The Hurley Co., Inc.

National Labor Relations Board - Board Decisions

Feb 15, 1961

130 N.L.R.B. 282 (N.L.R.B. 1961)

282 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ference therewith arising from conduct which, in an unfair practice
proceeding, would also be held violative of the Act." This rational-
ization is just not logical. It says that unfair labor practices will
not be considered in an objections case, because it encroaches upon
the General Counsel's statutory authority; but it also says that, if
such conduct constitutes substantial interference with the election, it
will be considered in objections cases. If the Board's rule were to be
based upon the General Counsel's statutory authority in unfair labor
practice procedures, it seems to me that he has the same authority to
issue complaints with respect to all unfair labor practices. It cer-
tainly will never be clear under the majority position where the divin-
ing rod will find water and where it will not.
The Hurley Company, Inc. and International Brotherhood of
Pulp, Sulphite and Paper Mill Workers, AFL-CIO, Petitioner.
Case No. 26-RC-1392 (formerly 15-RC-3095). February 15,
1961
SUPPLEMENTAL DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
Pursuant to a Decision and Order Directing a Hearing issued by
the Board on May 13, 1960,' a hearing was held on June 29, 1960,
before Ray E. Breckenridge, hearing officer, at Camden, Arkansas, to
resolve the material and substantial issues of fact raised in connection
with Petitioner's objections Nos. 1 and 2 2 All parties appeared and
participated at the hearing. Full opportunity to be heard, to examine
and cross-examine witnesses , and to introduce evidence bearing on
the issues was afforded all parties.
On July 20, 1960, the hearing officer issued and served upon the
parties his report and recommendation attached hereto, in which he
found that the objections had merit, and recommended that they be
sustained and that a new election be held. The Employer filed timely
exceptions to certain findings and the recommendation of the hearing
officer.
The Board has reviewed the hearing officer 's ruling made at the
hearing and finds that no prejudicial error was committed. The
3 Not published in NLRB volumes.
2In the above Decision and Order the Board panel (Members Rodgers , Jenkins, and
Fanning ), in the absence of exceptions thereto, adopted pro forma the Regional Director's
recommendations that objections Nos. 3 and 5 be overruled , that objection No. 13 of the
challenged ballots be sustained , and 1 challenge be overruled . As to objection No. 4, in-
volving a preelection speech urging the employees to reject the Petitioner, the Board
found that the "statements contained therein, when read in the context of the speech as
a whole, were privileged expressions " and insufficient to interfere with the free choice of
the employees in the election.
130 NLRB No. 43.
THE HURLEY COMPANY, INC. 283
Board has considered the hearing officer's report, the Employer's ex-
ceptions thereto, and supporting brief, and hereby adopts the con-
clusions and recommendation of the hearing officer with the additions
and modifications noted below.
In adopting the conclusions of the hearing officer we are relying
not only upon his findings that certain employees were interviewed in
their homes and in the Employer's office for the purpose of urging
them to reject the Petitioner, but also upon his findings that at least
six employees were interrogated by the Employer regarding organiza-
tional and other matters at various places in the plant during the
critical period.3 In our opinion the combined interviews and discus-
sions in question were evidence of a systematic technique of inter-
viewing, and the cumulative effects of such interviewing interfered
with the employees' free choice in the selection of a collective-
bargaining representative." Accordingly, we shall adopt the hearing
officer's recommendation that the above objections be sustained, that
the election be set aside, and that a new election be held.
[The Board set aside the election.]
[Text of Direction of Second Election omitted from publication.]
MEMBERS DODGERS 5 and KIMBALL, dissenting :
We are unable to agree with the majority's adoption of the hearing
officer's findings and conclusions that the combined interviews and
discussions enumerated in his report , as well as others indicated by
the record, interfered with the free choice of the employees and that
the conduct described was sufficient to warrant setting the election
aside.
8 Although the hearing officer in making his recommendation apparently relied only
upon the interrogations of the Employer of William Waller, William Alexander, Kent
Ryden, and Lewis Alexander, his report and the record show that similar interrogations
took place with employees Herbert Olvey and George Elliott. We have considered and are
relying upon the interrogations with these latter two employees, as well as the Employer's
general admission that he interviewed a "substantial" number of employees in the unit
"either at the plant or various employees' homes."
4 ,See Peoria Plastic Company, 117 NLRB 545, 547. In its exceptions the Employer
contends that none of the employees interrogated were shown by the record to be in any
way coerced. We find no merit in this contention. It is well established that the test of
whether the individual employees involved were improperly influenced is not determined
from the subjective testimony of the employees involved, but whether it appears that on
the basis of all the objective circumstances, such as we have found here, the freedom of
choice of the employees could have been reasonably interfered with. See Pinkerton's
National Detective Agency, Inc., 124 NLRB 1076, 1077, footnote 3. San Diego Glass and
Paint Co, 117 NLRB 59, 61. Under the circumstances, we find it unnecessary to decide
whether or not such interrogations also involved direct or implied promises of benefits.
6 Member Rodgers, for the reasons stated in his dissent in Peoples Drug Stores, Inc.,
and Peoples Service Drug Stores, 119 NLRB 634, 637-638, and Plant City Welding and
Tank Company, 119 NLRB 131, 135, footnote 9, would further hold that the Employer
should have the same rights of free speech as the Union, and the mere urging of employees
to reject the Union in so-called loci of managerial authority or in the employee's home
regardless of the number involved should not be a basis for upsetting an election How-
ever, assuming the validity of the doctrine for purposes of this case, for the reasons set
forth herein, he is of the opinion that the majority has misapplied -the doctrine.
284 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The majority found that the Employer interrogated at least six
of the employees in the unit. Upon examination of these six "interro-
gations" we note that of the two employees called to the office, one
was called admittedly for a legitimate business reason and the other
was not in fact interrogated . All of the remaining took place, for
the most part , during working hours at the employees ' work areas,
or on their own time in an area in which they were accustomed to
being. In fact, two of the incidents in question involved conversa-
tions initiated by employees themselves . While we agree that in
two instances (Waller and Elliott ), the conversations went in some
aspects beyond a mere expression of Employer opinion, these instances
were in our opinion isolated and, under the circumstances , insufficient
to warrant setting the election aside s
In adopting the conclusions of the hearing officer the majority also
relied upon the latter 's findings that certain employees were inter-
viewed at their homes and in the Employer's office for the purpose of
urging them to reject the Petitioner . In finding these interviews to
constitute a basis for setting the election aside, we believe the hearing
officer misapplied the doctrine of Peoria Plastic Co .,' also cited by
the majority . This doctrine holds that where an employer engages
in a technique of calling upon all or a majority of the employees in
the unit, individually , in the employer 's office, or in their homes, such
conduct is sufficient to interfere with the free choice of a bargaining
representative , regardless of whether or not the employer's actual re-
marks are coercive in character . However, in the present case, unlike
Peoria Plastic Co., supra, the Employer's representatives admittedly
contacted in this manner only 6 of the 45 employees in the unit.
Accordingly , we conclude that the total conduct of the Employer's
representatives was insubstantial in its effect, if any, upon the em-
ployees' free choice in the election . Therefore , we would not set the
election aside but would, instead , certify the results.
6 See The Liberal Market, Inc., 108 NLRB 1481, 1485.
7 117 NLRB 545, 547, see also Mrs. Baird's Bakeries , Inc., 114 NLRB 444, 445-446
HEARING OFFICER'S REPORT ON OBJECTIONS TO ELECTION
Pursuant to a "Stipulation for Certification Upon Consent Election," executed on
November 20, 1959, an election was conducted by the Regional Director on Decem-
ber 3 , 1959, among certain employees at the Employer's Camden, Arkansas , plant.
At the conclusion of the election the parties were furnished with a tally of ballots
showing that there were approximately 45 eligible voters, that 57 ballots were cast
of which 15 were for Petitioner, 28 were against Petitioner , and 14 were challenged,
a number sufficient to affect the results of the election.
On December 7, 1959, Petitioner filed certain objections to the election. The
Regional Director thereafter investigated the challenges and the objections and on
March 4, 1960, issued and duly served upon the parties his report on challenged
ballots and objections to election , in which he recommended sustaining 13 challenges,
overruling 1 challenge by the Employer, and further recommended that certain of
Petitioner 's objections be sustained and the election set aside.
The Employer filed exceptions to the Regional Director's findings and recom-
mendations as to the objections.
THE HURLEY COMPANY, INC. 285
On May 13, 1960, the Board issued its order directing hearing, which order
directed that evidence should be taken at said hearing with respect to issues raised
by Petitioner's objections Nos. 1 and 2. Pursuant to the Board's order and the
Regional Director's order scheduling hearing, a hearing was held on June 29, 1960,
at Camden, Arkansas, before the hearing officer. The Petitioner and the Employer
together with the Regional Director were represented by counsel and were given
full opportunity to present evidence, to examine and cross-examine witnesses, and
to argue and set forth their positions orally and by written memorandum to the
hearing officer.'
Upon the entire record in the case, including counsel's arguments and testimony
of the witnesses, and from my observations of the demeanor and manner of the
witnesses , I make the following findings, conclusions , and recommendations as
directed by the Board's order.
FINDINGS OF FACT
Objections Nos. 1 and 2 form the basis for the hearing and, as they are closely
related, will be treated together. They read as follows:
Objection No. 1:
The owner of the plant, Mr. Wallace Hurley, and his son, Bill Hurley both
talked to individual employees in and about the plant, urging them to reject
the Union. This conduct was calculated to interfere with the free choice of
the employees, in the election.
Objection No. 2:
During these discussions with individual employees, the owner of the plant,
Mr. Wallace Hurley, and his son, Bill Hurley, interrogated the individual em-
ployees, made promises of benefit, and made coercive and intimidatory state-
ments to the individual employees.
Petitioner's Business Agent Wayne Glenn testified that on November 20, 1959, a
representation hearing had been scheduled in this matter, and that pursuant to such
scheduled hearing he and 10 to 15 of the employees in the unit concerned appeared
and were present at the time that the instant stipulation agreement was entered into
in lieu of the hearing. Glenn testified that after the matter of the election had been
thoroughly discussed and all matters agreed upon by the parties, but before the
stipulation agreement itself had been completed and executed, some rather heated
repartee took place between he and Employer Superintendent Bill Hurley in which
Hurley stated in a loud and angry voice audible to the employees present that the
Employer "already knew how 70 percent of them were going to vote and by the time
the election is held we will know how all of them are going to vote." Inasmuch as
Glenn further testified that shortly after this outburst, both parties executed the
stipulation agreement, and inasmuch as this particular matter was not treated specif-
ically by the Regional Director in his report on objections, I conclude that this matter
cannot be considered as basis for setting aside the election within the rule stated
by the Board in F. W. Woolworth Company.2
Wallace Hurley, Sr., president, general manager, and part owner of the Employer,
in his testimony admitted that between November 20, the date the stipulation agree-
ment was entered into, and December 3, 1959, the date of the election, he personally
interviewed individually a substantial number of the employees in the unit. Such
interviews were in addition to addressing all employees in a group during this period.
Hurley stated that though he "wouldn't say that I talked to a majority of them, . . .
I talked to a good many of them." Hurley stated that such individual interviews
were engaged in by him either at the plant or at various employees' homes.
Hurley admitted that during the 2-week period prior to the election he personally
visited four named employees at their homes and probably visited a fifth employee,
although he could not recall the fifth person's name. He testified that the purpose
of these visits to employees' homes was to discuss the coming election, to sell them
on the idea of the Company, and to encourage them to "vote with the Company."
Except for the above, no evidence was otherwise introduced pertaining to the exact
'Although there are several errors in the transcript (which was received on July 15),
one in particular should be noted. By telegram dated July 15, 1960, Petitioner by way of
motion moved that line 2, p 103, of the transcript where it states "November 13," should
read "November 30 " Counsel for General Counsel and counsel for Employer were given
copies of said telegram and counsel for General Counsel agreed to the correction. The
hearing officer's notes taken at the hearing confirm that the proper date stated was
November 30 The hearing officer hereby corrects the record accordingly.
2 109 NLRB 1446, 1447. See also The Great Atlantic & Pacific Tea Co., 101 NLRB 1118.
286 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
subject matter of said conversations with employees at their homes. Therefore, I
conclude that there is no evidence that coercive statements were made to such
employees by Hurley, Sr., during his visits to their homes.
Hurley also admits telephoning several of the "temporary employees" 3 on Decem-
ber 2 and 3, the purpose of which he stated was, "I wanted them to know that I was
interested in their voting for the Company," and to encourage them to appear at
the polls. Hurley denied or at least did not recall having telephoned any employees
other than temporary employees whose ballots were challenged.
Nevertheless, employee Shelby Drummond testified credibly that Hurley, Sr., had
telephoned her before the election on December 3 and encouraged her to come in
to vote, stating to her, "I hope you make the right decision." Drummond does not
appear to have been a "temporary employee" and her vote was not challenged.
Wallace Hurley also testified that during the preelection period he had interviewed
employee William Alexander at his office in the plant and admitted that during this
conversation the Union was discussed and under rigorous cross-examination admitted
that he had asked Alexander how the latter thought the "election was going to go."
Employee William Alexander testified credibly that just a few days before the
election he had telephoned Hurley at Hurley's request one evening after regular
working hours. Hurley, who was at his office in the plant, instructed Alexander to
"drop by the plant." Alexander obeyed these instructions and went to Hurley, Sr.'s
office that evening where Hurley interviewed him privately and initiated a discussion
about the impending election and generally discussed working conditions at the plant
and compared them with other union plants, Alexander testified without contra-
diction that Hurley asked him, "Why did the election come up like it did, why the
people pulled it without letting him know anything about it," and asked him "how
he thought the election was going to go." Alexander further testified that during
this afterhours' interview, after having enumerated the benefits the Employer pro-
vided for its employees, Hurley stated that if the Union got in, the Employer would
no longer retain employees when work in their classification became slack as he had
done in the past and that when regular employees were laid off they would have to
draw unemployment compensation rather than draw regular weekly wages from the
Employer as an advance against future overtime earnings. Under cross-examination
Alexander admitted that he could not definitely state with regard to the above two
benefits whether Hurley said he would not continue such benefits following a union
victory or would not be able to continue such procedures.
In this regard Hurley testified with regard to his conversation with William Alex-
ander that he did discuss the matters of advance pay and the Employer's practice of
retaining employees during slack periods by assigning them to various cleanup and
maintenance duties but stated that he merely compared this past practice with what
he understood to be the practice in other union plants. As to these two matters, I
conclude that they were discussed during this interview but cannot conclude that they
were specifically made the subject of a threat of loss of benefits conditioned on the
Union's election success although Alexander was left with that impression 4 It does
not appear any subject other than the impending election was discussed during this
interview.
Another employee, Levis Alexander, testified credibly that one evening a few
days prior to the election he was working in the darkroom at the Employer's plant
developing some pictures of his own.5 While alone in the darkroom that night
Wallace Hurley, Sr., entered the darkroom and engaged him in conversation relating
to the election campaign. Employee Alexander testified without contradiction that
Hurley asked him how he felt about the Union, to which he replied that he was
strictly in favor of the Union.6 Employee Alexander also testified without contra-
diction that during this conversation. Hurley, Sr., stated "that if the Union got
voted in, he would take it for granted that we didn't appreciate all he had done for us
and for the plant" and that he would not endeavor to increase his business or improve
his plant thereafter. Employee Alexander further testified that he and Hurley, Sr.,
discussed the pros and cons of the Union and that Hurley stated that bindery em-
'To wham challenges were sustained by the Regional Director
4 Employee William Alexander impressed me as being n completely honest and truthful
witness who did his best to answer all questions accurately Wallace Hurley , in com-
parison, was an evasive witness who throughout his testimony pleaded lack of recollection
or lack of knowledge.
s It appears the Employer permitted employees to utilize the company darkroom equip-
ment on their own time to develop and print personally owned pictures
"Hurley . Sr, admitted generally on cross-examination that lie "sometimes had asked
employees how they felt about the Union "
THE HURLEY COMPANY, INC. 287
ployees at the plant were being paid the standard union wage, that larger yearbook
companies weren't union, and he "didn't see why we should be."
Employee George Elliott testified that on November 25, about 10 to 15 minutes
before quitting time, Wallace Hurley, Sr., initiated a conversation with him where he
was working in the camera room of the plant. He stated that no one else was nearby.
Elliott stated that on that occasion Hurley, Sr., brought up the question of the election
and recounted briefly some of the benefits employees enjoyed under present prac-
tices. Hurley asked him "why he thought the employees wanted a union" and asked
him "if he felt that the reason was that some employees had been passed over for
advancement." Elliott stated that he agreed that employee security may have been a
factor and further stated that he told Hurley the employees were not so concerned
with "what he had done but what he could do."
Thereafter, on the morning of the election, Elliott testified that Hurley, Sr.,
stopped him in a hallway shortly before noon and told him, ",I believe we can
have all the things you say you want without a union." 7
Employee William Waller testified credibly that a few days before the election
while he was at work in the stripping room, he stopped Plant Superintendent Bill
Hurley 8 and stated to Hurley that he had heard rumors that the Company intended
to fire him due to his activities with the Union and asked Hurley if this rumor was
true. Hurley stated that it wasn't so but then asked Waller if he knew who did
start the Union, to which Waller stated in reply that "I don't know who started the
Union but if I did, I wouldn't tell you." To this, Hurley replied that he wanted to
talk to Waller some more about this but Waller did not recall any such further
conversation.9
Employee Waller testified that the day after the Employer's campaign letter had
been sent to employees,10 Wallace Hurley, Sr., engaged him in private conversation
in the negative room of the plant during working hours. Hurley inquired as to
whether he had received the letter and thereafter entered into a presentation of the
Employer's view much as previously expressed in the Employer's speech to em-
ployees and in the letter in which he recounted the history of the plant and benefits
presently enjoyed by employees. Waller testified that Hurley, Sr., then asked him
for his views about the reason for employee dissatisfaction. Following some dis-
cussion of this subject, Hurley, Sr., advised him that he had been building this
business and he wanted the business to expand and "when he got the business built
up that he intended to rectify conditions so that the employees wouldn't want a
Union." 11 Waller testified further that on the morning of December 3 Hurley, Sr.,
came to the entrance of the bindery where he was working and told him, "Bill, you
still have until 3 o'clock 12 to change your mind," to which Waller stated that he
asked Hurley if the latter knew how he was boing to vote, to which Hurley stated,
"No, but I think you are on the fence."
Employee Kent Hyden 13 testified credibly and without contradiction that he had
been telephoned by Superintendent Bill Hurley and requested to come to the plant
to discuss whether he would continue drawing regular wages as an advance or cease
"borrowing" in this fashion and rely on unemployment compensation. As a result,
Hyden stated he went to Superintendent Bill Hurley's office during the morning of
November 23 where they discussed the question of advance pay as opposed to unem-
ployment compensation in lieu thereof. Hyden stated that he asked Hurley, "If I
would draw unemployment compensation, would that hurt my status with the
7 On cross-examination Hurley, Sr., stated that though he remembers talking with Elliott
in the hallway, he didn't recall what he said. Therefore, I credit Elliott throughout.
8 Also referred to as Wallace Hurley, Jr.
6 This conversation was undenied as Superintendent Bill Hurley did not testify. There-
fore, I credit Waller.
70 Letter of December 1, 1959.
li Hurley, Sr., admitted having the conversation with Waller recounted above but stated
that as he recalled the conversation, he told Waller that "the Employer had good condi-
tions that did not require union representation and that as he got in better financial con-
dition it was their hope and desire to make these conditions better , to continue to improve
thein." Hurley admits having asked Waller what the reason for employee dissatisfaction
was. Therefore, I conclude on the basis of Waller's credible rtestimony that Hurlov told
Waller, in stating the Employer's opposition to having the Union, that the Employer
"intended to improve conditions in the future so that employees would not want a union."
This I conclude is an implied promise of benefit.
12 The time the polls opened.
13A regular employee, who voted without challenge in the election although in layoff
status, drawing "advance payroll" during the preelection period
288 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company," to which he stated Bill Hurley replied, "You know this thing that is
coming up within a week or so; we can better tell you after that." Hurley then
asked hun how he felt about "this thing that was coming up," to which Hyden
replied, "I have a lot of time to think about it while I am laid off." Although it
does not appear that the words "union" or "election" were specifically mentioned
during this conversation, Hyden stated that the only thing that could have been
referred to was this matter of the union election. I conclude that as the election
was held 10 days later, Hyden's inference from Hurley's conversation would seem
logical and reasonable and I draw the same inference.
Employee Herbert Olvey testified that during the week of November 30 he engaged
Wallace Hurley, Sr., in conversation at the plant during working hours. During
this conversation Olvey testified initially that he asked Hurley how far he could
progress if the Union didn't get in, to which he stated Hurley replied, "Eventually
you can work your way to $2 an hour." However, on cross-examination by Counsel
for General Counsel, he was shown an affidavit he had given a Board agent in
January 1960 and, after seeing the affidavit, stated that it was Hurley, Sr., who
stated, "If the Union doesn't go through you can work your way up to $2 an hour."
Employee Olvey indicated that he had been confused as to who had made the
statement but thought that it was Hurley, Sr. He further stated under examination
by General Counsel that Hurley, Sr., had said something to him about, "If the
Union would go through, that we could expect 100 an hour raise and then from
then on if you get a raise, it had to be through the Union," but was not sure whether
this statement was made during his individual conversation with Hurley or whether
this was a statement made by Hurley in his speech to the whole group of employees.
As to that portion of Olvey's account relating to whether he or Hurley, Sr., made the
statement conditioning the raise to $2 an hour upon the defeat of the Union, I
conclude that Olvey's confusion on this point was such that no definite finding can
be made either way regarding the author of that statement. However, Wallace
Hurley, Sr., himself testified that in his conversation with Olvey, Olvey had asked
him how far he could advance to which he replied that he could advance to $2
an hour in his present classification, which was a standard wage for a journeyman
binderman, and denies that he conditioned the advance to $2 an hour on anything.
He refused to say that there was no mention of the Union or the election during his
conversation with Olvey, only that the Union had nothing to do, in fact, with
whether Olvey would have progressed to $2 an hour. On cross-examination, how-
ever, Hurley admitted that progress to the $2 an hour rate was not necessarily
automatic and that the rate of progression would depend, in part, upon the
ability of the individual concerned and further stated that although such wage
schedules of advancement are normally worked out between the individual and
himself or his son, this was the first time Olvey had ever asked him about getting
a wage schedule. Also on cross-examination Hurley, Sr., stated that in his con-
versation with Olvey, he told Olvey that "The rumor was that if the Union got in,
they were promising a 100 an hour raise." Therefore, I conclude on the basis of
Wallace Hurley, Sr.'s testimony that the outcome of the union election was the
subject in his discussion with Olvey and that it was in this conversation that he
told Olvey that the Union was promising a 10-cent an hour raise rather than in
his speech. From that I further conclude that regardless of whether Olvey asked
the question of how far he would progress if the Union was unsuccessful, or whether
Hurley, Sr., himself made the statement that "If the Union did not get through
Olvey could raise himself to $2 an hour" the necessary inference in either event
would be that Olvey's wage scale would, in effect, be conditioned upon the outcome
of the election and with greater benefit accruing to him should the Union be de-
feated. In making this inferential conclusion, I rely on the fact that though Olvey
was confused on this point, he impressed me as having made every effort to recount
accurately and impartially the conversation which transpired between him and
Hurley, Sr. In contrast with Olvey's earnest endeavor to be accurate and impartial
in his testimony, Hurley, Sr.'s testimony was marked by consistent lapses of mem-
ory and a tendency to avoid specific answers or specific denials. Accordingly, inas-
much as much of Olvey's testimony is in fact corroborated by Hurley, Sr.'s, ad-
missions on cross-examination, I conclude that Olvey's version of this conversation
was generally accurate.
Conclusions
Decisions of the Board have consistently followed the theory that Employers
involved in a representation election should be permitted complete freedom to exer-
cise the uncoerced and unrestricted freedom of choice guaranteed them by the Act.
THE HURLEY COMPANY, INC. 289
The Board has held, moreover, that although the provisions of Section 8(c) of
the Act prevent the Board from treating as evidence of unfair labor practices the
so-called "privileged" expression of views, opinions, and predictions which contain
no threats of reprisals or promises of benefit, that the provisions of Section 8(c)
do not prevent the Board from finding in a representation case that an Employer's
expression of views, regardless of whether privileged under Section 8(c), may in
fact have so interfered with an employee's freedom of choice in an election so as to
require such election to be set aside.14
Again, it is well established that the Board will not attempt to examine the sub-
jective reaction of employees to alleged interference, but will concern itself with
whether the specific acts reasonably tend to interfere with the free choice of
representative.''
The Board has on frequent occasions held in setting aside elections that where
the conduct and statements of Employers, regardless of the coercive tenor of the
statements in themselves, establish a technique of expressing to employees individ-
ually its antiunion animus and encouraging a given election result, the use of such
a technique may reasonably be found to constitute interference with the requisite
"laboratory conditions" for the conduct of the election.
In this instance the Employer's president himself admits to have personally inter-
viewed individually a substantial number of employees in the unit in addition to
having delivered an antiunion address to assembled employees and the distribution
of letters to all employees to the same effect. The Employer himself admits visiting
the homes of five employees for the sole purpose of urging the Employer's position
and encouraging them to vote against the Union during the period immediately
preceding the election. I conclude that as part of the same program, Hurley, Sr.,
called at least one employee into his office at other than regular working hours for
the sole purpose of urging the Employer's position and encouraging a vote against
the Union. Hurley, Sr., again in privacy and at other than regular working hours,
interviewed still another employee with a view toward influencing the employee's
vote. In addition to this, the Employer telephoned other employees on the day of
the election to encourage their voting in accordance with the Employer's desire
and that at least one of these was an employee who voted without challenge. Thus,
at least 8 of the 45 eligible voters were individually interviewed in private at other
than normal working hours and work place by Wallace Hurley, Sr., with the object
of influencing their votes.
In addition to the activities of Hurley, Sr., in not only seeking out employees to
individually present the Employer's position, Hurley availed himself of every
possible opportunity to similarly present his position and make known his desire
as to the election result by discussing such matters with still other employees at
their work stations or any other time that opportunity presented itself.
The plant superintendent, Bill Hurley, similarly at times engaged in similar con-
duct. Therefore, I conclude that regardless of the coercive or uncoercive tenor of
the actual statements made by the two Hurleys, the evidence of a program of
individual interviews is clear, which technique I conclude, in and of itself, created
an atmosphere of coercion or interference with the employees' opportunity to
exercise free choice in choosing or not choosing a collective-bargaining representative
which warrants setting aside the election. Such a pattern or technique has fre-
quently been held by the Board to constitute grounds for setting aside an election.
Mrs. Baird's Bake, ies.16
The hearing officer further concludes that the interrogation of employees William
Walter, William Alexander, Kent Hyden, and Levis Alexander by Wallace Hurley,
Sr., and his son, Superintendent Bill Hurley, regarding their union sympathies and
the identity of the employee leader of the Union, during a period so closely preceding
the date of the election, constituted interference of a type sufficient to warrant setting
aside the election.17
[Recommendations omitted from publication.]
14 Hicks-Hayward Company, 118 NLRB 695
15 L C Ferguson, et al, d /b/a Shovel Supply Company, 118 NLRB 315-316; South-
eastern Motor Truck Lines, Inc, 112 NLRB 601, 604.
16 114 NLRB 444, 446; F N. Calderwood, Inc, 124 NLRB 1211; Peoria Plastic Com-
pany, 117 NLRB 545; Radiant Lamp Corp, 116 NLRB 40, 43, Carter-Lee Lumber Com-
pany, 119 NLRB 1374, and Jasper Wood Products Co., Inc., 123 NLRB 28
17 Lakeheld Manufacturing Co., 105 NLRB 952.
597214-61-vol. 130-20