Centre Engineering, Inc.

National Labor Relations Board - Board Decisions

Nov 20, 1980

253 N.L.R.B. 419 (N.L.R.B. 1980)

CENTRI. IN(GINEE:RING, INC
Centre Engineering, Inc. ad Cindy L. Hutton and
International Union of Electrical, Radio and
Machine Workers, AFL-CIO-CIC. Cases h-
CA- 11798, 6-CA 1 926, and 6-RC-8307
Novernmber 20., 1980
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN FANNING ANI) MEsMIBIERS
JE.NKINS ANt) I Nt.l1 O
On January 9, 1980, Administrative Law Judge
Joel Harmatz issued the attached Decision in this
proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief, the General Counsel
and the Union filed cross-exceptions and support-
ing briefs, the Union filed a brief in partial support
of the Administrative aw Judge's Decision, and
Respondent 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 Hoard has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions, cross-ex-
ceptions, and briefs and has decided to affirm the
rulings, findings,' and conclusions of the Adminis-
trative Law Judge only to the extent consistent
herewith, and to adopt his recommended Order as
modified herein.
I. Respondent operates facilities at two Pennsyl-
vania locations, State College and Osceola Mills,
where it employs a total of approximately 400 em-
ployees. In April 1977, an election was held among
employees in the two plants to determine if they
wanted to be represented for collective-bargaining
purposes by the Union. The Union did not receive
a majority of the votes cast in that election, and
subsequently filed unfair labor practice charges and
objections to the election. These objections were
withdrawn by the Union, which filed a new peti-
tion on September 18, 1978. and began a new orga-
nizational drive to represent Respondent's employ-
1 Respondent. ie (GCerlrall (Conilslc. andil the tUnion haies exceptcl to
certain credibhilit fltdings rlade h the AdmJinlistlraiie I ls Judg It ,
the Board's estabhlished polic no(t to oserrule an iadnlinliltrarlle l. I a
judge's resolulion, with respect to credlhility unless the clear prepoinder-
ance of all (of the relesant evidence co nvinces us thal the resolutlollh iare
incorrect .Siandard Dry Wtil Produit Inc.. 41 NI RH 44 (1050), etlfd
188 F2d 362 (d Cir 1'511 ,e hace carefull' exanmined the record Iand
find no basis fr resersirg ltis findings
IThe Unionl also contends that the Admniistrattrse I Jdgiz sv a
hiased againlst (ieltral (Counsel inton krilnesre concrle illg heir teiinlo-
ny on the colltelt If spcet lies nlladle hx Respondelll's prlesidetlt We itlC
carefully reviewed the recorld and the I)ectislion il hghit f the lUnion,
coinlentilons, ad conclude thete are ithtlhul nril In thl rtgard t. r nourt
that the Adnlinlstra;ll e l.ass Judge ollld lite C(ontent f the sp't'lhc ils
admittcl hby RptIdell l. correspod lle it Irge Irlc lrl \itl he t -llrrl,
11y of Lfe s ll)sst'
253 NLRB No. 28
ees.2 An election was held on November 17, 1978,
and the Union again failed to receive a majority of
the votes cast. It subsequently filed unfair labor
practice charges and objections to the election,
which are the subject of the instant case.
2. The Administrative Law Judge found, and we
agree, that in this proceeding Respondent violated
Section 8(a)(l) of the Act by threatening plant clo-
sure, coercively interrogating employees regarding
their union activities, threatening employees with
more rigid discipline and discharge if the Union
were selected, threatening employees with loss of
work and detrimental working conditions if they
designated the Union as their bargaining repre-
sentative, promising benefits, threatening to reduce
benefits, and threatening to prosecute employees
for engaging in protected activity. '
3. The Administrative Law Judge also found,
however, that Respondent did not coercively inter-
rogate several prounion employees, did not unlaw-
fully attribute to the Union the failure of Respond-
ent to grant wage increases, and did not, by means
of Respondent's literature and speeches, threaten
loss of jobs if the Union prevailed in the election.
We find merit in the General Counsel's and the
Union's cross-exceptions to these findings. Re-
spondent also excepts to the Administrative Law
Judgc's finding that it did unlawfully predict strikes
and the futility of bargaining as a consequence of
unionization. We agree with the Administrative
Lau, Judge's findings on these latter points but do
so for the additional reasons set forth herein.
(a) 7/he interrogation oJ' Uniont adherents: At the
end of a shift in early September 1978, 4 Foreman
Dixie Witt asked employee Elizabeth Weller why
Weller was for the Union now when she was not
in favor of the Union during the prior organiza-
tional campaign. Witt also spoke to Weller about
complaints against an employee who worked in
Weller's area. Weller stated that she was concerned
- I Ahough Ithe objections A ere it hdralls. a hearing ; as hell ciln-
cerninig Ih uf.lir labohr practices The Board suhsequinly Iaffirmed all
a.dnlitlilia.i law jdge's deternililloatn that Respondenl iolated Sec
Si)(l Ilif tlie Actl h threalerlli tg renove henefits If employres seelected
the UInilo C(,nir trnogltering nc. 246 N.RB 3t2 (179)
;' We also agree s ith he Admnlstratise laAu Judge that Responiden
did Ilt siolalc Sec l8(a(3) ad (I) if the Act hby uspcnding emploiee
Ittilll IIl setI tclci llg, we do rlto rel? )n lhe Adnilliistraise Iai,
Il1ges disie, 1sitn if Poera .Svlt (tcorpeprtt n. 21h N R IQ2 (1qg
W' furilier agree thl t Respondentl did not s'tolalc Sec (al(lt) of the A
h5 prlmulgatilng ;I rule restricting etmplohee from alkillg i a c temtler)
ilnrlg hreak In agreeing s:ill the tkdministraile l.ils Judge il 1his
pilli t kc di'ati ss ls reliantce on tile fiilnig thll erlipliees ',ec u ..ti
Inlped n (rIercilstig their rights glilaralileed y Scc 7 if the Act
(hil.irrilll I iiturnling afl Me tlbehr Jenkiirs t1ottld, ot tle lierits. filid the
sispell itrl or Iituttoll ntila u ril. hecit e the? regard lite rlo-dtirlbhullOll
rtl . hich she slIolaled ils ilas fIi See ltheir dlssetl in /iI; v. Int rrnuaitltn-
ai. nr . 21 1 N Rl 744 (119741. hich hoerser,. r purpos of this )e.
sisi,,i. he\ t,ll lrlg ciil n p tlecll Illlll ut erruled
' All datb-u m Ii> uniless otheri is Idilc.ated
41
I)EC ISI)NS ()F NATIONAL I.ABOR RELATIO()NS B()Ak)
about disparate treatment of employees as well as
wages and conditions. Witt replied that problems
with employees could not be resolved if the super-
visors were not informed of them. Also, in early
October, Supervisor Edward Elders asked employ-
ee Carol Schaeffer why she needed to wear a
union pin. Schaeffer, a member of the union orga-
nizing committee who had worn a union button at
work prior to this incident, replied that they should
talk during breaktime, not during worktime. How-
ever, Elders insisted that they could discuss the
matter then, and asked Schaeffer what company
problems necessitated a union. Schaeffer then
stated some reasons as to why the Union would be
beneficial and why she wore a union button. Fi-
nally, during the course of a conversation in early
October, Supervisor Gary Boone asked employee
Clair Ziegler, "What the hell do you want to bring
in the Union for?" Boone also asked about
Ziegler's union button, and stated, "Why don't you
take the damn button off . . .[it] ruins your uni-
form." In another conversation with Ziegler in late
October, Boone asked if the Union was going to
win the election. Ziegler said "maybe." 6
The Administrative Law Judge concluded that
Respondent's questioning and comments to Weller,
Schaeffer, and Ziegler, through supervisors, did
not constitute coercive interrogations in violation
of Section 8(a)(1). In support of his conclusions,
the Administrative Law Judge relied on, inter alia,
his findings that these inquiries were addressed
solely to individuals who had previously demon-
strated their union position, and were not made in
the presence of other employees. The Administra-
tive Law Judge also relied on the finding that these
incidents were bereft of harassment or intimidation.
We disagree.
The Board has recently declared that the "prob-
ing into employees' union sentiments . . . even
when addressed to employees who have openly de-
clared their union adherence, reasonably tend[s] to
coerce employees in the exercise of their Section 7
rights."7 Further, the fact that neither threats nor
intimidation was involved does not justify an em-
ployer's intrusion into an employee's views toward
a union or unionization generally. In each of the in-
stances involved here, supervisors inquired into the
' 'I h Admiiilstraiise Laws Judge also found that during the curse of
this clversatioln Flders threalenled more rigid disciplilne ad discharge of
unIproduclivC workers. in iolalion of Seca S(a)(1) of the Act We agree
with these findings
" Ihere were further aspects to hese colnversalltions which are not relc-
vant here
I PPG Industrit Inc., Ie.rington Plant. Iihber (iluas Diviion. 251 N RB
1146 (1Iq19) Accord: Puaeco. a Divoion if' ruehauj Co'rporatin 237
NIRB 399 ( 1978) 111 4Iutomottive 'Iectrrical ProductI Divtin. 231 NL RB
878 (1977. Ited Jonet Manuccturing (ronpuny. 239 NRBl ht2 (1978);
.4luaetndau ( Hnire & Cuable Div.., 241 NIRBI 1091 ('179)
nature of an employee's reason for supporting the
Union, and such actions reasonably tend to inter-
fere with the free exercise of an employee's Section
7 rights. Moreover, when viewed collectively, it is
clear, contrary to the Administrative Law Judge,
that these interrogations were not isolated or de
minirnis. Accordingly, we conclude that Respond-
ent violated Section 8(a)(l) when its supervisors in-
terrogated employees as mentioned above.8
(b) Attributing to the Union the failure of Respond-
ctnt to grant wage increases: In late October, Fore-
man Michael Crozier engaged in a conversation
with employee Carol Rogers. When Rogers asked
Crozier why Respondent did not provide better
benefits, Crozier stated that, although Respondent
had planned a raise for employees, Respondent
could not give it "because their [sic] hands were
tied." The Administrative Law Judge reasoned
that, because Respondent's supervisor responded to
an employee inquiry in a moderate tone and with-
out "gratuitous effort" to place blame on the Union
for the denial of increased wages, Respondent did
not violate Section 8(a)( ). The Administrative
Law Judge further concluded that, because of the
prior proceedings involving Respondent and the
Union, Respondent's ability to confer new benefits
was constrained under Board law. However, ac-
cording to the Administrative Law Judge, this did
not prevent Respondent from answering in an "ac-
curate and temperate" manner to employee ques-
tions on benefits.
We are unable to agree with the Administrative
Law Judge that Crozier's remark did not place a
stigma on the Union for Respondent's refusal to
grant wage increases. Respondent's theme of plac-
ing blame on the Union for keeping Respondent's
"hands tied" was first played immediately after the
Union withdrew its objections to the April 29,
1977, election, so that a new petition could be filed.
On August 23, Respondent distributed to employ-
ees a "notice," signed by Company President
McCrea, which stated, inter alia:
The IUE attempted to frustrate the majority of
the employees by filing objections to the elec-
[ Ihe Adniistratise al.aw Judge also dlsnliiscd the (a)(ll 1) allegation
rsolilig Supersisor loolrie hcause It ,a as nlot alleged in the complaint
liss;eer, the pleadings how that the cimp aint wsas amended prior to
hearing to allege pecifical . inter uala, to it lstances of interrogation hi
Itioonle ilcludinlg he one found herein Moreoser, esen if such all
;Imelindrmctl had not heen mlade. e would stil
l
find a vlolatiion of Sec
80a)(1) hecause the issue as prscented and the facts ere full) litigated
li the hearing, and, conlltrary to the Admlnistratl\ve l.as Judge. sufficient-
lN related to he subject matter of he complaint See, e.g. I C Ihunm-
on.. In., 23() N.RB 80()8 1977) Mniher Pnelo would find that Re-
spondentls iterrogatiol of Weller. Schlacffer and Ziegler violalted Sec
(a)( 11) of the Act In his ie., this rilerrogation. hell cotnsidered in he
total colltexl if Resporndellt', ullaswuI actionlls during the CaTllIpalgl. ul11-
]ifIIIIll restrained ard coterce R podent's niploece
420
CINIRFE NGINI{RING, INC
tion, these objections, as we said then were
based on phony charges .... They were
filed in order to tie the Company's hands and
keep the lUnion in the picture. Apparently the
IUE does not believe in the majority rule, and
wanted to interfere with your right to work
without Union interference.
Further, it is well settled that, in deciding wheth-
er to grant benefits while a representation election
is pending, an emplover should act as if no union
were in the picture. Thus, if an employer witih-
holds wage increases or accrued benefits because of
union activities, and so advises employees, it , io-
lates the Act. " ' lowever, w here employees are
told expected benefits are to be deferred pending
the outcome of an election in order to avoid the
appearance of election interference, the Board will
not find a violation of the Act.
Applying these principles to the instant case, we
find that Crozier unlawfully attributed to the
Union Respondent's failure to grant the apparently
planned wage increase. As noted by the Adminis-
trative Law Judge, Respondent could have lawful-
ly refused to implement a wage increase "to avoid
the appearance of interference." Here, however,
Crozier introduced the topic of the planned raise
but then stated Respondent could not implement
the plan "because their hands were tied." These
statements were not made in the context of Re-
spondent explaining that benefits were being with-
held to avoid influencing the outcome of the elec-
tion. To the contrary, the statement naturally im-
pressed upon the employee that a raise would have
been received but for the union campaign. And it is
clear that Crozier impliedly referred to the Union
by his "hands tied" statement, because Respondent
had previously blamed the Union for "tying its
hands," and there were no other actions other than
the union organizational campaign which could
have had such an impact. Further, Crozier made
no assurances that the raise would be given after
the election campaign ended, or that it would be
made retroactive. In these circumstances, we find
that Respondent unlawfully attributed to the Union
its failure to grant a wage increase, in violation of
Section 8(a)(1) of the Act. 12
9 Esex International. Inc. 21(b NLRB 75575, 571975)
"' Libertyl .Nurvn, fHomis. In d a I.lbhrrv Ilouc, .ursing Hornm, 2 h
NLRB 456 (1978)
t Chauiehldl-nd.rson Co., Inc. dhiu Iruss-ppan ('ompaLy, 23 NI.RH
50 (1978)
12 Sourdough Sales, Inc.. da Kur Rate Kid and Shop Kik, 246
NLRB 106 (1979): Arrow Molded Plastics. Inc., 243 NLRB 1211 (19791 cf
Baker Manufacturing Co., Inc., 218 N.RB 1295 (1975); Hdro Conduit
Corporation, 24( NRB 48 (1979) arco Incorporated. 16h9 NLRB 1153
(1968), relied on by the Administrative .au Judge. Is noil t the contrary
In that case, an employer granted wage increases to employees not i-
volved in the election and placed the blame on the Board for not giving
increases to employees involved in the election The Hoard concluded the
(c) Rpondelnt s campaulin propcganda-ilplied
rhrerats oJ / o johbs srrikes, /fitlil ofl unionization:
The Geineral Counsel and the Union have excepted
to the failure of the Administrative Law Judge to
find that certain of Respondent's campaign propa-
ganlda threatened emlployees with loss of jobs, and
con\9veyed the impression that their efforts to orga-
nize Respondent would be futile. The General
Counsel and the Union agree with the Administra-
live Law Judge's finding that Respondent did un-
lawfully suggest that a strike would be the conse-
quence of employee organization. Respondent Lc,-
cepts to this latter finding.
Early in its campaign, Respondent distributed a
notice to employees stating that involvement \vith
the Union "would be a terrible mistake." The dc-
ument, circulated prior to the filing of the repre-
sentation petition. also stated:
At Erie Technological Products in Erie. Penn-
sylvania, the IUE [the tnion] represented over
120() employees. During the years of IUE rep-
resentation. the conimpany started opening
plants in other areas including locations out-
side the country. The employees in these areas
were not represented by the IUE. As the com-
pany opened these plants the number of em-
ployees in Eric kept getting smaller and small-
er until the beginning of this year when only a
few hundred were left. No one knows for sure
why the company took the action it did/*/
' tre I ccbrli loglcal is. trlplsccs [licl -.cr 'IX) plie ,Ii
No als., S't, - t lhc, arc rll rcprc rClTcd h5 .i unilslt
This leaflet also explained that:
This year, the IUE called a strike at the com-
pany [Erie Technological]. The price of the
strike was high for the workers. When it was
over only 30 to 45 union members returned to
work, the rest had been permanently laid off.
A total of over 1100 workers have lost jobs at
Erie. Does this sound like a record to be
proud of' What did the IUE do for these
members'?
Membership in the International IUE Union
has gone down over the past year because of
the large number of electrical companies that
have been forced to close. One reason for clos-
ing could have been that they could not com-
pete price wise with the foreign competition,
empluyer's statement sas not coercir, e. since it did not seek t) shift to the
petitioner the burden or onus for the failure io grant benefits Here, Cro-
zier implicated the Union
421
I)tCISI()NS ()F NA I ()NAI I.A()R R I.AlII()NS (),\RI)
because they were burdened with union coln-
tracts and lost their flexibility.
The IUE is just like any other business once
one operation fails (like the one in Erie) they
look for a place to open another one (State
College) so that they can continue to sell their
products (unionism) and charge members a fec
for it.
Our customers also know that when they
place an order with us they don't have to
worry about union called strikes interfering
with delivery dates. But each year it gets more
and more difficult as more companies are
opening plants in ftoreign countries and foreign
corporations are competing for our market.
Our future growth is dependent upon 1(X) per-
cent effort by all of us.
Respondent mentioned both the possibility of job
loss, referring to the closings of plants where the
Union organized, the chance of strikes, evidence
being at nearby plants with which the Union wvas
involved, ' and the consequence of strikes, namely
loss of jobs.
Respondent returned to these themes, and the
references to the occurrences at Erie Technologi-
cal, throughout the campaign. Thus, on October 2,
Respondent told employees that a union "cannot
furnish you with work or pay you a salary. (Just
look what happened to Erie Technological em-
ployees in Erie, Pa.)" A month later, on November
9, Respondent again referred to the Erie Techno-
logical strike and the loss of jobs. It told the em-
ployees:
The contract was settled in April of this year.
Since April, three of every four IUE employees
have lost their jobs because the work they
were doing no longer exists in Erie, Pennsyl-
vania.
It's worse than that, because it's not over with.
It is estimated that the IUE will represent less
than 40 employees at Erie Tech in Eric by
next March. This will mean 9 of every 10 IUE
employees will have lost their jobs.
Respondent also informed its employees that it op-
posed the Union because its management had
"worked for a company [Erie Tech] which was
dominated by the Union and have seen first hand
the negative results of this Union's domination."
Further, on the day before the election, Respond-
ent distributed a handbill which stated, inter alia:
T ' Ihe EIric Icchnllhglca l plant was localed in Lric. P'crl,,lvnlilta. up
proximalely 17t riles Ifront Rcsplndenl' planIs i Shatc (llcge iand O(-
ccola NMilks
Sometimes, union demands, if fulfilled, result
in a company being non-compettitive. In many
IUE plants, this resulted in cost-cutting and
your jobs. ()ften, companies say "no" to un-
reasonable demands. Where this is happening,
a large number of IU' plants have gone on
strike, hurting both the employees and the
company. We would not like to see our oper-
ations disrupted. You can avoid this possibility
by voting "No."
Respondent also discussed the possibility of job
loss through captive audience speeches by its presi-
det, McCrea. McCrea told the employees that
Erie Technological once had employed 1,20() em-
ployees but, subsequent to union organization, enm-
ployed only 4() employees. e mentioned that Erie
Technological had several hundred jobs in Mexico.
McCrea also referred to the fact that Erie Techno-
logical was auctioneering its equipment, some of
%which Respondent was purchasing.
Considcring this evidence, the Administrative
Law Judge determined that Respondent unlawfully
emphasized the inevitability of strikes by virtue of
Respondent's hard-line bargaining. However, the
Administrative aw Judge concluded that, al-
though "not free from doubt," Respondent did not
unlawfully threaten employees with threat of job
loss through plaint closure or reduction of work.
He reasoned that "[r]ealities demonstrate that to
enlihten and frighten is the central objective [of
propaganda] and to repress, through unfair labor
practice findings, comment so designed is to con-
done outright rejection of Section 8(c) without
regard for fundamental statutory and constitutional
principles." Although we agree with the Adminis-
trative Law Judge's conclusions that Respondent's
campaign propaganda improperly linked the threat
of the inevitability of a strike as a consequence of
unionization, we disagree with his findings that
such propaganda did not constitute a threat of job
loss.
It is axiomatic that an employer who threatens
employees with job loss if they select a union as a
bargaining representative violates Section 8(a) (1)
of the Act. 4 Contrary to the Administrative Law
Judge, we believe that the effect of the repeated
reference to the consequence of unionization at an-
other conipany, located in the same community as
Respondent, was to create an atmosphere of fear
and futility. 5 In referring to the closing, at Erie
Technological, Respondent consistently linked the
presence of the Union, as bargaining representative,
i Vulr (,apuitr (t p;Pa . a l)tison / l R It lorv & ( o., lc,
1h2 N R 14tM. 140)4 l It t 1 >7)
I W I Arucg, ( ,. 224 N RI 16tt (197ht
422
('1NI'RI NGINFI RIN6. INC
to the substantial loss of jobs. Further, Respondent
strongly implicated the Union as the culprit for the
job loss, yet never fully explained the total circunm-
stances at rie echnological. T'hus, in referring to
the reduction of employees, Respondent stated that
no one knew "for sure" why Erie Technological
did so. Yet Respondent noted that, since a contract
had been reached, three out of four employees at
Erie Technological had lost their jobs. Moreover.
Respondent called to the attention of its employees
the fact that Respondent's management had
worked at Erie Technological when the Union or-
ganized it. and thereby invited an analogy to what
could occur at Respondent's plant if the employees
unionized. Indeed, according to Respondent, the
Union "dominated" Erie Technological, and the
"negative results" of that domination-job loss and
moving to Mexico-were clear. Respondent's cap-
tive audience speeches, in the week before the elec-
tion, served as reminders to the employees of con-
sequences of unionization. Thus, Respondent con-
stantly brought its employees to the brink by fear.
By its calculated statements, Respondent sought to
imply that selection of the Union as bargaining rep-
resentative would result in the same end as at Erie
Technological; i.e., by its existence and domination
the Union would cause Respondent to lose jobs.
Accordingly, we find that Respondent's campaign
statements on loss of jobs violated Section 8(a)(l)
of the Act.
In a similar vein, Respondent's campaign barrage
linking the Union with strikes was, as the Adminis-
trative Law Judge found, a violation of Section
8(a)(l). As the General Counsel points out, Re-
spondent through its campaign literature and
speeches introduced the topic of strikes no less
than 20 times. ' In a variation of the same theme,
Respondent wove together the probable futility of
bargaining and the authority of the Union to order
a strike to secure its demands. As the Administra-
tive Law Judge noted, Respondent informed its
employees that the Union could not force Re-
spondent to pay more than it wanted, that the
Union could not require Respondent to agree to
any proposal and could not insure any increase,
that all benefits were negotiable and that employ-
ees "could get more, you could stay the same, or
you could get less." These ideas were not isolated
or objective statements. Rather, they were a con-
tinuation of Respondent's unlawful tactics adopted
during a prior election campaign. 17 There, as the
administrative law judge found and the Board
agreed, Respondent's officials also conveyed to em-
ployees the sense that unionization would lead to
'A See A4 f. Stuah (oIpn, 218 NI RI 817 (1975)
( Entr I nterng, Inc, 24ts NL RIt 32
Respoldent's elimination of existing benefits, which
would leave the Union only one bargaining alterna-
tive, a strike, with its resultant consequences. In the
instant case, Respondent reminded employees that
bargaining "could take quite a while," and the
UnJion's only recourse to secure its demands might
be to lead the employees out on strike. These re-
peated statements of Respondent's intent to make
negotiations difficult, which would lead to strikes,
contrasted with Respondent's "assurances" that it
would do the "best it can for all employees." In
these circumstances, we agree with the Administra-
tive I.aw Judge that Respondent's communications
exceeded the boundary protected by Section 8(c),
and violated Section 8(a)(1) of the Act. '
4. The Union filed an objection to the election
on the basis, inter alia, that Respondent's Excelsior
list 1': was defective. The Administrative Law
Judge found that Respondent failed to comply with
the Board's Excelsior rule which requires employ-
ers to submit an election eligibility list with names
and addresses of all eligible voters. We agree.
As more fully set forth in the Administrative
Law Judge's Decision, the undisputed facts reveal
that Respondent furnished an Excelsior list which
was not alphabetized on a surname basis, nor ar-
ranged according to department assignment or
plant location. 20 Instead, the employees' names
were grouped together on a first name, first letter,
basis; i.e., all employees whose first name started
with the letter "A" were listed together, in random
order, and so on through the alphabet. Further, al-
though addresses were provided for almost all em-
ployees, 2 ' only 25 out of the 424 addresses includ-
ed zip codes.
The form of this Excelsior list was in sharp con-
trast to that provided by Respondent in the first
election conducted at Respondent's plant, involving
the same unit and Union as in the instant case. That
list, submitted for the 1977 election, was alphabet-
ized by surname, segregated by department
number, and included zip codes. So, too, did the
eligibility list prepared by Respondent for the No-
is See Donn Products, In( & 4rnercan M.etals Corporation. 229 Nt RH
It) 1977); HIerhbert allen. dh/a Smithtown .ursning Home. Smithtiorn,
Sithtown Senior Hlome, and .Snithto,n Ldge. 228 NL.RB 23, 27 (1'77).
Marathon etulhc Building (Companp. 224 NLRB 121. 124 (1976). Centre
Engineermng. Inc.. upra Member T'enllo would not find that these leaf-
lets and speeches. slanding lonte. oserstep he bounds of Sec. 8ic) and
thercbhs Lolale Sc 8a) I) f the Act However, he joins in this Deci-
sion because he finds that, \when considered along with Respondent's
oltcr actlns which we hare found iolated the Act. Respondent's aser-
lions conlalned therein could nly have hd the effect of unllaw fiull io-
ercine rmployees in the exerlt of heir Sec 7 right to seek repre.nlta-
tion
1 I:*c'lwor i 'ndcrwcar Inc. ] 5 N RH 12 I. 124 ( 1701
I I, plant, vere in, ill in Ih elec l on
-' No adlresscs were lilsted for 2 emplo ecs
421
I)Ft (CSI()N S ()F NATI()NAL I.AB()R RELA'II()NS A()kl)
vember 17 election involved here, but which Re-
spondent refused to share with the Union.
In the above circumstances. we conclude that
Respondent constructed the Excelsior list objected
to by the Union in bad faith, or, at least, with will-
ful or gross negligence. As found by the Adminis-
trative Law Judge, Respondent possessed the capa-
bility to submit an Excelsior list alphabetized by
surname and including zip codes. Respondent had
done so for the previous election, and executed an
eligibility list in that manner. It maintained a file of
employee names in a similar manner. Moreover,
the letter from the Regional Director requesting
that Respondent file the Excelsior list stated, inter
alia, that "[t]o speed preliminary checking and the
voting process itself, the names should be alphabet-
ized (overall, or by department)." It is clear that
Respondent's conduct here frustrates the purposes
of the Excelsior rule: to maximize employee expo-
sure to all arguments concerning union representa-
tion, and to eliminate needless challenges. The rule
in Excelsior is simple and easy to administer, and
while the Board has not been slavish in setting
aside elections because of some devitions from its
guidelines, it has not favored such deviations, nor
has it abdicated its responsibility to monitor com-
pliance with the Excelsior standard to maximize
communication to employees and to insure that its
election processes are not the subject of calculated
disregard, or willful or substantial deviations. The
facts here substantiate the Administrative Law
Judge's finding that Respondent's Excelsior list was
constructed in bad faith or, at the very least, with
willful and gross negligence, and thereby warrants
setting aside the result of the election.2 2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Centre Engineering, Inc., State College and Os-
ceola Mills, Pennsylvania, its officers, agents, suc-
2 The recent decision in St. Itrun(i Iospital. 249 NLR B 18I (8(), i
not to the contrary. In that case, the Board colluded that responldent
did not iolalc Sec. (a)(l) by supplying an Exr(elir list Which contained
only full surnames and first and middle initials, and failing to provide cor-
rect addresses after learning "many" addresses contained on the rceiior
list were incorrect. The Board reasoned that the "hare fact" that the list
contained only full surnames did not prove the list was designed to
impede communication or frustrate Hoard processes. And the addresses
supplied were the most recent ones Respondent possessed Here, unlike
the situation i St., rani.s, Respondent's conduct is alleged as objection-
able. not as a violation of Sec. 8(a)(I) Further Respondent's actions it
the instait case, especially when mncasured against its conduct in the prior
elecltion, dlntolslrate that its Excelsior list was designed to impede com-
munication and frustrate Board process Cf T'he Loster Ilouw., 186
NI.RB 148 197()) Ixrua Chrorian linivrsirv, 22(0 NLRB 396 ( 1975)
cessors, and assigns, shall take the action set forth
in the said recommended Order, as so modified: 23
1. Insert the following as paragraphs l(b) and
(c):
"(b) Informing employees that wage increases
have been withheld because of the presence of the
Union.
"(c) Coercing employees by statements implying
that selection of the Union as bargaining repre-
sentative would lead to the loss of jobs."
2. Substitute the following for paragraph l(b)
and reletter the paragraph as (d):
"(d) In any other manner interfering with, re-
straining, or coercing employees in the exercise of
their rights guaranteed by Section 7 of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORI)FRFI) that the election held
on November 17, 1978, in Case 6-RC-8307 be, and
it hereby is, set aside, and that Case 6-RC-8307 be,
and it hereby is, remanded to the Regional Direc-
tor for Region 6 for the purpose of conducting a
second election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
:' Since the Administrative l.aw Judge's recommended Order already
requires Responldent to eeose and desist from c icrciely interrogating
etiploycees coilcerilnig their ulil tiactisit, et illd it lllecessarvy to add
anrl order to r'trled thle additiionat ocrcise iterrogitilos founid ahisc
T'he Adniir alliru isle a1 Judge used the liarross ease-and-deslst laln-
guage, "In ant like ior related," ralicr ihan the bread illjulcti e lai -
guage, "In any iolher manlnelr" In li(kmnow I-,ords. In( , 242 NI.- R 1157
(1979). the Board slated its plicy that a hroad order was warranted inly
where a respondent is shtswn it) havse lc proclvNity to iolate the Act,i or
has enlgaged in such egregious or idespread misoilliduct as ito demllrn-
stralc a genleral disregard fr the empI csee' fundamenital stallutniry rights
We fild that a broad ijunllcve rder against Respondelt is warranlied
here because of tihe repctitive nature of Rcsptildent's cliduct
APPENDIX
NoTrlcE To E.NPIOYI.iS
POsrTID BY ORDI)R OF HE
NATIONAI. LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opporut-
nity to present evidence and argument, it was de-
termined that we violated the National Labor Rela-
tions Act, as amended. We have therefore been or-
dered to post this notice and to do what its says.
The National Labor Relations Act, gives you,
as employees, certain rights, including the
right:
To engage in self-organization
To form, join, or help a union
To bargain collectively through a repre-
sentative of your own choosing
424
CENIRI 1N(iIN tRIN(;, INC'
To act together for collective bargaining
or other mutual aid or protection
To refrain from any or all of these things.
WI: WiI.I NO' coercively interrogate our
employees concerning their union activity.
Wi Willtl. NOI threaten our employees with
a cessation of operations, discharge, stricter
discipline, or a reduction of benefit levels if
they designate the Union as their representa-
tive.
Wl WVIl t. NOT threaten our employees with
prosecution in the courts because they have
engaged in activity on behalf of the Union.
Wl. WII 1. NOI create the impression among
our employees that we will take positions in
collective-bargaining negotiations which
would result in a reduction of their benefits,
aniid lead inevitably to a strike thereby subject-
ing them to economic disadvantage.
\WV. Will I NO' tell our employees that they
will be given benefits if they reject the Union
as their representative.
Wli WltiJ NOt inform employees that vwage
increases have been withheld because of the
presence of the Union.
Wl. 7111. NOI coerce employees by state-
ments implying that selection of the Union as
bargaining representative would lead to job
loss.
WE, Wil.l NOI in any other manner interfere
with, restrain, or coerce our employees in the
exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
CIENTREI EN(iINEIRING, INC.
DECISION
S I Al I'(MENT 01: THE CASI
JOEl. A. H.-RMAIZ, Administrative Law Judge: This
consolidated proceeding originated with the filing of an
election petition in Case 6-RC-8307 on September 18,
1978. Thereafter, pursuant to a Stipulation for Certifica-
tion, Upon Consent Election, an election by secret ballot
was conducted on November 17, 1978. The tally of bal-
lots shows that of approximately 407 eligible voters, I
ballot was void, 163 were cast for, and 216 against, rep-
resentation by the Petitioner, with 18 ballots challenged.
The challenged ballots were insufficient in number to
affect the results of the election. Thereafter, Petitioner
filed timely objections alleging misconduct on the part of
the Employer interfering with the results of the election.
While said objections were pending, a consolidated
complaint issued on March 30, 1979. in Cases 6 CA
11798 and 6-CA-11926.' Said complaint, as amended, al-
' The original nlair labor practice charge n Case 6 CA-I 11798 as
filed by (Cindy Itulitol ir Nonemhber 16. 1978. and in Ce 6 CA 11926
was filed b) the L n il (1I I)ccember 28. 78
leges that Respondent independenitly violated Section
8()(1) by coercive interrogation, solicitation of griev-
ances, and threatening employees with discharge. plant
closure, more rigid discipline, reduced benefits, and law-
suits because of their union actiily v The consolidated
complaint further alleges that Respondent violated Sec-
tion 8(a)(1) by promising employees benefits if they re-
frain from designating the Union. by informing emplos-
ees that they failed to receive wage and benefit increases
because of the Union. by promulgating a rule precluding
employees from leaving company property during cof-
feebreaks, and. finally, by campaign propaganda threat-
ening that (designation of a representative would be
futile. would inevitably lead to strikes, and result in the
loss of jobs and earnings. The complaint also alleged that
Respondent violated Section 8(a)(3) and (1) of the Act
bh suspending employee Cindy Hutton because of her
union acti ily. In its duly filed answer, Respondent
denied that any unfair labor praotices were committed.
O()n March 30, 1979. the Acting Regional Director for
Region h, issued his "Order Directing Hlearing on Objec-
tions arid Notice of Hearing." wherein he concluded that
Petitioier's O()biections 2. 3, 4, 5, 6, 7, and 9. raised issues
of fact vwarranting a hearing. Since cocxtensive with mat-
ters alleged as unfair labor practices in the consolidated
complaint, he ordered that Case 6- RC 8307 hbe consoli-
dated with Cases 6-CA 11978 and -CA 1926. By sep-
arate order dated March 30, 1979. the Acting Regional
Director consolidated the cases for purpose of hearing.
ruliiig, and decision by an administrative law judge
eBased o the foregoing, a hearing as conducted at
State College. Pennsylvania, befoire me, on July 30 and
31 and August 1 and 2, 1979. After close of the hearing,
briefs were filed on behalf of the General Counsel. the
Charginlg Party-Pletitioner, and the Respondent-Employ-
er.
Upon the entire record in this proceeding. 2 including
my opportunilty to personally observe the witnesses
while testifying and their demeanor, and consideration of
the post-hearing briefs, I hereby find as follows:
FINI)IN(GS OF F\(-r
I. IHIt HItSINESS OF TI HE RIiSPONDENT MPI.OYI R
Respondent Employer is a Delaware corporation, with
facilities located in State College. ennsylvania, and Os-
ceola Mills. Pennsylvania, from which it is engaged in
the manufacture and nonretail sale of electrical compo-
nents and resistors. During the 12-month period preced-
ing issuance of the complaint herein, a representative
period, Respondent delivered goods and materials valued
in excess of 50,000 from said facilities to points outside
the Commonwealth of Pennsylvania, and received goods
2 Aller the close ol the hearing, a handwritlen note prepared by cln-
phl)T \ 'cn1 lI)ecker as sulbminted h Rspondent for inclusioti il the
rcord as Rp xh 22 Respondcnls requesr In this respeet, hasilg
bhell rtladc ill .ic-.ilrdl tilt atrl iderllanllilg h;arlre h; all cunsel and Ir
rli,cd at during the hearing, is grantllre and the rcord i hereh 5 reopenid
for his hinliti purpo,
Pursuaril to request o countscl fr he (eiieral Conlsel cerial inad, cr-
tcnclcs ipperlriF i the official rancrlpt are hrebS i nolted and orrecl-
425
DtECISI()NS ()F NA'I IONAI. I.ABOR RELATIO)NS ()ARI)
and materials valued in excess of $50),(X)( directly from
points outside he Commonwealth of Pennsylvania.
The complaint alleges, the answer admits, and I find
that Respondent Employer is now, and has been at all
times material herein, an employer engaged ill commerce
within the meaning of Section 2(6) and (7) of the Act.
I. IHll I ,x)R OR(iAN.ZAIION INVOIl VI)
The complaint alleges, the answer admits, and I find
that International Union of Electrical, Radio and Ma-
chine Workers, AFL CIO-CLC, is now, has been at all
times material herein, a labor organization within the
meaning of Section 2(5) of the Act.
t11. lil Al I til.) UNFAIR I ABUR P'RACI ICIS
A Background and General Overvie' o the lvutes
Respondent employs in excess of 40() employees at its
two facilities in State College and Osceola Mills, Penn-
sylvania. Of those, some 50 are assigned to the latler.
which is located some 35 miles distant from State Col-
lege. Operations at both locations are conducted on a
three-shift, 24-hour basis. here is no history of union
representation fior any of' these employees.
This proceeding is concerned with a second attempt
by the Union to obtain representaltion rights with respect
to employees at said plants. The initial campaign opened
in 1977 and, on April 29, 1977. an election was conduct-
ed among said employees il Case 6-RC-77h5 with te
Union failing to achieve desiginationi by a maijorty. As
here, the Union filed unfair labor practice charges and
objections, accusing Respondent of unlawfully irllerfer-
ing with that election. Subsequently. the objectiotis to
election were withdrawn; the unfair labor practices pro-
ceeding, however, was litigated, with the Board recenitly
finding a single violation of Section 8(a)(l) in colnection
with speeches made by Responident's president, Gerald
McCrea, and its vice president, Charles Gecrtsori, and
specifically their remarks implying that existing benefits
would be taken away from employees if they selected a
collective-hbargaining representative. ' hal proceeding
was limited to alleged independent 8(a)t I) allegaltions ad
was devoid of claim that Respondent engaged in discrini-
ination proscribed by Section 8(a)(3). (See 246 NI.RB
No. 121).
In August 1978, apparently after withdrawal of the ob-
jections in Case 6-RC 7765, 4 the Union opened a new
organization campaign, leading to the filing of the peti-
tion on September 18, 1978, in Case 6-RC-8307. In the
ensuing election, conducted on November 17. 1978, the
Union was again on the short end of a 163-to-216 vote.
The complaint and objections which are the subject of
this proceeding emerged from that campaign. Through
them, Respondent is charged with a variety of unfair
labor practices as well as preelection misconduct inter-
fering with free choice. A single allegation of 8(a)(3) dis-
crimination was included, growing out of a suspension of
:] See JD) 553- 71. shich issued on Augusi 3, 1979, foil lowing clisc of
thlle irlnstant hearing
I The rcqus to se er Case -RC-7765 fronl the earlier unfair laohl
practice prceeding and to withdraw the objhetions w;ls gratelcd h Ad-
rinllisrrativ I.law Judge Sarrica ,n August 14. 147
slightly more than 5 hours meted out against employee
Cindy Hutton.
As in the earlier unfair labor practice case against Re-
sponrdent, several allegations herein point to coercive
statements made by Respondent's president, Gerald
McCrea. Additional independent 8(a)(1) allegations rest
upon separate incidenls, attributing unfair labor practices
to no less than seven members of Respondent's supervi-
sory staff. Finally, allegations and objections attack the
antiunion propagarnda dissem inated by the Respondent
through speeches anld ritten literature, as creating an
overall atmosphere of fear and the impressioni that selec-
tionr of a urnion wfould be futile and would lead to strikes
arnd loss of jobs.
'The objections to the election, hile predicated upon
unfair labor practice allegations, also urge that the elec-
tion be set aside because the Esecclior list' submitted hy
the Responident was in an "incomniplete, inaccurate and
purposely confused . " forni. In addition It is cinlamed
that Respondent's interfered s ili the election through
(ierald McCrea's alleged surveillance of a union meeting.
B. Concluding 'iTndingv
I. Cases 6-CA 11793 and 6 CA-11926
a. lhe lleieCd di crinirraliorl
I'he solitary instance of alleged discrimination relates
to the suspensiol of Cindy lutton lor a prtion of her
workday on November 3. 1978. At times material,
Hutto(n was assigned to a area refelrred to ais the "I)e-
paling" roori o the ccoilld shitfl t t he ()sceola Mills
plant. ter supersisor .ias lon Kostyak
Hluttonr described her uion activity as coinfined to at-
tending union meetinigs andil th executioi of an authori-
zation card. The record does not disclose whether her
involvelrcllt ill such latter-s coilrienced before or ;fter
the ictideit ill issue lere. Se was 1not a member of tlhe
irplarit organizing comrlrmittee at ()sceotla.
TIhe reasoti assignled b RcsporTIident for the SuspcnIsiTl
of Hlutton v as based onl its allege(d belief that she distrib-
uted union i literature in her %work area, wuile oil working
time.
Although the Company had no ritten rule imposing
limitations on employee rights t distribute literature,
Hutton conceded that it ,sas common knowledge and
that she was minidful thiat employees were forbidden
from engaging in such acti ity during worktime.
As to what transpired, counsel for the General Coun-
sel attenlpted to reconstruct the scenario through Hutton
and fellow employee Donna Gavlik. It is undisputed that
Hutton and another employee, Ann Sidorik perform
their primary work in the depanzing room. After the
first break on November 3 Donna Gavlik, a quality con-
trol employee, was also in the depanzing room. Hutton
testified that while she was working, Supervisor Kostyak
entered. At the time, Ga lilk had a "paper" i her hand.7
Exc/luir 'indirear Inc. 156 Nl Rl 121 tl6 (96h )
I IniCss (Nhe sc ilicAtCedL, a.ll dles refer to 19'78
Itullo Itestlited Ihal shie a\ not silr exaert] what the paper was,
but indllicalted ha she assumed tha IIt was prtlilil l i tcratU e I hlch she
Coinrinued
426
C'N I' I:N(INl :RIN(t. IN(
Hutton testified that Kosty;ak took the paperl f1r(l (io \ lik
and looked at iullout. asking "'hre hdid thlis Ctl)Ci
from." uttonl claims to have responded "ill here. At
this point. accordiig to lutlonl Koty-ak said, "Cind
you can leave." utlOn asserts th shle then denied t
Kostyak that the paper helonged t her aski ng if' hc ,lill
had to go. Kostvak allegedly replied. "Yes, vou can go
home . .. Ken itcall will call ou when Oll are to 1o(m111t
hack to k ork." lutolln cleaIied her mlichill a;llnd
punched out at approximnalel 7:15 p.m.
Donna Ga lik's ersioni was not entircl conlsiItcill
Kwith that of Hutton. She indicates that while in thc dc-
panzing room. Ann Sidorik relno cd the literature from
her purse and sho, ed her the "Uliion paper" Sidorik
and (Ga lik were discussing it htenl Kostyak ente-red. '1
the time, Sidorik, not (ia\lik, was holdiing li e tlocil-
ment. Contrary to Hutton (avlik testified that Kosltak
asked Giavik wkherc she got the paper. As (as lik re-
called, sher esponded hy telling Kost ak that she got lih
paper off of the shelf? and then left. Gavlik ould nor
recall whether Huitton said aniything durinlg the incident
Kostyak testified that he entred the depanzing rooml
to locaite (iavlik, who had carlier asked him a questiol
concerning holiday; pai ,As he entered the depanrlinr
room, the three girls \crc standing around re-:ding .1
pamphlet. wNhichli \as held b, (avlik Kislyak akcd
them where they got the pallphlet '" After nol initial rc
sponse, hce repeated the inqquir, \ hcreupon lhutton said,
"I give [sic] it to tIhell the u1lion g IVC 1l the painl
phlet." K ostyak telifted Ithlat he took the pamphlt andl.
told the girlst hat they \reC not supposC to b doiing
what they had hci doing.'l andh left the room to call
his h(oss.
Kostyak aers thalt lie lhell ittnptcd t get Il in tilh
with Ken e;ll, and x. ls un,,ucessflll so lie called Id
Kolhc., Rsponidenl's vice presidcntl. rc:whinlg hilll at
home. : Beanl .asi also) there. Kostlak reported to olhbe
that luttol told hiiu that he had g il the other t o
had sCe l cilrltr (ol 1 sil e ill [c Isilik ,oii t .lciilssIloptio.l p ie C'l I.(T
l (i:llk )oll( 1not oiisall Il htlhCer sihw c(cr hadll piosesMl ll of tIll
paper Dulrllg Itle .Ilpllll (i: a lik l 1 ,IW alll w111 1tl1 I-silil tli -,rk
Accordinr g t1 (ialik. All Sidorik tlre nllll ,ilbgnltg tilr leTcltifis
ointe a5 or the thcr t It i ioled l.lt ie reord Ito 15c ., 1 di5.Jtl1C5 \iteI
cr oI nt Il (i.1%lik \Rols hli I hirt i l i t'lrtiit Il;illl'si l1d ,Ill 11 llllhiH
,'lrinnent'l1 ait 1tc% prior o tis iT1icJId lt
(! . lilk t.ilrns T lake said il,s ht hles i,}l "fldli't A lil it l l t IllS
hodx mi trouhlc
(" tollrail to 1, l, (iClCrall (,IIIlsCI. I flinrd thi KtI ls.k i. e lll ll i1 hlil
]N Jo lTlle Jil.It dlslfih ll(ll Ok11 1111 1 l lh t , Io-rk ;tlt'. r;l[llCl t1;lil1i dtiIlmr
a hrealk p lid or iII zt a rea iln \. hlth mpi sCC iltli dl ithrlhli' 1lira
lure lilte.r Cirl llltill% prt'cled hby he Al
I recdi K lsak', IestlIllonIS thdl al tl point il e had ml kire lSedg-
that thc do cunienl 1 I allI ll ri l spol rd Ctltrar5 To Ie l (iellel.i -lll l
,el, his testimlon Iin l t regard. r hl ilgih . prtlhi. l rtIltl, i t 1 rtlt'
timing. i nol vice. d as maltr il illt odds klh either IlS .3ilriw , il hat
he retrieved the document ronm (ial lk Itr lls fLrht teltlllti lhai
Huth )n told hin it, crigiln as \.ith Illt illi
2 Kosak testified thal Sidorlk ad (i ik it e c jpain/lig oortl
heftire he did Sidorik .a Inolt catled
: Kolbe testified thal he receitr a tephO 1 c 11 f'r-rn Ko,tak Ial
approximailes 7 15 pm onI trFida. N' eltIhI I K t Ak reported hai
Ci'Hrid IH ttOtl l Wail pas'lng Out literatlure ir hiiad literaturel I h Th -Isrk
area Klhe eke Kad sk h. li k' *ti,. iarId i Iildltlid thil
fli llon adIlTlitI I 1o taklig til nlt.allre itlIl i l. g1n .-I t KOUT l kob k111
firrted KqsIaks tetirnolln that he ntritle Kls.k to %-lid ht liqln
and hase her camliic' Kilihe t' N(l1dil
girls a panphll it hich they were reading and that it
',as durinig *'.orkinlg hours. Kolhe tld Kostak to seind
littoll hollte, alidl that hc would talk o her tm the next
Monlday.
Koslatsk asscrils that h returiled to the deparizing
roonl, and told luttoll that he w,,as to pulnch out
l[titllil denlltld that Kostyak lcft the lcpill/tilg rool)l and
retlurled, in effect. claiminiig that lie sent her hoile otn the
spot, shile hav;ing no opportuitN to consult wsith an
super isor
Ihc tiflloslig lonrlday, Klbe nrlt \ith Kostlyak and
IJutto. Afte lc hearing heir cso,,is o ' s hat had oc-
cilrctd. Kolhe advised thart lie x ns a tot iiterested ill de-
termiltiinig whlo [sas rigeht olr r)t[i atjd w.ho ,.as telling
hel trulth. Ws lieun IhitOlli xprcsscd omticern that herl sus-
pCll'iOlln 11tL 'l Iiest iI1 . ttttlt f eil d o)\crtlllnC
Kolbe illdicaild tha sc olitl th e \i1I tle osertle and
Slt· liltd ro h- pC'nailt]d h olstid tlhc loss of he straiglit
lie l ol 5:lida> itig}Ht.
lpon cpt lnsidtring lie toltlitlting Clsolons iof the ex-
cIaige bhet*ccii Kosta k :llld I ttilutt ot lFrida ecling
i tig r It n iuc uinCIed tI hClies c thai
\ti hltcecr ulltion aid Kstx ik, ini glod taith, construed
her rctltlml k i Hli ri dllisslltil thal shIe ,s t\he solrlce Of
thL litelrature Althugh this nliiludleCstandig resulted i
IhC IsOs Oif pl atid sLuperlsiil en t' hlItt tll, and neither
(laxlik ntr Slorik cre disiplined. I a cnviTiced that
lis ltiliOll tis baed (,, c a geCtrlile betlief tlit l utto
hes tl ilistilor f 1 iolatiti f ocolrnlpali\ plic\
said aletoll ol lhe istait record cannillot he ,iessed itas
pretCxtial I-'r l le es Iic ldoes tt clearly establish
thtt I lu titon s la iltot smplatlizer prior tIo this inci-
ticlt, r thlat Rsporldlet held als belief that ste as.
}iurthermroe. Rcspotident's belief that she had engaged
itt tutiprottctl actixits-. even if mistaiken, arose in the
ColItCXI Of' tilo COltileit oll Hlttoll's part, as eher os' nr testi-
Miotn) (iscloes , tcmcrid prloteceted hy Sectio 7 of the
t,I (Cf .I. R.BI v. flurnt & S'i,,,. 37) S 21
I ]"t)4),
'Fhl. General Counsel contends that even on the above
facts, the discipline imposed involved discriminator en-
forcenent f a no-distribution policy in that Respondcnlet
c(IldOlIled( the lus o worktime b antiunion employees
fior the purposes of distributing literature. In this conilec-
tion, eCITployee Margaret Bumbarger. with corroboration
tfrom employee Sandra (irenoble, testified that in ate
()ctober aitiullltion employee Bonnie Appleton ap-
proached anlttunion employee Vicki Harpster after start-
hig time. and asked her for a leaflet. Harpster handed
Appleton the leaflet, which Harpster took to Ernie
iacer a supcr isor, aid thell returned to her swork sta-
tion. Bumnharger called her super\,isor, Joe lartley, re-
K ' tt> ak icd 'l\ delle thail hl kTlt Iitlln "its for t I 1ll-m ,),
itla1 Jlt' hiad o't, i ... I l '*.rlfring At illoln hationl prior Io, (tlt irl.ident i1
Ih l (lilet-lt ¢ ,.lolsel e liteids hit tlita ln u is dlisiiplnelt solet
,tL ' et [rot-l i il, a if [i-ll-lcratIir. ('f 1rLi-: t R1t,
( r ,,, A ,/, c; ( , 21' N RB J4!t) 1 l''l t,- lg tiomli 1l1,l 1l1 ai, lit[.
%lkcrl 41g;iHIxl }tIltilil ~o h.1 % Lddl ; . g,*I !id falei bt'wt l1l ,1}I 0 l elilged i
dlq btllitqll 1 Itc.lllt t i o . * .,ikilg Twoe. TIhT floicgolilm I, ,i oditf, "i0 1
./,hi I' Jrlll' t cr' , M , 1l/ ] l[L ' I t II iv l'll. 11,r% Ipl[-
427
[)(DCISIO)NS OF NATIO)NAL. IAB)R RELATIONS 3()ARI)
porting the incident. Hartley indicated that he would talk
to those involved. Bumbarger observed that Hartley did
speak to Harpster, but denied that she could overhear
what was said. She testified that neither Appleton nor
Harpster was sent home that day. Neither Bumbarger
nor Grenoble actually saw the document that was ex-
changed between Harpster and Appleton on that occa-
sion, and their conjecture as to its nature is rejected.
Citing Poria Sy.stcem Corp., 238 NLRB 192 (1978), the
General Counsel contends that an employer who know-
ingly permits antiunion employees to distribute literature
may not lawfully enforce restrictions on work time dis-
tributions as against prounion employees. The administra-
tive law judge in Portu Syvemn appears to go even fur-
ther, for it is there reasoned that where management en-
gages in antiunion activity during working time, manage-
ment is foreclosed from maintenance or enforcement of
rules restricting prounion activity during working time.
Experience with what goes on during union campaigns.
suggests that it would he a rarity indeed if an employer
failed to appropriate working time to discuss union issues
either in captive audience speeches, individual confronta-
tions between supervisors and employees, or distribution
of its own antiunion literature. To hold that prounion
employees are free, with impunity, to utilize working
time, because management chooses to utilize such time
for its own purposes raises serious questions under this
Act. On the face of the decision in P'orta Syscmsev, one
cannot be entirely certain that the Board in that case was
called upon to review the above-described holding of the
administrative laws judge. Although obliged to follow
precedent of the Board, in view of the frequency with
which the Board upholds the legality of no-distribution
and no-solicitation rules on records demonstrating super-
visors' utilization of work time to engage in conversa-
tions with employees concerning the issue of representa-
tion, this latter trend in Board decisions controls absent
clear evidence that the Board has addressed itself to the
ramifications inherent in the result apparently reached in
Porta Systems. Viewing the issue as open, I am unwilling
to subscribe to any rationale to the effect that a em-
ployer must support affirmatively union activity, by al-
lowing its working time to be appropriated by prounion
employees to engage in worktime distribution or solicita-
tion, simply because it chooses to wage its antiunion
campaign during such periods. I also find that the inci-
dent related by Bumbarger and Grenoble to have been
too isolated to itself form the predicate for a finding of
disparate discipline in the case of Hutton.
Accordingly, as I find that Hutton was not engaged in
any activity protected by Section 7 of the Act during the
incident in question, and as Respondent acted on the
good-faith belief that she had engaged in the unprotected
distribution of literature in a work area, on working time,
it is concluded that Respondent did not violate the Act
in suspending her and thereby causing the forfeiture of
some 5 hours' pay on November 3. Accordingly, the
8(a)(3) and (1) allegation in this regard shall be dismissed.
b. Interfrence, restraint, and coercion
(I) By Foreman Kostyak
The complaint alleges that Respondent violated Sec-
tion 8(a)( I ), by a threat, attributed to Kostyak, that the
plant would close if the employees selected a union as
their representative. In support of this allegation counsel
for the General Counsel called employees Donna Corri-
gan. Margaret Kephart, aid Nancy Smeal. A composite
of their testimony is to the effect that, in early Septem-
ber, they, together with Kostyak, were discussing pen-
sions. Either Smeal or Kephart asked Kostyak if he had
a pension. He said no, adding, however, that Kolbe was
going to see what he could do for him. Smeal said that
"We'll see what we can do about that." To this, Kostyak
allegedly, while waiving his hand, responded, "I don't
have to worry about that because . . . if the Union gets
in, the Company would go pffffttt. Kostyak could not
recall any such conversation, and denied that he made
the statement attributed to him by the three employees. I
credit Smeal, Corrigon, and Kephart, all of ;whom are in-
cuimbent employees. I do not believe that they would
have manufactured this incident, while failing to place it
at a time when it could have affected the validity of the
election. At least as to this incident, Kostyak did not im-
press me as having a clear capacity for recollection, and
I regard the testimony of the employees as the more reli-
able. 'he statement and jesture by Kostyak, though off-
handed, and perhaps an argumentative reaction, nonethe-
less conveyed that designation of the Union would result
in the plant's demise, and thereby constituted a threat
proscribed b Section 8(a)( ) of the Act.
(2) By Dixie Witt
Dixie Witt, during the organization campaign, was a
foreman in the depanzing department on the first shift at
the State College plant. The complaint alleges that Re-
spondent violated Section 8(a)(l) through Witt's coercive
interrogation of an employee and solicitation of griev-
ances under unlawful conditions.
Said allegation is based essentially on the testimony of
employee Elizabeth Weller. According to Weller, around
the first of September, at the closing of the shift, she was
lea',ing the plant when confronted by Witt, who asked
why Weller was for the Union this time, when she was
against it during the prior campaign. Weller replied that
she was for the Union because she objected to disparate
treatment of employees, specifying that certain employ-
ees could do certain things while others could not.
Weller also mentioned her concern for wages and condi-
tions. Witt allegedly told Weller that if the employees
did inot come to her and report their problems, the Com-
pany could not fix them because they would not know
about them.
Witt acknowledged that such a conversation took
place, but denied asking Weller why she was for the
Union this time when she was against it the last time.
She admits that she approaciled Weller after learning of
a complaint against an employee in the area in which
Weller worked. She claims that she discussed the objec-
tionable employee with Weller, and when Weller indicat-
428
CENIRf IN(ilNEERIN(i. INC
ed that she thought that the prohlein created by that em-
ployee had been overlooked. Witt observed that, as a su-
pervisor, she could not resolve probhleis she as uin-
aware of, adding that such employee complaints coutld
not be reconciled by the girls going into the hathroom
and complaining among themselves WVitt asserted that
Weller was to advise Witt of these problems so that
something could be done.
I believed Weller's testimony that Witt questioned her
as to her reasons for supporting the Union during the
current campaign, but as for the balance of the conversa-
tion, I regarded Witt's account as more complete, entire-
ly probable and believable. Based thereon, I find these al-
legations of the complaint are unsubstantiated. As for the
alleged interrogation, prior to the incident in question,
Weller admittedly wore a button conveying her proun-
ion bent. Although inquiries as to the reasons for union
support would provide a means of discerning employee
sympathy, and hence constitute unlawful interrogation,
that reasoning does not apply to render coercive such
conduct when the employee addressed has demonstrated
her position, the incident is isolated and the entire con-
versation lacks any suggestion of harrasment.'> Accord-
ingly, I find that Witt's inquiry did not constitute pro-
scribed interrogation, and did not violate Section 8(a)(1).
Also lacking in merit is the claim that Witt's remarks
amounted to an unlawful solicitation of grievances. The
existence of an organization campaign does not suspend
the continuing interest of productive employees and
management in the fair and equal distribution of work
and the efficiency of the work force. Wilt's request con-
strued in context was narrow, and simply involved an
appeal that employees communicate with her, rather
than carp among themselves, with respect to production
problems, the solution of which is part of the regular
day-to-day function of management and sufficiently dis-
tinct from the general run of wages, hours, and condi-
tions of employment to be beyond interdict of this Act.
Accordingly. I find that Witt in the course of this con-
versation, did not solict grievances in violation of Sec-
tion 8(a)(l) of the Act.
(3) By Robert Rehn
Rehn, at times material, was manager of quality assur-
ance at the State College plant. The complaint alleges
that Respondent violated Section 8(a)(1) through his co-
ercive interrogation of an employee concerning union ac-
tivity. In support, the General Counsel called Susan
Eminhizer, who apparently worked in quality control.
She relates that in early October the quality control
group was called to meet with Rehn, together with su-
pervisor Gwen Law, in the cafeteria. Rehn told the
group that he had worked on both sides of the fence.
and respected the opinion of the employees. He asked,
"What do you think the Union could do for you." Emin-
hizer answered better wages, benefits, and working con-
ditions.17 At this point, someone asked, "f the Union
e See ideral Paper Board. Inc.. 2(6 NI.RH 681 (1973): cf 11 -luto-
motive Electricai Producrs Diviion, 231 NI.R 878 (19771)
'7 Eminhlzer firs te stified Ihat ,hie anrscred hetnlsu "there ua
pause and nobod answered" 'ursuant t a leading question put ftrlh hV
the General Counsel. , he testifled Ihat Rehn made ihis inlqiry .,hile
didl come in. would she have to join." Rehn requested
that Eminhier answer the question. She did so.
Rchn did not specifically deny putting forth such a
question, although the drift of his testimony is to the
effect that he only inquired of employees concerning
their uderstaniding of company policy and whether they
had read and understood informlation published by the
Compa liy. e claims that at the meeting in question, the
point was made that though quality assurance had a
good manager and a good superisor, and employees in
that department were fortunate in that respect, either
Eminhizer or Schoen pointed out their unhappiness with
the way they were treated by supervisors and fremen in
other departments. He observes further that either
Eminhizer or Schoen or both indicated that it was too
bad that they had to get outside representation to protect
them from supervisors, even if it were "the mafia." In re-
sponse to employees urging of the need for union repre-
sentation, Rehn claims to have indicated that "oily you
can decide . . . what the Union can do for you."
On balance. I am inclined to believe that Rchn did ask
the group as a whole what they thought the Union could
do for them. Accordingly, it constituted coerci.e action,
lacking in legitimate purpose, calculated to elicit infor-
mation baring the union sentiments of those attending.
Whether intended or not, it is the tendency of the con-
duct to impede employees in the exercise of their Section
7 rights that is controlling. I find that Respondent there-
by violated Section 8(a)(I) of the Act.
(4) By Edward Elders
During the organization campaign. Edward F 'lders
wtas a supervisor on the first shift at the State College
plant. The complaint charges Respondent with a variety
of unfair labor practices based on conduct attributed to
Elders, including coercive interrogation, threats of dis-
charge, threats of strike action, and threats of more rigid
discipline. if employees designated the Union as their
representative.
In this connection, employee Carol Schaeffer testified
that in early October Elders approached her work sta-
tion, questioning her as to why Schaeffer felt it necessary
to wear a union pin. Schaeffer declined to discuss the
matter during worktime, and indicated she would talk to
him at breaktime. Elders replied "Oh, come on. you can
talk to me," going to ask what Schaeffer thought was
wrong with the Company that they needed a union. She
expressed that the Company needed a lot of changes,
lookig dircll tili i.mlhizer and Jerrs Schoen. hoth of i.hum ere
uearing l uniln buttons t rteltl her lestlmn. in 11 respctit I centel d
coiinfused it no trlilradictors and nli reference to this fact wals included
ill her prelrial alidla ll
I -[hc (iera](il itl,]i . rl. ll iii miscori'trucs the tlollilit S Of
Rehil in thi rpect Acir,.lrig 1o i, anatlsI,, Rehil atrmhbuled irrat m.l
alr.l i('oli'llng sti enicnts to }Enil i e throughi his assertlitl that l she
lirlt applauded the alture of her suIpervLslio and heni expresed unhappi
rless ilih sulpLr. isors A I ci.lnsruc the lesinllrl\, conrlserilng her taltus
i a qlalil e-lrel cniploectt hii %%orks n other depariltmlents aid ninl
dea;l \ut l Ili(r 'uiperisors. the mor- iiccurate iOllsructi ln Is Ihlt Reill
charg'1d [inlhllu t.l s\s11h hatlng epressecd disaippolrltlnllCt iI[\I titl Sl
pers isrs c ltotro llted titside of etr xt1 i1 dptiaiil l
Se (,' l Ar/t ,l rlll I rL. /,t, 211 NIRIt 9121, 122 (1'141, cnfd SIt
1 2 117 1 1I0I I( r 97h)
1)1 (CISIO()NS ()l: NAIIt)N,\I I.AOt)R RA Il.AI()NS t()ARI)
safet1 wise. anld the wN ay things were rull. Elders asked
for a specific example. Schaeffer replied generally andl
then asked Elders where she stood anoig the girls iiI
terms of production. Elders indicated that she w as il the
middle, adding that "if the Union colni in, thil he'd
have to fire hall of his girls heeause they didn't niLet
production as it is." Schaeffer related Elders also said
that "he knew that if' the Union come in that there
wouldnl't be mluch abseiiteeisml as there is nosw anl that
there would he more discipline." Schaeffer also claims
that vwhen she asked Elders why conditions of work had
not changed since the last election, Elders replied that
this was "because their hands were tied up ill court"
Schaeffer also claims that Elders argued that, i the
event of a strike, those wiho signed union authorization
cards would be obliged to support it, while those who
did not would have no such obligation.
Schaeffer was a member of the union organizing coin-
mittee, and, prior to her first conversation with Elders,
admits to hlaving worn a union button fr "quite a few
weeks." Her relationship with Elders was "friendly."
Here again, as I understand the precedcnt and recogniz-
ing the fact that supervisors and employees will inevita-
bly discuss the issues during a union campaign, the one-
time inquiry as to why an employee supported it uioin
does not violate Section 8(a)(I) when directed i the
presenice of no others. and addressed solely to an indiid-
ual, who had previously manifested union support. I shall
dismiss the allegation that in the course of conversation
Respondent engaged i interrogation proscribed by Sec-
tion 8(a)(1) of the Act. 20
Also lacking inl merit is the allegation based on
Schaeffer's testimony concerning Elders' remark as to
the obligation of employee card signers to support
strikes. At best. this constitutes argumentation, which,
though perhaps entailing misrepresentation, hardly con-
stitules a threat. I shall dismiss the 8(a)( I) allegation
based on this reference.
Elders denied that he ever told Schaeffcr that the
Company would eliminiate low producers or that the
Company had not changed wages and benefits because
of the litigation. Concerning absenteeism and production
rates, he admits to stating that, if the Union camie in,
there would be negotiations, and that the Company
might seek absentee minimums and production standards.
First, I am not persuaded that statements to the effect
that employees be subject to more rigid conditions of
work in tie event of unionization are any less coercive
because linked to the outcome of collective bargaining.
Quite obviously, such a byproduct of negotiationls vwould
not be in consequence of union demands, and the clear
implication in Elders' statement is that in negotiations the
Company would press for restrictions beyond those ex-
isting in past practice. I find that such statements violat-
ed Section 8(a)(l) of the Act. 2t also credit Schaeflfer
'U [llders dtlled uestiolnillng Schaeffcr als (to why s it w ir l 1a ulil
buloil Iiowever. hcihel (questuoncd d as to whether he had ever r. rld ito
the fac- thiat she wals wearinig irl IlF. pin, he responded "il i1, qllle p)Sl-
hble I iaiual doin't r elilhel ' He adllilted Ito rcterring to ili lt]-
phloce's pin "s a piec., of dirt ' hit claims that it wuas a "rulnnlrliF lk ]
was il lirled 1 hc.e Schaetcr ad her Itestimlon> n tlis tresp cl
21 C( Iuludil i' Mtor (orp, 222 N RKB h5 (1'7t7h hrc) thre IIt .itl
lit llistSetl tle 8(a}(l) legal IIs based in expressions i a , geltl-u iliu'd
anld find thalt dets' statcemenits ctncerning discharge (of
IItiprodictive wiirkcrs also iIh taed Section 8(a)( I) of the
15) By (iary B(lne
BIOOec, t Iugh o) lnglcr clmplovd by the Responldent
alt t1e time otf tile hicarilig. servcd, during the preelectioit
calipaign, as a supervisol on the second shift at State
College. It is alleged that Bo one, on twio occasions, en-
gaged in conduct amounlting to coercive interrogation,
aid also tilreatened a reduction of benefits all in the
month of ()ctober, during thc critical preelection am-
In this conlnectiotl, Clair Ziegler, all incumbent em-
ployee at the State College plant and a member of the
organiizng committee, testified that in early October
3Boone called hili from his work station to the cafeteria.
otneic first asked how Ziegler %was coming along in his
job, and then elt on to discuss the liUnion, opening with
"What the hell do you want to bring in the union for
it ill cause trouble . . . you knou what happened
at Eric. That's why that Erie laid off their employ-
c's and weit to Mexico " After Ziegler expressed his
disagreement, Boone assertedly stated "why don't you
lake that damin button off your shirt . . . [it] . . . ruins
vyour ulniform." Ziegler replied that he wuas attached to it.
Boone allegedly responded, "All the union waits is
dues and do not care for anyone else . . they will make
a damnn fool of [you] . . . as ihey did with Erie,"
and that if the Union got in "it would be very bad."
Botne also said "If the union gets in we could lose cv-
erythinlg and gain notthig "
Ziegler testified to a second conversation with Boone
in late October. OnI that occasion, Boone approached
Ziegler. asking if the Union was going to win. Ziegler
indicated "maybe," Boone tlien said that if the ULnion
gets il it's going to he ten times harder than it is now
.and someone is going to be paying.
Ziegler was wearing his union button at the time of
tiese conlfronltations with Boone. e had been a memnher
i the in-plait organizing committee. Ziegler claimed
that Boone was not his supervisor, and that his prior
contacts with Boone were limited to casual exchanges of
amenities.
Bootie testified that Ziegler was one of 70 employees
he called individually into the cafeteria for the purpose
of discussing the Union. He claims that during their
meeting he discussed nion flines and assessments and ex-
plained to Ziegler how negotiations worked. He denied,
though not necessarily in precise terms used hy Ziegler.
that hc asked Ziegler why he brought the Union in or
s -utl IiiC rpols o [lpartisli iinl propaganda. i s hich the e-
pllcer incllel, illtrriltc(l tle eltplioyees as to the pssihbl resllts of la futl,
good-faith cll ctlcss bargalning lr ha cas, is disting uis able, foir, the b-
]I lt- ie-,iiiniHi tir br co lit ys thlat ilIClIS look lthe tiffctinsie iiply-
i111 s tl t 1(tiltip;Il i tll scek III Ilegoill:itiiI Ns s' ihour regard for
ira.d e isits l ii g t ascros ittipaci t)11 tn I pllt t s throlir gl Responid
i-its Ulllialtilo of til t bhirgaliling proIc s,, ;ia a ileaClls (I1 Ieprisal
I e Niss it i alle'ga;ltl ptcitatilnlig ,i tI.lders' xplaniatit, th t n ti
hetilils hadi lol hii b ll graTitted hecaus ihe oinpaln ' "hads *s crc tied
i-i-1 th' ri.lsits, set tlorh helit ill the iase o l M ticlhael Crozier , I \,ould
[ itt ind t ihi r, rei c tlll"AtLUl el 1i l- allegedt
43()
(IN Ri I N(,tINI RIN(;. IN(
that he asked Ziegler why le i (\0uld loif n1lo . I hC
union button lic also dcnied tlling Zicglcr i ponh-
ably lose whait vetl hiie if te ullioll cts ill Mid \e
would 'ind Iup getting 'nothillg." 11e clinsI hve c
plained negotiations hb slating "Ithat e rrlhing the\ ap-
parently hald i1as ntegotiable rlth it ; Is possible that th\
could end up itih mnore r tlh( could end up with less
that everything was negoliahlei l also denied telliing
Ziegler that if the lnion gets in "it ill he tell inlles
worse here than it is no\ "
I credit tile testimony of inculnbI nlt emplose ieglr.
who impressed ie as hotlst ndl r not prile Io fahrical
Boone testified that lie i;llde ro liotes of \t hat hie s;id! it
Ziegler r the 70() elploes thlit li( hadl seipralt ci1 t\cl-
sations with concerninig the lionill Ihough he claini,,
that he was instructed h Kolhe m:lld Nt. (irea to coiinLet
these meetings,22 lie dli rot spea-;k froml a prepared text
Thus, it is only natura tl Boone c ould have extClllpo-
rized in these conlvrsaition, particularlv sin c rn plo ces
were afforded input. Considering the thin line hel ccn
what ay he lawfultl said and that iwhich is cocliil\C
and beyond the protection o Section 8(c) of lth Act.
and as oontc wvas i vie\ed s unlltillirrthv, I had T gralC
doubt that he stuck clocl, to the ilarr1 o langulg cin-
veyed to him bhr his superiors in this area I eliecd
Ziegler ver 13oone.
While, I do riot regard the rhetorical "inquiries" ad-
dressed by loonic to Ziegler as constituting interr,)ga-
tion, since obhviously niot intened to ev oke a rcspotse or
to suggest that management was interestel in detectingi
his union sentiment, a \iolallion ill tis regard would
not fall within cogent allegations of the conlplaint. -1h
8(a)(I) allegation based otl interrogation shall be dis-
missed. I do find. however. that ioorne attributed the
plight of employees at Erie Tech to, their union acti\ itl.,
and by asking vhy- Respondentl' crmlllo ecs should lct
the Union "make damn fools" of them, iniplicd that Re-
spondent's employees would share like ad\ersity if the!
designated a union. This statement together with the im-
plication that the eIplioyees "could lose everything and
get nothing," in combination, constitutes a threat of loss
of work and detrimental working conditions beyond the
protective pale of Section 8(c), and violated 8(a)(1 ).
;2 lo ne' es cipcrlpilil l the i rlstritintis hic rtcclied lrolni higher
inatiagcrtlrit ii sIllwVha t odds its i llh ibsc described hs tlIrs Idilrs,
u" l io soughlt Ii cc i (1 it' , il\ctlrlltills icii ;lllt h1ii, ll palirtl. (11 the basis ()
such instrl lions. lestliCl that he w ias tol t1nt ioi inllliate d isCMll t VI h
members of he rgill.aillll orlnlllleCtli lii(ier if he recipe(nt (t inilllar
instructlons. iolaled ther
2' See llanovetr lous Idutirilw. 233 NI R tI-14 1177,) 1lhe cnmpilinl
includes a similar aliegaltion based in a ills trsallionl hsccn -itinlc tilel
Mrs (iloria /iler in which afler I leading quesllon bh cnlrlsel fr the
General Clunscl. she relaled that lione said hai if Ihe tIlon i.llnl c In
"we culi prohahl l cs-r thilig ithat viece Ilr;eadyl got se
· oult be like starlng t the tegiliring t)Dris Ziegler iprcsscd In a
havillg a crilical lack of roll-,i- i a.s , a ll hal. s si id ln iai nier
ing. ad thlghl le ninrdis she impulis to I'ioorle x tc l Iol diilet.i ullilk
her hushand. I hadl doubts s i htier rha.hihi I-.r tln leasin. :l id ., Ih
allegation based it) Ilt r teslinll Is M illcI hiIat ittlllllillt c .11 i Ill ill( i
tlo gise Respirle(ti btle fit if 1ti, d,lhl ith respect i 11i iritical -issl'
of credihilit. ii,( hetice ,ItilIdic thll IiO siiiiltlia l o 1 l it gelit ( I -
curred froi t1hIls piartil l . t itrrl.l, I
(f) 3By Nli, ial (Crozier
l)tiuriig the OrganiatiOn ctilpaigl, Crozier \\as ai fore-
nail il the sec rod hift ;it the Sttle Cllge plillt. It Is
AlIitC ll thtl RespOiind1eill \ltlalcdl Sction X(ia)(l I llrough
ctiUlCie iilerIitat irl, (i.1 prolie O1f bieltt. aind a threcal
ot' ItclCtCd (itltits. all f \ i\hih \crlc allttribulted t Cro--
/1 .
\\ tli respe t(I irttriogialill. cItilplOce \VC'rld
I)eckeCr tIsitited t a cl \rltilli wll Croier i11 arl'
Scpllleci ()iill pre\ ios occasions, Crozier lad coll-
pllill.d ilhout ilic (Jltiit l atn iianier ii lch [)Decker
had pcrfioled er Sol k ()ni the nslanit ticcitsoll. (Cro-
/icI rCprliil lel )c l)ckcr I'or hat ing a ad a Iltillde aind
h1ld hlcill tlt hi-1 v uld no longer perforim set up , rork
CIrtier also ijL'ctd the ll ntiot into Ils Ct (l C;batiot
teI}it I )'cke'r thI11 ste shoulid e st lraillIfor 11ad abou t
flic Itrliol aid rillt prlcLnd thait SIe \sas aganl it t \he
sie X; is for it Il the coulrse o(f this ct li lverstiol l)cIcker
caimis thiet (Io/i l tld her thal i' She( did riot traLighten
Lip s li , iild he (i ll tIhe lor, r Cro ier specificall.
rdenited lakrig the sta terierlt attrihuted to hin hs Deck r
conicernlig the Uiiotl lie testified lthat ile 11e dis-
usse1 I thlle . til uOl , il pr)-obahl 35 i) 4 out Ot it tl lal of
5(), alld lile [1. t "su;ll" talked itli ,'cl'd [)eckei
ever 1iglt, e filrthler denlied hal;l iig a cot(.lsi rtion
with her concerning the Union I did rino belies . hin
and find that hce did address the remark to lDecker con-
cernlig her union affiliation I find tlhat the accusation
embodied in his remark was calculated to e\ok ie a re-
sponse fro t whichl union sympathies might be discernctl
and since coldtc(ted ithout legitlimate purpose, I find
that Respilndnt Ihereh\ iolated S t S o ) I) of the
Act
With respect t tho e alleged promise of benefits. em-
ployee Carol Rogers, who had been employed by the
Respondenlt for about ) monthl, at the time. testified thatt
iih earlty )Octoer she asked Crozier hvi ether employees
sould be gi en a day off on thie riday after I hanksgiv -
ing She ilicauted thatil. if that were nrot tfie case, she
wItould tl ake it tiff. Crozier allegedly responded that ie
would have to wait. but that if the Union \won, it \as
probably more than likely" that the day off would ot
he granted. Crozier admitted to being pposed to the
Union ad to expressing such opposition in conversations
wili many employees. He denied having any conversa-
tion ith Carol Rogers in which a day off was linked to
a defeat f the Union.
Respondent challenges Rogers' credibility on the basis
of testimnion by President McCrea that, for ithe preccd
ing 5 ears, it ,k is the Company's practice to shut dow n
for 5 days over Thanksgiving, including; the day affter
I han;ksgi ing. Rgers acknowledged that t e Cortnilltl,
poste a notice to this effect, but claims that she ;as
"absolutely certain" that this did not occur until the
Monidav aftcr the election, which would have placed the
* t 11 lt ts1mlli lls t(l vI tii[hel [ tll dl. sharii c ilire. t I;is lirklllki sitI
clli i- ti its r t 'ilrliIei Ii lhe pres.iilis Inrladteqluallt rk pcrforlllntii c-
iit k1 hlt (it I ltl i Ii lalitii sl111iids il it t .' imhigtis Ihe (eieerl
('
Ihe liicllcer' inagiiatrlllrli r iterpretalioln T1.c iords acluall. usr d iart
t f irCal lillt frr ,IAltitilig tilr tetrsiiOll al xits betsten Scc N(L)
11id thIl r p1ript lrl plri'olllt o Ithe A it i, ir Sithll that fratilr itk
thiat thl ilioad cexrcise, its dut, l detcrilrnlllc shelihr Ihe speaker',
\t-is ilrnpl ir I ltl he d interpreted is oll\cing a Ilireat ioitACecr.
sill ItC pl ,iibilil, 5 i AlI( he I a di it ttl *re lclftI, it arcc, rded ti) t -nl
)lioic Istiitll lI(III i 1I tl t elit IllL'llRcitllll l)t :orgtlrell rlil rril I[ii 'ld. tich
dilelrciC e o)Uill Ce1r i1rr-r LI pvrarlriiLgi of tIri illtlerpretatl e procerss,
hs-ich I oit il inarrl, the stop p e of Sc Xi(l and tltrebs rusliat' Corl-
grcsx i 4ma ini'ill I, b a fiIIegird 1 t ,' ,pc ,' ] a s ITlilf'teld * a I o v. 1 O"-
Irli, 'i r I "'i' I Lipil li ig I. trdl il IlllJFITa[II (Il '11 t I JIesti l 11 g mi pll
it' s IT l ttll lt t rllltl 1
434
CENIRE I:N(lNEERINGi, INC'
among this group impressed me as capable of affording
reliable testimony as to the words actually spoken. None
seemed possessed of a capacity for clear recollection and
the ability to afford objective testimnony, free of impres-
sion and stripped of personal viewpoint and argumenta-
tion. I discredit them all as unable to afford sufficientl1y
precise testimony in this respect. It is noted, however,
that employee testimony and that which is admitted b)
the Respondent is in many instances lacking in substan-
tive difference.
Loss of Jobs
The literature distributed to employees by Respondent
and McCrea in his captive speeches drew significantly
on job adversities which have beset employees as a result
of the IUE's history of bargaining with other employers.
The point was dramatized by several references to the
experience of employees at Erie Technological, a com-
petitor of the Respondent with locations at Erie and
State College, Pennsylvania.
Thus, prior to the filing of the petition, on September
15, Respondent distributed a notice to employees in
which it described the IUE as has ing "terrible records
for representing employees." The employees were told
on that occasion that it was the opinion of the Company
that involvement with the UE "would be a terrible mis-
take." The document went on to state:
At Erie Technological Products in Erie, Pennsylva-
nia, the IUE represented over 1200 employees.
During the years of IUE representation, the compa-
ny started opening plants in other areas including
locations outside the country. The employees in
these areas were not represented by the IUE. As
the company opened these plants the number of em-
ployees in Erie kept getting smaller and smaller
until the beginning of this year when only a few
hundred were left. No one knows for sure why the
company took the action it did. This year, the IUE
called a strike at the company. The price of the
strike was high for the workers. When it was over
only 30 to 45 union members returned to work, the
rest had been permanently laid off. A total of over
1100 workers have lost jobs at Erie. Does this
sound like a record to be proud of? 'Whal did the
IUE do for these members?
* * *
Membership in the International IUE Union has
gone down over the past year because of the large
number of electrical companies that have been
forced to close. One reason for closing could have
been that the)' could not compete price wise with
the foreign competition, because they were bur-
dened with union contracts and lost their flexibility.
We believe the IUE is only interested in you be-
cause of the money you represent to them. Money
in terms dues, fees, and assessments that IUE meni-
bers are forced to pay. The IUE is just like any
other business once one operation fails (like the one
in Erie) they look for a place to open another one
(State College) so that they can continue to sell
their products (unionism) and charge members a fee
for it. \Would you invest your money in a business
that had a record like this? We believe Centre Engi-
neer employees are too smart to invest their monec
in a union that has a record of failures like the IUE.
We at Centre hav.e a record to be proud of. In the
short time we have been in business we have grown
into a major factor in the electronics industry. Our
growth is attributable to our reputation for the
products we make and our ability to compete with
our competitors. Our customers also know that
when they place an order with us they don't has c
to worry about union called strikes interfering with
delivery dates. But each year it gets more and more
difficult as more companies are opening plants in
foreign countries and foreign corporations are conm-
peting for our market. Our future growth is depend-
ent upon 1(X) percent effort by all of us.
As we htse said before as we continue to gross C
will continue to improxe wages and benefits. Union
or no union, we intend to remain here in Central
P'cnnsSliania. We take pride that our product is
made totally in this country.
:' Frlc lchnologal ii.. A c. l plo)ct, (sic] cr 7(X pop' Irr
NogaCs, Mlcmt,- tlt aIrc rlwl rprstIlIcd h a Uol(l :7"
The (ieneral Counsel and the Charging Party urge
that this theme, equating unionization with strikes and
the loss of jobs, as extended on October 2, 1978, by a
notice distributed to employees which listed things that a
union could do and hat it could not do. In specifying
'rlhat a union could not do. this document states as fiol-
low s:
TIhey cannot furnish you with work or pay you a
salary. (Just look hait happened to Erie Tech em-
ployees in Erie, Pa)
On November 9. Respondent again reported to em-
ployees concerning the outcome of an IUE strike.
Under duress arid after a 4-week strike, Erie Tech of
Erie, Pennsylvania, settled their latest union contract by
granting a wage increase to IUE employees. Apparently.
hosvever, the Union was more concerned about money
than their members' jobs because:
The contract was settled in April of this year. Since
April, three of every four IUE employees have lost
their jobs because the work they were doing no
longer exists in Erie, Pennsylvania.
It's worse than that, because its not over with. It is
estimated that the IUE will represent less than 40
employees at Erie Tech in Erie by next March.
This wsill mean 9 of every 10 IUE emnployees will
have lost their jobs.
* * * * *
I:: bSc (i t xh 4(c)
4)5
DECISIONS OF NATINAL LABOR REILATIONS B()ARI)
Could any of this really happen'? Is it possible for a
company like Erie Tech to lay off all these work-
ers'? Unfortunately the answer to both of these ques-
tions is yes. We are not saying that any of this
would happen here. But it is important that you un-
derstand the facts before you vote.
Respondent again alluded generally to the experience
at Erie Tech, describing the Union's role there as one of
"domination" in a letter distributed on November 14. In
material part, it stated as follows:
Now we look back again. We currently employ
about 500 persons. Some are primary bread winners
for their family, some are secondary partners in
helping to set the table, and some are temporarily
employed for one or more of many good reasons.
All in all we are probably responsible for over 1000)
persons in some manner or degree. We have accept-
ed that reponsibility, and it serves as a constant re-
minder in every decision regarding Centre Engi-
neering.
It has been said many times that we oppose this
Union. Much of what we have said has been grossly
distorted. We oppose this Union because we do not
think this Union's interest is in the best interest of
our employees, and we (each of us) have worked
for a company (Erie Tech) which was dominated
by this Union and have seen firsthand the negative
results of this Union's domination. a s
Finally, on November 16, Respondent in a handbill, iter-
ated its reasons for opposing the Union in the following
terms:
We know the history of this Union and feel it is our
responsibility to give you all the facts. We do not
think this Union is necessary or beneficial to either
you or your management. Sometimes, union de-
mands, if fulfilled, result in a company being non-
competitive. In many IUE plants, this resulted in
cost-cutting and your jobs. Often, companies say
"no" to unreasonable demands. Where this is hap-
pening, a large number of IUE plants have gone on
strike, hurting both the employees and the compa-
ny. We would not like to see our operations disrupt-
ed. You can avoid this possibility by voting "No."
In addition to the campaign literature, McCrea in the
course of the captive-audience speeches, admittedly told
the employees that Respondent was the sole ceramic
compacitator manufacturing company still located entire-
ly in the United States. He observed that Erie Tech had
several hundred jobs in Mexico displacing those held by
employees in Erie and State College.3 9 He also alluded
to two other domestic manufacturers of electric compo-
nents which had established plants abroad. He expressed
his intention that Centre continue to function entirely in
the United States, that that was the way it should be,
and that he would do his best to see that it stayed that
way. McCrea read from a newspaper article concerning
: See GC Exh 4(y)
:1 McCrea had been employed hy Erie Tech for a period of years
employment circumstances at Erie Tech, depicting a de-
cline in the Erie Tech work force of from 1,200 to 40.
During the second speech, he advised the employees that
Erie Tech was selling, through an auction, certain of its
machinery. He pointed out that Respondent had itself
purchased some of that machinery which would be ar-
riving shortly. Before closing this second speech, he re-
minded the employees that no matter what the outcome
of the election, the plant would remain open, that life
would go on, win, lose, or draw, and that he would live
with the results.
Under Board precedent, the issue raised by the forego-
ing is not free from doubt. On balance, however, it is my
conclusion that the contentions of the General Counsel
and Charging Party, if sustained on this record, would
invite absolute censorship of what appears to be honestly
conveyed and relevant fact. Thus, so long as employers
are privileged under law to propagandize against union
representation, assaults upon a particular labor organiza-
tion's record for employee representation will naturally
stand at the vanguard. True, such propaganda involves a
calculated play on employee fears, but with economics
constituting the central core of the debate, it is difficult
to imagine a line of antiunion argumentation which could
not be so characterized. Realities demonstrate that to en-
lighten and frighten is the central objective and to re-
press, through unfair labor practice findings, comment so
designed is to condone outright rejection of Section 8(c)
without regard for fundamental statutory and constitu-
tional principles. "Thus, an employer is free to communi-
cate to his employees any of his general views about un-
ionism or his specific views about a particular union, so
long as the communications do not contain a threat of
reprisal or force or promise of benefit."4 0 Absent the
latter, it is of no moment that references to a union's fail-
ures in the past might be persuasive and difficult to
combat; for, "an employer's free speech right to commu-
nicate his views to his employees is firmly established
and cannot be infringed by a union or the Board." 4
Consistent with the foregoing, the Board has acknowl-
edged "the employer's right to discuss freely and frankly
its views concerning unions, strikes, collective bargain-
ing, plant closure, and any other topics it considers im-
portant," But at the same time, this right must be bal-
anced as against that of employees "to associate freely
and express their desires in an atmosphere free from fear
and futility" 42 However, the balance must be struck in
terms of whether the entirety of the campaign material
conveyed to the employees either directly, by injection
of ambiguity, or by implication that Respondent held an
inclination or propensity to bring about the very adverse
consequences referred to. Such was the nature of the
campaign dogma in W. A. Krueger, Shaw Industries, Divi-
sion of Crystal Springs Shirt Corp.;4 3 Hanover House In-
' 395 L US 575, 619
41 Id. at 617
12 See 4. hrueger Co., 224 NLRB 1066, 1069 1976).
in 2IX NLRB 1196 (1975) here the presidenlt of a multiplant shirt
Illaluacturinlg enterprise using unqualified terminology. told emploqyees
Ihat unorganized shirt manufacturers always nloved It a nIe
r
location or
transferred sork Il a nonunilon plant hen rganized, and concluded by
(onrinued
436
CENTRI EN(IN'tRIN(; , INC(
dustries;4 4 and Mohawk Bedding C(o. 4 ' However, in the
instant case, the references to the adverse impact or
union representation elsewhere was unaccompanied by
language suggesting or implying that such job disloca-
tions would occur at Respondent's plants. The dogma
while not disclosing a propensity to effect such reprisals
and without casting the argument in terms of the inevita-
ble, carried assurances that no such result was intended
at Osceola Springs or State College.
Being of the view that McCrea neither in his speeches
nor his campaign literature conveyed an implied threat
that Respondent would close dosen or reduce work at its
locations because of union representation, I Find that this
phase of the Employer's propaganda constituted legiti-
mate argumentation protected by Section 8(c) and nei-
ther violated Section 8(a)(1) nor furnished grounds for
setting aside the election.
The References to Collective Bargaining and
Strikes
With respect to this phase of the debate, I find that
Respondent's campaign material exceeded permissible
bounds. In this instance. Respondent, after stressing dire
economic consequences of strike action in terms of job
dislocation through replacement, nonstriker liability for
union fines, and loss of earnings, reduced those conse-
quences to the inevitable by declaring an intention to sit
at the bargaining table under circumstances likely to
force stalemate. Thus, it was observed by Respondent
that there was no guarantee that negotiations would lead
to "any increase at all," and that "no union can force us
to pay more than we want to." 4 6fi Several times the em-
ployees were informed that "in negotiations . . . every-
thing is negotiable and you could get more, you could
stay the same, or you could get less."
These were not the abstract words of the disinterested,
but those of one who forcefully opposed unionization
through this and the prior campaign, and who openly an-
nounced his commitment to bargain "hard" should em-
ployees designate the Union. McCrea's reference to the
possibility of negotiations culminating in a reduction in
current levels of benefits would naturally be contrasted
with his earlier utterance that "our company will contin-
ue to do the very best it can for all employees"47 This
shift in posture was conveyed as union inspired and
would, according to Respondent's own argument, be im-
plemented through its adopting a resistive stance during
any ensuing negotiations.
In sum, Respondent's expressed disposition to bargain
hard, to hold the line on benefits, and to engage in a
slating, "When this election is oer. our non-union competitors are still
going to be making shirts somewhere and so am I We catme here not
to close a plant-but to open one "
4 233 NLRH 164 (1977) There the respondent's president told em-
ployees that the parent firm had closed a facility because of union de
mands, while going on to nform them that the company had a short
lease and was free to move once it epired
45 216 NLRB 126. 128 (1975) There the employer listed five compa-
nies that had closed or moved after being unionied. and then stilted
"there is cotnsiderahle reason to onder whether or notl uinloll/altlln fli
Mohawk Bedding would hurt our ability to urvive"
n' See G C xh. 4(aa)
4* See Gi C txh i(a)
course of negotiation that would inevitably lead to a
strike, and all its adverse consequences, exceeded the
protective ambit of Section 8(c), as amounting to no less
than a definition of economriic hardship to be vlsied on
employees in consequence of Respondenit's owfn discre-
lionary action. I find that Respondent thereby violated
Sectionl X(a)( ) of the Act.
Attributing the Withholding of the Benefits During
the Canlpaign to the Union
The challentge made in this respect rested itt cssential
respects on emlployee lestimony that has been dscredit-
ed. Thus. relying on McCrea's credited lestimony, I find
that, ith respect to new benefits, he sltated that the
Company's hands were tied only in the coniext of re-
spndirig to a document signed b Bets Wel'cler, a
prounion employee. That document had been presenlted
to the Company in quest of written guarantees that it
would provide a suitable pension plan, better ages.
fully paid insurance, paid birthdays, and all equitahle dis-
tribution of profit sharing, "4 McCrea clainms that. in the
second speech, he read each of the guarantees to the em-
ployees and stated "that the Union knows that it swould
be illegal for me to sign these guarantees. it would be
against the law and they had my hands tied." He then
referred the employees to the guarantees prepared on
behalf of the Company, which had been distributed to
employees during the first set of captive sessions. He in-
dicated that the Union could have signed those guaran-
tees, but that the Union "knew that ... there is no way
that I could sign these guarantees and they had my
hands tied and they knew it." 4 In my opinion. this con-
stituted a sober, temperate response to overt employee
demands for benefits, which, if honored, would clearly
violate the law. In the circumstances, McCrea was privi-
leged to defend on the basis of what the law requires. As
he went no further. and as I find that this was the sole
reference made by him to this subject matter. I shall dis-
miss the allegation of Section 8(a)(1) based thereon.
IV. CASk. 6-RC-8307
Remaining for consideration are the Charging Party-
Petitioner's assertions that the Employer engaged in mis-
conduct during the critical preelection period. Of these,
Objections 1, 3, 4, 5, 6, and 7 are coextensive with unfair
labor practice allegations set forth in the complaint and
heretofore discussed. Having dismissed independent
8(a)(1) allegations covering the same subject matter as
Objection I, it shall be overruled. Having, found such
violations with respect to all or part of the subject
matter of Objection 3 (interrogation), 4 (coercive cam-
paign propaganda), 5 (threatened lorss of jobs), 6 (threat-
ened discrimination), and 7 (promise of benefit), those
objections shall be sustained. Still open for consideration
are Petitioner's Objection 2 pertaining to surveillance of
union activity and 9 pertaining to the Employer's alleged
submission of an incomplete, inaccurate, and conlfused
Excelsior list.
"4 See Resp xh #
4s, Sec (i lix 4bbh
437
I)( ISI()NS ()OF NAII()NAl I.AIO()R Rl All(ONS B()ARI)
(:oicer iig ()Objctlion 2, the facts show thalt otl No-
veniber 14, a unii)n rneetiiig ;was conducted for celploy-
ces on the ()seeola Mills dtima shift at the "''Harhbor I."
An ernployee i attendance in that meeting. obsereled
McCrea at the registry desk i the hotel lobbh while the
meeting was in progress. McCrea had made a rescrvalion
for thatl mictig, and was at the desk comrpleting his reg-
istrationi l ionll Repries ellativ Rothweilcr. s,ho had
been ifiormled of McCrea's presence, confronted McC'ra
wlhil t ctmployees looked on. Rotlhw ilct informed
McCrea that he had no ight to be present and that the
Union would file objections concerning the incident.
McCr-ea w\ithdlc front the remlises, stating as lie tlid
that "he knew nothing about the meetinig, that it was a
public place." lie departed allnd was not again seen oil
the premises.
O()n the following day, in speaking to the emplolecs at
thle captive-audience meetings, he reported the incrident
at the Harbor hml the previous evening, explaining the
reason for his presence. while denying that hte ,a;s laware
that a union meeting was scheduled for that localtion at
that time. : McCrea crediblv testified that on November
7, he had stayed at the Harbor Inn for the same purpose
that he was present on November 14, and that it was his
intention on both occasions to convenience himself by
spending the night near the ()scecola Mills plait so that
he could that evenilng at approximately 11 p.m. address
the combined group of second- and third-shift employees
at that plant, then early the next morning address the
first shift at Osceola Mills, before returning to give a
series of speeches at State College on November 15. 't
Based on the foregoing, I find that McCrea was pres-
ent in the Harbor Inn, a public place, for a legitimate
reason totally unrelated to any union activity then in
progress, and that his presence under those circum-
stances was not misconduct interfering with the results
of the election, nor an unfair labor practice.52 ()bjection
2 shall he overruled. :'
" I i'Ltil %Ic( ris tcst iil il ti at h InoI klowlcd tt, It thti Ulnioll
lmeetinlg schedulcd that er Ciiig t ti itlarbhli t. Asinaltc putIbhallirn
hy the Unrliill oi is meeting w\ias ili a cnfused state. Nc'papllcl ptuca-
lions listed it as ctiheduletd for NoileTlher 15. Shortly before t(ie rltcillng
tnllionl Representatiive RHithweiler sent a letter to enployees which sclhed
Illed the neting r I lueslday. Nveeiriher 14 As expresstd in the Illilon '
briefl the cOllillslll crleated by til citradiictory norticcs. land y "'Aord
Of III)tIII"' ernptIyc's s cre ilfirnteld thiat it woulld he held i 1 No, lllber
14
', Conltrary to tie Union. I see mrtihing suspect in McCrca's cxplanai
tiil for Ilis desire to spend til lnight in the Harbor tun in Pl'illipsburg.
l'cl)llsylsilnia. lather than to return to State C'ollege after giving thet
l'eechlcs IIhail cening iand thenr dri.img back to address the first shift Ihe
next morlning Stale College and ()Osceola Mills are Iappirlximattly 15
miles apart, involrviig ;a 45-htl minute drie
'2 perhaps by osersight, tile complainl Ili this poceedlng Included rno
8(a)(l) allegationi based ion this Illcident
:' See Univierial Pkagin (rp.. 149 NLRB 262, 203 (1964) Nr do I
find that McCrea, effort 1( explain his presence t the employees during
these captive splethes in NvLrllhbr IS to have created the impresion
,t surv llance li ;I manner ioffensive to the Act I will be recatled that
Uiion1 rcprcseitaisc Rlhivciler charged McCrea; wtlh illegal cllduct
alld Ihreatened to file }hjecttilrls basced thercion McCrea's effoirt to iiele
Iralizt a;ls sich i ling, ailnd it cxilllil that his prcseICe i1 that ccasii
i;ld iil clTlientin haS 'lsic[ Witl the Tinectillg thell i priegrrs,,. lardlls
anlmotlnit% i, coid11 l irterfe'rling i ith tilt ' etCi.tiic or ittierxisc ilhin tI
cmierridiilatiiln of tis Act
Withi respect to Objection 9, it is noted that under es-
tahlished oard policy, employcrs are directed to furnish
"al election eligibility list, contaiining the names and ad-
dresses of all the eligible voters"' wilhin 7 days after issu-
altcc of a direction of election. 5 4 Here, the listing submit-
ted by the Fmployer pursuant to that rule was not
showli to have bee t1 ultimcly filed or to contain signifi-
cant omissions of eligible employees Instead, the Union
challenges the list as in noncompliance because the
namces submittcd were inot alphabetized o a last nanle
basis or segregated by place of employment. In addition.
the Utllion observes thalt the list made zip codes available
only in the case of 25 of the 424 employees on the list
· hile some 23 emiployees ere listed with neither street
address, post office box nutlllber, or RFD nnumber.
Rather than ail alphabetized list on a last-name basis.
that submitted bh the Respontdent was arranged on a
first-tiame basis in nonalphabetized form, but in clustered
alphabetical sequence with all the A's randomly togeth-
Cer the 's followiing suit, and so n. l- This was the
second :rxcelvior list submitted by the Respondent. The
discrepancies contained therein were not evidenced in
that furnished iii coInlTectiotl with the earlier election
which was alphabetized on a last name-basis and con-
tained zip codes for almost all listed. 5 In addition, the
Employer, after submission of the list in question here.
prepared the official voter eligibility list to be used at the
election. hat list was segregated on a plant basis and
was properly alphabetized on a last-name basis."
Otn November 16, 1978, at a preelection meeting,
union representatives sought to compare and cross-check
the nanes appearing on the Excelsior list with aid of the
official eligibility list. The union representatives request-
ed a copy of the latter in order that they might utilize it
under more convenient circumstances, and so as not to
interfere with other tasks they had to complete prior to
the election to be held the next day. The Company's rep-
resentatives refused, requiring the three representatives
to spend some 5 hours to complete the verification.
The Union contends that the list in the form submit-
ted, failed to comply with E.xcelsior, because it was con-
structed in bad faith or, at the very least, with willful
and gross negligence. I find merit in this contention.
The rule requiring employers to furnish names and ad-
dresses of eligible employees during the preelection
period sought to "maximize the likelihood that all voters
will be exposed to all argumenlts for, as well as against,
union representation."'' 5 8
A further conisideration underlying the rule was enun-
ciated, as follows:
:4 I:r( /lor Undirlur Inc.. upru
s I : he list submitd il this form i ould. as Uiniitnll A IIiess's testified.
prestcil time-cionsuming problemns in connectiol with verification of eligi-
ble Cnplrl ecs. icrieting deallines fr comnliuncating ",ith emplioyees
through the Iliall iitd, indeed, simple locatlon of crnployecs who did lit
go )x their firs lnames, but by nickilames
:"S C ' t F I 6
:' Se C ' t hP I h 9(a) ailnd (hl It is nelcd Ihal Ihese lists alsio omitted
1 com1es 11-1 a US hit tiial st'gcill { t' etligIblc svoters
:' lS? N R .ai 1241
438
C(INFRIK tiN(iNI FERIN(i, IN('
['I']here is yet another basis on which we rest our
decision . . prompt disclosure of employee names
as well as addresses will, ec are convinced, elinli-
nate thle nlecssity for challenges based soley on
lack of knowledge as to the voters' identity.
Later, guidelines for assessing compliance with the Ex-
celvior doctrine were spelled out in Ponce leFevision (Cor-
poration, 192 NLRB i 15, 116 (1971), wherein it \Vwas
stated:
Although it is not Board policy to apply the Excel-
sior rule mechanistically neither is it our polic to
vest the employer with unlimited discretion with re-
spect to the content of the eligibility list. The rule's
value as a means of insuring a fair and free election
lies in its simplicity and ease of administration. For
this reason, we need look only to whether or not
under the circumstances of a particular case, the
employer has substantially complied with its Excel-
sior obligations. As we recently noted, the rule im-
poses a simple duty on employers which can be sat-
isfied by the application of a reasonable amount of
diligence.
Discrepancies not too far removed from those in-
volved here, in Rite-Care Poultry Company, 185 NLRH
41 (1970), were considered grounds for setting aside an
election, with the Board stating:
The employer did not substantially comply with the
requirements of Excelsior because the list of names
and addresses which it supplied did not include in-
formation available from its files as to street ad-
dresses and/or post office box numbers.
In like fashion, the Employer, prior to the Excelsior
submission in this case, possessed the raw data and the
capacity for submission of a list in proper form, with
names alphabetized by surname and segregated by de-
partment number. The list submitted in connection with
the 1977 election was prepared in this fashion, and in-
cluded zip codes. The official eligibility list prepared
prior to the election of November 17, was i similar
form. The sole explanation for the manner in which the
Excelsior list was structured was offered through testimo-
ny of William Marks, Respondent's data processing mall-
ager and programer. Marks claimed that Ted Kolbe in-
structed him to prepare a list of employees on payroll
status as of a certain date and did not recall that Kolbe
requested that it be alphabetical. The list submitted pur-
suant thereto, according to Marks, was a computer print-
out derived from keypunch cards which listed employees
on a first-name basis." ' He claimed that the computer
process did not have the capability of providing a list on
a last-name basis until November 10, when Marks cre-
ated a new program enabling the computer to accom-
e Ietiim ill h, Mark, anlt <')(lilpill [ Pre,i.lcr , 1 Crca t IIt i IB.
Cwillpan, i11 kl'llplllrilg Its lailljllg,, 1utill/ ti Ie %m1n1t list u r',llll )idl.
Ihe ULniiol sirtik Ti a, argiiltii¢ai c d Irtl IilhciHtC hc I I idisr l ii thr1n
in this respcmt
plish that objectivc ' In explainingg the absence of ip
codes, Marks indicated that the keypunch operator had
not punched ii tile ip codes in the case of certain em-
pII!cs, ill, l d hence thiley ,ould ot he fe]d into the corn-
piltc r Marks gave no logical, persuasiv.c reason as to
,ashi the names were grouped on a first name, A(.
basis, while otherwise nonalphahetizcd.
the testimony of Marks itself discloses that t the time
the E:xcclior list was prepared. the Company maintained
rolodex files listing employees alp.habetically on a su,r-
name basis. No explanation is offered ;is to, \h' Ithe list
was not prepared from that source. Furthermore, no
logical explanation was offered as to why the compuler
had been programed to store employee narmes i the ex-
traordinarily unorthodox, first-name style reflected in
the list submitted to the nion. The question left unain-
swered by Respondent is why it failed to comply with
Erc,[lsior through either reprogramning its cornputer
systeml or preparing a list manuallls. Its failure to act in
this fashion resulted in the disseminairti(oti of data which
foresecably would handicap tie Unllion all create coilfu-
sion inl utilization of the list in vindicatiotn of the pr-
poses set forth in ExcelZsior. Indeed, the FImployer's refus-
al to accommodate the U'nion during the preelection coll-
ference by providing it a requested copy of the official
election eligibility list, though under no legal obligation
to do so, was reflective of disposition to make it as diffi-
cult as possible for the Union and is perfectly consistent
with the possibility that the confused state of the Ercclvi-
or list was deliberately conitriced. I find that, at a mini-
mum Respondent failed to respond to its obligation
under Elcelsior with the requisite degree of diligence
and, accordingly, its act ion in that regard furiished
ground(s for inxalidating the results of the election. Ac-
cordingly, Objection 9 is herebh sustained.
CON( I SIONS 0(-1 Lxw
1. Centre Engineering, Inc., is an employer engaged in
commerce or an industry affecting commerce within the
meaning of Section 2(6) and (7) of the Act.
2 International Unionl of Electrical, Radio anid Ma-
chiie W'orkers, AFL.-CIO-CIC, is a labor organizlation
within the meatiing of Section 2(5) of the Act
3. Respondent independently ,.Jolated Scctiont (a)(l)
of the Act by coercively interrogating employees con-
cerning union activity, by threatening a cessation of op-
erations in the event of unionization. by promising belie-
fits to induce employees to reject the Union, by threaten-
rig a redtuction of current benefit levels if the Union
were designated. by threatening discharge ii reprisal for
union activity. by threatening prosecution in the courts
because employees engaged in union activity, by threat-
citing that discipline would be imposed on a nmore rigor-
ous basis in the event of unionizationl and by campaign
literature through which employees were informed. bh
implication, that Respondent ,kould adopt positions at
the bargaining table forcing a strike, resulting ill dire
economic consequences for the cplo ccs
" '\IlilllIl \ILIrk, IIlld 1i ii ,I l [ , L, 11 t{ loo k h i ti 1J,,, llp .
JM O)_~IHl i t'.fltlc'rllll/g Ihe l. ltt(ll. .. [kFilr.Jtlt'i ;ill ajl'i q'lh lt/I. 1i ,'11 .1
,cparalr c pilIlt h {,~ )e F i ltl t t[ Ir 'e,> 1S 'S htI A ~,~cck
43ov
I)E CISI()NS OF NATIONA. LA3()R RKELATIONS HOARI)
4. By the conduct described above which is the sub-
ject of Objections 3, 4, 5, 6, 7, and 9, Respondent-Ern-
ployer engaged in preelection misconduct interfering
with the free choice of employees in the election con-
ducted on November 17, 1978. Accordingly, that elec-
tion shall be set aside and a rerun election conducted.
5. The unfair labor practices found in paragraph 3,
above, have an effect upon commerce within the mean-
ing of Section 2(6) and (7) of the Act.
Ti RM li)ir
Having found that Respondent has engaged in certain
unfair labor practices, it shall be recommended that it be
ordered to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act.
Upon the foregoing findings of fact, and conclusions of
law, and the entire record in this proceeding, and pursu-
ant to Section 10(c) of the Act, it is hereby recommend-
ed:
ORDER 6 '
The Respondent, Centre Engineering, Inc., State Col-
lege and Osceola Mills, Pennsylvania, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union activity, threatening a cessation of operations
or discharge in reprisal for union activity, promising
benefits to influence employees to reject the Union,
threatening that benefits would be reduced if the Union
is designated, threatening to prosecute employees be-
cause they engaged in union activity, threatening to
impose stricter discipline if a union is designated, and
6 In the cent no exceptions are iled as pros ided hb Sec 12 .46 of
the Rules and Regulalions of the Naltional Labor Relations toaild, the
findings, conclusions, and recommended Order herein shall, as previded
in Sec 1112.48 of the Rules and Regulations, be adopted by the Board and
become is findings, eonclusions, arid Order, and all objectionsl thereto
shall he deemed waived for all purposes
telling employees that it would adopt positions at the
bargaining table which would lead to a reduction in
benefits and provoke a strike, resulting in a loss of jobs
and income.
(b) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
right to self-organization, to form, join, or assist the
Union, or any other labor organization, to bargain col-
lectively through representatives of their own choosing,
and to engage in other concerted activities for the pur-
pose of collective bargaining or mutual aid or protection,
and to refrain from any or all such activities.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Post at its Osceola Mills and State College, Penn-
sylvania, plants copies of the attached notice marked
"Appendix. " 2 Copies of said notice, on forms provided
by the Regional Director for Region 6, after being duly
signed by Respondent's authorized representative, shall
be posted immediately upon receipt thereof, and be main-
tained by Respondent for 60 consecutive days thereafter,
in conspicuous places, including all places where notices
to employees are customarily posted. Reasonable steps
shall be taken by the Respondent to ensure that said no-
tices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 6, in writ-
ing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS URL'HIR RECOMMIENI)DI) that the election con-
ducted on November 17, 1978, in Case 6-RC-8307 be set
aside and that said proceeding be severed and remanded
to the Regional Director for Region 6, for the purpose
of conducting a rerun election at such time as he deems
the circumstances permit a free choice on the issue of
representation.
f"2 In the eent that this Order is nlfirced by a Judgmen of a Uni led
States Crt of Appeals, he words in lie ntice reading "Posted by
()rder of the National llabor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the Unlited States Curl o' Appeals En frcilg an
()rder of the National l.abor Relations Board
440