conduct of the Company that initiated
this series of events . Through them all, Whittington was the aggressive force who
kept events moving toward his ultimate discharge . Literally, he forced his own
discharge.
It is undisputed that Whittington was placed on probation by Hickey because he
had absented himself from his post of duty without permission . A few nights later
Hickey encountered Whittington and Crowe away from their places of duty and
again Whittington had no proper excuse for his absence . Since Whittington was per-
sisting in his absence from duty , despite being on probation for the same offense,
Hickey decided to continue Whittington 's probation for an additional month. When
Bilida informed Whittington that his probationary period had been extended and
that he could not work overtime on Saturdays without a supervisor being present,
Whittington became very angry, and then turned insolent, impudent , and uncoopera-
tive toward Foreman Bilida and Bridich . It is apparent that at this point Whittington
decided to give his supervisors a "hard time" by an improper use of his authority as
an inspector. When Bridich and Bilida spoke to him about inspecting the "end
bells" and said they were a rush job, he was insolent in his attitude , saying that he
would inspect them in due course . He gave these men no assurance that he would
give this rush job its deserved priority . When he found defective parts, he mixed
them with the perfect parts, and returned them all to Bridich . These foremen who
had the responsibility for finishing the parts by morning were worried by this conduct
of Whittington . Apparently , however, he continued to give vent to his childish
pique. Finally , when Bilida told him to finish his inspection and to not waste time
inspecting features already inspected , Whittington told Bilida to "Kiss his a-."
When this incident came to Hickey 's attention he reviewed Whittington 's record and
discharged him.
Thomas Hickey, the manager of the quality control department, was an extremely
convincing witness. He is a man in middle years , and he appeared to be of a serious
and responsible nature. He testified with every indicia of candor and frankness.
He stated that Whittington 's union activities played no part in his decision to dis-
charge Whittington . I credit Hickey's entire testimony . Bilida and Bridich also
testified in a forthright and fair manner. Bilida and Whittington had been inspectors
of equal grade for some months prior to Bilida's promotion to supervisory status.
He had discussed the pros and cons of the Union with Whittington , and had signed
a card for the Union . He was promoted to supervisory status some 2 months after
the election . He appeared to be favorably disposed toward Whittington until Whit-
tington became intolerably insubordinate on the night of March 15 . While the testi-
mony would indicate that Bridich had some resentment toward Whittington, it is
evident that Whittington's endless conversations with the employees of Bridich's
department was the cause of this feeling . Bridich disliked Whittington acting as if
he were the supervisor of his ( Bridich 's) men . However, despite his feeling toward
Whittington , in my judgment , Bridich testified with fairness toward Whittington.
Upon the credited testimony of Hickey , Bilida, and Bridich, I find that Whittington
was discharged for insubordination and not because of his union or concerted
activities.
I also find that the General Counsel has failed to establish by a preponderance of
the credible evidence that the Company has committed any other unfair labor prac-
tice. In the course of this proceeding the General Counsel presented a large number
of witnesses ; the quantity of their testimony is adequate , but their quality leaves much
to be desired. With one possible exception 2 they are all ex-employees of the Com-
pany, and their separation from its service seems to have left them with strong resent-
ment against the Company . Each of these ex-employees attributed coercive state-
ments to those supervisors and officials , who were the objects of their resentment.
2 Employee Denkins.
1482 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Without exception these witnesses exhibited an undisguised vindictiveness toward
the Company. In my judgment, no prudent man could accept the testimony of these
witnesses, and upon it base any decision of importance. The testimony of these
ex-employees set forth above, demonstrates the propriety of this finding. In this
category of disgruntled ex-employees, whose testimony I deem unreliable are Marolf,
Crowe,. Connelly, and Cochran. I reject the entire testimony of these individuals.
Furthermore, this phase of the case presented by the General Counsel appears to be
fashioned from bits and pieces of half-remembered or slanted testimony from par-
tisan witnesses, who were smarting from the disappointment of an election which
had been lost.
On the other hand the supervisors and officials of the Company who were presented
as witnesses testified in a matter-of-fact, convincing manner. I credit the testimony
of Williams, Rupe, and Townsend.
It is also found that the Company did not commit unfair labor practices by the
issuance of the questionnaire to its supervisors. Surveillance and interrogation have
been deemed restraint, coercion, and interference on the practical theory that if
employees know of these things they are automatically put in fear of reprisal by the
employer. Here, there could be no fear of such conduct for the employees did not
know of it. As I view this questionnaire, it was a wholly management affair, equiva-
lent to a verbal discussion concerning the election, after the balloting was concluded.
I know of no case which holds such conduct as violative of the Act.
The second questionnaire answered by the employees presents a closer question.
Here, the employees were made aware of the employer's interest in the election, but
is that coercive? The General Counsel takes the position that the questionnaire
probs an area beyond "the legitimate concern" of the Company, and is therefore an
unfair labor practice. I do not agree that the Act proscribes such conduct. It is
conceded by all that under Section 8(c) of the Act employers have the right to express
any views, arguments, or opinion" if "such expression contains no threat of reprisal
or force or promise of benefit." Under the right conferred by this section, employers
by the use of "free speech" engage in campaigns to bring their views on unionization
to their employees. In my judgment this section also permits an employer to try
to estimate the effectiveness of his "views, arguments or opinion," as long as his con-
duct does not contain a "threat of reprisal or force or promise of benefit." No such
threat or promise has been proven here.
Therefore, for the reasons stated above, I shall recommend that the complaint be
dismissed in its entirety.
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, and has been at all times material to the issues in this pro-
ceeding, an employer within the meaning of Section 2(2) of the Act, engaged in com-
merce within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning of Section 2(5) of the
Act.
3. The evidence fails to establish that Respondent discharged or refused to reinstate
Sidney E. Whittington because he engaged in union or concerted activities thereby
violating Section 8(a) (3) and (1) of the Act, or engaged in the other unfair labor
practices alleged in the complaint.
RECOMMENDED ORDER
The complaint should be, and hereby is, dismissed.
Laystrom Manufacturing Co. and Tool and Die Makers Lodge
No. 113, International Association of Machinists , AFL-CIO.
Case No. 13-CA-6305. April 8, 1965
DECISION AND ORDER
On August 26, 1964, Trial Examiner C. W. Whittemore issued his
Decision in the above-entitled proceeding, finding that Respondent
151 NLRB No. 144.