The Morse Instrument Co.

National Labor Relations Board - Board Decisions

Jun 24, 1966

159 N.L.R.B. 1353 (N.L.R.B. 1966)

THE MORSE INSTRUMENT CO. 1353
I find that by the picketing of Decorators' premises the Respondent has engaged
in unfair labor practices within the meaning of Section 8(b)(4)(i) and (ii)(B)
of the Act.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The activities of the Respondent set forth in section III, above, occurring in
connection with the operations of Decorators, Anderson, and General have a close,
intimate, and substantial relation to trade, traffic, and commerce among the several
States and tend to lead to labor disputes burdening and obstructing commerce and
the free flow of commerce.
V. THE REMEDY
Having found that the Respondent has engaged in unfair labor practices violative
of Section 8(b)(4)(1 ) and (n)(B ) of the Act, it will be recommended that it cease
and desist therefrom and take certain affirmative action to effectuate the policies of
the Act.
On the basis of the entire record in the case, I make the following-
CONCLUSIONS OF LAW
1. The Respondent is a labor organization within the meaning of Section 2(5)
of the Act.
2. Decorators, Anderson, and General are persons engaged in commerce or in
an industry affecting commerce within the meaning of Sections 2(6) and (7) and
8(b)(4) of the Act.
3. By inducement and encouragement of employees of Anderson and General,
and by threatening, coercing, and restraining. Decorators in both instances with
the object of forcing or requiring Decorators to cease doing business'"with -Bevel or
Powers or other carpet installers, the Respondent 'has engaged in unfair labor prac=
tices within the meaning of Section 8(b)(4)(1) and (ii) (B) 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:;
'[Recommended Order omitted from publication.] ' ' • "' -
The Morse Instrument Co. and International Union, United Auto-
mobile, Aerospace and Agricultural , Implement Workers- of
America, AFL-CIO. Cases 8-CA-4006 and 8-RC-6034.- June 24,
1966 _
DECISION, ORDER, AND DIRECTION OF
SECOND' ELECTION
On April 15, 1966, Trial Examiner William W. Kapell issued his
Decision in the above-entitled proceedings, finding that the Respond-
ent had engaged in certain unfair labor practices alleged in the com-
plaint and recommending that it cease and desist therefrom, and take
certain affirmative action. The Trial Examiner also found-that the
Respondent had not engaged in certain other unfair labor practices
alleged in the complaint, and recommended that these allegations be
dismissed. In addition, the Trial Examiner found that the Respond-
ent had engaged in objectionable conduct prior' to ,the election held
in Case 8-RC-6034, and recommended that the said' election be
set aside and a new election ordered, all as set forth in the attached
159 NLRB No. 117.
b
1354 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Trial Examiner's Decision. The Respondent filed exceptions to the
Trial Examiner's Decision and a brief in support thereof.
Pursuant,to the provisions of Section 3(b) of the National Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with ' these cases to a three-member
panel [Chairman McCulloch and Members Jenkins and Zagoria].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and brief, and the entire record
in these cases, and hereby adopts the findings, conclusions, and recom-
mendations of the Trial Examiner.'
[The Board adopted the Trial Examiner's Recommended Order.]
[The Board set aside the election in Case 8-RC-6034.]
[Text of Direction of Second Election omitted from publication.]
'These findings and conclusions are largely based upon credibility determinations of the
Trial Examiner , to which the Respondent has excepted, alleging that the Trial Examiner
was biased and prejudiced . We find this contention without merit Our review of the
record in these cases leads us to the conclusion that the Trial Examiner 's credibility find-
ings are not contrary to the clear preponderance of all the relevant evidence. Accord-
ingly, we find no basis for disturbing the Trial Examiner 's credibility findings in these
cases. Standard Dry Wall Products , Inc., 91 NLRB 544, enfd . 188 F.2d 362 (CA. 3).
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS
TO ELECTION
STATEMENT OF THE CASE
Case 8-CA-4006, a proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was heard before Trial Examiner
William W. Kapell in Akron, Ohio, on January 11, 1966,1 with all parties partici-
pating pursuant to due notice on a complaint 2 issued on October 22, by the
Regional Director of Region 8 of the National Labor Relations Board, hereinafter
called the Board, alleging violations of Section 8(a)(1) of the Act by The Morse
Instrument Co., hereinafter called the Respondent. The complaint, in substances,
alleges that Respondent interfered with, restrained, and coerced its employees in the
,exercise of rights guaranteed by Section 7 of the Act, by interrogating and threat-
ening them with economic reprisals, and engaging in surveillance of their union
activities. In its duly filed answer Respondent denied any violations of the Act.
As appears infra, the Union also filed objections to conduct affecting the results
of an election held on September 2, in Case 8-RC-6034. Pursuant to a directive
of the Board, the Regional Director issued an order on December 2, whereby cer-
tain of these objections were consolidated for hearing with the hearing in the
above-described complaint case. The resolution of the matters involved in the
-"RC" proceeding appear hereinafter under the heading "The Objections to the
Election."
All parties were represented and afforded full opportunity to be heard, to intro-
duce relevant evidence, to present oral argument, and to file briefs. General Coun-
' All dates hereinafter refer to the year 1965 unless otherwise noted.
9 Based on a charge filed on September 9, by International Union, United Automobile,
Aerospace and Agriculture Implement Workers of America, AFL-CIO, hereinafter referred
ito as the Union.
THE MORSE INSTRUMENT CO. 1355
-sel and Respondent filed briefs which have been duly considered. Upon the entire
record in the cases and from my observation of the witnesses, I make the following:
FINDINGS OF FACT
I. BUSINESS OF RESPONDENT
Respondent, a corporation duly organized under and existing by virtue of the
laws of the State of Ohio, at all times material herein, has maintained its principal
office and place of business in Hudson, Ohio, where it has been engaged in the
manufacture and sale of marine engine controls and related products. Annually,
Respondent, in the course and conduct of its business operations in Hudson, Ohio,
-ships its finished products valued in excess of $50,000 directly to points outside
the State of Ohio. Respondent admits, and I find,; that at all times material herein
it has been engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that the Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The alleged interference, restraint, and coercion
During, August the Union was engaged in an organizational campaign at
Respondent's plant. Pursuant to aistipulatipn for certification upon consent election
a representation election was -set for, September 2. It is alleged that commencing
on or about August 3 and continuing thereafter to on or about September 1,
Respondent engaged in unfair labor practices constituting violations of Section
8 (a) (1) as hereinafter related.
1. The alleged violative interrogation and threats of economic reprisals
The complaint alleges that Respondent, through Personnel Manager and Plant
Security Officer Ernest Stone, Assembly Foreman Julius Hunka, Machine Shop
Foreman Dan Zorich and Foundry Foreman Chester Massic 3 interrogated its
,employees concerning their union membership, activities, sympathies, and affilia-
tion. The evidence pertaining to the alleged interrogation and threats of economic
reprisals is as follows:
Ray Edward Hutchinson was employed in the' assembly department from
approximately March 1962 to December 30, 1965. During August his foreman,
Iiunka, engaged him in conversation in which he asked what he thought of the
Union and what decision he had made regarding it. When Hutchinson replied that
he had made no decision about it, Hunka described the benefits offered by the
Company without a union, told him to take his time and to think it over during
the weekend, and then to let him know. A few days later when ,Hutchinson visited
Hunka in his office in connection with his work, Hunka, inquired whether he had
reached a decision and what he thought of the entire matter. Hutchinson replied
that after considering it he decided to vote against the Union .4 '
8 Respondent's answer admits the supervisory status indicated for the above-named em-
ployees, and also those indicated for other employees as hereinafter designated.
* The above findings are based upon the testimony of Hutchinson. On cross-examination
Hunka at first denied ever having any conversation with employees concerning the Union,
but later admitted' that during the last week in August several employees in his depart-
ment asked him what he thought of the Union, and that he made no reply and remained
silent. He explained his silence by stating that he was not qualified to answer their ques-
tions but admitted that he did not convey any reason to them for remaining silent. He
also asserted that he had a conversation with Hutchinson during the latter part of
August in which he discussed Hutchinson's absence on a number of Thursdays and Fri-
days, which Hutchinson claimed was due to the fact that he was making up time he missed
in the [Military] Reserves, and was unable to foretell how many more days he would
miss but would let him know later ; and that in a subsequent conversation Hutchinson again
advised him that he was unable to predict how many more days he would have to miss be-
cause of his military obligations. Based on the demeanor of the witnesses and the evasive
conflicting testimony of Hunka concerning his conversations with employees about the
Union, I credit the testimony of Hutchinson as related above.
1356 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
During August, Hutchinson approached Stone for some forms to apply for sick
leave taken because of a virus infection, which had to be signed by a doctor before
Hutchinson could qualify for sick leave insurance While discussing Hutchinson's
sick benefits, Stone explained the advantages offered by the Company without a
union, and stated that he did not think the Union was a good idea . He then asked
Hutchinson what he thought of the company [sick leave] plan, to which he replied
that it was a good one.5
Ralph Mt. Joy has been employed on the assembly line since April 29 under the
supervision of Foreman Hunka. During the latter part of August, Hunka
approached him while he was working and asked whether he had made up his mind
as to how he decided to vote in the election and what he thought of it. He replied
that he had not made up his mind , as yet , and they then discussed the company
benefits, during the course of which Hunka stated that he would rather not have
the Union in, and that he thought there would be a drop in working hours from 9•
to 8 hours a day in the event the Union came in . At that time the employees were
working on a daily 9 hour shift, which included 1 hour of overtime paid for at the
rate of time and a half. Following his conversation with Mt. Joy, Hunka
approached employee James D'Angelo, who worked about 3 to 6 feet away from
Mt. Joy, who overheard Hunka asking D'Angelo what he thought about the Unions
Kenneth Herbert Roach was employed from May 4 to the middle of November
Sometime after August 3, Stone in a conversation with Roach asked whether he
thought the Union was going to get in. When Roach stated that he thought it
would, Stone then inquired why he wanted the Union. Roach responded that after
weighing both sides he thought it would be for the best to have the Union. Stone
then pursued the matter by asking what he thought he could get out of the Union
and what did the Union promise him to which Roach replied that the Union did
not promise him anything, but that he could not afford hospitalization 'and with
three children he needed it. Stone then commented that when Highway Products
went out on. strike they did,not accomplish anything, and "if we got the Union in
that we would more than likely go on a strike because they couldn't 'give into the
Union's demands." 7
Thaddus Augustyn, who is presently employed by Respondent, was operating a
drill press during the latter half of August when Stone approached him at his work
station and said that he had heard the employees' were going to vote for the Union.
He then related the advantages offered by the Company and, some of the disad-
vantages if the'Union got in, pointing ' out that "we have a nice ,frienly atmosphere
in the shop now. We wouldn't' want it spoiled if the Union" got in and ruined
relationships between' the employees and the employer . Highway Products
was on strike a lot of times of the year. That was one of the disadvantages of the
" 8Union.
Employee Nick Boliich testified without contradiction that, " in a conversation
with Foreman Zorich, he was asked whether he was one of the organizers and
6The above findings ' are based upon the credited testimony of Hutchinson. Stone
admitted talking to Hutchinson about the insurance for his sick leave but denied discuss-
ing the Union with him.
6 Hunks, denied asking Mt . Joy if he had made up his mind as to how he was going to
vote ; mentioning any possible change in daily working hours ; or talking to D'Angelo
about the Union. Based on the demeanor of the witnesses , the testimony ' of Mt. Joy as
related above is credited.
' These findings are based on Roach's credited testimony . Stone testified that on one
occasion he engaged in a conversation with Roach while they were walking to the paint
shop when he noticed union literature sticking out of Roach's pocket and asked for a copy ;
that ' Roach gave him one and then said he had been going to union meetings ; that after
he assured him it was his right to do so , Roach asked whether a union was good for them
to which he replied that a 'union would not be good for the Company. Stone also denied
that he ever said there would probably be a strike if the Union got in.
6 The above findings are based upon , the credited testimony of Augustyn . Stone testified
that he asked Augustyn what he was doing to which he replied , "Well, it is coming to a
vote," that he realized immediately what Augustyn meant and replied , "Yes, it is true It
will be decided when we have a vote. " Stone admitted that he told him "we have a
friendly atmosphere ," but that this remark was made as part of orientation with all new
employees , and had no connection with the Union . He also denied telling Augustyn that
there was a possibility of a strike if the Union got in.
THE MORSE INSTRUMENT CO. - ' ' 1357
why he felt the Company needed a union; that Zorich stated he was curious, and
that he, Bobich, replied that they needed more money, better working conditions
and privileges.
Billy Joe Williams, who is presently employed by Respondent, was working
temporarily in the foundry department in the latter part of August filling in on
vacation. During that period as he was walking by Foundry Foreman Chester
Massic he was asked, "Are you ready to come back to the, foundry." Williams
replied, "No," and added, "I wouldn't mind going back to working over there if I
was going to stay over there. But I don't like being shifted around . . . because
about the time I learn my job in one place I would" be transfeired to the other
job." Massic smilingly replied "Well, vote no and I 'won't bother you any more,"
and walked off.9
Conclusions
As related above (1) Hunka not only interrogated Hutchinson about how he
felt toward the Union, but also asked him to report back when he reached a deci-
sion in the matter; (2) Hunka interrogated Mt. Joy as to how, he was going to
vote and also told him that he thought the daily overtime work would be elimi-
nated; (3) Stone interrogated Roach about what he thought about the Union and
why he wanted the Union; referred to the strike at Highway Products, which
accomplished nothing; and stated that if the Union came in there more than likely
would be a strike because the Company would be unable to comply with the union
demands, (4) Stone, after advising Augustyn that he had heard the employees
were going to vote for the Union, pointed out the company benefits and stated
that the friendly atmosphere in the plant and the relationship between the employ-
ees and the employer would be ruined by the advent of the Union, and also referred
to the strike situation at Highway Products as one of. the disadvantages of having
a union; (5) Zorich interrogated Bobich as to whether he was. one of the union
organizers and. why they needed a union, commenting that he was curious, and (6)
Massic told illiams to vote "no" to avoid being. transferred from one department
to another.
Respondent contends that the conversations involving the alleged, interrogation
occurred in a context and atmosphere free of any suggestion of intimidation under
circumstances which satisfied the standards prescribed by the courts 10 in permitting
such interrogation; and that furthermore, they constituted lawful antiunion cam-
paigning protected by the free speech doctrine under Section 8(c) of the Act.
To fall,within the ambit of Section 8(a)(1), either the words themselves or the
context in which they are used must suggest an element of-coercion or interference.
Even if all the conditions enumerated in the Bourne and Posner cases were satis-
fied, intimidation may nevertheless occur. The Employer must have a valid pur-
pose for obtaining information concerning the Union and must communicate this
purpose to the employees and also assure them that no reprisals will be taken.
Questioning is much more likely to have a coercive effect if the purpose of the
interrogation is not explained and if there is no assurances against retaliation."
The Respondent correctly cites the case of Blue Flash Express Inc.,12 for the doc-
trine that interrogation per se is not unlawful. However, the Board in that case
merely rejected the doctrine that interrogation is per se unlawful, and held that
where it is clear from the record that the only purpose was to ascertain whether
a union demanding recognition actually represented a majority, interrogations
could' be legitimate, provided that they were communicated to the employees with
assurance against reprisals and provided that the questioning occurred in a back-
ground free from hostility to unions. See Burke Golf Equipment Corporation, 127
NLRB 241, 245. Thus, in Koch Engineering Company, Inc., 155 NLRB 272,
the Board held that questioning of employees concerning their union sympathies
during a union campaign for no justifiable' purpose served to impress upon the
9 These findings are based on the undenied testimony of Williams
10 Citing the cases" of Bourne Co. v. N.L.R.B , 332 F.2d 47 ( CA. 2) and 'N L.R B V.
I. Posner Inc., 342 F.2d 826 (C.A. 2 ). Aside from any other factors involved in the Posner
case, it is pertinent to note that the court stressed the fact that only an isolated instance
of interrogation occurred in an amicable atmosphere ' at the home of the employee by a
supervisor who had a close personal relationship with the employee. -.
u Martin Sprocket & Gear Co. v. N.L R.B , 329 1F 2d 417 (C.A. 5).
12109 NLRB 591. 1 -
1358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees their employer's hostility to union organization and restrain them in the
exercise of their organizational rights, and that this was "true despite the absence
of accompanying overt threats or coercive statements." In the instant case the-
employees were neither informed as to the purpose of the interrogation nor were,
any assurances given against reprisals.
Respondent also contends that its discussions with employees were protected'
as free speech under Section 8(c), -urging that it was simply engaging in legitimate
campaigning against the Union. Even assuming that its sole purpose was to engage
in antiunion campaigning, it, however, transgressed the lawful limits of permissive
campaigning. In the discussions with employees its supervisors not only described
the advantages employees enjoyed without a union, but also interrogated them
concerning ° the Union, and, as appears infra, threatened or implied economic
reprisals if the Union won the election. Regardless of whether or not certain ele-
ments of these conversations are considered permissive campaigning, they do not
immunize the violative interrogation or threats of economic reprisal.
Respondent also contends that General Counsel failed to sustain the charge that
it threatened its employees with economic reprisals if the Union was voted in. It
asserts that Massic's remark to Williams was intended to be facetious, and that it
was incumbent upon General Counsel to establish that his remark was said in a
serious vein. Certainly the subject matter was a serious one, especially at the time
of its utterance in view of the forthcoming election. Moreover, the words per se
contained a threat. If Respondent wished to establish the jocular nature of the
comment and to efface any serious overtones, it failed to avail itself of the oppor-
tunity to do so. Having failed to sustain the burden of proof in that regard I find
that its argument lacks merit. Respondent also submits that Hunka's statements
to Mt. Joy concerning the reduction in overtime work were nothing more than
personal opinion or a prophecy, which are protected by the free speech doctrine.
Even assuming that Hunka's statement as to the economic consequences of a union
victory at the election could be construed as a bona fide prophecy, it nevertheless
is violative of Section 8(a)(1) because of its inherent tendency to interfere with
employees in their guaranteed rights. It is the tendency of an employer's conduct
to interfere with those rights rather than his motive which is controlling. "Employ-
ees are not likely to miss the inference that the source of benefits now conferred
is also the source from which future benefits must flow and which may dry up if
it is not obliged." N.L.R.B. v. Exchange Parts Company, 375 U.S. 405, 409. Fur-
thermore, statements to.employees made during a period when unionization of the
employees is sought to be effected, must be regarded as coercive, notwithstanding
sincere belief that such result would follow. United Fireworks Mfg. Co. Inc., 252
F.2d 428, 430 (C.A. 6).13 Moreover, even if Hunka's statements were not explicit
threats, they are violative of Section 8(a)(1). The Act condemns implied, or
veiled threats if they could be reasonably so construed, as well as expressed threats
of reprisal. See N.L.R.B. v. Electric Steam Radiator Corporation, 321 F.2d 733,
736 (C.A. 6).
Viewing the entire record and, in particular, the timing of the events in the
context of an approaching representation election, I conclude that Respondent's
interrogation of its employees concerning the Union and its threats of economic
reprisal contingent upon the advent of the Union, could have no other effect than
to impede. and coerce its employees in the exercise of their statutory rights in vio-
lation of Section 8(a)(1). Daniel Construction Co. v. N.L.R.B., 341 F.2d 805,
813 .,(C.A. 4); N.L.R.B. v. Economy. Food Center, 333 F.2d 468, 470 (C.A. 7).
2. The alleged surveillance
The complaint supplemented by General Counsel's Bill of Particulars alleges
that from on or about August 20 to on or about September 1, Respondent through
Vice President Bruce Moore, Plant Manager Clark Applegate, and Cable Depart-
ment Foreman Al Smith kept the activities of the Union under surveillance by
simultaneously observing employees and/or union representatives distribute union
literature and/or campaign material to employees as they were leaving the plant
at the end of their day shift on August 23, 25, 27, and 30 and September 1 at,
Respondent's loading dock, loading area and employee parking lot. It was stipu-
13 See also International Union of Electrical Workers (NECO Electrical Products Corp.)
v. N.L.R.B., 289 F.2d 757, 763 (C.A.D.C.) where the court held, "It is well settled that an
employer's `prediction' of untoward economic events may constitute an illegal threat if
he has it within his power to make the prediction come true."
THE MORSE INSTRUMENT CO. 1359
lated that the union campaign literature was distributed by the employees and
union representatives on August 25 and 30 and September 1, and that on
August 27 and 31 it was distributed by members of the Union's Local 296. It was
further stipulated that on the five occasions on which union literature distribution
was made it was done with the permission of Respondent granted pursuant to the
Union's request. It was also established that Stone, in his capacity as security
officer, and a guard stationed themselves at the head of the steps leading to the
loading platform at all times when union distribution of literature was made for
the purpose of keeping out unauthorized people. General Counsel, however, con-
ceded-,.that Stone's surveillance of the distribution of union literature was proper
and lawful activity'on the part of Respondent, and not violative of ;the Act.
The alleged surveillance occurred at that part of the plant where the loading
dock, the steps leading to the dock, the car parking area and the main gate are
located.14 The evidence concerning the surveillance is as follows-
Employee Nick Bobich testified that he witnessed the distribution of the union
literature by company employees on three occasions. On the first occasion he and
Union Representative Grady were standing in front of the steps leading up to one
end of the loading dock and handing literature to the employees as they descended
the steps, when he noticed Vice President Bruce Moore and Cable Department Fore-
man Al Smith standing together in the doorway on the loading dock between their
offices, and Plant Manager Clark Applegate standing at the far end of the loading
dock, all of whom were watching the distribution. On the second and third occa-
sions he noticed Smith and Applegate were standing at the same places, except
that Applegate was half in and half out of the shipping office doorway, and Moore
had walked to his parked car where he received a union pamphlet upon his request,
and then left the premises.
Employee William Forrest Evitts testified that as he came out of the building,
he noticed Moore, Smith, and Applegate on the loading dock while literature was
being passed out, and that he then walked to the other end of the loading dock
where he joined the union representative in distributing campaign literature and
from where he was unable to see the company representatives. He also testified
that it was not the practice of the supervisors and foremen to stand on the park-
ing lot around the dock when the employees left for home at the end of their shift,
and that he never noticed Smith, Applegate, or Moore station themselves on the,
dock and watch the men go home prior to or following the period when union
literature was being distributed.
Moore testified that on two 'occasions he observed the' distribution of union liter-
ature, on one of which, Bobich handed him a pamphlet at the bottom of the steps
leading up to the loading dock, and on the other occasion he was driving through
the main gate and noticed Union Representative Bishop distributing literature. He
testified further that it was his practice upon leaving the plant at 4:45 p.m. at the
end of the day shift to stop and talk to Smith for a few minutes concerning how
things went that day, and then to wait for traffic to leave the parking area before
driving off in his car, which was parked at the corner of the loading dock near
the steps.
Smith testified that he observed the distribution of the union literature when-
ever it took place. He also testified that it was his practice to station himself at the
door on the dock when leaving the plant and to, wait for the employees in his
department, to ring (the timeclock) and leave, following which he -picked,up. their
timecards from the rack and left them on his desk for processing the following
morning.
Applegate testified that he observed the distribution of union literature on three
occasions: the first time as he was getting into his car when he noticed unusual
activity at the end of the dock by the steps; the next occasion when he went to the
main office and had to go through the main gate and there saw three people hand-
ing out literature, a copy of which he received upon his request; and on the third
occasion while he was waiting for his daughter, who also worked at the plant, when
he noticed people distributing literature at the gate.
Conclusions
The evidence clearly establishes that Respondent's Supervisors Moore, Smith, and
Applegate witnessed the distribution of union campaign literature, and were
"See Joint Exhibits 1 and 2, photographs of the area with appropriate markings in-
dicating the location of the pertinent points.
1360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observed by the employees. The evidence, however, is in direct conflict as to
whether these supervisors merely happened to observe the distribution because they
were engaged in their usual routine activities, or whether they stationed themselves
at particular locations or controlled their movements for the purpose of engaging
in surveillance of union activities. Based on the demeanor of the witnesses, I find
that the Company's representatives did not consciously control their movements at
the end of the work shift for the purpose of engaging in surveillance of union
activities, and that their observation of such activities was purely incidental to their
usual activities. In reaching this conclusion, I- am influenced to some extent by
the fact that Security Officer Stone, who is also personnel manager, was present at
all times when distribution was made, and was in a position to engage in surveil-
lance without the necessity of having any other company officials implicate them-
selves in this matter. I, accordingly, conclude that General Counsel has failed to
establish by the preponderance of the evidence that the Respondent engage in sur-
veillance of union activity, as alleged, and I shall recommend that such allegations
,of the complaint be dismissed.
B. The objections to the election
Case 8-RC-6034
Pursuant to a stipulation for certification upon consent election executed by the
parties on August 13, an election was conducted in the above-entitled proceeding on
September 2. Upon the conclusion of the election, a tally of ballots indicated that
there were approximately 143 eligible voters and that 142 ballots were cast, of
which 52 were for the Petitioner (Union), 89 were against the Petitioner, and 1
was challenged. On September 9, the Union filed timely objections to the election.
Following an, investigation of the objections, the Acting Regional Director issued
a report on October 27, in which he recommended to the Board that certain of
the objections be, overruled because they lacked merit; that objections 2, 6, and 8
insofar as it encompassed conduct referred to in 2 and 6, raised issues which could
best be resolved at a hearing; and that such hearing be consolidated with the hear-
ing in Case 8-CA-4006, which involved some of the same issues involved in objec-
tions 2 and 6.. On November 8 the Petitioner filed exceptions to the Acting
Regional Director's recommendation with respect to certain objections. There-
after, on November 29, the Board issued an order overruling certain objections;
reserving ruling on other objections; and directing a hearing on objections 2, 6,
and 8 insofar as it encompassed matters referred to in 2 and 6; which may be con-
solidated with any hearing in Case 8-CA-4006 to be held before a Trial Exam-
iner , who shall prepare a report containing resolutions of the credibility of wit-
nesses, findings of tact, and recommendations to the Board as to the disposition
of said issues.
The objections on which the Board ordered a hearing are:
Objection 2. "[The Employer] Continually and ostentatiously maintained sur-
veillance of union organizers and members of the UAW-Morse Instrument orga-
nizing committee."
Objection 6. "[The Employer] Through its supervisory personnel interrogated
individual employees in such a manner as to intimidate them in the exercise of
their right to self-organization."
Objection 8. "[The Employer] By a combination of all the foregoing created
an atmosphere of anti-union hostility which prevented and made impossible col-
lective bargaining and a free election." The Board in its order directed a hearing
on objection 8 only insofar as it encompassed matters referred to in 2 and 6.
Thus, it is apparent that the objection to the election on, which a hearing has
been ordered relate essentially to the said conduct with which Respondent was
charged in the complaint case. Having found that Respondent engaged in viola-
tions of Section 8(a)(1) as hereinabove related, it follows, as the Board has con-
sistently held,15 that such conduct a fortiori interfered with the exercise of a free
and untrammeled choice in the election held herein. I, accordingly, find merit in
and sustain objections 6 and 8 insofar as it encompassed matters referred to in 6,
and I shall recommend that the representation election held herein be set aside.
Upon the basis of the foregoing findings of fact and upon the entire record in
the case I make the following:
u Playekooi Manufacturing Company, 140 NLRB 1417, 1419; Dal-Tex Optical Company,
137 NLRB 1782, 1786; Ideal Baking Company of Tenneaaee Inc., 143.NLRB 546, 552-553.
THE MORSE INSTRUMENT CO. 1361
CONCLUSIONS OF LAW
1. By interfering with, restraining, and coercing its employees in the exercise of
rights guaranteed in Section 7 of the Act, Respondent engaged in unfair labor
practices proscribed by Section 8(a)(1) of the Act.
2. The aforesaid unfair labor practices affect commerce within the meaning of
Section 2(6) and (7) of the Act.
3. Respondent's conduct as found hereinabove improperly affected the results
of the election.
4. Respondent did not engage in unfair labor practices'based upon surveillance
of union activities as alleged in the complaint.
THE REMEDY
Having found that Respondent engaged in certain unfair labor practices, 'I shall
recommend that it cease and desist therefrom and that it take certain affirmative
action of the type which is conventionally ordered in such cases as provided in the
Recommended Order below, which I find necessary to remedy and to remove the
effects of the unfair labor practices and to effectuate the policies of the Act.
As I have found that Respondent's conduct improperly affected the results of
election, I shall recommend that the election be set aside and that another election
be conducted.
Upon the basis of the foregoing findings of fact and conclusions of law and the
entire record and pursuant to Section 10(c) of the Act, I hereby issue the following:
RECOMMENDED ORDER
The Morse Instrument Co., its officers, agents, successors, and assigns shall:
1. Cease and desist from:
(a) Interfering with, restraining, or coercing its employees in the exercise of
their statutory rights within the meaning of Section 8(a)(1), by coercively interro-
gating them about union matters, and threatening economic reprisals in the event
the Union won the election.
(b) In any like or related manner interfering with, restraining, or coercing its
employees in the exercise of their rights guaranteed in Section 7 of-the. Act.
2. Take the following affirmative action:
(a) Post at its plant at Hudson, Ohio, copies of the attached notice marked
"Appendix." 16 Copies of said notice to be furnished by the Regional Director for
Region 8, shall, after being signed by Respondent's representative, be posted by
Respondent immediately upon receipt thereof, and be maintained by it for 60 con-
secutive days thereafter, in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps shall be taken by Respond-
ent to insure that said notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 8 in writing, within 20 days from
the date of the receipt of this Decision what steps the Respondent has taken to
comply herewith.17
IT IS FURTHER RECOMMENDED that the election which was conducted on Sep-
tember 2, 1965, be set aside and a new election be held at an appropriate time to
be fixed by the Regional Director.
IT IS FURTHER RECOMMENDED that the complaint herein be dismissed insofar as
it alleges violations of Section 8(a)(1) of the Act based upon Respondent's sur-
veillance of union activities.
le In the event that this Recommended Order is adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "the Recommended Order of a Trial
Examiner" in the notice . If the Board's Order is enforced by a decree of a United States
Court of Appeals, the notice will be further amended by the substitution of the words "a
Decree of the United States Court of Appeals , Enforcing an Order" for the words "a
Decision and Order."
17 1n the event that this Recommended Order is adopted by the Board, this provision
shall be modified to read : "Notify the Regional Director for Region 8, in writing , within
10 days from the date of this Order, what steps the Respondent has taken to comply
herewith."
243-084-67-vol. 159-87
1362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labor
Relations Board and in order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our employees that:
WE WILL NOT interfere with, restrain, or coerce our employees in the exercise
of the rights guaranteed in Section 7 of the Act by coercively interrogating
them concerning their union activities, or threatening economic reprisals in
the event that the Union wins the election.
WE WILL NOT in any like or related manner interfere with, restrain, or coerce
our employees in the exercise of their rights to self-organization, to form, join
or assist International Union, United Automobile, Aerospace and Agricultural
Implement Workers of America, AFL-CIO, or any other labor organization
to bargain collectively through representatives of their own choosing or to
engage in other concerted activities for the purpose of collective bargaining or
other mutual aid or protection or to refrain from any or all such activities.
All our employees are free to become or remain or to refrain from becoming
or remaining members of the above-named or any other labor organization.
THE MORSE INSTRUMENT CO.,
Employer.
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 720
Bulkley Building, 1501 Euclid Avenue, Cleveland, Ohio 44115, Telephone
621-4465.
The Brotherhood of Painters , Decorators and Paperhangers of
America, Local Union No. 585, Galveston, Texas, AFL-CIO and
Yndalecio Louis Narvaez. Case 93-CB-533. June 24, 1966
DECISION AND ORDER
On June 30, 1965, Trial Examiner Sydney S. Asher, Jr., issued his
Decision in the above-entitled proceeding, finding that the Respond-
ent had engaged in and was engaging in certain unfair labor prac-
tices and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. Thereafter, the Respondent filed exceptions to the
Decision and a supporting brief, and the General Counsel filed lim-
ited exceptions to the recommended remedy, and a supporting brief.
Pursuant to the provisions of Section 3(b) of the National. Labor
Relations Act, as amended, the National Labor Relations Board has
delegated its powers in connection with this case to a three-member
panel [Chairman McCulloch and Members Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
159 NLRB No. 98.