Automated Products, Inc.

National Labor Relations Board - Board Decisions

May 21, 1979

242 N.L.R.B. 424 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Automated Products, Inc. and United Brotherhood of
Carpenters & Joiners of America, AFL-CIO. Cases
30-CA-4750 and 30-RC-3331
May 21, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND TRUESDALE
On February 23, 1979, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs. The
Charging Party and Respondent filed answering
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions 2 of the Administrative Law Judge and to
adopt his recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative Law Judge and hereby or-
ders that the Respondent, Automated Products, Inc.,
Marshfield, Wisconsin, its officers, agents, successors,
and assigns, shall take the action set forth in the said
recommended Order.
IT IS FURTHER ORDERED that the complaint be dis-
missed as to any alleged violations of the Act not
found herein.
I The Administrative Law Judge, in the section entitled "Threat to Elimi-
nate the Night Shift," inadvertently refers to Williams as wegner. In the
section entitled "Wage Increase" he states that "Bell credibly testified that he
originally considered April 10, as the effective date of the raise but he post-
poned the effective date to April 17 because of the inability of the payroll
clerk to implement the raise on or about April 10." The record, however,
reflects that Bell had considered April 10 as an alternative date to announce
a new wage scale to be implemented on April 17, and that he changed the
date of' the announcement to April 5 when the payroll clerk informed him
that April 10 would not give her enough lead time to put the raise into effect
on April 17. These errors do not, however. affect he Administrative Law
Judge's findings and conclusions which we adopt
2 Member Murphy notes that the Administrative La, Judge cited Alvin J.
Bart and Co., Inc., 236 NLRB 242 1978). in which she dissented, to support
his admitting into evidence certain pretrial affidavits. While she agrees that
said statements were properly admitted, she does not rel) on that decision in
doing so. The issue under consideration concerned the impeaching and dis-
crediting of a witness' testimony and not establishing as fact a statement in
the affidavit contrary to the witness' testimony. Bart and Co, is, she holds.
therefore irrelevant with respect o the matter for which it was cited by the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election held on
June 8, 1978, in Case 30-RC-3331 be, and it hereby
is, set aside and that a new election be directed
therein as set forth below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION
STA'IEMENI OF IHE CASE
THOMAS R. WILKS, Administrative Law Judge: A hear-
ing in this consolidated proceeding was held on October 3,
1978, in Marshfield, Wisconsin, based upon a charge filed
against Automated Products, Inc. (herein Respondent), on
June 16, 1978, by United Brotherhood of Carpenters &
Joiners of America, AFL CIO (herein Union), and a com-
plaint subsequently issued by the Regional Director alleg-
ing that Respondent violated Section 8(a)(1) of the Na-
tional Labor Relations Act, as amended, by announcing
and effectuating a wage increase in order to frustrate union
organizational activity: by threatening employees with
plant closure, elimination of the night shift, and loss of job
security if the Union were elected: by interrogating an em-
ployee regarding union support; and by disseminating and
maintaining an invalid no-distribution rule.
Pursuant to a petition filed on April 17, 1978, and a
Stipulation for Certification Upon Consent Election ex-
ecuted by the parties and approved by the Regional Direc-
tor on May 10, 1978, an election by secret ballot was held in
Case 30-RC--3331 on June 8 in the following unit:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its 1812 Karau Drive, Marshfield, Wisconsin, location,
including production related technicians and
truckdrivers; but excluding office clerical employees,
managerial and professional employees, plant manag-
ers. forepersons, guards and supervisors as defined in
the Act, and all other employees.
The tally of ballots disclosed that of' approximately 68
eligible voters, 24 casl ballots for and 36 cast ballots against
the Union. Challenged ballots were not determinative. On
June 13 the Union timely filed objections to conduct affect-
ing the results of the election. On August 1, 1978, the Re-
gional Director issued the Order Consolidating Cases and
Notice of Hearing on Objections because of the identity of
issues raised by the objections with those issues raised by
the complaint. The objections are as follows:
THE OBJE('IIONS
(I) the emnployer/supervisory personnel stated that
they would close the doors because the), couldn't af-
ford the union.
(3) the employer/supervisory personnel posted
wage notice on raise which was not due until June.
(4) statement was made to one employee that if he
wanted job security vote "no" at the election.
242 NLRB No. 80
424
AUTOMATED PRODUCTS, INC.
(5) employer/supervisory personnel threatened an
employee that if the union came in the night crew
would be done away with.
* *
(8) by these and other actions, the employer/super-
visory personnel interfered with the election.
The objections did not explicitly refer to the maintenance
of an invalid no-distribution rule; however, Objection 8 al-
leged interference with the election "by these and other ac-
tions," and Respondent had filed no motion for a bill of
particulars as to Objection 8, nor a motion to dismiss Ob-
jection 8 on the grounds of lack of specificity. It is clear that
objectionable conduct discovered by the Regional Director
during the course of his investigation but which was not
specifically alleged as objectionable may nevertheless be
considered by him. Thomas Products Co., Division of
Thomas Industries, Inc., 169 NLRB 706 (1968). The Gen-
eral Counsel alleges that all conduct alleged as violative of
the Act interfered with the employees' free choice in the
election. Accordingly, I shall evaluate the allegation regard-
ing the invalid no-distribution rule as election interference
and objectionable conduct as well as whether it constitutes
a violation of the Act.
On the entire record in this case, including my observa-
tion of the witnesses and their demeanor while testifying, in
consideration of the inherent probability of all aspects of
their testimonies, and after due consideration of the briefs
submitted by all parties, I make the following:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a Wisconsin corporation, maintains its only
place of business in Marshfield, Wisconsin, where it is en-
gaged in the manufacture of wood trusses. Respondent
meets an appropriate jurisdictional Board standard, and all
parties agree and I find that it is an employer within Section
2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within Section 2(5) of
the Act.
III. THE UNFAIR LABOR PRACTICES
A. Wage Increases
Respondent has been engaged in the manufacture of mo-
bile home rafters for about 10 years. Such production in-
volves products of standardized proportions and set pro-
duction runs of relatively lengthy duration.
In mid-September 1977 Respondent's operation com-
menced a profound change by its entrance into the residen-
tial and commercial roof truss business. This type of busi-
ness entails different customers, different production
procedures, different and varying sizes of products, and dif-
ferent delivery dates, some of which involve a matter of
days from the date of order to the actual delivery date.
Concurrent with the change in business, there was also a
change in management and personnel. John Bujalski was
hired as a general manager of marketing. In October 1977
he became vice president of marketing. Bujalski had
brought with him 4 years of experience at Mid-West Dis-
tributors, a Division of the Menard Corporation where he
was a sales manager. Bujalski commenced the conversion of
the nature of Respondent's business and the necessary ex-
pansion of facilities and personnel that followed. From
about 38 employees in early spring of 1978, the ultimate
employment rose to the current 90 employees.' The existing
two plants were augmented by the construction of a third
plant which was completed in July 1978. By March 27, as a
result of a sales effort directed for new customers in the
residential and commercial field, Respondent experienced a
surge in new work orders. During the last 10 days of
March, five to six new work orders were received for work
never previously performed by Respondent. Between April
10 and May 10, 29 new employees were hired. In mid-April
a night shift was initiated.
John Bell was hired on February 3 as the corporate gen-
eral manager whose varied duties included the overall su-
pervision of production, sales, and the hiring of employees.
He had been employed previously at Mid-West Distribu-
tors as the truss plant manager and possessed some experi-
ence in personnel and labor matters. Bell testified credibly
that upon his hire he conferred with Respondent's board of
directors and discussed his plans for the conversion process.
He advised them that based upon his experience at Mid-
West Distributors, the wages at Respondent were too low.
and that higher wages were necessary to attract the large
number of new employees that were to be hired shortly. He
thereafter received approval to assemble a program for a
new wage format. He began working on March 6. In the
process of assembling a new wage scale, he discarded Re-
spondent's old system of merit wages as being too unwield?
and subjective. and instead he settled on a pay scale plan
based upon employment longevity. He testified without
contradiction that he settled upon a wage system and scale
that was comparable to the wages at Mid-West Distribu-
tors. His testimony as to the job market, the need for higher
wages to attract qualified employees, and the wages paid at
Mid-West Distributors was challenged.
At this point, the expectations of the employees should
be noted. On November 7, 1977. Bujalski had addressed the
employees at a group meeting. His testimony as to what he
told employees is more credible than the hesitant and un-
certain testimony of employee Craig Hayes. Where there is
a variance, I credit the more assured Bujalski. At that meet-
ing Bujalski announced that the employees would receive a
wage increase. He explained that the basis for granting the
increase was the 8-percent increase in the current cost of
living. He told them that some employees would receive an
8-percent raise and some would receive less. He also told
them that some would receive more than 8 percent. In the
past raises were given at 6-month intervals. Bujalski told
the employees that Respondent was to embark on rapid
and extensive changes in production and also with respect
to wage scale criteria. He also told them that another raise
I All dates are hereinafter 1978 unless otherwise stated.
425
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
would be granted in 6 months or sooner. According to
Hayes, the raise was supposed to have been put into effect
within I week after the speech but was delayed because of
some contingency until December. Thus, on or about De-
cember 5, 1977, a wage increase was given to employees.
The percentage of increase varied. Some employees re-
ceived less and some received more than 8 percent.
On March 7 Bell was introduced to the employees at a
group meeting in plant II. It is his uncontradicted and
credible testimony that he told the employees at that meet-
ing of his past experience at Mid-West Distributors, that he
told them of Respondent's expansion plans, and that he
also told them that he was developing an incentive program
and a new wage scale.
On March 8 Respondent mailed letters to its employees
which referred to an attached managerial chart of responsi-
bility and a set of work rules. These work rules had existed
in the past but were referred to in the letter as "new work
rules." The letter stated that work rules would be made
effective "March 8, 1978." The letter described the Respon-
dent as a "growing company," and mentioned that changes
"will come about in the future ... "; the letter also ended on
the expressed hope that the employee as well as the stock-
holder will benefit from the growth of the Company.
Thus, prior to the advent of the union organizing effort, it
is clear that Respondent was in the throes of an expansion
program, that employees were advised of it, and that they
were advised of coming profound changes with respect to
their pay scale. Under such circumstances, the subsequent
announcement of a wage increase is something that the em-
ployees could reasonably anticipate. Also under such cir-
cumstances, it is reasonable to conclude that the employees
would anticipate a wage increase that exceeded 8 percent
and one that might not necessarily hinge upon the old 6-
month pattern of raises.
The first union organizational activity apparently oc-
curred on or about March 28. Bell volunteered that he first
became aware of the union card solicitation on that date.
On April 5 a wage increase was announced to the employ-
ees in a group meeting conducted by Bujalski and Bell. The
effective date selected for the wage increase was April 17.
'lie starting rate was previously $3 per hour; it was raised
to $3.50. All employees received raises. Some received
somewhat more than 50 cents per hour and some somewhat
less than 50 cents per hour. Thus, Hayes received a raise
from $4 per hour to $4.50 per hour. The wage scale was
based upon longevity and was comparable to Mid-West
Distributors rates.
According to Bujalski and Bell, the raise was announced
without any reference to ongoing union activity; Bujalski
described the expansion program and the expected growth
of the Company, and Bell advised them of the new pay
scale to be effective April 17, based on longevity. Bell prom-
ised to post the seniority rosters so that each employee
could quickly discover his wage increase.
Of over 35 employees present at that meeting, only 2
were called upon by the General Counsel to testify as to
that meeting Craig Hayes and David Williams.2
2 illiams was promoted to yard foreman, a supervisory position, in Au-
gust.
Despite the announcement at the meeting of a substantial
raise and despite the uncontradicted testimonies of Bujalski
and Bell as to the expansive growth of the Company, Wil-
liams testified that Bujalski stated at the meeting that the
Company could not afford a raise at that time but could
afford it at a later date. He then testified that Bujalski
stated that Respondent could not make too many improve-
ments at that time, but that he did not think that the Union
could better the conditions for the employees. He then
abruptly testified that Bujalski announced a 50-cent raise.
Hayes testified that Bujalski referred to the Union, that
Respondent could not deal with the Union, that it would
not negotiate with the Union, that it was undergoing
"growing pains," that all employees were underpaid and
deserved raises, and that Respondent would have to close if
the Union succeeded in the attempt to organize employees.
He further testified that the employees were given two let-
ters at that meeting. One letter was the March 8 letter re-
garding the announced work rules, and the second letter,
dated April 10, contained Respondent's campaign position
against the Union. The General Counsel alleges that the
work rules were announced on March 8, by means of that
letter. Respondent's testimony is in accord with that con-
tention. It is unlikely that Respondent redistributed the let-
ter on April 5. As to the second letter of April 10, Bujalski
testified that it was composed and mailed to all employees
on April 10. He testified that nothing was distributed to the
employees at that meeting or at the two subsequent meet-
ings the Employer conducted during which it set forth its
position in the union organizing campaign.' Bujalski testi-
fied that all employees did, in fact, receive such letters on or
about April 10. He was not contradicted in this testimony.
It is unlikely that the letter dated April 10 was distributed
on two dates.
Hayes also testified with great emphasis that Bujalski
told the employees at the meeting that the Union had filed
a petition for an election, and that there would be an elec-
tion. This is highly improbable because the organizing ef-
fort was in its embryonic stage, and no petition had been
filed until April 17. 4
With respect to the April 10 letter, Hayes attempted to
explain his certitude on that point by recounting a conver-
sation he purportedly had with Bauman and employee
Wegner with regard to that letter. Bauman did not testify,
and Wegner, who was called to testify by the General
Counsel, did not testify to any aspect of the April 5 meet-
ing, and thus he did not corroborate Hayes.
Williams could recall nothing else about the meeting
other than his uncertain cryptic and noncontextual testi-
mony. His pretrial affidavit was admitted into evidence.'
His testimony therein is also cryptic and based on his sub-
jective perceptions rather than actual recollections, e.g., he
testified that Bujalski linked the closing of the plant with
Neither the General Counsel nor the Charging Party alleges that Respon-
dent engaged in any interference with employees' nghts by its conduct at
those two later meetings.
4In some confusion, Williams. at first in his cross-examination, indicated
that there may have been reference to a petition at the April 15 meeting; he
then conceded that he was probably confusing that meeting with a subse-
quent meeting conducted by Respondent.
See Alvin J. Bart and Co., Inc. 236 NLRB 242 (1978) Star Kisr Samoa,
Inc, 237 NL.RB 238 (1978).
426
AUTOMATED PRODUCTS. INC.
the Union "in so many words." The affidavit is completely
silent as to any distribution of letters at the April 5 meeting,
as to any reference to Board election or petition, or as to a
refusal by Respondent to negotiate with the Union. Wil-
liams' testimony in numerous other areas is also inconsis-
tent with that of Hayes. In his pretrial affidavit Hayes testi-
fied that Bujalski did not actually say that the Company
would close but that was "how I took it." Hayes' testimony
conflicts with his own affidavit in other areas and, in part, is
repudiated by him.
In sum, the testimonies of Hayes and Williams are incon-
sistent, internally inconsistent, and inherently improbable.,
Williams was unable to recall events. Hayes, who had been
reprimanded and subsequently discharged by Respondent,
was openly hostile and partisan in his testimony. He lacked
fluency and responsiveness. He repeatedly insisted upon
having questions posed in cross-examination read back to
him before he would venture an answer. His antipathy
toward Respondent was manifest in his demeanor.
Based upon the foregoing, I credit the testimonies of
Bujalski and Bell as to the April 5 meeting. Both were cer-
tain and detailed in recollection and responsive when being
questioned. Bell candidly volunteered having acquired
knowledge of union solicitation efforts despite the fact that
neither the General Counsel nor the Charging Party ad-
duced any evidence into the record as to that activity except
for the testimony of firstline foreman Kmiec, who signed a
union card prior to April 5.
Thus, I conclude that the raise was announced on April 5
without any mention of the Union, much less a threat to
close the plant.
The question remains, however, whether Respondent ac-
celerated and/or exaggerated the wage increase upon learn-
ing of the union activity on March 28. Bell testified that he
had prepared the wage scale, had presented it to the board
of directors, and had obtained approval from them on
March 27. The minutes of the board of director's meeting
corroborated his testimony as does Bujalski's testimony
that on March 24 he and Bell consulted and decided that
Bell would proceed to present the recommendation to the
board of directors. As to the date of the announcement, the
General Counsel argues that the announcement was calcu-
lated to precede a union meeting of April 6. However, there
is no evidence that a union meeting was ever held on April
6 or that it was ever announced to be held on that date. Bell
testified that he accelerated the employee meeting from
April 7 to April 5 upon his discovery that Bujalski was to
be absent on April 7 for business reasons. Bell credibly tes-
tified that he originally considered April 10 as the effective
date of the raise, but he postponed the effective date to
April 17 because of the inability of the payroll clerk to
implement the raise on or about April 10. I see nothing
absurd or suspicious in this explanation.
I cannot conclude that the raise was accelerated to com-
bat the Union's efforts. I credit Respondent's witnesses' tes-
timonies that the raise was implemented at that particular
6 For example, it is extremely unlikely that Respondent would, in one
breath, speak of its inability to grant wage increases and growing pains,
while at the same time announce a substantial wage increase. It is also un-
likely that Respondent would have referred to an election date and to a
petition that had not et been filed.
point because of necessity to have an attractive wage scale
in effect at a time when Respondent was about to engage in
the massive hiring of new employees at the outset of the
new construction season. There is nothing in the record to
challenge the testimony that higher wages were necessary to
attract qualified employees to be utilized by Respondent in
its new field of operations. All the employees were led to
believe that an entirely new wage scale was imminent. Had
Respondent deferred action because of the union activit\.
Respondent may well have put itself in jeopardy of being
accused of an attempt to penalize employees fir engaging
in union activity. Had Respondent indeed waited to imple-
ment the wage increase for the usual 6-month period, the
raise still would have been given before the date of the
election at a time of greater impact because of its proximity
to the election. According to Hayes' testimony the 1977
raise was supposed to have been granted in November. I
week after the November 7 meeting but w.as delayed to
December 5 because of some exigency. Thus, the April 17
raise was, at most. 60 days early counting from the date
that the last scheduled raise was due. Furthermore, the elec-
tion date was set by stipulation of the parties, and Respon-
dent could easily have maneuvered for a later date simply
by not voluntarily stipulating.
Based upon the entire record. I do not conclude that the
timing of the raise was caused by the organizing etTorts of
the Union, nor do I conclude that the size of the pay raise
hinged upon those efforts. Indeed. the Union. in its subse-
quent campaign, claimed that substantially higher wages
were available at a unionized employer, and thus implied
that unionization would achieve much higher wages for Re-
spondent's abnormally underpaid employees.'
B. Threat o Eliminate the ,Nigit Shi/i
Williams testified hesitantly, cryptically, and without
context that at the end of April or early MaN Plant II Fore-
man Bradely Gilbertson told him that if the Union came in
there would be no night crew. In cross-examination, he con-
ceded that Gilbertson may have said that if the Union were
successful in obtaining the $5 per hour they were pushing
for that the Company might not be able to afford a night
shift. Thus. Wegner appeared to have no certain, at all as
to what was actually said.
Gibertson testified that on one occasion he came upon
Williams who was engaged in a conversation with Mark
Bauman. yard foreman. at 4 p.m.. at the dxr at plant 11.
At that point Gilbertson. who was then the night-shift fore-
man. joined them. Bauman looked at Gilbertson and asked
"the nighters are going to get laid off aren't they if the
Union get in?" In response to his fellow foreman. G(ilbert-
son replied "It's possible that ifthey get the $5 an hour they
are pushing for." He stated nothing further. In light of Wil-
liams' admission and lack of certitude I credit the testi-
mony of Gilbertson.
C. Interrogation Threat of/ I.os of Job Securit'
Hayes testified that during the third week of May. just
outside of plant room II at 8 a.m.. Bujalski engaged him in
' The [ nion. in its campaign literature. referred to the $5' 23 starting w age
rate at another employer's facility which t implied was unionlled
427
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a conversation wherein Bujalski stated that the Union
should not "pressure" Respondent, and that the Union had
no right "to be here," and "stuff like that" and then asked
"how much support the Union had." Before Hayes could
answer, Bujalski was summoned away to answer the tele-
phone. Bujalski denied the conversation.
Hayes testified that his next conversation with Bujalski
occurred during the fourth week of May. He testified that
he went into Bujalski's office to complain of employees'
mistreatment by foremen. It is apparent from his testimony
that he was complaining specifically about abusive lan-
guage directed toward him when he complained to the fore-
men about a shortage of supplies. According to Hayes,
Bujalski denied the mistreatment and then proceeded to
raise the subject of the Union by complaining that Respon-
dent should not have to perform "book work" caused by
unionization, i.e., dues deductions, and that the Union
could not offer the "Company" anything. He offered no
explanation for that jarring change of subject matter, par-
ticularly as to what caused Bujalski to talk about a matter
that would be of concern in the far distant future in a mat-
ter which is more pertintent to negotiations. Hayes purport-
edly then inquired "what about job security?" Hayes testi-
fied that Bujalski answered that the Union cannot offer job
security and that if he, Hayes, wanted job security he
should vote "no." Hayes testified that Bell had joined them
and at that point stated "yes, Craig, if you want job security
vote no on the Union." At that point Bell was summoned
away to answer the telephone, and Hayes went back to
work. The complaint alleges no misconduct in this regard
by Bell but alleges that Bujalski uttered the threat of a loss
of job security. No amendment was sought as to Bell.
In Hayes' pretrial affidavit he made no mention of the
May interrogation, but he testified "I have no idea how or
even if the Company knew of my union activity/feelings. I
was never questioned nor did I volunteer information in
this regard." Apparently, the interviewer covered the sub-
ject of interrogations. The May interrogation was not al-
leged in the original complaint but was amended at the
hearing after Hayes was asked to direct his attention to the
last week of May and was asked whether he had a conver-
sation with Bujalski, to which Hayes reponded that he had
two conversations and proceeded with the foregoing testi-
mony.
During cross-examination, when asked if what Bell actu-
ally may have said as whether the Union cannot guarantee
job security, Hayes (after a long hesitation) responded that
he did not "think so." He then asserted that "the way I took
it, if I wanted job security, I'd better vote no...." In his
pretrial affidavit stated that after discussing his complaint
with Bujalski, Bujalski stated "we have nothing against
you"; and then stated "If you want job security vote 'no'-
the Union cannot guarantee job security." Hayes qualified
that testimony, however, with the appendage "or something
very much like that." Thus, in Hayes' affidavit, Bujalski
immediately referred to job security without reference to
other union disadvantages. Furthermore, in his affidavit
Hayes stated that Bell said "the Union cannot guarantee
job security so vote 'no.'" In his redirect testimony Hayes
testified that Bell and Bujalski made identical statements.
Upon redirect examination Hayes testified that he know-
ingly gave the Board agent an incorrect account of what
Bell had stated because he was fearful that his statement,
despite the assurance of confidentiality set forth in the affi-
davit, would somehow get back to Respondent. This is a
most unconvincing performance of dissembling. If that
were Hayes' concern, why did he give other damaging testi-
mony to Respondent in that affidavit, and why did he give
the statement in the first place.
In view of the manifest bias of the witness, the inconsis-
tencies in his testimony, and the overall unreliability of his
testimony, I credit Bujalski's and Bell's versions of the May
conversations. I credit Bujalski that he did not ask Hayes
about employee support of the Union, but rather, it was
Hayes who raised the subject and tried to ingratiate himself
with Bujalski by assuring him that the Union did not have
support and that he was, in any event, not going to vote at
the election and would be on vacation at that time. Indeed,
Hayes did not vote. I credit Bujalski and Bell that Hayes
came to the office to complain of his personal treatment,
that no reference was made to job security by Bujalski, and
that the discussion centered on Hayes' necessity to fill out
production reports regarding lack of supplies. I construe
Bell's testimony that he can recall no reference to job secu-
rity by him as an adequate denial of Hayes' unreliable tes-
timony.'
D. Threat To Close by Foreman
Employee Kevin Wegner testified that he had signed a
union card on April 5. Foreman Thomas Kmiec, an admit-
ted supervisor, signed a union card on some prior date.
According to Wegner, these two gentlemen had an occasion
to discuss the Union, to the best of Wegner's uncertain rec-
ollection, 1 or 2 weeks before the election. Kmiec denied
that he had such a conversation with Wegner. Wegner tes-
tified that the conversation occurred outside the two plants,
and what while alone with Kmiec, he was told that if "we
would get a union, we wouldn't really have anybody that
could really run a union. And that if we did get a union in,
the Company could possibly not afford to pay the employ-
ees what we might want. And that the Company would fold
or close its doors." At that point, Wegner supposedly asked
Kmiec who it was that instructed him to make such a state-
ment. The conversation then terminated.
On examination by the Charging Party, Wegner testified
that Kmiec stated "the Union wouldn't be or the Company
would not be able to afford us for what we might ask for a
wage. And that the doors would probably-may close or
would be almost all of us without a job." Wegner's demea-
nor indicated a hesitancy and lack of certitude as to what
he could recall of the conversation. He could not recall how
the conversation started, whether other subjects were dis-
cussed, or whether he had said something about the Union
that led up to the alleged remarks of Kmiec. Upon review-
ing the relative demeanor of both witnesses, I credit
At the time of this incident Hayes was a "press foreman," who was
charged with the responsibility for the timely work efforts of subordinate
employees and was, on one occasion, consulted with respect to the discharge
of an employee. In view of the above factual finding, it is unnecessary for me
to decide whether Hayes was an employee within the meaning of the Act
and entitled to the protection of the Act.
428
Kmiec's denial. Wegner was far too uncertain of exactly
what was stated. I therefore find his testimony unreliable.
E. Conclusions
1. Interrogations, threats, granting of wage increase
In view of the foregoing findings of fact, I conclude that
Respondent did not engage in coercive interrogations and
threats of plant closure or loss of job security as alleged
with respect to Bujalski, Bell, or Kmiec. I also conclude
that the wage increase was granted in consequence of busi-
ness considerations and was not timed to frustrate the
Union's organizing efforts. With respect to Foreman Gil-
bertson's conversation with employee Williams, Respon-
dent argues that his statement constitutes nothing more
than economic speculation, i.e., if Respondent cannot af-
ford the wage demands agreed to in negotiations, then it
might eliminate the night shift. I disagree. Gilbertson's
comment was not made within the context of the discussion
of economics. Rather, from Gilbertson's own account, an
employee was engaged in a discussion with another fore-
man, Bauman, about a matter of concern, i.e., the fate of
the night-shift crew. When Gilbertson approached, Bau-
man sought confirmation from him, the night-shift fore-
man, that a definite event would occur, i.e., the layoff of the
night shift upon the organizing success of the Union. Gil-
bertson's response was therefore critical, especially in view
of his position as night-shift foreman. His response did not
reassure the concerned employee. He did not repudiate
Bauman's threat. In essence, he told the employee that
unionization was futile because if it were successful in bar-
gaining for higher wages, it might result in the layoff of the
entire night shift. This prediction was not carefully couched
in terms of economic necessity. Rather, it was only limited
to the contingency of the Union's bargaining success. More-
over, in such a context, at a time within 2 weeks of an
election, the incident is neither so trivial nor isolated as to
be disregarded as a mere casual opinion given by a low
level supervisor. Although an employer or his agents may
make a prediction as to the precise effects he believes the
unionization will have upon his company, that prediction
"must be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably probably
consequences beyond his control...." N.L.R.B. v. Gissel
Packing Co., Inc. 395 U.S. 575, 616 (1969). Gilbertson's
statement was not carefully phrased in terms of economics,
but rather it lay open the clear possibility that Respondent,
in retaliation for the Union's bargaining success, might ter-
minate the third-shift employees. Thus, Gilbertson's state-
ment clearly had the tendency to interfere with the employ-
ees' right to freely select or reject union representation
without threat of reprisal, expressed or implied. Accord-
ingly, I conclude that Respondent by its conduct violated
Section 8(a)(X) of the Act and interfered with the election
process as alleged in Objection 5.
2. The no-distribution rule
As indicated above, Respondent published or repub-
lished work rules by means of the March 8 letter addressed
to individual employees. It did so because of the increased
AUTOMATED PRODUCTS. INC.
hiring of new employees. Rule 9 set forth as a basis for
discharge upon the second violation the following conduct
"Distributing written or printed matter of any description
on company premises unless approved by the manage-
ment."
Respondent adduced no evidence of special circum-
stances which would justify this overly broad rule that
clearly abridges employees' rights to engage in protected
activities during their nonworking time and in nonworking
areas. Soddard-Quirk Manufacturing Co., 138 NLRB 615
(1962). Respondent argues that inasmuch as the rule was
rescinded in July when Respondent was apprised of its in-
validity and inasmuch as there is no evidence that the rule
was actually enforced, a remedial order is inappropriate.
Respondent argues further that there is evidence in the
record that managerial personnel were aware of the distri-
bution of union materials on its premises. yet they did not
order the employees to comply with the rule. It is not clear,
however, when or where distribution occurred or who was
involved in such distribution. Respondent cites Bellinger
Shipyards, Inc., 227 NLRB 620 (1976); and Deringer Mfg.
Company, 201 NLRB 622 (1973), in support of its position.
In those cases the Board, because of corrective action taken
by the employer in the peculiar circumstances of those
cases, ordered no remedial action. However, there is no
doubt that the solicitation/distribution rules considered
therein were invalid. In the Deringer case, a violation of the
Act was found, but no remedial order was issued. In the
Bellinger case, because of pragmatic considerations, a viola-
tion was not found.
The circumstances of this case are distinguishable from
those two cases. In this case, Respondent promulgated and
maintained its rules at the outset of the hiring of a large
number of new employees. These new employees, by the
letter of March 8, were directed to focus their attention on
the rules as well as the sanctions for disobedience. The
Union's organizing effort commenced 20 days later. This
rule remained in effect until July. The rule was never explic-
itly repudiated at that time. The generalized testimony in
the record concerning occasions of noncompliance fall
short of a demonstration that the rule was universally disre-
garded or universally understood by the employees to be
nonapplicable to the distribution of union materials. It is,
on the contrary, reasonable to infer that a good many if not
most of the employees assumed that their Employer meant
what it said when it promulgated that rule. Consequently,
the mere fact of its maintenance most certainly tended to
inhibit the union activities of the conscientious employee.
This occurred within the context of a preelection campaign
and therefore necessarily tended to interfere with the elec-
tion process. I therefore do not construe the rationale of the
Bellinger and Deringer cases applicable herein. Rather, I
conclude that the maintenance of rule 9 constituted a viola-
tion of Section 8(a)(1) of the Act during the preelection
period which necessarily warrants the setting aside of the
election pursuant to Objection 8.
CoNcLusloss OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
429
I)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The Union is a labor organization within the meaning
of Sections 2(5) of the Act.
3. Respondent has interfered with, restrained, and co-
erced employees in the exercise of the rights guaranteed
them under Section 7 of the Act in violation of Section
8(a)( ) of the Act by threatening employees with discontin-
uation of the night shift if the Union is elected or is success-
ful in collective bargaining and by at all times between
March 8 and July 1978 maintaining a written policy which
requires employees to obtain the Employer's permission be-
fore engaging in the distribution of any written or printed
material on the Employer's premises.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. By engaging in the aforesaid unlawful conduct, the
Employer interfered with the free choice of employees in
the election.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease
and desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act. It is further
recommended that the election which was held on June 8,
1978, be set aside and that Case 30-RC-3331 be remanded
to the Regional Director for Region 30 for the purpose of
conducting a new election at such time that he deems such
circumstances permit a free choice of bargaining represent-
ative.
On the foregoing findings of fact, conclusions of law, the
entire record herein, and pursuant to Section 10(c) of the
Act, I hereby recommend the following:
ORDER 9
The Respondent, Automated Products, Inc., Marshfield,
Wisconsin, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Maintaining or enforcing any written or unwritten
rule or policy which requires employees to obtain the per-
mission before engaging in distribution of any written or
printed material on Respondent's premises.
(b) Threatening employees with the elimination of the
9 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions, and Order and all objections thereto shall be deemed
waived for all purposes.
night shift if the Union is elected or is successful in the
collective-bargaining process.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the rights
guaranteed them under Section 7 of the Act.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Post at its facilities in Marshfield, Wisconsin, copies
of the attached notice marked "Appendix."' ° Copies of said
notice, on forms provided by the Regional Director for Re-
gion 30, shall be posted by Respondent immediately upon
receipt thereof, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 30, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
as to any alleged violations of the Act not found herein.
10 In the event that this Order is enforced by a judgment of a United States
court of appeals, the words in this notice reading "Posted by Order of the
National Labor Relations Board" shall read "Posted Pursuant to a Judgment
of the United States of Appeals Enforcing an Order of the National Labor
Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing before an administrative law judge at which
all parties had the opportunity to present arguments, it has
been decided that we, Automated Products, Inc., have vio-
lated the National Labor Relations Act, as amended. We
have therefore been ordered to post this notice and to com-
ply with its provisions.
WE W'ILL NOT maintain or enforce any written or
unwritten rule or policy which requires employees to
obtain our permission before engaging in the distribu-
tion of any written or printed material on our premises.
WE W.ILL NOT threaten employees with the discon-
tinuation of the night shift if the Union is elected or if
the Union is successful in collective bargaining.
WE WILL. NOT in any like or related manner infringe
on rights guaranteed to employees by the National La-
bor Relations Act.
AUTOMATED PRODUCTS, INC.
430