Vitronic, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1970

183 N.L.R.B. 1067 (N.L.R.B. 1970)

VITRONIC, INCORPORATED 1067
Vitronic, Incorporated and United Rubber, Cork,
Linoleum and Plastic Workers of America,
AFL-CIO (United Rubber Workers ), Local Union
No. 825
Vitronic , Incorporated and E.C. Fagan and United
Rubber , Cork , Linoleum and Plastic Workers of
America , AFL-CIO (United Rubber Workers),
Local Union No. 825 . Cases 14-CA-5137 and
14-RD-312
June 25, 1970
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
By MEMBERS FANNING, BROWN, AND JENKINS
On February 17, 1970, Trial Examiner Eugene F.
Frey issued his Decision in the above-entitled con-
solidated proceeding, finding that Respondent had
engaged in and was engaging in one of the unfair
labor practices alleged in the complaint and recom-
mending the dismissal of the complaint in its en-
tirety on the ground that the unlawful conduct was
too minimal to warrant a remedial order. The Trial
Examiner also recommended that the decertifica-
tion election of May 12, 1969, be set aside and that
the Regional Director hold a new election at an ap-
propriate time.' Thereafter, the General Counsel
filed exceptions to the Trial Examiner's Decision
and a supporting brief, and Respondent filed cross-
exceptions and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
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, cross-ex-
ceptions, and briefs, and the entire record in the
case, and hereby adopts the findings, conclusions,
and recommendations of the Trial Examiner, as
herein modified.
The Trial Examiner found, and we agree, that
Respondent's vice president and plant manager,
Lester K. Wright, violated Section 8(a)(1) of the
Act 4 days before the election by his threat to iso-
late employee Norma Jean Boyles, a leading
protagonist of the Union, because of her critical
comments about her foreman's antiunion leaflet.
However, in view of our finding below that Respon-
dent engaged in further unlawful conduct, we do
not adopt the Trial Examiner's finding that Respond-
ent's threat to Boyles was too "isolated" or
"minimal" to justify a remedial order therefor.
The Trial Examiner found that certain changes in
working conditions proposed by Respondent on
June 4 and 5 and the "minimal actions in that
direction thereafter" were not in violation of Sec-
tion 8(a)(I) of the Act. We disagree.
The Union, which was certified by the Board in
1967 as bargaining agent of Respondent's em-
ployees at its Doniphan, Missouri, plant, negotiated
in August of that year a collective-bargaining con-
tract that expired on June 1, 1969.2 On March 12,
employee E. C. Fagan filed a decertification peti-
tion with the Board On March 19 and 26, respec-
tively, Respondent and the Union sent each other
letters terminating the contract. Following a Stipu-
lation Upon Consent Election, an election was, as
noted above, held on May 12, with 153 votes for,
and 146 against, the Union.' Respondent filed time-
ly objections on May 16, and the Regional Director
on June 20 issued a report in which he recom-
mended a hearing on one objection. Thereafter, the
Board ordered the consolidation of both cases
herein.
On June 4, a few days after the expiration of the
collective-bargaining agreement, Wright called
Union officials to a meeting at which he proposed
the following departures from prevailing practice
under the expired contract. (I) a change in
Respondent's garnishment policy;' (2) two changes
in procedure for employee bidding on certain clas-
sifications and types of jobs; and (3) recognition of
Respondent's right to transfer employees at its dis-
cretion from job to job or between shifts without
regard to seniority in the event of trouble with su-
pervisors or other employees.
The union officials stated that they would refrain
from expressing an opinion until consultation with
the business agent.
On June-5„ Respondent Plant Superintendent
Gene Swigert sent the Union the following letter.
Referring to the proposals that were discussed
during our metting held on Wednesday, June
4, 1969. We explained our proposals real
thoroughly and you had few questions or
voiced very little or no objections. We see no
reason for not putting these into effect, and
they are being put into effect immediately.
' In the absence of exception thereto, we adopt this recommendation pro
forma
2 Unless otherwise indicated, all dates below refer to 1969
' There was also one challenged ballot which did not affect the results of
the election
' The record contains no explication thereof
183 NLRB No. 103
1068 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
If you do wish to discuss this further with me,
let me know.
On the same day, the Union's president, Stanley
Hudson, sent a letter to Respondent
The committee has reviewed the proposals you
suggested during our meeting held on Wed-
nesday, June 4, 1969
It is our unanimous decision that your sug-
gested proposals should be reviewed and
negotiated upon during the time of our pend-
ing collective bargaining negotiations.
You are requested to begin negotiations for a
new collective bargaining agreement im-
mediately. The Union Committee stands ready
to begin negotiations at a time, place and date
mutually agreeable to you.
On June 9, the Union filed the following
grievance with Respondent:
Union protest company's action of making uni-
lateral changes in the terms of the employees
wages, benefits and working conditions in
violation of the collective bargaining agree-
ment.
Union request the company comply with the
terms of the current collective bargaining
agreement until such time as the parties
negotiate a new collective bargaining agree-
ment replacing the current one.
Thereafter, Respondent took the following ac-
tions without giving the Union any formal notifica-
tion thereof.
Employee Ruth Aggans was downgraded without
her consent from a B classification to a C classifica-
tions on the ground that she did not get along with
her supervisor.'"
Some junior employees were transferred from the
second shift to the day shift without regard to
seniority.
It is clear that the Union, which was certified as
the representative of the unit employees and was a
party to the expired contract, did not lose its
representative status during the pendency of the
objections to the election. Although it is not con-
tended, and we do not find, that Respondent had a
duty to bargain with the Union about a new con-
tract while there was an unresolved question con-
Exhibit A of the expired contract provides that the hourly rate range for
the former is $1 60 to $1 80 as compared with $ 1 60 to $1 70 for the latter
Wright testified that Aggans remained with the same supervisor
The Trial Examiner found that Respondent offered no economic jusifica-
Uon for the unilateral changes
' See Thrift Drug Company of Pennsylvania, 167 NLRB 426, Northwest
Engineering Company, 148 NLRB 1136, 1 145
cerning representation, we do find that Respondent
remained under an obligation to make no unilateral
changes in working conditions, in the absence of
overriding economic considerations,7 until a deter-
mination as to whether or not the employees
desired to have the Union continue as their bar-
gaining representative." We therefore conclude that
Respondent's unilateral changes in the employees'
terms and conditions of employment were in
derogation of the Union's representative status and
hence a violation of Section 8(a)(I) of the Act. Ac-
cordingly, we shall order Respondent to take the
remedial action indicated below.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respon-
dent, Vitronic, Incorporated, Doniphan, Missouri,
its officers, agents, successors, and assigns , shall:
1. Cease and desist from:
(a) Threatening to isolate employees because of
critical comments about Respondent' s campaign
leaflets.
(b) Unilaterally moving employees to less desira-
ble classifications or shifts.
(c) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of rights guaranteed them by Section 7 of
the National Labor Relations Act, as amended.
2. Take the following affirmative action which
the Board finds will effectuate the purposes of the
Act:
(a) Offer employees, who were transferred to
less desirable classifications or shifts, their former
classifications or shifts, or, if they are no longer
available, substantially equivalent classifications or
shifts
(b) Make said employees whole for any losses
sustained as a consequence of the unilateral
changes.
(c) Preserve and, upon request, make available
to the Board or its agents, for examination and
copying, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(d) Post at its plant in Doniphan, Missouri, co-
pies of the attached notice marked "Appendix."9
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board " shall be changed to read " Posted
Pursuant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board "
VITRONIC, INCORPORATED
Copies of said notice, on forms provided by the Re-
gional Director for Region 14, after being duly
signed by Respondent's representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by it to in-
sure that said notices are not altered, defaced, or
covered by any other material.
(e) Notify the Regional Director for Region 14,
in writing, within 10 days from the date of this
Decision and Order, what steps have been taken to
comply herewith
IT IS FURTHER ORDERED that (1) the complaint
be and it hereby is, dismissed insofar as it alleges
violations not specifically found herein, and (2) the
election conducted on May 12, 1969, in Case
14-RD-312, be, and it hereby is, set aside, and said
case is hereby remanded to the Regional Director
for Region 14 to conduct a new election when he
determines that a free and untrammeled election
can be held.
[Direction of Second Election"' ommitted from
publication. I
"' In order to assure that all eligible voters may have the opportunity to
b, informed of the issues in the exercise of their statutory right to vote, all
parties to the election should have access to a list of voters and their ad-
dresses which may he used to communicate with them Excehmr Un-
drraear in( , 156 NLRB 1236, N L R B v Wyman-Cordon Co , 194 U S
759 Accordingly, it is hereby directed that an election eligibility list, con-
taming the names and addresses of all the eligible voters, must he filed by
the Employer with the Regional Director for Region 14 within 7 days after
the date of issuance of the Notice of Second Election by the Regional
Director The Regional Director shall make the list available to all parties
to the election No extension of time to file this list shall he granted by the
Regional Director except in extraordinary circumstances Failure to
comply with this requirement shall he grounds for setting aside the election
whenever proper objections are filed
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had a chance to
give evidence, the National Labor Relations Board
found that we, Vitronic, Incorporated, violated the
National Labor Relations Act, as amended, in cer-
tain respects. The Board has therefore ordered us
to post this notice. We therefore assure you that.
WE WILL NOT threaten to isolate employees
because they criticize the Company's leaflets
WE WILL NOT, while the Union is still the
representative of the employees, unilaterally
move employees to less desirable classifica-
1069
tions or shifts, unless there are very important
economic reasons why the Company cannot
wait until after the employees decide in the
second election whether they wish to have the
Union continue as their representative WE
WILL make said employees whole for any losses
sustained as a consequence of the unilateral
changes
WE WILL offer the employees who were
transferred to less desirable classifications or
shifts their former classifications or shifts or, if
they are no longer available, substantially
equivalent classifications or shifts
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of the rights guaranteed
by Section 7 of the National Labor Relations
Act, as amended
VITRONIC, INCORPORATED
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or com-
pliance with its provisions may be directed to the
Board's Office, 1040 Boatmen's Bank Building, 314
North Broadway, St Louis, Missouri 63102,
Telephone 314-622-4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
EUGENE F FREY, Trial Examiner: This case was
tried before me on various days between September
25 and October 10, 1969, at Poplar Bluff, Missouri,
with all parties represented and participating
therein by counsel, except E. C. Fagan, who ap-
peared pro se The issues in Case 14-CA-5137 are
whether the Respondent, Vitronic, Incorporated,
coerced employees by observing their union activi-
ties, threatening them with transfers, refusing them
wage raises, and unilaterally changing their wage
rates, hours of work, and other terms and condi-
tions of employment, because of their support of
the above-named Union and other concerted activi-
ty, in violation of Section 8(a)( I) of the National
Labor Relations Act, as amended 29 U S C Sec.
151, et seq. (herein called the Act), and discharged
1070 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and refused to reinstate one employee , and for-
mally reprimanded another , because of their union
and other concerted activity, in violation of Section
8(a)(3) and ( 1) of the Act. These issues arise on a
complaint issued July 29 , 1969, in Case
14-CA-5137 by the Board 's Regional Director for
Region 14, ' and answer of Respondent admitting
jurisdiction but denying the commission of any un-
fair labor practices.
The issue in Case 14-RD-312, as stated in a
Board Order of August 15, 1969, and consolidated
with the unfair labor practice case for trial by order
of the Regional Director dated August 19, 1969, is
whether certain union representatives and em-
ployees violated preelection instructi9qns of the
Board agent conducting the election in this case,
thereby improperly affecting the results of the elec-
tion.2
At the close of the trial in the consolidated cases,
I reserved decision on Respondent 's motion to
dismiss the complaint in Case 14-CA-5137, that
motion is disposed of by the findings and conclu-
sions in this Decision . At close of the testimony, all
parties waived oral argument , but have filed written
briefs in Case 14-CA-5137, and Respondent and
the Union have filed separate briefs in Case
14-RD-312 , all of which have been carefully con-
sidered in preparation of this Decision.'
Upon the entire record in the case and from my
observation of all witnesses and their demeanor on
the stand , I make the following:
FINDINGS OF FACT
1. THE BUSINESS OF RESPONDENT AND STATUS OF THE
UNION
Respondent is a Missouri corporation with its of-
fice and place of business in St. Louis, Missouri,
and plants at various places in Missouri and Califor-
nia, including one at Doniphan, Missouri, where it
is engaged in the manufacture, sale, and distribu-
tion of plastic specialty items and related products.
In its operations during the calendar year 1968,
Respondent has had direct inflow of goods and
materials to its Doniphan plant, and direct outflow
from thaj plant, in each instance of a value exceed-
ing $50,000. Respondent admits, and I find, that it
has been and is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the
Act.
' The complaint issued after Board investigation of charges filed by the
Union on June 10 and July 25, 1969
This issue arose on timely objections of Respondent to conduct affect-
ing the results of the election , which were investigated by the Regional
Director who filed his report thereon on June 20, 1969 The Board issued
its order of August 15, 1969, framing the issue and directing a hearing after
consideration of the Employer's objections, the Regional Director 's report,
and the Employer's exceptions thereto
' After the hearing closed, Respondent filed a motion on notice to cor-
rect the transcript of the record in certain respects , and General Counsel
filed a cross - motion to make the same correction , except in one respect
Having considered the motions, I grant that of General Counsel, as well as
that of Respondent except its motion to delete the word " not" from 124, p
The above-named Union is a labor organization
within the meaning of Section 2(5) of the Act.
Ii. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background Events
The Union was certified by the Board in 1967 as
bargaining agent of employees of the Doniphan
plant in an appropriate unit. Respondent and the
Union thereafter negotiated and executed in Au-
gust 1967 a collective-bargaining contract covering
said unit, which expired June 1, 1969. On March
12, 1969, employee E C. Fagan filed a petition
with the Board in Case 14-RD-312 seeking an
election on the claim that the Union no longer
represented a majority of employees in said unit.
On March 19, Respondent sent the Union a letter
terminating the contract, and on March 26 the
Union sent a similar letter to Respondent. On April
7 the parties entered into a stipulation for certifica-
tion upon consent election in the RD case, and on
May 12, 1969, an election was conducted at
Doniphan, Missouri, by John F. Nicholson, a field
examiner from the Regional Office for Region 14,
at which 153 votes were cast for the Union and 146
against it . Respondent filed timely objections to
conduct affecting the results of the election. After
investigation thereof, the Regional Director on
June 20, 1969, filed his report with the Board,
overruling one objection but recommending a hear-
ing on another. After consideration of exceptions to
the report by the Respondent, the Board on August
15, 1969, issued its order directing a formal hearing
on certain issues noted above.
B. The Alleged Coercion and Discrimination
1. Alleged surveillance by Respondent
On an unidentified date early in March 1969,
while a group of employees were in the lunchroom
during their morning break, Orville McManus, for-
merly personnel director of the Doniphan plant but
now acting as plant cost accountant, came to the
lunchroom with one Pauline Steele, and stood in
the lunchroom doorway while Steele and another
employee, Helen Pigg, circulated a petition for
decertification of the Union among employees for
their signature. After the two employees finished
circulating it, McManus walked away.4 As this in-
440, and to make an insertion in 15, p 368 , in the latter place, I correct the
record by inserting "confused" in place of "stricken" In all other respects,
the record is deemed corrected as proposed in said motions The Union has
stated no opposition to either motion
These facts are found from credited testimony of Dorothy Brooks and
Ruth Eubanks McManus ' flat denial of the incident is not credited,
because he had no specific recollection of the incident, and admitted that
in course of his work he may well have been in or gone through the
lunchroom very often during break periods or at other times Neither
Steele nor Pigg, nor another employee , Petmiller , who was placed in the
room at this time by Brooks and Eubanks, were called by Respondent to
testify
VITRONIC, INCORPORATED 1071
cident occurred on the second day of circulation of
documents for signature preparatory to the filing of
the RD petition by Fagan on March 12, and
testimony of Brooks and Eubanks also shows that
Steele had walked through the sealing department
with McManus on the way to the lunchroom, with
the petition openly held in her hand, General Coun-
sel argues that Respondent, through McManus,
knew what it was and deliberately observed its cir-
culation, and was thereby in a position to know
which employees signed it and which did not, and
that this was illegal surveillance of employees in the
protected activity of acting for or against an effort
to decertify the Union. Respondent argues that (I )
McManus' conduct was not in fact surveillance,
and (2) McManus had been only a cost accountant,
and not personnel director, since January 1, 1969,
when he was replaced in the latter position by one
James Johnston, so that Respondent was not bound
by his actions when he observed the above em-
ployee activity.
On the issue of agency I find no merit in Respon-
dent's disclaimer of responsibility for several
reasons. As early as August 1967, Respondent had
formally notified the Union under contract require-
ments that McManus was personnel director, and
admittedly it never advised the Union before or
after January 1, 1969, of his change of status, or
that James Johnston had succeeded him in that
position. Hence, although Union President Hudson
admitted he had not seen McManus interviewing
new employees for some months and had seen
Johnston handling some of the personnel duties
during 1969, the lack of formal notification of the
change, plus testimony of employees and McManus
that he still circulates through the plant in his new
duties as cost accountant, and talks often to super-
visors about production and its quality, and his ad-
mission that he still uses the same desk in the office
that he used as personnel manager and still reports
directly to Wright as before, leads me to conclude
that there has not been such a public and definite
change in his status made apparent to the Union
and its members as to put them on notice that he
no longer handled personnel duties as a member of
management; rather, the record shows such lack of
apparent change as to warrant employees in believ-
ing that he was still a member of management or at
least still spoke for management.5
As McManus had been walking with Steele while
she held the petition, and saw her and another em-
ployee circulating two papers, it is a fair inference
and I find therefrom that he knew what the papers
were. However there is no proof that he said
anything to Steele, Pigg, or any workers in the
lunchroom about it at the time or later, or that
Respondent took any action later with respect to
any workers who may or may not have signed these
petitions or any other papers of like nature circu-
lated at other times in the plant. Although Eubanks
testified she had never before noticed McManus
watching employee actions in the lunchroom,
which indicates his observance of the paper circula-
tion was a unique event, the record also shows that
since the first of 1969 McManus has circulated al-
most daily in the plant in course of his cost ac-
counting work, observing production, making time-
and-motion studies of operations, and often
checking quality of production. In addition, he su-
pervises the operation of vending machines in the
lunchroom, often entering and leaving that room to
check their operation. Hence, it is a fair inference
that employees were accustomed to seeing him ob-
serving their work and operations at anytime
anywhere in the plant and this tends to make his
appearance in the lunchroom doorway for a few
minutes while papers were circulated therein far
less than a unique and unusual incident likely to
exert a coercive influence on employees who saw
him. In light of Respondent's dealings with the
Union as bargaining agent for the past 3 years in
performance of the contract which had not yet ex-
pired, without any proof of union animus in that
period and lacking proof that Respondent used Mc-
Manus' observation of employees on this one occa-
sion for any illegal purpose, I conclude that all the
pertinent proof on this issue is insufficient to show
that McManus on this single occasion engaged in
actual surveillance of employees' protected activity
of the type which was coercive and in violation of
the Act.'' I therefore grant Respondent's motion to
dismiss paragraph 5, A, of the complaint alleging
actual surveillance and will recommend dismissal of
the complaint to that extent.
2. The threat to isolate Norma Jean Boyles
In the week of May 5, 1969, just before the elec-
tion, there was much employee discussion in the
plant pro and con the Union. Much of it took place
in the packing department, where Norma Jean
Boyles was prominent in talking for the Union; in
arguing for it, she continually criticized her
foreman, Richard Desich, and his alleged mistreat-
ment of her; she also criticized Wright and the
plant operation. On the morning of May 8, Desich
distributed an antiunion leaflet to packing depart-
ment employees. After reading it, Boyles began to
comment and laugh about it openly to other work-
ers around her and within hearing of employees
in lines directly in front of and behind her. Among
other things she said openly she would have a "big
cry" about the leaflet, would need a bucket for her
tears, and would have to use another worker's shirt-
tail to dry her tears. She continued talking in this
vein all morning and after lunch period. Ethel T.
Dalton, an elderly woman who worked in the line
directly in front of Boyles, had been hearing Boyles'
Paul Stevens, Receiver of Carolina Scenic Stages, 109 NLRB 86, 102
The complaint does not allege, nor doe,. General Counsel argue, that
Respondent here engaged in conduct giving the impression of surveillance
of employees
1072 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
criticisms and comments continually during that
week. About 2 p.m. on the 8th, Dalton became
very nervous and physically ill, and told table ladies
Bonnie Mac Holland and Dora 1. Miller she could
not work, so Holland took her to the restroom, she
told Holland that Boyles' constant talking, with
criticism of the foreman and Wright and complaints
about the plant operation, had made her nervous so
that she developed a headache and could not work.
While taking Dalton to the restroom, Holland and
Miller met Wright and Desich, and Holland re-
ported Dalton became ill because of remarks
Boyles had been making. Desich then told Wright
something would have to be done about Boyles'
talking which upset the workers, as two of whom
had complained to him about it that morning.' Both
officials then went to Boyles at her bench, where
Wright told her he had reports from different em-
ployees about her remarks which were upsetting
employees, mentioning Dalton . Boyles replied that
she had been "whistling , singing and gabbing, and
giving you a day's work." When Wright questioned
her about her remarks, she related what she had
said about Desich's letter as noted above, and said
that Desich knew why she made these remarks
Wright said he did not care what she talked about,
but that he wanted her to keep her remarks to her-
self and not disturb other workers in the depart-
ment. She continued to argue with him about what
she had said, and he replied that if she did not keep
her remarks to herself and stop annoying other
girls, he would have to put her off in a corner by
herself where she could not bother the other em-
ployees. She commented that he had tried that be-
fore and was not satisfied He repeated that she
would be moved off by herself if she did not stop
upsetting the other girls. Boyles continued to argue
and explain her remarks to other workers, and
Wright said he did not want to hear any more about
it, that she should just keep quiet and do her work
and let other employees do theirs. When Dalton
returned from the restroom about 2:30 p.m , Hol-
land assigned her to work for the remainder of the
day at a booth further removed from Boyles."
General Counsel contends that Wright's threat of
isolation of Boyles if she did not quit upsetting
other employees with her chatter was not made
until after he and Desich learned of her unfavorable
remarks about Desich' s antiunion letter, so that the
threat was a coercive retaliation for her prounion
and antiemployer remarks, all protected activity,
and thus violated Section 8(a)( I) of the Act. This
claim is supported by certain circumstances
' Shortly after Desich distributed his leaflet that morning , employee
Clemme Clanton had reported that he should listen to the "terrible things"
Boyles had been saying about him and others Desich said Clanton should
not let Boyles ' remarks bother her
"l'he above facts are found from a composite of credited and mutually
corroborative testimony of Boyles, Miller, Holland, Clanton, Dalton,
Wright, and Desich
" I find from testimony of Wright, admissions of Boyles herself, and my
observation of her voluble and argumentative answers on the stand, that
Boyles was probably a very talkative, long-winded person who without
Testimony of Clanton, Desich, and Wright makes it
clear that before Wright made the threat, he knew
of Boyles' criticism of the Desich letter, and both
officials knew she was an active and outspoken ad-
herent of the Union. The record also shows that
Boyles' unusual and perhaps irritating talkativeness
had continued all week long,' but apparently had
not affected Dalton or any other employee adverse-
ly until the day she began to comment about
Desich's letter, although Dalton admits Boyles was
no louder or more noticeable in her talk that day
than earlier in the week. Thus, Dalton's story as to
her adverse physical reaction to Boyles' remarks is
suspect, in part because it is subjective testimony of
the type not readily subject to probing by cross-ex-
amination, in part because of the lack of supporting
testimony of any outward evidence of the detriment
to her, and in part because she does not try to ex-
plain why these comments about the Desich letter
produced this effect on her while Boyles' alleged
tirades of the prior 3 days against company officials
had not. In addition, it is strange that Dalton did
not herself first try to suggest that Boyles cut down
her comments, on the plea that Dalton was becom-
ing ill, or that the two table ladies did not try to get
Boyles' cooperation in this respect before reporting
the incident to Wright. Hence, it is quite significant
that Boyles' antiemployer remarks appeared to af-
fect Dalton adversely and became the basis for
Wright's instant warning of isolation only after
Boyles had commented openly and adversely on the
Desich letter, and Wright learned of it by question-
ing her.
Respondent claims that. Boyles was given only an
oral warning of transfer to an isolated work spot if
she continued rude and unpleasant talk which upset
other employees, but was not actually moved; there
was no mention during this warning of her union af-
filiation or activity; the warning was given only
after receipt of complaints from two table ladies
and one employee about her conduct, and this
discipline was comparatively mild in face of Boyles'
admission that Respondent had once before ac-
tually isolated her in her work for the same reasons;
which circumstances show that the warning had
only a normal economic motive of maintaining
plant discipline and production However, there are
various weaknesses in this contention: While there
is no doubt Boyles was a chatterbox, the evidence
falls short of a cogent showing that Boyles acted
rude and unpleasant toward other employees, par-
ticularly Dalton, none of the witnesses for Respon-
dent, not even Dalton, said that Boyles was rude
doubt subjected all employees around her workplace to long-winded, sar-
castic , and blunt tirades against management, and Wright and De,ach in
particular, every day during the week of May 5, and that she was probably
hard to stop once she started talking In addition , her explanation in
testimony of "mistreatment" by Desich when he had previously transferred
her from a special packing job and gave it to Dalton, when Boyles asked for
higher pay for it, clearly indicates that she harbored some special resent-
ment toward Desich, which came out strongly in her remarks during that
week
VITRONIC, INCORPORATED
and unpleasant specifically to them; at most, the
record shows that her continued talk was general
griping, not directed to or against specific workers,
and in its worst aspect it consisted of blunt and sar-
castic criticism of Desich, Wright, and plant opera-
tions which went on for several days without ap-
parent effect on any workers around her, many of
whom took part in the discussions, until her re-
marks of the fourth day, which were mainly general
sarcastic comments about Desich's letter, but not
about him, and apparently affected no one else but
Dalton. It is well known that griping about super-
visors and working conditions is a normal activity
of employees which is usually passed off by other
employees and condoned by the employer unless it
tends to disrupt production and plant discipline. It
is significant that Desich, the main target of Boyles'
remarks, himself recognized this fact of industrial
life when he told Clanton not to let Boyles' remarks
about him bother her, when she first reported them
to him Thus I cannot find from all pertinent
evidence that Boyles' remarks on any of the 4 days
went beyond the broad category of legitimate free
speech which is protected for both employees and
employer by Section 8(c) of the Act. Further, there
is no substantial proof that production or morale in
the packing department was affected by Boyles'
continual chatter over 4 days (aside from the short
interruption of Dalton's work while she recuperated
in the restroom), even though it appears from Hol-
land's testimony that employees in that department
were "keyed up" all that week during the talk for
and against the Union
Considering all pertinent proof pro and con, I
conclude that Respondent has not sustained the
burden of adducing proof adequate to rebut the
facts and circumstances indicating that the warning
of isolation of Boyles was motivated by her legiti-
mate comments about Desich's antiunion letter,
and that General Counsel has sustained the ulti-
mate burden of proof to show such motivation I
find and conclude that by Wright's threat of isola-
tion of Boyles for such conduct, Respondent vio-
lated Section 8(a)(I) of the Act.
3. Denial of wage raise to Ayers
Benny Ann Ayers began to work for Respondent
in October 1968, at $1.60 an hour in the packing
department. Late in November she received an au-
tomatic raise to $1.62-1/2 an hour in accordance
with contract provisions. About May 10, 1969, she
felt she was entitled to another 2-1/2-cent raise
under the contract, and asked her supervisor about
it. He promised to look into it, but never talked to
her about it later, so about June 1 she asked Jean
Moore, an office employee who handled payroll ac-
counts in the office and handed out paychecks, to
find out why Ayers did not get the raise Moore ex-
amined the payroll records and then told Ayers she
was getting the pay rate which the contract
required After some argument about the time
1073
when Ayers should have received the last raise, and
with Ayers insisting she was due for another, Moore
told her that "anyway, we cannot give it to you
now, the NLRB might think it was a bribe," and
that the Company could do nothing then, that "our
hands are tied, we cannot give you any raise until
this is cleared up." Ayers reported this to the
Union, which filed a grievance on June 9, alleging a
refusal to give Ayers a "25-week raise" in her clas-
sification, in violation of the contract. In discus-
sions between the parties under the grievance
procedure, Respondent apparently satisfied the
Union that Ayers had received her last raise earlier
than required by the contract because she had had
prior experience in working with the Company for
several years up to 1963, and the Union apparently
agreed that she was not then entitled to another
raise and did not process the grievance further.10
General Counsel claims that (1) Respondent was
responsible for Moore's explanation why Respon-
dent could not give the raise at that time, because
Moore was the company employee who usually
talked to employees about payroll matters and
cleared up questions about their pay accounts when
necessary, and in this respect was identified with
management in the eyes of the employees which
thus made her an apparent agent of Respondent,
and (2) Moore's remarks indicated Respondent was
denying her a raise to which she might or might not
have been entitled, not for lawful economic or con-
tract reasons, but because of the pendency of the
RD proceeding and imminence of the election
therein, in violation of the Act. Respondent argues
in defense that (1) it is not responsible for Moore's
remarks because she was only an office personnel
clerk, without supervisory status, actual or ap-
parent, who had voted in an office unit election in-
volving this Union, and (2) even if it is responsible
for her remarks, they were not coercive.
It is apparent that Moore talked continually with
employees about their payroll accounts, and also
handled their personnel records to an extent which
would lead a foreman like Desich to ask her about
the procedure for handling a written notice of
reprimand, and she answered such questions herself
without referring employees or foremen to a com-
pany official. I do not think this conduct alone
quite enough to lead employees reasonably to be-
lieve that she spoke for management on a responsi-
ble basis. However, when she gave Ayers, during
their argument about a wage raise, an explanation
in which she cited the contract to show that Ayers
was getting the proper rate and not entitled to more
at that time, and used the editorial "we" in explain-
ing that Respondent could not give Ayers a raise
for legal reasons during pendency of the RD case,
and did not refer Ayers to Wright or any other offi-
cial for that explanation, which clearly stated a
company policy apparently based on legal advice,
"' i he se fact% are found from credited testimony of Ayers, admissions of
Hudson, and documentary evidence
1074 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
she was making statements which clearly indicated
she was speaking for management on a policy
matter with legal implications, and on this basis
plus her general dealings with employees on per-
sonnel matters, Respondent must be held responsi-
ble-for her conduct, as though she were in a super-
visory capacity. See McKinnon Services, Inc., 174
NLRB 1141, and cases cited in Decision of Trial
Examiner.
I find from Moore's explanation to Ayers about
her present rate, based on contract terms, Hudson's
admissions, and the failure of the Union to process
the grievance for Ayers, that she was not entitled to
a raise under the contract at the time she talked to
Moore. Hence, it is a fair inference that, absent the
pending decertification proceeding, Moore's ex-
planation, Respondent's refusal of the raise for the
same reason, and the Union's acceptance of the
decision, would still have taken place. This made
unnecessary Moore's final remarks to Ayers which
told her in effect that, whether or not she was right
about a raise, Respondent considered itself under a
general legal disability to do anything about her
request while the RD case was pending. In these
circumstances I am satisfied that Moore was trying
to end the argument for the time being by making a
gratuitous statement of the limitations placed on
the Company by the legal aspects of the situation.
This was far from a statement indicating that
Respondent was deliberately refusing a raise to
which an employee was otherwise entitled, as a
retaliation for the exercise by employees of their
protected rights to avail themselves of Board
process. Hence the cases cited by General Counsel
and the Union which find a violation of the Act on
such facts are not apposite," because unlike the
situations in those cases, Moore's remarks were not
prompted by the presence, action, or inaction of
the Union, but only by the existence of well-known -
legal limitations upon employer action during the
pendency of an election. The cases cited by
General Counsel reiterate the long-established prin-
ciple that employer action in changing wages,
hours, or working conditions while an election
proceeding is pending, in a manner at variance with
usual practice and under circumstances indicating
that such action would not have been taken but for
the presence or actions of a union, violate the Act.
But Dorn's Transportation Co., supra, also recog-
nizes that there may be situations where an em-
ployer does not violate the Act when he acts from
an honest belief that he is legally prohibited from
granting a benefit because of a pending election
petition. However, where he grants or withholds
benefits in the critical period before an election, he
has the burden of establishing that he acted thus for
economic or other legitimate reasons wholly unre-
" In Dorn', Transportation Company, Inc , 168 NLRB 457, McCormicI
Longmeadow Stone Co, 158 NLRB 1237, and The Great A & P Tea Com-
pany, Inc , 166 NLRB 27, the employers made it clear in writing to em-
ployees that , but for an organizing campaign or election instituted by the
union , they would be getting raises as in past years
lated to the pending election proceeding . Marshall
Durbin & Company of Jasper, Inc., 179 NLRB
1027. 1 think Respondent has satisfied this burden
in Moore's initial remarks to Ayers and Respon-
dent's later explanation to the Union , both based
on terms of a contract which had expired, and in
such circumstances I conclude that Moore 's final
remarks to Ayers were more indicative of a desire
to obey the law by remaining neutral during pen-
dency of the question concerning representation,
hereafter called QCR , than of a threat to act or not
act because of the Union , and hence were not in
fact, or reasonably calculated to be, coercive." I
therefore grant Respondent 's motion to dismiss
paragraph 5, C, of the complaint , and will recom-
mend that the complaint be dismissed to that ex-
tent.
4. Unilateral changes of wages and working
conditions
As noted above, the latest union contract expired
June 1, 1969, and both parties had previously ad-
vised each other of their desire to terminate it as of
that date On June 4 Wright called three local
union officials into a meeting, at which he proposed
several changes in working conditions: (1) a change
in company policy on garnishment of employee
wages; (2) two changes in procedure for employee
bidding on certain classifications and types of jobs;
and (3) recognition of the Employer's right to
transfer employees at its discretion from job to job
or between shifts where employees were having
trouble with their supervisors or other employees,
and without regard to seniority. All of these
proposals involved changes of working conditions
and procedures established in the expired contract.
The union officials said they wanted to discuss the
proposals with the union business agent before giv-
ing an answer, so they made no comments on them
nor offered any counterproposals at that time. In
the same meeting Wright discussed with the offi-
cials the temporary working status of a college stu-
dent working in the plant for the summer; he
brought up reports of alleged tampering with stock
records and asked the Union to advise workers to
stop it or the Company would take strong action
against them; he also brought up the problem of ob-
scene writings on walls in the restroom. Steward
Dilbeck asked if the Company would agree to a
checkoff of dues, and Wright argued that the Union
should collect its own dues from workers. At this
meeting Wright also told the union officers that em-
ployee Violet Redus would be discharged at the
end of that day.
'® Ct Paradise Bowlo- Mat, Inc , 180 NLRB 699, and cases cited in fn 2,
Sahara-Tahoe Corporation , 173 NLRB 1349
VITRONIC, INCORPORATED
On June 5, Respondent through Plant Superin-
tendent Swigert wrote the Union that it had ex-
plained its proposals on June 4 "real thoroughly,
and you had few questions or voiced very little or
no objections," and that "We see no reason for not
putting these into effect, and they are being put
into effect immediately If you do wish to discuss
this further with me, let me know." The same day
the union president wrote Wright that the union
committee had reviewed his proposals and decided
they should be reviewed and negotiated during the
"pending collective bargaining negotiations," and
requested that Respondent begin negotiations im-
mediately On June 9 the Union filed with Respon-
dent a formal grievance protesting the company ac-
tion of "making unilateral changes in . . wages,
benefits and working conditions in violation of the
collective bargaining agreement," and requesting
that the Company comply with that agreement until
the parties negotiated a new one. Up to the time of
the hearing herein, that grievance was still pending.
Respondent has since changed one employee's
classification without her consent on the ground
that she had trouble with her former supervisor,
transferred some junior employees from second to
day shift, without regard to seniority, and also
transferred one worker to a junior classification in
the same type of work because she was too slow in
a sewing operation, compared to other workers.
Respondent has never given the Union any formal
notification of these changes, or discussed them
with union officials, nor has the Union filed
grievances thereon. General Counsel admits that
while a OCR was pending involving employees in
the unit set forth in the old contract, Respondent
was not under any duty to bargain with the Union
about the proposed changes, but only alleges a
violation of Section 8(a)(1) per se in the mere
proposal of and threat to effectuate these changes
while a OCR was pending; there is no argument
that the proposal and alleged threat were
deliberately designed to destroy any status the
Union then held among the employees or to in-
fluence employees to vote against it in any later
election.
Respondent's defense is that while a OCR is
pending, it has no duty to bargain with the Union,
hence nondiscriminatory unilateral changes of
working conditions do not violate the Act. In sup-
port of this defense and in explanation of its an-
nouncements of June 4 and later actions, Wright
testified that he acted on advice of counsel which
was to the effect that, at that stage of the represen-
tation proceeding, Respondent must discuss before-
hand with the Union any changes it proposed in
working conditions, and that after discussion "back
and forth several times quite thoroughly, if agree-
ment could not be reached, the company could
make the change," and that while the OCR was
" N L R B v Little Rock Downtowner , Inc , 414 F 2d 1084 (fn 6) (C A
8, August 19, 1969 ), N L R B v J H Rutter-Rex Mfg Co , 415 F 2d 1 133
(CA 6, Sept 19, 1969)
1075
pending, Respondent could deal with the Union
only to the extent it showed that any employees
with grievances wanted the Union to represent
them on those matters.
In view of the admissions of General Counsel,
and the absence of any charge of violation of Sec-
tion 8(a)(5) of the Act, I do not view Wright's ex-
planation of his actions quoted above as an admis-
sion of any duty to bargain during the pendency of
the OCR but merely as his own interpretation of
legal advice he received regarding the limited duty
of Respondent to deal with the Union Hence, since
General Counsel charges only a violation of Section
8(a)( I) in the mere proposal of the changes, and its
continuance in the absence of any later announce-
ment to the Union or employees of rescission or
abandonment of the changes, the narrow issue is
whether mere announcement of the proposal and
failure to withdraw it publicly, without more, is per
se a violation of the Act. In support of this position,
General Counsel cites only one case which involved
similar circumstances, Tampa Crown Distributors,
Inc., 121 NLRB 1622, where the Board held that
an employer violated Section 8(a)(5) (and by
derivation Section 8(a)(1)) of the Act when it
granted employees wage raises, after a union won
an election but while objections to it were pending,
above and beyond what it had originally contem-
plated before advent of the Union; the Board found
in the later circumstance evidence that the grant
was in disregard of the employer's clear duty to
bargain, without considering whether the pendency
of the OCR affected that duty. Since there is no
proof of circumstances showing an intent to coerce
employees presently or in anticipation of a future
election, and General Counsel does not claim viola-
tion of a duty to bargain here with the OCR pend-
ing, that decision cannot control. General Counsel
cites no other authorities to support his claim of
coercion per se. It seems clearly settled that if
Respondent had no duty to bargain with the Union
with the OCR pending, then unilateral wage raises
or other changes of working conditions would not
violate Section 8(a)(5).'3 On the issue of coercion
of employees the Board has recently held that the
grant of benefits while a OCR is pending will vio-
late Section 8(a)(1) if it appears that the em-
ployer's action was altered from its normal business
course by the presence of the union and pendency
of the OCR, that the Board will examine all the
facts and circumstances of the questioned conduct
in deciding this issue, and that the employer has the
burden of showing that its action was taken for
economic reasons wholly unrelated to the pending
OCR. 'I Here, while Respondent offers no economic
justification for its announcement of unilateral
changes except advice of counsel, it is noteworthy
that the few, scattered changes it made contra the
terms of the expired contract appeared to be the
" Dorn's Transportation Company, Inc , supra , Marshall Durbin & Co of
Jasper, Inc , aupra , New Fern Restorrum Co, 180 NLRB 618
427-258 O-LT - 74 - 69
1076 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
type normally expected in efficient business opera-
tion, they were not widespread changes affecting
many employees in the unit, and Respondent never
did carry out changes coextensive with its an-
nouncement. The latter inaction is not specifically
explained by Respondent, but as this lack of imple-
mentation occurred after the Union filed a formal
grievance protesting the whole proposal, it is a far,
stronger inference that Respondent did nothing
further on advice of counsel due to this circum-
stance and the pending OCR, than that it
deliberately made the announcement and then left
it hanging in the air, without formal rescission, as
an implied warning to employees to discourage
continued adherence to the Union, particularly
where Union was continually alert to file grievances
about employer conduct affecting employees, as
found elsewhere in this Decision, so that it must
have known Respondent was not going forward
with any widespread changes of working conditions
as announced. On the issue of motive, I must also
give weight to the lack of any history of union
animus by Respondent, the fact that it continued to
deal with the Union to a limited extent even pend-
ing the QCR, and the independent filing of the RD
petition by an employee (without evidence or
charge that Respondent aided or encouraged this
action), followed by an election in which the Union
won by only 7 votes out of a total of 299 cast, all of
which impel the conclusion that Respondent acted
solely from economic or legal, not antiunion, mo-
tives."
Viewing all the circumstances pertinent on this
issue, I must conclude and find that Respondent's
actions of June 4 and 5 relating to proposed
changes of working conditions, and minimal actions
in that direction thereafter, were not of a type
reasonably calculated to coerce employees in the
present or future exercise of any of their rights
guaranteed by Section 7 of the Act, and that
General Counsel has not sustained the ultimate bur-
den of proof that such conduct was coercive per se
or in fact. I therefore grant Respondent's motion to
dismiss paragraph 5, D, and later paragraphs of
complaint dealing with this conduct, and will
recommend dismissal of the complaint to that ex-
tent.
5 The discipline of Redus and Griffin and
discharge of Redus
Violet Redus was hired in 1964. At her discharge
in June 1969, she was assembling products prior to
packing. Darlene Griffin was hired about 1959 and
at the time she testified was putting designs on
"These circumstances , as well as the relatively minor nature of the sin-
gle unfair labor pracLce of Respondent found above, take this case out of
the ambit of the decision in Ambox, Incorporated, 146 NLRB 1520, and
later decisions based on findings of patterns of antiunion conduct with in-
tent to deny employees their rights under the Act Cf N L R B v Gallaro
Bros , et al , 419 F 2d 97 ( C A 2, decided December 8, 1969)
products in the silk screen department. In doing
their work, both employees daily saw and handled
shop order sheets containing the names and mailing
addresses of customers.
At a union meeting late in April 1969, Union
Agent Robert Long told the employees to copy
down the customers' names and addresses from
shop orders on their own time and give them to
him, so that the Union could carry on a boycott
against Respondent by writing to its customers, in
order to force Respondent to bargain with the
Union Redus and Griffin thereafter copied out
some of this data and were observed doing it by
other employees who reported it to Foremen
Desich and Baker. Both gave the data later to Long
privately.
The foremen reported these actions to Wright,
and on May 22, Wright summoned Redus to a con-
ference in his office where, in the presence of
Production Superintendent Gene Swigert, Desich,
Shop Steward Monty Dilbeck, and Department
Steward Wanda L. Jones, he told Redus she had
been observed copying customers' names and ad-
dresses from shop cards, and putting the data in her
purse. He asked if she did it and she denied it
several times, explaining that at times she writes let-
ters to friends on lunch period. He replied he was
"glad to hear it," and sent her back to work.
After this meeting, Redus continued to copy
down data from the shop cards for the Union. On
May 27, Wright summoned Griffin and Redus to
another conference attended by the same people as
on May 22, with the addition of Stanley Hudson,
president of the local union, and another employee.
He called in Redus first, and asked if she had
copied customers' names and addresses from shop
cards. She denied it. When he showed her a card-
board with such data written on it, and told her she
had been seen writing it down, she then said she
"may have " He asked why several times, and she
replied "for personal reasons" and for use with her
"make-ups,""' in the absence of her table lady,
Wilma Holland. During this questioning Dilbeck
asked Wright why he was so "riled up" about this,
and Wright replied, " Because this is company infor-
mation, it is not for anyone to write down." Both
union officials argued that workers could easily re-
member it and write it down later from memory,
and that the same data was also on packages
shipped from the plant. Wright asked Redus why
she needed the ZIP code, also the name of Ford
Company from one order rather than the jobber,
who ordered the items, and she gave varying an-
swers, including that she took "what she thought
she needed." Dilbeck and Hudson stopped further
" "Make-ups" are the reprinting and repacking with an original order of
some items which may have been ruined in the original printing, so that the
silk screen operator will need the item number of the whole job, when
reprinting items to fill it out for shipping The address of the customer is not
necessary for this work
VITRONIC, INCORPORATED
questioning by telling Redus she had answered
enough questions and suggesting that if Wright was
going to punish Redus, he should do it, and not give
her "this 3rd degree," that the Union would file a
grievance on it. Wright then told her in presence of
all that "you are not to take any names and ad-
dresses of customers outside the factory and give
them to anyone," and then told her and Jones to
return to work.
Wright asked the union officials if they knew of
anyone else taking down this data, and Hudson
replied that many might be doing it, mentioning
Darlene Griffin. Wright showed them a paper with
names and addresses on it, saying Griffin had writ-
ten it. Hudson questioned this, so Wright called in
Griffin and her supervisor, John Baker. He asked
Griffin what the paper meant. Griffin said it was
"just a paper" and that she wrote it. Wright said she
had been observed by Baker copying names and ad-
dresses from shop cards that morning. Griffin ar-
gued Baker could not have seen it, because she
wrote it down before worktime. When Wright
asked why she did it, Griffin said she had been
given harder jobs than others and wanted evidence
to prove it. Wright and Desich indicated that for
this purpose she would also need data from the
main office in St. Louis, Missouri. Griffin replied
that she took the data on her own time and what
she did with it "is my own business." Wright told
her "if it was company information, it is not your
own business," that he did not want her to write
down any more data like this that "does not pertain
to your work," that she had worksheets to fill out
which were kept on file in the office. He also said if
she did it again, she would be disciplined. Dilbeck
asked if Wright was "threatening" Griffin. Wright
said he was not, only stating a fact, and he would
post a notice that this information was not to be
taken off shop cards, and those doing so would be
punished, and send a copy to the Union. Wright
asked if the union officials had any comment; Hud-
son replied "it is a lot of hogwash," and Dilbeck
said they would talk to Union Agent Long about it.
Right after the meeting, Wright had a notice
posted in the plant, saying "It has been reported
that some employees are taking names and ad-
dresses of our customers and distributors off of
shop cards. Anyone taking such information is sub-
ject to discipline." A copy of the notice, with a note
from Wright, was given to Hudson the next morn-
ing.
After the May 27 meeting, Wright prepared a
formal "disciplinary action notice" of a 3-day
suspension of Redus, commencing at the end of
work on the 28th and running through June 3, for
the "major infraction" of taking jobbers' and
customers' names, addresses, telephone numbers,
and ZIP codes from job tickets, and explaining "it
should have been understood from the meeting of
May 22, 1969 . that information was not to be
taken from job tickets." Foreman Desich gave a
s
1077
copy to Redus on the 28th at quitting time. Earlier
he gave another copy to Department Steward
Jones, and when the latter asked whether it was to
go to Redus through her, Desich said he was in
doubt, but would ask Jean Moore, commenting that
"we thought it over," that at first management was
inclined to discharge Redus, and then to give her a
3-week suspension, but finally decided on the 3-day
suspension "because I think she was put up to this."
On May 27 or 28, Dilbeck asked Desich if Redus
would be paid for Friday, May 30, a holiday in the
3-day suspension period. Desich asked Wright who
said she would not, so Desich reported this to both
Dilbeck and Jones. In talking with the latter, Desich
also said that if this conduct occurred again, these
employees would be subject to immediate
discharge Jones professed ignorance of why Redus
had taken the data, that she did not understand
what was going on, because "everyone at that
meeting [May 221 should have clearly understood
that this was company information and should not
be taken off." On May 29, the Union filed a
grievance under the contract protesting the suspen-
sion, which action was awaiting arbitration at time
of the hearing.
Redus returned to work on June 4. At quitting
time that afternoon Foreman Desich told her
Respondent would have to let her go, "because of
what is going on," which she took to mean the
copying down of data from shop cards. Earlier the
same day Wright advised Hudson and Dilbeck of
the discharge, and said it would be confirmed by
letter, which was sent to the Union that day. On
June 9, the Union filed a grievance on Redus'
discharge.
On June 9, Foreman John Baker gave Griffin a
formal "verbal warning" for taking data off shop
cards, "as discussed in May 27, 1969 meeting."
The Union shortly filed a formal grievance about
this action, which is still awaiting arbitration."
At first blush, there appears to be no question of
the clear right of Respondent to discipline Redus
and Griffin for admitted, deliberate, but furtive
stealing of company property in the form of
detailed customer data copied from company
records for the purpose of assisting the Union in its
pending consumer boycott against Respondent,
particularly where the admitted purpose of the
boycott was to damage and curtail Respondent's
business to the point where it would be compelled
to lay off employees It is well settled that the civil
and criminal courts of the States recognize and pro-
tect the right of businessmen to compile data about
their business operations and dealings with
customers, to hold such data as valuable proprieta-
ry business information, and to have it protected
against revelation to competitors and others for
"The above facts are found from a composite of credited and mutually
corroborative testimony of Hudson, Red us, Griffin, Jones, Dalbeck, Desich,
and Wright Testimony of any of said witnesses at variance therewith is not
credited
1078 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
purposes hostile to its business operations." Hence,
the record affords cogent proof of the legitimacy of
Respondent's action which appears adequate to
rebut various circumstances and arguments on
which General Counsel relies to construct a prima
facie case of discrimination.
General Counsel does not question these princi-
ples or the right of Respondent to discipline em-
ployees for misappropriation of company property
and the clear disloyalty involved in that conduct
Rather, he recognizes the basic legitimacy of
Respondent's action by attempts to justify the con-
duct of the two employees through various argu-
ments in pleas of confession and avoidance. Thus,
he argues they had a clear right to take such infor-
mation and use it against Respondent because they
were not confidential employees, hence their con-
duct was protected activity because they were act-
ing in aid of the Union's boycott. However, neither
he nor the Union cite any authority to show that
non confidential, as distinguished from confidential,
employees as such are free to filch valuable com-
pany information and use it to harm or destroy
their employer's business . The requirement of basic
loyalty of employee to employer and the general
law relating to relations between employer and em-
ployee is to the contrary.
The next argument is that the employees had the
implicit right to take and give this data to the Union
in the absence of any company rule prohibiting this
conduct . This has no merit for several reasons. The
record shows that the two employees, as well as the
union officials present at the disciplinary con-
ferences of May 22 and 27, recognized that there
was something improper in their conduct, when the
employees continually evaded any admission that
they-had taken the data until confronted with their
handwriting, and then proffered false and untenable
reasons for so doing, and the union officials suc-
cessfully browbeat Wright into curtailing any ex-
tended probing of the reasons for their conduct
designed to show they were false, or secure an ad-
mission of the purported union purpose therefor. In
addition, the Union knew the employer would
resent the taking and actual use of the data when it
told employees to take it secretly and on their own
time. Finally, both employees admitted they knew it
was wrong to take any company property, and one
or both admitted they falsified their reasons for tak-
ing the data to avoid discipline. At no point in the
conferences did they or the union officials show
that the taking was protected activity or otherwise
justifiable. Their whole attitude while taking the
company data and during the conferences with
Wright shows that they knew the two employees
were guilty of doing something wrong which
Respondent would dislike and punish them for.
'" On the general obligations of employees to employers in this regard,
see 35 Am Jur , Master & Servant §§ 97, et sey
General Counsel tries to overcome these implica-
tions by arguing that Respondent had no specific
rule or policy prohibiting the taking of customer
data, and the lack thereof in the past is demon-
strated by Respondent's hasty promulgation of such
a rule on May 27, after Redus and Griffin admitted
taking such data, hence such conduct was not in
violation of company rules or policy and was also
protected by the Act because in aid of a lawful
union purpose. This argument is not impressive.
While the record shows Respondent had not previ-
ously issued any rule or regulation specifically
prohibiting employees from appropriating customer
data for the benefit of outsiders, the record shows
clearly that employees had long had good reason to
know that Respondent did not want any company
property, including company information relating
to its customers, copied by employees for release to
outsiders. All employees, when hired, were given
printed copies of company rules which, among
other things, prohibited taking of company proper-
ty. The Union got a copy of the rules when it
negotiated the 1966 contract with Respondent. For
some years past a notice had been posted in the
plant specifically warning employees of discharge
for violation of the rule. In addition, as early as
February 1963, Wright had apprised employees of
the importance of preventing release of company
data to competitors, in a speech in which he ex-
pressed Respondent's great concern about a re-
ported attempt of competitors to bribe employees
to release detailed data about company products
and its dealings with its customers; he had
emphasized that disclosure of such data would
harm the business and jeopardize the jobs of em-
ployees, hence Respondent wanted workers to
cooperate to prevent such disclosures. While the
speech did not in so many words promulgate a rule
specifically to prohibit the release of data to out-
siders by employees, this is understandable because
Respondent's information at the time was only that
outsiders had approached employees to try to buy
the data from them, not that employees were trying
to peddle the data to outsiders on their own initia-
tive, hence there was no occasion for Wright to try
to prohibit employee action, but only to appeal to
their sense of loyalty and self-interest in their jobs
to persuade them to resist bribe offers for company
data.'`' However, the speech made it clear to em-
ployees that Respondent desired to prevent disclo-
sure of company information to outsiders who
might use it to harm the business and their jobs. In
light of this incident, the continued publication of
the company rule against taking of company pro-
perty both when hiring employees and in the plant,
and the guilty attitude and actions of Redus and
Griffin in the May conferences with Wright, I am
" The fact that Respondent did not indicate that employees were active-
ly trying to sell company information is probably the reason why employees
who testified for General Counsel had no clear recollection of the speech,
but it is significant that none of them denied that Wright made the speech
VITRONIC, INCORPORATED
satisfied and find that both knew they were doing
something harmful to Respondent which violated
its rules and policy, in their furtive taking of
customer data for use of the Union . Hence, these
circumstances weigh heavily against any inference
that promulgation of the specific rule of May 27
denotes discrimination against them , but rather
support Wright 's explanation that he issued it, after
warning both employees that taking of customer
data was forbidden , only as a clarification of the
basic company rule about company property, when
the need for such clarification became apparent for
the first time from the reports about Redus' and
Griffin's conduct . 20 In these circumstances , ( 1) I do
not consider that side remarks of company counsel
during cross -examination of Redus amount to a sig-
nificant admission by Respondent that its written
rule was only intended by it, and understood by em-
ployees, to apply only to physical property and not
to company records or information, (2) nor can I
conclude or find that the basic company rule had
been abandoned with the advent of the Union, on
the basis of testimony of Personnel Director Mc-
Manus that after the Union came in, a copy of the
printed rules and regulations was removed from the
plant bulletin board and not reposted , since Wright
testified credibly that it was removed only when a
new board was installed and used for posting of
items dealing with current activities, and the record
shows that Respondent has continued to issue the
printed rules and regulations to employees when
hired , and (3 ) the failure of Wright to mention the
basic printed rule in the May 22 and 27 con-
ferences is at most a suspicious circumstance, but
falls short of substantial proof that the printed rules
no longer existed or at least did not apply to com-
pany records or information , because admissions of
both employees and union officials Hudson and Dil-
beck show that they knew on and before May 22
that customer data was valuable company informa-
tion and that Respondent would resent the taking
and outside use of such data , and Redus deliberate-
ly continued to filch the data after May 22 with the
Union 's approval even after Wright had specifically
warned her not to do it. In addition , I note that the
complaint does not charge, nor does General Coun-
sel argue, that the promulgation of the specific rule
of May 27 was an unfair labor practice, either as
coercive or discriminatory action against em-
ployees, or as an alleged unlawful unilateral action
like the changes of wages and working conditions
on June 5, as considered elsewhere herein.
General Counsel also claims the employees' ac-
tions were protected activity because in aid of the
O1 Although Wright admits he knew as early as April 25 that several em-
ployee credit unions, which were actual or potential customers, would
cease to buy from Respondent until it cleared up its "labor problems," and
that the Union was thus mounting a consumer boycott against it, nothing in
these letters or any other proof adduced by General Counsel indicates that
Respondent knew or had reason to believe before May 22 that the boycott
was being extended to other customers or distributors of Respondent, or
that its employees were actively taking and feeding customer data to the
Union to aid the boycott
1079
Union's consumer boycott which was admittedly in-
stituted to compel Respondent to bargain with it
even during and notwithstanding the pendency of a
QCR. This argument is rather startling , because it is
well settled that any employer who recognizes or
deals with one union , as against a rival union, dur-
ing the pendency of a QCR runs the grave risk of
being found in violation of the Act, §' and plain
logic indicates that the same risk exists where a
QCR is pending on an RD petition. Hence, Respon-
dent would still be violating the requirement of
neutrality if it had acceded to the Union' s request
of June 5 for bargaining on behalf of all employees
in the unit before the Board had ruled on the pend-
ing objections to the election. General Counsel
brushes aside this limitation by arguing that, while
Respondent was not chargeable with the duty to
bargain with the Union while a QCR was pending,
the Union's use of a boycott to compel Respondent
to bargain with it in this period was still "not clearly
unlawful" because the Union had a form of pre-
sumptive legal status as the incumbent bargaining
agent , based on its prior certification and receipt of
a majority of the votes in the 1969 election, in
which situation an 8(a )(2) charge against Respon-
dent would be "unlikely" if it bargained with the
Union while its objections to the election were
pending. This, of course, is a speculative argument
which ignores the rights of dissident employees,
particularly E. C. Fagan, who filed the RD petition,
as well as Respondent, to have all issues regarding
the legality and purity of the election resolved be-
fore Respondent recognized the Union; it is spe-
cious to say that Fagan had no right to, or would
not, file charges against Respondent alleging viola-
tions of the Act if it had bargained with the Union
notwithstanding the pending QCR, particularly
where General Counsel has now seen fit to charge
Respondent with an alleged breach of neutrality
and violations of Section 8(a)(I) in the unilateral
changes of wages and working conditions during
pendency of the QCR Since General Counsel thus
admits Respondent was not required to bargain
with the Union while the QCR is pending and un-
determined, it seems a logical consequence that the
Union could not lawfully compel Respondent to do
so, whether by a strike, boycott, or other form of
economic warfare, Hence, that admitted purpose of
the boycott appears to be unlawful, and it follows
that actions of employees in aid of that purpose fall
outside the protection of Section 7 of the Act and
the employer may lawfully discharge them
therefor. 2
11 N L R B v Exchange Parts Company, 375 U S 405, 409 (violation of
Section 8(a)( I) found where benefits given before election), Ambox, In-
corporated, 146 NLRB 1520 (violation of Section 8(a)(I) found where
benefits given while objections to election pending ) See also international
Ladies' Garment Workers' Union v N L R B , 366 U S 731, 739, 740
" Hoover Company v N,L R B, 191 F 2d 380, 386 (C A 6), denying en-
forcement of Board Order in 90 NLRB 1614 on this point, N L R B v
Local 1229, IBEW, 346 US 464, 477-479
1080 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
While admitting that economic pressure exerted
by unions for unlawful goals, such as to compel an
employer to commit clear violations of the Act or
other laws, is not protected activity, General Coun-
sel tries to sidestep the logic and weight of the
above authorities by arguing that, notwithstanding
the reversal by the court, the Trial Examiner must
still follow the Board decision in Hoover Company,
90 NLRB 1614, to the extent that it held that a
consumer boycott by a union to compel an em-
ployer to bargain with it pending a QCR and before
certification of a rival union by the Board did not
lose its protection under the Act, on the theory that
such recognition of one union did not "necessarily
violate the Act," but only "might violate the Act,"
since many things might happen to remove the
QCR and thus render such recognition lawful (such
as withdrawal or dismissal of the petition creating
the QCR, or even employer recognition of rival
unions on a members-only basis).':' The Board so
ruled after due consideration of the employer argu-
ment (like that of Respondent here) that it could
not have yielded to the boycott's pressure without
violating the Act under the doctrine of Midwest
Piping & Supply Co?' where the Board had held
that execution of a contract with one of two com-
peting unions, while a QCR was pending before the
Board, violated Section 8(a)(1) of the Act, as a
breach of the employer's "obligation of neutrality."
But General Counsel ignores the important fact
that the Board recognized in the Hoover case that
its decision in Midwest Piping was based primarily
upon its concern for the protection of its own
processes in representation cases,25 and that its
refusal in Hoover to find a clear illegality in the
boycott purpose rested on the "reasonable possi-
bility" of voluntary employer action removing the
legal impediment of the pending QCR. Here, I am
impelled to conclude that the circumstances of a
closely fought election, with the outcome decided
by only 7 votes out of 299 cast, in a proceeding in-
stituted by an employee, not the employer, would
make it so clear to Respondent that its employees
were almost evenly divided about continued ad-
herence to the Union, as to rule out any "reasona-
ble possibility" that Respondent would voluntarily
withdraw its objections to the election or take any
other action to cause a dismissal of the QCR.26
Thus, the circumstances here differ enough in vital
aspects from those in the Hoover case so as to
prevent the Board's decision there from being con-
trolling here. Thus, the outstanding purpose of the
Union, Redus, and Griffin in implementing the
boycott is that they were acting solely to compel
Respondent effectively to forego its right to file and
litigate the objections to the election under the Act
and Board Rules, by bargaining fully with the
Union as though no OCR were pending. This was a
direct, coercive interference with the Board's elec-
tion process and the right of employer and em-
ployees to have the rectitude and purity of the elec-
tion tested and decided in a proper and formal
manner. Hence, I conclude that the decision of the
Board in the Hoover case is not apposite or con-
trolling here on the facts in the particular aspect of
that decision relied on by General Counsel.27
General Counsel also argues that the employees'
action in aid of the boycott was protected because
they were not displaying disloyalty to Respondent
by disparaging its products, as occurred in Jefferson
Standard Broadcasting Company, 94 NLRB 1507,
and their actions were peaceful. However, the
Board and the courts have recognized that acts of
physical sabotage against the employer's business
and property as well as disloyalty involved in insub-
ordination and disobedience of proper orders,
although in course of otherwise protected con-
certed activities, are not protected by the Act,2"
and the Board recognized in Jefferson Standard
Broadcasting that employee tactics tending to cast
discredit on their employer without clearly tying
their conduct to the ultimate purpose of trying to
extract some concessions on their working condi-
tions from their employer, "were hardly less in-
defensible than acts of physical sabotage" (94
NLRB at 151 1). I consider that secret theft of vital
and confidential company information for the
deliberate but undisclosed purpose of injuring, if
not destroying, Respondent's business in order to
accomplish an unlawful purpose is clearly flagrant
2-' 90 NLRB at 1618, 1619
2' 63 NLRB 1060
21 90 NLRB at 1617, fn 5
" Another indication of Respondent 's desire for the election process and
its disinclination to forego any step in that procedure available to it under
the law lies in testimony of Wright and Hudson that, when the Union
threatened at the consent election conference in the Board office in April
1969, to file unfair labor practice charges, Respondent's agent suggested
the Union do this at once, so that Respondent could promptly show the fal-
sity of the charges and open the way for a prompt election
2r General Counsel has cited no Board decision, and my own research
has not disclosed one, in which the Board has in so many words reaffirmed
its ruling in Hoover and declined to follow the court's decision therein until
reversed by the Supreme Court I also note that the Supreme Court in
N L R B v Local No 1229, IBLW, 346 U S 464, 477, fn 12, quoted with
approval with Board's remarks in the Hoover case that "An employee can-
not work and strike at the same time He cannot continue in his employ-
ment and openly or secretly refuse to do his work He cannot collect wages
for his employment, and, at the same time , engage in activities to injure or
destroy his employer's business ," hence , I must conclude that this
pronouncement is still viable That case involved the discharge of em-
ployees for public distribution of handbills during a strike which bluntly at-
tacked the programs of the employer, a radio station, and although the
Board had upheld the discharges largely because the handbills attacked the
employer's products without tying the attack to the pending labor dispute,
the Supreme Court noted that these actions of the distributors in support of
their strike would still have been beyond the protection of the Act, even if
it appeared that the strikers had puhlici7ed the distribution as part of con-
certed activitiy This ruling, although perhaps judicial dicta, supports a
finding that Respondent properly discharged Redus and Griffin here for the
flagrant disloyalty inherent in their conduct
" N L R B v Local 1229, el( , 346 U S 464, 474, 475, in effect affg
Board Order in Jefferson Standard Broadca sting Company, 94 NLRB 15(17,
upholding discharge for employees for written attacks on the employer's
business and products
VITRONIC, INCORPORATED 1081
and reprehensible disloyalty and tantamount to acts
of physical sabotage under the above authorities
and thus beyond the protection of the Act.29
On consideration of all the pertinent facts and ar-
guments pro and con , I conclude that Respondent
has adduced cogent proof which under the persua-
sive authorities cited above tends to show that it
properly discharged Redus and disciplined Griffin
for secret theft of company property in the form of
valuable company customer data for the purpose of
assisting the Union in conducting a boycott against
Respondent for an unlawful purpose, which is
adequate to rebut facts, circumstances, and argu-
ments relied on by General Counsel to show a
prima facie case of discrimination against these em-
ployees,30 and that General Counsel has not
sustained the ultimate burden of proving by a pre-
ponderance of substantial proof in the record as a
whole that these employees were subjected to dis-
crimination in violation of the Act I shall grant
Respondent's motion to dismiss the complaint in-
sofar as it charges such discrimination against them
and will recommend dismissal of the complaint to
that extent 31
iii. THE OBJECTIONS TO THE ELECTION IN CASE
14-RD-312
The consent election was scheduled for May 12,
1969, between 3:15 and 5 p.m., in the National
Guard Armory, located on the northwest corner of
Walnut and Spring Streets, in Doniphan, Missouri,
and directly across Walnut Street from Respon-
dent's plant. John F Nicholson, the Board field ex-
aminer assigned to run the election, arrived at the
site that morning and personally surveyed the area
surrounding the armory including the adjacent
streets leading to the entrance to the voting area.
Between I and 2 p.m., he called a preelection con-
ference of representatives of Respondent and the
Union in the office of Plant Manager Wright which
was on the Walnut Street side of the plant.t2
Nicholson outlined the voting hours, place, and
procedure. Wright asked what areas would be off
limits for electioneering Nicholson announced that
he did not want anyone talking to voters who would
line up to vote on the sidewalk on Spring Street on
the south side of the armory:" so that there would
be no electioneering on the entire south side of the
armory including the south side of Spring Street, or
the "other side of this street" along the east side of
the armory. Wright asked if the latter instruction
meant that workers should stay on the east side of
Walnut Street. Nicholson asked if the street outside
the plant office was Walnut, and Wright said it was,
so Nicholson said he wanted no electioneering on
the "other side of the street," indicating the west
side of Walnut Street adjacent to the armory. None
of the parties' representatives raised any further
questions about these designations.
I find the above facts from a composite of
credited and mutually corroborative testimony of
Nicholson , Wright , Murray, Bingham , and docu-
mentary evidence, as corroborated in part by ad-
mission of Stanley Hudson , C. W. Scott,
Hawthorne , Rowe , Patrick , and Zanoni . I do not
credit testimony of several of the latter group of six
witnesses called by the Union which tends to show
that Nicholson severely limited the off- limits area
on Spring Street on objection by Patrick, for
several reasons. Zanoni and Patrick testified, in ef-
fect, that Patrick objected openly to the restriction
of both "streets" on the ground that they were
public thoroughfares used by the public for auto
and pedestrian travel, and by children of workers
who came to meet their parents when they left
work, and that Nicholson recognized the merit of
this objection by restricting only the "grassy area"
between the south wall of the armory and the ad-
jacent north sidewalk up to the curb line of Spring
Street, and also generally restricted the area to that
which he could "visibly see out there [from the vot-
ing place]." However, their story is supported only
partly by fragmentary testimony of union observer
Pigg who said Nicholson revised the limitation to
"south side of the armory building to the side of the
[Spring] street ," but it is significant that Pigg does
not mention any "grassy area"; and he indicates
that the revision arose on an objection by Wright,
not Patrick. It is also notable that none of the other
four union officials and observers present sup-
ported the two organizers on this point. Although
Zanoni testified that the announced broad scope of
the off-limits area "disturbed" him, he contradicts
himself and Patrick in part by admitting his final
understanding of the revision was that "there could
not be anybody in the street [meaning Spring
Street] as such," which conforms with Nicholson's
"' Banta Co , 145 NLRB 1141, Younguown Cartage Co , 146 NLRB 305,
C'onihuuron Engineering, Inc , 177 NLRB 521 (refusal to hire employee
Bird on another project)
Another indication that Respondent 's sole motive for discipline of
both employees lies in the fact that it at first suspended Redus and
discharged her only after she continued to steal information and Respon-
dent had collected written, as distinguished from verbal, evidence thereof
on advice of counsel, whereas it did no more than reprimand Griffin, a
union official, in the absence of evidence that she continued to filch infor-
mation like Redus
" In reaching this conclusion, I have also considered the fact that
Respondent has violated the Act in one isolated incident of minor import,
but any inferences of animus against . the Union which might be drawn
therefrom are well counterbalanced by record facts showing Respondent's
apparent amicable dealing with the Union under the expired contract, and
the fact that it continued to recognize and deal with it for specific purposes
even after the contract expired and while the OCR was pending
'R Respondent had Wright , Lenore B Wright, Eva J Murray , and Jean
Moore at the meeting The Union was represented by local officials Stanley
Hudson and James Scott, organizers J D Patrick and Joseph Zanom, and
employees Franklin D Pigg , Marion A Hawthorne , and Era Dean Rowe
Employees E C Fagan and William Bingham represented the petitioner in
the RD case
"The voting area was entered from the north side of Spring Street
through a sunken doorway at the southwest corner of the armory , and the
direct line of approach for most voters coming from the plant to the voting
place was along the north side of Spring Street adjacent to the factory,
crossing the intersection of Walnut and Spring Streets at the northeast and
northwest corners, and then continuing west along the north side of Spring
Street to the cement walkway leading to the armory door aforesaid
1082 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
original restriction. Further, the testimony of both
organizers that their objection was based on an un-
warranted restriction of all of Spring Street (both
sides and the street itself) against public traffic is
apparently a pretext, for both wefe experienced in
elections before the Board and must have known
that "electioneering" referred basically to activities
by employer and union and their representatives,
not to pedestrians or members of the general public
driving cars on the street or to children of workers
coming along the street for family reasons. In addi-
tion, Patrick's own version of the revision has
Nicholson saying he did not want anyone talking to
the workers lined up alongside the armory while
waiting to vote, which purpose would be largely
nullified if partisans of either side could electioneer
freely from the street itself or on the curb side of
the voting line, as contrasted to the grassy area
between that line and the armory; and it would be
almost completely nullified if Nicholson had limited
the off-limits area only to what he could see from
within the voting place, because credible testimony
of union observer Hawthorne and company ob-
server Murray and an engineering drawing of the
armory, plant, and both streets in the record
demonstrates that anyone inside the voting area,
even near the doorway, would have a rather nar-
row, pie-shape view of only about 20 feet of the
north sidewalk west and east of the entrance to the
voting place, so that if the union agents are to be
credited, Nicholson was telling the parties that elec-
tioneering was permitted anywhere along the voting
line up to a point 20 feet from the walkway into the
polling area, whether the solicitation came from the
grassy area or the street side. I cannot believe that
Nicholson in fact did, or would have, so restricted
the off- limits area , for in so doing he would have
violated the standing instructions of the General
Counsel for guidance of Board agents conducting
elections, which provide, in pertinent part (I) "no
electioneering will be permitted at or about the
polling place during the hours of voting" (Rule
11326) and (2) "there should be no organized elec-
tioneering along the line of march between work-
place and polls, whether the polling place be 20
feet or 5 blocks from the workplace" (Rule
11326.5).:14 I must assume that Nicholson, with at
least 2 years of experience in running Board elec-
tions, was familar with and followed these rules in
outlining the no-electioneering area at the con-
ference, and in fact his original delineation of the
" While not mentioned by any of the parties in argument at the hearing
or in briefs , these rules are considered by General Counsel as public infor-
mation under the Public Information Act of 1966, PL 89-487, effective
July 4, 1967 , amending Section 3 of the Administrative Procedure Act of
1946, 5 U S C Sec 1001, et %ey
" The record shows that the voting hours were fixed to allow night-shift
voters reporting for work at 4 p in to vote before they clocked in, and day-
shift employees to do the same after they clocked out between 3 45 and 4
p in After clocking out, day-shift voters would walk along the north side of
Spring Street adjacent to the factory , cross the intersection of Spring and
Walnut Streets through the northeast and northwest corners , and then join
the voting line alongside the armory on the north side of Spring Street
area as found above amounts to a practical and
reasonable application of the second rule quoted
above, for it did not prevent electioneering among
workers leaving the plant and walking along the
line of march up to the street intersection, but only
insulated voters while in that line alongside the ar-
mory itself, as well as on their direct approach to it
from the plant on the east, the plant parking lot
north of the armory, and along Walnut Street from
the south;35 the four corners of the intersection
were reasonably within the off-limits area, as voters
would take only seconds to cross the intersection
and loin the voting line. Hence, I conclude that the
union organizers either deliberately misconstrued
or distorted the original outline of the prohibited
area in an effort to broaden the scope and effec-
tiveness of the last-minute electioneering they had
in mind. This becomes apparent when considering
their subsequent electioneering and two private
discussions they had with Nicholson
Although Zanoni admits in testimony that
Nicholson's instructions were clear to him, he says
he was "upset" and "tense" because he still needed
"clarification" of them to find out whether the off-
limits boundaries on Spring Street ended at the
curbline or elsewhere, so that he would know
where to place workers distributing handbills for
the Union Despite his doubt, he did not seek
further "clarification" at the preelection con-
ference, but with Patrick approached Nicholson
privately while the latter was getting election
material from the trunk of his car parked on Spring
Street,"' Zanoni told Nicholson the Union would
have handbillers at the northeast, southeast, and
southwest corners of the intersection, and asked if
that was permissible. Nicholson looked at those
corners, said they were off-limits and that he would
have nothing to do with locations outside the boun-
daries he had fixed, but that if the parties agreed to
handbilling at those locations inside the boundaries,
they could do so, that he could not be a party to it,
and that without such an agreement those locations
would be subject to objections. This discussion was
not communicated in any way to Respondent or
any of its representatives, nor did the Union ap-
proach Respondent to try to get its agreement to
electioneering at those locations. I find this discus-
sion from credited testimony of Nicholson, as cor-
roborated in part by admissions of Zanoni, Patrick,
Hawthorne, and Pigg. I do not credit testimony of
Zanoni and Patrick to the effect that Zanoni in-
Night-shift workers who parked in the north parking lot would walk from it
along the west side of Walnut Street, adjacent to the armory, to the
northwest corner of the intersection , and turn right into Spring to join the
voting line Workers who might park in other lots or streets south and west
of the intersection would come east on Spring Street to the voting line, and
north on Walnut to cross the intersection at the southwest or southeast cor-
ners to enter the voting line
' No company official or representative of Petitioner Fagan was present
at this discussion or notified by the Union about it beforehand Union ad-
herents Stanley Hudson, Hawthorne, and Rowe were nearby and heard
parts of the discussion
VITRONIC, INCORPORATED 1083
dicated the Union wanted handbillers at all corners
of the intersection except the northwest, and in
front of a beauty shop on the north side of Spring
Street about 100 feet west of the entrance to the
voting place, and at the entrance to the plant park-
ing lot on the west side of Walnut Street north of
the armory, and that Nicholson indicated that he
approved these locations, as long as the handbilling
"was in an area where he could not physically see
them and they did not interfere with people lined
up to vote." A private, unilateral revision of the an-
nounced prohibited areas to the limits of his vision
from within the voting area appears incredible for
the same reasons noted with respect to the claimed
revisions during the preelection conference.
After a meeting between 2 and 3 p.m. of the
union organizers at the union hall with local union
officers and members who volunteered to distribute
handbills, the Union assigned at least 10 union
members to handbill at all corners of the intersec-
tion, except the northwest corner (southeast corner
of the armory where the Board agent had posted
no-electioneering signs), with 1 at the entrance to
the plant parking lot on Walnut Street just north of
the northeast corner of the armory, and 1 or 2 at a
location on the north side of Spring Street some
distance west of the entrance to the polling place :t'
The handbilling at all locations began at 3 p.m. and
continued until 4:15 p.m., except that the two sol-
icitors on Spring Street west of the voting place,
Linda Baucom and Sharon Nowak, stopped hand-
billing at 3:50 p.m., as they were night-shift em-
ployees and had to clock in by 4 p.m., no one took
their places at that station. In this period Darlene
Griffin, union shop steward for her department and
a trustee of the Union, handbilled most of the time
on the northeast corner which was directly in the
line of march of the day shift on its way from the
plant exit to the polling place; on one or two occa-
sions she left that post to give handbills to the hand-
biller located at the plant parking lot or to visit
workers on other corners of the intersection to
replenish her own supply of handbills. Stanley Hud-
son, president of the Union, at various times re-
lieved handbillers at the intersection stations when
they went to vote, but most of the time he was at
the northeast corner; his wife, Elsie, was the hand-
biller at the parking lot. Katharine Scott, a member
of the Union's executive board and wife of C. W.
Scott, vice president of the Union, handbilled at
times at the southeast and southwest corners.
Throughout the handbilling the solicitors at these
corners often interchanged locations. Since the day
shift was the largest of the two work shifts, it is
clear that Griffin, Hudson, and one or two other
handbillers on the northeast corner actively con-
tacted a majority of the eligible voters with hand-
bills only seconds before they joined the voting line,
which extended from the entrance to the voting
place almost to the northwest corner of the inter-
section for at least 45 minutes after the polls
opened.:"
Having failed to secure a secret, unilateral ex-
emption from the original no-electioneering area by
application to Nicholson on Spring Street, the
union officials indicated they tried again during
final inspection of the voting area by both parties
with Nicholson in the 15 minutes before the polls
opened. Zanoni and Patrick testified, in effect, with
some corroboration from Hudson, that: While
Nicholson was explaining the setup of observers'
stations and the voting booth, and the voting
procedure, to the parties in the voting area, both
agents took Nicholson aside from the other persons
present and again explained the location of their
handbillers to him, and he approved the handbilling
at the intersection by saying that if "they are out of
my line of sight, they are all right," so long as they
did not come up and interfere with workers in the
voting line; Zanoni persuaded Nicholson to walk
outside the armory so that he could point out the
handbiller west of the armory on Spring Street, and
Nicholson said that location was okay; at that time
one or two handbillers were standing in front of the
beauty shop about 100 feet west of the walkway
leading into the voting place. During this discussion
all other representatives of the parties except Hud-
son were at least 15 to 20 feet away near the voting
booths, so that they did not hear the discussion;
there is no proof that any of the union officials told
any representative of Respondent or Fagan of their
alleged talk with Nicholson The Board agent flatly
denied the whole discussion. I credit his denial for
several reasons: (1) for the same reasons I dis-
credited the union agents' version of their private
talk with him at his car, (2) 1 consider it very un-
likely that Nicholson would take time out from his
last-minute duties supervising the voting setup and
procedure and then running a one-man election, to
step aside and give the Union a private reaffirma-
tion of its handbilling arrangements which clearly
varied from his original instructions, particularly
with Wright and other representatives of Respon-
dent in the same room, for this would be a flagrant
demonstration of prounion partisanship on his part,
which could never command Board approval; (3)
the story of the union agents is palpably an attempt
by testimonial fabrication to create an apparent
second official approval of the handbilling locations
found above, as further support for their first fabri-
"The handbillers were Griffin, Stanley Hudson and his wife, Elsie,
Katharine Scott, Linda Baucom ( Helms ), Lucille Neil, Jerry Nowak and
Sharon, his wife, Ida Mae Richmond, and Eva Dean Rowe
a This was due to the influx of the mass of day-shift voters after they
clocked out and in part to an initial slowdown in the actual voting when ob-
servers for the three parties were having difficulty in the mechanical
checking of voters against the eligibility list, until the Board agent rear-
ranged them for more efficient operation I find the above facts from a
composite of credible testimony of witnesses called by both parties In view
of my findings and conclusion hereafter that the admitted handbillings at
all corners of the intersection except the northwest violated the elec-
tioneering limits set by the Board agent, I find it unnecessary to resolve the
conflict in testimony as to whether handbilling occurred also on the
northwest corner
1084 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation; this conclusion is strengthened by Zanoni's
admission that he well knew and told Nicholson in
the talk at the car that the Board agent had barred
all of Spring Street alongside the armory to elec-
tioneering, so that Zanoni found it necessary to try
to have three corners of intersection of Spring and
Walnut excepted from the ban, and then to "beg"
Nicholson (as he put it) to leave the voting area to
view and approve the handbilling locations a
second time;19 (4) the credibility of the union
agents is further diminished by their creation of a
boycott deliberately designed to harm, if not
destroy, Respondent's business for an unlawful pur-
pose, and the fact that they thought nothing of a
resort to the disreputable tactic of directing and
causing employees secretly to steal valuable com-
pany information in order to implement the
boycott.
After carefully assessing all pertinent facts bear-
ing on the issue, I conclude and find that the Union
deliberately violated the no-electioneering area an-
nounced by the Board agent before the polls
opened, even after it tried twice without success to
get from him a secret and unilateral revision of the
boundaries of that area, and that the unauthorized
electioneering on the northeast corner of the
Spring-Walnut intersection within that prohibited
area by two known officials of the Union, as well as
other union members, had a substantial impact
upon a majority of the voters as they walked along
the line of march between the plant and the voting
place and just as they entered the voting line which
was well calculated to impress and sway voters
within a prohibited area at or near the polling
place, and thus could well have affected the results
of the election if it had swayed no more than four
voters, and that , in this respect , the electioneering
"Another indication that the Union at the outset recognised the
propriety of Nicholson'% original no-electioneering boundaries as properly
including the four corners of the Spring-Walnut intersection appears in
Zanom 's admission that, while he and Patrick were discussing a worker
grievance with Wright shortly after 3 p in , after the group inspection of the
voting area , and were standing on Walnut Street a few feet from the
northeast corner of the intersection , Zanoni was perturbed and wanted
them to discuss it at a point further away from the inter section so that wor-
kers coming to vote could not see the union officials , as he felt their
presence there would he a violation by "definition of the Board" if the
voters could see them , even though they were not electioneering It is sig-
nificant that he knew that he and the Union were even then violating the
prohibition when he talked to handhillers on the northeast corner to give
them their final instructions ( although the record shows that they received
full and detailed instruction s about their duties at the union hall)
"'Clausen Baking Company, 134 NLRB 111, 112, Mdchem, Inc , 170
NLRB 362, where the Board made it clear that voters in Board election%
must be tree of distraction , last-minute electioneering , or pressure by any
party while they are waiting to cast their ballots and that " the final minutes
before an employee casts his votes should be his own, as free from inter-
ference as possible, " so that he can consult his own conscience on voting
without interruption These observations apply equally here, although
there is conflicting proof about last-minute conversation by union
representatives with voters in the voting line, becau se the Board agent at
the outset properly delineated the area in which voters must he tree of such
last-minute pre ssure , so that a clear and deliberate violation of that area,
which amounts to violation of a Board rule imposed for purpose % of that
election , is far more than a trifling violation
I have considered other case s cited by the Union which would indicate
that distances as far as 100 to 150 feet from the polls may not fall within the
at that corner, as well as the other two corners of
the intersection in the prohibited area, was of such
a nature that it inhibited the exercise of a free cho-
ice by voters and is therefore a basis for setting
aside the results of the election.40
CONCLUSIONS OF LAW
1. In Case 14-CA-5137, Respondent has vio-
lated Section 8(a)(1) of the Act by its threat to iso-
late Norma Jean Boyles for legitimate comment
about a foreman 's antiunion leaflet , but has not vio-
lated the Act by any other conduct alleged in the
complaint.
2. In Case 14-RD-312, officials and agents of
the Union violated election rules and procedures
established by the Board agent conducting the elec-
tion therein in a manner and to an extent which in-
terfered with the right of employees to make a free
choice in the election , thus destroying the purity
and laboratory atmosphere of the election.
RECOMMENDED ORDER
Although I have found that Respondent violated
the Act by its single threat of isolation of one em-
ployee for legitimate union activity, there is no
proof that it implemented that threat in any way or
extended it to other employees, so that neither that
employee nor any others have been harmed
thereby. In the absence of any substantial proof of
other union animus by Respondent, I do not feel
that a remedial order based on a minimal, isolated
instance of such conduct is warranted . Hence, I will
recommend that the complaint in Case
14-CA-5137 be dismissed in its entirety.41
definition of " at or near the polls" stated in Board rules However, those
cases cannot control , as they did not involve definite no-electioneering
area,, fixed by the Board agent, which thus became the ad hoc definition of
that phrase for purposes of this election See also Star Expansion Industries
Corporation, 170 NLRB 364, where an election was set aside because a
union agent clearly violated the Board agent '% designation of a no-elec-
tioneering area
I find no merit in the claim that Nicholson's designation of the no-elec-
tioneering area was improper, for the Board has held that the determina-
tion of that area must he left to the informed judgment of the agent of the
Regional Director conducting the election , as he is on the scene and
familiar with the physical circumstances of the location of the polls. Murvd
International Security Service , Inc , 173 NLRB 1260 Even if it were proper
to second - guess the Board agent on this, the facts found above showing the
exposed nature of the long line of march to the polls and the routes and cir-
cumstance s of actual movement of the voters to the polls amply demon-
strate the reasonableness and propriety of Nicholson's delineation of the
prohibited area in the first instance In light of the physical circumstances
here , the ruling in Home Town Foods , Inc , 172 NLRB No 126, on far dif-
ferent facts cannot be apposite or controlling
In view of the above conclusions , I consider it unnecessary to make
findings on conflicting testimony dealing with movements of union agents
in car" on Walnut and Spring Streets during the voting, the effect of the
congregation of union officials and adherents on Spring Street lust before
the polls closed and when voting had practically ceased , or the effect of
handbilling by union adherents near the beauty shop on Spring Street or at
the parking lot exit on Walnut Street
°1 Omni Spectra, Inc , 176 NLRB 165, Feldkamp Sheet Metal, Inc , 176
NLRB711
VITRONIC , INCORPORATED 1085
Having found in Case 14-RD-312 that the ORDER
requisite purity and laboratory atmosphere of the
election of May 12, 1969, has been destroyed by The complaint herein should be, and hereby is,
conduct of the Union 's agents and adherents found dismissed in its entirety.
above, I will recommend that the election be set
aside, and a new election held by the Regional
Director at an appropriate time.