Middletown Manufacturing Co., Inc.

234 DECISIONS OF NATIONAL LABOR RELATIONS BOARD seniority or other rights and privileges, and make them whole for any loss of pay suffered as a result of the discrimination against them: Clarence Cherry Edward Richter William C. Harris Roy Ligon, Jr. Robert Heatherly Walter Kowalski Stephen Aszurek Ramon Szawronski Lyle Locke Eugene Shockley WE WILL NOT interrogate our employees concerning their union membership or activities or threaten them with reprisal because of such activity. WE WILL NOT in any other manner interfere with, restrain, or coerce our employees in the exercise of their right to self-organization, to form labor organizations, to join or assist the above-named Union, or any other labor organization, to bargain collectively through representatives of their own choos- ing, to engage in concerted activities for the purposes of collective bargaining or mutual aid or protection, or to refrain from any or all such activities, except to the extent that such rights 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. All our employees are free to become, remain, or refrain from becoming or remaining members of Local 155, International Union, United Automobile, Aircraft and Agricultural Implement Workers of America, (UAW) AFL-CIO, or of any other labor organization, except to the extent that this right may be affected by an agreement requiring membership in a labor organization as a condition of employment, a- authorized in Section 8 (a) (3) of the Act, as amended. RESEARCH DESIGNING SERVICE, INC., Employer. Dated------------------- By------------------------------------------- (Representative) (Title) NOTE.-We will notify any of the above-named employees presently serving in the Armed Forces of the United States of their right to full reinstatement upon application in accordance with the Selective Service Act after discharge from the Armed Forces. This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material Employees may communicate directly with the Board's Regional Office, 501 Book Building, 1249 Washington Boulevard, Detroit 26, Michigan, Telephone No. Wood- ward 3-9330, if they have any question concerning this notice or compliance with its provisions. Middletown Manufacturing Company, Inc. and International Union of Electrical, Radio and Machine Workers, AFL-CIO. Cases Not. 9-CA-2565 and 9-RC-47.95. March 7, 1963 DECISION AND ORDER On October 4, 1962, Trial Examiner Reeves R. Hilton issued his Intermediate Report in the above-entitled proceedings, finding that the Respondent had not engaged in certain unfair labor practices as alleged in the complaint and recommending that the complaint be dis- missed in its entirety, as set forth in the attached Intermediate Re- port. He also recommended that the objections to conduct affecting results of election, filed by the Petitioner, be overruled. Thereafter, the General Counsel and the Charging Party filed exceptions to the Intermediate Report and supporting briefs. Respondent filed a brief in reply to those of the General Counsel and the Charging Party. 141 NLRB No. 25. MIDDLETOWN MANUFACTURING COMPANY , INC. 235 Pursuant to the provisions of Section 3 (b) of the Act, the Board has delegated its powers in connection with these cases to a three-member panel [Members Rodgers, Leedom , and Fanning]. The Board has reviewed the rulings made by the Trial Examiner 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 exceptions and briefs , and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner.' IT IS HEREBY CERTIFIED that a, majority of the valid ballots cast in the election of March 23, 1962 , in Case No . 9-RC-4795, were not cast for International Union of Electrical , Radio and Machine Workers, AFL- CIO, and that the said Union is not the exclusive representative of the employees at the Middletown and Simpsonville , Kentucky, plants of Middletown Manufacturing Company, Inc., in the unit found by the Regional Director for the Ninth Region to be appropriate , within the meaning of Section 9(a) of the National Labor Relations Act. [The Board dismissed the complaint.] i The Trial Examiner found that the statement of Respondent Foreman Humphrey to employee Gordon that, if the Union was successful and obtained a wage increase for the employees, the Respondent might have to curtail overtime in order to pay the increase, was protected by Section 8(c) and was not violative of Section 8(a)(1). Even assuming that such statement was not clothed with the protection of Section 8(c), we find, as did the Trial Examiner, that the interrogation and statement, in the context of this case, do not warrant an affirmative remedial order and are insufficient to overturn the election herein. INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge duly filed in Case No. 9-CA-2565, on April 13, 1962, by Inter- national Union of Electrical, Radio and Machine Workers, AFL-CIO, herein called the Union, the General Counsel of the National Labor Relations Board issued a complaint dated June 1, 1962, against Middletown Manufacturing Company, Inc., herein called the Respondent or the Company, alleging violations of Section 8(a)(1) of the National Labor Relations Act, as amended (29 U.S.C. Sec. 151, et seq.), herein referred to as the Act. The answer, as amended, admits certain allegations of the complaint but generally denies the commission of any unfair labor practices and sets forth certain affirmative defenses to the conduct alleged in the complaint. In Case No 9-RC-4795, pursuant to a Decision and Direction of Election issued February 13, 1962, the Regional Director, on March 23, 1962, conducted an election among the Respondent's employees, which the Union lost. Thereafter, on March 30, the Union filed timely objections to the election and on June 15, 1962, the Regional Director found that objections Nos. 1, 2, and 4 raised substantial issues which should be resolved in a formal hearing. The remaining objections were overruled. On the same date the case was consolidated with the complaint case. Pursuant to the above order and notice, a hearing was held before Trial Examiner Reeves R. Hilton on July 10, 11, and 12, 1962, at Louisville, Kentucky. All parties were present and represented at the hearing and were afforded opportunity to adduce evidence, to examine and cross-examine witnesses, to present oral argument, and to file briefs Counsel presented oral argument and thereafter, about August 16, counsel for the Respondent and the Union filed briefs, which I have carefully considered.' 'After the time for filing briefs had expired I received a letter from company counsel, which indicates copies were sent to other counsel, citing, and briefly discussing, a recent Board decision, which counsel believed applicable to the present case. The General Counsel characterizes this letter a supplement to the brief and objects to its being re- 236 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Upon consideration of the entire record and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. THE COMPANY'S BUSINESS The Company, a Kentucky corporation, maintains its office and plants in and near Middletown, Kentucky, where it is engaged in the processing and manufacturing of metal stampings and assemblies. During the year 1961, the Company sold and shipped products valued in excess of $50,000, directly to customers outside the State of Kentucky. I find the Company is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 11. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization as defined in Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES AND THE OBJECTIONS TO CONDUCT AFFECTING THE RESULTS OF THE ELECTION A. The issues The question presented is whether the Company unlawfully interrogated its em- ployees concerning their union membership, activities, or sympathies, threatened em- ployees with layoff or discharge and other economic reprisals if the Union won the election, and promised benefits to the employees if the Union was defeated in the elec- tion thereby violating Section 8(a) (1) of the Act and interfering with the employees' free choice of a bargaining representative in the election? B. The Company's operations The Company operates 4 plants and at the time of the election employed about 155 employees. Plants 1, 2, and 3 are located in and about Middletown, Kentucky, which is 5 or 6 miles from Louisville, and plant 4 is located at Simpsonville, some 10 miles from the nearest plant in Middletown. Both Middletown and Simpsonville are rural communities and most of the employees live in the general area of the plants. At times material herein, the persons named below held the positions following their names: Roy F. McMahan, Jr., president; Austin V. Miller, vice president and production manager; James A. Humphrey, foreman, plant 3; and James L. Smith, foreman, plant 4. C. Organizational activities Louis Zimmer, International representative, entered the drive to organize the employees around January 1, 1962,3 and about January 4 he sent a letter to the Company wherein he stated the Union was conducting an organizational campaign among its workers and listed the names of 29 employees who were members of the Union or the organizing committee. About January 8, Zimmer sent another letter to the Company which was similar to the previous one, except that it added one more name to his list of union members or committee members. About January 8, the Union distributed a letter to the workers wherein it advised them of their statutory right to join the Union and that the Company could not threaten or intimidate them in the exercise of their right to organize. The letter set forth certain conduct on the part of the Company which is prohibited by the Act, and requested employees to report any violation of their rights to the organizing committee. As already stated, the Union filed a representation petition on January 10. McMahan said he and Miller were in Chicago around January 7 when the office manager telephoned to report the receipt of the first letter from the Union. McMahan ceived on the ground it Is not permitted by the Board's Rules and Regulations. I do not consider counsel's letter as a supplemental brief and certainly not a reply brief since the General Counsel failed to submit any brief or memorandum with me. I see nothing im- proper in counsel's efforts to lend some assistance to me in determining the issues in this case. 2 While the case presents no problem in this respect, only evidence relating to events occurring between the date of the filing of the representation petition, January 10, 1962, and the date of the election, March 23, 1962, will be considered in passing on the objec- tions to the election. (The Ideal Electric and Manufacturing Company, 134 NLRB 1275.) 3 Ail dates refer to 1962 unless otherwise stated. MIDDLETOWN MANUFACTURING COMPANY, INC. 237 then telephoned Edward B. Williams, a management-labor relations consultant in Louisville, and employed Williams upon his return from Chicago on January 10. McMahan had known Williams since about 1952, when McMahan was associated with Jeffersontown Wood and Metal Products Company and Williams represented the company when it was organized by the Teamsters in the summer of 1952. At some unspecified date, the company and the union executed a contract which contained a union-shop clause and sometime later, about September 1953, the plant was closed down and liquidated. 1. The instructions to the supervisors On January 10, McMahan called a meeting of the supervisors to inform them that Williams had been employed as labor consultant for the reason the Company did not want to be charged with any unfair labor practices as a result of the Union's campaign to organize the employees. Williams then explained the Act and instructed the supervisors to refrain from threatening employees in the exercise of their right to join or not to join the Union and that employees who were members of the union committee as well as those wearing union or antiunion buttons should be accorded the same treatment. However, Williams told the supervisors they had the right to persuade workers to refrain from joining the Union provided they did not intimidate or coerce the employees. The supervisors were also informed to never start a con- versation with an employee concerning the Union, but if an employee asked any questions regarding the Union they had the right to answer the question and discuss the subject so long as they did not threaten or intimidate the employee. Williams stated he would meet regularly with the supervisors during the campaign for the purpose of discussing questions or problems that might arise. Thereafter, and until the date of the election, Williams met with the supervisors about once a week and, generally, at these meetings the supervisors reported conversations employees had had with them concerning the Union and discussed such matters as the right of the employees to wear buttons for or against the Union and the text of circulars passed out by the Union and the Company. McMahan and Williams stated they received no complaints from employees indi- cating discriminatory treatment or interference with their right to organize by foremen or supervisors. Zimmer said that shortly after the Union filed its representation petition, Williams telephoned to say that he was representing the Company. Williams complained that someone had put sugar in the gas tank of an employee's car which he attributed to organizational activities and he wanted Zimmer to do something about it. Zimmer denied there was any connection between the incident and the Union's drive, but that he would speak to the members, which he did. Zimmer also told Williams he had complaints that foremen were interrogating and threatening employees and Williams said he would advise the supervisors of their rights under the Act. At the close of the representation hearing, February 1, Zimmer had another conversa- tion along the same line with McMahan and Williams. Williams was not questioned regarding these conversations. McMahan stated Williams and Zimmer had some conversation about the gas tank incident with Williams claiming it was done by union members and Zimmer stating it was the work of company adherents. McMahan denied Zimmer registered any complaints about the conduct of foremen during the organizational drive. 2. Alleged acts of interference, restraint, and coercion While the complaint alleges misconduct on the part of other supervisors it deals primarily with the activities of Humphrey who was foreman at plant 3.4 Gracie Duncan was first employed about September 5, 1958, and in January worked as a press operator in plants 1 and 4, respectively. About January 23, she was trans- ferred to plant 3 and worked under Humphrey until sometime after the election. During that period from 7 to 10 employees worked in the plant. Duncan was a member of the organizing committee and openly advocated the Union and solicited employees to become members thereof. Duncan stated that in the latter part of January, Humphrey approached her while she was working and asked if she had signed a union card and how many employees had signed up for the Union. He then inquired why she believed or- ganization was necessary and went on to state that if the Union came in, all overtime 'The General Counsel dismissed paragraph 5(j) of the complaint which alleged that Foreman Cecil F. Rogers interrogated one employee The General Counsel also withdrew paragraph 5(g) (ii) which alleged that Humphrey told an employee that if the Union came in there would be strikes and employees would lose work 238 DECISIONS Or NATIONAL LABOR RELATIONS BOARD would be eliminated and a third shift would be hired because the Company could not afford to pay overtime at increased rates. On cross-examination , she said Humphrey told the employees if the Union won the election it would ask for a raise and the Company, rather than pay higher overtime rates , would cut out overtime and hire a third shift. Humphrey repeated these statements practically every day during the latter part of January. Duncan and the other employees had been working overtime regularly for 3 or 4 months preceding the date of the election. Sometime in the first week of February, Humphrey talked to Duncan at his desk and again asked how many employees had signed union cards, repeated his statement regarding overtime, stated that McMahan would not stand for a union , that he would shut down the plant the same as he had closed down the Jeffersontown plant, and generally pointed out the disadvantages of belonging to the Union . In the latter part of February, Humphrey told Duncan he had heard some of the union leaders had "backed down" and queried , "Why didn't I back down like the rest had," that he could then make arrangements for her to talk with McMahan and tell him that she had changed her position towards the Union. Duncan related that on another occasion in the latter part of February , Humphrey told a group of employees, which included Roberta Smith and Margaret Chowning , that McMahan was unaware of poor working conditions in the plant, such as the lack of a water fountain , leaky roof, and so forth , and that they should give him a chance to correct these conditions, that if he did not do so within a year they could always vote for a union the following year. In the early part of March, Humphrey remarked to Duncan , Smith, and Chowning that they were stupid to believe the Union could obtain all the things they expected and when Duncan questioned his remarks, Humphrey told her , "One week after this union gets in, your a- has had it." Duncan admitted that on other occasions Humphrey told her the Union would not tolerate her absenteeism and tardiness. In general , Duncan said Humphrey and the employees were on friendly terms and they frequently ate lunch together at the plant . During the luncheon periods Humphrey and the employees freely discussed the Union , sometimes in a joking vein and other times in a serious manner . Duncan further stated that Humphrey talked about and against the Union "on an average of two or three times a day everyday from the time we started the union until the election." Margaret Chowning was hired about July 18, 1961 , and in the latter part of January was transferred to plant 3 where she worked as a press operator under Humphrey throughout the period in question. Chowning stated that commencing in the latter part of January and until the election , Humphrey discussed the Union with her individually and with groups of employees during lunch periods, work breaks, and worktime. On one occasion in February, Humphrey came to her while she was working and asked if she had attended a union meeting and what took place at the meeting. He also inquired if he could attend union meetings . Another time, around the first of March , Humphrey said, "He believed if the union didn't go in Skippy's [McMahan's] eyes would be opened . He believed we would get paid holidays and get better working conditions ." Again, about 2 weeks before the election, as well as other times, Humphrey said the Company would hire a third shift and eliminate overtime. Humphrey also stated at times that if the Union came in the plant might close like the Jeffersontown plant . In this connection Chowning said she had heard that when a union organized that plant McMahan sold out or shut it down . Chowning stated she never heard Humphrey threaten to discharge any employee because of the Union. However, Humphrey did tell Duncan, who had a poor attendance record, that if the Union organized the plant it would not put up with her absenteeism and tardiness . Chowning said a friendly relationship existed between Humphrey and the seven or eight employees in the plant and that the group frequently ate lunch together during which time they discussed the Union. Chowning stated she informed Humphrey practically every time she attended a union meeting and the group discussed events occurring at union meetings during the luncheon periods. At times Chowning believed Humphrey may have uttered his remarks in a kidding manner while at times he was serious in his talks with the employees. Brenda C . Beeler was hired about December 19, 1959, and worked as a press operator at plant 3, under Humphrey. from around Tanuarv 1 to 15, when she was transferred to plant 4. Like Duncan and Chowning, Beeler said Humphrey joined the seven or eight employees at lunch time and the group discussed the Union. During these discussions, some of which were friendly and some serious . Humphrey told the employees that if the Union organized the plant the employees might receive an increase to $1 50 an hour, but by the time they raid union dues and the Company cut down to a 40-hour week, they would be working for nothing Beeler said they were regularly working 9'/2 hours, 5 days a week , plus 5 hours on Saturday. MIDDLETOWN MANUFACTURING COMPANY, INC. 239 Humphrey frequently told the employees that if the Union came in the Company would put on a third shift and eliminate overtime pay. Again, Humphrey stated the Company would not stand for a union and cautioned employees to "remember what they done at Jeffersontown." According to Beeler, everyone knew that Jeffer- sontown had closed down. Humphrey also "harped" on strikes and union fines and fees and on one occasion stated that if the Union failed to organize the plant he would look for "all new faces in the plant within a year." At one time Humphrey asked if Beeler had signed a union card and when she failed to answer his question he commented, "I signed one, too ... but don't tell anybody. You know how Skippy [McMahan) is." On one occasion Beeler told the girls in the presence of Humphrey that she was in favor of the Union because it might obtain a drinking fountain for them and get the ladies' room fixed up. Roberta Smith worked for the Company about 6 years and around February she had a conversation with Miller while she was working at plant 4. In substance Smith stated she did not receive a longevity increase which had been given to some of the girls, so when Miller came into the plant "she jumped onto him about it." Miller said she did not have sufficient service whereupon Smith remarked, "You think I started the union." Miller replied, "No, it's not whether you started it or not It's when you all went down and signed the paper is when the damage was done." Smith understood this to mean when she and other employees went to the union hall and formed the union committee. Smith admitted that the next day Miller told her there had been a mixup on her length of service and that she was entitled to an increase, which she received in her next paycheck. Smith said that after Miller stated she was entitled to a raise he commented, "You know how to vote." Smith had been a union steward at the Jeffersontown plant, McMahan knew she acted in that capacity, and when the Jeffersontown plant shut down McMahan hired Smith and a number of workers who were members of the union at the Middletown plants. Estil Gordon was employed for some 51/2 years and worked on the production line in plant 3, under Humphrey, from about March 1960 to early March 1962. On the latter date he was transferred to plant 4 and worked under Foreman Smith. While the Union listed Gordon as a committee member in its letters of January 4 and 8, and he acted as a union observer at the election, apparently, he did not openly advocate organization among the employees. According to Gordon there was "quite a bit" of talk among the employees at plant 3 regarding the Union. Gordon further stated that in the latter part of February, Humphrey talked to him about the Union and Humphrey "just figured with me and showed me where I could make more working like I was than I could if I was in the union on account of my hours would be cut down." About a week later Humphrey told him if the employees joined the Union the plant would probably close down, On cross-examination Gordon acknowl- edged the correctness of the following statement appearing in his affidavit submitted to the General Counsel: We thought if the union came in the plant might close down. All ten people worked at plant under Humphrey. None of the bosses ever told me directly this. We just figured it. Around the first of March, Gordon was transferred to plant 4, which employed about 75 workers. Gordon admitted that at no time did Foreman Smith ever men- tion the Union to him. About March 21, Gordon was performing normal work duties when Smith asked him to post some literature on the side of the furnace. Gordon attached no significance to Smith's request and posted the literature on the furnace with mastic tape. Gordon identified one of the posters which urged the employees to "Vote No" in the election .5 Gordon became evasive when asked if one of the notices he posted was an official "Notice of Election," and when presented with this notice he said, "There might have been one of those in the bunch" given to him, that he had seen this notice on the furnace but he did not know whether he had posted the notice. A day or so later McMahan came through the plant and remarked that the literature had been posted in a "cockeyed" manner so it was diffi- cult to read and Gordon replied he had not had sufficient time to hang them straight. (Gordon reposted the notice correctly the next morning.) Gordon then gave a garbled account of his ensuing conversation with McMahan. In substance, McMahan asked why Gordon was "so fired hot" on the Union, which he denied. McMahan then said his name was on the "top of the list" (the Union's letters of January 4 and 8) and Gordon stated his name was last on the list. Seemingly, s This poster, about 14 by 20 inches, was captioned, "This is a Story of TUE Action at Jefferson City, Tenn." and contains pictures and excerpts from newspaper accounts in- dicating violence in strikes conducted by the IUE against one or two companies 240 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Gordon inquired why the employees had started the Union and when McMahan said he did not know there was some mention of the employees losing their Christmas bonus. At that point the General Counsel concluded his examination of Gordon. As a witness for the Union, Gordon said he also complained to McMahan that he had received but one raise of 10 cents an hour although he had been employed for almost 6 years. McMahan remarked, "Maybe you got one coming that you don't know anything about." On cross-examination counsel asked Gordon if McMahan had objected to the crooked way in which he had posted the official notice of election and he answered, "It could have been." Gordon admitted the truthfulness of his account of his conversation with McMahan in the above-mentioned affidavit wherein he stated: Skippy [McMahan] asked me why I was so fired up about the Union. I said I wasn't fired up about it. I had put [sic] company letters, and I figured he was paying me. That was all that he said. Gordon stated he was selected to act as observer about 1 or 2 weeks prior to the election. Zimmer testified that observers for the election were chosen on Friday, March 16, and the names were announced at a union meeting held on Sunday, March 18. Zimmer admitted the Union did not notify the Company of the names of its observers until the morning of the election. The Company's Evidence Humphrey was employed as foreman for 3 years at plant 3, which had about seven employees during the period in question and was located around 11/a miles from plants 1 and 2 and some 10 miles from plant 4. Humphrey was fully aware of the organizational campaign, saw the Union's letters of January 4 and 8, setting forth the names of the organizing committee, and attended all management meetings for supervisors. Like other witnesses, Humphrey said he maintained friendly relations with the employees and joined them at lunch time. According to Humphrey, the Union was discussed during the luncheon period and was a subject of conversation "all day long." Humphrey stated employees volunteered information regarding union activities and inquired about strikes and layoffs. Apparently, Humphrey made no comment on the volunteer information and gave "I don't know" answers to inquiries by the em- ployees. On another occasion employee Catlett asked if they would continue to get overtime if the Union organized the plant and Humphrey stated he did not know what would happen. Thereafter rumors circulated among the employees that there would be no more overtime and while the question of overtime was discussed during luncheon periods in Humphrey's presence, he refrained from making any comments on the subject. Humphrey could not recall making any statements regarding a third shift but there may have been conversations on that point. The gist of Humphrey's testimony was that he did not engage in the conduct attributed to him by witnesses for the General Counsel. Humphrey denied he questioned Duncan concerning her signing a union card or the number of employees who had signed cards, that he discussed the loss of overtime or the possibility of a third shift, that he threatened to fire her, or that he asked her to back down on the Union as other supporters had done. He admitted telling Duncan that if the plant was organized the Union would not tolerate her absenteeism and work conduct. Concerning Chowning, Humphrey stated that one time she asked, in a kidding way, if he would like to attend a union meeting with her and he replied he could not attend union meetings. Likewise, Humphrey denied that he asked Beeler if she had signed a union card or that he told Beeler that while employees might get a raise if the Union came in they would do nothing because overtime would be eliminated and they would be required to pay dues to the Union. He also denied having any conversation with Beeler to the effect that if the Union failed to get in he would look for "new faces" within a year. Humphrey denied telling the employees that McMahan would close down the plant if it became organized. He did state that one time three men asked if he thought the plant might close and he answered, "Well, to my knowledge, I don't know. But it could happen." Humphrey said on one occasion Gordon expressed some doubt or concern about the correctness of his paycheck and he attempted to straighten out the matter for him. Humphrey denied that they talked about the Union in connection with Gordon's overtime. Miller testified that during the second week in January, he was walking through plant 4 when Smith stopped him and inquired why she had not received a longevity MIDDLETOWN MANUFACTURING COMPANY, INC. 241 increase the same as some of the other girls . Miller told her the increase had been given to the girls on the basis of their length of service and unless she had equivalent service she was not entitled to an increase. Smith asked if being a member of the union committee or starting the union movement had anything to do with her failure to get a raise and Miller said that had nothing to do with it. Miller knew Smith had been a union steward at the Jeffersontown plant and that she was on the Union's organizing committee. Miller denied making any statement to the effect that "The damage was done when you signed that paper at the unon hall." Miller told Smith he would check with the personnel office and the conversation ended. After checking with personnel, Miller advised Smith she was not entitled to a raise because the records indicated she did not have sufficient service. Smith claimed otherwise, so that night Miller and a foreman checked the employment records and found an error had been made, apparently as to her starting date, and that she had sufficient service to qualify for a longevity increase. In the next day or so, Miller explained the error to Smith and stated he had put through her increase, retroactive to January 1. Miller said there was no mention of the Union or voting in the course of this conversation. Smith was hired as foreman at plant 4 in July 1961. During the period of his employment with other companies Smith was a member of the UAW-CIO and the Sheet Metal Workers, AFL. From the Union's letters Smith was aware of the fact that about seven of the employees in the plant were on the organizing committee. While Smith gave the employees a free hand to talk for or against the Union and to wear IUE or "Vote No" buttons, he heard but little union talk in the plant. About 1 week before the election Smith attended a supervisor's meeting and was given some notices, including an official notice of the election, to post at plant 4. Upon arriving at the plant Smith, who had other things to do, asked Gordon to put up the notice, which he did without any objection. Smith selected Gordon to do the posting because he worked at the end of the line stapling boxes and doing odd jobs. Smith saw the notices were posted in a crooked fashion but said nothing to Gordon. However, a day or so later McMahan said the notices should be posted properly so Smith told Gordon to straighten them up, which he did. Smith stated he first learned Gordon was to act as observer at the election when Gordon so informed him the day of the election. McMahan testified that 3 or 4 days before the election he was in plant 4 and saw the official notice of the election, which was posted on the furnace where notices were customarily placed, had been posted in a sloppy manner. McMahan asked Smith who had posted the notice and he said it was Gordon. McMahan then approached Gordon who was working and told him to post the official election notice in an orderly fashion. McMahan had a brief conversation with Gordon during which Gordon, seemingly, complained of his low hourly rate. McMahan denied there was any men- tion of the Union during their talk or that he asked Gordon why he was "all fired up" about the Union. Gordon made no complaint about reposting the notice and McMahan left. When McMahan returned, apparently the same day, the notice was posted in a proper manner. McMahan had no information regarding the names of employees who would serve as union election observers prior to the day of the election. CONCLUDING FINDINGS The evidence adduced by the General Counsel and the Petitioning Union to sus- tain their respective positions touches primarily upon acts and statements by Foreman Humphrey at plant 3 during the period in question, that is from January 10, the date the representative petition was filed, to March 23, the date of the election. Duncan and Chowning were employed at the plant during the entire period, Beeler was there approximately 5 days, while Gordon worked continuously in the plant until the early part of March. I have no doubt from the testimony of these individuals, as well as Humphrey, that the Union was a topic of open and constant conversation among the employees themselves and with Humphrey throughout the crucial period. It is also clear that a friendly relationship existed between Humphrey and the seven or eight employees and many of the discussions were initiated by the employees.6 As might be expected in such circumstances, practically all of the testimony covering conversations with Humphrey was couched in broad, vague terms and with little specificity insofar as dates were concerned. 6 As Humphrey was a supervisor within the meaning of the Act, It Is immaterial that he maintained a friendly relationship with the employees . Star Cooler Corporation, 129 NLRB 1075, 1070, footnote 3. 242 DECISIONS OF NATIONAL LABOR RELATIONS BOARD With respect to unlawful conduct charged to Humphrey, Duncan stated that on two occasions he inquired if she had signed a union card and if she knew how many other employees had signed union cards. Although Chowning voluntarily informed Humphrey of her attendance at union meetings and the substance of the meetings was discussed in Humphrey's presence, she claimed that on one occasion he asked if she had attended a union meeting and what occurred at the meeting. Beeler cited one instance when Humphrey asked if she had signed a card and remarked he, too, had signed one, but not to tell anyone. This testimony was generally denied by Humphrey. The evidence plainly shows that the employees freely expressed their opinions on the Union to Humphrey, or in his presence, hence it seems unlikely he would have had to resort to interrogation to find out which of the employees had signed union cards. But, irrespective of Humphrey's intentions or whether the em- ployees' conduct invited further questioning, I find Humphrey interrogated Duncan, Chowning, and Beeler regarding their membership in the Union. Duncan related that in early March, Humphrey, in the presence of Chowning and other employees, threatened her with discharge if the Union organized the plant. Chowning said she never heard Humphrey threaten to discharge anyone because of the Union. However, Humphrey did tell Duncan, who had a poor attendance record, that if the Union organized the plant it would not put up with her absenteeism and tardiness. Humphrey denied he threatened to discharge Duncan and his account of his conversation with Duncan is substantially the same as Chowning's testimony on this point. Duncan admitted Humphrey made the foregoing remark to her on one occasion. I accept and credit the testimony of Chowning and Humphrey and find Humphrey did not threaten to discharge Duncan because of her union membership or activities. Beeler asserted Humphrey warned her if the Union failed to organize the plant he would look for "all new faces in the plant within a year." Humphrey denied uttering any such warning. I accept Humphrey's testimony and find he did not make the remark attributed to him by Beeler. Duncan further stated that Humphrey generally pointed out the disadvantages of joining the Union, that McMahan was opposed to organization and would close down the plant as he did the Jeffersontown plant. Chowning's version was that Humphrey said the plant might close like the Jeffersontown plant. Beeler's testimony was to the effect that Humphrey stated the Company would not stand for a union and cau- tioned them to remember what had happened at Jefferstontown. Gordon's testi- mony on direct examination was that Humphrey told the employees if they joined the Union the plant might close down, but on cross-examination when confronted with his pretrial affidavit he reaffirmed the truth of his statement therein, that it was the employees who "thought if the union came in the plant might close.. .. None of the bosses ever told me directly this. We just figured it." Humphrey denied that he told the employees the Company might shut down the plant. In this respect he stated that two or three men inquired if he thought the plant could close and he replied, "I don't know, but it could happen." The so-called threat to shut down the plant was bottomed primarily on the testi- mony of Duncan, Chowning, and Beeler who claimed Humphrey asserted if the Union came in the plant would close down the same as the Jeffersontown plant had closed down. I am convinced, from my observation of the witnesses, that the shut- down was mentioned by the employees during their discussions and it was the em- ployees who expressed the opinion that Jeffersontown had closed down because of a union and the same thing might happen at plant 3. The purpose of this testimony was simply to create the suspicion that McMahan had shut down the Jeffersontown plant, more than 8 years ago, to void his contract with the Teamsters union, thereby indicating hostility to organization. Squarely contradicting such motivation, is the testimony of Roberta Smith who stated McMahan subsequently hired her, knowing that she had been a Teamsters steward, and many other employees of Jeffersontown. Gordon's testimony makes it clear that neither Humphrey, nor any other supervisor, ever warned the employees the plant would close down if organized, but it was the employees themselves who "figured" the plant would shut down. I reject the testi- mony of Duncan, Chowning, and Beeler and on the basis of the testimony of Humphrey and Gordon, I find Humphrey did not threaten the employees with a shut- down if the plant was unionized. Again, Duncan testified Humphrey asked why she could not "back down" on the Union and if she did, he would arrange for her to meet with McMahan. Certainly there is nothing coercive in this query, assuming it was made, unless it carries the farfetched inference that if she backed down and if she met with McMahan she would be rewarded in some manner. Duncan also stated Humphrey told the em- ployees that McMahan was unaware of the poor physical condition of the plant and MIDDLETOWN MANUFACTURING COMPANY, INC. 243 they should give him a chance to correct these conditions, that if he failed to do so they could vote for the Union the following year. While Duncan said Chowning and Roberta Smith were present when this remark was made they failed to corrobo- rate her testimony. On the other hand Beeler stated she announced to the employees, in Humphrey's presence, that she favored the Union because it might obtain a drink- mg fountain and have the ladies' room fixed up. I reject Duncan's testimony and find Humphrey did not make the foregoing statement. Unquestionably there was much talk among the employees concerning pay in- creases and loss of overtime. In fact Humphrey admitted there were rumors that employees might lose their overtime and the matter was openly discussed by the employees. Humphrey said he refrained from commenting on the subject and while he could not recall making any statement regarding a third shift, it may have been discussed. From the composite testimony of Duncan, Chowning, and Beeler, I find Humphrey, in the course of the discussions, told the employees that if the Union won the election it would ask for, and maybe obtain, a pay increase for them. However, he pointed out the Company could not afford to pay overtime at increased rates and would hire a third shift in order to eliminate the payment of overtime. Gordon's version was that Humphrey produced some figures which indicated he could earn more money without the Union for if the Union came in, his work hours would be reduced. Humphrey explained the incident arose when Gordon questioned the cor- rectness of his paycheck and he attempted to clarify the matter by checking Gordon's pay stubs with him. Humphrey denied they talked about the Union in connection with Gordon's overtime. From the loose assertions of Gordon and Humphrey, they undoubtedly engaged in a conversation regarding Gordon' s earnings and Gordon's account thereof follows generally the the theme of other witnesses for the General Counsel, that while unionization of the plant might bring about a wage increase it could also result in the Company eliminating overtime. I consider Humphrey's statements regarding loss of overtime as predictions of the effect unionization might have upon the earnings and hours of the employees rather than threats of reprisal to discourage their joining or remaining members of the Union or engaging in activities in its behalf. I therefore conclude that Humphrey's statements were protected by Section 8(c) of the Act, hence not violative of Sec- tion 8 (a) (1) thereof.7 There is no dispute that around the second week in January Roberta Smith spoke to Miller about her failure to receive a longevity increase. When Miller stated she did not have sufficient service Smith commented, "You think I started the union," and Miller answered, "No, it's not whether you started it or not. It's when you went down and signed the paper is when the damage was done." In the next day or so Miller, after checking personnel records, told Smith she was entitled to a raise and she received her longevity increase retroactive to January 1. Upon advising her of the raise, Miller, according to Smith, said, "You know how to vote." Miller denied making any such statements to Smith in the course of their conversations. Mani- festly, there was not, nor is, any criticism of the expeditious manner in which Miller handled Smith's complaint. Here the only question is whether Miller made the statements related by Smith. I have no difficulty in accepting Miller's testimony re- garding these conversations and find he did not utter the statements as claimed by Smith. In substance, the complaint, as amended at the hearing, alleges that about March 21, Foreman Smith instructed a strong union adherent to post antiunion literature at the plant in the presence of other employees and that he interrogated employees regard- ing their union membership and activities.8 Around the same date McMahan is alleged to have unlawfully interrogated one employee. The General Counsel attempted to prove these allegations through Gordon who worked at plant 4, during March, under Smith. Plant 4 employed around 75 employees and Gordon admitted that Smith never spoke to him about the Union. Moreover, there is not a word of testimony that Smith interrogated any employees, as set forth in the complaint, or that he engaged in any acts or conduct which remotely suggest that he interfered with, restrained, or coerced the employees in the exercise of their rights guaranteed under the Act. ' Safeway Stores, Inc., 122 NLRB 1369, 1373; Carolina Mirror Corporation, 123 NLRB 1712, 1714; Uranwood Furniture Company, 129 NLRB 1465, 1471; Fetzer Television, Inc, 129 NLRB 660, 665. 8 The posting instructions were not mentioned in the objections to the election. In fact objection No. 8, which was overruled , states no notices of election were posted at plant 4, prior to the time of the voting. 708-006---04-vol. 141-17 244 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The only complaint against Smith was that he asked Gordon to post some literature on the side of the furnace, which was a customary place for posting notices. About 1 week before the election Smith requested Gordon to post the material because he was readily available and he did odd jobs at the plant. Gordon attached no im- portance to the request for he posted the matter without any objection or comment. The literature posted included the Board's official notice of the election and at least one antiunion poster. Oddly enough, there is neither allegation nor contention that the so-called antiunion material was not fully protected by Section 8(c) of the Act. The illegality of Smith's act is based on the theory that he should not have asked Gordon to post antiunion literature in the presence of other employees because he was "a strong Union adherent." The evidence shows Gordon was the logical man to post the notices and certainly there is nothing in the Act or related decisions which require a supervisor to conduct a survey of his employees' attitude toward a union or his membership or nonmembership prior to issuing ordinary work assignments. In any event, Gordon engaged in no organizational activities whatever prior to the election and the only indication of his union membership in the Union stems from the fact that the Union included his name as a committee member, along with some 28 other employees, in its letters to the Company in the early part of January. Al- though Gordon acted as a union observer at the election the testimony of Smith and Zimmer clearly shows the Company had no knowledge he had been selected to act in this capacity until the morning of the election. Again, Gordon specifically denied any employees heard Smith tell him to post the material and there is no evidence employees were present when he actually posted the literature. Accordingly, I find no evidence to support the allegations that Smith engaged in any unlawful acts of conduct. A day or so after the material had been posted McMahan asked Gordon to straighten up the material, which he did the next morning. As detailed above (supra), Gordon gave a confusing account of his conversation with McMahan, but the crux thereof was McMahan's inquirmg why he was "so fired hot" or "so fired up" about the Union. McMahan denied he directed any such inquiry to Gordon. I accept McMahan's testimony regarding his conversation with Gordon and find he did not question Gordon concerning his union membership or activity. Here the evidence centers on Humphrey's conduct and granting that he interro- gated Duncan, Chowning, and Beeler (as found above), and assuming that he may have directed some threats and warnings to the employees, I find these acts too isolated to warrant a finding of unfair labor practices or interference with the elec- tion for they affected but 7 to 10 employees at plant 3, out of approximately 155 employees employed at the Company's 4 plants.9 Counsel for the Company contends the charge is inadequate to support the allega- tions of the complaint and, therefore, the complaint should be dismissed. The charge alleged violations of Section 8 (a) (3) and (1) of the Act in that the Company dis- criminatorily discharged one employee about January 3, and, from this time until the NLRB election on March 23, 1962, the employer and his representatives did, by this and other acts, interfere with, restrain, and co- erce employees to keep them from exercising their rights under the Act. Counsel argues that since the Regional Director refused to issue a complaint alleging the discriminatory discharge as a violation, "the original charge herein has been dis- missed and that none of the alleged violations alleged in the complaint even remotely relate to or grow out of the dismissed charge." The Regional Director's action on the Section 8(a) (3) phase of the charge did not constitute a dismissal of the remain- ing allegations and these, I find, are clearly sufficient to support the allegations of the complaint.10 Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Middletown Manufacturing Company, Inc., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers, AFL-CIO, is a labor organization as defined in Section 2(5) of the Act. 9Western Table Company, etc., 110 NLRB 17; Crown Drag Company, 110 NLRB 845; Shoreline Enterprises of America, etc., 114 NLRB 716, 718; Barber Coleman Company, 116 NLRB 24, 25; Chock Full 0' Nuts, 120 NLRB 1296, 1299 10Triboro Carting Corporation, et al., 117 NLRB 775, enfd 251 F. 2d 959 (C.A. 2) ; Stokely-Van Camp, Inc, 130 NLRB 869, 871-873. THE RICHARD W. KAASE COMPANY 245 3. The Respondent has not engaged in unfair labor practices as alleged in the complaint. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclusions of law, I recommend that the complaint as amended be dismissed in its entirety. I further recommend that the objections to the election be overruled and the re- sults of the election of March 23, 1962, be certified. The Richard W. Kaase Company and American Bakery and Con- fectionery Workers International Union , Local 219, AFL-CIO Bakery and Confectionery Workers International Union, Local 19, Independent and American Bakery and Confectionery Workers International Union, Local 219, AFL-CIO. Cases Nos. 8-CA-2597 and 8-CB-575. March 8, 1963 DECISION AND ORDER On July 25, 1962, Trial Examiner Arthur E. Reyman issued his Intermediate Report in the above-entitled proceeding, finding that the Respondents had engaged in certain unfair labor practices and recommending that they cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that the Respondents had not engaged in certain other alleged unfair labor practices and recommended that the complaint be dismissed as to such allegations. Thereafter, the General Counsel and the Charging Party, herein called ABC Local 219, filed exceptions to the Intermediate Report and supporting briefs. Respondents did not file any exceptions, but the Respondent Com- pany, herein Kaase, did file a reply brief in support of the Inter- mediate Report. Pursuant to the provisions of Section 3(b) of the Act, the Board has delegated its powers in connection with this case to a three- member panel [Members Rodgers, Leedom, and Brown]. 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 entire record, including the Intermediate Report, the exceptions, and the briefs, and hereby adopts the findings, conclusions and recommenda- tions of the Trial Examiner to the extent that they are consistent with this Decision and Order. 1. We adopt the Trial Examiner's Section 8(a) (1), (2), and (3) findings, detailed in the Intermediate Report, to which Kaase did not except, based on Kaase's conduct on October 24, 1961, and thereafter, in coercing its employees to join the Respondent Union, herein called BWC Local 19, and to abandon their freely chosen representative, 141 NLRB No. 13.