Morganton Dyeing and Finishing Corp.

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD 6. To entertain and adjust grievances and complaints of the employees on his shift which arise during such shift and which concern work- ing conditions and relations with other employees and with the Company and otherwise to provide for and to maintain the orderly, harmonious, and efficient working together of such employees in the accomplishment of the work to be done. 7. To administer appropriate discipline in accordance with prescribed procedures. This bulletin in published for the purpose of clarifying and establish- ing the position and supervisory status of the subject employees who in addition to the foregoing shall continue to have and exercise the authority, duties, and responsibilities heretofore established. J. A. Norgaard Wood River, Illinois September 29, 1964 Morganton Dyeing and Finishing Corporation and Textile Work- ers Union of America, AFL-CIO, CLC. Case No. 11-CA-?136. August 11, 1965 DECISION AND ORDER On June 3, 1965, Trial Examiner Stanley N. Ohlbaum issued his Decision and Report on Objections to Election in a consolidated proceeding, finding that the Respondent had engaged in certain unfair labor practices alleged in the complaint in Case No. 11-CA- 2436 and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. The Trial Examiner further found that the Respond- ent had not engaged in certain other unfair labor practices alleged in the complaint and recommended the dismissal of these allega- tions. With respect to the objections to election in Case No. 11-RC- 1947, the Trial Examiner found that they have merit, and recom- mended that the election held on May 15, 1964, be set aside and a new election be directed. The Respondent filed exceptions to the Trial Examiner's Decision and Report on Objections to Election insofar as the Respondent was found to have violated the National Labor Relations Act, as amended, and to have engaged in objec- tionable conduct, and filed a brief in support thereof. No exceptions were filed by the General Counsel or the Charging Party. On July 14, 1965, and after the case was transferred to the National Labor Relations Board, the Petitioner in Case No. 11-RC-1947 requested permission to withdraw its petition in that case. On July 19, 154 NLRB No. 31. MORGANTON DYEING & FINISHING CORPORATION 405 1965, the Board, having duly considered the matter, ordered that Cases Nos. 11-CA-2436 and 11-RC-1947 be severed, the Petitioner's request for withdrawal of the petition in Case No. 11-RC-1947 be granted, and the representation case be closed. Pursuant to the provisions of Section 3 (b) of the Act, as amended, the Board has delegated its powers in connection with Case No. 11- CA-2436 to a three-member panel [Chairman McCulloch and Mem- bers Fanning and Jenkins]. 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 Decision, the exceptions and brief, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner insofar as they are applicable to Case No. 11- CA-2436.1 ORDER IN CASE NO. 11-CA-2436 Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board hereby adopts as its Order the Recommended Order of the Trial Examiner, as modified herein, and orders that Morganton Dyeing and Finishing Corporation, Morganton, North Carolina, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified : Delete at the end of the Order the following language : .. . and that the election held on May 15, 1964, in Case No. 11- RC-1947, be set aside and that said case be remanded to the Re- gional Director for Region 11 to conduct a new election at such time as he deems that circumstances permit free choice of bar- gaining representative. 1 The Respondent excepted to the credibility determinations made by the Trial Ex- aminer. It is the Board's established policy not to overrule a Trial Examiner 's resolu- tions as to credibility unless the clear preponderance of all the relevant evidence convinces it that the resolutions are incorrect Such conclusion is not warranted here. Standard Dry Wall Products , Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3). TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE These are consolidated cases heard before Trial Examiner Stanley N. Ohlbaum in Morganton, North Carolina, on December 8 through 10, 1964 ,1 with all parties represented and participating throughout by counsel. The entire record and the briefs received subsequent to the hearing have been carefully considered. Case No. 11-CA-2436 involves charges by Textile Workers Union of America, AFL-CIO, CLC, herein called the Union, against Morganton Dyeing and Finish- 1 Dates are 1964 throughout unless otherwise stated. 406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ing Corporation, herein called the Employer or Respondent,2 of various acts of interference, restraint, and coercion of employees exercising rights guaranteed in Section 7 of the National Labor Relations Act, as amended, herein called the Act. The acts claimed to have been in violation of Section 8 (a) (1) of the Act allegedly involved Employer interrogation of employees regarding union matters; threats of discharge for union activity and of plant closure in case of unionization; and sur- veillance of union meeting activities. Respondent denied these allegations. Case No. 11-RC-1947 arises out of a representation election conducted by the Board on May 15 which the Union lost 3 and to which it filed timely objections, some of which have been referred for disposition here since they involve issues in the unfair labor practices case.4 Upon the entire record 5 and my observation of the witnesses, I make the following: FINDINGS AND CONCLUSIONS I. RESPONDENT'S BUSINESS; LABOR ORGANIZATION INVOLVED At all material times, Respondent has been and is a New Jersey corporation with its plant and place of business in Morganton, North Carolina, where it is engaged in the business of dyeing and finishing textile products. In the 12-month period immediately preceding issuance of the complaint, Respondent received at its said plant over $50,000 worth of raw materials and shipped therefrom over $50,000 worth of finished products directly from and to points outside of North Carolina, directly in interstate commerce. I find that during the representative 12-month period immediately preceding issuance of the complaint and at all material times , Respondent has been and is an employer within the meaning of Section 2(6) and (7) of the Act; that at all material times the Union has been a labor organization within the meaning of Section 2(5) of the Act; and that assertion of jurisdiction in this case is proper. II. THE ALLEGED UNFAIR LABOR PRACTICES Background Respondent's textile finishing operations , conducted in a leased plant about 4 miles from the town of Morganton, North Carolina, are limited to commission dyeing for others, with no inventories of materials owned by Respondent. The average number of employees during 1964 was around 200, about 10 percent women. A drive to unionize Respondent's plant was started at the beginning of Febru- ary by the Union. The keyman in the plant in this effort was Charles A. Butler, a vat or tub operator, at whose house an initial organizational meeting was held by employees on February 6. The events about to be described took place in and after February, mainly up to the time of the Board-conducted representation election of May 15, in a context of an election campaign in which Respondent, while seeking to get out a maximum vote, exhibited marked opposition to unionization of its plant.6 On or about March 22, Union Organizer Robert Freeman was introduced to Respondent's vice president, Alfred DiSanto, by Butler, who said, "Things are going to get awful hot now, boys." On March 24 the Union formally notified Respond- ent by registered mail that Butler was a union committeeman assisting in the 2 Original and first and second amended charges were filed respectively on May 20 and July 21 and 23. Complaint and also Second Supplemental Decision , Direction , and Order Consolidating Cases (i.e., unfair labor practices and representation cases ) were issued by the Acting Regional Director for Region 11 on September 9. 3 Of 179 votes cast, 75 were for and 78 against the Union and 26 were challenged. On August 12, the Acting Regional Director sustained 3 and overruled 13 of these challenges : opening and tabulation of these 13 ballots on August 28 produced a revised tally of 76 for and 90 against the Union , mooting the 10 undetermined challenges. 4 Of nine union numbered objections , six were overruled and three were referred to the Trial Examiner together with two additional matters or issues allegedly raised by the Acting Regional Director sua sponte. ( See infra, section III, report on objections to election and matters referred by Regional Director.) s As corrected by my order dated May 10, 1965 a Evidenced in part by literature which it dispensed to employees No implication is intended hereby that employer opposition or hostility to unionization Is of itself illegal or improper MORGANTON DYEING & FINISHING CORPORATION 407 organization of the plant. On March 25 Respondent wrote Butler a registered letter acknowledging receipt of the Union's March 24 letter "from a man named Williams who says he is a representative of the Textile Workers Union of America." Respondent's letter to Butler continues- "In that letter, he says you have joined his union and are apparently some sort of committee member or part time em- ployee of his union. The letter seems to imply that because you have acquired that status with his union you are entitled to some sort of special privileges in this plant." Respondent's letter then goes on to point out that Butler would have no special privileges and that he would be "subject to discipline, inculding [sic] dis- charge in the proper case" in the event he did "not follow Company rules, if you do not do your work properly, if you neglect your work, or if you interfere with the work of others ...." It is undisputed that copies of this registered letter of March 25 from Respondent to Butler were posted on the bulletin board and else- where throughout the plant, and that Butler marked on it that he was not an employee of any union. On March 26 Butler was discharged by Respondent. An unfair labor practice charge filed by the Union, based upon this discharge (and II other employee ter- minations), resulted in an action by the Regional Director declining to proceed therewith, because unwarranted in view of insufficient evidence On November 3, General Counsel sustained this action of the Regional Director declining to issue a complaint based upon these employee terminations. A. Interrogation A number of incidents of interrogation of employees by supervisors is alleged to have occurred. Charles A. Butler, the second-shift vat operator who spearheaded the union drive, testified that, shortly after the plant organizational activities started in February, his foreman, Larry Lane, asked him into his office, where Lane told him that "there were a lot of rumors floating around about a union . . . trying to get in over here . . . I know how you feel about a union , I know that you believe in a union . . . rumors keep floating around and they blame it all on the second shift They say that that is where it is . . . that is where all of it started ... the manage- ment at first laughed . . . it off and said, Frank DiSanto [president] said he was more interested in cloth than he was in the union, that he was worried about ten thousand yards of re -dyes sitting out there. But ... now it is getting serious, and ... you have been pegged from the very beginning . . . Fred Lane [Butler's pre- vious foreman, unrelated to Larry Lane] said if anybody was organizing a union or would start one that you would be the one ... you have been pegged." 7 Accord- ing to his testimony, Butler shrugged his shoulders at this and left Lane's office. On various occasions after this, according to Butler, Larry Lane asked him, "I want to know the workings of the union," to which Butler responded that "the only thing I know is that if a place needed one, this one does and it would help you too." With regard to the foregoing, Foreman Lawrence L. ("Larry") Lane, in Re- spondent's employ for 4 years and now 26 years old, first testified that he could not "recall," and then denied, saying to Butler that he had been "pegged"; and denied that he told Butler he wanted to know the workings of the Union. Daniel David Danner, formerly employed by Respondent as a weigher-dyer (engaged in dye weighing and vat dyeing), testified that in the latter part of Feb- ruary Foreman Larry Lane "asked me what I knowed about the union and I told him that I didn't know nothing about it and he asked me if I was for it and I said, `Yes,' and he asked me what good it would be to me or anybody else, and he stated that he did not want to have any doings with it at all, and would later be separated . from work." This conversation occurred in Lane's trailer home, where a truck trade was taking place between Danner and Lane. On cross- examination, Danner amplified this by describing that after he entered Lane's trailer they sat down and Lane "asked me if there was anything he ought to know that I had heard that he ought to know and I asked him what about and he said about the union." Toward the beginning of March, about a week after Larry Lane spoke to him, according to Danner, Supervisor Ted Morefield (second shift dye- house floorman), during working hours at the plant, "asked me what I thought about the union, and I told him I thought it was a good thing " Further according to Danner, around the middle of March, Foreman Fred Lane (first shift dyehouse floorman) told him "that the union wasn't any good and that it was something set up 7 As to "pegged," Butler explained that "The connotation of it was that I had been named as the leader of the [unionization drive] thing " 408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD to take your money" and that Lane "asked me what I thought about it [the Union], and I told him I thought it was all right. I never did specify if I was for it or against it to him." 8 Respondent's version of the foregoing was furnished by Supervisors Larry Lane, Ted Morefield , and Fred Lane. Admitting that Danner came to his home in connection with the trading of the trucks, Larry Lane denied that he then or at any other time 9 asked Danner how he felt about the Union or whether he was a mem- ber or had signed a card . Larry Lane's testimony indicates that his conversation with Danner on the occasion in question in no way touched on the union or organizational activity , but was restricted to the immediate business at hand; namely, the truck trading . Conceding that he had a discussion with Danner in early March about the Union, Morefield, Danner's supervisor in the drugroom, testified that it was Danner who asked him "how I [ Morefield] felt about the union," and that he (Morefield ) answered, "I don't know, Dan, how do you feel," to which Danner replied, "I think it would be good," and that "that was the end of it." Morefield testified that he did not "recall" any other discussion with Danner about the Union. Denying that he ever had a discussion with Danner about the Union, Fred Lane testified that Danner "was awful quiet , he didn't talk too much." Bernie Holland, a finishing room J-Box operator still in Respondent 's employ, testified under Government subpena that when, early in March, Supervisor Lex Poteat (third shift finishing foreman ) approached him on the job and "asked me if they had a union election which way would I vote," he (Holland ) did not answer Poteat because "I couldn't afford it" and "I didn't want to get involved in it." According to Holland, on the night before the union election (i e., May 14), President Frank DiSanto came around and told him he wanted him to vote, regard- less of how he voted; and that after a discussion lasting about 15 minutes or more, Holland told him that "the way I [Holland] voted nobody would be hurt." Testi- fying as Respondent's witness , Poteat denied being able to "recall" any conversa- tion with Holland as described by the latter; and stated that the "only time I ever remember talking to Bernie Holland" was when, one night (date unrecalled), Holland asked him what Respondent would do "if this place would go union." Since, according to Poteat , "as a rule I have never talked to a man about union and I won't do it unless he asked me and I will answer his questions to the best of my knowledge . I remember telling Bernie [ Holland] in a simple phrase, I said, `Well, Bernie, let me put it like this to you . if me and two or three other guys was working for you . and we was going to organize and call a strike maybe for more money , what would you dog' So, he never did give me his answer, so I just assumed that that was it, and so I walked on off and told him what to do [about his job] and what [cloth] to run. And went on about my busi- ness." Poteat testified that this was the only discussion with Holland relating to the union campaign or election that he could "recall." s According to Danner, this conversation took place in the drugroom where Danner worked Danner also testified that as he came into the room , he overheard Lane say- ing to David Pitman , another worker there, that "the union was trying to get in and they wasn't any good " As to this , Fred Lane testified that Danner came into the drug- room in the course of a conversation Lane was having with Pitman , who had told Lane that he ( Pitman ) understood "that they are trying to get a union in here" and that he (Pitman ) "[ didn't] care much for the union ," and that thereupon Lane had remarked that he (Lane) "[didn't] know much about the union, I have never worked for one be- fore, but what I bear about it, I don't care much for it either." Pitman was not called to testify, nor was Rufus "Lightning" White, who, according to Lane, was also present during the course of this conversation Danner's own testimony , in this aspect, in- dicates that he apparently walked in on a conversation going on between Lane and Pit- man ; and that, so far as Danner knew, Lane's overheard remark may have been in response to something said by Pitman . Accordingly, all circumstances considered , I credit Lane's testimony in this aspect ( i e., that what Lane said to Pitman was in response to what Pitman said to Lane before Danner came into the drugroom , as described by Lane ), and find and conclude that it has not been established by a preponderance of the substantial evidence that Lane's remarks to Pitman constituted illegal interrogation or were otherwise violative of the Act. O Except for one occasion early in June , after the union election , when Danner allegedly asked Larry Lane "what would happen now" and Lane told him that he did not know, that there were challenged votes, and that "after it was over with that Morganton Dyeing and Finishing would be a good place to work." MORGANTON DYEING & FINISHING CORPORATION 409 Thomas Goliath Childers, also under Government subpena and still employed by Respondent in its finishing department, testified that, following off-plant distri- bution of union campaign literature, Supervisor Larry Lane "asked me if I got any of them papers." When Childers told him that he had, Lane asked him "was I for it or against it, and I told him that I was for it. And he wanted to know what good it would do, and I said maybe we will get better working conditions. And he said, `Well, you think we will get more money,' and I said maybe. And he asked me if I had worked at any worser place than that and I told him no that I hadn't due to the water and the steam and so forth, and so it wasn't too much said about it. And he, he asked me if I had signed a union card, and I told him that I had and that was about all there was to it." Childers was insistent in his testimony that it was Larry Lane and not Childers who first brought up the subject of the Union. Larry Lane testified that the circumstances of this discussion were entirely different. According to Lane, one night in mid-February Childers asked him to have fixed a rusting fluorescent light fixture which looked as if it were about to fall, and Childers "started complaining about the working conditions." According to Lane, "I told him [Childers] that Frank [DiSanto] was going to improve the working conditions 1e and all that. And he said that well, maybe if we had a union, it would speed them up. And with that I said, `Well, did you get your [Union] paper,' and he said, `Yes, I got my [Union] paper.' And that was just about the extent of it." Lane denied that he inquired of Childers how he felt about the Union. According to Lane, when he asked Childers whether he had received his paper from the Union, "I [Lane] was trying to kid him [Childers] at the time, but he [Childers] didn't take it that way,ii so I let that drop and went to get a mechanic to fix the light " Kyle Johnson, formerly employed by Respondent as a dyehouse opener oper- ator and involved in the organizational activity at the plant, testified that at his workplace on or about February 26 Supervisor Larry Lane asked him "if I [Johnson] got any union cards and if I had gotten one and if I had got it in the mail," to which Johnson responded in the affirmative and by asking Lane whether Lane had received his (i.e., Lane's). Johnson was insistent in his testimony that it was Lane and not he (Johnson) who brought up the subject of the Union. About a week after this, according to Johnson, he took his cousin in to see Respondent's personnel director, Ralph LeFevers, about a job. Taking Johnson aside and saying to him, "Come in here, I want to talk to you," LeFevers "wanted to know who the [Union] ringleader was in the dyehouse and I told him that I didn't know." Johnson's cousin, who was inexperienced, did not get a job, LeFevers saying he "would keep it in mind." Larry Lane's version of the foregoing was that he did not "recall" a discussion with Johnson as described by the latter; and that "the only thing that I can bring back to my memory" was that on one occasion (date unrecalled) Johnson asked Lane "if it was true that they were campaigning for a union.12 And I told him that as far as I knew they were and he said, `Well, you can consider . . . that I am given [sic] notice the day that they bring a union in here ... I have a wife and kinds to feed.' " 13 Accord- ing to Lane, this was the only discussion that he ever had with Johnson at any time about the Union "that I can remember." Conceding that Johnson introduced a job applicant to him around the end of February, LeFevers gave the episode an entirely different slant by testifying that it was Johnson who called him aside, and that when LeFevers told him they were not hiring because they had extra men on each shift, Johnson said, "I know why you won't hire him .. . it is on account of the union"; and that, when LeFevers denied this, Johnson said, "You know that I am not a damn union man and never was," to which LeFevers responded, "Well . . . that doesn't make any difference I will take his application. But . right now, we are full." LeFevers denied asking Johnson who the "ringleader" of the Union was in the dyehouse. 10 According to Lane, conventional fluorescent light fixtures, in the building since 1961, had deteriorated from moisture and water and were in process of being replaced with stainless steel fixtures 11 Cf A. P. Greene Fire Brick Company v. N L R.B , 326 F 2d 910, 914 (C A. 8) : ". . executives who threaten in jest run the risk that those subject to their power might take them in earnest and conclude the remarks to be coercive " 12 Cf., in this connection, the undisputed testimony that Johnson was involved in the union campaign at the plant and attended union meetings. 13 Cf. footnote 12, supra 410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD James E. Alridge, another former employee of Respondent as a tub operator or dyer under the supervision of Morefield and Larry Lane, and one of the first to participate in the union campaign, testified that on or about February 26, about 2 or 3 weeks after the union activity started at the plant, Larry Lane approached him at work and asked him if Alridge's railroad union was still on strike in Ohio. (Alridge had returned to Respondent's employ from a railroad job in Ohio.) Alridge replied that there had been no strike there but that he had merely been furloughed. According to Alridge, Lane then remarked that he understood "the union is about to go busted out at the carbon plant" (in or near Morganton) and that "I [Lane] understand that the union is coming here, how do you think it will go?" Alridge replied that he thought this was "a bunch of rumors," and returned to his work.14 Denying all recollection of any discussion such as the foregoing with Alridge, Larry Lane testified that insofar as he could "recall" he never had any discussion with Alridge about anything connected with the Union. James Ledford, also under Government subpena and a former employee of Respondent, testified that at the timeclock around April 15, when he was coming to work, Supervisor Fred Lane approached him and said, "How do you feel about the union," to which Ledford replied, "I don't feel more or less about it" or "I don't feel either way," evoking the response from Lane that "I hope it don't come through," Denying the foregoing, Fred Lane testified that the only discus- sion he ever had or could recall having with Ledford about the Union was around mid-April, while Ledford was at work in the dyeroom. According to Lane, when he indicated to Ledford that he (Ledford) was being transferred to the second shift, Ledford asked him whether somebody else could be transferred, and Lane replied, "No, we can't, there is not many applications coming in now being as this union deal has started." According to Lane, this was the only thing he said or could "recall" saying to Ledford relating to the Union. Resolution As is evident from the foregoing, sharp issues of fact are presented by the testimony of the employees and former employees on the one hand, and Respond- ent's supervisory personnel on the other hand, regarding alleged interrogation as to union membership, sentiments, activities, and voting intentions. Various em- ployees and former employees described a number of episodes of such interrogation. Respondent's supervisory personnel presented in essence a picture of total absti- nence from interrogation. Under these circumstances, lacking more objective parameters of evaluation for factfinding, little can be said other than that resolu- tion of the testimonial conflicts is in the final analysis heavily if not totally depend- ent upon demeanor observations and comparisons. On the whole, my favorable impressions and reactions to the demeanor of the witnesses put forward by General Counsel was not matched by corresponding reac- tions to that of the witnesses who testified, as described, with regard to Respond- ent's side of this aspect of the case. For reasons explicated below, in connection with my consideration of alleged "Threats" (section B, infra), I am constrained to entertain reservations with regard to at least segments of the testimony of Gen- eral Counsel's witness Butler, for reasons not reflecting upon his honesty or desire to be truthful. However, it is unnecessary to resolve these reservations with regard to the aspect of the case dealing with the alleged interrogations, since there is abundant credible other evidence thereof, furnished by General Counsel wit- nesses with regard to whom I have no such reservations. I was favorably im- pressed by the demeanor of General Counsel's witnesses Danner, Holland, Childers, Johnson, Alridge, and Ledford, whose testimony to the extent indicated I credit in preference to the testimony of Respondent's witnesses, the latter among other things being characterized by apparent inabilities to "remember" or "recall" mate- rial events or alleged events. I am also mindful of the fact that included among General Counsel's witnesses were some who, because they are still in Respondent's 14 Also around the latter part of February, according to Alridge, he (Alridge) asked Supervisor Morefield how he (Morefield) "felt about the union," and Morefield seemed not interested and Indicated he did not care. This, of course, is not conduct violative of the Act. The conversation between Larry Lane and Alridge, described above, while in a sense a solicitation by Lane of Alridge's views on unionism and the unionization of Re- spondent's plant, was likewise in my opinion sufficiently equivocal not to warrant a find- ing and conclusion that it was violative of the Act as illegal interrogation or otherwise MORGANTON DYEING & FINISHING CORPORATION 411 employ, in a sense testified against their own interests and at the peril of courting their Employer's displeasure if not retaliatory action." Credibility comparison of the witnesses on each side thus results in superior demeanor and better recollective powers on the part of the employees, canting the trier's preference toward General Counsel's witnesses. The resultant position of the scales is not altered by the picture sought to be presented by Respondent's supervisors of their pasteurized impartiality and abstemiousness, within a context of avowed employer hostility to the unioniza- tion efforts of its employees-a scrupulous nonchalance which seems unreal in the ambit of reference of the total surrounding facts. Nor, by reason of its character and extent, within the matrix of the full situa- tion within which it occurred and of which it formed a part, may the interrogation herein, unaccompanied by safeguards or assurances, be regarded as isolated or as justified for legitimate purposes. . . the time, the place, the personnel in- volved, the information sought, and the employer's conceded preference, all must be considered in determining whether or not the actual or likely effect of the interrogations upon the employees constitutes interference, restraint or coercion." N.L.R B. v. Syracuse Color Press, Inc., 209 F. 2d 596, 599 (C.A. 2), cert. denied 347 U.S. 966. The repeated episodes of interrogation here fail these tests. Repondent sought, with some success in the case of certain witnesses, to estab- lish that the alleged interrogations occurred in an atmosphere free from threats toward or fears on the part of the employee. Even if this had been true in all cases-which it was not-and even if such a conclusion could be reached (which it cannot) without reliance upon opinion testimony of questionable controlling effect, it has repeatedly been held that such subjective reactions, or alleged sub- jective reactions, on the part of employees are not determinative." Respondent has sought to portray an atmosphere of friendliness between supervisors and super- vised. It is open to question whether such friendliness, even where it exists, is necessarily all-pervasive, on the job as well as off the job, and in the presence as well as in the absence of dual calls on the supervisors' allegiance. Indeed, inter- rogation by "friendly" supervisors may be affrighted with greater potential for affront to the policies of the Act than when conducted by those who do not wear the deceptive mantle of friendship.17 Nor may the interrogation in the total matrix of the situation here be regarded as innocuous.18 Within the system of reference expressed by the Board in Blue Flash Express, Inc, 109 NLRB 591, and the mentioned considerations, it would be difficult for me to believe that so many apparently highly credible witnesses, including some under potential economic hazard, would testify, and testify so persuasively, to so many episodes of interrogation, if they had never occurred. I find that, except to the extent hereinabove expressly otherwise found, Respond- ent through its supervisors Larry Lane, Fred Lane, Morefield, Poteat, and LeFevers interrogated employees Danner, Holland, Childers, Johnson, and Ledford at various times during February, March, and April, 1964, so as to interfere with, restrain, and coerce them and other employees in the enjoyment and exercise of their rights under Section 7 of the Act, in violation of Section 8 (a)( 1 ) of the Act. 11 This circumstance has sometimes been considered to add weight to testimony. Cf. Georgia Rug Mild, 131 NLRB 1304, 1305, footnote 2. Cf. also Wirtz v. B A.C. Steel Products, Inc., 312 F. 2d 14, 16 (C A 4). 16 Eastern Die Company, 142 NLRB 601, enfd. 340 F. 2d 607 (C A. 1) ; The Rein Com- pany, 114 NLRB 694; B.M.C. Manufacturing Corporation, 113 NLRB 823. 17 Marshal DeVillars has aptly said, "God save me from my friends, I can protect myself from my enemies." So, too, Blake ( to Hagley) : Thy friendship oft has made my heart to ache, Do be my enemy-for friendship's sake. iB With regard to any supposition that the interrogation was "innocuous" or "harmless," It will be recalled that the court recently had occasion again to remind that although "an innocuous question (e.g., How is the union doing?) is much less coercive than a pointed question (e g , Who are the union leaders')," when an employee-as herein- fails "to give a truthful answer even to an innocuous question , the inference of coercion is as strong as if he refused to answer a pointed question ." N.L R.B. v. Cameo, Inc., 340 F. 2d 803, 807 (C A. 5) This is especially true during a union campaign, since "Interrogating key employees during an organizational drive makes the company's anti- union message easier to read than interrogating a few employees at random." Id. at 805, footnote 6 412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD B. Threats Evidence was presented of five instances of Employer threats in connection with the lawful organizational attempts of its employees. These will be recounted chronologically. Charles A. Butler, Respondent's former employee mentioned above, testified that when Supervisor Larry Lane spoke to him in his office in mid-February about the union activity, as has been described, Lane also told him that "they [i.e., pre- sumably Lane's superiors and Company executives] are getting worried now and they are going to find out . . . they [know] some of the leaders" and that "they are going to get the ringleaders of this thing, and they are going to fire them." Lane denied that he said this Bernie Holland, Respondent's former J-Box operator, testified that around mid-March, about a week after Supervisor Poteat asked him how he would vote in a union election, Poteat approached him while he was working and said to him, "I hope this damn union doesn't go through, if it does, I will lose my job . Frank [DiSanto] said he was going to close it down if the union went through." Poteat's testimony indicated that he did not "recall" any such talk. James E. Alridge, Respondent's former tub operator, testified that on one of the last nights that he worked in the plant (i.e., on or about March 26), Supervisor Morefield told him, "Well, Jim, there is nothing personal, I like you and I like the way you do your work, but . . . we have got orders to fire anyone for any reason." According to Alridge, he responded that "there wasn't no hard feelings between me and [you] .... I understood .... I knew it was over the Union or I felt that it was," and Morefield did not reply. Morefield, on the other hand, testified that on the night before this Alridge had gotten drunk on the job and Morefield sent Kyle Johnson to take him home; and that the following night Morefield told Alridge "that I did not have no personal feelings against him, but the next time that he carried on conduct the way that he did the . . . last night, that I would fire him, and I had the authority of the company to do so." Accord- ing to Morefield, the Union was not mentioned, and "I was trying to get across to him [Alridge] that I had authority of the company to fire him for being drunk on the job or not performing his work properly . Not for any reason, I couldn't fire a man for any reason." In fact, Morefield did not fire Alridge,19 even though according to Morefield (whom I credit in this aspect) he had authority to do so, because he wanted to "give him [Alridge] a break." On cross-examination, Alridge conceded that on the night in question he got drunk on the job and was taken home by Kyle Johnson. Although at first denying that while drunk on that or an earlier night during his last week at the plant he ruined some cloth by plac- ing an unopened 100-pound sack of salt in the dye mix, he later indicated that this might indeed have occurred while he was drunk.20 Charles A. Butler further testified that in mid-March he reported to Supervisor Larry Lane that he had been receiving anonymous threatening telephone calls at home regarding union activities and was concerned for his wife and daughter. Lane relayed this to Dyehouse Superintendent Fred Martin, who called in Presi- dent Frank DiSanto. According to Butler, after Lane apprised DiSanto that Butler was "in favor of a union," which Butler agreed was true, and after Butler indicated that "I know that [the anonymous telephone calls] are not coming from any of the boys that have signed cards with the union," DiSanto said, "This is my damn company and I am a self made man and I am going to run it as I please, and if anybody don't like it . there is the door . . I can be a dirty bastard when I want to and I will fight like hell against the union." As found by the Regional Director, Butler was discharged on March 26, when Respondent learned the true reason-namely, public drunkenness-for an alleged illness for which Butler had requested and received leave of absence on March 6 and an alleged death in the 10Alridge testified on cross-examination that about an hour after Butler was discharged, he (Alridge) and three other employees (Johnson, Carpenter, and Loftis) quit and "Just walked out" The Regional Director determined that no discriminatory termination was involved as to any of these employees 20 Alridge also testified that about a week after he quit, while at the plant for his terminal pay, Larry Lane asked him, "Well, now, Jim, now that you have already quit . . you were a anion representative just like Charlie Butler . . wasn't you," to which Alridge replied, "Well, Larry, I have already quit, what difference does it make to me if the building blows down . . . I am gone . . Butler had already been nondis- criminatorily discharged for cause prior to this Since neither Alridge nor Butler was then in Respondent's employ, and it does not appear that this question was coercive in intent or effect, I hold that it has not been established that it was violative of the Act. MORGANTON DYEING & FINISHING CORPORATION 413 family for which he was granted further leave on March 7. Butler's testimony indicates that lie had an alcoholism problem during this period , involving incar- ceration-according to him, at his own request-and convictions for public drunkenness. Respondent's version of the meeting with Butler on the subject of the threaten- ing telephone calls was supplied by Larry Lane , Fred Martin , and Frank DiSanto. In essence, they were consistent to the effect that DiSanto assured Butler that he would try to do something about the calls if Butler could furnish a definite clue to the identity of their source , which Butler was unable specifically to do. Ac- cording to Martin, during the discussion Butler stated that the anonymous callers indicated Butler should "not . have anything to do with the union" or "not . .. have anything to do with the union organizing and unions " and that, without naming any names, Butler thought the calls "was coming from the plant manage- ment." However, according to DiSanto , supported by Lane, "there was no men- tion of the word union in this discussion"-although all appeared to assume it con- cerned the Union-and Butler neither specified the nature of the threats nor linked management to them. A further degree of doubt was cast upon the accuracy of Butler's recollective capacity by the testimony of David Mooney , county deputy sheriff and jailer, who, describing the arrests and convictions of Butler in mid- March for public drunkenness , denied there was any basis in the official records or in his recollection to indicate that any of those arrests was at Butler 's request as the latter had testified ( although with regard to one of the arrests, the identity of the telephone caller to the police was not established and might theoretically, therefore, have been Butler). Albert Frank Wellman, formerly employed by Respondent as a maintenance worker under the supervision of Maintenance Foreman Michael "Mike" DiBiase, testified that while ostensibly on the way to the warehouse 21 with Foreman "Pop" Anger, Supervisor Mike DiBiase, and fellow employee Clint Hamer late one afternoon in April ,22 DiBiase "started talking about the union," stated "that he had . belonged to a union and worked under a union and didn't think that it would work down here in this plant," and then went "on to say that none of his men had better not oppose him in the election." Wellman testified , on cross- examination , that "I actually took that as a threat . to vote for the company against the union." He also testified that when DiBiase made the remark about not opposing or voting against him in the election , his tone was serious and that "the impression that it gave me if I didn't vote to suit him, it would be my job. Now, that was the impression that was put on me." Respondent's version of the foregoing was provided by DiBiase and Hamer. DiBiase, Respondent's maintenance supervisor, not only flatly denied making the statements attributed to him by Wellman , but insisted that he never expressed any opinions as to what he thought or how employees should vote , at all times limiting himself to encouraging employees "to vote as they see fit." He acknowl- edged, however, that he was aware of his Employer's opposition to the Union. With regard to the specific occasion in question , DiBiase denied that he first brought up the subject of the Union . On direct examination, DiBiase testified that when the men got outside for the truck to go to the warehouse , "there was a little discussion going on I believe Mr . Clint Hamer started talking about him being in a union in fact the truckers union , he worked up north for quite a while," whereupon DiBiase "started to kid him about it, I said I belonged to a union up North and I said what does it make us?" He added that "I believe that there was something said about voting, and I came out and said, look it doesn't make any difference as long as everybody votes, once you get into the booth there, there is only God and yourself know how you vote." On cross-examination DiBiase testified, "I believe Mr. Hamer came out and we were talking, talking about voting and the trucker's union." When counsel for General Counsel pointed out to him that he "didn't bring this up on direct examination," DiBiase's response was, "You didn't ask me," adding, "I mean it happened months ago , you don't remember every little word that is being said . it all depends on what the attorney asked me and that is what I answered ." DiBiase also insisted on cross- examination that this was the only time during the entire union campaign that he discussed union matters with any of the rank-and -file employees. Also testifying as Respondent 's witness, maintenanceman Clinton "Clint" Leroy Hamer stated that in the 15- to 30-minute conversation among the four waiting 21 In view of the lateness of the hour when they started, the trip to the warehouse was abandoned so that the members of the party apparently did nothing other than talk 22 This accords generally with General Counsel's amendment at the hearing of paragraph 7(d) of the complaint, changing the date therein from June to April. 414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD for the warehouse truck which never arrived, "We were talking about the union" (and later about supplies) and that it "might" have been he (Hamer) who first mentioned the Union; that he (Hamer) expressed opposition to unions and DiBiase "come over, and talked to us about it, and he said that we would be the only ones that knowed who we voted for, when we was in that booth and how we voted", and that although DiBiase said he hoped everybody voted, he did not say none of his men had better (not) vote against him in the election, and that Hamer did not "hear" any comment like that. Toward the end of his testimony, in re- sponse to the question of whether anybody during this conversation made the remark that the Union would not work out or work out well in the plant, Hamer stated that "there was a remark made that a union might help out at the plant, might help the men and the plant . . . . I believe that Mike DiBiase said that." Resolution It will have been noted that two of the five alleged instances of threats involved Butler. Insofar as the anonymous telephone calls to him are concerned, no con- nection of those calls (which are not included among the threats alleged in the complaint) with Respondent has been established, and such linkage could be found only through surmise and conjecture. The telephone calls cannot, therefore, be regarded as threats for which responsibility on Respondent's part has been shown or can be found. So far as the alleged threats derived from the balance of Butler's testimony are concerned, while my overall reaction to Butler as a witness seems to have somewhat paralleled that of Respondent's counsel, who in his brief has in part characterized him as "a rather frank and honest witness," nevertheless I cannot ignore the plain fact that Butler was at the time of the events in question by his own admission addicted to alcoholic excesses to the extent that he was arrested and confined (according to his testimony, at his own request) for public intoxica- tion. Since some of the events he testified to occurred while he was thus under the influence of alcohol, I do not believe it would be justifiable to assume that his present testimonial recollection or reconstruction, whichever it be and however honestly intended, of events which transpired during a period when he was a victim of alcohol, has a high degree of reliability. For this reason, not bearing directly upon his basic honesty, lacking independent corroboration I cannot accept his version of those events. Insofar as the episode described by Alridge is concerned, it is to be observed that he conceded on cross-examination that he, too, was involved in drunkenness, in his case on the job and possibly involving spoilage of goods. In the situation described, Morefield undoubtedly would have been justified in discharging him then and there or when he returned to work. It would seem that if Morefield were bent on seeking an excuse for ridding Respondent of Alridge for discrimina- tory reasons and masking those reasons, the situation involving Alridge's drunken- ness on the job was made to order for that purpose. However, Morefield did not discharge Alridge but merely warned him, and Alridge later concededly quit. Under these circumstances, since Morefield would have been justified in discharging Alridge, his failure to do so argues against the existence of the discriminatory intention alleged. Weighing all factors, I accept as more probable and persuasive Morefield's version of his warning to Alridge that he would be fired in case of repetition of his drunken conduct, and find that Morefield did not discriminatorily threaten Alridge on the occasion in question. While the factors which have been explicated rule out definitive reliance upon Butler's testimony and the Alridge version as persuasively evidentiary, the two remaining incidents of alleged threats, namely, those involving Holland and Well- man, are by no means infected with such infirmities. I found both Holland and Wellman to be straightforward and impressive witnesses whose counterpart wit- nesses did not match them in either respect. In the case of Holland, Supervisor Poteat, while testifying to an incident which may or may not have been the same as described by Holland, allegedly could not "recall" saying what Holland swore he had said. In the case of Wellman, I would have difficulty in accepting the version put forward by DiBiase and Hamer, whose testimonial demeanor (like that of Poteat) was in marked contrast to that of Wellman. I cannot visualize DiBiase's self-portrayal of himself as so consistent a practitioner of sanitized nonpartisanship in a context of close identification with an employer so openly hostile to unionization. The apparent conflict between the testimony of DiBiase and Hamer will have been noted, as also the extent of the testimonial ubiquity of Hamer in expressing the belief that it was DiBiase who told the men that "a union might help out at the plant, might help the men and the plant." The joint testimony of DiBiase and Hamer, in the posture in which it finally came to rest, was unpersuasive as compared to that of Wellman, whom I credit. It is addition- MORGANTON DYEING & FINISHING CORPORATION 415 ally to be noted that Respondent failed to produce or to account for its nonproduc- tion of the remaining participant to the discussion; namely, Wellman's foreman, "Pop" Anger, apparently an old-time, respected employee and "a fine old gentle- man" (so characterized by Wellman). Finally, although Wellman described the atmosphere of the discussion as friendly and congenial, I do not believe this essentially alters the impact or potency of DiBiase's threat. Strong threats have been uttered with a smile; "friendship" itself has been made the price of yielding to a threat. Moreover, as was elicited from Wellman by Respondent on cross-examination, Wellman "actually took that [i e., DiBiase's words] as a threat . . . to vote for the company against the union" and that "if I didn't vote to suit him, it would be my job." 23 After observing him as he testified and considering the probabilities of the situation inherent in the entire factual background of the case, I believe this portrayal of DiBiase by Wellman to be more realistic than DiBiase's suggested picture of himself, a loyal servitor of an employer hostile to unionization, merely urging employees to vote while studi- ously refraining from any expression of opinion or attempt to tilt the scales ever so slightly. It is accordingly found that Respondent, through the described conduct on the part of Supervisors Poteat and DiBiase, in March and April 1964, threatened its employees in connection with union affiliation and activities , and in the event of plant unionization as the result of a Board-conducted union election, in violation of Section 8(a)(1) of the Act. I further find that it has not been established by substantial credible evidence that Respondent engaged in the other threats described or alleged. C. Surveillance Three instances of alleged surveillance were litigated. Two were alleged to have occurred on April 16 at or near the Union Hall, involving Supervisors Fred Martin and Larry Lane; the third, on June 24 (i e., after the election) at a local motel, by Respondent's Supervisor Robert Papuga. Since the first two are related, they will be considered together. It is undisputed that on April 16 a union meeting of Respondent's employees was taking place around 1 p.m. at Chemical Workers Union Hall on Jamestown Road, about a mile and a half outside of Morganton proper and about 5 miles from Respondent's plant, across the road from a drive-in eating place known as Pep's or Pat's Drive-In or Grill. It is also undisputed that Supervisors Fred Martin and Larry Lane were parked in a truck at Pep's at that time and saw em- ployee James Ledford walking around Pep's and going toward the Union Hall. Martin and Lane claim they were having lunch at Pep's that day, accounting for their presence there. They deny that they could even see the entrance to the Union Hall, because of where they and also a large piano van were parked Since it is uncontroverted that there are no lunch places near Respondent's plant, that such places in and near Morganton are few, and that Martin and Lane ate in a parked vehicle at Pep's regularly, there is no substantial factual basis to doubt their testi- mony that they were there for the purpose of lunch on the date in question. Furthermore, on the record presented, it is at least doubtful whether from where they were parked they could have seen the Union Hall sufficiently to be able to engage in surveillance thereof It would seem that if they had known of the union meeting and had intended to conduct such surveillance, they would have positioned themselves in a location from which they could command a clear and unimpeded view of the object of the surveillance; namely, the Union Hall entrance All circumstances considered, therefore, I find that it has not been established by a preponderance of the substantial credible evidence that Martin and Lane went to or parked in Pep's for the purpose of surveillance of union or organizational activities of Respondent's employees; nor that, while there, they engaged in such surveillance. Respondent's former employee James Ledford testified that about a half hour after he saw, and was seen by, Martin and Lane in Pep's on this occasion, he observed Martin and Lane drive by the Union Hall in their truck, and shortly 23 With regard to the "seriousness," "substantiality," or operative "efficacy" of the threats, it must be remembered that, to the employees who were the object thereof, they emanated from a source with apparent authority to make them good. Cf. N L R B. v. Eastern Die Co., 340 F 2d 607 (C.A. 1). Furthermore, it is settled that a threat need not be carried out, nor efficacious, in order to be coercive. Id., 142 NLRB 601, 602 ; The Rein Company, 114 NLRB 694 ; Forest Oil Corporation, 85 NLRB 85, 86. It may be presumed that such threats are spread to other employees by the employee to whom made Cf. Frankel Associates, Inc., 146 NLRB 1556, 1557 416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thereafter drive by the Union Hall again in the other direction About eight or nine cars were parked at the Union Hall at the time of the meeting of Respond- ent's employees there. Ledford's testimony was corroborated by his former fellow employee Daniel Danner, who also testified that he observed the truck with Martin and Lane in it go up Jamestown Road and shortly thereafter return, past the Union Hall, at "a slow speed." According to Martin, while he and Lane were parked in Pep's, Lane suggested that they visit Supervisor Morefield at his home, about 2 miles away toward Asheville (i.e., in a direction still further away from the plant), to check on some mechanical work which Morefield was allegedly doing on Lane's truck. Further, according to Martin, they then drove to Morefield's (who was not at home) on Highway 70, at no time passing by the Union Hall. However, Martin testified that on the way back from Morefield's along Highway 70, when they reached the inter- section or "V" formed by Highway 70 and Jamestown Road, he looked back at the Union Hall because "I had seen Ledford go towards the union hall and I just looked out to see if there was any cars there," and observed some cars parked there but none that he recognized. Larry Lane corroborated Martin's testimony, but not without significant differences or additions. Thus, Lane testified that on their way back to the plant (allegedly from Morefield's) after they had seen Ledford walk from Pep's toward the Union Hall, Martin pointed out that there were cars parked at the Union Hall and that "as we passed down the road there he [Martin] glanced over there and he said, `I wonder what is going on over there,' and I said, `Well,' that is, when we got further on down the road I said, `That is usually some kind of a furniture shop,' and he said, `Well, wonder what is going on?' And I said, `I guess that they are just selling furniture, or having a furniture meeting,' and actually the lower section of the union hall is a furniture store or was a furniture store or warehouse or something of that nature." And, although he had first testified that on their way back to the plant he and Martin were talking about "nothing special," on recross-examination Lane testified that on their way back he and Martin were discussing the fact "that there was going to be a meeting." Although it is not implausible that Martin and Lane were unaware, when they went to Pep's for lunch, that there was going to be a union meeting at the Union Hall that day, Martin's testimony as well as the inherent probabilities of the situa- tion indicate that their seeing Ledford at Pep's walking toward the Union Hall must at least have germinated a suspicion in their minds as to what Ledford was doing there. This inference is reinforced by the subsequent actions of Martin and Lane in driving past the Union Hall twice (while testifying that they went miles out of their way to pay a personal visit at what seems an odd hour of a workday), and by Martin's admissions that since he "had seen Ledford go towards the union hall . I just looked out to see if there was any cars there." I reject, as basically incompatible with Martin's testimony and as inherently improbable, as well as incredible in view of my demeanor observations, Larry Lane's testimony that, although he was aware that the Union Hall was being used by the Textile Workers Union and had seen Ledford go toward it on the occasion in question during this known period of union campaigning at the plant, nevertheless when he drove back with Martin he thought that a furniture sale or furniture meeting was taking place in the Union Hall. Crediting the described testimony of Ledford and Danner, which impressed me as truthful, and coupling it with the testimonial admissions of Martin, I find that, although it has not been established that Respondent engaged in surveillance from Pep's Drive-In on April 16, it has been established by substantial credible evidence that, in violation of Section 8(a)(1) of the Act, Respondent through Supervisors Martin and Larry Lane on April 16, 1964, engaged in surveillance of its employees' union and organizational activities at Union Hall, Morganton, when they drove by there twice as described.24 The remaining incident of alleged employer surveillance occurred on June 24 at Rainbow Inn Motel in Morganton, a popular and much frequented local motel. It is undisputed that in the early evening of that day, Supervisor Robert E. Papuga several times walked past a motel room or rooms in which some of Respondent's employees were present with a union organizer and/or a Board agent who was taking statements. It is also undisputed that some of these times Papuga was accompanied by another individual; that either the door or the curtains to the large picture windows of the rooms, or possibly both, were open; and that Papuga made no attempt to conceal his presence but exchanged greetings with one or more of the employees through the window. General Counsel's witness Wellman testified that neither in the Board agent's room nor in the union organizer's room were 24 Cf. Aero Corporation, 149 NLRB 1283. MORGANTON DYEING & FINISHING CORPORATION 417 the occupants attempting to maintain any degree of privacy. General Counsel's witness Eugene Guy (a maintenanceman in Respondent's employ) testified that, after he and Papuga had exchanged greetings through the window of the room Guy was in when Papuga first walked by, when Papuga returned in the opposite direction (Guy was then in the Board agent's room ) he (Papuga) "stopped and looked in the door. So I . just ignored it and he walked on by the door." However, when he was asked whether Papuga actually stopped walking or whether he merely passed by the room, Guy testified that "Well, he was just passing by and looking back at us though," adding, however, on further questioning, that "when he was looking at the door at me and the Board agent, he stopped . just for a very few seconds I glanced around and saw him and then he walked on by." With regard to the June 24 incident at Rainbow Inn Motel, Respondent's greige goods room and Receiving Department Supervisor Robert E. Papuga testified that his duties include receiving and entertaining customers and official guests of his Employer, and that the reason he was at Rainbow Inn Motel on the evening in question was that he had dinner and spent the evening with an important cus- tomer, whom he identified by name, who was (in accordance with his usual cus- tom) staying there as a registered guest, in a specified room number, located a few doors away from the other rooms in question . Papuga testified that on his way to the customer's room, he passed a room with the curtains open and the occupants thereof (Guy, Wellman, and Union Organizer Freeman) in plain view, and that he waved to them. Although Papuga admits he passed by this room (No. 50) several times in going to and from the customer's room (No. 53) and with the customer to and from the restaurant, he denies that at any time during the evening he passed by a room toward the other end of the motel (room 59 was suggested by Guy as the Board agent's room; it would not appear to be necessary to pass room 59 in order to go from room 53 to the restaurant). I found Papuga, as well as Wellman and Guy, to be essentially credible wit- nesses who I believe were attempting to testify accurately with regard to what transpired on the occasion in question . Papuga's explanation for his presence at this popular local motel was given in sufficient factual precision to be readily sub- ject to investigatory corroboration or disproof . Since it was uncontroverted and is not inherently improbable, it is credited . His presence at the place and time in question thus being satisfactorily accounted for and there being no indication that it was for the purpose of surveillance of the described employee activities, of which he was not shown to possess any advance knowledge or information, it remains only to consider whether, once there and having observed what he did, his further actions under the circumstances amounted to unlawful surveillance. The record as tendered presents a picture of Papuga present at a popular public hostelry for a legitimate reason and without advance knowledge or information that employees would be there; absence of any attempt at privacy by the em- ployees and those with them who were allegedly subjected to Papuga's surveillance, indulgence by Papuga in the known human tendency to glance at or through a large, uncurtained picture window while passing by; a spontaneous greeting ex- changed between Papuga and the others ; Papuga's passing by one of the motel rooms several times while going to and from the customer's room and while going with the customer to and from the restaurant ; and equivocal or equally balanced proof with regard to whether or not Papuga walked past the other motel room or if he did whether he engaged in surveillance of that which he may already have seen.25 The resultant uncertainties leave me in sufficient doubt to incline me no more toward accepting than toward rejecting the testimony of either side on this particular issue. For these reasons, I find that General Counsel has failed to meet the burden of proof and persuasion which is his, and that the substantial credible evidence does not preponderate in favor of a finding that Respondent through Supervisor Papuga engaged in surveillance at the Rainbow Inn Motel on June 24, 1964. III. REPORT ON OBJECTIONS TO ELECTION AND MATTERS REFERRED BY REGIONAL DIRECTOR As has been indicated, of the Union's nine objections to the May 15 election, the Acting Regional Director overruled six. He referred to the Trial Examiner the remaining three, together with two additional matters uncovered by his investigation and raised by him sua sponte, all involving issues in common with those in the 2-Cf. Universal Packaging Corporation, 149 NLRB 262 ; Aero Corporation, 149 NLRB 1283. 206-446-66-vol. 154-28 418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD instant unfair labor practices (C) case. The following recapitulates the objections and additional matters which have been referred to the Trial Examiner- Union objection Nos Subject or substance Action by Regional Director Remarks 1__________________ Respondent's distribution Referred to Ti ial Examiner _ Not alleged in com- of allegedly coercive and plaint in instant intimidating preelection C case. literature 4__________________ Two instances of surveil- Referred to Trial Examiner , Same as alleged in lance on April 16 and June 24 episode (subse- complaint in instant one on June 24 quent to May 15 election) C case later deleted from his Decision and Order by Regional Director. 7___ ------------ ------ Interrogation of employees -- Referred to Trial Examiner. Included in complaint 11 . if credited . would in instant C case warrant the setting aside of the election." Unnumbered Threat by Supervisor Added by Acting Regional Do. "Other Acts Poteat of plant closure in Director sua sponte, stem- and Conduct " event of unionization mmg from his investigation. " . if credited . would warrant the setting aside of the election " Do ------------ Threat by Supervisor _____do_________________________ Do. Morefield that Respond- ent was bearing down because of union cam- paign and that super- visors have orders to discharge employees for any reason. Of the foregoing, the issues involved in referred objections Nos. 4 and 7, as well as in both unnumbered instances of "Other Acts and Conduct," have already been discussed and passed upon hereinabove in section II as issues in the unfair labor practices (C) case, and need not here be reiterated.26 28 Objecting to the Acting Regional Director's inclusion in his Second Supplemental Decision ( September 9, 1964 ) of the matters denominated therein as "Other Acts and Conduct" uncovered by his investigation, upon the ground that the Union did not include them in its objections and that the Regional Director lacks power to raise them sue sponte, Respondent has moved that they be stricken from the Acting Regional Director's De- cision, request for review of which was on or about November 2 denied by the Board. I cannot agree that the Regional Director, as a public official charged with respon- sibilities in connection with enforcement of the Act, is without power to set aside an election for conduct violative of the Act unless it is expressly raised by a party's formal objections . Cf. International Shoe Company, 123 NLRB 682 , 684; Aeronca Manufactur- ing Corporation, 121 NLRB 777, footnote 2; Carter-Lee Lumber Company, 119 NLRB 1374, 1376-1377; Joe Gold and Newell Smith, d/b/a City Tire Company, 117 NLRB 753, 754-755; Beck's Department Store, 98 NLRB 280, 281, footnote 5 (". . . it is well es- tablished that the jurisdiction of the Regional Director in making a post-election investiga- tion is not limited to the issues raised by the parties . . .") ; with which cf. International Ladies Garment Workers Union, AFL-CIO v. N.L.R.B., 339 F. 2d 116, 124-125 (C.A 2). It is apparent, in answer to Respondent's further contention in this regard , that the 5-day time limitation for filing objections (NLRB Rules and Regulations, Series 8, as amended, revised Jan 1, 1965, Section 102.69 ) is by its express terms applicable only to parties and not to the Board and may in any event be waived. Nor has any prejudice to Re- spondent here been shown. In any case , however, I am unaware of any authority on my part to strike out portions of a Regional Director 's decision as here sought . Respond- ent's motion is accordingly denied It is further to be noted , in this connection, that there is, of course, no question regarding the propriety of inclusion of the episodes com- prising the described "Other Acts and Conduct" In the complaint in the instant C case, and that Respondent has expressly so conceded ( page 8, second sentence of third full paragraph of Respondent's September 1S Request for Review of Regional Director's Second Supplemental Decision, etc. of September 9, 1964). MORGANTON DYEING & FINISHING CORPORATION 419 This leaves for consideration referred objection No. 1, dealing with Respondent's distribution of allegedly coercive and intimidating preelection literature, the impact of which in conjunction with other findings to be made herein the Acting Regional Director has "directed" the Trial Examiner to consider. Respondent has objected to the mandatory wording of the order of reference of the Acting Regional Director to the Trial Examiner in this matter, contending that the Trial Examiner is not subject to the Regional Director's direction. It is unnecessary for me to consider this point, since I regard and treat the Acting Regional Director's action as a conventional reference of issues to be determined at a statutory hearing, and the wording which is objected to as nonprejudicial surplusage. In any event, since it is apparent (as, indeed, was indicated by the Acting Regional Director himself in his decision) that the unfair labor practices here found, without resort to the preelection literature, themselves warrant and require the setting aside of the election and the holding of a new election in an atmosphere free from interference, restraint, and coercion,27 it is unnecessary to reach or pass upon the question of what could only have been the possibly additional coercive effect of the literature in question. In view of the findings herein with regard to the preelection unfair labor practices, the issues raised by union objection No. 1 to the extent referred, are, therefore, moot Respondent's motions, upon which decision was reserved at the hearing, to strike out, dismiss, or overrule union objection No. 1 to the election of May 15, as well as the Acting Regional Director's actions thereon, are accordingly dismissed as likewise moot. It is accordingly recommended to the Board that union objections Nos. 4 and 7 to the election of May 15, 1964, as well as the first one of the two specifications denominated "Other Acts and Conduct" in the Acting Regional Director's Decision, as above described, to the extent found in section II hereof, be sustained, and that on that basis, as well as upon the basis of all of the unfair labor practices as herein found, the election of May 15, 1964, be set aside and a new election held at a date and time to be determined by the Regional Director; and that union objection No. I to said election be dismissed as moot. IV. THE REMEDY Having found that Respondent has engaged in unfair labor practices, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. In view of the fact that the unfair labor practices committed are of a character evincing an attitude of opposition to the public policy and purposes of the Act, I deem it necessary to recommend that Respondent be ordered to cease and desist from infringing in any manner upon employee rights guaranteed in Section 7 of the Act. I shall also recommend that Respondent be required to post an appropriate notice. I am also recommending that union objections Nos. 4 and 7 to the election of May 15, 1964, as well as the first of the Acting Regional Director's two specifications denominated "Other Acts and Conduct" in this September 9, 1964, Second Sup- plemental Decision, Direction, and Order Consolidating Cases, in Case No. 1 1-RC- 1947, be sustained, that said election be set aside, and that said case be remanded to the Regional Director for Region 11 to conduct a new election at such time as he deems circumstances permit free choice of bargaining representative. CONCLUSIONS OF LAW 1. Morganton Dyeing and Finishing Corporation, Respondent herein, is an em- ployer engaged in commerce within the meaning of Section 2 (6) and (7) of the Act. 2. Textile Workers Union of America , AFL-CIO, CLC, is a labor organization within the meaning of Section 2(5) of the Act 3. By the conduct set forth in section II which has been found to constitute un- fair labor practices, Respondent has interfered with, restrained , and coerced its employees in the exercise of rights guaranteed to them by Section 7 of the Act, and thereby has engaged in and is engaging in unfair labor practices within the meaning of Section 8 (a) (1) of the Act. 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. 2' Cf. Industrial Steel Products Company, Inc., 143 NLRB 336; Playskool Mavufaetur- ing Company, 140 NLRI3 1417, 1419; Dal-Tex Optical Company, Inc ., 137 NLRB 1782, 1786-1787. 420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and upon the entire record in this consolidated proceeding, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Morganton Dyeing and Finishing Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Coercively interrogating employees with respect to their own or any other employee's union membership, affiliations, sympathies, desires, or activities. (b) Threatening employees with plant closure, loss of jobs, or other reprisals because of union membership, affiliation, activity, or support, or in the event of plant unionization. (c) Inducing or encouraging any employee to vote against any labor organiza- tion in any Board-conducted election by any threat of reprisal. (d) Engaging in any surveillance of union or other lawful organizational activities of its employees, or in surveillance of any union hall or other place where such activities are taking place. (e) In any other manner interfering with, restraining, or coercing employees in the exercise of their rights 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 purposes of collective bargaining or other mutual aid or protection; or 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 at its plant in Morganton, North Carolina, copies of the attached notice marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Di- rector for Region 11, shall, after being duly signed by Respondent's authorized rep- resentative, be posted by Respondent immediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered, defaced, or cov- ered by any other material. (b) Notify said Regional Director, in writing, within 20 days from receipt of this Decision and Recommended Order, what steps have been taken to comply therewith.29 I further recommend that the complaint in Case No. 11-CA-2436 be and the same is hereby dismissed as to all violations alleged but not herein found; and that the election held on May 15, 1964, in Case No. 11-RC-1947 be set aside and that said case be remanded to the Regional Director for Region 11 to conduct a new election at such time as he deems that circumstances permit free choice of bargaining representative.30 28 In the event that this Recommended Order be adopted by the Board, the words "a Decision and Order" shall be substituted for the words "a 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 susbtituted for the words "a Decision and Order." 2D 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." 30 In the event Respondent refuses or falls to comply with the terms of the order in Case No. 11-CA-2436, I recommend that said Regional Director should also be authorized to conduct the new election herein recommended, upon written request of the Union. Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 554, footnote 9. APPENDIX NOTICE To ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labot Relations Board and in order to effectuate the policies of the National Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate any employee as to his or any other employee's union membership, affiliation, sympathies, desires, or activities. WE WILL NOT threaten any employee that he will lose his job, or that we will close the plant, or that there will be any other reprisal because of union mem- bership, affiliation, activity, or support, or in the event the plant is unionized. THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 421 WE WILL NOT make any threat of reprisal or engage in any reprisal in order to induce or encourage any employee to vote against any union in any election conducted by the National Labor Relations Board. WE WILL NOT engage in any surveillance, or keep under watch and observa- tion, any union or other lawful organizational activity of our employees, or any union hall or other place where such activities, including meetings, are taking place. WE WILL NOT in any other manner interfere with, restrain, or coerce employees in the exercise of their rights guaranteed by Congress to self-organization, to form labor organizations, to join or assist any labor organization, to bargain collectively through representatives of their own choosing, to engage in concerted activities for the purposes of collective bargaining or other mutual aid or pro- tection, or to refrain from engaging in any or all such activities. WE WILL NOT in any manner interfere with the right of our employees to make a free and untrammeled choice in any election conducted by the National Labor Relations Board. All employees are free to become, remain, or to refrain from becoming or remaining, members of Textile Workers Union of America, AFL-CIO, CLC, or any other labor organization. MORGANTON DYEING AND FINISHING CORPORATION 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. If employees have any question concerning this notice or compliance with its provisions, they may communicate directly with the Board's Regional Office, 1831 Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele- phone No. 723-2381. The Budd Company Automotive Division, Detroit Plant and In- ternational Union, United Automobile, Aerospace and Agricul- tural Implement Workers of America, (UAW) AFL-CIO, Petitioner. Cases Nos. 7-RC-6572 and 7-RC-6574. August 11, 1965 DECISION AND DIRECTION OF ELECTIONS Upon petitions duly filed under Section 9(c) of the National Labor Relations Act, as amended, a hearing was held in these consolidated cases before Hearing Officers Jack G. Handler and Joseph Kulkis. The Hearing Officers' rulings made at the hearing are free from prejudicial error and are hereby affirmed. Pursuant to the provisions of Section 3 (b) of the Act, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Chairman McCulloch and Mem- bers Brown and Zagoria]. Upon the entire record in these cases, including the briefs filed by the parties, the Board finds : 1. The Employer is engaged in commerce within the meaning of the Act and it will effectuate the purposes of the Act to assert jurisdic- tion herein. 154 NLRB No. 26.