Morganton Dyeing and Finishing Corp.

National Labor Relations Board - Board Decisions

Aug 11, 1965

154 N.L.R.B. 404 (N.L.R.B. 1965)

404 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
6. To entertain and adjust grievances and complaints of the employees
on his shift which arise during such shift and which concern work-
ing conditions and relations with other employees and with the
Company and otherwise to provide for and to maintain the orderly,
harmonious, and efficient working together of such employees in the
accomplishment of the work to be done.
7. To administer appropriate discipline in accordance with prescribed
procedures.
This bulletin in published for the purpose of clarifying and establish-
ing the position and supervisory status of the subject employees who
in addition to the foregoing shall continue to have and exercise the
authority, duties, and responsibilities heretofore established.
J. A. Norgaard
Wood River, Illinois
September 29, 1964
Morganton Dyeing and Finishing Corporation and Textile Work-
ers Union of America , AFL-CIO, CLC. Case No. 11-CA-?136.
August 11, 1965
DECISION AND ORDER
On June 3, 1965, Trial Examiner Stanley N. Ohlbaum issued his
Decision and Report on Objections to Election in a consolidated
proceeding, finding that the Respondent had engaged in certain
unfair labor practices alleged in the complaint in Case No. 11-CA-
2436 and recommending that it cease and desist therefrom and take
certain affirmative action, as set forth in the attached Trial Exam-
iner's Decision. The Trial Examiner further found that the Respond-
ent had not engaged in certain other unfair labor practices alleged
in the complaint and recommended the dismissal of these allega-
tions. With respect to the objections to election in Case No. 11-RC-
1947, the Trial Examiner found that they have merit, and recom-
mended that the election held on May 15, 1964, be set aside and a
new election be directed. The Respondent filed exceptions to the
Trial Examiner's Decision and Report on Objections to Election
insofar as the Respondent was found to have violated the National
Labor Relations Act, as amended, and to have engaged in objec-
tionable conduct, and filed a brief in support thereof. No exceptions
were filed by the General Counsel or the Charging Party.
On July 14, 1965, and after the case was transferred to the National
Labor Relations Board, the Petitioner in Case No. 11-RC-1947
requested permission to withdraw its petition in that case. On July 19,
154 NLRB No. 31.
MORGANTON DYEING & FINISHING CORPORATION 405
1965, the Board, having duly considered the matter, ordered that
Cases Nos. 11-CA-2436 and 11-RC-1947 be severed, the Petitioner's
request for withdrawal of the petition in Case No. 11-RC-1947 be
granted, and the representation case be closed.
Pursuant to the provisions of Section 3 (b) of the Act, as amended,
the Board has delegated its powers in connection with Case No. 11-
CA-2436 to a three-member panel [Chairman McCulloch and Mem-
bers Fanning and Jenkins].
The Board has reviewed the rulings of the Trial Examiner made
at the hearing and finds that no prejudicial error was committed.
The rulings are hereby affirmed. The Board has considered the
Decision, the exceptions and brief, and the entire record in the case,
and hereby adopts the findings, conclusions, and recommendations
of the Trial Examiner insofar as they are applicable to Case No. 11-
CA-2436.1
ORDER IN CASE NO. 11-CA-2436
Pursuant to Section 10(c) of the National Labor Relations Act,
as amended, the National Labor Relations Board hereby adopts as
its Order the Recommended Order of the Trial Examiner, as modified
herein, and orders that Morganton Dyeing and Finishing Corporation,
Morganton, North Carolina, its officers, agents, successors, and assigns,
shall take the action set forth in the Trial Examiner's Recommended
Order, as so modified :
Delete at the end of the Order the following language :
.. . and that the election held on May 15, 1964, in Case No. 11-
RC-1947, be set aside and that said case be remanded to the Re-
gional Director for Region 11 to conduct a new election at such
time as he deems that circumstances permit free choice of bar-
gaining representative.
1 The Respondent excepted to the credibility determinations made by the Trial Ex-
aminer. It is the Board 's established policy not to overrule a Trial Examiner 's resolu-
tions as to credibility unless the clear preponderance of all the relevant evidence
convinces it that the resolutions are incorrect Such conclusion is not warranted here.
Standard Dry Wall Products , Inc, 91 NLRB 544, enfd. 188 F. 2d 362 (C.A. 3).
TRIAL EXAMINER'S DECISION AND REPORT ON OBJECTIONS TO
ELECTION
STATEMENT OF THE CASE
These are consolidated cases heard before Trial Examiner Stanley N. Ohlbaum
in Morganton, North Carolina , on December 8 through 10, 1964 ,1 with all parties
represented and participating throughout by counsel. The entire record and the
briefs received subsequent to the hearing have been carefully considered.
Case No. 11-CA-2436 involves charges by Textile Workers Union of America,
AFL-CIO, CLC, herein called the Union, against Morganton Dyeing and Finish-
1 Dates are 1964 throughout unless otherwise stated.
406 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing Corporation, herein called the Employer or Respondent,2 of various acts of
interference, restraint, and coercion of employees exercising rights guaranteed in
Section 7 of the National Labor Relations Act, as amended, herein called the Act.
The acts claimed to have been in violation of Section 8 (a) (1) of the Act allegedly
involved Employer interrogation of employees regarding union matters; threats of
discharge for union activity and of plant closure in case of unionization; and sur-
veillance of union meeting activities. Respondent denied these allegations.
Case No. 11-RC-1947 arises out of a representation election conducted by the
Board on May 15 which the Union lost 3 and to which it filed timely objections,
some of which have been referred for disposition here since they involve issues in
the unfair labor practices case.4
Upon the entire record 5 and my observation of the witnesses, I make the
following:
FINDINGS AND CONCLUSIONS
I. RESPONDENT'S BUSINESS; LABOR ORGANIZATION INVOLVED
At all material times, Respondent has been and is a New Jersey corporation
with its plant and place of business in Morganton, North Carolina, where it is
engaged in the business of dyeing and finishing textile products. In the 12-month
period immediately preceding issuance of the complaint, Respondent received at
its said plant over $50,000 worth of raw materials and shipped therefrom over
$50,000 worth of finished products directly from and to points outside of North
Carolina, directly in interstate commerce.
I find that during the representative 12-month period immediately preceding
issuance of the complaint and at all material times , Respondent has been and is an
employer within the meaning of Section 2(6) and (7) of the Act; that at all
material times the Union has been a labor organization within the meaning of
Section 2(5) of the Act; and that assertion of jurisdiction in this case is proper.
II. THE ALLEGED UNFAIR LABOR PRACTICES
Background
Respondent 's textile finishing operations , conducted in a leased plant about 4
miles from the town of Morganton, North Carolina, are limited to commission
dyeing for others, with no inventories of materials owned by Respondent. The
average number of employees during 1964 was around 200, about 10 percent
women.
A drive to unionize Respondent's plant was started at the beginning of Febru-
ary by the Union. The keyman in the plant in this effort was Charles A. Butler,
a vat or tub operator, at whose house an initial organizational meeting was held
by employees on February 6.
The events about to be described took place in and after February, mainly up
to the time of the Board-conducted representation election of May 15, in a context
of an election campaign in which Respondent, while seeking to get out a maximum
vote, exhibited marked opposition to unionization of its plant.6
On or about March 22, Union Organizer Robert Freeman was introduced to
Respondent's vice president, Alfred DiSanto, by Butler, who said, "Things are going
to get awful hot now, boys." On March 24 the Union formally notified Respond-
ent by registered mail that Butler was a union committeeman assisting in the
2 Original and first and second amended charges were filed respectively on May 20 and
July 21 and 23. Complaint and also Second Supplemental Decision , Direction , and Order
Consolidating Cases ( i.e., unfair labor practices and representation cases ) were issued by
the Acting Regional Director for Region 11 on September 9.
3 Of 179 votes cast, 75 were for and 78 against the Union and 26 were challenged. On
August 12 , the Acting Regional Director sustained 3 and overruled 13 of these challenges :
opening and tabulation of these 13 ballots on August 28 produced a revised tally of 76
for and 90 against the Union , mooting the 10 undetermined challenges.
4 Of nine union numbered objections , six were overruled and three were referred to the
Trial Examiner together with two additional matters or issues allegedly raised by the
Acting Regional Director sua sponte . ( See infra, section III, report on objections to
election and matters referred by Regional Director.)
s As corrected by my order dated May 10, 1965
a Evidenced in part by literature which it dispensed to employees No implication is
intended hereby that employer opposition or hostility to unionization Is of itself illegal
or improper
MORGANTON DYEING & FINISHING CORPORATION 407
organization of the plant. On March 25 Respondent wrote Butler a registered
letter acknowledging receipt of the Union's March 24 letter "from a man named
Williams who says he is a representative of the Textile Workers Union of America."
Respondent's letter to Butler continues- "In that letter, he says you have joined
his union and are apparently some sort of committee member or part time em-
ployee of his union . The letter seems to imply that because you have acquired
that status with his union you are entitled to some sort of special privileges in this
plant." Respondent's letter then goes on to point out that Butler would have no
special privileges and that he would be "subject to discipline, inculding [sic] dis-
charge in the proper case" in the event he did "not follow Company rules, if you
do not do your work properly, if you neglect your work, or if you interfere with
the work of others ...." It is undisputed that copies of this registered letter of
March 25 from Respondent to Butler were posted on the bulletin board and else-
where throughout the plant, and that Butler marked on it that he was not an
employee of any union.
On March 26 Butler was discharged by Respondent. An unfair labor practice
charge filed by the Union, based upon this discharge (and II other employee ter-
minations), resulted in an action by the Regional Director declining to proceed
therewith, because unwarranted in view of insufficient evidence On November 3,
General Counsel sustained this action of the Regional Director declining to issue
a complaint based upon these employee terminations.
A. Interrogation
A number of incidents of interrogation of employees by supervisors is alleged
to have occurred.
Charles A. Butler, the second-shift vat operator who spearheaded the union
drive, testified that, shortly after the plant organizational activities started in
February, his foreman, Larry Lane, asked him into his office, where Lane told him
that "there were a lot of rumors floating around about a union . . . trying to get in
over here . . . I know how you feel about a union , I know that you believe in a
union . . . rumors keep floating around and they blame it all on the second shift
They say that that is where it is . . . that is where all of it started ... the manage-
ment at first laughed . . . it off and said, Frank DiSanto [president] said he was
more interested in cloth than he was in the union, that he was worried about ten
thousand yards of re -dyes sitting out there . But ... now it is getting serious, and
... you have been pegged from the very beginning . . . Fred Lane [Butler's pre-
vious foreman, unrelated to Larry Lane] said if anybody was organizing a union or
would start one that you would be the one ... you have been pegged." 7 Accord-
ing to his testimony, Butler shrugged his shoulders at this and left Lane's office.
On various occasions after this, according to Butler, Larry Lane asked him, "I
want to know the workings of the union," to which Butler responded that "the
only thing I know is that if a place needed one, this one does and it would help
you too."
With regard to the foregoing, Foreman Lawrence L. ("Larry") Lane, in Re-
spondent's employ for 4 years and now 26 years old, first testified that he could not
"recall," and then denied, saying to Butler that he had been "pegged"; and denied
that he told Butler he wanted to know the workings of the Union.
Daniel David Danner, formerly employed by Respondent as a weigher-dyer
(engaged in dye weighing and vat dyeing), testified that in the latter part of Feb-
ruary Foreman Larry Lane "asked me what I knowed about the union and I told
him that I didn't know nothing about it and he asked me if I was for it and I
said, `Yes,' and he asked me what good it would be to me or anybody else, and
he stated that he did not want to have any doings with it at all, and would later
be separated . from work." This conversation occurred in Lane's trailer home,
where a truck trade was taking place between Danner and Lane. On cross-
examination, Danner amplified this by describing that after he entered Lane's
trailer they sat down and Lane "asked me if there was anything he ought to know
that I had heard that he ought to know and I asked him what about and he said
about the union." Toward the beginning of March, about a week after Larry Lane
spoke to him, according to Danner, Supervisor Ted Morefield (second shift dye-
house floorman), during working hours at the plant, "asked me what I thought
about the union, and I told him I thought it was a good thing " Further according
to Danner, around the middle of March, Foreman Fred Lane (first shift dyehouse
floorman) told him "that the union wasn't any good and that it was something set up
7 As to "pegged," Butler explained that "The connotation of it was that I had been
named as the leader of the [unionization drive] thing "
408 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to take your money" and that Lane "asked me what I thought about it [the Union],
and I told him I thought it was all right. I never did specify if I was for it or
against it to him." 8
Respondent's version of the foregoing was furnished by Supervisors Larry Lane,
Ted Morefield , and Fred Lane. Admitting that Danner came to his home in
connection with the trading of the trucks, Larry Lane denied that he then or at any
other time 9 asked Danner how he felt about the Union or whether he was a mem-
ber or had signed a card . Larry Lane's testimony indicates that his conversation
with Danner on the occasion in question in no way touched on the union or
organizational activity , but was restricted to the immediate business at hand;
namely, the truck trading . Conceding that he had a discussion with Danner in
early March about the Union , Morefield, Danner's supervisor in the drugroom,
testified that it was Danner who asked him "how I [ Morefield] felt about the
union," and that he (Morefield ) answered , "I don't know , Dan, how do you feel,"
to which Danner replied, "I think it would be good," and that "that was the end
of it." Morefield testified that he did not "recall" any other discussion with Danner
about the Union. Denying that he ever had a discussion with Danner about the
Union, Fred Lane testified that Danner "was awful quiet , he didn't talk too much."
Bernie Holland, a finishing room J-Box operator still in Respondent 's employ,
testified under Government subpena that when, early in March, Supervisor Lex
Poteat ( third shift finishing foreman ) approached him on the job and "asked me
if they had a union election which way would I vote," he (Holland ) did not
answer Poteat because "I couldn 't afford it" and "I didn't want to get involved in
it." According to Holland, on the night before the union election (i e., May 14),
President Frank DiSanto came around and told him he wanted him to vote, regard-
less of how he voted; and that after a discussion lasting about 15 minutes or more,
Holland told him that "the way I [Holland] voted nobody would be hurt." Testi-
fying as Respondent 's witness , Poteat denied being able to "recall" any conversa-
tion with Holland as described by the latter; and stated that the "only time I ever
remember talking to Bernie Holland" was when, one night (date unrecalled),
Holland asked him what Respondent would do "if this place would go union."
Since, according to Poteat , "as a rule I have never talked to a man about union
and I won't do it unless he asked me and I will answer his questions to the best
of my knowledge . I remember telling Bernie [ Holland] in a simple phrase,
I said, `Well, Bernie, let me put it like this to you . if me and two or three
other guys was working for you . and we was going to organize and call a
strike maybe for more money , what would you dog' So , he never did give me his
answer, so I just assumed that that was it, and so I walked on off and told him
what to do [about his job] and what [cloth] to run. And went on about my busi-
ness." Poteat testified that this was the only discussion with Holland relating
to the union campaign or election that he could "recall."
s According to Danner , this conversation took place in the drugroom where Danner
worked Danner also testified that as he came into the room , he overheard Lane say-
ing to David Pitman , another worker there , that "the union was trying to get in and
they wasn ' t any good " As to this , Fred Lane testified that Danner came into the drug-
room in the course of a conversation Lane was having with Pitman , who had told Lane
that he ( Pitman ) understood " that they are trying to get a union in here" and that he
(Pitman ) "[ didn ' t] care much for the union ," and that thereupon Lane had remarked
that he ( Lane) "[didn't] know much about the union, I have never worked for one be-
fore, but what I bear about it, I don't care much for it either." Pitman was not called
to testify , nor was Rufus "Lightning" White , who, according to Lane, was also present
during the course of this conversation Danner 's own testimony , in this aspect, in-
dicates that he apparently walked in on a conversation going on between Lane and Pit-
man ; and that , so far as Danner knew, Lane 's overheard remark may have been in
response to something said by Pitman . Accordingly , all circumstances considered , I credit
Lane's testimony in this aspect ( i e., that what Lane said to Pitman was in response
to what Pitman said to Lane before Danner came into the drugroom , as described by
Lane ), and find and conclude that it has not been established by a preponderance of the
substantial evidence that Lane's remarks to Pitman constituted illegal interrogation or
were otherwise violative of the Act.
O Except for one occasion early in June , after the union election , when Danner allegedly
asked Larry Lane "what would happen now" and Lane told him that he did not know,
that there were challenged votes, and that "after it was over with that Morganton Dyeing
and Finishing would be a good place to work."
MORGANTON DYEING & FINISHING CORPORATION 409
Thomas Goliath Childers, also under Government subpena and still employed
by Respondent in its finishing department, testified that, following off-plant distri-
bution of union campaign literature, Supervisor Larry Lane "asked me if I got any
of them papers." When Childers told him that he had, Lane asked him "was I for
it or against it, and I told him that I was for it. And he wanted to know what
good it would do, and I said maybe we will get better working conditions. And
he said, `Well, you think we will get more money,' and I said maybe. And he
asked me if I had worked at any worser place than that and I told him no that
I hadn't due to the water and the steam and so forth, and so it wasn't too much said
about it. And he, he asked me if I had signed a union card, and I told him that I had
and that was about all there was to it." Childers was insistent in his testimony
that it was Larry Lane and not Childers who first brought up the subject of the
Union. Larry Lane testified that the circumstances of this discussion were entirely
different. According to Lane, one night in mid-February Childers asked him to
have fixed a rusting fluorescent light fixture which looked as if it were about to fall,
and Childers "started complaining about the working conditions." According to
Lane, "I told him [Childers] that Frank [DiSanto] was going to improve the
working conditions 1e and all that. And he said that well, maybe if we had a
union , it would speed them up. And with that I said, `Well, did you get your
[Union] paper,' and he said, `Yes, I got my [Union] paper.' And that was just
about the extent of it." Lane denied that he inquired of Childers how he felt
about the Union. According to Lane, when he asked Childers whether he had
received his paper from the Union, "I [Lane] was trying to kid him [Childers]
at the time, but he [Childers] didn't take it that way,ii so I let that drop and went
to get a mechanic to fix the light "
Kyle Johnson, formerly employed by Respondent as a dyehouse opener oper-
ator and involved in the organizational activity at the plant, testified that at his
workplace on or about February 26 Supervisor Larry Lane asked him "if I
[Johnson] got any union cards and if I had gotten one and if I had got it in the
mail," to which Johnson responded in the affirmative and by asking Lane whether
Lane had received his (i.e., Lane's). Johnson was insistent in his testimony that
it was Lane and not he (Johnson) who brought up the subject of the Union.
About a week after this, according to Johnson, he took his cousin in to see
Respondent' s personnel director, Ralph LeFevers, about a job. Taking Johnson
aside and saying to him, "Come in here, I want to talk to you," LeFevers "wanted
to know who the [Union] ringleader was in the dyehouse and I told him that
I didn't know." Johnson's cousin , who was inexperienced, did not get a job,
LeFevers saying he "would keep it in mind." Larry Lane's version of the foregoing
was that he did not "recall" a discussion with Johnson as described by the latter;
and that "the only thing that I can bring back to my memory" was that on one
occasion (date unrecalled) Johnson asked Lane "if it was true that they were
campaigning for a union.12 And I told him that as far as I knew they were
and he said, `Well, you can consider . . . that I am given [sic] notice the day
that they bring a union in here ... I have a wife and kinds to feed.' " 13 Accord-
ing to Lane, this was the only discussion that he ever had with Johnson at any
time about the Union "that I can remember." Conceding that Johnson introduced a
job applicant to him around the end of February, LeFevers gave the episode an
entirely different slant by testifying that it was Johnson who called him aside, and
that when LeFevers told him they were not hiring because they had extra men on
each shift, Johnson said, "I know why you won't hire him .. . it is on account
of the union"; and that, when LeFevers denied this, Johnson said, "You know
that I am not a damn union man and never was," to which LeFevers responded,
"Well . . . that doesn't make any difference I will take his application. But .
right now, we are full." LeFevers denied asking Johnson who the "ringleader"
of the Union was in the dyehouse.
10 According to Lane, conventional fluorescent light fixtures, in the building since 1961,
had deteriorated from moisture and water and were in process of being replaced with
stainless steel fixtures
11 Cf A. P. Greene Fire Brick Company v. N L R.B , 326 F 2d 910, 914 (C A. 8) : ". .
executives who threaten in jest run the risk that those subject to their power might take
them in earnest and conclude the remarks to be coercive "
12 Cf., in this connection, the undisputed testimony that Johnson was involved in the
union campaign at the plant and attended union meetings.
13 Cf. footnote 12, supra
410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James E. Alridge, another former employee of Respondent as a tub operator
or dyer under the supervision of Morefield and Larry Lane, and one of the first
to participate in the union campaign, testified that on or about February 26, about
2 or 3 weeks after the union activity started at the plant, Larry Lane approached
him at work and asked him if Alridge's railroad union was still on strike in Ohio.
(Alridge had returned to Respondent's employ from a railroad job in Ohio.)
Alridge replied that there had been no strike there but that he had merely been
furloughed. According to Alridge, Lane then remarked that he understood "the
union is about to go busted out at the carbon plant" (in or near Morganton) and
that "I [Lane] understand that the union is coming here, how do you think it will
go?" Alridge replied that he thought this was "a bunch of rumors," and returned
to his work.14 Denying all recollection of any discussion such as the foregoing
with Alridge, Larry Lane testified that insofar as he could "recall" he never had
any discussion with Alridge about anything connected with the Union.
James Ledford, also under Government subpena and a former employee of
Respondent, testified that at the timeclock around April 15, when he was coming
to work, Supervisor Fred Lane approached him and said, "How do you feel about
the union," to which Ledford replied, "I don't feel more or less about it" or "I
don't feel either way," evoking the response from Lane that "I hope it don't
come through," Denying the foregoing, Fred Lane testified that the only discus-
sion he ever had or could recall having with Ledford about the Union was around
mid-April, while Ledford was at work in the dyeroom. According to Lane, when
he indicated to Ledford that he (Ledford) was being transferred to the second
shift, Ledford asked him whether somebody else could be transferred, and Lane
replied, "No, we can't, there is not many applications coming in now being as
this union deal has started." According to Lane, this was the only thing he said
or could "recall" saying to Ledford relating to the Union.
Resolution
As is evident from the foregoing, sharp issues of fact are presented by the
testimony of the employees and former employees on the one hand, and Respond-
ent's supervisory personnel on the other hand, regarding alleged interrogation as
to union membership, sentiments, activities, and voting intentions. Various em-
ployees and former employees described a number of episodes of such interrogation.
Respondent's supervisory personnel presented in essence a picture of total absti-
nence from interrogation. Under these circumstances, lacking more objective
parameters of evaluation for factfinding, little can be said other than that resolu-
tion of the testimonial conflicts is in the final analysis heavily if not totally depend-
ent upon demeanor observations and comparisons.
On the whole, my favorable impressions and reactions to the demeanor of the
witnesses put forward by General Counsel was not matched by corresponding reac-
tions to that of the witnesses who testified, as described, with regard to Respond-
ent's side of this aspect of the case. For reasons explicated below, in connection
with my consideration of alleged "Threats" (section B, infra), I am constrained
to entertain reservations with regard to at least segments of the testimony of Gen-
eral Counsel's witness Butler, for reasons not reflecting upon his honesty or desire
to be truthful. However, it is unnecessary to resolve these reservations with regard
to the aspect of the case dealing with the alleged interrogations, since there is
abundant credible other evidence thereof, furnished by General Counsel wit-
nesses with regard to whom I have no such reservations. I was favorably im-
pressed by the demeanor of General Counsel's witnesses Danner, Holland, Childers,
Johnson, Alridge, and Ledford, whose testimony to the extent indicated I credit
in preference to the testimony of Respondent's witnesses, the latter among other
things being characterized by apparent inabilities to "remember" or "recall" mate-
rial events or alleged events. I am also mindful of the fact that included among
General Counsel's witnesses were some who, because they are still in Respondent's
14 Also around the latter part of February, according to Alridge, he (Alridge) asked
Supervisor Morefield how he (Morefield) "felt about the union," and Morefield seemed
not interested and Indicated he did not care. This, of course, is not conduct violative of
the Act. The conversation between Larry Lane and Alridge, described above, while in a
sense a solicitation by Lane of Alridge's views on unionism and the unionization of Re-
spondent's plant, was likewise in my opinion sufficiently equivocal not to warrant a find-
ing and conclusion that it was violative of the Act as illegal interrogation or otherwise
MORGANTON DYEING & FINISHING CORPORATION 411
employ, in a sense testified against their own interests and at the peril of courting
their Employer's displeasure if not retaliatory action." Credibility comparison of
the witnesses on each side thus results in superior demeanor and better recollective
powers on the part of the employees, canting the trier's preference toward General
Counsel's witnesses. The resultant position of the scales is not altered by the picture
sought to be presented by Respondent's supervisors of their pasteurized impartiality
and abstemiousness, within a context of avowed employer hostility to the unioniza-
tion efforts of its employees-a scrupulous nonchalance which seems unreal in the
ambit of reference of the total surrounding facts.
Nor, by reason of its character and extent, within the matrix of the full situa-
tion within which it occurred and of which it formed a part, may the interrogation
herein, unaccompanied by safeguards or assurances, be regarded as isolated or as
justified for legitimate purposes. . . the time, the place, the personnel in-
volved, the information sought, and the employer's conceded preference, all must
be considered in determining whether or not the actual or likely effect of the
interrogations upon the employees constitutes interference, restraint or coercion."
N.L.R B. v. Syracuse Color Press, Inc., 209 F. 2d 596, 599 (C.A. 2), cert. denied
347 U.S. 966. The repeated episodes of interrogation here fail these tests.
Repondent sought, with some success in the case of certain witnesses, to estab-
lish that the alleged interrogations occurred in an atmosphere free from threats
toward or fears on the part of the employee. Even if this had been true in all
cases-which it was not-and even if such a conclusion could be reached (which
it cannot) without reliance upon opinion testimony of questionable controlling
effect, it has repeatedly been held that such subjective reactions, or alleged sub-
jective reactions, on the part of employees are not determinative." Respondent has
sought to portray an atmosphere of friendliness between supervisors and super-
vised. It is open to question whether such friendliness, even where it exists, is
necessarily all-pervasive, on the job as well as off the job, and in the presence as
well as in the absence of dual calls on the supervisors' allegiance. Indeed, inter-
rogation by "friendly" supervisors may be affrighted with greater potential for
affront to the policies of the Act than when conducted by those who do not wear
the deceptive mantle of friendship.17 Nor may the interrogation in the total
matrix of the situation here be regarded as innocuous.18
Within the system of reference expressed by the Board in Blue Flash Express,
Inc, 109 NLRB 591, and the mentioned considerations, it would be difficult for
me to believe that so many apparently highly credible witnesses, including some
under potential economic hazard, would testify, and testify so persuasively, to so
many episodes of interrogation, if they had never occurred.
I find that, except to the extent hereinabove expressly otherwise found, Respond-
ent through its supervisors Larry Lane, Fred Lane, Morefield, Poteat, and LeFevers
interrogated employees Danner, Holland, Childers, Johnson, and Ledford at various
times during February, March, and April, 1964, so as to interfere with, restrain,
and coerce them and other employees in the enjoyment and exercise of their
rights under Section 7 of the Act, in violation of Section 8 (a)( 1 ) of the Act.
11 This circumstance has sometimes been considered to add weight to testimony. Cf.
Georgia Rug Mild, 131 NLRB 1304, 1305, footnote 2. Cf. also Wirtz v. B A.C. Steel
Products, Inc., 312 F. 2d 14, 16 (C A 4).
16 Eastern Die Company, 142 NLRB 601, enfd. 340 F. 2d 607 (C A. 1) ; The Rein Com-
pany, 114 NLRB 694; B.M.C. Manufacturing Corporation, 113 NLRB 823.
17 Marshal DeVillars has aptly said, "God save me from my friends, I can protect myself
from my enemies ." So, too, Blake ( to Hagley) :
Thy friendship oft has made my heart to ache,
Do be my enemy-for friendship's sake.
iB With regard to any supposition that the interrogation was "innocuous" or "harmless,"
It will be recalled that the court recently had occasion again to remind that although
"an innocuous question (e.g., How is the union doing?) is much less coercive than a
pointed question (e g , Who are the union leaders')," when an employee-as herein-
fails "to give a truthful answer even to an innocuous question , the inference of coercion
is as strong as if he refused to answer a pointed question ." N.L R.B. v. Cameo, Inc.,
340 F. 2d 803, 807 (C A. 5) This is especially true during a union campaign, since
"Interrogating key employees during an organizational drive makes the company's anti-
union message easier to read than interrogating a few employees at random." Id. at
805, footnote 6
412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. Threats
Evidence was presented of five instances of Employer threats in connection with
the lawful organizational attempts of its employees. These will be recounted
chronologically.
Charles A. Butler, Respondent's former employee mentioned above, testified
that when Supervisor Larry Lane spoke to him in his office in mid-February about
the union activity, as has been described, Lane also told him that "they [i.e., pre-
sumably Lane's superiors and Company executives] are getting worried now and
they are going to find out . . . they [know] some of the leaders" and that "they
are going to get the ringleaders of this thing, and they are going to fire them."
Lane denied that he said this
Bernie Holland, Respondent's former J-Box operator, testified that around
mid-March, about a week after Supervisor Poteat asked him how he would vote
in a union election, Poteat approached him while he was working and said to him,
"I hope this damn union doesn't go through, if it does, I will lose my job .
Frank [DiSanto] said he was going to close it down if the union went through."
Poteat's testimony indicated that he did not "recall" any such talk.
James E. Alridge, Respondent's former tub operator, testified that on one of the
last nights that he worked in the plant (i.e., on or about March 26), Supervisor
Morefield told him, "Well, Jim, there is nothing personal, I like you and I like
the way you do your work, but . . . we have got orders to fire anyone for any
reason." According to Alridge, he responded that "there wasn't no hard feelings
between me and [you] .... I understood .... I knew it was over the Union
or I felt that it was," and Morefield did not reply. Morefield, on the other hand,
testified that on the night before this Alridge had gotten drunk on the job and
Morefield sent Kyle Johnson to take him home; and that the following night
Morefield told Alridge "that I did not have no personal feelings against him, but
the next time that he carried on conduct the way that he did the . . . last night,
that I would fire him, and I had the authority of the company to do so." Accord-
ing to Morefield, the Union was not mentioned, and "I was trying to get across
to him [Alridge] that I had authority of the company to fire him for being drunk
on the job or not performing his work properly . Not for any reason, I
couldn't fire a man for any reason." In fact, Morefield did not fire Alridge,19 even
though according to Morefield (whom I credit in this aspect) he had authority to
do so, because he wanted to "give him [Alridge] a break." On cross-examination,
Alridge conceded that on the night in question he got drunk on the job and was
taken home by Kyle Johnson. Although at first denying that while drunk on that
or an earlier night during his last week at the plant he ruined some cloth by plac-
ing an unopened 100-pound sack of salt in the dye mix, he later indicated that
this might indeed have occurred while he was drunk.20
Charles A. Butler further testified that in mid-March he reported to Supervisor
Larry Lane that he had been receiving anonymous threatening telephone calls at
home regarding union activities and was concerned for his wife and daughter.
Lane relayed this to Dyehouse Superintendent Fred Martin, who called in Presi-
dent Frank DiSanto. According to Butler, after Lane apprised DiSanto that Butler
was "in favor of a union," which Butler agreed was true, and after Butler indicated
that "I know that [the anonymous telephone calls] are not coming from any of
the boys that have signed cards with the union," DiSanto said, "This is my damn
company and I am a self made man and I am going to run it as I please, and if
anybody don't like it . there is the door . . I can be a dirty bastard when
I want to and I will fight like hell against the union." As found by the Regional
Director, Butler was discharged on March 26, when Respondent learned the true
reason-namely, public drunkenness-for an alleged illness for which Butler had
requested and received leave of absence on March 6 and an alleged death in the
10Alridge testified on cross-examination that about an hour after Butler was discharged,
he (Alridge) and three other employees (Johnson, Carpenter, and Loftis) quit and "Just
walked out" The Regional Director determined that no discriminatory termination was
involved as to any of these employees
20 Alridge also testified that about a week after he quit, while at the plant for his
terminal pay, Larry Lane asked him, "Well, now, Jim, now that you have already quit . .
you were a anion representative just like Charlie Butler . . wasn't you," to which
Alridge replied, "Well, Larry, I have already quit, what difference does it make to me
if the building blows down . . . I am gone . . Butler had already been nondis-
criminatorily discharged for cause prior to this Since neither Alridge nor Butler was
then in Respondent's employ, and it does not appear that this question was coercive in
intent or effect, I hold that it has not been established that it was violative of the Act.
MORGANTON DYEING & FINISHING CORPORATION 413
family for which he was granted further leave on March 7. Butler 's testimony
indicates that lie had an alcoholism problem during this period , involving incar-
ceration-according to him, at his own request-and convictions for public
drunkenness.
Respondent 's version of the meeting with Butler on the subject of the threaten-
ing telephone calls was supplied by Larry Lane , Fred Martin , and Frank DiSanto.
In essence , they were consistent to the effect that DiSanto assured Butler that he
would try to do something about the calls if Butler could furnish a definite clue
to the identity of their source , which Butler was unable specifically to do. Ac-
cording to Martin , during the discussion Butler stated that the anonymous callers
indicated Butler should "not . have anything to do with the union" or "not
. .. have anything to do with the union organizing and unions " and that, without
naming any names, Butler thought the calls "was coming from the plant manage-
ment." However , according to DiSanto , supported by Lane, "there was no men-
tion of the word union in this discussion"-although all appeared to assume it con-
cerned the Union-and Butler neither specified the nature of the threats nor linked
management to them. A further degree of doubt was cast upon the accuracy of
Butler ' s recollective capacity by the testimony of David Mooney , county deputy
sheriff and jailer, who, describing the arrests and convictions of Butler in mid-
March for public drunkenness , denied there was any basis in the official records
or in his recollection to indicate that any of those arrests was at Butler 's request as
the latter had testified ( although with regard to one of the arrests, the identity of
the telephone caller to the police was not established and might theoretically,
therefore , have been Butler).
Albert Frank Wellman, formerly employed by Respondent as a maintenance
worker under the supervision of Maintenance Foreman Michael "Mike" DiBiase,
testified that while ostensibly on the way to the warehouse 21 with Foreman "Pop"
Anger, Supervisor Mike DiBiase , and fellow employee Clint Hamer late one
afternoon in April , 22 DiBiase "started talking about the union," stated "that he
had . belonged to a union and worked under a union and didn't think that
it would work down here in this plant," and then went "on to say that none of
his men had better not oppose him in the election ." Wellman testified , on cross-
examination , that "I actually took that as a threat . to vote for the company
against the union." He also testified that when DiBiase made the remark about
not opposing or voting against him in the election , his tone was serious and that
"the impression that it gave me if I didn 't vote to suit him, it would be my job.
Now, that was the impression that was put on me."
Respondent 's version of the foregoing was provided by DiBiase and Hamer.
DiBiase, Respondent's maintenance supervisor , not only flatly denied making the
statements attributed to him by Wellman , but insisted that he never expressed
any opinions as to what he thought or how employees should vote , at all times
limiting himself to encouraging employees "to vote as they see fit." He acknowl-
edged, however, that he was aware of his Employer's opposition to the Union.
With regard to the specific occasion in question , DiBiase denied that he first
brought up the subject of the Union . On direct examination , DiBiase testified
that when the men got outside for the truck to go to the warehouse , "there was
a little discussion going on I believe Mr . Clint Hamer started talking about him
being in a union in fact the truckers union , he worked up north for quite a while,"
whereupon DiBiase "started to kid him about it, I said I belonged to a union up
North and I said what does it make us?" He added that "I believe that there
was something said about voting, and I came out and said, look it doesn't make
any difference as long as everybody votes, once you get into the booth there, there
is only God and yourself know how you vote." On cross-examination DiBiase
testified , "I believe Mr. Hamer came out and we were talking , talking about
voting and the trucker's union." When counsel for General Counsel pointed out
to him that he "didn't bring this up on direct examination ," DiBiase's response
was, "You didn 't ask me," adding , "I mean it happened months ago , you don't
remember every little word that is being said . it all depends on what the
attorney asked me and that is what I answered ." DiBiase also insisted on cross-
examination that this was the only time during the entire union campaign that he
discussed union matters with any of the rank-and -file employees.
Also testifying as Respondent 's witness , maintenanceman Clinton "Clint" Leroy
Hamer stated that in the 15- to 30-minute conversation among the four waiting
21 In view of the lateness of the hour when they started, the trip to the warehouse
was abandoned so that the members of the party apparently did nothing other than talk
22 This accords generally with General Counsel's amendment at the hearing of paragraph
7(d) of the complaint , changing the date therein from June to April.
414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
for the warehouse truck which never arrived, "We were talking about the union"
(and later about supplies) and that it "might" have been he (Hamer) who first
mentioned the Union; that he (Hamer) expressed opposition to unions and DiBiase
"come over, and talked to us about it, and he said that we would be the only ones
that knowed who we voted for, when we was in that booth and how we voted",
and that although DiBiase said he hoped everybody voted, he did not say none
of his men had better (not) vote against him in the election, and that Hamer
did not "hear" any comment like that. Toward the end of his testimony, in re-
sponse to the question of whether anybody during this conversation made the
remark that the Union would not work out or work out well in the plant, Hamer
stated that "there was a remark made that a union might help out at the plant,
might help the men and the plant . . . . I believe that Mike DiBiase said that."
Resolution
It will have been noted that two of the five alleged instances of threats involved
Butler. Insofar as the anonymous telephone calls to him are concerned, no con-
nection of those calls (which are not included among the threats alleged in the
complaint) with Respondent has been established, and such linkage could be
found only through surmise and conjecture. The telephone calls cannot, therefore,
be regarded as threats for which responsibility on Respondent's part has been shown
or can be found. So far as the alleged threats derived from the balance of Butler's
testimony are concerned, while my overall reaction to Butler as a witness seems
to have somewhat paralleled that of Respondent's counsel, who in his brief has in
part characterized him as "a rather frank and honest witness," nevertheless I cannot
ignore the plain fact that Butler was at the time of the events in question by his
own admission addicted to alcoholic excesses to the extent that he was arrested
and confined (according to his testimony, at his own request) for public intoxica-
tion. Since some of the events he testified to occurred while he was thus under
the influence of alcohol, I do not believe it would be justifiable to assume that
his present testimonial recollection or reconstruction, whichever it be and however
honestly intended, of events which transpired during a period when he was a
victim of alcohol, has a high degree of reliability. For this reason, not bearing
directly upon his basic honesty, lacking independent corroboration I cannot accept
his version of those events.
Insofar as the episode described by Alridge is concerned, it is to be observed
that he conceded on cross-examination that he, too, was involved in drunkenness,
in his case on the job and possibly involving spoilage of goods. In the situation
described, Morefield undoubtedly would have been justified in discharging him
then and there or when he returned to work. It would seem that if Morefield
were bent on seeking an excuse for ridding Respondent of Alridge for discrimina-
tory reasons and masking those reasons, the situation involving Alridge's drunken-
ness on the job was made to order for that purpose. However, Morefield did not
discharge Alridge but merely warned him, and Alridge later concededly quit. Under
these circumstances, since Morefield would have been justified in discharging Alridge,
his failure to do so argues against the existence of the discriminatory intention alleged.
Weighing all factors, I accept as more probable and persuasive Morefield's version
of his warning to Alridge that he would be fired in case of repetition of his drunken
conduct, and find that Morefield did not discriminatorily threaten Alridge on the
occasion in question.
While the factors which have been explicated rule out definitive reliance upon
Butler's testimony and the Alridge version as persuasively evidentiary, the two
remaining incidents of alleged threats, namely, those involving Holland and Well-
man, are by no means infected with such infirmities. I found both Holland and
Wellman to be straightforward and impressive witnesses whose counterpart wit-
nesses did not match them in either respect. In the case of Holland, Supervisor
Poteat, while testifying to an incident which may or may not have been the same
as described by Holland, allegedly could not "recall" saying what Holland swore
he had said. In the case of Wellman, I would have difficulty in accepting the
version put forward by DiBiase and Hamer, whose testimonial demeanor (like that
of Poteat) was in marked contrast to that of Wellman. I cannot visualize
DiBiase's self-portrayal of himself as so consistent a practitioner of sanitized
nonpartisanship in a context of close identification with an employer so openly
hostile to unionization. The apparent conflict between the testimony of DiBiase
and Hamer will have been noted, as also the extent of the testimonial ubiquity
of Hamer in expressing the belief that it was DiBiase who told the men that "a
union might help out at the plant, might help the men and the plant." The joint
testimony of DiBiase and Hamer, in the posture in which it finally came to rest,
was unpersuasive as compared to that of Wellman, whom I credit. It is addition-
MORGANTON DYEING & FINISHING CORPORATION 415
ally to be noted that Respondent failed to produce or to account for its nonproduc-
tion of the remaining participant to the discussion; namely, Wellman's foreman,
"Pop" Anger, apparently an old-time, respected employee and "a fine old gentle-
man" (so characterized by Wellman).
Finally, although Wellman described the atmosphere of the discussion as friendly
and congenial, I do not believe this essentially alters the impact or potency of
DiBiase's threat. Strong threats have been uttered with a smile; "friendship" itself
has been made the price of yielding to a threat. Moreover, as was elicited from
Wellman by Respondent on cross-examination, Wellman "actually took that [i e.,
DiBiase's words] as a threat . . . to vote for the company against the union" and
that "if I didn't vote to suit him, it would be my job." 23 After observing him as
he testified and considering the probabilities of the situation inherent in the entire
factual background of the case, I believe this portrayal of DiBiase by Wellman
to be more realistic than DiBiase's suggested picture of himself, a loyal servitor of
an employer hostile to unionization, merely urging employees to vote while studi-
ously refraining from any expression of opinion or attempt to tilt the scales ever
so slightly.
It is accordingly found that Respondent, through the described conduct on the
part of Supervisors Poteat and DiBiase, in March and April 1964, threatened its
employees in connection with union affiliation and activities , and in the event of plant
unionization as the result of a Board-conducted union election, in violation of
Section 8(a)(1) of the Act. I further find that it has not been established by
substantial credible evidence that Respondent engaged in the other threats described
or alleged.
C. Surveillance
Three instances of alleged surveillance were litigated. Two were alleged to have
occurred on April 16 at or near the Union Hall, involving Supervisors Fred Martin
and Larry Lane; the third, on June 24 (i e., after the election) at a local motel,
by Respondent's Supervisor Robert Papuga. Since the first two are related, they
will be considered together.
It is undisputed that on April 16 a union meeting of Respondent's employees
was taking place around 1 p.m. at Chemical Workers Union Hall on Jamestown
Road, about a mile and a half outside of Morganton proper and about 5 miles
from Respondent's plant, across the road from a drive-in eating place known as
Pep's or Pat's Drive-In or Grill. It is also undisputed that Supervisors Fred
Martin and Larry Lane were parked in a truck at Pep's at that time and saw em-
ployee James Ledford walking around Pep's and going toward the Union Hall.
Martin and Lane claim they were having lunch at Pep's that day, accounting for
their presence there. They deny that they could even see the entrance to the Union
Hall, because of where they and also a large piano van were parked Since it is
uncontroverted that there are no lunch places near Respondent's plant, that such
places in and near Morganton are few, and that Martin and Lane ate in a parked
vehicle at Pep's regularly, there is no substantial factual basis to doubt their testi-
mony that they were there for the purpose of lunch on the date in question.
Furthermore, on the record presented, it is at least doubtful whether from where
they were parked they could have seen the Union Hall sufficiently to be able to
engage in surveillance thereof It would seem that if they had known of the
union meeting and had intended to conduct such surveillance, they would have
positioned themselves in a location from which they could command a clear and
unimpeded view of the object of the surveillance; namely, the Union Hall entrance
All circumstances considered, therefore, I find that it has not been established by
a preponderance of the substantial credible evidence that Martin and Lane went
to or parked in Pep's for the purpose of surveillance of union or organizational
activities of Respondent's employees; nor that, while there, they engaged in such
surveillance.
Respondent's former employee James Ledford testified that about a half hour
after he saw, and was seen by, Martin and Lane in Pep's on this occasion, he
observed Martin and Lane drive by the Union Hall in their truck, and shortly
23 With regard to the "seriousness," "substantiality," or operative "efficacy" of the
threats, it must be remembered that, to the employees who were the object thereof, they
emanated from a source with apparent authority to make them good. Cf. N L R B. v.
Eastern Die Co., 340 F 2d 607 (C.A. 1). Furthermore, it is settled that a threat need
not be carried out, nor efficacious, in order to be coercive. Id., 142 NLRB 601, 602 ;
The Rein Company, 114 NLRB 694 ; Forest Oil Corporation, 85 NLRB 85 , 86. It may be
presumed that such threats are spread to other employees by the employee to whom
made Cf. Frankel Associates, Inc., 146 NLRB 1556, 1557
416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
thereafter drive by the Union Hall again in the other direction About eight or
nine cars were parked at the Union Hall at the time of the meeting of Respond-
ent's employees there. Ledford's testimony was corroborated by his former fellow
employee Daniel Danner, who also testified that he observed the truck with Martin
and Lane in it go up Jamestown Road and shortly thereafter return, past the
Union Hall, at "a slow speed."
According to Martin, while he and Lane were parked in Pep's, Lane suggested
that they visit Supervisor Morefield at his home, about 2 miles away toward
Asheville ( i.e., in a direction still further away from the plant), to check on some
mechanical work which Morefield was allegedly doing on Lane's truck. Further,
according to Martin, they then drove to Morefield's (who was not at home) on
Highway 70, at no time passing by the Union Hall. However, Martin testified that
on the way back from Morefield's along Highway 70, when they reached the inter-
section or "V" formed by Highway 70 and Jamestown Road, he looked back at the
Union Hall because "I had seen Ledford go towards the union hall and I just
looked out to see if there was any cars there," and observed some cars parked there
but none that he recognized. Larry Lane corroborated Martin's testimony, but
not without significant differences or additions. Thus, Lane testified that on their
way back to the plant (allegedly from Morefield's) after they had seen Ledford
walk from Pep's toward the Union Hall, Martin pointed out that there were cars
parked at the Union Hall and that "as we passed down the road there he [Martin]
glanced over there and he said, `I wonder what is going on over there,' and I
said, `Well,' that is, when we got further on down the road I said, `That is usually
some kind of a furniture shop,' and he said, `Well, wonder what is going on?'
And I said, `I guess that they are just selling furniture, or having a furniture
meeting,' and actually the lower section of the union hall is a furniture store or
was a furniture store or warehouse or something of that nature." And, although
he had first testified that on their way back to the plant he and Martin were talking
about "nothing special," on recross-examination Lane testified that on their way
back he and Martin were discussing the fact "that there was going to be a meeting."
Although it is not implausible that Martin and Lane were unaware, when they
went to Pep's for lunch, that there was going to be a union meeting at the Union
Hall that day, Martin's testimony as well as the inherent probabilities of the situa-
tion indicate that their seeing Ledford at Pep's walking toward the Union Hall
must at least have germinated a suspicion in their minds as to what Ledford was
doing there. This inference is reinforced by the subsequent actions of Martin and
Lane in driving past the Union Hall twice (while testifying that they went miles
out of their way to pay a personal visit at what seems an odd hour of a workday),
and by Martin's admissions that since he "had seen Ledford go towards the
union hall . I just looked out to see if there was any cars there." I reject,
as basically incompatible with Martin's testimony and as inherently improbable,
as well as incredible in view of my demeanor observations, Larry Lane's testimony
that, although he was aware that the Union Hall was being used by the Textile
Workers Union and had seen Ledford go toward it on the occasion in question
during this known period of union campaigning at the plant, nevertheless when
he drove back with Martin he thought that a furniture sale or furniture meeting
was taking place in the Union Hall.
Crediting the described testimony of Ledford and Danner, which impressed me
as truthful, and coupling it with the testimonial admissions of Martin, I find that,
although it has not been established that Respondent engaged in surveillance from
Pep's Drive-In on April 16, it has been established by substantial credible evidence
that, in violation of Section 8(a)(1) of the Act, Respondent through Supervisors
Martin and Larry Lane on April 16, 1964, engaged in surveillance of its employees'
union and organizational activities at Union Hall, Morganton, when they drove
by there twice as described.24
The remaining incident of alleged employer surveillance occurred on June 24
at Rainbow Inn Motel in Morganton, a popular and much frequented local motel.
It is undisputed that in the early evening of that day, Supervisor Robert E. Papuga
several times walked past a motel room or rooms in which some of Respondent's
employees were present with a union organizer and/or a Board agent who was
taking statements. It is also undisputed that some of these times Papuga was
accompanied by another individual; that either the door or the curtains to the large
picture windows of the rooms, or possibly both, were open; and that Papuga made
no attempt to conceal his presence but exchanged greetings with one or more of
the employees through the window. General Counsel's witness Wellman testified
that neither in the Board agent's room nor in the union organizer's room were
24 Cf. Aero Corporation, 149 NLRB 1283.
MORGANTON DYEING & FINISHING CORPORATION 417
the occupants attempting to maintain any degree of privacy. General Counsel's
witness Eugene Guy (a maintenanceman in Respondent 's employ) testified that,
after he and Papuga had exchanged greetings through the window of the room
Guy was in when Papuga first walked by, when Papuga returned in the opposite
direction (Guy was then in the Board agent 's room ) he (Papuga) "stopped and
looked in the door. So I . just ignored it and he walked on by the door."
However, when he was asked whether Papuga actually stopped walking or whether
he merely passed by the room, Guy testified that "Well, he was just passing by and
looking back at us though ," adding, however, on further questioning, that "when
he was looking at the door at me and the Board agent , he stopped . just for a
very few seconds I glanced around and saw him and then he walked on by."
With regard to the June 24 incident at Rainbow Inn Motel, Respondent's greige
goods room and Receiving Department Supervisor Robert E. Papuga testified that
his duties include receiving and entertaining customers and official guests of his
Employer, and that the reason he was at Rainbow Inn Motel on the evening
in question was that he had dinner and spent the evening with an important cus-
tomer, whom he identified by name, who was (in accordance with his usual cus-
tom) staying there as a registered guest, in a specified room number, located a
few doors away from the other rooms in question . Papuga testified that on his
way to the customer's room, he passed a room with the curtains open and the
occupants thereof (Guy, Wellman, and Union Organizer Freeman) in plain view,
and that he waved to them. Although Papuga admits he passed by this room
(No. 50) several times in going to and from the customer's room (No. 53) and
with the customer to and from the restaurant , he denies that at any time during
the evening he passed by a room toward the other end of the motel (room 59 was
suggested by Guy as the Board agent 's room; it would not appear to be necessary
to pass room 59 in order to go from room 53 to the restaurant).
I found Papuga, as well as Wellman and Guy, to be essentially credible wit-
nesses who I believe were attempting to testify accurately with regard to what
transpired on the occasion in question . Papuga's explanation for his presence at
this popular local motel was given in sufficient factual precision to be readily sub-
ject to investigatory corroboration or disproof . Since it was uncontroverted and
is not inherently improbable, it is credited . His presence at the place and time
in question thus being satisfactorily accounted for and there being no indication
that it was for the purpose of surveillance of the described employee activities,
of which he was not shown to possess any advance knowledge or information, it
remains only to consider whether, once there and having observed what he did,
his further actions under the circumstances amounted to unlawful surveillance.
The record as tendered presents a picture of Papuga present at a popular public
hostelry for a legitimate reason and without advance knowledge or information
that employees would be there; absence of any attempt at privacy by the em-
ployees and those with them who were allegedly subjected to Papuga's surveillance,
indulgence by Papuga in the known human tendency to glance at or through a
large, uncurtained picture window while passing by; a spontaneous greeting ex-
changed between Papuga and the others ; Papuga's passing by one of the motel
rooms several times while going to and from the customer's room and while
going with the customer to and from the restaurant ; and equivocal or equally
balanced proof with regard to whether or not Papuga walked past the other motel
room or if he did whether he engaged in surveillance of that which he may
already have seen.25 The resultant uncertainties leave me in sufficient doubt to
incline me no more toward accepting than toward rejecting the testimony of
either side on this particular issue. For these reasons, I find that General Counsel
has failed to meet the burden of proof and persuasion which is his, and that
the substantial credible evidence does not preponderate in favor of a finding that
Respondent through Supervisor Papuga engaged in surveillance at the Rainbow
Inn Motel on June 24, 1964.
III. REPORT ON OBJECTIONS TO ELECTION AND MATTERS REFERRED
BY REGIONAL DIRECTOR
As has been indicated , of the Union's nine objections to the May 15 election, the
Acting Regional Director overruled six. He referred to the Trial Examiner the
remaining three, together with two additional matters uncovered by his investigation
and raised by him sua sponte , all involving issues in common with those in the
2-Cf. Universal Packaging Corporation, 149 NLRB 262 ; Aero Corporation, 149
NLRB 1283.
206-446-66-vol. 154-28
418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
instant unfair labor practices (C) case. The following recapitulates the objections
and additional matters which have been referred to the Trial Examiner-
Union objection
Nos
Subject or substance Action by Regional Director Remarks
1__________________ Respondent 's distribution Referred to Ti ial Examiner _ Not alleged in com-
of allegedly coercive and plaint in instant
intimidating preelection C case.
literature
4__________________ Two instances of surveil - Referred to Trial Examiner , Same as alleged in
lance on April 16 and June 24 episode (subse- complaint in instant
one on June 24 quent to May 15 election) C case
later deleted from his
Decision and Order by
Regional Director.
7___--- --------- ------ Interrogation of employees -- Referred to Trial Examiner . Included in complaint
11 . if credited . would in instant C case
warrant the setting aside
of the election."
Unnumbered Threat by Supervisor Added by Acting Regional Do.
"Other Acts Poteat of plant closure in Director sua sponte, stem-
and Conduct " event of unionization mmg from his investigation.
" . if credited . would
warrant the setting aside
of the election "
Do ------------ Threat by Supervisor _____do_________________________ Do.
Morefield that Respond-
ent was bearing down
because of union cam-
paign and that super-
visors have orders to
discharge employees for
any reason.
Of the foregoing, the issues involved in referred objections Nos. 4 and 7, as well
as in both unnumbered instances of "Other Acts and Conduct," have already been
discussed and passed upon hereinabove in section II as issues in the unfair labor
practices (C) case, and need not here be reiterated.26
28 Objecting to the Acting Regional Director 's inclusion in his Second Supplemental
Decision ( September 9, 1964 ) of the matters denominated therein as "Other Acts and
Conduct" uncovered by his investigation , upon the ground that the Union did not include
them in its objections and that the Regional Director lacks power to raise them sue sponte,
Respondent has moved that they be stricken from the Acting Regional Director's De-
cision, request for review of which was on or about November 2 denied by the Board.
I cannot agree that the Regional Director, as a public official charged with respon-
sibilities in connection with enforcement of the Act, is without power to set aside an
election for conduct violative of the Act unless it is expressly raised by a party's formal
objections . Cf. International Shoe Company , 123 NLRB 682 , 684; Aeronca Manufactur-
ing Corporation, 121 NLRB 777, footnote 2; Carter-Lee Lumber Company, 119 NLRB
1374, 1376-1377; Joe Gold and Newell Smith, d/b/a City Tire Company , 117 NLRB 753,
754-755; Beck's Department Store, 98 NLRB 280, 281, footnote 5 (". . . it is well es-
tablished that the jurisdiction of the Regional Director in making a post-election investiga-
tion is not limited to the issues raised by the parties . . .") ; with which cf. International
Ladies Garment Workers Union, AFL-CIO v. N.L.R.B., 339 F. 2d 116, 124-125 (C.A 2).
It is apparent , in answer to Respondent 's further contention in this regard , that the 5-day
time limitation for filing objections (NLRB Rules and Regulations, Series 8, as amended,
revised Jan 1, 1965, Section 102.69 ) is by its express terms applicable only to parties
and not to the Board and may in any event be waived . Nor has any prejudice to Re-
spondent here been shown . In any case , however , I am unaware of any authority on my
part to strike out portions of a Regional Director 's decision as here sought . Respond-
ent's motion is accordingly denied It is further to be noted , in this connection, that
there is, of course , no question regarding the propriety of inclusion of the episodes com-
prising the described "Other Acts and Conduct" In the complaint in the instant C case,
and that Respondent has expressly so conceded ( page 8, second sentence of third full
paragraph of Respondent ' s September 1S Request for Review of Regional Director's
Second Supplemental Decision, etc. of September 9, 1964).
MORGANTON DYEING & FINISHING CORPORATION 419
This leaves for consideration referred objection No. 1, dealing with Respondent's
distribution of allegedly coercive and intimidating preelection literature, the impact
of which in conjunction with other findings to be made herein the Acting Regional
Director has "directed" the Trial Examiner to consider. Respondent has objected
to the mandatory wording of the order of reference of the Acting Regional Director
to the Trial Examiner in this matter, contending that the Trial Examiner is not
subject to the Regional Director's direction. It is unnecessary for me to consider
this point, since I regard and treat the Acting Regional Director's action as a
conventional reference of issues to be determined at a statutory hearing, and the
wording which is objected to as nonprejudicial surplusage. In any event, since it is
apparent (as, indeed, was indicated by the Acting Regional Director himself in his
decision) that the unfair labor practices here found, without resort to the preelection
literature, themselves warrant and require the setting aside of the election and the
holding of a new election in an atmosphere free from interference , restraint, and
coercion,27 it is unnecessary to reach or pass upon the question of what could only
have been the possibly additional coercive effect of the literature in question. In
view of the findings herein with regard to the preelection unfair labor practices, the
issues raised by union objection No. 1 to the extent referred, are, therefore, moot
Respondent's motions, upon which decision was reserved at the hearing, to strike
out, dismiss, or overrule union objection No. 1 to the election of May 15, as well
as the Acting Regional Director's actions thereon, are accordingly dismissed as
likewise moot.
It is accordingly recommended to the Board that union objections Nos. 4 and 7
to the election of May 15, 1964, as well as the first one of the two specifications
denominated "Other Acts and Conduct" in the Acting Regional Director's Decision,
as above described, to the extent found in section II hereof, be sustained, and that
on that basis, as well as upon the basis of all of the unfair labor practices as herein
found, the election of May 15, 1964, be set aside and a new election held at a date
and time to be determined by the Regional Director; and that union objection No.
I to said election be dismissed as moot.
IV. THE REMEDY
Having found that Respondent has engaged in unfair labor practices, I shall
recommend that it cease and desist therefrom and take certain affirmative action
designed to effectuate the policies of the Act. In view of the fact that the unfair
labor practices committed are of a character evincing an attitude of opposition to
the public policy and purposes of the Act, I deem it necessary to recommend that
Respondent be ordered to cease and desist from infringing in any manner upon
employee rights guaranteed in Section 7 of the Act. I shall also recommend that
Respondent be required to post an appropriate notice.
I am also recommending that union objections Nos. 4 and 7 to the election of
May 15, 1964, as well as the first of the Acting Regional Director's two specifications
denominated "Other Acts and Conduct" in this September 9, 1964, Second Sup-
plemental Decision, Direction, and Order Consolidating Cases, in Case No. 1 1-RC-
1947, be sustained, that said election be set aside, and that said case be remanded
to the Regional Director for Region 11 to conduct a new election at such time as
he deems circumstances permit free choice of bargaining representative.
CONCLUSIONS OF LAW
1. Morganton Dyeing and Finishing Corporation , Respondent herein , is an em-
ployer engaged in commerce within the meaning of Section 2 (6) and (7) of the
Act.
2. Textile Workers Union of America , AFL-CIO, CLC, is a labor organization
within the meaning of Section 2(5) of the Act
3. By the conduct set forth in section II which has been found to constitute un-
fair labor practices , Respondent has interfered with, restrained , and coerced its
employees in the exercise of rights guaranteed to them by Section 7 of the Act, and
thereby has engaged in and is engaging in unfair labor practices within the meaning
of Section 8 (a) (1) of the Act.
4. The aforesaid unfair labor practices are unfair labor practices affecting com-
merce within the meaning of Section 2(6) and (7) of the Act.
2' Cf. Industrial Steel Products Company, Inc., 143 NLRB 336; Playskool Mavufaetur-
ing Company, 140 NLRI3 1417, 1419; Dal-Tex Optical Company, Inc ., 137 NLRB 1782,
1786-1787.
420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RECOMMENDED ORDER
Upon the basis of the foregoing findings of fact and conclusions of law and upon
the entire record in this consolidated proceeding, and pursuant to Section 10(c) of
the National Labor Relations Act, as amended, I recommend that the Respondent,
Morganton Dyeing and Finishing Corporation, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees with respect to their own or any other
employee's union membership, affiliations, sympathies, desires, or activities.
(b) Threatening employees with plant closure, loss of jobs, or other reprisals
because of union membership, affiliation, activity, or support, or in the event of
plant unionization.
(c) Inducing or encouraging any employee to vote against any labor organiza-
tion in any Board-conducted election by any threat of reprisal.
(d) Engaging in any surveillance of union or other lawful organizational activities
of its employees, or in surveillance of any union hall or other place where such
activities are taking place.
(e) In any other manner interfering with, restraining, or coercing employees in
the exercise of their rights to self-organization; to form, join, or assist any labor
organization; to bargain collectively through representatives of their own choosing;
to engage in concerted activities for the purposes of collective bargaining or other
mutual aid or protection; or to refrain from any and all such activities.
2. Take the following affirmative action which is necessary to effectuate the
policies of the Act:
(a) Post at its plant in Morganton, North Carolina, copies of the attached notice
marked "Appendix." 28 Copies of said notice, to be furnished by the Regional Di-
rector for Region 11, shall, after being duly signed by Respondent's authorized rep-
resentative, be posted by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in conspicuous places, including
all places where notices to employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not altered, defaced, or cov-
ered by any other material.
(b) Notify said Regional Director, in writing, within 20 days from receipt of
this Decision and Recommended Order, what steps have been taken to comply
therewith.29
I further recommend that the complaint in Case No. 11-CA-2436 be and the
same is hereby dismissed as to all violations alleged but not herein found; and that
the election held on May 15, 1964, in Case No. 11-RC-1947 be set aside and that
said case be remanded to the Regional Director for Region 11 to conduct a new
election at such time as he deems that circumstances permit free choice of bargaining
representative.30
28 In the event that this Recommended Order be adopted by the Board, the words "a
Decision and Order" shall be substituted for the words "a Recommended Order of a Trial
Examiner" in the notice. In the further event that the Board's Order be enforced by a
decree of a United States Court of Appeals, the words "a Decree of the United States
Court of Appeals, Enforcing an Order" shall be susbtituted for the words "a Decision
and Order."
2D In the event that this Recommended Order be adopted by the Board, this provision
shall be modified to read: "Notify said Regional Director, in writing, within 10 days from
the date of this Order, what steps the Respondent has taken to comply herewith."
30 In the event Respondent refuses or falls to comply with the terms of the order in
Case No. 11-CA-2436, I recommend that said Regional Director should also be authorized
to conduct the new election herein recommended, upon written request of the Union.
Ideal Baking Company of Tennessee, Inc., 143 NLRB 546, 554, footnote 9.
APPENDIX
NOTICE To ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Examiner of the National Labot
Relations Board and in order to effectuate the policies of the National Labor Rela-
tions Act, as amended, we hereby notify our employees that:
WE WILL NOT coercively interrogate any employee as to his or any other
employee's union membership, affiliation, sympathies, desires, or activities.
WE WILL NOT threaten any employee that he will lose his job, or that we will
close the plant, or that there will be any other reprisal because of union mem-
bership, affiliation, activity, or support, or in the event the plant is unionized.
THE BUDD COMPANY AUTOMOTIVE DIV., DETROIT PLANT 421
WE WILL NOT make any threat of reprisal or engage in any reprisal in order
to induce or encourage any employee to vote against any union in any election
conducted by the National Labor Relations Board.
WE WILL NOT engage in any surveillance, or keep under watch and observa-
tion, any union or other lawful organizational activity of our employees, or any
union hall or other place where such activities, including meetings, are taking
place.
WE WILL NOT in any other manner interfere with, restrain, or coerce employees
in the exercise of their rights guaranteed by Congress to self-organization, to
form labor organizations, to join or assist any labor organization, to bargain
collectively through representatives of their own choosing, to engage in concerted
activities for the purposes of collective bargaining or other mutual aid or pro-
tection, or to refrain from engaging in any or all such activities.
WE WILL NOT in any manner interfere with the right of our employees to
make a free and untrammeled choice in any election conducted by the National
Labor Relations Board.
All employees are free to become, remain, or to refrain from becoming or
remaining, members of Textile Workers Union of America, AFL-CIO, CLC, or
any other labor organization.
MORGANTON DYEING AND FINISHING CORPORATION
Employer
Dated------------------- By-------------------------------------------
(Representative) (Title)
This notice must remain posted for 60 consecutive days from the date of posting,
and must not be altered, defaced, or covered by any other material.
If employees have any question concerning this notice or compliance with its
provisions, they may communicate directly with the Board's Regional Office, 1831
Nissen Building, 310 West Fourth Street, Winston-Salem, North Carolina, Tele-
phone No. 723-2381.
The Budd Company Automotive Division , Detroit Plant and In-
ternational Union , United Automobile , Aerospace and Agricul-
tural Implement Workers of America , (UAW) AFL-CIO,
Petitioner. Cases Nos. 7-RC-6572 and 7-RC-6574. August 11,
1965
DECISION AND DIRECTION OF ELECTIONS
Upon petitions duly filed under Section 9(c) of the National Labor
Relations Act, as amended, a hearing was held in these consolidated
cases before Hearing Officers Jack G. Handler and Joseph Kulkis.
The Hearing Officers' rulings made at the hearing are free from
prejudicial error and are hereby affirmed.
Pursuant to the provisions of Section 3 (b) of the Act, the National
Labor Relations Board has delegated its powers in connection with
these cases to a three-member panel [Chairman McCulloch and Mem-
bers Brown and Zagoria].
Upon the entire record in these cases, including the briefs filed by
the parties, the Board finds :
1. The Employer is engaged in commerce within the meaning of
the Act and it will effectuate the purposes of the Act to assert jurisdic-
tion herein.
154 NLRB No. 26.