Mini-Circuits Laboratory

National Labor Relations Board - Board Decisions

Mar 11, 1977

228 N.L.R.B. 601 (N.L.R.B. 1977)

MINI-CIRCUITS LABORATORY
Scientific Components Corporation d/b/a Mini-Cir-
cuits Laboratory and Local 463, International
Union of Electrical, Radio and Machine Workers,
AFL-CIO. Cases 29-CA-5078 and 29-RC-3361
March 11, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 30, 1976, Administrative Law Judge
Nancy M. Sherman issued the attached Decision in
this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief, and the Petitioner-
Charging Party filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge and
hereby orders that the Respondent, Scientific Com-
ponents Corporation d/b/a Mini-Circuits Laborato-
ry, Brooklyn, New York, its officers, agents, succes-
sors, and assigns, shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that the election conducted
herein in Case 29-RC-3361 on June 11, 1976, be,
and it hereby is, set aside.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
i The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board's established policy not to
overrule an Administrative Law Judge' s resolutions with respect to
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have
carefully examined the record and find no basis for reversing her findings.
228 NLRB No. 64
DECISION
STATEMENT OF THE CASE
601
NANCY M. SHERMAN , Administrative Law Judge: The
instant unfair labor practice case (Case 29-CA-5078) was
initiated by a charge filed on June 23, 1976,1 against
Scientific Components Corporation d/b/a Mini-Circuits
Laboratory (herein the Company) by Local 463, Interna-
tional Union of Electrical, Radio and Machine Workers,
AFL-CIO (herein the Union). On the basis of that charge,
a complaint issued on July 28, alleging that the Company
violated Section 8(a)(1) of the National Labor Relations
Act (herein the Act) in May and June by threatening its
employees with layoff and other reprisals for union
activity.
Pursuant to a petition filed by the Union on March 31
and a Decision and Direction of Election issued on May 10
by the Regional Director for Region 29 in Case 29-RC-
3361, an election was held on June 11 among the
Company's employees to determine whether or not they
wanted the Union to represent them. The tally of ballots
showed 10 votes for the Union and 11 votes against it .2 On
June 16, the Union filed timely objections to conduct
affecting the results of the election, including an allegation
that on the day of the election the Company "threatened
and coerced the employees by stating that if [the Union]
became the majority representative of the employees, the
[Company] would discharge union adherents in reprisal."
By order dated August 4, the Regional Director consolidat-
ed this representation case with the unfair labor practice
case, on the ground that the investigation of this objection
disclosed substantial and material factual issues, including
credibility issues, which could best be resolved by hearing
and were substantially identical to issues involved in the
unfair labor practice case.3
The hearing in these consolidated cases was held before
me on October 26, 1976. At the conclusion of the hearing,
all parties waived briefs but presented oral argument.
Upon the entire record in the case, including such
argument and my observation of the witnesses, I hereby
make the following:
FINDINGS OF FACT
1. JURISDICTION
The Company is a New York corporation with its
principal office and place of business in Brooklyn, New
York, where it manufactures, sells, and distributes electron-
ic components and related products. During the year
preceding the issuance of the complaint, a representative
period, the Company shipped products valued in excess of
$50,000 directly to States other than New York. I find that,
as the Company admits, it is engaged in commerce within
the meaning of the Act, and that assertion of jurisdiction
over its operations will effectuate the policies of the Act.
All dates hereafter are 1976 unless otherwise stated.
z Six ballots were challenged . During the Region's postheanng investiga-
tion, five or six such challenges were sustained in accordance with the
agreement of the parties
3 The Regional Director overruled a second objection filed by the Union,
which has not requested the Board to review such action.
602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The Union is a labor organization within the meaning of
the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES AND THE
ALLEGED OBJECTIONABLE CONDUCT
A. Testimony Regarding Kaylie's Conversations with
Patrick
The Company's employees are ordinarily paid on an
hourly basis . However, from time to time employees are
able to obtain on request what the Company refers to as a
"deal." A "deal" constitutes an agreement to pay the
individual employee a bonus if he produces a particular
number of units , ordinarily a number greater than the
usual number , during a particular week.
Employee Barbara Jean Patrick testified that about a
month before the election, when she asked the Company
president, Harvey Kaylie, for a raise, he told her to quit if
she did not like what was going on, and she said she was
not going to quit and he would have to fire her. Still
according to Patrick , the following ensued:
[H]e said . . . well, this Union, and I said I ain't got
anything to do with that and he said well , if the Union
gets in , he said there will be no more deals because I
don't think they will allow it and he said I am not going
to tell you how to vote and I said well, I didn't come to
talk about a Union and so he said well, if the Union
gets in, like the work will slow up and people will have
to be laid off . . . he never answered whether I would
get a raise or not at that time.
Still according to Patrick, about 2 weeks before the
election , she again brought up the question of a raise, and
he replied , "the Union is coming in . . . I am not going to
tell you how to vote . . . you make that choice yourself."
Kaylie testified that "deals" were to the employees'
advantage, and that he had never discussed the Union's
pay demands with Union Representative Fred Simeone.
Kaylie denied telling Patrick that if the Union came in,
there would be no more deals. He testified that he
"probably" told Patrick that she should do whatever she
wanted to do about the Union or the election. Kaylie
testified that he had never threatened any of the employees
with reprisals if they voted for the Union; "I feel, and I feel
now just as I felt then, that everyone has a right to decide
to do what they want, but they should have that right. It
shouldn't be that some people have it and others don't, and
that was the only reason for my saying anything at all to
them so they could do it on a fair basis."
B. Testimony Regarding Kaylie's Conversations with
Smith and Wilson
1. Background
On or about April 1976, when Union Representative
Simeone came to the office of Company President Kaylie,
Kaylie asked the Union' s position regarding seniority and
layoffs. Simeone replied that the selection of employees
must be based on seniority.
During the period relevant here, Respondent had a total
of about 35 employees, about 10 of whom were assemblers.
Anita Smith and Erlene Wilson were seventh and eighth in
seniority among the assemblers ,4 although more than two
employees in the plant as a whole were junior to them.
2. Kaylie's testimony regarding his conversations
with Smith and Wilson
Company President Kaylie testified that 2 or 3 weeks
before the election he had one discussion with Smith, and
shortly thereafter one conversation with Wilson, about
layoffs. He testified that his conversation with Smith took
place at the door of his office, when she came to him to ask
him something about the job she was working on.
According to Kaylie, he told her that he thought she should
look at all the facts before making a decision about
whether to vote for the Union, that a union representative
had told him the Union had "a seniority type situation,"
and that the best thing she could do was to ask the Union
about the matter. Still according to Kaylie, he asked
whether she understood what seniority meant, she replied
no, and he said that he understood it as meaning that in the
event of a layoff the last one hired would be the first to go.
Kaylie testified that he also told her that the Company had
no seniority policy and that its layoff policy was to retain
the best workers. Also, Kaylie testified that on four or five
occasions he had told Smith that her work performance
was "very good," he was "very pleased" with her, and he
thought she was going to do "quite well with the Company
because her progress had been very good." Kaylie testified
that he did not recall whether he made such a remark to
Smith during this particular conversation. Also, according
to Kaylie, he told her that the Union might have other
disadvantages, and she should check with the Union about
them. Kaylie further testified that when he spoke to Smith,
she did not seem upset.
Kaylie testified that he said the "same thing" or the
"same kind of thing" to Wilson. More specifically, he
testified that he told Wilson at her workbench that she had
a right to vote the way she wanted to; she should look at all
the facts and make a decision; the Union had a seniority
policy which he described to her as "In the event of a
layoff, then the last one hired would be the first one to be
let go"; and the Union had some advantages and, he was
sure, some disadvantages. He further testified that when he
spoke to Wilson she did not seem upset but, on the
contrary, she laughed.
Kaylie testified that throughout the preelection cam-
paign, he tried to talk as little as possible about the Union
because he did not know what he was allowed to say or not
allowed to say. Aside from Smith and Wilson, he was able
to give the names of only four employees whom he spoke to
about the Union-"possibly" a part-time employee named
Fred, and "probably" employees Rocky and Belle (the
assemblers junior to Smith and Wilson) and Barbara Jean
Patrick (see supra). On direct examination, he testified that
, The record fails to show which of the two was senior. The matter is
immaterial here
MINI-CIRCUITS LABORATORY 603
so far as he could recall Smith and Wilson were the only
employees he talked to about seniority, and that he spoke
about this to Smith and Wilson as opposed to anybody else
because they were "newer type employees" and the
seniority matter "may be more important to them than
someone who is the first out there." On cross-examination,
he testified that he "probably" told "Rocky" and "Belle"
that an election would take place, and "may have"
explained seniority to these junior employees, but that he
did not "recall" discussing the seniority matter with the
other, senior employees. Still on cross-examination, he
testified that he decided to talk to Smith and Wilson about
the Union "Because they are nice girls. I think they are
good workers, and . . . the other possible reason is that I
possibly thought they might have been intimidated by
some other employees and that they should be able to
decide for themselves." 5
3. Employee testimony relating to Smith's
conversations with Kaylie
At the time of the hearing, Smith was still in the
Company's employ. She testified that Kaylie never told her
that if the Union won the election there would be layoffs
and the last to be hired would be the first to be fired. She
also denied telling any of her coworkers that Kaylie said
there would be a layoff if the Union won.
Smith testified that as she was punching in one
preelection Saturday, whose date she could not recall
except that she did not usually work on Saturdays, Kaylie
told her that "the last to be hired is the first to go," without
saying that this is what the Union or he believed. She
testified that he told her nothing else and that she asked no
questions . When asked whether she believed that this
would happen if the Union came in, she testified "No. I
really didn't think of it." She further testified that Kaylie's
remark "shocked" her; and that she went to employee
Wilson right afterwards, said that Smith was shocked, and
told Wilson about Smith's discussion with Kaylie. Wilson
testified that on Saturday, May 5, Smith appeared to be
"sort of upset"; that Wilson asked her what happened; that
Smith said that Kaylie had told her "the last to come would
be the first to go," and she was afraid of being fired; and
that Wilson replied Smith "shouldn't have any fear about it
because they have to have a very good reason to fire her."
Wilson's testimony in this respect was not received to show
the truth of what Kaylie said to Smith. Smith denied that
Kaylie told her that he wanted her to know the Union's
advantages or told her that she had better ask the Union
about the matter.
Smith further testified that after this incident, but before
the election, she went to Kaylie to ask him about some
units . According to her, Kaylie was standing at the door of
his office, and brought up the fact that "the last to be hired
is the first to go," without saying anything else. According
to Smith, he did not say anything about "if the Union
comes in ." Smith further testified that she told her
coworkers about this discussion, and that she had no other
discussions with him. Later, she testified that during the
5 Smith testified that she was having some difficulties with her
coworkers, because "they said that I was the one who signed out the Union"
and had sold out on them, and that in consequence she had asked Kaylie to
week of the June 11 election, and following her questions to
him about some units, he called her into his office and
talked about some units . Then, according to her, Kaylie
told her that he had had a meeting earlier that day with
Joanne Simmons, an employee of 5 years' standing, and he
told Smith that Simmons had received a piece of paper
describing certain benefits. According to Smith, Kaylie did
not talk about the Union at all. Smith further testified that
she then returned to work, reported to the other employees
(including Barbara, whose last name Smith did not know)
what Kaylie had said about Simmons and that Smith and
Kaylie had been talking about units, and stated that she
had a feeling she was going to lose her job.6 Still according
to Smith, most of the others then said that they would all
stick together.
Employee Patrick testified that during the week of, but
before, the election, on the day when Joanne came in with
a "pension" certificate, Patrick saw Smith talking with
Kaylie "like beside the office." Barbara Patrick went on to
testify that she saw Smith leave Kaylie and go into the
plant; that Smith "kept saying I know I am going to lose
my job," and had a "really nervous" facial expression; that
Patrick asked her what happened; and that Smith replied
that Kaylie "said the last one to come in would be the first
to go if the Union gets in." Still according to Patrick, she
told Smith that she was not the last to come in; Smith said,
"I know, but that is what he said"; and Patrick said that if
anything happened, "we stood up for Esme, we will stick
by you"-referring, inferentially, to a recent incident where
the Company had recalled employee Esme Trotman, who
had organized the Union in the plant after a strike to
protest her discharge. Patrick's testimony was not received
to show what Kaylie said to Smith. I discuss infra its
probative value vel non about the effect of Kaylie's remarks
on Smith.
Employee Angelita Clarke testified that about a month
before the election Kaylie told her that if the Union came
in there would be changes, and she replied that she did not
want to discuss the matter. Clarke further testified without
objection that about a week before the election employee
Smith said that Kaylie had told her that if the Union came
in the last people hired would be the first to go. According
to Clarke, Smith further said that she was afraid, and she
did not want to lose her job.
Employee Trotman testified that before the election
Smith told her that Kaylie had said that, whether or not the
Union won, the last to come would be the first to go.
According to Trotman, Smith also said that she was very
upset because she did not know why Kaylie had said those
things to her. Trotman's testimony was not received to
show what Kaylie said to Smith.
4. Employee testimony about what Kaylie said to
Wilson
Wilson and Patrick gave mutually corroborative testimo-
ny to the following effect: On Saturday, May 22, Kaylie
came up to Wilson at her worktable, gave her some work,
and told her that "if the Union do come in there is liable to
move her out of the room However, it appears that such difficulties began
after the election.
6 She testified that she told them this because "everybody was saying it "
604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
be a layoff and the last to come in would be the first to go."
Wilson asked why he was telling her this, and he said that
he just wanted her to know . Wilson laughed, Kaylie asked
why, and she said that the "whole thing sounds crazy," and
that two others had been hired after her. Kaylie said that
he knew, but "the last person hired would be the first to go,
then the one before that, and the one before that and right
up the line."
Wilson testified at the hearing that the "main reason" she
laughed was that Smith had told her the same thing. Smith
testified that Wilson told her there would be layoffs if the
Union came in.
Wilson further testified that on the morning of the
election Kaylie told her to do what was right for herself.
C. Analysis and Conclusions
1. Credibility determinations
I credit Patrick's testimony that about a month before
the election Kaylie told her that if the Union came in (1)
there would be no more deals "because I don't think they
will allow it," and (2) "like the work will slow up and
people will have to be laid off." Further, I credit Patrick's
and Wilson's testimony that a few days before the election
Kaylie told Wilson that if the Union came in there was
liable to be a layoff and "the last person hired would be the
first to go, then the one before that, and the one before that
and right up the line." I credit the foregoing employee
testimony , and discredit Kaylie 's denials, for demeanor
reasons and in view of the following additional considera-
tions: Kaylie corroborated the employees' testimony that
he told Wilson that the Union had a seniority policy which
he described to her as, "In the event of a layoff, the last one
hired would be the first one to go." Moreover, his
testimony as a whole constitutes an admission that, in
talking to employees about the Union, he drew their
attention to the disadvantages of this policy, but not to its
advantages. Thus, he testified, in effect, that he told Wilson
and Smith about this union policy because it particularly
disadvantaged them as "newer type employees" who would
nonetheless be retained , under existing company layoff
policy, owing to the superior abilities which he had
mentioned to Smith, at least. However, he further testified
that he did not relate this union policy to the senior
employees who (as he must have known) stood to gain by
it. Also, although he testified that he told Smith and Wilson
that they should look at all the facts before making a
decision about whether to vote for the Union, and should
ask the Union about its advantages and disadvantages,
Smith credibly denied this testimony in terms , and Wilson
credibly denied it in effect. Furthermore, Patrick's credited
testimony about her conversation with Kaylie gains some
indirect corroboration from her and Wilson's mutually
7 As to the admissibility of the testimony summarized in this sentence,
see Rule 803(3) of the Federal Rules of Evidence . For demeanor reasons, I
credit Clarke's testimony that Smith said Kaylie had told her that if the
Union came in the last people hired would be the first to go; and discredit
Smith's denial that she told any of her coworkers that Kaylie said there
would be a layoff if the Union won. This testimony by Clarke is plainly
probative as to the fact that Smith made such a report . I find it unnecessary
to determine whether Company counsel 's failure to object to Clarke's
testimony , which in consequence was received without limitation, rendered
corroborative testimony about his subsequent conversation
with Wilson.
Finally, I conclude that on Saturday, May 5, and again
during the week of, but before, the election, Kaylie told
employee Smith that if the Union came in there would
likely be a layoff and, in that event , junior employees like
Smith would be the first to be laid off. I base this inference
on Kaylie's testimony that he told Smith the same thing, or
the same kind of thing, he told Wilson ; the testimony by
both Kaylie and Smith that he told her the last to be hired
is the first to go; his testimony that he told her that this was
union policy; her testimony that she was shocked by what
Kaylie said to her during the Saturday interview and "right
afterwards" told Wilson that she was shocked; Wilson's
testimony that on Saturday, May 5, Smith appeared "sort
of upset" when describing an interview with Kaylie; and
Smith's testimony that on a second occasion before the
election, when Kaylie was standing at the door to his
office, he "repeated the same thing" he had said during the
Saturday interview-namely, that "the last to be hired is
the first to go"-and that she told her coworkers about this
discussion. In addition, I rely on Patrick's testimony that
after a conversation with Kaylie near the office door Smith
had a "really nervous" facial expression and said she was
afraid she would lose her job; and Clarke's testimony that,
after describing a conversation with Kaylie, Smith said that
she was afraid, she did not want to lose her job.7 I do not
credit, except to the extent already indicated, Kaylie's
testimony about what he said to Smith, nor do I credit his
denial that he ever threatened employees with reprisals if
they voted for the Union. Also, I discredit Smith's denial
that Kaylie told her that if the Union won the election
there would be layoffs and the last to be hired would be the
first to be fired. In reaching this conclusion about Smith's
credibility, I note her unpersuasive demeanor, the fact that
she clearly failed to give a complete account of her
conversations with Kaylie, and the fact that the portion she
did give failed to account for her admitted shock at what he
told her, and her admitted report to other employees that
she had a feeling she was going to lose her job.
2. Whether Kaylie's statements were unlawful and
invalidated the election
I agree with counsel for the General Counsel that the
Company violated Section 8(a)(1) of the Act when
Company President Kaylie told employee Patrick that, if
the Union came in, there would be no more deals and there
would be a layoff. His remarks about "deals" were not
rendered lawful by his further statement that he did not
think the Union would "allow" them, because the record is
barren of any basis for this views and, in any event, the
Company's duty to bargain with a victorious Union would
such testimony probative as to the content of the Kaylie-Smith conversa-
tions. See Federal Rules of Evidence , Rule 103(a)(1); American Rubber
Products Corporation v. NLR.B., 214 F.2d 47, 52 (CA. 7, 1954), decided
before the promulgation of the Federal Rules of Evidence.
8 N.LR.B. v. Gissel Packing Co., Inc., et al., 395 U.S. 575,617-620 (1969),
see infra fn. 11; Roman Catholic Diocese of Brooklyn, et al., 221 NLRB 831
(1975). Indeed, Kaylie denied having discussed with the Union its demands
with respect to pay.
MINI-CIRCUITS LABORATORY 605
not carry with it any obligation to agree with any union
proposal abolishing "deals ."9 Further, I fmd that the
Company violated Section 8(a)(1) of the Act when Kaylie
told Patrick that if the Union came in, "like the work will
slow up and people will have to be laid off." Kaylie's
statement was not rendered lawful by his reference to lack
of work, since there is no evidence that the Company
anticipated any lack of work or had any objective basis for
believing that lack of work would flow from the Union's
selection as bargaining representative .10 Finally, I find that
the Company violated Section 8(a)(1) of the Act when
Kaylie told relatively junior employees Smith and Wilson
that if the Union came in there would likely be a layoff and
junior employees would be the first to go.
After Wilson had credibly testified to this statement by
Kaylie , the Company's counsel asked her if Kaylie had
ever threatened her with reprisals or job loss if she voted
for the Union . She replied, "All he said to me is the last to
be employed was the first to go. I do not know if that was a
threat , but I know that is what he said ." Further, she gave a
negative reply when asked whether Kaylie had ever
threatened her with loss of her job because of the Union or
for any reason , and whether Kaylie had said that the layoff
which was "liable" to occur "if the Union do come in"
would be a result of the Union 's coming in. While Wilson
was an honest witness, she was in Respondent's employ at
the time of the hearing and, moreover , tended to answer
questions according to their narrow and literal meaning
rather than by what others might consider the questions'
fair implication . Accordingly, unlike the Company's
counsel at oral argument , I do not take Wilson's testimony
as averring "that there were no threats made , that she was
not coerced and had freedom of choice to do what she
pleased ." Further, for demeanor reasons and in view of the
credible testimony that Smith repeatedly expressed fear for
her job , I do not credit her denial that she believed that if
the Union came in the last to be hired would be the first to
be fired.
In any event , so far as the unfair labor practice aspect of
this case is concerned, "the measurement of coerciveness of
[Section] 8(a)(1) misconduct is . . . whether such conduct
reasonably `tends to interfere with the free exercise of
employee rights ' rather than whether it succeeded or failed
in intimidating individual employees . N.LR.B. v. Illinois
Tool Works, 153 F.2d 811, 814 (C.A. 7, 1946) . . . ." Burns
International Security Services, Inc., 225 NLRB 271, 275
(1976).11 Moreover, the Board makes its determination
whether to set aside an election on an objective basis-i.e.,
on whether the alleged misconduct would reasonably tend
to prevent the holding of a fair and free election-rather
than on the subjective statements of the employees as to
whether they were "coerced" or "misled" into voting as
they did . Pinkerton 's National Detective Agency , Inc., 124
NLRB 1076, 1077 , fn. 3 (1959); G.H.R. Foundry Division,
123 NLRB 1707, 1709 (1959), and cases there cited at fn. 3;
Orleans Manufacturing Company, 120 NLRB 630, 631, fn. 4
(1958). This approach was approved in Harlan #4 Coal
Company v. N.LRB., 490 F.2d 117, 122-123 (C.A. 6, 1974),
cert. denied 416 U.S. 986, which pointed out, inter alia, the
peculiar pressures which postelection proceedings impose
on employees' testimony regarding why they voted as they
did. Indeed, even assuming that the employees are trying to
tell the truth and are unaffected by the fact that they may
be, in effect , revealing the contents of their secret ballot to
representatives of their employer and of the Union which
may become their exclusive bargaining representative, the
recognition of constraint remains a subtle thing which may
call for a high degree of introspective perception . Cf. The
Radio Officers' Union of the Commercial Telegraphers
Union, AFL [A. H. Bull Steamship Company] v. N.LRB.,
347 U.S. 17, 51 ( 1954); Darlington Mfg. Co. v. N.LRB.,
397 F.2d 760, 772-773 (C.A. 4, 1968), cert. denied 393 U.S.
1023 (1969). For these reasons, at the hearing I sustained
the General Counsel's objection to company counsel's
inquiry, on cross-examination , of employee Patrick, "So it
is fair to assume that [Kaylie] never influenced your voting
at all?"
I conclude that Company President Kaylie 's threats of
reprisals in the event of a union victory reasonably tended
to prevent the holding of a fair and free election . "Conduct
violative of Section 8(axl) is , a fortiori, conduct which
interferes with the exercise of a free and untrammeled
choice in an election ." Dal-Tex Optical Company, Inc., 137
NLRB 1782 , 1786 (1962). Moreover, the outcome of the
election would have been affected by a change in one or
two votes , and the credible testimony of Patrick, Wilson,
and Clarke shows that Smith relayed Kaylie 's threats to her
fellow workers . For demeanor reasons , I do not credit
either Smith's denials that she relayed such threats or
Trotman's version of Smith's report-namely, that Kaylie
had said that whether or not the Union won the last to
come would be the first to go.
CONCLUSIONS OF LAW
1. The Company is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The Company has interfered with, restrained, and
coerced employees in the exercise of their rights under
Section 7 of the Act, in violation of Section 8(a)(1) of the
Act.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. By engaging in the aforesaid unlawful conduct, the
Company interfered with the free choice of employees in
the election.
9 Parts, Jobbers, Warehouse, Inc., 216 NLRB 1093, 1096 (1975); Gibson
Discount Center, 191 NLRB 622, 628 (1971 ), enfd . in relevant part 481 F.2d
1156, 1162 (C.A. 5, 1973).
10 Where an employer makes "a prediction as to the precise effect he
believes unionization will have on his company ... the prediction must be
carefully phrased on the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences beyond his control."
Gissel, supra at 618 . See also Del E. Webb Corporation, et al., 204 NLRB
1111, 1118, 1122-23 (1973).
rr Accord: N LAB. v. Wilbur H. For4 170 F.2d 735, 738 (C.A. 6, 1948),
N.L.RB. v. Brown-Dunkin Company, Inc., 287 F.2d 17, 18 (C.A. 10 , 1961);
Local 542, International Union of Operating Engineers , AFL-CIO [Giles &
Ransoms; Inc.] v . N.L.R.B, 328 F .2d 850, 852-853 (C.A. 3, 1964), cert.
denied 379 U.S 826.
606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
THE REMEDY
Having found that the Company engaged in certain
unfair labor practices, I shall recommend that it be
required to cease and desist therefrom, and from like or
related conduct, and to post appropriate notices.
It will be further recommended that the election held on
June 11 , 1976, be set aside and that Case 29-RC-3361 be
remanded to the Regional Director for Region 29 for the
purpose of conducting a new election at such time as he
deems that circumstances permit a free choice of bargain-
ing representative.
Upon the foregoing fmdings of fact and conclusions of
law and the entire record, and pursuant to Section 10(c) of
the Act and the Regional Director's August 4, 1976,
"Supplemental Decision, Order Consolidating Cases, and
Notice of Hearing," in Case 29-RC-3361, I hereby issue
the following recommended:
ORDER 12
The Respondent, Scientific Components Corporation
d/b/a Mini-Circuits Laboratory, Brooklyn, New York, its
officers, agents, successors , and assigns, shall:
1. Cease and desist from:
(a) Threatening to lay off employees, or to withdraw
from them the opportunity to obtain production bonuses, if
they choose representation by Local 463, International
Union of Electrical, Radio and Machine Workers, AFL-
CIO, or any other labor organization.
(b) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its Brooklyn, New York, facility copies of the
attached notice marked "Appendix." 13 Copies of said
notice, on forms provided by the Regional Director for
Region 29, after being duly signed by Respondent's
representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 29, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT Is FURTHER ORDERED that the election in Case 29-RC-
3361 be set aside, and that such case be remanded to the
Regional Director for Region 29 for the purpose of
conducting a new election at such time as he deems
appropriate.
12 In the event no exceptions are filed as provided by Secs. 102.46 and
102.69(e) 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.
13 In the event the Board 's Order is enforced by a Judgment of the
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all parties had the opportunity to
present their evidence , it has been decided that we violated
the law . We have been ordered to post this notice and we
intend to carry out the Order of the Board and abide by the
following:
WE WILL NOT threaten to lay off employees, or to
withdraw from them the opportunity to obtain produc-
tion bonuses, if they choose representation by Local
463, International Union of Electrical , Radio and
Machine Workers , AFL-CIO, or any other union.
WE WELL NOT, in any like or related manner,
interfere with, restrain, or coerce employees in the
exercise of these rights.
The National Labor Relations Act gives employees the
following rights:
To engage in self-organization
To form , join, or assist any union
To bargain collectively through representa-
tives of their own choosing
To engage in activities together for the purpose
of collective bargaining or other mutual aid or
protection
To refrain from any such activities.
Our employees are free to exercise any or all of these
rights , including the right to join or assist Local 463 or any
other union . Our employees are also free to refrain from
any or all such activities, except to the extent that union
membership may be required by a collective-bargaining
agreement as a condition of continued employment as
permitted by the proviso to Section 8(a)(3) of the Act.
SCIENTIFIC COMPONENTS
CORPORATION D/B/A MINI-
CIRCUITS LABORATORY