J. W. Mortell Co.

National Labor Relations Board - Board Decisions

Nov 27, 1967

168 N.L.R.B. 435 (N.L.R.B. 1967)

J. W. MORTELL CO.
J. W. Mortell Company and United Automobile,
Aerospace and Agricultural Implement Workers
of America, AFL-CIO. Cases 38-CA-70,
38-CA-123,38-CA-162, and 38-RC-89.
November 27, 1967
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND ZAGORIA
On July 11, 1967, Trial Examiner Joseph I.
Nachman issued his Decision in the above-enti-
tled proceeding, finding that the Respondent had
engaged in and was engaging in certain unfair labor
practices and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
The Trial Examiner also found that the Respondent
had not engaged in certain other unfair labor prac-
tices alleged in the complaint. Thereafter, the
Respondent filed exceptions to the Trial Ex-
aminer's Decision and a supporting brief, and the
General Counsel filed a brief in support of the Trial
Examiner's Decision.
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.
1. We agree with the Trial Examiner's finding
that the Respondent's announcement of certain em-
ployee fringe benefits in early March 1965 at the
height of the organizational campaign was calcu-
lated solely to induce its employees to reject the
Union and to discourage them from participating in
union activities in violation of Section 8(a)(1) of the
Act.
We note that Respondent's progress toward in-
creasing employee fringe benefits paralleled the in-
creasing organizing activity of the Union. Although
Respondent introduced evidence to indicate that a
study of its employment practices, with recommen-
dations for improvements, had been commenced
earlier, it was admitted that such recommendations
were not approved by the Company's executive
committee until sometime in December 1964. Plant
Manager Boulger, who made the survey and the
1 Medo Photo Supply Corp. v N.L R B , 321 U S 678, 684, N.L.R B
v Exchange Parts Co , 375 U.S 405
168 NLRB No. 80
435
proposed recommendations, testified that he trans-
mitted them to the executive committee in
November 1964 and that they were not approved
until late December 1964. Although the Trial Ex-
aminer found that these fringe benefits were ap-
proved by the executive committee before the com-
mencement of the union organizing activity here in-
volved, we must note, and so find, that the union or-
ganizational activity commenced in late November
1964 by the distribution of leaflets outside of the
plant and prior to the aforesaid executive commit-
tee's approval of the increased fringe benefits.
Respondent, of course, was well aware of the com-
mencement of this early campaign activity.
Thereafter, the first two union organizational
meetings were conducted on February 10 and 21,
1965. The day after the first of these meetings, em-
ployee Haggard was interrogated by Supervisor
Francoeur regarding the number and categories of
employees in attendance. The day after the second
such meeting and by letter dated February 22, the
Union informed management of its organizing ac-
tivities and requested that supervisors be restrained
from interfering with the campaign. Immediately
thereafter, as if in. response to the February 22
letter, the Respondent announced a series of de-
partmental meetings, which were conducted
between March 1 and 5, in which the fringe benefits
i n question were first announced to the employees.
These consisted principally of a 5-minute washup
period before lunch, a paid half-day holiday before
Christmas-and the New Year, and 3 weeks' vaca-
tion after 15 years' service. These benefits were
further detailed in a letter distributed to all em-
ployees dated March 5 which urged them to reject
the Union and promised that more departmental
meetings would be held in the future to discuss em-
ployee grievances.
We find that the timing of these events, including,
particularly, the announcement of the additional
benefits at an important if not crucial stage of the
Union's organizational campaign, the connecting of
such announcement with the appeal to reject the
Union, and the promise to hold additional meetings
with employees to discuss their grievances with the
clear implication that additional adjustments in
working conditions might follow, demonstrate that
the announcement of improved benefits was in-
tended to induce employees to reject the Union's
organizational appeals. The inducement of em-
ployees' rejection of union organization through the
bestowal of benefits has long been recognized as an
improper interference with employees' exercise of
Section 7 rights.I Accordingly, we find that by such
conduct Respondent violated Section 8(a)(1) of the
Act.
2. We agree with the Trial Examiner that
336-845 0 - 70 - 29
436 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent disparately enforced its no-solicitation
rule in violation of Section 8(a)(1) of the Act by
prohibiting distribution of literature and solicitation
by union adherents while encouraging or condoning
similar activity on the part of such antiunion em-
ployees as Ivlow, Lagesse, Doran, and Borst.
The conduct of Ivlow is clear from the record.
Some dozen witnesses2 testified that Ivlow made
distributions of antiunion literature, both in working
and nonworking areas of the plant, during the work-
ing hours of the employees to whom the distribution
was made, and during times which fell within
Ivlow's shift hours. On one such occasion, Super-
visor Vogelsang encountered Ivlow distributing
literature in the timeclock room. Although he ad-
vised Ivlow he was violating the no-solicitation rule
("If I were you, I would not do it."), he did not in
fact require Ivlow to cease his distribution. In this
regard, Vogelsang's attitude toward Ivlow stands
in contrast to that displayed by him toward a union
proponent. Three weeks before the election, Vogel-
sang encountered employee Hartman distributing
prounion literature in the same clockroom just prior
to the commencement of the latter's shift. Vogel-
sang ordered Hartman out of the plant: "Get out-
side and pass out that stuff and I mean it." And
again: "Make sure and change your clothes on your
own time too." In addition, employee Graveline
testified that, during working hours of the week be-
fore the election, she saw Ivlow hand Supervisor
Fred a sheaf of his leaflets wrapped in newspaper.
Similarly, employee Clipper testified that he saw
Supervisor Neblock hand company literature to
Ivlow during working hours and that Ivlow im-
mediately distributed this literature to Clipper, as
well as to other employees. Again, on the night be-
fore the election during working hours, Supervisor
Fred was seen conversing with Ivlow while he was
wearing an antiunion sign, and Fred made no at-
tempt to require Ivlow to remove the sign. Ivlow
had marched through Fred's department some half-
dozen times during the course of the evening while
supporting the sign. Employee Clipper also testified
that he reported Ivlow's sign-wearing activities to
Supervisor Neblock who agreed that Ivlow should
be obliged to clock out if he were going to campaign
on company time. Although Ivlow did in fact clock
out for at least one-half hour, Ivlow himself testified
that no one told him to clock out, that in fact he did
so without permission. We therefore find that the
Respondent condoned, if not encouraged, the anti-
union activities of employee Ivlow.3
Similarly, the Respondent was reluctant to inhibit
the procompany activities of the other three em-
ployees. Doran and Borst each prepared four or
The witnesses are Dale Boyer, Violet Bultman, Robert Clipper,
James Creekmore, Paul James Ely, James Emling, Mary Graveline,
Everette Haggard, Robert Haggard, Robert Osborne, Keith Wilkey, and
George Zea.
3 We do not believe it necessary, in so finding, to rely on the Trial Ex-
five antiunion documents during working hours and
turned them over to Ivlow for reproduction and dis-
tribution. Neither individual was ever warned by
company officials about preparing or distributing
leaflets on company time. On one occasion, Person-
nel Director Donner went so far as to compliment
Doran on one of his compositions. More significant,
perhaps, was the attitude Respondent exhibited
toward employee Lagesse. This employee wrote
two antiunion leaflets during the campaign. She
reproduced 25 copies of each on working time using
company paper and equipment, and she distributed
tthe leaflets during her working hours. Supervisor
Kreft gave her permission to attach one of these
leaflets on the window of his office. A similar copy
was fixed on the glass of Supervisor Fred's office
and another was observed neatly tacked inside the
Company's glass-enclosed and locked bulletin
board. After the first leaflet was distributed, various
company officers or supervisors thanked her for her
efforts on behalf of the Company, namely J. L.
Mortell, Don Mortell, Kreft, Blais, and Boulger.
We also agree with the Trial Examiner that the
no-solicitation rule was emphatically enforced
against the union adherents. At a meeting of the em-
ployees of department 17, the Company informed
the employees that they were prohibited from dis-
tributing union literature anywhere in the plant.
During the campaign, an employee, at the direction
of Supervisor Kreft, twice removed union literature
from the lunchroom. On another occasion, union
literature was removed from underneath the purse
of an employee and given to Supervisor Fred. In ad-
dition, Supervisor Francoeur told employee Hag-
gard he could be fired for carrying union authoriza-
tion cards in his pocket, and Supervisor Davis told
Haggard he could be discharged for passing out
union authorization cards during working hours.
Finally, as detailed earlier, Supervisor Vogelsang
encountered employee Hartman passing out union
leaflets in the clockroom and ordered him outside
of the plant.
3. Members Fanning and Jenkins also agree with
the Trial Examiner that the Respondent, through
the posting of certain notices, attempted to dissuade
its employees from cooperating with the General
Counsel and thereby interfered with the effective-
ness of the Board's processes in securing for em-
ployees vindication of rights protected by the Act
in violation of Section 8(a)(1).
Prior to the hearing in the instant matter, on April
6, 1966, the General Counsel issued some 175 sub-
penas, approximately 100 of which were directed to
Respondent's employees. Shortly thereafter,
Respondent posted a notice on its bulletin board in-
ammer's admission into evidence for the truth of its contents that part of
Ivlow's affidavit in which he stated that while passing out his literature "in
the lunchroom and time clock area, [supervisors] Ken Gachet, Fred
Morianty, Don Adame, Ken Neblock and Paul Kreft at one time or
another saw me They never said I should stop."
J. W. MORTELL CO. 437
forming its employees that if they had any questions
about the subpena or letter, they should contact
Personnel Director Donner. Donner testified that
some six individuals responde,'1 to the notice and
sought his advice, among whom was employee
Karla Starr. Donner admitted informing her that
she did not have to respond to the request for an in-
terview. He also testified that he told her that if she
did decide to go to the interview during working
hours, he wanted advance notice. On April 15
Respondent posted a second notice on its bulletin
board in which it stated, in substance, that those in
receipt of the subpenas and letters were under no
obligation to discuss the case with the General
Counsel prior to the hearing, but that if they wished
to discuss the matter with the government, they
were encouraged to do so. In addition, this notice
stated that the Union was misrepresenting the
General Counsel's letter requesting an interview by
"causing some of our people to believe that they
must contact Mr. Eisenberg [the General Counsel's
representative] at this time. This is typical of the
union ethics we have all seen over the last sixteen
months." Thereafter, on May 18 the General
Counsel again sent out letters to those witnesses he
was attempting to contact. To those employees who
had failed to respond to the earlier letter, he once
again requested that they contact his representative
at a certain motel for an interview prior to the hear-
ing. This letter indicated that if the particular em-
ployee did report to the interview, he would un-
doubtedly be required to spend less time at the
hearing and might in fact be excused from testify-
ing. "On the other hand, if you arrive at the hearing
without having previously talked to me you may
have to be present for many hours, or even more
than one day, before you are called to testify."
Respondent then posted the following notice to its
employees:
Feel free to go to the motel or feel free to stay
away No one can legally pressure you either
way. Some of you have been told you will be
held in court by the government lawyers for
four or five days. This is only a union pressure
tactic to force you to go to the motel. We
honestly do not believe the government
lawyers will hold you in court just to punish
you for not going to the motel. You might be
required to wait in court several hours but we
are confident that an orderly arrangement will
be worked out.
We sincerely regret these latest union pressure
tactics, and we hope you will bear with us until
this whole thing is concluded.
Feel free to go to the motel or feel free to stay
away.
We do not believe, with regard to both of these
notices, that they somehow gather immunity for the
Respondent simply because they advised em-
ployees that they may or may not cooperate with
the General Counsel when in fact the substantive
thrust of each notice is clearly directed to deter
such cooperation. The second notice, more strongly
than the first, relates the trial preparation of the
government lawyers as somehow subservient and
susceptible to the interest of the Union, as merely
a "union pressure tactic." No more effective state-
ment, perhaps, could be made by the Respondent to
bring home to the employees its displeasure with
those who would cooperate with the government
lawyers than that which implies that the General
Counsel's representatives were in fact tools of the
Union. Particularly is this true in view of Respond-
ent's hostility to its employees' union activities
made manifest by restraining and coercive conduct.
The Trial Examiner found, and we agree, that the
characterization in the notice of the General Coun-
sel's efforts to interview witnesses as "union pres-
sure tactics" was calculated, along with the advice
that they were "free to stay," to convince the em-
ployees that Respondent did not want them to
cooperate with the government. We find that such
communications were designed to and would in fact
tend to discourage employees from supplying legiti-
mate information to a Board agent, thus hindering
him in the investigation of the charges filed against
Respondent . We find, therefore, that the above-
described activities of Respondent interfered with
the rights of employees to obtain redress from the
Board and thereby violated Section 8(a)(1) of the
Act. Certain-Teed Products Corp., 147 NLRB
1517.4
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-
4 Member Zagona would not find that the notices in question were un-
lawful . Though Member Zagona is as concerned as his colleagues that ef-
forts of General Counsel to interview witnesses not be impeded, in the
present case it was the General Counsel who warned hesitant witnesses
they might have to be present at the hearing "for many hours, or even
more than one day ," if they did not discuss the case with him in advance
Six employees had raised questions with the Employer's personnel
director about the matter , and, following the General Counsel 's warning,
the Employer posted a notice which advised employees their preheanng
meetings with the General Counsel were voluntary - concluding they
should "feel free to go to the motel or feel free to stay away " The notice
of April 15, though also advising employees of the voluntary nature of the
prehearing meetings , specifically stated "if you wish to discuss the matter
with him, you are encouraged to do so " The alleged "union pressure tac-
tics" in the May 24 notice seems to Member Zagoria to be linked to what
the Union had supposedly told employees , and not, as the majority con-
cludes, to the General Counsel's efforts, the Employer 's earlier notice of
April 15 had likewise stated the Employer had received reports union or-
ganizers had "misrepresented " the General Counsel's communications
Unlike the situation in Certain-Teed Products Corp., supra, the Respond-
ent's notices were temperate in tone Member Zagoria finds insufficient
evidence in this case that the notices were "calculated" or "designed" to
convince employees that Respondent did not want them to cooperate, or,
as the majority also concludes , that Respondent would be "displeased" if
they did He would, therefore , find no violation in the notices
438 DECISIONS OF NATIONAL
mended Order of the Trial Examiner as modified
below and hereby orders that the Respondent, J. W.
Mortell Company , Kankakee , Illinois, its officers,
agents, successors , and assigns , shall take the ac-
tion set forth in the Trial Examiner ' s Recom-
mended Order , so modified:
Substitute the words "on forms provided " for the
words "to be furnished" in paragraph 2(f).
IT IS FURTHER ORDERED that the election con-
ducted in Case 38-RC-89 be , and hereby is, set
aside.
[Direction of Election omitted from publication.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
JOSEPH I. NACHMAN, Trial Examiner : This con-
solidated complaint ' pursuant to Section 10(b) of the Na-
tional Labor Relations Act, as amended (herein called the
Act), alleges that J . W. Mortell Company (herein called
Respondent or Company ), in the course of an organiza-
tional campaign by United Automobile , Aerospace and
Agricultural Implement Workers of America , AFL-CIO
(herein called the Union ), violated Section 8(a)(1), (3),
and (5 ) of the Act. Respondent's answer admits certain
allegations of the complaint , but denied the commission
of any unfair labor practice.
In Case 38-RC-89 , the Regional Director on April 27,
1966, issued his report on objections to conduct affecting
the results of the election, and an order directing a hearing
on the factual issues presented by said objections. He
further ordered said representation case be consolidated
with the captioned unfair labor practice cases, for hearing
and decision.2 Pursuant to notice , a hearing was held be-
fore me at Kankakee , Illinois, on various days between
June 15 and July 1, 1966, at which time the hearing was
adjourned to permit the General Counsel to seek subpena
enforcement . On August 10, 1966 , the hearing was
resumed and concluded . At the hearing, all parties were
afforded full opportunity to introduce relevant testimony,
to examine and cross-examine witnesses , and to argue
orally on the record. Oral argument was waived. On
November 18, 1966 , I issued and caused to be served on
' Issued March 30, 1966, and amended April 7, 1966, June 3, 1966,
and also orally amended at the heanng Said complaint is based on three
sets of charges In Case 38-CA-70 the original charge was filed March 8,
1965, amended April 2, 1965, September 17, 1965, and March 21, 1966
In Case 38-CA-123, the charge was filed August 12, 1965, and amended
March 21, 1966 In Case 38-CA-162, the charge was filed December 6,
1965, and amended March 21, 1966
2 The chronology of events in the representation case, to the extent dis-
closed by this record, is as follows
Apr,l 7, 1965 Petition filed by Union
June 29, 1965 Direction of Election
August 3, 1965 Election held resulting in 104 votes for the Union,
134 against, and 19 challenged ballots
August 10, 1965 Objections to conduct affecting results of elec-
tion filed by Union , containing 24 specifications
April 21, /966 All objections to conduct affecting results of elec-
tion are withdrawn other than those alleged as violations of Act in
consolidated complaint issued March 30, 1966, as amended, April 7,
1966
April 27, 1 966 Supplemental Decision consolidating representa-
tion case with unfair labor practice case , for heanng and decision
LABOR RELATIONS BOARD
all parties, an order to show cause why the record should
not be reopened to receive certain evidence offered by
Respondent on the last day of the hearing but to which
objection had been sustained. The parties then entered
into a stipulation with respect to the excluded evidence,
which was forwarded to me under date of February 13,
1967, and which I now approve. Thereafter, pursuant to
my order, a conference was held with all counsel on
March 20, 1967, which conference was officially re-
ported, and the orders and stipulation referred to were
then made a part of the record. Briefs submitted by the
General Counsel and Respondent, respectively, have
been duly considered.
Upon the entire record, including my observation of
the demeanor of the witnesses, I make the following:
FINDINGS OF FACT3
1. THE UNFAIR LABOR PRACTICES ALLEGED
A. The Facts
1. The setting of issues
In November 1964,4 the Union began an organiza-
tional campaign among Respondent's employees by dis-
tributing leaflets in front of the plant. This activity was
admittedly observed by Company Secretary Blais.
Knowledge of the Union's activity was also brought
home to Respondent by the Union's letter of February
22, in which the Union stated it was trying to organize the
employees, complained about acts of interference on the
part of some supervisors, and asked the Company to take
prompt steps to insure that interference with employee
rights promptly ceased. Also by letter dated March 8, the
Union furnished the Company with the names of 38 em-
ployees who, it stated, had become members of and
agreed to serve on the Union's in-plant organizing com-
mittee. The organizing campaign was rather extensive,
and by letter dated April 6, the Union requested recogni-
tion. On the last mentioned date the Union also filed its
representation petition, supported by a number of
authorization cards After a hearing on the representation
petition, at which District 50, intervened, the Regional
Director, on June 29,5 issued his Decision and Direction
of Election, in which the employees would decide
whether they wished to be represented by the Union, by
District 50, or neither.
As heretofore stated, the election was held on August
3, with a majority of the votes being cast against the
Union, and to which it filed objections.6 The General
Counsel contends that during the pendency of the
representation petition, as well as prior and subsequent to
J No issue of commerce or labor organization is presented The com-
plaint alleges and the answer admits facts which establish these elements.
I find these facts to be as pleaded Nor is there any issue regarding the unit
alleged in the complaint and admitted by the answer
4 This was about 6 months after Respondent 's employees , in an elec-
tion conducted by the Board on a petition filed by District 50, United
Mine Workers of America (herein called District 50), voted against union
representation.
5 This and all dates hereafter mentioned are 1965, unless otherwise
stated
6 The Supplemental Decision in the representation case dated April 27,
1966, does not mention District 50. It does appear that District 50
received no votes I assume that at some point between the Direction of
Election and the election , District 50 withdrew from the ballot
J. W. MORTELL CO.
that period , Respondent engaged in conduct violative of
Section 8(a)(1) and ( 3) of the Act, and that such conduct
during the pendency of the representation petition
requires that the election be set aside. The General Coun-
sel also contends that at all times material the Union
represented a majority of Respondent 's employees, and
as Respondent had no good -faith doubt of the union
majority status when it refused the latter 's recognition de-
mand of April 7, such refusal was violative of Section
8(a)(5) of the Act. To remedy these violations, the
General Counsel argues, Respondent should be required
to bargain with the Union , on request.
Because the Board , in deciding whether the results of
an election should be set aside because of improper con-
duct by an employer or a union , will consider only that
conduct which occurred after the filing of the petition to
and including the day of the election '- the so-called criti-
cal period - it is necessary to state separately , the events
upon which the General Counsel relies, which occurred
during the critical period from that which occurred before
or after the critical period.
2. Events in precritical period
a. Interrogation of Haggard
As heretofore stated, the Union began its campaign to
organize Respondent's employees in November 1964, at
which time it distributed handbills to which were attached
authorization cards. Thereafter a number of employee
meetings sponsored by union representatives were held
at a local motel, the first on February 10. 11 The following
day Francoeur, an admitted supervisor, asked employee
Robert Haggard, at the latter's work station, how large
the attendance was at the union meeting the preceding
day, whether the greater number of those attending were
from production, or from maintenance, and whether they
were mostly men or women. Haggard replied that it was
"about half and half' and that it was a "pretty good size
meeting." Approximately a week later, Francoeur again
spoke to Haggard at his work station. On this occasion
Haggard had some authorization cards in his shirt pocket
that were visible to Francoeur. The latter told Haggard
that he could be fired for carrying the authorization cards,
and directed Haggard to get them out of his pocket. Hag-
gard protested that there was nothing wrong in what he
was doing so long as he did not distribute them on com-
pany time Also in mid-February, Pierce Davis, an ad-
'Ideal Ele tric and Manufacturing Company, 134 N LR B 1275, 1278,
S N C Manufacturing Co , Inc, 147 NLRB 809, 810, 823 The rule is
the same whether the election is directed, as in the instant case, or held
pursuant to consent of the parties Goodyear Tire and Rubber Company,
138 NLRB 453, 454.
8 Employee Robert Haggard testifed that the first union meeting was in
December 1964 The record clearly established that it was on February
10, and that Haggard was mistaken about the date I so find
" Based on the credited testimony of Haggard Francoeur testified that
he had only one conversation with Haggard, and that this was the occa-
sion when he saw the union cards in Haggard 's pocket He admitted that
on this occasion he told Haggard that the latter could be fired for passing
out cards during working hours, but denied that he told Haggard that he
could be fired for having cards in his possession, or that he asked Haggard
about the attendance at the union meeting on February 10. He did not
deny that he directed Haggard to get the union cards out of his pocket.
Davis, though called as a witness by Respondent, was not examined re-
garding the statement attributed to him by Haggard
10 Gallois denied that she had any conversation with Scarborough about
the Union She testified that although she took her breaks with the 20 em-
439
mitted supervisor, told Haggard that the latter could be
fired for passing out cards on company time. Haggard de-
nied that he passed them out during working hours."
b Interrogation of Scarborough
In the latter part of March, Gallois, an admitted super-
visor, asked employee Scarborough, who was then on
duty, "What is this I hear about you signing a union card?
. I thought you were against the Union, you were at the
last election." In the course of her statement Gallois also
remarked that Chaney LaSage, a fellow employee, tells
me "she has you signed up, hook, line and sinker." Scar-
borough intentionally made an evasive reply so as not to
indicate whether she was for or against the Union. 10
c. Management meetings with employee-improved
benefits announced
Between March I and 5, a series of management-em-
ployee meetings were held at which improvements in em-
ployee benefits were announced The full significance of
these meetings require some background explanation. In
1964, the Board conducted an election among Respond-
ent's employees; District 50 and Machinists being on
the ballot. The election resulted in a certification that
neither union was the majority representative. According
to Secretary Blais, the closeness of the vote in that elec-
tion caused Respondent to suspect that its then-current
employee practices, which were set forth in a booklet is-
sued in August 1963, and distributed to all employees,"
were not in accord with local practices, and its executive
committee directed a study of the problem and recom-
mendations for remedial actions. Thereafter, and before
the commencement of the union activity here involved,
the executive committee acting on the report submitted
to it directed the following changes: (1) a 5-minute
washup period before lunch; (2) designated as a paid
holiday the last half of the regular workday prior to
Christmas and the New Year; (3) modification of the va-
cation plan to provide a vacation with pay of I week after
I year of service, 2 weeks after 3 years of service, and 3
weeks after 15 years of service;12 (4) the promulgation of
a rule prohibiting solicitation or distribution on behalf of
a union;13 and (5) a profit-sharing plan. The changes in
fringe benefits thus approved by the executive committee
were not then made known to the employees, but were in-
corporated in a revised booklet, for distribution to em-
ployees under her supervision, and ate her mid-shift meal with them, she
never heard a word from them about the Union from the beginning of the
campaign in November 1964, through the election In view of the hard
fought campaign, and the union solicitation and literature distribution in
and out of the plant, I credit Scarborough
11 A copy thereof, designated as "Old Booklet," is in evidence, as a part
ofJomt Stipulation I
12 Prior to this the ,acation was I week after 1 year, and 2 weeks after
3 years of service
13 The complaint alleges and the answer admits that on July 28, 1964,
Respondent promulgated and, until October 1, 1965, maintained in effect
rules which prohibited employees from (1) "engaging in any solicitation
on behalf of any union or other organization in any area of [the] plant dur-
ing work hours," and (2) distributing "any union or other literature in any
working area of [the] plant at any time " The complaint does not allege,
nor does the General Counsel contend, that the aforesaid rules were
adopted with a discriminatory intent, rather the contention is that Re-
spondent enforced said rules in a discriminatory manner, as between
those who favored and those who opposed UAW
1
440 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployees about March 1." However, because of an error
in the last mentioned booklet, it was never distributed to
the employees.'5 After revision, another printed booklet
reflecting all the changes, including the rule prohibiting
solicitation and distribution, above referred to, was dis-
tributed to employees about September 9. 16
At the management-employee meetings held between
March 1 and 5, the entire group of fringe benefits thereto-
fore approved by the executive committee were made
known to all employees. These management-employee
meetings take on additional significance from a letter
dated March 5, which Respondent distributed to its em-
ployees. This letter, after referring to the fact that the em-
ployees had rejected District 50 and Machinists in 1964,
and stated, "Now another union is trying to sign up our
employees in order to collect union dues." The letter also
referred to the improvements in working conditions, men-
tioning specifically (I) the profit-sharing plan; (2) the ad-
ditional week of vacation to employees with 15 or more
years of service; (3) the additional half-day holiday be-
fore Christmas and the New Year; (4) upgraded wage
rates which were said to compare favorably with wages
paid by other plants "which have been unionized for
many years." The letter of March 5 also told employees
that management officials would continue to hold
monthly meetings with the employees, where they could
discuss grievances or make suggestions, and concluded
with the plea that each employee "give this matter your
serious thought," and "reject the efforts of these [UAW]
union organizers at this early stage."
weeks, Erich prepared and delivered to Kreft the
requested list. Kreft gave the same instructions to Floor-
lady Fred, an admitted supervisor. Fred also complied
with Kreft's instructions, but her testimony is that she did
so only on one occasion. There is no evidence that the
employees knew or had reason to believe that such lists
were being prepared, nor is there any evidence as to the
use Respondent made thereof."
b. Reply to Steen's request for a pay raise
Employee Steen had been active in support of the
Union , having attended several of its meetings and signed
an authorization card in its behalf . About 3 weeks before
the election , and while wearing a UAW button, hat, and
T-shirt , Steen asked Supervisor Francoeur for a raise.
Francoeur's reply as he walked away from Steen was,
"what with that rag?""
c. Reply to Southard 's requestfor a pay raise
Some 2 or 3 weeks prior to the election, employee
Southard also, while wearing a union button, asked Fran-
coeur for a raise. Francoeur replied, "as long as you wear
them damn union buttons, you ain't going to get no raise."
On the day before the election, Supervisor Davis asked
Southard whether he was going to vote for the Union or
for the Company Southard replied that he would vote for
the Union. Davis then stated that it made no difference if
the Union got in or not "it is going to be hard as hell on all
of us.""
3. Events in critical period
The General Counsel contends that shortly after the fil-
ing of the representation petition, to and including the day
of the election, Respondent engaged in a course of con-
duct which not only interfered with the election, but con-
stituted violations of Section 8(a)(1) and (3) of the Act.
The details of these incidents are:
a. Instructions to prepare lists of union insignia wearers
In the 3 months prior to the election, Supervisor Kreft
had several conversations with Rosetta Erich, a depart-
mental floorlady whose supervisory status is conceded,
telling her to prepare a list of employees in her depart-
ment who wore UAW insignia. Daily for the next 2
14 Respondent contends that some of these improved benefits were
made known to the employees in January Although there is some
testimony supporting this contention, I find it unnecessary to resolve
those conflicts because assuming such announcements were made as
Respondent contends, the announcements were not made generally to all
employees
11 A copy thereof, identified as the "Never Issued" booklet, is also a
part of Joint Stipulation 1 The principal error therein was in the "No Sol-
icitation" rule which, as printed , prohibited "any solicitation on behalf of
a union in any part of the plant."
16 A copy of this, designated "New Booklet," is likewise a part ofJoint
Stipulation 1.
11 Based on the credited and uncontradicted testimony of Erich and
Fred regarding this matter Kreft, when testifying, did not deny that he
gave such instructions
18 Francoeur testified that Steen frequently asked him for a raise and
that he always replied to the effect that regulations of the Board did not
permit raises while an organizational campaign was in progress He ad-
mitted that the request by Steen was probably made while the latter was
wearing UAW insignia , but denied that he made the statement attributed
to him, or that he referred to the UAW T-shirt as a rag I credit Steen
d. Disparate enforcement of no solicitation-distribution
rule
As heretofore stated, the Company's 1963 work rules,
set forth in the "Old Booklet," above mentioned, con-
tained no prohibition against union solicitation or litera-
ture distribution by employees.20 Prior to the Union's
campaign, the Company announced to the employees and
posted in the plant a rule prohibiting union solicitation in
the plant during working time.21 Shortly after the Union
began its campaign, Respondent installed a glass enclosed
and locked bulletin board where company notices to em-
ployees were posted. This was obviously installed to ena-
ble Respondent to control the material to be posted
19 As in the case of Steen, Francoeur admitted that Southard asked him
for a raise and that he replied that it could not be given because Board
regulations prohibit such in the course of a union campaign He denied
that he made any comment to Southard about union buttons Davis ad-
mitted that he had a number of conversations with Southard regarding the
union campaign, but that such conversations were started by Southard.
He denied that he asked Southard how the latter would vote in the elec-
tion or that he made the precise statement attributed to him by Southard.
According to Davis, he told Southard, as well as other employees, that the
union campaign "would be pretty hard on all of us, because of the bicker-
ing [and] hard feelings among some of them." In each instance I
credit Southard
20 The "Never Issued" booklet did contain a prohibition against sol-
icitation, but this was not given to employees because of an error therein.
The "New Booklet," containing a corrected no-distribution rule was not
distributed to employees until about September 9, over a month after the
election
21 The General Counsel agrees that the rule is valid on its face, but con-
tends that enforcement thereof by the Company, as between the pro- and
anti-union employees, was disparate
J. W. MORTELL CO. 441
thereon .22 The evidence shows that employees Alex
Ivlow, Jeanette Lagesse, William Doran, and Dean Borst
distributed antiunion literature in the plant. The circum-
stance of such distribution, Respondent's knowledge
thereof, and its reactions thereto, will now be stated.
(1) Activities of Alex Ivlow
Ivlow was the group leader on the second shift in de-
partment 17, where the work is largely the unloading of
inbound materials. Respondent conceded that Ivlow is
not a supervisor within the meaning of the Act. During
the relevant period, Ivlow's shift was from 3:30 to 11.30
p.m., with a half-hour meal break at 5:30. From sometime
in March, to and including the day preceding the election,
Ivlow prepared approximately 12 pieces of antiunion
literature for distribution among the employees. Some of
these Ivlow composed himself, others were given him by
Doran or Borst in draft for final preparation. All work on
the material which Ivlow prepared was done at his home
with materials which he paid for .23 About half of the
documents prepared by Ivlow were prepared in quantities
of 25 or less, but the remainder were run off in quantities
of about 300, and distributed in the plant, chiefly by
Ivlow. A number of employees testified that within a
month or two before the election, they received from or
observed Ivlow distributing his literature in work areas of
the plant while they were at work, and in some instances
they fixed a time that falls within Ivlow's work hours. 24 it
also appears that on a day about 2 weeks before the elec-
tion when Ivlow was on vacation, the latter went to the
plant, arriving about 11:30 a.m. and spent about 45
minutes distributing his literature in the lunchroom, cof-
fee shop, and clockroom areas of the plant.25 Ivlow, a wit-
ness who was plainly hostile to the General Counsel, and
strongly opposed to the Union, admitted that on this oc-
casion while he was passing out his literature in this
clockroom, he encountered Production Manager Vogel-
sang, who told Ivlow that he should not be distributing
the literature; that he (Ivlow) stated, "they [union
proponents] do it. 1 am only putting my stuff where they
put theirs"; and that Vogelsang replied, "well you know
the rules, if I were you, I wouldn't do it." Aside from this
statement, Vogelsang did not reprimand Ivlow or make
any effort to stop him from distributing literature in the
plant.26 Indeed, the evidence shows that throughout the
period Ivlow engaged in his distribution of literature,
aside from the one conversation with Vogelsang, no
management representative asked Ivlow when or under
what circumstances he prepared his material, or cau-
tioned him as to when or where he could or could not dis-
tribute it. The evidence also shows that on one occasion
ivlow had marked up a newspaper article dealing with
strikes, and that the same article, marked as it had been
by Ivlow, later appeared tacked up inside the glass en-
closed and locked bulletin board to which no employee
had a key. There is no evidence nor is there any claim that
anyone tampered with this bulletin board. Although
Ivlow testified that he could not recall whether he was
seen by other supervisors on the vacation day that he dis-
tributed literature in the plant, in an affidavit he gave the
General Counsel, in the course of the latter's investiga-
tion, Ivlow stated that while passing out his literature "in
the lunchroom and timeclock area, [supervisors] Ken
Gachet, Fred Moriarity, Don Adame, Ken Nebloch and
Paul Kreft at one time or another saw me. They never
said that I should stop." Of this group of supervisors,
only Kreft testified, but no questions on this point were
put to him. Although Ivlow's affidavit was received only
for impeachment purposes, I find, based on his demeanor
and evident hostility to the General Counsel, the above-
quoted statement from his affidavit to be true. I do so
because I regard this as an appropriate case for the appli-
cation of the rule approved by the Supreme Court in
N.L.R.B. v. Walton Manufacturing Company, 369 U.S.
404, 409.
The evidence shows that during working hours of his
shift (3:30 - 11:30 p.m.) preceding the election on August
3, Ivlow was particularly active in the plant. Thus, Ivlow
admits that during his working hours and during the work-
ing hours of the other employees involved, he paraded
through the plant27 wearing a sign with the legend, "Do
not horsecollar Mortell."2K Although Ivlow first said that
he could not recall and later denied that any supervisor
observed him displaying the aforementioned sign, his af-
fidavit given during the investigation states that Super-
visor Fred saw him wearing the sign, but she did not tell
him stop.2' Employee Robert Clipper credibly testified
that after observing Ivlow with the sign, he reported to
Supervisor Neblock what Ivlow was doing, but there is
no evidence that Neblock took any steps to stop Ivlow or
to reprimand him for this activity. In view of the duration
of Ivlow's activity during the evening of August 2, the
fact that he admittedly engaged in it throughout the plant,
and the testimony of Clipper, which I credit, I find that
Ivlow's activity came to the attention of Respondent's
management officials, and that none of them took any
steps to stop lvlow's activity.
(2) Activities of Jeanette Lagesse
Lagesse was a clerk in the mail and shipping room,
who, in connection with her work, used a typewriter and
mimeograph machine. During the election campaign,
Lagesse prepared two antiunion leaflets; the first entitled
"Why Bite The Hand That Feeds You" and the other
"Do you Know That Other Unions Have No Use For
U.A.W." Lagesse prepared about 25 copies of each
22 As Company Secretary Blais expressed it, ". . we knew there was
an organizing attempt imminent so we thought we had better get a [glass
enclosed] bulletin board which was a little less accessible to the em-
ployees."
23 Ivlow testified, without contradiction, that all mimeograph work was
done on a machine belonging to his church, but available to him
24 Based on the composite of the credited testimony on this point by
Paul Ely, James Creekmore, Robert Osborne, Everette Haggard, Dale
Boyer, George Zea, Mike Emling, Robert Haggard, and Mary Gravelme
25 In going to the plant, while on vacation, Ivlow violated company
rules. Company Secretary Blais testified that such rules prohibit an em-
ployee from being on plant premises more than 10 or 15 minutes prior to
their scheduled work period, and that while on vacation, employees
should not be in the plant at all
26 Vogelsang denied that he ever saw Ivlow distribute literature in the
plant, but that on some unidentified occasion he found a pamphlet in the
plant bearing lvlow's name, that he sought out Ivlow and told him, "re-
member this, you are not to pass this out on Company time or inside the
clockroom " To the extent that Vogelsang's testimony conflicts with that
of Ivlow, I credit the latter
2] As Ivlow put it, "I was every place "
Ze Mow described the sign as about 18 inches or more in width,
suspended from a string around his neck and extending from the top of his
chest to about 4 inches below his belt
29 Supervisor Fred, although called by Respondent after i vlow testified,
was not asked about Ivlow's activity in her department
442 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leaflet on company time, using company equipment. She
did this in her work area located 10 to 15 feet from her su-
pervisors' glass enclosed office. After preparing the first
leaflet, Lagesse posted six copies on departmental bul-
letin boards,"" where they remained for some undisclosed
time, and she gave one copy of it to her supervisor. In ad-
dition, Lagesse showed a copy of the first leaflet to Super-
visor Kreft and asked for permission to post it on the
glass portion of his office partition. Kreft agreed and
Lagesse affixed the leaflet to the glass on the inside of his
office (located in a work area of the plant), but with the
written material facing out so that it could be read from
the outside. A copy of this leaflet was also on the glass
partition of Supervisor Fred's office, and tacked up inside
the glass enclosed and locked bulletin board. How the
leaflet reached the two last mentioned locations, the
record does not disclose. There is no evidence that any
supervisor inquired of Lagesse as to when or under what
circumstances she prepared or distributed her antiunion
material. However, management officials J. W. Mortell,
Don Mortell, Kreft, Blais, and Boulgar thanked Lagesse
for her activities in that regard saying, according to
Lagesse, "they were pleased to know that somebody was
for the Company and was not afraid to say SO. `31
(3) Activities of William Doran
During the month of July, Doran prepared four antiu-
nion poems. These were prepared in longhand during
working hours, and delivered to Ivlow, who typed and
returned them to Doran for distribution and posting.
Typed copies, over Doran's signature, were posted in
various areas of the plant. No supervisor or management
official asked Doran when or how the material was
prepared or whether it was distributed and posted in com-
pliance with Respondent's plant rules.
pervisors told at least two employees that they could be
fired for having authorization cards in their possession
while in the plant, or for distributing them during working
time. The evidence shows that this attitude toward dis-
tribution of union literature on its premises continued
during the period of the election campaign. Thus:
(I) About 3 weeks before the election, employee Hart-
man was in the clockroom with an estimated 50 to 100
leaflets in his hand.33 Production Manager Vogelsang ob-
served this and as he passed through the clockroom, told
Hartman to get outside to "pass out that stuff." Hartman,
however, remained in the clockroom and when Vogel-
sang came back a little later, he told Hartman, to get out-
side to pass that stuff out and I mean it and added, "make
sure you change your clothes on your own time, too."
Hartman then went outside to pass out leaflets.
(2) Rosetta Erich, at the direction of Supervisor Kreft,
twice removed union literature from the lunchroom tables
and delivered the same to Kreft.
(3) On a day about 3 weeks prior to the election, em-
ployee Gremar had placed a quantity of UAW literature
under her purse on a table provided for that purpose.
After being away from her work area for a few moments
to look for her supervisor, Gremar observed her super-
visor walking with Supervisor Kreft and the latter had in
his hand the UAW literature which Gremar had left
under her purse. Nothing was said to Gremar about this
incident nor did Kreft make any explanation of it when he
testified.
(4) About 2 weeks before the election, the Company
called a meeting of the employees in department 17 and
the shipping department. One of the employees attending
was Dale Boyer, who testified that Company Secretary
Blais spoke at this meeting and in the course of his re-
marks stated that employees were prohibited from dis-
tributing union literature anywhere in the plant.34
(4) Activities of Dean Borst
Borst wrote some four or five antiunion documents
which he delivered to Ivlow to be put in final form. Ivlow
mimeographed two of the documents in substantial quan-
tities and typed the remainder. This typed material, over
Borst's written signature, was posted on the bulletin
boards in the lunchroom and the canteen room.32 The
mimeographed material he distributed to employees in
front of the plant. No supervisory employee asked Borst
when or under what circumstances he prepared the
posted material, what other use he made of it, nor was he
reprimanded for posting it, but Borst did testify that he
was told by his foreman not to distribute literature on
company time.
(5) Company attitude toward UAW literature distribu-
tion in the plant
As heretofore set forth (supra, sec I, A, 2, a), in the
period prior to the filing of the representation petition, su-
30 These are not enclosed Also posted on these boards were UAW
literature
3' Of this group the only ones to testify to matters of substance were
Kreft, Blais, and Boulger None denied the statement attributed to them
by Lagesse
32 These bulletin boards are not glass enclosed
33 The evidence does not indicate the reason for Hartman being in the
clockroom He did testify that he was on his own time
34 Respondent sought to contradict Boyer by his pretrial affidavit, in
e. Literature distribution and speeches by Company
The General Counsel contends that during the month
preceding the election , Respondent distributed to its em-
ployees various leaflets which, when considered together
and in their context , communicated to them the threat of
the "inevitability of a strike and other dire consequences"
if they selected the Union. He points to:
(1) By letter dated July 1, Respondent told its em-
ployees that it would shortly answer such questions as,
"Is the UAW really a `strike happy union ?"' and "What
union had more employees on strike last year than all
other unions put together?"35
(2) The letter of July 13, entitled "The High Cost of a
Union," told the employees that $1.25 of the Union's $5
monthly dues "goes to the UAW strike fund," and that
the dues could be raised "as high as they want."
(3) The letter of July 23, discussed "The UAW Strike
Record." This record, the letter asserted, "was unbe-
lievable," and that the reason for this record, according to
comment was "that the UAW officials just didn't care."
which he said that Blais was present a:. this meeting but that he could not
recall which speaker told them not to distribute in the plant Neither Blais
nor any other company official denied making the aforementioned state-
ment I therefore find that the statement was made by a responsible offi-
cial of the Company but I make no finding as to who it was
31 This letter concluded with a statement to the effect that increased
wages and improved fringe benefits do not result simply from voting in a
union, and that a union that wins an election gets only the right to talk to
the employer
J. W. MORTELL CO.
After quoting the Chicago Daily News which called a
UAW strike against General Motors, its dealers , and sup-
pliers, during the fall of 1964 , "a gratuitous kick in the
teeth ," the letter asked , "would it [ UAW] hesitate one
minute to do the same at J. W . Mortell Company?" The
letter then tells the employees that even successful strikes
for higher wages result in monetary losses to employees
which they recoup only after the lapse of a considerable
period of time, dependent upon the duration of the strike,
and pointed to UAW strikes against other employers
which lasted from 4 weeks to 8-1/2 months . After stating
that United States Department of Labor statistics for
1964, showed that "the UA W had more major strikes in
manufacturing industries than all other unions put
together" the letter concluded:
When we add it up, we come to one conclusion. The
UAW is strike -happy. We leave it up to you to de-
cide if you think the UAW would treat J. W. Mortell
employees differently than it had treated other em-
ployees.
(4) The final preelection letter, dated July 27, after
telling the employees that wage increases would not come
automatically if the Union won the election , but would be
a matter of negotiation with the Company, stated:
Would the UA W have a good or bad effect on your
wages at J. W. Mortell Company? Our Company
supplies major automobile manufacturers. For some
products we are the sole supplier . The bulk of our
goods are not sold to the public. We must give
prompt and uninterrupted services to the auto manu-
facturers . If we can 't provide service , we stand to
lose our business. As you know , American Motors
is one of our big customers . Several months back an
American Motors supplier in Chicago, Young Spring
and Wire Company , was called out on strike by an
AFL-CIO affiliate union of the UAW. This strike
shut down American Motors.
We have not checked to see what happened to this
supplier of American Motors , but it is possible that
American Motors "split sources." The auto manu-
facturer , when his supplier is unionized and faces a
strike, may want to buy his requirements from two or
more companies . If one supplier is out on strike, the
other supplier can keep the manufacturer supplied.
We don 't know if our auto customers would follow
the "split source" idea, but we feel sure about one
thing. If the UAW called a strike at J. W . Mortell
which shut down American Motors or some other
auto company , our continued volume of business
would seem shaky. We don ' t know if the UAW
would call you out on strike, and we hope they never
would , but their strike record is bad . In 1964, all you
read about in the newspaper was one UAW strike
after another.
(5) On July 29 and 30 , Company Secretary Blais gave
one speech to seven groups of employees. In these
speeches , Blais spoke on the theme of UAW's proclivity
for strikes , saying that in 1964 one-half of the Union's
membership was on strike for some period , and stated
that this was of concern to Respondent because:
Our business operation has been successful in the
past because we have built our reputation on the
basis of dependability and service . We cannot and do
36 It was stipulated that in making these statements , Woltman was act-
ing as an agent of Respondent. Blass admitted that in the five other
443
not want to risk to even have the possibility of our
plant affected by a strike of any duration.
Blais then referred to two strikes by UAW at a nearby
auto plant , customers of Respondent , stating that because
the plants were struck Respondent could not ship its
product to them , thus causing a loss of business, and
added:
As a matter of fact , [UAW] is so strike-oriented that
of the dues they ask you to make of $5.00 a month,
$1.75 goes into a strike fund . One out of every $3.00
you are asked to pay in the form of dues goes into a
strike fund . It certainly sounds to me like they use
strikes at the drop of a hat.
Blais then told the employees that Respondent was
against UAW because that Union "has a traditional
record of interfering with the rights of management," and
added "that the most significant reason that Studebaker
[formerly a very good customer ] is not making automo-
biles today is because of the iron-clad policy pursued by
[UAW] in the handling of Studebaker ' s management af-
fairs." At this point , in two of his speeches , Blais called
upon Purchasing Agent Woltman , a former Studebaker
employee for 39 years, who spoke about several incidents
he regards as indicative of the Union 's inflexibility
toward the assignment of personnel to specific classifica-
tions, and concluded by saying, "these are some of the
ridiculous things that I think greased the skids for Stude-
baker."36 In his speeches to the employees , Blais several
times referred to the Union as "strike happy," and ad-
mitted that he stated that one of the reasons he would not
vote for the Union was that he "would have to consider
the possibility of going on strike if management and our
bargaining committee could not come to terms." The
theme of UAW 's proclivity to strikes was also kept be-
fore the employees by means of newspaper accounts of
UAW strikes at other plants , some five or six copies of
which Blais admitted were posted by the Company in its
glass enclosed bulletin board , during the 4 -month period
prior to the election. -
f. The Barbieri appreciation dinner
Frank Barbieri began his employment with Respondent
in July 1928. In mid-July Respondent gave a dinner party
to honor Barbieri for his years of service. The party was
attended by several of Respondent's management offi-
cials, and a large number of Barbieri's coworkers. At the
dinner Barbieri was presented with a watch. It is con-
ceded that Respondent paid the cost of the party and of
the watch, but the amount of this is not disclosed by the
record. Secretary Blais, who had been with the Respond-
ent for 7 years, could not recall such a party or gift by
Respondent prior to the one for Barbieri. There is no
evidence, however, that any other employee had worked
for Respondent as long as Barbieri; nor is there any
evidence that the Union or union activity was discussed
at this party.
g. The gift of caulking materials
About July 15, Respondent posted a notice to its em-
ployees that it was discontinuing the production of 15
specified colors of oil-based caulk in cartridges , and that
speeches he made, when Woltman was not present, he tried to convey the
same point.
444 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such material would be available to employees free of
charge, so long as the supply lasted. It is conceded that
about 3,000 cartridges, having a retail value of 28 cents
each, were given to the employees. No distribution to em-
ployees of its manufactured products had theretofore
been made by Respondent Although the notice posted by
Respondent indicated, at least by implication, that
Respondent's reason for distributing the caulk was that it
had discontinued production of the specified colors, the
testimony adduced by Respondent was that due to a de-
fect in the cartridge or the process of sealing it, air had en-
tered the container causing the caulk to harden and
become unfit for use; that for a period of 8 or 9 months it
tried to sell this material at greatly reduced prices, but
was unable to find a buyer at any price; and that to avoid
handling the material in a fiscal inventory to be taken the
latter part of August, it was decided to give it to the em-
ployees. However, some employees who took the caulk
testified credibly that they encountered no difficulty in
using it.
h Revocation of Emling promotion
James Emling had worked for Respondent about 4-1/2
years. His duties included distributing packaging materi-
als to the various departments, storing finished products
in the warehouse, and removing them when necessary for
filling orders. During the early part of 1965, Emling was
an open and active supporter of the Union: he attended
union meetings, signed an authorization card, solicited at
least one employee to do the same, and, for some undis-
closed period, wore a union button at work. On April 16,
about a week following the filing of the representation
petition, in the course of conversation with Management
Representatives Adame, Boulger, and Blais, Emling was
asked if he would take on the responsibility for ordering
packaging material;37 that the job would be given him for
a 90-day trial period, and he would receive an immediate
15-cent hourly increase in pay .311 1
Emling accepted, and his pay was increased as above
stated.39 Upon assuming his new duties, Emling ceased
the activities on behalf of the Union, in which he had for-
merly engaged. However, sometime in June, Emling
resumed his union activities, again wearing union buttons
in the plant, participated in the Union's in-plant commit-
tee, sought to convince his fellow employees to assist the
Union, and distributed literature in front of the plant.
About a week after Emling resumed his union activity,
Foreman Adame sent for Emling and told the latter that
he was spending too much time in department 7 (where
mostly women are employed), and that he should not go
there without permission. Prior to this occasion, Adame
had not criticized Emling's job performance.
On July 19, Emling not having been told whether he
was satisfactorily performing the additional duties as-
signed him on April 16 went to Plant Manager Boulger
and asked what decision had been reached in that regard.
Boulger stated he would look into the matter. Two days
later, Emling was called to Personnel Director
Donner's office.40 There he found Donner, Blais, and
Adame. The first remarks were by Donner, who told
Emling that he (Donner) had heard that Emling was sol-
iciting for the Union on company time. Emling denied
that he did so, but admitted that he had asked an em-
ployee a question. Donner replied that the next time he
heard of this, Emling could consider himself in "hot
water."41 Blais then told Emling that the 90-day trial
period with respect to the extra duties assigned him in
April had been extended another 30 days. Emling asked
why, and Blais replied that it was because of Emling's at-
titude toward supervisors, and referred to an incident
when Emling allegedly called Supervisor Kreft "a
damned fool." Blais also told Emling to discuss the al-
leged incident with Kreft.42 Emling ,discussed the matter
with Kreft, and the latter referred to an incident some 3
weeks before, when Personnel Manager Donner was
present that, as Kreft felt, Emling had referred to him as
"a damned fool." Emling replied that he had no recollec-
tion of having made such a remark, but if he had, he
apologized. Kreft told Emling to forget It.93 It is not
disputed that in the 3-week interval, neither Donner nor
Kreft mentioned this incident to Emling, or in any way
reprimanded him for the alleged remark.
The 30 days' extension of Emling's trial period expired
on or about August 19, the Board election having been
conducted the intervening August 3. On August 17, Su-
pervisor Adame told Emling that all overtime for him
would be eliminated, effective immediately, and with
respect to his extra duties added, "Well, probably we will
save that shock for you for another day. "44 The following
day Plant Manager Boulger told Emling that the extra du-
ties assigned to him in April, and the increased pay
therefor, were being taken away as of the end of that
week. Boulger admitted that the return of these duties to
Kreft meant reverting to the system prevailing just prior
to April 1965, that Kreft continued to perform those du-
ties until the end of 1965.
" Blais described the job as keeping abreast of the Company's require-
ments for packaging material , and initiating procurement when the necess-
ity therefor was indicated
38 At this time , Blais testified , the ordering of packaging materials had
been the responsibility of Supervisor Kreft, but that he was overloaded,
and that at times packaging materials were not available when needed
18 The duties so assumed by Emling were in addition to those he nor-
mally performed
4° About 3 hours before going to Donner's office, Emling had some
discussion in Respondent ' s warehouse , with his fellow employee Doran,
regarding the Union Doran is one of those who had distributed antiunion
literature in the plant, as set forth, supra, sec 1, A, 3, d, (3)
41 Although Donner denied making other statements attributed to him
by witnesses for the General Counsel , he did not deny this statement at-
tributed to him by Emling
42 Blais gave substantially the same version of this incident According
to Blais , he told Emling
we are extending your trial period by another 30 days We want
you to know that generally you are doing the job satisfactorily How-
ever, we don 't like your attitude towards management We have a re-
port that you called Mr Kreft a damned fool and that you , in general,
have a surly attitude toward other members of the supervisory peo-
ple We would hope that you would correct this attitude in the next 30
days
4' Kreft testified that he was unable to say that Emling did or did not
call him a damned fool According to Kreft, he heard Emling say any
damned fool," but there were also other words which he did not hear
Kreft admitted that, in conversation with Emling some 3 weeks after the
event , the latter apologized He did not deny that Emling told him he had
no recollection of having called him a "damn fool," nor did he deny that he
told Emling to "forget it "
44 Based on the uncontradicted and credited testimony of Emling
Adame did not testify
i. The X-1 incident
J. W. MORTELL CO. 445
The General Counsel contends that during the month
of July, a group of female employees, who worked the
second shift in department 7, came to work wearing union
buttons and hats, as well as other UAW insignia affixed
to their clothing, and that Floorlady Fred moved these
insignia wearers from their normal work stations to an
isolated portion of the department, stating that she was
doing so to keep the other employees from seeing what
these employees were wearing, and that she hoped these
employees would not lose their jobs because of it, and
that she (Fred) would not lose hers.45 The General
Counsel claims that these employees were assigned to
what is known as the X - 1 machine, as Graveline, Bult-
man, and Gremar testified.
Floorlady Fred denied that she made the remarks
above set forth. She also denied that the fact that the em-
ployees involved wore union insignia had any part in her
decisions on work assignments, or that there was any in-
tent to segregate or isolate wearers of union insignia. To
support this denial, Respondent introduced a chart
prepared from its basic records.46 The chart is as follows:
Number of
second=shift
Dates X -- 1
operated in
July 1965
employees
assigned to
X -- 1
Total button
wearers assigned
to X -- 1
July 1 12 3
7 11 4
8 13 4
9 10 3
15 13 4
16 10 4
" 17 11 3
" 19 13 3
" 20 10 3
" 21 12 4
22 18 5
24 14 1
26 13 3
27 12 5
28 14 2
29 10 2
30 13 3
Fred's testimony is clear that the entries in the third
column do not appear in any basic record; she reached
these figures because the basic record indicates the
product being produced at the time, and based on her
knowledge of the operations required to produce that
45 Witnesses on behalf of the General Counsel who gave testimony as
to this incident were not entirely consistent Witnesses Gremar and Bult-
man testified that five employees were involved in this incident (Love,
Gremar, Craig , Graveline, and Bultman ) Witness Gravelme testified that
six were involved, the five heretofore mentioned and Ervin Gravelme
testified that the incident happened "a little bit before the election";
Gremar said "about a week before the election ", and Bultman at one point
said "about 4 weeks before the election," and at another point that it was
"about a week before the election " Floorlady Fred said six employees
wore UAW insignia naming in addition to those mentioned by the other
three witnesses, Carmicel. Fred admitted, however, that Carmicel wore
union insignia on some days, but not on others , and there is no evidence to
establish that she did so on the occasion in question I find it unnecessary
to resolve these conflicts,. because the only critical factors to be deter-
mined are (1) did the event occur in the critical period and it does not
appear to be disputed that it occurred sometime in July, (2) were the em-
product, the operations which particular employees per-
formed, and knowing those who wore union insignia, she
was able to determine the number of insignia wearers as-
signed to X - 1 on a particular day.
j. Election day parking of vehicles
The hours of the election on August 3, were between
6 and 8 a.m. and 3:30 to 4:30 p.m. When Union
Representative Polich arrived at the plant about 5:45
a.m., he observed a number of motor vehicles parked on
both sides of the street on which Respondent's plant
faces.47 The vehicles remained so parked until--after the
balloting was over at 4:30 p.m. During the morning, ban-
ners were affixed to a number of the parked vehicles that
read "Think Mortell Company, Job. Security Since
1895." About noon a larger sign reading, "Why take a
chance on strike-happy UAW? Keep these units rolling,
vote NO," was affixed to one of the vehicles, and
remained there for the balance of the day. Blais conceded
that the Company does not ordinarily park its vehicles on
the street, and that this is perhaps the only time it did so.
Respondent offered no testimony with respect to the
reason for parking the vehicles as above set forth.
k. The material-throwing incident
Between 11 and 11:30 p.m., on August 2, four
representatives of the Union including Robert Polich,
were on the public sidewalk in front of the plant distribut-
ing handbills to employees going to or from work. Sud-
denly, and without warning, a quantity of fibrous material
hit one of them in the chest, and splattered the others. At
the time, no one on the outside, so far as the evidence
shows, knew who threw the material, where it came from,
or the circumstances which caused it to fall. Shortly after
the material fell, Personnel Director Donner came out on
the street and upon being informed by Union Agent
Polich about the falling of the material replied with a grin,
"I take it someone else does not want you around here."
The evidence shows that the idea of throwing the
material on the union agents originated with employees
Doc Jones and V. G. Board, both of whom had signed
cards on behalf of the Union. As Board and Jones were
going toward the roof to carry out their purpose, they met
Personnel Director Donner and Supervisor Neblock, told
them what they proposed to do, and asked Donner and
Neblock what they thought of the idea. Donner replied,
as Board testified, "that if we did, just not to involve him,
don't let anybody know that he knew anything about it.
So, we did [throw the material]."48 There is no evidence
ployees in fact segregated , and (3 ) if they were , was this in reprisal for
wearing UAW insignia.
96 The basic records were made available to the General Counsel for
checking the accuracy of the chart, and for his use in cross-examining
Fred who identified and testified with respect thereto . The General Coun-
sel makes no contention that the basic records do not support the entries
in the first two columns in the chart
47 Photographs of the scene , which are in evidence , show these con-
sisted of private cars , including Blais' personal car, tractor-trailer com-
binations , and straight trucks carrying Respondent 's name; over-the-road
tankers, apparently used to transport Respondent 's products; and trailers
carrying the name of an over-the -road trucker.
4e My findings as to this incident are based on the composite of the
credited and, on this point , uncontradicted testimony of Polich and Board.
Neblock did not testify . Donner, a witness for Respondent, was not asked
about this incident.
446 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that any employees knew at the time or thereafter found
out who threw the material, or that Donner and Neblock,
or any other aagent of Respondent knew of the plan to
throw it.
1. Management observance of Union's handbilling and
further interrogation of Haggard
On the morning of the election Union Agent Polich ar-
rived at the plant about 5:45 a.m., and together with two
other union agents and in-plant committee members
Baker, Haggard, and Emling engaged in distributing
leaflets to employees who were reporting for or leaving
work. While this activity was in progress five manage-
ment officials, including Secretary Blais and Production
Manager Vogelsang, stationed themselves in the area and
watched the handbilling. In addition, Vogelsang stationed
himself at the only employees' entrance in this area, and,
as employees approached, greeted and opened the door
for them. Between 6 and 6:30 a.m ., Blais, in the presence
of Baker, Haggard, and Emling, engaged Polich in con-
versation. He first told Polich not to contaminate com-
pany equipment parked in the street, by leaving handbills
on them, and then stated, "it looks like you are going to
take a beating today." Polich asked Blais the basis for his
satement, and the latter replied, "the poor attendance at
your meetings," and added, "I am willing to bet on it."
Blais then turned to Haggard and asked "what is the
reason for your supporting the UAW, in last year's elec-
tion you were opposed to the Union." Haggard replied to
the effect that he did not regard UAW as much of a
Union.49 About an hour later Polich went to another area
adjacent to the plant to hand leaflets to the laboratory em-
ployees who were then reporting for work. Blais came to
this area and observed the distribution of handbills.
Between 2 and 3:30 that afternoon, Polich was near the
parking lot to hand leaflets to second shift employees then
coming to work. From this point he had a view of win-
dows in Respondent's office that faced the parking lot.
While Polich was so engaged, management officials of the
Company, including Blais, Mortell, and Donner, periodi-
cally appeared at the window and for a period of time, ob-
served the distribution of handbills to the employees. Em-
ployee Gremar testified that she observed these manage-
ment officials at the window for about 10 minutes. Em-
ployee Bultman testified that she observed it some 4 or 5
minutes. That at least one employee was aware of such
observation is demonstrated by the fact that employee
Bultman called Polich's attention to the activity of
Respondent's management officials at the windows.
When handbilling occurred prior to the election, there
was, according to Polich, no observing thereof by
management, and on such occasions all but three em-
ployees accepted handbills he offered them, but the day
of the election such refusals were greater in number.
Blais admits that between 6 and 6:30 a.m., shortly after
his conversation with Polich, and while the handbilling
was in progress, he went up on the roof of the building.
He gave no reason for his being there, nor is there any
evidence that he normally went to the roof for any pur-
pose. Under the circumstances I can only conclude, as I
do, that his presence on the roof, and the presence of
Respondent's management officials at the windows, as
above stated, was for the purpose of demonstrating to the
employees that Respondent was watching their contacts
with union agents, to discourage their acceptance of
union literature being offered them.so
4. Postelection events
a. The Clipper incident
Robert Clipper was among the most active and open
proponent of the Union among Respondent's employees.
He signed a union card in February, attended union
meetings, distributed literature in the plant during breaks,
wore union insignia , discussed the benefits of union
representation with fellow employees, and was a member
of the Union's in-plant committee; Respondent being ad-
vised of the latter fact by the Union's letter of March 8.
The evidence also shows, as Blais admitted, that after one
of his speeches to the employees in July, Clipper asked,
in effect, that he be given equal time to state the Union's
side regarding some of the comments Blais had made, and
on the night of August 2, it was Clipper who complained
to Supervisor Neblock about Ivlow's distribution of an-
tiunion literature in the plant.
Clipper began work with Respondent in December
1964, and was assigned to department 4, a production de-
partment, where mix is prepared and placed in drums, and
the drums moved to the trucks for shipment. Here heavy
lifting is required only occasionally. In March, Clipper
was transferred from department 4 to department 17,
where he worked under group leader Ivlow, trucking
materials to other departments, cleaning the drum shed,
unloading boxcars, and general cleanup. Each day em-
ployees in this department handled bags of material, some
weighing over 100 pounds, in some instances lifting them
above the head to properly stack them.
On July 11 or 12, Clipper injured his back while lifting
heavy bags of material. Whether Clipper went to the doc-
tor at this time is not clear, but it is clear that Respondent
knew of Clipper's injury, for when Clipper reported for
work the next day, he was told by Ivlow that the latter
had instructions to put Clipper on light work, and directed
Clipper to operate the heister. Clipper continued to
do this work, but still had difficulties with his back,
and on July 29 was sent back to the doctor. On that
day the doctor after taking X-rays which proved negative
administered an injection calculated to relax the muscles,
and by formal report dated July 29 advised Respondent
that Clipper could return to work, "but no lifting," and
that he should return to the doctor on August 2. On the
last mentioned date the doctor discharged Clipper, and
his formal report which stated that fact was received by
Respondent on August 13.
On August 2, Personnel Director Donner told Clipper
that the latter was being permanently transferred to de-
49 Pouch testified that Blais repeated the same question to Baker and
Emling However, those employees gave no such testimony Accordingly,
I make no finding in that regard
50 Based on the composite of the credited testimony on this point by
Polich , Gremar , Bultman, and Haggard , and the admissions of Blais As
stated, Blais admitted his presence on the roof He also admitted his
presence at the windows from time to time Although he would not admit
that his activities were with the deliberate purpose of observing the union
activities then in progress , and apparently sought to leave the impression
that he was pursuing his business in normal fashion and could not avoid
seeing those things which incidentally fell within his vision , he admitted
that on the day of the election, "we were more conscious of the day and
the tempo of things."
J. W. MORTELL CO. 447
partment 10 because that was light duty.51 Actually,
Clipper did not work in department 10 on August 2,
because of lack of materials, but did work there on Au-
gust 3, the date of the election. When Clipper reported for
work on August 4, he was told that there was no more
work for him in department 10, and that he should report
to Ivlow in department 17. Ivlow directed Clipper not to
operate the heister, but to get into the cars and lift the
bags onto the pallets as the other man did. Clipper stated
that he was supposed to be on light work, but Ivlow in-
sisted that he do the work assigned to him, or go home
until he could. Clipper, feeling that he could not afford to
lose work, did as Ivlow directed and performed the
heavy work required of him in department 17.
About August 23, department 8 Leadman Whalen told
Clipper that the latter would be transferred to department
8, where he would be assigned to wash trucks.52 Clipper
expressed his lack of interest in such a job because the
work had to be done out of doors and would be un-
pleasant in cold weather. Whalen told Clipper that if the
latter changed his mind to let him (Whalen) know because
he could get the job for him if he wanted it. On August 30
Supervisor Neblock, to whom Clipper had protested
Ivlow's distribution of literature the evening preceding
the election, told Clipper that he (Clipper) was trans-
ferred to the washer job on the second shift in department
8. This job, the record shows, had become available
because employee Jones had been transferred from that
job to the first shift in department 5. Clipper performed
the duties required of him in department 8, until about
November 18, as hereafter set forth. The transfer to de-
partment 8 involved no change in pay for Clipper. Both
before and after his transfer to department 8, Clipper
spoke to several management representatives including
Personnel Manager Donner, concerning the possibility of
a transfer to department 4, a production department,
where Clipper had initially worked, and was told that he
would be considered for such transfer if and when there
was an opening. However, such transfer was never of-
fered him. It was stipulated that in the period involved
five new employees were hired for work in department 4,
and that one of those so hired was for work on the second
shift.53 Finally, on or about November 18, Clipper in-
formed Respondent that he had missed a lot of time from
his job and from schoo154 because of colds and the flu,
that he was in the hospital because of a relapse, couldn't
stand the outside work because the cold climate did not
agree with him, and that he would not report back to
work. Clipper's employment with Respondent terminated
as of that date. Although Respondent then had plans for
moving its equipment-washing operations inside a heated
building, and did so about December 1 (except for equip-
ment which had carried combustible materials ), Clipper
was not informed of the contemplated change.55
b. The Roger Steen wage-rate incident
Steen had been employed by Respondent for some
period before the Union began its organizational cam-
paign. He took an active interest in the Union from the
start, signing an authorization card, attending union
meetings, and wore several types of UAW insignias in the
plant.56 On November 1, about 3 months after the elec-
tion, Steen was transferred to department 4, as a mixer-
operator helper. He continued to receive the same rate of
pay he got in his old job; namely, $2.30 an hour. About
the same time Steen was transferred to department 4, two
other employees in that department were reclassified
from ""Mixer Helper" to "Mixer Operator"; Creekmore
on November 8, and Grob about December 5, and their
pay was increased from $2.30 to $2.40 per hour. Effec-
tive February 7, 1966, Steen was reclassified from
"Mixer Helper" to "Mixer Operator," and his pay was
increased to $2.45 an hour.57 The papers executed at that
time, under the heading "Reason or Remarks," carry the
following notation: "He has become an operator-He is
able to make several MBC's w/o the help of a group
leader. He has operated a mixer for 3 months. Qualified
for Mixer Operator's pay based on abilities shown during
3 months period."58
c. The suspension of Marion Sheets
Sheets was among, if not, the most active of the prou-
nion employees. She was an observer for the petitioning
union at both the 1964 and 1965 elections; attended
union meetings; held employee gatherings at her home;
distributed union literature; testified for UAW at the
representation case hearing; signed a union card and ob-
tained more signed cards from her fellow employees than
any other solicitor; and in the letter which the Union sent
the Company on March 8 was listed as a member of the
in-plant committee. That her union activities were known
to Respondent is evidenced by the references to her
union sympathies by both Blais and Donner, at meetings
they had with employees before the election.
On November 18, Sheets, while returning to her work
station after the lunch break, learned from an employee
that a petition was circulating asking Respondent to
declare Friday after Thanksgiving a nonwork day, so as
to afford an extended weekend. At her machine, Sheets
engaged fellow employees Luella Hutson and Nora
51 The work assigned to Clipper in department 10 involved putting
door bottoms into plastic bags and sealing them with a pressure seal
Where Clipper worked between July 29 and August 2, if he in fact did
work, does not appear.
52 This involved not only washing the outside of the over-the-road
equipment but scraping away material that might have fallen inside
trailers, scraping the inside of tankers, and the screens thereto
53 The employees so hired and their dates of hire are Richard Miller,
August 25, Ace Newman, August 26, Ronald Garrett, September 20,
Rufus Turner, October 16, and Frank Dunnymer, December 7 Newman
was the one hired for the second shift.
19 In addition to working a full 40-hour week for Respondent, Clipper
was a full-time student at a local college. Because of his school at-
tendance, Clipper could work only the second shift- 3 30 to I 1 p in
55 Respondent argues that Clipper admitted that he knew of the plans to
move the equipment -washing operations inside, but I do not so construe
his testimony What Clipper stated was, that he had been told by Neblock
that the Company "was thinking about moving it inside" but that "tanker
scraping would [continue to] be outside " I do not regard this as a state-
ment that Clipper had been told that the move would be made, nor does
the record show when Neblock made this statement to Clipper
55 In sec 1, D, 3, b, supra, is set forth the incident when Steen asked Su-
pervisor Francoeur for a raise, and the latter, pointing to the UAW insig-
nia on Steen's T-shirt, said, "what with the rag "
54 As a result of a general wage increase to all employees, effective
February 7, 1966, the rate for this job increased to $2 54, and thereafter
Steen was paid at the increased rate
58 The record shows that as of March 27, 1966, there were nine em-
ployees in department 4, who were classified as "mixer operators," six
being paid $2 64 an hour, and three at $2 54 an hour In either group, em-
ployees who worked the night shift received an extra 10 cents. Of the
nine, Steen was the last assigned to that classification
448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Roberts in conversation, and asked Roberts if she had
signed the petition. Roberts said, "No." Sheets then
stated that she had not signed it and, according to Sheets,
stated in effect that the girls never do anything I want, so
I won't do what they want, "I will get even with them if it
is the last thing I do." Neither Roberts nor Hutson made
any comment, and the three resumed work. About 2
hours later, Sheets was called to Personnel Director
Donner's office where she found, in addition to Donner,
Plant Manager Boulger and Department Foreman Kreft.
Sheets was told that her aforementioned remarks to
Roberts were regarded as a "threat to do bodily harm."
Sheets denied making any threat, and explained that she
had neither prepared nor signed the petition regarding the
extended holiday. Donner replied that he had a signed
statement from Roberts, which he regarded as sufficient.
Sheets asked that Hutson be called in to corroborate her,
but Donner refused. He did, however, at Sheets' request,
call in Roberts, and, in the presence of Sheets, asked
Roberts if the written statement she had given manage-
ment was true. Roberts affirmed that it was.59 According
to Sheets, she told Roberts that the latter had "lied."
However, Boulger and Roberts testified that when
Roberts affirmed the truth of her statement Sheets replied
to the effect that she didn't mean it that way, or didn't
mean Roberts as the person she was going to get even
with.60 In any event, Donner thereupon told Sheets,
"Well, you know this has happened before. I will have to
suspend you for three days." To this Sheets replied,
"Well there is nothing I can do about it, you won't listen
to anything I have to say."
Later in the day, having heard of the events in
Donner's office relating to the Sheets' suspension, Hut-
son went to see Donner and told him that Roberts had
"lied," but Donner insisted that he would not change his
mind. Sheets also telephoned Donner after work, trying
to convince him that what Roberts had said could not be
true. Donner told Sheets that Hutson had been to see him
and corroborated Sheets, but that he needed time to
check it out and would call her back. He added however,
that as of that time, the fact that Hutson corroborated
Sheets would not change his mind. Donner did call Sheets
back and, as Sheets testified, said:
He told me that he hadn't had the opportunity to
check the story because all the girls that I worked
with had left at the same time that I had and that he
would like to check into it and ask them questions,
but that he didn't think it would change his mind
because it would undo everything he had done. That
I was the backbone of the girls and they seemed to
lean on me . And that I was pretty intelligent . That is
the way he worded it to me.
He also stated that he didn't know what seemed to
be the matter with me lately, he had heard from past
records or seen from past records that I was a very
good operator . But, since my Union activities, my
work had slacked off considerably.61
11 Roberts testified , and it is not otherwise denied , that Donner either
read or handed her the statement The statement signed by Roberts is in
evidence. It quotes Sheets as having said, when Roberts replied that she
had not signed the petition, "I'll get even with you' In spite of every-
thing, I'll get even with you"" and that this statement was followed by
some curse words
80 1 find it unnecessary to resolve the conflict
81 Donner admitted this telephone conversation with Sheets, and that
he made some statement to her about her ability and that she was a good
Donner admitted that since he became personnel director
on or about June 1, 1965, he had never received any com-
plaint concerning threats by Sheets. He also admitted that
after Roberts' complaint came to his attention, he,
Boulger, and Kreft discussed the matter and reached a
tentative decision to suspend Sheets before she was
called in.
d. Interrogation of Steczynski
In January 1966, the Union held a meeting at the local
Labor Temple, which Steczynski attended . In the course
of the meeting Steczynski stated that Donner had tried to
influence two employees against the Union . The follow-
ing day, while at work , Steczynski was engaged in con-
versation by Donner , who, after some general talk told
Steczynski, "I see what side of the fence you are on."
Replying to Steczynski ' s request for an explanation,
Donner stated , "Well, at that last meeting , I understand
you were talking about me."62
e. Interference with Board progress
On April 6, 1966, in preparation for the hearing, the
General Counsel forwarded subpenas and a covering
letter to a number of persons whom he thought might
have information to his case.63 The subpena called for the
attendance of the witness at the Board's hearing then
scheduled for June 14. The letter that accompanied the
subpena stated that attendance at the time and place in-
dicated in the subpena was mandatory, and that failure to
so appear "subjects you to legal action being brought
against you in a Federal Court;" the General Counsel
was the only person that could grant a release from the
subpena; and that only after the General Counsel had
talked with the individual could it be decided whether his
attendance would ultimately be required. The letter con-
cluded by requesting the addressee to telephone or call
upon the General Counsel's representative at a specified
motel between April II and 15, 1966. Shortly after April
6, 1966, Respondent posted on its bulletin board a notice
to employees, which stated in substance, that if any em-
ployees had any question about the aforementioned sub-
pena or letter, to see Personnel Director Donner. Donner
admitted that about six employees, including Karla Starr,
came to see him about the matter. Starr testified that after
seeing the notice on the bulletin board, she went to see
Donner and asked about the subpena and the letter which
she had received, and Donner told her that she did not
have to appear in court or visit the General Counsel's
representative at the motel; and she told Donner that she
thought she had to go. Respondent did not cross-examine
Starr with respect to this aspect of her testimony.
Donner, however, testified that he told Starr that she
might have to appear at the trial, but that compliance with
counsel's request that she confer with him at the motel,
"was strictly up to her," that she could go, or not, but that
machine operator . He did not deny the remainder of the statement at-
tributed to him by Sheets I therefore credit Sheets as to what was said in
this telephone conversation
62 Donner denied that he had any conversation with Steczynski about
the Union, and specifically that he made the remarks Steczynski at-
tributed to him I credit Steczynski
61 It was stipulated that such letter and subpena were sent to about 175
persons, about 100 of whom were then employed at Mortell
J. W. MORTELL CO. 449
if she decided to go, and wanted time off for that purpose,
that he wanted advance notice.64
1 am not satisfied that Starr meant that Donner urged
her not to comply with the subpena or counsel's request
that she appear for an interview. Starr was born in Ger-
many, and has not acquired much skill in the reading and
writing of English. For this reason I am not convinced
that there is really any conflict between Starr and
Donner, or that her testimony does not mean that Donner
simply told her that a visit to the motel was not legally
compulsory. In any event, the issue here presented may
be disposed of on other grounds.
On April 15, 1966, Respondent posted the following
notice on its bulletin board:
NOTICE TO EMPLOYEES
This notice is prompted for two reasons. First, many
of our employees are confused as to the meaning and
importance of communications which may have been
received by them from the National Labor Relations
Board, asking them to contact Mr. Eisenberg.
Secondly, we wish to provide you with the truth
about a meeting notice passed out by union or-
ganizers on April 13.
1.- On August 3, 1965 our employees rejected
a union in a secret ballot election. The U.A.W.
asked the N.L.R.B. to throw out the election
results and give them the bargaining rights
without second election. The N.L.R.B. has
agreed to hold such a hearing to consider this
possibility. This is the reason many of our em-
ployees have received a notification about a sub-
poena to appear at the hearing.
Preliminary to this hearing Mr. Eisenberg wishes to
ask you certain questions about the union affair. Do
not confuse the subpoena with Mr. Eisenberg's
request. You are under no obligation to discuss the
case with him prior to the hearing. If you wish to
discuss the matter with him, you are encouraged to
do so. However, we have received reports that union
organizers, trying to supply witnesses for Mr. Eisen-
berg, have coerced and misrepresented Mr. Eisen-
berg's communication, causing some of our people to
believe that they must contact Mr. Eisenberg at this
time . This is typical of the union ethics we have all
seen over the last sixteen months.
Do not be intimidated by the union organizers. Their
"Notice of Meetings" handout is further intimidation
to seek our cooperation with Mr. Eisenberg. They
would have you believe a certified union exists and
you had better play ball with them.
2. The "Notice of Meeting" handout is misleading.
There is no certified Local 1387 at the J.W. Mortell
Company. This is another instance of "union
baloney." Whether our employees will eventually be
represented by the U.A.W. will depend upon the out-
come of the court hearing which will probably take
several weeks. It will be months after the hearing be-
fore a decision is handed down.
Wonder if those attending the meeting will be obliged
to pay union dues?
J. W. Mortell Company
The General Counsel apparently had some difficulty in
contacting his witnesses, but the reason for this was not
developed. In any event, on May 18, 1966, the General
Counsel mailed one of two types of letters to the wit-
nesses; one type to the witnesses he regarded as
"friendly,"65 and the other to persons who had not
responded to the General Counsel's letter of April 6;66
the number of the latter types of letters is not disclosed
by the record. The so-called friendly letter stated that
counsel would be at a designated motel in Kankakee dur-
ing the first week of June, for the purpose of talking to the
addressee regarding this case, and asked that counsel be
contacted promptly. This letter also stated:
By meeting with me at the motel I may be able to ex-
cuse you or, in the alternative, at least reduce to a
minimum the inconvenience caused you. If, after we
meet, I decide you must testify, I will give you a
specific hour at which you must be at court. On the
other hand, if your testimony is needed and we do
not get together, you may have to wait in the court-
room for many hours, or even more than one day,
before you are called.
The letter, sent to the persons who had not theretofore
responded to counsel's letter, asked the addressee to
communicate with counsel at the motel during a
designated period, and also stated:
There is also another reason why it is advisable for
you to contact me. If we meet, you may be excused
or at least you will be given a definite time to appear,
so as to reduce to a minimum the inconvenience
caused you. On the other hand, if you arrive at the
hearing without having previously talked to me you
may have to be present for many hours, or even more
than one day, before you are called to testify.
After the aforementioned letters were received by em-
ployees, Respondent, on May 24, 1966, posted a further
notice to employees on the bulletin board. This notice
was as follows:
NOTICE TO EMPLOYEES
MEETING WITH NATIONAL LABOR RELATIONS BOARD
ATTORNEYS
Once again employees have asked the Company if
they must go to the motel of the government lawyers
about the union case.
Feel free to go to the motel or feel free to stay away.
No one can legally pressure you either way. Some of
you have been told you will be held in court by the
government lawyers for four or five days. This is
only a union pressure tactic to force you to go to the
motel. We honestly do not believe the government
ea Neither Donner, nor any other witness called by the General Coun-
sel, gave any testimony regarding interviews with Donner about the sub-
pena or the letters attached thereto.
"5 A copy of this type of letter is in evidence as G.C Exh 24(b)
ss A copy of this type of letter is in evidence as G C Exh 24(c)
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawyers will hold you in court just to punish you for
not going to the motel . You might be required to wait
in court several hours but we are confident that an
orderly arrangement will be worked out.
We sincerely regret these latest union pressure
tactics , and we hope you will bear with us until this
whole thing is concluded.
Feel free to go to the motel or feel free to stay away.
B. Contentions and Concluding Findings
1. Interference , restraint , and coercion
Upon the basis of the foregoing findings of fact, derived
from the credited testimony, I find and conclude that
Respondent violated Section 8(a)(1) of the Act in the fol-
lowing particulars:
(a) The interrogation of employee Haggard by Super-
visor Francoeur in February 1965, as to the attendance
at the union meeting the preceding day. The right of an
employer to interrogate employees regarding their union
activities is restricted to those circumstances when he has
a legitimate interest in making such inquiry, and does so
with adequate safeguards to demonstrate that no restraint
and coercion results. See Blue Flash Express, Inc., 109
NLRB 591. Here, Francoeur had no legitimate purpose
for his inquiry of Haggard. Absent such legitimate pur-
pose, and Respondent's antiunion animus which is so
plainly reflected by its other conduct, herein more fully
detailed, this interrogation must be regarded as coercive
and violative of Section 8(a)(1) of the Act. I so find and
conclude.
(b) The early March announcement of improved fringe
benefits, even though the decision to grant such improve-
ments was therefore made. In light of Respondent's
March 5 letter to its employees, in which it made clear its
strong opposition to the Union, such announcement, at a
time when the union campaign was at its height, could
only have been for the purpose of trying to dissuade its
employees from their organizational activities. I so find
and conclude.
(c) The statements by Supervisor Francoeur to em-
ployees Steen and Southard that they would not receive
a pay raise because they were wearing UAW insignias.
(d) The interrogation of employee Southard by Super-
visor Davis as to how Southard would vote in the then ap-
proaching election, and the subsequent statement by
Davis that whether the Union got in or not "it is going to
be hard as hell on all of us."
(e) The interrogation of employee Scarborough by Su-
pervisor Gallois as to whether Scarborough had signed a
union card, as well as by Gallois' statement that she had
been told by a fellow employee of Scarborough's that the
latter had been "signed up, hook line and sinker."
(f) The disparate enforcement of Respondent's plant
rule against solicitation and literature distribution.67 The
activities of Ivlow and Lagesse in particular, as above
detailed, make it plain that Respondent must have been
aware of what Now and Lagesse were doing and pur-
posely refrained from taking any action to have them stop
their anti-UAW activities. Conversely however, as the
61 As the evidence shows that Respondent promulgated these rules
several months before UAW came on the scene, I do not find that the rule
was promulgated for a discriminatory purpose. Also , as the General
evidence shows, employee Hartman was reprimanded for
having UAW literature in his hand while in the
clockroom, a nonwork area, and directed to go outside to
"pass out that stuff"; employees in department 17, during
an address by Blais were told that union literature could
not be distributed anywhere in the plant; Supervisor
Kreft directed that union literature be removed from the
lunchroom tables; and union literature which employee
Gremar had left with her purse was removed apparently
by Supervisor Kreft, while Gremar was absent from her
work station. When this conduct is compared to that en-
gaged in by Ivlow and Lagesse, and which Respondent
must have been aware of and made no effort to stop, the
inference is clear that Respondent intentionally enforced
its rule prohibiting distribution and solicitation only
against pro-UAW activity, but condoned, if it did not in-
deed encourage, such activity on the part of anti-UAW
employees, and thereby violated Section 8(a)(1) of the
Act. I so find and conclude.
(g) Blais' interrogation of employee Haggard on the
day of the election, as to the latter's reasons for support-
ing UAW.
(h) The conduct of management officials on the day of
the election in stationing themselves at the office window,
and on the roof of the plant, observing the Union's dis-
tribution of handbills and the reaction of the employees
thereto. The evidence shows that at no time prior to Au-
gust 3, had Respondent's officials engaged in such con-
duct, and there is affirmative evidence that on this day the
reluctance of employees to accept literature from the
union agents was markedly greater than at any other time
in the campaign. Respondent offered no evidence to justi-
fy this conduct, nor does its brief advance any argument
in justification thereof. While this was Respondent's pro-
perty and its officials were at places they had an un-
doubted right to be, and were not required to close their
eyes to the activities which the Union chose to carry on
directly within their line of vision, I am convinced and
find that Respondent's activity was engaged in with the
intent and purpose of demonstrating to the employees
that Respondent was watching their contacts with union
agents in order to discourage their acceptance of union
literature being offered them. This fact distinguishes the
instant case from Salant & Salant, Inc., 92 NLRB 417,
446-447. Certain-Teed Products Corporation, 153
NLRB 495, 498, 507. See also Atlanta Gas Light Com-
pany, 162 NLRB 436.
(i) Donner's statement to employee Steczynski that
the latter had talked about Donner at the union meeting
held the preceding night. In view of the fact that the state-
ment was made so closely following the union meeting,
and the accuracy of Donner's statement, I find and con-
clude that said statement gave the impression that
Respondent had the union activity of its employees under
observation and surveillance and, therefore, violated Sec-
tion 8(a)(1) of the Act. Precision Products & Controls,
Inc., 160 NLRB 1119.
(j) The notices posted by Respondent on April 15 and
May 24, with respect to the letter sent to prospective wit-
nesses by the General Counsel. In light of Respondent's
antiunion animus, which so clearly appears from the
record as a whole, and its purpose to dissuade the em-
ployees from selecting union representation, albeit the
Counsel concedes that the rule is valid on its face, I do not find its mere
existence to be violative of the Act.
J. W. MORTELL CO. 451
means employed were in many instances not proven to be
unlawful, I must and do find and conclude that Respond-
ent posted the notices referred to with the intent and
purpose of instilling in the minds of employees, by in-
nuendo it is true , the thought that Respondent would
prefer that its employees not cooperate with Board coun-
sel, as the latter had requested. So viewed the notices in-
terfered with the right of employees to have their statuto-
ry rights vindicated in the manner provided by the Act. If
such was not Respondent' s intent and purpose, it is dif-
ficult to understand why it would tell the employees that
they were "free to stay away" from the General Counsel,
and thereby inject itself into the General Counsel's ef-
forts to marshall his evidence and present it with the least
inconvenience to all concerned, and characterize coun-
sel's efforts in that regard as "these Union pressure tac-
tics," when Respondent well knew- that it was the
General Counsel, and not the Union, that was seeking to
interview the witnesses, in the discharge of his duty to
vindicate the public interest.68
2. The 8(a)(3) and (1) allegations
a. The Emling promotion
Upon the facts summarized above (sec. I, A, 3, h), I
find and conclude that Respondent's extension of
Emling's trial period on July 21, and the August 18 ter-
mination of the additional duties and rate increase granted
him on a trial basis the preceding April 16, were dis-
criminatorily motivated. The following factors lead me to
that conclusion:
(1) When Emling was given the additional duties and
pay increase, he ceased the union activities in which he
had theretofore engaged. However, sometime in June he
resumed his union activities, wearing a union button in
the plant, distributing union literature in front of the plant,
and serving on the Union's in-plant committee.
(2) Until July 21, when his trial period was extended,
Emling's performance of the additional duties was not
criticized. The 90-day trial period having expired July 16,
Emling on July 19 asked Plant Manager Boulger what
decision had been reached in that regard..Boulger's reply
was that he would look into the matter. Two days later,
Emling was told by Blais that the trial period was being
extended for 30 days. 69 It is important to note that at this
time Blais told Emling "generally you are doing the job
satisfactorily," and that only Emling's "attitude towards
management," which he hoped Emling'would correct in
the 30-day period, was what prompted the extension.
Specifically, Blais referred to an incident when Emling al-
legedly called Kreft, under whose supervision Emling
performed the additional duties, a "damned fool," and
suggested that Emling discuss that incident with Kreft.
(3) It is significant that Kreft did not support Respond-
ent regarding the incident upon which it places its
greatest reliance. Kreft testified that there was an occa-
sion when he heard Emling use the words "any damned
fool," but admitted that Emling then used other words
which he (Kreft) did not hear, and refused to say that
Emling's language was directed at him.
Proof of the foregoing facts made out a prima facie case
on behalf of the General Counsel's contention with
respect to this incident, which imposed upon Respondent
the duty of going foward with the evidence and giving an
adequate explanation for the extension of Emling's trial
period and subsequently relieving-Emling of his extra du-
ties and the additional compensation therefor. Only by
doing so could Respondent dissipate the unfavorable in-
ferences to be drawn from the General Counsel's
evidence. In view of the admission by Blais on July 19
that generally Emling was "doing the job satisfactorily,"
and that Respondent's principal objection was to
Emling's alleged language regarding Kreft, which Kreft
does not support, it is only reasonable to infer that there
is another motive-an unlawful motive-which Respond-
ent desired to conceal. Shattuch Denn Mining Corp. v.
N.L.R.B., 362 F.2d 466, 470 (C.A. 9). Upon considera-
tion of all the facts, I am convinced that the motivating
reason for the extension of Emling's trial period until after
the election was -the- fact that in June he had openly
resumed the extensive union activities which he had
abandoned in April,-when he was given the additional du-
ties and increased pay, and that after the Union lost the
election on August 3, Respondent took away from
Emling the additional duties and increased pay, in retalia-
tion for his union activities in the latter part of his trial
period. I so find and conclude. -
b. The Clipper incident
Upon the facts summarized supra (sec. I, A, 4, a), I
find and conclude that Clipper's transfer to department 8
was discriminatorily motivated, and that his termination
on November 18 constituted a constructive discharge by
Respondent. I am led to this conclusion by the following
factors:
(1) The fact that Ivlow on and after August 4 required
Clipper to perform the full duties of department 17 would
indicate that Respondent knew at that time that Clipper
had been discharged by the doctor and that there was no
necessity for keeping him on light work. But even if that
fact was not known to Respondent on August 4, it was
certainly so informed on August 13, when it received the
doctor's final medical report.
(2) A week prior to his transfer to the equipment-
washing job in department 8, Clipper told Whalen, the
leadman in that department, why he was not interested in
such a job. As it was Whalen who first informed Clipper
of his contemplated transfer to department 8, it is
reasonable to infer, as I do, that management had
discussed the proposed transfer with Whalen, and that the
latter after his talk with Clipper informed management of
Clipper's lack of interest, if not actual distaste for the de-
partment 8 job.
(3) It is reasonable to infer, as I do, that during the late
fall and winter season, in downstate Illinois, washing
equipment out of doors is a more onerous job than even
the heavy work required in department 17. That Re-
spondent recognized this is made evident by the fact
that it went to the expense of moving that work inside as
of December 1.
68 The complaint charges a number of additional incidents as being
violative of Sec 8(a)(1) of the Act I find it unnecessary to consider or
pass upon those additional allegations , as substantial violations of Sec
8(a)(1) of the Act, many within the critical period of the representation
case have been found These findings will require a broad remedial order,
and the setting aside of the election . No different order or relief would
result if all the remaining complaint allegations were considered and found
violative of Sec 8(a)(1)
69 At this time Respondent knew that the August 3 election was im-
minent ; the Decision and Direction of Election having issued June 29.
336-845 0 - 70 - 30
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(4) Although Clipper made numerous requests of
management for assignment to department 4, and during
the period involved it hired new employees for that de-
partment, no such an assignment was offered Clipper. No
evidence was offered even tending to show that Clipper
was not qualified for the work in department 4, where he
had previously worked.
(5) When Clipper called on November 18 and stated
that he could not stand the outside work because of the
cold climate, and for that reason would not return to
work, he was not told that the work was being moved in-
side. No reason was advanced for withholding that infor-
mation from Clipper.
The reason assigned for transferring Clipper to depart-
ment 8 was that he was unable to perform the full duties
required in department 17; Personnel Manager Donner
had been orally informed by the doctor that Clipper
should refrain from lifting for quite sometime, or there
could possibly be a recurrence of his back trouble;
Respondent acted prudently in minimizing the risk of in-
jury to Clipper by transferring him to light work; and it
took until August 30 to find a suitable job for him. The
facts, I find and conclude, do not support Respondent's
contentions.
To begin with the testimony is clear that Clipper did in
fact perform the full duties of the job in department 17
from August 4 until his-transfer to department 8, on Au-
gust 30, a period of almost 4 weeks. If Respondent was
in fact concerned about a possible recurrence of Clipper's
back problems, it strains credulity beyond the breaking
point to believe that Respondent would have kept Clipper
performing the full duties of department 17, including lift-
ing of heavy bags - precisely the kind of work most likely
to produce the very results it was allegedly seeking to
avoid. It is also difficult to believe that in a plant of about
300 employees it would take nearly 4 weeks to find light
work for an employee whom it had to guard against the
recurrence of a back injury. I believe it to be more logical
that Respondent, because of Clipper's outspoken support
of the Union's cause, down to the evening before the elec-
tion when he complained of Ivlow's activity in the plant,
(supra, sec. A, 3, d, (1)), and learning from Whalen that
Clipper regarded the washing job as onerous and distaste-
ful, assigned Clipper to that job in the hope that he would
quit, and it was for this reason when Clipper called to say
that he was quitting and the reason therefor, that Re-
spondent withheld from him the information that equip-
ment-washing operations were being moved indoors. I
so find and conclude. Having so found, it follows that
Clipper's transfer to department 8 was discriminatorily
motivated, and his subsequent quitting a constructive
discharge by Respondent.
c. The suspension of Marian Sheets
Although I am inclinded to the view that Sheets did not
threaten Roberts, and that Respondent had no reasonable
basis for believing that she did so,70 I find it unnecessary
to and do not decide whether or not Sheets in fact did so.
For assuming that Sheets did in fact threaten Roberts, or
that Respondent in good faith thought she had done so,
upon the entire record, I find and conclude that Respond-
ent's suspension of Sheets was motivated by her union
activity, and that the alleged threat to Roberts was only
a pretext seized upon to obscure the real motive of
Respondent's action. My reasons for so concluding are:
(1) Respondent, as I have found, entertained a strong
union animus.
(2) Sheets, as heretofore found, was among if not in
fact the most prounion employee in the plant. That
Respondent was aware of this fact is made evident by
reason of references to her union sympathies by manage-
ment officials, including specifically Personnel Manager
Donner, at meetings they had with employees. Moreover,
in the telephone conversation between Sheets and
Donner on the day of her suspension, Donner referred to
Sheets' union activities, and claimed that her work had
suffered because of it.
(3) Although Donner told Sheets during the interview
on November 18, that "this has happened before," he ad-
mitted when testifying that he theretofore received no
complaints as to threats by Sheets.
(4) Donner's admission that after Roberts' complaint
came to his attention, he, Plant Manager Boulger, and Su-
pervisor Kreft met and discussed the matter, and,
without further investigation or inquiry of Sheets, decided
tentatively to suspend her. When Sheets was interviewed
about the matter and stated that Hutson was a witness to
her conversation with Roberts, Donner refused to inter-
view Hutson. Moreover, when Huston went to see
Donner, and, as Donner admitted, corroborated Sheets,
he insisted that even that would not change his mind.
Failure to conduct a full and fair investigation of an em-
ployee's alleged misconduct is evidence of a discriminato-
ry intent, especially when viewed in the light of Respond-
ent's hostility to the Union. Norfolk Tallow Co., Inc.,
154 NLRB 1052, 1059; Shell Oil Company v. N.L.R.B.,
128 F.2d 206, 207 (C.A. 5).
d. The Steen wage-rate incident
The facts relating to this incident (supra, sec. 1, A, 4, b)
lead me to the conclusion that the General Counsel failed
to prove by a preponderance of the evidence that there
was discrimination in the wage rate paid Steen, as the
General Counsel contends. Although Steen was active in
the Union, his principal activity concerning which
Respondent was put on notice was his wearing of union
insignia in the plant, as did a great number of other em-
ployees. Although there is some evidence that Steen was
for a period paid at the rate of 10 or 15 cents an hour less
than the apparently proper rate for his job, l find no con-
vincing evidence that this was motivated by any desire to
discriminate against Steen because of his union activity.
Accordingly, I shall recommend dismissal of this allega-
tion of the complaint.
3. The 8(a)(5) allegations
The General Counsel contends that when the Union
made its bargaining demand on April 7, it represented a
majority of the employees ; Respondent then had no good-
faith doubt of that fact ; its refusal to honor the Union's
demand was unlawful ; having interfered with the election
70 In the first place it just does not seem reasonable that Sheets would
threaten Roberts concerning the signing of a petition which she knew
Roberts did not sign, and which Sheets herself did not wish to sign
Secondly, assuming that Roberts correctly understood Sheets as saying
I'll get even with "you," it seems farfetched , bearing in mind the realities
of conduct between employees in an industrial plant, that Respondent
would have seriously construed this as a threat
J. W. MORTELL CO. 453
held on August 3, the election should be set aside; and on
the authority of Bernel Foam Products Co., inc., 146
NLRB 1277, Respondent should be ordered to recognize
and bargain with the Union
To prove the Union's majority in the appropriate
unit," on the demand date, the General Counsel
established that the Union obtained 167 authorization
cards in the course of its campaign; 154 allegedly ex-
ecuted on or before the demand date, and 13 on various
dates on or after April 8, but before the election. The
better part of this more than 2,000 page record was
devoted to testimony dealing with the validity of the cards
as designations of the Union '72 and the employee status
of certain persons on the demand date, so that the numeri-
cal composition of the unit necessary to determine
whether the Union had a majority might be fixed.73
However, in the view which I take of the case, it is un-
necessary to decide those questions because I find and
conclude that assuming all issues are resolved in favor of
the General Counsel, the Union did not have a majority
at any relevant time.
On August 10, 1966, the final day that testimony was
taken, Respondent sought to adduce testimony to the ef-
fect that during the same period that the Union was con-
ducting its organizational campaign, District 50 was also
engaged in organizing Respondent's employees, that ap-
proximately 60 employees signed authorization cards on
behalf of District 50, and that a substantial number of
these were among the 154 card signers upon which the
General Counsel here relies to support majority status as
of April 7. Regarding the testimony as going to the
question of Respondent's "good faith doubt," I sustained
the General Counsel's objection to the proffered
testimony. Respondent made an offer to prove the
aforesaid facts Subsequently, the Board's Decision in
Bendix-Westinghouse Automotive Air Brake Co., 161
NLRB 789, came to my attention. There the Board ad-
hered to its longstanding rule that where an employee
signs an authorization card for each of two competing
unions, the card for neither union will be regarded as a
valid designation, for it is not possible to determine which
union the employee is designating as his exclusive
bargaining representative. 74
Accordingly, on November 18, 1966, 1 issued and
served on all parties an order directing them to show
cause why the record should be reopened to permit
Respondent to establish the facts covered by his offer of
proof. Pursuant to my order, the parties advised me that
they had no objection to reopening the record, and
thereafter, under date of February 13, 1967, submitted to
me a stipulation of fact, which has been incorporated in
the record as "TX Exhibit 6," and which 1 approve. By
this stipulation the parties agreed that during January,
February, and March 1965, 14 employees who signed
cards on behalf of UAW (and which are included among
the 154 upon which the General Counsel relied as proof
of the Union's April 7 majority), also signed cards for
UMW.75
Applying the rule of Bendix-Westinghouse, supra, to
the instant case, the 14 dual card signers must be ex-
cluded from the 154 cards relied on by the General Coun-
sel in support of the Union's April 7 majority, thus leav-
ing him with 140 cards. As the General Counsel concedes
that the unit consisted of at least 287 employees on April
7, it is clear that the Union did not have majority status
when it made its demand, even assuming that each of the
remaining 140 cards constituted a valid designation of the
Union.
Nor is the evidence sufficient to support a finding that
the Union acquired majority status at any time after April
7. The only thing in the record bearing on the composition
of the unit after April 7 is the stipulation of counsel that
employee Tipsword quit on April 8, that employee Hayes
quit on April 9, and that these were the only changes in
the composition of the unit between April 7 and 9. That
there was at least one change in the unit after April 9 is
clear from the evidence, which shows Wilkins was hired
June 3 and quit on July 12, and it is at least inferable that
in a unit of almost 300 other changes more than likely oc-
curred. Be this as it may, the General Counsel has the
burden of proving that the Union represents a majority,
and in the case of a contention that such majority was
acquired after the initial demand, he has the burden of
showing when such majority was acquired. As only two
cards were signed between April 7 and 9, these, assuming
their validity, did not give the Union a majority. Not only
did the General Counsel fail to show the composition of
the unit after April 9, but in his brief, and during the con-
ference held on March 20, 1967, admitted that he was
making no argument that there was a majority after April
9.
Accordingly, I find and conclude that at no time materi-
al had the Union been designated by a majority of
Respondent's employees in the unit involved as their col-
lective-bargaining representative, that Respondent's
refusal to bargain with the Union did not violate Section
8(a)(5) of the Act, and the allegations of the complaint in
that regard should be dismissed. I shall so recommend.
Upon the foregoing findings of fact, and upon the entire
record in the case, I make the following:
71 The unit alleged in the complaint was the one fixed in the Regional
Director's Direction of Election. No question was raised as to its ap-
propriateness
72 The validity of virtually every card offered by the General Counsel
was contested
72 If the General Counsel's unit contentions are fully accepted it con-
sisted of 287 employees on the demand date If Respondent's contentions
are fully accepted the number is 294
74 In addition to Bendix-Westinghouse, supra, see 1. Posner, Inc., 133
NLRB 1573, Weirton Ice and Coal Supply Company, 103 NLRB 810,
Adam Goetti dlbla International Metal Products Company, 104 NLRB
1076
75 The stipulation also provided that the parties, by entering into same,
did not admit the relevancy or materiality of the stipulated facts and
reserved the right to object to the receipt in evidence of such facts, to the
extent permitted by law Counsel for the Charging Union has submitted to
me a memorandum (in the record as "CP - I") objecting to the receipt in
evidence of the stipulated facts on the grounds, in addition to lack of
relevancy and materiality, that (1) such facts are presented untimely, (2)
the facts are at variance with the defense raised by Respondent's answer
and in all prior stages of the proceeding, and (3) there is no evidence that
Respondent was aware of the existence of the cards signed for District 50
when it refused to bargain with the Union, nor did Respondent predicate
its refusal on that ground I find these objections without merit Respond-
ent's refusal to bargain, its answer to the complaint, and its defense of the
case, were all predicated on the theory that the Union did not have a
majority The facts established by the stipulation are consistent with that
theory under the Board's holding in Bendix-Westinghouse, supra The
contention that the evidence is untimely, I do not comprehend, in view of
the circumstances under which the question arose Accordingly, the
Charging Party's objections to the receipt in evidence of the facts stipu-
lated by the parties is overruled.
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
CONCLUSIONS OF LAW
1. Respondent is an employer within the meaning of
Section 2(2) of the Act and is engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By the conduct set forth in section I,B,1, above,
Respondent interfered with, restrained, and coerced its
employees in the exercise of rights guaranteed them by
Section 7 of the Act, and thereby engaged in and is engag-
ing in unfair labor practices proscribed by Section 8(a)(1)
of the Act.
4. By depriving Emling of a promotion previously
granted him on a temporary basis, by suspending Marian
Sheets, and by transferring Clipper and thereafter con-
structively discharging him, because of their activities in
support of the Union, all as heretofore found, Respondent
discriminated against them in regard to their hire or
tenure of employment, and terms and conditions of em-
ployment, discouraging membership in the Union, and
thereby has engaged in and is engaging in unfair labor
practices proscribed by Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. The evidence fails to establish that Respondent dis-
criminated against Roger Steen because of his activities
on behalf of the Union, and that allegation of the com-
plaint should be dismissed.
7. Neither on April 7, 1965, nor at any material time
thereafter, was the Union the collective-bargaining
representative of Respondent's employees in the unit in-
volved, and the allegation that Respondent refused to bar-
gain with the Union in violation of Section 8(a)(5) and (1)
of the Act should be dismissed.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices , it will be recommended that it be required to
cease and desist therefrom and take the affirmative action
set forth below , found necessary and designed to effectu-
ate the policies of the Act.
It having been found that Respondent interfered with,
coerced , and restrained its employees in the exercise of
rights guaranteed by Section 7 of the Act, I conclude
from the nature and totality of its conduct , that Respond-
ent should be required to cease and desist from in any
manner interfering with, restraining , or coercing its em-
ployees in the exercise of rights guaranteed them by Sec-
tion 7 of the Act. N.L.R.B. v. Entwistle Mfg. Co., 120
F.2d 523 (C.A. 4); California Lingerie Inc., 129 NLRB
912, 915.
Having found that Respondent discriminated against
Robert Clipper, James Emling, and Marian Sheets
because of their assistance to and support of the Union,
it will be recommended that Respondent be required to
(1) offer Robert Clipper , immediate , full, and uncondi-
tional reinstatement to the job he was transferred from on
August 30 , or a substantially equivalent job, without
prejudice to his seniority or other rights privileges or
working conditions ; (2) restore James Emling to the job
held by him immediately prior to August 18, as then con-
stituted , and with the rate of pay for such job , without
prejudice to his seniority or other rights, privileges, and
working conditions ; (3) vacate and annul the November
18 suspension of Marian Sheets, removing from its per-
sonnel records, and all other records where such fact may
be recorded, all references to such suspension, and advise
Marian Sheets, in writing, that it has done so; (4) make
whole Robert Clipper, James Emling, and Marian Sheets,
severally, for any earnings lost by reason of the dis-
crimination against them, by paying to each a sum of
money equal to the difference between the amount he or
she would have earned but for the discrimination, and the
amount he or she did in fact earn, computed in ac-
cordance with the Board's formula set forth in F. W.
Woolworth Company, 90 NLRB 289, with interest at the
rate of 6 percent per annum as provided in Isis Plumbing
& Heating Co., 138 NLRB 716; and (5) preserve and,
upon request, make available to authorized agents of the
Board, all personnel and other records necessary or use-
ful in computing the backpay herein provided for, or
determining compliance with the order herein.
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and
conclusions of law and the entire record, and pursuant to
Section 10(c) of the National Labor Relations Act, as
amended, it is recommended that the National Labor
Relations Board order that J. W. Mortell Company, its of-
ficers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any of its employees re-
garding their activities on behalf of United Automobile,
Aerospace and Agricultural Implement Workers of
America, AFL-CIO, or any other labor organization.
(b) Threatening to deny pay increases or other benefits
to employees because of their membership in or support
of a union.
(c) Engaging in surveillance of the union activities of
its employees, or any conduct which can reasonably be
calculated to convey to its employees the impression that
their union activities are under its surveillance.
(d) Announcing improvements in the fringe benefits of
employees for the purpose of influencing their organiza-
tional activities.
(e) Interfering with the processes of the National
Labor Relations Board by advising employees that they
need not respond to the efforts of Board agents to inter-
view them as to information they have regarding a Board
proceeding.
(f) Disparate enforcement, as between prounion and
antiunion protagonists, of its plant rules prohibiting sol-
icitation and literature distribution.
(g) Discouraging membership in the above-mentioned
or any other labor organization of its employees by in
any manner discriminating against employees in regard to
their hire, tenure, or term or condition of employment.
(h) In any other manner interfering with, restraining,
or coercing employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations,
to bargain collectively through representatives of their
own choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all such ac-
tivities.
2. Take the following affirmative action found neces-
sary and designed to effectuate the policies of the
aforesaid Act:
(a) Offer to Robert Clipper, immediate, full, and uncon-
ditional reinstatement to the job held by him immediately
J. W. MORTELL CO.
prior to August 30, 1965, or a substantially equivalent
job, without prejudice to his seniority or other rights,
privileges, or working conditions, and if the said Robert
Clipper is presently serving in the Armed Forces of the
United States, forthwith notify him of his right to full and
unconditional reinstatement, upon application, in ac-
cordance with the Selective Service Act and the Univer-
sal Military Training and Service Act, as amended.
(b) Restore James Emling to the job held by him im-
mediately prior to August 18, 1965, as said job was then
constituted, and with the rate of pay applicable to said
job, without prejudice to his seniority or other rights,
privileges, or working conditions.
(c) Vacate and annul the November 18, 1965, suspen-
sion of Marian Sheets without prejudice to her seniority
or other rights, privileges, or working conditions, remov-
ing from its personnel and other records all reference to
such suspension and notifying Marian Sheets, in writing,
that such action has been taken.
(d) Make whole Robert Clipper, James Emling, and
Marian Sheets, for any loss of earnings they may have
suffered severally, by reason of the discrimination against
them, by paying to each a sum of money equal to the dif-
ference between the amount they would have earned but
for such discrimination, and the amount they did in fact
earn, as provided in the section hereof entitled "The
Remedy."
(e) Preserve and, upon request, make available to the
Board or its agents, all personnel and other records neces-
sary or useful in computing the backpay herein provided
for, or effectuating compliance with this Order
(f) Post at its plant in Kankakee, Illinois, copies of the
attached notice marked "Appendix."76 Copies of said
notice, to be furnished by the Officer-In-Charge of Subre-
gional Office 38 (Peoria, Illinois), after being signed by its
authorized representatives, shall be posted immediately
upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including
all places were notices to employees are customarily
posted. Reasonable steps shall be taken to insure that said
notices are not altered, defaced, or covered by any other
material.
(g) Notify the aforesaid Officer-In-Charge, in writing,
within 20 days from the date of receipt of this Decision,
what steps it has taken to comply herewith.77
IT IS FURTHER RECOMMENDED that the complaint
herein, to the extent that it alleges discrimination against
Roger Steen, and that Respondent unlawfully refused to
bargain with the Union, be dismissed.
II. REPORT ON OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
Having found that Respondent engaged in conduct
constituting substantial violations of Section 8(a)(1) and
(3) of the Act, most of which occurred during the critical
76 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 "
" In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read "Notify the aforesaid Officer-tn-
Charge, in writing, within 10 days from the date of this Order, what steps
it has taken to comply herewith "
455
period, it follows that the election in Case 38-RC-89,
held on August 3, 1965, must be set aside, and I so
recommend. See Dal-Tex Optical, Company, Inc., 137
NLRB 1782; Leas & McVitty, Incorporated, 155 NLRB
389, and the cases there cited. It is further recommended
that the Board remand the aforesaid representation case
to the Regional Director for Region 13, under whose su-
pervision said case is being processed, with instructions
to conduct a new election at such time as he deems cir-
cumstances will permit the employees to freely express
their choice with respect to a collective-bargaining
representative.
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
Relations Act, as amended , we hereby notify our em-
ployees that:
WE WILL NOT coercively interrogate you regarding
your membership in or activities on behalf of United
Automobile , Aerospace and Agricultural Implement
Workers of America, AFL-CIO, or any other union.
WE WILL NOT threaten to deny you pay increases
or other benefits because of your membership in or
support of any union.
WE WILL NOT spy on your union activities or en-
gage in any conduct from which you may reasonably
infer that we are spying on your union activities.
WE WILL NOT announce improvements in your
wage or fringe benefits for the purpose of influencing
you to abandon or withhold your support of any
union.
WE WILL NOT advise you not to respond to the ef-
forts of Labor Board agents to interview you as to in-
formation you may have concerning any case being
processed by said Board.
WE WILL NOT enforce our plant rules against sol-
icitation and literature distribution in such a manner
as to discriminate between those employees who are
in favor of, and those who are opposed to a union.
WE WILL NOT discriminatorily transfer , suspend,
or reduce the job status of any employee to
discourage membership in the above -mentioned
Union , or any other union.
WE WILL NOT in any other manner interfere with,
restrain , or coerce you in the exercise of your right to
self-organization , to form , join, or assist unions, to
bargain collectively through representatives of your
own choosing , and to engage in other concerted ac-
tivities for the purpose of collective bargaining or
other mutual aid or protection, or to refrain from any
and all such activities.
WE WILL offer Robert Clipper, full and uncondi-
tional reinstatement to the Job held by him just prior
to August 30, 1965, or a substantially equal job, and
restore James Emling to the job held by him just prior
to August 18, 1965, as said job was then constituted,
and with the rate of pay applicable thereto, without
prejudice to their seniority or other rights , privileges,
or working conditions.
WE WILL vacate and annul our November 18,
1965, suspension of Marian Sheets, removing from
our records all reference thereto, and notify her, in
writing, that we have done so.
456 DECISIONS OF NATIONAL
WE WILL make whole Robert Clipper, James
Emling, and Marian Sheets for the wages they lost by
reason of the discrimination practiced against them,
as set forth in the Trial Examiner 's Decision.
All our employees are free to become , remain, or
refrain from becoming or remaining , members of UAW
or any other labor organization.
Dated By
J. W. MORTELL COMPANY
(Employer)
(Representative ) (Title)
LABOR RELATIONS BOARD
Note: We will notify Robert Clipper if presently serv-
ing in the Armed Forces of the United States of his right
to full reinstatement upon application in accordance with
the Selective Service Act and the Universal Military
Training and Service Act, as amended , after discharge
from the Armed Forces.
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 Office, Fourth Floor, Citizens
Building, 225 Main Street , Peoria, Illinois 61602,
Telephone 673-9061.