Dresser Industries, Inc.

National Labor Relations Board - Board Decisions

Aug 24, 1977

231 N.L.R.B. 591 (N.L.R.B. 1977)

DRESSER INDUSTRIES, INC.
Dresser Industries, Inc. and Operating Engineers
Local Union No. 3, AFL-CIO. Cases 20-CA-
11736 and 20-RC-13552
August 24, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING AND MEMBERS
PENELLO AND MURPHY
On April 20, 1977, Administrative Law Judge
Richard J. Boyce issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the Charging Party
and the General Counsel filed briefs in support of the
Administrative Law Judge Judge's Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,l and conclusions 2 of the Administrative Law
Judge and to adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge in Case
20-CA-11736 and hereby orders that the Respon-
dent, Dresser Industries, Inc., Battle Mountain,
Nevada, its officers, agents, successors, and assigns,
shall take the action set forth in the said recommend-
ed Order.
IT IS FURTHER ORDERED that the election held on
July 22, 1976, in Case 20-RC-13552 be, and it
hereby is, set aside and that a new election be
conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
The Respondent contends that Mine Foreman Johnson's conversation
with employee Nichols on July 15. during the critical period, had "no nexus
with union activity" and was an "isolated incident." and even if found to be
unlawful is insufficient to warrant setting aside the July 22 election which
the Union lost by a vote of 20 to 21. We disagree. According to Nichols'
credited testimony. Johnson approached Nichols and said that Nichols was
doing pretty good and that he (Johnson) was going to talk to Seldin about
getting Nichols a raise. When Nichols indicated that he approved of this.
Johnson then asked him how he felt about the Union. However, it was
Nichols who had been called aside by Mine Superintendent Nay on May 7
inquiring whether there was to be a union meeting, an inquiry found by the
Administrative Law Judge to be an 8(a)(1) violation. We agree with the
Administrative Law Judge that the July 15 conversation was indeed
unlawful in that it involved an unlawful promise of benefit to as well as
additional unlawful interrogation of Nichols. Moreover, this conversation
occurred against a background of earlier widespread threats, interrogations.
231 NLRB No. 97
impression of surveillance, and solicitation of grievances, the latter
occurring shortly after the first interrogation of Nichols, as did the wage
raises to nine specific employees on May 10. As the Board has said, the rule
in the Ideal Electric and Manufacturing Company, 134 NLRB 1275 (1961),
does not preclude prepetition conduct being considered insofar as it lends
meaning and dimension to related postpetition conduct, or assists in
evaluating it. See Stevenson Equipment Company, 174 NLRB 865, fn. I
(1969); Warren W. Parke, d/b/a Parke Coal Company, 219 NLRB 546, 547
(1975). Thus, it is not appropriate to view the July 15 promise to Nichols as
"isolated" simply because it alone occurred in the postpetition period. In
view of the close vote and the record as a whole, a promise of that sort
warrants invalidating the election. See also Hardy-Herpolsheimer Division of
Allied Stores, et al., 173 NLRB 1109, 1110 (1968), and Darby Cadillac, Inc.,
169 NLRB 315, 318 (1968), where the Board assessed impact partly on the
basis of the closeness of the election.
The Respondent has also excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge's resolutions with respect to
credibility unless 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.
2 Member Murphy would have found the wage increases resulting from
the reclassification of certain employees lawful but for the Respondent's
unlawful conduct just prior to and during the May 8 meeting which, in her
view, warrants a finding that said increases were motivated by antiunion
consideration. In so finding, Member Murphy notes that the Respondent
has in the past granted similar increases to individuals, but only after these
particular individuals complained to the Respondent about their status.
With respect to the present wage increases, however, the Respondent did
not wait for specific complaints. Rather, on May 8 it solicited employee
complaints and promptly instituted changes in the wage and classification
schedule, which resulted in wage increases for runine employees. The
Respondent also agreed to look into the possibility of a first aid program for
employees and agreed to remove some unsafe equipment from the work
area. All these concessions to the employees' complaints were made just I
day after the Respondent became aware of the union activities and after it
solicited the grievances and interrogated four of its employees at their
homes the night before the May 8 meeting. In light of the above, Member
Murphy agrees with her colleagues' adoption of the Administrative Law
Judge's finding that the wage increases granted by the Respondent to these
nine employees were unlawfully motivated and in violation of Sec. 8(aX 1) of
the Act.
DECISION AND REPORT ON POSTELECTION
OBJECTIONS
1. STATEMENT OF THE CASE
RICHARD J. BOYCE, Administrative Law Judge: This
consolidated matter was heard before me in Reno, Nevada,
on March 10, 1977.
The charge in Case 20-CA-11736 was filed on July 26
and amended on September 29, 1976, by Operating
Engineers Local Union No. 3, AFL-CIO (Union). The
complaint issued September 30, 1976, was amended on
February 23, 1977, and during the hearing, and alleges
violations by Dresser Industries, Inc. (Respondent) of
Section 8(aX)(1) of the National Labor Relations Act, as
amended.
An election in Case 20-RC-13552 was held on July 22,
1976, among the production and maintenance employees
at Respondent's mine and mill. It derived from a petition
filed by the Union on May 18, 1976, and a Stipulation for
Certification Upon Consent Election approved by the
Regional Director for Region 20 on June 18. The election
tally was 21 votes for and 22 against the Union, with I
challenged ballot.
The Union filed objections to the conduct of the election
on July 24, 1976, and, on October 22, the Regional
Director issued a report on objections recommending to
591
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Board that three of the four objections be overruled
and that the remaining objection, along with possible
misconduct by Respondent not specified in the objections,
be considered jointly with the matters raised by the above
complaint. The Board, by an order dated November 11
and revised on December 3, adopted the Regional
Director's' recommendations, after which the Acting
Regional Director, on December 14, issued an order
consolidating cases and notice of hearing providing that
the objections and unfair labor practice issues be "consoli-
dated for purposes of hearing before a duly designated
Administrative Law Judge."
The parties were permitted during the hearing to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Posttrial briefs were filed for
the General Counsel, for Respondent, and for the Union.
11. JURISDICTION
Respondent is a Delaware corporation engaged in and
around Battle Mountain, Nevada, in the mining and
milling of barite. It annually ships products valued in
excess of $50,000 from Nevada directly to customers in
other States. Respondent is an employer engaged in and
affecting commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
III. LABOR ORGANIZATION
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
IV. ISSUES
The complaint as finally amended alleges six categories
of misconduct by Respondent at various times in May and
July 1976:
(a) Interrogation concerning the employees' union
activities and sympathies.
(b) Creating an impression that the employees' union
activities were under surveillance.
(c) Threatening mine closure should the employees opt
for union representation.
(d) Soliciting employee grievances to lessen enthusiasm
for the Union.
(e) Threatening more layoffs and loss of benefits in the
event of union representation.
(f) Granting wage increases to weaken support of the
Union.
The answer denies any wrongdoing.
The objections matter raises the further question whether
misconduct by Respondent during the pendency of the
election interfered with free voter choice, requiring that the
election be rerun.
V. THE ALLEGED UNFAIR LABOR PRACTICES
A. Facts
In March and April 1976, Respondent's headquarters
organization in Houston, Texas, conducted a wage and
I About three-fourths of Respondent's employees work in the mine, one-
fourth in the mill.
classification review concerning the employees at the Battle
Mountain mine and mill. This resulted in the posting of a
new wage/classification schedule at the mine and mill on
Monday, May 3, to become effective that day. The new
schedule triggered widespread employee dissatisfaction,
which translated into an organizational effort on behalf of
the Union.
On Tuesday, May 4, one of the mine employees, Mervil
Thompson, told Plant Manager Marvin Seldin that he was
"unhappy" with the raise he was getting under the new
schedule and that "there was a lot of unhappy people at the
mine." The next day, May 5, obtaining verification from
James Johnson, general mine foreman, that Thompson's
observations were accurate, Seldin advised Johnson that he
wished to meet with the employees at the mine on
Saturday, May 8, "to explain the changes in the classifica-
tions and wages and so forth." Saturday was selected,
according to Seldin, because Saturdays at the mine are
devoted more to maintenance than production, meaning
that a meeting then would cause less disruption.'
Management apparently learned of the employees'
interest in unionization on Friday, May 7. Mine Superin-
tendent Robert Nay called Bobby Nichols away from his
work that day to ask if there was going to be a union
meeting, adding that he would have to tell Seldin about it2;
and both Nay and Johnson informed Seldin on May 7 that
there was union talk among the employees. Seldin's
immediate response was twofold. He ordered Nay, who
was unpopular with the employees, to resign; and he and
Johnson called on four of the employees-Calvin Chisum,
Eugene Masterson, William Steen, and Mervil Thomp-
son-at their homes that evening. Explaining why these
four were chosen, Seldin testified:
Well, Steen had been a lead man and one of our key
employees. I figured we could talk to him. Calvin
Chisum and I-I always thought of him as a reasonable
person. I talked to him. I had been friends of Mervil
Thompson for several years, personal friends. Master-
son-we had good relations there. Seemed like logical
people to talk to.
Seldin asked Steen what the employees' complaints were
and who was making them. Steen described the displeasure
over the wage/classification schedule, stating that Nay was
an added irritant; and Seldin countered by asking what the
employees expected to gain from the Union. The record
does not reveal what happened at the homes of the other
three, except that Seldin and Johnson were told by
Thompson that there was going to be a union organization-
al meeting the next day, Saturday, May 8, after work.
On the morning of May 8, Seldin presided over an
employee meeting at the mine in accordance with his
previously expressed wish to Johnson. He opened the
meeting by saying there had been "a lot of complaints
about the classifications and wages" and that he wanted
"to get it straightened out." Thus encouraged, various of
the employees complained that their duties did not
correspond with their classifications, giving particulars,
2 This finding is based upon Nichols' uncontroverted testimony. Nay did
not testify.
592
DRESSER INDUSTRIES, INC.
and that they consequently were being underpaid. There
also were complaints that some of the equipment was
unsafe, and requests that a first aid training program be
established. Seldin responded that he would create some
new job classifications; that a certain loader identified as
unsafe would be removed from use until repaired; and that
he would check with Houston about a first aid program.
Seldin held a second meeting, similar to this, with the
swing-shift employees that same afternoon. There is no
evidence that the union situation was mentioned at either
meeting.
After the day shift on May 8, about 15 of the employees
met at the home of Lenny Fagg, a district representative of
the Union. 3 The employees talked about their job dissatis-
factions, focusing mainly on classifications and wages, and
Fagg described union benefits and ways and means of
obtaining union representation. Some of the employees
signed union authorization cards during the meeting.
The night of May 8, Johnson discussed the union
situation with certain of the employees from time to time as
they shuttled between two bar/casinos in Battle Moun-
tain-the Owl Club ,and the Nevada Club. Early in the
evening, at the Owl Club, Johnson told Roger Stocking, an
electrician in the mine, that he knew "there had been a
card signing." 4 Later, at the Nevada Club, Johnson
announced to Stocking that he knew there had been a
union meeting and that Stocking and about 13 others had
signed cards. Johnson in addition asked Stocking, at some
time or other during their disjointed exchange, who had
started "the union thing"; opined that unions "were bad in
general," except "maybe construction unions weren't too
bad"; and declared that Respondent would close down if
the Union got in. 5
That same night, also at the Nevada Club, Johnson told
another employee, George Quintana, that he knew who
had attended the union meeting and signed cards, that
Romero Cedillo had told him.6
On Sunday, May 9, Seldin telephoned John Middleton,
labor relations manager for Respondent's mineral and
manufacturing group, at Middleton's home in Houston.
Seldin reported "quite a bit of unhappiness with regard to
the increase in the [wage] rate range and the way we
implemented them," as Middleton recalled, and asked for
clearance to effect the changes he had discussed with the
employees the day before. Middleton replied that "it all
rs Although the record leaves some doubt whether the Fagg meeting was
May 7 or 8. the weight of evidence in combination with a stipulation of
counsel compels the finding that it was May 8.
Stocking is credited that Johnson made this remark. Johnson's denial
notwithstanding. Stocking's demeanor and the precision of his testimony
generally were more convincing than Johnson's.
I Stocking is credited that Johnson made these several comments.
Johnson admittedly told Stocking that he had heard "some rumbles" about
the union meeting. Otherwise, except for denying that he raised the prospect
of closure. Johnson provided few details of his comments to Stocking. For
the reasons stated in the preceding footnote. Stocking is credited to the
extent that his testimony conflicts with Johnson's.
" Although rendering this testimony with great reluctance, and only after
being led and having his memory refreshed by counsel for the General
Counsel. Quintana is credited. Johnson not only did not explicitly refute it,
but admitted that he mentioned to Quintana that he had heard "some
rumbles" about the union meeting, and further admitted that Cedillo indeed
had told him "who all went to the lunion ] meeting." William Steen credibly
testified. moreover, that he overheard Cedillo tell Johnson that Steen.
Quintana. and Larrx Marshall had signed cards.
sounded reasonable" to him, but that he wanted to check
with his superiors on Monday and would let Seldin know.
Seldin testified that he "might have" told Middleton about
the union activity, as well. Middleton testified that he had
no recollection of that.
Seldin and Middleton spoke again on Monday, May 10,
Middleton granting Seldin authority, with slight modifica-
tion concerning the names of some of the new classifica-
tions, to implement his proposals. This resulted in an
increase in classifications from II to 17, with a number of
the employees being reclassified accordingly, and in wage
increases-generally of 20 cents per hour-for "most of the
employees." The changes were made retroactive to May 3,
in lieu of those contained in the schedule posted on that
date, and were reflected in the paychecks that issued on
May 14. The employees were told of them on May 10, at a
meeting called by Seldin and by posted notice.'
A few days later, on an unspecified date in mid-May,
Johnson and Ron Levinson, a mine helper, had a
conversation while Levinson was "running samples" in
Respondent's laboratory. Johnson asked Levinson if he
thought the Union would "make it" at the mine. To
Levinson's affirmative answer, Johnson said that, should
the Union get in, Respondent would close the mine in the
winter, causing people to be laid off; would no longer
provide transportation between the mill and the mine for
the mine employees; and would cease paying the mine
employees while in transit between the mill and the mine.8
At that time, the mine employees clocked in at the mill
each day, then were driven the 36 miles to the mine in crew
cabs.
Next in the sequence were the Union's filing the petition
for election on May 18 and the Regional Director's
approving the Stipulation for Certification Upon Consent
Election on June 18.
The final piece of questionable conduct by Respondent
occurred on an unspecified date in mid-July, shortly before
the election. Johnson approached Bobby Nichols on the
job, and said: "Looks like you're doing pretty good ...
I'm going to talk to Marvin [Seldin] about getting you a
raise." Nichols replied that he was for that, whereupon
Johnson asked how he "felt about the Union." Nichols
I In an apparently unrelated transaction, Jose Zubizarreta was promoted
from helper to jig operator as of May 24, receiving a pay increase from 54.80
to $5.40. He had been recommended for the promotion on May 18 by
Johnson, who testified that "there was some people going on vacation and
we had to have somebody in that capacity." Johnson continued that
Zubizarreta "was the next qualified person in line." Previously, on Apnl 19.
1976, Zubizarreta had been promoted from laborer to helper, getting a raise
from $4 to $4.40; and had received another raise, from $4.40 to $4.80,
effective May 3. The General Counsel does not contend that the promotion
of May 24 was improper. The Union. however, argues that it was, and thus a
ground for setting the election aside.
s Levinson's testimony concerning this conversation is credited. Johnson
denied any recall of it, further denying that he ever said the mine would be
closed if the Union got in. that company-provided transportation would be
withdrawn, or that more layoffs would result. Levinson's witness-stand
demeanor inspired greater trust than Johnson's, and the detailed nature of
his recital carried more conviction than Johnson's generally noncommuni-
cative performance.
593
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answered that "the men had quit bitching so much . . .
and kind of cooled down," and the conversation was over.9
The election, as previously noted, was on July 22.
B. Conclusions
I. Interrogations
Paragraphs 6(a) and 7 of the complaint allege that, on or
about May 7, Mine Superintendent Nay "interrogated an
employee concerning his union activities and the union
activities of other employees," thereby violating Section
8(a)(1). As previously found, Nay called Bobby Nichols
away from his work on May 7 to ask if there was going to
be a union meeting, adding that he would have to tell Plant
Manager Seldin about it. It is concluded that Nay, by this
conduct, violated Section 8(a)(l) as alleged.
Paragraphs 6(b) and 7 of the complaint allege that, on or
about May 8, Mine Foreman Johnson likewise interrogat-
ed an employee in violation of Section 8(a)(1). It having
been found that, during their conversations at the Nevada
Club the night of May 8, Johnson asked Roger Stocking
who had started "the union thing," it is concluded that he
violated Section 8(a)(1) as alleged.
Paragraphs 6(e) and 7 of the complaint allege that, on or
about May 8, Johnson and Seldin "interrogated an
employee concerning his union sympathies and the union
sympathies of other employees," thereby violating Section
8(a)(1). As found above, upon learning of the employees'
interest in unionizing, Seldin and Johnson called on four
employees at their homes on the evening of May 7, with
Seldin asking at least one of the employees, William Steen,
what the employees' complaints were and who was making
them, and what the employees expected to gain from the
Union. It is concluded that Seldin thus violated Section
8(a)( I) as alleged.
Paragraphs 6(g) and 7 of the complaint allege that, on or
about May 15 and about July 15, Johnson "interrogated an
employee concerning his union sympathies," violating
Section 8(a)(1) in each instance. Regarding the May
allegation, it has been found that Johnson asked Ron
Levinson, on an unspecified date in mid-May, if he thought
the Union would "make it" in the mine. It is concluded,
particularly since Johnson asked this question as a preface
for other remarks determined below to have been unlawful-
ly threatening, that this interrogation violated Section
8(a)(l) as alleged.
Concerning the alleged July interrogation, it has been
found that, on an unspecified date shortly before the
election, Johnson told Bobby Nichols that he was "going to
talk to Marvin about getting you a raise," then asked
Nichols how he "felt about the Union." It is concluded that
this interrogation, juxtaposed with talk of a raise, was
pointed rather than innocent, violating Section 8(a)(1) as
alleged.
9 This is Nichols' credited version of the conversation. Johnson recalled
it somewhat differently, testifying that Nichols started it by complaining
that he had not received a raise he thought was due, after which Johnson
said he would "look into it." Johnson continued: "I might have asked how
2. Impression of surveillance
Paragraphs 6(c) and 7 of the complaint allege that, on or
about May 8, Johnson "attempted to create an impression
of surveillance by telling an employee that Johnson knew
who had signed union cards," thereby violating Section
8(a)(l).
As earlier found, Johnson told Roger Stocking, on the
night of May 8 at the Owl Club, that he knew "there had
been a card signing," and stated to Stocking later that same
night, at the Nevada Club, that he knew there had been a
union meeting and that Stocking and about 13 others had
signed cards. Also at the Nevada Club that night, as found
above, Johnson told George Quintana that he knew who
had attended the union meeting and signed cards.
It is concluded that Johnson, by these remarks to
Stocking and Quintana, violated Section 8(a)(1) as alleged.
3. Threat of closure
Paragraphs 6(d) and 7 of the complaint allege that, on or
about May 8, Johnson "threatened an employee that
Respondent would close its mine if the employees selected
the Union as their collective bargaining representative,"
thus violating Section 8(a)(1). During their exchange at the
Nevada Club the night of May 8, as previously found,
Johnson told Stocking that Respondent would close down
if the Union got in.
It is concluded that this comment violated Section 8(a)(1)
as alleged.
4. Solicitation of grievances
Paragraphs 6(f) and 7 of the complaint allege that, on or
about May 10, Seldin "solicited grievances concerning
working conditions from its [Respondent's] employees in
order to discourage them from supporting the Union,"
thereby violating Section 8(aX 1).
As found above, after learning of the employees'
displeasure with the new schedule posted May 3, Seldin
told Johnson on May 5 that he wished to meet with the
employees on May 8 "to explain the changes in the
classifications and wages and so forth." Subsequently, on
May 7, Seldin learned of the employees' interest in
unionization, which prompted him to call for Nay's
immediate resignation and, with Johnson, to visit four of
the employees at their homes that evening to look further
into the situation. In the employee meetings on May 8,
Seldin went well beyond the original purpose of simply
explaining the changes in classifications and wages. He
instead invited the employees to air their complaints with
the inducement that he wished to get the problems
"straightened out," and, after listening to them, announced
that he would make major revisions in the schedule that
had been posted.
It is concluded that, while the May 8 meetings as first
conceived had no antiunion purport, their emphasis as
conducted upon hearing out and assuaging employee
the votes would come out, or something." Johnson, as previously indicated,
was not an impressive witness. Nichols seemingly was the more capable and
conscientious of the two.
594
DRESSER INDUSTRIES, INC.
grievances was influenced by the same thing that brought
in the demand for Nay's resignation and the visits to the
four homes the night before-namely, the union threat.
Respondent consequently violated Section 8(aXl) as
alleged.
5. Threat of layoffs and loss of benefits
Paragraphs 6(h) and 7 of the complaint allege that, on or
about May 15, Johnson "threatened an employee that
Respondent would institute more frequent layoffs and
deprive employees of benefits if the employees selected the
Union as their collective bargaining representative," thus
violating Section 8(a)(l).
As previously found, Johnson told Ron Levinson on an
unspecified date in mid-May that, should the Union get in,
Respondent would close the mine in the winter, causing
people to be laid off; would no longer provide transporta-
tion for the mine employees between the mill and the mine;
and would cease paying the mine employees while in
transit between the mill and the mine.
It is concluded that these remarks violated Section
8(a)(l) as alleged.
6. Wage increase
Paragraphs 6(j) and 7 of the complaint allege that, on or
about May 28, "Respondent granted wage increases to its
employees . .. in order to discourage them from support-
ing the Union," thereby violating Section 8(aXI).10
As found above, Seldin's May 8 meetings with the
employees led to the creation of six new classifications,
with a number of employees receiving classification
adjustments and wage increases as a result. The changes
were retroactive to May 3, and were reflected in paychecks
issued on May 14.
The logic underlying the earlier conclusion that the
emphasis of the May 8 meetings "upon hearing out and
assuaging employee grievances" was influenced by anti-
union considerations compels the further conclusion that
the wage adjustments flowing from those meetings also
violated Section 8(a)(l) as alleged."I
CONCLUSIONS OF LAW
1. By interrogating its employees concerning the em-
ployees' union activities and sympathies; by creating an
impression that its employees' union activities are under
surveillance; by soliciting employee grievances to discour-
age support of the Union; by threatening, should the
"I Counsel for the General Counsel stated on the record, based upon the
evidence as adduced, that the date set forth in par. 6(j) of the complaint
should be May 10 rather than May 28.
" Inasmuch as the impetus for the raises in question came from Seldin,
in answer to the union threat, it is of no moment whether Houston
headquarters, in granting the authonty he requested, knew of or was
motivated by the employees' union activities. There consequently is no need
to pass on Middleton's dubious testimony that Seldin made no mention of
those activities in their May 9 telephone conversation. Allegheny Pepsi-Cola
Bottling Companti v. N.L.R.B., 312 F.2d 529, 531 (C.A. 3, 1%962) Price
Brothers Compans. 175 NLRB 277, 278, fn. 5 (1%9); Sears, Roebuck andCo..
172 NLRB 2222, fn. I (1968); Federal Tool Corporation, 130 NLRB 210, 221
(1961).
12 The Union's contention is rejected that Jose Zubizarreta's promotion
of May 24, referred to above in fn. 7, was improper and a further ground for
employees choose to be represented by the Union, that it
would close the mine, that it would close the mine in the
winter, that it would no longer provide transportation
between the mill and the mine, and that it would cease
paying the mine employees while in transit between the
mill and the mine; and by granting wage increases to
discourage support of the Union, all as found herein,
Respondent in each instance violated Section 8(a)(1) of the
Act.
2. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
THE OmJECTONS
Only one instance of misconduct occurred during the
"critical period" after the May 18 filing of the election
petition, that being Johnson's July interrogation of Bobby
Nichols. Although this interrogation was somewhat isolat-
ed, Johnson infused it with heavy implications by coupling
it with talk of a raise for Nichols. Moreover, the incident
took place shortly before the election, and the election
outcome was extremely close. It is concluded in these
circumstances that this misconduct is sufficient to overturn
the election. Compare Stouffer Restaurant & Inn Corpora-
tion, 213 NLRB 799, 800(1974).12
Upon the foregoing findings of fact, conclusions of law,
and the entire record,i3 I issue the following recommend-
ed:
ORDER ' 4
The Respondent, Dresser Industries, Inc., Battle Moun-
tain, Nevada, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Interrogating its employees concerning the employ-
ees' union activities and sympathies; creating an impres-
sion that its employees' union activities are under surveil-
lance; soliciting employee grievances to discourage support
of the Union; threatening, should the employees choose to
be represented by the Union, that it would close the mine,
that it would close the mine in the winter, that it would no
longer provide transportation between the mill and the
mine, and that it would cease paying the mine employees
while in transit between the mill and the mine; and
granting wage increases to discourage support of the
Union.s5
setting the election aside. The weight of record evidence fails to support such
a conclusion and, as previously mentioned, this promotion is not alleged as
an unfair labor practice.
13 Certain errors in the transcript have been noted and are hereby
corrected.
14 All outstanding motions inconsistent with this recommended Order
hereby are denied. 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.
1' Nothing in this Order is to be construed as requiring Respondent to
retract raises now in effect.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under the Act.
2. Take this affirmative action:
(a) Post at its mine and mill in Battle Mountain, Nevada,
the attached notice marked "Appendix." ' 6 Copies of said
notice, on forms provided by the Regional Director for
Region 20, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the election of July 22,
1976, be set aside and a new election directed.
'6 In the event 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The hearing held in Reno, Nevada, on May 10, 1977, in
which we participated and had a chance to give evidence,
resulted in a decision that we had committed certain unfair
labor practices in violation of Section 8(a)(1) of the
National Labor Relations Act, and this notice is posted
pursuant to that decision.
The National Labor Relations Act gives all employees
the following rights:
To organize themselves
To form, join, or support unions
To bargain as a group through a representative
they choose
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all such activities.
In recognition of these rights, we hereby notify our
employees that:
WE WILL NOT interrogate our employees concerning
the employees' union activities and sympathies.
WE WILL NOT create an impression that our employ-
ees' union activities are under surveillance.
WE WILL NOT solicit employee grievances to discour-
age employee support of a union.
WE WILL NOT threaten, should our employees choose
to be represented by a union, that we will close the
mine, that we will close the mine in the winter, that we
will no longer provide transportation between the mill
and the mine, or that we will cease paying our mine
employees while in transit between the mill and the
mine.
WE WILL NOT grant wage increases to discourage
employee support of a union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under the Act.
DRESSER INDUSTRIES, INC.
596