Mclndustries, Inc.

National Labor Relations Board - Board Decisions

Jun 18, 1976

224 N.L.R.B. 1298 (N.L.R.B. 1976)

1298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mclndustries , Inc and Amalgamated Clothing Work-
ers of America, AFL-CIO, CLC Cases 10-CA-
11289 and 10-RC-10315
June 18, 1976
DECISION, ORDER, AND CERTIFICATION
OF RESULTS
CERTIFICATION OF RESULTS OF ELECTION
It is hereby certified that a majority of the valid
ballots have not been cast for Amalgamated Clothing
Workers of America, AFL-CIO, CLC, and that said
labor organization is not the exclusive representative
of all the employees in the unit herein involved, with-
in the meaning of Section 9(a) of the National Labor
Relations Act, as amended
BY CHAIRMAN MURPHY AND MEMBERS JENKINS
AND WALTHER
On March 16, 1976, Administrative Law Judge
Paul L Harper issued the attached Decision in this
proceeding Thereafter, the General Counsel filed ex-
ceptions and a supporting brief, and Respondent
filed cross-exceptions and a brief in answer to the
General Counsel's exceptions
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 au-
thority in this proceeding to a three-member panel
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs, and has decided to affirm the
rulings, findings,' and conclusions of the Administra-
tive Law Judge and to adopt his recommended Or-
der, as modified herein
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
herein, and hereby orders that the Respondent, Mc-
Industries, Inc, Brilliant, Alabama, its officers,
agents, successors , and assigns, shall take the action
set forth in the said recommended Order, as so modi-
fied
1 Add the following as paragraph 1(c)
"(c) In any like or related manner interfering with,
restraining , or coercing its employees in the exercise
of their right to self-organization, to form labor orga-
nizations , to join or assist Amalgamated Clothing
Workers of America, AFL-CIO, CLC, or any other
labor organization, to bargain collectively through
representatives of their own choosing, and to engage
in any other concerted activities for the purpose of
collective bargaining or other mutual aid or protec-
tion, or to refrain from any or all such activities "
2 Substitute the attached notice for that of the
Administrative Law Judge
i The Respondent and the General Counsel have excepted to certain
credibility findings made by the Administrative Law Judge It is the Board s
established policy not to overrule an Administrative Law Judges resolu
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect Standard
Dry Wall Products Inc 91 NLRB 544 (1950) enfd 188 F 2d 362 (C A 3
1951) We have carefully examined the record and find no basis for revers
mg his findings
The Administrative Law Judge made certain inadvertent errors ( 1) In the
section of his Decision entitled Alleged Unlawful Interrogation par 4
the Administrative Law Judge stated that all employees testified that Mc
Donald made only a salutatory remark when handing them the card
whereas employee Roberts testified that McDonald pinned cards on some
employees and asked her if she wanted a pin for her card and (2) in the
section of his Decision entitled The Alleged Threat of Loss of Work par
6 the Administrative Law Judge attributed testimony that those that had
signed the Union cards did not have to vote yes and those who voted no
would have a job to employee Stone whereas it was actually said by em
ployee Cotton and attributed testimony that McDonald stated that the
election would be by secret ballot and no one would know how the employ
ees voted to employee Stone whereas it was actually said by employees
York and Hall
The testimony of Roberts set forth in (1) above does not alter our deci
sion herein since there is no evidence that any card was pinned on any
employee against the employees wishes Farah Manufacturing Company
Inc 204 NLRB 173 175-176 (1973)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Act gives all employ-
ees these rights
To engage in self-organization
To form, join, or help unions
To bargain collectively through representa-
tives of their own choosing
To act together for collective bargaining or
other mutual aid or protection
To refrain from any or all of these activi-
ties
WE WILL NOT interfere with, restrain, or coerce
our employees in the exercise of the above-de-
scribed statutory rights by attempting to prohib-
it them from distributing union handbills in the
vicinity of our plant nor prohibit their wearing
union insignia or buttons on their persons while
at work
224 NLRB No 180
McINDUSTRIES, INC 1299
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of the rights guaranteed them in
Section 7 of the Act
MCINDUSTRIES, INC
DECISION
STATEMENT OF THE CASE
PAUL L HARPER, Administrative Law Judge Complaint
in Case 10-CA-11289 was issued on August 8, 1975, alleg-
ing violations of Section 8(a)(1) of the National Labor Re-
lations Act, as amended Objections to the election were
filed by the Union in Case 10-RC-10315 on May 23, 1975
An order consolidating cases was issued on October 24,
1975
Hearing in the above-entitled matters, with all parties
represented, was conducted before me in Winfield, Ala
bama, on December 9, 1975 Following the conclusion of
the hearing, General Counsel, Respondent, and the Union
filed briefs
Upon the entire record, including my observation of the
witnesses, and after careful consideration of the briefs, I
make the following
FINDINGS AND CONCLUSIONS
Respondent admits, and I find, that it is a corporation
with an office and place of business in Brilliant, Alabama,
where it is engaged in the manufacture of dress pants, that
during the past calendar year it sold and shipped such fin-
ished products valued in excess of $50,000 to customers
across state lines, and that it is engaged in commerce with-
in the meaning of Section 2(6) and (7) of the Act Respon-
dent further admits, and I find, that the Union is a labor
organization within the meaning of Section 2(5) of the Act
The Unfair Labor Practices
Issues
1 Whether or not Respondent interrogated its employ-
ees concerning their union membership or activity by urg-
ing employees to pin "vote no" cards on their person
2 Threatened its employees with loss of work if they
supported the Union
3 Unlawfully prohibited employees from distributing
union leaflets on a sidewalk outside of the plant during the
employees' nonworking hours
4 On or about May 19, after the election, unlawfully
prohibited employees from wearing union insignia and di
rected employees to remove union buttons from their
clothing
5 On or about May 22 interrogated employees concern-
ing their union membership, activities, and desires
6 On or about May 22 threatened employees it would
be futile for the employees to organize a union because
Respondent would not agree to a contract with the Union
Pertinent Background
A representation election was conducted in Case 10-
RC-10315 on May 16, 1975 The Union failed to obtain a
majority of valid votes cast On May 23, 1975, the Peti-
tioner Union filed timely objections to the election There-
after an investigation of the issues raised by the objections
was conducted by the Atlanta Regional Office of the
Board, and on October 1, 1975, the Regional Director is-
sued his Report on Objections, recommending to the
Board that a hearing be held to resolve issues raised by
Objection 2, only to the extent that it alleges threats of
economic reprisals, Objection 3, only to the extent that it
alleges promulgation of an impermissible no-distribution
rule, and Objections 4 and 6, that Objections 1 and 5 and
the remaining portions of Objections 2 and 3 be overruled
and that Case 10-RC-10315 be consolidated with Case 10-
CA-11289 for the purpose of hearing On October 10,
1975, the Board, having received no exceptions to the Re-
gional Director's report, issued an order consistent with his
recommendations On October 24, 1975, the Regional Di-
rector issued an order consolidating the two cases in the
subject proceeding
Alleged Unlawful Interrogation
General Counsel and Union contend Respondent en-
gaged in unlawful interrogation by Respondent 's president,
William McDonald, on the morning of May 14, stationing
himself near the plant entrance from about 6 30 a m to 7
a in, and handing out to the employees "vote no" cards as
they came to work It is also contended that an employee,
Francis Johnson , joined McDonald in this enterprise, by
standing nearby and furnishing pins to the employees for
use in attaching the card to their clothing Further, General
Counsel and Union contend that Johnson , in view of Mc-
Donald's acquiescence in her conduct , thereby became an
agent of Respondent
Several employees testified on behalf of the General
Counsel and Union The facts are not in substantial dis-
pute McDonald admitted his presence at the entryway on
the morning of May 14, days before the election on May
16, admitted he greeted each employee who came to work
and handed each employee a "campaign card" which car-
ned the legend "vote no " He also testified that during the
30 or so minutes he engaged in tnis activity he noticed
Francis Johnson, an employee, being present sporadically
and saw her handing out pins to various employees He
testified he said nothing to her about this
The employees ' testimony is in substantial agreement
with that of McDonald Their composite testimony reveals
that McDonald, in handing them the "vote no" cards
greeted them with "Good morning" or some like remark
and nothing else There is no evidence that Johnson said or
did anything more than hand pins to some of the employ-
ees after receiving the card from McDonald Employee
York testified as follows
Q Did either of these persons say anything directly
to you?
A No more than just speak
1300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q Did you have on a Union Button9
A Yes, sir
Q Was there any gesture made toward you with
this card in any way9
A No He just handed it to me
When asked when she first began wearing her union but-
ton, York answered, "Oh, around March, March 1st "
The testimony reveals that some of the employees ac-
cepted the "vote no" cards but did not pin or attach the
card on their person All testified that McDonald made
only a salutatory remark when handing them the card
Moreover, there is evidence in the record that employees
campaigned for the Union during break periods, and hand-
ed out union literature before and after working hours
Furthermore, McDonald testified, credibly, that the card,
(the size traditionally used by salesmen) was not designed
or intended to be worn, and that it was his intent to con-
duct a campaign to counter the electioneering of the
Union
Based on the above considerations, especially the fact
that employees had been permitted to wear union insignia
in the plant, the lack of evidence that McDonald or any
other supervisor attempted to ascertain who wore the `vote
no" card and who did not, the lack of proof of any agency
on the part of employee Johnson who apparently was act-
ing voluntarily and on her own, and the general absence of
evidence of union animosity on the part of Respondent, I
find the evidence contained in the record insufficient to
support the complaint allegation that Respondent on or
about May 14 "interrogated its employees concerning their
union membership, activities, and desires by urging em-
ployees to pin and pinning on their clothing "vote no"
cards being distributed by President McDonald " Accord-
ingly, I recommend this allegation contained in paragraph
9 of the complaint be dismissed
The Alleged Threat of Loss of Work
The General Counsel and Union contend that during at
least one of several speeches or informal talks over the
plant's PA system, Respondent's president, William Mc-
Donald, made the statement to employees that those em-
ployees who voted "no" in the upcoming election on May
16 "would have a job," and therefore the logical inference
should follow that "those employees supporting the Union
and who voted for the Union would not have work "
To support this allegation of the complaint the General
Counsel presented the testimony of Ella Faye York, Linda
Roberts, Helen Cotton, Robert Stone, Wanda Hall, and
Ann Smith
The record reveals that there were at least four speeches
delivered by McDonald over the PA system on March 25,
April 28, May 5 and 15 at 10 30 am The election was
conducted, as noted above, on May 16 between 1 and 2 30
pm
York testified that during one of these talks, over the PA
system, McDonald made reference to three other nearby
business establishments, viz, the trailer plant,' the "Coke
oven," and "Winfield Manufacturing' which had been
"shut down on account of the unions and stated that Re-
spondent had plenty of work, "and that everybody should
vote `no' and said the ones that voted `no' would have a
fob " Cotton, Hall, and Smith testified in similar vein Hall,
however, volunteered that McDonald "didn't say nothing
about those that voted `yes,' whether they would have
a job or not He said those who voted `no' would have a
job I don't know if those are the exact words or not "
Roberts, contrary to the other witnesses regarding this
allegation, although closely questioned by counsel for Gen-
eral Counsel, could not recall the statement alluded to by
the other witnesses After somewhat lengthy questioning
Roberts testified as follows
A And there was one, I don't remember if it was
the last speech or the one before it, but he said that,
you know, some people had come to him and wanted
out of the Union And, that they had, that he told
them that they could request their cards back, you
know, that they had signed, or just because you did
sign a card that you didn't, that didn t mean you had
to vote for the Union, that you could vote "no " And,
that is about all that I remember
Q What, if anything, did he say about the avail-
ability of work for, relative to the way you voted?
A Well, he said we had plenty of work and that the
fact that the Union did not worry about whether we
had work or not They couldn't say that we would
have work tomorrow and that's about all that I re-
member
Q What, if anything, did he say about the avail-
ability of work for, relative to the way you voted9
A That I don't recall exactly
Q All right One way or the other?
A No
Stone testified on direct examination that in one of his
speeches to employees, McDonald said "that those that
had signed the Union cards didn't have to vote `yes,' and
those who voted `no' would have a fob " His testimony on
cross-examination puts a somewhat different connotation
on McDonald's alleged remarks Thus, Stone testified that
"Mr McDonald was saying that they would have plenty of
work, you know, like the other trailer place and the Coke
oven and stuff like that that had shut down, and that he
would have plenty of work still " Significantly, no mention
is made of the alleged remark that those employees voting
"no" would have a job Also Stone admitted on cross-ex-
amination that he recalled McDonald's statement that the
election would be by secret ballot and no one would know
how the employees voted
McDonald testified that in making the four brief talks
over the plant's PA system, he read from prepared texts
after consultation with his attorney, that some of the writ-
ten texts contained his own notations of corrections, and
that he then read verbatim from the corrected texts He
denied emphatically that he made any remark to the effect
that employees who voted "no' in the election would have
ajob
McDonald impressed me as a straightforward and en-
tirely reliable witness, and I fully credit his denial that he
made the one remark attributed to him by several former
McINDUSTRIES, INC 1301
employee witnesses, as described above Besides placing
full reliance on McDonald's denial I consider the following
facts of significance There is some variation in the testimo-
ny of all the witnesses presented by General Counsel, to
the extent that it is not clear in what context the alleged
remark is supposed to have been made, and at least one of
the witnesses did not recall the remark at all
In sum, based on all the pertinent testimony of record, I
find that McDonald made only those statements contained
in the written speeches and did not make the alleged threat
that employees who voted "no" in the election would have
a job Accordingly, I find inadequate evidence to sustain
General Counsel's allegation that Respondent "threatened
its employees with loss of work if they supported the Union
" and therefore recommend such allegation contained
in paragraph 8 of the complaint be dismissed
The Alleged Prohibition of Employees from Distributing
Union Leaflets
About the first week in May 1975, shortly before starting
time at 7 am, 2 weeks before the election, employee Ann
Smith was distributing union literature near the main plant
entrance She testified she was handing out union cam
paign cards to employees as they were coming to work,
that she was "standing there on the sidewalk just as you
turn to go into the plant And, Bobby (Taylor) came out
there and told me that I would have to get out in the
street" From the photographic exhibits in the record, as
well as credited testimony, Smith took one or two steps
backwards and continued to hand union literature to em-
ployee passersby on the sidewalk It is also clear from
Smith's own testimony that there were other employees in
her immediate vicinity engaged in the same activity which
lasted a total of only 15 to 20 minutes Smith testified on
cross-examination as follows
Q All right Now, were the other three ladies,
please, Mrs Beasley and Miss York, at the point you
marked with an X on General Counsel's Exhibit 5, is
that where they were standing?
A Yes
Q And did they continue to stand there throughout
the time there and they passed out their cards?
A Except Miss York She walked back down where
Hinton and them were
Q All right Now, did you continue to pass out
your cards also?
A Yes
It is thus clear from Smith's own testimony that Smith was
the only individual in the group who moved off the side-
walk entryway to the plant, that the other employees were
some distance from the entryway, that the other employees
continued to distribute literature from their original posi-
tions on the sidewalk, and that Smith, although taking a
step or so backwards off the sidewalk onto the street, but
still near the curbing, continued to hand out the union
pamphlets until the group went in to work It is further
noted that this is the only occasion during the entire union
campaign that any employee had been allegedly interfered
with while distributing union literature In this regard
Smith testified as follows
Q (By Mr Bowron) Miss Smith, no one ever inter-
fered with your talking to employees in the plant, did
they
A No, sir
Q Or passing out any cards or literature when you
were not at work?
A No, sir
Q Nobody-am I correct in that?
A That is right
Q As a matter of fact, the Union also passed out
other literature in and about the area of the plant at
other times prior to this, without objection, did they
not?
A At our break area during break, we would talk
to people
Q And also you passed out some other literature at
your breaks without objection?
A Just inviting them to union meetings is all
Q Which is the same thing you were doing on this
occasion?
A Yes
Union Representative Hinton Henderson corroborated
the testimony of Smith Henderson testified he was within
10 to 12 feet of Smith when Taylor approached Smith and
asked her to "get off the sidewalk " Henderson also
testified that Taylor had approached him earlier, while he
was assisting the employees in distributing union literature,
that Taylor, on arriving at the plant about 6 20 or 6 30
a in, and after parking his pickup truck, came over to Hen-
derson and told him "that (he) was on company property,
that the sidewalk belonged to them' Henderson replied,
"Well, I will step back down on the side of it on the
pavement And, he said, the pavement was theirs, too
" Henderson then told Taylor, "Well, Bobby, you
will have to do what you have to do, anyway, I'm going to
do my job and you can do yours and so, I continued
to give handbills " At the time Taylor made these remarks
two other union staff representatives and two to three em-
ployees were standing nearby
Taylor did not deny the alleged conduct attributed to
him by Smith and Henderson, and I find he engaged in the
conduct as described in their testimony Respondent de-
fends this conduct on the grounds that Taylor merely re
quested Smith "to refrain from blocking the congested
plant entrance by moving a short distance," and further,
that Taylor did not tell the employee she could not hand
out the union leaflets and it was obviously his intention to
` only clear the main entrance to the plant ' Respondent
further argues that such request had no coercive effect on
Smith since she `merely moved a few steps and continued
to hand out the literature", and that employees had hand-
ed out leaflets on company property in the past without
interference from supervisors
There are several fallacies to Respondent's argument
First, no evidence was produced to establish there was, in
fact, any "congestion" at or near the plant entrance on the
day in question Secondly, there is no evidence in the rec-
ord to the effect that Taylor had received any employee
1302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
complaints that there was such a problem of ingress to the
plant Even so, if Taylor had confined his remarks to em-
ployee Smith, it might have been more persuasive that he
had a legitimate concern about ingress as Smith apparently
was stationed nearer to the plant entrance than the other
individuals involved But Taylor did not so confine his re
marks He first approached Union Respresentative Hen-
derson, admonishing him, in the presence of employees,
that Henderson was in effect trespassing on company
property The fact that Henderson was unmoved by
Taylor's remarks does not erase the coercive nature of
Taylor's statements
Based on all the above considerations, I find that
Taylor's statements to Smith and Henderson on this one
occasion, under all the circumstances, especially his remark
that both were on company property and should "get off
company property," interfered with employees' rights un-
der Section 7 of the Act to distribute union literature and
otherwise engage in organizational activities, and thereby
violated Section 8(a)(1) of the Act
Respondent's Alleged Conduct in Prohibiting Employees
From Wearing Union Insignia and Directing Employees
To Remove Union Buttons From Their Clothing
The facts concerning this allegation are not in substan-
tial dispute On May 10, 1975, some 3 calendar days after
the May 16 election, but the first working day thereafter,
Plant Manager Taylor approached employees Cotton and
Hall at their work stations and asked them to remove their
union buttons Taylor remarked, according to Cotton,
" as far as we're concerned, the Union is over We
have won There is no more to it " Hall corroborated
Cotton's account of this incident
Robert Stone testified that on this same day Taylor came
to him while at work and asked Stone to remove his union
button Stone at first refused and Taylor then escorted him
to McDonald's office McDonald told Stone he would
have to remove the button Stone complied
Taylor testified, "That morning after the election I had
several employees coming in wearing buttons, and, I felt
like since the election was over, which was on Friday, we
did win the election, I felt like the election was over So, I
did ask people to remove them
All employees removed their union buttons as requested
but the next day and for several days thereafter, continued
to wear the union insignia at work Taylor, after conferring
with McDonald, who in turn consulted Respondent's at-
torney, refrained thereafter in engaging in such conduct
McDonald's testimony regarding these incidents on May
19 corroborates that of Taylor
While McDonald's and Taylor's testimony suggests the
connotation that their statements to employees May 19
were merely requests that employees remove their union
insignia, it is clear to me that whether requested or ordered,
the employees reasonably assumed a refusal would pro-
voke disciplinary action, even discharge Their testimony
so indicates That Taylor intended his statement to be
more than a request is shown by his action in taking Stone,
who had refused Taylor's "request," to Respondent's chief
executive officer, William McDonald I find, under all the
circumstances surrounding the May 19 incidents, that
Respondent's conduct constituted interference, restraint,
and coercion of employees in the exercise of rights guaran-
teed under Section 7 of the Act, and therefore a violation
of Section 8(a)(1) of the Act
Postelection Interrogation
The complaint alleges, at paragraphs 12 and 13, that on
or about May 22, 1975, Plant Manager Taylor interrogated
employees concerning their union membership and activi-
ties and that it would be futile to organize a union because
Respondent would not agree to a contract with the Union
In support of these allegations the General Counsel re-
lies exclusively on the testimony of Ella Faye York who
testified about one conversation she had with Taylor about
a week after the election Taylor, on the day in question,
according to York, approached her at work and said, "Ella
Faye, I want to talk to you about why you thought you
wanted the Union " York then proceeded into a
somewhat lengthy discussion about her views and reasons
for wanting a union in the plant She told Taylor there
were " so many reasons you wouldn't want to hear
them " Then she elaborated on the reasons stating, among
other things, that "retirement," "better working condi-
tions," "more pay raises," "better insurance," "more paid
holidays," and "more vacation pay" were some of the goals
she had in mind The conversation lasted "around 35, 40
minutes I just sat back and talked to him " Near the end
of the conversation Taylor commented, according to York,
that just because the employees "got a union in didn't
mean that you would get a contract "
Taylor did not deny any portion of York's testimony
regarding this incident, and I therefore credit her testimony
and find that Taylor made the statements attributed to him
by York I Although General Counsel presented only
York's testimony to support the compaint allegation of un
lawful interrogation, Taylor's testimony indicated he
talked to other employees in a similar manner Thus, he
testified, I was talking with all my people I merged
through the line and I was trying to feel out the people to
get back feedback on information so that as the Company
and as me, as plant manager, could get inside information
and detail to start working on problems that had been
brought out into the line, because, we knew that we had
problems " Taylor expressed the fact that the election was
over and he did not feel he was "breaking any laws" be-
cause he `was trying to do my fob "
The above is the sum total of evidence presented con
cerning this incident The General Counsel and Union ar-
gue the conversation between Taylor and York constitutes
both unlawful interrogation and a threat of futility" in
1 With the exception regarding Taylor s alleged comment that just be
cause the employess got a union in didn t mean that you would bet a
contract If Taylor made such a comment which I doubt it had to be a
purely hypothetical remark as the Union had just lost the election and
contract negotiation was not in the picture a fact known to both York and
Taylor I discredit York s testimony to the extent that it describes Taylor s
remark as a threat by Respondent The alleged threat that unionization by
the employees would be a futility because Respondent would not negotiate
a contract is completely non sequitur with the existing facts
McINDUSTRIES INC 1303
view of Taylor's remark that unionization did not mean the
Union would get a contract
The composite testimony of York and Taylor establishes
that Taylor not only questioned York about why she want-
ed to be represented by a union, but also admittedly had
similar conversations with other employees It is not clear
what Taylor meant by testifying he was trying to get "feed-
back" from such conversations to help solve "problems "
Several inferences seem permissible, but I believe whatever
his reasons may have been are irrelevant to the question of
whether or not he engaged in unlawful interrogation
In assessing the lawful versus the unlawful nature of this
conversation there are several more factors to be consid-
ered The election was over, however, the question con-
cerning representation had not been completely settled as
objections were later to be filed by the Union Further,
York was one of many employees who wore her union
button to work and was easily identified by Taylor as one
of the union proponents The conversation, for the most
part apparently dominated by York, took on the appear-
ance of a debate concerning the relative merits of unions as
argued by York against Taylor's contrary position Thus,
Taylor was obviously aware of York's feeling about the
Union by the very nature of his opening remarks There is
no suggestion, with one exception noted above, of any
threat of reprisal or promise of benefit to forsake the
Union in the conversation
Interrogation is not always unlawful, especially when it
is not accompanied by any explicit threat (the alleged
threat has been found unsubstantiated by credible evi-
dence) and if, under all the circumstances, coercion is not
implicit in the question Relative factors include whether
there has been a background of employer hostility to and
discrimination against the Union Such evidence of hostili-
ty and discrimination is absent in the subject case Another
relevant factor is whether the identity of the questioner and
the place or method of interrogation imbue the interview
with an unnatural formality which tends to intimidate the
employee There is ample testimony herein that supervi-
sors, including the plant manager, worked closely together,
many of the personalities involved being friends of long
standing Certainly York did not give the impression of
intimidation and there was no formality or method of an
intimidating nature Lastly, I have considered the factor of
whether employees concealed their allegiance to the Union
and whether the interrogation was conducted partly to as-
certain such allegiance or membership The evidence re-
futes such a possible finding as it is clear York displayed
her union insignia at work for a period of several weeks
before the election Others did likewise As already noted
the election was over, the Union had lost, and the alleged
interrogation carried no promise of favor or benefit to
abandon their union allegiance nor any threat of reprisal if
they continued such allegiance Based on these consider-
ations, I find the evidence is insufficient to sustain the alle-
gations of unlawful interrogation contained in paragraph
12 of the complaint in violation of Section 8(a)(1) of the
Act I further find the evidence of record is insufficient to
support the allegations in paragraph 13 of the complaint
and therefore recommend paragraphs 12 and 13 of the
complaint be dismissed
Objection to Election
The election was held between 1 and 2 30 p m on May
16, 1975 Of about 175 eligible voters, 170 ballots were cast,
59 for the Petitioner, 102 against, and 9 were challenged
The challenged ballots were not sufficient in number to
affect the results of the election On May 23, 1975, the
Petitioner filed timely objections to the election As the
Union points out in its brief the evidence regarding para-
graphs 8, 9, and 10 of the complaint are coextensive with
Objections 2, 6, and 3 respectively
The only objection not coextensive with the complaint is
Objection 4, as follows
Employer agents, manager, and/or supervisors re-
mained impermissibly close to the polling place during
the conduct of the election
The Union contends there was extensive surveillance by
Respondent's supervisors during the election and also a
prolonged conversation initiated by Supervisor Hulsey
with an employee standing in line to vote
The testimony of York, Smith, and Roberts as well as
Supervisors Taylor, Weeks, and Hulsey pertains to this ob-
jection
In order to fairly assess the question of surveillance it is
necessary to consider the physical layout of the plant and
the area of the plant where the voting took place The bal-
loting took place in a "breezeway" between two large open
sections of the plant and within a few feet of the main
office 2 Therefore employees standing in line to vote were
sometimes clearly visible to other employees and supervi-
sors from their work stations Supervisory witnesses testi-
fied, without contradiction, that the nature of their duties
occasionally required movement from one area of the plant
to another All supervision had been instructed by top
management and legal counsel of expected conduct during
the election
Employees York, Smith, and Roberts testified that at
various intervals during the election they saw Supervisors
Weeks and Hulsey near the voting area Roberts testified
she saw Plant Manager Taylor "position himself" where he
could observe employees in line to vote York testified that
on one occasion Supervisor Hulsey approached her while
she was standing in line to vote and engaged in a 5-minute
conversation York testified Hulsey said nothing about the
election or Union
York testified, as did others, that the voting line was
visible to others working in the plant She testified as fol-
lows
it9
Q Is this area visible in the rest of the plant)
A Yes, it was
Q So the employees who were working could see
A Yes
Q The line and the polling lines"
A Yes
York further testified that while standing in line to vote,
2 All witnesses were in agreement regarding the plant layout and the bal
loting location relative to other areas of the plant
1304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Supervisor Hulsey engaged her in a conversation for a peri-
od of about 5 minutes On cross-examination York testified
as follows
Q (By Bowron) Miss York, during the time that
Miss Hulsey was there, she just made talk in general
and didn't say anything about the election9
A Right
Q And she didn't say anything about the Union9
A No, she didn't
During the time York was standing in the voting line she
saw Plant Manager Taylor "standing in his office door"
and Supervisor Weeks "standing back over by a machine
back in where the girls were working " Employee Roberts
testified she noticed Supervisor Hulsey cross through the
voting line, that Hulsey "was coming from her department
and going over into the other department She could
have went back and went around the other door " She
also testified she saw Plant Manager Taylor and Personnel
Director Holt standing and talking in the vicinity of the
polling area On cross-examination Roberts testified that
Taylor and Holt were separated from the voting area by a
wall and further "they had no contact with any of the vot-
ers "
Employee Smith testified that while waiting in line to
vote she saw Supervisor Weeks walk through the voting
line going from one work area into another "two or three
times " She testified Weeks did not stop or speak to anyone
in the voting line
Supervisor Hulsey admitted that on at least one occasion
it was necessary for her to pass near the vicinity of the
voting line in order to carry out her normal duties and
responsbilities She denied engaging in conversation with
any of the voters Hulsey also acknowledged there was an-
other passageway from one plant area to another near the
rear of the plant but that she normally used the passage
most convenient at any given time On cross-examination
Hulsey was asked specifically if she recalled speaking to
employee York "on the day of the election " Hulsey denied
any such recollection
Plant Manager Taylor testified that he went near the
voting area only on one occasion and that was to ask the
Board agent , by prearrangement, if he should release an-
other employee group for voting purposes The agreed-
upon procedure was to have the receptionist, upon Taylor's
instruction, to page the different departments over the PA
system Taylor denied being near the main office during
the balloting, testifying "that office was locked That is
where the polling election was held " He acknowledged it
was possible for him to have talked with Personnel Direc-
tor Holt during the election as this was normal procedure
during any workday
Concluding Findings
As already noted Objections 2, 3, and 6 are coextensive
with complaint paragraphs 8, 9, and 10 As I have recom-
mended dismissal of complaint paragraphs 8 and 9 for in-
sufficient evidence, I accordingly recommend Objections 2
and 6 be overruled Although sufficient evidence was
complaint the violation found involved only one rather iso-
lated incident of interference with the distribution of union
handbills on May 7, 1975, about 10 days before the repre-
sentation election Although conduct violative of Section
8(a)(1) is a fortiori, normally held to be conduct which in-
terferes with the exercise of a free and untrammeled choice
in an election "because the test of conduct which may in-
terfere with the `laboratory conditions' for an election is
considerably more restrictive than the conduct which
amounts to interference, restraint, or coercion which vio-
lates Section 8(a)(1)" 3 such a test should not be applied
mechanically Except for the fact that this infringement on
Section 8(a)(1) occurring on this one and only occasion
before the election (therefore during the critical period be-
tween petition and election) is coupled with one other in-
fringement occurring after the election, the one preelection
violation would be so isolated as to not call for a remedial
order herein That being so, I find that Taylor's conduct on
May 7 before the election on May 16 could not be reason-
ably said to have had any impact whatever on the outcome
of the election Although the effect of the conduct on the
employees is not a fair test in determining whether or not
Section 8(a)(1) has been violated, the fact that they contin-
ued their union activities (distributing union handbills)
without interruption is at least some indication of the lack
of impact on the results of the election In these circum-
stances I find that the allegations contained in Objection 3
have not been sustained and accordingly recommend that
Objection 3 be overruled
With respect to Objection 4, I find the evidence inade-
quate to sustain such allegations and recommend Objec-
tion 4 be overruled I base this recommendation on the
following The Union's position that Respondent' s agents
and supervisors "remained impermissibly close to the poll-
ing place during the conduct of the election" is twofold (1)
That there was "extensive surveillance" by such agents and
supervisors during the election, and (2) that Supervisor
Hulsey engaged employee York in a prolonged conversa-
tion during the time York was waiting in line to vote As to
(1) above, I find the evidence is totally lacking of unlawful
surveillance As noted hereinabove the polling place was
located in a "breezeway" between two large open areas of
the plant and in proximity to the main office Presumably
the Union and the Board agent conducting the election
approved the polling area, location of ballot box, observ-
ers, method of releasing employees to vote, etc, prior to
the election The composite testimony of all the witnesses
who testified in this proceeding revealed that the polling
area was visible to employees and supervisors alike from
most other areas of the plant The supervisors, allegedly
involved in the surveillance, acknowledged it was occasion-
ally necessary to pass in the vicinity of the polling place but
denied any conduct which could be viewed as surveillance
The testimony of the Union' s witnesses does not establish
any acts of surveillance
There remains only the alleged prolonged conversation
between Supervisor Hulsey and employee York Although
I have heretofore credited portions of York s testimony
found to sustain the allegations of paragraph 10 of the Home Division of DePaul Community Health Center 221 NLRB 839 (1975)
3 Dal Tex Optical Company Inc 137 NLRB 1782 (1962) St Anne s
McINDUSTRIES, INC 1305
and discredited other portions, I must again discredit her
testimony, at least that portion about being engaged in pro-
longed conversation by Supervisor Hulsey, while York was
standing in line to vote 4 I find that the alleged prolonged
conversation did not occur Accordingly, I recommend
Objection 4 be overruled
CONCLUSIONS OF LAW
1 Mclndustries, Inc, is an employer engaged in com-
merce within the meaning of Section 2(2), (6), and (7) of
the Act
2 The Union is a labor organization within the meaning
of Section 2(5) of the Act
3 Respondent did not violate the Act as alleged in para-
graphs 8, 9, 12, and 13 of the complaint or otherwise not
specifically found herein
4 Respondent violated Section 8(a)(1) of the Act by in-
terfering with employees while distributing union handbills
near the plant as alleged in paragraph 10 of the complaint
and by prohibiting employees from wearing union insignia
on their clothing while at work, as alleged in paragraph 11
of the complaint
5 Respondent has not engaged in conduct affecting the
conduct of the election on May 16, 1975, or the results of
such election as alleged in the Union's objections filed on
May 22, 1975
6 The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act
REMEDY
In order to remedy the unfair labor practices found here-
in my recommended Order will require Respondent to
cease and desist therefrom and take certain affirmative ac
tion as set forth in the following Order
4 York impressed me as being a loquacious individual (almost garrulous)
For example she testified regarding her interrogation by Plant Manager
Taylor I just sat back and talked to him around 35 40 minutes
Moreover she explicitly detailed the content of such conversation with Tay
for Significantly there is ro evidence regarding the contents of the alleged
conversation with Hulsey only the admission that Hulsey made only gen
eral remarks and said nothing about the election or Union Even in Mil
chem Inc 170 NLRB 362 (1968) cited by the Union the Board stated its
holding therein does not mean that any chance isolated innocuous coin
ment or inquiry by an employer or union official to a voter will necessarily
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein , and pursuant to Section
10(c) of the Act, I hereby recommend the following
ORDERS
Mclndustries , Inc, Brilliant , Alabama, its officers,
agents, successors , and assigns, shall
1 Cease and desist from
(a) Interfering with our employees by attempting to pro-
hibit their distribution of union literature or handbills in
the vicinity of the plant
(b) Interfering and restraining employees in the exercise
of their statutory rights to wear union insignia on their
clothing while at work
2 Take the following affirmative action necessary to ef-
fectuate the policies of the Act
(a) Post at its plant in Brilliant, Alabama, copies of the
attached notice marked "Appendix " 6 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 10, shall be posted by Respondent immediately upon
receipt thereof , and be maintained by it for 60 consecutive
days thereafter , in conspicuous places, including all places
where notices to employees are customarily posted Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material
(b) Notify the Regional Director, in writing, within 20
days from the date of this Order, what steps the Respon-
dent has taken to comply herewith
IT IS FURTHER ORDERED that the Union's objections be
overruled in their entirety and that the results of the elec-
tion conducted by the Board on May 16, 1975, be certified
by the Board
void the election If there had been a prolonged conversation between
Hulsey and York I am convinced York would have again elaborated on the
contents of such alleged conversation I credit Hulsey s denial that there was
such a conversation as alleged by York
5 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board the findings
conclusions and recommended Order herein shall as provided in Sec
102 48 of the Rules and Regulations be adopted by the Board and become
its findings conclusions and Order and all objections thereto shall be
deemed waived for all purposes
6 In the event that the Board s 0-der is enforced by a Judgment of a
United States Court of Appeals the words in the notice reading Posted by
Order of the National Labor Relations Board shall read Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board