Regal Tube Company

National Labor Relations Board - Board Decisions

Sep 28, 1979

245 N.L.R.B. 968 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Regal Tube Company and Warehouse, Mail Order,
Office, Technical and Professional Employees
Union, Local 743, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America. Cases 13-CA- 17236 and 13-RC 14607
September 28, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On June 20, 1979, Administrative Law Judge Her-
zel H. E. Plaine issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, the General Counsel filed
cross-exceptions and a supporting brief, and Respon-
dent filed an answering brief to the General Counsel's
cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge, as modified be-
low, and hereby orders that the Respondent, Regal
Tube Company, Chicago, Illinois, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Substitute the following for paragraph I(c):
I Respondent has excepted to certain credibility findings made by the Ad-
ministrative 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 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 The Administrative Law Judge provided in his recommended Order that
Respondent shall cease and desist from "liln any other manner" infringing
upon employee rights guaranteed in Sec. 7 of the Act. However, we have
considered this case in light of the standards set forth in Hickmort Foods,
Inc., 242 NLRB 1357 (1979), and have concluded that a broad remedial
order is inappropriate inasmuch as it has not been shown that Respondent
has a proclivity to violate the Act or has engaged in such egregious or wide-
spread misconduct as to demonstrate a general disregard for the employees'
fundamental statutory rights. Accordingly, we will modify the recommended
Order and notice by substituting the narrow injunctive language "in any like
or related manner."
"(c) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
their rights guaranteed in Section 7 of the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAI. LABOR REI.ATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated the National Labor
Relations Act, as amended, has ordered us to post
this notice. We intend to abide by the following:
WE WILL NOT coercively interrogate our em-
ployees as to their views concerning the Union,
or whether they feel the Union is needed and if
so why, or whether they will vote in favor of the
Union or against the Union, or why they may
switch from support of the company position op-
posing the Union to support of the Union.
WE WILl. NOT direct employees to stop wear-
ing union buttons or insignia, or otherwise inter-
fere with their wearing union buttons or insignia,
whether on company issued uniforms or other
apparel.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in
the exercise of rights guaranteed in Section 7 of
the Act.
REGAL TUBE COMPANY
DECISION
HERZEL H. E. PAINE. Administrative Law Judge: Re-
spondent is a manufacturer of steel products. The Charging
Party (Union), sought to become bargaining representative
of Respondent's employees in a Board-conducted election
on January 18, 1978. Thereafter, following total resolution
of challenged ballots and partial resolution of objections to
the conduct of the election in actions taken by both the
Regional Director and the Board, it appeared that the vote
for and against union representation was a tie. 86 to 86.
Unresolved and to be determined here were residual
union objections to the conduct of the election, followed by
charge and complaint.' The complaint alleged that Respon-
I The unresolved union objections mere numbers 5. 6, and 7, see report of
the Regional Director of March 7, 1978 (G.C. Exh. Ik): the complaint was
issued on February 24, 1978. on a charge filed by the Union on January 25,
1978; and consolidation of the hearing of unresolved objections and the like
allegations of the complaint was ordered on July 3. 1978. following the
Board's decision and direction of May 31, 1978 (G.C. Exh. (l)).
245 NLRB No. 124
o68
REGAL TUBE COMPANY
dent engaged in acts of coercive interrogation of its employ-
ees concerning their interest in and activities for the Union.
created the impression of surveillance of the Union and of
the protected concerted activities of the employees, and in-
terfered with the wearing of union buttons by its employees.
General Counsel and the Union contend that Respon-
dent's actions constituted unfair labor practices in violation
of Section 8(a)(1) of the National Labor Relations Act (the
Act), and interfered with the fairness of the election, requir-
ing that the results of the election be set aside and a new
election ordered.
Respondent contends that it engaged in no unlawful con-
duct, and that the results of the election (the tie vote repre-
senting a rejection of the Union) should be certified.
The consolidated cases were heard in Chicago, Illinois,
on July 26-27, 1978. General Counsel gave an oral argu-
ment, but filed no brief. Respondent has filed a brief.
Upon the entire record2 of the cases, including my obser-
vation of the witnesses and consideration of the oral argu-
ment and brief, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent is an Illinois corporation engaged in the
manufacture of steel products at its plant and place of busi-
ness in Chicago, Illinois.
In 1977, a representative period, Respondent bought and
received at its plant goods valued in excess of $50,000 di-
rectly from points located outside the State of Illinois.
As the parties admit, Respondent is an employer within
the meaning of Section 2(2), (6), and (7) of the Act.
As the parties also admit, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
II. THE UNFAIR L.ABOR PRACTICES
A. Respondent's Business Operations
Respondent is a wholly owned subsidiary of Copperweld
Corporation, according to Manufacturing Manager Steven
Perkins. Using steel, Respondent manufactures two lines of
products. One is a structural line of steel squares or rectan-
gles in various sizes and thicknesses. the other is a drawn-
over-mandril (DOM) product, involving the making and
use of welded rounded shells of steel tubing and with heat
treatment and drawing the shells over mandrils reducing
and finishing the tubing into appropriate sizes for produc-
ing hydraulic and other cylinders used in machinery, such
as lifting devices.
For its manufacturing purposes Respondent has a plant
in a number of buildings comprising 400,000 square feet. In
December 1977 and January 1978, said Manufacturing
Manager Perkins, Respondent had about 173 or 174 em-
2 General Counsel moved for the making of corrections of the transcript of
the testimony. Respondent expressed no view. I have examined the proposed
corrections. They appear to be in the nature of minor typographical errors
that are obvious to a reader of the transcript without interfering with his
understanding of the sense of the text. Accordingly, I see no need for for-
mally making the corrections and den) the motion.
ployees spread over two full shifts and a partial third shift,
with hours 7 a.m. to 3 p.m., 3 p.m. to II p.m.. and I p.m.
to 7 a.m.
Under and responsible to Manufacturing Manager Per-
kins were department superintendents. such as DOM Su-
perintendent Charles (Chuck) Mindell, with five foremen
and 45 hourly employees; Superintendent of Warehouse
and Cutting Departments Stanley Zwyczyk, with three
foremen and 50 hourly employees; and Superintendent of
Weld Mills Dennis Cowen, with four foremen and an un-
identified number of hourly employees. Also in the Decem-
ber 1977-January 1978 period, the storeroom superinten-
dent was Joseph (Joe) Conrad, who supervised 4 employees
in a caged in area and ordered materials and supplies.
In the same time period, among the foremen who testi-
fied were Ron Larsen (or Larson), a processing foreman on
the first shift of DOM department who supervised 7 em-
ployees; Doralee (Gene) Walker, a first-shift foreman in the
warehouse and cutting departments who supervised 26 em-
ployees: Steven (Steve) Prim, a DOM department finishing
foreman who supervised II employees; Paul Simpek, a
weld mill second-shift foreman who supervised 12 employ-
ees: and Ray Burnell, a weld mill first-shift foreman.3
All of the persons named above as manufacturing man-
ager, superintendents, and foremen were conceded by Re-
spondent to be supervisors within the meaning of the Act.
B. Union Organizing., Respondent's Countermeasures
Respondent's employees were not represented by a
union. According to Respondent's Manufacturing Manager
Perkins, the Union had tried unsuccessfully to achieve rep-
resentative status in 1976 and lost in a December 1976 elec-
tion.
The Union campaigned again starting in late 1977, filed a
representation petition with the Board on November 18,
1977, and obtained approval on December 2, 1977 for a
Stipulation for Certification Upon Consent Election, under
which the election was held on January 18, 1978. In cam-
paigning the Union used an organizing committee of em-
ployees, held meetings away from Respondent's premises,
and distributed union literature to employees and union
buttons worn by the employees who chose to openly indi-
cate their support. The buttons either identified Local 743
Teamsters or indicated vote yes. A blue button identified
the wearer as being on the organizing committee.
Respondent was opposed to the Union becoming the rep-
resentative of its employees, and beginning in December
1977 set up an in-plant countercampaign against the
Union, using the supervisors as the means to convey its
opposition by word of mouth and by printed literature dis-
tributed daily by the supervisors on each of the three shifts.
Respondent also distributed buttons stating "Regal Tube.
Vote No" worn by employees who chose to openly indicate
their opposition to the Union.
In addition. the complaint and testimony identified Rich Hespen and
Glen Neal as foremen. Par. vie) of the complaint, which identified Glen
Neal as the involved foreman, was withdrawn by General Counsel. Carl
Skanberg. also identified in the complaint as a foreman, was referred to in
testimony concerning par. Via) of the complaint.
969
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
DOM Superintendent Mindell testified that daily at the
start of each of the three shifts the respective foremen and
other supervisors of the shift would assemble for a 20-min-
ute meeting with Manufacturing Manager Steven Perkins
and Industrial Relations Manager Bill Reinholz, where the
supervisors would receive a batch of letters or literature for
the day. They were given 10 minutes to read the literature
and another 10 minutes in which to ask any questions they
had of Perkins or Reinholz. The supervisors were then in-
structed to distribute the literature to the employees on the
shift and to ascertain if the employees responded in any
way. If questions were asked by the employees, said Min-
dell, the supervisors were told they were to give answers or
if they could not give answers to get answers for the em-
ployees. Mindell testified that he obtained answers he
needed from Perkins or Reinholz.
Superintendent Mindell further testified that although
the supervisors were instructed in the daily meetings to as-
certain how the employees responded in connection with
the daily distribution of the company literature, and al-
though he personally received an indication from at least
one employee on how the employee was leaning, he (Min-
dell) did not report this to management. I find this incredi-
ble in light of the instruction and Mindell's further testi-
mony that the supervisors talked freely and often among
themselves on how the campaign was going.
C. Coercive Interrogation
Six employees of the warehouse and cutting departments
testified to being questioned by their Superintendent Stan-
ley Zwyczyk in connection with or following the distribu-
tion of company literature by Zwyczyk or their immediate
foreman, Gene Walker.
Crane Operator Ronald Pond, a 6-year employee, testi-
fied to a conversation 2 or 3 days before the election with
Superintendent Zwyczyk after Zwyczyk had distributed the
company literature that day. Pond said that he had not
asked any question about the literature although he was
asked if he had any questions; nevertheless, Zwyczyk came
back to talk to him, alone on the job.
According to employee Pond, Superintendent Zwyczyk
asked Pond what he thought of the Union and if the Union
was really needed at Respondent's plant. When Pond an-
swered that it was needed Zwyczyk asked why, and Pond
replied because of working conditions. Zwyczyk told Pond
that Respondent did not need the Union and had not
needed the Union all these past years. Pond testified that he
told a number of his fellow employees of the interrogation
by Zwyczyk, among them employee Harry Pote, who con-
firmed this in his testimony.
Superintendent Zwyczyk admitted the conversation with
employee Pond, including asking why he thought the
Union was needed, in the context of telling him that there
was no need for the Union at Regal Tube Company. In-
deed, Zwyczyk testified that this was a pattern of approach
he took with just about every hourly employee in the two
departments he supervised; that in the 2 weeks before the
election, by talking individually to three or four of the em-
ployees a day, he reached almost everyone under his super-
vision and asked all of them the same thing.
Employee Chester Terry Kowalski, a bandsaw operator
for 7 years, testified to what Zwyczyk himself described as
tpyical of his individual talks with the employees. Kowalski
testified that about I week or 2 before the election of Janu-
ary 18, 1978, on a day when Foreman Gene Walker had
made the daily handout of company literature, Zwyczyk
came by Kowalski's work station at no. 2 saw, asked him
how he was, and asked how was business. Kowalski in-
quired what business, and Zwyczyk said the Union, what
do you think of the Union. Kowalski answered what about
the Union. Whereupon Zwyczyk asked do you think we
need the Union. Kowalski replied yes we need the Union.
Zwyczyk asked him why, and Kowalski replied for better
benefits. Zwyczyk retorted that only the Company could
give Kowalski better benefits, the Union could not help
him, and a union was not needed at Regal Tube Company.
Both employee Kowalski and Superintendent Zwyczyk
testified that leadman Chester Sadzewicz was present dur-
ing the foregoing conversation, checking a link on the saw.
Sadzewicz, a 13-year employee, testified that he overheard
their conversation, and that thereafter Zwyczyk took him
aside and asked what he thought of the Union. Sadzewicz
answered that sometimes it can do good, to which Zwyczyk
replied that we do not need the Union, we never had one,
and the Company does not want one.
Employee Harry Pote, a crane operator in the warehouse
department, testified as to Superintendent Zwyczyk's con-
versation with him in his work area, bay 7, 1 week or 2
before the election. Zwyczyk asked Pote how he was doing,
how he felt about the Union and election, and if he thought
the Union was needed. Pote replied that wages and benefits
were good, but that there were communication problems
between workers and management, such as he experienced
on the safety committee, where there was a lot of talk about
bad working conditions but nothing actually done to cor-
rect them. Zwyczyk told him that the Union was not
needed, and that the problems could be worked out without
involving a third party.
Employee Dennis Morris, also a crane operator in the
warehouse, testified to his conversation with Superinten-
dent Zwyczyk prior to the election. Zwyczyk asked Morris
how he felt about the Union and the election coming up.
Morris evaded a direct reply by saying that he thought it
was funny that the Company was making such a big deal
out of it with paper distributions in the mornings and the
conversations by supervisors. Zwyczyk told him that a
union was not needed at Regal Tube Company.
Employee John Bartosch, employed in the cutting de-
partment for over 7 years, testified that 3 or 4 days before
the election Superintendent Zwyczyk came to him in his
work area and asked if he had any questions about the
Union, if he had made up his mind about the Union, and
was he for or against it. Bartosch replied that he was not
sure.
Two days later, which was I day or 2 before the election,
said Bartosch, the inquiry was followed by an inquiry from
his immediate foreman, Gene Walker, asking Bartosch if he
had any questions about the Union and had he made up his
mind on the way he would vote. Again Bartosch replied
that he was not sure.
970
REGAL TUBE COMPANY
Both Superintendent Zwyczyk and Foreman Walker de-
nied that they had questioned employee Bartosch on
whether he had made up his mind about the Union and
whether he would vote for or against it. I do not credit these
denials in view of the instructions to the supervisors from
top management to ascertain how the employees were re-
sponding to the daily antiunion campaign and Zwyczyk's
self-contradicting admission that he was doing that in the
cases of the employees in his two departments.
Turning to other departments, employee James Kelly
was the operator of the amalog (electronic device for detect-
ing defects in steel) in the DOM department, second shift.
His department head was Charles (Chuck) Mindell; his im-
mediate foreman when Respondent's distribution of anti-
union literature began and for several weeks thereafter was
Steven (Steve) Prim, followed by Foreman Glen Neal just
before the election.
Employee Kelly testified that Foreman Prim distributed
the company literature each day of Respondent's counter-
campaign, instructed him to take time out from his work
and read it, and if he had any questions Prim would try to
answer them when he came back. On the early occasions
when Prim came back, said Kelly, Prim would ask a general
question and then something specific from the literature of
the day.
On one occasion several weeks before the election, said
employee Kelly, he told Foreman Prim that he had not
read the literature, and he was not interested in it. Accord-
ing to Kelly, Prim told him that he had been instructed to
read it and was required to read it and to discuss his view-
point with Prim; Prim asked him do we need a Union, if so
why, and what did Kelly think the Union would do for him.
Kelly replied that he thought the employees could use
union representation but did not answer as to what he
thought the Union could do for him. Kelly further testified
that on one occasion when he was expecting to be ques-
tioned by his supervisor he put on a company issued button
which read "Regal Tube. Vote No," and that he was not
questioned that time.
Foreman Prim, who had I I employees under his supervi-
sion, testified that he handed the company literature to each
of the employees daily, told each to take time on the job
and read the literature, and that he would be back for ques-
tions.4 He also testified that he then spoke individually to
each employee because he felt that the individual employee
would voice opinions more freely by himself and "volun-
teer" if he was "pro or con" the Union. In fact, said Prim,
some employees did volunteer opinions for or against the
Union, and he reported these to management, although he
claimed that no one in management had asked him for
what he had been told.
In Employee Kelly's case, said Foreman Prim on direct
examination, he never ordered Kelly to read the literature
In contrast to this company sanctioned use of worktime for antiunion
purposes, Foreman Larsen, also of the DOM department, warned employee
Raymond Escobedo not to engage in union talk with fellow employees on
worktime. This occurred on an occasion when Ecobedo was at his work
station talking to fellow employee Dennis Gelecke, who had come to Esco-
bedo about moving some tubes from the DOM transfer car (as both men
testified) and, admittedly, Foreman Larsen did not know what the two men
were diussing.
or express an opinion or viewpoint on the literature or the
Union. However, on cross-examination Prim conceded that
at a time or times several weeks before the election when
Kelly told him not to waste his time that he was for the
Company Prim nevertheless continued to hand him the lit-
erature, told him to read it, that he would find it interesting,
and continued to come back and talk with Kelly. Prim
claimed that there was no discussion among the foremen
and other supervisors concerning the letters or the effect of
Respondent's campaign, whereas the superintendent of his
department. Mindell, admitted that the foremen and other
supervisors talked freely and often about how the campaign
was going.
Viewed in totality, Foreman Prim's testimony provides
support for employee Kelly's testimony concerning coercive
interrogation by Prim.
Employee Kelly also told of two or three conversations
with DOM Superintendent Mindell beginning about 3
weeks before the election. Kelly, who worked the second
shift, testified that on these occasions Mindell had stopped
by where Kelly was working around 5 p.m. or 5:30 p.m.
and asked him what he thought of the day's letter or a
particular item in the letter, such as as alleged default by
the Union in payment of pension funds, how did he feel
about the Union, and would it benefit him or any employee
at Regal Tube Company, at the same time pointing out that
the employees did not need the Union because of the fore-
ward strides the Company had made on their behalf. Kelly
said that he was evasive in his answers to Mindell.
Superintendent Mindell admitted talking to employee
Kelly but claimed it was only to advise him that he ought to
read the company literature, that he would find it useful to
help make up his mind on how to vote. As already indi-
cated, in view of the instruction to foremen and oter super-
visors to ascertain the responses of the employees to Re-
spondent's campaign (to which Mindell testified), it is not
likely that Mindell limited himself in his discussion with
Kelly, and I credit Kelley's testimony.
Employee Raymond Escobedo was a crane operator, also
in the DOM department, who worked the first shift. His
immediate supervisor was Foreman Ron Larsen. Escobedo
testified to being the recipient of company literature from
Larsen and to discussion with Larsen about the literature
and the Union.
Employee Escobedo testified to an occasion several
weeks before the election when he came into the foremen's
office to check some papers. Foreman Larsen conceded that
Escobedo was properly there in the normal course of busi-
ness. Escobedo testified that both Foremen Larsen and
Rich Hespen were there, and Larsen asked him why he felt
he needed the Union. Escobedo answered that he might
need help if something happened to him at Regal Tube.
Foreman Larsen admitted that he and Foreman Hespen
were in the room but claimed that it was not he was ques-
tioned employee Escobedo but rather another employee, Al
Bonecki, who also came into the foremen's office and asked
Escobedo how come he was so much in favor of the Union.
Neither employee Bonecki, who was still employed by Re-
spondent at the time of hearing, nor Supervisor Hespen
testified, and it may be inferred that if called their testi-
971
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
mony would not support Larsen's claim. I credit Escobe-
do's testimony.
Mike Cook was a 7-year employee who worked as a mill
operator in the mill department, headed by Superintendent
Dennis Cowen. During the union campaign employee Cook
changed mills, so that in the early stages of the campaign
his foreman was Paul Simpek and in the later stages Fore-
man Ray Burnell.
In the prior election (December 1976), employee Cook
had apparently been a supporter of the Company against
the Union and had served as an observer for Respondent.
According to Manuafacturing Manager Steven Perkins, he
had been considering appointing Cook again as a company
observer for the January 18, 1978, election.
However, a few days before the January 18 election em-
ployee Cook put on a number of union buttons identifying
himself as supporting Teamsters Local 743. According to
Cook, Manager Perkins and Foremen Burnell and Simpek
separately asked him why he had switched to the Union,
and he replied for personal reasons.
All three supervisors denied that they had asked em-
ployee Cook why he switched. Manager Perkins claimed
that when he saw Cook wearing the union buttons he
merely told him why he was not selected as election ob-
server for the Company. Foremen Burnell and Simpek, who
conceded awareness of Cook's former service as company
observer and support for the Company, claimed that they
merely smiled or laughed when they saw Cook wearing the
many buttons. I do not accept as true the denials of ques-
tioning him on the switch of support, because of think it is
clear from other testimony, including Cook's, that the su-
pervisors had regarded him as a supporter of the Company
against the Union, and being surprised at his 11th-hour
change in support spontaneously questioned him about it.'
Conclusion
The foregoing evidence describes a mass campaign ex-
ecuted by Respondent's supervisors in the context of a daily
barrage of company literature and talk that the employees
did not need and the Company did not want the Union,
questioning the employees individually at their work sta-
tions or in the course of performing work on what the em-
ployee's views concerning the Union were, whether he felt
that the Union was needed and if so why, whether he would
vote in favor of the Union or in favor of the Company
position opposing the Union, and why (as in employee
Cook's case), he switched from support of the company
position opposing the Union to support of the Union.
The Board had occasion recently to review this type of
interrogation in Paceco, a Division of Fruehauf Corporation,
237 NLRB 399 (1978), and held that interrogation of an
employee's union sympathies or his reasons for supporting
' In this connection employee Cook conceded that previously he had been
voluntarily talking to the supervisors, including Manager Perkins and Super-
intendent Cowen, during the earlier course of the campaign on how he
thought the election would come out, and that it would be very close. In this
context and time do not regard as a violation of the Act the allegation that
Foreman Burnell asked Cook how he thought the election would go, which
General Counsel described as the act of interrogation meant by par. V(g) of
the complaint (see Tr. 295-296). Accordingly, I would dismiss par. V(g).
a union need not be uttered in the context of threats of
promises in order to be coercive; that the probing of such
views, even addressed to employees who have openly de-
clared their prounion sympathies, reasonably tends to inter-
fere with the free exercise of employee rights under the Act
and consequently is coercive; that the employee's re-
sponses, indicating his subjective state of mind, is not pro-
bative evidence of employer restraint and coercion; and
that inquiry into an employee's views toward a union or
unionization in general, even ostensibly questioned "out of
curiosity," reasonably tends to interfere with the free exer-
cise of an employee's Section 7 rights, regardless of his sub-
jective state of mind. (237 NLRB at 340-341.)
Without a doubt, Respondent's interrogations of its em-
ployees were coercive and constituted unfair labor practices
in violation of Section 8(a)( ) of the Act. The acts of coer-
cive interrogation were also encompassed by the Union's
objections to the conduct of the election, and since the acts
occurred during the critical period preceding the election
such acts interfered with the employees' free and untram-
meled choice in that election. See Dal-Tex Optical Com-
pany, Inc., 137 NLRB 1782, 1786 (1962).
D. Interference With Wearing of Union Buttons
The allegation on this score was by 9-year employee Gus
Montealegre, a leadman in the mill department, of which
department Dennis Cowen was the superintendent. (Mon-
tealegre's immediate supervisor was Foreman Burnell.)
Employee Montealegre testified that on an occasion at
the end of December 1977 he had a conversation with Su-
perintendent Cowen in bay 7. At the time, said Monteale-
gre, he was wearing some union buttons including the one
identifying himself as a member of the union organizing
committee.
According to employee Montealegre, Superintendent
Cowen approached him, stopped, fingered the large orga-
nizing committee button on Montealegre's uniform, and
said that he should not be wearing the union buttons on his
uniform because it was a company uniform. Montealegre
replied that so long as he was wearing a uniform with his
name on it he could wear what he wanted on it.
Superintendent Cowen testified that he saw employee
Montealegre frequently each day, maybe four times a day,
that he recalled him wearing several union buttons, includ-
ing the organizing committee button, and that Montea-
legre's uniform had his name "Gus" on it. However, Cowen
denied having told Montealegre not to wear the union but-
tons and claimed that he never said anything to Monteale-
gre about his wearing the union organizing committee but-
ton.
While this was a question of one man's word against
another, I am impressed that Respondent was concerned
with reducing the outward display of union sentiment in the
plant in the course of trying to win the mind and will of a
majority of the employees by its in-plant campaign, which,
as already indicated under heading C, overstepped the
bounds of legality. This concern was manifested by Re-
spondent's issuance of company "vote no" buttons and en-
couraging employees to wear them and an edginess or deri-
sion on the part of supervisors in dealing with employees
who wore the union buttons, aimed at discouraging them
972
REGAL TUBE COMPANY
being worn. Note for example the combined conduct, de-
scribed under heading C. above, of supervisors Perkins.
Burnell, and Simpek in dealing with employee Cook, the
former company supporter who put on union buttons. Ad-
ditionally, employee Escobedo testified to a comment ad-
dressed to him by Foreman Larsen, who on one occasion
tapped the union buttons Escobedo was wearing and asked
if there was a contest on buttons; and to comment by Stores
Supervisor Joe Conrad, who asked Escobedo what he
would do with the buttons if the Union did not win: and to
the action of Manager Steven Perkins in physically tapping
the union organizing button that Escobedo wore. While in
none of these examples was there an order or request that
the employee remove the union buttons, the combined su-
pervisory reactions provide background for giving credence
to employee Montealegre's testimony that Superintendent
Cowen sought to discourage him from wearing the union
buttons. I credit Montealegre's testimony.
The direction to employee Montealegre to cease wearing
the union buttons was n infringement of his Section 7 rights
in violation of Section 8(a)(X) of the Act. Compare Plea-
surecraft Marine Engine Company, 234 NLRB !216 (1978),
where the Board found a Section 8(a)(1) violation when a
supervisor forbade an employee to wear union insignia on
his shirt because the masking tape on which the union slo-
gan was written belonged to the company.
The Act of interference with the right of employees to
wear union insignia was also encompassed by the Union's
objections to the conduct of the election, and since the act
occurred during the critical period preceding the election
such act interfered with the employees' free and untram-
meled choice in that election.
E. Alleged Surveillance
The complaint, at paragraph V(a), alleged that in the
preelection period Foreman Ron Larsen had created the
impression that Respondent had kept the Union or the pro-
tected activities of the employees under surveillance.
In support of the allegation employee Raymond Escobe-
do, who was a first shift DOM department employee super-
vised by Larsen, testified that he attended the union meet-
ings held at a Holiday Inn I mile from the plant regularly
every other week. He also testified that he usually stopped
in the foreman's office at the end of his shift to let whoever
was in charge know that he was leaving for the day. On one
such occasion, according to Escobedo, when Foreman Lar-
sen and Foreman Carl Skanberg, of the third shift, were in
the foremen's room as Escobedo was leaving, Larsen told
him to hurry up or he would be late for the union meeting.
While I am not impressed by Foreman Larsen's denial
that he said this, I am impressed by testimony from Man-
ager Perkins that the holding of the outside union meetings
was a matter of common knowledge from union flyers dis-
tributed around the plant and by employee Escobedo's own
testimony that every time a union meeting was to be held
he heard other employees talking about it in the plant. Ad-
ditionally, Foreman Larsen testified that employees some-
times asked to be excused from overtime to attend a union
meeting and frequently joked about the union meetings,
asking him if he was going to attend.
Bearing in mind that the times and place of the union
meetings were well advertised about the plant and consider-
ing the total evidence concerning the talk about meetings, it
would appear that Larsen's comment to Escobedo was in
the nature of a bantering remark and could not have rea-
sonably conveyed the sinister impression that Respondent
was spying on its employees' union meetings or their at-
tendance at such meetings.
Paragraph V(a) of the complaint should be dismissed for
lack of proof.
CONCLUSIONS OF LAW
I. By coercively interrogating its employees as to their
views concerning the Union, whether they felt that the
Union was needed and if so why, whether they would vote
in favor of the Union or in favor of the company position
opposing the Union, and why (in at least one case) the
employee switched from support of the company position
opposing the Union to support of the Union, and by direct-
ing an employee not to wear union insignia, allegedly be-
cause it was worn on a company uniform, Respondent en-
gaged in unfair labor practices within the meaning of
Section 8(a)(1) of the Act. The unfair labor practices affect
commerce within the meaning of Section 2(6) and (7) of the
Act.
2. The allegation of Section V(a) of the complaint charg-
ing Foreman Larsen with creating the impression that Re-
spondent had kept the Union and the protected activities of
the employees under surveillance and the allegation of Sec-
tion V(g) of the complaint that Foreman Burnell interro-
gated employee Cook on how the election would go are
dismissed for lack of proof.
3. Respondent's acts of coercive interrogation and inter-
ference with the wearing of union insignia were also encom-
passed by the Union's objections to the conduct of the rep-
resentation election of January 18, 1978, and since the acts
occurred during the critical period preceding the election
such acts interfered with the employees' free and untram-
meled choice in that election, necessitating the setting aside
of the election and the holding of a second election.
THE REMEDY
It will be recommended that Respondent:
(1) cease and desist from its unfair labor practices;
(2) post the notice provided for herein;
and because Respondent violated fundamental employee
rights guaranteed by Section 7 of the Act and because there
appears from the manner of the commission of this conduct
an attitude of opposition to the purposes of the Act and a
proclivity to commit other unfair labor practices, it will be
further recommended that Respondent.
(3) cease and desist from in any manner infringing upon
the rights guaranteed by Section 7 of the Act. See N. L. RB.
v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941):
P. R. Mallorv & Co., Inc. v. N.L.R.B., 400 F.2d 956, 959-
950 (7th Cir. 1968), cert. denied 394 U.S. 918 (1969);
N.L.R.B. v. The Bama Co., 353 F.2d 320. 323-324 (5th Cir.
1965).
Regarding the consolidated representation case, it will be
recommended that the representation case be returned to
973
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Regional Director with the direction to set aside the
election of January 18, 1978, and to provide for the holding
of another election at a time and under circumstances likely
to assure a free and fair election.
Upon the foregoing findings of fact, conclusions of law,
and the entire record and pursuant to Section 10(c) of the
Act there is hereby issued the following recommended:
ORDER 6
The Respondent, Regal Tube Company, Chicago, Illi-
nois, its officers, agents, successors, and assigns shall:
I. Cease and desist from:
(a) Coercively interrogating employees as to their views
concerning the Union, whether they feel that the Union is
needed and if so why, whether they will vote in favor of the
Union or against the Union, or why they may switch from
support of the company position opposing the Union to
support of the Union.
(b) Directing employees not to wear the union buttons or
insignia or otherwise interfering with the wearing of union
buttons or insignia by employees, whether on company is-
sued uniforms or on other apparel.
6 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings.
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order, and all objections thereto shall be deemed
waived for all purposes.
(c) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed in Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post in the plant at Chicago, Illinois, copies of the
attached notice marked "Appendix."' Immediately upon
recept of said notice, on forms to be provided by the Re-
gional Director for Region 13 (Chicago, Illinois), Respon-
dent shall cause the copies to be signed by one of its autho-
rized representatives and be posted, the posted copies to be
maintained for a period of 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 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED THAT the representation case, 13-
RC-14607, shall be returned to the Regional Director for
Region 13 with a direction to set aside the election of Janu-
ary 18, 1978, and to provide for the holding of another
election at a time and under circumstances likely to assure a
free and fair election.
Dated June 20, 1979, Washington, D.C.
In the event that this Order is enforced by a Judgment of a United States
Court of Appeals, the words in the notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board.
974