EMR Photoelectric

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1597 (N.L.R.B. 1980)

EMR PHOTOELECTRIC 15Q7
EMR Photoelectric, a Division of Sangamo Weston
Inc. and International Union of Electrical,
Radio & Machine Workers, AFL-CIO-CLC.
Case 22-CA-8121
August 27, 1980
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS
JENKINS AND TRUESDALE
On December 19, 1979, Administrative Law
Judge Sidney J. Barban issued the attached Deci-
sion in this proceeding. Thereafter, Respondent
filed exceptions and a supporting brief, and counsel
for the General Counsel filed an answering brief in
support of the Administrative Law Judge's Deci-
sion.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its 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 and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions of the Administrative Law
Judge and to adopt his recommended Order.
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 and
hereby orders that the Respondent, EMR Photo-
electric, a Division of Sangamo Weston Inc., Prin-
ceton Junction, New Jersey, its officers, agents,
successors, and assigns, shall take the action set
forth in the said recommended Order.
IT IS FURTHER ORDERED that the complaint alle-
gations not specifically found herein be, and they
hereby are, dismissed.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board's established policy not to
overrule an administrative law judge's resolutions with respect to credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products,
Inc.. 91 NLRB 544 (1950). enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
DECISION
STATEMENT OF THE CASE
SIDNEY J. BARBAN, Administrative Law Judge: This
matter was heard at Newark and West Windsor, New
Jersey, on June 27, 28, 29, and 30, and July 5, 6, 7, 12,
and 13, 1978, before Administrative Law Judge John F.
Corbley, who died before he was able to issue a decision
in this matter. The parties having consented to the ap-
251 NLRB No. 214
pointment of another administrative law judge to decide
the issues and issue a written decision in this case, this
matter was assigned to me by an order of the Chief Ad-
ministrative Law Judge.'
The complaint in this matter, issued on February 3,
1978, as amended at the hearing, based on charges filed
on December 22, 1977 (all dates hereinafter, unless other-
wise noted, are in 1977), by the above-named Charging
Party (herein the Union), alleges that Respondent has
violated Section 8(a)(1) of the National Labor Relations
Act, as amended (herein the Act), by threatening its em-
ployees with plant closure, job loss, and other economic
reprisals if the employees became or remained members
of the Union, or gave it support or assistance: and by
promising employees improvements in their terms and
conditions of employment and soliciting employee griev-
ances, implying that Respondent would correct such
grievances in order to discourage employees from be-
coming or remaining members of the Union, or giving
support or assistance to it; and by interrogating employ-
ees concerning their membership in and activities on
behalf of the Union; and has violated Section 8(a)(5) and
(1) of the Act by refusing to recognize and bargain col-
lectively with the Union as the exclusive collective-bar-
gaining representative of its employees in an appropriate
bargaining unit. Respondent's answer denies the commis-
sion of the unfair labor practices alleged, and asserts cer-
tain affirmative defenses which will be considered here-
inafter.
From the entire record in this case,2 and after due
consideration of the briefs filed by the General Counsel
and Respondent, I make the following:
FINDINGS AND CONCLUSIONS
I. JURISI)ICTION
EMR Photoelectric, a Division of Sangamo Weston
Inc., Respondent herein, engaged at a plant located at
Princeton Junction, New Jersey (herein sometimes re-
ferred to as the plant), in the manufacture, sale, and dis-
tribution of photoelectric devices and related products,
during a recent representative annual period, manufac-
tured, sold, and distributed from that plant products of a
value in excess of $50,000 in interstate commerce directly
to States of the United States other than the State of
New Jersey. 3
' For easy reference, I have included on the record the follov ing
papers marked as ALJ exhibits: (I) letter from Chief Administrative Las
Judge Kessel, dated December 8, 1978, advising the parties of the death
of Administrative Lavw Judge Corbley and offering alternatlve sugges-
tions for resolving the matter, as ALJ Exh I1 (2) Respondent's counsel's
letter, dated January 8, 1979. consenting to the assignment of this case to
another administrative law judge, as ALJ Exh 2 (3) the General Coun-
sel's letter (also speaking for the Charging Party) dated January 1, 1979,
consenting to the reassignment of this matter, as A.J [xh 3; (4) Chief
Administrative Las Judge Kessel's order reassigning this matter. as ALJ
Exh 4
2 Errors in the transcript are hereby noted and corrected
a The parent of Sangamo Weston Inc and, of course, Respondent and
10 other companies and operations (some of hich vrc referred to In
Respondent's campaign against the Union) is adv.erted Io n arious
places in the record as Schlumberger
EMR PHOTOELECTRIC I 9
1598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I find that Respondent is and has been at all times ma-
terial herein an employer engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
On the basis of the record as a whole, which shows
that the Union is an organization in which employees
participate and which exists for the purpose of dealing
with employers concerning wages, rates of pay, hours of
employment, and conditions of work, I find that the
Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
11. INTRODUCTION AND BACKGROUND
A. Summary of Facts and Issues
I. The union cards
In late April or early May 1977, a group of Respond-
ent's employees, apparently dissatisfied with their work-
ing conditions, were seeking union representation. A
leader of the group was employee E. Lee Buchanan. The
employees had met with and were considering a Team-
sters local. Thereafter Buchanan and another employee
approached Arnold Bernardini, an International repre-
sentative of the Union, to meet with the employees. (Ber-
nardini was not informed of the employees' contact with
the Teamsters.) Bernardini and Union Representative
William Eberhardt met with approximately 30-40 em-
ployees on May I , at a nearby Howard Johnson motel.
The meeting was conducted at the outset by Buchanan
because, as he explained it at the hearing, "before we ac-
tually . . . hired the IUE, and . . . had the IUE as our
representative . . . we were actually interviewing the
IUE, so to speak, because we were considering the
Teamsters as well as the IUE to represent us."
After Bernardini spoke to the group, Buchanan asked
him and Eberhardt to step out of the room while the em-
ployees decided what they wanted to do. After the union
representatives left, the employees voted unanimously in
favor of the Union, and the representatives were brought
back into the room to the accompaniment of enthusiastic
handclapping. Bernardini at this point informed the em-
ployees of the necessity to execute authorization cards
for the Union in order that the Union might be able to
represent them. At least 25 employees signed cards that
evening authorizing the Union to act as their representa-
tive. Others were signed thereafter.
Respondent contends that none of the cards signed by
employees at the meeting at Howard Johnson's should be
counted because, based on testimony elicited on cross-ex-
amination from some employee witnesses, Bernardini as-
sertedly told the employees before they signed the cards
that tne authorization cards would be used only to
secure an election and also that employees signing such
cards before an election was held would not have to pay
an initiation fee, whereas those who signed thereafter
would have to pay such fee. As discussed in more detail
hereinafter, this testimony is disputed by Bernardini,
Eberhardt, and by the testimony of some employees.
Respondent also apparently contends (the facts are
barely mentioned in the brief) that the cards are also
tainted because Ronald Klukososki, who Respondent
claims was a supervisor, urged some employees to attend
this meeting, and attended it himself, as did John Halay-
cio and Steve Levandowski, who Respondent asserts are
also supervisors. 4 These and other issues referred to
below will be considered in more detail hereinafter.
2. The requests for recognition and the petition for
election
On May 18, Bernardini wrote to Dr. Martin Rome,
vice president and general manager of Respondent, re-
questing recognition of the Union as the bargaining rep-
resentative of Respondent's employees in a bargaining
unit of production, technical, and maintenance employ-
ees. On the same day, the Union filed a petition with the
Regional Office of the National Labor Relations Board
(herein sometimes referred to separately as the Regional
Office and the Board) for certification as bargaining rep-
resentative, docketed as Case 22-RC-7165 (referred to
herein as the representation case).
On or about June 6, at the urging of Bernardini, Bu-
chanan drafted a petition to be given to Dr. Rome re-
questing Respondent "to willingly recognize the IUE as
our sole bargaining agent in all matters pertaining to
wages, hours, benefits and working conditions." The pe-
tition was signed by 46 employees, including Klukososki
and Halaycio. Respondent attacks the petition principally
on the ground that, since Klukososki and Halaycio
signed the document, all employees who signed thereaf-
ter and noted their names must be considered unduly in-
fluenced.
3. The campaign against the Union
Beginning about May 19, Respondent embarked on a
campaign to counter the Union's organization drive. At
some point an outside management consultant was
brought in to assist. A substantial part of Respondent's
campaign opposing the Union took the form of letters to
the employees from Respondent Vice President Rome,
some with newspaper clippings emphasizing strikes, vio-
lence accompanying strikes, plant closing because of
strikes, and similar activity linked to union organization
and representation of employees. In some instances su-
pervisors were instructed to read these items to employ-
ees and discuss such items with them. During much of
this period, Jimmy Lee, an executive vice president of
Sangamo Weston in charge of "the EMR group," of
which Respondent is one, made several visits to the plant
and joined in the campaign against the Union. The Gen-
eral Counsel asserts that some of Rome's letters and
some of the activities of Lee and Klukososki and Super-
visor Tony Autera violated the Act. Respondent, as has
been noted, denied this.
I However, Respondent's primary position seems to be that Klukososki
was not a supervisor during the material times and that therefore Re-
spondent was not responsible for his actions. The General Counsel con-
tends that the evidence shows that Klukososki was not made a supervisor
before June 10, and that he thereafter engaged in unfair labor practices
on instructions from Respondent. The General Counsel argues that at
most Klukososki, Halaycio, and Levandowski were low-level supervisors
who played no part in the Union's obtaining the cards and did not
engage in conduct invalidating the cards.
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EMR PHOTOELECTRIC 1599
4. The election
Respondent and the Union met at the Regional Office
on June 9, and agreed to a Stipulation of Certification
Upon Consent Election in Case 22-RC-7165. At the
same time, apparently at Respondent's insistence, the
Union and Respondent stipulated in writing that Kluko-
soski and Halaycio had authority which under the Act
made them supervisors, and agreed that as supervisors
they were not eligible to vote. Klukososki testified that
prior to that time he had not been informed that he was
a supervisor.
Pursuant to the parties' agreement in the representa-
tion case, the Regional Office conducted an election in
the agreed appropriate unit. Of approximately 46 eligible
voters, 31 voted against the Union and 13 voted in favor
of representation by the Union. The Union filed timely
objections to the election. On October 28, the Regional
Director issued his Report on Objections, finding, based
on the investigation of the objections, that some of the
objections had merit, and recommending that the elec-
tion be set aside and a new election be directed.5 Re-
spondent appealed these findings and recommendations
to the Board. On January 27, 1978, the Board issued a
Decision and Direction of Second Election in Case 22-
RC-7165, accepting the Regional Director's findings and
recommendations, noting that the objections found to
have merit by the Regional Director "reasonably tended
to interfere with the employees' freedom of choice in the
election." According to the General Counsel's brief,
"Upon issuance of the . . . complaint [in this matter]
seeking a bargaining order remedy, the Regional Direc-
tor dismissed the petition in the representation case."
5. Other issues
i. Respondent argues that, since the conduct alleged as
unfair labor practices herein includes conduct which the
Regional Director and the Board found to support the
Union's objections to the election, "the Board cannot
give EMR a fair hearing because it already has pre-
viewed and considered the facts the IUE presented to it
ex parte without benefit of such fundamental safeguards
for truth as the cross-examination of witnesses at a hear-
ing."
2. In a somewhat related position, Respondent con-
tends that the Union and the General Counsel are es-
topped from seeking a bargaining order in this case be-
cause "the IUE's conduct in waiting until the Regional
Director recommended a second election before it filed
The Regional Director based his findings on written materials issued
by Respondent and admissions in affidavits of supervisors and representa-
tives proffered by Respondent in holding that the following objections to
the election made by the Union should be sustained: (I) that Respondent
made promises of benefits to discourage employee support for the Union;
(2) that Respondent interfered with the employees' free choice by im-
proper interrogation and solicitation of grievances; and (3) that Respond-
ent's preelection campaign, viewed in its totality, conveyed to the em-
ployees the inevitability of a strike, violence, loss of jobs, and possible
disruption of family life, and created an atmosphere of fear which inter-
fered with the employees' free choice in the election. The Regional Di-
rector made no finding on the Union's claim that certain supervisors and
representatives threatened employees with plant closure and plant reloca-
tion because the evidence supplied by the Union in support thereof was
denied in loto by the supervisors and representatives involved.
its 8(a)(5) charges, and the General Counsel's waiting
until the Board directed a second election before issuing
a complaint based on that charge, served to deprive
EMR of a hearing on the IUE's election objections
3. Respondent also contends that the Union should be
disqualified because it engaged in conduct which Re-
spondent asserts violated the Act. This will be consid-
ered in more detail hereinafter. 6
4. The General Counsel contends that the Union rep-
resented a majority of Respondent's employees in an ap-
propriate unit by June 22 and thereafter that Respondent
refused to bargain with the Union for that unit, and, by
its conduct, has made a fair and free election impossible
or unlikely of attainment. The General Counsel therefore
seeks an order requiring Respondent to bargain with the
Union. Respondent asserts that, since the Union was
never properly designated by a majority of employees in
the unit, Respondent was justified in refusing to deal
with it and, for that reason and various other reasons
which have been noted no bargaining remedy should be
given here.
B. The Due Process Issues
As has been noted, contrary to Respondent's claim
that the Board's Decision on the objections to the elec-
tion was based on "the facts the IUE presented to it ex
parte without the benefit of. . . a hearing," the Board's
Decision, affirming the decision of the Regional Direc-
tor, in fact, was based on Respondent's own written ma-
terial and the admissions of its own witnesses. In such
case no hearing was required and Respondent had ade-
quate opportunity to demonstrate to the Board that the
Regional Director had committed error in treating this
evidence as he did.
In any event the issues in this case will be decided
upon the evidence in this case, in which Respondent par-
ticipated fully and had ample opportunity to cross-exam-
ine witnesses and present evidence on Respondent's
behalf. At the hearing it was suggested that the Adminis-
trative Law Judge might be unduly influenced by the
Board's Decision in the representation case. Except to
the extent it disposes of the issues in the representation
proceeding itself, that Decision, in the circumstances of
this case, is not binding upon me. The representation
case was decided under different standards, upon differ-
ent evidence (inasmuch as it was decided in considerable
part upon affidavits, and apparently in reliance, in part,
upon witnesses who did not appear before me), 7 and in-
volved different issues. See, e.g., Helena Laboratories
I Respondent filed a charge on December 22, docketed as Case 22-
CB-3735. alleging that the Union had engaged in conduct violative of
Sec. 8(bXIXA) of the Act. After investigation, the Regional Director, by
letter dated January 27. 1978, advised Respondent that he found merit in
some of the charges, but was dismissing other charges made. Respondent
appealed the partial dismissal to the General Counsel. This appeal was
denied on March 7, 1978. The remaining charges were the subject of a
settlement agreement between the Regional Office and the Union, con-
taining a nonadmission clause. Respondent refused to join the settlement
7 See, e.g., reference in the Regional Director's Report on Objections
to Engineering Manager Frank Messina who was not involved in the
present proceeding.
EMR PHOTOELECTRIC l5
1600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, 225 NLRB 257 (1976), where the Board
held that its findings and conclusions as to objections in a
representation case are not binding upon the administra-
tive law judge where the same conduct is alleged as
unfair labor practices, "since the issues are different in
the two types of proceedings." In the circumstances I
also reject the suggestion that, because the two cases
arise out of the same situation, the results must necessar-
ily be consistent. See N.L.R.B. v. Deena Artware, Inc.,
198 F.2d 645 (6th Cir. 1952).
C. Issues as to Supervisory Authority and Agency
In its answer to the complaint, as amended at the hear-
ing, Respondent admitted that Executive Vice President
Lee and Tube Production Manager Autera were supervi-
sors within the meaning of the Act (Autera until January
1978 only), but denied that they were agents of Respond-
ent. Respondent's position as to Vice President and Gen-
eral Manager Rome is not quite clear on the record, but
Respondent's counsel indicated that he was unwilling to
admit that management officials generally were agents.
Respondent denied that Klukososki was either a supervi-
sor or an agent of Respondent. In its brief Respondent
argues only the authority of Klukososki.
The record makes clear that General Manager Rome
is normally the chief management official at the plant
and its chief operating officer. Rome consistently
throughout the preelection period expressed to the em-
ployees Respondent's opposition to the Union and the ar-
guments why they should not join or support the Union.
The employees were clearly justified in believing that
Rome was authorized to speak for management on these
issues. The same conclusions apply to Lee, who was ex-
ecutive vice president of Sangamo Weston, of which Re-
spondent is a division. Lee was introduced to the em-
ployees at group meetings by Rome, and, after telling the
employees that he had come to the plant to support man-
agement in its campaign, engaged in conduct consistent
with that of Rome, as discussed infra.
Autera, in addition to being an admitted supervisor, is
shown to have been instructed by Respondent's manage-
ment, in management meetings, to speak to the employ-
ees concerning Respondent's opposition to their selection
of the Union as their representative and was furnished
materials to use for this purpose. Autera's activities in
opposition to the Union are discussed hereinafter.
Based upon these findings, and the entire record, it is
found that Lee, Rome, and Autera were supervisors or
management officials of Respondent and agents of Re-
spondent in the campaign against the Union discussed
below.
Prior to June 9, neither Klukososki nor the employees
were informed that Klukososki was anything other than
a nonsupervisory leadman. 8 On June 9, the Union and
Respondent met at the Regional Office where, in addi-
tion to executing a Stipulation for Certification Upon
Consent Election in the representation case, Respond-
8 Rome indicated, in testifying concerning employee Jantz' recent pro-
motion to leadman, that he did not consider the position to be supervi-
sory
ent's counsel and the union representative signed the fol-
lowing stipulation:
The undersigned hereby stipulate and agree as
follows:
1. Ronald Klukososki has, in the interest of
EMR, the authority to interview job applicants, to
reject those job applicants he deems unqualified, to
hire employees and to effectively recommend the
hiring of employees, to orally reprimand employees
and to reprimand employees in writing, to evaluate
employees' job performance and effectively recom-
mend whether employees receive wage increases or
not, to authorize employees to work overtime, to
assign employees work, to grant employees time off
from work and to direct employees in the perform-
ance of their job tasks. Furthermore, Mr. Kluko-
soski has exercised such authority by using his own
independent judgment.
2. John Halaycio has, in the interest of EMR, the
authority to interview job applicants, to reject those
applicants he deems unqualified, to effectively rec-
ommend the hiring of employees, to effectively rec-
ommend the discharge of those employees, to orally
reprimand employees, to evaluate employees' job
performance, and effectively recommend denial of a
wage increase, to authorize employees to work
overtime, to assign employees work, to grant em-
ployees time off from work and to direct employees
in the performance of their job tasks. Furthermore,
Mr. Halaycio has exercised such authority by use of
his own independent judgment.
3. It is therefore, Stipulated and agreed that
Ronald Klukososki and John Halaycio are supervi-
sors within the meaning of Section 2(11) of the Act
and not eligible to vote in any National Labor Rela-
tions Board election conducted pursuant to this pro-
ceeding. This agreement shall be final and binding
upon the undersigned in accordance with the deci-
sion of the Board in Norris-Thermador Corp., 119
NLRB 1301.
Klukososki testified that he was not advised that he
was a supervisor until June 10. Shortly thereafter, as em-
ployee Ann Jolly testified, Klukososki spoke to Jolly and
employee Jessie Fischer, saying that he had been the one
who had talked them into joining the Union, and asked if
there was any way he could now change their minds.
When Jolly asked why he had changed his mind about
the Union, Klukososki replied that he had "no choice
now I am considered a supervisor."9 Klukososki de-
scribed his position after June 10 as "Leadman-Supervi-
sor." Notwithstanding Klukososki's assertion that his
duties did not change with his change in title, and Re-
spondent's arguments in its brief that Respondent should
not be held responsible for Klukososki's antiunion con-
duct because he was not a supervisor, contrary to its ex-
9 Klukoski does not controvert this testimony. He recalled telling Jolly
and Fischer about this time that he was now trying to talk them out of
the Union. He says that in the same conversation he told Jolly and Fisch-
er that he had discussed with higher management their particular prob-
lems.
EMR PHOTOELECTRIC 1601
plicit stipulation in the representation case,' 0 the evi-
dence is convincing that after June 10, for the purpose of
its campaign against the Union, Respondent treated Klu-
kososki as a supervisor within the meaning of the Act.
Thus Respondent included Klukososki in management
meetings in which Respondent's campaign to defeat the
Union was discussed, and he was given documents to
hand out and discuss with the employees and advised
what management wanted him to say.' He was told by
management during these meetings that he could take
employees from work and discuss these matters with em-
ployees during their working hours and did so. Kluko-
soski, significantly, says that he was instructed not to
make any promises or threats to the employees or make
inquiries concerning the employees' union activities.
Such instructions would have been unnecessary-and
were unlikely to have been given-if Respondent had
not considered Klukososki a supervisor or an agent. In
fact, at one point, Respondent took the position at the
hearing in this matter that, at most, Klukososki was a
low-level supervisor.
On the basis of the above, and the record as a whole,
it is clear and I find that neither Klukososki nor the em-
ployees were aware, prior to June 10, that Klukososki
was a supervisor. His testimony was that his activities
with respect to the employees' working conditions and
tenure of employment were specifically directed by his
supervisor, or were the result of practice and custom not
requiring independent judgment. In the circumstances I
find that prior to June 10 Klukososki was not a supervi-
sor within the meaning of the Act, notwithstanding Re-
spondent's stipulation apparently to the contrary in the
representation case.
I find it unnecessary to pass upon whether Klukososki
was a supervisor within the meaning of the Act after
June 10. As set forth above, and as the record clearly
shows, Respondent made him an agent for the purpose
of carrying Respondent's antiunion campaign to the em-
ployees, and the employees were justified, in the circum-
stances, in considering that Klukososki was speaking for
management in campaigning against the Union. At the
meeting on the representation case in which Respondent
took the position that Klukososki was a supervisor and
ineligible to vote, there were two employees in attend-
ance, and Respondent's position assuredly became known
to the employees generally. Klukososki reinforced this
by explaining his complete turnabout of position with re-
'o Respondent argues that the stipulation in the representation case is
not binding on me as to Klukososki's status in this proceeding. citing
Shelly & Anderson Furniture Mfg. Co.. Inc., 199 NLRB 250 (1972) This is
clearly so insofar as this case does not involve eligibility to ote Cf Pl-
grim Foods. Inc.. 234 NLRB 136 (197R). However the stipulation was re-
ceived in evidence without objection in this case and will he treated as
substantive evidence here As to Klukososki, in this case, indeed. it ma5
be treated as an admission against interest, at least as to Klukososki's
status after June 9
"x Klukososki agreed that it was made clear to him in hose manage-
ment meetings that it was Respondent's desire that he "sit down and talk
with employees about those things in the handouts," and that the things
which should be emphasized were the notations made by managemeitn in
the margin of certain of the documents In the circumstances I do nt
credit Klukososki's assertion that he does tiot recall whether he discussed
those notations with employees Hie admits that employees came to him
to question him and discuss sarious letters issued to them by Rome
spect to the Union on the basis that he was now consid-
ered a supervisor, and thus supported management's po-
sition against the Union. Further, his activities thereafter
were consistent with that of other management officials
and supervisors. Even in his position as leadman his
duties included acting as a channel of communication to
the employees of instructions from management as to the
employees' working conditions. Where, as here, Re-
spondent chooses a worker, or supervisor, as its agent to
communicate its antiunion position to the employees, and
places him in a position identifying him with manage-
ment so that the employees would reasonably understand
that he speaks for management, Respondent may not
escape responsibility for his conduct in carrying out its
antiunion campaign. See, e.g., Hanover Concrete Co., 241
NLRB 936 (1979). As has been noted Respondent also
asserts that John Halaycio and Steve Levandowski, who
attended the union meeting on May 11 (at which many
union cards were signed) were also supervisors. Neither
of these two testified. Other than the stipulation executed
by Respondent's counsel in the representation case, there
is little evidence in the present matter as to the duties or
position of Halaycio. Rome testified that Halaycio, as su-
pervisor in quality control, "runs" the calibration and
repair laboratory, and that his duties have not been
changed since May 1, 1975. It was also stipulated that his
wage rate, like that of Klukososki, is less than a number
of employees who were eligible to vote in the represen-
tation election. It is assumed therefore (though Respond-
ent does not so state) that in this instance Respondent
relies on the stipulation as to supervisory status in the
representation case. However, as I have indicated, I have
little confidence in the reliability of that stipulation. The
General Counsel was not a party to the stipulation and,
in this instance, the stipulation would not be an admis-
sion against interest. The stipulation, therefore, is entitled
to very little weight. In the circumstances I would infer
that, if Halaycio were a supervisor at all, he was a very
low-level supervisor.
Levandowski is a master mechanic whom Rome de-
scribed as the maintenance supervisor. Levandowski ap-
parently does most of the skilled maintenance and repair
functions himself (Rome testified that Levandowski "as-
signs" the carpentry, electrical, and plumbing work to
himself). At present Levandowski supervises two em-
ployees, according to Rome. Previously he also super-
vised janitors, among whom it appears there was consid-
erable turnover in personnel. Levandowski, Rome stated,
recommended the hiring of janitors and their dismissal to
the personnel office which generally followed his recom-
mendations. Rome testified that Levandowski assigns, di-
rects, and inspects work, can put written disciplinary
memos in personnel files, and has certain authority in ap-
proving overtime, vacations, limited authority to grant
excused absences, and determines work schedules in ac-
cordance with Respondent's general plan. None of the
witnesses at the hearing appears to have worked for him
or with him, and made no mention of him in their testi-
mony except to agree that he attended the May 11 meet-
ing. His rate of pay was less than many of the eligible
employees. His name also appears on the Excelsior list of
EMR~~ ~ PHOTOELECTRIC l6
1602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees eligible to vote in the election which was pre-
pared by Respondent. The record provides a meager and
rather unsatisfactory basis for a serious determination as
to whether Levandowski was a statutory supervisor. On
the whole the evidence is as consistent with his being a
skilled journeyman craftsman (albeit of several trades) in
relation to a few, mostly nonpermanent subordinates, as
it is with his being a supervisor within the meaning of
the Act. As with Halaycio, the record indicates, and I
find, that at the most he was a low-level supervisor.
III. RESPONDENT'S ALLEGED VIOLATIONS OF THE
ACT
The principal themes of Respondent's opposition to
the selection of the Union as the employees' bargaining
representative are set forth in 15 letters addressed to the
employees by Respondent Vice President Rome from
May 19, 1977, to August 3, 1977,12 as supplemented by
the outline of a speech given by Sangamo Weston Ex-
ecutive Vice President Lee on August 3, and conversa-
tions by Lee, Klukososki, and Autera with various em-
ployees and groups of employees. These letters, the
speech, and conversations made the following significant
points: That if the employees selected the Union as their
bargaining representative: (1) the employees would
become involved in a bargaining procedure which could
be expected to be a long drawnout process; (2) during
this process, employee wage and benefits could not be
changed and employees could lose at the bargaining
table benefits that they already had; (3) because of Re-
spondent's resistance, assertedly in "good faith," to union
demands, the Union would have only two choices, either
to drop its demands (and therefore give in to Respond-
ent) or to call a strike. In a number of the letters, and in
the speech to and in conversations with employees, and
by distribution and reading of numerous newspaper clip-
pings, Respondent emphasized to the employees strikes
which had occurred at other plants, some of them
"sister" plants of Respondent, violence reported at such
plants, and plant closings because of strikes, as well as
the fact that the employees could lose their jobs because
of such strikes. In addition, Respondent advised the em-
ployees of sharp decreases in the number of employees
employed at allied plants since they were organized by
unions. Management and supervisors alluded to their
concern that upon union organization of Respondent's
plant it would close or move. Concurrent with these as-
sertions of the difficulties attendant upon union represen-
tation, Respondent also advised the employees that Re-
spondent (by discussions with the employees) was aware
of the problems which had induced the employees to
seek out the Union, and while, because of the law, Re-
spondent could not promise anything, Respondent would
in the future make decisions in the best interests of the
employees, if the employees would just trust Respondent
and give it the opportunity.
12 The parties seem agreed that under Sec. 10(b) of the Act conduct of
Respondent occurring prior to June 22, 1977, may not be found violative
of the Act. Events occurring prior to that date, therefore, will be consid-
ered only as background insofar as they shed light upon and give mean-
ing to events occurring after that time.
A. Alleged Threats of Harm
Beginning with his first letter to the employees, dated
May 19, acknowledging the filing of the Union's petition
in the representation case, Rome stated that he "wanted"
to make our position in this matter absolutely clear to
everyone. We do not feel that it is in the best interest of
any of our employees to bring an outsider like the IUE
into our Company. We are convinced that this Union
with its record of strikes and violence has absolutely
nothing to offer employees or the Company."
Thereafter this theme was developed as follows:
1. The written material; statements by Autera and
Klukososki
On June 8, in a letter acknowledging receipt of the pe-
tition signed by the employees asking recognition of the
Union, Rome stated, inter alia:
Unions are not new to the company. Many of us
remember our sister company, GSI, just a few miles
from here. 13
We know that unions often bring with them
strikes, picket lines, bickering and hostility among
employees. Most of you are also aware of the situa-
tion at Yates Industries in Bordertown and The
Kramer Trenton Company where the IUE has
taken those employees out on bitter strikes. All of
this HURTS production, HURTS sales, HURTS
the plant and thereby HURTS employees. These
strikes could be disastrous and threaten the job se-
curity of everyone concerned!
On June 22, Rome had Respondent's supervisors dis-
tribute or show and discuss the following letter with the
employees (attached were 10 pages of newspaper clip-
pings concerning strikes, underlined to emphasize strike
hardships and losses, violence, and lack of success in bar-
gaining):14
Some people have suggested to you that the
union will be a solution to your problems. But ask
yourself this question: can the union guarantee you
a job and a steady paycheck? I believe just the op-
posite could be true.
When a union gets into a plant, it frequently feels
it has to prove something. If the company resists in
good faith, then the union may try to impose its dic-
tates by calling you out on strike.
In the event of a strike here, can the union guar-
antee our customers won't take their business some-
where else? Can the union guarantee that all em-
ployees will have a job after a strike is over? Re-
member: our only job security is our ability to com-
pete and to deliver. If we don't get our customers'
13 As explained to the employees by Lee (G.C. Exh. 8P), "C.S.I. had
its problems with the IUE in the 60's. The Union called a strike which
went on for about two months-and the company closed." (Emphasis
supplied.)
14 One item particularly noted was the following: "According to [the]
shop chairman [of the Union], the company 'made us one offer and told us to
take it or leave it. We didn't even get to say what we wanted."'
EMR PHOTOELECTRIC 1603
orders or annot fill them, then none of us will have
job security.
I have obtained some newspaper articles on just a
few of the strikes the IUE has called in the last few
years. Your supervisor has copies of these articles-
ask to see them for yourself.
Here are just a few quotes from these newspaper
articles.
Fedders Corporation:
"Overall, about 800 workers and their families
went on welfare."
"There were workers who lost their homes, had
cars and furniture repossessed and otherwise suf-
fered financial setbacks, many of which were family
disasters.
"The Fedders strike has been a shattering
event." 5
Brevel Motors:
"Never have we had such a venomous strike."
"More than 300 workers have been laid off in the
last year."
U.S. Bronze:
"The strike is over wages, fringe benefits and
cost-of-living increases."
"Some of the strikers are working elsewhere now
but it is not known for how many this is temporary
and how many have decided to quit U.S. Bronze."
Thomas Electric Co.:
"During the strike, five employees have been
fired for allegedly committing unlawful acts on the
picket line."
These are not threats. These are facts!
Will bringing a union into our plant at this time
result in a strike? I honestly don't know. It depends
largely on the union. But I believe the union's strike
history speaks for itself.
Think it over. The decision you make on August
5 will be most important.
On June 22, or shortly thereafter, Production Manager
Autera met with small groups of employees in his office,
where he read from Rome's letter of that date, and the
attachments, apparently emphasizing the materials under-
lined. The employees were also given the material to
read. There is no dispute, apparently, that Autera, in the
course of discussing the likelihood that a strike would
follow unionization,' 6 told the employees that he was
concerned that rocks would be thrown at his new car
and it would be damaged, and that he was also afraid for
the safety of relatives who were coming to visit him,
saying that Union Representative Bernardini was not the
"nice guy" the employees thought, that he had been
'5 One of the items emphasized in the attached newspaper clipping
concerning Fedders was the following: "And now that the strike is over
not all of the workers are assured of getting their jobs back because of oper-
ational changes by the Company"
la One witness recalled that Autera said. "When you have unions, you
have strikes."
known to throw a few bombs. The General Counsel's
witness Jolly also recalled that Autera said that, as a
result of strikes, "a lot of times the companies just take
off and move out," and that he didn't want to move to
Texas [Respondent was known to have a plant in Texas],
that "he liked living in New Jersey." Employee Jessie
Fischer, who was in the group with Jolly, corroborated
this testimony, recalling that Autera said that, if the
Union came in, Respondent "might very well have to
move to Texas," and that he did not "relish" the thought
of leaving New Jersey. Another employee in the group,
Joan Briscoe, who asserted that her attention was dis-
tracted during Autera's talk, also testified, when asked if
Autera said the plant was going to close, that "[h]e did
not say it that way, no, he did not." This qualified nega-
tive was not otherwise explored.
Another witness, Dennis Poe, was in a second group
of employees with whom Autera discussed Rome's letter.
He recalled the discussion about unions, strikes, and vio-
lence in connection with the newspaper clippings, and
Autera's expressed concern for his family and his car, as
well as Autera's comment that Bernardini had been
known to have thrown some bombs, "or something like
that." He also recalled, on cross-examination, that Autera
said the plant could (as opposed to "would") close if the
Union got in and that his car could (as opposed to
"would") be damaged if the Union got in. Respondent
called as witnesses two other employees, Charles Osborn
and Donald Stoop, who were part of this second group
in Autera's office. No questions about the meeting were
asked of Osborn. Stoop recalled Autera handing out lit-
erature in reference to strikes and violence, and Autera's
expressions of concern about his family and his car, but
did not recall Autera saying anything about Bernardini.
He denied that Autera said anything about a strike if the
Union got in, 17 or about closing the plant. 8
Autera admits that, in both groups, he read and dis-
tributed the materials from Rome dated June 22, that he
expressed concern for the safety of his new car and for
his family who were coming to visit, if the Union got in
and engaged in violence such as that set forth in the
newspaper clippings, and that he told the employees he
had heard that Bernardini had been arrested for throw-
ing a bomb. However, Autera denied saying anything
about closing the plant, or about the plant moving to
Texas, or anything of that sort.
Upon consideration of the record as a whole, I credit
the testimony of Jolly, as corroborated by Fischer and
Poe, set forth above, that Autera told the employees
that, if the Union came in and a strike ensued, Respond-
ent might well move to Texas. Respondent's campaign in
opposition to the Union was designed to convince the
employees that selection of the Union could cause them
harm and particularly that they might lose their jobs as a
result. For example, Rome's June 8 letter gave as an ex-
17 On cross-examination, Stoop first asserted that he did not even re-
member Autera using the word "strike" in that meeting, but quickly
amended to state that Autera "may have referred to a strike in the litera-
ture which caused this riot, so to speak."
'a Stoop did admit that Autera had discussed with Stoop the fact that
Respondent had a plant in Houston. Texas hut, asserted Stoop. "nothing
related to any strike or union business. or anything like that "
EMR PHOTOELECTRIC
1604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ample a "sister" plant closed because of the Union, and
asserted that "strikes can be disastrous and threaten the
job security of everyone concerned." In Rome's letter of
July 21, it is stated that the Union's activities "could seri-
ously affect the survival of this plant. " (Emphasis supplied.)
Other such comments occur hereafter. Autera knew of
Respondent's Texas operation and had discussed it with
at least some of the employees. It is logical, in the cir-
cumstances, that in his attempt to spell out the dangers
of getting the Union into the plant he should have raised
the spectre of a move to Texas. 19 Jolly and Fischer seem
to have been straightforward and intelligent witnesses.
As they were still employed by Respondent at the time,
and since the Union was defeated in the election, there
must have been a strong personal inclination on their
part not to testify against Respondent. 20 I credit them
and Poe to the extent his testimony is consistent. Stoop
seems to me from his testimony as a whole to have been
less than objective and not so reliable in his recollection
of the events. In the circumstances, I do not credit Stoop
and Autera (who had strong reason as a member of man-
agement to support Respondent's position) to the extent
that they contradict Jolly and Fischer. 21 1 also credit
Fischer's testimony that thereafter Klukososki referred to
these newspaper articles in reminding the employees that
the Union was strike prone.
About this same time, an interchange occurred be-
tween Klukososki and employee James Schultz concern-
ing the imposition of stricter and more onerous working
conditions if the employees voted for the Union. The
content of the conversation is in dispute. The evidence
raises some interesting problems. In the first place, this
issue was not alleged in the complaint nor, so far as I can
determine, did the General Counsel move to amend the
complaint to include this issue. Further, the evidence
was adduced by the Union, over Respondent's objection,
after the General Counsel had rested his case in chief. It
is an important principle in the administration of the Act
that only the General Counsel of the Board shall have
the authority to determine the matters to be alleged in
the complaint, and that the charging party shall not be
permitted to enlarge upon the complaint, where the Gen-
eral Counsel does not take action to include the new
issues in his complaint. See, e.g., Inland Trucking Co.,
etc., d/b/a Oshkosh Ready-Mix Co., et al., 179 NLRB 350
(1969), and cases cited. Therefore, though Respondent,
prudently in the circumstances, controverted Schultz'
testimony on the issue, I believe that the issue should be
1' This is further corroborated by the fact that at least three employ-
ees, after the issuance of the June 22 letter, became sufficiently concerned
to go to Klukososki and ask if he thought the plant would move if the
Union got in. Klukososki says that he told them that he did not think this
would happen.
20 Each of them subsequently quit Respondent's employ, but were re-
instated upon request.
21 As set forth in fn. 24. infra, Fischer also testified that Klukososki
likewise told the employees that as a result of union strikes and demands
Respondent might well move to Texas, stating that the employees would
not want to lose their jobs, and referred to a "sister company" with a
union that went down the drain. There is some dispute as to whether this
occurred before or after June 22, the cutoff date under Sec. 10(b) of the
Act. Inasmuch as this finding would be cumulative of other similar find-
ings made herein, I find it unnecessary to determine whether this consti-
tutes a separate unfair labor practice.
disregarded. It is not necessary to recommend dismissal
of the issue because it is nowhere alleged as an unfair
labor practice. 22
Rome's letter of July 14 further asserted Respondent's
right not to agree to the Union's demands during indicat-
ed lengthy negotiations, which would likely end in a
strike or in the employees losing part of the benefits they
already had. The letter states:
IF the union wins the election, the only thing
they win is the right to sit down and BARGAIN.
At best, bargaining is an uncertain process subject
to breakdown.
The LAW requires that an employer negotiate in
good faith, but it does not require the employer to
agree to any union demand or make good on any
union promise made to you during a campaign.
If, during bargaining, the union makes unreason-
able demands to which the company cannot or will
not agree, the union has two choices:
1. They can drop the demands, or
2. They can call a strike.
Of course, during what are often lengthy negotia-
tions, wages and benefits are FROZEN-they do
not change.
Although the union organizers may tell you that
you cannot lose anything if the union is voted in,
the TRUTH is that NO ONE can predict what will
be in a contract. A union contract may provide
some of the things you do not have, and it may, at
the same time, take away some of the things you
now have. It all depends on bargaining, and bar-
gaining means putting everything on the table. All
the union's predictions of what they will get for
you are negotiable . . . and what comes out of the
negotiations depends on the give and take of bargain-
ing.
With a union, NOTHING IS AUTOMATIC-
and, nothing is more uncertain than bargaining with
a union on a first contract.
I urge you to examine carefully the facts so that
the decision you make on August 5 will be best for
you.
In Rome's letter to the employees dated July 21,
the strike theme continues as follows:
Recent newspaper articles about unions and
strikes highlight the fact that WITH A UNION,
THE POSSIBILITY OF A STRIKE BECOMES
A REAL ONE. This fact was clearly demonstrated
by the union in a recent strike against Yates Indus-
tries in Bordentown, NJ.
After lengthy negotiations, the IUE conducted a
strike which dragged on for ten weeks - and when
it was finally resolved, those employees gained less
than four cents an hour over the company's pre-
strike offer.
22 Schultz gave similar testimony. under similar circumstances, con-
cerning the management represenlative, Lee I have disregarded this tes-
limony also for reasons similar to those set forth ahbove
EMR HOTOELECTRIC 1605
While on strike, those employees each lost over
$2,000 in wages and benefits-and had to try to get
by on the union's strike benefit of $25.00 a week.
In the event of an IUE conducted strike at EMR:
**Strikers would receive no pay and their
benefits would stop.
**Strikers can be permanently replaced.
**Strikers receive no unemployment compen-
sation.
**Strikers have no guarantee of success.
What you have now is something to protect. You
have a job, steady paychecks and good benefits-
without having to pay union dues and fees and with-
out the threat of a strike, loss of wages, benefits and
perhaps the permanent loss of jobs.
Although the union wants you to believe that
strikes rarely take place with the IUE, their strike
history tells a different story. I have obtained the
IUE's strike record over the past few years from
the Bureau of National Affairs in Washington, D.C.
Your supervisor has a copy of it. Examine it for
yourself You'll see that during these past few years,
the IUE had thousands of members out on strike-
and many of these strikes lasted for months.
This is not to say that a strike would take place
here if the IUE wins on August 5 . . . but why risk
it?
Unfortunately, when a union campaigns to get
into a company, it usually raises the level of expec-
tations in order to get votes-ignoring the fact that
their bargaining demands are subject to the compa-
ny's approval, negotiation or rejection. At best, bar-
gaining with a union is a human process and subject
to breakdown; that's when strikes occur.
With Sangamo-Weston, another union-the
UAW-had negotiated a cost of living clause for
employees at the Springfield, Illinois plant. During
contract negotiations in 1975, that union demanded
among other things that the cost of living amounts
be increased even more. The company rejected the
union's demands, and the UAW conducted a 21-
week strike. When that strike was over, the union
settled for the same wage increase offered before
the strike, and, instead of improving the COST OF
LIVING PLAN, it WAS BARGAINED
AWAY-lost-for the 1975-1978 labor agreement.
Think about the possible consequences very care-
fully. Sadly, many employees at other plants have
found out too late about the big difference between
what unions offer and what they deliver.
These themes were repeated in other letters issued to
the employees (continuing the emphasis), on July 26 (at
"our Springfield, Illinois plant, the UAW . . . went on
strike for 21 weeks to try to force the company to give in
. . . the union settled for the company's pre-strike offer
. . .-but bargained away the cost of living clause they
had before the strike began."); on August 1 ("MAN-
AGEMENT IS NOT REQUIRED TO AGREE TO
ANY UNION DEMAND ... the TRUTH is the union
. . . gets nothing UNLESS the company agrees . . .
while bargaining goes on wages and benefits are frozen,
nothing will be changed. And if that bargaining breaks
down, a strike is what takes place."); and in an undated
group of newspaper clippings (entitled "CAN THE IUE
GUARAANTEE THIS WON'T HAPPEN AT EMR?")
made available to the employees toward the end of the
campaign, in which Respondent emphasized one strike in
which the employer "hired permanent replacements for
many strikers ... ."; and in another group of clippings
entitled "IUE JOB SECURITY-UNION STYLE,"
concerning a GE plant at Syracuse, NY, it was empha-
sized, inter alia, that whereas "Twelve thousand production
workers were employed . . . now 1200 workers are left
... . Higher taxes and wages and aging plants have often
led management to move production south or overseas
.... General Electric decided to set up production in an
existing plant in Portsmouth, VA. Wages and taxes were
lower there and the work force has not been unionized . . .
For Sophie Slivinski, a 58 year old widow who lost her job a
month ago, it has meant an uncertain future."
2. The postelection letters
On August 17, Rome distributed a letter to the em-
ployees criticizing the Union for filing objections to the
election, asserting Respondent's belief that the objections
were "worthless," stating that the Labor Board election
would take time and that this "will only delay matters
and keep frozen the status quo."
However, on April 3, 1978, Rome advised the employ-
ees of wage increases, stated to be consistent with Re-
spondent's practice over the years, and an improvement
in the group medical insurance plan, both asserted to be
"without prejudice" to whatever rights the Union might
have.
In the complaint in this matter, the General Counsel
alleges that Rome's August 17 letter threatened employ-
ees with economic reprisals.
3. Statements by Lee
Executive Vice President Lee visited the plant on July
5 and 28 and August 3 and 5 to assist management in its
campaign against the Union. On his first visit, he was es-
corted around the plant by Rome who introduced Lee to
several groups of employees in various work areas. In
one such group, employee Ann Jolly testified that Lee
said that he knew that the employees had problems, that
he had "come to see if he could straighten these prob-
lems out, that he has done these things with sister com-
panies, and one time there was a sister company that had
joined a union and through 12 weeks of strike they had
lost the government contracts and this company had
moved to Puerto Rico and he said he felt that we could
straighten these problems that we had out between our-
selves without having a third party." 2 3
23 Jolly's testimony on cross was consistent with her direct testimony
She admitted that Lee did not in so many words say that, if the Union
got in, Respondent would have a strike. lose government contracts, and
move someplace else, but asserted these were the "inferences." Jolly fur-
ther admitted that Lee "didn't say that there would be a strike at EMR."
but asserted that ee said "if a union can't reach an agreement with the
Continued
EMR PHOTOELECTRIC
1606 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Jessie Fischer, who works with Ann Jolly, was also
summoned with Jolly, on July 5, to the group meeting
which Jolly attended. She recalled that Lee mentioned a
sister company on the other side of the tracks that had
gone "down the drain," "after they got a union."2 4
During this meeting, Fischer states that Lee also ad-
mitted that there were inequities at Respondent's plant
but, if the employees would give Respondent 9 more
months, "We will clear that up, everything will be recti-
fied."
Employee Marion Jantz was also among the employ-
ees to whom Lee spoke on July 5. As testified by Jantz,
Rome, in introducting Lee, said he had not realized that
Respondent had been doing anything harmful to the em-
ployees, and "wanted to assure us that everything was
going to be all right." After being introduced, Lee said
that he did not feel that the employees needed a union,
that they should "give him 9 months to try and straight-
en things out and that we had a lot of government con-
tracts, and . . . if we went on strike they would pull out
their contracts and so would the other customers. Then
he said we didn't want to be like the sister company
across the tracks." Jantz stated that at that time she did
not know what Lee meant by "the sister company across
the tracks," but that she later found out. Jantz also testi-
fied that on this occasion or another, in the course of
talking about strikes and losing government contracts,
Lee said he would not want to see Respondent move to
Houston, Texas. She also recalled that toward the end of
the campaign, during one of the meetings Lee had with
employees in the upstairs conference room, he said that
"strikes were a very bad thing for the company and he
can remember some companies that have gone on strike
and eventually . . . they had to move to Puerto Rico." 2 5
In its brief Respondent seems to raise an issue, apparent-
ly attacking Jantz' credibility, as to when she claims to
have heard Lee say Respondent might move to Texas.
Upon careful consideration of the record I am convinced
Company, we have a strike." She further agreed that Lee never "threat-
ened" the employees with closing the plant, or "threatened" that she
would lose her job.
a4 In her pretrial affidavit, affirmed on cross-examination, Fischer
stated that Klukososki had told her that, due to strikes and demands, Re-
spondent might well go broke if the Union came in, and that the Union
was strike prone, as she had read in the newspapers (apparently the clip-
pings circulated by Respondent), that Respondent could very well close
down and move to Texas and she would not want to lose her job, and
that Klukososki also told her about a sister company which had a union
and went down the drain. There is no mention of Lee in Fischer's affida-
vit as making the latter statement, but Fischer insists that both said it.
Fischer asserts that when the affidavit was taken she was exhausted after
9 hours' work and after completing her statement about Klukososki was
too tired to continue.
Fischer further agreed that no one from management threatened her
"personally" with losing her job if the Union were selected, nor did she
feel "threatened" that the plant was moving.
as It is admitted that a "sister company" has a plant in Puerto Rico,
which Lee asserts was opened in that location solely for tax advantages.
It appears that in Jantz' pretrial affidavit there is no mention of Puerto
Rico, though she insisted in her testimony that she remembers it. Appar-
ently there is a reference to Texas. There is a good logical reason given
in her testimony as to the reason she recalled Lee's comment on Texas.
Jantz testified, however, that she does not remember Lee saying that Re-
spondent "would move."
that this took place, as she testified, on July 5 or on an-
other occasion, but not July 28. 2 6
During the July 5 meetings, employee Ruby Wingard
recalls that Lee said that a union could cause the em-
ployees more problems than do them any good, that a
strike could occur, that the Government could "pull
their contracts" from Respondent, perhaps other business
would be lost, and it "could be possible that we would
all end up with no jobs." 2 7
Notwithstanding Respondent's claim that employee
Joan Briscoe was in the group with Fischer and Jolly to
whom Lee spoke on July 5, 1 have my doubts as to this.
Briscoe was not asked about this meeting. Rome and Lee
testified that she was in such group, but only after being
asked specific leading questions to that effect. On cross-
examination, Briscoe agreed that Lee "never threatened
to close the plant," or that "employees' jobs would be
lost."
As discussed in more detail in a following section, it is
essentially admitted that, during these meetings, Lee did
advise the employees that he was aware of their prob-
lems, recognized that Respondent had made mistakes,
and was asking the employees for a chance to show
what management could do in the future.
However, Lee denies that he said anything to the em-
ployees about Puerto Rico in any context, or that he said
anything about a sister company moving to Puerto Rico,
or that he said anything about a sister company going
"down the drain," or that he said that Respondent would
lose Government contracts (but admits that, in answer to
a question, he said it could happen in the case of a
strike), or that he said anything about closing Respond-
ent's plant, or about a company moving after a strike.
Lee asserted that he told the employees that he did not
know if there would be a strike if the Union was voted
in, but also that he stated to them that, if the Union
made unreasonable demands, Respondent does not have
to agree, therefore the Union would have to give in or
go on strike. Lee testified that he did not threaten the
employees. Rome testified in support of Lee that the
latter said nothing about a sister plant moving to Puerto
Rico, nothing about closing the plant, and nothing about
moving to Texas. Rome states that, in answer to a ques-
tion, Lee said that, in case of a strike, it was possible Re-
spondent would lose Government contracts and other
business.
On the basis of the record as a whole I credit the testi-
mony of Jolly, Fischer, and Wingard, as set forth above,
as corroborated by Jantz. Their versions of what Lee
said is consistent with the written material issued to the
26 Jantz has a detailed recollection of leaving work on July 28 before
Lee spoke to her. As far as I can determine, only employee Joan Briscoe
identifies Jantz as present when Lee spoke to employees that day. I am
satisfied that she was mistaken. Jantz' confusion as to the date, on cross-
examination, merely reflected her uncertainty on direct
217 When asked whether Lee said that the government would pull its
contracts if the Union came in, Wingard said that he had not, "you
know, a cut and dry statement, positively no." Wingard also stated that
Lee did not say that there "would" be "strikes and jobs would be lost" if
the Union came in, but that "there could be." Wingard said that she did
not remember if Lee said anything about moving to Puerto Rico, or to
Texas, but that he might have. She also stated that she did not "feel
threatened" by what Lee said.
EMR PHOTOELECTRIC 1607
employees, the newspaper clippings, the outline of Lee's
speech, set forth below, and the findings heretofore
made. As Lee testified, it was his purpose to counter the
Union's "guarantees" of "increased wages, improved
benefits and job security" by showing the employees the
other "side of the coin." I am convinced that the em-
ployees' version of what was said more accurately relates
the content of the conversations set forth. 28
The written outline of Lee's speeches to several
groups of the employees in Respondent's conference
room on August 3, in part relevant to this issue, is as fol-
lows:
' Within the Schlumberger Sangamo-Weston Cor-
poration, we've had our experiences with unions.
IN SCHLUMBERGER
Computer Systems, Inc.-C.S.I.-had its prob-
lems with the IUE in the early 60's. The union
called a strike which went on for about two
months-and the company closed.
IN SANGAMO- WESTON:
When the Newark plant was unionized several
years ago by an independent union, there were ap-
proximately 1200 employees working there. Today
there are less than 700.
When the Springfield, Illinois, plant was union-
ized in 1968, there were over 1400 employees in the
voting unit. Today they have less than 600 employ-
ees there.
In 1975, the union at Springfield demanded much
of the same kinds of things the union is promising
here.
The company offered a three-year contract pro-
viding 30 cents each year with significant change in
benefits.
The union rejected our offer and called a strike.
Thai strike did not end for 20 weeks.
The real tragedy in that strike is that the employ-
ees were on strike or nothing! The union settled for
the company's pre-strike offer-and bargained away
the cost-of-living clause they had in the previous
contract.
If a union is voted in here, I honestly don't know
what will happen. We do know what we've experi-
enced with unions-at other plants-and it has not
been very good.
I recognize that we're not perfect-and we will
make some mistakes-but I do recognize problems
and I will make decisions in the best interests of
you and your job.
In order to make all our jobs more secure and
more rewarding, we must work together.
2s Lee asserted that his "reference to a plant closing after a strike" was
to counter the Union's assertions of job security
We need each other's help.
I've been through this before. In my experience
with the Heath Division, unions came after our em-
ployees regularly, but they didn't succeed. Why?
Because we kept those employees happy-and I
certainly would do no less here.
4. Analysis and Conclusions
The law applicable to this situation was concisely sum-
marized by the Ninth Court of Appeals in N.L.R.B. v.
Four Winds Industries. Inc., 530 F.2d 75, 78 (1976), as fol-
lows:
[Section 8(c) of the Act] protects the right[s] of
both employers and employees. Because of the im-
portance freedom of speech has under our Constitu-
tion alleged unfair labor practices in the form of
speech must be carefully scrutinized. Unless the
speech contains a "threat of reprisal or force or
promise of benefit" it is privileged. A mere predic-
tion of what effect unionization would have is not
an unfair labor practice. N.L.R.B. v. Gissel Packing
Co., 395 U.S. 575 (1969). In making a prediction the
employer must be careful to base his statements on
an eventuality that is capable of proof, and not on
an implication that his own initiative will cause eco-
nomic detriment. Gissel, supra at 618. The interpre-
tation of the speech in issue must take place in a set-
ting which balances the rights of both parties but
recognizes the economically dependent relationship
of the employee to the employer. Gissel, supra at
617. The choice of proper words is not an exercise
in "brinkmanship." Gissel, supra at 620. We look not
for certain words that are allowed and others that
are forbidden. Rather, we are to view the state-
ments in their entirety and consider their total effect
on the receiver. Gissel, supra at 619; N.L.R.B. v.
Tommy's Spanish Foods, Inc., 463 F.2d 116 (9th Cir.
1972).
As in Four Winds, Respondent's statements, considered
as a whole, convey an inevitability that unionization
would result in job loss, as well as other employee loss
and disruptions, either through strikes resulting from Re-
spondent's refusal to agree to union bargaining demands,
or because of removal of Respondent's plant to a distant
location, as occurred, it was pointed out, with a "sister
plant" of Respondent and plants of other employers, or
by Respondent's reduction of its work force in conse-
quence of unionization, which the employees were told
had occurred at other sister plants. In addition the em-
ployees were told that, because of Respondent's resist-
ance to union bargaining demands, the negotiations
would be long and drawn out, during which the employ-
ees would be further disadvantaged, without reasonable
expectation of gain from such bargaining.
I am aware that here, as in Four Winds, Respondent
from time to time asserted that it would bargain in good
faith. Also, on occasion, Respondent said it intended no
reprisals and, usually, an attempt was made to cite the
consequences of unionization as results that "could"
EMR PHOTOELECTRIC
1608 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
happen. Nevertheless, the record as a whole does not
admit of any other conclusion than that Respondent, by
its statements, was advising the employees that unioniza-
tion, at the very least, would subject the employees to
grave risk, if not to the certainty that Respondent would
respond to selection of the Union by action that would
jeopardize their livelihood. Thus, for example, Produc-
tion Manager Autera's statement, in an effort to persuade
the employees against the Union, that he did not want to
have to move to Texas because he liked living in New
Jersey where the plant was then located, and Executive
Vice President Lee's statements in his preelection speech,
that of three "sister plants" which were unionized, one
had closed and two had drastically decreased the number
of workers employed. 29 Such statements are not so
much predictions of the effects of unionization beyond
Respondent's control as thinly veiled threats that because
of unionization Respondent would take action to the det-
riment of the workers' employment.
Some of the employee witnesses testified, truthfully,
that there was no specific threat to close down Respond-
ent's plant or move it away, though one of them added
that these were the inferences. There were also employee
witnesses who stated that they did not feel personally
threatened by some of the remarks made by Respond-
ent's management. However, it is well established that, in
dealing with issues such as those in this case, the focus of
the inquiry is not on "the subjective reaction of employ-
ees to electioneering," but upon the reasonable tendency
of the actions involved to interfere with the employees'
rights. See, e.g., N.L.R.B. v. Gulf States Canners, Inc.,
585 F.2d 757 (5th Cir. 1978); Plasticrafts, Inc. v.
N.L.R.B., 586 F.2d 185 (10th Cir. 1978). Whether certain
individual employees may or may not feel coerced is not
dispositive.
Based upon th.y above, and the record as a whole, I
find that Respondent, by threatening its employees with
plant closure, job loss, and other reprisals because of
their activities on behalf of or support of the Union, vio-
lated Section 8(a)(1) of the Act.
Though the General Counsel alleged in his complaint
that Rome's August 17 letter constituted a threat of
reprisal to the employees, this is not argued in his brief
and I find it unnecessary to discuss this issue as it will
not affect the recommended Order herein.
B. Interrogation; Solicitation of Grievances; Promise of
Benefit
1. Lee and Rome
It is clear from the record that one of Respondent's
immediate reactions to the Union campaign was to elicit
from the employees their grievances and problems and to
indicate rather vigorously that the employees would
more likely obtain solutions to their problems from Re-
29 Respondents cite Fidelity Telephone Co.. 236 NLRB 166 (1978), for
the principle that "A respondent is responsible only for the remarks it
makes to employees and not for the impressions that employees may
derive from the remarks." However, I do not believe that the Board
thereby intended to license interference with employees' rights by use of
subtlety, innuendo, and inference. prohibiting only blunt and categorical
acts or restraint and coercion.
spondent, and more quickly, than by selecting the Union
as their representative. Thus it is noted that in his letter
to the employees, dated June 17, Rome admits that he
has been talking to the employees individually, focusing
on "issues of wages, benefits, insurance and day to day
relationships." He continues:
Problems do exist. For some of them I accept re-
sponsibility. Perhaps you were not kept as well in-
formed as was possible or were not listened to so
that your problems could be better understood or
your questions answered promptly. That there was
not a full comprehension of some issues of the past
years, I hold myself responsible. But, whatever the
mistakes and problems may be, I am convinced that
we can solve them by working together. Many of
you, I feel, share with me the belief that a union is a
poor substitute for the individual freedom we all
cherish and do not want to lose.
Let me conclude by asking for an opportunity to
show what we can accomplish together. 30 When
you vote on Friday, August 5th, I want you to vote
for what is right for you.
I do not feel that you need a union here. I am
asking for your vote-a vote NO. Give us all-your
supervisors and me-a chance to demonstrate that
we are deserving of your confidence. 3 '
Further evidence of Respondent's solicitation of griev-
ances appears in employee Jessie Fischer's credited testi-
mony that, in July, Lee told Fischer and employee Ann
Jolly that he had been informed in another part of the
building that if he really wanted to know what the prob-
lems were at Respondent's operation he should talk to
the "ladies in production." When Fischer and Jolly told
Lee that the problem was "money," he replied that
"seems to be the main concern of everyone here." Fisch-
er expanded on her personal grievance concerning a
recent wage raise and the fact that the women were
"being kept in the lower pay scale." Lee admitted that
mistakes had been made, but that "all of this will be rec-
tified, just trust the company nine more months." 32
Though Lee admits that he told Fischer and employee
Jolly on this occasion "that other employees had told me
they had problems," he also says he told them he was
"not there to solicit their grievances because that's
against the rules. I couldn't promise them anything." He
asserts that he was visiting them, as a courtesy, "primar-
ily" to give them a chance to ask questions, at which
point they poured out their problems to him. Lee denied
'o Repeatedly throughout the campaign Respondent asked to be given
an opportunity (sometimes in capital letters) to show what it could do for
the employees.
31 Respondent also made this the theme of its last letter to the employ-
ees, on August 4 (the day before the election), in which Respondent
stated, "Give us the "opportunity" to demonstrate that we are worthy of
your confidence."
'2 Throughout the campaign, Respondent advised the employees that
if they rejected the Union, and were not satisfied, they could obtain an-
other election in 9 months or a year. At one point, Rome offered to give
the employees a dime to call the Union if they were dissatisfied in 9
months.
EMR PHOTOELECTRIC 1609
that he told the employees, "[Y]ou don't need a union
now, give us nine months to rectify problems."
Nevertheless, the record provides no reasonable expla-
nation as to why Lee and other members of management
were asking the employees to abandon the Union and
give Respondent 9 months, other than the obvious-that
Respondent would use that time to satisfy the employees'
complaints. To the extent that the testimony of Fischer
differs from that of Lee as set forth, I credit Fischer. I
particularly do not credit Lee to the extent that he says
he did not visit the employees to seek out their griev-
ances, or told the employees he was not there for that
purpose.
Lee testified that in general he told Respondent's em-
ployees that Respondent was aware of their problems,
and though management could not solve all their prob-
lems, Respondent was asking for the employees' confi-
dence; that management and the employees did not need
a third party to solve their problems.3 3 At one meeting,
at least, Lee made the employees "a guarantee that I
give my assurance that management would work togeth-
er with the [employees] to solve our problems."
As set forth in the preceding section of this Decision,
Lee told the employees, at various times, that he had
come to the plant to straighten out their problems, that
he had done this with "sister plants," that he was aware
of inequities at the plant but, if given 9 more months,
these would be cleared up, "everything will be recti-
fied," and that the Union could cause the employees
more trouble than do them any good.3 4
In summary, Lee told the employees during his
speeches just before the election: "I've been through this
before. In my experience with the Heath Division,
unions came after our employees regularly, but they
didn't succeed. Why? Because we kept those employees
happy-and I would certainly do no less here." (Empha-
sis supplied.)
2. Klukososki
In mid-July, Klukososki told employee Ruby Wingard,
according to her testimony, which I credit, that the em-
ployees should "give the company another chance, if the
company doesn't get everything squared away within an-
other year, then you can try again for a union.... he
told me, you know, that the company was aware of the
problems, they before had not been awere of them, now
they are aware of them, especially that the women were
sort of the bottom of the list, that was one of the gripes I
had, as [Klukososki] said, 'Well, yes, they are aware of
that, and you know things will be changed.' He said, too,
that the company was going to have a re-evaluation of
jobs and put the women in their proper perspective."
Wingard recalled that Klukososki also said that "he
couldn't make any promises."3 5
33 In Lee's words, "What I was asking the employees for was some
indication that the) had confidence in our ability to work out the probh-
lems and was asking them to vote 'no' for the union."
34 Employees Dennis Poe. James Schultz, and Joan Briscoe also gave
testimony to the same effect
35 When asked if Klukososki promised her anything in this consersa-
tion, Wingard replied that he did not make "a direct promise"
Klukososki recalled the conversation taking place
when and where Wingard placed it, but stated that the
conversation began with the employee asking him what
the Respondent would do for the employees if the Union
were defeated. Klukososki says that he replied that he
did not "know of any-anything. I have no idea." Nev-
ertheless, he says he continued by expressing an "opin-
ion" that "what possibly could happen is classification-
job classification changing, meaning the job titles would
be more-related more to what jobs that they are
doing.3 6 And I asked her to give the company a chance
to see what would happen, and if she didn't like the out-
come in twelve months, they could have another elec-
tion."
To the extent that Klukososki's testimony differs from
that of Wingard, I credit Wingard. Her testimony was
consistent throughout and consistent with the record as a
whole. Klukososki's testimony was less persuasive.
When Klukososki, in a conversation with Fischer and
Jolly, which most likely occurred between June 9 and
June 22,3' told the employees that he would like to
change their minds about the Union, they told him that
they were concerned that they were not properly com-
pensated for working in the confinement of the dust-free
room, and by other unfair practices. Klukososki said that
he had discussed their problems with management, that
though Respondent could not make any promises, he felt
there were going to be changes. As Jolly testified, "he
said it would be easier-the company could do more for
us faster than the union could do because . . . what the
union could do depended on negotiations.... if the
union did not get in, the company would not be required
to negotiate with anybody.3 8 This was confirmed by
Fischer's testimony, who also recalled that Klukososki
stated that management recognized "mistakes had been
made and that they were going to have to be rectified."
Fischer also recalled that, 3 days before the election,
Klukososki called her into the coffeeroom and told her
to remember all the things he had discussed with her,
particularly that he had discussed with management
extra compensation for Fischer and Jolly for working in
the dust-free room. Klukososki said, "You should be
compensated for that, and they agreed with that, but I
am not making you any promises, Jessie."
Approximately the end of July, about the time of the
above incident, Klukososki called Jolly into the coffeer-
oom and asked if she had made up her mind about the
Union yet. Jolly replied that she had not, that she had
attended all the union meetings and had read all Re-
"s Wingard denied that Klukososki in this conversation mentioned "'job
titles." It is of some interest. however, to note that after the election Re-
spondent seems to have made an extensive revision in the employees' job
titles.
a; Though Jolly originally "figured" the conversation occurred "like
after the 22nd of June, 22nd or 23rd, something like that." she later
agreed that it occurred before the meeting with Autera concerning the
newspaper clippings (which occurred on June 22). Fischer's dating of the
conversation was not specific Klukososki placed it between June 9 and
22.
:' This was also an argument used by Lee. who testified that, in asking
employees to have confidence "in our abilit to work out the problems,"
he was indicating to them that [lie] thought it would be easier to work
with them skthout a third part' between them "
EMR PHOTOELECTRIC
1610 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
spondent's literature and Respondent had not offered
anything tangible. Klukososki responded, Jolly states,
"that he felt there would be . ..changes and that the
company could go ahead and bring the changes around
faster than if we had a union.
I credit the testimony of Jolly and Fischer set forth
above. Klukososki agreed that he told the two employees
that he considered their job very important and should
be compensated, and that he had reported this to Re-
spondent's management, but could not make any prom-
ises. He denied saying anything about rectifying mis-
takes. Klukososki admits asking Jolly if she had made up
her mind about the Union, but then, improbably, states
he also told her, "but don't tell me. I don't want to
know."3 9 Lastly, Klukososki stated that he did not recall
a conversation with Fischer about 3 days before the elec-
tion. To the extent Klukososki's testimony is inconsistent
with that of Fischer and Jolly set forth above, it is not
credited.
In mid-July, according to the testimony of employee
Marion Jantz, Klukososki asked her, during working
hours, to come outside and talk to him by the picnic
bench. During this conversation, she states, he asked her
why she wanted a union. When she replied that she felt
strongly in favor of a union, she testified, Klukososki
"said we didn't need a union, the company can give us
just as much without a union," that he "had been up-
stairs [i.e., with management] and [had seen] some of the
proposals." Klukososki also told Jantz he could not make
any promises. He also said that he could not understand
how she could be for the Union after what had hap-
pened to her husband.
Klukososki recalled the conversation, the time and
place and some details testified to by Jantz. He says that
he told her to "give the company a chance, see what
happens, and within a year if you are not satisfied, you
can have another election," but denied that he said any-
thing "about getting things from the company faster than
from a union." He was not asked and did not specifically
deny that he had asked Jantz how she felt about the
Union, but did deny generally that he asked employees
about their union activities or membership." 40
As I have indicated, I do not find Klukososki's testi-
mony to be impressive. credit Jantz as set forth.
3. Analysis and conclusions
Respondent argues that the evidence does not show
that any promise was made by Respondent to the em-
ployees, and, in fact, that the employees were specifical-
ly told that Respondent could not make any promises.
However, the record does show that, while the employ-
ees were rather consistently told that no promises could
be made, at the same time the employees were informed
that Respondent now knew what their problems were,
which had not been true in the past, that Respondent ad-
mitted that it had made mistakes in the past, but now de-
"9 Klukososki states that his purpose was to determine whether he
should stop talking to Jolly about the Union. This attempt at qualifying
the admitted interrogation does not ring true and is not credited.
40 Nevertheless, as noted, Klukososki admits asking Jolly if she had
made up her mind about the Union, in a conversation somewhat later in
the month. after calling her from work.
sired an opportunity to show what it could do, an oppor-
tunity to show that it was worthy of the employees' con-
fidence, and further that, if Respondent did not satisfy
the employees in 9 months, the employees could then go
get the Union, that, in fact, Respondent would give them
the money to call the Union, in such case.
Against this background, Klukososki told several em-
ployees that he had indeed discussed their problems with
higher management and that management had, in fact,
agreed upon improvements in their working conditions,
which Klukososki felt would be forthcoming, though he
added he could not make any promises.
This side of Respondent's campaign was capped by
Lee in his preelection speech asserting that in another
"sister plant" unionization had been defeated "regularly,"
because "we kept those employees happy-and I certain-
ly would do no less here."
It may well be that Respondent made no specific, defi-
nite promise to the employees-though Klukososki's as-
sertion that management had agreed upon specific im-
provement in employee working conditions seems to
belie his assertion of no promise-but it is difficult to
conceive of stronger implied promises to rectify working
conditions complained of by employees than those which
obtain here. Indeed, Lee told employees that, though
mistakes had been made, all would be rectified if the em-
ployees would trust Respondent for 9 more months. No
plausible reason appears for asking the employees to trust
Respondent and give it an "opportunity" for 9 months
except that Respondent would during that period, as Lee
stated, do what was necessary to keep the employees
"happy" in order to defeat the Union.
Such assurance, frequently repeated in different con-
texts, would naturally tend to override and negate Re-
spondent's contemporary protestations that, of course, it
could make no promises because that would be illegal. In
effect, Respondent's admonition to the employees was to
trust Respondent to do what was necessary to satisfy the
employees, in spite of what the law required it to say.
On the basis of the above, and the whole record, it is
found that Respondent, by soliciting employee griev-
ances and impliedly promising to rectify them in order to
discourage activities on behalf of, and in support of, the
Union violated Section 8(a)(l) of the Act. See, e.g.,
Arrow Molded Plastics, Inc., 243 NLRB No. 181 (1979);
Reliable Manufacturing Corporation, 240 NLRB 90
(1979).
It is also found that Respondent, by interrogating em-
ployees as to their activities on behalf of and support for
the Union, in the context of the unfair labor practices
found above, violated Section 8(a)(l) of the Act.
C. Alleged Refusal To Bargain
1. The appropriate unit
The election among Respondent's employees conduct-
ed on August 5, pursuant to a Stipulation for Certifica-
tion Upon Consent Election agreed to by Respondent
and the Union, was in the following unit:
All full time and regular part time production and
maintenance employees and technical employees in-
EMR PHOTOELECTRIC 1611
cluding engineering aides, senior laboratory techni-
cians (A), senior laboratory technicians (B), labora-
tory technicians, model makers, senior machinists,
machinists, designers, wirers, senior mechanical in-
spectors, in-process inspectors, quality control tech-
nicians, planners, stock clerks, drafting clerks, ship-
ping and receiving clerks, processors, glass blowers,
and assemblers employed by Respondent at its Prin-
ceton Junction, New Jersey location, but excluding
all office clerical employees, confidential employees,
temporary employees, buyers, chief draftsman, ma-
chine-shop supervisor, supervisory leadman expedi-
tor, supervisory leadman-production, supervisor-
quality control, supervisor-quality assurance, super-
visor-test, plant services supervisor, professional em-
ployees, guards and other supervisors as defined in
the Act.
In their briefs the parties raise no issue concerning the
unit and I find that this unit is appropriate for the pur-
poses of collective bargaining within the meaning of Sec-
tion 9(b) of the Act.
2. The Union's majority status
As of June 5, the eligibility date for the election, there
seems to have been 47 employees in the unit.4 ' In the
absence of any evidence or suggestion to the contrary, I
infer that this was the number employed in the unit on
May 18, the date the Union requested recognition and
bargaining.
Since no unfair labor practice can be found before
June 22, it is further noted that on August 5, the date of
the election, there wvere only 46 employees eligible to
vote. During this period two employees were hired to
work in the unit who were not eligible to vote in the
election, but who continue in Respondent's employ.
Thus the maximum number of employees in the unit
between May 18 and August 5 would have been 49, very
likely less. Respondent, in its brief, asserts that for the
purposes of this issue the number of employees in the
unit at the critical times was 47 (br., p. 43).
a. The authorization cards
At the meeting at the Howard Johnson Motel on May
11, 25 employees signed individual cards with the name
of the Union printed at its head, and with the following
printed statement immediately below: "I authorize IUE-
AFL-CIO-CLC to act as my collective bargaining rep-
resentative in all matters pertaining to all conditions of
employment." Nine additional cards were signed by em-
ployees by May 18, the date recognition was requested.
Almost all of the employees testified that they read the
card before signing it. Indeed, the layout of the card
would make it difficult not to see the words set forth
when filling it out and executing it.
As has been noted, Respondent contends that these
cards, or certainly the ones signed at the Howard John-
4 Both Respondent and the General Counsel so state in their briefs,
relying on G.C. Exh 6. That d cument, though not adequately explained
in the record, appears to be the Excelsior list furnished by Respondent
which was used as a checklist at the election (note the dual checkmarks
at the names of employees who presumably voted)
son meeting, should be invalidated on the grounds that
Union Representative Bernardini at the Howard Johnson
meeting allegedly told the employees (1) that, the au-
thorization cards would be used only for an election and
(2) that in order to avoid paying union initiation fees, the
employees must sign such cards before the election, and
further because Klukososki, Halaycio, and Levendowski,
whose asserted supervisory status has been discussed
supra, were in attendance. As to this latter contention
there is little or no indication that at the time these men
were considered by the employees to be supervisors
Indeed, the record indicates the contrary. Aside from
Klukososki, who did not even consider himself a supervi-
sor at the time, none of these persons was shown to have
exerted any influence over any employees' union activi-
ties. As has been found, at the time Halaycio and Leven-
dowski were minor supervisors at the very most.
Without analyzing the evidence in detail, there is some
record support in employee testimony with respect to
the remaining allegations made by Respondent, although
much of the testimony tended to be imprecise, sometimes
contradictory and subject to some acknowledged diffi-
culty in remembering, after a vigorous preelection cam-
paign and a critical election, what was said in an initial
organization meeting more than a year before the hear-
ing.
Union Representatives Bernardini and Eberhardt, who
attended the Howard Johnson meeting, denied that Ber-
nardini advised the employees that the cards were only
to secure an election or that cards must be signed before
an election to avoid payment of initiation fees. Bernar-
dini and Eberhardt, with support in the testimony of
some employees, asserted that during the meeting the
employees were told that it would be necessary to secure
cards from 30 percent of the unit in order to petition for
an election, but that if cards were executed by over 50
percent of the employees, the cards could be used to re-
quest recognition and bargaining from Respondent also.
Both representatives testified that there was no discus-
sion of fees or dues at this meeting until the close of the
meeting, and after the authorization cards had been
turned in, at which time an employee asked a question
about these matters. 42 At that time Bernardini explained
the policy of the Union not to require initiation fees from
employees who were then employed by Respondent, or
who were hired before a collective-bargaining contract
became effective, but to require that employees hired
thereafter pay such fees.43 The question was raised again
at a later union meeting and Bernardini asserts that he
answered in the same way. This is corroborated by Eber-
hardt and Union Representative Anthony Corrao.
Upon consideration of the entire record, I credit Ber-
nardini, Eberhardt, and Corrao as to these issues. Besides
my lack of confidence in the testimony of the employee
witnesses relied on by Respondent as to this issue, the
circumstances in which the issue arose strongly indicate
*2 Some employee witnesses either denied or had no recollection of
these matters being raised at the Howard Johnson meeting.
"a This was essentially confirmed by employees Ronald Hyer, Thomas
Flanigan, and Dennis Poe
EMR PHOTOELECTRIC
1612 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that Bernardini did not make the statements Respondent
claims that he did.4 4
In most cases where union organizers use the argu-
ments here asserted-i.e., to get employees to sign cards
now to get an election and to avoid initiation fees-the
organizers are attempting to persuade employees who
otherwise might be reluctant or resistant to sign authori-
zation cards. A sales pitch. In this case no sales pitch
was necessary. The employees had sought out the Union.
Immediately prior to the solicitation of cards, these em-
ployees had voted among themselves to have the Union
represent them. The evidence is overwhelming that the
employees present wished to be represented by the
Union. The language on the cards which they signed
was clear and unambiguous. No reason appears why Ber-
nardini should have told the employees that the card did
not mean what it said, or would not be used for the pur-
pose stated.45 There is no contradiction that the Union's
policy as to initiation fees is as the union representatives
testified and I credit this, and I do not see any reason
that Bernardini would have told the employees anything
else.
Based on the above, I find that none of the 25 union
authorization cards signed at the Howard Johnson meet-
ing4s were invalidated by the fact that Klukososki, Ha-
laycio, and Levandowski attended that meeting, or by
any of the statements made by the union representatives
at that meeting. I further find that the fact that Kluko-
soski and Halaycio signed the petition of June 6, to Re-
spondent to recognize the Union as the employees' bar-
gaining representative, did not, in the circumstances of
this case, taint that petition, or unduly influence the em-
ployees who signed it.
Of the nine additional cards not signed at the Howard
Johnson meeting,47 Respondent in its brief (pp. 61-64)
attacks the validity of four, those signed by employees
Held, Schultz, Kitzman, and Slifko. It is unnecessary to
consider the validity of these latter cards, since even if
they were eliminated, the Union would be designated by
30 employees in the unit, a clear majority.
It is therefore found that since May 18, and at all times
material to the complaint, the Union has been and is the
duly designated exclusive representative of the employ-
44 It is easy to understand how the recollection of the employee wit-
nesses could be confused as to these matters. Indeed, one might well
expect that employees who had gone through such an intensive preelec-
tion campaign with its emphasis on voting, and through the election
itself, would become convinced that the solicitation of the cards at the
very beginning of the process must have been for that purpose, even
though they were told that the cards would also be used to seek recogni-
tion and bargaining-particularly since the latter course did not bear
fruit. Undoubtedly the Union's legitimate double standard for the pay-
ment of initiation fees likewise became confused with the passage of time
and events.
45 Shortly thereafter the employees affirmed this by signing a petition
to Respondent to recognize the Union as their bargaining agent. To the
extent that employee Buchanan and others testified that they thought this
was for the purpose of securing an election, such testimony contradicts
the plain language of the petition and is not credited.
46 These were signed by employees Bowers, Buchanan, Ciupek. Grem-
minger, DeCandido, Coppel, DiBenedetto, Drummond, Fleming, Hyer,
Luther, Osborn. Nelson, Comiski, Stamates, Wright, Wenzel, Jolly, Jantz,
Pariscoe, Fischer, I W. Stoop, D. Stoop, Flanigan, and Poe.
4; These were signed by employees Borden. Donofri, Held, Jarzyk,
Schultz, Paprzyki, Kitzman, Wingard, and Slifko.
ees in the appropriate unit set forth hereinabove for the
purpose of collective bargaining.
3. Conclusion
It has been found that the Union was the duly desig-
nated bargaining representative of the employees in an
appropriate unit as of May 18, when the Union requested
recognition and bargaining, and thereafter during times
material to the complaint. It is admitted that, at all times
since on or before June 22 (the 10(b) date), Respondent
has refused to bargain with the Union.
As the Board stated in Trading Port. Inc, 219 NLRB
298, 301 (1975): "An employer, as the Supreme Court
has held, has a right to an election [and therefore may
refuse to bargain] so long as he does not fatally impede
the election process. Once he has so impeded the proc-
ess, he has forfeited his right to a Board election and
must bargain with the union on the basis of other clear
indications of employees' desires. It is at that point, we
believe, the employer's unlawful refusal to bargain has
taken place."
As has been shown in this case, Respondent has by its
conduct prevented the conduct of a free and fair election
wherein the employees might have made an uncoerced
choice as to representation, and Respondent thereby fa-
tally impeded the election process within the meaning of
Trading Port.
It is therefore found that, beginning June 22, 1977, and
at all times thereafter, Respondent, by refusing to bargain
with the Union as the duly designated representative of
its employees in the appropriate unit found hereinabove,
has violated Section 8(a)(5) of the Act.
4. Necessity of a bargaining order
It is not disputed that the normal appropriate remedy
for an employer's refusal to recognize and bargain with
the designated representative of his employees in an ap-
propriate unit, in violation of Section 8(a)(5) of the Act,
as in the present case, is an order to bargain. Indeed, the
basic purpose of the Act is to establish stability in indus-
trial relations through collective bargaining. See Section
I of the Act. Respondent in this case, however, argues
that such a remedy should not be ordered here for a va-
riety of reasons which can be summarized as follows (I
am eliminating Respondent's reiterated claim that the
Union was not duly designated in the first instance, since
that has been previously considered): Respondent argues
that (1) the unfair labor practices found are not so seri-
ous a nature as to justify a bargaining order and the
Board has not required such a remedy in similar cases;
(2) the Union should be required to establish its majority
status in another election because, assertedly (a) notwith-
standing Respondent's past unfair labor practices a free
and fair election can now be held, (b) Respondent has
not been shown to have committed additional unfair
labor practices since the first election, and other then this
case, Respondent and its parent company have act "clean
record" before the Board and in dealing with unions
elsewhere, (c) so much time has passed and a consider-
able percentage of employees now employed did not
vote in the first election; and (3) the Union by its mis-
EMR PHOTOELECTRIC 1613
conduct and by its delay in filing charges and the Gener-
al Counsel by the delay in issuing the complaint in this
case are estopped from seeking a bargaining order
remedy here. I find these contentions to be without
merit.
a. Possibility of a free and fair election
The Board, in a quite recent case, Four Winds Indus-
tries, Inc., 228 NLRB 1124 (1977), upon remand from the
court of appeals, held conduct quite similar to that found
here to have "a seriously coercive effect on the employ-
ees' freedom of choice in the election of a collective-bar-
gaining representative" (228 NLRB at 1124), and con-
firmed the appropriateness of a bargaining order in such
situation.
Of course, in Four Winds the Board did not have to
address itself to the passage of time. It is regrettable that
Administrative Law Judge Corbley's death should have
contributed to the delay in the issuance of this Decision.
However, I do not believe that the passage of time here
should diminish the effect of the Board's precedent in
Four Winds for at least two reasons.
This case would not be before us today were it not for
the fact that Respondent, for its own purposes, prevented
a free and fair election by which the issue could have
been settled in the first instance. It may not now claim
that it is, nevertheless, entitled to an election notwith-
standing. Indeed, in these circumstances, if a bargaining
order is not found appropriate, Respondent, having
achieved its purpose by preventing a free choice of rep-
resentative in violation of the Act, escapes without any
effective remedy for such conduct.
Secondly, I do not believe that conduct such as that
engaged in by Respondent-in which the employees
were repeatedly impressed with the fact that bringing the
Union into the plant would endanger their employment
and prevent improvement of their working conditions
while their complaints could be more easily and efficient-
ly rectified if they rejected the Union-would so easily
be wiped out by the passage of time. The mischief in Re-
spondent's conduct is more than its tendency to have an
immediate impact upon the employees; the damage lies in
the tendency of such conduct to impregnate the fabric of
the employment relationship with Respondent's determi-
nation-so strongly made clear-that the employees not
have a free choice of representatives and that selection
of such representative contrary to Respondent's desire
would cost them their jobs. Once the fabric is contami-
nated, it does not so easily wash clean. The employees
do not forget their past experience. New employees are
reminded of the experience of the others.4 8
It must be remembered that designation of a collec-
tive-bargaining representative by written authorization
has long been recognized as valid under the Act. Indeed.
4s Respondent, in arguing that a free and fair election an be held.
points to a letter from Bernardini to the employees, in February 1978,
attacking Respondent's appeal to the Board from the Regional Director's
recommendation that the election he set aside, in which he states "
the company well knows, if it was not wasting time by challenging the
Regional Director's decision, a new fair election could blave been over
and done with by now." The basis for this statenent is not shown It ap-
pears to be a piece of bravado, offering Respondent a dare that Bernar-
dini kliew it would not accept
where the employer has prevented a free and fair elec-
tion, it is the most reliable evidence of the employees'
desires available. See, e.g., Four Winds. supra. In such
circumstances, the employees' selection of representative
should be given a reasonable time to accomplish the pur-
poses designated by the Act. Respondent may not here,
any more than if the Union had been certified by the
Board, claim asserted rights of new employees in order
to further postpone collective bargaining. Cf. N.L.R.B.
v. J. W. Rex Co., 243 F.2d 356, 360 (3d Cir. 1957).
In the circumstances, it does not follow that, because
Respondent has not previously been found to have vio-
lated the Act, or has not been charged with further vio-
lations since the election, the employees would be less in-
fluenced by Respondent's conduct in violation of the Act
in this case.
b. Alleged union misconduct
Respondent's contention that no bargaining order
should be issued because of union misconduct rests upon
the following testimony, none of which was controvert-
ed:
1. Employees Donald Stoop, John Wesley Stoop
and Jay Quattromani testified that at a meeting of
the Union prior to election, Bernardini stated that if
the Union lost the election, the Union would file
charges and tie up the election for a year, when the
Union could file for another election. It was stated
that Bernardini said the Union could control mem-
bers of the Board, or representatives of the Board,
and even some congressmen.
2. The same three employees asserted that at a
Union meeting before the election, in answer to a
question, Bernardini said that if the Union put up a
picket line at the plant, "nothing would get across,"
and any employee who attempted to cross should
be told to kiss his wife in the morning because he
might not see her again.
3. Employees Donald Stoop, J. W. Stoop and
Lee Buchanan testified to an incident involving Ber-
nardini which began with a letter Buchanan, who
up to that time had been a leader of the employees
seeking representation, wrote to Bernardini on July
I. In this letter Buchanan advised Bernardini that he
would no longer support the Union. Buchanan also
read this letter to all the employees in the unit.
Significantly, Buchanan states that he underwent this
change of heart after three meetings with Dr. Rome in
the latter's office. Prior to these meetings, Buchanan says
that he "didn't know whether Dr. Rome still understood
our problems." After these meetings he states that he
became impressed that "management definitely under-
stood our problems. I felt that . . . before this manage-
ment had been rather isolated from the everyday run of
the mill problems of the average employee . ... I felt
that through this drastic action [i.e., the Union campaign]
that they had come to realize . . . these people do have
problems and I felt in my own mind that we could there-
fore solve the problems without the union." Buchanan
added that "at no time" did Rome make any promises.
EMR PHOTOELECTRIC
1614 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Thereafter Bernardini asked for a meeting with Bu-
chanan and Buchanan took the two Stoop brothers with
him. According to Buchanan's testimony, Bernardini be-
rated the employees, accusing them of "stabbing your
fellow employees in the back." Buchanan tried to explain
that he "wanted to give the company another chance
and didn't feel that . . . we needed the IUE and we just
thought we could drop it at that .... " Bernardini said
that Buchanan and the Stoop brothers "obviously must
have been bought by the company" and said that if they
campaigned for Respondent thereafter, "there will be no
holds barred," that they would find out what he meant.
One of Bernardini's final comments, according to Bu-
chanan, was that "when the IUE got in, positive, we
were gone."
Respondent's brief continues:
4. Employee Jay Quattromani testified that on
August I Bernardini called him at home and asked
how he was going to vote, that when Quattromani
said he would not vote for the Union, Bernardini
became abusive, stated that no matter how the vote
went Quattromani would find it difficult to continue
working for Respondent (if the Union won, indicat-
ing pressure from the Union; if the Union lost, indi-
cating that Respondent would get rid of him be-
cause he was not trustworthy), that the Union
would blackball him from "any union activity or
union job in the United States," and further that "he
had ways of dealing with [Quattromani] and [his]
kind such as Lee Buchanan and Wes Stoop."
As previously noted, I do not believe that this evi-
dence requires that a bargaining order be withheld in this
case. The issue here is whether Respondent should be or-
dered to bargain with the Union, not with Bernardini.
He may no longer be associated with the Union, or may
not be its representative for bargaining with Respondent.
I need not here condemn Bernardini's conduct. 49 I
merely find that the Union is not thereby disqualified
from representing Respondent's employees.
C. Alleged estoppel
Respondent's argument under this heading in its brief
is as follows:
Despite the fact that the IUE timely filed its ob-
jections to the election, it waited four and one-half
months until December 22, 1977 before filing its
charge in this case. Having filed objections, the
IUE waited to see whether it could get the election
set aside without a hearing. When the Regional Di-
rector made the recommendation, the IUE filed its
charge knowing it almost certainly had a second
election without a hearing and could seek a bargain-
ing order at a hearing on the same facts it alleged as
49 I do note that, according to Buchanan's testimony, Respondent's
campaign to convince the employees that Respondent was now aware of
the employees' complaints and should be given a chance to rectify its
past mistakes without a union. finally-after some face-to-face talks-con-
vinced him that management was serious. While it is to be expected that
Bernardini would have exercised more control and good sense in the cir-
cumstances, his frustration may be understandable
objections without risking its right to a second elec-
tion, which it would have risked if the representa-
tion case and the unfair labor practice case had been
consolidated.
Thus, the IUE's conduct in waiting until the Re-
gional Director recommended a second election
before it filed its 8(a)(5) charge, and the General
Counsel's waiting until the Board directed a second
election before issuing a complaint based on that
charge, served to deprive EMR of a hearing on the
IUE's election objections and gave EMR a hearing
in the unfair labor practice case only after the
Board decided the IUE had nothing to lose.
The IUE, an admitted violator of the Act in this
case, [apparently referring to the complaint case
which the Union settled] should not be allowed to
have its cake and eat it too. Having accepted the
Board's direction of a second election, the IUE and
the General Counsel are estopped from seeking a
bargaining order on equitable principles that are
particularly applicable to this case involving the
public interest. [Citing Precision Instrument Mfg. Co.
v. Automotive Maintenance Mach. Co., 324 U.S. 806,
814-15 (1945).]
Respondent's argument seems to be that, as a result of
the actions of the Board or its representatives, the Gen-
eral Counsel and his representatives, and the Union, Re-
spondent was deprived of its right to a hearing on the
Union's objections to the election and a hearing on the
complaint which the General Counsel issued against the
Union, which Respondent contends should have been
consolidated with the instant matter. Respondent's argu-
ment implies, though it does not assert, some sort of con-
nivance among the parties to achieve these ends, with
the result, it is argued, that the General Counsel and the
Union do not seek a bargaining order with "clean
hands." However, the facts do not demonstrate any im-
propriety on the Union's part or any irregularity in the
actions of the Board or the General Counsel that I can
perceive. Respondent, on this record, does not show that
it had any "right" to a hearing on the objections, or to
require that the General Counsel not settle his complaint
against the Union. To the extent that a remedy is re-
quired under the Act for Bernardini's conduct, the ap-
propriate remedy is that provided in the case against the
Union. This is not the proper forum in which to assess
an additional remedy.
On the basis of the above, I conclude that a bargaining
order is an appropriate remedy for the violation of Sec-
tion 8(a)(5) of the Act found hereinabove.
CONCI USIONS ot: LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
-- ------- --
EMR PHOTOELECTRIC 1615
3. The following is an appropriate unit for the purpose
of collective bargaining within the meaning of Section
9(b) of the Act:
All full time and regular part time production and
maintenance employees and technical employees in-
cluding engineering aides, senior laboratory techni-
cians (A), senior laboratory technicians (B), labora-
tory technicians, model makers, senior machinists,
machinists, designers, wirers, senior mechanical in-
spectors, in-process inspectors, quality control tech-
nicians, planners, stock clerks, drafting clerks, ship-
ping and receiving clerks, processors, glass blowers,
and assemblers employed by Respondent at its Prin-
ceton Junction, New Jersey location, but excluding
all office clerical employees, confidential employees,
temporary employees, buyers, chief draftsman, ma-
chine-shop supervisor, supervisory leadman-expedi-
tor, supervisory leadman-production, supervisor-
quality control, supervisor-quality assurance, super-
visor-test, plant services supervisor, professional em-
ployees, guards and other supervisors as defined in
the Act.
4. At all times since May 18, 1977, the Union has been
and continues to be the exclusive representative of all the
employees in the aforesaid bargaining unit for the pur-
pose of collective bargaining within the meaning of Sec-
tion 9(a) of the Act.
5. By refusing, since June 22, 1977, to recognize and
bargain with the Union as the representative of the em-
ployees in the aforesaid bargaining unit, Respondent en-
gaged in and is engaging in unfair labor practices in vio-
lation of Section 8(a)(5) of the Act.
6. By threatening its employees with plant closure, job
loss, and other economic reprisals to discourage the em-
ployees from becoming or remaining members of the
Union, or from giving the union support or assistance,
and by coercively interrogating its employees concerning
membership in or activities on behalf of the Union, and
by soliciting employee grievances, impliedly promising
to correct such grievances, and by promising improve-
ments in employee working conditions in order to dis-
courage employees from becoming or remaining Union
members, or giving support or assistance to the Union,
Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(l) of the Act.
7. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that Respond-
ent be ordered to cease and desist therefrom, and that it
take certain affirmative action which I find necessary to
effectuate the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and the entire record, and pursuant to Section 10(c)
of the Act, I issue the following recommended:
ORDERs5
The Respondent, EMR Photoelectric, a Division of
Sangamo Weston Inc., Princeton Junction, New Jersey,
its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Threatening to close or move its operations, or to
cause employees to lose their jobs, or to engage in any
other reprisals because its employees engage in activities
on behalf of a labor organization, or support a labor or-
ganization.
(b) Directly or indirectly promising employees benefits
or improvement in their working conditions for the pur-
pose of inducing employees not to join, remain members
of, or otherwise support a labor organization.
(c) Soliciting employee grievances or complaints with
an implied promise of improving employee working con-
ditions or granting benefits for the purpose of inducing
employees not to join, remain members of, or otherwise
support a labor organization.
(d) Coercively interrogating employees concerning
their union membership, sympathies, or activities, or
those of other employees.
(e) Refusing to bargain collectively with International
Union of Electrical, Radio & Machine Workers, AFL-
CIO, CLC, the Union herein, as the exclusive representa-
tive of the employees in the following appropriate unit:
All full time and regular part time production and
maintenance employees and technical employees in-
cluding engineering aides, senior laboratory techni-
cians (A), senior laboratory technicians (B), labora-
tory technicians, model makers, senior machinists,
machinists, designers, wirers, senior mechanical in-
spectors, in-process inspectors, quality control tech-
nicians, planners, stock clerks, drafting clerks, ship-
ping and receiving clerks, processors, glass blowers,
and assemblers employed by Respondent at its Prin-
ceton Junction, New Jersey location, but excluding
all office clerical employees, confidential employees,
temporary employees, buyers, chief draftsman, ma-
chine-shop supervisor, supervisory leadman-expedi-
tor, supervisory leadman-production, supervisor-
quality control, supervisor-quality assurance, super-
visor-test, plant services supervisor, professional em-
ployees, guards, and other supervisors as defined in
the Act.
(f) In any other manner interfering with, restraining,
or coercing its employees in the exercise of their rights
to self-organization, to form, join, or assist the Union,..or
any other labor organization, to bargain collectively
through representatives of their own choosing, and to
engage in concerted activities for the purposes of collec-
tive bargaining or other mutual aid or protection, or to
refrain from any or all such activities.
sn In the eent no exceptions are filed as provided by Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec 102 48 of the Rules and Regulations, be adopted by the BoHard and
become its findings. conclusions, and Order, and all objections thereto
shall he deemed waived for all purposes
EMR PHOTOELECTRIC
_ _ _ _ _
1616 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action which is nec-
essary to effectuate the policies of the Act:
(a) Upon request, bargain with the Union as the exclu-
sive representative of the employees in the appropriate
unit described above with respect to rates of pay, wages,
hours of employment, and other conditions of employ-
ment, and, if an understanding is reached, embody such
understanding in a signed agreement.
(b) Post at its operations at Princeton Junction, New
Jersey, copies of the attached notice marked "Appen-
dix." 5 ' Copies of said notice, on forms provided by the
Regional Director for Region 22, after being duly signed
by Respondent's authorized representative, shall be
posted by it 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.
(c) Notify the Regional Director for Region 22, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it
hereby is, dismissed as to alleged violations of the Act
not found hereinabove in this Decision.
51 In the event that this Order is enforced by a Judgment of the
United States Court of Appeals. the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "Posted Pur-
suant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to close, or move our op-
erations, or to cause employees to lose their jobs, or
to engage in any other reprisals because our em-
ployees engage in activities on behalf of or support
International Uniotr of Electrical, Radio & Machine
Workers, AFL-CIO, CLC, or any other labor orga-
nization.
WE WILL NOT directly or indirectly promise em-
ployees benefits or improvement of working condi-
tions for the purpose of inducing employees not to
join, remain members of, or otherwise support a
labor organization.
WE WIll.L NOT solicit employee grievances or
complaints with an implied promise of improving
working conditions or granting benefits for the pur-
pose of inducing employees not to join , remain
members of, or otherwise support a labor organiza-
tion.
WE WILL NOT coercively interrogate employees
concerning their union membership, sympathies, or
activities, or those of other employees.
WE WILl. NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed in Section 7 of the National
Labor Relations Act.
WE WILL, upon request, bargain with Interna-
tional Union of Electrical, Radio & Machine Work-
ers, AFL-CIO, CLC, as the exclusive representa-
tive of the employees in the appropriate unit set
forth below in respect to employees rates of pay,
wages, hours of employment, and other conditions
of employment, and, if an understanding is reached,
WE WI.l. embody such understanding in a signed
agreement. The appropriate unit is:
All full time and regular part time production
and maintenance employees and technical em-
ployees including engineering aides, senior labo-
ratory technicians (A), senior laboratory techni-
cians (B), laboratory technicians, model makers,
senior machinists, machinists, designers, wirers,
senior mechanical inspectors, in-process inspec-
tors, quality control technicians, planners, stock
clerks, processors, glass blowers, and assemblers
employed by the Employer at its Princeton Junc-
tion, New Jersey location, but excluding all office
clerical employees, confidential employees, tem-
porary employees, buyers, chief draftsman, ma-
chine-shop supervisor, supervisory leadman-expe-
ditor, supervisory leadman-production, supervi-
sory-quality control, supervisor-quality assurance,
supervisior-test, plant services supervisor, profes-
sional employees, guards and other supervisors as
defined in the Act.
EMR PHOTOELECTRIC, A DIVISION OF
SANGAMO WErTON