Sperry Rand Corp.

National Labor Relations Board - Board Decisions

Mar 15, 1962

136 N.L.R.B. 294 (N.L.R.B. 1962)

294 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
recommended that the Respondent cease and desist from infringing in any manner
upon such rights.
Upon the basis of the foregoing findings of fact , and upon the entire record
in the case, I make the following:
CONCLUSIONS OF LAW
1. Local 481 , International Brotherhood of Teamsters , Chauffeurs, Warehouse-
men and Helpers Union of America, is a labor organization within the meaning of
Section 2 (5) of the Act.
2. By discriminating in regard to the hire and tenure of employment of Frederick
Allee, William Dedman , James Lee, Oren Martin , Calvin Tmtinger, and Byard
Conrad, thus discouraging membership and activity in behalf of the above-named
labor organization , the Respondent has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a) (3) of the Act.
3. By such discrimination and by questioning employees concerning their mem-
bership in a labor organization , the Respondent has interfered with, restrained, and
coerced employees in the exercise of rights guaranteed in Section 7 of the Act, and
has thereby engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
[Recommendations omitted from publication.]
Sperry Gyroscope Company, Division of Sperry Rand Corpora-
tion and Engineers ' Association , International Union of Elec-
trical , Radio and Machine Workers of America , Local 445,
AFL-CIO, Charging Party
Sperry Gyroscope Company, Division of Sperry Rand Corpora-
tion and Decertification Committee , Petitioner and Engineers'
Association , International Union of Electrical , Radio and
Machine Workers , AFL-CIO. Cases Nos. 2-CA-7613 and 2-RD-
495. March 15, 1962
DECISION AND ORDER
On December 8, 1961, Trial Examiner Stanley Gilbert issued his In-
termediate Report 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 Intermediate Report at-
tached hereto. Thereafter, the General Counsel, the Charging Party,
the Employer, and the Petitioner filed exceptions to the Intermediate
Report and supporting briefs.'
The Board has reviewed the rulings of the Trial Examiner at the
hearing and finds that no prejudicial error was committed? The
1 The Respondent filed a request for oral argument. Because in our opinion the record,
exceptions , and briefs adequately set forth the issues and positions of parties , the request
for oral argument is denied.
9 The Respondent contends the Trial Examiner erred in dismissing the Respondent's sev-
eral motions for bills of particulars . We find that the Respondent has not been prejudiced
by such denials . The violations found are in accord with the substance of the complaint
and have been fully litigated
136 NLRB No. 45.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 295
rulings are hereby affirmed. The Board has considered the Inter-
mediate Report, the exceptions and briefs, and the entire record in
the case, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner, only insofar as consistent with our
decision herein.
The Trial Examiner found that, by implanting in the mind of em-
ployee Mervin Werst the idea of organizing a movement to oppose the
affiliation of the Employees Association with the Charging Party; by
encouraging him to take such action; and by advising him of the initial
steps to take, Respondent did initiate the organization of the Decerti-
fication Committee which evolved out of Werst's activities and in
which he played a major role, and that by such conduct, Respondent
interfered with employees in the exercise of their statutory rights
within the meaning of Section 8 (a) (1) of the Act. We agree, for the
reasons set forth by the Trial Examiner, that the Respondent violated
Section 8 (a) (1) of the Act through such activity, even assuming
Werst was an employee and not a supervisor within the meaning of the
Act. We therefore adopt his findings and conclusions in this regard.
However, we also find that Werst was a supervisor within the mean
ing of the Act, and that Respondent therefore violated Section 8 (a) (1)
by participating directly in the formation of the Decertification Corrw-
mittee and in its affairs through the activities of Worst, and that by
such conduct Respondent initiated and fostered the filing of the de-
certification petition in Case No. 2-RD-495, also in violation of the
Act.'
For support of our supervisory finding, we rely on the record evi-
dence of the following facts : Werst headed the field shop of Respond-
ent's USD-7 project, directing the work of 12 employees. The field
shop was one of four sections of the USD-7 project, two of which were
headed by section heads who were admittedly supervisors. Doersam,
the project director, testified that Werst was an acting section head,
and that he had responsibility for the initial planning of the field
shop equipment needed to perform the work of the section; for sched-
uling the engineering work; for estimating the number and caliber of
engineers needed; for recruiting engineers and making sure that they
were available to him at appropriate times; for assigning specific
tasks and for generally organizing their work; for working with them
providing necessary technical assistance; and for making progress re-
ports to Doersam and to Sperry's customers.
We think it obvious that performance of such functions constitutes
more than routine direction of subordinates and that it involves the
responsible direction of the work of other employees. That Worst
did function as Doersam described is shown by the fact of his partici-
pation in the recruitment program for the USD-7 project; and by
a Birmingham Publishing Company, 118 NLRB 1380
296 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Doersams' notification to employees assigned to work under Werst
that they were to look to Werst for technical and administrative di-
rection. As to the first, the record clearly reveals that Respondent's
policy was that recruitment of personnel was a function to be per-
formed by supervisory personnel. Werst, though holding a nonsuper-
visory job classification, was assigned such duties by Doersam. His
performance of such duties took him on trips to various places around
the country, where, as Respondent's representative, he interviewed
applicants, eliminating those who he determined were not qualified,
and submitting reports to Doersam as to his impressions and observa-
tions concerning others. The record shows that these reports included
recommendations both as to salaries and placement in Sperry's opera-
tions. On the basis of these reports and on discussions with Werst,
Doersam submitted offer memorandums of employment to the employ-
ment office recommending hire. The record shows that Werst inter-
viewed more applicants for employment than anyone else involved in
the USD-7 project and that at least 25 engineers came to work for
Sperry as a result of recommendations initially made by Werst. The
foregoing amply demonstrates that, pursuant to delegation of author-
ity from Doersam, Werst exercised authority to effectively recommend
the hire of applicants, and effectively rejected applicants for
employment.
As to the second, there is the evidence of General Counsel's Exhibit
No. 5, a directive from Doersam to all USD-7 personnel announcing
that three engineers were being taken off other tasks and assigned to
work in the field shop, and directing them to report to Werst for tech-
nical and administrative direction. There is also the testimony of
Philip Bila that when he was assigned to the USD-7 project, Doersam
told him that if he wanted anything he was to go to Werst for it, and
that this included requests for time off and for merit increases. Bila
testified that Werst did grant him time off and that when he inquired
of Werst about the possibility of a merit raise, Werst discussed the situ-
ation with him, reviewed his experience, and made him feel pretty
good about his chances and later informed him that he would receive
the raise.
Based on the foregoing, we conclude that lVerst did in fact exercise
both technical and administrative direction over employees working
under him, and that he did so pursuant to authority delegated to him
by Doersam. While it is true that Werst had been recommended for
the position of section head, but had not received the promotion, it is
the exercise of supervisory authority and not the title a person holds
that is controlling. On the basis of the foregoing, we conclude that
Werst was a supervisor within the meaning of the Act during the
events involved in this case.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP . 297
THE REMEDY
We shall order Respondent to cease and desist from engaging in
the conduct we have found to be violative of Section 8(a) (1) or in
any like or related conduct. Additionally, as we have found that Re-
spondent unlawfully initiated and sponsored the decertification peti-
tion in Case No. 2-RC-495, and as it is well settled that the petition
by reason of such conduct cannot be said to have raised a question
concerning representation,' we shall in accordance with our usual prac-
tice order that the petition be dismissed, and that all proceedings on
that petition be vacated and set aside and declared a nullity.'
ORDER
Upon the foregoing findings of fact and conclusions of law, and
upon the entire record in this proceeding, the Board orders that the
Respondent, Sperry Gyroscope Company, Division of Sperry Rand
Corporation, its officers, agents, successors, and assigns, shall:
1. Cease and desist from instigating or encouraging the organiza-
tion of a movement to decertify the Engineers' Association, or any
other union which is the recognized or certified bargaining representa-
tive for a unit of its employees, and from engaging in any like or
related conduct constituting interference, restraint, or coercion of
employees in violation of Section 8(a) (1) of the Act.
2. Cease and desist from interfering with the decertification move-
ment, or engaging in any like or related conduct, through the partici-
pation of supervisory personnel.
3. Take the following affirmative action which the Board finds will
effectuate the policies of the Act :
' We reject the contentions of Respondent and of the Decertification Petitioner that the
decisions in North Electric Company, 129 NLRB 675, and Boggs and Company, Inc, 122
NLRB 758, preclude the Board from dismissing the petition . The first case did not involve
an invalid petition, and is distinguishable on that grounds The second case involved un-
timely objections filed by an employer who could not have raised the same issue in an un-
fair labor practice because it could not file a charge against itself . While it is true that
the Board will dismiss a decertification petition on the basis of timely filed objections as
to employer initiation and sponsoring of the petition , it could not there allow an employer
to profit by its own wrongdoing , when its employees had, notwithstanding such wrong-
doing, voted contrary to the employer 's desires Accordingly , as the petition herein was a
nullity , we shall dismiss it Cf Reliance Steel Products Company, 135 NLRB 730. Paul
M. O'Neill International Detective Agency, Inc ., 124 NLRB 167.
c We have been officially advised that on March 1 , 1962, Respondent filed a petition in
Case No . 2-RM-1199 ( not published in NLRB volumes ), for an election in the same unit
involved in Case No. 2-RD-495. The Regional Director has requested the Board 's advice
as to whether it is proper to proceed on the petition , the contract between Respondent
and the Charging Party having a termination date of March 14, 1962 . The Board does
not conduct elections during the pendency of unwaived unfair labor practices involving
employees in the bargaining unit in which the election is sought Nor does it conduct such
elections prior to the time that the effect of such unfair labor practice as have been found
by the Board have been dissipated. Accordingly , the Board sees no objection to the
processing of the RM petition at such time as the Regional Director has received notice
that Respondent intends to and will comply with the provisions of our Order herein.
Such processing may include the holding of such hearings as may be necessary , but an elec-
tion shall not be held prior to the expiration of the period during which the notice pro-
vided herein must be posted.
298 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(a) Post at all of its plants, copies of the notice attached hereto
marked "Appendix." 6 Copies of said notice, to be furnished by the
Regional Director for the Second Region, shall, after being duly
signed by the Respondent's representative, be posted by it immediately
upon receipt thereof, and be maintained by it for at least 60 consecu-
tive days thereafter, in conspicuous places, including all places where
notices to employees are customarily posted. Reasonable steps shall
be taken by the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for the Second Region, in writ-
ing, within 10 days from the receipt of this Order, what steps the
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the petition filed in Case No. 2-RD-495
be, and the same hereby is, dismissed, and that all proceedings on that
petition be vacated and set aside and declared a nullity.
6In the event that this Order is enforced by a decree of a United States Court of
Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the
words "Pursuant to a Decree of the United States Court of Appeals, Enforcing an Order."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National Labor Relations
Board, and in order to effectuate the policies of the National Labor
Relations Act, we hereby notify our employees that :
WWE WILL NOT instigate or encourage the organization of a
movement of decertify the Engineers' Association, International
Union of Electrical, Radio and Machine Workers of America,
Local 445, AFL-CIO, or any other union which is the recognized
or certified bargaining representative for a unit of our employees,
or engage in any like or related conduct constituting interference,
restraint, or coercion of employees in violation of Section 8 (a) (1)
of the Act.
WE WILL NOT interfere with the decertification movement or
engage in any like or related conduct through the participation of
supervisory personnel.
SPERRY GYROSCOPE COMPANY, DIVISION
OF SPERRY RAND CORPORATION,
Employer.
Dated---------------- By-------------------------------------
(Representative) (Title)
This notice must remain posted for 60 days from the date hereof,
and must not be altered, defaced, or covered by any other material.
Employees may communicate directly with the Board's Regional
Office (745 Fifth Avenue, New York, New York; Telephone Number,
Plaza 1-5500) if they have any question concerning this notice or
compliance with its provisions.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP.
INTERMEDIATE REPORT AND RECOMMENDED ORDER
299
STATEMENT OF THE CASE
This proceeding, with all parties represented by counsel, was heard before Stanley
Gilbert, the duly designated Trial Examiner, in New York, New York, on the fol-
lowing dates: March 13, 14, 15, 16, 17, 20, 23, 24, 27, 28, and 29; April 3, 4, 5, 6,
10, 11, 12, 13, 20, 21, 25, 26, and 27; May 2, 3, 4, 5, 9, 10, 11, 12, 16, 17, and 18;
and June 5, 1961.
In the Board's order directing hearing in Case No. 2-RD-495, issued March 8,
1961, the steps leading to the consolidated hearing of the above cases are succinctly
stated as follows:
On September 8, 1960, pursuant to a "Stipulation for Certification upon
Consent Election" entred into by the parties hereto on August 4, 1960, an elec-
tion by secret ballot was conducted in the above-entitled proceeding under
the direction and supervision of the Regional Director for the Second Region
(New York, New York). Upon the conclusion of the election a Tally of Ballots
was furnished the parties in accordance with the Rules and Regulations of the
Board.
The tally of Ballots shows that there were approximately 3500 eligible voters
and that 3237 ballots were cast, of which 1509 were for the Union, 1724 were
against the Union, 3 were challenged and 1 was void.
On September 13, 1960, the Union filed timely Objections to Election and on
October 13, 1960, filed unfair labor practice charges in Case No. 2-CA-7613.1
The Regional Director caused an investigation and an independent inquiry to be
made of the objections and thereafter, on October 31, 1960, issued and duly
served upon the parties his Report on Objections. In his report the Regional
Director recommended to the Board that a hearing be held on Objection 4 and
that such hearing be consolidated with the hearing in Case No. 2-CA-7613
involving the same issues; that the issues involved in Objection 2 be made a
part of the consolidated proceeding herein; and that the Union's request to with-
draw Objections 1, 3, 5 and 6 be approved.
On November 14, 1960, the Petitioner filed exceptions, with supporting
memorandum, to the Regional Director's report, in which it urged that the
objections to the election be overruled or, in the alternative, that the Board
remand the Report to the Regional Director for the preparation of a new
Report on Objections, or refuse consolidation of hearings on the objections
to election with the unfair labor practice charges in Case No. 2-CA-7613.
On November 15, 1960, the Employer filed exceptions to the Regional Di-
rector's report, and on November 28, 1960, a supplement thereto, urging im-
mediate action on the Regional Director's Report on Objections and the
exceptions thereto.
On December 15, 1960, the Regional Director issued a Supplemental Report
on Objections in which he advised that a settlement agreement with the Em-
ployer was approved in Case No 2-CA-7613 and recommended that a hearing
be held in the instant case on objections 2 and 4. Thereafter, on December 28,
1960, the Employer filed exceptions to the Regional Director's supplemental
report.
On February 17, 1961, the Regional Director issued his Second Supplemental
Report on Objections in which he stated that his approval of the Settlement
Agreement and dismissal of the charge in Case No. 2-CA-7613 was appealed
to the General Counsel by the Charging Party, and that the appeal was sus-
tained, the charge reinstated and a complaint issued thereon. The Regional
Director recommended that the Board direct that a hearing be held on Objections
2 and 4 and that such hearing be consolidated with the hearing in Case No
2-CA-7613. On February 27, 1961, the Petitioner and the Employer filed
exceptions to the Regional Director's Second Supplemental Report on Objections.
The Board having duly considered the matter, and it appearing to the Board
that the Union's Objections 2 and 4, the Regional Director's findings and rec-
ommendations, and the Employer's and the Petitioner's exceptions raise sub-
stantial and material issues which may best be resolved by a hearing.
IT IS HEREBY ORDERED that the Union's request to withdraw its Objections 1,
3, 5 and 6 be, and it hereby is, granted; and
1 Based on these charges, a complaint was issued on October 31, 1960 On November 22,
1960, an amended complaint was issued, and then on February 15, 1961, a second amended
complaint was issued
300 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IT IS FURTHER ORDERED that a hearing be held before a Trial Examiner, to
be designated by the Chief Trial Examiner, to resolve the issues raised by
Objections 2 and 4 and that such hearing may be consolidated with the hearing
on the charges filed in Case No. 2-CA-7613;
Thus, the issues litigated in Case No. 2-CA-7613 (hereinafter referred to as the
CA case) were framed by the second amended complaint, as amended during the
course of the hearing,2 hereinafter referred to as the complaint, and the Respondent's
answer thereto denying the violations of Section 8(a)( I) of the Act as alleged, and
in Case No. 2-RD-495 (hereinafter referred to as the RD case) by objections Nos.
2 and 4.
At the close of the hearing all parties presented oral argument which I requested
be limited to statements by the various parties of what they considered the isuses to
be and their contentions with regard thereto. All of the parties filed briefs within
the time allowed therefor.
Upon the entire record in this case, and from my observation of the witnesses, I
make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT (IN THE CA CASE) AND EMPLOYER (IN THE RD CASE)
Sperry Rand Corporation is a Delaware corporation of which Sperry Gyroscope
Company (Respondent and Employer) is a division and a wholly owned subsidiary.
All references hereinafter to Respondent Sperry or Company are intended to be to
the Sperry Gyroscope Company. Sperry maintains its principal office and place
of business at Great Neck, county of Nassau, New York, and is engaged, there and
in other plants and places of business in the State of New York, in the manufacture,
sale, and distribution of electronic systems and instruments and related products.
During the year preceding the date of issuance of the complaint, which period I
find to be representative, Sperry, in the course and conduct of its business, purchased
and caused to be transported to its main plant from States of the United States other
than New York goods and material valued in excess of $1,000,000. During the
same period, Sperry manufactured, sold, and distributed from its main plant prod-
ucts valued in excess of $2,000,000 of which products of a value in excess of
$2,000,000 had a substantial impact on national defense and of which products
in excess of $1,000,000 were shipped from said plant directly to States other than
New York.
Therefore, I find, as is admitted by it, that Sperry is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Engineers' Association, International Union of Electrical, Radio and Machine
Workers of America, Local 445, AFL-CIO, is a labor organization within the
meaning of Section 2(5) of the Act.
III. FINDINGS WITH RESPECT TO THE ISSUES IN THE CA AND RD CASES
Sequence of events
Since 1946 the Engineers' Association, as an independent union, has represented
a bargaining unit comprised of technical and engineering employees in Sperry plants
located in Great Neck, Nassau County, and other places in New York State. In
1958, the Engineers' Association entered into a collective-bargaining agreement with
Sperry with respect to the unit, which numbered approximately 3,500 during the
periods material hereto. The agreement provided that it was not to expire until
March 14, 1962. It also provided that no affiliation by the Engineers' Association
with an international union which represents production and maintenance employees
shall be effective unless approved by a majority vote of the unit. In March 1960,
the Engineers' Association announced a proposal to affiliate with the International
2 Paragraphs numbered S and 9 of the second amended complaint, besides containing
references to certain supervisors and dates, referred to "other" supervisors and to "other
dates presently unknown." On March 16, the fourth day of the hearing, the Trial Ex-
aminer granted motions of General Counsel over objection of Respondent to amend the
complaint by adding the names of George Lober and Thomas Hirschberg to those super-
visors named in said paragraphs However, on April 10, the 16th day of the hearing, a
similar motion with respect to Supervisor Rodney Krecht was denied.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 301
Union of Electrical , Radio and Machine Workers, AFL-CIO,3 and in April 1960,
that a vote of its members with respect thereto would be held on May 2, 1960.
On April 29, 1960, Sperry brought action in the Supreme Court of the State of
New York for an injunction to enforce the provision of the contract requiring a
vote of the bargaining unit , and obtained a temporary restraining order. Thereafter,
the Engineers ' Association had the action removed to the United States District
Court for the Southern District of New York, the restraining order remaining in
effect . By a vote of its members at meetings of the Engineers ' Association , both on
May 2 and 9 , 1960, resolutions for affiliation were adopted subject to the provisions
required by the restraining order. On May 24, 1960, Sperry submitted to the district
court a motion for preliminary injunction to require a bargaining unit vote. At
the end of the first week of June 1960, an "Open Letter to Alert Engineers and
Other Professionals " signed "The Decertification Committee" was distributed seeking
signatures on attached cards authorizing the committee to file a decertification pe-
tition . Among other things, the letter stated:
The fullest participation in the petition and the election is the best way to
demonstrate opposition to the affiliation policy of the E.A. Such proof of the
protest is a primary objective of the committee.
In a postscript , contributions to cover the cost of the "effort " were invited. A few
days later a second leaflet was distributed by the committee (hereinafter referred
to as the DC) in which it was stated , "a large petition response will indicate our
protest against this affiliation ." Also, this leaflet named 19 members of the steering
committee of the DC including that of Mervin Werst who served as one of its co-
chairmen . A considerable portion of the record in this proceeding is devoted to
testimony with respect to the activities of Werst , whether or not he was a super-
visor, and whether or not he was an agent of Sperry in the decertification movement.
On June 14, 1960, the district court denied Sperry's request for a temporary in-
junction . The next day , the Engineers ' Association ( hereinafter also referred to as
the EA) received its charter as Local 445 of the IUE. Through the remainder of the
month of June , the DC distributed several leaflets urging the members of the unit
to join with it in seeking decertification of the EA stating that it would not proceed
to decertification if the EA disaffiliated from the IUE.
On July 19, 1960, the DC filed its petition for decertification and a formal hearing
was held thereon at the National Labor Relations Board 's Regional Offices on August
4, 1960 . At that meeting all parties entered into a stipulation for certification upon
consent election to be held on September 8, 1960 , which agreement was approved
by the Acting Regional Director.
A considerable amount of literature on the subject of the election was distributed,
during the period between August 4 and September 8, by the EA, the DC, and
Sperry.4 The election on September 8 resulted in a vote of 1,724 to 1,509 against
the EA.
The Issues
A. In the CA case
The issues in the CA case are framed by paragraphs Nos. 8 , 9, and 10 of the
complaint 5 and Sperry 's denial of the allegations therein (with certain exceptions).
3 Which does represent production and maintenance employees
'Also by other groups which are not, however, involved in this proceeding.
5 The paragraphs read :
8. On or about May 25, and May 31, 1960, and on various other dates presently un-
known during the months of May, June, July, August, and September 1960, Respond-
ent, by its agents and supervisors Doersam, McMorrow, Werst, Lobert and Hirschberg
and others, working in concert with them, initiated, sponsored and encouraged the
organization and formation of a committee known as the Decertification Committee,
to institute proceedings to decertify Local 445 and to eliminate said union as the
collective bargaining agent of Respondent's employees at the main plant and Respond-
ent assisted said Decertification Committee in said objective by urging Respondent's
employees at the main plant to support the committee and to refrain from adhering to
Local 445.
9. On or about June 6, 1960, and on various other dates presently unknown during
the months of May, June, July, August, and September 1960, Respondent, by its agents
and supervisors Doersam, Werst, Lober and Hirschberg, and others working in concert
with them, permitted various employees to suspend their work at the main plant and
302 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In essence, paragraph No. 8 states that, by its agents and supervisors, Doersam,
McMorrow, Werst, Lober, and Hirschberg, Respondent initiated, sponsored, and
encouraged the organization and formation of the DC and assisted it by urging
employees to support it. Respondent admits that it "urged" its employees "to sup-
port" the DC and "to refrain from adhering to" the EA during the period from
August 4 to September 8, 1960. Respondent moved to strike the word "encouraged"
from the first portion of this paragraph and that portion of the paragraph with
respect to "urging" on the ground that such conduct would not constitute unfair labor
practices within the meaning of Section 8(a)(1) of the Act. Ruling thereon was
reserved which I now make in order to enable a clearer discussion herein of the
appropriate issues that were litigated. The motion with respect to the word "en-
couraged" is denied, since I am of the opinion that the word in the context in which
it is used can conceivably embrace conduct which would constitute interference with-
in the purview of Section 8(a)(1). While I also deny the motion with respect to
the latter portion of this paragraph, I do so with certain limitations, based, in part,
upon my understanding of General Counsel's position as stated in opposition to the
motion. I consider this portion of the paragraph as dependent on the portion which
precedes it, for, should it be found that Respondent "initiated, sponsored, and
encouraged the organization and formation" of the DC in violation of Section
8(a)(1), I believe that there may be a question of whether the "urging" constituted
interference within the purview of said section of the Act.
Respondent admits that all those named in this paragraph had supervisory status
except Werst. The issues were litigated whether Werst was a supervisor or acted as
Sperry's agent in the "organization and formation" of the DC. It is clear that Werst
played a leading role in the organization and formation of the DC. Thus, the follow-
ing questions must be determined with respect to paragraph No. 8 of the complaint:
1. Was Werst a supervisor?
2. Was Werst acting as an agent of Sperry in the part he played in the organization
and formation of the DC?
3. Did Respondent through any of the men named initiate, sponsor, and encourage
the organization and formation of the DC?
In essence, paragraph No. 9 alleges that Respondent, through its agents and super-
visors, Doersam, Werst, Lober, and Hirschberg, permitted "employees" to suspend
work to conduct DC business and paid them for time so spent. Considerable testi-
mony was elicited with respect to whether Werst spent working hours on DC busi-
ness, and whether it was done with his supervisors' permission. This testimony was
relevant to the issue of whether Werst was acting as Sperry's agent, as alleged in para-
graph No. 8, and also as alleged in paragraph No. 10 of the complaint. It was also
received with respect to the allegation in paragraph No. 9, should it be determined
that Werst was not a supervisor but within the category of "employees."
Thus the following questions must be determined with respect to paragraph No. 9.
J. Did any of the named supervisors permit employees to suspend work in order
to conduct DC business and were they paid by Sperry for the time so spent?
2. If such permission and payment were granted to Werst, was he a supervisor
(or an "employee")?
3. If there were such permission and payment, were they granted on a discrimi-
natory basis?
In essence, paragraph No. 10 of the complaint alleges that Respondent, by its
agent and supervisor, Werst, actively participated in the affairs of the DC and con-
tributed financial and "other support" to the decertification movement.
Thus, with respect to this paragraph it is necessary to determine the following
questions:
1. Was Werst a supervisor?
2. Was Werst acting as an agent of Respondent in his efforts on behalf of the DC.
3. Did the Respondent contribute financial and "other support" to the decerti-
fication movement? 6
to conduct business on behalf of the Decertification Committee , and paid such em-
ployees for the time spent on such activities
10 On or about June 6, 1960 , and on various dates presently unknown during the
months of May, June, July , August, and September 1960 Respondent , by its agent and
supervisor Werst and others working in concert with him actively participated in the
administration , meetings of and affairs of the Decertification Committee and con-
tributed financial and other support to the movement among Respondent ' s employees
at the main plant to decertify Local 445
e This, of course , would not embrace such support as would fall within the purview of
Section 8(c).
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 303
B. In the RD case
Objections Nos. 2 and 4 filed by the EA to the election on September 8, frame the
issues in the RD case.
Objection No. 2 states:
During the 24-hour period preceding the election and while the election was
in progress, supervisory employees called bargaining unit employees into private
offices where two or three supervisors would discuss the Union vote with em-
ployees and question them as to their intentions with regard to the election.
Additional electioneering was conducted by other supervisors throughout the
plant on September 7th and 8th.
With respect to objection No. 2, I refused to take testimony as to interviews not
within the period of time specified in the objection or which did not take place within
"private offices." I felt that to do otherwise would have expanded the inquiry into
matters beyond those which the Board directed the hearing encompass. I also re-
fused to take testimony with respect to the second sentence of the objection. Based
on an examination of the Regional Director's report on objections and the Board's
order directing hearing, I was, and still am, of the opinion that the Regional Director
apparently had found no evidence in support of this sentence of the objection, and
that the Board did not intend that the hearing embrace any of the many matters
which could fall within the vague language of this sentence. By imposing the afore-
said limitations I felt not only that I was adhering to the Board's directive, but also
preventing the unnecssary taking of a large body of testimony and litigating of issues
as to matters within bounds extremely indefinite in terms of both time and nature.
General Counsel stated at the hearing that the interviews referred to in this objec-
tion are not alleged in the complaint as violative of Section 8 (a) (1) and made no
attempt to amend the complaint in order to include the interviews. During the course
of the hearing I ruled that the evidence adduced with respect to this objection will not
be considered in the CA case so as to expand the issues framed by complaint therein
and answer thereto. In so ruling I stated that "I will not, by requiring Respondent
to litigate R issues, say that he therefore had litigated them as C issues ." Therefore,
I will disregard the contentions made by General Counsel in his brief, that Sperry
violated Section 8(a)(1) of the Act by supervisors ' interviews of employees.
Therefore , the issues raised by objection No. 2 do not coincide in any respect with
the issues in the CA case.
Objection No. 4 states: "The Company financed the activity of the Decertification
Committee and of observers designated to act in its behalf." This relates to conduct
of the Company between August 4 and September 8, 1960 (the period between the
agreement to hold the election and the election itself), by the very terms of the
objections to election.7
Thus, the issues raised by this objection coincide to some extent with the issues
raised by paragraphs Nos. 9 and 10 of the complaint, but not with respect to conduct
of Respondent prior to August 4, 1960.
In order to determine the above issues in the CA and RD cases, I will consider
hereinbelow the following subjects:
1. Was Werst a supervisor?
2. Events preceding the organization and formation of the DC.
3. The organization and formation of the DC.
4. Was Werst an agent of Sperry in the organization and formation of the DC?
5. Did Respondent "initiate, sponsor, and encourage the organization and for-
mation" of the DC?
6. The conduct alleged in paragraph No. 9 of the complaint.
7. The conduct alleged in paragraph No. 10 of the complaint.
,8. The conduct alleged in objection No. 2.
9. The conduct alleged in objection No. 4.
10. Conclusions as to the CA case.
11. Conclusions as to the RD case.
Since the issues in the CA case and RD case coincide only to a limited extent, I
will frame my conclusions with respect to the allegations in the CA case separately
7 Although objection No 6 was withdrawn, that portion of it must still be considered
which states that all of the objections including objection No 4 relate to this period.
Undoubtedly this was predicated on the Board policy enunciated in F W Woolworth
Company, 109 NLRB 1446, 1448, that it will not consider with respect to objections to an
election, matters occurring prior to the decision and direction of election (or, as in this
case, the execution of an agreement that the election be held)
304 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
from those with respect to the objections in the RD case. The Deming Company,
107 NLRB 1100.
1. Was Werst a supervisor?
Sperry's USD-7 project began February 1958 with five people assigned to it,
including Charles Doersam , project engineer and admittedly a supervisor , and Mervin
Werst . The project rose to a peak employment of approximately 50 engineers
many of whom were "recruited" from the "outside" ( i.e., outside the ranks of Sperry
employees ) principally during the period from September 1958 to March 1959.
Among the ways Sperry obtained employees from the outside was by advertising
for engineers in various localities and then sending representatives to interview
applicants.
The project was divided into four segments . I use the term "segments" rather
than the terms "sections" or "groups ," since the latter terms carry with them
certain connotations arising out of their use in job classifications, such as "engi-
neering section head ," or in the description of a function , such as "group leader."
An engineering section head is admittedly a supervisory position and is the lowest
job classification falling within the supervisory echelons according to the collective-
bargaining agreement between EA and Sperry . Sperry's "General Standing Practice
Instructions" placed engineering section heads within "Code B" which gave them
certain prescribed administrative authority . While General Counsel would not take
any position on the question of whether the job classification of "senior engineer"
(just below that of engineering section head ) embraced duties indicative of super-
visory character, it is clear that it is not contended that an employee is a super-
visor by reason of having such classification .8 The term "group leader" is used
to describe a function within the operations of a project and it is clear that the
designation of an employee as a group leader has no bearing on the question of
whether he is or is not a supervisor.
During the periods material to this proceeding , Werst had the job classification
of senior engineer and was designated as a group leader . He "headed" that seg-
ment of the USD-7 project called Field Shop Equipment (hereinafter referred to
as the field shop ). Of the other three segments , at the time material to this pro-
ceeding, one was "headed up" by an employee who was also a senior engineer and
group leader , and the two others by employees who had the job classification of
engineering section head . Werst and the two engineering section heads were with
the project virtually from its beginning . When they entered into their work on the
project , they were senior engineers , but thereafter were recommended for promotion
to section head . Werst , however , was not given the promotion.
General Counsel and the EA contend that it is appropriate to conclude that Werst
was a supervisor , by virtue of his activities with respect to recruiting and the extent
of the authority he exercised as head of the field shop.
During the years 1958 and 1959 , Werst participated in the recruiting program
by interviewing applicants in the plant and on various trips. It was apparently
the policy of Sperry to use for recruiting trips only employees in recognized super-
visory job classifications , but "in a pinch" a senior engineer could be used. Werst
participated in four or five recruiting trips because Doersam arranged to have Werst
act as a substitute for him . It appears that he went on these trips to accommodate
Doersam who wished to avoid taking them.
It is contended that in Werst's recruiting activities he exercised power "to effec-
tively recommend for hire," one of the indicia of supervisory status. By interview-
ing applicants he accomplished a screening of those engineers who might be of
interest to Sperry and upon his return he reported to Doersam the result of his
interviews . There is some confusion and contradiction in the testimony as to what
practice was followed in his reporting and the action taken as a result , but it is
clear that whatever action was taken by Sperry with respect to hiring was predicated
on an offer memorandum to the employment office. It is also clear that officially
the offer memorandums with respect to applicants interviewed by Werst were initi-
ated by Doersam in the sense that he was in the lowest echelon of those whose
initials or signatures appeared thereon. While there is some confusion in the
record as to whether or not Werst had any hand in drafting offer memorandums,
I am of the opinion that the recommendation it contained was essentially , as well as
officially, Doersam 's, albeit it may have been predicated on the facts and impressions
Werst reported to him. In view of this, of the sporadic nature of Werst 's recruiting
activity, of the fact that it was not a normal function of his job, and of the fact that
8 Respondent , in its brief, points out that almost 500 members of the bargaining unit of
approximately 3,500 held the job classification of senior engineer
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 305
it ceased sometime in 1959 , approximately a year prior to the periods material to
this proceeding, I am not persuaded Werst could reasonably be considered to have
been within the echelons of management at the time pertinent hereto because of
the functions he performed in Sperry 's recruiting program.
It is also contended that Werst could appropriately be considered to have had
supervisory status because of the authority he exercised in heading the field shop.
The testimony with respect to the duties he performed in carrying out the mission
of his phase of the project ( except for references to certain administrative aspects,
which I discuss hereinbelow ) does not indicate that he did anything not embraced
within the job description of senior engineer , a classification which , as heretofore
stated , was not considered by EA and Sperry as being supervisory . The record
and the cases 9 indicate that in industry employing engineers the exercise by an engi-
neer of duties such as those performed by Werst ( of planning , assigning , and direct-
ing the work of other engineers subordinate to him ) is not considered to align him
with management . It appears that his relationship to his subordinates is not con-
sidered to be that of supervisor to rank -and-file employees , but that of a more
experienced professional employee to less experienced professional employees.
Further, it is contended that Werst exercised certain administrative functions
which were within the prerogatives of only those occupying supervisory positions.
First, it is contended that he successfully recommended a merit increase . Philip
Bila, one of the engineers working under Werst's direction , testified that Doersam
suggested to him that, if he had any questions regarding merit increases, to see
Werst, which he did , and that Werst reviewed his experience with him and made
him "feel pretty good about my chances in the department ." Bila further testified
to a subsequent conversation with Werst: "He [Werst] tipped me off that I was
put in for a raise. That one could be expected ." The record does not, to my mind,
demonstrate what role, if any, Werst played in effecting Bila's merit increase
(which I will assume he received , although it is not clear it was given effect). The
record only indicates that Doersam told Bila that he could get information about
merit increases from Werst , that Werst expressed a favorable opinion about his
chances, and later passed onto him , information that he was going to get a raise
prior to official communication of the fact.
Doersam testified that Werst approved "PR time." 10 However , approval of PR
time could only be given by persons having at least code B authority which Werst
did not have and which , Doersam testified , he could not give him. PR time is
entered by an employee on his weekly timesheet showing to what accounts his time
for the week should be charged , such as to what project, sick leave, PR, etc. The
timesheets required the signature of a supervisor for approval , and payment of
salary to an employee was based on his timesheet . Bila testified to two occasions
when Werst told him he "could have the time off," that it was "all right." Thomas
McPartland , who was also an engineer in the field shop , testified that he obtained
permission from Doersam for PR time , but told Werst "out of courtesy ." While
Werst may have told Bila that it was "all right" to take PR time, his permission still
required the approval of a supervisor's signature on the timesheet . In any event,
the record does not disclose that it was the practice for field shop employees to
request permission of Werst for PR time, but only that on two occasions one
employee obtained oral approval from Werst. I cannot conclude from merely these
two incidents that Werst was a supervisor in that he exercised the supervisory
authority to do so. I cannot conclude that, because on two occasions , he exercised
authority which he did not have ( apparently with success ), he acquired such author-
ity or could generally have been believed to have.
Doersam testified that Werst was designated as an "acting section head" and per-
formed all the duties of a section head in accordance with a practice at Sperry of
having an employee do so prior to his promotion to that classification. The
record discloses that there is no such classification at Sperry as acting section head.
No witness testified that he had heard Werst referred to as an acting section head
and several who were in the project could not recall any such reference had ever
been made . The existence of the practice of having an employee perform the duties
of a section head prior to his promotion thereto was denied and Doersam could
not satisfactorily explain how Werst could perform the supervisory duties of a sec-
tion head without having the code authority therefor . Furthermore , there were
e Sonotone Corporation, 90 NLRB 1236 , 1239; Pennsylvania Power & Light Company,
122 NLRB 293.
1° "Personal reasons time " Professional employees had a quota of a certain number of
days per annum which they could use for personal reasons without loss of pay , provided
their absence had been previously approved by a "supervisor "
306 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
periodic "staff meetings" of the supervisory personnel in the department to which
project USD-7 was assigned of which minutes were kept. The minutes indicate
who attended the meetings and to whom copies were routed. It appears that the
two engineering section heads attended these meetings and copies of the minutes
were routed to them as well as to the other who attended. The minutes do not show
that Werst attended these meetings or that copies of the minutes were routed to him.
This further persuades me that it cannot be concluded that Werst was "acting" as a
section head
In conclusion, I am of the opinion that there is not a sufficient basis for finding
that Werst was a supervisor within the meaning of the Act.
2. Events preceding the organization and formation of the DC
a. Doersam's conversations with McMorrow
William McMorrow, Sperry's employee relations representative, testified, as to
conversations he had with Doersam (the first, sometime in April 1960, and several
during the workweek between May 2 to 6, 1960). Doersam testified with respect
to several conversations in the same workweek in May.
There is no substantial conflict in their testimony except with respect to a few
important details which are discussed in the course of the narration of what, I
believe, their testimony revealed.
McMorrow testified that during April 1960, in the course of consulting with
various supervisors for the purpose of obtaining information as to the sentiment of
employees with respect to the proposed affiliation of the EA with the IUE,
McMorrow sought out Doersam whom he knew "as ^a supervisor who was relatively
free in his discussions with employees such as the EA situation." Doersam asked
McMorrow what the Company could do to prevent the affiliation which Doersam
felt was strongly opposed by members of the bargaining unit. McMorrow explained
that the only thing the Company could do would be to seek to uphold the contract
provision for a vote by the bargaining unit "through legal action," the outcome of
which could not be predicted, and that anything else would have to be done by
the employees themselves. Among the actions which he indicated the employees
could take was the circulation of a petition to the National Labor Relations Board
which, if signed by 30 percent of the unit, might accomplish various results
(". . . they . . . might succeed in forming another union, having no union at
all, or they could use .the threat of such future action on the EA leadership to per-
suade them to drop their affiliation plans.") 11 McMorrow told Doersam that
although he had information which indicated employee opposition to the affiliation
he had no information whether any "employee movements had started." He asked
Doersam whether he knew if any of his employees were involved in such a move-
ment. When Doersam replied that he did not, McMorrow asked him "to keep his
ear to the ground," and, if he picked up any information as to what his employees
were doing, to relay it to him. He cautioned Doersam that, as a supervisor, he
had to use care in speaking to the employees so as not to become "involved."
He also told Doersam that Sperry "would prefer that the employees chose not to
become affiliated with the CIO."
Both testified that they had three telephone conversations during the first work-
week of May 1960.12 A comparison of their testimony with respect to the substance
of their conversations discloses every variation between and including complete
corroboration and absolute contradiction . In attempting to reconstruct what was
said I have neither accepted nor discredited either of them wholly,is but have ac-
cepted or discredited each of them insofar as their testimony conforms or does not
conform to the summation of what I have found to have been said . I have not
attempted to separate what was said in each conversation , except with respect to
the last to which McMorrow testified, since it does not appear it would serve any
material purpose and they were all within 'a comparatively brief span of time.
n The quotations are from McMorrow's testimony.
ii Although each testified to three conversations, their testimony is at variance not only
with respect to substance but also somewhat in point of time, Le , in relation to events
The second and third conversations to which Doersam testified appear to correspond to what
McMorrow testified as being the second conversation This conflict may be explained by
the fact that, according to Doersam's testimony, there was only a short interval between
the second and third conversations to which he testified. I do not consider this as of any
material significance. Doersam did not testify as to the last conversation to which
McMorrow testified.
32N.L.R.B. v. Universal Camera Corporation, 179 F 2d 749 (CA 2).
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 307
The conversations were initiated by Doersam, who called McMorrow, shortly after
learning that the Company had instituted legal action to require a unit vote on
affiliation, and asked him what effect the Company's action would have on the
affiliation. McMorrow was not optimistic in his prognosis as to its effectiveness.
Doersam then asked him what had developed with respect to employees' movements
in opposition to the affiliation (to which possible action McMorrow had referred in
their previous conversation in mid-April). McMorrow told him that the best hope
of preventing the affiliation would be such action by the employees, but that, while
there was evidence of their dissatisfaction, there was no leader to organize them so
that the matter of affiliation could, through a petition to the National Labor Rela-
tions Board, be brought to a vote of the entire bargaining unit instead of only the
EA members. Doersam volunteered that he had in mind two men in his department
who might be willing to attempt to organize the dissatisfied elements and asked
McMorrow if it, would be appropriate for him to talk to them about taking an
active role in organizing the affiliation opposition.14 McMorrow cautioned Doersam
to talk on a "man-to-man basis," so as to avoid giving the "impression" that he or
the Company "was in any way intending to become involved in any employee group
activity which was transpiring, that might transpire," that "such movements had to
be spontaneous movements and not inspired by the Company and that his conversa-
tions on this subject should be held in that light." 15
McMorrow testified that thereafter Doersam reported that "he had talked to one
of the employees named Pollak and that though Mr. Pollak was unhappy about the
affiliation movement, he was not going to do anything about it." Doersam testified
that he talked with Pollak, but that Pollak was not interested in taking any active
organizing role and that he reported his "progress or lack of progress" to McMorrow.
McMorrow testified, further, that Doersam informed him that he planned to talk to
Werst, but that Werst was not at the plant,16 that he told Doersam "that if he talked
to Mr. Werst and found out any information, to give me a call " He also testified
that Doersam told him that Werst was "an organizing type of individual" and that
was the reason he "thought he might be engaged in such activity." However, Werst
had been absent from the plant on a trip to the west coast for which he left on
April 24, so that I am of the opinion that a discussion with him most likely was
planned not for the purpose of determining what Werst had been doing about the
problem but rather whether he would be willing to take some action. He could not
have been doing anything about the problem while on his trip. This would tend to
bear out Doersam's testimony that he advised McMorrow of his belief 'that Werst
was a good "candidate" for assuming leadership.
Toward the end of the same week Werst returned to the plant, and in conversation
with him Doersam learned that he was interested in taking action to prevent the
affiliation.17 McMorrow testified that Doersam called him to report "that it ap-
peared to him that Mr. Werst was taking some type of action or about to take such
a type of action . . . action in opposition to affiliation." He further testified that
Doersam said Werst had some legal questions which he could not answer and that
he told Doersam to inform Werst that if he had any questions to consult the em-
ployee relations office. Although Doersam's testimony would indicate that he did not
talk to McMorrow after establishing Werst's interest in taking "action," it is clear
from his testimony that McMorrow did in the course of their conversation suggest
a referral of Werst to the employee relations office. However, Doersam testified
that it was predicated on the condition that Werst was interested in taking action,
not, as McMorrow testified, if he had any questions. I am inclined to credit Doer-
sam's version which, to my mind, is the explanation for the keen interest McMorrow
14 MeMorrow testified that Doersam did ask him if it would be proper to talk to some of
his employees, but only to get information as to what their sentiments were and what
action , if any, they were taking However, this is not consistent with his testimony that
he asked Doersam to do that very thing in their previous conversation and that in the
instant conversation he asked Doersam what he had learned from his employees with regard
thereto Therefore, I do not accept McMorrow's version as to what action Doersam asked
him would be proper McMorrow also testified that Doersam said he had two men in mind
to whom he planned to talk. This reference to talking to two men would appear to be
more consistent with Doersam's version of this portion of their conversations than
McMorrow's
is These quotations are from McMorrow's testimony.
1e Werst was on a trip to the west coast
17 The details of their conversation are discussed hereinbelow.
641795-63-vol. 136-21
308 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and Thomas Hirschberg, head of the employee relations office, took in Werst when
he contacted their office.
McMorrow flatly denied Doersam's testimony of references by McMorrow in -their
conversations to McMorrow having a list of 76 names of employees who had indi-
cated their opposition to affiliation which would be made available to Werst and also
to having a lawyer in mind, whose name would be supplied to him. It does not
appear necessary to resolve this conflict, for, in any event, based on Werst's actions
leading to the formation of the DC, I do not believe that he was given such a list
or the name of a lawyer.18
b. Doersam's conversations with Lober
Doersam testified to having had quite a few conferences with his immediate super-
visor, George Lober, during the period of his telephone conversations with Mc-
Morrow, in which he consulted Lober with respect to these conversations and his
actions relating thereto. Lober categorically denied that there were any such con-
ferences. I believe that Doersam did in a conversation or conversations with Lober
inform him on a casual basis of some of the details to which he testified. However,
I do not believe it necessary to attempt to reconstruct what might or might not have
been said by them, since I do not believe that is of sufficient moment. Doersam
testified that Lober said he would inform Hirschberg of Werst's desire to take action
to oppose affiliation and that Doersam need not do any more. Whether it was Doer-
sam or Lober who informed the employee relations office of that fact does not appear
to be important, since it is clear that that information was communicated.
c. Doersam's conversations with Werst
As has been indicated, Werst returned to the plant toward the end of the first work-
week in May 1960. He reported to Doersam and during the course of their conversa-
tion, they discussed the proposed affiliation. Both testified to the conversation 10
and there appears to be no conflict that Werst indicated that he was disturbed about
the affiliation, that Doersam informed him that there was doubt that the Company
could succeed in blocking it through the legal action it had instituted, that Werst in-
quired what could be done, and that Doersam suggested the possibility of preventing
the affiliation through action by the employees, the name of Delavan Smith as a lawyer
whom West could consult,20 that Werst take steps to find others who oppose affili-
ation and that Werst should get in touch with the employee relations office.
Doersam testified that he told Werst of his conversations with McMorrow, that
there was a lack of leadership among those who were opposed to the affiliation, that
the employee relations office was looking for a leader, that he thought he (Werst)
would be a good leader, that if he were interested he should contact the employee
relations office, that it has a list of names of employees who had inquired about the
affiliation and the name of a lawyer. I am of the opinion that Doersam did relate
to 'him something of his conversations with McMorrow in light of the following
question and answer:
Q. (By Mr. PRASIIER.) During that conversation, Mr. Werst, did Mr.
Doersam tell you that he had spoken to a Mr. McMorrow in the employee rela-
tions department?
A. Mr. Doersam , as I recall it, did not mention specifically the name of anyone
he had spoken to.
Werst testified that he could not "recall " that Doersam mentioned that the employee
relations office was prepared to provide him with the names of employees who-might
oppose the affiliation or with the name of a lawyer. While I am inclined, to' credit
Doersam 's testimony on this point , I do not attach much significance to it , since, as I
'- I refer to the means he employed in attempting to contact others who might be inter-
ested in preventing affiliation and the method by which he obtained a lawyer He made
calls blindly from the company telephone directory and there is no indication that he had
the assistance of a list of prospects. He obtained the name of the lawyer whom he con-
sulted through a referral service.
19 There is some conflict as to whether or not all that was said between them occurred
in a single or in more than one conversation, but there appears to be no need to resolve
this conflict and I consider what they said to each other as if it were one conversation.
a0 Doersam called Delayvan Smith and ascertained that he would be willing to represent
Werst and such other employees as might be associated with him. Doersam urged Werst
to contact Smith which Werst attempted to do but found Smith out of town Thus, this
attempt on the part of Doersam to supply Werst with a lawyer proved unsuccessful.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 309
indicated before, I do not believe Werst was provided with such information. I be-
lieve that Doersam did tell Werst , as part of what he had learned from McMorrow,
that it was felt that a leader was needed to organize the antiaffiliatton elements in
order to give effect to their opposition.
d. Werst's contact with the employee relations office
Shortly after the day Werst had his conversation with Doersam in the course of
which Werst testified Doersam "very definitely did ask me to call Employee Rela-
tions" (which conversation apparently was on the same day, according to McMorrow,
that Doersam reported to him that Werst was taking or about to take "action" in
opposition to affiliation ), Werst telephoned the employee relations office. Werst
placed the time of the call at "at least a week " after that day, while McMorrow testi-
fied that it was on the same day or the day after Doersam's report . Werst talked to
McMorrow and was invited by him to come to the office.
McMorrow testified that he told Hirschberg that "there was an engineer named
Werst who had some questions and would be coming up to the office" and that he may
have told Hirschberg that Doersam had "mentioned" Werst to him. Hirschberg testi-
fied that McMorrow told him "that one of Charlie Doersam's engineers , a man by the
name of Werst wanted to come up and ask some questions about the affiliation. .
Hirschberg notified the secretary in the office that when Werst came in he was to be
referred to him (Hirschberg).
When asked whether it was his general practice to report to Hirschberg that he had
invited an employee who had asked some questions about the EA to come to the
office, McMorrow answered, "I think I can say yes." I am not convinced that this
was his general practice , not only because it appears to be somewhat implausible, but
also by the manner in which the question was answered.
Hirschberg testified, when asked why he instructed the secretary to refer Werst to
him, that McMorrow told him Werst worked for Doersam, that he (Hirschberg)
"considered Mr. Doersam to be officious and unstable and I wanted to make -sure that
this man got the right story." Evidently McMorrow did not share Hirschberg's lack
of confidence in Doersam, in view of the fact that McMorrow solicited Doersam to
undertake the delicate task of talking to his employees to determine what their senti-
ments were about affiliation and what action they might be taking, and was willing to
rely on Doersam to exercise sufficient caution not to give an improper impression.
Hirschberg 's explanation would appear to be something of a non sequitur. I have
difficulty in understanding why it follows that because Werst worked for a man
who was "officious and unstable" it was thought advisable that he get "the right
story" about the proposed affiliation of the EA, for it does not appear from Hirsch-
berg's testimony that he was told that Doersam had been talking to Werst about the
affiliation problem. However, I am of the opinion that Hirschberg had been advised
of it. McMorrow's testimony concedes that possibility.
When Werst came to the employee relations office, shortly after his conversation
with McMorrow, he was referred to Hirschberg who took him into a conference room
where McMorrow joined them. It appears that McMorrow participated little, or not
at all, in the ensuing conversation . They discussed such matters as the percentage
of EA members in the bargaining unit and the Company's legal action. All three
who were present at this conversation testified that Hirschberg avoided answering
questions Werst asked as to what could be done to prevent the affiliation and that
Hirschberg suggested Werst consult a lawyer versed in labor matters.
Thereafter , Werst started telephoning employees "to find out how people felt.. "
He testified:
After I talked to Mr. Hirschberg and after I had a chance to think about it a
little further and I decided that maybe it would be a good idea to try to find out
something about it, to see whether it would be worthwhile talking to a lawyer,
but my-as I said , my interest before the talk to Mr. Hirschberg was a rather
passive one.
From this testimony I infer that the purpose Werst had in mind of consulting a
lawyer was to obtain advice on how to proceed , should he find others who were
willing to join with him in taking action and thus make it "worthwhile." There is
nothing in the testimony which sheds any light on what occurred during Werst's talk
with Hirschberg which caused the former to channge his interest from passive to
active. It should be noted at this point , that I do not accept Werst 's characterization
of his interest , either prior to or after this talk with Hirschberg , but judge it from his
conduct among other things.
310 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
3. The organization and formation of the DC
After his talk with Hirschberg, Werst managed to contact a number of employees
who were interested in taking action to prevent affiliation. Among them were
Henry Wakeland, who testified in this proceeding, as well as others referred to in the
record as Goodman, Apt, and Onderdonk. Werst had a series of meetings with
them during the course of which it was agreed that a lawyer should be found and
Werst was delegated the task. Through a number of telephone calls Werst found
a referral service which could recommend a lawyer and on May 25, he, Apt, and
Goodman visited the referral service and were given the name of Harry Rains
(appearing herein on behalf of the DC as the petitioner in the RD case). They
then proceeded to Rains' office and conferred with him. After some discussion,
Rains proposed that another conference be held to which they should bring more
people and at which meeting they could discuss possible courses of action.
The proposed meeting was held in Rains' office the evening of May 31 and was
attended by 12 employees, including those above mentioned and others who were
"invited" by Werst and his colleagues. Werst introduced Rams, who explained
that he had been contacted through the referral service and gave them information
as to his qualifications. There followed a discussion of the possible courses of
action. Wakeland suggested participation of the group as amicus curiae in the
Company's legal action. Rains indicated that neither this course nor arbitration
was practical, but that a petition for decertification was an available procedure.
Although several were opposed to such drastic action, it was eventually agreed that
the decertification method would be used, that it would, at least, serve, if there
were a sufficient number of signatures, to demonstrate a strong protest against
affiliation. The meeting was conducted on an informal basis, and by a "general
murmur of approval" Werst, Wakeland, and Robert Mitchell were designated
as "co-chairmen" of the group. Arrangements were made to hold the next meeting
of the group on June 6 at which Rains said he would present a letter of retainer.
Also, Wakeland was to prepare for submission at the meeting a proposed leaflet
(stating the aims of the group) for distribution to the bargaining unit.
The meeting of June 6, again at Rains' office, was attended by the original group
and several others. It was at this meeting that the DC became formally organized.
The leaflet which Wakeland had prepared, subject to some editing by Rains, was
approved by vote and the letter retaining Rains was signed. The leaflet, the testi-
mony of what was said at the meeting and the letter of retainer, as it was later
amended on June 16, all indicate that the objective of the DC was to prevent affilia-
tion and that a decertification vote would be sought as a last resort. A steering
committee was set up and plans were made for the DC's campaign to secure signa-
tures authorizing a decertification petition.
4. Was Werst an agent of Sperry in the organization and formation of the DC?
Having found Werst not a supervisor within the meaning of the Act, I now turn
to an alternative contention of the General Counsel. He contends that, even if it
were found that "technically" Werst was not a supervisor, "responsibility [for his
actions] would be attributed to Sperry based on the fact that Sperry . . . authorized
Werst to engage in" his conduct on behalf of the DC, "clothed him with the attri-
butes of management," and "put him in a position so as to have the employees work-
ing under him reasonably believe that he expressed the policies and desires of man-
agement in his function in the Field Shop." I cannot accept this contention.
In my opinion, the functions he performed and the authority he exercised in
carrying out his job or the tasks assigned to him do not furnish a basis to support the
inference that employees reasonably could have considered Werst as being in the
echelon of management or its mouthpiece. As explained in more detail in the
above section dealing with the question of his supervisory status, be did not have
the "Code B" authority which is an attribute of the lowest rank in the hierarchy of
Sperry management, nor did employees believe he had such authority. The in-
vasions he made into areas of activities usually conducted by supervisors were known
by so few and either so isolated in time or in number as to have had little or no
impact.
In his brief General Counsel argues that Werst was an agent of Sperry in the
organization and formation of DC. He contends, "The evidence is clear that Werst
acted at the direction of Employee Relations." I do not agree. While it is true
that he moved in the direction Sperry desired, I do not consider that tantamount
to doing so at its direction. I do not believe that the record establishes that Sperry,
through any of its supervisors, either ordered or asked Werst to take action to
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 311
organize employee opposition to the proposed affiliation of the EA. I believe, rather,
that they exercised sufficient caution to avoid giving Werst or any employee the
impression that Werst was acting on behalf of the Company or was asked or directed
to do so.
I do not find that they gave him such assistance as would permit the inference that
an agency relationship existed or that from their conduct it can be concluded that
the Company ratified his acts. In support of this agreement General Counsel cites
Shelly Gordon and Palmer Gordon, partners d/b/a Lakeland Cement Company,
130 NLRB 1365, a case in which the Board found an agency relationship existed
between the company involved and an employee who campaigned to obtain with-
drawals from the union. In that case the company aided the employee in some
of the details of his campaign by furnishing him with appropriate language to be
employed in obtaining the withdrawals and permitting him to use company prop-
erty and time therefor. In the instant case I find such active assistance lacking.
While I do credit Doersam's testimony that Werst was permitted to use a private
office and telephone extension therein and that he was relieved of some of his
duties during the period involved in this proceeding, I do not accept his testimony
that it was done for the purpose of making company time or property available
to Werst for his activities on behalf of the DC. I am not convinced that such
purpose was expressed or implied to him or that such purpose was intended.2'
Thus, I conclude that Werst was not acting as an agent of Sperry in his activities
with respect to the organization and formation of the DC.
5. Did Respondent "initiate, sponsor, and encourage the organization and
formation" of the DC?
Based on the findings of fact made in the section hereinabove titled, "2. Events
preceding the organization and formation of the DC," I believe it appropriate to
conclude that Respondent did "interfere" with its employees in the exercise of the
rights guaranteed in Section 7 of the Act.
In my opinion, the record discloses that Respondent realized that the employee
dissatisfaction with the proposed affiliation required leadership to organize it
effectively and sought to supply the leadership by inducing an employee with or-
ganizational ability to take action. Through Doersam it found Werst from whom
Doersam elicited the information that he was opposed to affiliation and would be
interested in doing something to prevent it. Through its supervisors, Sperry im-
planted in his mind the desire to take action and the initial steps which would
point him in the right direction. It was made clear to him that an initial step to
take was to find others of like mind who were also willing to take action. Doersam
even suggested publishing an advertisement to accomplish this. It was also
made clear to him by Doersam, and later by Hirschberg, that another necessary
step was to consult a lawyer versed in labor law. Werst, himself, testified that he
decided, after talking to Hirschberg, to see whether he could find like-minded col-
leagues in order to ascertain whether it was "worthwhile" to consult a lawyer. I
find nothing in the record to support an inference that he was assisted in finding such
colleagues or an appropriate lawyer. Nor do I find anything in the record which
would support an inference that there was any coercion used or promise of
benefit made.
While I do believe that Sperry representatives attempted to exercise caution not to
overstep proper bounds in initiating the organization of employee dissatisfaction by
supplying it impetus through Werst's leadership, nevertheless I am of the opinion
that it did overstep such bounds. I am of the opinion that implanting in Werst's
mind the idea of assuming leadership, advising him of the initial steps to take in
the organization of that dissatisfaction, and encouraging him to take action con-
stitute interference within the meaning of Section 8(a)(1) of the Act. I see no
purpose in speculating whether or not Werst would have ultimately taken the action
he did, even if Sperry's representatives had not conducted themselves as they did.
There is a sufficiently clear relationship between their conduct and the ensuing
actions of Werst to infer that the connection was causal not casual. Werst played a
major role in the organization and formation of the DC which followed after he
took the suggested initial steps of contacting like-minded colleagues and consulting a
lawyer.
21This point is discussed more fully hereinbelow in the portion of this report titled,
"G. The conduct alleged in paragraph No 9 of the complaint "
312 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thus, I conclude that it can be said that Respondent did, to some degree, initiate
the organization of the DC, and that its conduct constituted interference within the
meaning of Section 8 ( a)( I) of the Act.
In its brief Respondent argues that, since throughout the complaint it is alleged
that Werst was a "supervisor" and "agent" of Sperry and nowhere is it alleged that
he was an "employee," the "theory of the Complaint is not that Sperry unlawfully
'encouraged ' Werst, as an employee.. . . . I do not consider that this would pre-
clude the above finding of unlawful "encouragement" of Werst as an employee. The
question of whether or not Werst was an "employee" was fully litigated, and an
extensive portion of the record was devoted to detailed testimony, on direct and
cross-examination of witnesses of General Counsel and Respondent, as to the con-
duct of Werst, Doersam, McMorrow, and Hirschberg upon which my finding is
based . Therefore, even though it was not alternatively alleged that Werst was an
employee and that he was, as such, unlawfully encouraged, I believe it proper to
make the above finding of a violation of Section 8(a) (1). Thompson Manufacturing
Co., Inc., 132 NLRB 1464.
6. The conduct alleged in paragraph No. 9 of the complaint
It is alleged in paragraph No. 9 of the complaint (and denied by Sperry) that
Sperry, by Doersam, Werst, Lober, and Hirschberg as agents and supervisors, per-
mitted various employees to suspend their work to conduct business on behalf of
the DC and paid them for time so spent.
A large portion of the testimony in the record which can be related to the allega-
tions in paragraph No. 9 refers to Werst's activities 22 Furthermore, I have con-
sidered this testimony in determining whether such assistance was given to him as
might make it appropriate to conclude that he was an agent of the Company. I am
not convinced by the testimony on this point that it is appropriate to conclude that
he was an agent or that a violation of Section 8(a)(1) of the Act was proved with
respect to this aspect of Respondent's conduct in regard to Werst
The testimony on this point may be divided into five categories. First, there is
testimony by Doersam that, at Lober's suggestion, Werst was given permission to use
a certain office and the telephone therein to conduct DC business. Lober denies this.
The office referred to was a "cubicle" assigned to a section head (King) who was
absent for all or a great portion of the period involved. The telephone in the
cubicle bore the number "2624," which number had been assigned to Werst in the
company directory sometime prior to Werst's decision to take action in opposition
to the proposed affiliation. Calls coming in on that number could only be taken in
King's or Doersam's cubicle. Thomas McPartland, an enginner on the USD-7
project, was called as a witness by General Counsel, and in the course of his testi-
mony stated that there was no restriction on the use of King's cubicle and the tele-
phone therein by people in the department and he recalled occasions when he and
other engineers made use thereof. Thus, while I have no doubt that Werst received
and made calls in the aforementioned cubicle, I am not convinced that permission
was granted him to do so for the purpose of conducting DC business, or, for that
matter, that there were any specific arrangements to permit him the use of the
facilities whatever the purpose.
Second, there is considerable testimony as to the number of telephone calls
Werst made and received. Five of General Counsel's witnesses made widely vary-
ing estimates of the number of his telephone calls. Other than Doersam's testimony
with respect to snatches of what he overheard Werst say during three telephone
conversations, there is no evidence of what the subject matter of his telephone
conversations might have been I am unable to infer from this scanty evidence what
proportion of the calls he made or received, if any of them, related to DC business.
Even the snatches of conversation overheard may have been merely passing refer-
ences to DC matters made in the course of what was otherwise a conversation
related to Sperry business. Furthermore, I can attach no significance to the number
of telephone calls he made and received, since I am not convinced that they were
so abnormally frequent that it would be appropriate to infer that they were not
confined to Sperry or personal matters but extended to DC business One of the
aforesaid five witnesses, Francis V. Thiemann, testified that Werst was paged on
29 Although it would appear from the wording of the paragraph that it was not intended
to include Werst among the "various employees," nevertheless, since the issue was fully
litigated with respect to Werst as an employee I will consider it The question of whether
Werst can be classified as a "supervisor" or "agent" was fully litigated and I have deter-
mined neither classification to be appropriate
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 313
"2624" 5 to 7 times a day, but he also testified that another engineer in the depart-
ment, Bila, received 7 to 10 pages a day during a period shortly prior to the periods
involved herein (the period prior to August 4 and the period from August 4 to Sep-
tember 8). In any event, there is no indication that Sperry or any of its super-
visors attempted to police the calls made or received by employees either with re-
spect to frequency or purpose. Therefore, I can find no element of assistance to
Werst from Sperry's supervisors based on permitting him to conduct DC business
over the telephone during normal working hours.
Third, there is also considerable testimony with respect to the number of visitors
Werst had during the periods pertinent to this proceeding and with respect to the
frequency of their visits. I cannot attach any significance to this line of testimony,
for,-as was the case with respect to the telephone calls, there is scanty evidence to
indicate that the visits were with respect to DC business and, in any event, there
is no indication that Sperry or its supervisors attempted to police or restrict "visits"
either with respect to number or purpose.
Fourth, Doersam was questioned and testified at length to the percentage of time
Werst was absent from the work area of the department during normal working
hours. Except for the occasion (which Werst charged to PR time) when he con-
sulted a referral service and had his initial conference with Rains,23 there is no
showing what proportion of his absences, if any of them, was for the purpose of
engaging in DC business. Also, there is credible testimony that his job required
frequent absences Furthermore, there is no showing that Sperry or its supervisors
attempted to police the activities or movements of its engineers, but apparently relied
on.them to make a proper accounting of their working time on their weekly time-
sheets. Although the timesheets required a supervisor's approval, there is no show-
ing that the approval of Werst's timesheets was with knowledge that some of his
time charged to company business was in fact devoted to DC business.
Fifth, Doersam testified that in conversations he had with Lober, during which
they discussed the amount of time Werst was spending on DC business, it was de-
cided, because of this, to assign McPartland to "backup" Werst. Lober denied
having such conversations and testified that Doersam had the authority without
consulting him to so assign McPartland. McPartland, a senior engineer in the field
shop, was given such an assignment , according to his testimony, in mid-June 1960
for a period of about 3 weeks at the end of which period he was relieved of all
work on the USD-7 project. Doersam testified the assignment was made in July
and in his pretrial affidavit stated that McPartland assumed responsibility for all
of Werst's work and continued to do so until up to the time Doersam left the
employ of Sperry on September 23 (over 2 weeks after DC's activities ceased).
Werst testified that the assignment was made because of an increase of his work-
load and activity in his shop in an area of production (mechanical design) with
which McPartland had more experience. Werst also testified that about this period
he was working 5 to 10 hours a week less overtime than he had previously. This
could very well have required the assistance from McPartland to which McPartland
testified he devoted one-third of his time. Roughly this would correspond to the
decrease in overtime which Werst worked. Whether Lober and Doersam did or did
not have the conversations to which Doersam testified, I am not satisfied that it has
been demonstrated that Werst was spending "company time" on DC affairs and that
McPartland was assigned to relieve Wrest of some of his duties to make time during
normal working hours available to Werst for DC business. It is quite possible
that the time which Werst could have devoted to overtime work was devoted instead
to DC business , but the Company cannot be held responsible for how Werst em-
ployed his time after regular working hours, if it did not pay him for such time.
It is quite possible that Doersam suspected that some of Werst's telephone calls,
conversations with visitors from other departments, and absences related to DC
business . However, there is no showing that Sperry or any of its supervisors re-
stricted engineers in their movements, conversations with visitors, and telephone
calls or attempted to police such conduct whatever the purpose thereof that may
have been suspected. There is no showing that proponents of either the DC or the
EA were in anyway policed or restricted by supervisors in the course of their normal
workday. In the absence of any showing of a practice of policing or restricting
engineers prior, during, or after the pertinent periods herein, I can find no signifi-
cance in-the fact that Doersam did not attempt to police or restrict Werst's activi-
as Personal reasons time . See footnote 10, supra I do not pass upon whether or not
it was appropriate for the Company to permit him to so charge this time, since there is
no showing that the Company had knowledge that it was spent for the purpose to which
he devoted It. See footnote 26, infra, for testimony as to this point.
314 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ties despite his suspicions. There is testimony that such a practice is not feasible
because of the nature of engineers' responsibilities and duties.
Therefore I am led to the conclusion that it has not been demonstrated by any of
the above five lines of testimony that Sperry assisted the DC by permitting Werst,
or any other engineer, to use company time for DC business.
There is another line of testimony which might be said to fall within the allega-
tions of paragraph No. 9 of the complaint. This testimony is with respect to the
payment of DC representatives for their time spent at the National Labor Relations
Board's hearing on August 4 and preelection meeting on August 30 and of their
observers for time spent at the election itself on September 8. This line might also
be said to relate to the allegations in paragraph No. 10 of the complaint as well as
to objection No. 4 in the RD case. The General Counsel has not contended in his
brief that this line of testimony established a violation of Section 8(a)(1). I do
not find that it does establish a violation of Section 8(a)(1). I will, however, post-
pone setting forth the basis for this conclusion to that portion of this report herein-
below entitled "The conduct alleged in objection No. 4" at which point the testimony
will be considered.
7. The conduct alleged in paragraph No. 10 of the complaint
In essence , it is alleged in paragraph No. 10 of the complaint that Respondent,
by its "supervisor, Werst and other agents and supervisors" participated in the affairs
of the DC and "contributed financial and other support."
It is not contended, nor does it appear, that there is any evidence in the record
which may be said to be within the category of the phrase "other support." As
to the "financial" support, the only testimony I find which can be said to relate to
this allegation is with respect to the payment of DC representatives for time spent
at the meetings of August 4 and 30, and as observers at the election. As previously
indicated, I do not find this testimony would support a finding of a violation of
Section 8(a)(1) for the reasons which I state hereinbelow in my analysis of this
testimony in the section of this report in which objection No. 4 is considered. I
have found Werst not to be a supervisor or an agent of Sperry. There appears to
be nothing in the record, which indicates nor is it contended, that any other indi-
vidual who participated in DC affairs was a supervisor or Sperry agent. Therefore,
it appears that none of the allegations in this paragraph of the complaint has been
sustained.
8. The conduct alleged in objection No. 2
The EA's objection No. 2 to the election (which was held on September 8) is as
follows:
During the twenty four hour period preceding the election and while the elec-
tion was in progress, supervisory employees called bargaining unit employees
into private offices where two or three supervisors would discuss the union
vote with employees and question them as to their intentions with regard to
the election. Additional electioneering was conducted by other supervisors
throughout the plant on September 7 and 8.
Except for testimony in the nature of background information, testimony elicited
with respect to this objection was limited (by my ruling based on the reasons stated
hereinabove in the section of this report entitled "The Issues") to interviews occurring
within the time and places specified in the objection. I did not limit the testimony
to only those interviews in which two or more supervisors were present, since I did
not consider the number of supervisors to be a significant element in the allegation.
The record contains some details of the content of the conversations which took
place in seven interviews supervisors had with six employees (one employee having
been interviewed twice by different supervisors).
John Miazza, a senior engineer in department 9235, testified to being called into the
cubicle of his engineering section head, John Diehlmann, in the morning of Septem-
ber 7, who commenced the conversation by asking him if he had any question con-
cerning the election. Their conversation apparently was in the nature of a discussion
and argument which lasted "between an hour and a half and two hours." Miazza
testified that Diehlmann discussed the Company's pension plan with him and asked
him "a number of argumentative questions," such as "Do you really feel that you
need a union?" and "Do you want to have the type of union, the CIO union that
the shop workers have?" The EA in its brief pointed out as significant that Diehl-
mann asked the question, "How do you justify your position with respect to the
Union with your hope that some day you will become a part of management?" Even
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 315
assuming that Miazzi 's testimony may be credited in its entirety , I do not find that
Diehlmann made any threats or promises of benefit . As to the question of how
Miazzi justified his position with his hope of becoming part of management, I do
not interpret it as a threat that his attitude in favor of the Union would jeopardize
his chances of promotion. I believe it was asked to ascertain from Miazza whether,
when he became part of management as he hoped , he would not object to having
the engineers represented by a union affiliated with the CIO. It is evident that
Miazzi also interpreted the question in the same vein, for he testified that he answered
"that I didn't feel that there was any inconsistency between union support and man-
agement, that we were all doing engineering work and I thought that one objective
in the union was to raise the standards of engineering."
Miazzi also testified to a conversation he had with Julian Gudel, engineering
department head of the department to which Miazza and Diehlmann were assigned,
in the afternoon of September 7. Gudel testified that the conversation took place in
the morning of September 6. The necessity of determining whether September 6
or 7 is the correct date is not, to my mind, predicated on the possible applicability
of a Board principle based upon the date,24 but solely a matter of whether it falls
within the area of testimony which the Board directed me to hear with respect to
this objection. Miazzi testified that he was struck by the similarity between the
questions asked by both Diehlmann and Gudel and asked the latter if he had not
been "briefed." (Gudel denied this portion of Miazzi's testimony.) This testimony,
if credited, would tend to establish the date as the 7th, since the interview would
have had to follow the Diehlmann interview which occurred in the morning of that
date. I am inclined to credit Miazzi's testimony on this point and on the date of
the interview. However, I find nothing in his testimony of what Gudel stated to
him, even if accepted in its entirety, which would support the inference that there
was any threat or promise of benefit made to him in order to alter his voting
intentions.
Henry Defries, an engineer in Diehlmann's department, testified to a conversation
he had on September 7 with Diehlmann in the latter's cubicle. The EA points out that
Diehlmann started the conversation, as he had with Miazza, by discussing the Com-
pany's pension plan. This, the EA contends in its brief, illustrates that their con-
versation "was not an isolated event, but rather a part of a pattern," since previous
reports of the pension plan were sent to the employees and not discussed individually
with them. 'I assume that by its reference to a "pattern," EA is contending that the
Company engaged in a program of having supervisors interview employees with
respect to the election by commencing with a discussion of their interests in the
pension plan. Even assuming that the Company did engage in a program of having
supervisors discuss the pension plan with the employees, I cannot conclude from three
incidents 25 that the Company used such discussions as a springboard for discussing
the forthcoming election with employees on a wholesale basis or over what period
such discussions, if they occurred, took place (whether they occurred within the
period alleged to in objection No. 2).
Defries testified that Diehlmann asked him what his opinion was of the EA's affili-
ation with the IUE, whether he did not think it "unprofessional" for an engineer to
belong to a trade union, whether he felt insecure in his job, and what goal he had
in mind for his future at Sperry. While I have no doubt that Diehlmann clearly indi-
cated that the Company preferred that the vote go against the EA, I do not find that
anything said to Defries by Diehlmann could reasonably be construed as constituting
a threat or promise of benefit aimed at changing his vote. The question as to what
goal he had in mind, depending on its context, might have been a subtle threat with
respect to his prospects of promotion. However, it is just as possible that it was
asked, and would reasonably have been so understood, preliminarily to advancing the
argument that as an eventual part of management he (Defries) might prefer that the
engineers not be represented by a trade union. It is not clear from Defries' testimony
as to his answer in what context the question was asked. He answered that he did not
24 In its brief the EA contends that the Board "rule" formulated in Peerless Plywood
Company, 107 NLRB 427, with respect to the 24-hour period preceding an election is
applicable to the instant case. Since there is no evidence in the record of "election
speeches . . . to massed assemblies of employees within 24 hours before" an election,
against which the Peerless Plywood rule was directed, I find no significance in the date
of the interview because of the rule.
25 Lester Wahrenburg also testified to an interview on September 7 in which Engineering
Section Head Wetherell gave him answers to a question about the pension plan which had
arisen in an earlier conversation.
316 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
want to become a supervisor , that he preferred working in the laboratory . In this con-
nection it is noted that he testified that nothing that Diehlmann said to him indicated
that he would suffer some disadvantage if he did or did not act in a certain way. I do
not find any basis for concluding that the reference to his "goal " was in such context
as would make it reasonable to believe that it constituted a threat.
Clyde A. Pritchett and Lester Wahrenburg testified to conversations on Septem-
ber 7 with supervisors in their cubicles in which the forthcoming election was dis-
cussed. Nowhere in their testimony is there any reference to a statement made by the
supervisor which could possibly be construed as a threat or promise of benefit.
Julian Furness, chairman of the EA's grievance committee and a senior engineer,
testified that in the morning of the election ( September 8) his supervisor , Sal Piccione,
asked him to accompany him (Piccione) to the cubicle of another supervisor, Kenny,
and that another supervisor , James Shaw, was also present when he entered the
cubicle. They discussed some matter of business and then, he testified, all three
supervisors "fired" questions at him concerning the election , such as "What are you
going to do when the Union loses the election?" and "What are you going to do
with your strike fund when the Union loses the election?" When he did not answer,
they asked him if he were afraid to do so; and he testified that he said he was not, but
did not answer their questions . Although the EA quotes this testimony in its brief,
it does not explain what inference or conclusions it wishes me to draw therefrom.
I am unable to ascertain the purpose for the questions or the effect that was intended,
except possibly to make Furness, as one of the top officials of the EA, feel uneasy
about the results of the election. I find nothing coercive therein.
The EA also quotes in its brief the testimony of John Campbell, vice president of
the EA, with respect to a conversation he had on September 7 with James Kenny, an
engineer section head, in the presence of two other supervisors, Campbell testified
that Kenny said to him that he did not want to be misunderstood but that he (Camp-
bell) would have one consolation if the Union loses, a "meteoric rise in the company."
This was followed by the explanation that if he "spent eight hours a day on company
business instead of six . on company business and two hours a day on union
business," he would "make out." EA contends that this was an attempt, apparently
by promise of benefit, to persuade him to change his vote. In view of the explanation
given, I find no promise of benefit, and, in view of Campbell's position in the EA,
I consider the purpose advanced in the brief could hardly have been contemplated by
Kenny or have reasonably been so understood by Campbell.
Not only do I find no element of coercion demonstrated by the testimony in the
record with respect to the interviews by supervisors of employees from the content of
the statements made to employees, but also I find no element of coercion because of
the extent (in number) of such interviews, or because of the situs of the interviews
(as being in the locus of managerial authority ). Comparing the number in the
bargaining unit (approximately 3,500) with the number of the employees interviewed
(6) I do not consider such isolated incidents of inherently noncoercive interviews
could have had sufficient impact to have interfered with the freedom of choice of the
employees As for the situs of the interviews, all but one were in cubicles which are
surrounded on three sides by 4-foot partitions and into which the interviewees were
quite accustomed to go. I am convinced that these cubicles did not have such an
aura of high managerial authority that the interviewees were overawed by finding
themselves therein.
9. The conduct alleged in objection No. 4
It is alleged in objection No. 4 that "the Company financed the activity of the De-
certification Committee and of observers designated to act in its behalf."
The testimony which might be said to relate to this objection can be divided into two
categories: (1) related to whether Sperry permitted proponents of the DC, particu-
larly Werst, to devote company time to DC business, and (2) related to the method
of payment of DC and EA representatives for the time they spent at the hearing on
August 4 and preelection meeting of August 30, and as observers at the election on
September 8 .26
^ There is also the incident in ninth Werst devoted several hours of company time to
obtaining Rains' name from a referral service and for hiq initial consultation with Rains
He charged this against his PR time and Werst testified that in obtaining approval therefor
he advised Doersam that lie wished to consult a lawyer but did not inform him of the pur-
pose thereof In the absence of any showing of knowledge on the part of Doersam that
Werst had DC business in mind, it does not appear that the appropriateness of permitting
the time to be charged to "personal reasons" need be considered . For an explanation of
"PR time" see the second following paragraph.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 317
The first category of testimony was analyzed in the section of this report herein-
above entitled "The conduct alleged in paragraph No. 9 of the complaint." I found
therein no basis for concluding from such testimony that Sperry assisted the DC
by permitting its proponents to use company time for DC business. I find for the
same reasons that this line of testimony does not support the allegation in objection
No. 4
The second category of testimony involves Sperry's practice of allocating to
engineers 10 days per annum which they can use for "personal reasons" subject to
the approval of a supervisor. Time so spent is charged against their quota of 10
days and is designated by the employees on their timesheets as "PR time." It also
is the established practice that time spent by engineers on activities of the EA was
charged by them on their timesheets to "UA time" (union activity time) and time
so reported was not paid for by Sperry, but was in turn reported by it to the EA,
which compensated the employees for time so charged. There is testimony that
in the past Sperry resisted requests that time devoted to union activities be charge-
able to PR time, although it appears that the Company paid employees for time
spent on some phases of EA activity without charging time so spent against their
quota of PR time.
It was stipulated that all observers at the election (both EA and DC) were paid
by Sperry for their time spent in that capacity without any charge against their
PR time It was also stipulated that Werst charged on his timesheet the time he
spent at the August 4 and 30 meetings to PR time and was paid in accordance there-
with. It was also stipulated that Edward S. Langholz charged on his timesheet
the time he spent as an EA representative at the August 4 meeting to an account
designation for time spent on those phases of union activities paid by Sperry and
that he was paid in accordance with said timesheet. Campbell and Furness, officials
of the EA, charged their time spent in the two meetings against an account which
embraced those phases of union activity which were not paid by Sperry, but for
which time the EA made reimbursement to the employee. There is no showing
that Sperry made payments to the representatives of the EA and the DC in any other
manner than as they indicated on their individual timesheets.
At the August 4 meeting there were apparently four employees representing the
EA and three representing the DC. At the August 30 meeting there were apparently
two employees representing the EA and two representing the DC. They were paid
for their time in one of three ways- by the EA, if they charged their time to the
UA account which required reimbursement by the EA (as apparently was the case
with respect to Campbell and Furness, EA representatives); by Sperry, if they
charged their time to PR time (as was the case with respect to Werst, a DC repre-
sentative); or by Sperry, if they charged their time to the account to which union
activity time could be charged which would be paid by Sperry (as was the case
with respect to Langholz, an EA representative). It would appear that from the
individual employee's standpoint those who fared the worst were the employees who
charged their time to "PR time," for they thereby lost that much time out of their
10-day quota. No loss of pay was incurred whichever way the time was charged.
There is testimony that Sperry indicated at the August 4 and 30 meetings that EA
representatives and observers would not be permitted to charge time spent at the
meetings and election to PR time Campbell, the EA's vice president, testified that
at the August 4 meeting he said to McMorrow, "I guess I will put this down as
PR time" and that McMorrow replied "in essence," "You are crazy, if you do."
On the other hand the EA's grievance committee chairman, Furness, testified that
he overheard Campbell say to Hirschberg, "I suppose we can charge this time
against PR," and that Hirschberg answered, "No." McMorrow was not present
at the meeting and Hirschberg denied that such conversation occurred. It is clear
that Campbell could not have had the conversation to which he testified with
McMorrow. While he might have been mistaken in his testimony as to the identity
of the person with whom he had the conversation, and, instead, had a somewhat
similar conversation with Hirschberg, as Furness testified, I do not find their testi-
mony sufficiently convincing to discredit Hirschberg's denial.
Hall, EA's president, testified to a conversation he had with Hirschberg at the
August 30 meeting in which he said (after Hirschberg stated that EA observers
should charge their time to UA), "I suppose the decertifiers [DC observers at the
election] will be paid for by the Company" to which statement Hirschberg made no
answer. He also testified that Julian Liebner, a member of the staff of the IUE
who attended the meeting, witnessed this conversation, and that a number of others
were also present. It is not clear whether he meant the others were present at the
meeting or in his presence when the conversation occurred. Liebner, who confirmed
318 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the conversation took place, testified that it occurred across the conference table
at which the others who attended the meeting were seated. I find somewhat suspect
the singling out of Liebner by Hall as a "witness" to the conversation in face of
Liebner's testimony as to the presence of the others at the table when the conver-
sation was supposed to have occurred. Hirschberg denied that the conversation
took place and two others who were present, including Furness, testified that they
did not hear such a conversation . I do not find Hall's and Liebner's testimony as to
the conversation in question sufficiently convincing to permit the discrediting of
Hirschberg's denial.
I have resolved the credibility issues with respect to the aforesaid conversations
at the two meetings in view of the reliance the EA placed upon them in its brief
with respect to objection No. 4. Assuming that these conversations did take place
and do establish that Sperry indicated that it intended to follow a policy of permitting
the DC representatives and observers to charge their time to PR and requiring
the EA to reimburse their representatives and observers, it is clear that Sperry did
not follow such a policy. It did not require the EA to reimburse Langholz, one of
the EA representatives at the August 4 meeting, and paid both EA and DC observers
without any charge against PR time.
In any event, even assuming that Sperry denied the EA representatives the priv-
ilege of charging their time to "PR," I do not consider such action would have
been of sufficient moment to sustain this objection as a basis for setting aside the
election . As far as the EA representatives were concerned this would have worked
no personal hardship on them. If anything, it would have been to their personal
advantage, for they would have been paid for their time without sacrificing part of
their quota of PR time. It might be said that it would have worked to the disadvan-
tage of the EA, in that the EA would have been required to use its funds to reimburse
its representatives. I am far from convinced that this would have constituted such a
hardship upon the EA as to have prevented it from carrying on its activities in some
measure and thus affected the outcome of the election. In view of the extent of its
campaign and the size of its membership, it would appear that if such an expenditure
had been required with respect to three of its representatives at the August 4 meeting
(the fourth, Langholz, was paid by Sperry) and its two representatives at the August
30 meeting, such expenditure would have been minimal and could have had no
effect unon the EA's activities or the results of the election.
The General Counsel made no reference in his brief to the lines of testimony
above considered with respect to objection No. 4, although the testimony was elicited,
in the main, from witnesses called by him ostensibly with respect to the issues in
the CA case.
10. Conclusions as to the CA case
As above indicated, I am of the opinion the Respondent's conduct with respect to
Werst, through its Supervisors Doersam, McMorrow, and Hirschberg, constituted
"interference" within the meaning of Section 8(a)(1) of the Act. I found that
they implanted in Werst's mind the idea of assuming leadership in organizing those
in the bargaining unit who were dissatisfied with the affilation of the EA with the
IUE, advised him of the initial steps to take, and encouraged him to take action.
Therefore, I concluded that Respondent did, to some degree, initiate the organization
of the DC.
I do not make any conclusions with respect to the allegation in paragraph No. 8
of the complaint that Respondent violated the Act by "urging" its employees to sup-
port the DC. As stated in the section of this report hereinabove entitled "The
Issues" in denying the motion to dismiss this allegation, there might be a violation
of the Act by such conduct depending upon what finding is made with respect to the
allegation which precedes it in said paragraph. I have found that this preceding
allegation has in part been sustained However, I see no purpose in determining
the issue with respect to the "urging" (which Respondent admits as to the period
following August 4). Were I to conclude that the "urging" did constitute a viola-
tion, because of the finding made with respect to the allegation which precedes it,
the appropriate remedy would appear to be an order upon the Respondent to cease
and desist from such conduct in the future in the event the condition precedent
existed of a similar violation to that which I have found. Since I shall recommend
as a remedy for the violation found that Respondent cease and desist from such
conduct and like and related conduct, it is evident that the condition precedent
cannot come into existence without violating the cease and desist order which will
be recommended. In view of the fact that the remedy flowing from a finding of a
violation by Respondent's conduct with respect to the "urging" does not appear to
be necessary to effectuate the purpose of the Act, I see no purpose in making a
determination with respect thereto.
SPERRY GYROSCOPE CO., DIV. OF SPERRY RAND CORP. 319
I am not of the opinion that any of the allegations of the complaint, other than
that above indicated, have been sustained.
11. Conclusions as to the RD case
As above indicated, I do not find that that portion of the record with respect to
the conduct of Respondent alleged in EA's objections Nos. 2 and 4 demonstrates
that Respondent interfered with the election by inhibiting the freedom of choice of
the members of the bargaining unit. Therefore I shall recommend that the EA's
objections Nos. 2 and 4 be overruled.
There is a question as to what effect, if any, the finding of a violation of Section
8 (a)( I) in the CA case has upon the RD case, for both the General Counsel and
the EA have contended that the petition in the RD case should be dismissed, if
there be such a finding. This contention is discussed in the section hereinbelow
entitled "The Remedy."
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, which I have found
to constitute interference within the meaning of Section 8 (a) (1) of the Act occurring
in connection 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 obstruct-
ing commerce and the free flow thereof.
V. THE,REMEDY
Having found that the Respondent engaged in certain conduct in violation of
Section 8(a) (1), I shall recommend that it cease and desist therefrom and from like
,and related conduct and take certain affirmative action designed to effectuate the
policies of the Act.
General Counsel and the EA have indicated that the dismissal of the petition in
the RD case would be an appropriate remedy for a finding in the CA case of a viola-
tion of Section 8 (a)(1). It appears that they cannot mean such a finding of a
violation as would fall within objections Nos. 2 and 4 in the RD case. The General
Counsel speaks of a finding of the "invalidity of the RD petition" because of a
violation of Section 8(a) (1). Such a finding could not be predicated on the conduct
alleged in said objections even if the allegations therein were proved, since they
relate to matters occurring after the petition was filed and the execution of the
agreement that the election be held. Conduct of Respondent upon which the validity
of the petition could conceivably be attacked would have had to occur during a
period preceding that covered by the objections. Thus, I am unable to understand
General Counsel's contention that because "the objections in the RD case involve
the same issues as those in the CA case," they were consolidated to permit such
a remedy. As stated hereinabove, it appears that the issues coincide only to a
limited extent. If there were a finding of a violation of Section 8(a) (1) with
respect to conduct also alleged in the objections, the appropriate remedy would
appear to be to set aside the election, not to dismiss the petition as invalid.
General Counsel cites Birmingham Publishing Company, 118 NLRB 1380, as
authority for dismissing the petition in an RD case based on a finding of a violation
of Section 8(a)(1) in a consolidated CA case. However, in the RD case cited, no
action had, as yet, been taken disposing of the question of whether an election
should be held or the petition dismissed, and the Board consolidated the CA case
with it, the cases having been heard separately, since, as the Board indicated, the
finding of the violation of Section 8(a)(1) in the CA case was dispositive of the
aforesaid question pending in the RD case.
I cannot recommend an order in the CA case requiring the Respondent to take
some action which would in any manner affect the petition in the RD case herein.
In a hearing on the petition, the parties stipulated to the holding of an election
which agreement was approved by the Acting Regional Director. I do not consider
that the Board has directed me to make recommendations in the RD case with respect
to whether the petition raised a question concerning representation or the appropri-
ateness of the Acting Regional Director's approval of the stipulation, since I was only
directed to hear matters relating to objections Nos. 2 and 4 which could not possibly
bear upon the validity of the petition 27 Although the Board ordered that the cases
27 The pertinent portion of the Board 's order is as follows:
IIT IS FURTHER ORDERED that a hearing be held before a Trial Examiner, to be
designated by the Chief Trial Examiner, to resolve the issues raised by Objections 2
and 4 and that such hearing may be consolidated with the hearing on the charges filed
in Case No 2-+CA-713 . .. .
320 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
herein be consolidated , in the absence of the pendency in the RD case of the ques-
tion of whether the election should be held or the petition dismissed , I find no basis
for even inferring the existence of a directive to consider such a question. Therefore,
I consider it outside the scope of my authority in this proceeding to make any
recommendation to the Board with respect to the appropriateness of the remedy
suggested by the EA and the General Counsel.
However , in light of the finding in the CA case of a violation of Section 8(a)(1),
the Board might wish to consider whether it would effectuate the policy of the Act
to overrule the Acting Regional Director 's approval of the stipulation for certifica-
tion upon consent election and dismiss the petition in the RD case. I believe it
would be inappropriate for me to make a gratuitous recommendation with respect
to the appropriateness of the Board undertaking consideration of this question or
with respect to how the question should be determined, were it to be considered.
Upon the basis of the foregoing findings of fact, and upon the entire record in this
proceeding , I make the following:
CONCLUSIONS OF LAw
1. The Respondent is engaged in commerce within the meaning of Section 2(6)
and (7 ) of the Act.
2. The EA is a labor organization within the meaning of Section 2 ( 5) of the Act.
3. By implanting in the mind of an employee the idea of organizing a movement
to decertify a union which is the recognized bargaining representative for the unit
of which said employee is a member, encouraging him to take such action , and ad-
vising him of the initial steps to take , Respondent did initiate such a movement and
thereby has interfered with employees in the exercise of their statutory rights within
the meaning of Section 8(a) (1) of the Act.
4. The aforesaid unfair labor practice affects commerce within the meaning of
Section 2 ( 6) and (7) of the Act.
5. None of the allegations of unfair labor practices set forth in paragraphs
numbered 9 and 10 of the complaint herein has been sustained.
6. The allegations set forth in paragraph numbered 8 have been sustained to the
extent of the finding in paragraph numbered 3 hereinabove.
[Recommendations omitted from publication.]
McCormick Construction Company and Joseph Hender
Local Union 542, International Union of Operating Engineers,
AFL-CIO and Joseph Hender. Cases Nos. 4-CA-1670 and
4-CB-421. March 15, 1962,
SUPPLEMENTAL DECISION AND ORDER
On March 23, 1960, the Board issued its Decision and Order in the
above-entitled proceeding,' finding that the Respondent Company and
the Respondent Union had engaged in and were engaging in certain
unfair labor practices violative of Section 8(a) (3) and (1) and
Section 8 (b) (2) and (1) (A) of the Act, respectively. In brief, the
Board found that the Respondents entered into and maintained a
hiring arrangement which failed to contain certain safeguards re-
quired by the Board as set forth in its Mountain Pacific decision.2
In addition, the Board found that the Respondents by maintaining
and enforcing this arrangement discriminated against Joseph Render.
1126 NLRB 1246 . ( Member Fanning not participating.)
2Mountain Pacific Chapter of the Associated General Contractors , Inc., et at., 119
NLRB 883.
136 NLRB No. 33.