Chelsea Clock Co.

National Labor Relations Board - Board Decisions

Sep 28, 1967

167 N.L.R.B. 640 (N.L.R.B. 1967)

640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Chelsea Clock Company and Kenneth B. Ultsch, Jr.
Chelsea Clock Company and District #38, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO. Cases I-CA-5632 and
1-RC-9103
September 28, 1967
DECISION AND ORDER
BY CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
On May 24, 1967, Trial Examiner Arthur
Christopher, Jr., issued his Decision in the above-
entitled proceedings, finding that the Respondent
had engaged in certain unfair labor practices alleged
in the complaint and recommending that it cease
and desist therefrom and take certain affirmative
action, as set forth in the attached Trial Examiner's
Decision. He further found the Respondent had not
engaged in certain other unfair labor practices al-
leged in the complaint and recommended dismissal
as to them. In addition, the Trial Examiner found
that there was no merit in Respondent's objections
to the election and recommended that they be over-
ruled in their entirety and that the Union be cer-
tified by the Regional Director. He further ordered
that Case 1-RC-9103 be severed and remanded to
the Regional Director for Region 1 for further ac-
tion in accordance with Section 102.62(a) of the
National Labor Relations Board Rules and Regula-
tions, Series 8, as amended. Thereafter, the
Respondent and the General Counsel filed excep-
tions to the Decision and supporting briefs.
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
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner, as herein modified.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner and hereby or-
ders that the Respondent, Chelsea Clock Company,
Chelsea, Massachusetts, its officers, agents, suc-
cessors, and assigns, shall take the action set forth
in the Trial Examiner's Recommended Order, as
herein modified:
Substitute the words "on forms provided" for the
words "to be furnished" in paragraph 2(a).
TRIAL EXAMINER'S DECISION
ARTHUR CHRISTOPHER, JR., Trial Examiner: These
consolidated cases were heard at Boston, Massachusetts,
on December 8, 9, and 10, 1966.'
The agreement for consent election was executed and
approved on August 4, 1966. An election was conducted
among employees in a stipulated unit as described
hereinafter on August 31, 1966. The tally of ballots cast
at that election is as follows:
Approximate number of eligible voters 51
Void ballots 0
Votes cast for Petitioner 21
Votes cast against participating
labor organization 17
Valid votes counted 38
Challenged ballots 4
Valid votes counted plus challenged
ballots 42
On September 8, 1966, the Respondent filed timely ob-
jections to conduct affecting the results of the election.
The objections alleged that: (1) prior to, and throughout
the entire preelection organizing drive, and without the
Respondent's knowledge, its supervisor, Kenneth B.
Ultsch, actively initiated the Union' s organizing efforts
and actively participated therein as a leader, soliciting
employees on behalf of the Union; and (2) in addition,
Ultsch directed employees to attend a union meeting held
on August 30, 1966, the night preceding the election, and
provided transportation for two employees to that meet-
ing and, in fact, attended the meeting himself. Further,
Ultsch voted in the election held the next day, even
though his ballot was challenged in order to communicate
to all employees his "total commitment" to the Union's
organizing effort.
On October 12, 1966, the Regional Director for Re-
gion I issued his report on challenged ballots, revised
tally of ballots and objections in which he found that seri-
ous credibility issues existed with respect to the status of
Ultsch as a supervisor and the allegation that he had
acted as an agent of the Petitioner. As Ultsch had filed a
charge in Case 1-CA-5632, consolidated herein, alleging
that he had been discriminatorily discharged by the
Respondent on September 2, 1966, and as the Regional
Director had determined to issue a complaint in that
matter and the issues that would be required to be
disposed of in the unfair labor practice proceeding also to
some extent were interwoven with the issues raised by
the objections, he felt that the latter issues should be
resolved after a hearing together with the issues raised in
the unfair labor practice proceeding. He therefore con-
solidated both cases for purposes of hearing.
With respect to the aforementioned challenged ballots,
the Regional Director concluded that as Ultsch's name
was not on the eligibility list and he was challenged by the
Board agent when he appeared to vote, and his superviso-
ry status was a material issue involved in the objections,
he concluded that no ruling was required with respect to
'The charge was filed on September 6, 1966, alleging that the Respond-
ent had violated Sec 8(a)(3) and (I) by discharging Kenneth B Ultsch,
Jr , because of his activities on behalf of the Petitioner and by other acts
allegedly violating Sec 8(a)(I). Complaint was issued by the Acting Re-
gional Director On October 21, 1966.
167 NLRB No. 85
CHELSEA CLOCK COMPANY 641
his challenge, as his ballot could not in any event affect
the results of the election in view of the Director's finding
and conclusion that the other three challenged voters,
James Raften, William H. Quigley, and John R. Golding,
were stock clerks and consequently plant clericals, a
category excluded by the agreement of the parties from
the stipulated unit.2
At the hearing all parties were represented by counsel
and were afforded full opportunity to be heard, to ex-
amine and cross-examine witnesses, to present evidence,
and to file briefs. At the close of the hearing the General
Counsel and the Respondent argued orally and thereafter
both submitted briefs. Upon the entire record, my obser-
vation of the demeanor of the witnesses, and considera-
tion of briefs filed by the General Counsel and the
Respondent, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE RESPONDENT
Respondent, a Massachusetts corporation with its prin-
cipal office and place of business at Chelsea, Mas-
sachusetts, is engaged in the manufacture, sale, and dis-
tribution of clocks, timepieces, barometers, and related
products. In the course of its business enterprise on all
dates material herein the Respondent purchased and
transported in interstate commerce from and through
various States of the United States other than the Com-
monwealth of Massachusetts, large quantities of raw
materials used by it in the manufacture of its products and
likewise, during the same period, caused to be shipped
substantial quantities of clocks, timepieces, and barome-
ters in interstate commerce to States in the United States
other than the Commonwealth of Massachusetts. An-
nually, the Respondent purchases raw materials valued
in excess of $50,000 which it receives directly at its plant
from points outside Massachusetts and annually ships
finished products valued in excess of $50,000 directly
from its Massachusetts plant to points outside Mas-
sachusetts.
The Respondent admits, and I find, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act and that it will effectuate the
policies of the Act to assert jurisdiction herein.
11. THE LABOR ORGANIZATION INVOLVED
The Respondent admits, and I find , that District #38,
International Association of Machinists and Aerospace
Workers, AFL-CIO, hereinafter either called the IAM,
the Union , or the Petitioner , is a labor organization within
the meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Issues
The principal issue in this proceeding is whether the
Respondent violated Section 8(a)(3) and (1) of the Act
through its alleged discriminatory discharge of Kenneth
B. Ultsch because he supported or assisted the Union or
engaged in other union or concerted activities.
Subsidiary issues are raised as to whether the Respond-
ent violated Section 8(a)(1) of the Act through the al-
leged conduct of Walter E. Mutz, an admitted supervisor,
who on the date of the election allegedly deprived Ken-
neth B. Ultsch of his right to vote in the election. Other is-
sues were raised with respect to alleged illegal interroga-
tion of employees and the creation of the impression of
surveillance of employee union meetings by management.
The Respondent denies the commission of any unfair
labor practices.
As a determination of the supervisory status of Ultsch
will resolve some of the principal issues involved herein,
Ultsch's status as a supervisor will be considered first.
B. The Discharge of Kenneth Ultsch
1. Ultsch's status as a supervisor
The Respondent is headed by George King, who
serves as president, and Walter E. Mutz, who serves as
treasurer. Mutz and King each owns 50 percent of the
stock of the Respondent and with two other individuals,
constitute its board of directors. Approximately 50
production and maintenance employees are engaged in
the manufacture of the expensive clocks produced by the
Respondent and occupy a single building, utilizing three
floors for that purpose. Located on the first floor is the
finishing room or movement assembly. Edward Devlin is
in charge of the finishing room and also generally directs
the operations of the adjoining casing and shipping rooms.
In addition to King and Mutz, the parties stipulated that
A.J J. Leone, who serves as plant superintendent, John F.
Mulloy, the production manager, Charles A. Filadora,
Devlin, and John McCarthy are supervisors within the
meaning of the Act.
The casing room generally has three full-time em-
ployees and on occasions, as the need arises, an employee
will be transferred from the finishing assembly to the cas-
ing room on a temporary basis.
The alleged discriminatee, Ultsch, was employed in the
casing room at the time of his separation from the
Respondent. Ultsch commenced working in the casing
room in 1959 and was advanced to the position of
assistant foreman in that room during the latter part of
April 1966,4 months before the election and a substantial
time before the union organizational campaign began.
Walter E. Mutz credibly testified that at the time of
Ultsch's promotion to assistant foreman he was given a
raise, which amounted to 25 cents per hour, bringing him
up to $2.60 an hour. In this connection, Ultsch's hourly
rate of pay was 80 cents per hour higher than the next
highest paid employee in the casing room. In addition, at
the end of 1965 and in general accord with the Respond-
ent's policy of distributing Christmas bonus payments,
Ultsch received a bonus of $341. Only two individuals in
the plant received a larger bonus than Ultsch at that time
and each had been with the Respondent more than 40
years. The amount of bonus actually paid Ultsch was in
excess of that paid several individuals classified as
foremen. According to Mutz, Assistant Foreman Ultsch
was responsible for the training of individuals assigned to
the casing room, telling them what work must be done in
that room. Ultsch obtained his instructions from two
sources; first from Delin, and secondly, he obtained the
copy of the factory order from the office showing him
2 The stipulated unit was composed of all production and maintenance
employees including janitors and regular pail-time employees of the
Respondent at its Chelsea, Massachusetts, plant, but excluding office
clerical employees, plant clerical employees. home workers, professional
employees. draftsmen, guards, assistant foremen and all supervisors as
defined in the Act
642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
what had to be done. The employees in the casing room
were responsible for the quality of the workmanship on
the clocks completed within there.
On August 4, 1966, Mutz called a meeting of all super-
visors which was held for the purpose of instructing the
supervisors as to what they legally could and could not do
with respect to the then forthcoming Board election.
Mutz credibly testified that at that meeting he heard
Ultsch state that he did not know which side he was on
"and I proceeded to clear up which side he was on and in-
structed him in that way." After the meeting, Mutz
posted a notice containing the names of individuals con-
sidered by the Respondent to be eligible as well as ineligi-
ble to vote in the forthcoming election. Ultsch's name
was included among those deemed to be ineligible by the
Respondent. Although he was aware of Ultsch' s union
sympathies as early as August 4, Mutz testified that it
was not until August 30, the day before the election, that
he had definite knowledge that Ultsch was "prounion"
and "was not for the COMPANY AS A SUPERVISOR
SHOULD BE." Mutz obtained his information concern-
ing Ultsch's prounion sympathies from Alice Barry, an
employee within the plant, who told Mutz that Ultsch had
asked her to go to a union meeting with him . Although ad-
mitting that he was concerned about an individual whom
he deemed to be a part of management participating in
prounion activities, Mutz took no formal action about the
matter until about a month later when Kenneth Ultsch
was discharged.
After the August 4 meeting Mutz testified that he had
two further conversations with Ultsch. The first occurred
about a week after the August 4 meeting and the next 10
days later. The substance of both conversations, accord-
ing to Mutz, were inquiries of Ultsch as to what Ultsch
was doing in behalf of management with respect to the
union campaign.
Apart from supervising the quality of the work per-
formed in the casing room, the assistant foreman, as in-
dicated above, is also responsible for the training of em-
ployees in that room. Ultsch stated that he gave instruc-
tions to new employees because he could do more "criti-
cal" work and was more experienced . He is also responsi-
ble for ordering the necessary supplies, such as cement,
special paper , and felt needed in connection with the
manufacture of the product . He likewise brings wage
reviews to the attention of his foreman The assistant
foreman rates his own employees for an increase in pay
and makes the recommendation as to whether or not the
employee should get the increase. Mutz approves all
wages increases before they are effectuated, basing his
action upon such wage reviews. Mutz credibly testified
that in 95 percent of the cases he accepts the recommen-
dation of the immediate supervisor with respect to the
granting of wage increases . In this connection he testified
that Ultsch had occasion to rate employees with respect
to the quality of their work judgement, adaptability, neat-
ness, etc. The record shows that within the few months
prior to his termination , Ultsch rated employees named
Victoria M. Costa, and James Symonds, and on the basis
of his reviews both were granted wage increases.
Although Ultsch testified that his rating of Costa was on
the basis of Mutz' direction, Mutz credibly testified that
on an occasion when he asked Ultsch how Costa was
doing on the job, Ultsch replied that she was the best em-
ployee he ever had, whereupon Mutz suggested that
Ultsch should rate her. On the basis of Ultsch's recom-
mendation , Costa received an increase of 10 cents per
hour . The Respondent maintains a time-standards file for
the 50 or more clocks that it manufactures and the
assistant foreman is also responsible for seeing that the
employees meet the Respondent ' s standards with respect
to the work performed on the clocks in the casing room.
With respect to the individual employees within the cas-
ing room Ultsch testified that they kept records of their
various job operations because such records were materi-
al with respect to subsequent reviews for purposes of
wage increases. As, noted above Ultsch made such
reviews for the purpose of wage increases . Mutz testified
that both foremen and assistant foremen had the authority
to recommend the discharge of employees and he relies
on such recommendations , although Ultsch had no occa-
sion to make any such recommendations as to the
discharge of employees, the record reveals that he signed
the termination slip of Victoria Costa in the capacity of
assistant foreman , when she voluntarily left the Respond-
ent's employ . Ultsch testified that Foreman Devlin was
not in the casing room a great portion of his time , stating
that he came in only "from 6 to 7 times ... each day."
Ultsch also testified that he was never told he was
responsible for the work of his subordinates and that the
first time he was "supervisory help" was at the August 4
meeting referred to hereinabove. Ultsch admitted, how-
ever, that Devlin had told the new employees if they had
any questions or problems they were to see Ultsch about
them. Although he stated that in the course of a discus-
sion about a complaint on a clock returned for repair he
suggested to Superintendent Leone that if Ultsch were
going to run the room they would have to make him a
foreman , he nevertheless denied that they made him a
foreman . He admitted however that he had initialed
several rating forms as "foreman" but did not protest
doing so because if he had, they would have "fired him on
the spot." On cross-examination , however , he admitted
that no one had threatened him with discharge for not
signing such rating forms nor did he raise any question
about the matter.
Ultsch further testified that the sole question he was in-
terested in was the fact that he was classified as a super-
visor by the Respondent on the posted list of eligibles and
ineligibles. He never complained, until he protested to
Mutz the denial of his right to vote in the election on the
day of the election. He further testified that he attended
several union meetings after the eligibility list was posted
and likewise signed a union card. In this connection
Ultsch testified that he did not believe that Mutz knew he
had signed a union card and further stated that he was
discharged because he disobeyed instructions to leave the
casing room on the day of the election as directed by
Mutz.
Superintendent Leone credibly testified that On April
18 he told Ultsch, who had advised him that he had ac-
cepted a job with another firm , that he would talk to Mutz
and see what he could do about the matter . At that time
Ultsch told Leone that if he were given complete charge
of the casing room it would result in a more efficient
operation . Leone stated that he later conferred with Mutz
and thereafter told Ultsch he could only increase Ultsch's
wage by changing his classification to that of assistant
foreman which was done shortly thereafter.
On a later date , upon being reprimanded by Devlin
because of a faulty clock that had been returned for
repair , Ultsch stated that if he were placed in complete
charge , such a faulty clock would not have been returned
and the matter would not have occurred. According to
CHELSEA CLOCK COMPANY
Leone's credible testimony, it was made clear to Ultsch
that he was in complete charge of the casing room and his
classification was changed to assistant foreman on the
Respondent's records. In this connection he was
designated as assistant foreman on April 25, 1966. Since
Ultsch's discharge his functions have been performed by
both Mutz and Leone.
Leone's testimony was corroborated in part by Winnie
Reid, an employee of the Respondent's finishing room
who, on occasions, was assigned on a part-time basis to
work in the casing room, who credibly testified that
although Devlin was the general foreman over Ultsch, the
latter had charge of the casing room.
James Symonds credibly testified that he overheard a
discussion between Foreman Devlin and Ultsch concern-
ing the latter's recommendation of a raise for Symonds
and when Devlin objected, stating that Symonds did not
merit a raise, Ultsch told him that Mutz wanted the raise
approved and the raise was later approved. In this con-
nection, Symonds testified that he was aware that Devlin,
a general foreman, spent only a very limited time in the
casing room and only occasionally dropped in to see how
things were going. Symonds also relied on Ultsch for in-
structions as to how to perform his duties in the casing
room and Ultsch taught Symonds all he knew about his
work in the plant. He further testified that Ultsch on
another occasion stated that he would fill out a wage
review for an employee named Gregori, which would
bring about a wage increase for the employee concerned.
2. The discharge of Ultsch
On the day of the election Mutz came into the casing
room and spoke to Ultsch advising him to leave the
premises by 4 or 4:30 p.m. Ultsch responded, according
to the credited testimony of Symonds, stating that he was
sorry but he was staying, adding "I have got a right to
vote." Mutz thereupon turned away from Ultsch and said
"that is all I want to hear" and walked out of the casing
room.
Symonds testified that the election took place in the
casing room between 4:30 and 5:15 p.m. He further
testified that he heard Mutz ask Ultsch to leave the casing
room during the election hours because there was not
supposed to be any management representatives or ex-
ecutives within the vicinity of the polling place. In this
connection, Mutz denied having asked Ultsch to leave'
the plant for any purpose at the time of the election.
Ultsch's discharge occurred on September 2, 1966. At
that time he was called into Mutz' office. Present in addi-
tion to Mutz was Superintendent Leone. Leone opened
the discussion by asking Ultsch if Ultsch recalled Mutz'
statement at the August 4 supervisors meeting about not
violating any law and Ultsch answered in the affirmative.
Thereupon Leone asked Ultsch if he read the instructions
given all supervisors by Mutz to the effect that the
supervisors could, within the bounds of the law, "Spread
the gospel of the Company." Thereafter, Leone read from
a prepared document informing Ultsch that he was
discharged because he had violated the Respondent's in-
1 In view of my finding heremabove that Ultsch was a supervisor within
the meaning of the Act and not an employee, I find it unnecessary to con-
sider the Respondent's argument that the Union is estopped to assert that
Ultsch was not a supervisor by virtue of its agreement at the preelection
conference held at the Board's Regional Office that Ultsch was ineligible
to vote because of his supervisory status
643
structions. Mutz testified that he and Leone had decided
to discharge Ultsch only about a half hour before he was
called in, and later stated that they felt "Ultsch's termina-
tion was an unusual case," it wasn't just an ordinary ter-
mination because Ultsch had been with the Respondent
so very long and as he had violated the Company's rules
and instructions, they felt that his discharge had to be ef-
fectuated in a manner in which we thought was "the only
gentlemanly way to do it."
The General Counsel argues, in effect, that Ultsch, a
longtime employee, was not a supervisor within the
meaning of the Act but was a more experienced craft em-
ployee protected by the statute. Although the record
shows that Ultsch was a highly skilled and experienced
employee, it also reveals other indicia supporting the
Respondent's contention that Ultsch was a supervisor.
The fact that he made effective recommendations as to
wage increases for his subordinates and had the authority
effectively to recommend the discharge of employees
although he had not exercised such authority and the pre-
ponderance of evidence that he responsibly directed the
employees in the casing room, warrant a finding that he
was a supervisor within the meaning of the Act and was
not an employee who could receive the benefits of the
statute. I therefore find and conclude that Kenneth B.
Ultsch was a supervisor within the meaning of the Act
and on all dates material herein.3 I therefore further find
and conclude that the Respondent's discharge of Kenneth
B. Ultsch was not violative of Section 8(a)(3) of the Act.
C. Alleged Interference, Restraint, and Coercion
Helen Sullivan credibly testified that about a week
after the posting of the eligibility notice in the plant, Mutz
stopped by her bench and asked her if she ever heard of
any prounion talk,going on in the casing room where Ken-
neth Ultsch was in charge. She replied that she had never
heard Ultsch talking or anyone in the casing room in that
respect talking "pro-union."
On another occasion she was also asked by Foreman
Filadora if she had ever heard Victoria Costa talking
about the Union while she was at work, and Sullivan
replied in the negative. On a later occasion, Helen Sul-
livan testified that she had been asked by Filadora if she
had received an invitation to attend a meeting at
someone's house that night. She replied that she did not
know what he was talking about and Filadora told her
"don't kid around." She replied that she was not lying.
Filadora concluded by stating that the union meeting was
to be held at Helen Wellborn's house, an employee who
worked in his department.4
Ultsch also was at Mutz' office shortly after the August
4 supervisory meeting at which time Mutz told Ultsch if
the Union got into the plant "Chelsea Clock will still be
there, but I won't." In this connection, Mutz testified that
he had made a similar remark to the owner of a nearby
restaurant explaining that what he meant was that he
would sell his 50 percent interest in the Respondent if the
Union was victorious at the plant. I do not find the
foregoing remark in the context in which it was made to
" Helen Sullivan also testified that Mutz remarked in her presence that
he would get rid of Kenneth Ultsch by stating, euphemistically, even if he
had to castrate him Apart from my finding that Ultsch was a supervisor,
this conversation occurred the day after the election and as a consequence
of all the foregoing is not considered herein
310-541 0 - 70- 42
644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be coercive nor a violation of Section 8(a)(1) of the Act.
I likewise do not find Foreman Filadora's remark to
employee Helen Sullivan to the effect that he knew that
a union meeting would be held that evening at an em-
ployee's house was coercive in the surrounding circum-
stances. This finding is based upon the fact that the union
campaign was an intensive one. The 50 employees in the
plant were solicited and circulated widely and it was obvi-
ous that the officials themselves were well aware of the
organizational campaigns and what was going on, as
reflected in the record that the day prior to the election
the Respondent held a meeting of all its employees at
which time Superintendent Leone told them that Mutz
wanted to speak to them in the finishing room. At that
time Mutz pointed out that the election would be held the
next day and "the union guys are coming in here tomor-
row." He went on to discuss the quality of the clocks that
the Respondent manufactured, and inter alia, that if they
desired to talk to anyone, either King, the coowner of the
Respondent, Mutz, the other coowner, and Leone were
available, and if the employee had any problems to talk
over they should come to either of them to discuss their
problems. He concluded by stating that "I knew ... and
you people know there is a meeting tonight at the Moose
Club in Revere, you will get another talk . . . from them,
but lets keep together. We are only a small plant."
In the circumstances as described above, I do not find
that either Filadora's comments nor Mutz' comments, as
alleged by the General Counsel, created the impression
of surveillance. The Respondent had availed itself of op-
portunities to communicate its message to the employees
and had even urged its foremen and supervisory staff to
do so. In all the circumstances I cannot find that the re-
marks in question gave the impression of surveillance, or
were coercive.
However, I find and conclude that Mutz' questioning
of Helen Sullivan as to whether she had heard any pro-
union talk going on in the casing room constituted a viola-
tion of Section 8(a)(1), as well as Foreman Filadora's ask-
ing Sullivan if she had ever heard Costa talking about the
Union when she worked in the plant. I find and conclude
that the foregoing constituted illegal interrogation, and
was violative of Section 8)(a)(1)of the Act.
Ultsch testified that on the day of the election Mutz ap-
proached him in the casing room and told him to "take
off' at 4:30 p.m., adding, "go home, do anything you
want to do, but I don't want you here." Ultsch told Mutz
that he was staying for the election. As pointed out
hereinabove, Mutz denied telling Ultsch to leave the
plant.
The General Counsel alleges that Mutz' foregoing
warning to Ultsch constituted coercion and was intended
to prevent Ultsch from exercising his franchise. Apart
from my finding hereinabove that Ultsch was a super-
visor within the meaning of the statute, it is clear from the
testimony of Symonds that Mutz' remarks, reviewed in
full context, were made for the purpose of making certain
that no supervisory authorities or members of manage-
ment would be around at the time of the election which
was scheduled to be held in the casing room where Ultsch
was in charge. Consequently, I find no violation of the
statute resulting from Mutz' comments to Ultsch. In this
connection, Ultsch substantially corroborated Mutz'
testimony as to what transpired during their encounter.
In the circumstances set forth above, I am not per-
suaded that the General Counsel has sustained his burden
of proving by preponderance of the evidence that the
Respondent violated Section 8(a)(1) of the Act by
preventing Kenneth Ultsch from voting in the election, or
creating the impression of surveillance among its em-
ployees. I therefore shall recommend that these allega-
tions of the complaint be dismissed.
IV. THE OBJECTIONS TO THE ELECTION
In its objections the Respondent alleges that without its
knowledge Assistant Foreman Kenneth Ultsch actively
initiated the Union's organizing efforts, actively par-
ticipated therein as a union organizer, and actively sol-
icited employees on behalf of the Union. In addition, it al-
leges that Ultsch directed employees to attend the union
meeting on August 30, 1966, the night before the elec-
tion, provided transportation for two employees to the
meeting, and attended the union meeting in person.
Further, the Respondent objects that Ultsch voted sub-
ject to challenge in the election in order to communicate
to all employees his "total commitment to the Union's or-
ganizing attempt."
Coowner Mutz' testimony itself belies the accuracy of
the foregoing objection. Mutz testified that certain union
employees, on the day before the election, told him that
Ultsch had been invited to "go union." Certainly if
Ultsch in fact had actively initiated the union organizing
efforts and actively participated as a union organizer and
actively solicited employees in behalf of the Union it
would have been an unnecessary gesture of the union ad-
herents to invite him "to go union." Although Ultsch
made a statement in the presence of both Symonds and
Costa that it would be a "good thing" for the Union to get
into the plant, there is not a scintilla of evidence in the
record that he was active in behalf of the Union. It is ap-
parent from the record that Ultsch's sole concern was his
classification by the Respondent as a supervisor and he
attended the union meeting only after the Respondent
posted the eligibility list in the plant which contained his
name among others as an "assistant foreman," and that
he signed the union card only thereafter. Moreover, his
position is made clear by the fact that at the union meet-
ing he asked questions of the union officials, as did others
present. His questions related to his being listed by the
Respondent as a supervisor and therefore shows that that
was his primary concern. In this connection, Ultsch at-
tended only two union meetings, the one described above
and the one held the night of the election in celebration of
the union victory.
There likewise is no evidence in the record that Ultsch
either solicited or directed employees to attend any of the
union meetings. In this respect, Helen Sullivan credibly
testified that she came into the casing room, headed by
Ultsch, and asked Ultsch if he would give her a ride to the
union meeting that night. According to Sullivan, Alice
Barry also asked Ultsch about the same time to give her
a ride to the meeting. In this respect Barry testified that
Ultsch solicited her to ride with him. Symonds, who over-
heard both conversations, credibly testified that Ultsch
asked neither of the women to accompany him to the
meeting. In the circumstances, I do not credit Barry's
testimony that Ultsch solicited her to attend the union
meeting. I therefore find no merit in any of the foregoing
objections and shall recommend to the Regional Director
that they be dismissed.
I likewise find no merit in Respondent's final objection
that Ultsch voted in the election in order to communicate
to all employees his "total commitment to the Union's or-
ganizing attempt." As found hereinabove, it is clear that
Ultsch felt that he was a rank-and-file employee and was
entitled to vote and his sole concern in attending the first
CHELSEA CLOCK COMPANY
union meeting was to clarify his status and his casting of
a challenged ballot was in furtherance of his apparent be-
lief that he was entitled to vote, and for no other reason.
I therefore shall also recommend to the Regional
Director that all Respondent's objections be overruled in
their entirety and, as the Union obtained a majority of the
valid ballots cast in the election, that it be certified as the
collective-bargaining representative of the employees in
the stipulated unit.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The Respondent's activities as set forth in section 111,
above, occurring in connection with the operations of the
Respondent as set forth in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tends to lead to
labor disputes burdening and obstructing commerce and
the free flow thereof.
V1. THE REMEDY
Having found that the Respondent has engaged in u,r
fair labor practices violative of Section 8(a)(1) of the Act,
I shall recommend that it cease and desist therefrom and
take certain affirmative action designed to effectuate the
policies of the Act.
Also having found that the allegation of illegal dis-
crimination against Kenneth Ultsch violative of Section
8(a)(3) has not been sustained ., nor the allegations that
the Respondent denied Ultsch the right to vote, or
created the impression of surveillance in violation of Sec-
tion 8 (a)(1), I shall recommend that these remaining al-
legations be dismissed.
Finally, consistent with the terms of the order con-
solidating Case I-RC-9103 with the complaint , I shall
order that Case 1-RC-9103 be severed and remanded to
the Regional Director for Region 1 for further action in
accordance with Section 102.62(a) of the Board Rules
and Regulations . The Chardon Telephone Company, 139
NLRB 529.
CONCLUSIONS OF LAW
1. Respondent, Chelsea Clock Company, is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
2. The Union, District #38, International Association
of Machinists, Aerospace Workers, AFL-CIO, is a labor
organization within the meaning of the Act.
3. By unlawfully interrogating employees as to
whether certain employees were prounion and as to
whether the Union was discussed by certain employees
in the casing room, the Respondent has engaged in and is
engaging in unfair labor practices within the meaning of
Section 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegation of the complaint that Section 8(a)(3)
of the Act was violated by the Respondent by its
discharge of Kenneth B. Ultsch on September 2, 1966,
because of his support of the Union, as well as the allega-
tions of the complaint that Section 8(a)(1) of the Act was
violated by the Respondent through the alleged illegal
threat by coowner Mutz that he would sell his half in-
terest in the plant if the Union came in, and by Matz' al-
leged deprivation of the right to vote to Ultsch at the time
of the election, have not been sustained.
RECOMMENDED ORDER
645
Upon the basis of the foregoing findings of fact and
conclusions of law, it is recommended that the Respond-
ent, its officers , agents, successors , and assigns, shall
1. Cease and desist from:
(a) Unlawfully interrogating employees about their
union activities.
(b) In any like or related manner interfering with,
restraining , or coercing its employees in the excerise of
the right to self-organization, to form , join, or assist labor
organizations , to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection , or to refrain from any
or all such activities
2. Take the following affirmative action which is
designed to effectuate the policies of the Act:
(a) Post at its plant in Chelsea, Massachusetts , copies
of the attached notice marked "Appendix ."5 Copies of
said notice , to be furnished by the Regional Director for
Region 1 , after being duly signed by Respondent , shall be
posted immediately upon receipt thereof , and be main-
tained by it for 60 consecutive days thereafter , in con-
spicuous places, where notices to employees are
customarily posted . Respondent will take reasonable
steps to insure that such notices are not altered, defaced,
or covered by any other material.
(b) Notify the said Regional Director, in writing,
within 20 days from the receipt of this Decision, what
steps Respondent has taken to comply herewith.6
IT IS FURTHER RECOMMENDED that the allegations in
the complaint in Case 1-CA-5632 of discrimination
against Kenneth B . Ultsch as well as those of inter-
ference, restraint, and coercion , other than those found
above, be dismissed.
ORDER SEVERING AND REMANDING
CASE I-RC-9103
Pursuant to the terms of the Order Consolidating Cases
issued by the Regional Director of Region 1 in Case
I-RC-9103, it is ordered that Case 1-RC-9103 be, and
it hereby is, severed and remanded to the Regional
Director for Region I for further action in accordance
with Section 102.62(a) of the Board's Rules and Regula-
tions
5 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice In the further
event that the Board's Order is enforced by a decree of a United-States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order "
6 In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the Regional Director for
Region I , in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
646 DECISIONS OF NATIONAL
Relations Act, as amended , we hereby notify our em-
ployees that.
WE WILL NOT interrogate employees concerning
who was supporting the Union or whether em-
ployees in a certain department discussed the Union.
WE WILL NOT in any like or related manner inter-
fere with , restrain , or coerce employees in the exer-
cise of the rights to self-organization , to form labor
organizations , to join or assist District #38, Interna-
tional Association of Machinists and Aerospace
Workers, AFL-CIO, or any other labor organiza-
tion , to bargain collectively through representatives
of their own choosing, and to engage in any con-
certed activities for the purpose of collective bargain-
ing or other mutual aid or protection , or to refrain
from any or all activities.
All our employees are free to become or remain mem-
LABOR RELATIONS BOARD
bers of any labor organization.
CHELSEA CLOCK COMPANY
(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.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 20th floor,
John F. Kennedy Federal Building, Cambridge and New
Sudbury Streets, Boston , Massachusetts 02108,
Telephone 223-3300.