Shovel Supply Co.

SHOVEL SUPPLY COMPANY 315 L. C. Ferguson and E. F. Von Seggern, d/b/a Shovel Supply Com- pany and Local 96, International Brotherhood of Boilermakers, Iron Shipbuilders, Blacksmiths, Forgers and Helpers, AFL- CIO, Petitioner. Case No. 16-RC-1888. June 25, 1957 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On February 11, 1957, pursuant to a Decision and Direction of Election issued by the Board,' an election by secret ballot was con- ducted, under the direction and supervision of the Regional Director of the Sixteenth Region, among the employees of the Employer in the unit found appropriate. A tally of ballots was issued to the parties which shows that of 90 votes cast, 17 were for the Petitioner, 58 against, 14 were challenged, and 1 was void. The challenged ballots are not sufficient to affect the results of the election. Thereafter, the Petitioner filed timely objections to the Employer's conduct affecting the results of the election. After an investigation of the aforesaid objections, the Regional Director, on April 4, 1957, issued his report on objections, in which he recommended that one of the Petitioner's objections be sustained, that the others be over- ruled, and the election be set aside. Thereafter, the Employer filed timely exceptions to the recommendation that the election be set aside, and the Petitioner filed exceptions to the Regional Director's failure to recommend that the other objections be sustained. The Board has carefully reviewed the report on objections, the excep- tions, and the entire record in this case, and hereby makes the following findings and conclusions : There is no controversy as to the facts of the Employer's surveil- lance of a union meeting before the election, which the Regional Director in his report found had occurred as follows : Objection No. 2 L. C. Ferguson, a, partner of Shovel Supply Company, admitted parking his car in the vicinity of the Travis Hotel on a Sunday afternoon a week or two before the election (Ferguson could not identify the particular Sunday but since the election took place 28 days after the Board Decision and Direction of Election the time can be fixed with reasonable certainty as between the date of the Board's Decision and the date of the election). With L. C. Ferguson in his car were Carl Kuhn, the plant superin- tendent, and Don Ferguson, his son. Although none of the occu- pants of the car spoke to any of the employees, attending the x Not reported in printed volumes of Board Decisions and Orders. 118 NLRB No. 41. 316 DECISIONS OF NATIONAL LABOR RELATION'S BOARD meeting, L. C. Ferguson admitted that their purpose in placing the hotel under surveillance was to see which employees were interested in attending a union meeting. None of the occupants of the car made any efforts to attend the meeting or to leave the car. The Regional Director concluded that this surveillance constituted interference with the rights of the employees to self-organization as guaranteed by Section 7 of the Act, was calculated to interfere with the. rights of the employees to a free and untrammelled election, and therefore recommended that the election be set aside. The Employer excepts on the grounds that (1) before the election can be set aside, there must be direct and positive proof that the con- duct complained of did influence and prevent a fair election; and (2) one isolated instance of surveillance is not sufficient cause under the Act and Board practice to set aside the election. We find no merit in these exceptions. It is well established that the Board will not attempt to examine the subjective reaction of employees to alleged interference, but will concern itself with whether the specific act reasonably tends to inter- fere with a free choice of representatives.2 It is also well established that open surveillance of a union meeting by top officials of an em- ployer, such as occurred here, is a violation of Section 8 (a) (1) of the Act; 3 this is so because it is calculated, and reasonably tends, to interfere with, restrain, and coerce employees in the exercise of rights guaranteed in Section 7. Such open surveillance cannot be char- acterized as isolated conduct because by its very nature it not only directly affects the employees subjected to the surveillance, whatever their number, but also is calculated to, and potentially does, affect all employees in the plant. Accordingly, we conclude, as did the Regional Director, that the Employer's surveillance of the union meeting interfered with the employees in the exercise of their free .Choice of a bargaining representative, and we shall therefore order that the election held on February 11, 1957, be set aside and a new election be held at such time as the Regional Director deems appropriate.' [The Board set aside the election of February 11, 1957.] MEMBERS RODGERS and BEAN took no part in the consideration of the above Supplemental Decision, Order, and Direction of Second Election. 2 E. g., Southeastern Motor Truck Lines, Inc., 1.12 NLRB 601, 604. 3 E. g., Linn Mills Company, 116 NLRB 96, 100. 4In view of our decision herein, we do not find it necessary to pass upon the Peti- tioner 's exceptions.