Mobile Paint Manufacturing Co. of Delaware, Inc.

MOBILE PAINT MFG. CO. Mobile Paint Manufacturing Company of Delaware, Inc. and International Union of District 50, United Mine Workers of America. Cases 15-CA-3020 and 15-RC-3487 December 8, 1967 DECISION, ORDER, AND DIRECTION OF SECOND ELECTION By CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On September 18, 1967, Trial Examiner James F. Foley issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in and was engaging in unfair labor practices within the meaning of the National Labor Relations Act, as amended, and recommending that it cease and desist therefrom and take certain affirmative action, and also recommending that the representation election held on February 9, 1967, in Case 15-RC-3487, be set aside and a new election held, all as more fully set forth in the attached Trial Ex- aminer's Decision. Thereafter, Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief, and the General Counsel filed an answering brief. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the Na- tional Labor Relations Board has delegated its powers in connection with these cases to a three- member panel. 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 Trial Examiner's Decision, the exceptions and briefs, and the entire record in these cases, and hereby adopts the findings,' conclusions, and recommendations of the Trial Examiner.2 ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner as modified below and hereby orders that the Respondent, Mo- bile Paint Manufacturing Company of Delaware, Inc., Mobile, Alabama, its officers, agents, succes- sors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: Delete from paragraph 2(a) of the Trial Ex- aminer's Recommended Order that part thereof which reads "to be furnished" and substitute therefor "on forms provided ...." 783 IT IS FURTHER ORDERED that the election held on February 9, 1967, be, and it hereby is, set aside. [Direction of Second Election3 omitted from publication.] ' The Respondent has excepted to certain credibility findings made by the Trial Examiner. It is the Board's established policy not to overrule a Trial Examiner's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolu- tions are incorrect. Standard Dry Wall Productions, Inc., 91 NLRB 544, enfd. 188 F.2d 362 (C.A. 3). We find no such basis for disturbing the Trial Examiner's credibility findings herein. 2 The Respondent excepts to the Trial Examiner's findings that it vio- lated Section 8(a)(1) of the Act by foreman Owens' interrogation of em- ployees Ziglar and Moore, and by threats and promises made to them in connection with their union activities. While we agree with Respondent that the Trial Examiner, in finding the violations, overlooked Owens' specific and implied denials of certain statements attributed to him, we nonetheless find that the Trial Examiner's findings in connection with these incidents are correct. Thus, Owens admitted engaging Ziglar and Moore in conversations about the Union, and his alleged unlawful con- duct was consistent with Respondent's general course of conduct in op- position to its employees' union activities, which conduct the Trial Ex- aminer found violated Section 8(a)(1). The Trial Examiner, who had an opportunity to observe the witnesses, credited both Ziglar and Moore, and we find nothing in their testimony that would call for a different credibility finding because of a bare or implied denial by Owens. s An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 15 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director. The Regional Director shall make the list available to all parties to the election. No ex- tension of time to file this list shall be granted by the Regional Director ex- cept in extraordinary circumstances. Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc, 156 N LRB 1236 TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE JAMES F. FOLEY, Trial Examiner: These cases, Cases 15-CA-3020 and 15-RC-3487, are before the National Labor Relations Board (herein called the Board), in this proceeding against Mobile Paint Manufacturing Com- pany of Delaware, Inc. (herein called Mobile), under Sec- tions 10(b) and 9 of the National Labor Relations Act, as amended (herein called the Act), 61 Stat. 136 and 73 Stat. 519. A complaint was issued on April 14, 1967, by the General Counsel in Case 15-CA-3020, through the Re- gional Director of the Board's Region 15 with headquar- ters in New Orleans, Louisiana ( herein called the Re- gional Director). An order directing a hearing in Case 15-RC-3487 was issued on April 13, 1967, by the Re- gional Director. On April 14, 1967, the Regional Director issued an order for a consolidated hearing of the two cases. The complaint in Case 15-CA-3020 is premised on a charge filed on February 9, 1967, by Inter- national Union of District 50, United Mine Workers of America (herein called the Union). The order directing a hearing in Case 15-RC-3487, together with a supplemen- tal decision and report of objections, is premised on time- ly objections to an election filed by the Union on Februa- ry 16, 1967. It is alleged in the complaint that, during the period from August 1966 up to and including January 1967, Respondent interrogated and threatened employees, promised them benefits, and gave them the impression of surveillance in violation of Section 8(a)(1) of the Act. The 168 NLRB No. 97 784 DECISIONS OF NATIONAL LABOR RELATIONS BOARD complaint was amended at the hearing to include addi- tional illegal conduct. The Union's objections before me, in this proceeding, filed February 16, 1966, allege that prior to the election conducted by the Board on February 9, 1967, in an appropriate unit of Respondent's em- ployees, Respondent verbally promised benefits and threatened loss of employment based on the outcome of the election, and thereby destroyed the employees' right to participate in a free election. Respondent, by answer filed April 19, 1967, and at the hearing, denies all the al- legations of illegal conduct in the complaint, as amended, and in the objections. A hearing on the complaint and objections as stated was held before me on May 23 and 24, 1967, at Mobile, Alabama. The parties were afforded an opportunity to offer evidence, make oral argument, and file briefs. Coun- sel for General Counsel and Respondent filed briefs after the close of the hearing. The Union did not wish to represent the laboratory technicians, and no election was held in that unit. On the day of the election the charge was filed, and on February 16, 1967, the objections to the election were filed. It is undisputed that Respondent and its supervisors opposed the organization of its employees by the Union, and, by letters to the employees during the period of or- ganizational activity from August 1966 until shortly be- fore the election on February 9, 1967, it disclosed to them that it did not favor their being represented by the Union, and stated to them that the history of the Union showed it would not be the type of representative that would be beneficial to them. The Regional Director in ruling on objections to these letters held they were per- missible campaign material, and did not interfere with em- ployees' rights to a free election. B. The Issues FINDINGS AND CONCLUSIONS 1. THE BUSINESS OF RESPONDENT Respondent, with its principal place of business in Mo- bile, Alabama, is engaged in the manufacture of paint and paint products. During the 12-month period preceding April 14, 1967, Respondent purchased and received materials and products valued in excess of $50,000 directly from points or sources located outside the State of Alabama. Respondent is an employer engaged in com- merce within the meaning of Section 2(6) and (7) of the Act. Assumption of jurisdiction of this case by the Board effectuates the purposes 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 ALLEGED UNFAIR LABOR PRACTICES AND CON- DUCT DEPRIVING EMPLOYEES OF A FREE ELECTION A. Background Evidence On August 29, 1966, the Regional Director of the Union posted a letter to Respondent claiming recognition for a unit of "production and maintenance employees, laboratory employees, print shop employees, plant jani- tors and truckdrivers," and requested bargaining, and Respondent by letter dated August 31, 1966, expressed doubt concerning the appropriateness of the unit and the Union's claim of majority representation, and refused to bargain. On August 31, 1966, the Union's petition for certification was filed, and a hearing was held on the peti- tion on September 27, 1966. There were a number of contested issues, and there was no consent agreement for an election. On January 17, 1967, the Regional Director issued a Decision and Direction of Election in which he directed elections in two separate units, one of production and maintenance employees, and one of laboratory technicians. The election was held on February 9, 1967, in the production and maintenance unit. Thirty-two votes were cast for the U nion, and 46 votes were cast against it. I The Board held in The Ideal Electric and Manufacturing Company, 134 NLRB 1275, that only conduct engaged in after the filing of the peti- tion can be the basis for a decision that employees were denied a free elec- The issues to be resolved are: Did the Respondent engage in conduct violative of Sec- tion 8(a)(1) of the Act? If it did, did it engage in it after the filing of the petition on August 31, 1966?' If illegal conduct was engaged in after August 31, 1966, did it interfere with employees' right to a free elec- tion? C. The Evidence of Conduct Alleged to Violate Section 8(a)(1), and to Deprive Employees of a Free Election 1. Supervisors It is undisputed that the persons named in the following list were employed as supervisors within the meaning of the Act by Respondent at the times the conduct in issue involving them is alleged to have occurred. The list is: Victor Roy Mattern, Jr., plant manager; John H. Owens, foreman of Department 3 which handles shading, filling, and machine labeling; James McLendon, foreman, General Utility Department; A. D. Hall, foreman of De- partment 4 which handles warehousing; and Jack Davis, foreman of Shipping and Receiving Department. 2. The alleged conduct of Victor Roy Mattern,Jr., plant manager On October 13, 1966, the day after Buddy Allen, a shader, terminated his employment with Respondent, em- ployee Charlie W. Brown, the other shader, and an em- ployee of 14 years, was asked to go to Mattern's office after the workday ended. This request was made to him by John H. Owens, his foreman. Brown accompanied by Owens went to Mattern's office at the end of the work- day. Mattern talked to Brown about the adjustment that would have to be made in his work program to maintain the existing level of shading work in view of Allen's ter- mination of employment. Brown said he would do what he could to maintain the existing level of the shading work. Mattern said he would be free to decide his work routine, and that he could extend his workday hours from 8 to 10 and work on Saturdays. Brown asked Mattern if he was offering him a leaderman's job, and he replied that non by the employer's preelection conduct. Earlier conduct can be con- sidered as background evidence MOBILE PAINT MFG. CO. he was not. He said he would have to contact his attorney before doing that, and that, in view of the Union's or- ganizational activity, he could neither offer him a promo- tion, nor an increase in wages. Brown said he did not want the leaderman's job, as a promotion would raise some doubt as to whether he could vote in the election. He said he knew they knew he was in the Union. Mattern said he was being frank, and they appreciated his frankness.2 3. The alleged conduct of Foreman James McLendon On October 15, 1966, Foreman James McLendon came into the area of Department 3 where employee Brown and others were doing shading work, and ap- proached Brown and asked him how he felt about the Union. He replied that he had already told Mattern and Owens. McLendon said he knew about the conversation he had with them, but that Brown should take his advice and change his mind. He then related what he represented to be the circumstances leading to his leaving the union which represented Respondent's employees during the time of World War 11. McLendon told Brown that he asked the boss for a raise, but he replied that he could not give him one because Respondent was under a union contract. McLen- don then asked him if he could have a raise if he got out of the union. The boss said yes, and also said he would make him a foreman. McLendon resigned from the position of vice president he held in the plant local of the union, and got out of the union. He received his raise, and a short time later was made a foreman, and had been making average pay ever since. McLendon then said to Brown that if he could not get what he wanted in the back office to see Mr. Gates across the street.3 Employee Robert Clay testified that McLendon and he had three conversations about the Union. He testified that these conversations took place about 2 weeks before the hearing of September 27, 1966, on the petition for certification, 2 weeks after this hearing, and 2 weeks after the election of February 9, 1967. However, Clay denied on cross-examination that he had been convicted of any crime or had paid a fine except for a traffic violation, and 2 Brown testified that Mattern asked him how he felt about the Union when he disclosed that he was in the Union. Mattern denied he asked him how he felt about the Union. He said he already knew from Brown's dis- closure. Owens also denied that Mattern asked Brown how he felt about the Union In view of Owens ' corroboration of Mattern's testimony and Brown's testimony disclosing that, prior to Mattern's alleged question of how he felt about the Union, he stated he knew they knew he was in the Union, and that he did not want a leaderman's job as the promotion would make doubtful his right to vote in the election, I credit Mattern's denial that he asked him how he felt about the Union . As Mattern testified, such a question was pointless as he already knew from the information Brown had volunteered how Brown felt about the Union. Although it is not necessary, in view of my crediting Mattern , to pass on the point, I am doubtful whether in this context a question by Mattern of "How do you feel about the Union7" would constitute a threat or promise of benefit, or interfere with employees' rights under Section 7 , or coerce or restrain them with respect to these rights. 3 It was stipulated by the parties that Gates was vice president of Respondent at the time McLendon testified this conversation took place. I have credited employee Brown's testimony. McLendon admitted having this conversation with Brown. He said he merely gave Brown the benefit of his experience. His testimony of what he said to Brown regarding his withdrawal from a union in order to get a wage increase is substantially the same as the testimony of Brown regarding this incident He testified that it was Brown, and not he, who initiated the conversation. Upon considera- tion of all the relevant testimony in context, I have credited Brown's 785 then, when counsel for Respondent asked him specifi- cally if he had not been convicted of carrying a pistol without a permit in Mobile, Alabama, in 1964, of carrying a concealed weapon in Chicago, Illinois, in 1958, and of disorderly conduct in Chicago in 1957, he recalled that he had.4 Obviously, no one forgets convictions for carrying a pistol without a permit, for carrying a concealed weapon, and for disorderly conduct that occurred as recently as 1964, 1958, and 1957, respectively. Clay's testimony, in which he recalled being found guilty of only a traffic violation when testifying under oath, is pretextual and persuades me that his testimony should not be credited, except where it is corroborative of McLendon's testimony. It is not necessary for me to pass on the question whether he should be discredited per se because of his convictions for carrying a pistol without a permit and for disorderly conduct. Foreman McLendon, however, admitted in his testimony that he had three or four conversations with Clay in which the Union was mentioned, and that they occurred on the dates Clay testified they occurred. McLendon also admitted that, in a conversation he had with Clay 2 weeks before the hearing of September 27, 1967, on the petition for certification, he said to Clay that he heard he was head of the Union, and Clay said no and laughed. McLendon testified that on another occasion he said, "they tell me you carry messages for them now," and Clay answered yes, and laughed. McLendon testified that on this occasion Clay said that the employees were going to have a union there some day, and the Company would be better off when they did. Both McLendon and Clay testified that they always spoke to each other in a joking manner on matters not directly related to work operations, and they both testified that when McLendon spoke to Clay about being head of the Union or carrying messages for the Union he did so in a joking manner, and that Clay replied in a joking manner. Employee Scruggs had a conversation with McLendon about the Union in the middle of January 1967. Scruggs, a janitor, was cleaning up in the bathroom on the first floor of the plant when McLendon came up to him and testimony that the conversation was initiated by McLendon and not by him. 4 At the request of counsel for Respondent, I kept the record open in this proceeding to receive documentary evidence of convictions of Clay for crimes that go to his credibility as a witness . I have received in evidence as Resp. Exh. 6(a) the certification and attestation, dated June 23, 1967 , of J. S. Shestak , chief clerk, Municipal Court, City of Mobile, Alabama, that the records of that court reflect a conviction in that court in 1964 of the witness Robert Clay for carrying a pistol without a permit, and as Resp. Exh. 6(b) the certification , dated June 23, 1967, of the judge of the Municipal Court, City of Mobile, Alabama, that the certification and attestation of J. S. Shestak are authentic . I have identified as Resp. Exh 7(a) a certificate of judgment dated June 23, 1967 , of W. Thetis, clerk of the Court of General Sessions of Mobile County, Alabama, that the wit- ness Robert Clay was found guilty on August 13, 1958, of driving without a driver's permit; as Resp. Exh. 7(b) a certification dated June 23, 1967, of the judge of the Court of General Sessions of Mobile County, Alabama, that the certification of W. Thetis is authentic, and as Resp Exh. 7(c) sup- porting papers to Resp. Exh . 7(a). I have rejected Resp Exh. 7(a), (b), and (c) as evidence of Clay's lack of credibility as a witness. I have identified as G C. Exh. 3 he letter objection dated June 28, 1967 of counsel for the General Counsel to the receiving in evidence of Resp. Exh. 7(a), (b), and (c) for identification. With the action taken by me with respect to the above exhibits, the record is now closed. 786 DECISIONS OF NATIONAL LABOR RELATIONS BOARD asked him if he had signed a union card. Scruggs an- swered no, and then McLendon asked him again if he signed a union card, and Scruggs answered, "yes, sir."5 4. The alleged illegal conduct of Foreman John H. Owens Mack Harold Caraway, whose employment was ter- minated by Respondent on or about February 2, 1967, testified as General Counsel's witness that on August 25, 1966, Foreman John H. Owens, his supervisor, ap- proached him at his work location and asked him if he signed a union card, and on August 29, 1966, he again came to his work location, and asked him if he was in the union movement, and if he signed a union card. He also testified that on August 31, 1966, he overheard Owens ask Aubrey Dean, an employee, like him, in the depart- ment which Owens supervises, whether he signed a union card. Owens denied asking Caraway and Dean these questions. Aubrey Dean was not called as a witness by the General Counsel. Employee Danny McLendon testified as a witness for Respondent that sometime in the summer of 1966, which would include June, July, and August, Caraway and he had a conversation about the organizational activity of the Union at the place where they washed their hands in the labeling section. They both worked in the labeling section under Owens' supervision. McLendon is not re- lated to Foreman McLendon. McLendon said that Caraway asked him if he was still with them in trying to get a union, and he replied that he did not know, and would have to ask his uncle .6 Caraway then asked him if he ever worked around union men. He answered yes. Caraway's next statement to McLendon was that "Well, you know, whenever they are trying to organize something and a fellow don't go along with them, you know, they could be pretty nasty about it, they could hurt you, or make you lose your job." McLendon said he recognized this. Carayvay then asked McLendon, "Well, 5 McLendon testified that he had one conversation with Scruggs, but did not recall when it was. He testified that Scruggs was cleaning up in the bathroom, and that he was putting up the laundry and towels. He testified that Scruggs had a letter from the Union and Scruggs asked that he read it to him. According to McLendon, he said to Scruggs that he worried him too much, he was not going to read the letter to him, and if he did not get out of the bathroom he was going to take a board to him. McLendon testified that Scruggs could read. Scruggs testified that sometime between September and December 1966 he had another conversation with McLendon in which the latter asked him if he had signed a union card. McLendon denied he had more than one conversation with Scruggs , and denied that he asked Scruggs if he signed a union card. Upon consideration of the oral testimony of Scruggs and McLendon in context, and with their demeanor testimony, I have credited Scruggs' testimony that he had a conversation with McLen- don about the middle of January 1967, and in that conversation McLen- don asked him twice if he had signed a union card . This conversation could have included a request by Scruggs to McLendon to read the letter of the Union to him, and McLendon's reply, as McLendon testified, in ad- dition to the interrogation I have found that McLendon engaged in. I do not give any weight to Scrugg's testimony about the second conversation he claims he had with McLendon since he could not set the time of it any more specifically than sometime in a period from September to December 1966, and in view of his testimony that in the January 15 conversation McLendon asked him twice if he signed a card . Scruggs could have a be- lief that he had two conversations in which he was questioned about a union card in view of McLendon's twice asking him in the January con- versation if he had signed one, and his two replies regarding the signing of a union card. In finding that McLendon questioned Scruggs in the middle of January 1967, I have considered the statement, not verified, that coun- how would you like for me to push the flat paint over on top of you?" McLendon replied that he would not like it. McLendon testified that he told Bob Adcock in charge of the paint shop about the conversation he had with Caraway. Adcock, like McLendon and Caraway, was under the supervision of Owens. This testimony was not rebutted by General Counsel. On its evaluation in con- text and with the demeanor testimony of both McLendon and Caraway I credit it. Although the Union in its charge of February 9, 1967, which led to the complaint in this proceeding, alleged that Caraway was discharged on February 2, 1967, for his union membership and activity, the General Counsel, after an investigation, did not allege in the complaint that Caraway was discriminatorily discharged. In view of Caraway's discharge for cause by Respond- ent, and the evidence that he threatened McLendon dur- ing his organizational activity on behalf of the Union, and admitted that he could be nasty in the course of this ac- tivity, I do not consider Caraway to be a credible witness, and, therefore, do not credit his testimony. In the middle or last part of October 1966, Owens came into the restroom where employee Clark David Ziglar, an order clerk, was and asked him if he signed a union card. Ziglar answered no. Owens then asked him if he intended to sign, and he answered no. Owens also said to him that he had something to do with Ziglar's obtaining a job from Respondent. Ziglar replied that he did not know that he had. Ziglar was under the supervision of Hall and not of Owens.7 About September 7, 1966, when employee Johnny Ed- ward Moore, a paint can filler under Owens' supervision, came to Owens' desk to get a paint filling order, Owens asked him if he had received a letter from Respondent. He was referring to a letter dated August 23, 1966, which Respondent sent to employees.8 Moore answered no, but when Owens repeated the question he said he did. Owens asked him if he had received a letter from any other source. Moore answered that he had received one from sel for the Respondent took from Scruggs on May 18, 1967. Scruggs stated to Attorney Hutcheson, in a question and answer colloquy, that McLendon, Mattern, Hall, Owens , and Davis never questioned him about the Union or threatened him regarding it. Scruggs signed the statement. I credit Scruggs' testimony that he did not wish to disclose to counsel for Respondent that McLendon had talked to him about the Union. I He identified his uncle as Junior Sturdevant , an employee of the I and N Railroad. I have credited Ziglar's testimony. Owens admitted he had a conver- sation with Ziglar in the restroom in September or October 1966. He testified that they were both from Atmore , Alabama, and the conversation was about their hometown and hometown folks. He testified that he said to Ziglar that he knew about the union activities going on and would ap- preciate his standing with the Respondent on the situation . This testimony does not rebut Ziglar's testimony that Owens asked, him if he signed a union card, and when he said no, if he inter-led to sign one, and that Owens let him know that he was indebted to him for his employment with Respondent. If Owens said what he testified he said, he said it in addition to what Ziglar testified he said. 8 In this letter Respondent represented to employees that signing a union card was serious business and that they should weigh all factors be- fore signing it. It warned against accepting as true without evaluation, the sales talks of persons organizing for the Union. Respondent stated in the letter that employees had a legal right to sign a card, but hoped that they would not do so. Respondent also stated that it would resist the Union in all possible legal manner. The Regional Director, in ruling on the Union's objection that this letter and the other letters Respondent sent to the employees interfered with a free election, found they were permissible campaign material , and did not interfere with the employees' right to a free election. MOBILE PAINT MFG. CO. the Union. The Union had also sent a letter to each of the employees. Owens asked him what he thought of Respond- ent's letter, and he answered that he had read it. Owens then asked him if he had been approached by anyone to sign a union card, and Moore answered no. Owens next asked him if he signed a union card, and if anyone had tried to force him to sign a union card. He answered no to both questions. Owens said at this point in the conversa- tion that he could not tell him what to do as a man has a right to what he wants, but thought that Respondent would like it if he did not get involved with such matters. He also said that if any one tried to force him to sign a union card to let him know. S 5. The alleged conduct of Foreman A. D. Hall Employee Clay, who was under Foreman A. D. Hall's supervision at the time of the organizational activity, testified that about the time the Respondent had notice of the petition which was filed on August 31, 1966, Hall said to him that he had seen the petition but no one had to sign anything. He also testified that during the week of the election, which was held on Thursday, February 9, 1967, Hall said to him that he had heard that Clay had said that the Union a was a two-man game or gang. He also said that the Respondent was going to put a stop to it. Clay testified that Hall said he did not know who said Clay had made the statement that the Union was a two- man game or gang. Clay then testified that, the day after 9 Tins is Moore's testimony, which I credit. Owens testified that he had a conversation with Moore sometime around the first of September when he came to him for a work assignment . He asked Moore if he received a letter from the Respondent, and he answered that he had He asked him if he received a letter from any other source, and he said he had. He told Moore he could not tell him how to vote in this situation nor ask him anything about whether he had sided , but he could tell him that he would appreciate his taking sides with the Respondent on it. Finally , he said to him that if anybody threatened him or tried to force him into joining up or signing up to let him know. Owens was not asked by counsel for Respondent whether he asked Moore if he had been approached by anyone to sign a union card, and Owens did not volunteer any testimony by way of denial or failure to re- call that he asked Moore these questions as Moore testified he did. I have credited Moore's testimony because Owens' testimony cor- roborates it except for Moore's testimony that Owens asked him the questions about signing a union card , and whether someone tried to force him to sign one. In regard to this testimony of Moore, Owen's testimony is silent. So Moore's testimony is unrebutted. In reply to Respondent counsel's question as to what prompted him to tell Moore to let him know if he should be threatened or forced to sign a union card, Owens said that Respondent "had received any number of complaints about fellows trying to force them into signing." He testified that Respondent sent out the letter of August 23, 1967, referred to above, and posted a notice on the bulletin board. He testified the notice was one dated August 31, 1966, posted on the bulletin board about that time, and which read as follows; NOTICE TO EMPLOYEES MOBILE PAINT MFG. CO. It has come to our attention that some employees have been put under pressure. We want you to know that we will not tolerate pres- sure of any kind which is designed to force an employee to join a union. It will never be necessary for an employee of the Mobile Paint Manu- facturing Company to become a member of this or any other union and we will protect the rights of our employees to refuse to join. 787 this conversation, Hall said to him that a union meeting was coming up and asked him if he was going, and he said to Hall that he thought he would. A union meeting was held the day before the election. Hall admitted he had a conversation with Clay about the time the August 31 notice was placed on the bulletin board and the August 23 letter had been distributed. Hall testified that he and Clay talked about them. He denied he asked Clay if he was going to attend a union meeting that was coming up,T0 or that he said anything to him about a two-man game or gang. I have held, supra, that Clay was not a credible wit- ness. In view of Hall's denial that he asked Clay about a union meeting and Clay's lack of credibility, I find there is no evidence to support the allegation in the amended complaint that Hall interrogated Clay or gave him the im- pression of surveillance. Counsel for General Counsel stated at the hearing that General Counsel contended that Hall violated the Act in conversations with Clay only when he interrogated him about his plans to attend a union meeting. Hale Kent Johnson, who terminated his 10 months' employment with Respondent in the first week of January 1967, had a conversation with Hall about the Union on August 26, 1966. Hall, who supervised Johnson, ap- proached him in the quart can warehouse, and asked him if he had heard anything about the Union, and Johnson answered that he had. Hall next asked him if he had signed a union card and he answered no, that he told the Employees engaging in such tactics will be subject to immediate discharge. MOBILE PAINT MFG. CO, INC. /s/ Roy Mattern ROY MATTERN, PLANT MANAGER James V. Gates, executive vice president of Respondent , testified that, in the latter part of August 1966, employee Robert Adcock related to him what Danny McLendon had said to him about the conversation Caraway had with him regarding the signing of a union card, and what might happen to him if he did not sign one. McLendon's testimony of this conversation is stated supra. Gates testified that he got in touch with Plant Manager Mattern, and a meeting of foremen was arranged , and the incident was discussed with all foremen . He also testified that they were given written instructions , and the notice of August 31, 1966, discussed supra, and a later notice dated October 17, 1966, were posted The October 17 notice is substantially the same as the August 31 notice. I credit Gates' testimony. Employee Jimmy Arthur Sanders testified as a witness for the Respond- ent that he attended a meeting at the headquarters of the Union in Mobile at the beginning of the organizational campaign in early August 1966. He testified that 12 or 13 other employees of Respondent were present. A representative of the Union talked to them. Sanders testified that the union representative said to them if the Union came into Respondent's plant and they did not sign a card there would be more danger of the loss of their jobs. He testified he told Owens, his foreman , that he signed a union card, and if he did not sign it he would lose his job . According to Sanders, he had a conversation with Owens shortly after the union meet- ing. He testified he asked Owens if he would lose his job if he did not sign a card, and Owens said no. I do not find from Sanders' testimony that he disclosed to Owens what the union representative said to the employees in the meeting, especially when Owens did not testify that Sanders had talked to him, and Respond- ent's counsel did not refer him to a conversation with Sanders. 10 I granted counsel for General Counsel's motion for leave to amend the complaint to allege that Hall interrogated an employee in the first week of February 1967 about his plans to attend a union meeting. The mo- tion was not opposed. I also granted Respondent's motion for leave to amend the answer to deny this allegation. 336-845 0 - 70 - 51 788 DECISIONS OF NATIONAL LABOR RELATIONS BOARD person who approached him for the Union that he wanted to be left out of it as he was neither for them nor against them. Hall asked Johnson if he had not always been a man he could talk to if he had problems, and Johnson an- swered that he was. He asked Johnson if he thought he had a good future with the Respondent, and he answered he believed he had. Hall then said that the Union could not give him all of what the union representatives were promising. He also said to Johnson that, if the Union came in, the employees would not have a good future, a picket line would probably form, and the plant would have to be closed down, and the employees would probably be on strike. He said this would not be good for the employees as they would not be making any money." Hall came into the gallon warehouse about 10 a.m. around October 1, 1966, and approached, and had a con- versation with, Gale T. Seabrook about the Union. Seabrook, at the time, worked as a shipping or order clerk under Hall's supervision.12 Hall asked Seabrook what he thought about the Union, and if he knew how it got started. Seabrook replied that he was not for the Union, and did not see how it helped him or the Respondent. Han then said to him to keep up the good work. During the af- ternoon of a day in the last week of November 1966, Hall approached Seabrook in the quart warehouse and asked him if he still felt the same way about the Union. Seabrook said to him that he always stopped and tried to think everything out before he did anything, and made it a practice to figure out everything before he said anything. Before the conversation ended, Hall again told him to keep up the good work. 13 6. The alleged conduct of Foreman Jack Davis On or about October 8, 1966, Jack Davis, foreman of the shipping and receiving department, approached 11 This is Johnson's testimony which I have credited . Hall testified that he talked to Johnson when letters of Respondent were distributed to the employees. The first letter is dated August 23 , 1966; the second, Sep- tember 27 , 1966; the third, January 17, 1967; the fourth, January 24, 1967; and the fifth, February 3, 1967. Hall also said he talked about the contents of the letters which were that the Respondent was against the Union. He could not recall what he said in these conversations He testified that he said to the employees that Respondent did not want any threats, and if there were any to let him know about them. He denied he asked Johnson if he signed a union card, or that he said not to sign a card, or asked him to let him know if anyone asked him to sign a card. I credited Johnson's testimony after evaluation of his testimony and Owens' testimony in the context of the record as a whole, and in connec- tion with their demeanor testimony. 12 Seabrook , whose testimony of this incident I credit, could not recall the exact date of the conversation . Hall admitted having a conversation with him when he had personal conversations with the 15 to 17 employees under his supervision regarding the literature distributed to them by the Respondent. He could not recall the date or approximate date of the con- versation. He said he may have talked to him in November or December 1966. 11 Seabrook testified that he could not remember what else was said in the conversation . Hall denied he had a conversation with Seabrook about October 1, 1966, in which he asked him how he felt about the Union and if he knew how it got started. He denied that he had a conversation with Seabrook in which the latter said he was not for the Union and could not see how it would help him or the Respondent . He also denied that he had a conversation with Seabrook on November 1, 1966, in which he asked him if he felt the same way about the Union, and , when Seabrook an- swered, he said to keep up the good work. His best recollection was that he talked to him sometime in November and December 1966, in connec- tion with inquiries to the employees he supervised, as to whether they were threatened or coerced to sign a card He said that no one in particular told him he was threatened, but that management knew that threats were made, and the threats were discussed by management. Seabrook in the cold room, and asked him if he signed a union card, and if he was for the Union. Seabrook replied that he would not say one way or the other. Davis then said that he just wanted the boys to know that he was for them all. In the last of November 1966, about a week after Hall's last conversation with Seabrook, Davis ap- proached Seabrook in the cold room, and asked him if he signed a card or was for the Union. Seabrook answered that he could not tell him one way or another. Davis then said that, if the Union came in, it would put colored foremen over him. He replied that it did not make any dif- ference one way or another. 14 D. Analysis, Findings, and Conclusions of Fact and Law On the above findings, I make the findings and conclu- sions of fact and law and analysis stated in the following paragraphs. On or about August 26, 1966, Foreman Hall inter- rogated employee Johnson and promised him benefit in connection with his union activity, and threatened him and other employees of Respondent with the loss of a good future as employees of Respondent and by the clos- ing of Respondent's plant if the Union should become their collective-bargaining agent. Hall also interrogated employee Seabrook,and promised him benefits, in con- nection with his union activity on or about October 1, 1966, and about the last week of November 1966. This conduct of Hall is alleged in paragraphs 7(a), (b), (c), and (d), respectively, of the complaint, as amended, and in the objections to the conduct of Respondent prior to the elec- tion of February 9, 1967, and the order directing a hear- ing on these objections. Foreman Owens interrogated employee, Ziglar, I have evaluated the testimony of Seabrook and Hall in the context of the record as a whole and with their demeanor testimony, and on this evaluation I have credited the testimony of Seabrook. 14 This is Seabrook's testimony which I credit. Employee Ziglar testified that in the last part of November while he was in the cold room, about 6 to 8 feet away from Seabrook, he saw Davis approach Seabrook and engage him in a conversation. He heard Davis say that if the Union came in colored foremen would be placed over him, and he knew that Seabrook did not want that. Davis denied having a conversation with Seabrook in October or November 1966, or any time about the Union . He denied specifically that in October he asked Seabrook if he signed a union card and if he was for the Union. He also denied specifically that in the first week of November 1966, he asked Seabrook if he signed a union card and was for the Union. Davis testified that there was an occasion when three of four employees were packing paint in a group in Hall's department , and as he passed them, one asked him if he "thought they would ever put colored people on the desk up there." He answered as he passed that "it could happen some time because we had civil rights and seniority." He testified that he did not know who asked the question, that he did not look toward the group of employees to see who asked it. He testified that Ziglar, who testified he heard Davis say to Seabrook that colored foremen could be placed over him if the Union came in the plant, could have been one of the employees in the group containing the employee who asked the question. Davis said he did not recall whether the incident occurred before or after the election. He testified that there were desks a short distance from the place the question came from that were occupied by himself, Hall, an employee by the name of Staley who assisted Hall, and an employee by the name of Duke who assisted him. He testified that he understood the question to be, "Could a Negro become a foreman at Mobile Paint Company?" He also testified that two employees under Hall were Negroes Upon evaluation of Seabrook's, Davis', and Ziglar's testimony in the context of the record as a whole , and with their demeanor testimony, I credited the testimony of Seabrook. MOBILE PAINT MFG. CO. promised him benefits, and threatened him, in connection with his union activity, in a conversation he had with him in the middle or last part of October 1966. Owens also in- terrogated employee Moore, and threatened and promised him benefits in connection with his union activi- ty, on or about September 7, 1966. This conduct of Owens is alleged in paragraphs 8(b) and (c), respectively, of the complaint, as amended, and in the objections to the conduct of Respondent prior to the February 9, 1967, election, and the order directing a hearing on these objec- tions. Foreman McLendon interrogated employee Clay and gave him the impression of surveillance in connection with his union activity, on or about September 13, 1966, and on either October 10, 1966, or February 23, 1967. McLendon interrogated and promised benefits to em- ployee Brown in connection with his union activity, on or about October 15, 1967. McLendon also interrogated employee Scruggs in connection with his union activity, on or about January 15, 1967. This conduct is alleged in paragraphs 9(a), (d), (e), and (g), respectively, of the com- plaint, as amended, and in the objections to the conduct of Respondent prior to the February 9, 1967, election, and the order directing a hearing on these objections. Foreman Davis interrogated employee Seabrook in connection with his union activity on or about October 8, 1966, and about the last week of November 1966, and threatened him and other employees about the last week of November 1966 with the placing of Negroes over him and other employees as foremen if the Union became the collective-bargaining representative of Respondent's production and maintenance employees. This conduct of Davis is alleged in paragraphs 11(a), (b), and (c), respec- tively, of the complaint, as amended, and in the objections to the conduct of Respondent prior to the February 9, 1967, election, and the order directing a hearing on these objections. Respondent violated Section 8(a)(1) of the Act by the conduct of Foremen Hall, Owen, McLendon, and Davis. This conduct was engaged in during a period of organiza- tional activity both before and after the filing of the peti- tion for certification. There was no need to communicate with the employees regarding their interests in the Union or union activity during any of the times the conversa- tions containing the illegal conduct took place. The de- mand for recognition was made on August 29, 1966, and was received by Respondent on August 30. Respondent refused to bargain on August 31, 1966, and one of the grounds was doubt of majority representation by the Union. The Union filed a petition for certification on Au- gust 31, 1966, the same day of the refusal, and did not offer to Respondent any proof of majority or indicate it was willing to do so through an impartial third party. So it was understood by both Respondent and the Union that the question of majority representation would be settled in a Board-conducted election. Therefore, any legitimate interest in representation of Respondent could be better served by the forthcoming election. In any event, the polling of employees with respect to their interest in the Union and union activity was in terms of questions clearly designed to evoke answers that would, disclose the identity of union adherents, and were 15 Blue Flash Express, Inc , 109 NLRB 591; and N.L R,B. v. Cameo, Inc., 340 F.2d 803 (C.A. 5), enfg. in part 140 N LRB 361. I do not rely on the modification of Blue Flash in Struksnes Construction Co., Inc , 165 789 accompanied by promises of benefits if the Union was re- jected, and threats of reprisal if the Union was chosen as bargaining representative. No assurances against reprisal were given to the employees whom the foremen polled, and the conversations took place in a background replete with representations by Respondent of hostility to union organization. 15 The evidentiary findings disclose on their face the in- terrogation, promises of benefit, and threats of the foremen in connection with the union activity of the em- ployees. The foremen polled and questioned the em- ployees about their signing union cards, whether they in- tended to sign them, whether they were forced to sign them, and what they thought and heard about the Union. McLendon's advice to employee Brown during polling and interrogation is elementary illegal promise of benefit. So also is Hall's' statement to Seabrook to keep up the good work after Seabrook in reply to Hall's questions dis- avowed the Union. Foreman Owens' statements to em- ployee Ziglar during polling and interrogation, that Ziglar was indebted to him for having a job with Respondent, and that he would appreciate his following the Respond- ent's position of opposition to employees' representa- tion by the Union, and his statement to employee Moore, during polling and interrogation, that Respondent would be pleased if he did not get involved in the union activity, are clearly illegal promises of benefit and threats with respect to employment in connection with union activity. Hall's statements to Johnson, when he polled or inter- rogated him, that he had a good future as an employee without representation by the Union, but, if the Union represented the employees, he would no longer have a good future as an employee, and there would be a picket line, the plant would have to close down, and the em- ployees would be on strike, and suffer loss of wages, are clearly promises of benefit if he disavowed the Union, and threats to Johnson and the other employees of a plant shutdown,16 loss of employment, and loss of wages, if they voted to have the Union represent them. There is evidence that employee Danny McLendon was threatened by Caraway as the latter organized for the Union, and this threat was brought to the attention of Respondent. However, this is the only evidence of pres- sure by the Union on the employees during the organiza- tional activity. The Respondent posted a notice on Au- gust 31, 1966, and again on October 17, 1966, warning the employees against being pressured by the Union into signing cards or other conduct favoring the Union. This action by Respondent was adequate to meet the Union conduct disclosed by McLendon's testimony. I have, therefore, found to be illegal interrogation Owens' question to employee Moore whether anyone tried to force him to sign a card. The question was asked in a con- text of questions designed to learn Moore's position about the Union and his participation in or absence from union activity, and a promise of benefit if he disassociated himself from the Union or union activity. While it is true that Foreman McLendon in a humorous vein said on one occasion to employee Clay that he heard that he was in charge of the union activity, and on another occasion said to him that he heard that Clay was carrying messages for the union representatives, and Clay NLRB 1062, as this decision was not issued by the Board until June 26,1967 "Jones Packing Company, 159 NLRB 988, and Ross Porta-Plant, Inc., 166 NLRB 494. 790 DECISIONS OF NATIONAL LABOR RELATIONS BOARD laughingly denied that he headed the union activity or car- ried messages , it is apparent from Foreman McLendon's activity in opposition to the Union and the union activity that the statements were interrogation designed to find out if Clay favored the Union and participated in the union activity. Clay's answers disclose he knew McLen- don's purpose . Moreover , a consequence of McLendon's questions , in view of his activity , and the activity of Hall, Owens, and Davis, against the organizational efforts of the Union , and Respondent's announced opposition to it, was a fear of reprisal for engaging in the union activity or favoring the Union. I have , therefore , found McLendon's admitted questioning of Clay to constitute illegal inter- rogation , and the illegal giving of the impression of sur- veillance that carried with it a threat of reprisal. 17 The statement of Foreman Davis to Seabrook that, if the Union represented the employees , it would place Negro foremen over him is clearly a threat violative of Section 8(a)(1)."I This statement accompanied Davis' questioning of Seabrook in regard to his connection with the Union and union activity. The Respondent engaged in illegal conduct in violation of Section 8(a)(1) of the Act after the filing of the petition for certification on August 31, 1966. As stated supra, only conduct occurring after the filing date of the petition can be grounds for the setting aside of the election of February 9, 1967, for preelection conduct interfering with the employees ' right to a free election. Respondent violated Section 8(a)(1) of the Act on two occasions in September, five in October , two in November 1966, and one in January 1967. I, therefore , find and conclude that, by its preelection conduct violative of Section 8(a)(1) of the Act, it interfered with the employees ' freedom of choice in the February 9, 1967, election."' IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent found to constitute unfair labor practices as set forth in section III, above, occurring in connection with the operations of the Respondent described in section 1, above, have a close, intimate , and substantial relation to trade, traffic, and commerce among the several States, and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. V. REMEDY IN CASE 15-CA-3020 Having found that the Respondent has engaged in un- fair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that the Respondent cease and desist therefrom, and take appropriate affirmative action in order to effectuate the policies of the Act. As the unfair labor practices committed by the Respond- ent are of a character striking at the root of employee rights safeguarded by the Act, I shall recommend that the Respondent cease and desist from infringing in any manner upon the rights guaranteed in Section 7 of the Act. VI. REMEDY IN CASE 15-RC-3487 The objections to the election encompass the preelec- tion conduct of the Respondent that was engaged in after " See Safeway Cabs, Inc, 146 NLRB 1334, 1335. "Atkins Saw Division , Borg-Warner Corporation , 148 NLRB 949, 954-955 the petition for certification was filed on August 31, 1966. In section III, above , I have found that Respond- ent's conduct on 10 occasions during this period vio- lated Section 8(a)(1) of the Act . 1, therefore , find that the objections have merit, and I shall accordingly recommend that the election held on February 9, 1967, be set aside, and that the Regional Director conduct a new election at such time as he deems appropriate. Upon the basis of the foregoing findings of fact and upon the entire record in these proceedings, I make the following: CONCLUSIONS OF LAW 1. Mobile Paint Manufacturing Company of Delaware , Inc., is engaged in commerce within the mean- ing of Section 2(6) and (7) of the Act. 2. International Union of District 50, United Mine Workers of America, is a labor organization within the meaning of Section 2(5) of the Act. 3. The Respondent violated Section 8(a)(1) of the Act by interrogating employees concerning their union sym- pathies and attitudes , giving them the impression of sur- veillance of union activities , threatening them with loss of employment , loss of wages, the closing down of the plant, conduct that could be resented by them because of racial prejudice, and other job reprisals, if the Union was selected as bargaining representative , and by promising wage increases , job security , and other job benefits if the Union was rejected. 4. The aforesaid unfair labor practices are unfair labor practices affecting commerce within the meaning of Sec- tion 2(6) and (7) of the Act. RECOMMENDED ORDER Upon the basis of the above findings of fact and conclu- sions of fact and law, and upon the entire record in the case, and pursuant to Section 10(c) of the Act , it is recom- mended that the Respondent , Mobile Paint Manufactur- ing Company of Delaware , Inc., its officers, agents, suc- cessors, and assigns, shall: 1. Cease and desist from coercively interrogating its employees concerning their union sympathies and at- titudes; giving them the impression of surveillance of union activities; threatening them with loss of employ- ment, loss of wages , the closing down of the plant, and conduct that could be resented by them because of racial prejudice , or other job reprisals , if they select the Interna- tional Union of District 50, United Mine Workers of America, as bargaining representative; and promising wage increases , job security , and other job benefits, if they reject this Union as bargaining representative; or in any other manner interfering with , restraining, or coerc- ing its employees in the exercise of their right to self-or- ganization , to form labor organizations, to join or assist the above-mentioned Union or any other labor organiza- tion , to bargain collectively through representatives of their own choosing , and to engage in other concerted ac- tivities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any and all such activities. 1 1 Union Carbide Corporation, etc., 166 NLRB 441. MOBILE PAINT MFG. CO. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Post at its place of business in Mobile, Alabama, copies of the attached notice marked "Appendix."20 Copies of said notice, to be furnished by the Regional Director for Region 15, after being duly signed by an authorized representative of the Respondent, shall be posted immediately upon receipt thereof, and be main- tained by it for 60 consecutive days thereafter, in con- spicuous places, including all places where notices to its employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 15, in writing, within 20 days from the receipt of this Decision, what steps Respondent has taken to comply herewith.21 IT IS ALSO RECOMMENDED that the complaint be dismissed insofar as it alleges violations in paragraphs 7(e), 8(a), 8(d), 9(b), 9(c), 9(f), and 10. IT,IS FURTHER RECOMMENDED that the election held February 9, 1967, in Case 15-RC-3487, be set aside, and that a new election in the production and maintenance unit found appropriate be held at such time as the Re- gional Director deems appropriate, as follows: [Direction of Election22 omitted from publication.] 10 In the event that this Recommended Order is 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order." 21 In the event that this Recommended Order is adopted by the Board, this provision shall be modified to read: "Notify the Regional Director for Region 15, in writing, within 10 days from the date of this Order, what steps Respondent has taken to comply herewith." 22 An election eligibility list, containing the names and addresses of all the eligible voters, must be filed by the Employer with the Regional Director for Region 15 within 7 days after the date of issuance of the Notice of Second Election by the Regional Director The Regional Director shall make the list available to all parties to the election. No ex- tension of time to file this list shall be granted by the Regional Director ex- cept in'extraordinary, circumstances. Failure to comply with this require- ment shall be grounds for setting aside the election whenever proper ob- jections are filed. Excelsior Underwear Inc., 156 NLRB 1236 APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in 791 order to effectuate the policies of the National Labor Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT coercively interrogate them con- cerning their union sympathies and attitudes; give them the impression of surveillance of their union ac- tivities; threaten them with loss of employment, loss of wages, the closing down of the plant, and conduct that could be resented because of racial prejudice, or other job reprisals, if they select the international Union of District 50, United Mine Workers of America, as bargaining representatives; or promise them wage increases, job security, and other job benefits, if they reject this Union as bargaining representative. WE WILL NOT in any other manner interfere with, restrain, or coerce them in the exercise of their right to self-organization, to form labor organizations, to join or assist the International Union of District 50, United Mine Workers of America, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of col- lective bargaining or other mutual aid or protection, or to refrain from any and all such activities. All our employees are free to become or remain, or refrain from becoming or remaining , members of Interna- tional Union of District 50, United Mine Workers of America, or any other labor organization. MOBILE PAINT MANUFAC- TURING COMPANY OF DELAWARE, INC. (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, T6024 Federal Building (Loyola), 701 Loyola Avenue, New Orleans, Louisiana 70113, Telephone 527-6361.