A.T.I. Warehouse, Inc.

National Labor Relations Board - Board Decisions

Feb 1, 1968

169 N.L.R.B. 580 (N.L.R.B. 1968)

580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A.T.I. Warehouse , Inc. and International Brother-
hood of Teamsters , Chauffeurs , Warehousemen
and Helpers of America , Local 20. Cases
8-CA-4492,8-RC-6546, and 8-RM-471
February 1, 1968
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
By CHAIRMAN MCCULLOCH AND MEMBERS
BROWN AND JENKINS
On September 6, 1967, Trial Examiner
Frederick U. Reel issued his Decision in the above-
entitled proceeding, finding that Respondent had
engaged in and was engaging in certain unfair labor
practices within the meaning of the National Labor
Relations Act, as amended, and recommending that
it cease and desist therefrom and take certain affir-
mative action, as set forth in the attached Trial Ex-
aminer's Decision. He also found that Respondent
had not committed certain other unfair labor prac-
tices alleged in the complaint and that the results of
the election held on January 24, 1967, should not
be set aside. Thereafter, both the Respondent aand
the General Counsel filed exceptions to the Trial
Examiner's Decision and supporting briefs, and the
Respondent also filed a brief in answer to the
General Counsel's exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, the National Labor
Relations Board has delegated its powers in con-
nection with these cases to a three-member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions, the
briefs, and the entire record in these cases, and
hereby adopts, the findings, conclusions, and recom-
mendations of the Trial Examiner, except as
modified below.
1. The Trial Examiner recommended dismissal
of the allegation that Respondent refused to bargain
with the Union in violation of Section 8(a)(5) of the
Act. While we agree with his conclusion, we do so
only for the following reasons.
Like the Trial Examiner, we find that Gauthier
was a supervisor and that hence the cards solicited
by him could not be counted toward the Union's
majority when it requested recognition on
November 16. It is well settled that cards obtained
with the direct and open assistance of a supervisor
are invalid for such purposes.' Since the Union did
not repeat its request for bargaining at any time
when it might have had a valid majority,2 we need
not consider whether the expression of approval for
the Union of December 18 amounted to a reaffir-
mation of the cards solicited by Gauthier,3 thereby
giving the Union a valid majority on that date.
Accordingly, we shall dismiss the complaint in-
sofar as it alleged a violation of Section 8(a)(5) of
the Act.
2. The Trial Examiner also found that the
Respondent had violated Section 8(a)(1) of the Act
on several occasions. We agree with these findings.
The Trial Examiner, however, rejected the General
Counsel's contention that Respondent's strict en-
forcement of its no-solicitation rule against prou-
nion employees amounted to disparate treatment of
prounion employees in violation of Section 8(a)(1).
The evidence indicates that while antiunion em-
ployees were advised not to violate the rule, prou-
nion employees were warned that infractions of the
no-solicitation rule would result in discharge. We
find this disparity in treatment violative of Section
8(a)(1).
The General Counsel also contended that the
pretrial interview by Respondent's attorney of em-
ployee Padilla violated Section 8(a)(1). In this inter-
view, Respondent's attorney questioned Padilla
about telephone conversations which occurred be-
fore the election. The attorney asked Padilla to re-
late the substance of a conversation in which an em-
ployee had discussed the Union with Padilla. He
also inquired whether a second employee was com-
mitted to the Union when this second employee
spoke to Padilla on the telephone. We find that
these inquiries intruded into employee activities
and were not relevant to any legal defense.4
Accordingly, we hold that Respondent's interview
with Padilla violated Section 8(a)(1).
3. Lastly, although the Trial Examiner held that
the Respondent violated Section 8(a)(1) during the
critical period, he concluded, nonetheless, that the
violations were too inconsequential to warrant
setting aside the election . We do not agree. After
the petition was filed, but before the election was
conducted, Hernandez, acting on the Respondent's
behalf, stated to employee Ramirez that employees
who worked for the Union might be fired. He also
stated that election of the Union might result in a
shutdown of the plant. Hernandez also told em-
ployee Ferris that a union was not necessary and
that they could simply form their own union. The
' Weidang & Industrial Products, Ltd. & Carbonic Products Corp., 167
NLRB 881 (holding that a supervisor's activities tainted the union's
majority, notwithstanding the fact that the supervisor, at a later date,
reversed his position and threatened employees with loss of work if the
union were elected); see, also J.C. Penney Co., Inc., 160 NLRB 279;
Southland Paint Co., Inc., 156 NLRB 22, 43, Leas & McVitty, Inc., 155
NLRB 389.
2 Cf. Western Aluminum of Oregon Incorporated et al , 144 NLRB
1191; J.C. Penney Co., Inc., supra, which involved an analogous situa-
tion.
3 A demand for recognition could not be based on the petition filed by
the Union since it relied on the initial demand and refusal.
4 Joy Silk Mills, Inc., v. N.L.R.B., 185 F.2d 732 (C.A D.C.); Sullivan
Surplus Sales, Inc, 152 NLRB 132.
169 NLRB No. 75
A.T.I. WAREHOUSE, INC. 581
interviews of Gauthier and Padrutt, which the Trial
Examiner found were unlawful, also occurred dur-
ing this period. We cannot agree with the Trial Ex-
aminer's finding that conduct of this kind, com-
mitted in a unit of 13 employees, is inconsequential.
Accordingly, we shall order that the election be set
aside and direct that a second election be held.
ORDER
The representation cases, initiated by petitions filed
November 30, 1966, led to an election, held January 24,
1967, to which objections were subsequently filed raising,
insofar as here relevant, issues similar to those presented
in the unfair labor practice case.
Upon the entire record in these cases ' including my
observation of the witnesses, and after due consideration
of the briefs filed by the General Counsel and by Re-
spondent, I make the following:
FINDINGS OF FACT
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the Recom-
mended Order of the Trial Examiner , as modified
below, and hereby orders that the Respondent,
A.T.I. Warehouse, Inc., Toledo, Ohio, its officers,
agents , successors, and assigns , shall take the ac-
tion set forth in the Trial Examiner's Recom-
mended Order, as herein modified:
1. Add the following as phrase A,1(e) to the Trial
Examiner's Recommended Order, and reletter the
present phrase (e) to (f).
"(e) discriminatorily enforcing its no-solicitation
rule against union adherents ...."5
2. Delete paragraph C of the Trial Examiner's
Recommended Order and substitute the following
therefor:
"(C) IT IS HEREBY ORDERED that the election
conducted on January 24, 1967, be, and it hereby
is, set aside."
3. Amend the address appearing at the bottom
of the notice to read "Federal Office Building,
Room 1695, 1240 East Ninth Street, Cleveland,
Ohio 44199, Telephone 522-3738."
[Direction of Second Election6 omitted from
publication.]
5 After the word "Board," in the WE WILL NOT paragraph of the notice,
the following phrase should be added : "or discriminatorily enforcing its
no-solicitation rule against union adherents."
6 An election 'bligibility list, containing the names and addresses of all
the eligible voters, must be filed by the Employer with the Regional
Director for Region 8 within 7 days after the date of issuance of the
Notice of Second Election by the Regional Director . The Regional
Director shall make the list available to all parties to the election. No ex-
tension of time to file this list shall be granted by the Regional Director ex-
cept in extraordinary circumstances . Failure to comply with this require-
ment shall be grounds for setting aside the election whenever proper ob-
jections are filed. Excelsior Underwear Inc., 156 NLRB 1236.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
FREDERICK U. REEL, Trial Examiner: This proceeding,
consolidated by order of the Regional Director, was
heard at Toledo, Ohio, on May 23 and 24, 1967. The un-
fair labor practice case, consisting of alleged interference
with employees' Section 7 rights and an alleged unlawful
refusal to bargain, originated with charges filed the
preceding February 6, and a complaint issued March 23.
I. THE BUSINESS OF THE RESPONDENT AND THE LABOR
ORGANIZATION INVOLVED
Respondent , herein called the Company, an Ohio cor-
poration , engaged at-Toledo in the wholesale sale and dis-
tribution of automotive supplies and equipment , annually
ships products valued in excess of $50,000 to points out-
side the State, and is an employer engaged in commerce
within the meaning of Section 2 (6) and (7) of the Act. The
Charging Party, herein called the Union , is a labor or-
ganization within the meaning of Section 2(5) of the Act.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Union Organizes , Seeks Recognition , and Loses
the Election
Late in October 1966 2 employee Allen Gauthier
(whose status as an alleged supervisor at that time is
discussed, infra) commenced organizing activities on be-
half of the Union. By November 16, the Union had ob-
tained signed authorization cards from 6 employees (in-
cluding Gauthier, who by this date had been transferred
to a position which all parties agree was nonsupervisory)
in the 13-employee warehouse unit ultimately agreed to
as appropriate. The obtaining of a seventh card, that of
Richard Cherry, is discussed below, but for reasons
hereinafter set forth I find that it could not be counted in
computing the Union's majority status until December
18.
On November 16, two union representatives called at
the office of Company President Shrader, told him that
they represented a majority of his warehouse employees,
and requested recognition. At this time they handed him
a letter which, in addition to repeating their claim of
majority and request for recognition, also contained an
offer to submit the authorization cards to an impartial per-
son for examination and count. While the union represen-
tatives were in his office, and indeed at their suggestion,
Shrader telephoned his counsel, James Fazekas, who
spoke to the union representatives and agreed to get in
touch with them in a few days. Later that month Fazekas
'
After the close of the hearing, Respondent moved to introduce as an
exhibit the transcript of a portion of a tape-recorded conversation between
its president and its counsel , in which the two men indicated their readi-
ness to bargain with the, Union if it won the election. As will appear infra,
General Counsel introduced other portions of that "tape," consisting of
interviews between management and certain employees . As I regard the
entire magnetic tape as a single document , I will admit the exhibit, over
objection, as Resp. Exh. 13, but I regard it as having little, if any, proba-
tive value, and have not relied on it in reaching the result in this case. -
2 Subsequent dates in this narrative refer to the fall and winter of
1966-67. -
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
advised the Union that the Company would not extend
recognition unless and until the Union won a Board elec-
tion. On November 30, both the Company and the Union
filed petitions for an election. After a hearing on
December 15, devoted primarily to determination of the
bargaining unit, the Regional Director on January 15,
1967, ordered that an election be held on January 24.
Prior to the election, three_union supporters-Gauthier,
Ferris, and Ramirez-were discharged. The reasons for
the discharges are not disclosed in the record, but the Re-
gional Director, upon investigation, apparently found no
merit in the charge that the discharges violated the Act.
The Union lost the election, 7 to 3. General Counsel
urges, however, that the Union had enjoyed majority sup-
port at a time when the Company had had no good-faith
doubt thereof, and that in any event the Company en-
gaged in acts of interference, restraint, and coercion of
employees so that a bargaining order, based on the
Union's preelection majority, should issue to restore the
status quo ante.
B. The Union's Majority Status
1. The bargaining unit
The Union's initial written request for bargaining
described the unit as embracing "warehouse workers,
truckdrivers, checkers, shipping clerk, receiver, stock
pullers, fork-lift drivers." The Company employed no
forklift operators and had no classification of "shipping
clerk" or "checker." Company President Shrader
testified that on the date of the Union's initial demand for
bargaining in mid-November, and on January 5, the date
of the Regional Director's determination of the ap-
propriate unit, the Company employed 13 named in-
dividuals as "warehouse workers" (including three who
were also truckdrivers). At the hearing on the representa-
tion petitions the Company sought the inclusion, and the
Union sought the exclusion, of office clericals and outside
salesmen. The Union in its petition included the catego-
ries it had named in its original demand, and added the
"counterman." The Regional Director declared the fol-
lowing unit appropriate:
All warehouse employees, truckdrivers, inventory
control clerks, the assistant manager of inventory
control and the counterman... excluding office cler-
ical employees, [and] routemen....
At the hearing before me, the parties stipulated that this
unit was appropriate. This unit consisted of the 13 em-
ployees identified as "warehouse workers," referred to
above.
2. The validity of the cards
a. Gauthier's supervisory status
At the end of October 1966, Allen Gauthier was ac-
tively engaged in organizing for the Union. He signed a
card, procured the signatures of several other employees,
and campaigned in the Union's behalf. In mid-November
Gauthier became the "counterman," a nonsupervisory
position. The Company contends, and General Counsel
denies, that prior to this transfer, and hence at a time
when he was organizing for the Union, Gauthier was a
"supervisor," and the Union's claimed majority is
"tainted" by that fact.
Gauthier during the period in question was the
"warehouse manager," dispatching the truckdrivers in
the morning and handling their inquiries during the day.
His testimony minimizes the importance of his job, as he
needed approval for any major deviations from the rou-
tine, and found that his efforts to "order" the men were
not respected. On the other hand, there is some testimony
that his views as to the discharge of employees were
given weight, and that he directed the employees in their
work. I find it unnecessary to go into detail as to Gauthi-
er's work, however, for as early as August 1966, long be-
fore the Union activity, the Company posted a notice ad-
vising all employees that Gauthier was "in complete
charge of the warehouse" from 6 a.m. to 4 p.m. and that
"all drivers and warehouse people are expected to report
to him and are under his control" The same notice
recited that one Calvin Huffman, who all parties agree
was a supervisor, would assume the same duties and
would be in charge after 4 p.m. In the light of this notice,
I find that in the weeks immediately preceding November
16, 1966, Gauthier was a supervisory employee.3
b. Richard Cherry's card
Cherry, a part-time employee, signed a union
authorization card at Gauthier's urging sometime in
November. The card is dated November 22, but Cherry
testified that the date is not in his writing and that he
signed it "right after the girls signed theirs," which places
the date as on or "right after" November 14. Gauthier
testified that Cherry dated the card himself. The record
is clear that Cherry, shortly after he signed the card,
asked Gauthier to return it, and according to Cherry this
occurred the day after he signed the card and before a
conversation, hereinafter described, between him and one
Rodney Chryst, which occurred on November 17. Upon
considering all the facts, I find that Cherry's card was
signed November 14 or 15.
As noted, Cherry asked Gauthier to return the card.
According to Cherry, he did this the day after he signed
after thinking the matter over and talking to his father.
Gauthier persuaded Cherry to hear the Union's "side"
before definitely making up his mind, and Cherry agreed
to let Gauthier keep the card for this purpose. On
December 13, Company President Shrader in a speech
to the employees made clear the Company's opposition
to the advent of the Union. However, after a union meet-
ing on Sunday, December 18, Cherry decided to support
the Union, and after a discussion in the parking lot with
several union adherents, Cherry told Gauthier to forward
Cherry's card to the Union, thus ratifying an action which
Gauthier had mistakenly taken late in November.
After the December 18 meeting the union supporters,
who congregated in the parking lot and spoke in support
of the Union, included employees Gauthier (no longer a
supervisor), Pacelli, Joyce Davis, Carole Ferris, and John
Padrutt. Another union supporter, Jane Ramirez, who
had signed a card at Gauthier's urging on November 14,
was listed by Cherry, a company witness, as one of those
who "had their minds made up" for the Union by mid-
3 It may also be noted that Pacelli, a witness for General Counsel,
testified that Gauthier would give him orders such as to "pull orders, if I
didn't have anything to do, or work on the trucks, help load trucks, what
run I would take, things like that."
A.T.I. WAREHOUSE, INC. 583
December . In short , as of December 18, the record
establishes that, counting Cherry, 7 of the 13 employees
in the unit were for the Union.
1
C. Alleged Interference, Restraint, and Coercion
1. Prior to the filing of the representation petition
Although the complaint alleges various infringements
of Section 8(a)(1) occurring on and after December 5, the
testimony establishes that some of the conduct involved
occurred on or about November 17, before the filing of
the representation petitions. At that time, Rodney
Chryst, an officer of the Company and son-in-law of
Company President Shrader, spoke in the early evening
to part-time employees Cherry and Padrutt, and later in
the evening to employees Davis and Ferris. Cherry, a
witness for the Company, testified that Chryst told him
and Padrutt that if the Union came in, they as part-time
employees would lose their jobs or get laid off. Later Fer-
ris overheard Chryst say over the telephone to his father-
in-law, Company President Shrader, "I have talked to
two of them. I think I have got two of them on our side,
and I am talking to the others later."
Later that evening, Chryst, who was substituting on
that occasion for Huffman, a supervisor who was ill,
talked with Ferris and Davis. The former described the
conversation as follows:
Well, he asked, he told us that men had been out to
talk to Mr. Shrader, the man from the Union had
come out and talked to Mr. Shrader, and he told us
that he had talked to the boys earlier in the evening
and he wanted to talk to us about the Union, and he
asked us who started the Union, and we didn't
answer him.
He said, "Well, that's okay, I pretty well know,"
he said, "I have talked to Al and he is coming around
and changing his way of thinking." Then he went on
and he told us that we should think of the boys,
because if the Union did get in, because they were
part-time help, they would be laid off. Then he told
us that the night shift, if the Union got in, that the
night shift-we worked, nights, and the night shift
would be, eliminated, and that we would be replaced
by men on days.
And he said, "I am sure you wouldn't want to lose
your job,"' he said, "I am sure you need a job or
otherwise you wouldn't be working," and he told us
that'a Union wouldn't help us, that the place was too
small for a Union and that we could have-form our
own Company Union, that we didn't need any out-
siders, and he told us that he understood the situation
better than we did because he was in the family and
that IMr. Shrader couldn't afford to pay Union wages;
that if the Union did come in, that because he
couldn't afford to pay us Union wages, then he would
have to close down.
Davis' testimony substantially corroborated that of
Ferris, and Chryst did not directly deny making the state-
ments attributed to him, although his account of the con-
versation was more cryptic. I credit Ferris as quoted
above.
The Company is plainly responsible for Chryst's state-
ments even assuming, arguendo, that he was not regularly
employed as a supervisor, for Chryst was not only an of-
ficer of 'the corporation, son-in-law of the president, and
acting as a supervisor on the evening in question, but was
heard to report to the company president about the proba-
ble success of his antiunion threats. Cf. N.L.R.B. v. Des
Moines Foods , Inc., 296 F.2d 285 , 286-288 (C.A. 8),
and cases cited. In any event Company President
Shrader, testifying at the hearing in the representation
case, repeatedly indentified Chryst as a supervisor.
2. Subsequent to the filing of the representation petitions
a. Hernandez' interviews
Early in December, acting at the direct request of Com-
pany President Shrader, one George Hernandez spoke to
employees Ferris and Ramirez about the Union and then
reported the conversation back to Shrader. Hernandez
was the service manager for Shrader Tire & Oil Com-
pany, a corporation headed by Shrader's son, which occu-
pied adjacent premises and is the principal customer of
the Company. In the course of his conversation with
Ramirez, Hernandez said that if the employees tried to
get he Union in they "might get fired for it." He also told
he that if the Company could not meet the Union's de-
,nds, the Company would "have to close up and
,verybody would lose their jobs." Hernandez asked Fer-
ris how she felt about the Union, told her "the place was
too small to have a union," and that "we could just form
our own union with just the employees."
The Company, having sent Hernandez on his mission
to the employees, is plainly responsible for his state-
ments.
b. The interviews in the office
On December 19, Company President Shrader and his
attorney, Robert Affeldt, interviewed several employees
in Shrader's office. In the course of interviewing Gauthi-
er, Affeldt asked if Gauthier was aware of a rule recently
posted restricting distribution and solicitation. Gauthier
replied that he was, and the interview continued:
Affeldt: And have you been soliciting since then?
Gauthier: No sir.
Affeldt: We don't care what you do on company
premises on nonworking time - your lunch
period-we are only concerned about one thing: Did
you solicit or talk to anybody in the plant concerning
union matters during working time in the working
area.
Gauthier: No!
Affeldt: Did you solicit any literature whatsoever?
Gauthier: No!
Affeldt: All right. Did you threaten with job loss
anybody in this plant who refused to join the union?
Gauthier: No.
In an interview with employee Padrutt, Affeldt inquired
as follows:
Affeldt: There's been rumors throughout the plant
that you've been distributing cards. Is that true?
Padrutt: No, it isn't.
Affeldt: Have you at all solicited anyone in the
Union?
Padrutt: I have not.
Later in the Padrutt interview the following exchange oc-
currcd:
Affeldt: But you read the notice. You said-
Padrutt: I mean I was aware of it after Saturday,
yes.
Affeldt: And after Saturday someone talked to you
concerning it, right?
584 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Padrutt: Not- not on company time, no.
Affeldt: During your lunch hour you mean?
Padrutt: No. Nobody's-nobody talked to me
Saturday... and I just got here now- today.
Affeldt: All right. As far as we're concerned you
have a right to talk about union activities in the plant
during your own time-your own time. You have no
right for any of you people to distribute literature-
Shrader: John has no time here at all. He works
from 4 o'clock to 8. He has no lunch time so....
Affeldt and Shrader also interviewed , as a group,
Ferris, Ramirez , and Davis on December 19, but merely
emphasized that the no-solicitation, no-distribution rule
applied to working time and work areas.
On February 13, 1967, apparently in preparation for a
Board investigation of the unfair labor practice charge
and of the Union's objections to the election, Affeldt and
Shrader interviewed Supervisor Huffman and employee
Irene Padilla. The latter interview was devoted primarily
to the Company's effort to learn from Padilla the details
of various telephone conversations she had with Ferris
about the Union in January, after Ferris was laid off. The
Huffman interview was devoted primarily to preparing
Huffman for his interview with the Board's field ex-
aminer. When Huffman expressed fear that the Union
would "hold it against" him if he gave information ad-
verse to it, Affeldt said : "Believe me when I say this
much , I can tell you, no Union 's coming in this plant, that
is a guarantee ... I don't care if they won everything,
they still wouldn't come in here, believe me."4 Later in
the interview Affeldt directly counseled Huffman to con-
ceal from the Board investigator the extent to which
Huffman was involved in the union activity. The text of
the interview reads as follows:
Affeldt: In other words, let's not bring up the fact
that he [Shrader] mentioned anything about the
girls.
Huffman: About the girls where?
Affeldt: Oh, pressuring you-because then ...
Huffman: Well I mean-they [the Board] will ask
me that.
Affeldt: Yea.
Huffman: And for me to say no, my answer would
have to be no.
Affeldt: That's right. Because frankly, if you said
yes it would help us insofar as the fact that we've got
another thing on the girls-they violated the
rule- but I don 't want to get you involved.
[Interruption by unknown individual from out-
side the office.]
Affeldt: So, I think very frankly all around-it
really doesn't mean much, but- I just- you get my
point-in other words, just don't say anything about
the girls pressuring you, just say Gauthier did- leave
the girls alone.
Huffman : Yea, well actually the girls did, but let's
just say Al did.
Affeldt: Pardon?
Huffman: Well let's- I'll just tell them that Al did.
Affeldt: Yea, yea, well that lets that out.
D. Concluding Findings
1. As to Section 8(a)(5)
As noted above, Richard Cherry temporarily revoked
* On an earlier occasion Affeldt and Shrader had privately agreed that
if the Union won the election the Company would bargain with it. See
footnote 1, supra.
his designation of the Union before the Company com-
mitted any unfair labor practices, and his card may not be
counted toward the Union's majority until December 18,
when he again authorized its submission. On that date the
Union for the first time had a majority of valid signed
cards. Some of those cards had been procured by Gauthi-
er when he was a supervisor, and the Company argues
that for that reason they should not be deemed valid. But
Gauthier had stopped being a supervisor on November
16, and on December 13 the Company had manifested its
wholehearted opposition to the Union. In the light of
these circumstances the employees' manifestation on
December 18 of their continued support of the Union
cannot be attributed to any supervisory pressure, and the
Union's uncoerced majority as of that date is therefore
established. Cf. N.L.R.B. v. Douglas County Electric
Membership Corp., 358 F.2d 125, 130-131 (C.A. 5);
International Union, U.A.W. [Aero Corporation] v.
N.L.R.B., 363 F.2d 702,707-708 (C.A.D.C.).
As of December 18, moreover, the Union had
requested the Company to recognize it as the representa-
tive of the employees in the appropriate unit. The petition
it had filed with the Board had included several categories
not employed by the Company, and had not specified cer-
tain classifications connected with inventory control who
were later included in the unit now agreed to as ap-
propriate. But Company President Shrader's testimony
makes it clear that he understood from the language em-
ployed by the Union in describing the unit that the unit
consisted of the 13 employees, as later agreed to. The
Company's defense based on the inadequacy or in-
definiteness of the unit described in the Union's request
must therefore fall. See Priced-Less Discount Foods,
Inc., 157 NLRB 1143, 1145, footnote 11; Arkansas
Grain Corporation, 163 NLRB 625, footnote 46.
As of December 18, 1966, therefore, the Union
represented a majority of the employees in the unit, and
its request for recognition was before the Company, not
only by virtue of the Union's demand of November 16,
but also through the then pending petition for certifica-
tion. In the absence of other unfair labor practices, how-
ever, it would seem in the circumstances of this case that
the Company's continued refusal to bargain and in-
sistence upon an election would not violate Section
8(a)(5) of the Act. To be sure there is some evidence, con-
sisting of Affeldt's statement to Huffman some 2 months
later, that the Company was so fundamentally opposed to
the principles of the Act.that it would not deal with the
Union if the latter "won everything," but even such a
hostile attitude would not have established a violation
prior to December 18, 1966, when the Union did not in
fact have a majority. Indeed, if the Company had recog-
nized the Union prior to that date, the Company would
have been guilty of unlawfully assisting the Union.
I.L.G.W.U. [Bernhard Altmann Texas Corp.] v.
N.L.R.B., 366 U.S. 731. The line between violation of
Section 8(a)(2) and Section 8(a)(5) is narrow enough at
times without requiring an employer to keep track (short
of unlawful interrogation or surveillance) of the vacilla-
tions of an employee like Cherry, on whose "conversion"
or "reconversion" the Union's majority hinges. Indeed,
a majority thus attained may well be lost by the date of
the election, and, so far as Section 8(a)(5) is concerned,
the Company was within its rights after December 18 as
A.T.I. WAREHOUSE, INC. 585
well as before in letting the representation question abide
the election. Whether the alleged violations of Section
8(a)(1) lead to a bargaining order to restore the status ex-
isting before the election is a matter to which we now
turn.
2. As to Section 8(a)(1)
Rodney Chryst's statements to four employees on
November 17 that the advent of the Union could cost
them their jobs violated Section 8(a)(1) of the Act, as did
his questions of some of them as to who started the
Union. Chryst's statements were made before the Union
filed its petition for certification, and therefore cannot be
relied on as grounds for setting aside the election.
Hernandez' statements to Ramirez that "if we tried to
get the Union in, we might get fired for it," and his inter-
rogation of Ferris and suggestion that the employees
could form their own union likewise violated Section
8(a)(1) of the Act.
With respect to the interviews of Gauthier and Padrutt,
General Counsel points out that although the company
representatives at times during the interviews correctly
stated that the company rule against solicitation and dis-
tribution was limited to working time, they also asked
questions which probed into the employee's union activi-
ty during nonworking hours. Such inquiries would appear
to transgress Section 8(a)(1).
I cannot agree with General Counsel, however, that the
interviews show any disparate enforcement of the no-sol-
icitation rule. This contention rests on the fact that prou-
nion employees Ferris, Ramirez, and Davis were inter-
viewed on the subject, whereas antiunion employees
were merely cautioned by their supervisor not to discuss
the Union during working time. The latter episode, how-
ever, occurred several weeks after the interviews of Fer-
ris, Ramirez, and Davis, and falls far short of showing
disparate treatment. Hernandez' suggestion to Ramirez
that she persuade other employees to oppose the Union
likewise falls short of establishing any disparate applica-
tion of the no-soliciatation rule, for even if the rule existed
at that time (a matter far from clear on this record),
nothing in Ramirez' testimony indicates that she was told
to use working time for this purpose. Hernandez' own
conduct, at the request of the company president, in
discussing the Union on company time would suggest
disparate application of the rule, but as just noted, the rule
may not have been formalized at that time, and in any
event under the Avondale case (N.L.R.B. v. United
Steelworkers of America [Nutone Inc.], 357 U.S. 357,
362-364), the illegality of Hernandez' conduct, already
found, does not establish unlawful application of the no-
solicitation rule.
The interviews with Padilla and Huffman, occurring in
February after the election, would not furnish a basis for
a bargaining order resting on conduct which prevented a
fair election. The interview with Padilla was twice
prefaced with the comment that she need not discuss the
matter at all, and then was concerned largely with her
conversations shortly before and shortly after the election
with employees who at the time of the election had
recently been discharged. I find no violation of the Act in
the Padilla interview. In the Huffman interview, on the
other hand, the Company brought pressure to bear on its
supervisor to induce him to mislead, and to withhold in-
formation from, the Board investigator. Such conduct
designed to impede a proceeding looking toward the vin-
dication of statutory rights, violates Section 8(a)(1) of the
Act. Cf. N.L.R.B. v. Better Monkey Grip Company, 243
F.2d 836 (C.A. 5), cert. denied 355 U.S. 864; Grand-
Central Chrysler, Inc., 155 NLRB 185, 188.
Although I have found several violations of Section
8(a)(1), I am of the view that they are not of the degree
necessary to warrant the imposition of a bargaining order.
See Wagner Industrial Products Company, 162 NLRB
1349; Hammond & Irving, Incorporated, 154 NLRB
1071; Clermont's, Inc., 154 NLRB 1397; Harvard
Coated Products Co., 156 NLRB 162. The entire conge-
ries of facts seems to me to point in this direction.
The most serious violations of Section 8(a)(1) were
Chryst's statements on November 17 to Padrutt, Cherry,
Ferris, and Davis. It would be somewhat incongruous,
although perhaps lawful, to hold that these statements,
made before the Union filed its petition for certification,
could not be relied on to set aside the election, but could
be relied on to support a bargaining order if the election
is set aside for other reasons. Also, the impact of Chryst's
statements was manifestly negligible as all four of the em-
ployees to whom he spoke were supporting the Union a
month later. The violations of the Act inherent in Her-
nandez' statements to Ramirez and Ferris were less seri-
ous than those of Chryst and were no more effective in
dissuading them from support of the Union. The "effec-
tiveness" of the unlawful statement, not an element in
determing whether it violated the Act, may properly be
weighed in determining whether a bargaining order
should be based thereon. The interviews with Gauthier
and Padrutt contained questions which went beyond legal
limits, but cannot be said to have had an impact sufficient
to justify a bargaining order. Indeed, all the 8(a)(1) viola-
tions found in this case do not reach the level found insuf-
ficient to justify a bargaining order in Hammond & Irving
and the other similar cases cited supra.
Finally, I note that the Union, which had the support of
seven employees in mid-December, lost three of those
employees by discharge prior to the election, and lost the
election 7 to 3.5 Indeed, of three of the four targets of un-
fair labor practices after the filing of the petition for cer-
tification (Gauthier, Padrutt, Ferris, and Ramirez), only
one (Padrutt) was an eligible voter. Normal turnover of
employees is not a basis for withholding a bargaining
order, but where the order can only be justified as a
remedy for 8(a)(1) conduct and to restore the status exist-
ing prior thereto, it is not altogether irrelevant to note that
the Union's loss of majority appears directly attributable
to the nondiscriminatory discharge of its supporters
rather than to apparently ineffectual, although illegal,
statements of company agents. Finally, I note that if the
election is not set aside (see infra), a bargaining order
may not issue. See Irving Air Chute Company, 149
NLRB 627, 630; Kolpin Bros. Co., 149 NLRB 1378,
1380.
CONCLUSIONS OF LAW
1. By threatening and interrogating employees with
respect to their union activities, and by inducing a super-
visor to withhold information from a Labor Board agent
5 The Regional Director found no merit in the charge that these
discharges were unlawfully motivated , and that issue is not before me.
586 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigating a charge of unfair labor practices , the Com-
pany has engaged in unfair labor practices affecting com-
merce within the meaning of Section 8(a)(1) and Section
2(6) and (7) of the Act.
2. The Company's refusal to bargain with the Union
was not an unfair labor practice.
THE REMEDY
I shall recommend that the Company cease and desist
from its unfair labor practices and from like or related
conduct and that it post an appropriate notice.
With respect to the election, I shall recommend that the
Board certify the results thereof. The conduct which
might warrant setting aside the election is that of Hernan-
dez and the interviews of Gauthier and Padrutt. Taken
together they seem too inconsequential to warrant setting
aside the election. In any event, this matter, as usual, bor-
ders on the academic , as whether or not the election is set
aside, it is highly unlikely that another election would be
held prior to January 24, 1968, by which date a valid elec-
tion could be held even if the first election stands.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record in this case, I therefore
recommend, pursuant to Section 10(c) of the Act, is-
suance of the following:
ORDER
A. Respondent, A.T.I. Warehouse, Inc., its officers,
agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating employees as to their union activities
or those of fellow employees, (b) threatening employees
that advent of a union would result in their losing their
jobs, (c) suggesting to employees that they form a labor
organization of their own, (d) inducing any person to
withhold information from, or deliberately to mislead,
agents of the National Labor Relations Board investigat-
ing charges filed under the National Labor Relations Act,
and (e) in any like or related manner interfering with,
restraining , or coercing employees in their exercise of
their rights under Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Post at its warehouse, at Toledo, Ohio, copies of
the attached notice marked "Appendix." Copies of such
notice, on forms provided by the Regional Director for
Region 8, after being duly signed by an authorized
representative of the Respondent, shall be posted im-
mediately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
the Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 8, in writ-
ing, within 20 days from the date of the receipt of this
Decision, what steps the Respondent has taken to comply
herewith.7
B. The complaint insofar as it alleges a violation of
Section 8(a)(5) of the Act is dismissed.
C. The objections to the election are overruled, and it
is hereby certified that a majority of votes were not cast
for the labor organization.
6 In the event that this Recommended Order is adopted by the Board,
the words "a Decision and Order" shall be substituted for the words "the
Recommended Order of a Trial Examiner" in the notice . In the further
event that the Board 's Order is enforced by a decree of a United States
Court of Appeals, the words "a Decree of the United States Court of Ap-
peals Enforcing an Order" shall be substituted for the words "a Decision
and Order."
' In the event that this Recommended Order is adopted by the Board,
this provision shall be modified to read : "Notify the Regional Director for
Region 8, in writing, within 10 days from the date of this Order, what steps
Respondent has taken to comply herewith."
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to the Recommended Order of a Trial Ex-
aminer of the National Labor Relations Board and in
order to effectuate the policies of the National Labor
Relations Act, as amended, we hereby notify our em-
ployees that:
All our employees have the right to join or assist Inter-
national Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America, Local 20, or any
other union. They also have the right not to join or assist
any union.
WE WILL NOT question any employee as to his
union activity or that of fellow employees, threaten
any employee that he or other employees will lose
their jobs if a union became the bargaining represent-
ative of the employees, suggest that employees form
their own labor organization, instruct any person in
our employ what information to give and what to
withhold from investigators of the Board, or in any
similar manner interfere with our employees in the
exercise of their right to join, or not to join a union.
A.T.I. WAREHOUSE,
INC.
(Employer)
Dated By
(Representative) (Title)
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
If employees have any question concerning this notice
or compliance with its provisions, they may communicate
directly with the Board's Regional Office, 720 Bulkley
Building, 1501 Euclid Avenue, Cleveland, Ohio 44115,
Telephone 621-4465.