General Engineering, Inc.

GENERAL ENGINEERING, INC., ETC. 901 to the outcome of the pending union election the Respondent has interfered with, restrained, and coerced its employees in the exercise of their rights guaranteed by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 5. The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. ,6. Respondent did not violate Section 8 (a) (3) or (1) of the Act by the discharge of Merdie Dotson whom I have found to have been discharged for cause. [Recommendations omitted from publication.] General Engineering, Inc. and Harvey Aluminum (Incorporated) and United Steelworkers of America , AFL-CIO. Case No. 36-CA-1023-1. May 31, 1961 DECISION AND ORDER On January 24, 1961, Trial Examiner James R. Hemingway issued his Intermediate Report 'in the above-entitled proceeding, finding that Respondents had engaged in and were engaging in certain unfair labor practices and recommending that they cease and desist there- from and take certain affirmative action, as set forth in the copy of the Intermediate Report attached hereto. The Respondents filed ex- ceptions to the Intermediate Report and a supporting brief ; the General Counsel filed a limited exception to the Trial Examiner's recommended remedy. 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 Inter- mediate Report, the parties' exceptions, and the entire record,' and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, except as indicated below 2 ORDERS Upon the entire record in this case, and pursuant to Section 10 (c) of the National Labor Relations Act, as amended, the National Labor 1 We find no merit in Respondents ' contention that the Trial Examiner was prejudiced or arbitrary. 2 Respondents except to certain factual findings of the Trial Examiner . Although the record indicates that the access road to the plant may be somewhat shorter than 100 feet and that there is a rear entrance to the plant, contrary to the Trial Examiner's finding, these minor errors or discrepancies have no bearing on the unfair labor practices found herein , nor do they affect our reliance on the Trial Examiner 's credibility findings. We take official notice of our prior finding that General Engineering , Inc. and Harvey Aluminum ( Incorporated ) are a single employer under the Act, and find, in the instant case, that the Respondents constitute a single employer . General Engineering, Inc., and Harvey Aluminum, 123 NLRB 586; General Engineering, Inc, and Harvey Aluminum, 125 NLRB 674; General Engineering, Inc., and Harvey Aluminum (Incorporated), 131 NLRB 648 We do not find it necessary, therefore, to rely on the Trial Examiner's finding that the Respondents acted in concert. 3 As urged by the General Counsel in its exception , we shall alter the Trial Examiner's recommended order and notice to correspond to his unfair labor practice findings, which we adopt. 131 NLRB No. 108. 902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Relations-Board hereby orders that the Respondents, General En- gineering, Inc. and Harvey Aluminum (Incorporated), their officers, agents, successors, and-assigns, shall : 1. Cease and desist from : (a) Photographing or professing to photograph their employees while they are accepting literature from union agents or while they are engaged in the lawful exercise of the rights guaranteed in Section 7 of the Act. (b) In any like or related manner interfering with, restraining, or coercing employees in the exercise of their rights of self- organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organization, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purposes of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment, as authorized in Section 8 (a) (3) of the Act, as amended. 2. Take the following affirmative action which the Board finds will effectuate the policies of the Act : (a) Post at their plant facilities at The Dalles, Oregon, copies of the notice attached hereto marked "Appendix."' Copies of said notice, to be furnished by the Regional Director for the Nineteenth Region, shall, after having been duly signed by the Respondents' representatives, be posted by the Respondents immediately upon re- ceipt thereof, and be maintained by them for 60 consecutive days there- after, in conspicuous places, including all places where notices to em- ployees are customarily posted. Reasonable steps shall be taken by the Respondents to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Nineteenth Region, in writing, within 10 days from the date of this Order, what steps the Respondents have taken to comply herewith. 4 In the event that this Order is enforced by a decree of a United States Court of Appeals, there shall be substituted for the words "Pursuant to a Decision and Order" the words "Pursuant to a Decree of the United States Court of Appeals , Enforcing an Order." APPENDIX NOTICE To ALL EMPLOYEES Pursuant to a Decision and Order of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our employees that : GENERAL ENGINEERING, INC., ETC. 903 WE WILL NOT discourage membership in United Steelworkers of America, AFL-CIO, by photographing or professing to photo-' graph employees while they are receiving union literature from agents of that Union. WE WILL NOT in any like or related manner interfere with, re- strain, or coerce our employees in the exercise of the right to self- organization, to form labor organizations, to join or assist United Steelworkers of America, AFL-CIO, or any other labor organi- zation, to bargain collectively through representatives of their own choosing and to engage in concerted activities for the pur- pose of collective bargaining, or other mutual aid or protection, or to refrain from any or all such activities, except to the extent that such right may be affected by an agreement requiring mem- bership in a labor organization as a condition of employment, as authorized in Section 8(a) (3) of the Act, as amended. GENERAL ENGINEERING, INC. AND HARVEY ALUMINUM (INCORPORATED), Employer. Dated---------------- By------------------------------------- (Representative ) (Title) This notice must remain posted for 60 days from the date hereof, and must not be altered, defaced, or covered by any other material. INTERMEDIATE REPORT AND RECOMMENDED ORDER STATEMENT OF THE CASE The complaint alleges a violation by General Engineering, Inc. and Harvey Alu- minum (Incorporated), herein called the Respondents, of Section 8(a)(1) of the National Labor Relations Act, as amended , 29 U.S .C., Sec. 151, et seq., by the photographing (or appearance of photographing ) employees while they were re- ceiving pamphlets from agents of United Steelworkers of America, AFL-CIO, herein called the Union . The Respondents' answer was in the form of a letter on Harvey Aluminum letterhead signed by A. W. Hinz, director of industrial relations.' The answer, although improperly pleading argumentative matter, does deny part of the jurisdictional allegations and denies any alleged violation of the Act; it further pleads a justification for the taking of photographs of the distribution of literature on the ground (in substance ) that such distribution caused automobiles entering the plant to stop on the railroad tracks and thus endangered the lives of the Re- spondents' employees and that the purpose of such photographing was to enable "the Employer" to take "appropriate action" to prevent the continuation of the hazard. Pursuant to notice, a hearing was held at The Dalles, Oregon , on August 23, 1960, before the duly designated Trial Examiner . All parties were represented and par- ticipated in the hearing.2 All were given the opportunity to file briefs. Only the General Counsel filed a brief with the Trial Examiner. From my observation of the witnesses, and upon the entire record in the case, I make the following: 1 This answer does not use the words "admit" or "deny" but rather uses "agrees to" or "takes exception to" allegations of the complaint. Although the form of language in the answer is thus a departure from customary terminology , I find that the answer suffi- ciently complies with Section 102.20 of the Rules and Regulations, Series 8, of the National Labor Relations Board, herein called the Board 2 The Respondents' local counsel did not participate in the bearing. 904- DECISIONS OF NATIONAL LABOR RELATIONS BOARD FINDINGS OF FACT I.-THE BUSINESS OF THE RESPONDENTS Harvey Aluminum (Incorporated), herein called Harvey when referred to indi- vidually, is a California corporation engaged in the production and fabrication of aluminum products. At all times material to the issues herein raised, Harvey has maintained its principal office and the place of business at Torrance, California, herein called the Torrance plant, and has maintained a plant at The Dalles, Oregon, herein called "The Dalles plant" or merely "the plant." General Engineering, Inc., herein called General when referred to individually, is an Oregon corporation engaged in the construction and operation of The Dalles plant of Harvey.3 In the operation of The Dalles plant, during the year preceding the issuance of the complaint, Harvey manufactured, sold, and distributed products valued in excess of $100,000, of which products valued in excess of $50,000 were shipped from said plant directly to States of the United States other than Oregon .4 During the year preceding the issuance of the complaint, General, in the course and conduct of its business operations, purchased, transferred, and delivered to The Dalles plant goods and materials valued in excess of $50,000 from States of the United States other than Oregon. Harvey and General each is engaged in commerce within the meaning of the Act, and I find that it will effectuate the policies of the Act to assert jurisdiction .5 II. THE LABOR ORGANIZATION INVOLVED United Steelworkers of America, AFL-CIO, herein called the Union, is, and at all times material hereto has been, a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES A. The facts Between October 1958 and June 1960 the Union had engaged twice a week (on Wednesdays and Thursdays) in distributing union literature on the road approaching the plant. It was the Union's practice on Wednesday of each week to distribute literature twice a day, first, to personnel arriving and leaving the plant at the time of the change of shifts at 8 a m., and, secondly, to the swing shift arriving on Wednesday afternoons; and it was the Union's practice on Thursday only in the afternoon to distribute literature to arriving personnel on the new swing shift, a change in the personnel of such shift occurring weekly on that day. The Dalles plant is situated between the Columbia River and the railroad tracks of an interstate railroad. Paralleling those tracks on the far side from the plant is a highway known as the old Columbia River Highway. The access road to the plant intersects with this highway at a point about 9 to 15 feet from the tracks. From the evidence, I conclude that this access road is the only approach to The Dalles plant and that it is in the neighborhood of 100 feet long from the tracks to the plant fence. A wire mesh fence encloses the plant property. A gate through this fence, vertical to the access road, permits ingress into the parking lot of the plant. However, another road turning off to the right from the access road, as it reaches the plant fence, skirts the fence around the parking lot and leads to the guardhouse. When the Union's agents distributed literature, they would stand in the noddle of the access road (to be on the driver's side of the approaching cars) at a point between the railroad tracks and the plant gate, usually about midway between the tracks and the gate but sometimes moving about, and would hand the literature to the driver as he passed. The three agents of the Union that so distributed literature O The complaint alleges and the answer denies that the Respondents constitute a single employer. As the evidence herein shows that the Respondents acted in concert in the activities which are the subject of the charge and complaint, I find that It is immaterial whether they constituted one or two employers. 6 The complaint made similar allegations regarding the Torrance plant which were denied by the Respondents' answer. Only The Dalles plant is involved herein. Although the Respondents' answer does not admit the allegations of the complaint with respect to The Dalles plant, it does not specifically deny them. I, therefore, take them to be admitted under Section 102 20 of the Board's Rules and Regulations , Series 8 5 See Siemona Mailing Service, 122 NLRB 81; Piedmont Shirt Company, 126 NLRB 674. GENERAL ENGINEERING, INC., ETC . 905 testified that they did not stop the cars as they came in and that the only time when a line of cars backed up to the railroad tracks was when one stalled or when , during the arrival of the greatest number of cars in the morning between 7:30 and 8 a.m., a car would seek to leave the plant by way of the road skirting the fence and would thus, in making a left turn, cross in front of cars seeking to enter the gate. They conceded that once in a while a driver would voluntarily stop to talk, but they gave the impression that this did not often occur during the heavy flow of traffic. Robert Moore, chief clerk for the Respondents,s testified that the distribution of literature to incoming cars caused following cars to stop on the railroad tracks, although he did not testify that they were stopped for any particular length of time. Moore appeared to attribute most of the instances of cars stopping on the tracks when approaching the plant to the distribution of literature. 11-find, however, that if the presence of the Union's agents ever caused a car to stop on the tracks, it was at most a momentary stoppage and that such incidents did not occur to any ap- preciable extent. It may be observed that the stoppage of cars on the tracks was much more likely to occur at a period of exodus than while entering, because only about one car length of the access road lay between the tracks and the old Columbia River Highway and there was a stop sign at this junction , requiring cars leaving the plant to stop before entering the highway. The driver of the car behind the one stopping at the highway, therefore, would have to bring his car to a stop short of the tracks to wait for the car ahead to gain the highway unless he chose to stop on the tracks. The evidence indicates that instances of the latter choice were not uncommon. The access road at the railroad crossing was equipped with warning signals to warn against the approach of trains, of which four or five passed daily.? According to Moore, before 8 a.m. on May 11, 1960, he observed a tieup of in- bound traffic extending back to the railroad tracks, which he attributed to the dis- tribution of union literature on the access road, and he spoke to General's General Manager Cronkrite about it. In this conversation "a suggestion was made" to take pictures of the distribution of literature for the purpose of furnishing proof that it did cause cars to stop on the railroad tracks, with a view to getting an injunction. Later, Moore spoke of the same matter to Personnel Manager Richmond. Richmond had a Polaroid camera and requested Bert Wyatt, captain of security for General, to take pictures in case any cars were stopped on the tracks by the distribution of union literature. That 'afternoon, for about 40 or 45 minutes between 3 and 4 p.m., Wyatt stationed himself outside the plant gate and took three or four photographs .8 However, he kept his camera in a position to take other pictures, in the event cars should be caused to stop on the tracks and this gave the appearance that he was taking pictures of each car as the driver was receiving literature, according to Wyatt. On Thursday, May 12, shortly after 3 p.m., Wyatt drove out in a pickup truck and parked it in a position to watch incoming traffic as employees were arriving for the swing shift. He had the same camera with him and, although he took no pictures, he testified that he might have sighted it once or twice. A few minutes after the arrival of Wyatt, Moore, having procured through Richmond a 35-millimeter camera, came out of the plant and stationed himself by the pickup truck and took pictures as union literature was being distributed by an agent of the Union.9 He continued until 9 Moore's supervisors were Rene LeGault, Harvey 's plant superintendent , and Andy Cronkrite, general manager of General. 7 There was no effort to prove the number of passenger trains daily nor the schedules on which they ran . A Union Pacific Railroad timetable shows westbound ,passenger trains stopping at The Dalles at 3,47 am. and at 7 :05 a .m. Because of this stop , the west- bound trains would not be traveling at high speed when passing the plant upon leaving The Dalles . Eastbound trains are scheduled to stop at The Dalles at 4 p.m and 11 •55 p in. From this, it appears that one eastbound (the 4 p.m ) and one westbound train (the 7:05 a.m.) would daily pass the plant at a time when some employees might perhaps be coming in for a change of shifts, although most of the inbound traffic would be expected to follow the morning train and to precede the evening train I would not consider it likely that freight trains would be passing at a time close to that for arrival of the passenger trains. 8 It does not appear what these pictures showed They apparently are not among those introduced in evidence 9 Three of these pictures were introduced in evidence . One shows Lloyd Fowler, a union agent, handing literature to the driver of a car while it was only about a car's length past the railroad crossing. No cars are shown behind it A second shows Fowler 6 906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Lloyd Fowler, a former employee who was distributing literature for the Union, ran out of handbills and left at 3:45 p.m. The following week, on May 18, 1960, Fowler was accompanied by Union Repre- sentatives Dan LaMain and Teddy Bryan. Between 7 and 7:30 a.m., Wyatt was driven outside the gate in a Harvey pickup truck. When the truck was parked beside the gate, Wyatt again took pictures (or gave the appearance of it) of the incoming cars as Fowler, LaMain, and Bryan distributed literature to the drivers of the incoming cars. Wyatt remained after 8 a.m., when the graveyard shift left, and took or gave the appearance of taking pictures of the distribution of literature to the departing cars also.10 Again on the afternoon of May 18, Wyatt was present taking pictures or appearing to take pictures of the distribution of literature to employ- ees driving in for the swing shift. He remained until Fowler ran out of handbills and left at 3:45 p.m. Although Wyatt appeared again on the afternoon of Thursday, May 19, he did not have a camera with him but, at the request of Fowler, he returned to the personnel department for the camera and took pictures of Fowler and Bryan, who posed for them.li However, Wyatt continued for 'about 15 minutes, after photographing Fowler and -Bryan, purporting to take pictures of employees coming to work on the new swing shift as they would be handed literature by Fowler and Bryan. Wyatt testified that he actually took no more pictures after photographing Fowler ad Bryan and that he took none after May 19 because the vacation schedule was beginning and he became too busy helping elsewhere. B. Contentions and concluding findings The Respondents claim that their purpose in taking pictures was to obtain evidence for a court proceeding and that they had no intention of engaging in surveillance of their employees. The General Counsel takes issue with the bona fides of the Respondents' asserted justification but argues that, in any event, the Respondents' subjective intent is immaterial because the reasonably forseeable consequence of the Respondents' conduct was to interfere with the rights of their employees by giving the impression of surveillance. The Respondents in their answers plead: "The Union representatives passing out literature have been asked by our Security Department and myself [A. W. Hinz] numerous times to please stand south of the railroad tracks for incoming traffic, and north of the railroad tracks for outgoing traffic." No proof was offered of any such request by Hinz. The alleged request by the security department was testified to by Bert Wyatt, captain of security, only on cross-examination. He was vague about the communication to the Union, testifying that he spoke to LaMain several months before the picture-taking episode and that he thought he had spoken to LaMain more than once but was not certain. On the one occasion which he remembered, he testified, he told LaMain "they were blocking traffic out there" and "I asked him if they would move back so that they [the employees] would have free access to the plant." He did not testify as to where LaMain, Fowler, or Bryan was when this request was allegedly made. LaMain testified that Wyatt never told him that the distribution of handbills was creating a dangerous condition at the rail- road crossing or, indeed, spoke to him at all about the place or manner of handbilling. Even from Wyatt's testimony, it will be observed, nothing was said about going to walking toward the tracks away from a taxicab which had just crossed the tracks and toward a car which is on the tracks. Moore testified that Fowler was going to hand literature to the driver of the second car, but this appears to have been an assumption on Moore's part Fowler testified that the taxicab had stopped to ask him directions to the personnel office and while he was giving directions the second car drove up behind the cab The third picture shows Fowler standing by and extending his hand into a car which is just across the tracks No cars are in front of it The picture shows a truck just turning off the highway into the access road but not yet on the tracks. 10 Wyatt moved his vehicle to the opposite side of the road after the graveyard shift began coming off. Wyatt testified that on one occasion he moved his vehicle because he had the ambulance, which is longer than the pickup truck, and because it was blocking traffic coming out of the gate Testimony of the General Counsel's witnesses indicates that Wyatt had the ambulance on the 19th rather than on the 18th, and that on the 18th he had the pickup truck This goes to the question of motivation, as will be discussed later herein "Apparently, this request was made by Fowler because he knew that LaMain was in his car on the side of the highway with a camera of his own with which he intended to take pictures of Wyatt • GENERAL ENGINEERING, IN C., ETC. 907 the far side of the railroad tracks for incoming traffic. Wyatt's request to move back, if made, appears to be more a request not to block the entrance gate (because he spoke of giving the employees free access ) than it does a request to avoid the danger involved in causing cars to be stopped on the iailroad tracks. I find that such a danger was never the subject of any statement made by Wyatt or any other repre- sentative of the Respondents to any representative of the Union. The absence of such notice to the Union impugns the Respondents' motives, sug- gesting that if the Respondents were concerned with halting the distribution of liter- ature by court proceedings at all, it was not in fact for safety 's sake but was because the Respondents sought to impede the distribution of union literature and believed that they might do so only if they could make a showing of possible hazard grow- ing out of the distribution of literature by the Union 's agents. The failure to pro- duce all the pictures taken, which may or may not have involved automobiles on the railroad tracks, makes it uncertain that pictures were taken only of cars stopped on the railroad tracks such as could be used for court proceedings. However, it is apparent that between May 19 (the date of the last pictures ) and August 23 (the date of the hearing ) no injunction had been procured. The only intimation that any court proceedings for one might possibly have been initiated was Fowler's testimony on cross-examination that he had, on August 22, 19,60 , received a sum- mons to appear in court on September 1, 1960 . There is nothing in the records to show the nature of the case in which Fowler was subpenaed to testify . , The Respond- ents' representative , Hinz, asked Fowler on cross-examination if he had been sub- penaed "to appear in the Circuit Court for the State of Oregon, for Wasco County because you have forced people to stop on the railroad track grade crossing in violation of the laws of the State of California [sic] plus the extreme hazard and great risk and danger to employees of Harvey Aluminum and General," but, follow- ing an objection to this question, which was overruled, Hinz, without waiting for an answer, substituted a new question , "Did you receive a summons?" That question was answered affirmatively , but Hinz asked no further questions about the case in court. When the Trial Examiner questioned Fowler about the nature of the case in which he had been subpenaed , Fowler was unable to give any information about it. The record is, therefore, barren of any evidence that the Respondent was seek- ing a remedy against the Union because of a railroad crossing hazard . Even if such a proceeding had been initiated , it does not appear that it was started by the Re- spondents before July 6 , 1960, the date of the charge and, if started after that date, it would not strengthen the Respondents' defense. Also contributing doubt that the Respondents ' primary concern for the employees' safety was the reason for their taking of pictures in May 1960 , the General Counsel argues, is the fact that the danger to employees at the railroad crossing is greater as they leave the plant than when they enter because , due to the short distance be- tween the railroad tracks and the old Columbia River Highway and because of the necessity for stopping before entering the highway , following cars would very likely be stopped on the railroad tracks . The Respondents belittle this argument, claim- ing that the conditions which produce this danger are permanent and inherent in the arrangement of the roads , railroad tracks, and stop sign and that there is nothing that they can do about that, whereas the handbilling activities were not fixed by the State, the railroad , or the law, and therefore the Respondents were concerned only' with that which they felt they could do something about . I am not convinced that an employer, concerned over the safety of employees at such a crossing would make no effort to improve the situation . If safety were the primary concern of the Re- spondents, they might have taken steps to cause traffic lights to be installed at the intersection, to install grade separations, to widen the access road north of the tracks, or some other action that would be designed to increase the safety of employees leaving the plant. There is no showing that they made any effort at all. Contrary to the Respondents' reasoning, therefore, I 'find that the danger to departing em- ployees was as much or more a cause for concern than the danger to incoming em- ployees , and that, from the disparity of concern by the Respondents, the conclusion is warranted that the Respondents were more concerned with simply stopping the distribution or receipt of union literature than they were with stopping it because of the possible hazard which is contended to be a side effect thereof. Further supporting this conclusion is the fact that, on at least one occasion, Wyatt purported to take, if indeed he did not take, pictures of the distribution of literature to employees as they were leaving the plant when any hazard to the employees at the railroad tracks was concededly not attributable to the handbilling activities on the plant side of the tracks where such activities customarily took place. The Respondents scoff at the accusation of surveillance , saying that if they had a purpose, by photographs , to identify those employees who took handbills , the-photo- graphing of such action would be needless since the employees could be seen as they 908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD brought -the handbills to the plant with them and, in. any event, the Respondents' agents from the guardhouse could watch the access road and see who took handbills. The Respondents' argument might have some value if they were negating an infer- ence of surreptitious surveillance. What the Respondents were accused of, how- ever, is what is sometimes called open surveillance. The fact that surveillance is open, however, does not deprive it of its character as a discouragement of interest in a union and as interference, restraint, and coercion of the employees in the rights guaranteed in Section 7 of the Act, for a threat-is implicit in the photographing of employees while they are engaged-in any kind of-union activities." The General Counsel argues-that, because of this, the motives of the Respondents is immaterial, for the Respondents must be presumed to have known and therefore intended that the reasonable consequences of their acts would be to create in the minds of their employees an apprehension of surveillance and of possible unfavor- able action by the Respondents.13 I find. it unnecessary to pass on the contention that the Respondents' motive is immaterial, even if a bona fide one of safeguarding the employees' safety, for I have found that this was not the Respondents' motive. So much the more, then, must- the foreseeable consequences be attributable to the Respondents. Furthermore, the apprehension in the minds of the employees would be all the more justified in view of the Respondents' past unfair labor practices (including surveillance of a union meeting) as heretofore found by the Board.14 In The May Department Stores Company, et al., 59 NLRB 976, pictures of the distribution of handbills to employees at the store entrance by union agents were taken by the employer, allegedly for the purpose of convincing the city police, whom an agent of the employers had previously consulted, that the distributors of the handbills were causing congestion at the employer's entrance and were thereby pro- ducing a fire hazard. The Board there found that the picture taking was an inter- ference with the employees rights guaranteed in the Act. There, as in this case, the asserted motive was not deemed the true one. In Tennessee Packers, Inc., 124 NLRB 1117, the employer photographed union organizers who were distributing leaflets to employees at the employer's gate as employees were entering or leaving. The alleged reason therefore was to learn the identity of -union organizers with whom the employer would have to deal. But, the Board pointed out, an employee cannot be expected to know for what purpose the pictures are taken. It said, "Vile taking of pictures by an employer, who is known to be adverse to the unionization of its employees . necessarily has a normal and natural tendency to create fear and consternation in the . . . employee that the employer is recording, for some pres- ent or future course of action involving him, an act of that employee's which that employee knows to be displeasing to the employer." The mere threat to photograph employees at a union election, in itself, has been held to constitute interference, restraint, and coercion without actually doing it.15 So much the more is the effect the intimidation of employees when the pictures are openly taken.16 I conclude and find on all the evidence that, by taking, and by professing to take, even when not in fact taking, photographs of the distribution of literature by agents of the Union to employees of the Respondents, the Respondents have interfered with, restrained, and coerced employees in the exercise of the rights guaranteed in the Act. IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondents set forth in section III, above, occurring in con- nection with the operations of the Respondents described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the 12 N.L.R B. v. Collins & Aikman Corp., 146 F. 2d 454 (C A. 4) ; Radio Industries, Inc, 101 NLRB 912; Hudson Hosiery Company (Monroe Road Plant), 109 NLRB 1410; Tennessee Packers, Inc, 124 NLRB 1117 See also Faulhaber Company, 129 NLRB 561 is It has been so held : The Radio Officers' Union of the Commercial Telegraphers Union, AFL (A. H. Bull Steamship Company) v. N L.R B , 347 U.S 17, 45. 14 General Engineering, Inc., and Harvey Aluminum, 125 NLRB 674. Another case by the same name (Cases Nos. 36-CA-953 and 36-CA-954) Is now pending before the Board upon exceptions to the Intetmediate Report of a Trial Examiner [131 NLRB 648]. 15 "M" System, Inc., Mobile Home Division, Mid-States Corp ., 118 NLRB 502 , 507, 513. See also Marval Poultry Company, Inc, 129 NLRB 803, where employer said it had a tape recorder in the union hall and recorded everything that was said at the union meeting 18 Tennessee Packers, Inc, supra. AMERICAN CYANAMID COMPANY 909 several States, and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY Since I have found that the Respondents , by photographing their employees while accepting union literature distributed outside the plant by the Union 's agents, inter- fered with, restrained, and coerced employees in the exercise of rights guaranteed in Section 7 of the Act, I shall recommend that they shall cease and desist from such activity and take certain affirmative action designed to effectuate the policies of the Act. Upon the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. The Respondents are engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. United Steelworkers of America, AFL-CIO, is a labor organization within the meaning of Section 2 (5) of the Act. 3. By interfering with, restraining, and coercing their employees in the exercise of the rights guaranteed in Section 7 of the Act , the Respondents have engaged in and are engaging in unfair labor practices within the meaning of Section 8(a) (1) of the Act. 4. The aforesaid unfair labor practices are unfair labor practices within the mean- ing of Section 2 (6) and (7) of the Act. [Recommendations omitted from publication.] American Cyanamid Company and Pensacola Building and Con- struction Trades Council, Petitioner American Cyanamid Company and Textile Workers Union of America, AFL-CIO, Petitioner.' Cases Nos. 15-RC-2175 and 15-RC-2179. May 31, 1961 SUPPLEMENTAL DECISION, ORDER, AND DIRECTION OF ELECTIONS On February 2, 1961, the Board issued a Decision, Order, and Di- rection of Election in the above-entitled proceeding.2 In that De- cision, the Board, with then Chairman Leedom and Member Fanning dissenting, found a unit of production and maintenance employees at the Employer's Santa Rosa plant located near Milton, Florida, to be appropriate in Case No. 15-RC-2179 and directed an election therein, and it found a unit of maintenance employees at such plant requested in Case No. 15-RC-2175 to be inappropriate and dismissed the peti- tion for an election therein.' Thereafter, on February 7, 1961, the Council filed a motion for reconsideration of the decision insofar as it modified the Board's longstanding policy as to the establishment of maintenance units, or in lieu thereof, requested oral argument thereon. 1 The Petitioners are referred to herein as the Council and TWUA, respectively. 2130 NLRB 1. 3 International Chemical Workers Union , AFL-4CIO, and District 50, United Mine Workers of America, herein referred to as the Chemical Workers and UMW, respectively, intervened on the basis of their interest showings in the broader unit. 131 NLRB No. 125.