"M" System, Inc.

National Labor Relations Board - Board Decisions

Jul 5, 1957

118 N.L.R.B. 502 (N.L.R.B. 1957)

502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
leadmen have no authority to hire or fire employees , to transfer employees from
department to department , or to issue reprimands , or to make effective recommen-
dations in these matters . Leadmen are subject to the immediate supervision of the
foreman and assistant foreman for their respective departments . Upon the basis of
the foregoing , I find that leadmen , or group leaders , are not supervisors . N. L. R. B.
v. Newton Company, 236 F . 2d 438 (C. A. 5); New York Shipping Association,
Inc., 116 NLRB 1183 ; Nutone, Incorporated, 112 NLRB 1153, 1164; The Clinton
Construction Company, 107 NLRB 946, 948; Hodgdon Brothers-Goudy & Stevens,
106 NLRB No. 211 (not reported in printed volumes of Board Decisions and Orders).
Absent any other basis for attributing to the Employer responsibility for alleged
misconduct by leadmen, their activities may not be considered in support of the
objections to the election herein . Parenthetically , it may be observed that even
were leadmen supervisors by reason of the technical definition in the Act they occupy
so insignificant a position in the Company 's supervisory hierarchy that it is improb-
able that they are identified in the minds of the employees as spokesmen for man-
agement. See Rheem Manufacturing Company, 114 NLRB 404, 405-406.
B. Because of lack of credibility
John Frank Robison: Employee John Frank Robison testified about events
involving his foreman , Charles Barker . Barker was not called as a witness and
therefore Robison's testimony is unrefuted . Shortly before the instant hearing
Robison was downgraded , an action which he resented . Robison went to the
Petitioner 's office in Middletown seeking their assistance in his endeavor to obtain
restoration of his previous grade . Then, for the first time , he revealed to the
Petitioner the facts about which he testified at the hearing. On cross-examination,
when Robison was questioned about the circumstances which prompted him to
disclose the information within his possession to the Petitioner he was evasive.
On direct examination , Robison testified that 4 or 5 days before the election
Foreman Barker began a conversation with him. According to Robison , Barker
specifically asked him how he intended to vote and his response was, "Well, I just
come around and told him that was my business , I would vote to suit myself."
However, on cross-examination Robison testified that the foregoing conversation
occurred about 2 weeks before the election and possibly earlier . Later he testified
that he remembered the election took place on the 18th but was unable to recall
of which month . Then, in further contradiction of his testimony on direct examina-
tion, he testified, that Barker asked , " `Who are you going to vote for? It looks like
you have got a CIO badge on.' And I said, `Yes, I have,' and I told him I was
aiming to vote for the CIO, the way I told him."
Robison also gave a confused account of an incident wherein Barker assisted
several employees in placing the Intervenor 's insignia on T shirts.
Despite the fact that no evidence was offered to contradict Robison , because he
was evasive , confused , and self-contradictory and because I find his motive for
making himself available as a witness in this hearing was vengeful , I place no reliance
upon his testimony and therefore do not credit any of it.
Billy Paul Winebarger : Employee Billy Paul Winebarger testified about a conver-
sation he had with Employment Manager Wilbur Fisher. All significant facets of
Winebarger's testimony were contradicted by Fisher. It is my opinion , upon con-
sideration of all the testimony of both witnesses and their demeanor on the witness
stand, that Fisher's testimony was the more reliable . Accordingly, I credit Fisher's
denials of Winebarger 's testimony.
"M" System, Inc., Mobile Home Division , Mid-States Corp. and
Lodge 1243, International Association of Machinists, AFL-CIO.
Case No. 16-CA-906.1 July 5,195'
DECISION AND ORDER
On March 20, 1957, Trial Examiner George A. Downing issued his
Intermediate Report in the above-entitled proceeding, finding that
'The instant case was consolidated for the purpose of hearing with Case No. 16-RC-
1773 because substantially similar issues involving the Respondent 's alleged interference
118 NLRB No. 61.
"M" SYSTEM, INC. 503
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 copy of the
Intermediate Report attached hereto. He also found that the Re-
spondent had not engaged in certain other unfair labor practices
alleged in the complaint and recommended dismissal of those
allegations. Thereafter, the Respondent filed exceptions to the
Intermediate Report and a supporting brief.2
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Murdock, Rodgers, and Bean].
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 In-
termediate Report,' the exceptions and brief, and the entire record in
this case, and hereby adopts the findings,' conclusions, and recom-
mendations of the Trial Examiner.
We concur in the Trial Examiner's finding that the Respondent, in
its letter distributed to employees on June 8, 1956, and in a speech
delivered by the Respondent's president on the same day, made
promises of economic benefit to its employees if they rejected the
Union as their collective-bargaining representative in the election
conducted on June 12, 1956. We are fortified in this conclusion, as
was the Trial Examiner, by the many statements made by Respond-
ent's supervisors to employees that various gains and benefits would
be forthcoming if the employees voted against the Union. Accord-
ingly, we find, as did the Trial Examiner, that the Respondent vio-
lated Section 8 (a) (1) of the Act by the letter distributed to the
employees and the speech made to them on June 8, and by the other
conduct described in the Intermediate Report.
with its employees' free choice of a bargaining representative were involved. After is-
suance of the Intermediate Report herein, the Union filed with the Board a motion to
sever Case No. 1G-RC-1773 from the instant case. While the Respondent has registered
opposition to such severance, there is no showing that the Respondent will be prejudiced
in any manner by permitting severance of these cases. we have therefore granted the
Union's motion to sever the instant case from Case No. 16-RC-1773. In view of this
disposition, we do not adopt the Trial Examiner's findings and recommendations that the
Respondent engaged in objectionable interference with an election held on the petition in
Case No. 1G-RC-1773 which warrants setting that election aside.
9 The request of the Respondent for oral argument is hereby denied as, in our opinion,
the record, exceptions, and brief adequately present the issues and positions of the
parties.
The Respondent charges that the Trial Examiner exhibited bias and prejudice in the
conduct of the hearing and in his Intermediate Report. We have carefully studied the
entire record in this case. Our independent review of the record reveals no support for
this charge.
4In the absence of exceptions thereto, we adopt pro forma the Trial Examiner's finding
that the Respondent did not violate Section 8 (a) (2) of the Act by its conduct with
respect to the formation and existence of the employees ' council, and his recommended
dismissal of the allegations in the complaint relating to this conduct.
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ORDER
. Upon the entire record in this case, and pursuant to Section 10 (c)
of the National Labor Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent, "M" System,
Inc., Mobile Home Division, Mid-States Corp., Texarkana, Texas, its
officers, agents, successors, and assigns shall :
1. Cease and desist from :
(a) Interrogating its employees concerning their voting intentions
and concerning their conversations with union representatives and
threatening employees with discharge because of these conversations;
threatening surveillance in the voting booths ; threatening employees
that if the Union won the election it will revoke existing benefits and
privileges or that it will shut clown the plant and lay off the em-
ployees ; promising wage increases and other benefits if the Union were
defeated in the election ; and engaging in surveillance either of union
activities or of employees during the course of the Board's official
investigations.
(b) In any like or related manner interfering with, restraining,
or coercing its employees in the exercise of their right to self-organi-
zation, to form, join, or assist Lodge 1243, International Association
of Machinists, AFL-CIO, or any other labor organization, to bargain
collectively through representatives of their own choosing, and to
engage in other concerted activities for the purpose of collective bar-
gaining or other mutual aid or protection, or to refrain from any or
all such activities, except to the extent that such right may be affected
by an agreement requiring membership in a labor organization as a
condition of employment as authorized in Section 8 (a) (3) of the
Act.
2. Take the following affirmative action, which the Board finds will
effectuate the policies of the Act :
(a) Post in its plant in Texarkana, Texas, copies of the notice at-
tached to the Intermediate Report and marked "Appendix B." 5 Copies
of said notice, to be furnished by the Regional Director for the Six-
teenth Region, shall, after being duly signed by Respondent's repre-
sentative, be posted by Respondent immediately upon receipt thereof
and maintained by it for sixty (60) consecutive days thereafter in
conspicuous places including all. places where notices to employees are
customarily posted. Reasonable steps shall be taken by Respondent
5 This notice, however, shall be, and it hereby is, amended by striking from the first
paragraph thereof the words "Recommendations of a Trial Examiner" and substituting
in lieu thereof the words "A Decision and Order." In the event that this Order is en-
forced by a decree of a United States Court of Appeals, there shall be substituted for
the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the
United States Court of Appeals, Enforcing an Order."
"M" SYSTEM, INC. 505
to insure that said notices are not altered, defaced, or covered by any
other material; and
(b) Notify the Regional Director for the Sixteenth Region, in
writing, within ten (10) days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint, insofar as it alleges that
the Respondent engaged in unfair labor practices in violation of
Section 8 (a) (2) of the Act be, and it hereby is, dismissed.
INTERMEDIATE REPORT
STATEMENT OF THE CASE
These cases having been consolidated by order of the Regional Director of the
National Labor Relations Board on December 17, 1956, and a complaint having
been issued by the General Counsel under Section 10 (b) of the National Labor
Relations Act, as amended (61 Stat. 136), a hearing was held in Texarkana, Texas,
from January 16 to 21, 1957, inclusive, pursuant to due notice. All parties 1 were
represented by counsel or other representatives and were afforded full opportunity
to participate in the hearing and to file briefs, and proposed findings and con-
clusions. Oral argument was waived. Respondent has filed a brief.
The representation proceeding, under Section 9 (c) of the Act, was begun with
the filing of the Union's petition on September 30, 1955. A hearing was held on
October 27, 1955; the Board's Decision and Direction of Election, 115 NLRB 1316,
issued May 14, 1956; and an election was held on June 12, in which 41 ballots were
cast for the Union, 68 against, and there were 2 void ballots and 1 challenged
ballot. The Union filed objections on 5 grounds to conduct affecting the results of
the election; and on August 16, the Regional Director, after investigation, issued
his report sustaining the objections on the first 4 grounds, overruling them on the
fifth, and recommending that the election be set aside and a new election held.
Following Respondent's exceptions to that report, the Board, by Supplemental De-
cision issued December 7, 116 NLRB 1725, found that the exceptions raised sub-
stantial and material issues of fact, and ordered a hearing before a Trial Examiner,
which hearing, the Board specified, might be consolidated with that in Case No.
16-CA-906.
The issues in the representation case, as spelled out in the Supplemental Decision,
may be summarized as follows: Objections I and 3 contained allegations that Re-
spondent's general manager sent letters to the eligible employees and made a speech
to them prior to the election which contained promises of economic benefits to the
employees if they voted against the Union and which threatened loss of existing
benefits if the Union were selected as their bargaining representative. The Board
directed that the hearing determine whether the benefits promised in the letter and
speech had already been made known to the employees well in advance of the
election and pursuant to an established company policy, or whether those benefits
were first made known to the employees at the time of or just before the election.
Objection 2 was to the effect that Respondent's supervisors interrogated employees
as to their voting intentions and threatened them with economic reprisal if they
voted for the Union. Objection 4 charged that supervisors were present in the
voting area during the election and made campaign statements to the voters.
The complaint in Case No. 16-CA-906, which was based on charges duly filed
and served, covered the foregoing matters as well as other alleged incidents of
coercion and intimidation subsequent to the election, on July 16 and September 27,
all of which were charged as unfair labor practices proscribed by Section 8 (a) (1)
of the Act. It also charged Respondent with a violation of Section 8 (a) (2)
and (1) through the formation, on July 20, and the domination of an employees'
council, alleged to be a labor organization.
Respondent filed an answer in which it denied the allegations of unfair labor
practices; it also denied that the employees' council was a labor organization.
I The General Counsel and his representative at the hearing are referred to herein as
the General Counsel, and the National Labor Relations Board as the Board. "M" Sys-
term is referred to as Respondent and as Company, and the Charging Union as the Union
and as IAM.
All events herein occurred in 1956, unless otherwise stated.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent also filed a motion to dismiss and a motion for a bill of particulars,
which motions were denied before the hearing by Trial Examiner David London.
Those motions were again denied by the Trial Examiner when Respondent renewed
them at the outset of the hearing.
Subsequent to the close of the hearing, Respondent and General Counsel entered
into a stipulation concerning timecard checkouts on the day of the election, which
is hereby received as a formal exhibit.
Upon the entire record, and from his observation of the witnesses, the undersigned
makes the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT
Respondent is a Mississippi corporation with a plant at Texarkana, Texas, where
it is engaged in the manufacture, sale, and distribution of mobile homes, commonly
referred to as house trailers. Prior to March 1, 1956, Respondent's sales were
wholly within Texas, but since that date it has made extrastate sales exceeding
$50,000. See also Decision and Direction of Election, supra, 115 NLRB 1316.
Respondent is engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATIONS INVOLVED
The Union is a labor organization within the meaning of the Act. The status of
the employees' council is covered at section III, C, infra.
III. THE UNFAIR LABOR PRACTICES
A. Conduct affecting the results of the election
1. Preelection activities of supervisors
The General Counsel offered the testimony of some 10 witnesses concerning a pre-
election campaign of interrogation, threats, and promises of benefit by the following
members of Respondent's supervisory staff: Plant Superintendent John W. Liskay,
Foremen Edward Hart, Duke Pettway, Floyd (Buddy) Sanders, and Leadmen L. E.
Bradshaw, Leo H. Compton, and Robert B. Jacks? The bulk of the evidence related
to a period shortly prior to and on the day of the election; it will be summarized
under the names of the respective supervisors to which it relates.
John Liskay
Huey A. Durman testified that a few days before the notice of election was
posted (June 5), Liskay told him that if the plant went union, all privileges which
the Company gave, such as smoking privileges, holidays, and insurance, could be cut
out, that the Company would not have the Union in the plant, and that if the
Union came in the Company could shut the plant down and hire new employees.
Orville Hunter (who was openly and actively antiunion ) testified that while he
and Luther Ellison were building the election booths in the foreman's office, Liskay
told them that if the Union came in, the existing privileges would be cut out, such
as insurance, holidays, and smoke breaks. Liskay continued that that would be
done so that the Company would have something to "give back" to the Union.
Ed Hart
Hunter also testified that about 3 or 4 days before the election Hart told him that
if the plant went union, the Company would very likely close the plant down, that
"that would get rid of a lot of guys," and that there were enough trailers on hand
to last for a good while.
Leo H. Compton
John R. Covington testified that on June 11, the day before the election, Compton
told him that if they voted for the union, "M" System would shut down for
'In the Decision and Direction of Election, supra, the Board found the leadmen to be
supervisors, thereby sustaining the Company's contention and rejecting the Union's.
Although the status of the foremen was not specifically mentioned, the decision showed
that the leadmen were inferior to them in rank ; and it was stipulated in the present
record that the foremen in fact possessed certain supervisory authority.
"M" SYSTEM, INC. 507
2 weeks, and that the shutdown could be made because there were plenty of trailers on
the yard.
Charles R. Atterberry, Jr., testified that about a week before the election Compton
told him to, "Watch it when you vote . . . because they are going to take your pic-
ture.... They have a camera in top of the booth, and they are going to take your
picture when you vote." When Atterberry stated his understanding that the bal-
loting was supposed to be in secret , Compton continued , "It is supposed to be, but
they are going to take your picture." Atterberry testified that he believed Comp-
ton's statement sufficiently that he looked for a camera when he went into the voting
booth, but did not see one . On cross-examination Atterberry denied suggestions
that he was the butt of joking and horseplay in the plant, and Respondent offered
no evidence that he was.
Robert Jacks
William B. Jackson testified that on June 5, following the posting of the notice of
election, Robert Jacks began a conversation with him concerning the Union, and
stated that the Union was not any good, and that the Company would move from
Texarkana if the plant went Union.
Durman testified that on the morning of the election Jacks told him during a dis-
cussion of the Union that existing privileges, such as smoking and insurance and
some of the holidays, could be taken away or cut out. On cross-examination Durman
testified also that Jacks inquired how he was going to vote, and told him that there
were certain benefits which had been promised (in a speech on June 8, by Henry
P. Eckstein, general manager) if the plant did not go union, which the employees
probably would not get if it went union, and that Jacks mentioned such things as
another probable holiday, better jobs, and a raise of pay.
Virgil Smith testified that on the day of the election, during an argument about
the Union, Jacks stated that if the plant went union, the employees would lose their
insurance and part, if not all, of the paid holidays; that smoke breaks would be cut
out, and that Liskay would fire the first one he saw smoking; that "M" System had
moved from Mississippi to Texarkana on account of the Union, and would move
again; and that the Company would shut down before it would give a nickel raise.
James R. Walsh testified that on the morning of the election, Jacks inquired how
he was going to vote. Walsh refused to disclose his intentions. In a subsequent
conversation Jacks again urged Walsh to commit himself, assuring him that if he
did so, Jacks would keep it confidential. In a third conversation in the afternoon,
Jacks discussed the segregation question in relation to the Union, and also informed
Walsh that if the plant went union the break periods would be eliminated and that
the $1,000 insurance policy which the Company carried would also be eliminated.
Finally, in a fourth conversation, just before the whistle blew for the election,
Jacks urged him to "Vote in the right direction.... Vote against the Union," and
stated that he would protect Walsh with the Company. Jacks also stated that the
Company lacked 14 votes.
Duke Pettway
Durman testified that about a week after his conversation with Liskay, Pettway
told him that the Company did not want the Union in the plant and that if it was
brought in, existing privileges or benefits could be taken away, such as smoking priv-
ileges and paid insurance, and that the employees would get better pay after a while.
Joseph C. Bonner testified that about a week before the election Pettway inquired
whether he was interested in the Union coming in. Bonner replied that he was not
interested either way, but that he was interested in a raise. Pettway then inquired
how Bonner was going to vote, and Bonner replied that was none of his business.
Pettway then stated that if the plant did not go union, he would try to get Bonner
his raise, but that if it did go union, he could not guarantee Bonner a thing because
that would be up to the Union. Bonner testified that he got his raise after the
election. Bonner also testified that 2 or 3 days before the election he asked Pettway
about the holidays and the smoking privileges, and Pettway stated that if the plant
went union, the smoking privileges would probably be cut out.
Virgil Smith testified that around 3 p. m. on the day of the election Pettway dis-
cussed the Union with him, asking why Smith wanted the Union. Smith stated
the main reason was that he wanted more money. Pettway stated the Company
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
could not give a raise then, but that if the plant did not go union, that after the
election was over if Earl Williams (Smith's foreman ) did not give Smith a raise,
Pettway would give him one.
L. E. Bradshaw
Raymond C. Dunn testified that around 3 p. m., just before voting time, Bradshaw
spoke to him concerning the imminence of the voting, that there was discussion
between them of existing benefits, such as holidays, vacation, and smoke breaks,
and that Bradshaw stated, "Well, I guess you know if the Union gets in, we will
lose those, they will be cut out if the Union goes in. . . . You may think its
rough now but it will really be rough after that."
Floyd Sanders
Peter Mitchell testified to three different conversations with Sanders concerning
the Union, but the first two appeared to include nothing which was not privileged
under Section 8 (c), in that nothing in them was of coercive effect. Mitchell testified
to a third conversation, however, which he fixed as about 3 weeks before the
election, in which Sanders referred to certain privileges in the plant and said that
if the Union came in, the Company would or could take away the smoking privileges,
break periods, paid holidays, and vacations. Sanders also said that he did not want
the Union, and that the Company did not want one, and that if the Company
wanted a union, it would organize one itself.
All of the above supervisors, testifying as Respondent's witnesses, specifically
denied the statements attributed to them, except that Compton made no denial
of Atterberry's testimony concerning the camera in the election booth. In most
instances the denials were flatly made, while in some the fact of a conversation was
admitted, but all content of a coercive character was denied. With one exception 3
no one was present within hearing of the conversation, though the evidence indi-
cated that in some instances the work partner or "buddy" of the employee witness
was across the trailer body or at the opposite end of the trailer from the witness.
The evidence showed, however, that hammering, nailing, sawing, and other plant
noises could well have prevented even nearby persons from hearing the conversations.
This was plainly shown by the testimony of two of Respondent's witnesses.
Carlton Creel testified that he worked near Dunn (15 feet away) that he had once
heard Bradshaw discuss with Dunn the Union at Vicksburg, Mississippi (where
Respondent formerly had a plant), but he heard no such discussion on election day
and specifically none around 3 p. m. Creel admitted on cross-examination that there
was "a good bit" of noise in his work area, resulting from the ripping of plywood
by several saws, and from the operation of the molding machine, and that he did
not claim to have heard all conversations between Bradshaw and Dunn. Similarly
Marvin L. Johnson testified that he was Jackson's work partner, that they worked
sometimes next to each other, sometimes on opposite sides of the trailer, and some-
times at opposite ends. He testified that he did not hear Jacks make the statements
which Jackson attributed to him on the day the election notice was posted, but
he admitted that they might have talked when he did not hear them.4
In a situation of this sort, the finding as to whether or not the alleged statements
were made must turn primarily on the credibility of the witnesses immediately in-
volved, i. e., the 10 employees versus the 7 supervisors, with such light as can be
gained from other facets of the evidence on the record as a whole. Of primary
significance is the fact that in a number of the instances, 2 or more witnesses at-
tributed to a particular supervisor statements which were to similar effect, and that
in most cases those statements were to substantially the same effect as those at-
tributed by other witnesses to other supervisors. For example, statements that
various privileges could or would be cut out if the Union came in were attributed
to Liskay, Jacks, Pettway, Bradshaw, and Sanders; statements that the plant would
3 Hunter re : Liskay. Luther Ellison testified in corroboration of Liskay's denials.
4 Respondent also endeavored to offer testimony by witnesses from all the various work
areas in the plant that at all times pertinent to the present issue they had never heard
any supervisor make any such statements as those testified to by the General Counsel's
witnesses. On counsel's representation that he had been unable to find that any of them
was present at the time that any of the statements were allegedly made by the super-
visors, the testimony was rejected and an offer of proof was permitted.
"M" SYSTEM, INC. 509
be shut down or moved and that the employees would be laid off or new ones
hired were attributed to Liskay, Hart, Compton, and Jacks; statements that certain
benefits would be given were attributed to Jacks and Pettway; and inquiries as to
voting intentions were attributed to Jacks and Pettway. Thus, though all the
testimony related to separate time and instances, its cumulative weight became finally
most impressive; it ultimately reached the point where (because of the number and
similarity of the conversations) the effect was one of strong mutual corroboration.
Other circumstances concerning particular witnesses also aided substantially in
resolving the present issue. Thus Compton's credibility was completely destroyed
on cross-examination and by the General Counsel's rebuttal evidence.5 The testi-
mony contrary to his as summarized above is accordingly accepted. Significantly,
Compton's threat of a plant shutdown was in close accord with similar statements
which were attributed by other witnesses to Liskay, Hart, and Jacks.
Because of his demeanor, evasiveness, and manner of testifying, Liskay's testi-
mony was also unreliable; it can be accepted only where undenied or where he re-
ceived substantial corroboration (as, for example, concerning his presence in the
voting area, Section 3, infra).
A third witness, Virgil Smith, for the General Counsel, became so badly con-
fused on cross-examination that his testimony would ordinarily-be rejected. Yet
the record shows that the statements which he attributed to Jacks and Pettway
were of similar tenor to those which other witnesses attributed to them and to
other supervisors. Thus his testimony, which was in any event merely cumulative;
received substantial corroboration.
A further persuasive factor in resolving credibility on the present phase of the
case was the testimony of Orville Hunter. Though called by the General Counsel
and though openly and admittedly antiunion, Hunter gave frank and candid testi-
mony in which he attributed to Liskay and Hart the same type of coercive state-
ments which other prounion witnesses had attributed to them and to other super-
visors. Because Hunter's testimony was adverse to the side on which his interest
and his sympathies lay, it has been fully accepted. It is thus credited over Hart's
denials and over the denials of Liskay and Luther Ellison concerning the election
booth conversation.
The foregoing considerations impel acceptance of the testimony of the General
Counsel's witnesses on the present phase of the case; in the aggregate they clearly
outweigh factors urged by Respondent,6 which might, in their absence, have been
persuasive of a contrary result. It is, therefore, concluded and found on the clear
preponderance of the testimony and on the record as a whole that Respondent's
supervisors made the statements which were attributed to them by the General
Counsel's witnesses as above summarized.
Respondent argues, however, that even if the General Counsel's witnesses are
believed, its supervisors made no threats but at most they only expressed on a few
occasions their own opinions as to future consequences in the plant, which were not
dependent on the outcome of the election. That argument derives some support
from the fact that in some instances the supervisor's statement was put in terms
of what the Company could do if the Union came in, rather than as what it would
do. A single illustration will suffice to dissipate the force of that argument. Thus
Liskay said in part to Durman that the Company would not have the Union in the
plant and that if the Union came in, Respondent could shut the plant down and hire
new employees?
No amount of shadow-boxing or dialectical hair-splitting (cf. N. L. R. B. v.
Metallic Building Co., 204 F. 2d 826, 828 (C. A. 5) can convert that statement
into a noncoercive, simple prediction of future consequences. If a prediction, it
was clearly one of coercive effect-an effect which was plainly the intended and cal-
culated one. Furthermore, there were other more numerous instances where Re-
spondent's supervisors did not bother to hedge their statements in terms of prediction,
but flatly stated that Respondent would take specified retaliatory action if the election
resulted in the Union's favor.
5 Compton denied having given two affidavits to Field Examiner Smith and denied
further ever meeting or talking with him. These, and many other similar direct denials,
were conclusively disproved by the General Counsel.
6 E. g., inconsistencies, prounion interest, anticompany bias, and the partial rejection
of testimony by some of the same witnesses on other points (see footnote 8, infra).
7 Compare Hart's statement to Hunter, Compton's statement to Covington, Jacks' state-
ment to Jackson, and Pettway's statement to Durman.
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues further that the statements were not of coercive effect because
they occurred (mainly ) during the course of friendly discussions between supervisor
and employee and because they were made as expressions of opinion and not in
any threatening manner . Though those circumstances might be of persuasive weight
in a different situation , e. g., if the statements were of doubtful , ambiguous , or less
serious content , they cannot here detract from the plainly calculated coercive effect
of the language used.
What the evidence shows as a whole is that Respondent 's supervisors were actively
engaged in a campaign of threats of reprisal and promises of benefit which was
designed to affect the results of the election . The fact to which Respondent points
that Eckstein had specifically instructed them not to make any threats or promises
cannot , of course , avail Respondent , since their status as supervisors subjected Re-
spondent to responsibility for their statements to the employees , and since in any
case their position in the plant and their parallel courses of conduct gave the em-
ployees just cause to believe that they were acting on the Company 's behalf.
International Association of Machinists v. N. L. R. B., 311 U. S. 72 , 80; Birmingham
Post Co. v. N. L. R. B., 140 F. 2d 638 (C. A. 5); Harrison Sheet Steel Co., 94 NLRB
81, enfd. 194 F. 2d 407 (C. A. 7); N. L. R. B. v . Laister-Kauffman Aircraft Corp.,
144 F . 2d 9, 15 ( C: A. 8).
2. The letter; the speech
Respondent's letter of June 8 to its employees and Eckstein 's speech of the same
date contained certain language, set forth in the excerpts quoted below, which the
Regional Director found interfered with the employees' free choice of a bargaining
representative, because Respondent did not indicate at the same time that the "gains"
would "continue to grow" even if the employees selected the Union:
Paid holidays were increased from 4 to 5 by adding New Year's day as a
paid holiday. You will be paid in 1956 for New Year's day, the Fourth of July,
Labor Day, Thanksgiving and Christmas-provided, of course, you work the
scheduled day before and after the holiday . . . [Emphasis supplied.]
"M" System has already entered an expansion program which will result in
more "line" jobs; more supervisory jobs which will be filled by promotions from
our employees; more opportunities for advancement; and, more benefits for
all... .
In addition, Respondent set forth various other programs on which it was working,
and then concluded its letter and speech as follows:
The gains you have made at "M" System in the past 18 months. have been
great. They will continue to grow IF we are left alone to work together. For
this reason, plus the other reasons I have mentioned, I sincerely feel that a union
is not needed here and YOU can help keep trouble , ill will and distrust out of
our plant by voting NO in the election next Tuesday.
The Board found, contrary to the Regional Director, that the letter and the speech
when read as a whole, raised issues "as to whether the benefits promised were made
contingent upon the outcome of the election or were made retroactive (as in the
case of the additional holiday payment for New Year's day in 1956), solely because
of the pendency of the election."
The issue as to the paid holidays can be quickly disposed of. Though some con-
fusion had been created in the minds of the employees because Respondent had left
posted in the plant an old poster which specified only 4 paid holidays, a fifth (New
Year's Day) had actualy been added and paid for in 1956. The only qualification
was that stated in the first excerpt quoted above, i. e., that the employee work
scheduled workdays before and after the holiday. Witnesses who testified to the
contrary were either misled by the old poster or mistaken in their recollections or
probably had not qualified for the payment (e. g., James R. Walsh).
The remaining evidence concerning the present issue has been summarized under
the preceding section. As there found, a number of Respondent's supervisors had
made it repeatedly clear to the employees that not only were the "benefits" and the
"gains" referred to in the letter and the speech-as well as other existing privileges-to
be wholly contingent upon the outcome of the election, but even more coercively, that
the continued operation of the plant itself depended upon their rejection of the Union.
"M" SYSTEM, INC. 511
3. Supervisors in the voting area
The testimony concerning the presence of supervisors in the voting area can best
be understood by reference to a plat of the plant premises which is in evidence as
a Respondent's exhibit. For present purposes it will suffice to refer to Appendix A
hereto, which is a plat of the southeast section of the building, in which most of
the pertinent events occurred. The following findings are based on the plats and on
the preponderance of the testimony.
The plant occupied a 1-story building, approximately 120 feet north and south
by 220 feet east and west. The offices were 'built in an L-shape in the southeast
corner of the building. Voting booths had been installed in the foreman's office.
The voters entered from a door on the north side, which led from the plant, and
left by a door on the opposite side, which opened into a corridor between the offices.
The corridor ended a few feet to the right (west) at another door which led back
into the plant; and after entering the corridor, the voters went out that door, turned
left, and (with a few exceptions) punched out on 1 of 2 time clocks, and departed
through the normal employee entrance near the time clocks. Both doors into the
voting room were kept closed except when voters were entering or leaving, as was
the door at the end of the corridor.8 There were no unauthorized persons within
the room, and there was complete privacy so far as the record shows.
The election was conducted by the Board's field examiner, Marvin L. Smith, Jr.,
whose instructions during a preelection conference were (so far as here material)
that there should be no supervisors in the voting area during the election period .9
There is no evidence that he defined or that there was any discussion of what the
voting area embraced. I am convinced from all the evidence that this omission
accounted for such instances as I find herein where supervisors stood within the
sight of employees in the voting line.
The election hours were from 3:45 to 4:30 p. m., and Smith testified that the
polls were opened and closed on the minute.10 Liskay testified, without denial,
that a whistle was blown about 3:40, and that the men began shortly to congregate
in groups near the foreman's office. He thereupon opened the door and asked
Smith where he wanted the men lined up, and Smith stated he was not ready, but
suggested that they line up at the door. Liskay so informed the men, and after
they had queued up (in a line toward the west side of the plant), Liskay stood
near the door until Smith opened the polls and the voters began entering.
The General Counsel offered testimony that several of Respondent's supervisors
were at various points within sight and/or hearing of the line of voters and that
in two instances campaign statements were made. Though the presence of some
of the supervisors within sight of the line was admitted, Respondent offered testi-
mony which refuted the alleged instances of campaigning. For reasons now stated
it is found that neither incident occurred.
Virgil Smith testified that as he was entering the door to the voting room Liskay,
who was standing 3 feet from him on his left said, "Don't bite the hand that's feeding
you." Liskay denied being present and making the statement. Dunn testified that
the voting line passed some 20 feet from a loft which was reached by a stairway,
that as he passed the loft, he saw Bradshaw sitting on the platform at the head of
8 A clear preponderance of the evidence showed that the exit door from the corridor
was equipped with a spring that closed it automatically after each entrance or exit.
Some of the General Counsel's witnesses (e. g., W. C. Harris) admitted this was true.
The testimony of others to the contrary is not credited.
The partial rejection of testimony by witnesses who are elsewhere credited does not,
of course, affect the force of the findings herein since, "It is no reason for refusing to
accept everything that a witness says, because you do not believe all of it; nothing is
more common in all kinds of judicial decisions than to believe some and not all."
N. L. R. B. v. Universal Camera Corp., 179 F. 2d 749, 754 (C. A. 2), L. Hand, C. J.
"A further statement in the election notice, relevant here, was that "Electioneering
will not be permitted at or near the polling place."
10 See also footnote 13, infra, referring to other testimony by Smith. Although Smith
was offered by the General Counsel for the limited purpose of refuting Compton's testi-
mony, he answered, without objection questions by the Trial Examiner concerning the
conduct of the election. Though Respondent's counsel had also indicated a desire to
question Smith outside the scope of the General Counsel's direct examination, he made
no attempt to do so.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the stairs, and that Bradshaw said, "Boys, let your conscience be your guide."
Bradshaw admitted being in the loft as the line wended its way into the election
room but denied that he made any comment.
Respondent offered the testimony of numerous witnesses who testified that they
neither saw nor heard Liskay or Bradshaw. Their timecard checkouts showed
that several of them had obviously been in the voting line in close proximity either
to Smith or to Dunn. The General Counsel offered no corroboration of either
of the latter as to the statements which they attributed to Liskay and Bradshaw
respectively."
There was also considerable testimony on both sides concerning the presence of
certain supervisors at various places in the general area around the time clocks or
outside the exit door from the office corridor. Those supervisors could be seen by
many of the voters in the line as well as by those who exited from the voting room.
There is no evidence that any of the supervisors said anything except that Earl
Williams and Ed Hart (who had been stationed at the time clock by Liskay for
that purpose) told some of the employees (after they voted) that they could punch
out and leave and that they would be paid up to the normal 4 o'clock quitting
time. Though the evidence was conflicting, the preponderance of the evidence was
plainly to the effect, and it is hereby found, that Williams and Hart remained in
the immediate vicinity of the time clocks some 30 to 40 feet from the voting line
except for a moment when Williams, at Eckstein's direction, requested Jackson to
leave the line and wait in the office.12
There was also testimony that Liskay was seen at various times in the general
vicinity of the time clocks or near the exit door from the corridor.13 There was also
disputed testimony that Mitchell Walters (a foreman) was seen near the time
clocks or near the exit door from the corridor and that Pettway was seen near
the exit door from the corridor and at the stairway (to the loft). Finally, though
not referred to by any witness for the General Counsel, Compton testified that he
was sitting on a table against the outer wall of the foreman's room near the exit
door from the corridor during most of the time the voting was going on. Though
there was a window in the west side of that room, it was covered completely by a
shade or drape.
Pettway testified that he was outside the plant during the voting, and Walters
testified that he was outside the plant and in the main offices at the time. Despite
the apparent direct conflict between their testimony and that of the witnesses for
the General Counsel, the testimony is readily reconcilable in the light of Liskay's
undenied testimony concerning the formation of the voting line prior to the opening
of the polls. Thus the probabilities are, and it is found, that the General Counsel's
witnesses saw Pettway and Walters at that time. Walsh's testimony concerning
Pettway was especially susceptible to that construction. Thus, Walsh, who was obvi-
ously stationed well back in the line (he checked out at 3:59), admitted that he had
seen Pettway only momentarily at the stairway and that he did not see Pettway when
he got closer. It is therefore found from all the evidence that Pettway and Walters
were not near the voting line during the voting period.
11 Though Covington testified to having seen Liskay for some 5 to 10 minutes standing
near the entrance door to the voting room, it is found that this occurred before the
opening of the polls, as testified to by Liskay. Thus Bonner, who had checked out 1
minute ahead of Covington, testified that he saw no one at the entrance door when he
went in.
12 The Regional Director overruled the Union's objection based on this incident, and
the Board concurred in his ruling.
Testimony by Dunn and Bonner that it was Liskay who directed Williams to remove
Jackson from the line is contrary to the preponderance of the evidence.
13 Testimony that that door was open and that Liskay stood in it is not credited. See
footnote 8, supra. Testimony that implied that he was standing immediately outside the
door to the voting room is construed to mean the exit door from the corridor into the
plant.
There was also disputed testimony that Liskay was seen at some time between 4: 27
and 4 : 30 inside the corridor near the door to the voting room. However, Smith testified
that all voters except 3 had voted by 4: 15, and that the last of those 3 had voted by
4:25. Indeed, the timecards showed only one checkout between 4:06 and 4: 30
(E. H. Sullivan at 4: 20). Assuming without deciding that Liskay was in the corridor
at the time fixed by the General Counsel's witnesses, no interference with the election
was involved or could have been possible, since all voting had been concluded.
"M" SYSTEM, INC. 513
It is also concluded and found that the presence of Williams and Hart near the
time clocks and of Liskay and Compton near the exit door from the corridor was not
with intent to interfere, and that it did not constitute interference, with the election.
There was no testimony of any actual or attempted interference either with the voting
line some distance away or with the employees who had voted. Indeed, it is dif-
ficult to comprehend how any interference could have been attempted with the
latter, who had voted in complete privacy and who had, after doing so, passed
through two closed doors. The present aspect of the case is clearly governed
by such decisions as Garner Aviation Service Corp., 114 NLRB 293, 295; Dumont
Electric Corporation, 97 NLRB 94, 96-7; Miami Paper Board Mills, Inc., 115 NLRB
1431, 1432; cf. The Falmouth Company, 115 NLRB 1533, 1537-8; rather than by
those which the Regional Director relied upon in his report on objections (i. e.,
Spartan Aircraft Co., 111 NLRB 1373; Belk's Department Store of Savannah, Ga., Inc.,
98 NLRB 280; Detroit Creamery Company, 60 NLRB 178).
4. Concluding findings
Based on the evidence summarized under the preceding sections hereof it is con-
cluded and found that by its interrogation of employees as to how they intended
to vote in the election, by its threat of surveillance in the voting booth, by its threats
that if the Union won the election the Company would revoke existing benefits
and privileges and would shut down the plant and lay off the employees, and by its
promises of wage increases and other benefits if the Union were defeated in the
election, Respondent interfered with, restrained, and coerced its employees in the
exercise of rights guaranteed in Section 7 of the Act.
It is further found, with specific reference to the issues in the representation pro-
ceeding, that the evidence establishes objections 1, 2, and 3, i. e., that Respondent's
supervisors interrogated employees as to their voting intentions and threatened
them with economic reprisal if they voted for the Union (No. 2), and that Re-
spondent, by its supervisors, informed the employees during the election campaign
that the promises of benefits and of continued gains were contingent solely on the
outcome of the election (Nos. 1 and 3). By the foregoing acts, and by the threat
of surveillance in the voting booth, Respondent engaged in conduct which affected
the results of the election.
It is further found that the evidence fails to establish objection No. 4, as to
campaigning or interference by supervisors in the voting area.
B. Post-election incidents
1. July 16
Covington testified that on July 16 he had talked with Harvey Christian (a
special representative of IAM) during his lunch period outside the plant; that when
he went back in to work, Liskay sought him out and asked him, "What's that union
man hanging around for?" and "Is he trying to organize the employees again?"
When Covington replied that Christian had said nothing about that, Liskay con-
tinued, "The son of a bitch has been beat and he doesn't have a right to hang around
here."
Covington testified further that Compton came to him later the same day and
told him, "Covington, if you don't quit talking to that union man you are going to
get fired.... You had better get up and move when you see him coming toward
you.
Both Liskay and Compton denied the incidents. Though Compton admitted hav-
ing warned Covington on one occasion about talking with a union representative in
front of the building, he fixed the occasion as during the election campaign. Cov-
ington's testimony is accepted over Compton's, since Compton was completely dis-
credited as a witness for reasons previously stated. To corroborate Liskay, Re-
spondent called numerous witnesses who testified that they had never heard Liskay
use profanity in the plant and that in particular they had never heard him use the
term "son of a bitch." Their testimony is accepted, and it is concluded that Cov-
ington was mistaken in ascribing the term to Liskay.14
To find that Liskay did not use profanity on the occasion does not, however, re-
solve the crucial questions presented by the conflicting testimony, whether there
24 Though speculation is unnecessary to resolution of the credibility issue, it is possible
that Covington confused that portion of the conversation with the Compton conversation.
450553-58-vol. 118-34
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was in fact a conversation between Liskay and Covington on July 16 and whether
Liskay interrogated Covington concerning Christian's continued organizational activ-
ities among the employees. Because of Liskay's unreliability as a witness, previously
adverted to, his testimony on those points cannot be accepted over Covington's.
The partial and indirect corroboration which Liskay received on the col-
lateral issue whether Liskay ever used profanity in the plant was too far removed
from the significant content of the testimony to be persuasive of a contrary finding.
Nor does the partial rejection of Covington's testimony on the collateral matter
affect his credibility on the significant and important portions of his testimony. See
footnote 8, supra.
It is therefore concluded and found that Liskay, as well as Compton, interrogated
Covington concerning his conversations with Christian, and that Compton threatened
him with discharge. By those acts, Respondent interfered with, restrained, and
coerced its employees in the exercise of rights guaranteed in Section 7 of the Act.
2. September 27-28
On the evening of September 27, Attorney Schoolfield was at the Sands Motel
(about a mile from the plant) for a series of interviews in connection with his
investigation of the Union's charges. The attendance of prospective witnesses was
being arranged by Christian. Christian and Walsh testified that they saw Liskay
at the motel during the evening. Liskay did not deny being there or seeing them,
but testified that he went there to visit Donald Hill, a company salesman, and
Hill corroborated him as to the fact of the visit.
The description of the premises and the circumstances under which Walsh and
Christian saw Liskay would not, if they stood alone, establish that Liskay was
present for the purpose of, or that he was engaged in, surveillance of the employees.
Respondent's argument, which is based on and which acknowledges only the fore-
going circumstances, is to that extent accepted. However, Respondent's conten-
tions on this phase of the case wholly ignore other testimony by Walsh and Dunn
as to conversations with Liskay on the following morning, offered by the General
Counsel to establish that Liskay was actually engaged in surveillance.
Thus Walsh testified that after he reported to work the next morning Liskay
called him off the job and asked him how the swimming was at the Sands Motel
the preceding night (the motel court enclosed a swimming pool). Liskay then
proceeded to tell Walsh he was surprised to see Walsh having anything to do
with an organizer, that he had in mind higher jobs for Walsh in plant supervision,
that he had been parked at the motel for a period of 4 hours to try to see who
was going there to confer with the union authorities, and that he had even seen his
molder man (Dunn) come out of there. Liskay concluded by warning Walsh
not to cut off the hand that was feeding him and that the Union was good only
to make trouble for Walsh and the other employees. Liskay also stated that he
had a brother-in-law who was a union official and whom he hated because of that,
and that he hated anyone affiliated with the Union.
Dunn, who had also been interviewed by Schoolfield at the motel but who
had not seen Liskay there, testified that on the following morning Liskay asked
him if the swimming was good out at the Sands Motel, and told Dunn that he
had seen him "come out of the union room." Liskay added, "They won't do you
no good."
Though Liskay admitted having seen Dunn at the motel and admitted having
asked Dunn the next morning how he liked the swimming at the motel, he denied
flatly having had any conversation with Walsh concerning the motel.
Here again the testimony of Dunn and Walsh is accepted over Liskay's. His
statements to Walsh in particular showed that though Liskay was engaged in what
he assumed was surveillance of union activities, he was actually observing employees
who were being interviewed by representatives of the Board during the course of
an official investigation. Though it cannot be found that he was purposely observing
employees engaged in discussing the charges filed herein, as explicitly alleged in
the complaint, yet he was purposely engaged in surveillance of activities in which
the Act guarantees employees the right to participate. The intimidation of the
employees and the interference with the Board's investigative processes were both
involved and both equally obvious.
It is therefore concluded and found that by Liskay's said acts and by his state-
ments to Walsh and Dunn concerning those acts, Respondent interfered with,
restrained, and coerced its employees in the exercise of rights guaranteed in Section 7
of the Act.
"M" SYSTEM, INC. 515
C. The employees' council
On July 20, Respondent issued to its employees a two-page letter in which
it discussed, in part, the formation of an employees council, as follows:
As you will recall in my talk to you, I advised you of some programs we
are working on to improve your well being. To assist me in these programs
we asked a group of employees to form a council that will work together
and represent you. Those who were willing to serve, formed a very good
representation of all departments in the plant. These men are:
Floyd Sanders-Foreman.
Robert Jacks-Leadman (Sidewall Department)
Grady Worthy-Leadman (Cabinet Shop).
Orville Hunter-(Cabinet Shop).
Earl Morgan-(Metal Shop).
James Graham- (Final Finish).
The first meeting of this group will take place the week of July 23rd. We
will start working on the following:
1. Methods of handling grievances.
2. A safety program.
3. Policies covering the various situations which can arise such as sick
leave; National Guard Duty; Jury leave; etc.
4. A "bonus" plan to obtain more pay for each of our employees.
A notice of this meeting will be posted giving the date, time and place of
the meeting. If you have any ideas, suggestions, or comments give them to
one of the fellows in the "Employee's Council" and they will get full
consideration.
On August 10, Respondent issued another two-page letter which contained in
part, the following report on the first meeting of the council:
The first meeting of the "Employee's Council" met on Thursday, August 9.
Attending this meeting were: James Graham, Earl Morgan, Orville Hunter,
Grady Worthy, Robert Jacks and Buddy Sanders.
Here is what took place. We had a round table discussion on our aims
and how we can go about attaining them. The first item decided upon was
the forming of a safety committee to work out a safety program. Grady
Worthy was chosen as Chairman, the cooperation of everyone will be appreciated
should he ask you to help him in this work. One man from each department
will be on this safety committee. It is hoped that an effective safety program
can be worked out in the next few weeks.
The next thing decided upon by your committee was a "Suggestion Box."
It was discussed and decided upon that any worthwhile suggestions will bring
a bonus (CASH) to the person offering the suggestion. The amount of the
bonus will be determined by the value, to the company, of the suggestion. A
suggestion box will be built and placed near the time clock. Foremen are not
eligible.
Each member of this council was asked to prepare a list of ideas that will
make "M" System a better place to work. If you have any such ideas, give
them to one of the Council members. He will be happy to add them to his list.
At the next meeting, which will take place shortly after I return from
the New York show, we will compare these ideas and start working on those
that appear to be the most needed or desired.
The evidence is not greatly in dispute concerning the operation of the council.
It was entirely the creature of management and completely under management
control and domination. Thus, the members were appointed by Eckstein, who
readily admitted that the council had no authority (except to make recommendations
concerning safety conditions) and that it could do nothing without his approval.
The only real question is whether the council was a "labor organization" within
the statutory definition contained in Section 2 (5). The evidence showed that
it was not. What is most suggestive of a contrary conclusion is contained in the
letter of July 20, i. e., the statements that the council would "represent" the employees
and that it would handle matters relating to grievances, safety, sick leave, and jury
leave policies, and a bonus plan. However, Eckstein testified that the council in fact
represented no one, and that his choice of words was poor and the terminology
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
incorrect. Furthermore, it was plain from the evidence that the council' s entire
functioning prior to the hearing has been as a safety committee (by which name com-
monly known), and that it has not considered, and has not dealt with Respondent
concerning, grievances, bonuses, or any of the other matters which were specified
in Eckstein's letters.
Thus the evidence is undisputed that the council has held a total of 4 meetings,
in 3 of which only safety conditions were discussed, and the fourth of which was
used by the Company only for discussing arrangements for the United Fund drive.
Though there was testimony by some of General Counsel's witnesses that they had
been informed by some of Respondent's supervisors that they could take their
grievances to the committee members, there is no evidence that the council itself
ever considered or passed on any single one. For example, Walsh's inquiry of
Jacks (a council member) concerning jury pay was submitted not to the committee,
but directly to Eckstein, who rejected the claim.15 Similarly, though some com-
plaint arose concerning the removal of a toilet door, there was no evidence that
the matter was submitted to or was passed on by the council.
It is obvious, of course, that the continued existence of the council, particularly
in the light of Respondent's letter of July 20, represents potential means for inter-
ference and support (as would any employee committee), but there is no present
evidence of realization of that potential. Coppus Engineering Corp. v. N. L. R. B.,
240 F. 2d 564 (C. A. 1); Chicago Rawhide Manufacturing Company v. N. L. R. B.,
221 F. 2d 165, 170 (C. A. 7). Future realization, of course, would be subject to
future charges.
It is therefore concluded and found from all the evidence that as the employees'
council presently exists and functions, it is not a labor organization within the
meaning of the Act, and that therefore no violation of Section 8 (a) (2) is established
by the evidence.
Upon the basis of the above findings of fact, and upon the entire record in the
case, the Trial Examiner makes the following:
CONCLUSIONS OF LAW
1. The Union is a labor organization within the meaning of Section 2 (5) of
the Act. The employees' council is not such a labor organization.
2. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent has engaged in and is engaging
in unfair labor practices proscribed by Section 8 (a) (1) of the Act.
3. The aforesaid unfair labor practices having occurred in connection with the
operation of Respondent's business as set forth in section I, above, have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and substantially affect commerce within the meaning of Section 2 (6) and
(7) of the Act.
4. Respondent has not engaged in unfair labor practices within the meaning of
Section 8 (a) (2) of the Act.
5. By interrogating employees concerning their voting intentions, by threatening
surveillance in the voting booths and threatening economic reprisals if the employees
voted for the Union, and by promising benefits and continued gains which were
to be contingent on the outcome of the election, Respondent engaged in conduct
which affected the results of the election.
6. The presence of supervisors within sight of the voting line did not constitute
interference with, or conduct which affected the results of, the election.
IV. THE REMEDY
Having found that Respondent engaged in certain unfair labor practices I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action which I find necessary to remedy and remove the effects of the unfair labor
practices and to effectuate the policies of the Act.
[Recommendations omitted from publication.]
15 Walsh also gave testimony concerning recent statements by Jacks which indicated
that the "committee" had functioned as an antiunion organization during the election
campaign, If there were any such committee at that time, it was something different
from the employees' council, which did not come into being until July 20. Walsh's
testimony was accordingly irrelevant in that respect to the issues concerning the em-
ployees' council.
MAIN GATE
AND
EMPLOYEES' GATE
Ma
En
SALES
MAIN OFFICE
Men
Supply
I Room Heat & Air Zone
Heard
Office Manager
Off.
A. Foreman Earl Williams' location to insure that all
employees punched time cards
B. Entrance used by voting employees
C. Exit used by voting employees
Scale 1/8 " = l'0"
Ailing
PurcTiasing
Off.
Ecks
Gen. Mgr.
Off.
Off.
Foremen's Office
B
A
Time
Clock
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX B
NOTICE TO ALL EMPLOYEES
Pursuant to the recommendations of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the Labor Management
Relations Act, we hereby notify our employees that:
WE WILL NOT interrogate our employees concerning their voting intentions
or concerning their conversations with union representatives or threaten
employees with discharge because of the latter; threaten employees with surveil-
lance in the voting booths; threaten employees that if the Union wins the
election we will revoke existing benefits and privileges or that we will shut down
the plant and lay off the employees; promise wage increases or other benefits if
the Union is defeated in the election; and we will not engage in surveillance
either of union activities or of employees during the course of the Board's
official investigations.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form labor
organizations, to join or assist Lodge 1243, International Association of
Machinists, AFL-CIO, or any other labor organization, 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 and
protection, or to refrain from any or all such activities except to the extent that
such right may be affected by an agreement requiring membership in a labor
organization as a condition of employment as authorized in Section 8 (a) (3)
of the Act.
"M" SYSTEM, INC., MOBILE HOME
DIVISION, MID-STATE CORPORATION,
Employer.
Dated------------------- By------------ -------------------------------(Representative ) ( Title)
This notice must remain posted for 60 days from the date hereof , and must not be
altered , defaced , or covered by any other material.
Robinson Printers , Inc. and Amalgamated Lithographers of
America, ' AFL-CIO, Local #74 and International Printing
Pressmen 2 & Assistants' Union of North America, AFL-CIO,
Petitioners . Cases Nos. 12-RC-84 and 12-RC-98. July 5,1957
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9 (c) of the National Labor
Relations Act, a consolidated hearing was held before M. E. Stadler,
hearing officer. The hearing officer's rulings made at the hearing are
free from prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the Board
has delegated its powers in connection with this case to a three-
member panel [Members Rodgers, Bean, and Jenkins].
Upon the entire record in this case, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act.
i Herein called Amalgamated.
Herein called Printing Pressmen.
118 NLRB No. 60.