Simplex Time Recorder Co.

National Labor Relations Board - Board Decisions

Jun 22, 1967

165 N.L.R.B. 812 (N.L.R.B. 1967)

812 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Simplex Time Recorder Company and
International Union of Electrical, Radio
and Machine Workers, AFL-CIO. Case
1-CA-5624.
June 22, 1967
DECISION AND ORDER
BY MEMBERS BROWN, JENKINS, AND ZAGORIA
On February 27, 1967, Trial Examiner Samuel M.
Singer issued his Decision in the above-entitled
case, finding that the Respondent had engaged in
and was engaging in certain unfair labor practices
and recommending that it cease and desist
therefrom and take certain affirmative action, as set
forth in the attached Trial Examiner's Decision.
Thereafter, the Respondent, the General Counsel,
and the Charging Party filed exceptions to the Trial
Examiner's Decision and supporting briefs. The
Respondent filed a reply brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner at the hearing and finds that no prejudicial
error was committed. The rulings are hereby
affirmed. The Board has considered the Trial
Examiner's Decision, the exceptions and briefs, and
the entire record in the case, and hereby adopts the
findings, conclusions, and recommendations of the
Trial Examiner.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the
Recommended Order of the Trial Examiner and
hereby orders that the Respondent, Simplex Time
Recorder Company, Gardner, Massachusetts, its
officers, agents, successors, and assigns, shall take
the action set forth in the Trial Examiner's
Recommended Order.
I In fn 7 of his Decision, the Trial Examiner found that
Respondent's offer to "bet" anyone $100 that he could not get his
signed card back from the Union constituted privileged argument
or persuasion Absent exceptions thereto, we adopt the finding
pro forma.
The Respondent's request for oral argument is denied as, in our
opinion, the instant record adequately presents the issues and the
contentions of the parties
August 26 and complaint issued October 10. The issue
litigated was whether or not the Respondent, through
certain acts and conduct (including surveillance and
threats of reprisal) interfered with, restrained, or coerced
its employees in violation of Section 8(a)(1) of the National
Labor Relations Act, as amended.
All parties appeared and were afforded full opportunity
to be heard and to examine and cross-examine wittnesses.
All waived oral argument at the conclusion of the case.
Briefs were received from Respondent and General
Counsel.
Upon the entire record in the case2 and from my
observation of the witnesses, I make the following:
FINDINGS AND CONCLUSIONS
1. THE BUSINESS OF THE COMPANY; THE LABOR
ORGANIZATION INVOLVED
Respondent, a Massachusetts corporation, with its
principal office and place of business in Gardner,
Massachusetts, is engaged in the manufacture, sale, and
distribution of time recorder equipment and related
products. It annually ships to States outside
Massachusetts products valued in excess of $50,000. I find
that at all material times, Respondent has been and is
engaged in commerce within the meaning of the Act.
The Charging Party, herein called the Union, is a labor
organization within the meaning of the Act.
II. THE UNFAIR LABOR PRACTICES
A. Company President Watkins' Speeches
1. The facts
The Union commenced its organizational campaign in
early August by distributing leaflets around the plant.
International Representative Flynn, assisted by employees
from a neighboring unionized plant (Harrington &
Richardson Company in Gardner), did the handbilling.
On August 12, Company President Watkins addressed
all employees3 over the Company's intercom system in
regard to the organizational campaign. He instructed all to
shut down their machines and directed the foremen to
"check and make sure that everyone was in a position
where they could hear." The speech, delivered before
5 p.m. quitting time, lasted over an hour.
Watkins started out by telling the assembled employees
that he was informed of union activity while attending a
sales meeting in South Carolina, but "didn't feel justified"
in rushing back to state management's side because he
thought the employees had enough sense and judgment to
evaluate what was going on, "including alleged Union
campaign misstatements." After referring to previous
union attempts to organize the plant, Watkins pointed out
that the present campaigning was being conducted by
outsiders-employees of Harrington & Richardson.
Although describing the organizers as people they
"probably knew ... friends ... possibly neighbors ...
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
SAMUEL M. SINGER, Trial Examiner: This case was
heard before me at Gardner, Massachusetts, on
December 1 and 2, 1966,' pursuant to a charge filed on
Unless otherwise noted, all dates herein refer to the year 1966.
z Transcript corrected by my orders dated January 16 and 25,
1967
3 Respondent employed 814 employees during the week ending
August 13, of whom 225 were office employees; due to vacation
only 705 worked that week The Union apparently sought to
organize only the production employees
165 NLRB No. 101
SIMPLEX TIME RECORDER CO.
good people just doing a job," Watkins questioned their
intelligence, and asserted that as outsiders they "didn't
have any interest in the employees as such, nor in their
family, nor in the community." Claiming that the
organizers represented "force," he stated that he did not
like to work "under force and he would rebel." At one
point he characterized union men as "a bunch of
Communists" and union cards as "cancer cards." He
stated he had initially considered closing the plant for the
remainder of the week (2 days) and letting the employees
"think about what was going on," but decided against that
course in favor of personal and direct communication.
Watkins devoted "a good portion" of his talk to benefits
at the plant and compared them to those at unionized
plants. He asserted that while unionized plants might be
paying higher wages, the working conditions at Simplex
were superior. At one point, he referred to an out-of-State
plant and remarked that "we would have to live in the
neighborhood where Negroes lived and some people
wouldn't be too happy about that." Watkins stated that
Simplex never closed down its plant because of lack of
work, that there never was a strike there, that a man could
work as much overtime as he wanted, that his plant was
the cleanest and newest in the community, that he
sponsored organizations such as the drum and bugle corps
and school scholarships for employees' children, and that
Respondent provided substantial Christmas bonuses.
Adverting to the Company's pension plan for salesmen
and servicemen, he indicated that a similar plan was under
consideration for the production employees, but stated he
would not put this into effect "under pressure from any
outside organization." Watkins cited figures purporting to
show that his unionized competitors were in financial
straits, contrasting the situation at Simplex, where
employees enjoyed "fine security." He stated that after
visiting the unionized Harrington & Richardson plant to
determine if any of the benefits at that company could be
applied at Simplex, he came to the conclusion that many of
the benefits at that plant were "not as good as what [they]
had at Simplex and certainly not any better." He also
stated that any benefits he granted employees would be
"because he wanted to" and not because it was forced
upon him.
Watkins "spent quite a bit of time" on union cards. He
referred to a poll arranged by the Company in the 1959
union campaign under the auspices of a clergyman and
police officer in which employees were asked to indicate
whether they wanted the Company or an "outside
influence" to "represent" them. Emphasizing the
importance of authorization cards, Watkins told the men
that they were "valid" for 1 year; he "didn't want us to
take cards ... to send cards in" to the Union; and he was
"convinced" that "once you sign these cards and send
them in ... you can't get them back." Watkins stated that
he was "so convinced you can't get them, I am willing to
make a wager with you, I will bet you a hundred dollars
that once a card is sent in, you can't get it back." Stressing
his feelings on the matter, he added, "you write to them
and tell them you want your card back; and ... you see
what happens. I am convinced that you are not going to get
your card back; and if they do return it, bring it to me and I
will give you a hundred dollars." Watkins also said that
4 The credibility of General Counsel's witnesses Puscus,
Boutelle, and Tallman is enhanced by the circumstance that they
appeared in response to subpenas without being interviewed by
General Counsel prior to the hearing Puscus and Boutelle, who
813
"he could if he so desired ... find out who sent these cards
in" or that he "could more than likely tell who had sent
these cards in."
As to union dues, Watkins stated that if the Union
obtained a sufficient number of authorization cards, he
would withhold 1 year's union dues of $60 or $65 in
advance, "in one week or in a pay check" and would then
turn over this sum to the Union if it won the election or
refund it to the employees if the Union lost it. (Union dues
were $1 a week.) Watkins pointed out that this sum, "the
equivalent" of two paid holidays, represented the cost of
each employee for representation by the Union.
Toward the end of his talk, Watkins told the employees
that if they "weren't satisfied with the conditions," they
were free to work at unionized plants, that there would be
"no hard feelings" if they left, and, indeed, that he would
help them obtain jobs at the unionized Harrington &
Richardson Company. He also stated that if they
"punched in" the next workday (Monday, August 15) "this
would show him" that the employees were satisfied and he
would take their decision to remain at Simplex as "a vote
of confidence." Watkins said, "So ... think it over and
come back, and if you decide that you want to work with
us, punch in Monday morning, and we will consider that
you are with us. If you don't want to and you decide you
don't want to, well then don't bother."
Watkins closed his speech by saying that he was
"sending" his foremen and supervisors outside on the
public sidewalk "so that they can apprise you of what your
rights are" (that is, that they did not have to take union
leaflets if they did not wish to), and to prevent any fights or
disorder.
About a week after his first speech, Watkins again
addressed the employees. He referred to "a
questionnaire" relating to his first talk prepared by the
Union and stated that his first speech was "off the cuff,"
that it "wasn't prepared," and that he wanted "to refresh"
the employees "on what he had actually said." Referring
to the matter of the $100 bet, he stated that "what he had
actually said was he'd bet a hundred dollars that no one
could get those cards back from" the Union. He denied
instructing his foremen "to go outside" the plant when
organizers were around, insisting that the supervisors
"had done that completely on their own." Finally, he
denied having said that "he could find out who had
signed" cards, claiming that he had only said that he
"could find out how many cards had been sent in."
2. Conclusions
The above findings as to Company President Watkins'
August 12 speech are predicated on the composite,
mutually corroborative, and uncontradicted testimony of
employees O'Malley, Puscus, Boutelle, and Tallman. The
findings as to the second speech are based on the
uncontradicted, credited testimony of O'Malley, the only
witness testifying thereon. Since Watkins did not appear
as a witness because of illness, I draw no adverse
inference from his failure to testify. However, Respondent
did not seek to rebut the testimony of General Counsel's
witnesses by that of others (including managerial
employees) who heard Watkins' remarks.4
are still employed by Respondent, were interviewed by and signed
prehearing statements for company counsel All three witnesses
testified outside each other's presence.
814 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In determining the question of whether the speeches
were coercive, I have considered the entire factual context
in which they were made, including Respondent's
ostensible hostility to the Union (as evidenced by the
speeches and other conduct discussed infra), the high-
ranking role of Watkins, and the reasonably inhibitory
effect of the statements upon the employees to whom the
speeches were directed. "Any determination of the exact
nature and effect of such statements can be made only
with due regard for the context of the statements, the
characters and economic positions of those who heard it,
and the relationships existing between a company and its
employees." N.L.R.B. v. Morris Fishman & Sons, Inc., 278
F.2d 792, 796 (C.A. 3). "The test is whether the employer
engaged in conduct which, it may reasonably be said,
tends to interfere with the free exercise of employee rights
under the Act." N.L.R.B. v. Illinois Tool Works, 153 F.2d
811, 814 (C.A. 7); N.L.R.B. v. Camco, Inc., 340 F.2d 803,
804 (C.A. 5).
Tested by these criteria, I find that although Watkins'
speeches were in certain respects within the permissible
bounds of employer communication to employees, they
included statements-some more subtly phrased than
others-which tended to generate fear among them as to
the consequences of exercising their lawful right to
organize, and otherwise tended to interfere with, restrain,
and coerce them in the exercise of that right. Amont these
were the following statements by Watkins:
(a) His statement that he had considered closing down
the plant for 2 days in order to afford the employees time
to "think about what was going on," thereby reminding
them of Respondent's potent control over their jobs. Cf.
N.L.R.B. v. Prince Macaroni Mfg. Co., supra, 329 F.2d 803,
805, 806 (C.A. 1).
(b) His suggestion to the men that if they were
dissatisfied with working conditions in the plant, to seek
employment elsewhere, and his offer to assist such
(dissatisfied) employees to obtain employment at a
unionized plant.
(c) His suggestion that employees working in a
unionized plant might have to live in a neighborhood with
Negroes-an attempted arousal of racial prejudice and
emotional threat of unacceptable working conditions. Cf.
General Steel Products, Inc., 157 NLRB 636, 639.
(d) His transparent suggestion that only such
employees as were ready to cast "a vote of confidence" for
the Company should punch in for work the following
Monday.
(e) His statement that he was aware or could ascertain
who it was who had sent in authorization cards, thereby
creating the impression among employees that their union
activities were under company surveillance.
(f) His statement that he was assigning supervisors to
witness distributions of union leaflets, thereby in effect
warning employees that union activities would be kept
, Watkins' further denial in the same (second) speech that he
had previously claimed knowledge as to who had signed cards
does not operate to dissipate the coercive effect of the earlier
statement which, I find, he actually made
"This circumstance alone seems to refute Respondent's
contention (br. pp. 49, 24) that Watkins statement was in fair
under Respondent 's close surveillance . I do not credit or
regard as legal justification for this measure, Respondent's
claim that the action was taken to prevent union
organizers from forcing leaflets on employees , to preserve
order, and to apprise employees of their statutory rights.
There is neither evidence nor suggestion of union disorder
or misconduct , or threat thereof, at any time prior to
Watkins' speech (August 12 ). Under the circumstances, I
find that Respondent 's object in stationing supervisors on
the sidewalk alongside union agents was to discourage
employees from accepting union literature and coerce
them not to do so. Nor do I regard as credible or
persuasive Watkins' labored denial in his later (second)
speech that he had previously directed the foremen to
station themselves outside, particularly since in this same
(second ) speech he also told them that the foremen had
done that "on their own" and, as will be shown, the
foremen in fact engaged in surveillance . Respondent is
liable for its supervisors ' illegal conduct even if they acted
contrary to express instructions. Solvay Process Company
v. N.L.R.B., 117 F.2d 83, 85 (C.A. 5).5
(g) His statement that if an election was scheduled he
would at once withhold $60 or $65-said to be a full year's
union dues-from each employee in a single pay period
and would then turn the money over to the Union if the
Union won or return it to the employees if the Union lost
the election . In the first place, the statement appears to be
a factual misrepresentation of the amount of the Union's
due ($1 per week ) and it falsely implies that a full year's
due accrue in advance . Secondly, the statement
constitutes a threat to withhold substantial earnings for an
indefinite period without any legal basis or justification.
Cf. Suburban Drugs, Inc., 138 NLRB 787, 793.6
(h) His statement that he would not put into effect any
new benefits , specifically a pension plan for production
employees , "under pressure from any outside
organization ," thereby conveying the futility and hazard of
self-organization, coupled with the implication that such
benefits were within the orbit of reasonable expectation if
the Union were rejected . The statement thus carried "the
suggestion of a fist inside the velvet glove. Employees are
not likely to miss the inference that the source of benefits
now conferred is also the source from which future
benefits must flow and which may dry up if it is not
obliged ." N.L.R.B. v. Exchange Parts Company , 375 U.S.
405, 409.
While it may well be that some of the statements and
conduct discussed would have been innocuous had they
been uttered separately in a context different from that
presented , grouped together and considered in the totality
of the actual situation involved , including Respondent's
deep-rooted antipathy toward the Union, they take a
different character . See Federal Envelope Company, 147
NLRB 1030 , 1040. I conclude that under all of the
circumstances Watkins' described statements tended to
and did coerce or inhibit Respondent's employees in the
reply to union propaganda that the Company had only four paid
holidays According to Respondent, Watkins' comment was
designed to demonstrate to employees that "the cost to each
employee of the Union's representation" was the "equivalent" of
more than two paid holidays Theie is no evidence that the Union
had misstated the number of paid holidays at the factory
SIMPLEX TIME RECORDER CO.
exercise of their Section 7 self'-organizational rights, in
violation of Section 8(a)(1) of the Act.'
B. Surveillance by Supervisors
1. Leaflet distributions
Respondent's plant operates one shift, 7 a.m. to 5 p.m.
It has five entrances, two (gates 1 and 2) on Lincoln Street,
two on Cross Street (gates 4 and 5), and one (gate 3) in the
rear, adjacent to a railroad. Union organizers
(International Representative Flynn and employees from
neighboring Harrington & Richardson Company in
Gardner) distributed leaflets at all gates on six occasions
(August 3, 4, 5, 16, 18, and 22) around the close of the shift
(5 p.m.) as employees were leaving, or before the start of
the shift (7 a.m.) as they were arriving to work. The first
three distributions (August 3, 4, and 5) were normal and
uneventful and the Union encountered no difficulties.
General Counsel contends that Respondent unlawfully
kept leaflet distributors under surveillance on August 16,
18, and 22,11 after Company President Watkins'
(August 12) speech in which he directed his foremen and
supervisors to station themselves on the sidewalk during
the distributions. As we shall see, on one of these
occasions (August 22) Respondent's agent took
photographs of the union organizers.
Although there is conflict as to details, the
uncontradicted evidence establishes that a substantial
number of Company supervisors were on the sidewalk,
observing distribution of leaflets on August 16, 18, and 22.
Among these were highly placed officials such as Plant
Manager Skamarycz, General Manager of the European
Common Market Division Nowlan, and Assistant
Superintendent of World Trade Division Spooner. General
Counsel witnesses credibly testified that company
supervisors were often as close as 2 to 3 feet to leaflet
distributors and that union agents were flanked or
"surrounded" by supervisors. 10 Company official Nowlan
admitted stationing himself near International
Representative Flynn for 10 to 15 minutes. Assistant
Superintendent Spooner admitted that he "stood up there
[at a gate] Just curious" for 5 minutes, observing who did
and who did not take leaflets. Blake, assistant foreman of
the Industrial Assembly Division, testified that he
remained around union men "to see what was going on."
International Representative Flynn credibly testified
that although the Union succeeded in distributing around
500 leaflets on each of its first three distributions
' As noted, much of Watkins' August 12 speech did not
impinge on employee rights Among the statements falling within
the ambit of protected free speech and legitimate argument were
Watkins' broad appeals to reject the Union, his characterization
of union organizers as Communists, his assertions that working
conditions at Simplex were better than at union plants, his
references to existing and past benefits , his emphasis on greater
job security at Respondent, and his request to employees not to
take union cards Contrary to General Counsel's contention,
Respondent's wager-Watkins' offer to "bet" anyone $100 that
he could not get his signed card back from the Union-constituted
privileged argument or persuasion, based on Watkins' expressed
conviction that the Union would hold the employee to his
signature Watkins' statement did not constitute a promise of
benefit in return for recovery of the card as claimed by General
Counsel, and, therefore, was not violative of Section 8(a)(1) of the
Act.
I The August 16 and 22 distributions were in the evening; the
August 18 distribution in the morning.
815
(August 3, 4, and 5), the number dropped to half on
August 16, to 400 on August 18, and even less (about 225)
on August 22.11 Flynn testified credibly that employees
"jumped back" and rejected leaflets upon noticing
company representatives nearby.
2. The Lepkowski-Kowlzan incident
In sharp dispute is the August 16 Lepkowski-Kowlzan
episode. Lepkowski testified that as he was passing out
leaflets at gate 2 (Lincoln Street), Company Officials
Kowlzan and Skamarycz were standing 2 feet on either
side of him. Kowlzan, personally acquainted with
Lepkowski (both bowled on the same team a year ago),
asked the latter if he was going to bowl this year.12
Lepkowski said he "probably would," adding, "what are
you doing here, watching to see who is going to take the
leaflets?" According to Lepkowski, Kowlzan replied, "you
bet your life I am." Batutis, distributing leaflets nearby,
corroborated Lepkowski.
Kowlzan conceded chatting with Lepkowski, but denied
admitting he was watching to see who had been taking
leaflets. He testified that on observing Lepkowski on the
sidewalk, he asked him, "what are you doing here";
Lepkowski replied he was getting paid for a "little job
here"; and he then talked about bowling. According to
Kowlzan, Plant Superintendent Skamarycz came by while
they were talking and asked Lepkowski, "what's in the
leaflets today."
Based on the entire record, including the mutually
corroborative testimony of Lepkowski and Batutis, the
fact that the incident followed on the heels of Company
President Watkins' August 12 announcement that he was
sending supervisors to observe the sidewalk distribution,
and the comparative demeanor of the witnesses, I credit
Lepkowski's testimony rather than Kowlzan's, whose
testimony as to whether there was a discussion about
leaflets is confusing. Thus, although at first asserting that
"we didn't even speak about the leaflets," Kowlzan later
admitted that Lepkowski "said something about" them,
but Kowlzan was "not sure what it was." No less confusing
is Skamarycz' testimony as to his participation in this
incident. Although on direct examination he had difficulty
recalling whether he ever saw Lepkowski prior to the
hearing, he clearly recalled asking him "what have we got
today" (in the leaflets) and Lepkowski answering, "I don't
know, I haven't read it myself." -On cross-examination he
testified, "I didn't see that gentlemen." Later he stated, "I
don't know whether he was there or not, but I did not see
" It is unessential to resolve conflicting testimony as to all
details, for example, whether the supervisors left the plant to
observe the distributors on a signal from the intercom system
("Mr Jones, dial operator") as General Counsel witness O'Malley
testified, or whether O'Malley was in a position to view the
sidewalk from a window near his workbench on the second floor.
"' The testimony is corroborated by photographs taken for the
Company, as shown below
" General Counsel attributes the 400-leaflet distribution of
August 18 to the circumstance that it was a morning distribution,
in part conducted before supervisors began arriving. Company
Official Nowlan testified that on one occasion (August 16 or 18) as
he was observing Flynn "very few [employees] were actually
accepting the leaflets "
i' Lepkowski testified that he also knew Skamarycz-"practi-
cally" all his life
816 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
him I never saw that face until yesterday.13 He also
denied ever seeing Batutis before the hearing.
3. The photographing of union organizers
At or around 5 p.m. on August 22, Bertram Gould, a
company employee who does photography as a "sideline,"
took at least six photographs of union agents distributing
leaflets. Gould testified credibly that at a company
retirement party before August 22, Company President
Watkins and Plant Superintendent Skamarycz told him
that since the Union had taken pictures of company
personnel they wanted him to take pictures of the union
representatives.14 The company officials told Gould to
"take pictures of these union individuals handing out this
literature." Six photographs taken by Gould (at three
different gates) in evidence depict supervisors near or
surrounding leaflet distributors. One shows six
supervisors standing close to a leaflet distributor. Another
shows a union representative surrounded by four
supervisors. No rank-and-file Simplex employees appear
on any photograph. Gould turned the pictures over to
Shamarycz.
4. Conclusions as to surveillance
The basic question as to whether Respondent engaged
in surveillance of union activities, in violation of Section
8(a)(1) of the Act, is factual. While General Counsel
contents that Respondent's supervisors were stationed on
the sidewalk to discourage employees from accepting
union leaflets, Respondent contends that its conduct was
motivated by its "basic responsibility to insure that order
was maintained ... or [by] ... natural curiosity, or ... the
desire to chat with a friend."
I find and conclude that the record amply establishes
General Counsel's contention that the handbilling
observations were motivated by a desire to impede or-
ganizational activity. In reaching this conclusion I rely par-
ticularly on the following circumstances: (a) Respondent's
strong antipathy toward the Union, as evidenced by its
President Watkins' August 12 speech in which, among
other things, he warned the employees and conveyed to
them the impression that distribution of union leaflets
would be kept under surveillance; (b) Company Official
Kowlzan's admission to Lepkowski (a leaflet distributor)
that he was watching to see who was accepting union
leaflets; (c) the fact that supervisors posted themselves
close to and alongside union agents, in some cases
surrounding them; (d) the photographing of leaflet
distributors; and (e) the insubstantiality of the reasons
advanced for the supervisors' observations of the
handbilling.
Although Plant Manager Skamarycz testified that he
went "around the factory to make sure that there was no
trouble" and Company Official Nowlan testified that he
decided "to go out and observe and to be seen" in order to
make certain that "the union members were conducting
themselves" properly and the employees' "rights" were
protected, there is (as previously noted) no evidence, nor
claim, of union disorder or misconduct to give rise to
Watkins' August 12 announcement that he was
'3 The above testimony is not only inconsistent with
Skamarycz' earlier testimony, but also with Kowlzan's who, as
noted, testified that Skamarycz spoke to Lepkowski
14 It was stipulated that if called as a witness , Pananos, the
Local's president at Harrington & Richardson Co , would testify
dispatching supervisors to the sidewalk for the purposes
indicated by Skamarycz and Nowlan. Furthermore,
Respondent cited only one specific incident "2 or 3 days"
before August 22 in which a union agent (Flynn) was
"attempting to force" literature upon employees in front of
the door as they were leaving with the union agent
instantaneously complying with Nowlan's request to step
away and off company property. Nor is the reason
advanced by company supervisors Blake and
Spooner-"individual curiosity"-any more persuasive.
For example, Blake conceded he was "perfectly aware of
what was going on," having admittedly witnessed
distributions before the incident involved. The impression
sought to be conveyed by Blake and Spooner, that they
were only casual and curious onlookers or bystanders,
would have been much more persuasive had Respondent
not harbored deep-seated hostility toward the Union.
Respondent further attempts to justify the
photographing of union leaflet distributors as "retaliation"
for the Union's photography of company supervisors. The
legality of Respondent's conduct must be tested under the
Act. While the Act does not proscribe a union from taking
pictures of company activity, it does proscribe employer
action which tends to interfere with, restrain, or coerce
employees' in the free exercise of rights protected by the
Act. This could and does include employer photography of
employees under the circumstances shown. As stated in
Tennessee Packers Inc., 124 NLRB 1117, 1123:
The taking of pictures by an employer ... known to
be adverse to the unionization of its employees ...
while the employees are] engaged in union
activities; to wit, receiving union literature from union
organizers , necessarily has a normal and natural
tendency to create fear and consternation in the ...
employee that the employer is recording, for some
present or future course of action involving him, an
act of that employee's which that employee knows to
be displeasing to the employer. Making such a
pictorial record of union activities is like open
survei lance in that the knowledge of its occurrence
among the employees necessarily tends to interfere,
[with], restrain, and coerce the employees into
abandoning their rights to engage therein as
guaranteed in Section 7 of the Act.
See also N.L.R.B. v. Associated Naval Architects, Inc., 355
F.2d 788, 791 (C.A. 4). This is not to say that an employer
is under all circumstances foreclosed from photographing
union activities. Thus, an employer may obtain pictorial
evidence of strike violence and mass picketing for
evidence in a legal proceeding. Star Ceramics, Inc., 155
NLRB 1258. Cf. Division 1142, Amalgamated Association
of Street, Electric Railway and Motor Coach Employees
(Continental Bus System, Inc.) v. N.L.R.B., 294 F.2d 264,
267-268 (C.A.D.C.). Respondent here has demonstrated
no need or justification for its action. The explanation of
Plant Manager Skamarycz that the photographing of union
agents was "jokingly" suggested by Company President
Watkins as an act of reciprocity is unconvincing.
Moreover there is no evidence that any reason for the
photographing was made known or-other than
that prior to August 22 he attempted to take unsuccessfully (due
to camera malfunction) a picture of Supervisor Nowlan and two
other supervisors approaching him on Lincoln Street from the
direction of the gate
SIMPLEX TIME RECORDER CO.
coercion-would be apparent to them. In this situation,
Respondent clearly ran "the risk that those subject to their
power might take [the photography] in earnest and
conclude the [action] to be coercive." A. P. Green Fire
Brick Company v. N.L.R.B., 326 F.2d 910,914 (C.A. 8).15
Accordingly, I conclude that Respondent's photography
of the union leaflet distributors, as well as the supervisors'
personal observations of the handbilling, constituted
violations of Section 8(a)(1) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent, in violation of Section 8(a)(1) of the Act,
interfered with, restrained, and coerced its employees in
the exercise of rights guaranteed in Section 7 of the Act by
the following statements, acts, and conduct: creating
among employees an atmosphere of the hazard and futility
of self-organization; suggesting that prounion employees
obtain employment in organized plants; implying that
entitlement to economic benefits and improved working
conditions turned on defeat of the Union; threatening
without justification to withhold substantial union dues in
advance from employees' earnings until the election was
held; warning and creating the impression of surveillance
of union activities; engaging in acts of surveillance through
personal observations of union activities and
photographing of union leaflet distributions.
4. The aforesaid violations are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that Respondent has engaged in unfair
labor practices, I shall recommend the cease-and-desist
order customary in cases of this nature. Contrary to
General Counsel's contention, I do not believe it necessary
in this case to recommend the extraordinary remedial
order found essential for effectuating the policies of the
Act in J. P. Stevens Co., Inc., 157 NLRB 869, including an
order directing the employer to give the union access to
plant bulletin boards, to mail copies of posted notices to
employees, and to convene employee meetings during
working time for the purpose of reading posted notices.
While Respondent's conduct operated to stifle and
frustrate union organizational activity, it was short of the
"massive and deliberate" unfair labor practices, including
wholesale discriminatory discharges, found in Stevens.
RECOMMENDED ORDER
Simplex Time Recorder Company, Gardner,
Massachusetts, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Creating among employees an atmosphere of the
futility of self-organization.
(b) Directly or impliedly warning or suggesting that
prounion employees leave its employ and obtain
employment in organized plants.
(c) Directly or impliedly warning or suggesting that
entitlement to economic benefits and improved working
conditions turns on defeat of union organizational drives.
(d) Threatening to withhold union dues from
817
employees' earnings until disposition of representation
proceedings or otherwise without legal right.
(e) Engaging in surveillance of union activities,
including handbilling, through personal observations or
photography.
(f) Conveying to employees the impression that union
activities are under surveillance.
(g) In any other like or related manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action, which it is
found will effectuate the policies of the Act:
(a) Post at its plant in Gardner, Massachusetts, copies
of the attached notice marked "Appendix."is Copies of
said notice, to be furnished by the Regional Director for
Region 1, after being duly signed by Respondent's
authorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify said Regional Director, in writing, within 20
days from receipt of this Decision, what steps have been
taken to comply herewith.17
15 The additional contention by Respondent that no employees
appear on the photographs , does not negate the otherwise
unlawful effect of its conduct The fact is that employees were
present during the handbilling . Fearful of reprisal , employees
would naturally tend to shy away or abstain from taking leaflets
within the area of a camera focus
'' In the event that this Recommended Order is adopted by the
Board, the words "a Decision and Order " shall be substituted for
the words "the Recommended Order of a Trial Examiner" in the
notice In the further event that the Board's Order is enforced by
a decree of a United States Court of Appeals, the words "a Decree
of the United States Court of Appeals Enforcing an Order" shall
be substituted for the words "a Decision and Order "
" In the event that this Recommended Order is adopted by the
Board, this provision shall be modified to read "Notify said
Regional Director, in writing , within 10 days from the date of this
Order, what steps Respondent has taken to comply herewith "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial
Examiner of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our
employees that:
WE WILL NOT by statements or otherwise create
among our employees an atmosphere of futility of self-
organization.
WE WILL NOT suggest or imply that prounion
employees leave our plant and obtain employment in
organized plants.
WE WILL NOT suggest or imply that entitlement to
economic benefits and improved working conditions
turns on defeat of organizational drives.
WE WILL NOT threaten to withhold union dues from
our employees ' earnings until after an election.
WE WILL NOT engage in surveillance of union
activities, including handbilling, through personal
818 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
observations or photographing of union leaflet
distributors; or convey to employees the impression
that union activities are under surveillance.
WE WILL NOT in like or related manner interfere
with, restrain, or coerce our employees in the exercise
of their rights under the Act.
SIMPLEX TIME RECORDER
COMPANY
(Employer)
Dated By
(Representative ) (Title)
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered, defaced,
or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions , they may communicate
directly with the Board's Regional Office, 20th Floor, John
F. Kennedy Federal Building, Cambridge & New Sudbury
Streets, Boston , Massachusetts 02203, Telephone
223-3300.