Murray Ohio Manufacturing Co.

National Labor Relations Board - Board Decisions

Jan 17, 1966

156 N.L.R.B. 840 (N.L.R.B. 1966)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
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.
(c) Notify the Regional Director for Region 13, in writing, within 20 days from
the receipt of this Decision, what steps Respondent has taken to comply therewith 21
21 In the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, In writing, within 10 days from
the date of this Order, what steps Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL, upon request, bargain collectively with Automobile Salesmen &
Misc. Workers Union Local No. 192, AFL-CIO, as the exclusive representative
of all of our automobile salesmen, with respect to rate of pay and other terms
and conditions of employment, and if an understanding is reached, embody the
same in a signed agreement;
WE WILL NOT coercively question our employees concerning their union affilia-
tions, sympathies, or activities.
WE WILL NOT threaten our employees with sales or reprisals in the event our
business is unionized.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of the right to self-organization, to form labor
organizations, to join or assist Automobile Salesmen & Misc. Workers Union
Local No. 192, AFL-CIO, or any other labor organization, to bargain collec-
tively thiough representatives of then own choosing, and to engage in other
concerted activities for the purpose of collective bargaining or other mutual aid
or protection, or to refrain from any and all such 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, as modified by the Labor-Management Reporting and Disclosure
Act of 1959.
All of our employees are free to become, remain, or refrain from becoming or
remaining members of the above-named labor organization or any other labor
organization.
NELSON CHEVROLET COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material
If employees have any question concerning this notice or compliance with its pro-
visions, they may communicate directly with the Board's Regional Office, 881 U.S.
Courthouse and Federal Office Building, 219 South Dearborn Street, Chicago, Illinois,
Telephone No. 828-7572.
Murray Ohio Manufacturing Company and Teamsters , Chauf-
feurs, Helpers and Taxicab Drivers Local Union 327, affiliated
with International Brotherhood of Teamsters , Chauffeurs,
Warehousemen and Helpers of America . Cases Nos. W-CA-
1993, 26-CA-2056, and 06-RC-2282. January 17, 1966
DECISION AND ORDER
On September 28, 1965, Trial Examiner Sidney Sherman issued his
Decision in the above-entitled proceeding, finding that the Respond-
156 NLRB No. 85.
MURRAY OHIO MANUFACTURING COMPANY 841
ent had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action, as set forth in the attached Trial Examiner's Deci-
sion . Thereafter, the Respondent and the General Counsel filed
exceptions to the ''t'rial Examiner's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with these cases to a three-member
panel [Members Fanning, Brown, and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made at
the hearing and finds no prejudicial error.' The rulings are hereby
affirmed. The Board has considered the Trial Examiner's Decision,
the exceptions and briefs and the entire record in this case, and
hereby adopts the Trial Examiner's findings,2 conclusions, and recom-
mendations as modified herein.
[The Board adopted the Trial Examiner's Recommended Order
with the following modifications :
[1. Substitute the following for paragraph l (g) :
[" (g) In any other manner, interfering with, restraining, or coerc-
ing employees in the exercise of their right to self-organization, to
form, join, or assist Teamsters, Chauffeurs, Helpers and Taxicab
Drivers Local Union 327, affiliated with International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and Helpers of America,
'The General Counsel excepts , inter alia, to the Trial Examiner 's failure to find cer-
tain additional incidents to be further violations of Section 8(a)(1) of the Act and to his
striking testimony relating certain other incidents allegedly constituting additional viola-
tions of that section. Inasmuch as we have already found ample evidence of conduct
violative of Section 8(a) (1), and further findings of the type involved would be cumula-
tive in nature , we find it unnecessary to determine the illegality of the additional in-
cidents referred to Therefore, while we agree with the General Counsel that the Trial
Examiner erred in striking such testimony , we find that this error was not prejudicial.
Respondent excepts to the Trial Examiner's refusal to order production of statements
and affidavits in the possession of the General Counsel given by witnesses Charles Fincher,
Don Taylor, and Harvey Belew The Trial Examiner's ruling in this respect is not in
accord with the provisions of Section 102 118 of the Board's Rules and Regulations,
Series 8, as amended. However, the testimony of Belew was not relied upon by the
Trial Examiner , and Respondent was not prejudiced by the Trial Examiner ' s rulings in
this regard The credited testimony of Taylor related to only one of a number of in-
stances of supervisory interrogation, which collectively and in context were found to
constitute unlawful interrogation. That of Fincher involved a threat made by the plant
superintendent regarding 'a union button worn by Fetcher, which conduct was found an
independent violation of Section 8(a) (1) by the Trial Examiner . As these incidents are
not crucial to the Board 's order but are merely cumulative and insignificant in Respond-
ent's total unlawful conduct, we shall not remand the matter for correction of the ruling.
However, in adopting the Trial Examiner's findings that Respondent violated Section
8(a)(1) of the Act , we do not rely upon such testimony . See Bludworth Construction
Company, Inc., 123 NLRB 3'85, 386.
2 The Trial Examiner credited witness Turner ' s testimony regarding employee distribu-
tion of "Vote No" cards during working hours in the presence of supervisor Wilkerson.
As this testimony was given by witness Hamilton rather than by Turner , we hereby
correct this inadvertent error.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
or any other labor organization, to engage in other concerted activities
for the purpose of collective bargaining or other mutual aid or pro-
tection, or to refrain from any or all such activities."
[2. Substitute the following for the last indented paragraph of the
notice :
[WE WILL NOT in any other manner interfere with, restrain, or
coerce our employees in the exercise of their right to self-
organization, to form, join, or assist Teamsters, Chauffeurs,
Helpers and Taxicab Drivers Local Union 327, affiliated with In-
ternational Brotherhood of Teamsters, Chauffeurs, Warehousemen
and Helpers of America, or any other labor organization, to bar-
gain collectively through representatives of their own choosing,
and to engage in other concerted activities for the purpose of col-
lective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.]
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
The original charge herein was served upon Respondent on December 14, 1964,1
and the complaint issued on February 25, 1965. On March 11, the Regional Director
ordered Case No. 26-RC-2282 consolidated for hearing with the unfair labor prac-
tice case. A hearing was held from June 8 through June 11 before Trial Examiner
Sidney Sherman. A brief was filed by Respondent.2 The issues litigated were,
inter alia, whether Respondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize the Union, and Section 8(a)(1) of the Act by interrogation,
threats of reprisal, promises of benefit, surveillance, distribution of "Vote No"
cards, and changes in working conditions, and whether Respondent interfered with a
Board election held on December 3.
Upon the entire record in the case 3 and my observation of the witnesses, I adopt
the following findings and conclusions:
I. RESPONDENT'S BUSINESS
Murray Ohio Manufacturing Company, herein called Respondent, is an Ohio cor-
poration, engaged at its plant in Lawrenceburg, Tennessee, in the manufacture of
velocipedes, bicycles, and wheel toys. During the 12 months preceding the issuance
,of the complaint, Respondent shipped from its Lawrenceburg plant to out-of-State
points products valued in excess of $50,000.
Respondent is engaged in commerce within the meaning of Act.
II. THE LABOR ORGANIZATION INVOLVED
Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated
with International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union, is a labor organization under the Act.
1 All events herein occurred in 1964, unless otherwise indicated.
2 While not filing a brief , the General Counsel, in response to my request, on August 30,
submitted a statement clarifying his position with regard to the "no-solicitation" rule
discussed below.
30n August 20, 1965, I issued an order providing for certain corrections to be made
In the record, unless objection thereto was received on or before August 31. No objec-
tions having been made , they are hereby adopted.
On September 7, I issued an order to show cause why certain portions of the Regional
Director's Report on Challenges and Objections in Case No. 26-RC-2282 should not be
Incorporated In the record as Trial Examiner 's Exhibit No. 2. No return having been
made to such order, they are hereby so incorporated . After the hearing , Respondent
requested leave to withdraw Respondent 's Exhibit No. 15. Such leave is hereby granted.
MURRAY OHIO MANUFACTURING COMPANY
III. THE UNFAIR LABOR PRACTICES
843
The complaint, as amended at the hearing, alleged that Respondent violated Sec-
tion 8 (a) (5) and (1) of the Act by refusing to bargain with the Union, and inde-
pendently violated Section 8(a)(1) of the Act in the following respects:
1. By interrogating employees about their union sentiments.
2. By engaging in and creating the impression of surveillance of employee union
activities
3. By threatening employees with reprisals for union activities.
4. By soliciting employees to renounce the Union.
5. By permitting antiunion solicitation during worktime while maintaining in
effect and enforcing a iule against union solicitation.
6. By causing and encouraging its employees to wear "Vote No" signs during the
Union's preelection campaign.
7. By soliciting an employee to cast his ballot aginst the Union in a Board election.
8. By imposing more arduous working conditions on employees because of their
union activities .4
Respondent's answer, as amended, denied the violations alleged. On June 25,
after the hearing, Respondent moved for dismissal of the refusal-to-bargain allega-
tion, and a similar motion was filed by the General Counsel on July 1 and 7, an
order was issued dismissing such allegations.
Accordingly, the only issues remaining in the CA proceeding are those relating
to the alleged violations of Section 8(a)(1) set forth above.
Pursuant to a Board order of March 8, 1965, there was consolidated with the CA
proceeding, and referred to me for hearing, certain objections by the Union in the
RC case to conduct of the Respondent in connection with the election held on
December 3, 1964. For the most part, the subject matter of these objections coin-
cides with matters covered by the consolidated complaint.
A. Sequence of events
Sometime in August 1964, the Union launched a campaign to organize Respond-
ent's approximately 2,300 employees. On November 3, the Union filed a petition(
for an election, which was held on December 3, and was lost by the Union.6 The
Union filed timely objections to the election, some of which, as already noted, have
been referred to me for hearing in conjunction with the CA proceeding. On
March 3, the Union called a strike, which was still in effect at the time of the
instant hearing.
B. Discussion
1. Background evidence of union animus and some comments on credibility
Respondent's president, W. N. Hannon, candidly stated at the hearing that Respond-
ent believed that its employees would be "better off without a union ," and Respond-
ent's counsel stipulated that Respondent would use every legal means to prevent
organization of its employees by a union. Moreover, decisions of the Board indicate
that between 1957 and 1963, Respondent did not limit itself to lawful measures, but
resorted, inter alia, to discriminatory discharges, interrogation about union activities,
threats of reprisal for such activities, and promises of benefit for abandoning such
activities,7 as well as interference with a Board election.8
*During the course of the hearing , certain other allegations of the complaint were
dismissed on Respondent ' s motion.
5 The Union's request of July 15 for review of that order was denied by the Board on
July 20.
O After the hearing there was furnished , at the Trial Examiner's request , the revised
tally of ballots, which Is hereby received In evidence as Trial Examiner's Exhibit No. 3.
That tally shows that, after counting all challenged ballots as to which the challenges were
overruled, the final election result was 1,097 for and 1,155 against the Union.
7 Murray Ohio Manufacturing Co., Lawrenceburg, Tennessee, Divisian, 122 NLRB 1306,
enfd. 279 F. 2d 686 (CA. 6) ; Murray Ohio Manufacturing Company, 128 NLRB 184;
Murray Ohio Manufacturing Company, 134 NLRB 141, enfd. 326 F. 2d 509, 516-517
(C.A. 6) ; The Murray Ohio Manufacturing Company, 134 NLRB 175, enforcement denied
326 F. 2d 509 (C.A. 6) ; Murray-Ohio Mfg. Co., 148 NLRB 1541 (petition for enforcement
pending).
8Murray Ohio Manufacturing Co., etc., 122 NLRB 1306 , enfd. 279 F. 2d 686 (C.A. 6y.
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In one of the foregoing cases, the Board held, with court approval, that such prior
violations of the Act might be considered in evaluating independent evidence of new
violations occurring within the statutory 6-month periodp
While Respondent's history of violations of the Act may shed some light on its
motivation in regard to such matters as discharging or laying off employees or
refusing to bargin collectively, such background is of less value in dealing with
such violations of Section 8(a) (1) of the Act as are here alleged-e.g., interrogation,
threats of reprisal, promises of benefit. Normally motivation is not a factor in that
aiea, the proof of the act or utterance, itself, being sufficient to establish a violation,
and the only question to be resolved is ordinarily whether to credit the witness who
testified to the threat, promise, etc., or testimony to the contrary effect. In such a
situation, while proof of a Respondent's animus may well have some bearing on the
matter of the bias of Respondent's management and hence on the credibility of any
representative of management who may testify, such proof cannot always atone for
the indifferent demeanor or lack of candor of a witness'for the General Counsel.
In plainer words, it does not necessarily follow from the fact that Respondent has in
the past violated the Act, that all the General Counsel's witnesses in the instant
proceeding were honest and reliable, and that all Respondent's witnesses were
otherwise.
Another point bearing on credibility may be worth mentioning. In his able brief,
Respondent's counsel cites instances of apparent self-contradiction by the General
Counsel's witnesses, and he would, in effect, have me reject a witness' entire testimony
where any part of it is marred by self-contradiction or where his testimony deviates
in any respect from his pretrial affidavit. However, in evaluating the credibility of
such witnesses, whether for the General Counsel or Respondent,1° I have deemed it
proper to regard such self-contradictions or discrepancies as only one factor, to be
considered in the light of such other circumstances as the.demeanor of the witness,
himself, and of those testifying contrary to him, the spontaneity and circumstantiality
of the witness' testimony as to matters not directly affected by the above defects,
and, in the case of deviations from, or elaborations upon, pretrial affidavits, the
materiality of such deviations or elaborations, and the likelihood under all the
circumstances that any deficiencies in the affidavits were due to inadvertence or to
the witness' failure at the time of making the affidavit to appreciate the significance
of the omitted matter. As a result, I have concluded in some cases to reject the
testimony of a witness because of, inter alia, departures from prior testimony or from
a pretrial affidavit, while other witnesses have been credited notwithstanding such
defects when other relevant factors have convinced me that the inconsistency or
discrepancy was not typical of the witness' attitude to his oath, or was due to
inadvertence or confusion.
2. Interrogation
Employee Hyde testified that about a week before the election supervisors Bryant
and Walker, in separate conversations, asked him how he thought the election would
go. While Bryant denied any interrogation of Hyde, there was no contradiction of
Hyde's testimony with regard to Walker. As I was favorably impressed by Hyde's
demeanor, I credit him as to both incidents 11
Taylor testified that about 2 weeks before the election his supervisor, Dover,
showed him a list of nine employees and asked, in effect, if it was a complete list of
the union adherents in his department. Dover denied the foregoing interrogation,
and employee Parrott, who, according to Taylor, was present during the incident,
disclaimed all knowledge thereof. However, Taylor's demeanor impressed me more
favorably than did that of the other two witnesses, and this impression was rein-
forced by the circumstantiality and spontaneity of his testimony. Accordingly, I
credit Taylor.
Turner testified that during the month before the election he had at least six
conversations with supervisor Bennett about the Union; that, about 2 weeks before
the election, Bennett, after delivering some disparaging remarks about the Union,
asked the witness "how this Fraley boy was and the Brannon boy was"; that in the
other conversations between them during this period Bennett asked him similar
questions about other employees, in the context of a discussion of the Union; and
6 The Murray Ohio Manufacturing Company, 134 NLRB 175, enforcement denied 326
F. 2d 509, 511 (C.A. 0).
10As noted below, the General Counsel's witnesses were not the only ones who indulged
in self-contradiction.
11 Although the interrogation by Walker was not specifically alleged, it was adequately
litigated.
MURRAY OHIO MANUFACTURING COMPANY 845
that about a month before the election supervisor McMasters, in the presence of
employee McGee, asked Turner if Ray, a timekeeper, was for the Union. While
admitting that he had discussed the Union with Turner, Bennett denied any interroga-
tion. However, his testimony was marred at some points by equivocation 12 and at
one point was clearly self-contradictory.13 While McMasters denied any interroga-
tion of Turner about Ray, he did not impress me as a candid witness, nor, did
McCabe,14 who corroborated McMasters' denial. In view of the foregoing con-
sideration, and as I was favorably impressed by Turner's demeanor and by the
spontaneity and specificity of his testimony, I credit him.
According to Beasley, the day before the election supervisor Tomchey asked the
witness if he thought the Union would help the employees.'5 Tomchey admitted
making such an inquiry.
Springer testified that he began to wear a union button about October 1, and that
a week later his supervisor, Norwood asked him why he was wearing the button.
Despite Norwood's denial, I credit Springer on the basis of demeanor.16
Polk testified that a few months before the elections, Tomchey asked him if he
was going to attend a union meeting the following Sunday; that the day after the
meeting the witness began to wear a union button; and that on November 18,
Tomchey asked the witness, "How is the Union coming?" and, "How many cards
you got?" Notwithstanding Tomchey's disclaimer, I credit Polk for the same
reasons that impel me to credit him rather than Tomchey elsewhere in this Decision.17
Grey testified that in August, a few days after he began to display a union button,
supervisor Hood asked him why he was wearing it, and supervisor Lough asked him
the same question about a week later. While denying that he asked Grey on that
occasion why he was wearing the button, Lough admitted that he did ask what Grey's
problem was, and that this inquiry was prompted by his display of the button. Even
such an inquiry would under the circumstances seem tantamount to asking Grey why
he was wearing the button. In any event, I credit Grey, on the basis of demeanor,
and for like reason reject Norwood's denial of the interrogation ascribed to him.
In conclusion on this point, I find that Respondent interrogated, as related above,
Hyde, Polk, Turner, Beasley, Springer, Polk, and Grey, and that, in the context of
the various unfair labor practices found below, such interrogation violated Section
8(a)(1) of theAct. 18
3. Threats
Plunk testified that about a week before the election supervisor W. B. Boyd told
him that Respondent could not operate "under a union," and that with the Union
in the plant Respondent would have to reduce the size of its crews and work the
men harder, eliminating existing work breaks. The witness added that on an
unspecified date before the election either Boyd or C. F. Moore, warned that if
the Union organized the plant the existing employee bonuses would be discontinued.
Boyd admitted discussing the Union with Plunk about a week before the election
but denied uttering any of the threats ascribed to him by Plunk, and denied that
either he or Moore had warned of discontinuance of the bonuses. Moore, who did
not become a supervisor until October 4, 1964, denied that he had ever delivered
is Thus, when asked whether he was under instructions to ascertain the identity of union
adherents, he answered, "Not necessarily, no, sir."
18 When asked whether he knew that Fraley wore a union button, he at first answered,
"Not to my knowledge," but, when the question was repeated, admitted that he saw Fraley
wear a button.
11 Under cross-examination, McGee, retracted a previous denial that he had ever heard
McMasters talk to other employees.
Ii Beasley was wearing a union button at the time.
18 At the hearing I reserved ruling on a motion to strike Springer's testimony about the
foregoing incident. That motion is hereby denied.
17 See section III, B, 6 entitled, "Surveillance."
18 The fact that some of the employees named above wore union buttons at the time
of the interrogation does not preclude a violation finding. Standard-Coosa-Thatcher
Company, 85 NLRB 1358, 1363; Kay Allen Classics, Inc., 152 NLRB 1250; Comfort, Inc.,
152 NLRB 1074.
As any finding of additional interrogation would be merely cumulative and would not
affect the i eniedial order in the CA cases nor the disposition of the objections to the
election, I do not pass 'on the evidence in the record relating to other incidents of alleged
interrogation.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
such a warning to Plunk. He did admit that before he became a supervisor there
was an occasion when Boyd discussed the Union with Plunk in Moore's presence,
but he denied that any reference was made to the discontinuance of bonuses. On the
basis of demeanor, I credit Plunk as to the first of the foregoing incident and find
that about a week before the election Boyd intimated that, if the plant were organized
by the Union, Respondent would reduce the plant complement and impose more
arduous working conditions on the remaining employees, and that Respondent
thereby violated Section 8(a)(1) of the Act. However, as to the "bonus" threat,
in view of Plunk's uncertainty as to whether it was uttered by Boyd or Moore,
and as it does not appear from Plunk's testimony that this incident occurred after
Moore became a supervisor, the evidence does not preponderate in favor of a
finding that the threat emanated from a supervisor. Accordingly, I will recommend
dismissal of this allegation of the complaint.
Hamilton testified that late in September supervisor Morrison told him that
Respondent would discharge another employee on the first pretext because of his
union activity and that about November 10, supervisor Wilkerson asserted that
Respondent could discharge employees if such action was needed to keep the Union
out of the plant. Both Morrison and Wilkerson denied the threats attributed to
them. As Hamilton displayed a sincerity and candor which was notably lacking
in the demeanor of Wilkerson and Morrison, I credit him,10 and find that by the
foregoing threats of reprisal for union activity Respondent violated Section 8(a)(1)
of the Act.
Beasley testified that 4 or 5 weeks before the election supervisor Beuerlein, after
disputing the efficacy of the Union, told him that Respondent's plant had moved to
Lawrenceburg "on account of the union." 20 Beuerlein admitted that, after asserting
to Beasley that the Union had nothing to offer the employees, he attributed Respond-
ent's removal of its plant from Cleveland, Ohio, to Lawrenceburg, to the inability
of Respondent to operate in the face of union demands. He admitted further that
he told Beasley it would be difficult for Respondent to operate in Lawrenceburg with
the Union. When asked who informed him of the reason for the move from
Cleveland, Beuerlein answered that Respondent's personnel director, Smotherman,
told him, "the only reason they had to leave Cleveland was on account of the union."
The only difference between Beasley's version and Beuerlein's as to the reason
assigned by the latter for the move from Cleveland is that Beasley imputes to
Beuerlein an unqualified assertion that the move was "on account of" the union in
the Cleveland plant, whereby Beuerlein claims that he ascribed the move to Respond-
ent's inability to meet the Union's demands. Thus, if one credits Beuerlein, it might
be argued that at the most his explanation of the move from Cleveland impiled only
that, if it could not meet the union demands in Lawrenceburg, Respondent would
move from Lawrenceburg, as it had moved from Cleveland, and that this was
merely a privileged prediction of the economic consequences of unionization at
Lawrenceburg. However, militating against Beuerlein's credibility is the circum-
stance that at one point, at least, he admitted that he based his advice to Beasley on
Smotherman's disclosure to him that the only reason for the move from Cleveland
was "on account of the union." It is a striking coincidence that Beuerlein thus
imputes to Smotherman the identical phrase that Beasley attributes to Beuerlein.
In view of this, as well as demeanor considerations, I credit Beasley and find that
Beuerlein told him that the move from Cleveland was "on account of" the Cleveland
union, thereby implying that it was the mere fact of union representation of its
employees that prompted Respondent to move, and suggesting that the same thing
might happen at Lawrenceburg. There was nothing to negate this suggestion in
Beuerlein's admitted further assertion to Beasley that Respondent would find it
difficult to operate in Lawrenceburg with the Union. Such assertion was not condi-
tioned.upon the reasonableness of the .Union's economic demands 21 but left unex-
plained the nature of the anticipated difficulty. If anything, this enigmatic statement
was reasonably calculated to reinforce the suggestion in Beuerlein's preceding remark
that here, as in Cleveland, Respondent would react to unionization of its employees
"Contrary to the contention of Respondent , I find no material discrepancies between
Hamilton's testimony as to the Wilkerson incident and his pretrial affidavit.
The reference here was apparently to the UAW, which had represented Respondent's
employees in Cleveland until 1956, when Respondent moved to Lawrenceburg.
2'Presumably, no such demands had as yet been made ; as the Union had not at that
time, and has not yet, been recognized by Respondent.
MURRAY OHIO MANUFACTURING COMPANY 847
by moving its plant elsewhere. I find therefore that Beuerlein's remarks were reason-
ably construable as a threat of plant removal to avoid dealing with the Union, and
that Respondent thereby violated Section 8(a) (1).22
Charles Fincher testified that on February 17, 1965, he found on his press a sign
with a prounion legend and permitted it to remain there; that later that day he was
called into the office of department superintendent Starkey, who, after admonishing
him that it was against company policy to place any unauthorized articles on
machinery, directed him to leave the sign in Starkey's office and "take the union
button off of [his] shirt and go back to work and stop causing trouble if [he] wanted
to work there and get along." Although supervisor Sayre corroborated Starkey's
denial that the foregoing incident involved anything more than an instruction to
Fincher to remove the sign because it was a safety hazard, I was more favorably
impressed by Fincher's demeanor and credit him. Accordingly, I find that Starkey
directed Fincher to remove his union button in the context of remarks which were
reasonably calculated to convey to him the impression that he would suffer some
detriment if he did not do so, and that Respondent thereby violated Section 8 (a) (1)
of the Act.
The record deals at some length with an incident involving Respondent's president,
W. N. Hannon, which occurred early in January 1965. Others involved therein were
(1) Violet, an employee, who occupied a responsible position in the local county
government, (2) Caperton, one of Respondent's directors and president of a local
bank, and (3) Brewer, a local businessman. The evidence relates to two meetings,
early in January 1965, the first of which, arranged by Brewer at Violet's instance,
was between Violet and Caperton,23 Violet's version of this meeting was that,
after he recited various instances of maltreatment of employees by Respondent,
including his personal complaint that, although he and his father had theretofore
not been union adherents, they had been passed over for promotion in favor of
union adherents, Caperton promised to intercede with President Hannon, but sug-
gested that in the meantime Violet remove the union button he was wearing. A few
days later a meeting was held at Caperton's home, which was attended by Brewer
and Hannon. According to Violet, after repeating his complaints, he was asked by
either Hannon or Caperton whether he had given a statement to a Board agent
(presumably, in connection with the investigation of the instant case ), Caperton
asked him how far he was involved with the Union, and, when asked by Violet why
so many of Respondent's foremen had a union background, Hannon replied that
he had in the past 24 made an effort to win over union adherents, and that most of
those who responded favorably to his overtures were made foremen, while the
"hard core" of 25 or 30 who persisted in their union activity were terminated. Violet
added that at the close of the meeting Caperton repeated his suggestion that Violet
remove his union button pending action by Hannon on Violet's complaints. How-
ever, while agreeing with Violet in other respects, Caperton and Hannon denied that
they had asked Violet whether he had given a statement to a Board agent, and
Caperton denied that he had suggested to Violet at either meeting that he not wear
his button, explaining that, when Violet mentioned the fact that he had been
criticized by other employees for wearing the button,25 Caperton asked him only
whether Violet had to wear it. Caperton denied also that he interrogated Violet
about the extent of his involvement with the Union. Finally, Caperton, Hannon
and Brewer denied categorically any admission by Hannon of discrimination based
on union activity.
Violet's testimony under cross-examination was marked by equivocation and
evasion, and in his pretrial affidavit, executed about a week after the foregoing meet-
ings, no reference is made to the alleged admission by Hannon of mas discrimination
against union adherents. In view of these circumstances, and in view of the mutually
corroborative testimony of Caperton, Brewer, and Hannon , as well as demeanor
za In view of this finding, I do not deem it necessary to resolve conflicting testimony
about an alleged statement by Supervisor Sammy White to employee atkisson that the
chairman of Respondent 's board of directors "would pull up and leave if the union came
in," or to determine whether such statement , if made, implied a threat of plant removal
or merely speculation as to the board chairman's personal reaction to unionization of the
plant.
^ Brewer attended but did not participate in the discussion.
u It is not clear from Violet ' s testimony whether Hannon was referring to the current
union campaign or to some prior campaign.
2 Violet admitted under cross -examination that be had mentioned such criticism to
Caperton
848 DECISIONS OP' NATIONAL LABOR RELATIONS BOARD
considerations, I credit them and reject Violet's testimony insofar as it conflicts with
theirs. Accordingly, I will recommend dismissal of the various allegations of the
complaint relating to this incident-namely, that Respondent solicited Violet to
refrain from union activity in return for a promise of benefits, threatened him with
discharge for engaging in union activity,26 and interrogated him about his union
activity by questioning him concerning his grievances against Respondent 27 and
his participation in the investigation of the charge herein.28
In conclusion on this issue, I find that Respondent violated Section 8(a)(1) by
Boyd's warning to Plunk about the reduction of crews and elimination of work
breaks, Wilkerson's and Morrison's remarks to Hamilton, Beuerlein's statement to
Beasley, and Starkey's warning to Charles Fincher.29
4. Inducement and solicitation
Roberts testified that in mid-September supervisor Staggs intimated that he would
be given a better job if he desisted from his union activity. On the basis of demeanor,
I credit Roberts despite Staggs' denial.
Lindsey testified that late in November supervisor Jaco told him, in effect, that
if he would remove his union button his chances for advancement would be improved.
Jaco admitted that he talked to Lindsey on that occasion, but insisted that the con-
versation had no relation to the Union, explaining that other employees referred him
to Lindsey for the meaning of a phrase Jaco had heard them use in discussing the
cultivation of tobacco. Apart from the implausibility of this reason for his approach-
ing Lmdsey30 Jaco's manner and tone on the witness stand were singularly unimpres-
sive, whereas Lindsey appeared to be a forthright witness. Accordingly, I credit him.
Hyde testified that on or about February 1, 1965, plant manager Flesher expressed
surprise, upon noting that the witness was wearing a union button, and promised to
promote him to a supervisory job if he would remove the button and induce others
to do likewise. Flesher admitted expressing surprise on that occasion but denied
the promise attributed to him. However, on the basis of demeanor, I credit Hyde.
William Filcher testified that about October 1, supervisor Prince visited his home
and urged him to persuade the witness' son (the Charles Fincher referred to above)
to remove his union button, as his son's conduct reflected unfavorably on the wit-
ness. Prince denied making such a request, and there is no reference to any such
incident in a pretrial statement given by Fincher to a Board agent on December 9,
^ As there was no evidence of any threat of discharge addressed to Violet, himself, and
Violet in fact admitted that Hannon assured him that his union membership would not
be held against him, this allegation presumably refers only to Hannon's alleged admisssion
of discriminatory discharges of other union adherents.
21 By his own admission , Violet was the one who broached the subject matter of his
grievances and sought an audience with Respondent about them, and Hannon merely
invited him to repeat the complaints which he bad already volunteered to Caperton and
had agreed to submit to Hannon. It is apparently the General Counsel's position that,
in view of the fact that Violet was an avowed Union adherent, and the fact that the
meeting with Hannon occurred at Caperton's home rather than at the plant, it is proper
to infer that Hannon's query about the nature of Violet's grievances was intended to
elicit the reasons for Violet's union activity. However, the fact that those reasons had
already been voluntarily disclosed to Caperton and that Hannon's inquiry n as, in effect,
solicited by Violet, would, alone, suffice to preclude a violation finding. There is the
further circumstance that, as already noted, Hannon admittedly assured Violet that his
union activity would not adversely affect his job status
23 Even if one were to credit Violet's testimony that he was asked whether he had given
- the Board agent a statement, the Board has held such a question to be lawful. See
Montgomery Ward & Co., Incorporated, 146 NLRB 76, 80, 81
28There was testimony by Daniels that on an unspecified date early in November
Supervisor Williamson warned him of "trouble" if he did not remove his Union button
Williamson denied uttering such threat, and Daniels' foregoing version of the threat
conflicts with that contained in his pretrial affidavit. Moreover, the reasons cited in
the text, anjre, for rejecting Daniels' testimony as to other matters, reflect on his credibility
here I do not credit him.
I do not pass on other incidents Involving alleged threats of reprisals for union activity,
as they would not affect the result herein
3° Jaco offered no explanation for the employees' failure to enlighten him as to the
meaning of the phrase they were using and their insistence that he find out about it
from Lindsey.
MURRAY OHIO MANUFACTURING COMPANY 849
although Fincher insisted that he told the Board agent about the incident. In
view of this circumstance, and on the basis of demeanor, I credit Prince, and will
recommend dismissal of this allegation.
Mashburn testified that late in August, soon after the Union launched its organiz-
ing campaign, and before he began to wear a union button, supervisor Richardson,
in the course of a discussion about the Union, stated that if the witness would use
his influence among the employees Respondent could win the election, adding that
in that case Mashburne "would have a lot of room for advancement " Richardson
denied this. Apart from the unlikelihood that, at a time when the Union had
scarcely begun its campaign, Respondent would foresee that there would be a Board's
election, I was not favorably impressed by Mashburne's demeanor or candor.31
Accordingly, I do not credit him and will recommend dismissal of this allegation.
Miller testified that on December 5, supervisor Howard Smith urged the witness
to abandon the Union- and promised to recommend his promotion to a supervisory
job. Smith's version was that on this occasion Miller voiced some grievances against
Respondent and Smith merely offered to see if he could help to adjust them. Miller's
credibility was seriously impaired by his reluctance to admit that he had signed a
pretrial affidavit, even after the General Counsel had stipulated to his signature, and
by the fact that such affidavit, although executed on December 9, not only makes
no reference to the foregoing incident but even asserts that no supervisor had during
the preceding 6 months offered the witness any reward to quit the Union. In view
of this, as well as demeanor considerations, I credit Smith, and find no violation in
this incident
The amended complaint alleges that on December 3, during the representation
election, supervisor Staggs solicited an employee standing in the voting line of vote
against the Union. In support of this allegation, Daniels, who was a union observer
at the election, testified that he saw Staggs approach an employee standing in line to
vote and heard him tell the employee to be sure to vote right. It is undisputed that
the voting area was adjacent to Staggs' work area and that the voting line at times
extended into such area. Staggs' version was that he had occasion to pass through
that part of the voting line which extended into his work area, but denied that he
asked any one in the line to "vote right." Daniels' demeanor left much to be desired.
His attitude was belligerent and his answers sometimes argumentative. I do not
credit him. Accordingly, assuming without deciding, that the alleged solicitation
would be an unfair labor practice, I find that it did not occur.
Accordingly, I find that Respondent violated Section 8(a)(1) by Flesher's offer
of advancement to Hyde, and by the like offers of Staggs and Jaco to Roberts and
Lindsey, respectively, all of which offers were conditioned on abandonment of
union activity.
5. Alleged harassment
The amended complaint alleges that supervisors Richardson and Wiser imposed
more arduous working conditions on employees because of their union activities.
Richardson
Mashburne testified that he began to wear a union button in September; that,
being on piecework and having achieved a high rate of production, he generally did
not work a full 8-hour shift, but would spend about an hour each day in loitering
about the plant, talking to other employees and helping them with their work; that
this had been his practice for about a year before September; that, about 2 days
after he put on a union button, Richardson rebuked him for wandering about and
disturbing other employees, characterized Mashburne's action- as "dangerous," and
declared that he was going to make a written report of his conduct; and that on
another occasion, between November 3 and December- 3, the witness was told by
Richardson that he was going to make a written report of the fact that Mashburne
had spent several minutes loitering in the restroom. Mashburne did not deny that
he had been guilty of the misconduct with which he was charged by Richardson,
contending only that it was not any more serious than his past irregularities. How-
ever, Mashburne conceded, albeit reluctantly,32 that Richardson had reprimanded
him for his rather informal work habits even before Mashburne displayed a union
33 Among other things, Mashburne's credibility was impaired by the fact that he gave
inconsistent answers when asked whether Richardson had reprimanded him for loafing
on the job before he began to wear a union button , This matter is discussed in more
detail below.
^ See footnote 31, above.
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
button, and he admitted that on the occasion of the first "report" incident Richard-
son assured him that the button had no bearing on the matter. Richardson's version
of that incident was that he observed Mashburne talking to another employee, while
he was operating a machine, and later the same day saw Mashburne loitering about
and talking to others; that he warned Mashburne of the safety hazard involved in
talking to the machine operator, cited his previous reprimands of Mashburne for
loafing, and informed him that a written report would be made of the incident; and
that on November 6, he found Mashburne loitering in the restroom and again told
him that such a report would be made. Richardson denied that Mashburne's display
of a union button influenced his criticism, or scrutiny of, Mashburne . While Richard-
son admitted that other employees under his supervision had loafed on the job, he
testified that Mashburne was the most persistent offender, and Mashburne did not
deny this charge.
It is clear from Mashburne's own testimony that, despite his high rate of produc-
tion, his tendency to loiter about the plant and disturb other employees had been of
sufficient concern to Richardson, even before Mashburne identified himself with the
Union, to cause him to reprimand Mashburne orally. The General Counsel con-
tends only that the fact that no written report was made of Mashburne's delinquencies
until after he put on the union button warrants the inference that that action prompted
the subsequent reports. However, while Mashburne was positive that the first "report"
incident occurred only a few days after he began to wear the union button, which date
he indicated was early in September,33 Respondent's records show that the incident
did not occur until October 15. I deem such documentary evidence more reliable
than Mashburne's recollection. Accordingly, accepting his uncontradicted testimony
that he began to wear the button early in September, it is evident that, contrary to
his contention, Respondent continued to tolerate his chronic loitering on the job
for about 6 weeks after he put on the button. This time lag weakens any inference
of a causal relation between the display of the button and the "report" incidents.
Moreover, Richardson's admitted assurance on October 15 that the union button
had no bearing on the disciplinary action was hardly calculated to further Richard-
son's alleged purpose of discouraging Mashburne's union activity. Under all the
circumstances, I do not believe that any violation has been sufficiently proved here 34
Wiser
The testimony of Rosson, as partially corroborated by employee D. Moore, was
to the effect that on October 22, when Rosson first displayed a union button, super-
visor Wiser made some disparaging remarks about the Union; that the next day
Rosson quit work about 15 minutes early, retiring to the washrooms, whereupon
Wisher rebuked him and ordered him back to his machine; that while it had been
Rosson's-regular practice to quit early, he had never before been reprimanded there-
for; that, the day after the foregoing incident, Rosson removed his button and has
since then continued to quit early, without eliciting any reprimand. However, Rosson
admitted that many other employees in his section were wearing union buttons at the
time of the washroom incident and that all were in the habit of quitting early, but
that no one else was reprimanded by Wiser on that occasion except for one employee
Garber, who wore no button.35 There were, moreover, material discrepancies
between the testimony of Rosson and Moore and their pretrial affidavits. Wiser
disclaimed any recollection of any such occurrence. Even if I were to find that the
incident occurred, I would not find sufficient proof of improper motivation for Wiser's
reprimand, particularly in view of Rosson's admission that, apart from another non-
union employee and himself, none of the employees in his section was reprimanded
33 At one point he testified that he began to wear the button about 2 weeks after the
Union began its campaign, some time in August. Later, he specified that the first report
incident occurred about September 1.
34 Mashburne asserted that his exhibition of a union button also triggered complaints
about the quality of his work. Richardson testified that he had made such complaints
even before the button appeared. While I do not credit Richardson as to another in-
cident, discussed below, I regard him, for reasons already noted, as a more candid witness
than Mashburne, and credit him here as elsewhere where his testimony conflicts with
Mashburne's.
35 Rosson testified to a statement made to him by Garber concerning an alleged apology
by Wiser to Garber for having reprimanded him on that occasion. This statement was
struck as hearsay and the General Counsel did not call Garber as a witness.
MURRAY OHIO MANUFACTURING COMPANY 851
by Wiser for quitting early , although they were predominantly union adherents and
regularly quit early in the same manner as Rosson . Accordingly, I will recommend
dismissal of this allegation.
6. Surveillance
The amended complaint alleges surveillance of union meetings by supervisors
Jaco and Tomchey , and that Tomchey , in addition , created an impression of surveil-
lance of union activities.
Hancock testified that there were at least 10 union meetings during the organiza-
tional campaign , beginning in September ; that the meetings were held at 12:15 a.m.,
after the end of the witness ' shift ; that Jaco was on the same shift ; that on various
dates between the date of the first union meeting and the date of the election (on
December 3) he would see Jaco about 12:15 a.m . driving "around and around"
the courthouse square on which the union hall fronted ; and that on the day before
the election , the witness saw Jaco about 12:15 a.m. drive around the square several
times, slowing down when he passed the union hall, and staring at the employees
who were waiting at the entrance to the hall for the arrival of the union representa-
tive. Jaco testified that he had to drive through the courthouse square at midnight
on his way home from work , but he admitted that it was not necessary for him to
drive directly past the union hall on such occasions . However, he denied that he
ever did drive directly by the union hall after work or that he ever circled around
the square in the manner described by Hancock . The latter, unlike Jaco, impressed
me as a sincere witness. In view of this, and in view of the circumstantiality of
Hancock's testimony , I credit him , and find that Jaco engaged in surveillance of a
number of union meetings, including the one held the day before the election, and
that Respondent thereby violated Section 8 ( a) (1).
Polk testified that about 12:15 a.m., on November 10, on the occasion of a union
meeting, Tomchey three times drove around the courthouse square, slowing down
each time near the union hall to gaze at the entrance. When asked by Respondent's
counsel whether he had ever driven around the square after midnight to observe a
union meeting, Tomchey at first avoided a direct answer , and only when the ques-
tion was repeated did he enter an unequivocal denial. In view of this, as well as
demeanor considerations , and the particularity of Polk's account of the incident,
I credit him , and find that on November 10, Tomchey engaged in surveillance of a
union meeting , and that Respondent thereby violated Section 8(a)(1).
Employee Austin White testified that about a month before the election he over-
heard a conversation between Tomchey and another employee, Holt, in the course
of which Tomchey asserted that he knew all those who had signed union cards "back
there." Tomchey, after some vacillation, denied that he had made such a remark.
White, who testified under subpena , did not sign a union card or participate in the
strike and was still in Respondent's employ at the time of the hearing . The record
fails to suggest why he should want to give false testimony against his employer.
Under all the circumstances , I credit him and find that Tomchey made the fore-
going remark , thereby creating an impression of surveillance of union activities,
and that Respondent thereby violated Section 8(a)(1) of the Act.
7. The "Vote No" campaign
The amended complaint alleges that Respondent "sponsored and initiated a cam-
paign to have its employees wear VOTE NO signs" and through various named
supervisors "fostered and encouraged" such campaign.
It is undisputed that during the month preceding the election many employees
wore "Vote No" cards 36 and that Respondent's supervisors observed this practice
and took no action to discourage it. The General Counsel does not contend that
management 's toleration of this practice was unlawful , but only that it was unlawful
for Respondent to participate actively in, or to permit, the distribution of the "Vote
No" cards in the plant during worktime.
Plunk testified that late in November his foreman, W. B. Boyd pinned a "Vote No"
card on the witness' shirt, but removed it a few minutes later; that later the same
day, the witness asked Supervisor C. F. Moore where he could obtain such cards;
that Moore referred him to a setup man in another department , who gave him a
supply of cards ; that during the next 10 days the witness , in the presence of Boyd,
38 These cards were 2 by 4 inches in size and bore only the legend "VOTE NO Dec. 3."
217-919-66-vol. 156-55
852 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed the cards to other employees while at their work stations. Hargrove
corroborated Plunk's testimony as to Boyd's pinning a card on Plunk, and added
that on the same occasion Boyd gave some of the cards to another employee, Taylor.
Boyd, however, denied that he had distributed, or seen Plunk distribute, the cards,
or that he had pinned one on Plunk. Moore admitted that in the latter part of
November, in response to an inquiry by Plunk, he referred him to another employee
who could supply him with "Vote No" cards. In view of this corroboration of
Plunk's testimony by a supervisor, as well as by Hargrove, and as I was favorably
impressed by Plunk's demeanor, I credit his entire testimony as recited above, and
find that about November 23, Boyd pinned a "Vote No" card on his shirt,37 that
Plunk thereafter, with Moore's assistance, obtained a supply of such cards, which
he distributed during work time to other employees in the presence, and with the
knowledge, of Boyd. Having rejected Boyd's denial of Plunk's testimony, I also
reject his testimony insofar as it contradicts Hargrove's assertion that Boyd, himself,
gave some "Vote No" cards to an employee, and I find that Boyd did engage in
such distribution.
Turner testified that, about 2 weeks before the election, general foreman Walker
told him to see supervisor Richardson and get about 50 "Vote No" cards and bring
them back, taking care not to be seen with the cards; that when the witness con-
tacted Richardson, he was referred to two employees who were standing nearby,
and who, when advised of Walker's request, supplied Turner with the cards; that,
when the witness returned to Walker, he was told to leave the cards in an adjoining
office; and that an hour and a half later such cards were distributed for the first time
in the department in which Turner was employed. Walker's version was that Turner
told him some of the employees wanted "Vote No" cards, whereupon Walker
referred him to an employee in Richardson's department, who was rumored to have
such cards. Richardson testified that Turner came to him in search of "Vote No"
cards, and that he merely told Turner to check with some other employees in the
vicinity who were wearing such cards, and who might be in a position to help him.
Richardson denied that he had any foreknowledge of Turner's mission. The testi-
mony of both Walker and Richardson was marred by vagueness on critical points.
Moreover, Richardson's admission that Turner approached him, while jibing with
Turner's version, militates against the credibility of Walker's testimony that he
referred Turner, not to Richardson, but to a specific employee in Richardson's
department. In view of these circumstances, as well as demeanor considerations, I
credit Turner and find that in the latter part of November Walker and Richardson,
acting in concert, arranged to have Turner procure the "Vote No" cards and sur-
reptitiously bring them to Walker for distribution throughout Turner's department.
Turner testified that later the same day Supervisor Jaco admitted that he was aware
that Turner had procured the "Vote No" cards and urged him to wear one himself.
Notwithstanding Jaco's denials, I credit Turner on the basis of demeanor.
Turner testified, moreover, that about 15 minutes before the polls were opened on
December 3, and during work hours, an employee, Duncan, passed out to other
employees, in the presence of supervisor Wilkerson, cards which, in addition to the
words "Vote No," contained a charge that the Union had "sold out" the employees
in another plant and implied that the Union intended to do the same in the instant
plant 38 Turner added that when he complained about Duncan's action to Wilker-
son, he merely asserted that nothing could be done about it because Duncan was
acting on his own initiative. While Wilkerson controverted Turner's testimony, I
credit him.39
Hancock testified, without contradiction, and I find, that about a week before the
election he saw two employees approach a stockboy, during worktime, and hand
him some "Vote No" cards, in the presence of Supervisor Box, and that the stock-
boy proceeded to distribute the cards to other employees in his vicinity.
On the basis of the foregoing, I find that Respondent violated Section 8 (a)( I) of
the Act by participating, and assisting, in the distribution of "Vote No" cards, by
permitting such distribution by employees in the plant during worktime, and by
soliciting an employee to wear such a card.49
37 However, I base no violation finding thereon, in view of the prompt removal of
the card.
38 These cards were the same size as the other "Vote No" cards mentioned above.
° Respondent failed to call Duncan to corroborate Wilkerson 's denial.
40 Beiser Aviation Corporation, 135 NLRB 399, 400; Lyon, Incorporated, 145 NLRB 54 ;
G c& S Manufacturing, Inc., 123 NLRB 1602, 1608, 1610.
MURRAY OHIO MANUFACTURING COMPANY
8. The no-solicitation rule
853
It is conceded that since 1959 Respondent has maintained in effect and enforced
the following rule:
No employee will be allowed to carry on union organizing activities in the
plant during working hours. Anybody who does so and thereby neglects his
own work or interferes with the work of others will be subject to discharge.
The General Counsel does not question the validity of the rule, itself, but contends,
in effect, that Respondent violated the Act by enforcing the rule at the same time
that it was permitting solicitation of employees during working hours to reject the
Union, as in the case of the Duncan incident found above.41 The employee distribu-
tion of the "Vote No" cards in the presence of Boyd and Box, described above, con-
stitute other instances of such disparate treatment. I find that Respondent thereby
violated Section 8(a)(1) of the Act 42
IV. THE OBJECTIONS TO THE ELECTION
The Regional Director's order of March 11, 1965, in effect referred to me for
-hearing in the consolidated proceeding the issues raised by certain of the Union's
objections to the election, designated as objections I, 111, and VI.43 These objections
alleged in substance the following:
Objection I: That Respondent (a) threatened, restrained, interfered with, and
coerced employees in the exercise of the rights guaranteed by Section 7 of the Act,
(b) created the impression of surveillance of union activities, (c) interrogated
employees about employee union activities and sentiment, (d) solicited employees
to inform on the union activities of other employees, (e) solicited employees to
withdraw from the Union, (f) told employees that the selection of the Union as
their bargaining representative would be of no avail, and (g) made promises of
benefit to its employees.
Objection III- That Respondent directed its supervisors to go in and around the
polls during the election in an attempt to harass the employees and deny them a
free election
Objection VI• That supervisors in some instances voted under the names of bar-
gaining unit employees who failed to vote.
Objection I is supported by the findings made above as to the following incidents
which occurred during the critical interval between the filing of the Union's petition
(on November 3) and the election of December 3:
1. The interrogation of Hyde, Taylor, Turner, Beasley, and Polk concerning their
own union sentiments or those of other employees.
2. Wilkerson's threat to Hamilton that Respondent could discharge employees to
keep the Union out of the plant and Boyd's warning to Plunk of reduction of the
plant complement and more arduous working conditions.
3. Jaco's promise to Lindsey of reward for renouncing the Union.
4. The surveillance of union meetings by Jaco and Tomchey and the latter's remark
ti\ Holt which tended to create the impression of surveillance of employee union
ac, vities.44
The involvement of Respondent's supervisors in the distribution of "Vote No"
card ^ which was tantamount to a campaign, directed, inter alia, at union adherents,
to sec e the repudiation of the Union.
As . \objection III, apart from the Daniels-Staggs incident, discussed above, and
found ^a'hout merit, this objection is based on the alleged presence of Supervisor
Vance in or near the voting area during the balloting.
Roberts, a union election observer, testified that during the balloting he saw Vance
enter the voting area and that, when the witness directed him to leave, Vance lingered
in the area for a few minutes before complying. Vance's version was that he merely
41 See the General Counsel's posthearing statement to me of August 30, 1965, referred
to in footnote 2, above.
42 See Standard Manufacturing Company, 147 NLRB 1608, 1609.
43 While the order refers to "Objection IV," this Is manifestly a typographical error,
reference being intended to objection VI. See the 3d paragraph of General Counsel's
Exhibit No . 1(f), and the Regional Director's report on objections , the pertinent part of
which has been incorporated in the record as Trial Examiner ' s Exhibit No 2.
44 While the Union's objection on this point alleges only that Respondent created the
impression of surveillance , I deem such allegation sufficient to embrace the actual
surveillance.
854 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
approached the voting area and looked at it for a few seconds, out of curiosity, but
promptly withdrew at Roberts' request. Even if one credits Roberts, the foregoing
incident standing alone constitutes insufficient proof of the Union's allegation that
Respondent directed its supervisors to enter the voting area and harass the voters.
Respondent has more than 200 supervisors. The presence of one of them for a
few minutes in the voting area, without any evidence that he spoke to or molested
any of the voters, would afford no basis for finding a planned campaign of harass-
ment. Nor would such an isolated breach of the rules governing the conduct of the
election, in itself, warrant setting aside the election.
As to objection VI, the only evidence having even a remote bearing on this objec-
tion consisted of testimony of Daniels, who, as already noted, acted as an election
observer for the Union. He testified that he saw Supervisor Yokley enter the polls
and cast a ballot, and that the witness through inadvertence failed to challenge him.
It was stipulated at the hearing that Yokley, as a supervisor, was not eligible to
vote. Yokley denied that he voted or that he entered the voting area for any
purpose. There was no evidence, in any case, that he voted under an assumed name
as alleged in the Union's objections. For reasons already noted, I do not deem
Daniels to be a credible witness, the more so here because in a pretrial affidavit
executed by him about a week after the election he made no reference to the Yokley
incident, averring, in fact, that, apart from the Staggs incident discussed above, he
did not observe any "misconduct" during the election.45 Accordingly, even if it be
assumed that such an isolated instance of voting by a supervisor constituted inter-
ference with the election, I would find no such interference here.
Accordingly, I find no merit in objections III and VI. However, in view of my
findings with respect to objection I, I conclude that Respondent interfered with the
employees' freedom of choice in the election and will recommend that the election
be set aside 46
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in con-
nection with the operations of the Respondent described in section I, above, have a
close, intimate, and substantial relation to trade, traffic, and commerce among the
several States, and tend to lead to labor disputes burdening and obstructing commerce
and the free flow of commerce.
VI. THE REMEDY
It having been found that Respondent violated Section 8(a)(1) of the Act, it
will be recommended that it cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
As it has been found that Respondent interfered with the election held on
December 3, it will be recommended that the election be set side and a new election
conducted.
CONCLUSIONS OF LAW
1. By interrogating employees concerning employee union sentiments and activities,
by threats of reprisal for such activities, by promises of benefit for abandoning such
activities, by surveillance, and creating the impression of surveillance, of such activ-
ities, by enforcing a rule against use of working time for union solicitation while
permitting such time to be used for solicitation of employees to reject the Union,
and by permitting, and participating in, the distribution of "Vote No" cards, Respond-
ent violated Section 8 (a)( I) of the Act.
2. By such interrogation, threats of reprisals, promise of benefit, and by engaging
in, and creating the impression of, surveillance of employee union activities, Respond-
ent interfered with employee freedom of choice in the election of December 3.
si Reference to the Yokley incident appears only in a later affidavit by Daniels While
at the hearing he attempted to explain, rather Implausibly, his reason for not regarding
the Yokley incident as "misconduct," he was at a loss to account for his failure to make
any reference at all to the incident in his first affidavit. ,
41 In view of the foregoing disposition of the matter, it is not necessary to consider
whether other conduct of Respondent occurring during the critical preelection period and
found above to violate Section 8(a) (1) (namely, the discriminatory enforcement of the
rule against union solicitation) may be treated as sufficiently alleged in Item (a) of
objection I, and hence available as a ground for setting aside the election. (As to the
specificity required In the case of objections , see Atlantic Mills Servicing Corporation of
Cleveland, Inc., et at., 120 NLRB 1284, 1286-1288, and cases there discussed )
MURRAY OHIO MANUFACTURING COMPANY 855
RECOMMENDED ORDER
Upon the entire record in the case, and the foregoing findings of fact and conclu-
sions of law, and pursuant to Section 10(c) of the National Labor Relations Act,
as amended, Respondent, Murray Ohio Manufacturing Company, Lawrence, Ten-
nessee, is hereby ordered to:
1. Cease and desist from:
(a) Coercively interrogating employees concerning employee union sentiments
and activities.
(b) Threatening to close its plant or take other economic reprisals because of
employee union activity.
(c) Offering employees inducements to abandon their union activities.
(d) Permitting, or participating in, the distribution to employees of antiunion
insignia.
(e) Engaging in, or creating the impression of, surveillance of employee union
activities.
(f) Enforcing a rule against the use of working time for union solicitation while
permitting such time to be used for antiunion solicitation.
(g) In any like or related manner, interfering with, restraining, or coercing employ-
ees in the exercise of their right to self-organization, to form, join, or assist Team-
sters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327, affiliated with
International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, to engage in other concerted activities for
the purpose of collective bargaining or other mutual aid or protection, or to refrain
from any or all such activities.
2. Take the following affirmative action, which I find necessary to effectuate the
policies of the Act:
(a) Post at its plant in Lawrenceburg, Tennessee, copies of the attached notice
marked "Appendix." 47 Copies of said notice, to be furnished by the Regional
Director for Region 26, shall, after being duly signed by the Respondent, be posted
immediately upon'receipt thereof, and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, where notices to employees are customarily posted.
Respondent shall take reasonable steps to insure that such notices are not altered,
defaced, or covered by any other material.
(b) Notify the aforesaid Regional Director, in writing, within 20 days from the
date of the receipt of this Decision, what steps Respondent has taken to comply
herewith.48
IT IS FURTHER ORDERED that the allegations of the amended complaint that Respond-
ent violated the Act otherwise than as found above be, and hereby are, dismissed.
IT IS FURTHER ORDERED that the election in Case No. 26-RC-2282 be, and it
hereby is, set aside and that Case No. 26-RC-2282 be, and it hereby is, remanded
to the Regional Director for Region 26 for the purpose of conducting a new election
at such time as he deems that circumstances permit the free choice of a bargaining
representative.
47 If this Recommended Order Is adopted by the Board, the words "a Decision and
Order" shall be substituted for the words "the' Recommended Order of a Trial Examiner"
in the notice. In the further event that the Board's Order is enforced by a decree of a
United States Court of Appeals, the words "a Decree of the United States Court of
Appeals, Enforcing an Order" shall be substituted for the words "a Decision and Order "
In the event that this Recommended Order Is adopted by the Board, this provision
shall be modified to read: "Notify the aforesaid Regional Director, in writing, within
10 days from the date of the Order, what steps the Respondent has taken to comply
herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board, and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate employees concerning union membership
or activities.
WE WILL NOT threaten to shut down our plant or to take other economic
reprisals because of the union activities of our employees.
WE WILL NOT offer employees inducements to abandon their union activities.
"856 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
WE WILL NOT engage in, or create the impression of, surveillance of employee
union activities.
WE WILL NOT permit , or participate in, the distribution to employees of
Vote No cards or other antiunion insignia.
WE WILL NOT enforce a rule against use of working time for union solicita-
tion while permitting the use of such time for antiunion solicitation .
WE WILL NOT in any like or related manner interfere with, restrain , or coerce
our employees in the exercise of their right to self-organization, to form, join, or
assist Teamsters, Chauffeurs, Helpers and Taxicab Drivers Local Union 327,
affiliated with International Brotherhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, or any other labor organization , to bargain col-
lectively, through representative of their own choosing , and to engage in other
concerted activities for the purpose of collective bargaining or other mutual
aid or protection , or to refrain from any or all such activities.
All our employees are free to become or remain members of any labor organiza-
tion or to refrain from becoming or remaining members thereof.
MuRRAY OHIO MANUFACTURING COMPANY,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered , defaced , or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions , they may communicate directly with the Board 's Regional Office, 746
Federal Office Building, 167 North Main Street, Memphis, Tennessee , Telephone
No. 534-3161.
Gateway Chevrolet Sales, Inc. and Automobile Salesmen & Misc.
Workers Union Local No. 192.' Case No. 13-CA-6644. Janu-
ary 17, 1966
DECISION AND ORDER
On June 11 , 1965 , Trial Examiner Samuel M. Singer issued his
Decision in the above-entitled proceeding, finding that the Respondent
had engaged in and was engaging in certain unfair labor practices,
and recommending that it cease and desist therefrom and take certain
affirmative action , as set forth in the attached Trial Examiner's Deci-
sion. On August 26, 1965, the parties filed with the National Labor
Relations Board a stipulation of facts pertaining to the status of the
Charging Party as a labor organization. Thereafter, the Respond-
ent filed exceptions to the Trial Examiner's Decision, and also filed
a motion to dismiss the complaint on the ground of mottness, attach-
ing certain affidavits. The General Counsel filed an answer to the
motion, also attaching an affidavit, and a brief in support of the Trial
Examiner's Decision.
i As designated in the charge and thereafter in the formal papers filed in this case.
The caption is hereby amended to delete "AFL-CIO" from the title of the Charging
Party. The circumstances which make the AFL-CIO affiliation no longer an appropriate
part of the Union ' s title are set forth In our Decision In Nelson Chevrolet Company, 156
NLRB 829. References to the Union hereinafter will exclude the AFL-CIO designation.
156 NLRB No. 89.