Holly Hill Lumber Co.

684 DECISIONS OF NATIONAL LABOR RELATIONS BOARD On cross-examination Ellenbarger testified that at the Skirvin Hotel in Oklahoma City the Union represented the employees in a large unit, comparable to that which the Union had first sought at the Sheraton in 1961. Pennella, called as a witness by General Counsel, testified that the present policy of the Sheraton, as he was advised in Boston, was to seek more comprehensive units than that agreed to in the 1961 election. C. Concluding findings On the foregoing facts, which are either undisputed or rest on testimony of wit- nesses called by General Counsel, and resolving all factual questions in favor of General Counsel's version, I believe the complaint must be dismissed First, there is a good-faith dispute over the appropriate unit. In Arlington Hotel Company, Inc., 126 NLRB 400, the Board indicated a preference for the all-inclusive unit here sought by the Company but stated that it would honor agreements of the parties excluding or including such groups as office clericals. In the instant case, no such agreement had been reached To be sure, agreement existed in 1961, but a change of managers and a change of company policy since then left the matter open, par- ticularly as no bargaining history resulted from the 1961 agreement. The unit matter was thus one to be resolved by the Board, as the Company in apparent good faith insisted. Under the recent decision in Clermont's, Inc., 154 NLRB 1397, no violation can be found, based on a card majority where the employer had a good-faith doubt as to the appropriate unit. Second, the Company engaged in no unfair labor practices after the demand for recognition, and, applying John P. Serpa, Inc., 155 NLRB 99, it cannot be said that the Company "has completely rejected the collective bargaining principle or seeks merely to gain time within which to undermine the union and dissipate its majority." Even accepting Ellenbarger's testimony that Pennella said of the cards, "I would have to check these with our Payroll Department and our Payroll Clerk. . . . You know, I will have to check these with the Payroll Department. I don't know whether they are my employees or not," this is far short of an agreement, such as existed in Fred Snow, et al. d/b/a Snow & Sons, 134 NLRB 709, to abide by a card check by a neutral. Ellenbarger's testimony is most explicit that Pennella in each of the conversations on April 9 stated that he would have to submit the matter "to Boston," and Ellenbarger testified that he "assumed that [Pennellal was going to tell them that [Ellenbarger] had met with him, showed the cards, and gave him a letter requesting recognition." Finally, General Counsel argues that the Company was not acting in good faith, and that a fair election could not be held, because of the unremedied unfair labor practice found in the prior case But this unfair labor practice was committed in March 1964, and the Union's cards were all signed in 1965. The unfair labor prac- tice did not prevent the Union from obtaining the cards, and as no unfair labor practices have been committed since the cards were obtained, it cannot be said that the unremedied unfair labor practice has any tendency to dissipate a majority acquired subsequent to its commission, or would prevent the holding of a fair election 3 It is therefore ordered that the Respondent's motion to dismiss the complaint be granted, and said complaint is hereby dismissed.4 3In such an election the discriminatee could cast a challenged ballot See Old King Cole,Inc v NL RB,260F 2d530 (C A. 6). 4 Under Rule 102 27 the parties have 10 days from the date hereof to which to file with the Board a request for review of this Order Holly Hill Lumber Company and International Woodworkers of America, AFL-CIO. Cases Nos. 11-CA-2.93 and 11-RC-2048. Januar q 7, 1966 DECISION AND ORDER On September 27, 1965, Trial Examiner Robert L. Piper issued his Decision in the above-entitled proceedings, finding that the Respond- 156 NLRB No. 72. HOLLY HILL LUMBER COMPANY 685 ,ent 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 Trial Examiner's Deci- sion. He further found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recom- mended that such allegations be dismissed. The Trial Examiner further recommended, With respect to the elec- tion conducted in Case No. 11-RC-2048, that the election be set aside and a new election ordered because of Respondent's conduct which he found impaired the employees' freedom of choice. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. Pursuant to the provisions of Section 3 (b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel [Members Fanning, Brown, and Jenkins]. The Board has reviwed 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 Trial Examiner's Decision, the exceptions and brief, and the entire record in these cases, and hereby adopts the findings, conclusions, and recom- mendations 1 of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order and remanded Case No. 11-RC-2048 to the Regional Director for Region 11 for the purpose of setting aside the results of the December 17, 1964, election and conducting a new election at such time as he deems the cir- cumstances will permit the free choice of a bargaining representative.] 'The Trial Examiner overruled objection No 6 in Case No. 11-RC-2048 on the ground that, as only 4 employees out of a total of 211 were aware of the incident recited therein, it could not have affected the outcome of the election . He concluded , therefore , that the incident, which was the basis for objection No 6, could not have interfered with the results of the election We do not find it necessary to pass on the Trial Examiner's ruling in this regard, in view of the results herein and in the absence of exceptions by the Charging Party TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE On September 28, 1964, International Woodworkers of America, AFL-CIO, here- inafter called the Union, in Case No. 11-RC-2048 filed a petition for a representation election among the employees of Holly Hill Lumber Company, hereinafter called Respondent. On November 17, 1964, the Regional Director for Region 11 issued his Decision and Direction of Election . On December 17, 1964, said election was held, at which 75 ballots were cast for and 134 against the Union. In addition there were 31 challenged ballots. On December 23, 1964, the Union filed timely objections, six in number, to conduct affecting the results of the election On February 18, 1965, the Regional Director issued his Supplemental Decision , Order, and Direction of Second Election, in which he found merit to objection No 6 and ordered the election set aside. For this reason he did not pass upon the other objections. On March 10, 1965, Respondent filed a request for review of said decision. On April 1, 1965, the National Labor Relations Board, hereinafter called the Board , set aside said 686 DECISIONS OF NATIONAL LABOR RELATIONS BOARD decision and remanded same to the Regional Director, with directions to hold hear- ings on objection No. 6 and to consider the other five objections, and with authoriza- tion to consolidate all hearings required in connection with such objections with the hearing on any complaint which might be issued in connection with pending unfair labor practice charges. Thereafter on April 12, 1965, pursuant to charges filed by the Union on Novem- ber 27, 1964, and amended December 23 and 31, 1964, and January 15 and April 1, 1965, the Regional Director issued a complaint in Case No. 11-CA-2593 alleging that Respondent had engaged in unfair labor practices proscribed by Section 8(a) (1) and (3) of the National Labor Relations Act, as amended, hereinafter called the Act, by interrogation, threats, and coercion and the discriminatory discharge of one employee. On April 14, 1965, the Regional Director issued his Second Supple- mental Decision, Direction, and Order consolidating cases. In said decision, the Regional Director dismissed a portion of objection No. 1 and objections Nos. 2 and 4, but found that the balance of objection No. 1 and objections Nos. 3, 5, and 6, together with certain other conduct revealed by the investigation but not alleged as an objection, namely, the discharge of one employee allegedly for union activities, raised substantial conflicting factual issues involving credibility which required hear- ing. Because all of the issues involved in such objections and conduct were also involved in the unfair labor practices alleged in the complaint, the Regional Director ordered that the cases be consolidated for hearing and decision before a Trial Exam- iner, and that thereafter Case No. 11-RC-2048 be transferred to and continued' before the Board. The objections and conduct consolidated for hearing with the complaint are in substance and same as the allegations of the complaint, with the exception that the former are limited to the period from September 28 to Decem- ber 17, 1964.1 Respondent's answer, dated April 22, 1965, and amended at the hearing, admitted the jurisdictional and certain other factual allegations of the complaint but denied the commission of any unfair labor practices. Pursuant to due notice, this con- solidated proceeding was heard by Trial Examiner Robert L. Piper at Moncks Corner, South Carolina, on June 8, 9, and 10, 1965. All parties were represented and accorded all rights of due process. At the conclusion of the case- in-chief, Respondent's unopposed motion to dismiss allegations 7(a) and 7(c) of the com- plaint with respect to Ed Byrd, and allegation 7(a) with respect to Clyde Flowers on September 15 and October 12, 1964, was granted. Oral argument was waived and a brief was submitted by Respondent. Upon the entire record in the case, and from my observation of the witnesses, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FINDINGS Respondent is a corporation engaged in the production of lumber at its lumber- mill in Holly Hill, South Carolina During the past year it sold and shipped more than $50,000 worth of finished lumber products directly to points outside the State of South Carolina . Respondent admits, and I find, that it is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. II. THE LABOR ORGANIZATION INVOLVED The Union is a labor organization within the meaning of Section 2(5) of the Act. III. THE UNFAIR LABOR PRACTICES A. The issues As noted above, the allegations of the complaint and the alleged conduct affecting the outcome of the election involved the same incidents, except that the latter are limited to the period from September 29 to December 17, 1964,2 while the former encompass the period from August 25 to December 17. In brief, the issues, based upon said allegations, are: (1) Interrogation of various employees concerning their union activities; (2) implied threats of discharge for union activities; (3) threatened 1In the light of the Board's holding in The Ideal Electric and Manufacturing Com- pany, 134 NLRB 1275 (1961), only that conduct occurring between September 28, 1964, the date of the filing of the petition, and December 17, 1964, the date of the election, is considered in connection with objections to the election. 2 All dates hereinafter refer to 1964 unless otherwise Indicated HOLLY HILL LUMBER COMPANY 687 shutdown of the plant because of union activities; (4) coercion and threatening of employees on the day of the Board election; and (5) the discriminatory discharge of employee Willie C. Heyward on November 26. B. Interference, restraint, and coercion During the summer of 1964 the Union began a campaign to organize Respondent's employees. The alleged interrogation and threatening of employees because of their union activities commenced in August. The complaint alleged that Foreman Clyde Flowers interrogated various employees on various dates in August, September, October, and November and impliedly threatened employees with discharge on August 31 and October 26. The record established that Flowers was the superin- tendent of Respondent's planing mill. James Tennant, an employee laid off in November because of physical disability, testified that Flowers talked to him about the Union on three different occasions during August. Flowers was Tennant's supervisor. On the first occasion, Flowers asked Tennant if he had been contacted by the union man, if he had signed a union card, and if he had been to the union meeting. Flowers also asked Tennant if the union representative at the meeting had not advised him that if the Union organized the plant the employees would have to pay $50 to join if they had not joined during the organizational drive. Tennant replied that he had been at the meeting from the beginning to the end but had not heard any mention of money. Sometime thereafter Flowers told Tennant that another employee had said that Tennant was one of the men trying to organize the Union. Tennant replied that he was not, that he came to the plant to work, not to talk about the Union, because he had been out of work so long. Flowers told Tennant that they had been good friends for a long time, asked him if he did not feel that Flowers had done a lot for him, and said that he was merely asking Tennant the question about his union organizational activity. Tennant replied that he appreciated what the entire Com- pany had done for him and that he was telling Flowers the truth. Flowers said he would take Tennant's word. A few days later Flowers accused Tennant of being one of the men working for the Union. Tennant replied that he would not tell Flowers. Tennant then said that he had honestly told Flowers about the union meet- ing and just what the union representative had said. Flowers replied that he would take Tennant's word, but that in other words he had been telling Flowers a tale, and that he did not know what to do with Tennant Tennant had considerable difficulty in recalling when these conversations with Flowers occurred. After sev- eral attempts to refresh his recollection, he finally concluded that they must have occurred shortly after he had signed a union card in the middle of August. Lester Lincoln, another laid-off employee, testified that about September 7 Fore- man Flowers asked him if he had been to the union meeting. Lincoln replied that he had. Flowers then asked him what had been said. Lincoln replied that he could not remember. Wilson Martino, Jr., another laid-off employee, testified that he had signed a union card and attended a union meeting. In the latter part of October, Foreman Flowers asked him if he had been to the union meeting and what had been said. Martino replied that he had been to the meeting but that the man had said so much that he could not remember. Willie C. Heyward, the alleged discriminatorily discharged employee, testified that he had signed a union card and that Flowers was his foreman. In September, while working, Flowers spoke to him about the Union and asked if he had heard about the strike in Orangeburg, where the employees did not get what they wanted and had to return to work for the same thing for which they had been working. During October, Flowers told Heyward that Flowers did not care what the Union pumped into Heyward's head, Flowers was the boss and would do the hiring and firing. In November Flowers asked Heyward if he was having employees sign cards for the Union. Heyward replied that he was not and did not know what Flowers was talking about. Flowers said, "You do so," and walked away. Flowers denied all of the above conversations, including ever interrogating any employee about his union activities. However, on cross-examination Flowers admitted that he had discussed the Union with a number of the employees, and had advised them that Respondent was opposed to the Union and the Union was only after their money. Ed Byrd was Respondent's yard foreman. Robert Taylor, another laid-off employee, had performed several jobs for Respondent, including truckdriving. Tay- lor joined the Union sometime in September and attended one or two of the meet- ings. During October while they were riding in a truck Byrd asked Taylor what he 688 DECISIONS OF NATIONAL LABOR RELATIONS BOARD thought of the Union. Taylor replied that he did not know but that he had been a member of a union in the past at the Naval Air base in Charleston. Byrd denied such a conversation, but admitted that Taylor had been in the truck with him. William J. Colvin, Jr., was Respondent's vice president in charge of production. About October 20, Heyward went to Colvin's office to borrow some money. Colvin then said that he had wanted to talk to Heyward about the Union but had not previously had an opportunity. Colvin reached into his drawer and pulled out a union card, but said that he was not going to show it to Heyward, and that there was plenty more that Colvin could tell about it, but that he was not going to jail over it. Colvin then stated that he did not intend for the Union to come in, that he had been running the plant about 30 years without a union, and that he would shut it down before a union ever came in. Taylor testified that around the last of October he was in the main office to pick up a delivery ticket for a load of lumber and Colvin asked him to come into his office Colvin asked Taylor about the men joining the Union. Taylor replied that he did not know anything about it. Colvin then said that he did not want the Union in the plant. During the conversation Taylor told Colvin that Taylor had once begn a union man at the Naval base in Charleston. Colvin denied the aforesaid interrogations and threats, but admitted that he had discussed the Union on several occasions with Heyward and Taylor and that he had advised them that both the Company and he personally did not want a union, that he felt that the Union was there to get their money, and that they worked too hard for their money to divide it with someone who did not work for any part of it. Colvin also testified that during the conversation Taylor stated that he had belonged to a union at the Charleston Naval Base, and that he did not think much of the Union then and that he was not going to have anything to do with it now. On November 26, Respondent terminated its night shift, which consisted of about 27 employees. It was stipulated that this was for economic reasons. Approximately that number of employees was laid off, although not all of them were from the night shift. The election was scheduled to be held in the plant from 4 to 6 p.m., December 17. On December 16, Respondent sent telegrams to 10 laid-off employ- ees, stating that although Respondent considered them permanently laid off, they would be allowed to vote and were urged to do so by coming to the plant and presenting themselves to the Board agent. At approximately 3:45 p.m, on December 17, Jerry V. Boyd, Jr., then an employee of Respondent, accompanied by Heyward, Lincoln, and Martino who had previously been laid off, drove his car onto the plant premises and parked it near the old time office building, approximately 100 feet from the entranceway to the planing mill where the voting place had been set up. When he arrived at the property he turned in on the Company's entrance road, passing the main office building which was near the public road. Heyward got out of the car at the office. Harold Miller, another vice president of Respondent, was in Colvin's office with him. They observed the car as it drove along the com- pany road past the office. According to Miller, Colvin said that he did not recognize the occupants of the car and asked Miller to check to see if they were trespassing. Miller left the office, got into his pickup truck, drove down the entrance road, and parked across from Boyd's car, on the other side of the company road perpendicular to the entrance road. Lincoln and Martino were sitting in the back seat of Boyd's car. They had all come to vote. Miller approached the car and asked them their names and why they were there. They each replied, giving their names and stating they were there to vote. Miller asked Boyd whether he worked there. Boyd said yes. Miller then asked Martino and Lincoln, who both told him that they had been laid off. Miller then told Lincoln and Martino to go to the office. They did not immediately answer and testified that they saw no reason why they should have to go to the office. They asked him why he wanted them to go to the office, but received no answer. Miller told Boyd to drive the car to the office. After Boyd started the car Lincoln told Boyd that they did not want to go to the office, that they felt that they had not done anything, and that there was no reason they should be required to go to the office. At approximately this time Miller went back to his truck. Another former employee, Joe Baxter, whom Lincoln and Martino knew, had parked his station wagon on the other side of the entrance road near some storage tanks, approximately 300 feet from Boyd's car. Boyd drove over to Baxter's car. Lincoln and Martino got out and got into the back seat of Baxter's station wagon. Lincoln sat on the left and Martino on the right. Boyd then backed up to his original parking place. In the meantime Miller secured a pistol from the glove compartment of his truck, concealed it under his hunting jacket which he was wearing because it was raining, and approached Baxter's station wagon on the side where Lincoln was seated. HOLLY HILL LUMBER COMPANY 689 Miller again directed Lincoln and Martino to go to the office and they refused, asking him why they should go but not getting any reply. After several inter- changes of the same type, Miller opened the left rear door, drew and cocked his pistol, pointed it at Lincoln, and ordered Lincoln and Martino to go to the office. Lincoln took his time about getting out of the car and asked Miller several times why they should be required to go to the office. On the other hand Martino was frightened by the gun, got off the car quickly, walked around the back, and started down the path toward the office. Martino's graphic description was- "I never tar- ried a bit." Finally Lincoln also got out and started down the path with Martino, with Miller following behind About that time, Haynsworth, counsel for Respond- ent, appeared on the scene, talked to Miller, and the incident terminated. About the same time, Mr. Thornton, a union representative, also appeared on the scene. Apparently both he and Haynsworth had come from the vicinity of the voting booth. Immediately theieafter Lincoln and Martino left the premises, went to a nearby grocery store with Union Representatives Thornton and Hudson, and gave written statements concerning the incident. About 10 minutes later they returned and voted. Boyd signed the same statement after he voted. Lincoln and Martino, as well as all other laid-off employees, voted challenged ballots. No employees witnessed the incident other than Boyd and Baxter. Neither Lincoln nor Martino knew Miller or had ever seen him before. His duties did not normally require his presence at the plant. Boyd, who knew Miller, did not tell either of them who Miller was. Miller denied that Lincoln and Martino ever told him their names or that they were there to vote. Miller admitted that Boyd told him their names and that Miller wrote them down. Miller testified that he feared these might be trouble, and secured the gun because he had a chronic back condition which incapacitated him from time to time. The latter fact was undisputed. I do not credit Miller's version of the incident for several reasons. Miller knew that the voting was to start in a few minutes. After first testifying that he could not recall whether a check of the payroll eligibility list had been made that same day in the office, he admitted on cross-examination that he had been present and had taken part in it, that it had commenced at 2 p.m. and that he had remained in the office throughout that entire period and until the men came on the property in Boyd's car. In view of the fact that Miller knew the election was about to start, and the fact that Respondent had sent telegrams to a number of laid-off employees urging them to come and vote, the actions of both Miller and Colvin in treating these laid-off employees as pos- sible trespassers seem incomprehensible. After securing their names, as Miller admitted, he could have ascertained whether they were laid-off employees. Miller himself testified that he told the employees that if they did not work at the mill they were trespassing on private property. Under the circumstances, this of course was not correct, particularly in the light of Respondent's telegraphed invitation to laid-off employees to attend the election and vote. In addition, Miller paid no attention to Baxter, who had in fact been fired for stealing lumber. Miller testified that Baxter said he worked at the mill, but Lincoln and Martino, who were present during the incident and knew Baxter well, did not so testify. All three of them knew that Baxter had been fired for cause. Boyd, called by Respondent, signed a statement about 30 minutes after the incident which stated that when Miller came up to the car and asked the three what they were doing there they all told him they had come to vote. About 9 months later, Boyd signed an affidavit for Respondent which stated that Lincoln and Martino never told Miller they were there to vote. Boyd was not able to read. While there were some minor inconsistencies in the testimony of Lincoln and Martino, I credit their version of the incident and do not credit the conflicting versions of Miller and Boyd. C. Concluding findings on interference, restraint, and coercion The witnesses called by the General Counsel, Heyward, Tennant, Taylor, Lincoln, and Martino, impressed me as honest and truthful. The record established that all of them had little if any formal education. As a result their testimony was less articulate and assured than that of most of the witnesses for Respondent. Although there was a certain amount of confusion in their testimony, particularly with respect to dates, I am convinced that they were honestly trying to tell the truth to the best of their ability and credit their testimony. Counsel for Respondent in their able brief argue that any incidents of interroga- tion were isolated and in any event were expressions of opinion under Section 8(c), not violative of Section 8(a)(1) sans threats or promises of benefit. If such inter- rogation stood alone, this argument might be persuasive, although the court of appeals in N.L.R.B. v. Midwestern Instruments, Inc., 264 F. 2d 829 (C.A. 10), 690 DECISIONS OF NATIONAL LABOR RELATIONS BOARD found that "Such conduct could well tend to influence employees and interfere with the free exercise of their organizational rights under the Act," and in N.L.R.B. V. Harbison-Fischer Manufacturing Co., 304 F. 2d 738 (C.A. 5), quoted with approval the holding in Midwestern Instruments, supra, that the employers' conduct "was not rendered permissible free speech under Section 8(c) of the Act as it was neither the expression of a view, argument or opinion as there contemplated." 3 However, viewed in the overall context of threats of discharge and plant closure, and coercion and threats at the election site, the coercive and restraining nature of such interroga- tion is clearly evident A preponderance of the credible evidence in the entire record convinces me, and I find, that Respondent, by Flowers' interrogation of Tennant concerning his union activities on three occasions in the latter part of August; of Lincoln on or about September 7; of Heyward in September, October, and November; and of Martino in the latter part of October, by Flowers' implied threat of discharge for union activities to Tennant in the latter part of August and to Heyward in October; by Byrd's interrogation of Taylor in October; by Colvin's interrogation of Taylor con- cerning union activities around the last of October, by Colvin's interrogation of Heyward and threat of closing the plant before letting a union come in on or about October 20; and by Miller's coercive conduct on December 17, the date of the election; engaged in interference, restraint, and coercion in violation of Section 8(a)(1) of the Act. D. The alleged discriminatory discharge of Heyward The complaint alleged that Respondent discharged Heyward on November 26 because of his union activities. Heyward was one of the first to join the Union and was active in its support. As previously found, Respondent discontinued the night shift on November 26 for economic reasons, at which time Heyward and some 26 other employees were laid off. At that time Heyward was employed as a lumber stacker on the day shift. The function of the lumber stacker was to remove the lumber from the chain and stack it after it came through the planer and past the grader. Prior to the commencement of the night shift in May, Lionel Moore had been the regular stacker. Heyward did the stacking on Mondays, Moore's day off, and Moore did it the balance of the week. When the night shift was established, Flowers asked Moore to transfer to the night shift as stacker, gave him a 5-cent- an-hour raise to do so, and promised him that when the night shift was terminated he would be returned to his position as stacker on the day shift. This was corrob- orated by Moore's testimony. When the night shift was terminated Flowers replaced Heyward with Moore and Heyward was laid off. In addition, the record establishes that Respondent considered Moore a better worker than Heyward and had a regular practice of retaining the better employees in the event of a layoff such as that caused by the termination of the night shift. Heyward's work while actually working was satisfactory, but he had a habit of leaving his work station from time to time without a replacement to talk with other employees or go to the restroom. He had been warned several times to discontinue this practice. Heyward conceded that when he was terminated Flowers said that he had to let Heyward go and advised him that Respondent had another man to take his place. Heyward frankly admitted that Moore was a good worker, and that Moore had operated the stacker on the day shift with Heyward replacing him only on his day off prior to the inauguration of the night shift. Flowers testified that he had warned Heyward several times not to leave his post to go to the restroom or to engage in conversation with other employees. These warnings and incidents were corroborated by five rank-and-file employees, Wade Brown, Willie Jackson, Herbert Johnson, George McRoy, the lumber grader, and Blease Browder, the planer. During July Flowers talked to Heyward at the restroom and warned him about his frequent and prolonged absences from his post. On that occasion Flowers docked Heyward 30 minutes time. On several occasions McRoy complained to Flowers about Heyward leaving his post, which caused the lumber to stack up and prevented McRoy from continuing his work. Around the first of September Flowers transferred Heyward to the feed table. That function consists of separating the lumber so that it will enter the planer piece by piece. If it does not it causes the planer to jam. On several occasions Browder, the operator of the planer, complained to Flowers that Heyward had left his post. This compelled 8 See also Mallory Plastics Company, a Division of P. R. Mallory & Co., Inc., 149 NLRB 1649. HOLLY HILL LUMBER COMPANY 691 Browder to operate the feed table and the planer at the same time. Browder finally threatened to quit if Heyward's continued absences from his post were not stopped. This caused Flowers to transfer Heyward back to stacking around the first of November. As a result of the foregoing, when the night shift was terminated Flowers was satisfied that Moore was a better employee. In addition, as found above, Flowers had promised to return Moore to his job as stacker on the day shift whenever the night shift terminated. Heyward frankly admitted that he had been warned by Flowers for being away from his post. Without reviewing all of the evidence in detail, suffice it to say that a preponderance of the credible evidence convinces me, and I find, that Respondent laid off Heyward because it considered Moore a superior employee and had prom- ised him restoration to his job as stacker when the night shift terminated, and that Respondent did not lay off or discharge Heyward because of his union activities. IV. REPORT ON OBJECTIONS AND OTHER CONDUCT As noted above, the issues of alleged conduct affecting the outcome of the election consolidated for hearing with the complaint were the same as the allegations thereof, limited to the period after the filing of the petition, September 28. Based upon the above findings of fact and the entire record herein, I conclude and find that the balance of objections Nos. 1, 3, and 5, dealing respectively with oral interrogation, threats, and coercion on the job, and threats of discharge for union activity, have been established and that Respondent thereby engaged in conduct affecting the results of the election. With respect to the other conduct consolidated for hearing, i.e., the discharge of Heyward, it has been found that such discharge was not because of union activities and hence it is concluded and found that this was not conduct interfering with or affecting the result of the election. With respect to objection No. 6, i e., the coercive incident on the day of the election, it has been found above that by such conduct Respondent interfered with, restrained, and coerced its employees in violation of the Act. However, Respondent contends that this conduct could not have affected the results of the election because it did not come to the attention of the great majority of the employees before they voted. In this connection, Respondent offered in evidence proof that the incident on the day of the election involving Miller came to the attention of only three of the employees prior to their voting. On December 22, the Tuesday following the election, Respondent conducted a survey of all of its employees to ascertain whether or not they had heard about the "Miller incident" before they voted. Respondent prepared a written questionnaire, offered in evidence as Respondent's Exhibit No. 5, and had five of its supervisors contact all of the employees individually, a total of 211, and ask them the first numbered question written on the questionnaire. That question was whether they had heard about the incident occurring on the day of the election involving Miller and some of the employees before they voted. Ruling was reserved on the General Counsel's objection to Respondent's Exhibit No. 5 and his companion motion to strike the testimony of the five supervisors in connection therewith. It is of course correct that the answers of the employees to the survey were a form of hearsay. However, it is well settled that such surveys constitute an established exception to the hearsay rule, provided that they are con- ducted in a fair and impartial manner and a proper form of interrogatory is used, namely, one which is not slanted or designed to influence the answer of the person being questioned. The written question asked each employee individually was simply whether he had heard of the Miller incident before he voted. Respondent's Exhibit No. 5 also contained numbered questions 2 and 3, which were not asked of the employees unless they answered the first question affirmatively, i.e., that they had heard of the incident before they voted. Questions 2 and 3 are therefore irrel- evant, since it may be presumed that the four employees (hereinafter found) who heard of the incident before they voted could have been coerced into voting against the Union. The said objection to the exhibit is hereby overruled, the motion to strike denied, and Respondent's Exhibit No. 5 is received in evidence. Each of the 211 employees were interviewed and only 3 stated that they had heard about the incident before they voted. It will be recalled that it occurred only a few minutes before the balloting began. In addition the record establishes that Boyd was aware of at least part of the incident before he voted. As found above, there were 75 votes for and 134 against the Union. In addition there were 31 challenged ballots which were not considered and in any event could not have affected the 217-919-6 6-vo l . 156-45 692 DECISIONS OF NATIONAL LABOR RELATIONS BOARD result. Baxter, Lincoln, and Martino also knew of the incident but were among the uncounted challenged ballots. Thus of the total votes counted only four could have been affected by the Miller incident. While there is no question but that Miller's conduct restrained and coerced the employees involved in violation of the Act, as found hereinabove, it is well settled by many decisions of the Board that conduct which could not affect the outcome of an election cannot be found to be conduct interfering with the results of an election. To quote but one of such holdings: "As the electorate was unaware at the time of the election that disciplinary action would be taken against any of the 19 employees such action could not have affected the results of the election." 4 It is concluded and found that objection No. 6, concerning the Miller incident on the election day, is not sustained because it could not have affected the results of the election. Having sustained the balance of objection No. 1, and objections Nos. 3 and 5, I recommend that the Board set aside the election and remand the representation proceedings to the Regional Director for the purpose of conducting a new election at such time as he deems appropriate. V. THE REMEDY Having found that Respondent engaged in certain unfair labor practices , I shall recommend that it cease and desist therefrom and that it take certain affirmative action of the type which is conventionally ordered in such cases as provided in the Recommended Order below, which I find necessary to remedy and remove the effects of the unfair labor practices and to effectuate the policies of the Act . I shall also recommend that the election in Case No . I1-RC-2048 be set aside and a new election directed. Upon the basis of the foregoing findings of fact, and upon the entire record in the case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce, and the Union is a labor organization, within the meaning of the Act. 2. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed in Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8 (a)(1) of the Act. 3 The aforesaid unfair labor practices affect commerce within the meaning of Section 2 (6) and (7) of the Act. 4. Respondent has not, as alleged in the complaint, discriminated against its employees within the meaning of Section 8(a)(3) of the Act. RECOMMENDED ORDER Upon the foregoing findings of fact, conclusions of law, and the entire record, and pursuant to Section 10(c) of the National Labor Relations Act, as amended, I recommend that the Respondent, Holly Hill Lumber Company, its officers , agents, successors, and assigns, shall: 1. Cease and desist from: (a) Interrogating coercively its employees concerning their union affiliation or activities. (b) Threatening 'employees with loss of employment, closing of the plant, or other reprisals for engaging in union activities. (c) Threatening employees with bodily harm or in any other manner preventing them from, or coercing them for, engaging in a Board -conducted election. (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 International Woodworkers of America, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from any or all such activities. 4 Dnion Twist Drill Co., 124 NLRB 1143. See also Dumont Electric Corporation, 97 NLRB 94; Bull Insular Line, Inc., et al., 108 NLRB 900; The Liberal Market, Inc., 108 NLRB 1481 (1954) ; and Western Table Company and Western Picture Frame Company, 110 NLRB 17. HOLLY HILL LUMBER COMPANY 693 2. Take the following affirmative action which I find will effectuate the policies of the Act: (a) Post at its plant in Holly Hill, South Carolina , copies of the attached notice marked "Appendix ." 5 Copies of said notice , to be furnished by the Regional Director for Region 11, shall, after being duly signed by Respondent 's representative, 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 to insure that said notices are not altered , defaced, or covered by any other material. (b) Notify the Regional Director for Region 11, in writing, within 20 days from the date of receipt of this Decision , what steps Respondent has taken to comply herewith.6 It is further ordered that the complaint , insofar as it alleges that Respondent dis- criminated against an employee in violation of Section 8(a)(3) of the Act, be and hereby is dismissed. It is further ordered that the election of December 17, 1964, in Case No. I1-RC-2048 be and hereby is set aside, and that the representation proceedings be and hereby are remanded to the Regional Director for Region 11 for the purpose of conducting a new election at such time as he deems the circumstances permit the free choice of a bargaining representative. I 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." 6In the event that this Recommended Order be adopted by the Board , this provision shall be modified to read* "Notify the Regional Director for Region 11, in writing, within 10 days from the date of this Order, what steps 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, as amended, we hereby notify our employees that: WE WILL NOT coercively interrogate our employees concerning their union affiliation or activities. WE WILL NOT threaten our employees with loss of employment , closing of the plant, or other reprisals for engaging in union activities. WE WILL NOT threaten our employees with bodily harm or in any other man- ner prevent them from, or coerce them for, engaging in a Board-conducted election. 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 International Woodworkers of America, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choos- ing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. All of our employees are free to become or remain, or refrain from becoming or remaining , members of any labor organization. HOLLY HILL LUMBER COMPANY, 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, Telephone No. 723-2911.