Intercontinental Manufacturing Co., Inc.

National Labor Relations Board - Board Decisions

Oct 13, 1967

167 N.L.R.B. 769 (N.L.R.B. 1967)

INTERNATIONAL MFG CO., INC. 769
Intercontinental Manufacturing Company, Inc. and
International Association of Machinists and
Aerospace Workers, AFL-CIO, Petitioner. Case
16-RC-4564
October 13, 1967
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
FANNING AND BROWN
Pursuant to a Stipulation for Certification upon
Consent Election executed on March 6, 1967, an
election by secret ballot was conducted on March
15, 1967, under the direction and supervision of the
Regional Director for Region 16 among the em-
ployees in the agreed-upon unit. At the conclusion
of the election, the parties were furnished with a
tally of ballots which showed that of approximately
730 eligible voters, 657 cast valid ballots which 272
were for, and 382 against, the Petitioner. The three
challenged ballots were not sufficient in number to
affect the results of the election. Thereafter, the
Petitioner filed timely objections to conduct affect-
ing the results of the election.
In accordance with National Labor Relations
Board Rules and Regulations, the Regional
Director conducted an investigation and on May
18, 1967, issued and duly served upon the parties
his Report on Objections, in which he recom-
mended that Objections 3 and 5 be overruled and,
since the investigation indicated a conflict in the
evidence relating to Objections 1, 2, 4, 6, 7, 8, and
9, that a hearing be held for the purpose of receiving
evidence on these objections. There were no excep-
tions to the Regional Director's Report, and on
June 5, 1967, the National Labor Relations Board
ordered a hearing for the purpose of receiving
evidence in connection with these objections. It
further ordered that the Hearing Officer prepare
and cause to be served upon the parties a report
containing resolutions of the credibility of wit-
nesses, findings of fact, and recommendations to
the Board as to the disposition of said issues.
Pursuant to the Board's Order, a hearing was
held at Dallas, Texas, on June 14, 15, and 16, 1967,
before Hearing Officer Wayne L. Wright. All
parties participated in the hearing and were given
full opportunity to examine and cross-examine wit-
nesses, and to introduce evidence bearing on the is-
sues.
On July 11, 1967, the Hearing Officer issued and
served upon the parties his Report on Objections,
in which he made findings of fact, resolutions of
credibility, and recommendations with respect to
such objections. The Hearing Officer recom-
mended that the Petitioner's objections be over-
ruled in their entirety and that the results of the
election held on March 15, 1967, be certified by the
Board. The Petitioner filed timely exceptions to the
Hearing Officer's Report and recommendations
with respect to Objections 1, 4, 7, 8, and 9.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the Board has
delegated its powers in connection with this case to
a three-member panel.
Upon the entire record in this case, the Board
finds:
1. The Employer is engaged in commerce within
the meaning of the Act and it will effectuate the pur-
poses of the Act to assert jurisdiction herein.
2. The Petitioner is a labor organization claiming
to represent certain employees of the Employer.
3. A question affecting commerce exists con-
cerning the representation of the employees of the
Employer within the meaning of Sections- 9(c)(1)
and 2(6) and (7) of the Act.
-4. The parties stipulated, and we find, that the
following employees constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act:
All production and maintenance employees em-
ployed by the Employer at its Garland, Texas,
establishment, but excluding office clerical em-
ployees, professional and technical employees, and
all supervisors, guards, and watchmen as defined in
the Act.
5. The Board has reviewed the Hearing Officer's
rulings made at the hearing and finds that no preju-
dicial error was committed. The rulings are hereby
affirmed. The Board has considered the Hearing
Officer's Report, the Petitioner's exceptions
thereto, and the entire record in the case, and
hereby adopts the Hearing Officer's findings, and
resolutions of credibility. His recommendations,
however, are adopted only to the extent consistent
herewith. Unlike the Hearing Officer, we find merit
in Petitioner's Objections 1, 4, 7, 8, and 9, for the
reasons hereafter indicated, and we will order that
the election conducted on March 15, 1967, be set
aside and a new election be held.
In Objections 1, 7, 8, and 9, Petitioner alleges in-
terrogation of employees concerning their union
support, Employer threats of loss of benefits, and
loss of employment if the Union came in, and inter-
rogation of employees about wearing various union
insignia. The Hearing Officer found, inter aiia, that:
a. About 1 week before the election, Supervisor
McCullen asked employees Lee and Tennon how
they intended to vote. McCullen then advised them
that although it was their privilege to vote as they
wanted, he wanted them to vote "no." McCullen
also told Lee that if the Union came in he would not
be able to remove Lee from the normally assigned
duties to permit him to drive into town on delive-
ries. McCullen also told approached the work sta-
tion of former employee Connelly and told Con-
167 NLRB No. 105
770 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
nelly that he felt Connelly should vote against the
Union as it would not help the employees. McCul-
len added that the Union would make the job harder
and the employees would be watched more closely
and would have to work harder than before. I
b. On March 14, 1 day before the election, Em-
ployer's Secretary Levinson asked employees Nash
and Martinez why they were wearing the union in-
signia. Levinson told Nash that as long as he wore
the insignia it was "like a kick in the teeth or a slap
in the face." On March 15, the day of the election,
Secretary Levinson told Nash and Martinez that
the Company had discussed a pension plan for em-
ployees, but "when the Union stuff came up it just
knocked it on the head." Levinson also told them
that "the way it is out here now if work gets slow in
one department we can move a man to another, but
if the Union was in here we would have to send him
home." This statement was overheard by employee
Hensley. Levinson returned at 2:30 p.m. shortly be-
fore the election and remarked to Nash and Mar-
tinez, "I see you are still wearing that stuff" and "if
you don't do me a favor I can't do you one." Levin-
son also stated that as long as the employees were
wearing the union insignia they were his enemies,
but that if they would take it off and say they were
in favor of the Company and shake his hand, he
would believe them. Both employees then removed
their union insignia.
The Hearing Officer observed that "there were
two supervisors who made statements which could
have had a restraining or coercive effect on six em-
ployees, out of a total employee complement of ap-
proximately 730 eligible voters, and I feel this point
to be most relevant," particularly in view of the al-
leged existence of certain friendly relationships.
However, the restraining effect of coercive conduct
is not limited to the employees directly involved.
Rather, the Board and courts have long recognized
that employer interrogation and threats concerning
union activity, particularly in an industrial plant and
during a preelection campaign, are likely to receive
prompt and wide circulation.2 Thus, to evaluate
properly the probable effect of conduct which is
coercive in nature, the number of instances of inter-
ference, or the number of employees directly in-
volved, cannot serve as determinative factors.3
Accordingly, the Board has determined that the
controlling factor is whether the conduct involved
in each case reasonably tends to interfere with a
free and uncoerced choice by the employees. While
it is impossible to measure the effect of interference
upon the exercise of their right of franchise, either
on the employees directly concerned or on other
employees who might have learned of the inter-
ference, it is sufficient that, as here, the Employer
by his conduct has created a situation which in-
habits a free choice by the employees.
Nor do we, unlike the Hearing Officer, believe
that Levinson's request of Lee and Martinez to
remove their union insignia was any less coercive
because the parties were on a "friendly basis." The
Hearing Officer refers to, but does not distinguish,
Mallory Plastics' where the Board found a
foreman's request to remove union insignia, made
"as a friend, not as a foreman," was coercive.
Moreover, here, Levinson stated that as long as the
employees wore the insignia they were his "ene-
mies," and told Nash that if he could not do him a
favor, obviously referring to removal of the insignia,
Levinson could not do anything for Nash.
Upon all the circumstances, we find that the Em-
ployer's threats and interrogations require setting
aside the election. Accordingly, we shall sustain the
Petitioner's Objections 1, 7, 8, and 9.
Petitioner alleges in Objection 4 that the Em-
ployer kept the voting under surveillance. The
Hearing Officer found that Supervisors Hunt and
Yancey spent 10 to 15 minutes on the afternoon of
the election in the vicinity of the voting line. Secre-
tary Levinson was near the polling place at the time
of the election talking to employees standing in line
to vote. The Board agent conducting the election
found it necessary to ask Levinson to leave. While
there is no evidence that Levinson was engaged in
active electioneering, it is significant that this same
Levinson had engaged in interrogations and threats
up to and including the very day of the election.
Under these circumstances, and in view of the fact
that Levinson was a very high ranking officer of the
Employer, and that he not only stood and observed
the polling line but engaged in conversation with
various employees in line to vote, we find that the
presence of these officials in the voting area tended
to interfere with the employees' free choice. Ac-
cordingly, we shall sustain the Petitioner's Objec-
tion 4.
I In addition to the above cited incidents , there were similar threats
made by Supervisors Clark and Hunt which were not considered by the
Hearing Officer because they fell outside the critical period for conduct
affecting the results of an election We agree with the Hearing Officer that
this latter conduct cannot serve as a basis for setting aside the election,
and we note it only as background
2 See Leonard Refineries Inc, 147 N LRB 488
9 See N L R B v Donnelly Garment Company, 330 U.S 219, 231,
where the Supreme Court observed that "a feeling by employees 'that
they were under no sense of constraint . is a subtle thing, and the
recognition of constraint may call for a high degree of introspective
perception' " Since the impact of the specific conduct upon the
employee directly involved is so inexactly ascertainable, the possibility
of measuring the precise impact upon others not identified would appear
futile However, as the Supreme Court further observed in that case,
"Out of repeated instances of hearing the same thing , a generalization
as to its worth will almost inevitably emerge in the thoughts of a tnbunal "
4 149 NLRB 1649 (1964).
INTERNATIONAL MFG. CO., INC. 771
ORDER is, set aside.
IT IS HEREBY ORDERED that the election con- [Direction of Second Election5 omitted from
ducted herein on March 15 , 1967, be , and it hereby publication.]
5 An election eligibility list, containing the names and addresses of all tension of time to file this list shall be granted by the Regional Director ex-
the eligible voters, must be filed by the Employer with the Regional cept in extraordinary circumstances Failure to comply with this require-
Director for Region 16 within 7 days after the date of issuance of the ment shall be grounds for setting aside the election whenever proper ob-
Notice of Second Election by the Regional Director The Regional jections are filed Excelsior Underwear Inc, 156 N LRB 1236
Director shall make the list available to all parties to the election No ex-
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