Brown Group, Inc.

National Labor Relations Board - Board Decisions

May 12, 1976

223 N.L.R.B. 1409 (N.L.R.B. 1976)

HEDSTROM COMPANY 1409
Hedstrom Company, a subsidiary of Brown Group,
Inc. and International Association of Machinists
and Aerospace Workers, District No. 98, AFL-
CIO. Cases 6-CA-7619 and 6-RC-6762
May 12, 1976
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS FANNING
AND PENELLO
On November 19, 1975, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and the Respondent filed exceptions and supporting
briefs, and the General Counsel filed a statement in
answer to the Respondent 's exceptions.'
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 ° of the Administrative Law Judge to the
'We deny the General Counsel's motion to strike portions of
Respondent's brief . Thus, Respondent was not required , in the circum-
stances of this case , to file specific exceptions to the Administrative Law
Judge 's finding that the Union lacked a card majority among the employees
inasmuch as that finding supported Respondent 's position.
2 At the commencement of the hearing , the General Counsel moved to
amend the complaint to include an allegation that Respondent violated Sec.
8(a)(5) of the Act based on the Board 's decision in Trading Port, Inc., 219
NLRB 298 (1975), which issued after the complaint in the instant case but
prior to commencement of the hearing . The Administrative Law Judge de-
nied the motion . In the circumstances of this case , we find that the Adminis-
trative Law Judge erred in denying the General Counsel's motion. Thus,
while the complaint did not allege a violation of Sec . 8(a)(5) of the Act, we
note that the original charge did contain such an allegation and that as
discussed , infra, all of the elements necessary to prove a violation of Sec.
8(a)(5) of the Act were fully litigated and proved during the normal course
of the instant hearing in connection with the General Counsel's seeking a
bargaining order to remedy the unfair labor practices alleged in the com-
plaint. We also note that Respondent vigorously contested the majority
status of the Union. In these circumstances , we find that the Respondent
was on notice that it might have to recognize and bargain with the Union as
a remedial measure if the unfair labor practice allegations were sustained.
notwithstanding the refusal of the Administrative Law Judge to permit the
complaint's amendment to allege the legal conclusion of an 8 (a)(5) violation
based thereon.
J The General Counsel and the Respondent have excepted to certain
credibility findings made by the Administrative Law Judge . It is the Board's
established policy not to overrule an Administrative Law Judge' s resolu-
tions 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 revers-.
inp his findings.
The Administrative Law Judge found that Respondent , in the person of
William Griffiths , violated Sec . 8(a)(1) of the Act by granting benefits to
employees , but he omitted to include provisions related to this finding in his
Conclusions of Law and his recommended Order. We have modified the
Conclusions of Law and Order , respectively , to reflect that finding.
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
1. The Administrative Law Judge found, and we
agree , for the reasons stated by him, that the Respon-
dent violated Section 8(a)(1) of the Act by expressly
and impliedly threatening to close its plant in the
event the Union won the election; 5 by threatening
employees with various other reprisals if they select-
ed the Union as their collective-bargaining represen-
tative; by interrogating employees about their union
activities, membership, and desires; by promising
employees various benefits and granting them bene-
fits if they refrained from selecting the Union as their
collective-bargaining representative; by soliciting
grievances from employees in order to deter them
from selecting the Union; and by creating the im-
pression of surveillance of employees' union activi-
ties.
2. Contrary to the Administrative Law Judge, we
find that the Respondent, through its president,
Ketcham, violated Section 8(a)(1) of the Act by
threatening employee Norman Anderson. Thus, the
record establishes that on March 16, 1974, Ketcham
and Anderson became engaged in a conversation at a
dinner-dance at the local Elks Club. At one point in
the conversation, during a discussion of Anderson's
life and hard times , Ketcham pointed out that, not-
withstanding Anderson's abrasive manner, he was
judged solely on his work, which was good. Ketcham
in no uncertain terms said he would have fired An-
derson if he had been president of the Company dur-
ing two previous union organizing attempts. The Ad-
ministrative Law Judge did not find Ketcham's
statement threatening because of the social setting of
the conversation and because he viewed Ketcham's
remarks as assuring Anderson that he would not be
fired during the present union campaign. We dis-
agree . Notwithstanding the nature of the conversa-
tion, we find that Ketcham's statement to Anderson
constituted a threat to discharge him if he engaged in
union activities. It is well settled that threats to em-
ployees from friendly supervisors can be no less coer-
cive to employees than threats by a hostile supervisor
and can carry a greater aura of reliability and truth-
fulness. Rust Craft Broadcasting Company, a wholly
owned subsidiary of Rust Craft Greeting Cards, Inc.,
5 In the circumstances of this case , where the evidence establishes that the
entire community was aware of the fact that Respondent had moved its
plant from Fitchburg , Massachusetts , to Bedford, Pennsylvania , to avoid
collective-bargaining relations with another union, and in light of evidence
that threats to close the plant if the Union won the election were made by
other supervisors , we agree with the Administrative Law Judge's finding
that President Ketcham's reference , during his election eve speech to em-
ployees, to the "unhappy experience" of the employees in Fitchburg consti-
tuted a subtly implied threat to close the plant in Bedford in the event that
the Union won the election . In other words, it was a reminder to them that
what happened once before could very easily happen again.
223 NLRB No. 211
1410 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
214 NLRB 59 (1974). Certainly that would be true if
the authority speaking was the president of the Com-
pany and an official who could clearly make good
the threat. We conclude, therefore, that Ketcham's
threat to discharge Anderson violated Section 8(a)(1)
of the Act .6 Contrary to our dissenting colleague, we
cannot agree that Ketcham's statements to Ander-
son, as found by the Administrative Law Judge,
amounted to an assurance that Anderson would not
be fired during Ketcham's presidency for union ac-
tivity. Rather, in our opinion, Ketcham's bold asser-
tion, accompanied by a vulgar epithet to give it force,
that Anderson would have been fired during the pre-
vious union organizational campaigns if Ketcham
had then been president, carried with it the clear
threat that such a discharge could occur in the future.
3. We agree with the Administrative Law Judge,
for the reasons stated by him, that the election held
on March 28, 1974,' should be set aside. Thus, the
Administrative Law Judge found that the requisite
election standards were destroyed by the election eve
speech by Respondent's president, Ketcham, in
which he referred to the "unhappy experience" of
Respondent's employees in Fitchburg, Massachu-
setts (from where, as all the employees knew, Re-
spondent had moved its plant to avoid unionization),
and a local newspaper's front page editorial on the
day of the election referring to the "bitter experi-
ence" of Respondent's Fitchburg employees and
linking local development and Respondent's expan-
sion plans with the outcome of the election. In addi-
tion, we find that Respondent's numerous violations
of Section 8(a)(l) between the time the petition was
filed through the day of the election further compro-
mised the Board 's election standards and constitute
additional grounds for setting aside the election.
However, while we would set aside the election, we
disagree with the Administrative Law Judge's finding
that Respondent's unfair labor practices did not
make the holding of another election impossible.
Rather, we find that there is little or no likelihood
that a second and fair election could be conducted in
the face of the extensive and far-reaching unfair la-
6 Chairman Murphy dissents from this finding for the reasons relied on
by the Administrative Law Judge in not finding Ketcham 's statement to
Anderson to be a threat . Like the Administrative Law Judge . the Chairman
concludes that Ketcham merely meant to inform Anderson that, while in
the past the latter 's union activities would have prompted his discharge, that
was no longer the case even though Ketcham now was in a position to so
act. The Chairman believes that her colleagues have completely disregarded
the frank and candid nature of the two men's conversation in which deceit
and rancor clearly played no part, and, more significantly, have divorced
the allegedly threatening statement from other remarks of Ketcham . partic-
ularly the one assuring Anderson that his continued employment rested
solely on his work performance and nothing else. That assurance, in the
Chairman's view , removed any potentially threatening aspects from the
comment of Ketcham that her colleagues find unlawful.
7 All dates are in 1974.
bor practices committed by Respondent, and that,
hence, a bargaining order is warranted to protect the
employees' representational rights. In so finding, we
conclude, unlike the Administrative Law Judge, that
a majority of the unit employees, through valid au-
thorization cards, designated the Union as their rep-
resentative for collective-bargaining purposes.'
The record establishes that the Union solicited val-
id authorization cards from 128 of the 249 unit em-
ployees as of March 4 and that majority status was
first achieved as of February 15 when it held 125
valid authorization cards. Thus, in addition to the
123 cards found valid by the Administrative Law
Judge, we find valid the cards of the following em-
ployees:
Clair Black signed an authorization card after
reading it on February 6, 1974. Black testified that
she was unable to remember who solicited the signed
card from her or what was said by the solicitor, but
that it was her understanding and general impression
from persons unknown and unidentified that the
cards were being solicited to obtain an election. Since
Black's understanding as to the purpose of the card
was not obtained from the solicitor and in view of
Black's clear testimony that she had read the card
before she signed it, we find Black's card to be valid.'
Richard Cloud testified that he signed a card, but
was unable to remember who solicited the card and
what was said to him at the time by the solicitor.
Cloud consistently denied that the solicitor told him
that the card would be used solely to get an election,
except for a single response to a question propound-
ed by Respondent's attorney which Cloud said he
did not understand and to which the General
Counsel's objection was sustained. In these circum-
stances, there is no basis for finding that Cloud
signed his card for any purpose other than that stated
thereon 10 and, accordingly, we find Cloud's card val-
id."
Gary Miller read and signed a card which was so-
licited by fellow employee Ed Allison. At the time of
the solicitation Allison told Miller that the employees
"wanted to see if they could get the Union up for a
vote" and that "if there was enough of a percentage,
then it would come up for a vote." Miller then read
and signed the card. While alluding to another use of
8 We find that the appropriate unit is that stipulated to by the parties in
the Stipulation for Certification Upon Consent Election approved by the
Re^ional Director in Case 6-RC-6762.
Medley Distilling Company, Inc., 187 NLRB 84, fn . 8 (1970): N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575, 606-607 ( 1969).
10 The card reads: " I, the undersigned , an employee of (Company) hereby
authorize the International Association of Machinists and Aerospace Work-
ers (IAM ) to act as my collective bargaining agent with the company for
wages, hours and working conditions . It is my understanding that I will be
invited to join the IAM."
11 Gissel Packing Co., supra.
HEDSTROM COMPANY
the card, i.e., an election, Allison did not contradict
the plain statement on the card or misstate its pur-
pose. Nor did Allison's failure to state the explicit
authorization contained in the card indicate that it
was abandoned or ignored. Accordingly, we find
Miller's card to be valid."
For similar reasons , we shall count the cards
signed by Robert Rollins and Edward Wills. Each
testified that he read the card handed to him before
signing . Thus , the fact that the solicitors stated to
them that the cards would be used to get an election
cannot be construed as misrepresenting the purpose
of the card as unambiguously stated thereon. There-
fore, we find their cards to be valid.13
In addition to offering signed authorization cards
as evidence of the Union's majority, the General
Counsel elicited testimony from employee William
Hammer that sometime in February he had signed
an authorization card which was solicited by and re-
turned to fellow employee David Mock. Mock cor-
roborated Hammer's testimony, but testified that
Hammer's card thereafter was lost. Although the best
evidence of Hammer's designation of the Union
would be his signed card , it is settled that the testi-
mony of an employee is itself probative of a union's
majority status in circumstances where the card has
been misplaced . 14 Based on the mutually corrobora-
tive testimony of Hammer and Mock, we find that
Hammer signed a union card. Consequently, we shall
count Hammer among the employees who designat-
ed the Union as their collective-bargaining represen-
tative.
Accordingly, we find that the Union successfully
solicited authorization cards from a majority of the
Respondent's employees at least as of February 15.
In N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969), the Supreme Court approved the use of
authorization cards as an indication of employee sen-
timent , and further approved reliance upon such
cards as a basis for a bargaining order where there is
"a showing that at one point the union had a majori-
ty" and the employer has engaged in unfair labor
practices which "have a tendency to undermine ma-
jority strength and impede the election processes."
395 U.S. at 614.
In the instant case , Respondent 's unfair labor
practices began on the day following the Union's ini-
tial organization meeting at the Holiday Inn, i.e.,
February 5, continued unabated through the elec-
tion , and had the effect of dissipating the Union's
majority status as established by authorization cards.
12 Federal Stainless Sink Div. of Unarco Industries, Inc., 197 NLRB 489.
494 (1972); Essex Wire Corporation , 188 NLRB 397, 414-415 (1971).
13 Federal Stainless Sink Div . of Unarco, supra at 494.
14Aero Corporation, 149 NLRB 1283 , 1291 (1964).
Thus, on the morning of February 6, Supervisor
Rhealt approached employee Wambaugh and in-
quired whether he had a good time at the Holiday
Inn the night before. A few days later, Foreman Will
interrogated employee Hilmer as to what had oc-
curred at the organizational meeting. There followed
a massive campaign by the Respondent, through 11
of its supervisors, including its president and manag-
er of manufacturing, to threaten, cajole, and coerce
employees to drop their support for the Union. Thus,
employees were interrogated as to their union sympa-
thies. Implied threats to close the plant if the Union
won the election, a subject which goes to the heart of
employees' maintenance of their employment, were
made by Manager of Manufacturing Griffiths, who
told employee Brandt that Respondent's plant would
not be worth much without Respondent, and by Ma-
chine Shop Foreman Beland, who told employee
Greaser" that the Union had done no good in Fitch-
burg and would do no good here, an obvious refer-
ence to Respondent's decision to close its Fitchburg
plant to avoid unionization. Other threats were made
to employees to end overtime, take away benefits,
enforce plant rules , and create more onerous working
conditions if the Union won the election. In addition,
grievances were solicited from employees and in
most instances were promptly remedied. In some in-
stances , promises to remedy grievances were made.
In all, there were approximately 41 separate instan-
ces of threats, interrogations, solicitations of griev-
ances , promises or granting of benefits, and impres-
sions of surveillance of union activities. This series of
misconduct culminated in an election eve speech to
all employees by Respondent's president, Ketcham,
wherein, through reference to the employees' "un-
happy experience" in Fitchburg, as discussed above,
he impliedly threatened to close the plant if the
Union won the election. In our view, this pervasive
misconduct, directly affecting all of the Respondent's
employees, created an atmosphere hostile to the
Union and its adherents and was clearly intended to,
and did in fact, dissipate the Union's majority status
among the employees. In these circumstances, we
find that "employee sentiment, once expressed
through cards, would, on balance, be better protect-
ed by a bargaining order." N.L.R.B. v. Gissel Packing
Co., supra at 614-615.
The record establishes that the Union demanded
recognition from Respondent in a letter dated Febru-
ary 12 and that Respondent rejected the Union's de-
mand in a letter dated February 14. Although as of
those dates the Union did not enjoy majority status,
the Union's written request for recognition stated
that its demand should be considered as "continu-
ing;" and further stated that it was ready at
1412 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's convenience to discuss its majority sta-
tus and to negotiate a collective-bargaining contract.
Furthermore, in rejecting the Union's demand. Re-
spondent urged it to file a petition with the Board,
which the Union promptly did on February 21.
Meanwhile, the day after recognition was denied and
3 days after its initial demand, the Union achieved
majority status . Recently, in a similar situation, the
Board, providing for a bargaining order as part of the
remedy for an employer's unfair labor practices,
found that respondent refused to bargain with the
union as of the date the latter obtained a majority,
which, like here was after the initial demand was
made and the unfair labor practices began.'S We
know of no reason why we should not apply that
holding in the instant matter. Accordingly, we find
Respondent unlawfully refused to recognize and bar-
gain with the Union as of February 15.
In addition, in light of all the findings above, we
find that Respondent violated Section 8(a)(5) of the
Act by refusing to recognize and bargain with the
Union, which represented a majority of
Respondent's employees and had requested recogni-
tion on behalf of those employees. Thus, all of the
elements necessary to prove a violation of Section
8(a)(5) were fully litigated and proved at the hearing.
In evidence are the Union's demand letter of Febru-
ary 12, Respondent's February 14 letter declining
recognition, the Union's petition of February 21, and
authorization cards signed by a majority of the
Respondent's employees in the stipulated appropri-
ate unit . Accordingly, we find that the record sup-
ports and compels a finding that Respondent violat-
ed Section 8(a)(5) of the Act by refusing , on and after
February 15, the day on which the Union achieved
majority status, to recognize and bargain with the
Union as the representative of Respondent's employ-
ees.16
CONCLUSIONS OF LAW
activities, membership, and desires; by threatening
employees with various reprisals if they selected the
Union as their collective-bargaining representative,
including threatening to close the Bedford, Pennsyl-
vania, plant; by promising employees various bene-
fits if they refrained from selecting the Union as their
collective-bargaining representative; by granting em-
ployees various benefits if they refrained from select-
ing the Union as their collective-bargaining represen-
tative; by soliciting grievances from employees in
order to deter them from selecting the Union as their
collective-bargaining representative; and by creating
the impression of surveillance of employees' union
activities, Respondent has violated Section 8(a)(1) of
the Act.
4. All production and maintenance employees, in-
cluding group leaders, at the Bedford, Pennsylvania,
plant of Hedstrom Company; excluding office cleri-
cal employees and guards, professional employees,
and supervisors as defined in the Act, constitute a
unit appropriate for the purposes of collective bar-
gaining within the meaning of Section 9(b) of the
Act.
5. At all times material herein, since at least Feb-
ruary 15, 1974, the Union has been the exclusive col-
lective-bargaining representative of the employees in
the above-described unit within the meaning of Sec-
tion 9(a) of the Act.
6. By refusing, since February 15, 1974, and at all
times thereafter, to recognize and bargain with the
Union as the exclusive representative of its employ-
ees in the appropriate unit set out above, Respondent
has engaged in, and is engaging in, unfair labor prac-
tices within the meaning of Section 8(a)(5) of the Act.
7. The aforesaid unfair labor practices are unfair
labor practices affecting commerce within the mean-
ing of Section 2(6) and (7) of the Act.
8. Allegations in the complaint that Respondent
has violated Section 8(a)(1) of the Act at times and/
or in ways not specifically found herein have not
been sustained.
1. Hedstrom Company, a subsidiary of Brown
Group, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and
Aerospace Workers, District No. 98, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating employees about their union
"Set Schwab Foods, Inc. d/b/a Scott's /GA Foodliner, 223 NLRB 394
(1976).
16 Schwab Foods, Inc. d/b/a Scott's /GA Foodliner, supra. We have already
found that the Administrative Law Judge erred in not allowing the General
Counsel to amend the complaint to allege such a violation , and that no
prejudice lies in our reversal of that ruling.
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,
Hedstrom Company, a subsidiary of Brown Group,
Inc., Bedford, Pennsylvania, its officers, agents, suc-
cessors, and assigns, shall take the action set forth in
the said recommended Order, as so modified:
1. Substitute the following paragraphs for para-
graph 1(g) of the recommended Order:
HEDSTROM COMPANY 1413
"(g) Granting employees benefits if they refrain
from selecting a collective-bargaining representative.
"(h) Refusing to bargain collectively with Interna-
tional Association of Machinists and Aerospace
Workers, District No. 98, AFL-CIO, as the exclusive
bargaining representative of the employees in the fol-
lowing unit:
"All production and maintenance employees,
including group leaders, at the Bedford, Penn-
sylvania, plant of Hedstrom Company; exclud-
ing office clerical employees and guards, profes-
sional employees, and supervisors as defined in
the Act.
"(i) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act."
2. Insert the following as paragraph 2(a) and relet-
ter the remaining paragraphs accordingly:
"(a) Upon request, recognize and bargain with In-
ternational Association of Machinists and Aerospace
Workers, District No. 98, AFL-CIO, as the exclusive
collective-bargaining representative of the employees
in the bargaining unit described above with respect
to wages, hours, and other terms and conditions of
employment and, if an understanding is reached, em-
body such understanding in a signed agreement."
3. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
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 threaten to close this plant if you
select International Association of Machinists
and Aerospace Workers, District No. 98, AFL-
CIO, hereinafter District No. 98, or any other
labor organization, as your collective-bargaining
representative. We have no present intention of
closing this plant for any reason. We have no
intention of closing this plant at any time for
any reason which is exhibited by law.
WE WILL NOT threaten you with any other re-
prisals if you select District No. 98, or any other
labor organization, as your collective-bargaining
representative.
WE WILL NOT promise you benefits if you re-
frain from selecting District No. 98, or any other
labor organization, as your collective-bargaining
representative.
WE WILL NOT grant you benefits if you refrain
from selecting District No. 98, or any other la-
bor organization, as your collective-bargaining
representative.
WE WILL NOT solicit grievances from you in
order to deter you from selecting District No.
98, or any other labor organization, as your col-
lective-bargaining representative.
WE WILL NOT interrogate you about your
union activities, membership, and desires.
WE WILL NOT create an impression that we
have your union activities under surveillance.
WE WILL NOT, in any other manner, interfere
with you or attempt to restrain or coerce you in
the exercise of the above rights.
WE WILL NOT refuse to bargain collectively
with District No. 98 as the exclusive representa-
tive of our employees in the unit described be-
low.
WE WILL, upon request, bargain collectively
with the District No. 98 with respect to wages,
hours, and other terms and conditions of em-
ployment of the employees in the following ap-
propriate unit:
All production and maintenance employees,
including group leaders, at the Bedford, Penn-
sylvania, plant of Hedstrom Company; ex-
cluding office clerical employees and guards,
professional employees, and supervisors as de-
fined in the Act.
All our employees are free, if they choose, to join
District No. 98, or any other labor organization.
HEDSTROM COMPANY, A SUBSIDIARY OF
BROWN GROUP, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case 6-RC-6762 was filed on. February 21,
1974.1 A Stipulation for Certification Upon Consent Elec-
tion was approved by the Regional Director on March 8.2
Dates are 1974 unless otherwise indicated.
2 The United Steelworkers of America was also a party to this stipulation.
Continued
1414 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The election was held on March 28. In a unit of approxi-
mately 245 eligible voters, 113 cast votes for District 98 and
125 cast votes against . There were three void ballots and
no challenged ballots. District 98 filed timely objections.
The Regional Director issued an Order Directing Hearing
on Objections on July 8.
The charge in Case 6-CA-7619 was filed on July 12 and
amended on December 2 and at the hearing . The com-
plaint was issued on December 11. On April 11, 1975, the
Regional Director withdrew the order he had issued in
Case 6-RC-6762 on July 8 and substituted for it a Report
on Objections, Order Directing Hearing and Notice of
Hearing . At the same time he issued an order consolidating
Case 6-RC-6762 with Case 6-CA-7619 for hearing. A for-
mal prehearing conference was held in Bedford , Pennsyl-
vania , on May 12, 1975. The hearing was held on August
11, 12, 13, 14, 15, 18, 19, 20, and 21, 1975. The issues litigat-
ed were whether, on or about March 4, District 98 repre-
sented a majority of Respondent's employees in the unit in
which the election was held on March 28 and whether Re-
spondent committed violations of Section 8(a)(1) of the
National Labor Relations Act, as amended , sufficiently
serious to require a bargaining order as remedy under the
principles laid down by the Supreme Court in N.L.R.B. v.
Gissel Packing Co., Inc., 395 U.S. 575 (1969). As to the
former, I ruled at the hearing , for reasons stated in the
record, that the General Counsel had failed to prove suffi-
cient valid authorization cards to establish District 98's sta-
tus as the collective-bargaining representative of a majority
of the employees in the unit . (The General Counsel pro-
duced 132 authorization cards in a unit of 249 employees.
Nine cards were rejected .) As to the latter, for the reasons
set forth below, I find that , while Respondent committed
some of the violations alleged in the complaint , an order to
bargain would not be required to remedy them in any
event.
Upon the entire record,3 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 Delaware corporation, is engaged at Bed-
ford , Pennsylvania, in the manufacture of juvenile furni-
ture and toys. During the year just prior to issuance of the
complaint, it received goods and materials valued in excess
of $50,000 which were shipped directly to it by suppliers
located outside the Commonwealth of Pennsylvania.
However , it withdrew sometime prior to March 19. and its name did not
appear on the ballot.
Motions to correct the transcript filed by both the General Counsel and
Respondent are hereby granted . The General Counsel' s renewed motion to
amend the complaint to allege violation of Sec. 8(aX5). predicated on Trad-
ing Port, Inc., 219 NLRB 298 (1975), is hereby denied . The complaint issued
after Steel-Fab, Inc., 212 NLRB 363 (1974). Trading Port issued in the hiatus
between prehearing conference and hearing . I do not read Trading Port as
requiring or authorizing a specific 8(a)(5) amendment or finding under these
circumstances . See Ann Lee Sportwear. Inc., 220 NLRB No. 153 at In. 6
(1975).
It. THE UNFAIR LABOR PRACTICES
A. Background
There are four Hedstrom plants. The one involved in this
proceeding moved from Fitchburg, Massachusetts , to Bed-
ford , Pennsylvania , in 1966 , along with Hedstrom Compa-
ny corporate headquarters . In Massachusetts the employ-
ees were represented by the United Furniture Workers of
America , AFL-CIO. Relations between that union and
management were not smooth . There was, for example, a
13-week strike at a time not precisely revealed in the record
but occurring , I gather, not too long before the move to
Pennsylvania . In any event , labor troubles growing out of
the relationship with the union in Fitchburg were among
the reasons the plant moved.
Hedstrom Company is a closely held family corporation.
It was acquired by Brown Group in 1973 by an exchange
of stock . As president , Oscar Hedstrom ran Hedstrom
Company while the plant was located in Fitchburg, moved
to Bedford in 1966 , and continued as president after the
acquisition . He stepped down on June 15, 1973, when E.
Lee (Jack) Ketcham replaced him. (The record does not
reveal what , if any , role Oscar Hedstrom has played in the
management of Hedstrom Company since that date.) Wil-
liam Griffiths , who has the title of manager of manufactur-
ing, is the top official in the plant on a daily basis, as
distinguished from Ketcham's wider ranging duties. He re-
ports directly to Ketcham . He is married to Oscar
Hedstrom 's niece . His wife is among the beneficiaries of
the family trust which owns a large portion of Hedstrom
Company.
The Bedford plant has been nonunion since it opened.
Two efforts to organize it prior to the one which gave rise
to this proceeding resulted in Board elections . One did not.
An election was held in Case 6-RC-4628 on April 2, 1968.
There were two unions on the ballot . The Furniture Work-
ers International union received one vote . Local 453 of the
International Brotherhood of Teamsters , Chauffeurs and
Helpers of America received 54. There was 119 ballots
marked in the "Neither" box. An election was held in Case
6-RC-5576 on October 15 , 1970. International Union of
District 50, Allied and Technical Workers of the United
States and Canada , failed to receive a majority . (The rec-
ord does not reveal the precise vote by which the union lost
this election .) Objections were filed in the former case but
not in the latter . On the occasion when objections were
filed , the Teamsters failed to file exceptions to the Regional
Director 's report recommending overruling of its objec-
tions.
The campaign which culminated in the election in Case
6-RC-6762 on March 28 began in late January when Jesse
Young, an IAM grand lodge representative with jurisdic-
tion in the Bedford area , first contacted some of
Respondent's employees . In a more formal sense, it was
kicked off by a meeting held at the local Holiday Inn on
February 5 at which Young met with 35 employees.' The
campaign was common knowledge from that point on. All
1 do not credit the testimony of Clayton Miller as to what Young said on
this occasion.
HEDSTROM COMPANY 1415
of the 8(a)(1) allegations involved in this proceeding grow
out of words spoken by Respondent's managers and super-
visors thereafter as part of Respondent's countercampaign.
B. E. Lee Ketcham
1. Speech
a. Credibility
The culmination of Respondent's campaign was a
speech Ketcham delivered to all employees on the eve of
the election. He spoke to the second shift around 10 p.m.
on March 26. He spoke to the first shift on the morning of
March 27. (The polls opened at 3 p.m. on March 28. Re-
spondent selected the times for Ketcham's presentations
with the Board's Peerless Plywood rule in mind.) 5 Ketcham
testified that, with the exception of some introductory
pleasantries which are not otherwise relevant, he did not
deviate from a prepared script. Several of General
Counsel's witnesses testified that, in alluding to the plant's
Fitchburg history, he used the phrase "bitter experience"
and said specifically "you have their [i.e., the employees in
Fitchburg] jobs now." Neither "bitter" nor the statement
about "their jobs" appears in the script which Ketcham
used. In other respects there is no disagreement as to the
content and thrust of the speech.
As to precisely what Ketcham said, I credit Ketcham
over the General Counsel's witnesses and find that he did
not, in fact, deviate from his script. It would have been
stupid of Ketcham to depart from a speech approved in
advance by Respondent's labor relations counsel in the
context of Respondent's recent experiences with Board
election procedures. Ketcham is not a stupid man. It does
not follow, however, that I am discrediting any of General
Counsel's witnesses generally because of this discrepancy.
As is more fully set out in the analysis below of what Ketc-
ham did say, the General Counsel's witnesses were relating,
in their own words, the message which they got from the
words actually spoken.
b. Facts
Ketcham began, "Well, here we go again" and proceed-
ed to point out this was the third Board election at the
plant in 7-1/2 years. He complimented the employees on
the manner in which "all concerned" had conducted them-
selves. He stressed the secrecy of the ballot. He then said,
"I am having this meeting with you today to sum up the
Company's position and state our case." He alluded to
himself as "the new kid on the block" who "must defend
himself for a while" as the springboard for comments on
his personal contacts with the employees, the subject of
"some personal comments" by the Union "I would like to
correct." He next compared the campaign which was draw-
ing to a close to a political campaign between the "ins" and
"outs." He pointed out that the "ins" could run on their
records while the "outs" could only make promises. He
then said:
With that general background, I would like to do two
things today:
First, to review the Hedstrom record;
Second, to address myself to the question, "Why
doesn't Hedstrom want a union in Bedford?"
Ketcham accomplished the first half of his mission by
discussing at some length the employees' present fringe
benefits, wages, and working conditions and the
Company's plans for future growth in which the employees
would share. He accomplished the second half by saying:
Why doesn't Hedstrom want a union in Bedford?
First-We do not think one is needed or necessary.
Second-We prefer to deal with you directly as in-
dividuals-not to take advantage of you, but to treat
you with dignity as individuals.
Third-A union means a contract. If we sign a con-
tract in any phase of our business, we honor it. Con-
tracts can create rigidity that, in turn, pushes compa-
nies to operate "by the numbers." But, we prefer to
work with you as individuals.
No contract can cover all of those individual human
situations that come up daily. We don't want to be an
impersonal management restricted to operating by
"the book".
Fourth-The I.A.M. said it-you take your com-
plaints to your union steward. He represents you. Can
anyone do a better job for you than yourself? We pre-
fer to deal with you directly-not to take advantage of
you, for heaven's sakes, but because we respect and
believe in the dignity of the individual and we will
always treat you as such. Are the people pushing this
thing the people you want to represent you in the
years ahead?
Fifth-This Company has already had experience
with a union-in Fitchburg. It was an unhappy experi-
ence for us, and we honestly think it was for our hour-
ly employees also. Unions aren't always what they are
cracked up to be.
Sixth-We don't think men and women should have
to pay dues for the right to obtain decent wages, bene-
fits, hours and working conditions-and for security.
This sums up in a nutshell our response to this ques-
tion. It also concludes my comments relative to the
Company's position, just as frankly and honestly as I
can make it.
Ketcham then concluded his remarks with a summary of
"the question" from Respondent's point of view ("do you
wish to retain your individual freedom to speak for your-
self, or do you wish to surrender this right and have a third
party as your exclusive bargaining representative?"), a re-
quest for a "No" vote "after careful consideration of all the
facts," and a Red Skelton "God Bless."
S Peerless Plywood Company, 107 NLRB 427 (1953). No speeches to
massed assemblies of employees by either side in the 24-hour period before
the polls open.
c. Analysis and Conclusions
Three of five objections filed by the Union in Case 6-
1416 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
RC-6762 have been referred to me . One of them is based
on this speech . The other two are based on a newspaper
article which appeared in the Bedford Gazette on the
morning of election day, March 18. Since the newspaper
article is not alleged in the complaint as a violation of Sec-
tion 8(a)(I) of the Act , I set forth the pertinent parts of it in
detail and weigh its significance in the appropriate place
below . It is , nonetheless , relevant to the issue under consid-
eration here-and, for that matter, the issue underlying all
the statements made by Respondent's people which the
General Counsel finds tainted , i.e., what was the point Re-
spondent was trying to make to its employees in order to
persuade them to vote against the Union-for it establishes
beyond doubt the single most important fact in this pro-
ceeding : The whole community in which the plant was lo-
cated was aware that it ran away from the Furniture Work-
ers union when it moved from Fitchburg to Bedford.
In the fifth of his six reasons why Respondent did not
want a union in Bedford , Ketcham said , "This Company
has already had experience with a union-in Fitchburg. It
was an unhappy experience for us, and we honestly think it
was for our hourly employees also. Unions aren't always
what they are cracked up to be." When he alluded to what
had happened in Fitchburg, Ketcham knew and every em-
ployee in the room (with the possible exception of those so
new or so dense that they had not yet heard or understood
the story of how the plant came to be in Bedford) knew
what he was talking about . The dispute between Ketcham
and the General Counsel's witnesses as to just which adjec-
tive he prefaced the word "experience" with is immaterial.
An "unhappy" experience is as close to a "bitter" experi-
ence as Tweedledum is to Tweedledee. When, however,
Ketcham drove his point home by saying in the next breath
"we honestly believe [the experience ] was [unhappy] for
our hourly employees also," he and every employee in the
room knew the experience Fitchburg employees had un-
dergone . They lost their jobs when the plant moved. It is
no wonder that, by the time of the hearing, the employees
were remembering a specific statement by Ketcham that
they now had the jobs formerly held by Fitchburg employ-
ees because of the latter's unhappy experience with a
union , even though those were not the precise words Ketc-
ham used . That was the message Ketcham intended to con-
vey by the words he did use. "Unhappy experience" be-
came "bitter experience" in the employees ' memories
because that was the phrase placed in the mouth of an
unidentified manager of the plant by the Bedford Gazette.
An allusion to the loss of jobs in Fitchburg became a spe-
cific statement by Ketcham because they got the message
Ketcham intended to send them . I find, therefore, that
when Ketcham stated the fifth of Respondent 's six reasons
for not wanting a union in Bedford , Respondent impliedly
threatened to close the plant in the event its employees
selected the Union as their collective-bargaining represen-
tative, thereby violating Section 8(axl) of the Act.
2. Other
Two other incidents during which the General Counsel
contends Ketcham spoke words violative of the Act pre-
sent credibility problems not unlike the speech. Both oc-
curred during social events. The accounts of General
Counsel's witnesses on the one hand and Ketcham's on the
other are not diametrically opposed. All agree as to the
circumstances under which the conversations took place
and the general tone of what was said. The conflict lies in
the fact that, while Ketcham is in agreement about the
subjects under discussion, his account, in effect, denies he
spoke the precise words which the General Counsel's wit-
nesses put into his mouth. In the Suhrie incident, for exam-
ple, Ketcham testified that Suhrie, not he, brought up the
subject of the Union. In both incidents I have credited the
General Counsel's witnesses over Ketcham to find he did,
in fact, speak the words the General Counsel claims he
spoke.
A social organization made up of Respondent's employ-
ees holds periodic affairs to which management as well as
employees are invited. One such, a dinner-dance, was held
on the night of Saturday, March 16, at the Elks Club in
Bedford. Late in the evening, when the partying was well
advanced, Ketcham got into a man-to-man conversation at
the bar with Norman Anderson, a press operator. James
Rush, a spot welder, wandered up for a few moments, put
his 2-cents worth in, and wandered away. Part of the con-
versation was shop. Part was not. At one point, Ketcham
asked Anderson what his biggest gripe was. Anderson said
he was losing money under the incentive system ever since
a new piece of equipment had been installed. Ketcham said
he was going to get things like that straightened out as soon
as the election was over. At another point, during a discus-
sion of Anderson's life and hard times , Ketcham pointed
out that he was an abrasive sort who nonetheless was a
success in his job at the plant. He assured Anderson that he
was judged on the basis of his work only and urged him to
have more confidence in himself. In this context, while tell-
ing Anderson what an irritating fellow he could be, Ket-
cham said that, if he had been president of the Company
the first three times union was brought up, he would have
fired Anderson's "fucking ass."
A similar party was held in December as part of the
Christmas festivities. (This is the only allegation of the
complaint which does not fall within the period when the
Union was seeking to organize Respondent's employees. In
his brief, the General Counsel claims a special significance
for it in that "Even after the election, Respondent Presi-
dent Ketcham unlawfully interrogated employee Suhrie,
thus highlighting the continuing need for a remedial bar-
gaining Order.") During it, Ketcham chatted with Leo Suh-
rie, a bicycle assembler who happened to be laid off at the
time . Ketcham inquired what Suhrie was doing with him-
self. This led to a discussion of hunting, an interest which
both men share. During their chat, Ketcham asked Suhrie
in passing what he thought about the Union. Suhrie said it
had advantages and disadvantages. The conversation
turned to another subject.
I find nothing coercive in either of these incidents, Ket-
cham did not ask Anderson about his gripes in order to
solicit his grievances. The incentive system came up as two
men talked shop. They had shed, at least for a few hours,
their roles as boss and worker. They were communicating
with each other as equals under social, not plant, condi-
tions. Ketcham did not warn Anderson that he was in dan-
HEDSTROM COMPANY 1417
ger of being fired because of his prounion stance in the
current campaign. On the contrary, Ketcham was making
the precise point that, while Anderson's abrasive personali-
ty might have gotten him into trouble during earlier union
drives, he had nothing to worry about this time with Ketc-
ham in charge of Respondent. (Cf. Rust Craft Broadcasting
Company, a wholly owned subsidiary of Rust Craft Greeting
Cards, Inc., 214 NLRB 59 (1974). The question which
Ketcham put to Suhrie occurred under precisely the same
circumstances as the Ketcham-Anderson conversation. It
was idly asked and idly answered. I find, therefore, Re-
spondent did not violate Section 8(a)(I) of the Act on
either of these occasions.
C. William Griffiths
1. Credibility and analysis/conclusions
The General Counsel has laid the greatest number of
violations by far at the door of William Griffiths,
Respondent's manager of manufacturing. Twenty-two em-
ployees testified about conversations with Griffiths during
the Union's organizing campaign. Griffiths was asked
about each of them. Some he corroborated in their essen-
tial details . Some he recalled but in terms which threw a
totally different light on what occurred. Some he did not
remember at all. Most fall into the second category. One of
the simpler examples will suffice , I hope to clarify the na-
ture of the credibility conflicts posed. Kevin Miller testified
he had a conversation with Griffiths in March, "a few
weeks before the election," thus:
I was gathering material for my job and he came up
and we started talking about golf and then he asked
me how I saw the Union and I said, "Well, it didn't
matter to me which way it went. You know if the
Union got in that I was more or less against the Union
coming in" and then that was about all and I went
back to my job.
When Griffiths was asked if he had heard what Miller had
said, his testimony went like this:
A. Yes I did hear it.
Q. What are the facts?
A. The facts are that I probably talked to Kevin on
sports probably more than anybody in the plant. I
followed his career through high school. He happens
to date a gal that is my oldest daughter's best friend,
and as a result, we have a lot of common ground. I
was talking to him about sports and golf, and Kevin
was a fairly new employee. I pointed out to him what
I thought were the advantages of working at Hed-
strom and asked him to support me in the coming
election.
Q. Did you ask him how he felt about the union?
A. I did not.
Q. Mr. Miller testified that he said he didn't care,
that he was more or less against the union?
A. Yes, I always thought he was against the union.
Q. I didn't ask you that, I asked you did he say
that?
A. I don't recall him saying that, but I do remem-
ber that we had the conversation, and I asked him to
support management in the coming election.
The crucial difference, of course, between these two ver-
sions of a conversation which admittedly took place lies in
Miller's "and then he asked me" and Griffiths' "I did not
[ask him how he felt about the Union].- Did Griffiths
coerce Miller by asking him how he felt about the Union at
a time and under circumstances where the interrogation
could serve no legitimate purpose? Or did Miller volunteer
his views to a friend in the course of a conversation about
something totally unrelated to the situation created in the
plant by the Union's organizing campaign?
Where, after a fair reading of the record as a whole, I
have been unable to reconcile the testimony of the General
Counsel's witnesses with that of Griffiths, I have, generally,
credited the former over the latter. In the Miller-Griffiths
example, I find, as set forth in the section entitled "Facts,"
next below, that Griffiths asked, not that Miller volun-
teered. I do so for a number of reasons.
Respondent conducted an active antiunion campaign. It
sought to take full advantage of its constitutional right to
present its case to its employees in the strongest possible
terms. To that end it distributed to its supervisors a check-
list headed "Foremen Do's and Don'ts in Handling an Or-
ganizational Drive." Of 12 items under the caption "What
You Can Do During an Organizational Drive," 11 begin
either "Tell employees" or "Tell the employees." (The lone
exception is "Lay off, discipline and discharge for cause so
long as such action follows customary practice and is done
without regard to union membership or nonunion member-
ship.") They run the gamut of arguments why employees
do not need or should not want a union from. "Tell em-
ployees of the disadvantages that may result from belong-
ing to a union-such as loss of income because of strikes,
requirement to serve on a picket line, expense of dues, fines
and assessments" to "Tell employees that no union can
make a company agree to anything it does not wish to, or
pay any more than it is willing or able to do. All such
things are subject to negotiations."
Griffiths pursues an open-door policy in running the
plant. He depends on friendly face-to-face relations with
even the lowliest employee, frequently stopping to chat as
he goes through the plant. While following his usual prac-
tices in this respect, he admittedly tried to do the sorts of
things the checklist indicates he could legally do. Time af-
ter time, his version of a conversation which does not quite
jibe with the version of the General Counsel 's witness
stresses the fact that, while he tried to get Respondent's
views across to the employee, he was meticulous about as-
suring the employee that he could vote as he pleased with-
out fear of retribution. Unfortunately, like any checklist,
the one Respondent used speaks only in broad generalities.
Any reader unversed in the nuances of labor law could well
miss the subtle distinctions which separate a "Do Tell"
from a "Don't Tell." Did Griffiths?
I think he did. My reason, once again, grows out of ad-
mitted facts. Respondent's employees were restless to the
point of seriously considering unionization because of a
number of conditions in the plant. One of the most serious
1418 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was the effect Respondent 's seniority system has on the
employees ' opportunities to increase their earnings under
Respondent's incentive pay system . Ketcham , the presi-
dent, became aware of this problem in November 1973. He
ordered Griffiths to sound out the employees and get their
views on what they thought the seniority system should be.
In several of the conversations at issue in this proceeding,
Griffiths made the point that he was speaking to the em-
ployee in order to get his views on seniority pursuant to
Ketcham 's instructions . Nowhere do Ketcham and Grif-
fiths explain why they waited until after the Union's orga-
nizing campaign began to seek to solve the problem. The
only reasonable explanation , I think, is that both were gal-
vanized into action by what they perceived as the Union's
direct threat to Respondent. I conclude, therefore, that
Griffiths misinterpreted Respondent's list of "Do's" got
carried away with his efforts to combat the Union in a
lawful manner , and at times stepped over the line which
separates Section 8 (a)(l) from Section 8(c).
There are three exceptions where I have credited Grif-
fiths over the General Counsel' s witness . Alfred Wertz tes-
tified he "was put on floor work" and Griffiths came by
and asked how he was doing. Wertz said he would rather
be in the paint department. Griffiths said he would see
what he could do about it. On cross-examination, Wertz
was asked whether it was not true that he asked Griffiths
for another job because the job he was doing was giving
him sore hands . Wertz replied : "I don't remember whether
I did or not ." He was then asked if it was not a fact that
Ketcham had been with Griffiths at the time . Wertz re-
plied: "I don't remember who was with him, if anybody."
I am persuaded by the fact the General Counsel did not
recall Wertz in rebuttal to testify Griffiths and Ketcham
were testifying about another conversation entirely that all
three were talking about the dowel incident , which oc-
curred a couple of weeks before the election . I find, on the
credited testimony of Griffiths, corroborated by Ketcham,
that this incident grew out of an immediate production
problem so that Griffiths' concern for Wertz was not moti-
vated by antiunion considerations and thus can be distin-
guished from similar incidents where Griffiths unlawfully
solicited grievances. What happened on this occasion was
that Wertz was recalled from layoff and put on an opera-
tion in which dowels had to be machined in a particularly
difficult manner . Ketcham returned from a sales trip and
asked how the particular part was being produced. Grif-
fiths told him that, reluctantly, he was having the work
done in the plant . Griffiths and Ketcham went to the ma-
chine where Wertz was working. They observed that hold-
ing the dowels was blistering Wertz' hands. They expressed
their concern. Wertz said he would rather be back on the
job he held in the paint department before he was laid off.
There was discussion of gloves . There was also discussion
of the fact the operation might be only temporary, provid-
ed Respondent could find a supplier of dowels already ma-
chined. In this context, Griffiths said he would do what he
could to relieve Wertz' situation.
My reason for rejecting the testimony of Kenneth Wam-
baugh as the basis for finding an 8(a)(1 ) violation by Grif-
fiths is somewhat different. This one, I am convinced, did
arise in the context of Griffiths' reaction to union activity
in the plant. His reaction, however, did not exceed the per-
missible bounds of managerial response to the situation
which arose. Wambaugh testified, somewhat vaguely, that
on the morning of March 27
[Griffiths] came out and he walked up to where I was
working there and he asked me what was wrong and
then he discussed piece rates and that was the extent
of the conversation.
On cross-examination , he finally admitted his conversation
with Griffiths on the day before the election grew out of
some horseplay in the men's room in which a prounion
employee had made him apprehensive. Wambaugh insist-
ed, nonetheless, that Griffiths had "discussed piece rates"
with him at this time. Griffiths' version was totally differ-
ent. I credit Griffiths over Wambaugh. The key to this con-
flict lies in Wambaugh's "he asked me what was wrong." It
is obvious, from that, that Griffiths did seek out Wam-
baugh, as he claimed, because he had received a report
from Wambaugh's foreman that Wambaugh was asking
for the next day off because he was afraid to vote in the
election. Griffiths told Wambaugh Respondent would not
tolerate intimidation of its employees by anybody, assured
him he had nothing to fear, and urged him to work and
vote any way he pleased next day. Griffiths did not, on this
occasion, solicit Wambaugh's grievance in order to under-
mine the Union's organizing campaign.
My reason for crediting Griffiths over Jeff Musselman, a
forklift operator, is set forth in the section below devoted
to the conversations in which Robert Howsare is alleged to
have committed 8(a)(1) violations.
In the section which follows, I detail those conversations
in which Griffiths did step over the line in order to combat
the Union. Implicit as to each is a finding as to Griffiths'
motive .6 When he asked employees what they thought
about the Union, his purpose was not to ascertain, under
proper safeguards, whether the Union had the majority it
claimed. When he asked employees about their gripes and,
in some instances , either promised future or granted imme-
diate relief, his purpose was not merely to run the plant in
a more efficient manner. It was to demonstrate to the em-
ployees that they did not need the Union as their represen-
tative in order to improve their working conditions. My
finding that this was, in fact, his motive on these occasions
is based, essentially, on a point already discussed in weigh-
ing Griffiths' overall credibility. The seniority problem
arose before the Union appeared on the scene. Ketcham
and Griffiths only got around to doing something about it
after.
On the basis of the findings of fact which follow, I find
Respondent, in the person of William Griffiths, violated
Section 8(a)(1) of the Act by interrogating employees about
their union activities, membership, and desires; by solicit-
ing their grievances, and promising and granting them im-
provements in their working conditions; and by threaten-
6 Findings of motive are not essential to findings of violation, for the test
of Sec . 8(a)(l) is whether words spoken , objectively considered, tend to
interfere with , restrain, or coerce employees in the exercise of their statutory
rights . That Griffiths' motive was , in fact, to interfere , restrain, and coerce
only makes the tendency more obvious.
HEDSTROM COMPANY 1419
ing to close the plant in order to deter them from selecting
the Union as their collective-bargaining representative
2. Facts
In February, sometime before the petition was filed in
Case 6-RC-6762 on February 21, Griffiths stopped David
Mock, a spot welder, as he was coming out of the men's
room Griffiths asked Mock what he thought the gripe was
in the plant. Mock said the employees were upset about the
seniority system and about having to sign slips if they did
not make the incentive rate. Griffiths said he was going to
check with the majority of the employees about what they
wanted in the seniority system and try to iron it out He
said the plant was going to do away with the incentive
slips.
Sometime around March 1, Griffiths approached James
Brant , a wheel hanger, at his work station. He asked Brant
what he thought about the Union. Brant said he had not
made up his mind yet. Griffiths said the building would not
be worth much without the Company
Around the same time , Michael Hilmer, a cutter, asked
to see Griffiths. Griffiths talked to Hilmer in Griffiths' of-
fice. Hilmer told Griffiths he wanted to talk because the
union situation in the plant had him scared for his job He
told Griffiths about his personal situation and why that
made it imperative he not lose his job. Griffiths said he
could understand Hilmer's feeling the way he did, but he
did not think Hilmer had too much to worry about. They
then turned to a general discussion of the situation in the
plant. Griffiths asked Hilmer how the men felt . Hilmer said
the situation looked pretty bad Griffiths asked what the
men were concerned about Hilmer said the inability of
some of them to make the incentive rates. Griffiths asked
what Hilmer's stepfather, an employee named Donald
Clark, thought about the Union. (Clark and Hilmer were
among the employees who signed authorization cards for
the Union at the first open meeting held on February 5.)
Hilmer said he did not see enough of Clark to be able to
answer. Griffiths asked what Clark would complain about
if he had a problem. Hilmer said rates, probably, since
Clark was one of the men who could not make them when
he was shifted from job to job. Hilmer pointed out how
difficult it was for the employees under these circum-
stances-they could not live under conditions where they
did not know from day to day just how much they would
be earning. Griffiths said Clark could always come to him
by filing a grievance if he had a complaint about the rates
Hilmer said he was not even sure that Clark had a griev-
ance about the rates but, as far as Griffiths' suggestion
about filing one was concerned, he knew from a personal
experience it did no good. Griffiths said, "Things have
changed since then. If a man files a grievance, it comes
across my desk. I take care of it. I've been taking care of it"
for a while now "If there is a grievance and it is a legiti-
mate one, I will take care of it."
Griffiths asked if Hilmer thought Clark could be swayed.
Hilmer said his stepfather was a stubborn man, he would
not even try to change his mind once he had made it up
Griffiths asked about swaying some of the others. Hilmer
said he thought there were some sitting on the fence who
might still be persuaded against the Union. Griffiths asked
Hilmer to do what he could in that regard. Hilmer said his
efforts would not be worth much, "What those men do,
they are going to have to do on their own."
Griffiths asked if there were any other problems the men
were talking about Hilmer said he would not beat around
the bush, he would just tell Griffiths straight out what was
causing concern. Hilmer then told Griffiths about the com-
plaint of an employee named Tom Greaser. (Greaser was
unhappy because an employee with less seniority than he
was making more money) Griffiths and Hilmer discussed
Greaser at some length.
Around March 1. Larry Ickes, a handlebar riveter at the
time, wanted to ask Griffiths why Hilmer had gotten a job
Ickes had bid for Consequently, he asked to see Griffiths
and was received in Griffiths' office. Jack Faust, the plant
personnel manager, was also present After Griffiths and
Faust had satisfied Ickes' curiosity, Griffiths asked Ickes,
apropos the pin Ickes was wearing, why he was for the
Union. Ickes said he would rather not discuss it. Griffiths
did not press the matter He did tell Ickes he had a right to
vote either way, how he voted was his personal decision. A
few days before the election, Griffiths approached Ickes at
his work station Once again, Ickes was wearing a union
button. Griffiths asked him what he thought about the
Union. When Ickes did not reply immediately, Griffiths
said, "Well, what do you think you are going to gain by the
Union?"
Ickes said, "Better wages and better working condi-
tions."
Griffiths said, "I guess I can't change your mind."
One evening in March, Griffiths visited the plant during
the second shift He approached the press where Gary
Ickes was working. He asked Ickes what his gripe was.
Ickes complained about the incentive rates. He said they
were good on some jobs but bad on most. Griffiths said he
would check into it, adding that, after he got his new job
settled down, he would have more time to devote to the
people in the plant.
That same evening, Griffiths approached Thomas Lewis
at the press where Lewis was working Griffiths asked Lew-
is if he had any complaints. Lewis said that Inda Logue
(the payroll manager, about whom more below) was bug-
ging him, get her off his back He also complained about
the seniority system, the lack of anyone to discuss com-
plaints with, low pay, and the need for more safety proce-
dures. Griffiths said the Company was already working on
a seniority system and he would like to see more safety,
too
On another occasion, Griffiths summoned Alvie Diehl, a
press operator, to his office. Faust was also present Grif-
fiths said he understood Diehl was unhappy about an em-
ployee named Ross Hyde Diehl said he was. Griffiths said
he had records about the matter he would show to Diehl if
Diehl would like to see them Diehl declined. A discussion
of Diehl's unhappiness over Hyde expanded into a discus-
sion of pressroom grievances generally. Griffiths asked
what the troubles were Diehl said there were quite a few of
them Griffiths suggested one was the men's dislike for the
incentive system. Griffiths said he, too, was not in favor of
making a man exceed 100 percent of the established pro-
1420 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
duction for his job before he earned extra pay, but others
in management were . A requirement that employees who
did not make 100 percent had to state why in writing was
another sore point for which Griffiths disclaimed responsi-
bility.
In March, a few weeks before the election, Griffiths ap-
proached Gary Figard, a press operator and die setter, at
his work station. He asked Figard what he thought about
the Union. Figard said he had not made up his mind. Grif-
fiths asked if Figard had been talking about the Union.
Figard said he had been doing more listening than talking.
Griffiths asked if he had been treated all right. Figard said
that , since he had been put on the automatic press, he had
been treated more than fairly. Griffiths asked if Figard had
any problems. Figard said he had been trying for some
time to get a jog button put on the press which would make
his job easier and faster , but the maintenance man kept
putting him off. Griffiths said he would speak to the main-
tenance man about it without delay. Figard also said he
would prefer not to have his rate of pay change when, on
occasion, he was shifted to another job for the Company's
convenience. Griffiths said he would see about putting Fi-
gard on straight pay. The next day Figard's foreman told
him he was on straight pay. Figard remained in that status
until November when, as the result of complaints from
other employees, he reverted to his old pay status. Within 3
days of his conversation with Griffiths, a jog button was
placed on Figard's press.
On another occasion in this same period, Griffiths ap-
proached Kevin Miller where he was gathering material for
his job and struck up a conversation about golf. Griffiths
asked Miller how he saw the Union . Miller said, "Well, it
doesn't matter to me which way it goes. You know if the
Union gets in that I am more or less against the Union
coming in." Griffiths asked Miller to support management
in the upcoming election.
On still another occasion, Edward Karns, a service boy
for tricycle packers at the time, was picking up cartons
when Griffiths approached him. Griffiths asked Karns
what he thought of the Union. Karns said he thought it
would be a good idea and maybe the employees would get
better jobs out of it. Griffiths looked at Karns, turned
around, and walked away.
On still another occasion, Griffiths approached John
Koontz, a forklift operator, as he was working and asked
him if he had any problems. Koontz complained that being
required to move wheels from the wheel department to the
assembly department took him away from his regular work
in another area . Since , as a material handler, he was under
a group incentive plan, working for two bosses caused him
concern about his opportunity for earning extra money. He
asked Griffiths to check on why he had to move all the
wheels. Griffiths said he would. Koontz also asked Grif-
fiths to explain the incentive plan. A day or two later Grif-
fiths brought some papers to Koontz and explained how
his incentive pay was computed.
On still another occasion, Griffiths called Raymond
Homer aside as Homer was walking from the timeclock to
his work station . Griffiths asked Horner what he would
like to see in the plant. Homer said, "I'd like to see a little
bit of sick leave."
Richard Mortimer, a packer, was off sick from Decem-
ber 1973 until March. Just before he went on leave Grif-
fiths approved holiday pay for him which, through a mix-
up, he never received. When he came back to work about 2
weeks before the election, he asked Griffiths to check into
the matter for him. Later that day Griffiths told Mortimer
he would be getting his money. He also inquired about
Mortimer's health. They then talked about production. Fi-
nally, Griffiths asked Mortimer what he thought about
"it." Mortimer, who was wearing an IAM button, took this
as an inquiry about the Union. Mortimer said he thought it
had about an equal chance of getting in. After a brief
pause , Griffiths said, "I'll see you," and walked away.
On March 18, James Rush, a welder, happened to be
working at a press because there was no welding work to
be done. Griffiths approached him and asked what were
his problems with the Company and what he thought
should be changed. Rush complained about the high pro-
duction which was required before incentive pay went into
effect and about the low hourly rate of pay. Griffiths told
Rush to come to him with his problems.
About a week before the election, Griffiths approached
Jerry Deremer, a laborer, at his work station as part of his
survey on seniority. During the course of their discussion,
Griffiths said things would be better next year because Re-
spondent was bringing in more machines and creating
more jobs in Deremer's department. He added that a union
would not really help the employees at that time because
Respondent would still have to go by seniority as it was
already doing.
On another occasion in this same time period, Griffiths
sought out Wayne Earnest, leadman in the research and
development department, and asked him how he would bet
on the outcome of the election. Earnest said he would bet
on the Union. Griffiths asked why. Earnest said because of
the promises made in the past which were not kept. Grif-
fiths asked Earnest what he was talking about. Earnest told
him about a bonus for hourly workers such as servicemen
who were not on incentive. Griffiths said that present man-
agement could not be blamed for past management 's fail-
ure to keep its promises. He pointed out that Oscar Hed-
strom had had a consultant make a study of the subject
and the consultant had failed to come up with a solution.
Earnest said that another plant in the area had found a
solution . Griffiths said he did not know that. They turned
to another employee who they thought might have some
information about the other plant. All he could do was
confirm Earnest's facts without enlightening Griffiths
about how the other plant had solved the problem. Grif-
fiths said, "Well, when things settle down, I'll check with
Kennametal to see how they operate it."
On still another occasion, Griffiths stopped by the sta-
tion where Stephen Imler was assembling wheels. Imler
was wearing a union button. Griffiths asked Imler how he
thought the election would turn out. Imler said he was not
sure because he had not done any of the things like attend
union meetings which would give him any feel for the situ-
ation . Griffiths asked him if he had any complaints. Imler
said he had one-servicemen were overworked and under-
paid. Griffiths said Respondent was working on an incen-
tive plan for servicemen.
HEDSTROM COMPANY 1421
On March 26 , just before the second shift assembled to
hear Ketcham 's Peerless Plywood speech , Griffiths started a
conversation with Eric Felix , an automatic press operator.
Griffiths spoke to Felix because he was wearing union but-
tons all over his hat and shirt . Griffiths asked Felix what he
thought about the Union . Felix said he thought it was a
good idea , it would make a lot of changes . Griffiths said
Felix had not been there long enough to see a lot of
changes that had already been made . He asked Felix why
he had not stayed at another plant where he was a Team-
sters member . Felix said he had left to avoid being laid off
for economic reasons . Griffiths asked him how he liked his
job. Felix said he liked it but the pay was too low . Griffiths
asked him why he did not go on incentive . Felix said he
should not have to be on incentive to make a decent living.
As Griffiths walked away , he said, "Do us a favor and vote
on Thursday."
On March 28 , Griffiths approached Larry Winegardner,
a conveyor loader in the painting department . Griffiths
asked Winegardner how he thought the election would go.
Winegardner said , "That depends on the majority."
Griffiths said , "Do you really think we need a union?"
Winegardner said , "That also depends on the majority."
Griffiths said he was responsible for running the plant,
he was capable of running it without any outside help, and
if the employees had any problems they were to bring them
to him.
D. Rene Rheault
Of the lower level supervisors named in the complaint
the most active by far in Respondent 's antiunion campaign
(at least , if the number of witnesses for the General Coun-
sel who testified about conversations with him is any crite-
rion) was Rene Rheault . Rheault has worked for Respon-
dent for 31 years . In Fitchburg he was a press operator.
During the middle 50's, he served as a steward for the Fur-
niture Workers union . When he moved with the plant to
Bedford in 1966 he was promoted to foreman in the press-
room . With his background , he was well qualified to tell
employees about Respondent's "bitter experience" with a
union in Fitchburg.
Rheault's testimony posed credibility conflicts similar to
but less serious than Griffiths '. Rheault admitted that he
"talked to some people and told them that we had good
benefits and good working conditions ." He even admitted
that he talked about Fitchburg . Counsel for Respondent
asked him if Randy Whetstone's statement that Rheault
"said the union stifled the growth of the company in Mas-
sachusetts" was correct . Rheault replied , "Around about
those words ." Rheault categorically denied the stories of
only 2 of the 10 employees who testified about conversa-
tions with him. As to another , he admitted an incident oc-
curred but denied he spoke any words at all . Of the other
six he was asked about , he either admitted them or, like
Griffiths , gave a version which differed in some material
respect from that of the General Counsel 's witness.
(Rheault was not asked about a conversation with Thomas
Lewis .) An example of this is Rheault's response to the
testimony of Richard Ickes about a conversation which
took place about a month before the election . Ickes said:
Rene approached me and he said-he asked me an
opinion of mine , what I felt about a union coming in
the company ; and I said that I couldn 't really judge
because I had never worked under a union and it had
some good points and bad points, just like the compa-
ny had.
He even then said , "Well, if the union gets in, we
might have to renegotiate for your benefits , like paid
vacation , holidays and health insurance ." And I an-
swered nothing after that , and I just continued on my
way back to the wheel room.
Rheault admitted "part of that occurred ," saying:
One day Richard was working in my department,
and I noticed he was wearing a button , and I asked
him, I guess you're for the union . He said he had never
belonged to a union before , the union was like a com-
pany, it had its goods and its bads, and I explained to
him that we had good benefits, and then also I told
him that everything that we had would be negotiable,
all of the benefits we had.
Here , unlike the Griffiths -Miller conflict set out as an
example above , Rheault readily admitted he started the
conversation . The conflict lies in the subtle difference be-
tween Ickes ' version of Rheault's remark about renegotiat-
ing for benefits and what Rheault was willing to admit he
said . Ickes' version imples bargaining from scratch , i.e., ne-
gotiations would start from a position where employees
had no benefits rather than from the benefits they already
enjoyed . Rheault's version implies the latter . For the same
reasons I credited the General Counsel 's witnesses , gener-
ally, over Griffiths , I have credited them over Rheault in
those areas where there is a discrepancy between the two
versions . The following findings of fact describe 9 rather
than 10 Rheault conversations because , having discredited
Jeff Musselman generally, I make no findings of fact as to
a conversation he said he had with Rheault some 3 weeks
before the election , a conversation which Rheault testified
never took place:
On February 6, the day after the Union held its first
public meeting , Rheault asked Kenneth Wambaugh if he
had had a good time at the Holiday Inn the night before.
Wambaugh went to another meeting a couple of weeks
later . The next day he wore a union button in the plant.
Rheault asked him what had turned him sour . Around this
same time , Rheault had a conversation with Wambaugh in
which he told Wambaugh about his experiences in Fitch-
burg . He explained negotiations in the context of what had
happened to him when he was a steward in Fitchburg. He
said that sometimes he had had to negotiate a long time at
night . He said that, in negotiations , Respondent could re-
negotiate such existing benefits as insurance and vacations.
In middle or late February, Rheault asked Alfred Wertz
what he thought about the Union . Wertz said he did not
know . Rheault said he thought Respondent treated ev-
erybody fairly and the Union could not do much better.
He told Wertz he would get Wertz back into his depart-
ment on a better job than he had formerly held there if
Wertz would promise not to vote for the Union . He said
Wertz would be sorry if he voted for the Union.
1422 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
About a month before the election , Rheault approached
Richard Ickes and asked him how he felt about a union
coming into the plant . Ickes said he could not really judge
because he had never worked under a union, but he
thought it had good points and bad points. Rheault said,
"Well, if the Union gets in , we might have to renegotiate
for your benefits, like paid vacation , holidays and health
insurance."
In this same period , Rheault approached Gary Bowser, a
laborer, and asked him why he was in favor of the Union.
Bowser said he thought the employees would get better
benefits and better wages . Rheault said Respondent had a
union in Massachusetts and a 13-week I strike had gotten
employees nothing ; all it did was create a hardship, espe-
cially on married employees.
About 3 weeks before the election , Rheault stopped by
James Rush's work station to see how he was getting along
on the job he was doing . Rush brought up the subject of
the Union . He said that , when management came out to
give him an incentive rate for what he was doing, he was
going to put on a union pin and maybe get a better rate.
Rheault said he did not blame Rush for pushing the Com-
pany to get a better rate but to vote a union in would be a
mistake.
In this same time period , Rheault walked into the press-
room foremen 's office near the end of a conversation be-
tween Thomas Lewis and William Valiton. (It is covered in
the section below devoted to an allegation involving Vali-
ton.) Rheault said , "1 want to give you a for-instance of
what a union can do for you." He told Lewis about negoti-
ations which had taken place in Fitchburg at a time when
he was a union steward . He said that a big union official
dressed in fancy clothes and driving a big car had come
into the plant and convinced the employees to give up a
cost-of-living clause for a larger raise by saying the cost of
living was not going to go up. Rheault concluded, "Just
look how the cost of living has went up ." Lewis said it was
not the union's fault entirely because the employees had
had a chance to vote on what they wanted.
A couple of weeks before the election , Rheault ap-
proached Donald Howsare , a spot welder-press operator,
and asked him what he thought of the Union . Howsare
said he had no specific idea about it, there were both good
and bad points . The conversation then turned to a discus-
sion of a wage increase projected for the spring of 1975.
A week before the election , Rheault asked Thomas
Greaser what he thought about the Union. Greaser asked
Rheault what he thought . Rheault answered by telling
Greaser about the union in Massachusetts , a subject with
which Greaser was already familiar . Rheault said the union
in Fitchburg was no good. He said that if the Union got
into the Bedford plant the employees would probably lose
their hospitalization, pension plan, and other benefits, and
the Company might even cut out overtime . (Employees
7 Bowser actually testified Rheault said "they had an 18-week strike."
However. there is no dispute that a part of Respondent 's "bitter experience"
with a union in Fitchburg was a 13 -week strike . Another witness testified
Rheault told him about the 13-week strike . I attach no significance to this
slight inaccuracy in Bowser's recall. Rheault admitted he told Bowser about
the strike.
were receiving overtime on a regular basis in the period
prior to the election.)
On election day, not long before the polls opened,
Rheault asked Randy Whetstone if he had any questions.
Whetstone asked Rheault about his incentive situation.
Machine operators usually are assisted by a serviceman
who brings work to them. On this occasion, Whetstone had
no serviceman . Consequently, getting his own work re-
duced his output on the machine and made it difficult, if
not impossible, for him to exceed 100-percent production,
thus earning incentive pay. Rheault told Whetstone to
punch out when he went for work and back in when he
bagan operating the machine again so that his incentive
pay would not be affected by his lack of a serviceman.
Rheault then asked Whetstone what he thought about the
Union. Whetstone said he was in favor of it because he had
no one to represent him; the Company gave him what it
wanted and he had no way of getting any more. He also
said he did not like being fired on the whim of a foreman.
Rheault asked what he meant by that. Whetstone related
an incident in the past when a supervisor named Red Jar-
vala had threatened to fire him and two others. Rheault
said Jarvala would not have fired him. Whetstone said, "If
he would have said I was fired, I would have walked out.
There wouldn't have been nothing to it." Rheault insisted
that Jarvala could not have fired Whetstone.
Rheault then asked Whatstone what he thought about
strikes. Whetstone said, "Well, there wouldn't be a strike
unless the Union voted to strike and we wouldn't vote to
strike if the Company would show to us in black and white
that they couldn't afford what we were asking for, whether
it be wages, benefits , or whatever."
Rheault said, "What about wildcat strikes? One time up
in Massachusetts , there was two men in the rest room who
wanted to watch the World Series and they started a wild-
cat strike that lasted for 13 weeks and the employees didn't
gain anything." He said the reason the Company left Mas-
sachusetts was that the union was always pushing it and
stifling its growth. Whetstone argued that the Union would
help the Company by attaining higher wages and benefits
which would, in turn, attract a better grade of worker who
could turn out a better product.
Rheault also told Whetstone the Company could not af-
ford a wage increase at that time. He said the Union would
cost the Company contracts; customers would not order
from it if they thought it was having labor problems, they
would buy off a more secure company. He also said the
Company would not be able to guarantee to its customers
what its prices would be. Whetstone took issue with this
point , arguing that a contract with the Union would give
the Company an exact labor cost to use in its pricing.
Rheault countered by pointing out that Respondent was in
a very competitive business . He said it had only beat out its
competitors on a recent contract for bicycles by 20 cents a
bike. He said Respondent was already being outbid on
some contracts.
The conversation ended when Rheault asked Whetstone
if he knew the Union was going to do him any good and
Whetstone replied he did not know but was willing to take
a chance . Rheault reminded Whetstone he had a right to
vote as he pleased.
HEDSTROM COMPANY 1423
I find nothing illegal in Rheault's conversations with
Rush and Lewis . Rush , in effect , solicited Rheault 's views
about the Union , and Rush got in an 8(c) lick for Respon-
dent . Similarly , Rheault walked in on a conversation al-
ready in progress and tried to persuade Lewis to
Respondent's point of view by telling an innocuous anec-
dote . However , on the basis of the other conversations, I
find Respondent , in the person of Rene Rheault , did com-
mit the following violations of Section 8(a)(1) as alleged in
the complaint:
Interrogation about employees ' union activities, mem-
bership , and desires.
Threats of various reprisals , including implied threats
that it would close the plant if employees selected the
Union as their collective -bargaining representative.
Promises of various benefits if employees refrained
from selecting the Union as their collective -bargaining
representative.
Creation of the impression of surveillance of employ-
ees' union activities.
E. Inda Logue
Another outspoken supervisor in Respondent 's preelec-
tion campaign was Inda Logue , the payroll manager. There
are no significant credibility conflicts in this area. While
her versions are couched in somewhat different terms, Ms.
Logue's testimony about these conversations is, in effect,
an admission of the statements attributed to her by the
General Counsel 's witnesses.
Some 2 or 3 weeks before the election , Ms. Logue
stopped Thomas Lewis in a hall in the plant . She asked him
if anybody had been bothering him about the Union. He
told her no . She said she thought he had gotten a break at
the plant and asked him why he did not give Ketcham and
Griffiths a chance . She said, "You don' t want to be stand-
ing out in a picket line half of the winter."
About a week later , Michael Hilmer bumped into Ms.
Logue and an employee named Joyce Wilkins in the first
aid room . As Hilmer walked in, Ms . Logue was saying she
could not understand why the men wanted a union in the
plant , there had to be something done about it, it just was
not going to do any good . She pointed out various benefits
which the employees enjoyed, such as a 10 -minute break in
the morning and not being penalized for lateness if they
clocked in within 2 minutes of their appointed time. She
mentioned that the employees had profit sharing and a
good insurance program . She said that some men had
made nasty remarks about her in the plant . Hilmer said,
"You know, maybe if the men weren't hounded, they
wouldn't be so nasty to you. Men don 't like being ridden
any more than anybody else does."
Ms. Logue said, "Yeah , but somebody has got to tell
them . They are making a mistake . If they bring a union in
here, it's only going to cause trouble and they will be the
ones to suffer in the end . They pay for it, no matter how
you look at it."
Hilmer said , "But still, they are all grown men. They
have to make up their own mind."
Ms. Logue said , "Well, whenever you look at guys like
Eugene Moyer , it makes you wonder if they can."
In the week before the election , an employee named
Judy Conner suggested to Ms . Logue she talk to Jerry Der-
emer because other employees had been pressuring him
about the Union. Ms. Logue went to where Deremer was
working. She asked him how he was doing . She then told
him the Company did not need a union , it would hurt more
than it helped . She pointed out that he was new in the
plant , said she knew that he could vote either way as he
pleased, but suggested he give Griffiths a chance to
straighten out the problems in the plant without a union.
She then asked Deremer if he knew how an employee
named Ed Allison felt about the Union . Deremer said he
did not . Ms. Logue left Deremer and went to talk to Alli-
son.
In that same week , Ms. Logue also approached James
Brant as he was working . She asked him how the situation
looked in his area . Brant said , "I hope to hell the Union
makes it."
Ms. Logue said , "You know you will go on strike if it
does get in?"
Brant said , "No, I don't know that. I thought it took
two-thirds of the vote to strike."
I find on the basis of these conversations that Respon-
dent, in the person of Inda Logue , violated Section 8(a)(1)
by interrogating and threatening employees.
F. Robert Howsare
Another supervisor about whom several employees testi-
fied was an assistant foreman in the pressroom named
Robert Howsare . The only conversation as to which there
is a serious credibility conflict is one involving Jeff Mussel-
man, the forklift driver . Musselman testified that, in the
course of reprimanding him one evening for careless work,
Howsare said, "Just remember, if you get the Union in you
won't have a job any way because the Company's going to
close up and move out." While readily conceding that he
frequently reprimanded Musselman, Howsare denied that
he spoke those words . The General Counsel made no effort
to rebut Howsare's assertion that Musselman did not trans-
fer into his department from chrome plating until after the
election . Principally for that reason , but also because I was
impressed by Howsare 's complete lack of effort to shade
his testimony or justify his conduct when cross-examined
by the General Counsel , I credit Howsare over Musselman
as to this conversation and, moreover , discredit Musselman
generally . I think the runaway shop aspects of this pro-
ceeding have caused Musselman 's imagination to run away
with him in this instance as well as elsewhere.
The principal difference between the General Counsel's
four other witnesses and Howsare is the fact that each of
the former testified as to separate conversations with How-
sare while Howsare remembered only two at each of which
two of his accusers were present . Because'I found Howsare
such a reliable witness , I have credited him over the Gener-
al Counsel's witnesses in this regard also and, to the extent
there is any conflict in the various versions , I have credited
him as to what was said. By finding that Gary Ickes was
involved in only one rather than two conversations with
Howsare , I have not credited Ickes ' testimony that How-
1424 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
sare, on another occasion , "said if we got the Union in,
that we would lose our profit sharing ." Unlike Musselman,
however, I have not discredited Ickes generally.
Just at quitting time one day in the preelection period,
Howsare and James Rush got into a discussion about wag-
es. (While the record is not clear , I gather from Rush's "I
started talking with [Howsare ] there in the aisle" that he
struck up a conversation with Howsare .) Gary Ickes
walked up while they were talking . Rush said wages would
be better when the Union got in . Howsare said he could
believe they would be better because Rush would not be
spending so much time in the break areas when he should
be working, he would be at his machine . Rush said he
would take a break any time he wanted to whether he was
making 100 percent or not . (This was a reference to
Respondent's incentive pay system.)
During a break one evening in this same time period,
Howsare chatted with Thomas Lewis and Eric Felix. Felix
was wearing a lot of union buttons, causing Howsare to
comment, "You sure are all decorated up, aren 't you." Fe-
lix said yes and they all laughed. Howsare said, "Well, I
hate to see the Union get in because I am afraid things will
change." Lewis said Howsare could believe there would be
some changes.
I find nothing illegal in the latter conversation . However,
in the former , Howsare's remark to Rush , overheard by
Ickes , that Rush would spend more time at his machine
and less in the break area if the Union came in is an im-
plied threat of more onerous working conditions if
Respondent's employees selected the Union as their collec-
tive-bargaining representative. I find Respondent, in the
person of Robert Howsare , violated Section 8(a)(l) in that
manner . I further find the General Counsel has failed to
prove that Howsare violated Section 8(a)(l) in the other
ways alleged in the complaint, viz, by threatening employ-
ees with plant closure and loss of benefits.
G. Albert Diehl
I credit the General Counsel's witnesses over Albert
Diehl , another assistant foreman in the pressroom.
One day during the preelection period Albert Diehl was
making an adjustment to the press which Alvie Diehl was
operating . Alvie voiced his complaint about Ross Hydes.
(Albert relayed this complaint to Griffiths, and Griffiths
had Albert send Alvie to him, thus leading to the Griffiths-
Alvie Diehl conversation already covered in the section
above devoted to allegations involving Griffiths.) In the
course of this conversation , Albert said, "I understand
you're for the Union."
Alvie said, "What's wrong with that? You was for the
union one time."
Albert said, "I'm not now . You know, you will lose your
overtime and you'll have to get 50 cents an hour to make
up for it. You'll not get that."
Alvie said, "Well you shouldn't have to work 9 hours [an
allusion to the regular overtime employees were working at
that time] . Eight hours should be a day."
In this same period, Gary Figard ate lunch one day with
Albert Diehl and another assistant foreman named Dan
Cessena . They chatted about the Union. Diehl asked what
would be gained by getting a union. Figard replied, "What
have we got to lose. We might even get better wages."
Diehl said the employees were not treated as unfairly as
they thought, they already had enough benefits. Figard
said the benefits were adequate but wages were not up to
par, they could get as much on unemployment. Cessena
said , "What about union dues?" Figard did not reply.
I find nothing illegal in the latter conversation. However,
in the former, I find Respondent, in the person of Albert
Diehl, violated Section 8(a)(1) by threatening loss of over-
time if Respondent's employees selected the Union as their
collective-bargaining representative. The General Counsel
has failed to prove that Diehl violated Section 8(a)(1) by
"threatening employees with loss of benefits," another alle-
gation of the complaint.
H. Other Supervisors
With respect to all the other supervisors named in the
complaint, the General Counsel offered testimony as to
only one conversation with an employee.
1. Robert Boudreau and James Beland
I credit the testimony of Thomas Greaser over the testi-
mony of Robert Boudreau that the conversation never oc-
curred and the testimony of James Beland that Greaser
asked his opinion about the union in Fitchburg.
About a week before the election, Boudreau, research
and development supervisor, called Greaser into his office.
He told Greaser that, if the Union got in, the employees
would probably lose their hospitalization, pension plan,
and other benefits. He then asked Greaser what he thought
about the Union. Greaser told him it was none of his busi-
ness and asked if that was all he wanted. Boudreau did not
reply. Greaser asked if he could go back to work. Boudreau
said yes. Greaser left the office. I find, on the basis of this
conversation, that Respondent, in the person of Robert
Boudreau , violated Section 8(a)(1) by threatening and in-
terrogating an employee.
Early in the week in which the election was held, Greaser
was in the office of Beland, the machine shop foreman, at
breaktime. In the course of a discussion about the Union,
Beland brought up Fitchburg. He said the union there had
been no good and a union would do the employees no
good in Bedford. I find, on the basis of this conversation,
that Respondent, in the person of James Beland, violated
Section 8(a)(1) by impliedly threatening to close the plant
if employees selected the Union as their collective-bargain-
ing representative.
2. Robert Will
On Saturday, February 9, as Michael Hilmer was riding
to work in the car of Robert Will, foreman in the cut,
stitch, and upholstery department and Hilmer's immediate
supervisor, Will said, "I thought you were sick Tuesday
[February 5, the day Hilmer attended the first union meet-
ing]."
Hilmer said , "No, I didn't say I was sick . I just said I
wasn ' t feeling too well."
HEDSTROM COMPANY 1425
Will said, "Well, you were well enough to go to the
Union meeting."
Hilmer said, "I sort of figured you knew about that.
Who told you?"
Will said, "Nobody. I just know."
Hilmer said, "Well, Pappy Millers was there. I saw him
coming from the office. Somebody told you, and it had to
be somebody that was there."
Will said, "No, it just makes no difference how I found
out. You were there . What were you doing there? You've
got no complaints."
Hilmer said , "Nobody said I had any complaints."
Will said, "Well, what do you want a union in for?"
Hilmer said, "Bob, nobody told me I wanted a union
and nobody told me I didn't want one. I just went to find
out what was going on."
Will said, "Well, I can't understand it. You've got good
work, you've got benefits and everything. Why would you
want a union?"
Hilmer said, "I'm not going to let you tell me I don't
want one, and I'm not going to let anybody else tell me I
do want one. The only way I can find out what I do want
is to find out what everybody has to say. Until then, I will
make up my mind and not until then."
Will said he just could not understand why the men in
the plant would want a union. Hilmer said, "As far as I'm
concerned, all I want to do is find out what's going on."
I find, on the basis of this conversation, that Respon-
dent, in the person of Robert Will, violated Section 8(a)(1)
by creating an impression of surveillance of employees'
union activities.
3. Clark Ferguson
Having discredited Jeff Musselman generally, I credit
the testimony of Clark Ferguson, foreman of the chrome
plating department, that he was certain he never talked to
Musselman about the Union because they worked on dif-
ferent shifts when Musselman was in chrome plating.
(Musselman placed the conversation on February 8, when
he was assigned to that department.) The General Counsel
has failed , therefore, to prove Ferguson interrogated em-
ployees.
4. Dale Spriggs
I credit the testimony of Loren Weyant, a checker in the
shipping department, as to the details of his conversation
with Dale Spriggs , shipping department foreman, over
Spriggs' denial that he did anything other than "make the
statement that the Company did have a rough time in Mas-
sachusetts because it was my understanding it had approxi-
mately a 13 week strike."
One day around March 1, Spriggs came into a boxcar
where Weyant was working. Weyant and the loader were
discussing the Union as they worked. Spriggs said he want-
ed to make sure they understood unions. He said the Com-
8 A reference to Clayton Miller, the employee whose testimony about
what was said at the meeting of February 5 1 find incredible. See fn. 4,
above.
pany had a rough time with a union in Massachusetts
which was one reason why it moved the plant to Bedford.
He said that, if the Company got mad enough this time, it
could end overtime and take away all the things it was not
required to give the employees, such as the Christmas bo-
nus, and crack down on such little things as smoking in the
restrooms by enforcing its rules. He said he had heard that,
when a union comes into a plant, the employer starts out
with a clean slate and the employees have to work their
way up before they got back such things as Blue Cross and
Blue Shield.
I find, on the basis of this conversation, that Respon-
dent, in the person of Dale Spriggs, violated Section 8(a)(1)
by threatening employees. .
5. William Valiton
The conflict in the testimony about William Valiton, like
Rheault a foreman in the pressroom, concerns when the
conversation took place. Thomas Lewis placed it 2 or 3
weeks before the election. Valiton placed it in the summer,
long after the election, replying on his recollection that
Lewis' complaint about money led him to discuss Lewis'
status with Rheault, who took it up with Griffiths, who
authorized Lewis' promotion to leadman. Lewis was not
asked when, if ever, he was promoted to leadman. Thus, it
is not possible to resolve the conflict on that basis. Howev-
er, Lewis testified Rheault walked in near the end of his
conversation with Valiton, and Valiton conceded that dis-
cussion did take place in his presence. I have found in the
section above devoted to the allegations involving Rheault
that Rheault. talked to Lewis in terms that can only be
interpreted as an effort to persuade him to vote against the
Union. Therefore, I credit Lewis over Valiton as to their
conversation, especially as to when it took place.
Some 2 or 3 weeks before the election, Lewis went into
the foreman's office to check with Valiton about the work
he was supposed to do that evening. Valiton asked Lewis
how he felt about the Union. Lewis said he did not think it
could do the employees any harm, there probably would
not be a big pay increase right away but benefits would go
up. Valiton asked what had the rest of the guys so riled up.
Lewis said the lack of a definite seniority system and a
grievance procedure and the fact the employees needed
more money.
I find, on the basis of this conversation, that Respon-
dent, in the person of William Valiton, violated Section
8(a)(1) by interrogating an employee.
6. Merle Diehl
I credit the testimony of Merle Diehl, foreman in the
paint department, that he told Larry Winegardner the rea-
son he would not be able to help him with his work any
more was "the union contract, the foreman is not allowed
to participate in the work with the hourly employees."
Winegardner's version of this conversation, as to which
both witnesses are otherwise in agreement, lacks this expla-
nation. I am persuaded by Diehl's forthright, if mistaken,
testimony that all union contracts have that provision in
them, "as far as I know."
1426 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On the day of the election , Diehl stopped Winegardner
in the aisle in the painting department and said he was not
going to tell Winegardner how to vote but if the Union got
in he would not be able to help Winegardner any more on
the conveyor line because , under the union contract, the
foreman is not allowed to participate in the work with the
hourly employees . Diehl's statement was a prediction of
what might reasonably be expected in the event the Union
won and was successful in negotiating for what it wanted,
not a prediction of an event solely within the discretion of
Respondent as judged by objective criteria. There is noth-
ing illegal in it . I find . therefore , the General Counsel has
failed to prove Merle Diehl threatened employees with
more onerous working conditions.
111. THE OBJECTIONS TO THE ELECTION
The three objections to the election held in Case 6-RC-
6762 on March 28 which have been referred to me are set
forth in the Regional Director 's report of April 11, 1975,
thus:
1. The Employer, along with a local daily newspa-
per and the "Industrial Development Commission,"
threatened, intimidated and coerced the employees,
thereby destroying the laboratory conditions for a free
choice in the election.
2. The Employer, in a captive audience meeting,
conveyed the thought that the Employer would move
the plant if the Petitioner won the election.
3. The local newspaper contained the same threat
as that referred to in Objection 2 above, and contained
threats that proposed plant expansion hinged on the
outcome of the election.
As to 2, 1 have already found in the section above devot-
ed to allegations about E. Lee Ketcham , president of Re-
spondent, that he did, indeed, convey "the thought that the
Employer would move the plant if the Petitioner won the
election" when he read his Peerless Plywood speech to as-
sembled employees on the evening of March 26 and the
morning of March 27. Objections I and 2 refer to a news
story which appeared on the front page of the Bedford
Gazette on the morning of March 28. It reads, in pertinent
part:
Hedstrom Employees To Vote Today On
Unionization
By Ned Frear
Hedstrom Co. production and maintenance workers
will vote today on whether to join the International
Association of Machinists and Aerospace Workers
union (IAM).
A total of 246 employees are eligible for the vote. It
is the third union vote in Hedstrom 's seven years in
Bedford.
Company officers declined to be quoted, for fear of
being cited for unfair labor practices. IAM representa-
tive Jesse Young said , " I never count votes till after
the election , but on an educated guess , I'd say it looks
favorable for the IAM."
Hedstrom, which was sold to Brown Group Inc., of
St. Louis two years ago , has its headquarters in Bed-
ford. Hedstrom 's largest production facility is in Do-
than , Ala. The headquarters shift from Fitchburg,
Mass ., to Bedford , was made to escape what manage-
ment felt was an untenable union relationship . "A bit-
ter experience," one said . The Hedstroms left Fitch-
burg-and the union-behind.
* * *
The company says it is paying an average hourly
rate of about $3.60. Hedstrom recently announced a
22-cent hourly increase, 15 cents going into effect
Monday, and the other 7 cents Oct. 1.
Hedstrom has expanded its benefits to what compa-
ny executives believe is a fairly liberal package. Pro-
duction workers have a 9-hour shift, with one hour at
overtime rates. The company offers a pension and
profit-sharing plan, and pays 75 percent of Blue Cross
and Blue Shield coverage. Hedstrom has a "good"
paid vacation policy, and nine paid holidays per year.
The incentive plan payoff varies with each worker,
depending on performance.
* * * *
The real issue in the election may be the company's
expansion plans. Company officials confirm that the
parent corporation, Brown Group, has approved a $1
million addition to the massive plant along Sunnyside
Road. That would provide a 60,000 square foot addi-
tion for manufacturing and warehouse space.
Hedstrom officers say they have embarked on an
aggressive marketing campaign to increase the output
at the local plant in the northeast market.
A second shift has been started this year, but the
answer, they say, is to expand the building to handle
the bigger volume. The project has been "progressing
nicely," they say.
Hedstrom President E. Lee (Jack) Ketcham told
Bedford Rotary a month ago that "It's Bedford's turn
to grow." Ketcham said most of the growth in recent
years had been at the Dothan, Ala. plant, which is not
unionized.
When-or if-the expansion will be made could
hinge on the union situation, but company officials
wouldn't say that. One officer said, "We've all been
too busy on this election to think about it."
With Bedford County unemployment recently hit-
ting 18 per cent, Hedstrom is hiring. The management
says it expects no cutbacks. And the plant expansion
could provide 50 new jobs, with a payroll in the neigh-
borhood of $450,000 a year.
The Bedford plant hires around 50 temporary work-
ers during peak seasons.
Local development leaders have been figuratively
biting their fingernails each time an election comes up
at Hedstrom. One of the factors in a company's deci-
sion to move to a rural location like Bedford is often
whether or not a union will be involved.
"If we lose this one, we might as well go out of the
development business," one man close to the scene
HEDSTROM COMPANY 1427
said this week. But he and others have steered clear of
the Hedstrom situation, again for fear of unfair labor
practice charges.
Edward (Ned) Frear, editor of the Gazette and writer of
the story, refused to name his management source, relying
on a claimed first amendment right. Counsel for Respon-
dent did not adopt my suggestion that his client release
Frear from his promise to protect his source in order to
develop a complete record. Ketcham testified that he
talked to Frear on March 6 and again on either March 24
or 25. He testified that Respondent's controller, one Jerry
Lundine, also talked to Frear. He testified that Lundine
has merely referred Frear back to him. (Lundine did not
testify.) Ketcham admitted that he was the source of the
information in the story about the plant's wages and bene-
fits. He denied he was the source of the information about
expansion or the inference that a union victory might alter
Respondent's plans. In effect, he denied that he was the
source of the "bitter experience" quote. I do not believe
him, although, in my opinion, the issue posed by the news-
paper story does not turn on Frear's source and my resolu-
tion of the credibility point is, technically, irrelevant. I dis-
believe him here for the same reason I believed his
testimony that he read his Peerless Plywood speech without
material deviation. Ketcham is an intelligent man, well
aware of the nuances and subtleties involved in a sophisti-
cated response to the threat of union organization.
Respondent's brief cites three cases in support of its ar-
gument that
In the present proceeding there is no showing that
the Employer either authorized expressly or impliedly,
or ratified the publication of the Article in the Bedford
Gazette.
Therefore it is submitted objections I and 3 in re-
gard to the Employer should be dismissed.
None is apposite for all are unfair labor practice rather
than representation cases. Moreover, the argument misses
the point.
I gather from the fact he did not allege publication of the
story as an unfair labor practice that the General Counsel
concedes that agency must be shown before the activities
of some person or institution not obviously associated with
an employer can be found to be an unfair labor practice
and agrees that, here, there is no showing Respondent
either authorized or ratified the story. Therefore, whether
the Bedford Gazette was acting as an agent of Respondent
is not an issue I have to resolve. If it were, I would find
agency. In my opinion, the testimony of Frear and Ket-
cham taken as a whole, coupled with my disbelief as to
Ketcham's denials, is sufficient to support such an infer-
ence even though there is no direct evidence of a master-
servant relationship between Respondent and the Bedford
Gazette. Put in simpler terms, there is no smoking gun.
The issue presented here is whether the story destroyed
what the Board has so frequently referred to as the labora-
tory conditions which must not be contaminated if an elec-
tion is to be deemed valid. The fact that Respondent
moved its plant to Bedford to escape a union is common
knowledge in Bedford. The message that it might move
away from Bedford if a majority of the employees voted
for the Union could hardly be set forth more clearly than it
is in this story short of stating it as explicitly as it is in this
sentence. When the story is coupled with the same implied
threat in Ketcham's speech, violation of the Board's stan-
dards is so obvious as to be beyond argument. There is,
therefore, merit to all three of Petitioner's objections. My
reasons for not recommending an order to bargain as a
remedy for Respondent's unfair labor practices are set
forth below in the section entitled "The Remedy." Rather,
I recommend that the election held in Case 6-RC-6762 on
March 28, 1974, be set aside and a second be held.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Hedstrom Company, a subsidiary of Brown Group,
Inc., is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
2. International Association of Machinists and Aero-
space Workers, District No. 98, AFL-CIO, is a labor orga-
nization within the meaning of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties , membership, and desires; by threatening employees
with various reprisals if they selected the Union as their
collective-bargaining representative, including threatening
to close the Bedford, Pa., plant; by promising employees
various benefits if they refrained from selecting the Union
as their collective-bargaining representative; by soliciting
grievances from employees in order to deter them from
selecting the Union as their collective-bargaining represen-
tative; and by creating the impression of surveillance of
employees' union activities, Respondent has violated Sec-
tion 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. Allegations in the complaint that Respondent has vio-
lated Section 8(a)(1) of the Act at times and/or in ways not
specifically found herein have not been sustained.
THE REMEDY
The traditional remedy for 8(a)(1) violations of the sort
found in this proceeding is a cease-and-desist order and a
notice. That I recommend those in order to effectuate the
policies of the Act goes without saying. However, the real
issue in this case, as the record of a long and hotly contest-
ed hearing indicates, is whether Respondent should be re-
quired to recognize and bargain with the Union. I do not
recommend an order to bargain.
The General Counsel concedes that this proceeding does
not fall into the first of three classes discussed by the Su-
preme Court in N.L.R.B. v. Gissel Packing Co., Inc., 395
U.S. 575 (1969), the one where unfair labor practices are so
"outrageous" and "pervasive" that no remedy other than a
bargaining order. will suffice even in the absence of an
8(a)(5) violation or a bargaining demand. His argument is
summarized in this paragraph from his able brief:
1428 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Counsel for the General Counsel submits that a bar-
gaining Order is the proper remedy in the case at bar
inasmuch as Respondent engaged in a clear course of
conduct well calculated to undermine the Union's
support . Such conduct included a plethora of Section
8(a)(I) violations , which include , inter alia, threats of
plant closure and other reprisals , promising and grant-
ing benefits , and massive interrogation . Counsel for
the General Counsel produced 30 witnesses who testi-
fied to Section 8(aXl) conduct ; many testified to inci-
dents involving more than one supervisor or more
than one type of violative conduct . Those 30 witnesses
constituted 12 percent of Respondent 's total work
force of 249 employees employed during the time the
unfair labor practices were committed . Moreover, the
impact of Respondent 's conduct extended to all em-
ployees as a result of Ketcham 's speeches in which he
threatened plant closure . It is difficult to imagine a
case that is more custom-tailored to the application of
N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 71
LRRM 2481 , than the instant case . In Gissel, that re-
spondent committed "serious unfair labor practices
that interfere with the election processes and tend to
preclude the holding of a fair election ," supra at 594.
No fair election is possible among Respondent's em-
ployees in the instant case , for the Union 's majority
has been dissipated by Respondent's serious unlawful
conduct.
As the quote from page 594 recognizes , the issue is whether
this is a second-category case, i.e., one in which "the Board
can properly take into consideration the extensiveness of
an employer's unfair labor practices in terms of their past
effect on election conditions and the likelihood of their
recurrence in the future" to find "that the possibility of
erasing the effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional remedies,
though present , is slight and that employee sentiment once
expressed through cards would , on balance , be better pro-
tected by a bargaining order."
Four recent Board decisions which I have relied on in
determining whether or not specific conversations detailed
above violated the Act are also relevant to the issue of the
"extensiveness" of Respondent's unfair labor practices.
They are Hanes Hosiery, Inc., 219 NLRB 338 (1975); Alside
Supply Co., 219 NLRB 447 (1975); Mobil Oil Corporation,
219 NLRB 511 (1975); and Flint Provision Co., 219 NLRB
528 (1975). I cite them not for their specific holdings but
for their discussions of broad principles which, taken to-
gether, demonstrate the Board 's present thinking in the
area of Section 8(aXl). In Hanes and Alside the Board
found 8(aXl) violations . In Flint, no violations were found.
In Mobil, a "simple response during a casual conversation
with a single employee" was found not to be a violation.
Almost all of the conversations here were one-on-one.
Many can be described as casual . Viewed separately, most
of them do not measure up to the coercive level of 8(a)(1)
violation . This is especially true of the minor supervisors,
that is, everybody below the level of Ketcham, the presi-
dent, and Griffiths , the top in-plant boss . The acts of
Rheault and his peers cannot be viewed in isolation, how-
ever, especially in view of the number of violations by Grif-
fiths and the fact everything occurred "against a back-
ground of a campaign calculated to intimidate and coerce
the employees." (Flint, supra.) Since they did not "occur in
a vacuum," they meet the Board's long-recognized test that
"interference , restraint , and coercion under Section 8(a)(1)
of the Act does not turn on Respondent's motive, courtesy,
or gentleness, or on whether the coercion succeeded or
failed" but on "whether Respondent has engaged in con-
duct which reasonably tends to interfere with the free exer-
cise of employee rights under the Act." (Hanes, supra.)
The unfair labor practices committed by Respondent
were extensive in the sense that they were numerous and
not isolated. Whether they were extensive in the Supreme
Court's sense is a different question, for they must be
weighed in terms of their past effect on conditions at the
time of the March 28 election. In that regard, the role of
the minor supervisors must be distinguished from that of
Ketcham and Griffiths. The testimony of Michael Hilmer
illustrates this point.
Michael Hilmer is an articulate, intelligent young man.
His forthrightness and candor made him unique among the
General Counsel's witnesses. My findings of fact as to his
conversations with Will and Griffiths are set forth in such
detail above while others are relatively sparse not by choice
but because Hilmer was the only witness, with the possible
exception of Randy Whetstone, who gave enough detail to
put flesh on the bare bones of his recital. To the extent that
the General Counsel's other witnesses gave any insight into
"past effect on election conditions," their testimony weighs
against a bargaining order. Generally, they pictured them-
selves as either ignoring the supervisor's efforts to affect
them or giving as good as they got in the conversation.
Hilmer's testimony, on the other hand, highlights the point
on which this issue turns. Hilmer was obviously not
coerced at all when Will revealed that he knew Hilmer had
attended the first union meeting . But Hilmer was con-
cerned enough about what was going on in the plant to
seek out Griffiths because he feared for his job. There is no
allegation of discrimination against any employee in this
complaint. There is nothing to indicate that Hilmer had
any reason to be apprehensive because of his role in the
campaign or for any other reason. He was concerned that
Respondent might close the plant, a concern based on his
knowledge of how it came to be in Bedford in the first
place. As counsel for the General Counsel aptly remarked
during a colloquy in which I expressed surprise that coun-
sel for Respondent was contending the plant had not
moved from Fitchburg to get away from a union, this is a
runaway shop case about 10 years later. The one theme of
Respondent's campaign which might have had such an ex-
tensive effect on election conditions that the chance of a
fair rerun is slight is Fitchburg. All of the conversations,
whether they involved the minor supervisors or Griffiths
himself, which did not raise the specter of Fitchburg are
trivial by comparison. In and of themselves they do not rise
to the level of the Gissel standard. Do the implied threat to
close the plant in Ketcham's election eve speech and the
conversations specifically about Fitchburg in which
changes were rung on the same theme boost this proceed-
ing into the Supreme Court's second category? I think not.
HEDSTROM COMPANY 1429
The portion of the General Counsel's brief which I have
quoted is the first paragraph of a subsection of his argu-
ment entitled "A Bargaining Order Should Issue ." The re-
mainder of the subsection is devoted to the cases he relies
on. None is dispositive. All but one 9 involve either viola-
tions of Section 8(a)(3) of the Act or a grant of a wage
increase . The General Counsel is correct that "[t]here is no
requirement that any employer must violate other sections
of the Act [than Section 8(a)(1)] in order for the Board to
impose a bargaining order." However, the Gissel principle
is not to be applied mechanistically. Here, the 8(a)(1) viola-
tions are essentially limited to words spoken with no exten-
sive tangible benefit such as a general wage increase to
bribe employees to drop their union activities. Whatever
section or sections of the Act Respondent has violated, the
proper remedy can only be found by applying the Supreme
Court's and the Board's rationale to this proceeding in a
nonmechanistic manner.
Two recent Board decisions are dispositive. Neither is on
all fours with this proceeding. In Ludwig Fish & Produce,
Inc., 220 NLRB 1086 (1975), the Board reversed an
Administrative Law Judge who "recommended that a bar-
gaining order is not `necessary' because the Union made no
demand for bargaining and also because the coercive ef-
fects of the Respondent's unfair labor practices could be
effectively eliminated if and when Girardot and Penning-
ton are rightfully restored to their former jobs with back-
pay. We disagree and find that a bargaining order is neces-
sary." The Board said:
There is nothing in Gissel which conditions the bar-
gaining order remedy upon a demand for bargaining.
Rather, as the Supreme Court stated, the test is wheth-
er we may reasonably conclude that Respondent's un-
fair labor practices have rendered "a fair and reliable
election" impossible. In Gissel, the Court upheld the
Board's bargaining order remedy where the only un-
fair labor practice shown was the threat of plant clo-
sure . Here, in addition to the same unlawful threat, the
Respondent retaliated against the protected concerted
activity of its employees by discharging two of the five
employees in the unit. The pervasive effect of such
egregious violations cannot be gainsaid. For whether
the unit is large or small the discriminatory discharge
of 40 percent of the bargaining unit employees dem-
onstrates most convincingly that the Respondent has
resorted to its ultimate weapon in thwarting the em-
ployees' exercise of protected statutory rights. [Foot-
notes omitted.]
Thus, Ludwig stands for the proposition that the Board
will, in a proper case , enter a bargaining order where, as
here, the only significant unfair labor practice is a threat of
plant closure. In Ludwig, the additional 8(a)(3) violation
tipped the balance.
The Board also reversed an Administrative Law Judge's
9The exception , Sco/er's Incorporated, 192 NLRB 248 (1971), involved a
small closely knit unit . The rationale for granting a bargaining order-"The
repeated threats to punish union adherence and reward union opponents
and the coercive interrogation were sufficiently widespread in this small.
closely knit unit to make a fair election impossible"-does not apply here.
recommendation in Ann Lee Sportswear, Inc., 220 NLRB
982 (1975). Ann Lee involved only one relatively minor
8(a)(3) violation. It is, for all practical purposes, a case in
which the Board deemed 8(a)(1) violations-those found
by the Administrative Law Judge as well as additional vio-
lations found by the Board-so serious that only a bargain-
ing order would remedy the situation. It said:
That the above unfair labor practices of Respon-
dent had an irremediable effect on free expression ap-
pears plain. On June 7 the Union had obtained valid
authorization cards from 13 of the 20 employees in the
appropriate unit. Yet, when the election was conduct-
ed a month later, only 5 employees voted for, and 13
voted against, the Union. The majority support once
established by the Union was dissipated as a result of
Respondent's numerous violations of the Act which
began immediately after the Union made its demand
for recognition on June 7. The threats, the promise of
benefits, the granting of benefits, the polling of em-
ployees, the interrogation of employees regarding their
union interest, and the discriminatory refusal to pro-
mote and transfer employees because of the presence
of the Union directly threatened the employment sta-
tus of employees. Conduct of this nature cannot easily
be erased from the minds of employees and its impact
is lingering.
What tipped the balance was the fact that only 5 of 13
employees who saw fit, for whatever reason, to sign an
authorization card were sufficiently unaffected by the
employer's unfair labor practices to cast their ballots for a
union. The union lost 60 percent of its supporters. Here,
the Union obtained 133 10 authorization cards. It polled
113 votes. Thus, even if the assumptions are made that all
133 persons who placed their names on the Union's au-
thorization cards did so because they wanted representa-
tion and that all 20 of those who changed their minds were
coerced into doing so by Respondent's unfair labor prac-
tices , Respondent dissipated only 15 percent of the Union's
majority. The impact of unfair labor practices of such lim-
ited effectiveness is not sufficiently lingering to justify a
finding "that the possibility of erasing the effects . . . and
. .. ensuring a fair . . . rerun . . . by the use of traditional
remedies, though present, is slight and that employee senti-
ment once expressed through cards would, on balance, be
better protected by a bargaining order."
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:
ORDER II
Respondent, Hedstrom Company, a subsidiary of Brown
10 One more than the 132 cards relied on by the General Counsel to prove
majority. No effort was made to authenticate one card which was initially
marked for identification.
11 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
Continued
1430 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Group, Inc., Bedford , Pennsylvania , its officers , agents,
successors , and assigns , shall:
1. Cease and desist from:
(a) Threatening to close its Bedford , Pennsylvania, plant
if employees select a collective -bargaining representative.
(b) Threatening employees with any other reprisals.
(c) Promising employees benefits if they refrain from se-
lecting a collective -bargaining representative.
(d) Soliciting grievances from employees in order to de-
ter them from selecting a collective -bargaining representa-
tive.
(e) Interrogating employees about their union activities,
membership , and desires.
(f) Creating an impression of surveillance of employees'
union activities.
(g) In any like or related manner interfering with, re-
straining , or coercing employees in the exercise of the
rights guaranteed in Section 7 of the Act.
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmative action which will ef-
fectuate the policies of the Act:
(a) Post at its plant in Bedford , Pennsylvania , copies of
the attached notice marked "Appendix." 12 Copies of said
notice , on forms provided by the Regional Director for
Region 6 , after being duly signed by Respondent 's author-
ized representative , shall be posted by Respondent imme-
diately upon receipt thereof , and be maintained by it for 60
consecutive days thereafter , in conspicuous places, includ-
ing all places where notices to employees are customarily
posted . Reasonable 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 6, 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
insofar as it alleges Respondent violated Section 8(a)(1) of
the Act at times and/or in ways not specifically found
herein.
12 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals , the words in the notice reading " Posted by Order
of the 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.'