Lloyd A. Fry Roofing Co. Inc.

LLOYD A. FRY ROOFING CO. INC., ETC. 673 named labor organization, the Respondent has engaged in and is engaging in un- fair labor practices within the meaning of Section 8(a) (3) of the Act. 3. By interfering with, restraining , and coercing employees in the exercise of rights guaranteed in Section 7 of the Act, the Respondent has engaged in and is 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 affecting com- merce within the meaning of Section 2(6) and (7) of the Act. [Recommended Order omitted from publication.] Lloyd A. Fry Roofing Co. Inc. and Volney Felt Mills, a Division Thereof and Oil, Chemical & Atomic Workers International Union, AFL-CIO Lloyd A. Fry Roofing Co. Inc. and Volney Felt Mills, a Division Thereof and Oil, Chemical & Atomic Workers International Union, AFL-CIO, Petitioner. Cases Nos. 11-CA-1978 and 11- RC-1661. May 16, 1963 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION On February 8, 1963, Trial Examiner Wellington A. Gillis issued his Intermediate Report in the above-entitled proceeding finding that the Respondent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Intermediate Report. The Trial Examiner also found that certain of the above unfair labor practices engaged in by the Respondent affected the results of the Board election in the above-captioned representation case and rec- ommended that the said election be set aside and that a new election be held at such time as the Regional Director for the Eleventh Region deems that circumstances permit the employees a free choice of a bargaining representative. He further found that the Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended that the complaint be dismissed with respect thereto. Thereafter, the Respondent filed exceptions to the Intermediate 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, Fanning, 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 Inter- mediate Report, the exceptions, and the entire record in the case, and hereby adopts the Trial Examiner's findings, conclusions, and recommendations. 142 NLRB No. 78. 674 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ORDER The Board adopts as its Order the Recommended Order of the Trial Examiner. [Text of Direction of Second Election omitted from publication.] INTERMEDIATE REPORT STATEMENT OF THE CASE Upon a charge and an amended charge filed on June 28 and August 23, 1962, respectively, by Oil, Chemical & Atomic Workers International Union, AFL-CIO, hereinafter referred to as the Union, the General Counsel of the National Labor Relations Board issued a complaint on September 18, 1962, against Lloyd A. Fry Roofing Co., Inc., and Volney Felt Mills, a Division Thereof, hereinafter referred to as the Respondent, the Company, or the Employer, alleging violations of Sec- tion 8(a)(1) and Section 2(6) and (7) of the National Labor Relations Act, as amended (61 Stat. 136), hereinafter referred to as the Act. Thereafter, on Sep- tember 25, 1962, the Respondent filed an answer to the complaint denying the com- mission of any unfair labor practices. In Case No. 11-RC-1661, based upon a representation petition filed by the petitioning union on June 5, 1962, and pursuant to a Decision and Direction of Elec- tion issued by the Regional Director for the Eleventh Region on July 20, 1962, an election was conducted on August 8, 1962, among the production and maintenance employees employed by the Respondent' Thereafter, on August 15, 1962, the Petitioner filed timely objections to conduct affecting the results of election, and subsequently, on September 12, 1962, the Regional Director, after an investigation, issued a Supplemental Decision and Direction, finding that a conflict in evidence existed with respect to the Petitioner's objections 1 and 4, and directing that the case be consolidated with Case No. 11-CA-1978 for hearing before a Trial Ex- aminer who shall make recommendations to the Board with respect to the issues involved in said objections. Pursuant thereto the Regional Director, on Septem- ber 18, 1962, issued an Order consolidating, for the purposes of hearing, Cases Nos. 11-CA-1978 and 11-RC-1661. Subsequently, on November 7, 1962, pursuant to notice, a hearing on the com- plaint in Case No 11-CA-1978 and on objections 1 and 4 in Case No. 11-RC-1661, was held in Morehead City, North Carolina, before Trial Examiner Wellington A. Gillis at which all parties were represented by, counsel, and were afforded full op- portunity to be heard, to examine and cross-examine witnesses, to introduce evidence pertinent to the issues, and to make oral argument. Although apprised of their right to do so, no party chose to file a brief. Upon the entire record in this case, and from my observation of the witnesses, and their demeanor on the witness stand, and upon substantial, reliable evidence "considered along with the consistency and inherent probability of testimony" (Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 496), I make the following: FINDINGS AND CONCLUSIONS 1. BUSINESS OF THE RESPONDENT The Respondent, a Delaware corporation with an office and place of business located at Morehead City, North Carolina, is engaged in the manufacture of asphalt roofing and allied products. During the 12-month period immediately preceding the issuance of the complaint, the Respondent manufactured, sold, and shipped finished products valued in excess of $50,000 from its Morehead City operation to points located outside the State of North Carolina The parties agree, and I find, that the Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. If. THE LABOR ORGANIZATION INVOLVED The parties stipulated , and I find, that Oil, Chemical & Atomic Workers Inter- national Union, AFL-CIO, is a labor organization within the meaning of Sec- tion 2(5) of the Act. I The tally of ballots issued on August 8, showed that, of 66 valid votes counted, 32 were cast for the Petitioner and 34 against. LLOYD A. FRY ROOFING CO. INC., ETC. 675 III. THE ALLEGED UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING THE RESULTS OF A BOARD ELECTION With the exception of three incidents which allegedly occurred either prior to the filing of the representation petition on June 5, 1962,2 or subsequent to the elec- tion on August 8, the complaint allegations, which are set forth with specificity, and election objections 3 are predicated upon the same alleged conduct, involving threats, coercion, and intimidation. Thus, in furtherance of the General Counsel's position that the Respondent engaged in unfair labor practice conduct, and the petitioning Union's contention that this conduct interfered with and affected the results of the election, it is alleged that on specified dates the Respondent, through certain of its supervisors and/or agents: interrogated employees concerning their union membership, activities, and desires; threatened to deprive employees of benefits if the Union were successful in its organizational efforts; threatened that it would favor nonunion employees over union employees if the Union were success- ful in its organizational attempts; sponsored and assisted in the circulation of an antiunion petition on Respondent's time and premises, threatened to discriminatorily discharge or lay off those employees who would not sign an antiunion petition; threatened its employees with discharge or other reprisals if they became or re- mained members of the Union or gave assistance or support to it; kept under surveillance the meeting places and activities of the Union; informed its employees that the identities of all employees who had attended a union meeting were known to Respondent; informed its employees that it was the supervisors' job to find out which of its employees were for the Union, or were engaged in union activities; attempted to get its employees to inform on their fellow employees' union activities; and informed its employees that it would not sign a contract with the Union. The Respondent's operations, consisting of the Lloyd A. Fry Roofing Company plant and the Volney Felt Mills plant, are headed by Walter Edwards, plant man- ager. Immediately under Edwards are Henry Nichols and Hubert Clifton Arthur, plant superintendent and assistant plant superintendent, respectively, at Fry Roofing, and Joseph Rose, plant superintendent at Volney, which employs Edward Faucette and Leslie Moore as tour boss foremen. It is admitted, and I find, that the above officials are supervisors within the meaning of the Act. Before treating chronologically the incidents alleged as constituting improper conduct on the part of the Respondent, I deem it necessary to dispose of the issue concerning the preparation and circulation of two antiunion petitions and the Re- spondent's alleged responsibility therefor. The record discloses that between June 6 and 11, two such petitions were circulated among the Respondent's employees, the first of which was distributed in the Volney plant by Charles Bell, a maintenance electrician, and the second in the Fry Roofing mill by John Ebron, a master me- chanic. Both petitions, which were circulated on company time and premises, were eventually signed by virtually all of the employees in the respective plants and sub- sequently were mailed, independently of each other, to Plant Manager Edwards. It is not contended that either Bell or Ebron, both of whom are hourly paid and voted in the election, is a supervisor within the meaning of the Act, nor does the record so reveal. However, based upon their roles in the circulation of the petitions, the General Counsel asserts that each is an agent of the Respondent within the meaning of Section 2(13) of the Act, and on this basis, that the Respondent is responsible for having "sponsored and assisted in the circulation" of the petitions, and for the conduct of Bell and Ebron, genei ally. The record reveals that Bell, who, like Ebron is possessed with strong antiunion convictions, prepared and, in the normal course of performing his functions through- out the plant, personally circulated on or about June 6 an antiunion petition which read "We, the undersigned, do not wish to be represented by a union or any such organization, Signed as follows." After all of the Volney mill employees signed it, either at the time of its circulation by Bell or within a few days thereafter, Bell gave the petition to employee Jack Lancaster, a shipping clerk, who had been of some assistance to Bell in its initial preparation. Similarly, several days later on or about 2 All dates refer to the year 1962. 'Petitioner's objection No 1 reads as follows: 1. The Company's officers, supervisors and agents, by threats, coercion and intimi- dation, interfered with and affected the results of the election. Petitioner's objection No 4 reads as follows: 4 By word of mouth and In the Company's letter, the Employer clearly conveyed his predetermination not to bargain on wages and benefits. 712-548-64-vol. 142-44 676 DECISIONS OF NATIONAL LABOR RELATIONS BOARD June 11, John Ebron personally prepared and circulated a petition in the Fry Roofing mill, the language of which closely paralleled that of Bell's petition, reading, "We the undersigned Fry employees do not wish to have a union or any such organization to represent us at the Fry Roofing Plant." The fact that Bell and Ebron held highly skilled maintenance jobs with the Re- spondent and undoubtedly were in closer contact with company officials than the average employee, coupled with the fact that the circulation of the two similarly worded antiunion petitions, one in each mill, by Bell and Ebron during the intense union organizing campaign gives rise to a suspicion , if not an inference , that such action was something other than mere coincidence. However, the credible, and for the most part uncontradicted, evidence fails in any way to connect the Respondent with this activity by Bell and Ebron 4 Thus, apart from the fact that neither possessed any indicia of supervisory authority or was regarded by his fellow em- ployees generally as being associated with management, consistent with the credited testimony of Bell and Ebron, there is no credible evidence that the Respondent at any time prompted the petition movement or was even aware of such activity by Bell and Ebron. Accordingly, absent evidence of authorization, condonation, or ratification by the Respondent, I find that the General Counsel has failed to show by a preponderance of the evidence that either Bell or Ebron, in preparing and circulating antiunion petitions, was an agent of the Respondent for whose activity it is responsible.5 As to additional conduct attributed to the Respondent and raised by the pleadings, treated chronologically, the records reveal the following: May• Willie Guy Willis, hereinafter called Guy Willis, a former employee who shortly before the hearing voluntarily terminated his employment at Fry Roofing, testified that about the first of May, Rose approached him and inquired as to whether he had heard anything about the Union. When Guy Willis replied that he had not, Rose told him to "watch what you say and do concerning it." Rose was not questioned on this matter and therefore Guy Willis' testimony stands unrefuted. On one occasion prior to June, according to Ottis Kittrell, a takeoff man employed at Fry Roofing, during the course of a conversation concerning the Union, Henry Nichols, in the presence of John Ebron, stated that "if that Union comes in here, there will not be another roll of felt put in that warehouse and there will not be any more white shingles put on that floor." Ebron corroborated Nichols' denial that he made such a statement. For reasons hereinafter noted with respect to Nichols' testimony generally, I credit his corroborated denial, and find that he did not make the remark here attributed to him. June 6: Guy Willis, testified that on this date Rose asked him if he had heard anything about the Union, and when Guy Willis replied that he had not, Rose stated that he had been given to understand that the Union had signed 52 percent of the employees. When Guy Willis registered disbelief, Rose told him that if the Union should get in, "there wouldn't be any more welding and shop work and stuff like that done for the employees, that all this stuff would be cut out," and added that "if the shifts was to be laid off we'd want to look out for non-union men and the union men was just going to have to go." In denying having made these state- ments, Rose testified that on Monday following a June 16 union meeting, Guy Willis voluntarily apprised Rose of his strong interest in the Union, to which Rose merely registered his disappointment that the employees felt that they needed union representation. For reasons hereinafter set forth with respect to Rose's credibility, I find the facts as to this conversation to be as testified to by Guy Willis. 4 To the extent that the testimony of Henry Hill and Guy Willis , either directly or otherwise, tends to implicate Faucette as having had possession or even knowledge of the Bell petition , it is not believed . Rather, I credit the specific denial by Bell and Faucette that (a) Bell referred Hill to Faucette when Hill asked for the petition , ( b) Hill asked Faucette for the petition , and similarly, credit the testimony of Bell and Faucette which specifically refutes the implication of Willis' testimony that, upon Willis ' request to sign the petition , Bell procured it from Faucette. 5 In view of this finding, and consistent with my ruling at the hearing whereby, over Respondent's objections, I permitted the elicitation by the General Counsel of testimony of employee witnesses relating to alleged statements attributed to Bell and Ebron subject to a subsequent finding that an agency relationship existed which would hold the Re- spondent responsible for their actions, such testimony is hereby rejected Accordingly, other than that which is necessary to the agency determination , no findings have been made with respect to alleged conduct of employees Bell and Ebron , and, to the extent that the complaint allegations, and election objections are based upon such conduct, it is recom- mended that they be dismissed and overruled , respectively LLOYD A. FRY ROOFING CO. INC., ETC. 677 Guy Willis further testified that on this date his tour boss, Moore, approached him, and, after indicating that it was immaterial to Moore how Willis felt about the Union or how he intended to vote in the election, Moore told him that "you know if a fellow should be for this Union it could be worked out where he could be discharged." When Guy Willis asked for an explanation, Moore allegedly replied, "Well, a tour boss or somebody could keep breaking the sheet down or cutting the valve off or something of that sort and make it look bad on the machine tender, which the superintendent would get rid of him if you're not making the cut." Moore denied these accusations, and testified that Willis, in referring to prounion employees, asked whether he would get fired, to which Moore replied that as long as he con- tinued to do a good job he would not get fired. I credit Moore's version of the conversation, and his unreserved denial of the statement attributed to him. June 12: Edward Hyde Willis, hereinafter called Ed Willis, testified that around this date, he met Nichols leaving his office and asked him whether he felt that the Union would get anywhere around here, to which Nichols replied that he did not think so, that "if they voted the Union in here and they took the contract to Mr. Fry to get it signed that he wouldn't sign it.. . Nichols, when confronted with this testimony, testified that he did not recall what was said and then denied having made such a statement. I was not impressed with the demeanor of Ed Willis on the witness stand, and, as hereinafter noted, am inclined to disbelieve a portion of his testimony on a matter upon which he was questioned at length. On the other hand, Nichols, although appearing somewhat reluctant to implicate Rose concerning the latter's surveillance of a union meeting, rendered crucial testimony on cross-examina- tion adversely affecting Respondent's interest and, in fact, challenging the truthful- ness of the testimony generally of Rose. Accordingly, as between Ed Willis and Nichols, whose denial of an earlier remark attributed to him was corroborated by credible testimony, I credit the latter and find that Nichols did not make the above statement.6 June 16: The record evidence discloses that on this date a union meeting, well- attended by Respondent's employees, was held at the union hall in Morehead City. While there are some minor variations in the testimony of employee witnesses as to the circumstances concerning the presence of Respondent's supervisors in the immediate area on this occasion, based upon credible record evidence as a whole, I find the facts to be as follows: Just prior to 8 p.m. Rose and Arthur, both of whom had prior to this time been aboard the former's boat down on the waterfront, were parked in Rose's car at a filling station diagonally across the street from the union hall. Shortly after the arrival of some of the employees, Rose left the station and slowly circled the block, and, after the employees, many of whom had observed the presence of Rose, went inside the hall for their meeting, Rose left his car at the filling station and, accompanied by Arthur, visited his cousin, Bonnie Rice, on the front porch of the latter's home, which is located directly across the street from the hall. About the time the meeting started to break up, Rose returned to his car, drove by Rice's house where he picked up Arthur, and, observed by many of the employees as they left the hall, proceeded to circle the block two or three times before leaving the area. Rose and Arthur then returned to the waterfront from whence they had started earlier. There they met Faucette and, after conversing for a while, Rose drove his companions home.? Rose, who admits that he was in the vicinity on this occasion, denies that he had prior knowledge of a union meeting or that his visit to his cousin's house was in any way prompted by the fact that such a meeting was being held. In fact, Rose testified that until he witnessed the employees filing out of the union hall on this occasion, he had not been aware of the existence of any union activity among his 6 As that portion of Petitioner's objection No. 4 relating to the Company's letter was neither litigated nor even adverted to by any party during the hearing, and as the above testimony of Ed Willis is the only evidence contained in the record which, if believed, would support the remainder of Petitioner's objection No. 4, in view of my resolution of the above credibility issue in favor of Nichols, it is recommended that objection No. 4 he overruled 7 Although this account is based for the most part upon the testimony of the General Counsel's witnesses generally, I do not credit such of their testimony as departs from the above factual recitation. I specifically discredit the unconvincing and uncorroborated testimony of Edward Hyde Willis who testified that, while walking to his car with Ralph Gillikan after the meeting, Rose, in driving past him, said "I got you now." Had this taken place, it is not conceivable, as testified to by Edward Willis, that lie and Gillikan, who was called by the General Counsel but was not questioned on this matter, would not have discussed it together or at least mentioned it to one another at the time. 678 DECISIONS OF NATIONAL LABOR RELATIONS BOARD employees and that, at that time, he had not been apprised of the fact that a rep- resentation petition had been filed by the Union 11 days earlier. I find it difficult to render credence to his testimony in this regard. Thus, it would appear more than mere coincidence that his first visit to his cousin in 6 months occurred simultane- ously with an 8 o'clock union meeting of his employees directly across the streets That the testimony of Plant Superintendent Rose is further subject to an adverse credibility resolution is buttressed in part by the testimony of Nichols, the other plant superintendent. On cross-examination, Nichols reluctantly testified that on the night in question he received two telephone calls from Rose. Although apparently confused as to the time of each, Nichols testified that during the first call Rose in- vited him to join Arthur and Rose for a drink down at the latter's boat, which Nichols refused, and that later, Rose called again and invited Nichols "to go riding around with them." During this conversation, which, contrary to Nichols' testi- mony, I find took place prior to Rose and Arthur leaving for Rice's house, Rose informed Nichols that "they were having a union meeting up there at the Union Hall," and wanted Nichols to join them, which Nichols refused to do .9 The fact that Rose told Nichols that "they were having a union meeting" and that "he heard they were having a meeting" would indicate contrary to the unconvincing assertions of Rose and Nichols, that Rose was aware of the meeting prior to departing for the area and Rice's house.lo Finally, as to Rose's credibility generally, the fact that Nichols was informed of the representation petition by Plant Manager Edwards at the time that it was filed and that Nichols, in turn, so apprised his assistant, Arthur, and other supervisors under him, coupled with the fact that Arthur testified that "when this thing started, we got" instructions from Paul McInerney, Respondent's attorney, respecting their conduct, belies Rose's assertion that prior to June 16 he had not been aware of union activity among Respondent's employees or of the fact that a petition had been filed. Accordingly, I do not credit such of Rose's testimony, including the above, as conflicts with other credited testimony, and find that, on this occasion, Rose and Arthur, possessed with advance notice of the union meeting, purposely visited Rice, circling the block before and after the visit, solely in order to ascertain direct knowl- edge of the union activity of Respondent's employees. June 18: On this date, which was the Monday following the Saturday night union meeting, according to Ottis Kittrell, an employee in the Fry Roofing mill, and not denied by Arthur, after having earlier initiated a conversation with Arthur concern- ing where the latter had been on Saturday night, Kittrell was told by Arthur, "Oh, hell, you needn't be so damn particular about the meeting . . . because I saw you Saturday night." Although, inasmuch as Arthur was not questioned on this Kittrell's testimony stands unrefuted, because it appears from Kittrell's testimony that Kittrell knew that Arthur had been in the vicinity of the meeting on Saturday night and that Kittrell, before and after this statement by Arthur, was in fact baiting Arthur, I find, in this context, the statement attributed to Arhur not to be violative of Section 8 (a)( 1 ) of the Act. Edward Hyde Willis testified that on this same date, Rose approached him and asked Ed Willis whether he were mad at him, and upon receiving an answer in the negative, Rose stated "It was just my job to find out who was for the Union and who wasn't for the Union." Notwithstanding Rose's denial of having made this statement, based in part upon my refusal to credit Rose generally, and because such a statement as that attributed to Rose coincides with the motivation behind any surveillance of union activity, I credit Ed Willis' testimony on this point. s Bonnie Rice, a disinterested witness as far as the instant proceeding is concerned, testi- fied that Rose and Arthur, whom he had not theretofore known, arrived at 8 p in, and that upon his invitation to come into the house, Rose suggested that Rice come out and sit on the front porch for awhile, which they did 0 At one point during cross-examination, Nichols was asked what Rose said to him dur- ing the telephone call. Nichols testified as follows: A. . . . He wanted to know if I wanted to ride down to the boat and have a drink with them. Q. And did he tell you the purpose of this? A. He says he heard they were having a meeting. That was later on in the night, see, after the meeting had started, probably. Q. Probably? A. Yeah. lU Arthur was not questioned specifically on the issue of prior knowledge of the union meeting. LLOYD A. FRY ROOFING CO. INC., ETC. 679 Henry Hill testified that at sometime after the union meeting on June 16, Faucette asked him if he were mixed up in the Union, and when Hill at first registered ignorance on the subject but then asked Faucette what he would do if Faucette had his vote, Faucette replied that he would vote against the Union. Faucette, who was not questioned on this matter, testified that the only time that he talked with any of his employees about the Union was when one of them occasionally asked him a question concerning the Union, in which case he would supply an answer if he felt that he could do so. Crediting Faucette's testimony, as I do, I find that he did not initiate the conversation with Hill as the latter testified, and further find nothing unlawful in Faucette's answering Hill's hypothetical question as to how he would vote in the election if he were permitted. August 17. The record discloses that the 3-month union organizing campaign, which terminated with the close election on August 8, had an adverse affect upon the efficient operations of the plant resulting from a lowered and bitter feelings among the Respondent's employees. Thus, notwithstanding the Respondent's posted appeal for a restoration of peace and harmony and its request that employees put aside their bitterness and animosity toward one another and to get back to their jobs, Plant Manager Edwards, having been apprised of the continuing unrest in the plant after the election, on or about August 17, called employees Ottis Kittrell, Ray Lawrence, and Melvin Gillikan into his office, each of whom had been cited to Edwards as being responsible for, or at least involved in, various incidents reflect- ing the continued dissension among the employee personnel. As to the crucial statements made by Edwards after he had apprised them that he had been receiving complaints about them, Lawrence credibly testified as follows: Boys, he says, I'm going to make this short and sweet and come right to the point He says: You men have been sent up here because of some of the hard feelings that are going on right here in the plant, and, he says, I want it stopped And he slapped his hand down [demonstrating] and he says: I want it stopped immediately. He says- If this keeps up, he says, I'm going to have your timecards pulled and within three minutes I'll have your checks written up. Edwards showed them samples of shingles which apparently had been returned to the Respondent because of defects. Upon inquiring as to the number of years each had worked for the Respondent, according to Lawrence, Edwards told them that he would hate to see 25 years of work thrown away, but that unless this mess were cleared up and harmony restored in his plant, he would hire a new crew and start from scratch.ii Notwithstanding the General Counsel's assertion to the contrary, I find, based upon the credible testimony of Edwards, as well as Lawrence, Melvin Gillikan, and Kittrell,12 that Edwards' remarks to Kittrell, Lawrence and Melvin Gillikan on this occasion were prompted solely by economic factors and a desire to restore harmony and efficient plant operations, that they were legitimately directed to em- ployee conduct during working hours, and that they in no way constitute unlawful threats motivated by the employees' membership in the Union or the fact that they were union adherents.13 Conclusions A. Alleged unfair labor practices Upon the basis of the above findings of fact and upon the record as a whole, I find and conclude that the Respondent , in violation of Section 8(a)(1) of the Act: ii Undenied by Edwards and corroborative of Lawrence, Melvin Gillikan testified that Edwards said that "You have been sent up here because of the trouble and hard feelings that's going on in the plant and I want it stopped," that Edwards told them that if they would not work with him he would give orders for their timecards to be pulled, and that he said that "he was going to have harmony restored in there if he had to close it down, hire a new crew, and start from scratch." 13 Kittrell, who appeared most vehement in his advocacy of the Union, admitted on cross- examination that Edwards, in an apparent reference to the recently lost election, wanted them "to shut up and be satisfied whether we liked it or not and then either to go to work or get the heck out of there," and that "he wanted everybody to get to work and get the work done " is Nor do I find that certain remarks alleged to have been made by Nichols to Ralph Gillikan on August 12, after the election, support the complaint allegation in this regard 680 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Interrogated its employees concerning their union membership, activities, and desires by: (a) Rose's inquiry of Willie Guy Willis about the first of May as to whether he had heard anything about the Union and his warning to "watch what you say and do concerning it." (b) Rose's reiteration on June 6 of his earlier inquiry of Willie Guy Willis con- cerning the latter's knowledge of the advent of the Union and his further remarks, above outlined, pertaining thereto. 2. Threatened to deprive its employees of benefits if the Union were successful in its organizational efforts by Rose's statement to Willie Guy Willi3 on June 6 that "there wouldn't be any more welding and shop work and stuff like that done for the employees, that all this stuff would be cut out." 3. Threatened that it would favor nociumon employees over union employees if the Union were successful in its organizational attempts by Rose's remark to Willie Guy Willis on June 6 to the effect that "if the shifts was to be laid off we'd want to look out for nonunion men and the union men was just going to have to go." 4. Kept under surveillance the meeting places, meeting, and activities of the Union, or other concerted activities of its employees engaged in for the purposes of collective bargaining or other mutual aid or protection by the activity of Rose and Arthur on June 16 in stationing themselves across the street from the union hall while a union meeting was in progress and circling the block before and after the meeting. 5. Informed its employees that it was the supervisor's job to find out which of its employees were for the Union, and/or were engaged in union activities by Rose's statement to Edward Hyde Willis on June 18 to the effect that "It was just my job to find out who was for the Union and who wasn't for the Union." B. Conduct allegedly affecting the results of election I find and conclude that the Employer, by its conduct set forth immediately above in paragraphs 1(b) through 5,14 and in particular that pertaining to its surveillance activity, tended to interfere with the freedom of choice of its employees in their selection of a bargaining representative. Toward the close of the hearing, counsel for the Employer moved that the Trial Examiner overrule the Petitioner's objections to conduct affecting the results of election and recommended that the election of August 8, 1962, not be set aside, upon which motion I reserved ruling. In support of said motion, counsel for the Em- ployer argued, independently, that (a) the evidence of unlawful conduct by the Employer, to the extent that such should be found, consists at most of isolated or fragmentary evidence and fails to disclose the existence of an employer campaign of intimidation and coercion designed to prevent employees from freely registering their true sentiments in the election, and that, absent evidence of employer conduct of this type, Board policy dictates that the election not be set aside; and (b) the Petitioner, having elected to proceed with the election rather than to await Board disposition of its unfair labor practice charges, waived its charges in favor of proceed- ing with the election, and therefore is now estopped to assert, as a basis for setting aside the election, the existence of the same employer conduct, all of which had already occurred at the time that the unfair labor practice charges were filed Having weighed carefully the arguments advanced, I find neither to have merit. Thus, as to (a) while fully recognizing the fact that the Board has not set aside elections where there is evidence of but one or two isolated instances of unlawful employer conduct, I am of the opinion that in this case the Employer's conduct in- volving the surveillance by a top official of each mill of the union activities of its employees on June 16, particularly where such conduct was known to, and/or observed by, a substantial number of the employees, coupled with threats to deprive employees of benefits and to favor nonunion employees over union employees if the Union were successful, tends to interfere with the freedom of the employees' choice, and that an election conducted under these circumstances should not be permitted to stand. As to (b), without regard to the equity of the proposition advanced by such an argument, namely, the "two bites at the same apple" in the case of a lost election, the fact remains that, under the Board's normal procedure, a charging party in an 14 As the conduct set forth in paragraph 1(a) occurred prior to June 5, 1962, the date on which the representation petition was filed, such conduct cannot be considered as a basis for setting an election aside. The Ideal Electric and Manufacturing Company, 134 NLRB 1275. LLOYD A. FRY ROOFING CO. INC., ETC. 681 unfair labor practice case (with certain exceptions not herein involved ), who de- sires to proceed with a concurrent representation petition may do so by filing with the Board a written request to proceed , not infrequently referred to as a waiver. In such cases , by executing a request to proceed , it is agreed that the party waives the right to assert as a basis for objections to any election which might thereafter be conducted, any conduct alleged as unfair labor practices which may have oc- curred prior to the filing of the petition . But for the fact that , in proceeding with the representation case, the party is not required to "waive" any conduct common to both cases which occurred after the filing date of the petition and before the filing date of the unfair labor practice charges, I would agree that where, as here, a union files a representation petition on June 5, and an unfair labor practice charge on June 28, and thereafter , with knowledge of employer conduct having occurred between the two dates , chooses to go to an election , which it loses, there is much to be said in favor of refusing to set aside the election because of the employer conduct of which the union was aware when it chose to go to the election. However, as the "waiver" does not, under Board procedures , have the effect which the Employer's argument accords it, consistent with my above findings, Employer's motion is hereby denied. IV. THE EFFECT UPON COMMERCE OF RESPONDENT 'S UNFAIR LABOR PRACTICES AND CONDUCT AFFECTING ELECTION The activities of the Respondent set forth in section III, above, occurring in connection with the operations of the Respondent described in section I, above, have , a close, intimate, and substantial relation to trade, traffic , and commerce among the several States and tend to lead to labor disputes burdening and obstructing com- merce and the free flow of commerce. V. THE REMEDY It having been found that the Respondent has engaged in certain unfair labor practices, it is recommended that it cease and desist therefrom and that it take certain affirmative action which is necessary to effectuate the policies of the Act. It having been further found that the Employer has engaged in certain conduct affecting the results of an election, it is recommended that the election conducted on August 8, 1962, be set aside and that a new election be conducted by the Regional Director at an appropriate time. Upon the basis of the foregoing findings of fact and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Lloyd A. Fry Roofing Co., Inc., and Volney Felt Mills, a Division Thereof, is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical & Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of the rights guaranteed by Section 7 of the Act, as above found, the Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. Other than as above found, the Respondent has not engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act as alleged in the complaint. 5. By engaging in threatening, coercive, and intimidating conduct, as above found, during the period from June 5 to August 8, 1962, the Employer unlawfully inter- fered with the freedom of choice of its employees in their selection of a bargaining representative on August 8, 1962. 6. The aforesaid conduct constituting unfair labor practices and conduct illegally affecting the results of a Board-conducted election is conduct affecting commerce within the meaning of Section 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law, and upon the entire record in this case, it is recommended that Lloyd A. Fry Roofing Co, Inc., and Volney Felt Mills, a Division Thereof, its officers, agents, successors, and assigns, shall: '682 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 1. Cease and desist from: (a) Interrogating its employees concerning their union membership, activities, or desires. (b) Threatening to deprive its employees of benefits or to favor nonunion em- ployees over union employees if the Union were successful. (c) Engaging in the surveillance of union meetings and activities. (d) In any like or related manner, interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, and to refrain from any and all such activities. 2. Take the following affirmative action which is necessary to effectuate the policies of the Act: (a) Post in conspicuous places in its two mills at Morehead City, North Carolina, including all places where notices to employees are customarily posted, copies of the attached notice marked "Appendix " 15 Copies of said notice, to be furnished by the Regional Director for the Eleventh Region, shall, upon being duly signed by the Respondent's representative, be posted by it, as aforesaid, immediately upon receipt thereof and maintained for at least 60 consecutive days thereafter. Reason- able steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for the Eleventh Region in writing within 20 days from the receipt of this Intermediate Report what steps the Respondent has taken to comply herewith.16 It is further recommended that unless the Respondent, within 20 days from the receipt of this Intermediate Report, notifies the Regional Director in writing that it will comply with the foregoing recommendaitons, the National Labor Relations Board issue an order requiring it to take the aforesaid action. It is further recommended that the complaint herein be dismissed insofar as it alleges that the Respondent engaged in any unfair labor practices, other than as above found. It is further recommended that Petitioner's objection 4 to conduct affecting the results of the election be overruled. It is further recommended that the election held on August 8, 1962, in Case No. 11-RC-1 661, be set aside, and that said case be remanded to the Regional Director for the Eleventh Region of the Board to conduct a new election at such time as he deems that circumstances permit the employees' free choice of a bargaining representative. In the event that this Recommended Order be adopted by the Board, the words "A Decision and Order" shall be substituted for the words "The Recommended Order of a Trial Examiner" in the notice In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "A Decree of the United States Court of Appeals, Enforcing an Order" shall be substituted for the words "A Decision and Order" "In the event that this Recommended Order be adopted by the Board, this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the National Labor Rela- tions Act, we hereby notify our employees that: WE WILL NOT interrogate our employees concerning their membership, ac- tivities , or desires, in Oil, Chemical & Atomic Workers International Union, AFL-CIO, or any other labor organization. WE WILL NOT threaten to deprive our employees of benefits or to favor non- union employees over union employees in the event that a labor organization is selected as their bargaining representative. WE WILL NOT engage in the surveillance of union meetings and activities. WE WILL NOT in any like or related manner interfere with , restrain, or coerce our employees in the exercise of their right to self-organization, to form, join, or assist Oil, Chemical & Atomic Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their COUNTRY LANE FOOD STORE 683 own choosing, to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection , and to refrain from any and all such activities. WE WILL NOT in any manner interfere with the right of our employees to make a free choice in any election ordered by the National Labor Relations Board. All of our employees are free to become, remain, or to refrain from becoming or remaining, members of Oil , Chemical & Atomic Workers International Union, AFL-CIO, or any other labor organization. LLOYD A. FRY ROOFING CO., INC., AND VOLNEY FELT MILLS, A DIVISION THEREOF, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) This notice must remain posted for 60 consecutive days from the date of posting, and must not be altered, defaced, or covered by any other material. Employees may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, 27101, Telephone No. 724-8356, if they have any question concerning this notice or compliance with its provisions. Tinley Park Dairy Co., d/b/a Country Lane Food Store and Local 1504, Retail Clerks International Association, AFL- CIO. Case No. 13-CA-4930. May 17, 1963 DECISION AND ORDER On January 29, 1963, Trial Examiner John F. Funke issued his Intermediate Report in the above-entitled proceeding, finding that the Respondent had engaged in and was engaging in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Inter- mediate Report. He also found that the Respondent had not engaged in certain other alleged unfair labor practices and recommended dis- missal of these allegations of the complaint. Thereafter, the General Counsel, the Charging Party, and the Respondent filed exceptions to the Intermediate Report and supporting briefs. 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 [Chairman McCulloch and Members 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 In- termediate Report, the exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recom- mendations of the Trial Examiner to the extent consistent with this Decision and Order.' 1 We hereby correct the apparently Inadvertent error in the Intermediate Report, sec- tion III, A, 3(b), which refers to certain Incidents as having occurred on April 15 and 19 when these dates, as shown by the record , should have been August 15 and 18. 142 NLRB No. 80.