CBS, Inc.

National Labor Relations Board - Board Decisions

Apr 7, 1976

223 N.L.R.B. 709 (N.L.R.B. 1976)

CBS RECORDS DIVISION
CBS Records Division of CBS, Inc . and International
Union of Electrical , Radio and Machine Workers,
AFL,CIO. Cases 4-CA-6594 and 4-RC-10377
April 7, 1976
DECISION, ORDER, AND CERTIFICATION
OF RESULTS OF ELECTION
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND JENKINS
On October 1, 1975, Administrative Law Judge
Herbert M. Silberman issued the attached Decision
in this proceeding. Thereafter, the General Counsel
filed exceptions and a brief, and the Respondent
filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.
We disagree with the Administrative Law Judge's
finding that the conversations of Pressroom Foreman
Frank E. Lynch with employees Delores Keenan and
Cheryl Peters in August 1973, in which he asked
them in the privacy of his office why they wanted a
union , did not constitute unlawful interrogation.
Both employees work under Lynch in the pressroom
and were known to him as outspoken proponents of
the Union. In our opinion the seeking out of the two
employees and interrogating them as to the basis for
their union adherence in the circumstances here in-
truded into their Section 7 rights and would reason-
ably tend to have a coercive effect. We, therefore,
find that Lynch's conduct violated Section 8(a)(1) of
the Act.
Similarly, we disagree with the Administrative Law
Judge's refusal to find that the Respondent created
an impression of surveillance in violation of Section
8(a)(1) around the end of May 1973. Admittedly, the
Respondent focused its closed circuit television on
and scanned the building called Wilson's Auction
Building , occupied by the Union as its headquarters
across from Respondent's parking lot. Employees
' The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
sinless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
709
Masso and Esslinger testified that they observed the
cameras focused on Wilson's Auction Building, and
were so concerned that they reported the incident to
others. This testimony is uncontradicted. After a for-
mal complaint by Wilson, the owner of the building,
the cameras were thereafter no longer focused on the
Union's headquarters.
While the record supports the finding that the Re-
spondent did not engage in actual surveillance, such
finding is irrelevant to the allegation that the Re-
spondent engaged in "the impression of surveil-
lance," and the tendency of the conduct to affect the
freedom to support or not to support the Union. The
above conduct was observed by two employees and
was reported to others. The owner of the building
considered it of sufficiently significant importance to
register a formal complaint. The conduct can hardly
be classified as trivial, and it was deliberate. It is not
material that opinion may have differed about the
ability to identify an individual from the camera pic-
ture; if the possibility of identification can reason-
ably be thought to be present, the violation occurs.
Although the Respondent promptly issued instruc-
tions that such conduct be discontinued, the damage
had been done and the effect on employees was in-
delible.
Accordingly, we overrule the Administrative Law
Judge's dismissal of the 8(a)(1) allegation regarding
the Respondent's activity involving the creating of an
impression of surveillance.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge as modified
below and hereby orders that the Respondent, CBS
Records Division of CBS, Inc., Pitman, New Jersey,
its officers, agents, successors, and assigns, shall take
the action set forth in the said recommended Order
as so modified:
1. Renumber paragraph 1(b) and 1(d) and add the
following paragraphs:
"(b) Interrogating employees concerning their de-
sires for union representation in a manner prohibited
by the Act.
"(c) Creating the impression that it is engaging in
surveillance of employees concerning the exercise of
rights guaranteed by the Act."
2 See The Sardis Luggage Company, 170 NLRB 1649, 1651 (1968). We do
not consider , however, that the interrogations involved here of only 2 of the
1,400 employees in the appropriate unit and the creation of the impression
of surveillance which took place over 3 months before the date of the elec-
tion are sufficient to warrant the setting aside of the election held on Sep-
tember 7, 1973.
223 NLRB No. 95
710 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Substitute the attached notice for that of the
Administrative Law Judge.
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for the International
Union of Electrical Radio and Machine Workers,
AFL-CIO, and that said labor organization is not
the exclusive representative of all the employees, in
the appropriate unit herein involved, within the
meaning of Section 9(a) of the National Labor Rela-
tions Act, as amended.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT give our employees time off
with pay or a party to celebrate any union's loss
of a representation election.
WE WILL NOT make any promises of benefit to
any of our employees to discourage membership
in any labor organization.
WE WILL NOT interrogate employees concern-
ing their desires for union representation in a
manner prohibited by the Act.
WE WILL NOT create the impression that we are
engaging in surveillance of employees concern-
ing the exercise of rights guaranteed by the Act.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them by
Section 7 of the Act.
CBS RECORDS DIVISION OF CBS, INC.
DECISION AND REPORT AND
RECOMMENDATIONS AS TO OBJECTIONS TO AN
ELECTION
STATEMENT OF THE CASE
HERBERT M. SILBERMAN , Administrative Law Judge:
These consolidated proceedings were heard in Philadel-
phia, Pennsylvania, on July 7, 8, 9, 28, and 29, 1975. Fol-
lowing the close of the hearing, briefs were filed with the
Administrative Law Judge on behalf of General Counsel
and Respondent.
Upon the entire record in the cases, and from my obser-
vation of the witnesses and their demeanor, I make the
following:
1 The name has been amended to reflect the exact name of Respondent-
Employer.
FINDINGS OF FACT
1. THE PLEADINGS
Upon a charge filed in Case 4-CA-6594 by International
Union of Electrical, Radio and Machine Workers, AFL-
CIO, herein called the Union, on October 5, 1973, a com-
plaint, dated December 21, 1973, was issued which was
amended on May 5, 1975, and was further amended at the
hearing. In substance, the complaint as amended alleges
that during the period between May 16 and September 7,
1973, in violation of Section 8(a)(1), Respondent, CBS
Records Division of CBS Inc.,' herein called the Company
or the Employer, engaged in conduct which interfered
with, restrained, and coerced employees in the exercise of
the rights guaranteed by Section 7 of the National Labor
Relations Act, as amended. The complaint further alleges
that at all times since July 30, 1973, the Union has been the
designated representative of a described appropriate col-
lective-bargaining unit of the Company's employees, that
since May 29, 1973, the Company has refused to recognize
the Union as such representative, although the Union has
made requests for recognition, and that the unfair labor
practices set forth in the complaint are so serious and so
substantial in character and effect as to warrant the entry
of a remedial order requiring the Company to recognize
and to bargain with the Union for the employees in the
described unit. Respondent duly filed answers to the com-
plaint and to the amended complaint generally denying
that it has engaged in the alleged unfair labor practices.
With respect to the representation proceeding, Case 4-
RC-10377: Pursuant to a Decision and Direction of Elec-
tion issued by the Regional Director for Region 4 on Au-
gust 1, 1973, an election was held on September 7, 1973.
The tally of ballots shows that of approximately 1,225 vot-
ers, 528 ballots were cast for Petitioner, 567 ballots were
cast against Petitioner, and 26 ballots were challenged. On
September 14, 1973, the Petitioner filed timely objections
to the election. On December 19, 1973, the Regional Direc-
tor issued his Supplemental Decision on Objections to
Election. The Regional Director in his Supplemental Deci-
sion dismissed four of the nine numbered objections. The
Decision further states that the Union on October 5, 1973,
filed an unfair labor practice charge in Case 4-CA-6594
and that a complaint will issue in that case which will al-
lege as violations of Section 8(a)(1) "some of the matters
involved in Objections 1, 3, 5, 6 and 7." With the issuance
of the initial complaint in Case 4-CA-6594 the Regional
Director issued an order consolidating Case 4-RC-10377
with Case 4-CA-6594 for purposes of hearing, ruling, and
decision by an Administrative Law Judge and directing
that thereafter Case 4-RC-10377 be transferred to and
continued before the Board in Washington, D.C.
II. THE BUSINESS OF THE EMPLOYER
The Company, a New York corporation, is engaged in
the manufacture and distribution of phonograph records,'at
its Pitman and Mantua Township, New Jersey, plant,
CBS RECORDS DIVISION
which is the only facility of the Company involved in these
proceedings. During the calendar year 1974, the Company
in the course and conduct of its business sold goods valued
in excess of $50 ,000 from its Pitman facility to customers
located outside the State of New Jersey. Respondent ad-
mits , and I find , that it is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
III. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IV. THE ALLEGED UNFAIR LABOR PRACTICES
The Company's Pitman facility, where it manufactures
and ships phonograph records, consists of two buildings. In
the smaller building, which is referred to as Columbia
House and in which records are stored and shipped for an
operation known as The Columbia Record Club, there are
employed approximately 100 persons. In the larger build-
ing, at the time of the events with which this proceeding is
concerned, there were employed approximately 1,300 per-
sons.
A strike, which lasted approximately 5 days from about
May 10 to May 15,2 followed the onset of the Union's
organizational drive. The striking employees were permit-
ted to return to their jobs. There followed an agressive
campaign by the Union which continued until the election
on September 7. Opposing the Union, and equally agres-
sive, were employees who called themselves "snoopies" af-
ter the character from the Peanuts comic cartoon strip. The
supporters of each group wore identifying buttons both in
and out of the plant. Campaign literature was distributed
by each group outside the plant and in the plant cafeteria.
The only record evidence of organized campaigning by the
Company in opposition to the Union was a series of
speeches given to the employees by Plant Manager Kroll
on September 5 and 6 and the mailing of two letters to the
employees on August 23 and 27 over the signature of Plant
Manager Kroll.
The complaint in 16 lettered subdivisions of paragraph 5
sets forth conduct which is alleged to constitute violations
of Section 8(a)(1). In addition, paragraph 6 alleges further
violations of Section 8(a)(1) by reason of the speeches giv-
en by Plant Manager Kroll.
1. Frank E. Lynch
Subparagraphs 5(a) through (d) are concerned with con-
duct of Pressroom Foreman Frank E. Lynch, who was ter-
minated in the spring of 1974 and who did not appear as a
witness at the hearing . The allegations are:
(a) On or about August 23, 1973, Frank E. Lynch
informed an employee that she was not permitted to
solicit for, or talk about, the Union on company time
while permitting anti-union employees to both solicit
2 Unless otherwise indicated all dates refer to the year 1973.
711
support and talk about the Union.
(b) On or about August 23, 1973, Frank E. Lynch
interrogated employees about their union sympathies
and activities.
(c) On or about August 30, 1973, Frank E. Lynch
permitted anti-union employees to freely discuss the
Union while prohibiting pro-Union employees from
so talking.
(d) On or about August 30, 1973, Frank E. Lynch
permitted anti-Union employees to miss approximate-
ly 3 hours of normal work time to attend anti-Union
meetings while denying to pro-Union employees the
right to miss work time.
The witnesses who testified for General Counsel regard-
ing these allegations are Delores Keenan and Cheryl Pe-
ters. Both employees work in the pressroom and were
known to Lynch as outspoken promoters of the Union.
Delores Keenan testified that about August 23 Foreman
Lynch called her into his office. Lynch informed her that
the quality of her work was good but she was too slow and
the reason she was slow was that she talked too much on
the job. Keenan disagreed with this judgment. Lynch re-
minded her of an occasion when she spent 10 minutes con-
versing with Peters. Keenan explained that Cheryl Peters
was training her in her job and their discussion related to a
work problem. Then, according to Keenan, Lynch said,
"'You are aware of the no-solicitation bulletin that we
have on the board out there?' And I said, `Yes, I am.' I
said, `What did that have to do with it?' And he said, `Well,
you're not supposed to be talking on the job.' . . . And he
said, `I don't want you and Cheryl [Peters] together. I don't
want you talking together.' And I said, `Well, that's stupid.
She is my trainer and you can't tell me that I can't talk to
her, because that's . . . discrimination.' And he said, `Yes,
I can.' He said, `I'm telling you, now, that I don't want you
talking to Cheryl.' And I said, `Why?' And he said, 'Be-
cause of the no-solicitation bulletin.' I said, `Why would I
be soliciting Cheryl anyway, because she's on the same side
as I am.' And he said, `I just don't want you with Cheryl.' "
The conversation continued, according to Keenan, by
Lynch asking, "Why do you want a union?" Keenan re-
plied that she wanted a union because she thought it was
the only way to improve working conditions. The two then
engaged in a debate about whether the Union would be of
benefit to the employees. The conversation concluded with
Lynch again warning Keenan to stay away from Cheryl
Peters.
Keenan further testified that about a week later as she
and Cheryl Peters were returning to the pressroom from
their break Lynch came to them and said, "I told you I
don't want you two together and I'm going to break it up,
no matter what it takes." Peters corroborated Keenan as to
this incident?
Cheryl Peters testified that in the last week of August she
was called into Lynch's office and Lynch remarked to her
that her work was getting sloppy and asked what was the
problem. Peters answered that there was too much tension
a Peters testified that on another occasion , about 2 weeks earlier, while
she and Keenan were standing in the back of the pressroom, Lynch said to
them, "I don't want to see you two talking together."
712 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in the plant which was reflected by the fact that employees
were not talking to one another. Lynch then asked her why
she wanted the Union. Peters replied that she thought boss-
es were not supposed to ask such questions. Lynch re-
sponded that he could ask the question but that Peters did
not have to answer . Peters said she was not going to an-
swer. The conversation concluded with Lynch informing
Peters that he wanted her to do her job and not to hang
around talking to people.
Subparagraphs 5(a) and (c) allege that Lynch treated the
union supporters and antiunion supporters differently in
regard to soliciting on company time and talking either for
or against the Union on company time. While the testimo-
ny of Keenan and Peters establishes that they were warned
by Lynch neither to solicit nor to talk about the Union on
company time there is no competent evidence in the record
that Lynch treated the snoopies, or the antiunion employ-
ees, any differently in this regard. Accordingly, I shall rec-
ommend that subparagraphs 5(a) and (c) be dismissed.
Subparagraph 5(d) alleges disparate treatment in regard
to time off to attend union or antiunion meetings . Keenan
testified that sometime in August six or eight snoopies were
absent from their work from about 7 p.m. to about 10 p.m.
Peters testified that in September she observed four snoop-
ies leave work about 6 p.m. and that they remained away
until about 9 p.m. This testimony does not support the
allegation of subparagraph 5(d). First, there is no evidence
that Lynch denied any prounion employees permission to
leave the plant to attend union meetings . Second, the evi-
dence does not support the allegation that the snoopies
who were away from work during the times testified to by
Keenan and Peters were given permission by Lynch to at-
tend an antiunion meeting . Accordingly , I shall recom-
mend that subparagraph 5(d) be dismissed.
There remains the question of whether the private con-
versations between Keenan and Lynch and Peters and
Lynch constituted unlawful interrogation as alleged in sub-
paragraph 5(b). Interrogation per se is not a violation of the
Act. "Mere words of interrogation or perfunctory remarks
not threatening or intimidating in themselves . . . cannot,
standing naked and alone , support a finding of a violation
of Section 8(a)(1)".4 Thus, interrogation of an employee by
a supervisor is permissible "unless the questioning is itself
threatening or unless `the circumstances of interrogation
would induce fear of reprisal ' among employees." 5
Lynch's inquiries of two openly active union partisans as to
why they wished the Union to represent them, in the cir-
cumstances present here , were not coercive .6 Accordingly,
I shall also recommend that subparagraph 5(b) be dis-
missed.
2. Paul Gasparovic
Subparagraph 5(e) of the complaint, amended at the
4 Max Sax, d/b/a Container Manufacturing Company v. N. L. R. B., 171
F.2d 769, 773 (C.A. 7, 1948).
5 Boston Cab Company, Inc., & McCann's Taxi, Inc., 212 NLRB 560
(1974).
6 Stumpf Motor Company, Inc., 208 NLRB 431 (1974); B. F. Goodrich
Footwear Company, 201 NLRB 353 (1973). See also Flint Provision Co., 219
NLRB 523 (1975).
hearing, alleges: "On or about August, 1973, Paul Gaspa-
rovic, Jr., interrogated employees about their union sympa-
thies and during the same conversation threatened that Re-
spondent would not bargain with the Union if the
employees selected the Union as their collective bargaining
representative."
Two employees testified for General Counsel in support
of this allegation, Linda Dilks and Edwin Joseph Kircher.
Dilks testified that Finishing Department Supervisor Gas-
parovic called her to his office towards the end of July or
early August to discuss certain personnel matters. During
the conversation the Union was discussed. According to
Dilks, "And he asked me questions like why I was support-
ing the Union, and I told him. And he told me if the Union
got in, that the Company would never sit down at a bar-
gaining table with them." Gasparovic's version of the dis-
cussion differs from Dilks'. Gasparovic testified that Dilks,
who was wearing a union button when she came in to see
him, began their conversation by complaining that she was
being harassed by her group leader. After discussing the
problem for a while Gasparovic asked her "what she felt
about the company as such as far as what she felt was bad
about the company or what was good about it at the pres-
ent time." She responded that the Company was not fair
with respect to promotions, and with the Union the em-
ployees would have more say about the subject and wage
increases would be higher. In response to this, according to
Gasparovic, "I brought up the point about the bargaining
issue, which was brought up to the fact that I told her in
my opinion that the people themselves would not bargain
with the company, that an appointed representative of the
union would do the bargaining for the people with the
company at that point." There was no further discussion
between the two and Dilks returned to her work.
Kircher testified that prior to the election Gasparovic
called him into his office. According to Kircher, Gasparo-
vic asked how he felt about the situation and Kircher, who
was wearing a union button, replied that he was for it.
Gasparovic then asked whether Kircher thought the Union
would win and Kircher replied, "I hope so."
In connection with the foregoing, the first question to
resolve is the discrepancy between the testimony of Dilks
and Gasparovic. Both Dilks and Gasparovic testified about
a conversation which had taken place 2 years earlier. The
legal significance of the conversation turns upon phrases
which may not have had much significance to the parties at
the time of their conversation. There is no reason that ap-
pears from the record why Dilks would have attached im-
portance to the conversation at the time it occurred or that
she was attentive to the specific words used by Gasparovic.
Similarly, it is quite possible that the words which Gaspa-
rovic used during his conversation with Dilks might have
conveyed a meaning different from the meaning he intend-
ed and the meaning he described at the hearing. There is
no way for the exact conversation to be reconstructed.
Based upon the relatively brief appearance of both Dilks
and Gasparovic before me I must make a determination as
to whose version of the conversation is the more accurate
and the more reliable. I am of the opinion that
Gasparovic's testimony should be credited. Further, I find
that the inquiries Gasparovic directed to both Dilks and
CBS RECORDS DIVISION 713
Kircher regarding their attitudes towards the Union, for
the reasons stated above, were not coercive. I shall recom-
mend that subparagraph 5(e) of the complaint be dis-
missed.
3. Eugene Regruto
Subparagraph 5(f) of the complaint reads as follows:
"On or about the first week in August, 1973, and continu-
ing until on or about September 7, 1973 Eugene Regruto
informed employees that they were not permitted to talk
during working hours about the Union but he permitted
anti-Union employees to talk about the Union."
Wayne Lore was the only witness called by General
Counsel in support of this allegation. He testified that in
August his supervisor, Regruto, "told me about talking to
girls or not wanting me to talk to nobody in the building.
He said he didn't care about what it was about or anything,
he just didn't want me to talk about nothing to nobody."
Lore further testified that from time to time he observed
snoopies talking together and Regruto did not disturb their
conversation. While Lore was unable to testify that he
overheard any of these conversations he testified that he
"knew it was Union activity ...." On cross-examination
Lore testified that in the course of his employment he had
been warned at least 50 times about engaging women in
conversation during working hours. I find that General
Counsel has failed to prove the above-quoted allegation of
the complaint. First, Lore did not testify that Regruto had
warned Lore against talking about the Union during work-
ing hours. Lore testified that Regruto merely had warned
him for perhaps the 51st time that he should stop talking
when at work. Further, Lore's testimony does not establish
that Regruto permitted antiunion employees to talk about
the Union during working hours. Accordingly, neither as-
pect of the allegation has been proved. I shall recommend
that subparagraph 5(f) be dismissed.
4. Subparagraph 5(g) and (h)
No competent evidence was adduced in support of these
allegations . Accordingly, I shall recommend that subpara-
graphs (g) and (h) of paragraph 5 of the complaint be dis-
missed.
5. Nicholas Fognano
Subparagraphs (i), (1), and (m) of paragraph 5 of the
complaint concern conduct on the part of Nicholas Fogna-
no who in 1973 was supervisor of security and safety for
the Company. Fognano died about a year before the hear-
ing in this proceeding. Therefore, Respondent was unable
to refute the testimony offered by General Counsel pur-
porting to establish unlawful conduct on the part of Fog-
nano.
No evidence was adduced in regard to subparagraph
5(m). I therefore shall recommend that that paragraph of
the complaint be dismissed.
Subparagraph 5(i) alleges : "On or about August 23,
1973, Nicholas Fognano prohibited pro-Union employees
from bringing their campaign literature into the plant while
permitting anti-Union employees to do so."
Albert Masso and Daniel Ungrue testified that several
weeks before the election they were informed by Nicholas
Fognano that no longer would they be permitted to carry
union literature in bulk into the plant. Kathleen Tuel, a
security receptionist, testified that during the summer of
1973 neither the union supporters nor the snoopies were
permitted to carry campaign literature into the plant. Both
groups were permitted to deposit literature with the securi-
ty officer in the guard shack when they entered the plant
and to claim the literature on their way out. I credit the
testimony of Tuel that the rule was applied equally to the
union supporters and to the snoopies.S Accordingly, I shall
recommend that subparagraph 5(i) be dismissed.
Subparagraph 5(1) alleges: "On or about May 16, 1973,
Nicholas Fognano informed an employee that Respondent
had video tape pictures of the supporters of the Union
thereby creating the impression that Respondent was en-
gaging in surveillance of the union activities of its employ-
ees."
In support of this allegation Albert Masso testified that
on May 16 or 17 he had the following conversation with
Nicholas Fognano:
A. I was on-up at the front desk, and we got into
a discussion about the strike we had just come off of.
And he made a statement that they had all of the
Union supporters on tape, videotape.9
Q. And what did you say to Mr. Fognano?
A. I said that we had already figured that out a
long time ago.
Q. Do you remember anything else that was said
during that conversation?
A. It was just a general conversation about what
went on during the strike-I mean specifics. We
talked about the weather or whatever.
7 Masso testified that the incident occurred 2 or 3 weeks before the elec-
tion while Ungrue testified that the incident occurred a month or a month
and a half before the election.
8 Ungrue testified that before Fognano had informed him that he no
longer could bring union literature into the plant he had observed a snoopie,
Pam Hoeger , bring a box full of literature into the plant. However, as of that
period of time union supporters also were permitted to bring campaign
literature into the plant so there was no disparity in the treatment of the two
groups. Ungrue testified that after he received the instruction from Fognano
not to bring literature into the plant he observed a snoopie , Sina Kurman,
carry a handful of literature into the plant. Fognano was not present and
Ungrue did not testify that the security receptionist observed Kurman.
Thus, this incident does not prove that the Company treated the two groups
differently. Masso testified that about 3 days before the election he ob-
served several snoopies , including Pam Hoeger , walk out of the plant car-
rying literature. They passed out some of the leaflets and when the shift
started they walked into the plant still carrying the literature. Masso further
testified that on another occasion two females who were passing out anti-
union literature walked into the plant carrying the leaflets that were left over
and in so doing passed Fognano who was at the desk in the guard office.
The testimony of Masso with respect to the two described incidents does not
establish that the security officers then on duty had actually observed the
snoopies carrying campaign literature into the plant . I find that the testimo-
ny of Masso and Ungrue does not establish that Fognano knowingly per-
mitted snoopies to carry campaign literature into the plant during the period
of time that union supporters were denied such privilege . Rather, as testified
to by Kathleen Tuel , the rule in effect in the summer of 1973 was that
neither group was permitted to carry campaign literature into the plant.
9 Masso testified that Fognano was referring to union supporters who had
patrolled the plant on the picket line during the strike on May 10 to May 15.
714 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Surveillance of employees ' union activities , or creating
the impression that their activities are under their
employer's scrutiny, is coercive because an employer who
spies upon the activities of his employees, by the surrepti-
tious nature of his activity, suggests to the employees that
he intends to use the knowledge illicitly gained to their
detriment. Masso's testimony does not establish that the
employer was snooping into areas that lawfully are fore-
closed to it. Rather, the testimony establishes only that the
Company made a video record of the persons who were
openly engaged in picketing the Company's premises. Such
record may have been for a lawful purpose. For instance,
as actually happened in this case, the employer may have
intended to use such record in an injunction proceeding
against the Union to curb allegedly unlawful picketing. I
find that General Counsel has failed to prove by the fore-
going testimony of Masso that the Company had engaged
in unlawful surveillance or had created the impression that
it had done so.10 Accordingly, I shall recommend that sub-
paragraph 5(1) of the complaint be dismissed.
6. Fred Dunajek
Subparagraph 5(j) alleges: "During the period from on
or about August 7, 1973 to the first of September, 1973,
Fred Dunajek granted time off to anti-Union employees to
distribute anti-Union literature while denying pro-Union
employees time off to distribute their literature."
Albert Masso and Daniel Ungrue testified for General
Counsel in support of this allegation. There are some dis-
crepancies between the testimony of Masso and Ungrue.
After reconciling the differences in their testimony I find
that the following occurred: Two or three weeks before the
September 7 election Masso and Ungrue requested permis-
sion of their foreman, Fred Dunajek, to clock out early in
order to distribute leaflets in front of the plant . Dunajek
denied them permission for the stated reason he needed
their services for work in the plant, although on prior occa-
sions Dunajek had granted them such permission . The next
morning they again asked Dunajek for permission to leave
the plant to distribute union literature outside the premises
and again were denied permission . However, in the af-
ternoon of the same day, Dunajek came to Ungrue and
said to him, "If you and Al Masso want to go out and pass
out literature , that's all right . What's good for the goose is
good for the gander." Thereafter, Masso and Ungrue on
other occasions were given permission to clock out early in
order to distribute union literature. Thus, the testimony of
Masso and Ungrue shows that on 1 day only they were
denied permission to leave the plant early in order to pass
out union literature . There is no competent evidence that
the snoopies were treated any differently in this regard.
Accordingly, I shall recommend that subparagraph 5(j) of
the complaint be dismissed.
10 Matlock Truck Body & Trailer Corp ., and its Agent Roy L. Matlock, 217
NLRB No. 60 (1975); Cavalier Division of Seeburg Corporation and Cavalier
Corporation, 192 NLRB 290, 294-296 (1971).
7. Television surveillance
Subparagraph 5(k) alleges: "During the summer of 1973,
Respondent directed its closed circuit television camera to-
ward and scanned the meeting hall used by the Union
thereby engaging in, or creating the impression of engaging
in, surveillance of the Union activities of its employees."
The Company for security purposes operates four televi-
sion cameras which show pictures through a closed circuit
system on television screens located in the guard shack.
After the May strike the Union occupied a building across
from the Company's parking lot which is known as
Wilson's Auction. The television camera that is used to
monitor the parking lot 11 can also be focused upon
Wilson's Auctioa.11 Albert Masso testified that almost ev-
ery day after the strike he observed that the television cam-
era was focused on the IUE headquarters, Wilson's Auc-
tion. According to Masso, "You have to walk past the
(television) screens as you go out the door. I mean, you can
see the screen sitting right there, unless they have been
moved recently." I do not credit this testimony. Over-
whelming evidence was adduced that the television screens
were so located in the guard shack that they were not visi-
ble except to somebody inside the guard shack. As a main-
tenance employee Masso had frequent opportunities to en-
ter the guard shack and there is no question that he had
many opportunities to view the television screens . Howev-
er, his testimony is incorrect that employees walking in and
out of the premises through the door adjacent to the guard
shack were able to see the television screen. William Es-
slinger, another maintenance department employee, testi-
fied that during the summer he observed the IUE head-
quarters on the television screen four or five times.
Security Receptionist Kathleen Tuel testified that during
the strike the television camera was used to monitor the
picket line. After the strike it was focused on Wilson's Auc-
tion "at different intervals, but not to spy on anyone."
However, early in June she was instructed by Fognano not
to focus the camera on Wilson's Auction "because they
had complaints that we were spying on them." Thereafter,
she no longer turned the television camera on- Wilson's
Auction.13 Kenneth Austin, the Company's security coor-
dinator, testified that in the summer of 1973 he was in-
formed by Nicholas Fognano that the latter had instructed
the guards "to keep the cameras away from Wilson's."
Austin explained that "Mr. Fognano said that Mr. Wilson
had come to him and said that they were spying on him
and he wanted them definitely kept away from there so
there could be no question."
In view of the fact that only Masso and Esslinger testi-
11 The purpose of the television surveillance is to insure the security of the
em?loyees and to protect their automobiles against theft and vandalism.
1 Albert Masso testified "that's a matter of conjecture" as to whether it
was possible by viewing the television screen to identify people walking in
and out of Wilson's Auction. He testified that he did not have any problem
making such identifications . However, all other persons who testified about
the subject testified that it was not possible to identify on the television
screen persons walking in and out of Wilson's Auction.
13 Kathleen Tuel was a forthright witness. Her testimony was given with-
out equivocation and was in no way impeached . I find that Kathleen Tuel
was a reliable witness and credit her testimony even where inconsistent with
the testimony of Masso or Esslingen.
CBS RECORDS DIVISION
fied that they had observed the union headquarters on the
guard's television screen , that it is questionable that per-
sons going in and out of Wilson's Auction could have been
identified on the screen , and that the practice was discon-
tinued in early June after Wilson had complained to Fog-
nano about the television camera being used to keep
Wilson's Auction under observation, I find that General
Counsel has not proved the allegation of subparagraph 5(k)
and I shall recommend that it be dismissed.14
8. The election celebration
Subparagraphs 5(n) and (o) are related to conduct of the
Company immediately following the election held on Sep-
tember 7, which the Union lost. These allegations are:
(n) On or about September 7, 1973, and on or
about September 10, 1973, Respondent granted all its
employees one-half day off work with pay because the
Union lost the election in Case No. 4-RC-10377.
(o) On or about September 7, 1973, Respondent
gave a party at Hobo Hall in Pitman, New Jersey for
its employees after the election in Case No. 4-RC-
10377 because the Union lost that election.
These allegations are not disputed. The Company's ex-
planation is that it repeated the same practices that had
been observed after previous elections . It further explained
that it granted the employees the time off because its previ-
ous experience was that following an election the employ-
ees were for the most part too excited to return to or to stay
at work.
For an employer to give a party to its employees or to
grant employees time off with pay to celebrate the defeat
of a union in a Board-conducted election violates Section
8(a)(1) "because it was likely to have been construed by the
employees not only as an expression of approval by the
employer of the union's defeat, but also a promise of future
reward for continuing to reject union organization." The
fact that both the opponents and supporters of the Union
received such gratuities does not detract from the essential
coercive character of the act.15 The Employer's explanation
does not excuse its misconduct . In effect the Company
seeks exculpation from the consequences of its conduct in
September 1973 because it had engaged in similar unlawful
conduct on prior occasions . I find that the allegations set
forth in subparagraphs 5(n) and (o) of paragraph 5 of the
complaint have been sustained and that the Company by
such conduct has engaged in violations of Section 8(a)(1)
of the Act.
9. Walter Grygo
Subparagraph 5(p) concerns Matrix Department Fore-
man Walter Grygo. It alleges: "On or about August 23,
1973, Walter Grygo warned employees that the plant may
move to another location if the Union was chosen by the
14 Cf. Carlisle Paper Box Company, 168 NLRB 706, 711-712 (1967); Sa-
lant & Salant, Incorporated, 92 NLRB 417, 446-447 (1950).
15 Edro Corporation and Anesco Gloves, Inc., 147 NLRB 1167, 1176 (1964).
Accord: Cedartown Yarn Mills, Inc., 84 NLRB 1, fn. 3 (1949).
715
employees ." In connection with this allegation William
Myers testified that on a day in August he happened to
walk into the lab area where there were present Walter
Grygo, Robert Ward, his group leader , and another super-
visor . According to Myers, as he entered Grygo said, "Here
is a person that we would be doing a favor if the plant
moved south." The other supervisor then asked Myers
from which part of the south he came and Myers replied,
Tennessee . There was no other discussion of the plant
moving . I find that General Counsel has not proved that
Respondent has engaged in the unlawful conduct alleged
in subparagraph 5(p) and I shall recommend that that alle-
gation of the complaint be dismissed.
10. Joseph Kroll
Between 10 a.m. on September 5 and 2 a.m. on Septem-
ber 6 Plant Manager Joseph Kroll gave speeches to seven
groups of company employees. His object was to speak to
all the employees who were eligible to vote in the election.
Kroll spoke to the first-shift employees at 2 a.m. on Sep-
tember 6 and to the third-shift employees at 6 p.m. on
September 5. Because the speech was given in the plant
cafeteria which has a capacity of only 300, the second-shift
employees were divided into five groups. Kroll spoke to
these groups at 10 a.m., 10:30 a.m., 1:30 p.m., 2 p.m., and
3 p.m. on September 5.
Kroll testified that on September 4 with the assistance of
the Company's attorney, Personnel Manager James Duffy,
and two other employees of the personnel department he
prepared the speech which he delivered the next day. The
text of the speech was introduced in evidence as
Respondent's Exhibit 10. Kroll testified that, except for his
talk to the maintenance department employees at 3 p.m. on
September 5, he gave the identical speech to the six other
employee groups and he did not deviate from the prepared
text. In substance, Duffy, who attended each of the meet-
ings, corroborated Kroll. The speech as written and as re-
flected by Respondent's Exhibit 10 is unobjectionable. The
complaint, however, alleges that in the speeches that Kroll
gave on September 5 at 10 a.m., 1:30 p.m., 2 p.m., 3 p.m.,
and 6 p.m. he unlawfully threatened (1) to close and move
Respondent's Pitman facility, (2) to take away employee
benefits, (3) that the Union could cause nothing but strikes,
and (4) that Respondent would not bargain with the Union
if the employees selected the Union as their collective-bar-
gaining representative.
Kroll testified that he did not read his prepared speech
at the 3 p.m. meeting with the maintenance department
employees. I shall discuss what transpired at that meeting
at the end of this section. No testimony was offered by
General Counsel regarding the speech given at 10 a.m. Ac-
cordingly, it is unnecessary to consider whether any of the
alleged threats were made then.
Two employees testified for General Counsel with re-
spect to the 1:30. p.m. speech. They are Beatrice Aliberti,
and Robert John Cloud. Beatrice Aliberti testified that
Kroll spoke approximately 20 minutes. He spent a large
portion of his time comparing the wage rates of the Pitman
plant and other plants. "He mentioned that the only thing
the union could do for us was to take our money and cause
716 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
us to strike." When asked whether Kroll said anything
about negotiations in his speech Aliberti answered, "I
don't know his exact words but to the effect that the com-
pany didn't have to negotiate." She was unable to remem-
ber anything else that Kroll said in his speech.
Cloud's recollection of the speech was limited. It was
necessary for General Counsel to direct his attention to
various subjects in order to elicit responses. According to
Cloud, Kroll said, "The only thing unions do is cause trou-
ble and strikes." He compared wages and benefits with
those of RCA and Domino Sugar and another plant. "He
said that bargaining would start from scratch. We would
lose the benefits we now had," and that "the company
would not negotiate." Cloud also testified, "He said that
the union had got in in New York, and they moved to New
Jersey; and there was a place in California-they had
moved the plant from some place in California to Santa
Maria because the union got-had got in out there... .
[H]e said that if the union got in, the plant could move-
not necessarily it would move but it could move." On
cross-examination Cloud testified that Kroll said, "What
wages and conditions exist after [a union gets in] depends
on what the employer is going to give. . . . There is no
requirement in the Act that an employer agree to all union
demands or, after bargaining, retain all current benefits."
Also, Kroll said the presence of a union does not prohibit
an employer from moving its plant should economic condi-
tions so dictate. Thus, upon cross-examination, Cloud
modified his testimony so that his version of what Kroll
said more clearly resembles the text of Kroll's speech as
reflected by Respondent's Exhibit 10.
Supervisor Eugene Williams Regruto attended the same
1:30 p.m. meeting and according to his testimony Kroll
made none of the alleged incriminatory remarks.
Four employees, Wayne Lore, Bruce Edward Tumstall,
Yvonne Oakman, and Alice Virginia Gray, testified for
General Counsel with respect to the 2 p.m. speech. Wayne
Lore testified that Kroll spoke for 20 to 30 minutes. Ac-
cording to Lore:
He talked a lot about that all unions can do nothing
but call strikes, they can't guarantee us nothing; and
he said that if a union got in, that the company didn't
have to bargain with them or wouldn't bargain with
them. And somewhere along the speech, he said some-
thing about they moved from Massachusetts down to
Jersey and they can move again, if they want.
Lore was unable to describe the context in which the vari-
ous statements were made. Tumstall's recollection of what
Kroll said was fragmentary. He testified, "Things I remem-
ber-like-he said-like the union doesn't cause anything
but strikes; and if the union happens to get in-you
know-might move south; and he had a contract from
RCA pertaining to like the benefits and the wages-that
we have-what CBS has now-you know-better-so the
union really-wouldn't really do no good." Yvonne Oak-
man testified that in his speech Kroll "told us that the only
thing a union could give us is strikes and collect union
dues; and that the company did not have to negotiate with
the union. And later in his speech, he said . . . the union
wouldn't sit back and wait for their dues, that they would
start collecting dues immediately-and that was pertaining
to a statement that had been published that dues would not
be collected until a contract was negotiated; and that if the
union asked for too much, they would be-the company
would be economically forced to close its doors and
move." In response to a question from General Counsel,
Oakman testified that Kroll said "we would lose our bene-
fits." Alice Virginia Gray testified that in the speech Kroll
said "we didn't need a union-that all they could do was to
bring us strikes-and that they didn't have to negotiate
with the union; and we'd have to pay dues." General
Counsel asked Gray whether Kroll said anything about
benefits and she answered, "Yes-and he said . . . that we
could wipe the slate clean and start all over again.... He
said that anything that Columbia Records gave to you that
they could take back." These remarks were made with ref-
erence to the possibility of the Union winning the election.
Upon cross-examination Gray modified her testimony
somewhat to more closely resemble the language of the
speech as reflected in Respondent's Exhibit 10.
Delores Keenan and Cheryl Peters testified with respect
to the 6 p.m. speech. Keenan testified that she remembers
"points" of the speech. "He said we could lose all of our
benefits if the Union got in. He said that even if the Union
got in, they couldn't give us anything, the only ones that
could give us anything was CBS and, if they didn't want to,
they didn't have to and we would be out on strike. That if
they didn't want to negotiate, they didn't have to." Accord-
ing to Keenan, Kroll insinuated "that the plant had moved
before and they could move anytime they wanted to, again,
if they deemed it economically unfeasible to run it in Pit-
man or something, which gave a lot-expecially the people
who really weren't into the politics of the thing-the idea
that he was going to move the plant if the Union came in."
Cheryl Peters testified that Kroll said "that if the Union
was voted in, we would lose all existing benefits, and that
the Company did not have to negotiate with the Union,
that they would sit down and bargain and start from
scratch. . . . He said that if they voted the Union in, they
would move the plant down South." Peters was unable to
remember the context in which these remarks were made.
The recollections of General Counsel's witnesses as to
what Kroll said in the speeches that he made at 1:30 p.m.,
2 p.m., and 6 p.m. on September 5 were fragmentary and
were not mutually corroborative. This is not unanticipated.
General Counsel's witnesses were testifying about an event
which had occurred almost 2 years earlier. Normally em-
ployees' recollections of what was said to them in a 20-
minute speech is uncertain. However, experience indicates
that where threats which would adversely affect the eco-
nomic welfare of the employees are made during such
speech employees will clearly remember such threats even
though their recollections of the other parts of the speech
may be hazy. Also, it is not unusual for employees to mis-
understand what was said in a lengthy speech and, partic-
ularly after the lapse of almost 2 years, to confuse in their
minds what was said in the speech with other information
which may have come to their attention. This probably
happened here. As examples, in a snoopie leaflet which was
issued prior to the September 7 election, which is in evi-
dence as General Counsel's Exhibit 5, there appears the
CBS RECORDS DIVISION
following statement : "They could do just like they did in
Bridgeport , Conn. UNION PLANT . CBS moved to Pitman 13
years ago. Or they could do like they did in Los Angeles
UNION PLANT. CBS moved to SANTA MARIA 10 years ago and
they have NO union . OR like RCA records, UNION PLANT in
Camden, they moved in 1952 to Rockaway, N.J. with no
union until a few years ago and now RCA in ROCKAWAY has
CLOSED THEIR DOORS , and MOVED AWAY AGAIN. OR like Capital
Records union plant in Scranton, Pa. has just closed its
doors a few weeks ago with 350 employees or better. CLOSED
ITS DOORS and MOVED TO WEST VIRGINIA because of the
union ." In a union leaflet, introduced in evidence as
Respondent's Exhibit 5, there appears the statement, "CBS
will threaten to move the plant." Upon comparing the two
leaflets referred to and the letters mailed to the employees
by the Company, dated August 23 and August 27, 1973,16
with the text of Kroll's speech, one can understand how
General Counsel's witnesses might have attributed state-
ments to Kroll which he did not make.
I am of the opinion that Joseph Kroll and James Duffy
were truthful witnesses . I credit their testimony that Kroll
in his speeches to the described groups of employees limit-
ed himself to the text of the written speech which is in
evidence as Respondent's Exhibit 10 and which is unobjec-
tionable.
Because most of the acknowledged union leaders worked
in the maintenance department and because Kroll had
heard that the employees in the maintenance department
had planned to disrupt his speech in some way, he decided
that he would not give the prepared speech to the mainte-
nance department employees and, unlike what he did with
the other groups, he would answer questions from the
maintenance department employees. This meeting took
place at 3 p.m. on September 5. General Counsel called six
witnesses who testified regarding the content of Kroll's talk
to the maintenance department employees.
Albert Masso testified that Kroll explained that the
Company's benefits were superior to those of other plants
in the area but said "if the union got in , we would lose all
of our benefits ." Also, according to Masso, Kroll said that
if the Union got in the Company "would move or could
move." He mentioned as an example a company that had
moved to Georgia or South Carolina or one of the States in
the South when a union got into the plant. Also Kroll said
that ""the Company did not have to negotiate if the Union
won. 17
Daniel Ungrue testified that Kroll spent a lot of time
discussing the IUE contracts. He said that if the Union
won the election the Company could give what it wants
and not what the Union wants and that if the Union got in
we would lose everything and we would have to start from
scratch. Also, if the Union demanded too much the Com-
pany would be forced to close its doors and move.
William Esslinger's recollection of the speech was limit-
16 These letters are attached to the Regional Director's Supplemental De-
cision on Objections to Election dated December 19, 1973, as Exhs. A and
B, respectively.
7 On cross-examination Masso testified Kroll was asked the question
whether the plant would move if the Union got in and Kroll responded that
the Company could move if it wished.
717
ed. He testified that Kroll said that, if the Union won, the
Company did not have to negotiate with it. Esslinger also
testified that Kroll said that the plant would be moved.
James Dowe Beattie testified that Kroll said, even if the
Union got in, the Company would not have to negotiate.
The Company could close the doors any time it wanted.
Kroll explained that the Company had moved from Con-
necticut because it could not get along with the union
there. He also said we could lose all of our benefits.
Edward Bailey, another witness called by General Coun-
sel, testified that Kroll discussed the benefits the employees
enjoyed without a union. He compared the benefits with
other plants. He said that in the event of negotiations the
Company gives all the benefits and that the Union does
not give any. It was the Company that actually gives you
everything that you get during negotiations. "It was a well
written speech ... it gave you the appearance that you
would start from scratch-he made it sound like you would
lose your benefits and you'd have to start negotiating right
from the beginning." Bailey further testified that Kroll
made a statement that "if the package that the union would
try to get was not feasible or economically unfeasible that
the company could move." Bailey explained, "He never,
that I can recall, said that it would move-but he didn't
make it sound that way; he said it could move."
Norman Thompson testified that Kroll said something
about the National Labor Relations Board having stated
that he didn't have "to participate or grant bargaining
rights if we got a union in." IS Thompson also testified that
Kroll said something about two plants, one in California
and one in Connecticut, that had moved because of union
activities and that there was a possibility that this could
happen again. He also said that we could lose our benefits
if the Union got in.
Kroll described at length what he said to the mainte-
nance department employees. In general, he was corrobo-
rated by Personnel Manager Duffy and employees William
Robert Harper, Joseph Carrocino, and Warren Mills. As
with the speeches to the other departments, the witnesses
for General Counsel who testified as to what Kroll said to
the maintenance department employees were not mutually
corroborative, remembered unrelated bits and pieces of the
talk, and displayed uncertainty regarding their recollection
of the contents of Kroll's speech. Kroll's recollection of his
speech was substantially greater and more detailed than
the recollections of General Counsel's witnesses. Not sur-
prisingly, Respondent was able to produce maintenance
department employees who contradicted General
Counsel's witnesses as to what Kroll said in his speech. As
all witnesses were testifying about a speech that had been
made almost 2 years earlier it is expected that there would
be substantial discrepancies in their testimony. Likewise, it
is not surprising that some of the union supporters who
attended the meeting interpreted remarks made by Kroll to
18 Kroll testified that at this meeting he read the following excerpt from
Oxford Pickles, Division of John E. Cain Co., 190 NLRB 109 (1971): "[T]here
is no requirement in the Act that an employer accede to all union demands
or, after bargaining, retain all current benefits. Nor does the presence of a
union prohibit an employer from moving its plant should economic condi-
tions so dictate . Similarly, an employer may permanently replace economic
strikers."
718 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
contain implicit, if not explicit , threats where the state-
ments might have been no more than careful recitations of
applicable law. Also , as time passed , it is not improbable
that some of the union supporters might have confused
what they heard from other sources with what Kroll said in
his speech. Similarly, it is quite possible that within the past
2 years Kroll's recollection had become sanitized and he
had expunged from his memory all recollection of threats
which he might have made to the maintenance department
employees . I am conscious of the confliciting possibilities
inherent in this situation . However, I am of the opinion
that Kroll was a truthful and reliable witness. Accordingly,
I credit Kroll's version of what he said to the maintenance
department employees as the most accurate description
testified to at the hearing . I find , therefore , that in his
speech to the maintenance department employees Kroll
made no unlawful threats.
As I have found that General Counsel has not proved
that Kroll made any unlawful threats in any of the
speeches delivered to the employees on September 5 and 6,
I shall recommend that paragraph 6 of the complaint be
dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of the Company set forth in section IV,
above, occurring in connection with its operations de-
scribed in section II, 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.
improper conduct occurred. Objection 5 is as follows:
The Company rewarded employees for non-Union
votes and induced them to so vote by giving all em-
ployees on the third shift one-half day off with pay on
September 7, 1973 and the employees on the other two
shifts one-half day off with pay on September 10,
1973. Prior to the election, the employees were aware
that if the Union lost the election they would receive
one-half day off with pay similar to what had occurred
when the Union was defeated at an election in 1969.
This was a financial inducement to vote against the
Union.
The Employer admits that the employees received a half
day off with pay following defeat of the Union at an elec-
tion in 1969. However, there is no evidence that this fact
was advertised or was in any other way called to the atten-
tion of the employee in 1973.
I have found that the Employer improperly and unlaw-
fully gave a party for the employees after the September 7
election and granted its employees one-half day off work
with pay. Both events occurred after the balloting had been
concluded. Other than the fact that these incidents repeat-
ed similar occurrences which took place 4 years earlier
there is no evidence whatsoever indicating that these bene-
fits influenced the employees' vote in the election. Accord-
ingly, despite the fact that I sustain Objection 5, I recom-
mend that the results of the election be certified. 19
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in these proceedings,
and pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
VI. THE REMEDY
Having found that the Company has engaged in unfair
labor practices I shall recommend that it cease and desist
therefrom and that it take certain affirmative action de-
signed to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, and
upon the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. By granting its employees one-half day off work with
pay because the Union lost the election in Case 4-RC-
10377 which was held on September 7, 1973, and by giving
a party for its employees after the election in Case 4-RC-
10377 because the Union lost that election, the Company
has interfered with and restrained its employees in the ex-
ercise of the rights guaranteed in Section 7 of the Act, in
violation of Section 8(a)(1).
2. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REPRESENTATION PROCEEDING
I shall recommend that Objections 1, 3, 6, and 7 be dis-
missed as the evidence does not establish that the alleged
ORDER 20
Respondent CBS Records Division of CBS Inc., Pitman,
New Jersey , its officers , agents , successors , and assigns,
shall:
1. Cease and desist from:
(a) Interferinb with , restraining , or coercing its employ-
ees in the exercise of the rights guaranteed in Section 7 of
the Act by giving them time off from work with pay or by
giving them a party in either case to celebrate an election
which a labor organization lost or by making promises of
benefit for the purpose of discouraging membership in a
labor organization.
(b) In any like or related manner interfering with, re-
19 As stated in N. L. R. B. v. Golden Age Beverage Company, 415 F.2d 26, 32
(C.A. 5. 1969): The proper test for setting aside an election is "[N]ot whether
any improprieties occurred during the campaign , but whether , in the cir-
cumstances , the particular conduct complained of `created an environment
of tension or coercion such as to preclude employees from exercising a free
choice . For conduct to warrant setting aside an election , not only must that
conduct be coercive , but it must be so related to the election as to have had
a probable effect upon the employees' actions at the polls .' N.L.R.B. v.
Zelrich Company, 344 F.2d 1011, 1015 (5th Cir. 1965)."
20 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions , and Order , and all objections thereto shall be
deemed waived for all purposes.
CBS RECORDS DIVISION 719
straining, or coercing its employees in the exercise of the
rights guaranteed them in Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its place of business in Pitman, New Jersey,
copies of the attached notice marked "Appendix." 21 Cop-
ies of said notice, on forms provided by the Regional Di-
rector for Region 4, after being duly signed by
Respondent's representative, shall be posted by it immedi-
21 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals , the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to
insure that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 4, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that all allegations in the
complaint of violations of Section 8(a)(1) of the Act be
dismissed except the allegations set forth in subparagraphs
(n) and (o) of paragraph 5.
IT IS ALSO RECOMMENDED that a certification of the results
of the election in Case 4-RC-10377 shall issue.