Home Comfort Products Co.

National Labor Relations Board - Board DecisionsJan 8, 1970

180 N.L.R.B. 597 (N.L.R.B. 1970)

HOME COMFORT PRODUCTS CO. 597 Home Comfort Products Co. and Oil , Chemical and Atomic Workers International Union , AFL-CIO. Cases 38-CA-678 and 38-RC-688 January 8, 1970 DECISION, ORDER, AND CERTIFICATION OF RESULTS OF ELECTION BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND JENKINS On September 26, 1969, Trial Examiner Milton Janus issued his Decision and Report on Objections to Election in the above-entitled proceedings, finding that Respondent had engaged in and was engaging in certain unfair labor practices alleged in the complaint and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. He also found that Respondent had not engaged in certain other unfair labor practices alleged in the complaint and recommended dismissal of those allegations. The Trial Examiner further found merit in the objections by the Union to the election in Case 38-RC-688, conducted on July 18, 1969, and recommended that the election be set aside and that a new election be conducted. Thereafter, Respondent and the General Counsel each filed exceptions to the Decision and briefs in support of their exceptions. The General Counsel also filed a brief in support of part of the Trial Examiner's Decision. Respondent filed a brief in answer to the General Counsel's exceptions. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with these cases to a three-member panel. The Board has reviewed the rulings made by the Trial Examiner at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision and Report on Objections to Election, the exceptions, the briefs, and the entire record in these cases, and hereby adopts the findings, conclusions and recommendations of the Trial Examiner, as modified herein. The amended complaint alleged that Respondent, by its officials, Lester Smith and Wayne Walker, on or about July 12, threatened physical harm and other reprisals to employees because of their union support and activities. The Trial Examiner found that at a company picnic Respondent's President Smith made a statement to nonemployee Fred Begner, the husband of employee Patricia Begner, that would reasonably tend to intimidate Mrs. Begner and other plant employees in violation of Section 8(a)(1). Respondent excepts, contending that the conversation between Smith and Fred Begner 180 NLRB No. 89 was at most a personal quarrel without any relationship to employee rights guaranteed by the Act. We find merit in this exception. At a company picnic held on July 12, 1968, Respondent's Secretary-Treasurer Walker engaged Fred Begner, who was not an employee of Respondent but the husband of employee Patty Begner , in small talk about his job and then asked him what he thought about the union situation in the plant. Begner did not answer, but left to find his wife and tell her what Walker had just said to him. On receiving the report from her husband, Mrs. Begner went to President Smith to complain about Walker's question to her husband. Smith called Walker over and Begner joined the discussion which became somewhat heated. Smith told Begner that he would appreciate it if Begner kept his nose out of the Company's business since he was not an employee. Apparently Begner resented Smith's remarks and asked Smith who he was, "God or something to tell me what I could do with my free time ." Smith again told Begner that the latter had no business interfering with Home Comfort's business and added, "I'll take care of you." Smith then walked away from Begner . Begner followed and asked Smith "what he meant that `he'd take care of me,' if he was going to kill me or something ." Smith did not answer but kept walking away. On these facts the Trial Examiner concluded, "I do not know what Smith could have meant by the "take care of him" remark - certainly no threat of physical harm to Fred Begner - but it does have an ominous ring to it, and would reasonably tend to intimidate Mrs. Begner and other plant employees in exercising their right to engage in concerted activities." He therefore held that Smith's remark was coercive under Section 8(a)(1). We reverse this holding and find no violation. Smith's remark, as the Trial Examiner found, was not a threat of physical harm, as alleged in the complaint. Nor can we find it a threat of other reprisals. It was evidently uttered in exasperation because the pleasant picnic atmosphere had been disturbed by Begner's conduct. As the Trial Examiner found, its meaning was not apparent. Under these circumstances a finding that the remark was coercive and a violation of Section 8(a)(1) is not justified. The Trial Examiner recommended that the election be set aside because of the picnic incident and one other violation that occurred after the Union filed its petition. We have found no violation in Smith's statement at the picnic. The only other alleged violation in the critical period was one statement by assistant foreman Maxine DeBord to employee Patricia Woodruff, in late May, that Patty Begner was another Union instigator. We find that this one statement, made about 7 weeks before the election, was insufficient to affect the results of the election. Accordingly, we shall overrule the objections to the election based on this statement. 598 DECISIONS OF NATIONAL LABOR RELATIONS BOARD We shall also certify the results of the election, which establish that a majority of the valid votes were cast against union representation. ORDER Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recommended Order of the Trial Examiner, and orders that Respondent, Home Comfort Products, Co., Princeville, Illinois, its officers, agents, successors, and assigns , shall take the action set forth in the Trial Examiner's Recommended Order, as herein modified. 1. Delete paragraph 1(a) of the Trial Examiner's Recommended Order and substitute the following therefor: "(a) Threatening employees with discharge or the loss or diminution of their benefits; and threatening them that its plant would be closed down, moved or sold, if activities on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other union did not cease , or if a union succeeded in organizing its plant." 2. Delete the first paragraph of the notice and substitute the following therefor: WE WILL NOT threaten our employees with discharge or loss of benefits, or that our plant will close down, move or be sold, if activities on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other union , do not end or if a union is successful in organizing this plant. IT IS HEREBY FURTHER ORDERED that the complaint be, and it hereby is, dismissed, insofar as it alleges unfair labor practices other than those found herein by the Board. CERTIFICATION OF RESULTS OF ELECTION It is hereby certified that a majority of the valid ballots has been cast against representation by either Oil, Chemical and Atomic Workers International Union, AFL-CIO, or United Steelworkers of America, AFL-CIO, and that neither labor organization is the exclusive representative of the employees in the appropriate unit, within the meaning of Section 9(a) of the National Labor Relations Act, as amended. MEMBER FANNING, concurring in part and dissenting in part: I agree with the majority's affirmance of the Trial Examiner's findings that Respondent in May 1968, immediately following the Union's organizational campaign of April 30, embarked upon the following coercive course of conduct: Foreman Lang threatened employee Patty Begner that her vacation benefits might be diminished or lost if the Union came in; Lang coercively interrogated employee Parrot as to whether she had signed a union card recently; Assistant foreman DeBord threatened employees Davis, Fritz, and Woodruff that certain named employees would be discharged if the Union won the election and created an impression of surveillance by telling Woodruff that the Company knew who the union instigators were , naming employees Searle and Patty Begner , that the Company knew who had signed cards and what went on at union meetings; DeBord threatened that president Smith could close the plant down, sell out, or move south if the Union won. All of the above conduct, except for DeBord's statement to Woodruff linking Patty Begner to the Union, occurred before the Union's petition for an election was filed on May 19, and was therefore not considered by the Trial Examiner in his recommendation that the election be set aside and a new election directed. I dissent from the majority's decision not to direct an election and from its reversal of the Trial Examiner's Decision that president Smith's threat to Fred Begner on July 12, 6 days before the election, that Smith would "take care of" Fred B ;gner was coercive within the meaning of Section 8(a)(1). Although no physical harm may have been intended, Smith's hostile reaction to Fred Begner, the husband of an active and known union adherent, as soon as the question of unionism arose, culminating in the above threat, has, as the Trial Examiner found, an ominous ring, revealing once more to its employees the disfavor with which Respondent viewed the subject of a union at its plant. While the Trial Examiner correctly did not consider the unfair labor practices occurring before the filing of the petition as grounds for setting the election aside, those events require that the Board take a more serious view of the two incidents which did occur after the filing of the petition.' These two incidents, found by the Trial Examiner to be violative of Section 8(a)(1), are: (1) The impression of surveillance created by DeBord's statement to employee Woodruff that Respondent knew Patty Begner to be a union instigator; and (2) The above threat made by the president of the Respondent to Patty Begner's husband a few days before the election. On the basis of these two incidents, in the context of the Respondent's coercive antiunion campaign which preceded the filing of the petition, I would set the July 18 election aside and direct a new election. 'Burlington Rendering Company. 161 NLRB 1, 16-17, enfd 386 F.2d 699 (C.A. 2), Dees of New Jersey 161 NLRB 204, 205-206, enfd. in part 395 F.2d 112 (C.A. 3). TRIAL EXAMINER'S DECISION and REPORT ON OBJECTIONS TO ELECTION STATEMENT OF THE CASE MILTON JANUS, Trial Examiner: A charge was filed on May 16, 1969, by Oil, Chemical and Atomic Workers HOME COMFORT PRODUCTS CO. 599 International Union , AFL-CIO, referred to hereafter as the Union or the Charging Party , and a complaint based thereon was issued on June 13 , 1969.' As amended at the hearing , the complaint alleges that Respondent (also referred to at times as the Company ), through certain named agents violated Section 8(a)(1) by keeping Union meetings under surveillance or intimating that such surveillance had occurred ; by coercively interrogating its employees ; by warning them of, and threatening them with , reprisals ; and by ordering them not to discuss the Union on their free time, all in order to discourage their interest in , and their activities on behalf of the Union. I conducted a hearing in this matter at Peoria , Illinois, on July 22 and 23, 1969. Briefs have been received from the General Counsel and the Company, and have been fully considered. While I was preparing my Decision in Case 13-CA-678, the Deputy Executive Secretary of the Board issued an Order, by direction of the Board , dated September 18, 1969, consolidating that case (the unfair labor practice matter ) with Case 38-RC-688 (the representation matter). The latter case was initiated by a petition filed on May 19, 1969, by the Petitioner , Oil, Chemical and Atomic Workers International Union , AFL-CIO. Pursuant to a Stipulation for Certification Upon Consent Election , entered into on June 11 , 1969, an election by secret ballot was held on July 18, 1969, under the supervision of the Regional Director for Region 13. Participating in the election were the Petitioner and an Intervenor , United Steel Workers of America, AFL-CIO. At the election , out of approximately 149 eligible voters , there were 121 valid votes cast , of which 32 were for the Petitioner, 22 for the Intervenor, and 67 against representation. The Petitioner and Intervenor thereafter filed timely objections to conduct affecting the results of the election. After investigation, the Regional Director for Region 13 issued his Report on Objections, in which he recommended that the Intervenor's Objections be overruled in their entirety, that Petitioner's Objection 2 also be overruled, but that its Objection I be referred by the Board to me for decision because it covers the same grounds as the instant unfair labor practice matter. No exceptions were taken to his Report. This has now been done by the Order dated September 18, 1969, referred to above, directing me to include in my Decision appropriate findings of fact, conclusions of law and recommendations with respect to Petitioner's Objection I. Upon the entire record in these cases, and from my observation of the witnesses and their demeanor, I make the following: FINDINGS OF FACT 1. JURISDICTIONAL FACTS Respondent is an Illinois corporation with its office and place of business at Princeville, Illinois, where it is engaged in the manufacture and sale of building products. During a representative 12-month period preceding the issuance of this complaint, it sold and shipped products valued in excess of $50,000 from its Princeville plant directly to points outside the State of Illinois. I find that Respondent is an employer engaged in commerce within the meaning of the Act. II. THE LABOR ORGANIZATION INVOLVED 'About a week before the opening of the hearing , the General Counsel served on Respondent a notice of intent to amend the complaint by adding more instances of alleged violations of Section 8 (a)(l) committed by agents of Respondent already named in the complaint, and other instances by agents not previously named . At the opening of the hearing, General Counsel moved to amend the complaint to allege the matters set out in his notice plus two other incidents by a supervisor already named in the original complaint . Respondent requested that the hearing be set over at least 10 days , so that it might file an answer to the amended complaint. I granted the motion to amend the complaint , denied Respondent 's motion for a 10-day delay , but stated that it was entitled to additional time, if necessary , to investigate and prepare a defense to the newly stated matters. On the second day of the hearing , Respondent put on its case, calling as its witnesses (except for Lester Smith , president of Respondent who was called by General Counsel under Rule 43(b) of the Federal Rules of Civil Procedure ) all those supervisors and agents who were named in the complaint , as well as a few employees who corroborated their testimony or contradicted that of the General Counsel's witnesses. Respondent did not argue that it needed more time to prepare its defense. After the close of the hearing , Respondent filed an answer to the amended complaint together with a motion to dismiss the entire complaint on the ground that it had been required to proceed to hearing without proper notice as to the additional allegations in the amended complaint. Respondent relies on Sec . 102.15 of the Board 's Rules and Regulations which provides , in part , that the notice of hearing accompanying a complaint shall set the date of the hearing no sooner than 10 days after the service of the complaint. Respondent 's motion to dismiss the complaint is denied, in accordance with Sec . 102.17 of the Rules which provides , in part , that a motion for amendment of a complaint may be granted by the Trial Examiner at the hearing "upon such terms as may be deemed just." Here , I offered Respondent additional time to investigate and prepare its defense to the new allegations , if necessary , but no such request was made . I am satisfied that Respondent was not prejudiced by proceeding with its case the day after the General Counsel 's presentation. Oil, Chemical and Atomic Workers International Union , AFL-CIO, is a labor organization within the meaning of the Act. III. THE UNFAIR LABOR PRACTICES Background The events described below took place during the Union ' s effort to organize Respondent's employees. The campaign began on April 30, 1969, with a pass-out of organizing literature at the plant , and culminated with a representation election on July 18 , 1969, just a few days before the instant hearing . Six union meetings were held - on May 1, 7, and 14 , on June 11, and on July 2 and 17. Princeville , where the Company is located , is a town of less than 1 ,000 population. Its business district is concentrated on one block of Main Street which runs in an east-west direction . The north-south street at the western end of the business district in Santa Fe . The plant is located off Santa Fe Street , less than a half mile north of Main Street . It takes only a few minutes to get from the plant to the business district by automobile. Of the 150 or so employees at the plant, most work on the day shift , which ends at 4:30 p.m. Surveillance The Union's handbill, distributed on April 30, announced an organizational meeting for the plant employees for the next day at 4:45 p.m., to be held at the 600 DECISIONS OF NATIONAL LABOR RELATIONS BOARD VFW Hall. The Hall is located on the south side of Main Street, somewhere in the west half of the business block. On the other side of Main Street, and nearer to Santa Fe Street than the Hall is a Phillips 66 service station where Smith, president of the Company, and other officials were accustomed to have their cars serviced. More nearly opposite the VFW Hall is Christ's Bakery where coffee is served. Shortly after 4:30 p.m. on May 1, while plant employees were gathering at the Hall for the meeting, three top officials of the Company, President Smith, Vice President Milner , and Plant Manager Peters, driving in Milner's car, stopped at the Phillips station for service. All three admitted that they knew a union meeting had been scheduled at the Hall that afternoon, but they denied that their presence on Main Street at that time was to keep the meeting under observation. They testified that they were on their way to Washington, Illinois, about 40 miles away, to confer with a retired trade association official about the impending union campaign, and had stopped to gas up for their 80 mile round trip. Their presence at the station was first noted by Fred Begner, the husband of Patty Begner, a plant employee. He called it to the attention of the Union's two representatives who were there to conduct the meeting. The two (Brave and Cox) went across the street to confront the company officials. Brave, in effect, accused them of being there to spy on the employees. Smith rejected the accusation somewhat heatedly, asserting that he could go anywhere he wanted to on public streets. Smith and his companions then walked over to Christ's Bakery for coffee while their car was being attended to. They were in a position to observe the outside of the Hall, but they denied that they were interested in, or noted, who was there. Patty Begner had stepped into the store next to the Hall when she saw Smith's party, so as to escape their detection. While inside the store, she saw George Lang, her foreman, and Albert Lee, then a product engineer at the plant, each driving his own car down Main Street. Lang and Lee each admitted that he knew about the scheduled union meeting, but denied that his purpose in passing by was to observe, or that he had been asked to do so. Lang said he was following his usual custom after work of going to the post office to pick up his mail, and then either driving home or stopping at a tavern on Main Street for a beer. Lee said he had stopped, after leaving work that day, at a gas station at the east end of Main Street to buy sunglasses, found they had none, and had then proceeded west on Main to Santa Fe Street where he turned off to drive home. These appearances on Main Street by company officials at so sensitive a moment of union organization are suspiciously coincidental but not inherently improbable. It is obviously well within the realm of the probable that officials, as well as other employees, should have legitimate business to attend to immediately at the end of a work day which would cause them to converge on the business district of a town as small as Princeville. A Union which calls a meeting at such a time and place may expect that some , not welcome at the meeting, may by chance happen to cross the paths of its invited guests. I have taken into account the possibility that Lang may have left the plant somewhat earlier on May 1, than on other days, but I do not think very much can be made of it. Even if Lang left a few minutes before 4:45, he could still have gotten down to Main Street in time to be noticed by anyone who had not yet entered the Hall for the meeting I have also considered the testimony of Patty Begner that Lang may have traversed Main Street twice that afternoon, but it is also possible that she may have been mistaken.' Taking into account all the considerations set out above, I find that the General Counsel's evidence does not establish that Smith and his party, Lang, or Lee, intended to engage in surveillance of the Union meeting on the afternoon of May 1.' Unlike other forms of violation of Section 8(a)(1), where intention to commit an offense may be irrelevant, a necessary element of illegal surveillance is a conscious intent to keep union activities under observation.' Based on the same considerations, I also find that Lang's driving down Main Street soon after 4:30 p.m. on the afternoons of May 7 and 14, when Union meetings were also being held at the VFW Hall, is not attributable to any intent on his part to keep the meetings under surveillance George Lang Conversation with Patty Begner . Lang, who is Begner's foreman, talked with her sometime after May 7, the date of the second Union meeting. He showed her a photostat of the Union's authorization card, and asked her, either whether she had seen one like it, or whether she knew what it was. She said she hadn't, and Lang then told her that by signing such a card she would have to start paying union dues, and that there wouldn't be an election I find Lang's inquiry to be noncoercive interrogation. He did not ask her if she had signed such a card to to reveal her sympathies and intentions. His further remarks that by signing a card she would obligate herself to pay union dues and make an election unnecessary are, if not the whole truth, at least close enough to it so that no substantial interference with her Section 7 rights can be found. Begner also testified that a few days before this conversation, she had asked Lang whether she would get a vacation that year. Alluding to her inquiry in the later conversation, Lang said to her, according to Begner, "You know, you have got a vacation coming up, and if the union gets in you won't be able to get your vacation because they'll tell you when to take it." Lang denied having said anything to her at that time about her vacation or about tying in the possible advent of the union to her vacation. I have little to go on in deciding whether it was Begner or Lang who more correctly recalled whether vacations were mentioned in their later conversation. Begner had been hired toward the end of the previous year, and I consider it quite likely that Lang would pick up her earlier inquiry and take the opportunity to make a point against the Union by intimating that union representation could affect her vacation rights. The issue is close, but I trust Begner 's recollection over Lang's, and credit her. I am satisfied that Lang's remark about Begner 's vacation rights being affected if the Union was the bargaining agent is a threat of loss of benefits, proscribed by Section 8(a)(1). 'Begner had also testified that a fourth man, Hendricks , was in Smith's party that day. I am satisfied that she was mistaken on that point. 'I find it unnecessary, therefore , to decide whether Lee was a supervisor or Company agent on that date 'Wes! Point Manufacturing Company, 142 NLRB 1161, 1162, and Murray Ohio Manufacturing Company, 155 NLRB 239, 250. HOME COMFORT PRODUCTS CO. 601 Conversation with Bessie Parrott. Lang also showed Parrott, an employee in his department, a copy of the union authorization card, shortly after the first union meeting and asked her if she knew what it was. She said she did, that she had signed one some months back. According to Parrott, Lang then asked her if she signed one recently. Lang's testimony, on the contrary, is that he had not asked her whether she had signed a card or how she felt about the union, although he agreed with her that he had shown her a copy of the union 's authorization card. He said that he had read the card to her and had told her that by signing it she would forfeit the right to an election. Lang also testified that Parrott had then said to him that she did not want a union in there and wouldn't sign a card. I think it is likely that Lang did tell Parrott, as he had Begner , that signing the card would foreclose the right to an election.' I also think that Lang then took advantage of Parrott's admission that she had signed a card some months back, to ask her if she had also signed one recently. I credit Parrott on this point. An inquiry of an employee during the sensitive early stages of an organizing campaign as to whether she has signed an authorization card is coercive. I find Lang's question of Parrott as to whether she had recently signed a card to be a violation of Section 8(a)(l).' Conversation with Marsha Snell. On June 24, Lang called Snell into his office to tell her that she was entitled to an automatic wage increase and to review her work performance. Lang then asked her what she thought of the union situation. Snell told him that her father had told her to think it over, and Lang agreed that that was a good idea. He then told Snell that if the Union got in, it wouldn't permit conversations between employer and employee such as they were having. I find nothing violative of the Act in these remarks. Lang's inquiry of Snell as to what she thought of the union situation, although perhaps intended to lead into a discusssion of the disadvantages of unions was cut short by Snell's answer that she was going to think about it. Lang's other remark that if the Union got in, they could not have such conversations is ambiguous - it may have been intended to refer to reviews of work performance between supervisor and employee, or to what Lang considered to be the friendly manner in which his talk with Snell was apparently going. In either event, Lang was not predicting that the Company would deprive its employees of anything they were now enjoying if they chose union representation, but only that the advent of the Union could lead to a more formal, less intimate relationship between employer and employee.' Maxine DeBord DeBord is an assistant foreman in Lang's department. The issues fully litigated at the hearing with regard to DeBord's conduct are (a ) whether she had told certain employees that others, named and unnamed , would be discharged if the Union got in; (b) whether she had told certain employees that the company knew who the instigators of the Union were, and that it knew everything that went on at union meetings ; (c) whether she had 'The card , which is in evidence as Resp . Exh. I is a clear and unambiguous designation of the Union as bargaining representative. It makes no mention of an election as a possible means of obtaining recognition. 'Little Flower Nursing Home . 175 NLRB No. 106. 'Nuirena Mills , 172 NLRB No. 24, Sec. III, B , 1, of Trial Examiner's Decision. threatened that the plant would be closed, and other reprisals, if the Union were successful; and (d) whether she had tried to get one employee to find out from another employee what had taken place at a recent union meeting. (a) Threats of Discharge. Three witnesses testified for the General Counsel that DeBord had told each of them that if the Union got in certain employees would be discharged. Danny Davis said that DeBord had told him the third or fourth week in May that there were six employees who would be discharged if the union got in. He asked her who they were, but she would not name them. Bernice Fritz testified that during the second week of May, DeBord had told her that if the Union got in, Danny Davis and another employee would be fired. Fritz then asked her about still another employee, and DeBord is supposed to have said, "Yes, her too." According to Patricia Woodruff, DeBord had told her during this period that Davis and two other named employees would probably be the first to go if the Union got in. DeBord categorically denied telling anyone that any employees would be discharged if the Union got in. (b) Creating Impression of Surveillance. Woodruff also testified that early in May DeBord had told her that employee Harriet Searle was a Union instigator, that they knew Searle was passing out cards and were watching her. A week or so later, DeBord told her that they knew everyone who had signed union cards and knew everything that went on at union meetings. Woodruff testified that she had asked DeBord how she knew, and that DeBord had said they had ways of finding out. In a third conversation toward the end of May, according to Woodruff, DeBord told her that Patty Begner was another Union instigator, and that her husband had no business attending union meetings. DeBord's version of her conversations with Woodruff are quite different. As for the first, involving mention of Searle, DeBord testified that she had seen Searle give Gail Stoner a card, and had seen Stoner sign and return it to Searle. The next day, Woodruff said to her that Stoner had put one over by signing a card under her nose. DeBord said she then told Woodruff that nothing had been put over on her, that she had seen Stoner sign, and knew that Searle was passing out cards. As for the second conversation, DeBord denied Woodruff's version, but did recall a conversation with her when the latter said that the Union needed to have only two more cards to be signed to be automatically "in" and that DeBord had merely replied that they weren't signed yet. As for their last conversation, DeBord denied that she had said to Woodruff that Patty Begner was an instigator of the Union, but had only said that if the Union let Fred Begner into its meetings, it would let anyone in off the street. (Fred Begner was employed elsewhere but had attended some organizational meetings with his wife.) (c) Other Threats of Reprisals. (1) Searle testified that the day after the first union meeting, she and DeBord were sitting together before work began when another woman, whom Searle remembered as Marie Green, an office employee, came up and asked them if they had gone to the meeting the day before. Searle said she had gone and that she was interested in it, to which DeBord replied that she had heard from higher authority that if the place went union, they would close it down. Green testified that she did not remember any such conversation, and had never heard DeBord tell Searle that the plant would close if the Union got in. 602 DECISIONS OF NATIONAL LABOR RELATIONS BOARD DeBord recalled a conversation with Searle the day after the first union meeting , but denied that Green had been there. Her version is that she and Searle had been discussing the Union and the meeting, and that Searle had first offered her a card, then jerked it back, and asked DeBord what she could do about it. DeBord said that she didn't intend to do anything, at which Searle got angry and used some harsh language toward her. DeBord denied that she had ever said anything to Searle about whether the plant might be closed. (2) According to Bernice Fritz, DeBord told her the day of the first meeting that if the Union got in, Mr. Smith could close the doors and could move the plant down south - that DeBord had named the state down south, but she couldn't remember which one it was. Other employees were present, but Fritz wasn't sure whether they had overheard the conversation. DeBord agreed that she had had a conversation with Fritz the day of the first meeting, but said that other employees had also participated in it . Someone had asked DeBord if DeBord could go to the Union meeting, and DeBord had said she did not know. A general discussion about unions followed, in which someone adked her if Mr. Smith would close the factory if the union got in. DeBord answered that he could if he wanted to, that it was his company and his money, and she assumed he could do as he pleased with it. DeBord admitted answering a question of Fritz's by saying that Smith could close or sell out if he wished, or move down south, but that she had said it jokingly. She denied ever saying that Smith would close the plant if the Union got in. (3) Woodruff testified that DeBord had also told her between the second and third union meetings that if the Union got in, Mr. Smith could shut his doors, that he had been looking for land in Arkansas where he could move the plant, and that he could take 2 years to drag out the Labor Board charges that had been filed against him. DeBord denied ever telling Woodruff in a private conversation that Smith would close the plant or that he was looking for land in Arkansas, but admitted that there had been a general discussion in which she had been asked if the plant could remain open if this case was kept in court for 2 years. DeBord said she did not know whether Smith would close, sell out or move south. When someone asked her where, she said jokingly, maybe to Arkansas. This discussion at which Woodruff was also present may be the one already referred to by DeBord and Fritz. (4) After the second union meeting , DeBord said, according to Fritz, that if the union got in , the employees would go on production or piece work.' DeBord testified that she had taken part in a conversation at which the question came up as to what the starting rate was at union plants, and that she had said, in effect, that she did not think her employees were efficient enough to meet the production quotas of an organized plant, where hourly rates were higher than the Company was paying. (d) Interrogation. Danny Davis testified that DeBord asked. him, the day after the second union meeting, to ask Bernice Fritz with whom he worked about the meeting, who had been there, and what had been discussed. Davis had attended the meeting. DeBord testified however, that it was Davis who had come to her the morning after the meeting to ask her how 'Although the point was not clearly made , it is my impression , based on a conversation between Fritz and DeBord as to what the former's production was compared with that of another employee , that some kind of quota system was already in effect. it had gone. She said she told him that she would not know, they would not have let her in even if she had gone, but that he could ask Bernice (Fritz) who she understood, had been there. Later that day, according to DeBord, Davis came to tell her that Fritz had been at the meeting. DeBord then said, "Oh, how did it go then?" and that he had said that the man (at the meeting) had promised them $3 or $3.50 per hour. DeBord said she knew that Fritz had gone to the meeting because Fritz had told her so the next morning without being asked. (e) Findings as to DeBord's conversations. Many of DeBord's conversations related above were with Patricia Woodruff. In their briefs, the General Counsel and the Respondent each impugns the credibility of the other's witness. The General Counsel accuses DeBord of being devious and evasive, while the Respondent characterizes Woodruff's testimony as having been completely discredited.' My own impression of their demeanor and testimony is that both characterizations are exaggerated. Turning to the specific classes of incidents in which DeBord was involved, there is first, the testimony of Davis, Fritz, and Woodruff, that DeBord had told each of them separately that some employees would be discharged if the Union got in, as against DeBord's flat denial that there had been any such conversations. There is little or no background evidence from which I might derive a general impression as to the probabilities - but that is perhaps so because there may have been no further evidence available. Although I am not convinced merely by the count of witnesses on either side, I think it is worthy of note that three witnesses should testify with some specificity, that their supervisor took steps to inform each of them soon after the inception of the union campaign that certain employees had been marked for discharge if the Union got in. DeBord did engage in frank conversations about the Union with these and other employees, and statements which she admitted having made to employees about Smith's right to close the plant if he wanted to, are at least some indication that she thought that Smith was opposed to the Union. On a matter so dependent on slight differences of demeanor, it is difficult to decide between opposing testimony, but on balance I believe that Davis, Fritz, and Woodruff reported DeBord's conversations with them accurately, to the effect that employees would be discharged if the Union got in. I find these to be threats which are clearly in violation of Section 8(a)(1). There is also a sharp conflict of testimony as to conversations between DeBord and Woodruff in which, according to Woodruff, DeBord named Searle and Begner as instigators for the Union, and said that they (the Company) knew everyone who had signed union cards and everything that went on at union meetings. There was probably more to these conversations than Woodruff's bare recital would indicate and it is quite possible that what DeBord testified she said to Woodruff is true. The essential question is still, however, whether Woodruffs 'This is partially based on Respondent 's charge that Woodruff had tried to persuade two fellow employees to corroborate her testimony even though neither had been present at any of the conversations she was being asked to testify about . I find this charge is unsubstantiated . Woodruff asked employees Huffman, Wages , and Langdon if DeBord had made the same sort of statements to them which Woodruff claimed DeBord had made to her. The testimony of Huffman, Wages and Langdon that Woodruff asked them to testify "against Maxine" (DeBord ) may be based on their impression of Woodruffs bias against DeBord, but I am satisfied that Woodruff did not ask , nor expect them to testify to anything about which they did not have personal knowledge HOME COMFORT PRODUCTS CO. 603 version is also true despite DeBord' s denials . I find that it is. Woodruff s manner in testifying impressed me. She seemed to me to be concerned about the truth, and unwilling to enlarge on her present recollections. I credit her testimony and find that DeBord's statements that Searle and Patty Begner were Union instigators, and that the Company knew everything that went on at Union meetings and who had signed cards, created an impression that its employees' union activities were being observed and reported on, in violation of Section 8(a)(1).'° There is no indication that union activity or display of union sympathies were so widespread or so openly carried out at the plant that DeBord's statements would imply common knowledge obtainable other than through surveillance. DeBord admitted telling groups of employees when Fritz and Woodruff were present that if the Union got in, Smith could close the factory, sell it or move away since it was his company and his money, and he could do with it what he pleased. She denied saying that he would do it, but only that he could, and even this, she said, was done jokingly. I believe that these remarks were intended by DeBord to be taken seriously, even if spoken with a trace of levity, and I suspect that the levity, if any, was lost on the employees. Their questioning DeBord as to what Smith might do if the Union got in shows that it was a matter of concern to them, and DeBord's answers, that because Smith owned the plant he had unrestrained liberty to do as he pleased, would reasonably have the effect of coercing the employees into not taking action which could bring about the loss of their jobs. The distinction between "would close the plant" and "could close the plant" which DeBord made in her testimony, and on which Respondent relies in its brief is not, in the context in which the conversations took place, substantially different. DeBord was predicting that the coming of the Union gave Smith certain options and that he would be free, in that event and for that reason alone, to close down, sell out or move south. These are threats which are in violation of Section 8(a)(1). In view of this finding, I find it unnecessary to resolve in the credibility issue posed by the different versions of Searle and DeBord in their conversation the day after the first union meeting. Fritz testified that DeBord had told her that if the Union got in, the employees would go on production or piece work. If that was all DeBord had said, it seems to me to be too ambiguous to constitute a threat of reprisal. DeBord's testimony is that she had said the plant would have to go on production because, in effect, the employees were not efficient enough to earn the wage rates prevailing in organized plants. I see no threat of economic reprisal for union activity in DeBord's extension of her remarks about going on a production basis, as she was only pointing out that higher wage rates might require more efficient operations." As for DeBord's conversation with Davis about the second union meeting : Davis testified that DeBord had asked him to find out the essential details of the meeting from Fritz, while DeBord said she had told Davis to talk to Fritz if he wanted to know about it. It is true that if Davis had himself gone to the meeting, there would have been no point in his asking DeBord about it, particularly since he would have known that DeBord, being a supervisor, would not have been there. So far, Davis's "Exber d/b/a El Cortez Hotel, 160 NLRB 1442, 1451-52, and Central Power A Light Company. 173 NLRB No. 50. "The Bartley Company, 170 NLRB No. 80. testimony that it was DeBord who asked him to report back to her, seems more probable. However, in this instance, I credit DeBord over Davis. I suspect that Davis, a young man, was being playful with his female supervisor, and that he did not really expect a responsive answer to his question as to how the meeting had gone. I also suspect that DeBord was being playful too in suggesting that he ask Fritz if he really wanted to know. Thus, crediting DeBord, I find nothing improper in her remarks to Davis that he could talk to Fritz about the union meeting. The company picnic on July 12 A few days before the Company picnic, DeBord checked with Pat Begner on who in her family would be coming. Begner testified that DeBord then said that if they came to the picnic, they were not to talk about the Union, and if they did they would be asked to leave the grounds. DeBord's testimony on this matter is, in effect, that because of the heat that day and production problems, the employees were disgruntled, and that consequently, she had told Begner that the picnic was to be a day of relaxation with plant problems to be forgotten. DeBord denied that she forbade discussion of the Union but admitted she said to Begner that anyone bringing up business would be asked to leave. Although I believe that Begner's testimony about DeBord banning union talk at the picnic is more credible than DeBord's explanation, I do not find any violation in what was said to Begner. There was no invalid rule against discussing the Union at the plant, and talk about it apparently occurred with the knowledge of supervisors, so that DeBord's remark must, I think, be viewed more as an attempt to ensure a noncontroversial atmosphere at the picnic than as a rule to be taken seriously. Furthermore, the coercion implied in DeBord's remark that violators would be asked to leave the picnic strikes me as minimal to the point of evanescence. One untoward incident did occur at the picnic. The secretary-treasurer of the Company, Walker, first engaged Fred Begner in small talk about his job, and then asked him what he thought about the situation at the plant. Walker was referring to the Union campaign (the election was scheduled for the following week), and Begner understood his reference. Begner thereupon left to find his wife to tell her what Walker had just said to him, and Mrs. Begner quickly went to find President Smith to complain to him about Walker's query of her husband. Smith called Walker over, and Fred Begner then joined the discussion which became somewhat heated. Smith told Fred Begner that he would appreciate it if Begner kept his nose out of the Company's business, since he was not an employee of Home Comfort. So far there is substantial agreement in the testimony of all the participants. At this point, according to Fred Begner, he asked Smith who he thought he was, and that Smith again told him he had no business interfering with Home Comfort's business, and added, "I'll take care of you." Smith then walked away, with Begner following him. Begner asked him what he meant by "taking care" of him, whether he was going to kill him. Smith and Walker both denied that Smith had said "I'll take care of you" or had uttered any threat to Fred Begner, but Walker did corroborate Begner's testimony, that as Begner was following Smith as the latter walked away, Begner said to him, "What are you going to do, kill 604 DECISIONS OF NATIONAL LABOR RELATIONS BOARD me?" It seems to me that Begner's final remark, as testified to by him and confirmed by Walker, makes no sense in the context of the argument unless it had been preceded by something in the nature of a threat by Smith. I therefore credit Fred Begner and find that Smith, exasperated by what he regarded as interference in his affairs by a non-employee, said to Begner, "I'll take care of you." I do not know what Smith could have meant by the remark - certainly no threat of physical harm to Fred Begner but it does have an ominous ring to it, and would reasonably tend to intimidate Mrs. Begner and other plant employees in exercising their right to engage in concerted activities. I find that Smith's statement to Fred Begner that he would "take care of him" is restraint and coercion under Section 8(a)(1). Summary of unfair labor practice findings I have found the following incidents to be violative of Section 8(a)(1). (1) Lang's threat to Patty Begner shortly after May 7 that her vacation benefits might be diminished or lost if the Union got in; (2) Lang's coercive interrogation of Parrott, shortly after May 1, as to whether she had signed a union card recently; (3) DeBord's threats to Davis (third or fourth week in May) and to Fritz and Woodruff (second week in May) that certain named employees would be discharged if the Union got in; (4) DeBord's creating an impression of surveillance of employees' union activities by telling Woodruff that the Company knew who the union instigators were, who had signed union cards, and what went on at union meetings (during May, with the last such statement occurring toward the end of May); (5) DeBord's predictive threats that Smith could close the plant, sell out, or move south if the Union got in, all of which were made in the first half of May; and (6) Smith's threat at the company picnic on July 12 that he would take care of Fred Begner. IV. CONDUCT AFFECTING THE RESULTS OF THE ELECTION Only conduct occurring on and after the date of the filing of a petition may be considered in determining whether to set aside an election because of interference with the employees' exercise of a free choice.' 3 Most of the conduct which I have found to be violative of Section 8(a)(l) occurred, however, before May 19, 1969, the date on which the petition was filed, and is therefore to be disregarded with respect to the issue of whether objectionable conduct affecting the results of the election has also occurred. There are, however, two incidents clearly within the critical period, from the date of the petition to the date of the election, and one, which because of the indefiniteness of the date ascribed to it, may have taken place either inside or outside that period. The two incidents on which I may rely because they took place after May 18, are DeBord's telling Woodruff that Patty Begner was one of the Union instigators, and Smith's threat to Fred Begner that he would take care of him. The third incident, described as having occurred the third or fourth week of May (May 19 was in the middle of the third week) involved DeBord's threat to Davis that certain employees would be fired if the Union got in. I am not satisfied that the General Counsel has met his burden "Goodyear Tire and Rubber Company, 138 NLRB 453 with respect to this incident of establishing that it definitely occurred on or after May 19, and I shall therefore not rely on it. However, the first two incidents did take place after the filing of the petition and are, in my opinion, of sufficient gravity to warrant setting the election aside. One involves a threat of discharge and the other an implication of surveillance of union activities, which by their nature would tend to reach a wider audience than the particular person to whom each was directed. Accordingly, I recommend that the election of July 18, 1969, be set aside, and a new election be conducted at a time to be determined by the Regional Director. V. THE EFFECTS OF THE UNFAIR LABOR PRACTICES UPON COMMERCE The activities of the Respondent set forth in section III, above, occurring in connection with its operations described in section I, above, have a close, intimate, and substantial relation to trade, traffic, and commerce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow thereof. VI. THE REMEDY Having found that the Respondent has engaged in unfair labor practices violative of Section 8(a)(1) of the Act, I shall recommend that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact and upon the entire record in the case, I make the following CONCLUSIONS OF LAW 1. The Respondent, Home Comfort Products Co., is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Oil, Chemical and Atomic Workers International Union, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. By interfering with, restraining, and coercing its employees in the exercise of rights guaranteed by Section 7 of the Act, Respondent has engaged in unfair labor practices within the meaning of Section 8(a)(1) of the Act. 4. The aforesaid unfair labor practices affect commerce within the meaning of Section 2(6) and (7) of the Act. 5. Respondent did not engage in unfair labor practices other than as found herein. RECOMMENDED ORDER Upon the foregoing findings of fact and conclusions of law, and upon the entire record in the case, I recommend that Home Comfort Products Co., its officers, agents, successors , and assigns , shall: 1. Cease and desist from: (a) Threatening employees with discharge or the loss or diminution of their benefits ; threatening them that its plant would be closed down , moved or sold; and threatening them that it would "take care" of someone, if activities on behalf of Oil, Chemical and Atomic Workers International Union, AFL-CIO or any other union did not cease , or if a union succeeded in organizing its plant. (b) Coercively interrogating its employees as to whether they had signed union authorization cards. HOME COMFORT PRODUCTS CO. (c) Creating or conveying the impression to its employees that it knew who the instigators of the union were, that it knew what went on at union meetings, and who had signed union cards. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to loin or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities. 2. Take the following affirmative action which it is found will effectuate the policies of the Act- (a) Post at its plant at Princeville, Illinois, copies of the attached notice marked "Appendix."" Copies of said notice to be furnished by the Officer-in-Charge for Subregion 38 shall, after being duly signed by an authorized representative of the Respondent, be posted by it immediately upon receipt thereof and maintained by it for a period of 60 consecutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that said notices are not altered, defaced or covered by any other material. (b) Notify the Officer-in-Charge for Subregion 38, in writing, within 20 days from the receipt of this Decision and Report what steps it has taken to comply herewith." I FURTHER RECOMMEND that the complaint be dismissed as to any alleged violations not found herein; and that the election held on July 18, 1969, in Case 38-RC-688 be set aside, and that said case be remanded to the Regional Director for Region 13 to conduct a new election when he deems that circumstances permit the free choice of a bargaining representative. "in the event no exceptions are filed as provided by Section 102 46 of the Rules and Regulations of the National Labor Relations Board, the findings, conclusions , recommendations, and Recommended Order herein shall, as provided in Section 102.48 of the Rules and Regulations, be adopted by the Board and become its findings , conclusions , and order, and all objections thereto shall be deemed waived for all purposes In the event that the Board 's Order is enforced by a judgment of a United States Court of Appeals, the words in the notice reading "Posted by order of the National Labor Relations Board" shall be changed to read "Posted pursuant to a Judgment of the United States Court of Appeals Enforcing an Order of the National Labor Relations Board " "If these Recommendations are adopted by the Board , this provision shall be modified to read : "Notify the Officer- in-Charge for Subregion 38, in writing , within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO EMPLOYEES 605 Posted by Order of the National Labor Relations Board an agency of the United States Government WE WILL NOT threaten our employees with discharge or loss of benefits , or that our plant will close down, move or be sold, or that we will " take care" of anyone, if activities on behalf of the Oil , Chemical and Atomic Workers International Union, AFL-CIO, or any other union , do not end or if a union is successful in organizing this plant. WE WILL NOT coercively interrogate any of our employees as to whether they have signed union authorization cards. WE WILL NOT create or convey the impression to our employees that we know who the instigators of the union were, that we knew what went on at union meetings , or that we knew who had signed union cards. WE WILL NOT in any like or related manner interfere with, restrain or coerce our employees in the exercise of their right to self-organization , to join or assist Oil, Chemical and Atomic Workers International Union, AFL-CIO, or any other labor organization , to bargain collectively through representatives of their own choosing , or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection , or to refrain from any or all such activities. All our employees are free to become, or remain, or to refrain from becoming or remaining , members of the above-named or any other labor organization. Dated By HOME COMFORT PRODUCTS CO. (Employer) (Representative) (Title) This is an official notice and must not be defaced by anyone. This notice must remain posted for 60 consecutive days from the date of posting and must not be altered, defaced, or covered by any other material. Any questions concerning this notice or compliance with its provisions, may be directed to the Board's Office, Fourth Floor, Citizens Building, 225 Main Street, Peoria, Illinois 61602, Telephone 309-673-9291.