Baker Machine & Gear, Inc.

National Labor Relations Board - Board Decisions

Sep 11, 1975

220 N.L.R.B. 194 (N.L.R.B. 1975)

194 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Baker Machine & Gear, Inc. and District No. 99, In-
ternational Association of Machinists and Aero-
space Workers , AFL-CIO and Gene J. Gagnon,
Dennis L . St. Pierre, Roy R . Mills, Sr ., and Louis
Bourgoin,
Baker Machine and Gear , Inc. and District No. 99,
International Association of Machinists and Aero-
space Workers, AFL-CIO, Petitioner. Cases
1-CA-9561, 1-CA-9638, 1-CA-9564-1,
1-CA-9564-2, 1-CA-9564-3, 1-CA-9564-4, and
1-RC-13119
September 11, 1975
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING,
JENKINS, AND PENELLO
On September 24, 1974, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the Respondent filed
exceptions and a supporting brief and the General
Counsel filed a brief in support of the Administrative
Law Judge's Decision.
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 of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
The record establishes that the Respondent be-
came aware of union activity among its employees
on January 15, 1974.2 The following day, the Respon-
dent laid off four of its employees whom it knew to
be active in the Petitioner's organizational campaign.
On January 17, when the Respondent received the
Petitioner's letter requesting recognition, the Respon-
dent set about interrogating all of its employees in
the plant regarding their union activities. On January
23, the Respondent was observed engaging in surveil-
lance of a union meeting attended by most of its em-
ployees. The Respondent received notice that the in-
stant petition had been filed on January 28 and
immediately thereafter called each of its employees
i The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge. It is the Board 's established policy not to over-
rule an Administrative Law Judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect . Standard Dry Wall Products, Inc., 91
NLRB 544 ( 1950), enfd . 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
We disavow the statements by the Administrative Law Judge that in the
circumstances of their layoffs, it is a wonder that Bourgoin and Gagnon did
not commit some greater breach of good manners than they did.
2 All dates are in 1974.
into its president's office and interrogated them
about their union activities. An election held on Feb-
ruary 21 was lost by the Petitioner which thereafter
filed the instant unfair labor practice charges and ob-
jections.
The Administrative Law Judge found, and we
agree for the reasons stated by him, that the Respon-
dent violated Section 8(a)(3) of the Act by discrimi-
natorily laying off the four union adherents and Sec-
tion 8(a)(1) of the Act by interrogating employees on
two occasions and engaging in surveillance of the
union meeting.3 The Administrative Law Judge also
found, and we agree, that as of January 15 the Peti-
tioner held valid authorization cards signed by 18 of
the Respondent's 24 employees. In addition, we
agree with the Administrative Law Judge's finding,
for the reasons stated by him, that the Respondent's
unfair labor practices created a climate of fear of
such magnitude, "especially the loss of jobs or in-
come in these uncertain times," that it dissipated the
Union's majority and made a fair election improba-
ble. We also agree with the Administrative Law
Judge's conclusion setting aside the election held on
February 21 and ordering the Respondent to recog-
nize and bargain, upon request, with the Union.
In so ordering the Respondent to bargain with the
Union, the Administrative Law Judge relied on the
Board's decision in Steel-Fab, Inc., 212 NLRB 363
(1974). However, in The Trading Port, Inc., 219
NLRB No. 76 (1975), we reexamined the policies set
7 We do not adopt the Administrative Law Judge 's findings that the Re-
spondent violated Sec . 8(a)(1) of the Act by drafting and permitting the
circulation of an antiunion petition in its plant . The record establishes that
on January 23 one of the Respondent's employees , Oullette , retained the
Respondent 's attorney, Smith, a general practitioner who had performed
legal work in the past for Oullette , to draft an antiunion petition which he
could circulate in the Respondent's plant . Smith drafted the petition for
which he billed and received payment from Oullette . Based on this evi-
dence, the Administrative Law Judge found that Smith was acting as an
agent of the Respondent in drafting the petition and was remiss in his duty
to ascertain that Oullette was not sent to him by the Respondent. We dis-
agree . The record is absolutely devoid of evidence that Oullette was sent to
Smith by the Respondent or that Smith was acting on behalf of the Respon-
dent when he drafted the petition. To the contrary . Oullette was a past client
of Smith 's and Smith, who was active only in the very early stages of the
Union 's organizational drive and , in any event, was not experienced in the
law of labor relations, had no obligation to inquire into Oullette 's motiva-
tion in seeking the petition . Accordingly, as there is nothing in the record
which establishes that Smith was acting in his capacity as attorney for the
Respondent when he drafted the petition for Oullette , we are unable to
conclude that the Respondent bears the legal responsibility therefor.
In addition , we find , contrary to the Administrative Law Judge , that there
is no basis for finding that the Respondent violated Sec . 8(a)(1) of the Act
by permitting the circulation of Oullette 's petition in its plant Thus, the
only evidence in the record concerning the circulation of the petition is that
on one occasion Oullette asked a fellow employee to sign the petition at a
time when Claude Levesque, the Respondent's president , was standing near-
by. Levesque heard Oullette and immediately left the area . In the absence of
more substantial evidence of the Respondent 's knowledge and/or sponsor-
ship of Oullette 's petition , we cannot conclude that the Respondent demon-
strated tacit approval of the petition or assisted in its circulation Therefore,
we shall dismiss the 8 (a)(I) allegation relating to the circulation of the peti-
tion
220 NLRB No. 40
BAKER MACHINE & GEAR, INC.
forth in Steel-Fab and in the Supreme Court's deci-
sion in GisseL4 We noted therein that, in fashioning a
bargaining order remedy, our main concern has been
and is to correct and give redress for the employer's
misconduct and to protect the employees from the
effects of such misconduct. Thus, the bargaining or-
der serves to protect the employee's rights in the se-
lection of an exclusive bargaining representative. As
the Supreme Court said in Gissel, when an
employer's misconduct has rendered a fair election
or rerun election impossible the Board is entitled to
rely on the establishment of a union's majority by
other means , most notably signed authorization
cards, to enfranchise a union as an exclusive bargain-
ing representative. Thus, an employer is required to
recognize and bargain with a union whose represen-
tative status has been established through means
other than our traditional and preferred election pro-
cedure. The legal basis for bypassing the election
procedure and according the union representational
status based on a showing of majority support among
the employees in the appropriate unit is that the
employer's misconduct has created conditions which
preclude the conduct of a fair election.
As stated in The Trading Port, Inc., supra, where an
employer's misconduct gives rise to the bargaining
obligation, that obligation commences as of the time
the employer has embarked on a clear course of un-
lawful conduct or has engaged in sufficient unfair
labor practices which undermine the union's majori-
ty status and subvert our election process.
No element of retroactivity is present in imposing
the bargaining obligation as of the time the employer
began his subversion of the statute. No new law or
rule is being enacted governing conduct or relations
previously not subject to the law. Instead, the remedy
we impose does no more than reach all the unlawful
actions committed, whether early or late in the
course of the misconduct. The only element of re-
troactivity is that the misconduct being remedied oc-
curred prior to issuance of the complaint and our
consideration of the case ; but this is the situation in
every civil or criminal case where a wrong is remed-
ied, for the remedy can be applied only after the
wrong has been committed.
In the instant case , the Respondent's unfair labor
practices began as soon as it learned that some of its
employees had signed union authorization cards.
From their inception, the Respondent's unfair labor
practices were aimed at destroying whatever support
the Union had achieved among employees. Thus, the
Respondent's initial unfair labor practices on Janu-
ary 16 had the desired effect of eliminating from the
4N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575 (1969).
195
Respondent's plant all of those employees whom the
Respondent knew to be union adherents or who were
active in the Union's organizational effort. Subse-
quently, the Respondent interrogated each and every
one of its remaining employees concerning their
union activities for the clear purpose of discouraging
such activity and of decimating any support which
the Union had gained. The Respondent's surveil-
lance of the union meeting was also part of the
Respondent's effort to prevent the Union from orga-
nizing or representing its employees. These unfair la-
bor practices clearly dissipated the Union's majority
strength among the employees, which was estab-
lished by valid authorization cards as of January 15,
and were of such a nature as to prevent the holding
of a fair rerun election. Under the principles enuncia-
ted in Gissel, the authorization cards are now the
most reliable measure of the employees' desires on
the issue of representation and the policies of the Act
require that the Respondent be ordered to bargain
with the Petitioner as the exclusive representative of
its employees. Accordingly, under the. principles set
forth in The Trading Port, Inc., supra, while we agree
with the Administrative Law Judge's conclusion or-
dering the Respondent to bargain with the Petitioner,
we shall, in accordance with our above findings, find
that Respondent had a duty to bargain as of January
17, the date on which, as we have found, the
Petitioner's demand for recognition was received by
the Respondent and on which the Respondent's
course of conduct might reasonably be deemed to
have undermined the Petitioner's majority status and
made the holding of a fair election improbable.'
AMENDED CONCLUSIONS OF LAW
Having made the above findings, we will substitute
the following paragraph for Conclusion of Law 4:
"4. By interrogating employees about their union
activities, sympathies, and desires and by engaging in
51n the instant case, the Administrative Law Judge, relying on Steel-Fab,
concluded that it was not necessary for him to find that the Respondent
violated Sec . 8(a)(5) of the Act in order to issue the bargaining order. Al-
though the complaint , which issued prior to Steel-Fab, alleged a violation of
Sec. 8(a)(5) and ( 1) in the Respondent 's failure to recognize and bargain
with the Union , neither the General Counsel not the Charging Party except-
ed to the Administrative Law Judge 's failure to make an 8(a)(5) finding.
Therefore, we do not reach or pass on whether in this case the bargaining
order should be based on a violation of Sec 8 (a)(5) However, we note that
in the circumstances of this case , the prescribed remedy ordering the Re-
spondent to cease and desist from committing the unfair labor practices
found and to reinstate the laid-off employees and give them backpay, and
setting aside the election and requiring the Respondent to bargain, upon
request, with the Union, provides a full and complete remedy for the unfair
labor practices on which the bargaining order is based and fully effectuates
thereby the policies of the Act
Member Fanning adheres to his dissenting position in Steel-Fab that an
employer's refusal to recognize and bargain with the majority representative
of its employees is a violation of Sec. 8(a)(5) and he would so find in this
case.
196 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
surveillance of their union activities, Respondent has
violated Section 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that the Respondent, Baker
Machine & Gear, Inc., Van Buren, Maine, its offi-
cers, agents , successors , and assigns , shall take the
action set forth in the said recommended Order, as so
modified:
1. Delete paragraph 1(d), relettering paragraph
1(e) accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
interest, as a result of their layoff on January 16,
1974.
WE WILL, upon request, bargain collectively
with District No. 99, International Association
of Machinists and Aerospace Workers, AFL-
CIO, as the exclusive representative of all our
employees in a unit of all full-time and regular
part-time production and maintenance workers
employed at our Van Buren, Maine, plant, ex-
cluding office clerical employees, professional
employees, guards, and supervisors as defined in
Section 2(11) of the Act and, if an under-
standing is reached, embody such understanding
in a signed agreement.
All our employees are free, if they choose, to join
District No. 99, International Association of Ma-
chinists and Aerospace Workers, AFL-CIO, or any
other labor organization.
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 having found,
after a hearing, that we violated Federal law by lay-
ing off employees for engaging in union activities, we
hereby notify you that:
The National Labor Relations Act gives all em-
ployees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a represen-
tative of their own choosing
To act together for collective bargaining or
other aid or protection
To refrain from any or all of these things.
WE WILL NOT lay you off for engaging in union
activities.
WE WILL NOT interrogate you about your
union activities, sympathies, or desires.
WE WILL NOT engage in surveillance of your
union activities.
WE WILL NOT in any manner interfere with you
or attempt to restrain or coerce you in the exer-
cise of the above rights.
WE WILL offer Gene Gagnon and Louis Bour-
goin immediate and full reinstatement to their
former jobs or, if those jobs no longer exist, to
substantially equivalent positions, without preju-
dice to their seniority or other rights and privi-
leges, and make them and Dennis St. Pierre and
BAKER MACHINE & GEAR, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge: The
petition in Case 1-RC-13119 was filed on January 25,
1974.1 The charge in Case 1-CA-9561 was filed the same
day. The charges in Case I-CA-9564(1-4) were filed on
January 28. A Stipulation for Certification Upon Consent
Election was approved in Case 1 -RC-13119 on February
11. An order consolidating Cases 1-CA-9561 and
1-CA-9564(1-4), and a consolidated complaint were is-
sued on February 19. An election was held in Case
1-RC-13119 on February 21. Out of approximately 31 per-
sons eligible to vote, 9 cast their ballots for Petitioner, 14
cast their ballots against , and 8 cast challenged ballots. Pe-
titioner filed Objections to Conduct Affecting the Results
of Election on February 26. The charge in Case
1-CA-9638 was filed on February 28. A Report on Chal-
lenged Ballots and Objections to Conduct of the Election
was issued in Case 1-RC-13119 on March 26. An order
consolidating Cases 1-CA-9561, 1-CA-9564(1-4), and
1-CA-9638, and an amended complaint were issued on
April 10. An Order Directing Hearing was issued by the
Board in Case 1-RC-13119 on April 12. An order consoli-
dating Case 1-RC-13119 with Cases 1-CA-9561,
1-CA-9564(l-4), and 1-CA-9638 for hearing was issued
on May 6. The hearing was held in Presque Isle, Maine, on
July 16 and 17.
The principal issues litigated were whether the four indi-
vidual Charging Parties were laid off by Respondent on
January 16 in violation of Section 8(a)(3) and (1) of the
National Labor Relations Act, as amended, and, if so,
whether Respondent should be ordered to bargain with
District 99 under the Gissel principle (N.L.R.B. v. Gissel
Roy Mills whole for any earnings they lost , plus 1 Dates are 1974 unless otherwise indicated.
BAKER MACHINE & GEAR, INC.
Packing Co., Inc., 395 U.S. 575 (1969) ). For the reasons set
forth below , I find they were and it should.
Upon the entire record ,' including my observation of the
demeanor of the witnesses , and after due consideration of
briefs , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Maine corporation , is engaged at Van Bu-
ren, Maine , in the manufacture of gears and sprockets. It
annually receives raw materials valued in excess of $50,000
which originate outside the State of Maine and ships fin-
ished products valued in excess of $50,000 directly to
points outside the State of Maine.
II. THE UNFAIR LABOR PRACTICES
A. Facts
The following facts are either undisputed or uncontro-
verted:
On December 19, 1973, Respondent posted the following
notice in its plant.
TO ALL EMPLOYEES
Due to the energy and steel shortage , we are forced
to cut all overtime . Also we'll close December 21st and
re-open December 26th.
At the present, it looks like we might have to lay-off
some men for a short time but we'll try to keep it at a
minimum.
These are circumstances beyond our control and
we'll try our best to keep the men we feel that are
working to their fullest to the benefit of the company.
The situation right now stands that we are allocated
oil and steel at the same rate as last year and unless it
changes, there is nothing we can do.
We will keep you advise [sic]!
The Management
Between December 19, 1973, and January 5, 1974, three
employees, Roy Mills, Dennis St . Pierre, and Gene Gag-
non, discussed among themselves and with other employ-
ees the wisdom of bringing a union into the plant. On Jan-
uary 5, Mills telephoned Edward Vinson, an IAM
representative . On Monday, January 7, Vinson met with
Mills, St . Pierre , and Gagnon in Caribou, Maine. The up-
shot of their discussion was a decision to call a meeting of
Respondent's employees.
The meeting was held at the Yacht Club in Van Buren
on Monday, January 14. Vinson and Dennis Martin, presi-
dent of the IAM's District 99, were present for District 99.
Mills, St . Pierre , Gagnon, and Louis Bourgoin,
Respondent 's oldest employee in point of service, were
among the approximately 11 employees who attended.
Mills, St . Pierre , Gagnon , Bourgoin , and seven other em-
2 The joint motion to amend the transcript filed by counsel for Respon-
dent and the General Counsel is hereby granted.
197
ployees signed IAM authorization cards that evening and
gave them to Vinson. St. Pierre, Gagnon, and Mills took
away with them blank cards in order to solicit signatures
from other employees. On January 15, they obtained cards
from seven more employees. St. Pierre telephoned Vinson
on January 15 and told Vinson he had the seven additional
cards. On Vinson's instructions they were mailed to Vinson
on January 15.
Vinson prepared a letter dated January 15 in which he
claimed District 99 of the IAM was the collective-bargain-
ing representative of Respondent's production and mainte-
nance employees and placed it in the mail at a time which
caused it to be postmarked Wednesday, January 16, and
delivered to Respondent on Thursday, January 17. The let-
ter read, in part:
You are further advised that we are prepared to fur-
nish proof to you that we actually do, in fact, repre-
sent a majority of the employees referred to above.
Respondent is owned by Claude Levesque and his son,
Nobel. Claude Levesque is president of the corporation.
Nobel Levesque is vice president of the corporation and
manager of the business. Nobel Levesque attended a Lions
Club meeting in Van Buren on the evening of January 15.
While he was there, Lionel Bouchard, one of his employ-
ees, told him there was union activity among his employ-
ees. He went immediately to the plant where he and his
father met with William Smith, Respondent's attorney. The
Levesques told Smith about the union activity in the plant.
They asked him whether they could lay off Mills, St. Pierre,
Gagnon, and Bourgoin. They told Smith they wanted to
get rid of those particular employees for economic reasons
due to the steel shortage referred to in their notice to em-
ployees of December 19, 1973, because Mills, St. Pierre,
Gagnon, and Bourgoin were Respondent's most expensive
and least productive employees. Smith advised the Lev-
esques that they could lay off Mills, St. Pierre, Gagnon,
and Bourgoin without violating the law.
Nobel Levesque laid off Mills, St. Pierre, Gagnon, and
Bourgoin as each man arrived for work on the morning of
January 16. He told each he was laid off for lack of work.
He gave each a check for the wages due him. He sought to
inspect each's personal toolbox before the man left to as-
sure himself that the man was not taking any of
Respondent's tools with him. He inspected the boxes of
Mills, St. Pierre, and Bourgoin without incident. Gagnon
locked the key to his toolbox inside the box. The inevitable
quarrel developed between him and Nobel Levesque. Gag-
non started to leave the box in the plant and fetch another
key. He changed his mind, picked up the box, told Lev-
esque he would have to come to Gagnon's home with a
policeman if he wanted to see inside the box, and walked
out. Inside the box were a log book and some tools which
belonged to Respondent. Gagnon returned them to Re-
spondent the following week.
A quarrel also erupted between Bourgoin and Nobel
Levesque. This one involved money Levesque owed Bour-
goin. Respondent's plant was the locale of an adult educa-
tion course in machine shop work sponsored by the North-
em Maine Technical Vocational School. The course start-
ed in October 1973 and ended in February 1974. Nobel
198 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Levesque had a contract with the school to teach in the
course . He had hired Bourgoin to act as his assistant in-
structor for half of the hourly fee Levesque was to receive
from the school . (St. Pierre and Gagnon also taught in the
course . Unlike Bourgoin , they expected to be paid by the
school and not by Nobel Levesque .) Bourgoin demanded
the money Levesque owed him under this arrangement.
Levesque told him to return to the plant and pick it up on
Friday, January 18. Levesque told Bourgoin to check on
Friday, also, and each Friday thereafter to see if he still
had a job with Respondent. Bourgoin took exception to the
latter instruction. He told Levesque he would not return to
the plant for that purpose. He did, in fact, return to the
plant on January 18 to get his money. Levesque refused to
give it to him. Bourgoin told Levesque he was not a man of
his word. In the quarrel which followed, Bourgoin cursed
Levesque. (I instructed both Bourgoin and Levesque to
state, to the best of their recollections, exactly what Bour-
goin said to Levesque . Both men were too reticent to do so.
As a result, the record reveals only that Bourgoin used the
words "Jesus Christ" and "tabernac." The latter, I was as-
sured, is a mighty oath in French. Van Buren, Maine, lies
near the French-speaking part of Canada. Many of the
persons involved in this proceeding are bilingual. One wit-
ness even testified in French , requiring the services of an
interpreter . Some of the conversations during the events
related here were conducted in French rather than Eng-
lish.)
When Nobel Levesque received Vinson's demand letter
on the morning of Thursday, January 17, he turned it over
to Smith. At the same time, he polled his employees in an
effort to find out which of them had signed authorization
cards. He wrote the names of the employees on a pad. He
went to each man at his work station in turn and asked
him whether he had signed a card for the IAM. When a
man said he had, Levesque wrote "yes " next to his name
on the pad. When a man said he had not, Levesque wrote
"no." Because some of them lied to him , Levesque wound
up with only 10 "yeses" on his pad, a fact which he relayed
to Smith.
Smith replied to Vinson's letter under date of January 17
as follows:
I have been given your letter of January 15, 1974,
concerning the claim of District 99 of International
Association of Machinists and Aerospace Workers
that it is collective bargaining representative of em-
ployees of Baker Machine & Gear, Inc.
In order to advise them on the question of recogni-
tion , please provide me with whatever proof you have
of your representation of a majority of the employees.
Vinson received Smith's letter on Monday , January 21.
He telephoned Smith . Vinson suggested a card check by an
impartial third party . Smith suggested Vinson present his
claimed proof of majority to Smith . They reached no un-
derstanding . Each memoralized the conversation in a letter
to the other . Smith 's letter , dated January 21, reads:
This letter will confirm our telephone conversation
of today as to the position of Baker Machine & Gear
with regard to recognition of your union.
Baker Machine & Gear will not recognize your
union unless it receives satisfactory evidence that a
majority of the employees have accepted it as their
representative.
In the event that you do not wish to present this
evidence, please be assured that an election may be
conducted at your convenience to determine whether
or not there is majority representation.
Vinson's letter, dated January 25, reads:
This is in answer to your letter dated January 21,
1974, pertaining to the above subject matter. Also, to
reaffirm to you my position concerning the necessary
evidence which would prove to you the Union's claim
for recognition.
As I informed you in our telephone conversation on
Monday, January 21, 1974, if you would agree to se-
lect an impartial person and furnish such person with
a list of employees as referred to in my letter of Janu-
ary 15, 1974, for the payroll period ending January 12,
1974, I would turn over to such person the cards
signed by the Baker employees. The impartial person
would make a determination of the Union's claim
from such evidence presented by the parties. If the
evidence proved the Union's claim, then the parties
would sign a Recognition Agreement.
I also discussed with you the layoff on January 16,
1974, of four (4) employees. Namely, Dennis St. Pier-
re, Gene Gagnon, Roy Mills Sr. and Louis Bourgoin.
Charges will be filed with the National Labor Rela-
tions Board in their behalf. I would again like to state
to you, that it may possible [sic] be to the best interest
of the Company that these men be returned to their
jobs immediately.
On Wednesday, January 23, District 99 prepared and
mailed to the Board's Regional Office in Boston the charge
in Case 1-CA-9561 and the petition in Case 1-RC-13119.
They were received and docketed on Friday, January 25.
The Region mailed its usual notifications to Respondent in
each case that same day.
Also on January 23, Laurence Ouellette, an employee of
Respondent, appeared at Smith's office. He asked Smith to
draft for him an antiunion petition which he could circu-
late among the employees. Smith did not ask whether the
Levesques had sent Ouellette to him or had participated, in
any way, in the events which led up to Ouellette's decision
to spearhead an antiunion drive among Respondent's em-
ployees. Smith drafted a petition and gave it to Ouellette.
Ouellette subsequently circulated it in the plant with the
knowledge of Claude Levesque. On the one occasion which
is detailed in the record, Ouellette approached Rodney
Deschaine at a time when Claude Levesque was in earshot.
Ouellette asked Deschaine if he wanted to sign a petition
against the Union. Levesque heard what Ouellette said and
drew back.
On the evening of January 23, District 99 held a meeting
of Respondent's employees at the Knights of Columbus
Hall in Van Buren. Nobel and Claude Levesque were in
the vicinity of the hall in Nobel's automobile and were
observed by employees. The following day, there was a
BAKER MACHINE & GEAR, INC. 199
paper on Nobel Levesque 's desk in the plant bearing a list
of automobile license plate numbers and names , including
the number from the car of Nelson Ouellette , an employee
who was at the meeting and his name.
Respondent received notification of the petition in Case
1-RC-13119 on Monday, January 28. The Region's form
letter said , in pertinent part:
It has been our experience that by the time a petition
such as this one has been filed , employees may have
questions about what is going on and what may hap-
pen. At this point in the handling of this case, we of
course do not know what disposition will be made of
the petition , but experience tells us that an explana-
tion of rights , responsibilities , and Board procedures
can be helpful to your employees.
The Board believes that employees should have readi-
ly available information about their rights and the
proper conduct of employee representation elections.
At the same time employers and union should be ap-
prised of their responsibilities to refrain from conduct
which could impede employees ' freedom of choice.
Accordingly, you are requested to post the enclosed
Notice to Employees in conspicuous places in areas
where employees such as those described in the en-
closed petition work, and to advise me whether they
have been posted . Copies of this Notice are being
made available to the labor organization(s) involved.
In the event an election is not conducted pursuant to
this petition you are requested to remove the posted
Notice.
On January 28 and 29 , Nobel Levesque called each em-
ployee into his office . He again asked each man whether he
was for or against the Union. He reminded them of the
steel shortage which had caused Respondent to post its
notice on December 19, 1973. He reminded them of
Respondent 's policy, in effect for 2 years , of granting wag-
es each June based on one-half of Respondent 's profit for
the preceding year. He said to at least one man that if he
and his father could not keep half the profit from the busi-
ness they would close the place up . He read to each man
the rights set forth on the enclosure to the Region's letter
which Respondent had been asked to post in the plant. He
told each man there would be an election to determine
whether the Union would come into the plant . He told
each man it was up to him how he voted but to be sure to
vote.
B. Analysis and Conclusions
1. The layoff
This proceeding is a good example of what can happen
when an unsophisticated employer acts on the advice of
counsel who is not experienced in labor relations . The re-
sult is a violation of the Act on the basis of Respondent's
version of the facts without even reaching such questions
as whether Respondent knew St. Pierre , Gagnon , and Mills
were the leaders of the organizing campaign or whether
Respondent's stated reason for laying them and Bourgoin
off was its real reason or a pretext masking a discriminato-
ry motive.
Nobel Levesque testified that his father had been advo-
cating for some 3 weeks that Respondent get rid of St.
Pierre , Gagnon, Mills, and Bourgoin because they were the
most expensive employees , but that he had only come
around to his father's way of thinking on Friday, January
11. He further testified that the decision reached at that
time did not include when it would be implemented, thus:
JUDGE BLACKBURN : Did you decide to lay off these
four men before or after you conferred with Mr. Smith
on the 15th?
THE WITNESS : Before.
JUDGE BLACKBURN : How long before?
THE WITNESS : My father had been after me for the
past three , four weeks.
JUDGE BLACKBURN: I didn't ask you that. I asked you
when you decided? When did you make the decision
that you implemented on the morning of the loth?
THE WITNESS: We had decided that the previous
week.
JUDGE BLACKBURN : When , the previous week.
THE WITNESS: On the Friday, I believe.
JUDGE BLACKBURN: And on that Friday you decided
that you would lay them off on the morning of Janu-
ary the 16th?
THE WITNESS: No.
JUDGE BLACKBURN: What did you decide on the Fri-
day?
THE WITNESS : We had decided, you know , these are
the guys that should go.
JUDGE BLACKBURN : All right. Now, I ask you again,
when did you decide that you would lay them off on
the 16th , before or after you conferred with Mr.
Smith?
THE WITNESS: After we conferred with Mr. Smith.
JUDGE BLACKBURN : Then what you are telling me is
that , before you learned about the union activity, you
had selected these four men for lay-off, but had not
decided on a date . After you learned about the union
activity, and after conferring with your attorney and
being advised that you could legally go ahead and do
whatever you had in mind, you decided that you
would lay them off the next morning . Have I got it
right?
THE WITNESS: No.
JUDGE BLACKBURN : What have I got wrong?
THE WITNESS: Even my knowing about the union ac-
tivities, that did not change my mind.
JUDGE BLACKBURN : I did not say that . I am just
trying to get the sequence of events , laying aside the
question of your motive and the legal effect , is that the
way it went?
THE WITNESS: Yes.
Smith , the attorney , testified as follows:
Q. (By Mr. Pratt) What was the company's ap-
proach to the problem?
A. The company's approach was that they wanted
to reduce these certain people-their force by these
200 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
certain people. And these are the four people sitting
right here in this room.
JUDGE BLACKBURN: They named the four names in
this conference to you?
THE WITNESS: They had decided that the people that
had to be laid off, that were costing them the most
money and being the least productive were these four.
And were they going to be getting into a lot of hot
water if they laid them off, having heard that there
was a possibility of a union.
Q. (By Mr. Pratt) Was anything said as to the tim-
ing?
A. Well, when they did finally make up their mind,
you know, to finally lay them off, I assume they did it
the next day.
JUDGE BLACKBURN: I do not understand that answer,
Mr. Smith.
THE WITNESS: I do not think they had finally decided
to lay them off or not until after they had talked to
me, because, obviously, why would they call me in to
talk to me.
JUDGE BLACKBURN: Mr. Pratt?
THE WITNESS: They may have been committed al-
ready to laying them off, but they wanted to try to
find out legally where would they stand.
The decision to lay off on the morning of January 16 was
only made after Respondent admittedly learned of union
activity among its employees. The conference which result-
ed in that decision was called because of that knowledge.
Therefore, the layoffs on January 16 were triggered by the
union activities of Respondent's employees. Even if it were
to be found that the four individual Charging Parties
would have been laid off on some later date as a result of a
decision made on January 11, it could not change the inev-
itable finding that Respondent was motivated to lay them
off when it actually did lay them off by employees' union
activities . A layoff for that reason, regardless of what was
actually in the mind of the person who made the decision
to lay off employees on January 16 and regardless of what
he had been told about his legal rights and obligations,
violates the Act. I so find.
I do not find that Respondent would have laid off St.
Pierre, Gagnon, Mills, and Bourgoin at some time subse-
quent to January 16 as a result of a decision made on
January 11. I do find that Respondent knew that St. Pierre,
Gagnon, and Mills were the leaders of the organizing cam-
paign and that the reason it advances for laying them and
Bourgoin off is a pretext.
With respect to the company knowledge issue , one of the
most significant things in the record is Nobel Levesque's
insistence that the report he received from Lionel Bouch-
ard at the Lions Club meeting did not constitute knowl-
edge in a legal sense, thus:
Q. Did Mr. Bourgoin [on January 16] make any
statement to you about steel , or did you make any
statements to him about steel?
A. Well, I told him in regards to the letter of De-
cember 19th which meant due to the economy and the
steel situation, I'm giving you a week off.
Q. What was his response , if any?
A. Well, his response was that-the way that I took
it, anyways, at that time-was that there was some-
thing going on. I wasn 't aware of it.
JUDGE BLACKBURN: I have trouble with that answer,
Mr. Levesque. You told me a little while ago that you
heard the day before that there was union activity
going on in your plant.
THE WITNESS: It was hearsay. Yes.
JUDGE BLACKBURN: Those two answers strike me as
inconsistent-the one you just gave about not know-
ing what he was talking about on Wednesday, when
somebody had told you the day before that there was
union activity in your plant. I just cannot put those
two answers together. What are you trying to tell me?
THE WITNESS: Well, they are the same , aren 't they?
JUDGE BLACKBURN: I am not going to argue with
you. I am just trying to understand your testimony,
that's all.
A witness who testifies in this manner is unworthy of be-
lief.
More importantly, it is clear from the unrefuted testimo-
ny of St. Pierre that Nobel Levesque observed St. Pierre,
Gagnon, and Mills on January 15 as they solicited employ-
ees in the plant to sign authorization cards (Mills' activities
on that day were somewhat less extensive than those of the
other two) but did not overhear what was being said. I find
that, when Bouchard warned Levesque that evening that
union activities were underway, Levesque put that infor-
mation together with what he had observed and leaped to
the correct conclusion that St. Pierre, Gagnon, and Mills
were the instigators.
With respect to the pretext issue, one of the most signifi-
cant things in this record is a discussion of words and their
meanings, thus:
Q. (By Mr. Pratt) Do you recall what happened
with respect to any increase or reductions in the work
force after December 19, 1973?
A. Yes.
Q. What do you recall?
A. John Daigle, on January 4th.
Q. What happened to him?
A. He was laid off or suspended. Or he wanted-
Q. Which was it?
JUDGE BLACKBURN: It makes a difference, Mr. Lev-
esque.
THE WITNESS: I know it does make a difference now,
but at the time I didn't.
JUDGE BLACKBURN: Well , what happened with Mr.
Daigle on the 4th?
THE WITNESS: He came in, and he wanted an increase
in pay.
JUDGE BLACKBURN: Okay.
THE WITNESS: And I told him the inavailability of the
steel , and we give our salary increases in June-on
June 1st every year. But I could not grant it to him
then. So he said , I will give you 'till the end of Janu-
ary. I said, you don't have to do that. You can be done
today, if you want to. And he was done that day.
JUDGE BLACKBURN: Okay.
Q. (By Mr. Pratt) When you used the term "lay-
BAKER MACHINE & GEAR, INC.
off", Mr. Levesque, did that word have any signifi-
cance to you at the time, back in December or Janu-
ary?
A.
Q.
A.
Q.
you?
No, it didn't.
And what did it signify to you?
That he had quit.
Did the term lay-off signify anything else to
A. No.
Q. Just that he had quit?
A. He had asked for higher wages, and it was not
granted to him-
Q. Well, I am not asking you now with respect to
Mr. Daigle, but your use of the term lay-off back at
that time.
A. To me lay-off was to suspend, to fire or do what
have you. To me that is, you know, what a lay-off
meant , as far as the terminology goes.
Q. And having progressed to this stage, what now
do you attach-what meaning do you now attach to
the word lay-off?
MR. MARROW: Objection.
JUDGE BLACKBURN: Overruled.
THE WITNESS: Lay-off now means that you let go the
man for lack of work.
Q. (By Mr. Pratt) And a suspension?
A. Suspension is, he is corrected, disciplinary ac-
tions, or what have you, you know, he will be suspend-
ed for two weeks, for doing such and such. And so on.
Q. Okay. And what about the word discharge?
A. Fired.
Q. Now-
JUDGE BLACKBURN:Terminated permanently?
THE WITNESS: Terminated permanently.
JUDGE BLACKBURN : A man who is suspended is not
going to work for you for a definite period of time, as
a disciplinary act, and at the end of that time he comes
back to work-is that what you are saying?
THE WITNESS: You will have to repeat that.
JUDGE BLACBURN : Okay . A man does something-I
work for you and I do something that you do not like.
I break a tool or something. To discipline me, you
suspend me for three days.
THE WITNESS : Right.
JUDGE BLACKBURN : That means I am not going to
work for three days, but at the end of three days I am
going to come back to work.
THE WITNESS : Right.
JUDGE BLACKBURN: Lay-off, I understand you to be
saying, I work for you, you do not have any work for
me next week, and you say, Ben, I am laying you off
next week . And if there is work at the end of that
week. I'll call you to come back to work.
A man on lay-off is not working because there is no
work to be done. But, when work becomes available,
he is going to be coming back to work?
THE WITNESS : Right.
JUDGE BLACKBURN: Okay. Now, let me ask you a
question, Mr. Pratt. I hope you used the word lay-off
in its technical sense in your answer.
MR. PRATT: Yes, Sir.
201
Respondent's answer states, "All of the employees listed
in paragraph 9 of the Amended Complaint [i.e., St. Pierre,
Gagnon, Mills, and Bourgoin] were laid off as a direct re-
sult in [sic] the shortage in the supply of steel to
Respondent's Van Buren, Maine, plant and the steel short-
age continued and worsened since the date of the Com-
plaint, but that Respondent has since on or about January
16, 1974 to this date stood ready to recall any laid off
employees including Dennis L. St. Pierre and Roy R. Mills,
Sr., as soon as economic conditions permitted. At the time
Louis Bourgoin and Gene J. Gagnon were laid off for lack
of work they engaged in conduct which constitutes suffi-
cient grounds for permanent discharge and Respondent
has just cause for treating Louis Bourgoin and Gene J.
Gagnon as being permanently discharged."
Nobel Levesque stated his reason for laying off St. Pier-
re, Gagnon, Mills, and Bourgoin on direct examination as
follows:
Q. (By Mr. Pratt) For what reason did you lay these
people off on the 16th of January?
A. It was economy. They were my highest paid peo-
ple, and also for their work performance.
It does not stand up under close scrutiny for the following
reasons:
1. Data introduced by Respondent does not indicate
any economic need to lay off employees on January 16.
While it is true that Respondent learned in December the
mills from which it was accustomed to purchase steel
would not be able to fill its orders in 1974, this did not
mean that steel was totally unavailable. Steel could still be
obtained from middlemen who operate warehouses as dis-
tinguished from directly from the manufacturer, i.e., the
mill, albeit at a substantially higher price per pound. Since
the major part of Respondent's production is for customers
from whom Respondent has accepted open-ended orders
at so much per unit, paying a higher price for the steel it
needs would reduce, or possibly even eliminate,
Respondent's margin of profit. Up to this point
Respondent's economic defense makes sense and is sup-
ported by the record.3 However, there is no indication that
Respondent, either on January 16 or subsequently, can-
celled or rejected orders from its customers or that it antici-
pated, then or at the time of the hearing, its 1974 produc-
tion would be substantially below what it turned out in
1973.
2. Even if an eventual production cutback had been in
Respondent's mind on January 16, the record will not sup-
port a finding that it was necessary or contemplated as of
that time. There was plenty of steel, obtained from mills, in
the plant that morning. Respondent considered 45 hours,
the last 5 at time and a half, its regular workweek. On
January 15, the entire plant, including the four men who
7 Respondent's December 19 notice and its concern that "we might have
to lay-off some men for a short time but we'll try to keep it at a minimum"
is part of that support. However, the fact that Respondent spoke in terms of
"might" and "we'll try to keep it at a minimum" in the document which
apparently triggered its employees' latent concerns about their jobs into
union activity weighs as much against Respondent's defense as the entire
document aids it If the notice had said layoffs were certain in the near
future, its significance would be different.
202 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
were abruptly laid off the next morning , worked 9 .5 hours
pursuant to that schedule.
3. The record does not sustain Respondent 's contention
that the layoff of St . Pierre , Gagnon , Mills, and Bourgoin
was simply part of a pattern of layoffs for economic rea-
sons which began with the December 19 notice . Each ex-
ample but two offered by Respondent turned out , on closer
examination , to be something other than a layoff in the
sense developed in the discussion of what words mean set
forth above . John Daigle quit on January 4. He asked No-
bel Levesque for a raise . When Levesque turned him down,
he gave notice . Levesque told him he might as well leave
right away . He did.
Read Levesque called in sick in the week after Christ-
mas. He was told to take the rest of the week off.
Gerald Sirois asked for a day off after Christmas. He
was given a week.
Reynold Pelletier asked for and was granted a week off
in early January.
Gerald Lagasse went home sick one night and never
came back to work.
A man named Voisine failed to show up for work one
day and has not been seen since.
Joseph Gendreau , who had worked for Respondent only
3 or 4 weeks , quit in order to seek work closer to his home.
Ronald Johnson failed to return to work after Christmas.
While each of these personnel actions did help reduce
the total of Respondent 's employees in the period between
December 19 and January 16, it was normal attrition, not a
reduction deliberately brought about by Respondent for
economic reasons . The most the record establishes is that
Respondent did not seek to replace the men it was losing
through attrition during this period.
Even the two exceptions to this pattern do not help Re-
spondent much . Norman Fournier was laid off just before
Christmas . However , he was taken back in less than a week
when he begged Nobel Levesque to do so . Clayton Beau-
lieu, a laborer who had worked for Respondent only 3
weeks , was laid off on January 11 and never recalled. Tak-
ing Nobel Levesque's testimony on this whole subject at
face value , one effective layoff does not establish a planned
reduction in force of the magnitude Respondent sought to
establish . In fact , Levesque 's testimony even as to Beaulieu
is rendered suspect by the following exchange a few min-
utes later when he was on cross-examination:
Q. But I am talking now about the situation where
you in the past have laid somebody off for lack of
work . Hasn't it been the company practice to wait un-
til the end of the work week?
A. I don' t recall ever laying anybody off for lack of
work.
Q. Have you ever laid anybody off for any reason,
prior to the-other than disciplinary reasons-prior to
the 16th of January?
A. No.
4. The record does not sustain the affirmative defense
set forth in Respondent's answer that St. Pierre , Gagnon,
Mills, and Bourgoin were "laid off [for lack of work] as a
direct result [of] the shortage in the supply of steel." Here,
too, the point involves the use of terms of art in the labor
relations field as developed in the discussion above.
Respondent 's counsel stated that he had used "layoff" in
his answer in the technical sense just discussed. I have no
reason to think counsel drafted his pleading without first
conferring with his client . Yet, after and despite this discus-
sion while Nobel Levesque was on the witness stand, Lev-
esque testified that in three of the four cases-St. Pierre,
Gagnon , and Bourgoin-he had suspended on January 16
and not laid off at all . His explanation for the use of the
word "layoff" on January 16 was that it was the only word
he knew to cover termination of employment and he used
it indiscriminately. When he answered "economy . . . and
also for their work performance ," he expanded his motive
from the purely economic one he gave his counsel to some-
thing broader . At the same time , he shifted Respondent's
defense , a sure indicium of pretext.
(The reference in Respondent 's answer to conduct of
Bourgoin and Gagnon at the time of the layoff which con-
verted their layoffs to discharges is to Bourgoin's intemper-
ate language on January 18 and Gagnon's walking off with
some of Respondent's tools on January 16. The gravamen
of the complaint is that the layoff violated the Act. Since
both men were laid off before either of these events oc-
curred, the issue raised is not whether the man was discrim-
inated against but whether he is entitled to reinstatement.
Therefore , that question is discussed in the section entitled
"The Remedy ," below . However , there is additional evi-
dence of pretext even in this part of the record . When the
question of District 99's majority came up during the hear-
ing [see the section entitled "The duty to bargain," below],
Respondent shifted its position as to Bourgoin again, argu-
ing that his refusal on January 16 to agree to check on
Friday , January 18 , as to whether there was any work for
him constituted a quit , thus removing him from the unit as
of January 16.)
5. In the case of Mills , the one discriminatee as to whom
Nobel Levesque 's testimony is arguably consistent with
Respondent's pleading , the record will not sustain a find-
ing that he was laid off for economic reasons . Levesque
distinguished between St. Pierre , Gagnon, and Bourgoin on
the one hand and Mills on the other in this manner (this
testimony, like his generalized statement that he was moti-
vated by "economy . . . and also for their work perfor-
mance," came on direct examination):
Q. Okay. What happened after that, returning to
the 16th after Mr. Gagnon left with the tool box?
A. Mr. Roy Mills walked in.
Q. About what time?
A. It was before 7:00.
Q. What happened?
A. I told him that, due to the economy right then,
that he was laid off . He did not argue or anything. He
asked me , he says, is Michael Lagasse still staying, and
I said yes . And I gave him his check , and told him to
go get his tool box . And he brought it up to the office,
and he asked me if I wanted to check it , and I checked
it.
JUDGE BLACKBURN : Were you also suspending Mills?
THE WITNESS: No.
BAKER MACHINE & GEAR, INC.
JUDGE BLACKBURN : He was different?
THE WITNESS : He was different because there it was
no work.
This economic aspect in Mills' case grew not out of a short-
age of steel but out of Respondent 's efforts to live up to a
specific commitment . Respondent has an informal contract
with a Canadian firm named Thomas, Ltd., under which it
machines gear housings sent to it by Thomas. Mills' job
was to do this work on a boring mill. At the time in ques-
tion , Thomas was expecting Respondent to turn out four
gear housings a day . Mills' daily production was approxi-
mately 2 .6 gear housings a day . Respondent , a short time
before , had placed Michael Lagasse on the boring mill at
night so that the daily production goal could be achieved
after Mills had trained Lagasse on the operation of the
machine . Lagasse was at work on the evening of January
15 when the Levesques , father and son, conferred with
Smith , Respondent 's attorney , at the plant . Lagasse report-
ed for work on the morning of January 16 and took over
Mills' day-shift job on the boring mill. Thus the facts belie
Levesque's contention that there was no work. Mills
worked on gear housings for Thomas , Ltd., on the day shift
on January 15. Gear housings for Thomas , Ltd., continued
to be worked on when the day shift began on January 16.
If Nobel Levesque 's "economy . . . and also for their
work performance" is taken as a claim Mills was let go for
poor work despite Levesque 's later answer "He was differ-
ent, because there it was no work," it places in issue the
question of whether Mills' failure to produce four gear
housings on one shift was his fault, as Levesque claimed, or
the boring mill's fault , as Mills claimed . In view of my low
opinion of Levesque 's testimony, I am not prepared to re-
solve that question against Mills.
In summary , the sequence of events which led up to the
layoff by Respondent on the morning of January 16 of St.
Pierre , Gagnon, Mills , and Bourgoig constitutes a violation
of the Act regardless of what thoughts were in Nobel
Levesque 's mind when he laid them off. Levesque knew,
when he laid them off , that St . Pierre, Gagnon, and Mills
were the leaders of the organizing campaign then under-
way among Respondent 's employees . And the contradic-
tory reasons advanced by Respondent to justify the layoffs
are a pretext masking its real motive , a desire to thwart its
employees in their attempt to exercise their right to orga-
nize . I find, for all these reasons, that Respondent violated
Section 8(a)(3) and ( 1) of the Act when it laid off Dennis
St. Pierre , Gene Gagnon , Roy Mills, and Louis Bourgoin
on January 16, 1974.
2. The independent violations of Section 8(a)(1)
a. Interrogation
At the conclusion of the General Counsel 's case, I grant-
ed Respondent's motion to dismiss two allegations of inde-
pendent 8(a)(1) violations on the ground that the General
Counsel had failed to make out a prima facie case . The first
was an allegation that Respondent withdrew overtime on
or about January 16 as a reprisal for its employees' having
selected District 99 to represent them . The second was an
203
allegation that Nobel Levesque had interrogated employ-
ees on or about January 21. Dismissing the latter left in the
complaint two other allegations of illegal interrogation by
Levesque, one predicated on the poll he took of
Respondent's employees on January 17, the other on his
lectures to individual employees on January 28 and 29.
The January 17 incident was a poll pure and simple,
conducted by Levesque to determine whether there was
validity to the IAM's claim of majority status before the
petition in Case 1-RC-13119 was filed. There is no real
dispute about what happened that day since the General
Counsel's witnesses corroborate Levesque's testimony in
substance. According to Levesque:
Q. What did you and Mr. Smith, your attorney, de-
cide [when the IAM's letter arrived on January 17]? If
anything.
A. Mr. Smith decided that he would answer the let-
ter, to show their hand, or something of that nature.
And I still couldn't believe that there was a majority in
the shop, so I went around and I asked the men, did
you sign a union authorization card, whatever it is.
Q. Who did you talk to in the plant?
A. I talked with all the men.
Q. And how long a period of time did it take you to
go around and ask everybody?
A. Fifteen minutes, at the most.
Q. How long did you spend with each one employ-
ee?
A. Thirty seconds, a minute, fifteen seconds.
Q. (By Mr. Pratt) Okay. What precisely did you say
to each man as you walked up to him?
A. I said, I don't care if you-I got a letter from the
union saying that they had a majority of cards or
something-I don 't know what it means, but did any
of you sign any union authorization cards. Some said
yes. I asked-I don't care which way, you know, what
you did, I'm just curious.
"I don't know what it means-I don't care-I'm just
curious" during the course of conversations that lasted as
little as 15 seconds and a minute at the most is not suffi-
cient communication of the purpose of the poll to the em-
ployees nor is it the giving of sufficient assurances against
reprisals. More importantly, talking to each man individu-
ally and noting his answer on a pad next to his name is
about the farthest thing possible from a poll conducted by
secret ballot. Levesque clearly violated the Act on January
17. Struksnes Construction Co, Inc., 165 NLRB 1062
(1967).
By January 28 the petition in Case 1-RC-13119 was
pending. On that day and the next, Levesque translated the
Board's simple request "to post the enclosed Notice to Em-
ployees" into a duty imposed upon him personally to ex-
plain to each employee his rights under the Act. Unfortu-
nately, his lecture included further inquiries about the
employees' sympathies and desires. Clearly, he violated the
Act on those occasions also. Kay Corporation, d/b/a Holi-
day Inn of Chicago-South, Harvey, 209 NLRB 11 (1974).
I find Respondent violated Section 8(a)(1) of the Act on
204 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
January 17, 28, and 29, 1974, by interrogating its employ-
ees about their union activities, sympathies, and desires.
b. Surveillance
Nobel Levesque did not deny being in the vicinity of the
Knights of Columbus Hall in Van Buren on the evening of
January 23. His explanation was that he and his father
drove past twice, once on their way to and once on their
way from the shop. However, the General Counsel's wit-
nesses , whom I credit, testified that Claude Levesque's
Chrysler Imperial was stopped on the lot of a Ford agency
across the street from the hall with its headlights on and
took off hurriedly when they spotted it and came to the
door of the hall. One witness even identified Claude Lev-
esque as one of the two men in the car. Moreover, Respon-
dent made no effort to deny or explain the fact that Nelson
Ouellette saw his license number and name on a list of such
numbers and names in Nobel Levesque's office next morn-
ing. I find Respondent violated Section 8(a)(1) of the Act
on January 23, 1974, by engaging in surveillance of a union
meeting attended by its employees.
c. The antiunion petition
The last two allegations of independent 8(a)(1) violations
relate to the antiunion petition which was circulated by
Laurence Ouellette. One, which names Attorney Smith as
Respondent's agent, cites assistance in the drafting of the
petition. The other, which names Claude Levesque as
Respondent's agent, cites assistance in the cirulating.
Smith contended that the legal service he rendered to
Ouellette on January 23 was undertaken in his capacity as
an attorney engaged in a general law practice to a client-
Ouellette-having no connection with Respondent and
was, therefore, not undertaken in his capacity as
Respondent's attorney. While he recognized that the work
Ouellette was asking him to do grew out of the situation in
connection with which the Levesques were already utilizing
his services, he saw no conflict, he said, because the inter-
ests of Ouellette and the Levesques were identical. There-
fore, it did not occur to him to inquire whether the Lev-
esques had anything to do with Ouellette's coming to his
office.
Smith is, I think, wrong on both counts . While employer
and antiunion employee may both want to keep a union
out of a plant, their interests are not legally the same. The
employer is a party in the action which has its genesis in
the filing of a petition for a Board election. Employees,
whether they be for or against the union seeking bargain-
ing rights, are not. They are, in a sense , third-party benefi-
ciaries since they are the persons for whose benefit the
Board's representation procedure has been created. Em-
ployers are not legally responsible for the acts of antiunion
employees any more than they are responsible for the acts
of prounion employees absent a common law agency rela-
tionship or condonation or some such doctrine. More im-
portantly, Smith was remiss in his duty to the Levesques
when he failed even to inquire of Ouellette what, if any-
thing, had transpired between him and the Levesques be-
fore Ouellette came to Smith's office. I find, therefore, that
Smith was acting in his capacity as Respondent's attorney
when, on January 23, he drafted the antiunion petition
which Ouellette subsequently circulated in Respondent's
plant.
As to what occurred in the plant, Respondent did not
deny that Ouellette circulated the petition with its knowl-
edge. The fact that at least one employee was asked to sign
in the presence of Claude Levesque establishes that
Ouellette's activities had at least Respondent's tacit ap-
proval. I find Respondent violated Section 8(a)(1) of the
Act by drafting and permitting the circulation of an an-
tiunion petition in its plant.
3. The duty to bargain
The complaint, which was issued before the change in
policy recently announced by the Board in Steel-Fab, Inc.,
212 NLRB 363 (1974), alleges a violation of Section 8(a)(5)
and (1) of the Act in Respondent's failure to recognize and
bargain with District 99 on and after January 17. This alle-
gation is, of course, predicated on a Gissel theory. Because
of Steel-Fab, I find Respondent has not violated Section
8(a)(5). However, as decreed by the Board in Steel-Fab,
this finding has no substantial effect on the last remaining
issue , whether Respondent should be ordered to recognize
and bargain with District 99 as a remedy for its violations
of Section 8(a)(1) and (3) under the guidelines laid down
by the Supreme Court in Gissel.
On January 17, the day Respondent received District
99's demand letter and the date singled out by the General
Counsel as the start of Respondent's continuing refusal to
grant recognition, there were 24 production and mainte-
nance employees on Respondent's payroll. Even under
Respondent's theory St. Pierre and Mills were on layoff
status with a reasonable expectation of recall. Respondent
contends that Gagnon and Bourgoin were not, Gagnon be-
cause he had converted his status to that of a discharged
employee the day before by walking out with some of
Respondent's tools and Bourgoin because he had quit the
day before by saying he would not return on Friday to
check whether he still had a job. Respondent is wrong as to
each. It did nothing affirmative about Gagnon's status af-
ter he left the plant on January 16. Therefore, regardless of
whether Respondent had grounds for discharging him that
day, there is no evidence on which to base a finding that it
did so. As to Bourgoin, a laid-off employee's refusal to
come back to the plant periodically does not indicate a
desire on his part to end the employment relationship by
quitting. If an employer can legally impose such a require-
ment as a condition of maintaining the employment rela-
tionship in a laid-off status, failure of the employee to meet
the requirement would, at most, give the employer grounds
for discharge. As in the case of Gagnon, there is no evi-
dence Respondent did anything to change Bourgoin's sta-
tus from laid-off to discharged employee after he left the
plant on January 16. I find, therefore, that Gagnon and
Bourgoin were also laid-off employees with a reasonable
expectation of recall as of January 17. The fact that St.
Pierre, Mills, Gagnon, and Bourgoin were also, as of Janu-
ary 17, victims of Respondent's unfair labor practices only
enhances the conclusion that they were part of the unit on
BAKER MACHINE & GEAR, INC.
the crucial date . It follows that there were 28 employees in
an admittedly appropriate unit when District 99 demanded
recognition.
On January 17, District 99 had in its possession authori-
zation cards signed by 18 of these 28 employees . Eleven
had been signed on January 14. Seven had been signed on
January 15. They read, in pertinent part:
I, the undersigned , an employee of Baker Machine &
Gear, Inc., hereby authorize the International Associ-
ation of Machinists and Aerospace Workers (IAM) to
act as my collective bargaining agent with the compa-
ny for wages , hours and working conditions . It is my
understanding that I will be invited to join the IAM.
Respondent sought to disprove District 99's majority by
proving that the employees had been told the only purpose
of the cards they signed was to get a Board election. (Re-
spondent also fished for testimony that the employees were
told card signers would not have to pay an initiation fee.
The results in this area were so meager that the subject is
not worth further discussion.)
The 11 employees who signed authorization cards at the
meeting held on the evening of January 14 all listened to
the same pitch. As Dennis Martin , president of District 99,
credibly testified, Edward Vinson told them the cards
would be used either to seek voluntary recognition from
Respondent or to petition the National Labor Relations
Board to hold an election . As to the latter , Vinson ex-
plained the IAM's national policy of not going to a Board
election until it has in its possession cards signed by at least
60 percent of the employees in the unit for which it is seek-
ing recognition . I find , therefore , that none of the January
14 cards is invalid because the signer was told that it would
be used solely for the purpose of seeking a Board election.
The seven employees who signed authorization cards on
January 15 were approached individually. Reynold Pelleti-
er and Gerald Emond were solicited by St. Pierre. Fred
Voisine was solicited by Gagnon . None testified he was
told the only purpose of the card was to get an election.
Pelletier and Emond testified they read the card before
signing it . Voisine, who speaks only French and had to
testify through an interpreter, testified Gagnon "said it was
a card for the union " and "explained the card , it was a card
for the union." There is no basis for invalidating any of
these three cards.
The first witness whose testimony raised a possibility
that the person who spoke to him had said the wrong
words was Michael Sirois . On direct examination as a wit-
ness for the General Counsel , he testified that he signed his
card for Gagnon after reading it. On cross -examination
came:
Q. (By Mr . Pratt) Mr. Sirois , what did Mr. Gagnon
tell you about the card?
A. He told me if we wanted the union , he explained
to me-
Q. Isn't it true that Mr. Gagnon said to you that the
only purpose for signing this card was so the union
could get enough votes to win the election?
A. Yes.
On redirect came:
205•
Q. (By Mr. Marrow) Did he say anything else to
you at the time?
A. No, I filled out the card and gave it back.
Q. He handed you the card, and that is all he said
to you?
A. Yes, but I knew-we talked about, you know,
the union.
Q. What did you talk about?
A. Oh, he said it would help us. It's one thing I
wanted.
Q. You wanted the union?
A. Well, more or less, yes.
Q. When you finally got together, what is it that he
said that he wanted? What did he say to you?
A. He asked me if I wanted to sign the card. So I
said yes.
Q. And did he say anything else?
A. No.
Q. Did he say what the card was for?
A. Yes. I knew-
JUDGE BLACKBURN: The question is did he say what
the card was for.
Q. (By Mr. Marrow) What did he say the card was
for?
A. Well, yes-
MR. PRATT: I think he has already testified.
JUDGE BLACKBURN: He has, but Mr. Marrow has a
right to pursue it on redirect examination, to see if he
cannot shake the answer you got on cross.
Do you understand the question, Mr. Sirois?
THE WITNESS: Yes.
JUDGE BLACKBURN: The question is, what did Mr.
Gagnon say to you about the card when he gave it to
you. Now, can you tell me what he said?
THE WITNESS: Well, he asked me if I wanted to sign
the card, and I asked him what for, and he told me for
the union. That's the only thing he told me.
Q. (By Mr. Marrow) Just for the union?
A. Yes, to get the union in, for our benefit. And
better wages and that's it.
Q. Anything else that was said?
A. No.
Q. In response to a question put to you by Mr.
Pratt you said something about an election. You said
something-
MR. PRATT: I beg your pardon. I believe his answer
is not quite that way.
JUDGE BLACKBURN: All right. I am going to intervene
at this point, gentlemen. Miss Reporter, please go
back to the crucial question and answer on cross ex-
amination, and read it out of the record to this wit-
ness, please.
THE REPORTER: Q. Isn't it true that Mr. Gagnon said
to you that the only purpose for signing this card was
so the union could get enough votes to win the elec-
tion?
A. Yes.
JUDGE BLACKBURN: Go ahead, Mr. Marrow.
206 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. (By Mr. Marrow) Is that your best recollection
of everything that Mr. Gagnon said to you at the time
about the-
A. Well, I can't remember the exact words.
Q. Could you give it to us again, your best recollec-
tion as to what he said at the time?
A. Well, he talked to me about-we talked about
the union. And he asked me if I wanted to sign the
card. So I said yes. So he mentioned about what the
union was about, which the people of the union told
him. That is the only thing I went by.
Q. And you signed the card?
A. I signed the card.
MR. MARROW: I have no further questions.
JUDGE BLACKBURN : Recross.
RECROSS EXAMINATION
Q. (By Mr. Pratt) Mr. Sirois, I am not clear on what
your answer is. The lady played back my question to
you, and your answer. Are you changing your testimo-
ny now?
A. No, I am not changing it, because-I don't
know, it has been so far back that I cannot remember
exact words that he-we talked about.
MR. PRA17: I have no further questions.
MR. MARROW: NO further questions.
JUDGE BLACKBURN: Thank you. You are excused.
On the basis of this testimony by Sirois, I find Gagnon did
not tell him the only purpose of the authorization card he
read and signed was to get a Board election.
When the card of Sirois is added to the 14 already con-
sidered, it is obvious that District 99 had a majority of at
least 15 valid cards in a unit of 28 employees. I turn to the
other three cards nonetheless in the interest of complete-
ness.
There were two employees named Ronald Lausier in the
unit on January 17. One is identified in the record as plain
Ronald, the other as Ronald E. Like Sirois ; Ronald was
called as a witness by the General Counsel. Ronald E.
failed to respond to the General Counsel's subpena. How-
ever, he showed up as a witness called by Respondent after
his card was authenticated by St. Pierre.
Ronald Lausier was unsure who had solicited his card
but allowed as how it might have been St. Pierre. Direct,
cross-examination, redirect and recross-examination on the
subject of what was said to him by the solicitor is similar to
that set forth in detail above from the testimony of Sirois,
especially in its vagueness and uncertainty. St. Pierre's tes-
timony on this point was as follows:
Q. Do you recall any other conversations with
other employees that day about the Machinists
Union?
A. Well, after work I met with some of the employ-
ees outside the shop, before they got in their cars to go
home.
Q. What time would this have been?
A. After five o'clock.
Q. And could you tell us who you met with?
A. I met with Mr.-the two Lausiers.
Q. They both-
A. They both have the same name , both Ronalds,
one Ronald E., and the other one Ronald.
Q. And was anyone else present?
A. There was a Mr. Pelletier-[Reynold] Pelletier-
was present.
Q. Could you tell us what happened on that occa-
sion?
A. Well, I asked them-and I told them that we
were trying to organize a union, and I asked them to
see if they were interested. And they didn't even ask
me to explain it or anything. They just took the cards
and they said, give us the cards, and we 'll sign them.
To the extent there is any conflict between the testimony of
Ronald Lausier and St. Pierre (and I am not sure there
really is any), I credit St. Pierre over Lausier. I find St.
Pierre did not tell Ronald Lausier the only purpose of the
authorization card he signed was to get a Board election.
The card of Ronald E. Lausier presents a collateral
problem. The date has been written over. The original date
appears to be have been "1/12/74" with the "2" written
over to make a "5." This Lausier testified that he signed for
St. Pierre only after St. Pierre had badgered him for 3 days
and that the change in the date on the card had not been
made by him. However, the earliest St. Pierre had blank
authorization cards in his possession was the evening of
January 14 and the only day on which he was in the plant
with cards was January 15. Therefore, Ronald E. Lausier's
story that he only signed because St. Pierre pressured him
for 3 days is false on its face. Regardless of what the rather
illegible mark in the card's "Date" blank signifies, it is ob-
vious that the card could only have been signed on January
15.
On the more important question of what St. Pierre said
to him, Ronald E. Lausier merely testified:
Q. Do you recall anyone from the union ap-
proaching you to sign an authorization card with re-
spect to the union?
A. Anyone from the union, or from the shop?
Q. From the shop.
A. Yes.
Q. Who was that?
A. Mr. Dennis St. Pierre.
Q. And what happened at that time?
A. He asked me to sign a card, a union card.
Q. Did you sign?
A. No, I refused. I told him I didn't want to sign
any cards.
Q. What happened then?
A. He again asked me the day after, and everytime
he seen me he'd ask me and I'd say no. I didn't want
to sign a card.
Q. What did Mr. St. Pierre say to you, if anything?
A. He said it was just a card for the union, you
know, for just a vote for the union.
Q. All right. Did he say anything else to you?
A. No.
Q. Did you finally sign the card?
A. The third day when he asked me, and when I
was leaving that night, I just-I filled out the address,
and I signed my name.
BAKER MACHINE & GEAR, INC.
Q. Did he say anything further to you at that time?
A. No.
As to the circumstances under which Ronald E. Lausier
signed, I credit St. Pierre over Lausier. On the basis of the
testimony of both as to what was said, I find St. Pierre did
not tell Ronald E. Lausier the only purpose of the authori-
zation card he signed was to get a Board election.
Donald Gendreau also failed to honor the General
Counsel's subpena but showed up as a witness for Respon-
dent. He testified thus:
Q. All right. Do you know who approached you
and talked to you about it?
A. Yes.
Q. Who was it?
A. Dennis St. Pierre.
Q. What did he say to you about the card?
A. We just talked about-well, the first time he was
just talking about it. Then the second day he asked me
if I wanted to sign . And I said I didn't know.
Q. What further, if anything, did he say to you
about the card?
A. That's all.
Q. Did he give you any reasons for why you should
sign the card?
A. He said we would hold an election. There would
be an election for the union.
Q. Did he state any other reasons?
A. No.
As with Ronald E. Lausier, the story that St. Pierre solic-
ited Gendreau on 2 successive days before Gendreau
signed is false on its face. For that reason, because a con-
trary finding would require a strained reading of
Gendreau's testimony, and because there is no reason to
think that St. Pierre's approach to Gendreau was different
from his approach to other employees, I find St. Pierre did
not tell Donald Gendreau the only purpose of the authori-
zation card he signed was to get a Board election.
Adding these last 3 cards to the 15 already found to be
valid gives District 99 a majority of 18 out of 28 employees.
I find that, as of January 17, 1974, all the prerequisites to
an order requiring Respondent to bargain with District 99
were in existence , namely, a demand for recognition and
bargaining in an appropriate unit of employees, a majority
of whom had expressed their desire to be represented by
executing valid authorization cards.
III. THE OBJECTIONS TO THE ELECTION
The Report on Challenged Ballots and Objections to
Conduct of the Election issued in Case 1-RC-13119 on
March 26 by the Regional Director recommended that
"Objection #2, and the matters related above not specifi-
cally mentioned In the Objections . . . be consolidated for
purpose of hearing." The Board's Order Directing Hearing,
dated April 12, ordered "that a hearing be held for the
purpose of receiving evidence to resolve the issues raised
by Petitioner's Objection #2 and the matters related there-
in [sic] not specifically mentioned in the Objections."
Objection 2 reads "On January 16, 1974, the Employer
207
terminated the employment of Dennis L. St. Pierre, Gene
J. Gagnon , Roy R . Mills, Sr ., and Louis Gagnon [sic], em-
ployed at the Van Buren, Maine plant ." The Regional
Director 's report states , in pertinent part:
This Objection relates to certain allegations of the
Consolidated Complaint issued in Case Nos. 1-
CA-9561 and 1-CA-9564 ( 1-4). The terminations in-
volved occurred on January 16, 1974 and the Petition
in the instant case was filed on January 23 [sic], 1974.
Although in the ordinary course of events, conduct
which precedes the filing of a petition cannot be made
the basis of objectionable conduct ,4 the question to be
answered is did the act of terminating these employees
make a free election impossible ? This must be consid-
ered in order to create an understaning as to whether
the election should be set aside. See Willis Shaw Fro-
zen Express, Inc., 209 NLRB No. 11, p. 2. "It is within
the province of the Board to set an election aside in
order to protect the basic values of the Act even
though all the conduct occurred before the petition
was filed ." Weather Seal Incorporated, 161 NLRB
1226, 1228-29. These discharges of leading union ad-
herents, if found to have violated Section 8 (a)(3), cer-
tainly would have made impossible a free , untram-
meled choice of bargaining representative . Therefore,
this Objection will be consolidated for purposes of
hearing with Case Nos. I-CA-9561 and
1-CA-CA-9564 (1-4).
The Consolidated Complaint issued in Case Nos.
1-CA-9561 and 1-CA-9564 ( 1-4) alleges, as violation
of Section 8(a)(1) of the Act , certain Employer con-
duct which occurred subsequent to the filing of the
Petition in the instant case , to wit, instances of interro-
gation, assistance by Employer 's agent in drafting a
petition to reject the Union, and surveillance of a
union meeting . That conduct , if found to have oc-
curred , would constitute grounds for setting aside the
election . Dal-Tex Optical Company, Inc., 137 NLRB
1782, 1786-1787; Playskool Manufacturing Company,
140 NLRB 1417, 1419 ; Leas and McVitty, Inc., 155
NLRB 389, 391 . Although this conduct was not specif-
ically alleged in the Objections , it is the Board's estab-
lished rule that in an investigation of conduct affect-
ing the results of an election , "the Regional Director is
not required to, nor can he properly ignore evidence
relevant to the conduct of the election simply because
such conduct was not specifically alleged in the Objec-
tions". National Electric Coil Div., McGraw Edison
Company, 184 NLRB No. 95 and cases cited therein;
International Shoe Company, 123 NLRB 682, 684.
Therefore, these matters will also be consolidated for
purposes of hearing with Case Nos. 1-CA-9561 and
1-CA-9564 (1-4).
I have found above that Respondent committed all the
unfair labor practices alluded to by the Regional Director.
I recommend below that Respondent be required to recog-
nize and bargain with District 99 as part of the remedy for
4 Goodyear Tire & Rubber Company, 138 NLRB 453, 454, The Ideal Elec-
tric and Manufacturing Company, 134 NLRB 1275, 1278
208 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
those unfair labor practices. Therefore, despite the fact that
the only unfair labor practices found to have occurred after
the petition in Case I-RC-13119 was filed on January 25
were the interrogations which took place on January 28
and 29, I recommend that the election held in Case
1-RC-13119 on February 21, 1974, be set aside and all
proceedings connected therewith be vacated. In doing so, I
rely on the reasons and cases cited by the Regional Direc-
tor in his Report on Challenged Ballots and Objections to
Conduct of the Election with the Board's tacit approval in
its Order Directing Hearing.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Baker Machine & Gear, Inc., is an employer engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act.
2. District No. 99, International Association of Machin-
ists and Aerospace Workers, AFL-CIO, is a labor organi-
zation within the meaning of Section 2(5) of the Act.
3. By laying off Gene Gagnon, Dennis St. Pierre, Roy
Mills, and Louis Bourgoin on January 16, 1974, for engag-
ing in union activities, Respondent has violated Section
8(a)(3) and (1) of the Act.
4. By interrogating employees about their union activi-
ties, sympathies, and desires, by engaging in surveillance of
their union activities, and by drafting and permitting the
circulation of an antiunion petition in its plant, Respon-
dent has violated Section 8(a)(1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. District 99 is the sole and exclusive bargaining repre-
sentative of Respondent's employees in the following ap-
propriate unit:
All full time and regular part time production and
maintenance employees of Respondent employed at
its Van Buren, Maine, plant, excluding office clerical
employees, professional employees, guards, and super-
visors as defined in Section 2(11) of the Act.
7. The allegation of the complaint that Respondent vio-
lated Section 8(a)(1) of the Act by withdrawing overtime
on or about January 16 as a reprisal for its employees'
having selected District 99 to represent them has not been
sustained.
8. The allegation of the complaint that Respondent vio-
lated Section 8(a)(5) of the Act has not been sustained.
THE REMEDY
In order to effectuate the policies of the Act, it is neces-
sary that Respondent be ordered to cease and desist from
the unfair labor practices found, remedy them, and post
the usual notice. I will, therefore, recommend Respondent
be ordered to reinstate Gene Gagnon and Louis Bourgoin
and make them and Dennis St. Pierre and Roy Mills whole
for any earnings lost as a result of their layoff on January
16, 1974, by the payment of backpay computed on a quar-
terly basis, plus interest at 6 percent per annum, as pre-
scribed in F. W. Woolwoth Company, 90 NLRB 289 (1950),
and Isis Plumbing & Heating Co., 138 NLRB 716 (1962). St.
Pierre and Mills received unconditional offers of reinstate-
ment from Respondent by letters dated April 18, 1974. Ad-
ditional offers to them are not required to remedy the un-
fair labor practices committed and their backpay tolls as of
that date. Gagnon did not intend to steal Respondent's
tools when he walked out of the plant with them in his
locked toolbox on January 16, as evidenced by the fact he
returned them within a few days. At most, he, like Bour-
goin in the argument of January 18, was guilty of disre-
spect to Nobel Levesque. Given the provocation each was
subjected to, the wonder is that each did not commit some
greater rather than lesser breach of good manners. Neither
incident is of a nature to render the man unfit for further
employment. Therefore, an offer of reinstatement to each
is required to remedy the unfair labor practices committed
and their backpay periods are still open.
I will also recommend that Respondent be ordered to
recognize and bargain with District 99. Such an order is
necessary to remedy the violations of Section 8(a)(1) and
(3) found because it is improbable that a fair election can
be held in the foreseeable future where, as here, Respon-
dent has laid off four employees, including the three lead-
ers of the organizing drive, for engaging in union activities,
interrogated employees, engaged in surveillance of their
union activities, and participated in an antiunion campaign
among its employees. The climate of fear caused by unfair
labor practices of such magnitude, especially the loss of
jobs and income in these uncertain times, will only be dissi-
pated by a period of stable labor relations, the end for
which the Act, the Board, and the concept of free collective
bargaining exist. In such circumstances, the authorization
cards executed by the employees are the more reliable indi-
cator of their desire for representation.
Upon the basis of the foregoing findings of fact, conclu-
sions of law, and the entire record in this proceeding, and
pursuant to Section 10(c) of the Act, I hereby issue the
following recommended:
ORDERS
Baker Machine & Gear, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Laying off employees for engaging in union activi-
ties.
(b) Interrogating employees about their union activities,
sympathies, and desires.
(c) Engaging in surveillance of employees' union activi-
ties.
(d) Drafting and permitting the circulation of antiunion
petitions in its plant. '
5 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
BAKER MACHINE & GEAR, INC.
(e) In any manner interfering with, restraining, or coerc-
ing employees in the exercise of rights guaranteed in Sec-
tion 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Offer Gene Gagnon and Louis Bourgoin immediate
and full reinstatement to their former jobs or, if those jobs
no longer exist , to substantially equivalent positions, with-
out prejudice to their seniority or other rights and privi-
leges , and make them and Dennis St. Pierre and Roy Mills
whole for any earnings they lost , plus interest, as a result of
their layoff on January 16, 1974.
(b) Preserve and, upon request , make available to the
Board or its agents , for examination and copying, all pay-
roll records , social security payment records , timecards,
personnel records and reports , and all other records neces-
sary to analyze the amount of backpay due under the terms
of this recommended Order.
(c) Upon request, bargain collectively with District No.
99, International Association of Machinists and Aerospace
Workers , AFL-CIO, as the exclusive representative of all
its employees in a unit of all full-time and regular part-time
production and maintenance workers employed at its Van
Buren, Maine , plant, excluding office clerical employees,
professional employees , guards , and supervisors as defined
in Section 2(11) of the Act and, if an understanding is
209
reached, embody such understanding in a signed agree-
ment.
(d) Post at its plant in Van Buren , Maine, copies of the
attached notice marked "Appendix." 6 Copies of said no-
tice, on forms provided by the Regional Director for Re-
gion 1, after being duly signed by Respondent's authorized
representative, shall be posted by it immediately upon re-
ceipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by Respondent to insure that
said notices are not altered, defaced, or covered by any
other material.
(e) Notify the Regional Director for Region 1, in writ-
ing, within 20 days from the date of this Order, what steps
the Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges Respondent violated Section 8(a)(1) of
the Act by withdrawing overtime on or about January 16,
1974, as a reprisal for its employees' having selected Dis-
trict 99 to represent them and insofar as it alleges Respon-
dent violated Section 8(a)(5) of the Act.
6 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National 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"