Arkansas Lighthouse For The Blind

National Labor Relations Board - Board Decisions

Jul 24, 1987

284 N.L.R.B. 1214 (N.L.R.B. 1987)

1214 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Arkansas Lighthouse for the Blind and Chauffeurs,
Teamsters and Helpers Local Union No. 878,
affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Cases 26-CA-9244 and
26-RC-6388
24 July 1987
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 20 June 1983 Administrative Law Judge
Bruce C. Nasdor issued the attached decision. The
Respondent filed exceptions and a supporting brief,
the General Counsel filed an answering brief, and
the National Federation of the Blind, Party in In-
terest, filed a brief in support of the General Coun-
sel's answering 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 briefs and has
decided to affirm the judge's rulings, 2 findings, and
conclusions and to adopt the recommended Order,
as explained and modified below.
I. THE REPRESENTATION PROCEEDING
For the reasons below we reaffirm our determi-
nations in the representation proceeding that the
Board's exercise of jurisdiction over the Respond-
ent is appropriate, and that the Respondent's "cli-
ents" are employees within the meaning of Section
2(3) of the Act.
The undisputed evidence establishes that the Re-
spondent is a nonprofit, charitable corporation en-
gaged primarily in the manufacture of notebooks,
pillowcases, mattress covers, gun belts, and the sus-
pension assembly for helmets. The Respondent is
governed by a 15-member board of directors. At
the time of the representation hearing Executive
Vice President Billy Day managed the Respond-
ent's daily operations, and James Avants served as
its general manager.
1 The Respondent also filed two motions for permission to make proof
of change in personnel subsequent to election. The General Counsel filed
oppositions to both motions, and the Union filed a response joining the
General Counsel's position. The Respondent's motions are discussed,
infra.
2 The Respondent has excepted to some of the judge's credibility find-
ings. The Board's established policy is not to overrule an administrative
law judge's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951).
We have carefully examined the record and find no basis for reversing
the findings.
Blind "clients" constitute approximately 84 per-
cent of the Respondent's work force, and the Re-
spondent operates under a sheltered workshop cer-
tificate issued by the Department of Labor under
Section 14(c)(1) of the Fair Labor Standards Act.3
The Respondent sells over 90 percent of its prod-
ucts to the Federal Government under contracts
obtained pursuant to the Wagner-O'Day Act 4 To
be eligible for contracts under that law, the Re-
spondent must employ blind individuals for not less
than 75 percent of the man-hours required for the
production of the goods. The Respondent's prod-
ucts must meet Government specifications, and the
Government has rejected goods which do not meet
those specifications.
In the year ending 30 September 1980, according
to its annual report, the Respondent received
$2,131,324 from sales of goods. 3 Avants testified
that the Respondent lost approximately $200,000 in
the year ending 31 July 1980. The annual report
for the year ending 30 September 1979 shows that
the Respondent received $1,360,222 from the man-
ufacture of new goods.
The Respondent's clients and other employees all
receive the same wage, regardless of productivity
or length of service. The entire work force also re-
ceives the same benefits, including health and life
insurance, unemployment insurance, workmen's
compensation, nine paid holidays per year, 5 days
of paid vacation after 1 year of service, and 10
days of paid vacation after 2 years. The Respond-
ent has also given at least one employee an award
for long service. The entire work force works from
6:45 a.m. until 3:15 p.m., with breaks. All workers
punch a timeclock and are paid time and a half for
overtime work.
Approximately 98 percent of the Respondent's
clients are referred from a state agency, the Office
of the Blind and Visually Impaired (OBVI). A new
3 29 U.S.C. § 214. This certificate permits the Respondent to pay
wages lower than, but not less than 50 percent of, the minimum wage,
provided that wages are conunensurate with the wages of nonhandi-
capped workers in industry in the local area.
The Respondent is also a tax-exempt institution under Sec. 501(c)(3) of
the Internal Revenue Code.
4 41 U.S.C. §§ 46-48. Under that law, the Committee for the Purchase
from the Blind and Other Severely Handicapped, which is appointed by
the President fixes the price of the goods purchased by the Government
The National Industries for the Blind, a nonprofit corporation designated
by the Committee, is responsible for allocating Government contracts to
various workshops. The contracts are not awarded through competitive
bidding.
5 The Respondent's counsel stated that this figure represented total
revenue, of which 90 percent was derived from the sale of goods. The
annual report also shows that 92 percent of its sales were to the Federal
Government; that the remaining sales were to the State of Arkansas, the
Lions Clubs, and other organizations; and that the Respondent also re-
ceived approximately $90,465 in private contributions. In addition, the
Respondent receives an undisclosed amount of investment and interest
income.
284 NLRB No. 110
ARKANSAS LIGHTHOUSE FOR , THE BLIND

1215
client undergoes a 30-day on-the-job training
period, and the Respondent does not retain a client
after that period if his production is insufficient. &
The clients work under a production "goal" of 80
percent of what a sighted person would produce.
According to Avants, 35-40 percent of the clients
produce at a rate "very close" to 80 percent; 50
percent of the clients produce at a 50 to 60 percent
rate; and 10-15 percent produce at a lower rate.
The Respondent maintains daily production reports
on its clients, and several testified that they are
"pressure[dr to produce, 7 although Avants stated
that they are "encourage[d]" to produce. 8 A client
who is not producing sufficiently may be trans-
ferred involuntarily to another department. Some
clients have not been recalled from layoff because
of poor production. Layoffs occur frequently and
have sometimes lasted from 2 to 4 months.
The Respondent occasionally has removed sight-
ed employees to make jobs available for clients,
and has sometimes altered machines to facilitate
their operation by clients. On one occasion the Re-
spondent subdivided one job into two in order to
provide employment for a client.
The Respondent disciplines clients for serious
misconduct, and one client was discharged for
threatening a supervisor with a knife. Another was
discharged for an undisclosed reason before the
unfair labor practice hearing. As to lesser miscon-
duct, there is evidence that a supervisor suspended
a client for 2 days for "gross carelessness" in the
performance of his job. 8 With respect to poor at-
tendance, Avants testified that he simply tells cli-
ents to improve without disciplining them. Accord-
ing to one client, however, Day has told clients
more than once that they could be terminated for
being absent for 3 consecutive days without calling
in. The employee personnel manual contains such a
provision, and it also states that unspecified disci-
pline may be imposed for, among other things,
stealing, destruction of property, threatening or
profane language, fighting, "horseplay," falsifying
timecards, intoxication, gambling, and repeated
6 OBVI provides the Respondent with $22 per day for each day of a
new client's 30-day framing period, and the Respondent pays trainees
$1.75 per hour. If the Respondent retains the client, OBVI follows up on
his work for an additional 60 days, after which time his case is closed
7 One client testified, for example, that Avants and another supervisor
told him and another client that they would be "replaced" if they could
not perform a certain job.
8 According to Avants' corroborated testimony, a client who had been
asked to load a truck stated that he "could not do that kind of work."
Avants told the client "to do [the work] now," and stated that he "would
have to do something else" if he "can't" or "won't" do the work. The
client submitted his resignation. The client also testified that the Re-
spondent has refused to rehire him.
9 According to Day and Avants, only Day has the authority to disci-
pline clients Day testified that It was "insubordination" for the supervi-
sor to have acted without his permission.
negligence in work performance. The manual also
contains a grievance procedure."
According to Day, , the Respondent's goal is to
place clients in private, competitive employment.
The Respondent does not have a job placement
counselor or program, but it annually sends OBVI
a list of clients whom it considers capable of com-
petitive employment. The Respondent is required
to do so by the Department of Labor in connection
with its acquisition of a sheltered workshop certifi-
cate. The Respondent's annual reports show that
five clients went to private industry in 1977-1978,
eight in 1978-1979, and seven in 1979-1980. Clients
are not forced to leave the Respondent, even
though they may be capable of working elsewhere,
and some clients have worked for the Respondent
for substantial periods of time." Avants also noted
that a client may repeatedly leave the Respondent,
only to return after unsuccessful attempts to work
for other employers.
The Respondent does not provide professional
counseling, does not employ any social workers,
and does not provide a recreational area. The Re-
spondent does not train clients in any skills other
than those which they need to work at the Re-
spondent's facility, and on-the-job training is the
only training provided.
1. We find it appropriate to assert jurisdiction
over the Respondent. It is settled that the Board is
not precluded from asserting its jurisdiction merely
because an employer is a nonprofit, charitable cor-
poration." The Board will decline jurisdiction
over such an employer only where "its activities
do not have a sufficient impact on interstate com-
merce to warrant" the exercise of jurisdiction."
Here, the parties stipulated at the representation
hearing that during the preceding 12 months the
Respondent had shipped goods valued in excess of
$50,000 directly from its facility in Little Rock, Ar-
kansas, to points outside the State of Arkansas."
In fact, as noted above, its interstate sales far ex-
ceeded that figure. We therefore find that it will ef-
1* The manual was distributed to clients. Avanis and Day testified that
it was not consistently followed, but there is no evidence that a new
manual being prepared at the time of the representation hearing would
delete or modify the above list of disciplinary rules.
11 Of those clients who testified at the unfair labor practice hearing,
one had worked at the Respondent's facility for 34 years, one for 20
years, three for 10 years, two for 9 years, two for 5 years, two for 4
years, three for 3 years, and one for 2 years.
i2 NLRB v. Lighthouse for the Blind of Houston, 696 F.2d 399, 404 fn.
21 (5th Cir. 1983); NLRB v. St Louis Christian Home, 663 F.2d 60, 62-63
(8th Cit. 1981); NLRB v. Trudeau Center, 590 F.2d 19, 20-23 (1st Cir.
1978); Hudelson Baptist Childrens Home, 276 NLRB 126 (1985); St Aloysi-
us Home, 224 NLRB 1344 (1976).
13 St Aloysius Home, supra, 224 NLRB 1344, 1345
14 Lighthouse for the Blind of Houston, 244 NLRB 1144, 1146 fn. 11
(1979); Siemons Mailing Service, 122 NLRB 81 (1958).
1216 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fectuate the policies of the Act to assert jurisdic-
tion over the Respondent.
2. We also find that the Respondent's clients are
employees within the meaning of Section 2(3) of
the Act. In previous cases the Board and the courts
have found workshop clients to be statutory em-
ployees where their relationship with their employ-
er was "guided to a great extent by business con-
siderations," and was thus a "typically industrial"
rather than a "rehabilitative" relationship." We
find the circumstances in this case to be remarkably
similar.
We first note that the Respondent's overall oper-
ation is similar to those in Lighthouse for the Blind
of Houston and Cincinnati Assn. for the Blind, supra.
In Cincinnati the employer operated under a shel-
tered workshop certificate from the Department of
Labor." In both Cincinnati and Houston, the em-
ployer engaged in substantial business with the
Federal Government pursuant to the Wagner-
O'Day Act," generating similar amounts of reve-
nue in the process." In one respect the Respond-
ent is even more strictly a "typically industrial" op-
eration. In both Cincinnati and Houston the em-
ployers provided a variety of social and counseling
services for their employees and the blind commu-
nity as a whole, 19 while there is no evidence that
the Respondent provides any such services.
Most significantly, the Respondent uses a variety
of techniques to ensure that clients produce. Like
the employers in Cincinnati and Houston, the Re-
18 Lighthouse for the Blind of Houston, supra, 244 NLRB 1144, 1147;
Cincinnati Assn, for the Blind, 235 NLRB 1448, 1449 (1978). These cita-
tions are to the representation proceedings. In the subsequent unfair labor
practice proceedings, which involved the same facts, the Fifth and Sixth
Circuits, respectively, enforced the Board's Orders. NLRB v. Lighthouse
for the Blind of Houston, 696 F.2d 399, 404 (5th Cir. 1983), enfg. 248
NLRB 1366 (1980); Cincinnati Assn, for the Blind v. NLRB, 672 F.2d 567,
571 (6th Qr. 1982), cert. denied 459 U.S. 835 (1982), enfg. 244 NLRB
1140 (1979). In Houston the Fifth Circuit rendered its opinion on rehear-
ing after vacating its previous opinion. See NLRB v. Lighthouse for the
Blind of Houston, 679 F.2d 379 (5th Or. 1982), vacating 653 F.2d 206 (5th
Cir. 1981).
18 235 NLRB at 1449 fn. 2. In Houston the record did not disclose
whether the employer's certificate covered unit employees. 696 F.2d at
402 fn. 10; 244 NLRB at 1146 fn. 13.
"696 F.2d at 402 fn. 11; 672 F.2d at 569. We do not find it significant
that the Respondent, unlike the employers in Cincinnati and Houston, ap-
parently obtains no work with private firms through competitive bidding
and subcontracting. In Cincinnati the Board found competitive bidding
significant because it established that the employer had to "meet the
standards of the party who awarded the contract." 235 NLRB at 1448-
1449. Here, the Respondent still must ensure that its clients Produce
goods which conform to standards of quality, because the Government
will reject goods not meeting its specifications.
18 672 F.2d at 569; 696 F.2d at 402 fn. 8. We do not find it significant
that the Respondent has lost money while the other employers made
profits. Whether an employer is concerned about maldng profits May be a
relevant factor, but lack of profitability does not show that business con-
siderations do not govern an employer's relationship with its employees.
We have considered this evidence, but we find under all the Circum-
stances that the evidence indicating employee status far outweighs the
evidence to the contrary.
19 696 F.2d at 401-402 fns. 2-7; 672 F 2d at 569.
spondent imposes a productivity standard. In Cin-
cinnati the employer expected employees to
produce goods conforming to "the quality stand-
ards of the marketplace," 2° and in Houston em-
ployees were required to produce at the same level
as a sighted individual. 2 ' The Respondent's stand-
ard, which falls somewhere in between, requires
clients to produce goods which meet Government
specifications, and imposes a flexible production
"goal" of 80 percent of the sighted norm.
The Respondent also penalizes clients who fail to
meet the standard. Like the employers in Cincinnati
and Houston, the Respondent transfers clients in-
voluntarily to other departments for insufficient
production. In addition, the Respondent's policy on
discipline for poor production, though not precise-
ly defined in the record, appears to fall between
those of the other employers. Thus, in Cincinnati
the employer did not suspend or terminate employ-
ees for production errors, 22 while in Houston the
employer imposed such discipline on a progressive
basis but "less frequently" than other private sector
employers." The Respondent's personnel manual
lists "repeated negligence" in work performance as
a basis for unspecified discipline. The manual was
distributed to clients, and although Day and
Avants testified generally that the manual is not
consistently followed, there is no indication that
the provision is ineffective. To the contrary, a su-
pervisor suspended an employee for 2 days for
"gross carelessness" in his work,24 and a client re-
signed after Avants told him that he would have to
"do something else if he refused to follow instruc-
tions to load a truck. Furthermore, according to
one client, Avants and another supervisor stated
that he and another client would be "replaced" if
they could not perform a certain job. Avants, how-
ever, denied that the Respondent discharges clients.
Thus, although the extent to which discipline is im-
posed is not completely clear, the weight of the
evidence indicates that the Respondent does use
some form of discipline to ensure that its clients
produce.
The Respondent's uniform wage is different from
the wage scales in Cincinnati and Houston, which
varied according to productivity and merit. How-
ever, the Respondent uses other "typically industri-
al" means to ensure that its clients produce. Thus,
in addition to imposing both productivity standards
28 672 F 2d at 570.
21 696 F.2d at 403.
22 672 F.2d at 570.
23 696 F.2d at 403, 405.
24 Day's assertion that this action was insubordinate is apparently
based only on his claim that he alone has the authority to discipline ch-
ents. However, his testimony does not show that he would never disci-
pline a client for poor performance.
ARKANSAS LIGHTHOUSE FOR THE BLIND 1217
and penalties for poor performance, the Respond-
ent maintains daily production reports on clients; it
has refused to recall some clients from layoff be-
cause of their low production; it has refused to
retain clients after their 30-day training period be-
cause of low production; and it has verbally
"pressure[d]" or "encourage[dr clients to produce.
In these circumstances, a fmding of statutory em-
ployee status is not precluded by the mere fact that
the Respondent does not use its wage structure as
an additional production incentive. Moreover, the
record does not show that the Respondent's uni-
form wage is designed to promote any rehabilita-
tive purpose.25
We also find it significant that in many respects
the Respondent operates as a "permanent employ-
er"26 and not as a facility providing training for
other employment options. The Respondent does
not have a job placement counselor or program,
and it does little more than meet the Department of
Labor's requirement that it send OBVI an annual
list of capable clients. Although a few clients
obtain other employment each year, Avants con-
ceded that many of these later return. Indeed,
many clients have worked for the Respondent for a
long period of time. In Houston the Fifth Circuit
found it significant that the employer had no
formal job placement program; that its informal, ad
hoc efforts had placed only three or four employ-
ees per year; that half those employees subsequent-
ly returned; and that many employees had worked
for the employer for 10-20 years. 27 In addition, the
Sixth Circuit noted in Cincinnati that the employ-
er's operation contemplated "long-term employ-
ment" was "not designed primarily to provide tem-
porary, on-the-job training which would enable
blind workers to secure employment elsewhere,"
and had helped "very few" workers leave for the
competitive job market."
25 In addition, we do not find that a rehabilitative relationship is estab-
lished by the evidence that the Respondent has displaced sighted employ-
ees to create employment for clients and has otherwise made accommo-
dations to keep clients employed. We note that the Respondent must
maintain a work force which is 75-percent blind in order to obtain con-
tracts pursuant to the Wagner-O'Day Act. Thus, the Respondent's ac-
commodations for clients may reflect a business judgment as much as a
rehabilitative object.
26 696 F.2d at 406.
27 Id. at 405-406.
22 672 Ficl at 570. We attach little weight to the Respondent's general
contention at the representation hearing that a job placement program or
other services would merely duplicate the services of OBVI. The record
does not detail OBVrs services, and there is no evidence that the Re-
spondent is precluded from having its own program or from supplement-
ing ORVI's services by, for example, attempting to place clients more ag-
gressively and with greater frequency. In any event, the issue Is the Re-
spondent's relationship with its own clients, and the existence of another
entity's services, sheds little light on that relationship.
In this connection, we find it significant that the
Respondent provides clients only with the training
needed to perform their own jobs. Similarly, the
Sixth Circuit in Cincinnati noted that the employer
placed "little emphasis on the acquisition of skills
other than those required" to work for the employ-
er." Further, the Respondent does not force cli-
ents to leave even if they are capable of employ-
ment elsewhere. Thus, instead of creating openings
for new trainees, the Respondent appears to have
an interest in retaining some of its most productive
clients. Moreover, it even provides some incentives
to stay by granting awards for long service and by
providing that vacation benefits increase with
length of service.
The clients' other working conditions also close-
ly resemble those in private industry. Clients work
a full workweek, punch a timeclock, and receive
time and a half for overtime, health and life insur-
ance, unemployment benefits, workmen's compen-
sation, nine paid holidays, and paid vacation time.
In Cincinnati and Houston employees worked under
similar conditions. With respect to discipline for
conduct other than poor work performance, the
employer in Cincinnati reserved suspension and dis-
charge "for serious cases of misconduct such as vi-
olence and theft."" In Houston the employer used
a progressive disciplinary system, but discipline
was still more "counseling-oriented and less fre-
quently meted out" than in other private employ-
ment situations. 31 Here, it is undisputed that the
Respondent discharges clients for serious miscon-
duct, and there is also evidence that it has threat-
ened clients with termination for repeated absences.
Moreover, the personnel manual lists other offenses
for which discipline may be imposed.
Finally, we fmd this case distinguishable from
Goodwill Industries of Southern California, 231
NLRB 536 (1977), where the evidence clearly
showed that the employer maintained a rehabilita-
tive relationship with its clients. The employer des-
ignated 50 percent of its job openings for transi-
tional short-term employment, and it employed a
full-time job placement specialist. Contrary to the
Respondent's practice of not retaining trainees who
do not produce adequately, the employer in Good-
will was more likely to hire an applicant the more
severe his impairment. The employer also permit-
ted clients to work at their own pace rather than
under a production standard, and it provided coun-
seling and other social services. We fmd that these
distinctions between the cases outweigh the similar-
29 Id. at 573.
29 672 F.2d at 570.
21 696 F.2d at 405.
1218 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ities, such as a uniform wage, some common bene-
fits, and the rare use of the disciplinary dis-
charge. 32
In view of the foregoing factual circumstances,
we find that the clients' working conditions are "in
dominant measure" typical of private sector work-
ing conditions and constitute "the normal and usual
grist for the mill of collective bargaining." 33 We
therefore find that the Respondent's clients are em-
ployees within the meaning of Section 2(3) of the
Act.
II. THE UNFAIR LABOR PRACTICE PROCEEDING
On 20 April 1981 34 the Union launched an orga-
nizing campaign. The Union obtained authorization
cards from 44 of the approximately 54 unit employ-
ees, acquired majority status on 27 April, and re-
quested recognition as the employees' collective-
bargaining representative on 30 April. On 10 July
the Union lost a Board-conducted election by a
vote of 28 to 24.
The judge found that the Respondent engaged in
numerous violations of Section 8(a)(1), (3), and (5)
through the conduct of Executive Vice President
Day, Vice President and Board Member Brown,
General Manager Avants, the Respondent's attor-
ney, Philip Lyon," its employee-agent, Ruther-
ford, and Supervisors Rainey, Hatcher, Post, and
Bartley. The judge also recommended the issuance
of a bargaining order pursuant to NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969). We agree with
the judge's findings and his recommended remedy,
as explained below.
32 This case is also clearly distinguishable from Key Opportunitiea Inc.,
265 NLRB 1371 (1982), where the Board found that the employer's cli-
ents were not statutory employees. Most of the employer's clients suf-
fered from mental and emotional handicaps and, unlike the Respondent,
the employer provided counseling on such issues as personal grooming,
hygiene, and appropriate behavior. Contrary to the Respondenes concern
with productivity, the employer took on a client based not on his antici-
pated productivity but on whether he could benefit from the program.
Some clients produced at a rate of only 5 percent of nonhandicapped
workers. The record also showed that the employer's concern for its
products was clearly subordinated to its concern for its clients' welfare.
These differences far outweigh the evidence that the employer also oper-
ated at a loss and, Unlike the Respondent, paid wages which varied with
productivity.
33 NLRB v. Lighthouse for the Blind of Houston, supra, 696 F.2d at 406.
34 Unless otherwise specified, all dates refer to 1981.
35 Lyon did not testify because he was ill at the time of the hearing.
We agree with the judge's denial of his attorney's motions to intervene
and hold the record open to permit Lyon to testify. Lyon is not a party,
and his attorney did not make the motions until just prior to the close of
the hearing, even though Lyon had become ill before the hearing and
had known that the complaint placed his conduct in issue. The Respond-
ent was well aware of Lyon's illness, but it neither made a motion of its
own nor joined Lyon's motion at the hearing. The Respondent later
joined Lyon's motion for reconsideration, which the judge also denied,
but that motion was not filed until after briefs had been submitted to the
judge.
Because we agree with the judge's denial of Lyon's motions, we do not
rely on the judge's statement that he would find Lyon's conduct unlawful
even if Lyon were to testify and credibly deny all the allegations.
1. We agree with the judge for the reasons
below that the Respondent's vice president and
board member, Charles Brown, violated Section
8(a)(1) by threatening employees with plant clo-
sure.
As the judge found, a newspaper article on 11
June quoted Brown as having stated in an inter-
view that the issue in the election campaign was
"whether we allow the Union to shut down the
Lighthouse or not." Four employees testified that
the article was read to them, and another testified
that he heard the article being read over the radio.
It is undisputed that Brown never sought a retrac-
tion or made a statement to employees disavowing
the article.
Brown's statement did not attribute the closing
of the plant to economic difficulties resulting from
unionization or to other "objective facts." See
NLRB v. Gissel Packing Co., supra, 395 U.S. 575,
618. Rather, when reasonably interpreted, his state-
ment threatened that the mere presence of the
Union would trigger plant closure, and that the re-
sponsibility for the closure would be the Union's.
In these circumstances we think it clear that
Brown's statement violated Section 8(a)(1).
We also agree with the judge for the reasons
below that the Respondent's executive vice presi-
dent, Day, threatened employees with plant closure
in violation of Section 8(a)(1).
On 2 July Day delivered a speech to an assembly
of all unit employees. According to the judge's
findings, Day stated that "after the Union came
into three lighthouses" in California, "there were
strikes" and "all three lighthouses closed up tight
as a jug and never reopened." 36 We find that Day
36 The judge heavily relied on and impliedly credited the testimony of
numerous employees in making this finding. However, none of the em-
ployees either confirmed or denied that Day included the phrase "there
were strikes" in his statement. That phrase is found in what purports to
be a written text of Day's speech, which the Respondent urges the Board
to accept as accurate. The text states, inter alia, "[I]n California, after the
Union came in to three lighthouses there were strikes and all three light-
houses closed up tight as a jug and they have never reopened?' Like the
judge, we analyze the statement by assuming that Day included the
phrase "there were strikes," and to this extent we give the Respondent
the benefit of the doubt
However, the judge did not rely on the remainder of the written text,
and under the circumstances we find that it is not reliable evidence of
what Day said. Day did not testify and thus did not confirm that be read
the text with no deviation. In any event, as shown by the testimony of
employees Miller and Lendermon, which testimony the judge impliedly
credited, Day departed from the text and violated Sec. 8(aX1) by stating
that he would refuse to negotiate with the Union. Moreover, according
to the testimony of sighted employee Campbell, Day "spoke freely" in-
stead of reading from the text Although Avants testified that Day read
from the text, there is no evidence that Avants was involved in the prep-
aration of the speech, and he had only a vague and undetailed recollec-
tion of what Day said. One sighted employee testified that Day read
from the text, but she misquoted him as having stated explicitly that the
Respondent would close up "tight as a jug." In these circumstances we
agree vvith the judge that the employees' testimony, and not the text, is
the more reliable evidence of what Day said.
ARKANSAS LIGHTHOUSE FOR THE BLIND 1219
conveyed the message that selecting union repre-
sentation would result in a strike, and that in re-
sponse to the strike the Respondent would close
the facility for antiunion reasons.
First, Day's statement was not mitigated by as-
surances that strikes are not inevitable or that the
Respondent would bargain in good faith if employ-
ees selected union representation. On the contrary,
the judge found that at another point in his speech
Day unlawfully threatened employees with the fu-
tility of unionization by stating flatly that he would
refuse to bargain with the Union, 37 conduct which
employees reasonably would perceive as designed
to provoke a strike." Thus, by stating that strikes
had followed unionization at the California facili-
ties, although simultaneously threatening to engage
in conduct likely to provoke a strike, Day essential-
ly told employees that they could expect a strike if
they selected union representation. Compare San-
gamo Weston Inc., 273 NLRB 256, 256-257 (1984)
(employer lawfully discussed union's previous
strikes and their adverse consequences, where the
employer "frankly admitted" that it "did not know
whether the Union would strike at the [employer's]
plant," and where the employer specifically reas-
sured employees it would bargain in good faith if
the union won the election); Agri-International Inc.,
271 NLRB 925, 926 (1984) (employer's official law-
fully described union's strike history, where an "in-
tegral part" of his speech was an assurance that
"strikes are by no means inevitable" and that the
employer was willing "to bargain in good faith
with the Union").
Next, by stating that the California facilities had
"closed up tight as a jug" following strikes, Day
conveyed the message that when the expected
strike occurs, the closing of the plant is soon to
follow. Significantly, Day did not state that the
closure which follows a strike is attributable to
economic difficulties resulting from the strike. On
the contrary, Day provided no reason other than
the strike itself to explain the closure, although he
simultaneously expressed animus by threatening
that union representation would be futile. Thus, as
reasonably perceived in light of this accompanying
threat, Brown's previous threat, and the Respond-
ent's other expressions of animus, Day's statement
indicated that following the expected strike the Re-
spondent's facility, like others before it, would be
closed in reprisal for union activity. Compare San-
gamo Weston Inc., supra, 273 NLRB at 256-257 (an
employer's statement that a strike had resulted in a
37 The judge also found that Day unlawfully stated in the same speech
that he would fight the Union for years.
an See Neo-Life Co. of America, 273 NLRB 72 (1984). See also Kona 60
Minute Photo, 277 NLRB 867, 868 (1985).
"loss of government contracts" was lawful, because
the statement presented "reasons other than union-
ization or strikes . . . to explain the loss of jobs");
Agri-International Inc., supra, 271 NLRB at 926
(employer stated that a strike "could well kill this
plant" because the employer's only customer might
then turn elsewhere for a more reliable source of
supply).
Given all the circumstances, we agree with the
judge that Day violated Section 8(a)(1) by threat-
ening all the employees with plant closure.
2. The judge found that the Respondent violated
Section 8(a)(3) and (1) by withholding a regularly
scheduled wage increase after the organizing cam-
paign began, and that it violated Section 8(a)(1) by
granting a wage increase shortly after the election.
We agree with the judge's conclusions, but we do
not adopt his rationale. Rather, we find that the
Respondent's conduct was motivated by a desire to
discourage union activity.39
Specifically, we find that in April the Respond-
ent withheld the wage increase in order to use it as
leverage in the election campaign by holding it out
as a benefit to be granted if the Union were defeat-
ed. We also find that the Respondent granted the
wage increase after the election as a reward for the
Union's defeat.
The evidence establishes a strong prima facie
case that the Respondent was unlawfully motivat-
ed. First, the record clearly shows that the increase
withheld in April was the same increase granted in
July. Avants testified that not long before the
union campaign began he and Day had concluded
that a scheduled increase was already "past due."4°
However, according to Avants, when the organiz-
ing campaign began on 20 April he and Day decid..,
ed to withhold the increase at that time. Avants
further testified that on 13 July, 3 days after the
election, the Respondent granted the same increase
that had been withheld in April. The increase to-
taled 65 cents per hour and raised the employees'
wages from $3.35 to $4 per hour.
The record also shows that during the election
campaign the Respondent repeatedly promised em-
ployees a 65-cent raise if the Union were defeated.
39 Because the complaint, as amended at the hearing, alleges that the
Respondent's withholding of a wage increase violated Sec. 8(aX3), we
shall analyze this issue under Wright Line, 251 NLRB 1083, 1089 (1980),
enfd. on other grounds 662 F.2d 899 (1st Cir. 1981), cert. denied 455 U.S.
989 (1982). Although the complaint alleged that the postelection wage in-
crease violated only Sec. 8(aX1), we shall also analyze this allegation
under Wright Line because, as shown below, the withholding and grant-
ing of the increase were part of the same scheme.
49 Since at least 1976 the Respondent had granted wage increases
twice a year, the first in the early part of the year and the second in the
middle of the year. It was the first raise m 1981 that was "past due," ac-
cording to Avants. The record does not disclose what action the Re-
spondent took concerning the second increase.
1220 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
As the judge found, on 20 June, Day violated Sec-
tion 8(a)(1) by promising employee Koone that em-
ployees would "definitely" receive a 65-cent raise
if the Union did not win the election. In a conver-
sation with employee Partridge between 6 and 10
July, Supervisor Rainey unlawfully stated that Day
had promised the largest pay increase in the Re-
spondent's history if the Union were defeated.
Lyon unlawfully promised employee Rutherford
on the day of the election that the employees
would receive a 65-cent raise if the Union lost."
On the previous day, Lyon unlawfully had told
Rutherford and Partridge that the Respondent was
offering $4 per hour. Lyon also violated Section
8(a)(1) on 6 July by telling a group of employees
that if the Union were really interested in their
welfare, it would withdraw from the election if the
Respondent were to grant a wage increase to $4
per hour. In addition, Avants unlawfully promised
employee Slayden on 8 July that the employees
would receive pay raises.
Thus, the amount that the Respondent unlawful-
ly promised was the amount it had withheld in
April and the amount that it ultimately granted in
July. The evidence therefore establishes a strong
prima facie case that the Respondent withheld the
increase to use it as leverage and later granted it as
a reward for defeating the Union.
Avants testified that the Respondent simply post-
poned the increase on the advice of its counsel,
Lyon, in order to avoid the appearance of interfer-
ing with the election. Even if we assume that the
Respondent received advice from counsel, we find
that its decision was not motivated by that advice
or by a desire to avoid election interference.
Avants' testimony that the Respondent relied on
such advice is far outweighed by the extensive evi-
dence that its decision was governed by its union
animus. In particular, the officials involved in the
decision and the attorney who allegedly gave the
advice repeatedly told employees that the increase
was contingent on the Union's defeat.42
We therefore fmd that the Respondent has not
rebutted the General Counsel's prima facie case,
and we conclude that the Respondent's conduct
violated the Act.
3. As noted above, although the Union had ob-
tained authorization cards from a clear majority of
employees by the time of its request for recognition
41 In the same conversation Lyon also promised that the employees
would receive a sick leave plan and perhaps a retirement plan.
43 We are not discrediting Avants' testimony that the Repondent re-
ceived advice from Lyon. Rather, we simply find that the advice "fur-
nished the excuse rather than the reason" for the withholding of the in-
crease. NLRB v. Thor Power Tool Co,, 351 F.2d 584, 587 (7th Cir. 1965)
In these circumstances, we need not reach the question whether the
Respondent would have violated the Act if m fact it had postponed the
increase on the advice of counsel.
on 30 April, it then lost the election on 10 July.
The judge found, however, that the Respondent's
unlawful conduct made "the conduct of a fair
rerun election impossible." Consequently, the judge
recommended that the Respondent be ordered to
bargain with the Union pursuant to the principles
of NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). We agree with the judge that a bargaining
order is appropriate. In Gissel the Supreme Court
held that a bargaining order is appropriate where a
union had at one time enjoyed majority support
and where the employer had engaged in miscon-
duct having "the tendency to undermine majority
strength and impede the election processes." Id. at
614. The Court stated that in determining whether
to use this remedy the Board may properly consid-
er "the extensiveness of an employer's unfair labor
practices in terms of their past effect on election
conditions and the likelihood of their recurrence in
the future." Id. at 614-615. The Court further
stated that a bargaining order should issue where
the Board fmds that "the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight and that employee
sentiment once expressed through cards would, on
balance, be better protected by a bargaining
order." Id.
The extensiveness of the Respondent's unlawful
conduct, occurring both before and after the elec-
tion, brings this case under the Gissel umbrella. As
noted above, Brown and Day threatened employ-
ees with plant closure, and the Respondent with-
held, frequently promised, and ultimately granted a
65-cent wage increase. As the judge also found, on
2 July, Day threatened employees with the futility
of unionization by stating both that the Respondent
would not negotiate and that it would fight the
Union for years. On 6 July Lyon also told groups
of employees that he would sit down at the bar-
gaining table but not negotiate, and that he would
tight the Union to the Supreme Court. 43 On the
same day, Lyon told other employees that the Re-
spondent would withhold union dues from pay-
checks while simultaneously , refusing to bargain.
In addition, the Respondent widely (and unlaw-
fully) solicited revocations of union authorization
cards. Avants testified that the Respondent typed,
duplicated, and paid for the mailing of employee
letters of revocation to the Union. On 8 July Lyon
told a group of employees that to prevent the
Union from collecting dues they should obtain
43 See generally Histacount Corp., 278 NLRB 681, 689 (1986). Lyon's
and Day's threats to fight through the courts were accompanied by ex-
tensive violations of Sec. 8(aX1).
ARKANSAS LIGHTHOUSE FOR THE BLIND

1221
these revocation letters from Avants. On the same
day, immediately after employee Slayden signed
revocation letters for himself and his wife, Avants
promised him that there would be pay raises. Su-
pervisor Hatcher also solicited revocations from
two employees before the election, and after the
election the Respondent authorized employee
Rutherford, its agent, to solicit revocations at the
plant and at the homes of laid-off employees.44
The Respondent also engaged in numerous other
unlawful acts. With the Respondent's authorization,
Rutherford conducted two employee polls shortly
before the election and reported the results to Day.
Day and Supervisor Bartley interrogated two em-
ployees before the election, and after the election
Supervisors Post and Rainey interrogated two
other employees. Shortly before the election Lyon
twice solicited employees to select another
union." Soon after the election, Day rewarded
Rutherford with the promise of a promotion and
told another employee that the Respondent had
lost a Government contract because of the Union.
We find thg the Respondent's unlawful conduct
both before and after the election created a lasting
coercive impact not easily dissipated by traditional
remedies. Thus, the Respondent's plant closure
threats carried a long-term coercive impact, be-
cause such threats constitute "one of the most
potent instruments of employer interference with
the right of employees to organize."46 In this case
the coercion was exacerbated because the threats
were delivered by two of the Respondent's highest
officials, whose positions made it impossible to take
the threats lightly.47 Further, by simultaneously
promising a wage increase if the Union were de-
feated, the Respondent conveyed the powerfully
coercive message that employees would lose their
livelihood for supporting the Union, but would re-
ceive substantial benefits for rejecting it.
" The Respondent encouraged, closely monitored, and extensively as-
sisted employees in the execution of these revocations, while simulta-
neously committing numerous other serious unfair labor practices. We
think it clear that employees reasonably would "tend to feel peril in re-
fraining" from revoking their cards, and the result here is therefore con-
sistent with Mariposa Press, 273 NLRB 528, 529-530 (1984). In view of
the unlawfol solicitation campaign, the revocations obtained by the Re-
spondent do not cast doubt on the Union's majority status. Downtown
Toyota, 276 NLRB 999 (1985).
45 See Einhorn Enterprises, 279 NLRB 576 (1986) (employer's agent
unlawfully solicited employee to join one of two competing unions in the
context of an accompanying plant closure threat).
45 Chemvet Laboratories v. NLRB, 497 F.2d 445, 448 (8th Cir. 1974).
ee Thnftway Supermarket, 276 NLRB 1450, 1451 (1985), and cases cited
therein eilfd. mem. 808 F.2d 835 (4th Cir. 1986).
47 Indeed, in finding a bargaining order warranted, we deem it signifi-
cant that the Respondent's antiunion campaign was engineered by man-
agement "from top to bottom," including its excecutive vice president,
vice president and board member, general manager, four of its first-line
supervisors, and its attorney. See Thriftway Supermarket, supra, 276
NLRB at 1451.
Indeed, by granting the increase when the Union
was defeated, the Respondent established that its
word was credible. Thus, if a new election were
held, employees who had once seen the Respond-
ent carry out its promises would believe not only
that additional benefits would flow from a second
union defeat, but also that the Respondent would
also carry out its threat to close the plant in the
event of a union victory. 48 Such a credible threat
would have a heightened coercive impact here, be-
cause the employees' other job options are to some
extent limited. As Avants conceded, employees
who leave the Respondent often return because
their attempts to work for other employers prove
unsuccessful.
It is also significant that the coercion pervaded
the unit. Every employee was subjected to plant
closure threats, promises of benefit, statements of
futility, and the withholding and granting of bene-
fits. In addition, the Respondent sought to identify
and coerce union supporters by unlawfully polling
all unit employees twice before the election and by
massively soliciting revocations of union authoriza-
tion cards.49
Further, we find it likely that the Respondent's
misconduct would recur in a new election cam-
paign. First, the widespread nature of the miscon-
duct and the participation of management from top
to bottom show that the Respondent is deeply
committed to its antiunion position, a commitment
from which it is not likely to retreat. Indeed, it is
noteworthy that Avants, a major participant in the
unlawful campaign, had been promoted to replace
the retiring Day at the time of the unfair labor
practice hearing. Avants' continued presence not
only makes it likely that the misconduct will recur,
but also makes it unlikely that the lingering coer-
cion will be "softened" by Day's departure."
In addition, we find it revealing that the Re-
spondent's misconduct persisted even after the
Union's defeat. Because the Union had already
been defeated, such conduct could only have been
designed to prevent a resurgence of union activity
and to extinguish any remaining union support
once and for all. Having once acted unlawfully to
preclude a resurgence of union activity, the Re-
48 See Quality Aluminum Products, 278 NLRB 338 (1986), enfd. 813
F.2d 795 (6th Cir. 1987) (the employer demonstrated a "willingness to
carry out its threats"); Tipton Electric Co„ 242 NLRB 202 (1979), enfd.
621 F.2d 890, 898-899 (8th Cir. 1980).
See Thnftway Supermarket, supra, 276 NLRB at 1451-1452 (the em-
ployer conducted a widespread campaign to identify union supporters
and coercively dissuade them from their support).
5° See Thriftway Supermarket, supra, 276 NLRB at 1452 (an official's
"continued presence" made it unlikely that the coercive impact would be
"softened" by the departure of supervisors who had engaged in miscon-
duct).
1222 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
spondent is likely to renew its misconduct in a new
campaign.
We are not unmindful of the passage of time
since the election. However, as the Board and the
courts have often noted, the passage of time is "re-
grettable" but is "not a sufficient basis for denying
[a] bargaining order." 51 In view of the serious mis-
conduct directed toward the entire unit, we are
convinced that the coercive impact has not dissi-
pated, and in any event we are convinced that the
misconduct is likely to recur. To withhold a bar-
gaining order in these circumstances "would, in
effect, reward the Respondent for its own wrong-
doing." 5 2
The Respondent has also filed posthearing mo-
tions proffering evidence of work force turnover
that it maintains should preclude the issuance of a
Gissel bargaining order. 53 For the reasons set forth
below, however, we find that, even assuming the
accuracy of the Respondent's figures, they do not
preclude issuance of a Gissel bargaining order here.
Thus, to the extent that the Respondent seeks to
submit further evidence or to reopen the record,
the motions are denied because, on the basis of the
proffer, it is clear that the evidence would make no
difference in the result.
The Respondent's first motion shows that in Jan-
uary 1985 the work force had contracted to 40 em-
ployees. Its second motion shows that by June
1985, following a business expansion, the work
force had grown to 52 employees, close to the ap-
proximately 54 employees in the unit at the time of
the election. Of those 52 employees, a substantial
majority of 31 were employed at the time of the
election and were repeatedly exposed to serious
misconduct. See Quality Aluminum Products, supra,
278 NLRB 338, 339 (bargaining order appropriate
where a "majority" of the original employees re-
mained in the unit, and a "substantial percentage"
of those employees had been directly affected by
unfair labor practices).
In addition, other factors substantially diminish
any importance of turnover in this case. Because
employees who leave the Respondent often return
after unsuccessful attempts to work for other em-
ployers, turnover may alternately diminish and in-
crease the percentage of original employees in the
unit at any given time. In any event, we have
51 Quality Aluminum Products, 278 NLRB 338 (1986), enfd. 813 F.2d
795 (6th Cit. 1987). Accord: Exchange Bank v. NLRB, 732 F.2d 60, 63-64
(6th Cir. 1984); NLRB v. Pacific Southwest Airlines, 550 Fld 1148, 1152-
1153 (9th Cir. 1977); Dayton Auto Electric, 278 NLRB 551 (1986).
52 Kona 60 Minute Photo, 277 NLRB 867, 870 (1985).
53 The Respondent filed its motions on 7 January and 3 June 1985, and
to each motion it attached an affidavit executed by Avants. On 22 Janu-
ary and 21 June 1985, the General Counsel filed oppositions to the mo-
tions, and on 24 January 1985 the Union filed a response joining the Gen-
era! Counsel's position.
found a likelihood that the misconduct will recur,
which of course would expose new and old em-
ployees alike to coercion. 54 Thus, we decline to
place "undue emphasis" on employee turnover in
this case. NLRB v. Dix isteel Buildings, Inc., 445
F.2d 1260, 1265 (8th Cir. 1971).
We therefore agree with the judge that the possi-
bility of erasing the coercive impact and ensuring a
fair election through traditional remedies is slight,
and that employee sentiment once expressed
through authorization cards would, on balance, be
better protected by a bargaining order.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge as modified below and orders that the Re-
spondent, Arkansas Lighthouse for the Blind, Little
Rock, Arkansas, its officers, agents, sucessors, and
assigns, shall take the action set forth in the Order
as modified.
1. Add the following at the end of the Order as
the final paragraph.
"IT IS FURTHER ORDERED that the election in
Case 26-RC-6388 be set aside and that the petition
be dismissed."
2. Substitute the attached notice for that of the
administrative law judge.
CHAIRMAN DOTSON, dissenting.
Contrary to my colleagues, I would not assert
jurisdiction over the Respondent, a nonprofit chari-
table corporation whose primary purpose is to re-
habilitate and provide work for visually handi-
capped individuals. As I have stated previously, I
would follow the policy set forth in Ming Quong
Children's Center, 210 NLRB 899 (1974). 1 Thus, I
would not assert jurisdiction over a nonprofit char-
itable corporation like the Respondent in the ab-
sence of evidence that it belongs to a class of insti-
tutions having a substantial impact on interstate
commerce. This record contains no evidence that
the Respondent belongs to such a class of institu-
tions, and I would therefore find it appropriate to
apply Ming Quong.
In addition, although I need not reach the issue,
I would also find that the Respondent's objective is
rehabilitation and that therefore its clients are not
employees within the meaning of Section 2(3) of
the Act.
54 The Respondent's motions contend that labor relations have "vastly
improved" in view of wage increases from $3.35 to $41.75 per hour. How-
ever, we note that these increases clearly include the unlawful postelec-
tion wage increase from $3.35 to $4 per hour.
See my dissenting opinions in Hudelson Baptist Childreits Home, 276
NLRB 126 (1985); Salvation Army of Massachusetts, 271 NLRB 195
(1984); Alan Short Center, 267 NLRB 886, 889 (1983).
ARKANSAS LIGHTHOUSE FOR THE BLIND 1223
The facts are more fully explained in the major-
ity's opinion. Contrary to the majority's finding,
those facts do not show that the Respondent at-
taches great significance to productivity. Instead of
imposing rigid production quotas on its clients, the
Respondent applies only a flexible production
"goal" which, within bounds, makes allowances for
the capacity of various individuals to produce. In
addition, in working with its clients, the Respond-
ent merely uses relatively mild verbal admonitions
and infrequent disciplinary actions which do not
rise nearly to the level typical of private industry.
In my view, neither this method of encouraging its
clients nor the requirement that goods meet Gov-
ernment specifications is inconsistent with a reha-
bilitative object.
This conclusion is underscored by the Respond-
ent's payment of a uniform wage. Wages geared to
productivity and tenure are a hallmark characteris-
tic of private employment and a means by which
employers reward work performance. The absence
of such a policy here, which is given insufficient
weight by the majority, shows that the Respond-
ent's relationship with its clients is not governed by
economic considerations.2
Further, the Respondent provides work for cli-
ents with an eye toward placing them in private,
competitive industry. Indeed, Executive Vice
President Day testified that placement is the Re-
spondent's goal, and as the majority concedes a
few clients have moved on to other positions each
year. The Respondent's rehabilitative object is not
undermined by the mere fact that its efforts have
not produced spectacular success, or that some
measures may be taken pursuant to the require-
ments of the Department of Labor. In this connec-
tion, I see little significance in the fact that clients
are not forced to leave even if they are capable of
employment elsewhere. That clients may exercise a
choice to remain does not show that placement
was not the Respondent's object in training them
Nor do I find it determinative that the Respond-
ent does not provide counseling or other types of
social services. The Respondent simply has chosen
to provide rehabilitation for its clients by emphasiz-
ing the development of work skills. The mere fact
that the Respondent does not provide all possible
forms of rehabilitation does not show that its rela-
tionship with its clients is governed by economic
considerations.
The clients' other working conditions do not
warrant a different conclusion. Discipline is not
meted out at any level close to what is typical in
2 See Goodwill Industries of Southern California, 231 NLRB 536, 537
(1977), where a uniform wage was a factor m the Board's conclusion that
the employer's clients were not statutory employees.
private industry, and discharge is reserved for only
the most serious misconduct such as acts of vio-
lence. Thus, the Respondent merely takes the mini-
mal action necessary to maintain order and efficien-
cy in its facility, a policy completely consistent
with a rehabilitative object. Finally, the Respond-
ent does possess some of the characteristics of the
typical private sector employer, such as its require-
ments that clients work a full workweek and punch
a timeclock, and its provision of insurance benefits,
paid holidays and vacations, and premium pay for
overtime work. Surely, however, this limited evi-
dence does not show that the Respondent is a typi-
cally industrial employer, and does not outweigh
the evidence that the Respondent's overriding con-
cern is with the welfare of its clients and not with
the manufacturing of goods for a profit.
I would not have the Board intrude into the Re-
spondent's program and jeopardize its rehabilitative
process. In sum, I would not assert jurisdiction
over the Respondent and, although I need not
reach the issue, I would not find that its clients are
employees within the meaning of Section 2(3) of
the Act. 3 In view of my position, I find it unneces-
sary to address the unfair labor practice issues and
the majority's rationale for the imposition of a bar-
gaining order.4
3 To the extent that this case is controlled by the Board's decisions in
Lighthouse for the Blind of Houston, 244 NLRB 1144 (1979), and Cincin-
nati Assn. for the Blind, 235 NLRB 1448 (1978), I would find that the
Board incorrectly decided those cases.
4 Because the Respondent's overriding concern is with the welfare of
its clients, collective bargaining would only damage the rehabilitative
process. Goodwill Industries of Southern California, 231 NLRB 536, 537
(1977). Therefore, under no circumstances would I issue a bargaining
order.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten employees that we close
the plant if they engaged in union activities or
select the Union to represent them.
WE WILL NOT tell employees that it would be
futile for them to select the Union as their bargain-
ing representative.
WE WILL NOT promise wage increases, increased
benefits, or promotions as a reward to employees if
they reject the Union.
1224 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
WE WILL NOT threaten employees with a loss of
work because they engage in union activity.
WE WILL NOT ask employees any questions
about their union activity or the union activities of
their coworkers.
WE WILL NOT threaten employees that we will
affect their jobs or salaries if they refuse to ask the
Union to return the card they signed.
WE WILL NOT offer employees increased benefits
if they ask the Union for waivers or if they ask the
Union to withdraw its petition.
WE WILL NOT tell employees to request the
Union to withdraw from an election process.
WE WILL NOT ask employees to select a union
other than the Teamsters Union.
WE WILL NOT tell employees that we are going
to withhold union dues while we refuse to bargain
with the Union.
WE WILL NOT withhold regularly scheduled pay
raises as a penalty because employees engaged in
union activity.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their rights guaranteed them by Section 7 of the
National Labor Relations Act.
WE WILL recognize and bargain collectively
with the Union, as the exclusive representative of
the employees found herein to constitute an appro-
priate unit, and if and understanding is reached,
embody it in a written signed contract. The bar-
gaining unit is:
All production and maintenance employees, in-
cluding inspectors, employed by the employer
at its Little Rock, Arkansas, facility, excluding
all other employees including office clerical
employees, guards, and supervisors as defined
in the Act.
WE WILL make the unit employees whole, with
interest, by paying them backpay of 65 cents per
hour for each hour worked by each employee from
April 20, 1981, to July 13, 1981.
ARKANSAS LIGHTHOUSE FOR THE
BLIND
Jack R. Berger, Esq., for the General Counsel.
Gerland P. Patten, Esq., for the Respondent.
Melva Harmon, Esq., for the Charging Party.
Bert N Bisgyer, Esq., for The National Federation of the
Blind, Party in Interest.
DECISION
STATEMENT OF THE CASE
BRUCE C. NASDOR, Administrative Law Judge. This
case was tried at Little Rock, Arkansas, on November 30
and December 1, 1982. On July 10, 1981, 1 an election
was held with the results that 24 votes were cast for the
Union and 28 against. The Union filed timely objections
to Respondent's conduct and later filed unfair labor prac-
tice charges tracking the objections and alleging viola-
tions of Section 8(a)(1) and (5) of the Act. Subsequently
at the hearing, counsel for the General Counsel amended
the complaint to include an allegation that Section
8(a)(3) of the Act was also violated. Two additional
8(aX1) allegations were amended into the complaint.
Both the objections and the unfair labor practice allega-
tions were consolidated for hearing. The complaint con-
tains various and sundry allegations involving Section
8(a)(1) of the Act including interrogations, threats, and
the solicitation of employees to revoke their union au-
thorization cards.
On the entire record, including my observation of the
demeanor of the witnesses, and after due consideration of
the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
The Respondent is, and has been at all times material
herein, a corporation located at Little Rock, Arkansas,
where it has been engaged in the manufacture of steno-
graphic notebooks, pillowcases, mattress covers, individ-
ual gun belts and the suspension assembly for steel hel-
mets. Annually, Respondent, in the course and conduct
of its business oeprations sold and shipped from its Little
Rock, Arkansas facility products, goods, and materials
valued in excess of $50,000 directly to points located out-
side the State of Arkansas. During the same period Re-
spondent in the course and conduct of its business oper-
ations purchased and received at its Little Rock, Arkan-
sas facility products, goods, and materials valued in
excess of $50,000 directly from points located outside the
State of Arkansas.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6) and (7) of the
Act.
II. THE LABOR ORGANIZATION
At all times material herein, Chauffeurs, Teamsters,
and Helpers Local Union No. 878, affiliated with the
International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, the Union, is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
Respondent operates a facility in Little Rock, Arkan-
sas, manufacturing stenographic notebooks, pillowcases,
mattress covers, gun belts, and helmet liners. It derives
most of its business from Government agencies, such as
the General Services Administration and the Defense
Logistics Agency. Respondent's employees are partially
sighted and nonsighted.
1 All dates are in 1981, unless otherwise specified.
ARKANSAS LIGHTHOUSE FOR THE BLIND

1225
About April 20, five employees met at the union hall
in Little Rock, with Alfred Pickering and Ron Heath,
two union officials to discuss organizing a union at Re-
spondent's facility. The five employees signed union au-
thorization cards and were given blank cards to hand out
to any of their coworkers who were desirous of joining
the Union. On April 30, the Union requested recognition.
On May 4, the Union mailed the petition in Case 26-
RC-6388 to the Regional Office with 43 executed union
authorization cards. Subsequently, on May 11, 1 addi-
tional card was signed making a total of 44 authorization
cards.
On August 5, 1982, the Board affirmed the Regional
Director's findings with respect to the "clients" status as
employees within the meaning of the Act.
Because of the multitude of allegations contained
within the complaint, and for purposes of clarity and
structure, I have set out the facts keyed to the order of
the paragraphs of the complaint beginning with para-
graph 7.
On June 11, a statement attributed to Charles A.
Brown, vice president of Respondent, and executive
committee and board member, appeared in the Little
Rock, Arkansas newspaper, the Arkansas Gazette stating
in Brown's words that the issue was "whether we allow
the Union to shut down the Lighthouse or not." Em-
ployees testified that they were aware of Brown's state-
ment by virtue of having had the article read to them, or
reading the article themselves. One employee testified
that the article had been read over an FM radio station.
Brown, although admitting that he made the statement,
testified that it was out of context. The newspaper re-
porter also testified and her testimony was that neither
Brown nor the Respondent ever sought a retraction of
the statement or disavowed same.
About July 2, Billy M. Day, executive vice president
of Respondent, made a speech to all the employees. Sev-
eral of the employees testified giving varying dates of
this speech but many speeches were given prior to the
election so some confusion is understandable. Day stated,
according to the testimony of many employees, that in
California after the Union came into three lighthouses
there were strikes and "all three lighthouses closed up
tight as a jug and never reopened." Employees Jean
Miller and Donna Reiser testified that Day also stated
that the Lighthouse would fight the Union even if it
took 3 to 10 years. Two other employees testified that
Day stated as the time period 1 to 3 years. Other em-
ployees testified that during the same speech Day stated
that the Lighthouse would not negotiate with the Team-
sters' Union.
Employee Carrol Mathews and other employees testi-
fied that on July 13 (the first workday after the election)
Day promised and granted the employees a 65-cent-an-
hour raise to be effective immediately. According to the
testimony Day stated that the raise might be premature
but he did not think that Teamsters representatives
would continue to try to get into the Lighthouse. Re-
spondent takes the position that raises had been periodi-
cally made from 1976, twice a year, early in the year and
about the middle of the year. There was no raise early in
1981. Respondent contends that in view of the fact the
election was scheduled for July 10, deferring the raise to
a day immediately after that date was not improper.
Clint Rutherford, testified that he campaigned against
the Union and participated in a head count with Day as
to who would vote for or against the Union. He testified
further, that during the week of July 13, Day told him
while he was in Day's office that he was going to be
promoted to a supervisor of a new department. Respond-
ent contends that an opening appeared imminent and
Day informed Rutherford of this because Rutherford had
been an excellent worker and had been recommended to
Day as deserving of a promotion.
During a telephone conversation in July, employee
Lois Owen, who was on layoff status, was told by Day
that "Washington" was getting tired of the Union so Re-
spondent had no contract (i.e., no work).
The Defense Logistics Agency and GSA grant con-
tracts to the National Industry for the Blind, which in
turn subcontracts to the Respondent. These agencies are
located in Washington, D.C.
Testimony by Marilyn Koone reflects that on June 20,
Day called her into his office and engaged her in a dis-
cussion about going to piece rate. Thereafter, in the same
discussion, Day asked her how her two sisters were
going to vote in the union election. During this same
conversation Day stated that if the Union did not go
through that the employees would definitely get a 65-
cent raise.
Day was not called as a witness to testify in this case.
Norman Slayden, an employee, testified that on July 8,
at the request of his supervisor Melvin Rainey, he went
to the office of Respondent's executive vice president,
James Avants. Slayden told Avants that he wanted to
have his card (union authorization card) revoked. Avants
provided him with a form and Slayden put his X mark
on it. Avants then asked Slayden if he wanted to get his
wife's card revoked, and Slayden, agreeing to this re-
quest, signed a revocation on behalf of his wife, although
he and his wife had not discussed his authority to exe-
cute her revocation, Avants then promised Slayden that
there would be pay raises although he did not know how
much. Avants denied these allegations but admitted that
the revocation letter had been typed by a secretary in
the office, copies duplicated on an office machine, and
further that the Respondent provided envelopes and
stamps and actually mailed the letters. Avants witnessed
Slayden's revocations.
Charles Ledbetter testified that he was instructed by
his supervisor, Eldon Bartley, to go to Avants' office.
Ledbetter followed his supervisor's instructions and
spoke with Avants telling him he had no intention of re-
voking his authorization card. Both Ledbetter and
Avants testified that he, Avants, did not solicit a revoca-
tion of Ledbetter's card.
John Mathews testified that on July 6, Respondent's
paper department employees were called to a meeting in
the lunchroom. Respondent's attorney, Philip Lyon, pre-
sided at this meeting. After playing a tape, relating to a
union organizational campaign, Lyon told the employees
that if the Union was really interested in their welfare it
would "drop" or withdraw from the election if a pay
1226 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
raise of $4 an hour was granted. Mathews and other em-
ployees also testified that Lyon told them that if the
Teamsters, with Heath as their agent, would waive ob-
jections to the election then the Respondent would tell
the employees what it was willing to offer them by way
of benefits. At this juncture, according to Rutherford,
he, Rutherford, asked if he could call Heath to see if the
Teamsters would agree to the waiver and Lyon told him
to go ahead and do that. This testimony stands unrebut-
ted. Lyon was not called to testify as a witness in this
case.
Again on July 6, later in the day, Lyon spoke to the
employees in the belt and helmet liner department. Lyon
is alleged to have stated that earlier he did not have the
authority to state what the Respondent would offer, but
that he now had this authority if employee Rutherford
was successful in getting the union to "back off." Other
employees stated that Lyon told them Respondent would
offer $4 an hour if the Union would back off. It is noted
that Respondent granted a raise bringing their hourly
total to $4 after the election.
The unrebutted testimony of Pamela Barnes reflects
that Lyon told all of the Lighthouse employees on July
6, that they should "call off the Union."
Employees testified that Lyon held other meetings on
July 6, where he told employees that he would sit down
at the bargaining table and listen to the Union if it won
the election, but Respondent would not negotiate. At an-
other meeting Lyon is alleged to have repeated the state-
ment that as a representative for Respondent, he would
go to, or sit down, at the bargaining table, but he would
not negotiate with the Union.
Record testimony reflects that on July 7 or 8, Lyon
stated to employees that he would help get just about
any other union except this particular Teamsters Local
and that he mentioned the names of two or three other
unions perhaps the Operating Engineers or the Machin-
ists. Apparently this was a question-and-answer session.
Testimony also reflects that around the same period of
time, perhaps on July 6, Lyon stated that if the employ-
ees had to have a union they should try to pick a better
one than the Teamsters, i.e., why not get a good union.
Employees testified that Lyon told them he did not see
how the Union could do them any good because if the
Union won the election the employees would be mem-
bers, and would have to pay dues before they got a con-
tract with the Respondent. Lyon also stated that the Re-
spondent intended to fight the Union all the way to the
Supreme Court even if it took up to 10 years. Further-
more, according to the testimony of employees, Lyon
stated that the dues-checkoff card authorized that dues
be checked off after the election. The union representa-
tive, Heath, testified that due to Lyon's comments, he
was put in a position where he had to guarantee that the
Teamsters would not collect dues until after a contract
was signed.
Employees testified that on July 8, Lyon stated to
them that if they did not want the Union to get dues
from their checks they would have to send a letter to the
Teamsters asking that their cards be revoked. Moreover,
according to the testimony, Lyon stated they could get
letters of revocation in the office of Avants. An admitted
supervisor, Rainey, testified that either Avants or Lyon
announced to employees that if they wanted to revoke
their cards they could go to Avants' office. A line of em-
ployees formed outside his office.
Rutherford testified that he met with Lyon on July 9,
in the breakroom. Rutherford told Lyon that the Re-
spondent and the Union looked equal in the upcoming
election, and Lyon asked if he thought the Teamsters
would withdraw from the election. Rutherford replied
that he did not know but he would find out by calling
Representative Heath. After Heath advised Rutherford
that the Union would not withdraw, Rutherford report-
ed this back to Lyon.
On July 9, employees Rutherford and Partridge met
with Lyon in the lunchroom. Rutherford testified that he
and Partridge told Lyon it would be easier for the em-
ployees to make a decision about the election if they
knew what the Respondent was offering. Lyon allegedly
replied that Rutherford "had mentioned the amount in an
earlier meeting—remember it started with an F." Then
Partridge responded, "Five an hour." Lyon's response
was, "No, one below that" According to Partridge
Rutherford said to Lyon the time that Lyon told Ruther-
ford about $4 an hour and Lyon responded, "Yes, keep
that in mind."
Rutherford also testified that on July 10 in a telephone
conversation while he was in Avants' office Lyon told
him that if the Respondent won the election the employ-
ees would receive a 65-cent-an-hour raise and after the
results of the election were certified they would also re-
ceive a sick leave plan and maybe a retirement plan.
Rutherford and Partridge testified corroborating each
other with respect to a meeting held on July 13 in the
lunchroom. According to their testimony, Lyon and Day
stated that Respondent was giving them a raise immedi-
ately, effective 6:45 that morning. Furthermore, Re-
spondent was going to revert back to 1 week pay periods
instead of 2. Lyon continued, that they (Respondent),
were granting the raises at that time, because they heard
that the Teamsters were not going to file objections to
the election. Either Lyon or Day also stated that when
the election results were certified they would see what
else they could do.
Partridge also testified that between July 6 and 10, he
questioned Rainey, a supervisor, as to what would
happen if the employees voted the Union down. Some-
time prior, Rainey advised the employees that if they
had any questions he would fmd out the answers. Rainey
left the area and returned in about 5 minutes and told
Partridge that Day said the employees would get the
largest increase in Lighthouse history. Rainey denied
consulting with Day about raises, and further denied that
he promised employees raises. Respondent in its brief
contends that Rainey was a working supervisor in the
belt department and had no authority to promise any-
body anything. Respondent's answer admits supervisory
status.
Slayden testified with regard to a conversation he had
with his supervisor Rainey, at his work station, on July
7. According to Slayden, Rainey approached him and
stated that walking the picket line and getting $25 a
ARKANSAS LIGHTHOUSE FOR THE BLIND 1227
week could be pretty tough. Then, according to Slayden,
Rainey told him that he could go to Avants' office and
revoke the union authorization card. Slayden refused.
The next day Rainey asked him if he had been to
Avants" office, and he advised Rainey that he had not.
As discussed earlier, 30 to 45 minutes later Slayden went
to Manta' office and told Avants he wanted to have his
card revoked. Avants supplied the form to him and he
marked it with his X. Avants allegedly then asked Slay-
den if he wanted to revoke his wife's card and Slayden
answered affirmatively. He then signed a revocation for
his wife's union authorization card, without her author-
ity.
Rainey testified that Slayden was not even in his de-
partment and that he had no such conversation with
Slayden.
Miller, an employee at the Lighthouse, testified that on
July 18, Rainey encouraged him to revoke his union au-
thorization card mentioning the name of a coworker
who had revoked her card. Rainey denied the allegation.
Siayden testified that on July 14 while he was in the
"smoker," Rainey came in and asked him if he could ask
a personal question, to which Slayden replied, "Well, if
it's not too personal." Rainey then asked him how he
voted to which he responded, "Yes." Rainey then stated
that Day had given the employees a pretty good pay
raise and he was thinking about getting a sick leave
policy for the employees, something the employees never
had.
Rainey made a general denial of any interrogation or
promises.
Ledbetter, an employee, testified that on July 8,
Hatcher, a supervisor, approached him on the loading
dock. She began the conversation by reviewing how
well Day treated the employees, Ledbetter in particular.
Ledbetter responded that if she wanted him to get his
union card back, he would do it at his own time and
convenience. He testified that he had heard rumors that
supervisors were encouraging employees to revoke their
cards. Hatcher volunteered to accompany him to get his
card back. Hatcher denied any solicitation.
Gideon, an employee of 34 years' duration, testified to
a conversation with Hatcher 1 or 2 days prior to the
election. She advised him that he could receive the same
benefits without paying union dues. Although his testi-
mony rambled and was somewhat vague, it is clear that
she volunteered to accompany him to Avants' office "to
have it [the Union] stopped." After talking to Hatcher,
Gideon talked to Rainey. Rainey allegedly stated "that
the place would close up the next week—because that
Day was going to—Day was going—he said that Mr.
Avants and them would close the plant because Mr.
Day—because Mr. Day—was calling the shots and Mr.
Avants would have to do what he says." Gideon execut-
ed a revocation afer his conversation with Rainey and
Hatcher.
Employee Jerry Vinson, testified that prior to the elec-
tion his supervisor Eldon Bartley 2 came up to him in the
work area and asked him how he was going to vote.
Vinson told him that he planned to vote "no." Bartley
denied the alleged interrogation.
Reiser, an employee, testified that after the election,
her supervisor, Post, told her she was curious and asked
her which way she would vote if she was to vote again.
Reiser did not respond. Post was not called as a witness
to testify.
Rutherford, a former employee who initially supported
the Union, testified that when his allegiance changed, he
went to Day's office and offered to attempt to persuade
employees to vote against the Union. Day accepted his
offer and replaced Rutherford with another employee to
run his machine. Rutherford then visited each depart-
ment, during working hours, conducting a poll of em-
ployees and telling them how he was going to vote
against the Union. Later, Rutherford returned to Day's
office, where Day read the name of each employee from
a list. After each name was read, Rutherford told Day
how he or she would vote. Rutherford conducted an-
other poll and repeated the same process with Day only
several hours before the election. The testimony of Ruth-
erford, who is alleged to be an agent of Respondent,
stands uncontradicted.
Rutherford also testified that during the week of July
13, he was allowed to speak to employees of the differ-
ent departments about revoking their union authorization
cards. Later Rutherford told Day that he would visit the
homes of laid-off employees. Day furnished Rutherford
with a company truck and driver to go to the employees'
homes on company time. As a result of these visitations,
several more employees signed letters of revocation.
Rutherford returned the signed revocations to Respond-
ent who sent them to the National Labor Relations
Board.
Respondent argues in detail, that because the employ-
ees are visually handicapped, it could legally aid them in
revoking their union authorization cards.
Amendment to Complaint Alleging 8(aX3)
Violation in the Withholding of Pay Increases
On direct examination, Avants, Respondent's executive
vice president, testified that a scheduled April pay raise
was withheld because of the Union's organizational ef-
forts. On July 13, Respondent granted a 65-cent-per-hour
wage increase. Counsel for the General Counsel requests
backpay of 65 cents per hour from April 20 2 to July 13.
Counsel for the General Counsel's theory is, postponing
the raise due to union activity is a violation of Section
8(a)(3) of the Act.
The Appropriate Unit
The parties agreed that all production and mainte-
nance employees, including inspectors, employed by the
Employer at its Little Rock, Arkansas facility, excluding
all other employees including office clerical employees,
guards, and supervisors as defmed by the Act constitute
a unit appropriate for the purposes of collective bargain-
ing within the meaning of Section 9(b) of the Act.
2 Bartley is referred to in the complaint as Eldon Beasley. 3 The date employees commenced passing out union cards.
1228 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Majority Status
Counsel for the General Counsel authenticated and in-
troduced into the record 44 union authorization cards.
Forty-three are dated prior to the April 30 demand for
recognition, and one after the demand. Respondent ques-
tioned two cards. In the case of Barbara Wise, no evi-
dence was adduced to refute the solicitor's testimony. As
to Michael Brooks, he merely understood that the card
was to join the Teamsters.
As of the date of the demand, there were 55 or 59 unit
employees, depending on which is accurate, the Excelsior
list, or the payroll records. No employee testified that he
or she was told that the only purpose in signing a card
was to get an election. The card on its face appears to be
unambiguous.
Analysis and Conclusion
The threat of plant closure contained in a newspaper
article, attributed to Brown, a high official of Respond-
ent, is a most potent device for interference, restraint,
and coercion. In my view it is a definitive violation of
Section 8(a)(1) of the Act and I so find.
I find and conclude that Day's speech threatened plant
closure as a penalty for unionization, and as such violat-
ed Section 8(a)(1) of the Act See TRW-United Green-
field Division, 245 NLRB 1135 (1979).
Separate and independent violations of Section 8(a)(1)
of the Act, are Day's statements that it would be futile
for the employees to select the Union as their bargaining
representative, the Lighthouse would fight the Union
even if it took 3 to 10 years.
Similarly Respondent violated Section 8(a)(1) of the
Act, when Day promised and granted the employees, a
raise of 65 cents per hour. It is clear that the union orga-
nizational campaign had not terminated as of the election
but was ongoing by the filing of objections to same.
Even if Respondent did not believe that the election re-
sults would be objected to, Respondent was engaged in
an illegal act by the promise and granting of the pay in-
crease at this time. This was not business as usual. An in-
crease was long overdue..
Respondent, by promising a promotion to Rutherford,
violated Section 8(aX1) of the Act. Rutherford, who in
the initial stages of the organizational campaign had been
prounion, changed his allegiance during the last week
prior to when the election was held. He, as Respondent's
agent, actively and illegally assisted Respondent in solic-
iting revocations and participated with Respondent in
polling employee sentiments. I am convinced by the
record that the promise of a promotion to Rutherford
came as a complete surprise to him.
The statement by Day to Owen conveyed the mes-
sage, that Respondent suffered a loss of work, i.e., con-
tracts, because of the Union. This manifestly violates
Section 8(a)(1) of the Act
The interrogation by Day of Koone, as to how her sis-
ters were going to vote, is another violation of Section
8(aX1) of the Act.
And again during the same conversation, Day's prom-
ise that if the Union did not go through, the employees
would get a 65-cent raise, is another independent viola-
tion of Section 8(a)(1) of the Act.
The promise by Avants that employees would be re-
ceiving pay raises, and the solicitation of revocations by
Avants, violates Section 8(a)(1) of the Act. In this regard
I completely credit the testimony of employee Slayden
and discredit Avants in his denial that he made no prom-
ises. Moreover, it is admitted that Respondent furnished
the stationery, envelopes, stamps, duplicating facilities,
and actually mailed the revocations. This clearly is
beyond the bounds of legality. The secret ballot is the
vehicle by which employees express whether they desire
union representation.
Allegations Relating to Attorney Phillip K. Lyon
In paragraphs 10(a) through 10(j) of the complaint, an
unnamed agent of Respondent is alleged to have engaged
in various acts and conduct in violation of Section 8(a)(1)
of the Act. Record testimony of employees denote that
Phillip K. Lyon, an attorney who conducted Respond-
ent's campaign, engaged in these diverse acts.
As I was about to close the hearing, Attorney Stephen
W. Jones, made his presence known. He presented him-
self as a member of Lyon's law firm and as an attorney
representing Lyon.4 Jones stated that Lyon was seriously
il1, 5 bedridden, and could not testify at that time, but
would very much like to do so. He requested that I hold
the record open, in effect, indefinitely. Jones stated, and
I paraphrase him, that Lyon communicated to employ-
ees, not a refusal to negotiate, but a future testing of cer-
tification if the Union won the election, based on juris-
dictional issues. According to Jones, this would be the
substance of Lyon's testimony. Furthermore, Lyon
would testify that he made no promises. Counsel for the
Respondent did not take a position. I denied the motion
to hold the record open. Thereafter, on February 21,
1983, subsequent to the filing of briefs, Jones filed a
motion for reconsideration. On March 1, 1983, counsel
for the General Counsel filed an opposition. On March 2,
1983, counsel for Respondent filed a pleading in support
of the motion for reconsideration. On March 9, 1983,
counsel for the General Counsel filed a response to the
pleading. On March 9, 1983, counsel for Respondent
filed another response. On March 23, 1983, counsel for
the party in interest filed a statement for the record that
the party in interest supported the position of counsel for
the General Counsel.
Considering the totality of the credible evidence, much
to be still discussed, the motion for reconsideration is
denied. If Lyon testified, and assuming arguendo, he
denied each and every allegation attributed to him, and I
credited his testimony over that of all the employees, my
final conclusion and disposition of this case, infra, would
remain the same. Therefore, to reopen this record for
that limited testimony would serve no purpose and only
prolong an already otherwise protracted state of affairs.
4 Jones moved to intervene. Lyon is not a party to this case, he is
merely referred to m the complaint as would be any other agent or su-
pervisor.
'See R. Exh. 6 a position statement that Day was too ill to testify and
R. Exh. 7 a position statement regarding Lyon.
ARKANSAS LIGHTHOUSE FOR THE BLIND 1229
Accordingly, I find merit to paragraphs 10(a) through
100 of the complaint. Moreover, with reference to testi-
mony Lyon might have given with respect to testing cer-
tification, 6 the employees are not labor lawyers, nor do
they have the sophistication to grasp the concepts in-
volved therein.
Consequently Respondent has engaged in the follow-
ing conduct:
(1) Induced employees to ask for a waiver and/or
withdrawal of the representation petition by offering and
promising financial benefits.
(2) Soliciting a waiver from the Union to allow Re-
spondent to grant a wage increase.
(3) Advising its employees to request the Union to
withdraw from the election process.
(4) Telling employees it would not negotiate with the
Union and informing its employees that it would be futile
for the Union to select them as their collective-bargain-
ing representative.
(5) Soliciting employees to select another union as
their bargaining representative.
(6) Advising its employees that it would withhold
union dues while refusing to bargain with the Union.
(7) Soliciting employees to revoke their union authori-
zation cards.
(8) Interrogating employees regarding their union
membership, activities, and sympathies.
(9) Promising employees increased benefits if they re-
jected the Union as their collective-bargaining represent-
ative.
(10) Promising employees a wage increase and other
unspecified increased benefits for purposes of undermin-
ing support for the Union.
Melvin Rainey categorically denied telling employees
that Day said they would get the largest increase in
Lighthouse history if they rejected the Union.
I reject Rainey's denial and credit the version of Par-
tridge whose testimony was clear cut and exacting. At
some time earlier Rainey had told employees that if they
had any questions he would go and find out the answers.
Therefore, in my view Partridge's testimony was inher-
ently credible in that the promise of the largest increase
in Respondent's history came to fruition. Accordingly, I
find and conclude that Rainey's statements to Partridge
violated Section 8(a)(1) of the Act,
Both Miller and Slayden credibly testified that Rainey,
an adiiiitted supervisor, engaged in interrogation and so-
licitation to revoke their union cards. Miller and Slayden
both impressed me as forthright witnesses and I credit
their testimony against the very general denials advanced
by Rainey.
Accordingly, Respondent, by and through its supervi-
sor Rainey, engaged in violations of Section 8(a)(1) of
the Act.
The record does not reflect that Rainey threatened
employees with adverse working conditions or adverse
conditions of employment if the Union was selected as
the collective-bargaining representative for Respondent's
employees. I recommend that this allegation be dis-
missed.
I find that Rainey also interrogated Slayden with ref-
erence to how Slayden voted in the election, in violation
of Section 8(a)(1) of the Act.
Although Ledbetter may have broached the subject of
revocation with Hatcher, a supervisor, in my view
Hatcher went beyond the bounds of legality when she
offerd to accompany Ledbetter to revoke his union au-
thorization card. Ledbetter unequivocally told her he
would revoke his card at his own time and convenience.
Similarly, Gideon was solicited by Hatcher to revoke
his card. I discredit Hatcher's denials, her testimony was
vague and imprecise, whereas Ledbetter and Gideon tes-
tified in a sure straightforward manner.
Accordingly, I find that Respondent, by Hatcher's ac-
tions, engaged in violations of Section 8(a)(1) of the Act.
Although Gideon testified that Rainey told him that
Day and Avants, "would close the place," there is no
actual nexus between that statement and the Union win-
ning the election. I will not make a finding that this is an
8(a)(1) violation because the testimony is too nonspecific
and nebulous. I recommend that this allegation be dis-
missed.
I credit the testimony of Vinson, that his supervisor
Bartley, asked him how he was going to vote. Although
Bartley denied the interrogation, Vinson's testimony is
inherently credible in the context of this entire record.
Accordingly, Respondent by its supervisor Bartley, en-
gaged in unlawful interrogation in violation of Section
8(a)(1) of the Act.
The unrefuted testimony of Reiser established that she
was interrogated by her supervisor, Post, in violation of
Section 8(a)(1) of the Act, and I so find.
Rutherford's testimony serves to establish that as an
agent of Respondent, he engaged in unlawful interroga-
tion by polling employees, a violation of Section 8(a)(1)
of the Act. Further, by his conduct in soliciting revoca-
tions, Rutherford, as Respondent's agent, violated Sec-
tion 8(a)(1) of the Act.
Amendment to Complaint Alleging a Violation of
Section 8(a)(3) of the Act
It is by now firmly fixed that the withholding of
wages or other benefits occasioned by union activity vio-
lates Section 8(a)(3) of the Act. Accordingly, I will rec-
ommend that Respondent make whole its unit employees
by paying them ba.ckpay retroactively, in the amount of
65 cents per hour for each hour worked, for the period
April 207 to July 13, 1981.
The Union represented a pronounced majority in an
appropriate unit of Respondent's employees as of April
27, 1981. The cards of Wise and Brooks are valid and
count towards this clear cut majority.
Based on the magnitude and substantial scale of Re-
spondent's unfair labor practices, Respondent's conduct
precludes the holding of a fair rerun election among the
employees in the appropriate unit. Moreover, Respond-
ent's unlawful conduct was serious, pervasive, egregious,
6 See, inter alma, NLRB v. Lighthouse for the Blind of Houston, 696 F.2d
399 (5th Qr. 1982). 'The date when the organizational campaign commenced.
1230 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and substantial enough to warrant the issuance of a bar-
gaining order, and I so recommend. See NLRB v. Gissel
Packing Co., 395 U.S. 575 (1969); Steel-Fab, Inc., 212
NLRB 363 (1974); and Trading Port, 219 NLRB 298
(1975).
CONCLUSIONS OF LAW
1. Arkansas Lighthouse for the Blind is an employer
engaged in commerce with the meaning of Section 2(6)
and (7) of the Act.
2. Chauffeurs, Teamsters and Helpers Local Union No.
878, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America is a labor organization within the meaning of
Section 2(5) of the Act.
3. By threatening employees with plant closure if they
engaged in union activities, Respondent violated Section
8(a)(1) of the Act.
4. By advising its employees that it would be futile for
them to select the Union as their collective-bargaining
representative, Respondent violated Section 8(aX1) of the
Act.
5. By promising employees wage increases and in-
creased benefits if they rejected the Union, Respondent
violated Section 8(a)(1) of the Act.
6. By promising an employee a promotion in order to
undermine his support for the Union, Respondent violat-
ed Section 8(a)(1) of the Act.
7. By threatening employees with loss of work based
on union considerations, Respondent violated Section
8(a)(1) of the Act.
8. By interrogating employees regarding their union
membership, activities, and sympathies, or those of
fellow employees, Respondent violated Section 8(aX1) of
the Act.
9. By soliciting employees to withdraw their union au-
thorization cards, Respondent violated Section 8(a)(1) of
the Act.
10. By offering and granting increased benefits to
induce employees to ask for waivers and withdrawal of
the representation petition, Respondent violated Section
8(a)(1) of the Act.
11. By advising employees to request the Union to
withdraw from the election process, Respondent violated
Section 8(a)(1) of the Act.
12. By soliciting employees to select another union
(other than the Teamsters), Respondent violated Section
8(a)(1) of the Act.
13. By advising employees it would withhold union
dues while refusing to bargain with the Union, Respond-
ent violated Section 8(a)(1) of the Act.
14. By withholding a regularly scheduled pay raise,
Respondent violated Section 8(a)(1) and (3) of the Act.
15.All production and maintenance employees, includ-
ing inspectors, employed by the Respondent at its Little
Rock, Arkansas facility, excluding all other employees
including office clerical employees, guards, and supervi-
sors as defined in the Act constitute a unit appropriate
for the purposes of collective bargaining within the
meaning of Section 9(b) of the Act.
16.Since April 27, 1981, a majority of the employees
of Respondent, in the unit described above, have desig-
nated and selected the Union as their representative for
the purpose of collective bargaining.
17.At all times since April 27, 1981, the Union, by
virtue of Section 9(a) of the Act, has been, and is, the
exclusive representative of the employees in the unit de-
scribed above, for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment, and other terms and conditions of employment.
18.On April 30, 1981, the Union requested Respond-
ent to recognize it as the exclusive collective-bargaining
representative of Respondent's employees in the unit de-
scribed above, and to bargain collectively with it as the
exclusive collective-bargaining representative of said em-
ployees with respect to their rates of pay, wages, hours
of employment, and other terms and conditions of em-
ployment.
19.Since June 11, 1981, Respondent has failed and re-
fused, and continues to fail and refuse, to recognize or
bargain with the Union as the exclusive collective-bar-
gaining representative of its employees in the unit de-
scribed above.
20.By refusing to bargain with the Union on and after
June 11, 1981, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(1) and (5) of
the Act.
21.These unfair labor practices are so serious, perva-
sive, egregious, and substantial that they preclude the
holding of a fair rerun election and warrant an order to
bargain.
22. The aforesaid unfair labor practices effect com-
merce within the meaning of Section 2(6) and (7) of the
Act.
THE REMEDY
Having found that the Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(1), (3), and (5) of the Act, I shall recommend that it
be ordered to cease and desist therefrom, and take cer-
tain affirmative action designed to effectuate the policies
of the Act.
I find that the unfair labor practices engaged in by Re-
spondent were serious, pervasive, egregious, and substan-
tial enough to undermine the Union and destroy its ma-
jority status, making the conduct of a fair rerun election
impossible. Accordingly, under the criteria set forth in
the cases cited supra, Respondent has violated Section
8(a)(5) of the Act, and a bargaining order is warranted.
There was a clear demand made on April 30, 1981,
and I will recommend that Respondent be required to
recognize and bargain on request with the Union as of
that date.
Having found that Respondent violated Section 8(a)(3)
of the Act by withholding a wage increase from April 20
to July 13, 1981, I will recommend that Respondent
make these employees whole by compensating them with
retroactive backpay of 65 cents per hour for each hour
worked by each unit employee from April 20 to July 13,
1981, with interest. This interest shall be computed in the
manner prescribed in Florida Steel Corp., 231 NLRB 651
(1977).
ARKANSAS LIGHTHOUSE FOR THE BLIND

1231
In view of the nature of the unfair labor practices
herein found, which clearly demonstrate a proclivity to
violate the Act, Respondent shall be further ordered to
cease and desist from "in any other manner" infringing
on the rights guaranteed to its employees by Section 7 of
the Act.
On the foregoing findings of fact and conclusions of
law, and on the entire record, I issue the following rec-
ommended8
ORDER
The Respondent, Arkansas Lighthouse for the Blind,
Little Rock, Arkansas, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure if the
employees chose to be represented by a union.
(b) Advising employees that it would be futile for
them to select the Union as their collective-bargaining
representative.
(c) Promising and granting wage increases and in-
creased benefits in order to undermine support for the
Union.
(d) Promising employees promotions or wage increases
in order to undermine support for the Union and in
order to have employees reject the Union as their collec-
tive-bargaining representative.
(e) Threatening employees with a loss of work because
of their support for the Union.
(f) Coercively interrogating employees regarding their
union membership, activities, and sympathies and the
membership, activities, and sympathies of their cowork-
ers.
(g) Solicting employees to withdraw their union au-
thorization cards.
(h) Inducing employees to ask for waivers or the with-
drawal of the representation petition by offering in-
creased benefits.
(i) Advising employees to request the Union to with-
draw from the election process.
(j) Solicting employees to select a union other than the
Teamsters' Union.
(k) Advising employees it would withhold union dues
while refusing to bargain with the Union.
(1) Withholding regularly scheduled pay raises as a
penalty for engaging in union activity.
(m) The appropriate bargaining unit is:
If no exceptions are filed as provided by Sec. 102.46 of the Board's
Rules and Regulations, the findings, conclusions, and recommended
Order shall, as provided in Sec. 102.48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
pose&
All production and maintenance employees, in-
cluding inspectors, employed by the employer at its
Little Rock, Arkansas facility, excluding all other
employees including office clerical employees,
guards, and supervisors, as defined in the Act,
(n) Refusing to bargain collectively with the Union as
the exclusive representative of all the employees in the
appropriate unit described above.
(o) In any other manner interfering with, restraining,
or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request of the Union, bargain collectively with
the Union over wages, hours, and working conditions
and any other terms of employment of the employees in
the appropriate unit described above. If an understanding
is reached, embody such agreement in a written, signed
contract.
(b) Make the unit employees whole by paying them
backpay of 65 cents per hour for each hour worked by
each employee from April 20 to July 13, 1981.
(c) Post at its premises at Little Rock, Arkansas,
copies of the attached notice marked "Appendix."
Copies of the notice on forms provided by the Regional
Director for Region 26, after being signed by Respond-
ent's authorized representatives, shall be posted by Re-
spondent immediately on receipt, and maintained for 60
consecutive days, in conspicuous places, including all
places where notices to employees are customarily
posted. Respondent shall take reasonable steps to ensure
that the notices are not altered, defaced, or covered by
any other material.
(d) Because many, if not most, of the employees are
nonsighted or partially sighted, Respondent shall assem-
ble the employees on company time and property and
read the attached notice to the employees.
(e) Preserve and, on request, make available to the
Board or its agents for examination and copying, all pay-
roll records and reports, and all other records necessary
to ascertain and compute the amount of backpay due
under the terms of this Order.
(f) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER ORDERED that the complaint is dis-
missed insofar as it alleges violations of the Act not spe-
cifically found herein.
9 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 Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."