Ace Hardware Corp.

National Labor Relations Board - Board Decisions

Aug 23, 1984

271 N.L.R.B. 1174 (N.L.R.B. 1984)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ace Hardware Corporation and General Drivers,
Warehousemen and Helpers Local Union 745,
affiliated with International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 16-CA-10936
23 August 1984
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
ZIMMERMAN AND HUNTER
On 16 September 1983 Administrative Law
Judge Richard L. Denison issued the attached deci-
sion. The Respondent filed exceptions and a sup-
porting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and brief and has
decided to affirm the judge's findings and conclu-
sions only to the extent consistent with this Deci-
sion and Order.
Contrary to the judge, we find that the Respond-
ent did not violate Section 8(a)(1) of the Act by in-
forming employees how to cancel their checkoff
authorizations and offering assistance in doing so.
Furthermore, while we affirm the judge's finding
of an 8(a)(l) violation regarding solicitation of
grievances, we do so with additional rationale.
According to the testimony credited by the
judge, the Respondent's distribution manager,
Nason, stated in response to an employee's question
about withdrawal from the Union that it was not
his job to go around and assist people in getting
out of the Union, but that if they would come to
him or members of management he could assist
them in getting out and would help them in any
way possible. The credited testimony reveals that
Nason held up a checkoff authorization card and
also stated that management had not approached
anyone concerning the matter of canceling dues de-
ductions but, if employees wanted to go to their su-
pervisor or him, he would see what he could do.
From the foregoing, the judge concluded that
Nason informed employees how to cancel their
checkoff authorizations and offered assistance in
doing so, thereby violating Section 8(a)(1) of the
Act.
We do not agree with the judge's conclusions of
law. Established Board principle holds that while
employers may not solicit employees to withdraw
from union membership, they may, on the other
hand, bring to employees' attention their right to
resign from the union and revoke dues-checkoff au-
thorizations so long as the communication is free of
271 NLRB No. 178
threat and coercion or promise of benefit. In both
Perkins Machine Co. and Cyclops Corp.,2 the Board
approved the employer's supplying of withdrawal
information and forms. In Perkins, the communica-
tions were sent to employees unsolicited, while in
Cyclops, the employer placed the information in
employees' pay envelopes, although only 13 em-
ployees had actually inquired about deauthorization
procedures. This case is controlled by the forego-
ing cases and thus the Respondent's action was not
violative of the Act.
The judge further found that the Respondent, by
means of the same speech, solicited employee
grievances and impliedly promised their redress
when the distribution manager suggested that em-
ployees and management meet for a meal and in-
formal problem-discussion session off company
premises after hours and that the Company would
pay for it.
The Board has long held that the essence of the
violation in solicitation of grievances is not the so-
licitation itself but the inference that the employer
will redress problems.3 Crucial to a conclusion of
implied redress is a finding that the employer inter-
fered with, restrained, and/or coerced employees
in their union activities, which is manifested by
such factors as change in past practice, announce-
ment of new policy, and timing and context of
such change. 4 Here both the timing and context of
the Respondent's announcement of a new practice
imply a promise to redress grievances. Nason con-
vened an employee meeting to discuss the Union's
activities on the day subsequent to the Union's re-
newed activities, which consisted of its distributing
leaflets to employees regarding insurmountable
employee/management problems. At the meeting
Nason read a management protest letter against the
Union; made disparaging remarks about the union
leadership; informed employees that the Respond-
ent's truckdrivers whom he described as exemplary
had recently decertified the Union; asked employ-
ees about their "insurmountable problems"; and an-
nounced the offer of a "continental breakfast" or
informal meeting during nonworking hours to dis-
cuss employee problems.
In these circumstances, we find, in concurrence
with the judge, a violation of Section 8(a)(1) of the
Act.
I Perkins Machine Co., 141 NLRB 697 (1963); Cyclops Corp., 216
NLRB 857 (1975).
2 Perkins Machine Co., supra; Cyclops Corp., supra.
3 Giovanni's, 259 NLRB 233 (1981), see Uarco Inc., 216 NLRB 1
(1974).
4 Granite City Journal, 262 NLRB 1153 (1982); Burger King, 258
NLRB 1293 (1981); NLRB v. Berger Transfer & Storage, 678 F.2d 679
(7th Cir. 1982).
1174
ACE HARDWARE CORP.
CONCLUSIONS OF LAW
1. The Respondent is an employer engaged in
commerce within the meaning of Section 2(2), (6),
and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By means of a speech by Distribution Manag-
er James D. Nason soliciting employees' grievances
and impliedly promising to redress those griev-
ances, the Respondent violated Section 8(a)(1) of
the Act.
4. The Respondent has not violated the Act in
any other respect other than those specifically
found.
5. The aforesaid unfair labor practice is an unfair
labor practice affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent has engaged
in an unfair labor practice, we shall order that the
Respondent cease and desist therefrom and take
certain affirmative action designed to effectuate the
purposes of the Act.
ORDER
The National Labor Relations Board orders that
the Respondent, Ace Hardware Corporation, Ar-
lington, Texas, its officers, agents, successors, and
assigns, shall
1. Cease and desist from
(a) Soliciting employees' grievances and implied-
ly promising that those grievances would be re-
dressed.
(b) In any like or related manner interfering
with, restraining, or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Post at its facility at Arlington, Texas, copies
of the attached notice marked "Appendix."5
Copies of the notice, on forms provided by the Re-
gional Director for Region 16, after being signed
by the Respondent's authorized representative,
shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
I If this Order is enforced by a Judgment of a United States Court of
Appeals. the words in the notice reading "Posted by Order of the Na-
tional Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the Nation-
al Labor Relations Board."
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the complaint is
dismissed insofar as it alleges violations of the Act
not specifically found.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT interfere with, restrain, or coerce
our employees in their rights to engage in union or
other protected concerted activity, by unlawfully
soliciting employees' grievances, and by impliedly
promising to redress those grievances.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
ACE HARDWARE CORPORATION
DECISION
STATEMENT OF THE CASE
RICHARD L. DENISON, Administrative Law Judge.
This case was heard at Fort Worth, Texas, on July 5 and
6, 1983.' The charge in Case 16-CA-10936 was filed by
the Union on February 28. The complaint, issued April
28, alleges violations of Section 8(a)(1) of the Act arising
out of a speech to assembled employees made by the Re-
spondent's Distribution Center Manager James D.
Nason, an admitted supervisor and agent within the
meaning of Section 2(11) and (13) of the Act.
The Respondent's answer denies the allegations of
unfair labor practices alleged in the complaint. On the
entire record in the case, including my consideration of
the briefs and observation of the witnesses, I make the
following
FINDINGS OF FACT
I. JURISDICTION AND LABOR ORGANIZATION
Based on the allegations of paragraphs 2 and 3 of the
complaint admitted by Respondent's answer, I find that
the Respondent is, and has been at all times material
herein, an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act. Further-
more, based on the allegation of paragraph 4 of the com-
plaint admitted by Respondent's answer, I find that the
Union is, and has been at all times material herein, a
All dates are 1983 unless otherwise specified
1175
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. Introduction
Certain of the Respondent's employees are represented
by Local 745. The collective-bargaining agreement be-
tween the Union and the Company contains provisions
for the Union's representatives to have access to compa-
ny premises and bulletin boards under certain limited cir-
cumstances. On the afternoon of February 17, James D.
Nason, distribution center manager for the Respondent's
Arlington, Texas facility, received reports from employ-
ees allegedly complaining that the union's representatives
had entered the Company's premises and distributed lit-
erature in a manner he deemed contrary to the terms of
the collective-bargaining agreement. Whether or not
these reports are accurate is not in issue. Nason's testimo-
ny in this respect explains what prompted him to write a
letter, dated February 17, to Charles E. Rogers of the
Union, protesting the alleged violation of the contract,
which he described as "bullying and strongarm tactics,"
and to assemble approximately 100 employees in the
warehouse lunchroom on February 18 for a speech. Cer-
tain specific remarks which Nason allegedly made in this
address are alleged as violations of Section 8(a)(1) of the
Act.
Paragraph 6(a) of the complaint alleges that Nason
"characterized the Union as 'crooks' in an oral statement
to . . . employees." Paragraph 6(b) alleges that Nason
"orally stated to ... employees that members of the
Union were animals." No detailed consideration of the
evidence concerning these allegations is necessary. As
counsel for the General Counsel quite candidly points
out, remarks similar to those alleged to have been made
by Nason have long been construed by the Board as ex-
pressions of opinion protected under the free speech pro-
vision of Section 8(c) of the Act. In my view, the cases
cited by counsel for the General Counsel in his brief, on
which he argues should be found a violation because the
alleged remarks were calculated to disparage and under-
mine support for the Union, are clearly distinguishable
from the instant case. Since these remarks, if made, do
not constitute unlawful interrogation, threats, or prom-
ises of benefits express or implied, I find that the Re-
spondent has not violated Section 8(a)(l) of the Act as
alleged in paragraphs 6(a) and (b) of the complaint.
Paragraphs 6(c), (e), and (f) of the complaint, as
amended, allege, respectively, that Nason violated Sec-
tion 8(a)(1) by informing employees as to the manner by
which they could terminate their union dues-checkoff au-
thorization, promised benefits to employees if the Union
were decertified, and orally informed employees as to
the manner by which they could decertify the Union.
Paragraph 6(d) of the complaint alleges that Nason also
solicited employee grievances. Counsel for the General
Counsel called employees Larry Rose, Steve Sifford, and
James Mark Hull as witnesses in support of the com-
plaint allegations.
B. The Testimony
Larry Rose, a merchandise handler and alternate union
steward at the Respondent's Arlington, Texas facility, at-
tended the February 18 lunchroom meeting, which he
estimated was attended by about 75 rank-and-file em-
ployees and members of management. According to
Rose, Nason was the only speaker at the meeting. At
first Nason apologized for being a few minutes late.
Then Nason delivered a short address followed by a
question and answer period. Nason remarked that he was
sure the employees were aware that a Teamsters business
representative had been there the day before, and that he
was very upset by the way they had conducted them-
selves. Nason had a Teamsters authorization card in his
hand plus a copy of the bulletin board notice the union
representatives had placed on the bulletin board the pre-
vious day. After some preliminary remarks about the
legal difficulties then being encountered by the Team-
sters International President, who Nason described as
being on trial for embezzlement, Nason held up the au-
thorization card. He read some of the language of the
card concerning union dues, which Nason interpreted as
permitting the Union to charge employees from a few
dollars dues up to $500. Then Nason stated that he could
not come and tell them how to get out of the Union be-
cause that was against the law, but that the employees
could come to him if they wanted to to find out some
information about decertifying. He said that the truck-
drivers had decertified the Union, and that "this is a
good example that the management-employee relation-
ship could go quite well without a third party." Nason
said that he did not come to tell them to get out of the
Union, but that he could help them if they came to him
for information concerning a decertification petition at
the end of the contract. Then Nason opened the floor for
questions or for any employee to voice any problems
they had. Rose raised his hand and asked why it was that
if an employee and a supervisor had a "discrepancy,"
and the employee went to a higher official to have it re-
solved, the employee was rebuked or punished for it.
Nason answered if there were any problem of that nature
the employees could come to him personally and talk to
him about it. Then another employee from the shipping
department asked whether, if they were to decertify the
Union, the Company would give them better benefits
than the Union had already obtained for them. Nason an-
swered, "Well, at this time we couldn't promise you any-
thing, but as far as I know relations between manage-
ment and the employees would be a lot better off with-
out a third party." According to Rose, "the closest thing
that I got out of it is he could not guarantee any better
benefits." The meeting ended with Nason saying that in
order to iron out any problems employees had that man-
agement was unaware of, he could schedule a continen-
tal breakfast meeting at some time in the future. On
cross-examination Rose adhered closely to his direct tes-
timony. He conceded that he had received a 3-day sus-
pension on December 16, 1982, a disciplinary notice on
January 4, a 3-day suspension on March 1, and had been
terminated on April 12.
1176
ACE HARDWARE CORP.
Steve Sifford, a merchandise handler in the receiving
department since February and union steward since late
February, also attended the meeting. Sifford remembered
that after Nason's opening remarks, in which he said that
he had called the meeting because he felt strongly about
the union representatives' "strong-arm tactics" in enter-
ing the building and passing out material to the employ-
ees the previous day, Nason stated that some employees
had requested that union dues not be taken out of their
checks. He said that management had not approached
anyone on this matter, but if they wanted to go to their
supervisor or to Nason he would see what they could
do. Then Nason threw the floor open for questions and
invited the employees to tell him what their problems
were. One employee from the shipping department asked
whether the benefits and pay would change if they were
to decertify the Union. Nason answered that when their
drivers had decertified, they did not lose any of their
benefits, but that it was not in his jurisdiction to say. He
stated that some of the other Ace Hardware locations
had a credit union instead of having a union, and asked
the employees if they would like to have one. He said
that it was not a promise, but just a statement. Then
other employees, including Larry Rose, also asked ques-
tions. Toward the latter part of the meeting, Nason asked
if the employees would like to get together after work
on a week night or weekend and discuss their problems
at a continental breakfast in order to work out their
problems and find out where they were. He said that he
would pay for the breakfast if they would have the meet-
ing. Nason also remarked that the drivers had decertified
the Union on their own, and that their benefits had not
changed and would not change. On cross-examination,
Sifford remembered that Nason's remarks concerning the
union officials being "animals" came up in connection
with a statement concerning the Teamsters International
president having been in trouble with the law for which
he could possibly be indicted. Sifford insisted that Nason
stated that "all Teamsters were crooks." Sifford agreed
that at no time during the course of his speech did Nason
specify what kind of benefits the employees would re-
ceive if they were to decertify the Union.
James Mark Hull, a merchandise handler, remembered
that the meeting lasted approximately 45 minutes. His ac-
count of what transpired was better organized and more
detailed than the General Counsel's other two witnesses.
Furthermore, he was the only one of the General Coun-
sel's three witnesses who either did not occupy a posi-
tion with the Union, or concerning whom no evidence of
possible bias was introduced. According to Hull, Nason
began the meeting by reading the notice which the union
representatives had posted on the bulletin board during
their alleged intrusion onto the Respondent's premises
the preceding day. Nason stated that the union represent-
atives had entered the facility without his permission,
and accused the Union of strong-arm tactics which were
not appreciated and would not be condoned. Then he
read the letter which he stated he was going to send to
the Union protesting their conduct. Next, Nason said
that the president of the Union which represented them
was in the process of being indicted on bribery charges
for trying to bribe a Congressman, and that those repre-
senting the employees were crooks and animals, but that
he was not going to be a policeman to keep the Union
under control. Then Nason noted that several warehouse
employees had come to members of management asking
how they would go about getting out of the Union.
Nason said it was not his job to go around and assist
people in getting out of the Union, but, if they would
come to him or members of management, he could assist
them in getting out and would help them in any way
possible. He said he felt like this was the least he could
do. Then Nason opened the meeting to employees' ques-
tions. The first question came from Larry Rose who, ac-
cording to Hull, asked if Nason was aware there were
some production problems in his department in that there
were some flaws in the way they filled their orders.
Nason answered that he knew there were a few prob-
lems, but that the system was fair and equitable, had
been around for a while, and managed to work. Then
employee John Zimmerman asked what benefits the
truckdrivers received. Nason answered by asking if they
were aware that the truckdrivers had recently voted to
get out of the Union, decertify, and negotiate a contract
of their own. He said they were to be congratulated. Al-
though Nason did not specifically state what benefits the
truckdrivers had obtained, he did say that they would
keep the benefits they had, and it would be over his dead
body if anybody took them away. Then a third employ-
ee, who Hull could not identify, asked if the other em-
ployees were to decertify, what benefits they would get.
Nason answered that he could not promise what benefits
they would get because he was not empowered to do
that, but assured them that they would keep the benefits
they had. Hull also remembered that at one point in his
remarks Nason mentioned that at another of the Compa-
ny's warehouses they had a credit union, but Hull could
not recall whether it was Nason who brought up the
subject of a credit union or whether it arose in response
to an employee question. Finally, Nason concluded the
meeting by stating that he was not aware that the ware-
house had any problems, but if there were any problems
he suggested that the employees and management get to-
gether after work or on a Saturday for refreshments or a
continental breakfast for the purpose of discussing these
problems. Nason said if enough employees signed up to
make such a meeting feasible, he would pay for it.
James D. Nason testified that he did not speak from a
text or from notes, or otherwise record his speech at the
time it was made. Nason denied calling the union offi-
cials crooks or animals. He insisted that he did not
inform employees concerning how to terminate their
checkoff authorizations, or promise any benefits to them
if they were to decertify the Union. He also denied
giving the employees information concerning the manner
by which the decertification could be accomplished. He
likewise denied saying that the truckdrivers should be
congratulated for decertifying the Union, and stated that
he did not specifically refer to a credit union during his
remarks. According to Nason, he was prompted to make
his February 18 speech by the conduct of the Union's
business agents who entered the plant and distributed no-
tices to employees on the previous day. He issued in-
1177
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
structions which resulted in the lunchroom assembly,
which he described as composed of a "cross-section" of
about 100 union and nonunion warehouse employees,
clerks, clericals, and management people. He began his
address by announcing that he was going to read a letter
he had written to the Local Union concerning their ac-
tivities the day before, which he stated would not be
condoned. Nason said they were going to have an order-
ly business relationship at the facility, and not one of in-
timidation and threats. After reading the letter verbatim
to the assembled group, he asked if it was correct that
there were insurmountable problems in the warehouse.
He said that neither he nor his staff had any indication of
any problems or dissatisfaction in the warehouse, and
asked the employees what was going on. Nason noted
that at this time there was no union steward at the facili-
ty. Then, according to Nason, he invited the employees
to speak up on any issue they would like to cover, and a
number of those present asked questions. Nason remem-
bered that John Zimmerman asked how to get out of the
Union. Nason responded that he had not called the meet-
ing with the intention of getting out of the Union, and
that he did not feel free to discuss with him at that meet-
ing the ways and means of getting out of the Union.
Next, employee Don Brewer asked if they would still
have the same benefits they were currently enjoying, and
Nason answered that there would be no reason to
change the fringe benefits, but that he was not going to
comment on that in relation to withdrawing from the
Union. Nason agreed that he referred to the fact that the
truckdrivers and the office personnel still had their fringe
benefits, and that the Company was not in the business
of taking things away. Then Larry Rose asked what he
could do to get clarification or an answer to a problem,
if he could not get a satisfactory answer from his super-
visor. Nason answered that he and the rest of the em-
ployees were free to do whatever they wanted to do, but
that the orderly "procession" would be to contact the su-
pervisor's manager, personnel, or to see Nason personal-
ly, and not necessarily in that order. Rose also wanted to
know why they did not have a union steward, and
Nason replied that that was not a concern of his, and
that he could not get involved in the relationship be-
tween union stewards and the Union itself. According to
Nason, he said that people were free to be in the Union,
and free to be out of the Union. He mentioned that
Texas was a right-to-work State, and that whatever they
wished to do in this respect was their prerogative and
that he was not going to interfere. Then John Zimmer-
man asked what steps they should take to get out of the
Union. Nason testified that he answered that he did not
feel comfortable with that question, but said that nine
employees had individually approached management
about getting out of the Union and/or stopping their
union dues. At this point Nason held up a union dues
checkoff authorization card, and said when they made a
decision they should read what they were signing and
know what they were getting into. He said that if they
wanted to join the Union they should join the Union,
and if they did not then not to join. He said that he was
not going to act as a policeman, and was not going to
solicit their withdrawal from the Union, and that what-
ever they did they did on their own accord. Then, in re-
sponse to a question from Don Brewer concerning fringe
benefits, which Nason states he declined to answer be-
cause "it could conceivably incriminate me," Nason
stated that he really did not call the meeting to discuss
ways and means of decertifying the Union. He said that
the meeting was merely to call their attention to or at-
tempt to get to the bottom of the "unnecessary activities
perpetrated by the union representatives." Nason said
that he told the employees, "You people are asking me
to withdraw from the Union, and I cannot give you that
type of information. You should read what it is you are
signing-what you are getting yourself into. And when
you sign a dues checkoff, part of that possibly will go to
pay the way for trials of, say, Mr. Williams, currently
the President of the Teamsters Union." Nason further re-
marked that Williams had been indicted by the Federal
Government for activities "concerning bribery of a
United States Senator." The meeting ended with Nason
asking employees if they would be interested in a "gener-
al meeting" to discuss all types of activities correspond-
ing to their employment with Ace Hardware. He said he
would be willing to discuss whatever it was they would
like to discuss with any employee at any time, and sug-
gested that they could have a round table discussion
either in the evening or on a Saturday morning. Subse-
quently, according to Nason, a large number of the em-
ployees "signed up" indicating that they were interested
in attending such a meeting.
The Respondent also called employees John Zimmer-
man, William E. Polk, Mona Bandera, Michael F. Ellis
Jr., Bobby Joe Dilmore Sr., and Melton Wayne Plemons,
to testify concerning their recollection of Nason's
speech. Zimmerman testified that he could not recall ev-
erything that went on during the meeting. He said that
he could hear Nason only part of the time, partly be-
cause he was engaged in discussion with some of the
other employees while Nason was talking. However, he
claimed that he paid attention to Nason's remarks with
respect to certain things. He remembered that Nason
started out by speaking about the union officials that had
been in the warehouse, describing their entry and pam-
phlet distribution as "strong-arm tactics." He could not
remember whether Nason read or referred to a letter he
had written the Union. Zimmerman remembered asking
Nason what actions would be taken if the Union were
removed from the warehouse, and whether or not that
would result in "any type of pay deductions or any-
thing." He remembered that Larry Rose asked a question
of Nason, but could not recall the nature of the question.
He remembered some discussion about the subject of
dues checkoff, in that Nason mentioned that the people
that decided to sign their checkoff list would be held
liable by the Union for dues that were past and might
possibly be sued. Other than these remarks, Zimmerman
remembered little else about Nason's address. Neverthe-
less, and despite his inattention, he explicitly denied that
Nason specifically told employees that they could termi-
nate their union dues checkoff authorizations, or that
Nason made any promises of benefits to employees in
return for decertifying the Union. He remembered that
1178
ACE HARDWARE CORP.
"there was something mentioned about a continental
breakfast," but denied that Nason made any remarks
about Teamsters Union officials, or made any reference
to a credit union.
William Polk remembered very little about Nason's
speech until his memory was prodded by specific ques-
tions from counsel. He remembered that Nason read a
letter that he was going to send to the Union and that he
remarked that the Union had broken the spirit of the
contract. He also recalled that certain employees, includ-
ing Larry Rose and John Zimmerman, asked questions.
In response to Rose's question, which Polk could not re-
member, Nason replied that there was a chain of com-
mand to follow, that they should first go to their super-
visor, and that if they were still not satisfied with the
answer he had an open door policy. Zimmerman's ques-
tion concerned job security, to which Nason responded
that as long as work was available they would have a
job. Another question by another unnamed employee
concerned how they would negotiate a contract if a lot
of people got out of the Union. According to Polk,
Nason said he would not comment on that because they
still had a union representing the employees. Polk also
remembered Nason suggesting that they could get to-
gether and have another meeting at another location
"just a get together to see how business is doing, or
people that had problems, you know, you could bring
them up at that time." In response to specific questions
by Respondent's counsel, Polk denied that Nason made
any reference to union officials or prounion employees as
crooks or animals, that Nason told employees how they
could terminate their dues-checkoff authorizations or de-
certify the Union, or that he promised any benefits to
employees in return for decertification. On cross-exami-
nation Polk remembered Nason making a reference to
the truckdrivers having decertified the Union. Also, after
having been shown a copy of the affidavit which he
gave to the investigating Board agent, Polk acknowl-
edged that Nason stated that Teamsters President Roy
Williams was being investigated, and that past Teamsters
had been indicted for illegal activities. He also acknowl-
edged that Nason stated he was not going to tolerate the
Teamsters interrupting the business. He insisted, despite
close questioning, that in response to a question about
what would happen if the warehouse employees decerti-
fied, Nason insisted that he could not talk about that be-
cause the Union was still there. He remembered that at
the outset of the meeting Nason remarked that the union
officials had come into the plant and that he was not
going to tolerate it. Thus, Polk exhibited a poor memory.
What little he did recall was, at best, fragmentary. He
vacillated concerning whether Nason's remarks about a
Teamsters official referred to Roy Williams or another
former Teamsters president. Polk's answers were precise
only when specific leading questions were addressed to
him.
Mona Bandera remembered that Nason began the
meeting by reading a letter, but did not remember him
having any other piece of paper in his hand. Nason
began by stating he had called the meeting because of
the intrusion of some union personnel the day before
when they had passed out leaflets without going through
the correct procedures by going to the office. He said he
was sending the letter to the Union because of the rude-
ness of these men. Then there were questions by employ-
ees. In response to a question by Larry Rose, Nason
stated that if they could not talk to their supervisor
about a problem they were having they could talk to an-
other supervisor or to him. In answer to another employ-
ee's question about what the benefits would be if some-
one wanted to get out of the Union, he stated that he
could not tell them any benefits, if there were any bene-
fits, or if there weren't any benefits, and if he said any-
thing about that he could get into trouble. Then he sug-
gested that the whole Company should have a get-to-
gether or a continental breakfast to talk about what
would help the Company, working conditions, and what
would move the Company along or help the job run
better. At this point Bandera's memory was exhausted.
In response to specific questions she denied Nason in-
formed employees how they could terminate their union
dues-checkoff authorizations, promised benefits in return
for decertification, or informed employees as to the
manner in which they could decertify the Union. On
cross-examination Bandera could not remember whether
or not Nason mentioned anything about dues checkoff,
decertification of the truckdrivers, or the Teamsters
president.
Michael Ellis testified that Nason was "a low-speaking
man to begin with, and to be honest, I wasn't really lis-
tening to a lot of it. So, you know, I could have missed a
lot." Independently, he remembered only that Nason
spoke about the pamphlets which had been distributed
the day before by union officials who he claimed had
violated the contract by entering the warehouse. He re-
called Zimmerman asking whether they would receive
the same benefits if they were not part of the Union, and
Nason's answer that he could not answer that question,
and could not promise them anything. Ellis remembered
that there were other questions, which he could not
recall. Nason also talked about having an informal meet-
ing of the employees on a Wednesday evening or Satur-
day morning, and mentioned something about the drivers
decertifying. In response to specific questions, he denied
that Nason told them how to terminate their union dues-
checkoff authorizations, although he held one in his
hand. He likewise could not recall Nason's promising
employees benefits to decertify the Union, or informing
employees how decertification could be accomplished.
On cross-examination, after having been shown his
Board affidavit, Ellis acknowledged that Nason held up a
dues-checkoff authorization card, and stated that there
was a way to get out of the Union if they wanted to, and
that it could be done at a later time. He also acknowl-
edged that there was a question concerning what would
happen to employees' benefits if the Union were decerti-
fied, and that Nason replied either that he could not
answer the question or he could not promise anything.
Immediately thereafter in his testimony, however, Ellis
retreated and insisted that he could not remember the
question at all.
Bobby Joe Dilmore Sr. remembered only that Nason
talked about a pamphlet the Union had distributed the
1179
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
day before, read a letter which he had written to the
Union, and also stated, in response to a question about
getting out of the Union, that they could get out but had
to wait for a certain time to do it and he could not say
how. In response to specific questions, Dilmore denied
that Nason promised benefits in return for decertifica-
tion, discussed decertification, informed employees how
to get out of the Union, or referred to the president of
the Teamsters.
Melton Wayne Plemons remembered Nason's speech
in greater detail and was more positive in his testimony
than any of Respondent's employee witnesses that pre-
ceded him. According to Plemons, Nason began his ad-
dress by reading a letter he was going to send to the
Union concerning their leaflet distribution on the previ-
ous day. Nason also read the leaflet which he described
as not having been distributed according to the rules. He
also stated that he was not aware that there were prob-
lems in the warehouse and said perhaps they could dis-
cuss those things if there were. He then called for ques-
tions. The first question, from Larry Rose, concerned
what the employees could do if they were unable to
communicate with their supervisors. Nason answered
that there was a procedure in management by which
they tried to iron out the problems employees had. Then
John Zimmerman asked if they were dissatisfied and
tired of the Union how they could get out of the Union
if they did not want to be in it. Plemons testified, "I
think Mr. Nason said there was a procedure, that some
of the truckdrivers had, last year, had taken action to
where they were no longer in the union, but that it was
not his job to tell John [Zimmerman] how to withdraw,
and said it was a difficult process, and wasn't easy to
do." According to Plemons, Nason did not spell out the
details concerning how to go about getting out of the
Union. Then another employee, whose name Plemons
did not remember, asked what kind of benefits they
would have without the Union or whether they would
be better ones. Plemons testified, "and I think the reply
was that there wouldn't be any decline, in fact, with an
increase of productivity there should be no reason why
there wouldn't be an increase in benefits, you know, to
the employees." Then there was discussion concerning a
future meeting in order to have open lines of communi-
cation between employees and management. At one
point Plemons remembered Nason saying something
about a meeting which was going to be held by the
Union, and that the workers needed to be wise in their
judgment at this meeting because they probably would
be asked to sign a dues-checkoff form. He said that
whenever they signed this form they were making a
fairly long-term commitment, which they should weigh
before making a reckless or quick action. He said it was
much easier to join or sign up for union dues deduction
than it was to withdraw should they later change their
mind. Plemons, however, testified that Nason did not
hold up any type of union card. On cross-examination
Plemons recalled that although Nason did not refer to a
Teamsters official he read the Teamsters address. He also
remembered that in referring to the procedure available
to employees for communicating with their supervisors,
he said that if an employee felt a supervisor was not
dealing fairly with them they could bring in an inde-
pendent second or third party supervisor and then try to
work out an agreement. He also referred to the possibili-
ty of a third step for resolving the difference, but did not
think there was any mention of arbitration.
C. Analysis and Conclusions
The resolution of credibility issues is always a difficult
one. It is especially so in situations, exemplified by the
instant case, where, in the absence of an authenticated
text, witnesses are called on to relate an entire speech. In
such instances differences in phrasing, as recalled by the
witnesses, may well spell the difference under the case
law between a finding of a lawful or an unlawful remark
on the part of the speaker. At the outset I have carefully
examined each witness' testimony in an effort to detect
any deliberate falsification. I am satisfied that none exists,
and that each witness, including Mr. Nason, presented
what was truly believed to be the most accurate account
of Nason's remarks each was capable of adducing almost
5 months after the event. However, individual capacities
for accurate and detailed recounting of occurrences wit-
nessed vary widely. Sometimes weaknesses in this area
are readily revealed by remarks of the witness while tes-
tifying. Thus, John Zimmerman professed a lack of
memory and noted that he heard only part of Nason's
address. Likewise, Michael Ellis admitted that he really
was not listening while Nason was talking and, conse-
quently, had little independent recollection of what oc-
curred. I find their testimony less reliable than that of
some others.
In other instances the brevity or lack of independent
recollection reveals the limited reliability of the wit-
nesses' testimony. In this instance Polk, Bandera, and
Dilmore obviously remembered only a portion of what
Nason had said. In the case of Polk and Dilmore that
was clearly a very small portion.
Nason, Rose, and Sifford plainly fall within the cate-
gory of interested witnesses who exhibited the uncon-
scious tendency to color their accounts to favor their
particular cause. Thus, Larry Rose was the only witness
who testified that Nason actually offered to assist em-
ployees with information on how to decertify the Union.
Nason and all the employee witnesses denied this was a
part of Nason's speech. I do not credit this portion of
Rose's testimony. I find that the Respondent did not vio-
late Section 8(a)(1) of the Act as alleged in paragraph
6(f) of the complaint, as amended.
Out of all the employee witnesses, concerning whom
there was no apparent evidence of possible bias, James
Hull and Melton Plemons exhibited the best memories
and were the most articulate. Hull testified that in
answer to a question about "getting out" of the Union,
Nason answered it was not his job to go around and
assist people in getting out of the Union, but that if they
would come to him or members of management he could
assist them in getting out and would help them in any
way possible. Nason denied offering assistance to em-
ployees who wanted to revoke their dues-checkoff au-
thorizations, but admitted holding up a checkoff authori-
zation card in connection with a remark that employees
1180
ACE HARDWARE CORP.
should read and know what they were signing. Likewise,
Zimmerman remembered checkoff being discussed. Fi-
nally, Hull's account on this point generally coincides
with Sifford's who testified Nason stated that manage-
ment had not approached anyone concerning the matter
of canceling dues deductions, but if they wanted to go to
their supervisor or to him, he would see what he could
do. I am persuaded that Nason did inform employees
how to cancel their checkoff authorizations and offered
assistance in doing so, thereby violating Section 8(aX)(1)
of the Act as alleged in paragraph 6(c) of the complaint.
Concerning the allegation that Nason promised em-
ployees benefits if the Union were decertified, only Sif-
ford testified that Nason actually suggested employees at
Arlington could have a credit union if the Union was re-
moved. But in another portion of his testimony Sifford
said Nason did not specify what benefits employees
would receive if they decertified the Union. Nason
denied the alleged remark. His denial is supported by
Hull, who testified Nason said he could not promise
better benefits, but assured them they would keep those
they had, by Rose who phrased Nason's statement in
terms of "better relations" coupled with a denial of pos-
sible better benefits, and by Plemons who testified
Nason's answer based any future increase in benefits only
on increased productivity. I do not credit Sifford's ver-
sion, and find the General Counsel has failed to prove
that Respondent has violated Section 8(a)(l) in this por-
tion of Nason's speech, as alleged in paragraph 6(e) of
the complaint.
Finally, all witnesses, including Nason, agree that
Nason did suggest that the employees and management
meet for a meal and informal problem discussion session
off company premises after hours or on a weekend, and
that the Company would pay for this session, which
some described as a "continental breakfast." In the con-
text of Nason's address it is implicit that the purpose of
this meeting was directed toward the redress of problems
or grievances concerning which Nason had earlier ex-
pressed lack of knowledge, and invited employee ques-
tions. Thus, Nason violated Section 8(a)(1) as alleged in
paragraph 6(d) of the complaint.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Charging Party is a labor organization within
the meaning of Section 2(5) of the Act.
3. By means of a speech by Distribution Manager
James D. Nason, in which he informed employees how
to cancel their checkoff authorizations and offered assist-
ance in doing so, and by soliciting employees' grievances
and impliedly promising that those grievances would be
redressed, the Respondent violated Section 8(a)(1) of the
Act.
4. The Respondent has not violated the Act in any re-
spects other than those specifically found.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
THE REMEDY
Having found that the Respondent is engaged and is
engaging in certain unfair labor practices, I find it neces-
sary to order that the Respondent cease and desist there-
from and take certain affirmative action designed to ef-
fectuate the policies of the Act.
[Recommended Order omitted from publication.]
1181