Clark Equipment Co.

National Labor Relations Board - Board Decisions

Feb 11, 1986

278 N.L.R.B. 498 (N.L.R.B. 1986)

498 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Clark Equipment Company and United Steelworkers
of America, AFL-CIO-CLC. Cases 11-CA-
8746, 11-CA-9454, and 11-RC-4447
11 February 1986
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS, JOHANSEN, BABSON, AND STEPHENS
On 27 January 1982 Administrative Law Judge
Henry L. Jalette issued the attached decision. The
General Counsel and the Respondent each filed ex-
ceptions and a supporting brief.l The Respondent
also filed an answering brief to the exceptions of
the General Counsel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, fmdings,2 and
conclusions only to the extent consistent with this
Decision, Order, and Certification of Results of
Election.
The judge found numerous violations of Section
8(a)(1) of the Act. After deciding that the Union
established its enjoyed majority support at the time
it demanded recognition from the Respondent, the
judge concluded that the severity and pervasive-
ness of the Respondent's unfair labor practices war-
ranted the issuance of a bargaining order under the
principles of NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In so doing, he sustained a number of
the Union's objections to conduct affecting the
election held on 13 July 1979 and, in light of his
recommended bargaining order, found that the pe-
i We find no procedural defect in the Respondent 's exceptions and
brief, and deny the General Counsel's "Motion to Strike Portions of Re-
spondent 's Exceptions to the Decision of the Administrative Law Judge
and Respondent 's Brief in Support Thereof."
2 The General Counsel and the Respondent have excepted to some of
the judge's credibility findings The Board 's established policy is not to
overrule an administrative law judge's credibility resolutions unless the
clear preponderance of all the relevant evidence convinces us that they
are incorrect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd.
188 F 2d 362 (3d Cir. 1951) We have carefully examined the record and
find no basis for reversing the findings.
In adopting the judge's finding that the announcement and the imple-
mentation of a job evaluation system were not unlawful , we do not rely
on his gratuitous comment that the Respondent could have delayed the
announcement and implementation of the program until after the election
but was not required to do so. The implementation of the program was
already planned and the employees informed of its imminent announce-
ment when the Union filed its request to proceed In these circumstances,
a delay would have been unlawful. (In this connection, we find merit to
the Respondent 's assertion that the Union's request to proceed was filed
on 12 June 1979, rather than on 8 June , as found by the judge This find-
ing does not affect our ultimate conclusion .) In addition, we note that
Charles Smith , director of employee relations, testified that the new
system resulted from both a Imear regression analysis and managerial
judgment Thus, we disagree with the judge's inaccurate characterization
of Smith as "less than candid" on this point.
tition for election should be dismissed. We dis-
agree.
As more fully set forth below, we disagree with
many of the judge's findings of violation. The re-
maining unfair labor practices which we find the
Respondent committed may be remedied by tradi-
tional means and do not warrant the extraordinary
remedy of a bargaining order. We further fmd that
these unfair labor practices, which are also the sub-
ject of objections in the representation case, are too
isolated to rise to the level of objectionable con-
duct affecting the election in a unit of over 800 em-
ployees. Accordingly, we overrule the Union's ob-
jections and issue a certification of results of elec-
tion.
Before addressing the substantive allegations of
the complaint, we must resolve a procedural issue.
As noted by the judge, the complaint in Case 11-
CA-8746 alleges numerous independent violations
of Section 8(a)(1), despite the absence of any spe-
cific allegations of independent 8(a)(1) conduct in
the original and the amended charge which con-
tained only allegations of 8(a)(3) and (5) conduct.
Thus, the independent 8(a)(1) allegations of the
complaint are dependent solely on the printed lan-
guage of the charge form NLRB-401 that "[b]y
the above acts and other acts, the above-named
employer has interfered with, restrained and co-
erced employees in the exercise of rights guaran-
teed in Section 7 of the Act." The Respondent
contended before the judge, and now in its excep-
tions to the judge's decision, that the printed lan-
guage of the charge form is insufficient to support
the allegations of the complaint. The judge rejected
the Respondent's contention, citing Texas Indus-
tries, 139 NLRB 365 (1962), enfd. in relevant part
336 F.2d 128 (5th Cir. 1964). We agree with the
judge's ruling and adopt his findings that the
8(a)(1) allegations were properly raised by the
complaint and were not time-barred by Section
10(b) of the Act.3
A. The 8(a)(1) Allegations
1. A significant portion of the 8(a)(1) violations
found by the judge involved the Respondent's dis-
tribution of eight pieces of literature in the 16 days
preceding the election. The complaint alleged, and
the judge found, that the Respondent through this
literature unlawfully conveyed: threats of loss of
3 Notwithstanding the result here, we wish to stress the importance of
following the guidelines set forth in the Casehandling Manual. Sec
10064 5 of the manual specifically provides that "[i]f the allegations of the
charge are too narrow," an amendment should be sought, and that if an
amendment is not filed, "the case should be reappraised in this light, and
the complaint issued, if any, should cover only matters related to the
specifications of the charge "
278 NLRB No. 85
CLARK EQUIPMENT CO. 499
benefits, plant closure, and the inevitability of a
strike if the Union won; threats of discharge in re-
prisal for union activities; promises of benefits for
rejection of the Union; and the message that it
would be futile to select the Union as the employ-
ee's representative. In its exceptions, the Respond-
ent essentially contends that its campaign was a
truthful and lawful response to the Union's exten-
sive leafleting campaign. It further contends that its
references to benefits in progress before the cam-
paign began and the possible undesirable effects of
unionization do not amount to unlawful promises
or threats, and that its literature otherwise falls
within the protection of Section 8(c) of the Act.
We agree with the Respondent's contentions and
dismiss all allegations relating to the Respondent's
literature.
At the outset, we note that the General Counsel
conceded, and the judge found, that the Respond-
ent's literature did not contain any express threats
or promises. Instead, the judge agreed with the
General Counsel's contention that unlawful threats
and promises could be implied from the body of lit-
erature read as a whole. We find no such implica-
tions in the Respondent's literature.
With respect to the finding of unlawful threats of
loss of benefits, the judge relied on the following
statements by the Respondent:4
Neither the Company nor the Union can
predict what will be in the contract. Your
wages and benefits could turn out to be
higher, tower, or the same as they are now.
I'm sure the Union will try to tell you there
is some sort of law that will prevent the Com-
pany from negotiating fir anything less than
you now receive. That statement is simply not
based on facts. I've given your supervisors
copies of a decision in which the Court upheld
the employer's right to inf brm his employees that
he may not even have to agree to the continuance
of existing wages and benefits. [Emphasis
added.]
These facts may seem harsh, but I think it's
important that you know the truth, about the
collective bargaining process before you vote.
Remember bargaining means putting everything
on the table, 'including the benefits you already
have. [Emphasis added.]
4 The full text of the Respondent's statements is set forth in sec. 11,A, 1,
of the judge's decision. To avoid lengthy repetition, we refer here only to
excerpts, which we believe fairly characterize the general thrust of the
Respondent's literature.
Bargaining with a union can be a complicat-
ed and time consuming process during which
the Union and the Company negotiate to get
an agreement that both sides are satisfied with.
And bargaining starts from scratch, which
means that everything is negotiable.
As I have told you, we would bargain in
good faith. But, I would not sign a contract
which I did not believe was in this plant's best
interest. Sometimes, when a company takes
this position, the union tries to force a settle-
ment. This usually leads to a breakdown in
bargaining and can result in a strike-which
hurts everyone.
You should know, however, that the benefit
package given Rockingham employees by
Clark from the time this plant opened was
better than those at Clark's unionized plants.
You were given greater benefits voluntarily by
the Company than those in unions bargained
repeatedly with Clark for more than 20 years
for their benefits.
Your pay increases are a result of the fair
and responsible compensation policy we
follow at Rockingham. There is no question in
my mind it is better than the union approaches
to wages that I've seen in the contracts of
other companies in our area.
A vote of no union is a vote to continue the
pay practices we have committed to at Rock-
ingham since the day we began operations.
The judge found that the only reasonable con-
struction of these remarks is that if the Union won,
the employees' benefits will be reduced, and that
the Respondent thereby violated Section 8(a)(1) by
making an implied threat of the loss of benefits. He
further found that the remarks, viewed in the con-
text of the Respondent's frequent reference to a
strike and its favorable comparison of Rockingham
plant wages with those at its unionized plants,
amounted to a threat to adopt a regressive bargain-
ing posture.
The Respondent contends that these statements
are factually accurate, truthfully reflect the bar-
gaining process , and were made in direct response
to union promises . Thus, it argues that it fully dis-
cussed the bargaining process, including the possi-
bilities that wages and benefits could go up, down,
or stay the same. It also argues that the statements
it made about wages and benefits at other plants
were in response to the Union's extensive literature
which referred to improved benefits at some union-
ized plants. (Twenty-two of the thirty-three leaflets
500 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
distributed by the Union, the Respondent alleges,
contained this kind of 'claim.) We find merit to the
Respondent's contentions. The statements on which
the judge relied accurately reflect the obligations
and possibilities of the bargaining process. They do
not contain any threats that the Respondent will
not bargain in good faith, or that only regressive
proposals will result. We conclude that the Re-
spondent has not impliedly or otherwise threatened
that it will bargain regressively or take away bene-
fits should the Union win the election. The leaflets
contain permissible campaign materials within the
protection of Section 8(c), and we, accordingly,
dismiss this allegation.
In finding that the Respondent violated Section
8(a)(1) by impliedly promising employees improved
benefits if they rejected the Union, the judge relied
on the following statements made in leaflets circu-
lated by the Respondent, and written. by George
Guttschalk, the Respondent's plant manager:
I admit, no employer is perfect. However, I
am totally convinced that we can best resolve
our differences without the Steelworkers union
and the adversary relationship the organizers
have tried to develop. In order to move ahead,
we must work together-not fight each other.
Unions are known chiefly for:
-extracting dues from you
-calling strikes
-making promises
-causing confusion among employees.
I am asking for a vote of confidence and a
chance to prove what we can accomplish by
working together-without interference by a
union . I am asking for a chance to continue
the improvements we have underway in Rock-
ingham-without interference by the union.
I know that mistakes have been made, the
fact that we are having a union election at this
time indicates to me that some of you felt it
was necessary, at one time, for an outsider to
represent you-that management was not re-
sponsive to your needs and concerns.
It has been difficult to bring back to Rock-
ingham the positive feelings that most of you
had about the company, but I sincerely feel we
have turned the corner. I am aware of your
frustrations with machine problems, material
flow problems, overtime problems, inconsistent
interpretation of company policies, pay incon-
sistencies , and management in general. Also
the personnel function has not been as sensi-
tive to your needs as it- should have been or
could be. I admit that these things could have
been diagnosed sooner and acted upon. How-
ever, we all know it is easy to quarterback
Friday night's football game on Monday
morning.
I believe today we are building a manage-
ment team which is willing to recognize its
shortcomings and is actively working to cor-
rect them. It is not an easy job, but with your
help it can, done. Programs have been de-
veloped to:5
1) Improve scheduling in the plant.
2) Reduce scrap.
3) Provide foremen training development.
4) Improve quality of our product.
5) Purchase required machinery.
6) Improve our housekeeping.
Although the judge noted that no specific bene-
fits were promised in these statements, he conclud-
ed that taken as a whole they conveyed a willing-
ness to do things differently and better if the em-
ployees rejected the Union. The judge stated he
could place no other construction on statements
about resolving differences without the Union and
references to past mistakes coupled ' with a request
for time.
The Respondent contends that it was permissibly
reminding the employees of how good conditions
were at the plant, including ongoing improvements
it had instituted prior to the union campaign. We
find merit in the Respondent's contentions. The
record shows that a new management team was in-
troduced in November 1978, when no election was
pending, and that the Respondent had indeed
begun those improvements it specified. Similarly,
the Respondent's appeal for the employees' confi-
dence, i.e., requesting them to give it another year
"to work together," falls within the scope of per-
missible 8(c) statements.'6 We, therefore, also dis-
miss this allegation.
With respect to the threat of the inevitability of
strikes, the judge again found that no single state-
ment in any of the Respondent's literature con-
tained such a threat. However, he concluded that
taken as a totality the Respondent's literature led
the employees to believe their choice was between
no Union or striking. In addition to the mention of
strikes in the materials discussed above, the judge
also relied on the following references in various
leaflets distributed by the Respondent:
5 This portion of this exhibit inadvertently was omitted in the judge's
decision.
6 National Can Corp., 159 NLRB 647, 659-660 (1966)
CLARK EQUIPMENT CO. 501
BARGAINING IS A TWO WAY STREET.
Both the company and the union may present
proposals at the bargaining table.
The Law does not require either the company
or the union to agree to any proposal. NOTH-
ING' REQUIRES THE COMPANY TO
AGREE TO ANY SPECIFIC UNION
DEMAND OR TO MAKE ANY PARTICU-
LAR CONCESSION TO THE UNION.
THE LAW DOES NOT PROVIDE FOR
ANY ARBITRATOR TO RESOLVE BAR-
GAINING DISPUTES.
BARGAINING with any union is an UN-
CERTAIN PROCESS at best. If that BAR-
GAINING BREAKS DOWN, the union can
call you out on STRIKE.
Unfortunately, when a union campaigns to get
into a plant, it may tell you anything to get
your vote--ignoring the fact that all bargain-
ing demands are subject to negotiations and
the company cannot be required to agree to
any particular demand made by the union. At
best, bargaining with a union is a human proc-
ess and subject to breakdown, that's when
strikes occur-without' the threat of that
weapon, the union is powerless at the bargain-
ing table.
Let's review for a moment what has been dis-
cussed lately. The union in its attempt to get
your vote has made promises of Jackson,
Alcoa and Schlitz wages. They have tried to
convince you that collective bargaining starts
where you presently are and can only result in
more. They have further implied not to worry
about strikes and if one does occur you will
not have a problem.
HOWEVER! What they have FAILED to tell
you is that all wages, benefits and workin
conditions are subject to give and take of
COLLECTIVE BARGAINING where
NOTHING IS GUARANTEED, NOTHING
IS AUTOMATIC and the RESULTS AT
BEST ARE UNCERTAIN. Also, that strikes
are always possible when a company and
union negotiate.
IF THE UNION IS VOTED IN WILL
THERE BE A STRIKE?
I know, that with a union the threat of a strike
will always be with you.
I also know the only way the Union can try to
force Clark. to agree to what they may be
promising you is to call you out on strike.
Promises are cheap-strikes are real and
would be expensive to you.
In 1978 unions in the United States called
4,300 strikes involving 1.6 million employees
totalling 39 mill man days of lost work-and
lost paychecks.
The judge concluded that there was no sugges-
tion in any of this literature that in the collective-
bargaining process minds could be changed with-
out the necessity for striking. While he acknowl-
edged that the Respondent was not obligated to
make such a suggestion, he nevertheless found that
by its theme of strikes and a reference to the nature
and risks of collective bargaining in the context of
other unlawful statements, the Respondent threat-
ened employees with the inevitability of a strike if
they selected the Union.
The Respondent contends that it - never referred
to strikes as more than a possibility; it referred to
them in response to the Union's repeated mention
of strikes in October 1978 and June 1979 leaflets
and 8 and 9 July 1979 radio announcements;' and
it included only accurate information about strikes
that had occurred and the Respondent's rights and
obligations during a strike. We find merit to the
Respondent's position. Although the Respondent
repeatedly referred to the possibility of strikes, it
also repeatedly referred to its obligation to bargain
in good faith. It permissibly; pointed out the possi-
bility of a strike, the facts surrounding strikes else-
where (without insisting they would occur at the
Rockingham plant), and certain economic realities,
i.e., that the' Union could only try to force certain
conditions by striking. It is well settled that an em-
ployer is permitted by Section 8(c) to present ' its
views of the economic realities of unionization, and
we do not find that the Respondent has exceeded
the rights afforded it by that section of the Act.
We, therefore, find that the Respondent did not
violate Section 8(a)(l) by threatening employees
with the inevitability of strikes.
Finally, the judge made additional findings of
8(a)(l) violations in the Respondent's literature
solely on the basis of his above-described analysis.
Thus, he found that because the literature con-
tained threats of loss of benefits and the inevitabil-
ity of a strike, it also unlawfully conveyed the futil-
ity of selecting a collective-bargaining representa-
' In these leaflets ' and radio announcements , the Union told the em-
ployees that an authorized strike at Clark would not occur without a ma-
jority vote of the union members, and that strikes in the steel industry did
not occur frequently or last long. The Union pointed out that 98 percent
of all contracts are settled without a strike and there has not been a strike
over contract issues in the basic steel industry since 1959.
502 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive. Similarly, he found that the Respondent's ref-
erences to job security and plant closures amounted
to unlawful threats of plant closure when viewed
in the context of unlawful threats of loss of bene-
fits, the inevitability of strikes, and the futility of
selecting the Union as a bargaining representative.
Finally, he found that the Respondent's references
to the permanent replacement of strikers amounted
to unlawful threats to discharge solely because
they occurred in the context of the unlawful state-
ments about the inevitability of a strike and the fu-
tility of unionization. As we have adopted none of
the judge's conclusions from which he derived
these additional findings, we necessarily dismiss the
findings of unlawful threats of the futility of select-
ing a bargaining representative, plant closure, and
discharge.
2. The judge found that the Respondent, by its
supervisors, Ray Simmons and Robert Frank, un-
lawfully interrogated employee Marshby Coving-
ton, an open and active union supporter, and im-
pliedly threatened him with loss of benefits. He
based these findings on the credited evidence that
the day before the election, Simmons and Frank
asked Covington why he was voting for the Union,
if he thought the Union could give him as many
evaluations and raises as the Respondent had, and
made comments similar to those in the Respond-
ent's literature, described' above, about the bargain-
ing process and the possible loss of benefits. We
disagree with these findings.
After the judge's decision issued, the Board re-
vised its position on interrogations. The Board no
longer finds inquiries directed at employees unlaw-
ful unless under all the circumstances the interroga-
tion reasonably tends to restrain, coerce, or inter-
fere with rights guaranteed by the Act.8 Here,
Covington was an open and active union adherent.
Undisputed evidence shows he wore a union
button and passed out union leaflets and cards on
the Respondent' s premises. Further, the circum-
stances surrounding his interrogation were not co-
ercive. Thus, the judge credited the testimony that
the supervisors' comments concerning loss of bene-
fits were similar to the alleged threats in the Re-
spondent's literature, which, as discussed above, we
do not find unlawful. We, accordingly, dismiss the
allegations that the Respondent violated Section
8(a)(1) of the Act by interrogating Covington and
threatening him with the loss of benefits.9
9 Rossmore House, 269 NLRB 1176 (1984), enfd sub nom . Hotel & Res-
taurant Employees Local 11 v. NLRB, 760 F.2d 1006 (9th Cir. 1985).
9 Member Dennis finds it unnecessary to pass on the question whether
the Covington interrogation violated the Act because the finding of such
an additional violation could be cumulative and would not affect the
Order.
3. The judge also found that the Respondent vio-
lated Section 8(a)(1) by its supervisor Ronnie Wil-
liams' interrogating and making a threat to employ-
ee Livingston Bridges . Thus, he credited testimony
that about 2-1/2 weeks before the. election, Wil-
liams first asked Bridges what he thought -the
Union could do for him, and then made statements
to him that "if it came down to where y'all went
out on strike and they had people out, they could
go out and hire"; the Respondent had 100 to 200
people waiting for jobs; "if it came down to bar-
gaining, they couldn't get anything for nothing; it
would be more like a trade"; and "they would use
us as examples for other Clark plants here in the
South." Applying PPG Industries, 251 NLRB 1146,
1147 (19$0), the judge found it irrelevant that
Bridges was an open union supporter, and conclud-
ed that the Respondent unlawfully interrogated
him and threatened him with job loss and reprisals
for engaging in union activity.
We agree that the interrogation was unlawful,
but rely instead on Rossmore House, supra, which
overruled PPG Industries, on the ground that it had
improperly established a per se rule concerning the
interrogation of open union supporters.' ° Here the
interrogation of Bridges was accompanied by coer-
cive comments, most particularly the unlawful
threat to make examples of the employees at this
plant.1l In these circumstances, we find the inter-
rogation was unlawful and adopt the judge's con-
clusions that the Respondent violated Section
8(a)(1) by interrogating Bridges and threatening
him with job loss and, reprisals for union activity.
4. The judge found that the Respondent violated
Section 8(a)(1) by its supervisor Brad McInnis'
comments to employee Richard Diggs . Thus, about
1 week before the election McInnis first asked
Diggs how he was going to vote and when Diggs
replied for the Union, McInnis then inquired
whether Diggs was sure he was doing the right
thing. McInnis further asked Diggs if he knew that
if the Union won he could lose his benefits and
told him he should think twice about voting for the
Union. Diggs was an active union adherent and
McInnis admitted his, knowledge of this. The judge
found that these comments amounted to an implied
threat of loss of benefits and that the interrogation,
in the context of this threat, was, therefore, also
10 Member Babson finds it unnecessary to pass on the issue of whether
the interrogation of Bridges violated the Act since the finding of an addi-
tional violation merely would be cumulative and would not affect the
Order.
' i Indeed, it is this threat which colors Williams' statements about the
Respondent's readiness to hire in the event of a strike, and renders unlaw-
ful what otherwise could have been a statement concerning the economic
realities of the bargaining process.
CLARK EQUIPMENT CO. 503
unlawful. These findings are consistent with Ross-
more House, and we, accordingly, adopt them.12
5. The judge found that the Respondent, by its
supervisor Carter Kelly, unlawfully interrogated
employee Willie Moore, threatened him with dis-
charge, and indicated it was futile to select the
Union as the employees' collective-bargaining- rep-
resentative, Thus, in the period before the election,
Supervisor Kelly distributed some of the Respond-
ent's literature, which dealt mostly with strikes, to
employee Willie Moore, and asked Moore to come
talk to him if he had any questions. In response to
a question from Moore, Kelly stated that "if the
Union would come in that they could not make the
Company give nothing. All they could do was ne-
gotiate, and they could not give us better wages
and benefits if the Company does not want to give
them to us." Kelly added that if an employee was
out on strike he could be replaced if the Company
was falling down on productivity. In a later inci-
dent, while distributing more of the Respondent's
campaign literature, Kelly asked Moore if he
thought the Respondent needed a union. Kelly told
Moore he did not need to answer the question, but
Moore responded, saying he did not know. Kelly
then asked if Moore thought the Union could give
him more benefits than the Respondent.
The judge found the interrogation was unlawful
and the other comments amounted to unlawful
threats to discharge and demonstrated the futility
of selecting the Union as a collective-bargaining
representative. With respect to the interrogation,
he found that, although Kelly told Moore he did
not have to answer, Kelly nevertheless immediately
followed Moore's reply with another question to
get him to reveal his union sentiments . As to the
threats, the judge relied on the repetition of similar
comments in the Respondent 's campaign literature,
Which he had found unlawful.
We agree that the interrogation was unlawful.
No evidence was presented that Moore was an
active union adherent. Further, we agree with the
judge's finding that Kelly's repeated questioning of
Moore was, in the circumstances, coercive. i 2
However, we disagree with the judge's findings
that Moore's remarks were unlawful threats of dis-
charge and demonstrated the futility of selecting
the Union. Moore's remarks, as the judge found,
were essentially restatements of comments made in
12 Chairman Dotson does not agree. Ile does not find that McInnis'
statement about benefits was coercive , but that it was instead , an accurate
reflection of one possibility of the negotiation process. In the absence of
any threat, he also does not find the interrogation of the . known union
adherent Diggs unlawful under the rationale of Rossmore House
13 Cf. Sunnyvale Medical Clinic, 277 NLRB 1217 (1985), applying the
principles of Rossmore House to the interrogation of an employee who
was not a known union adherent . Member Dennis adheres to her Sunny-
vale dissent.
the Respondent's campaign literature. For the rea-
sons presented in our discussion of the literature,
we do not find these comments go beyond the pro-
tection of Section 8(c). We, therefore, dismiss the
allegations that Kelly's comments amounted to un-
lawful threats.
6. The judge found that the Respondent also en-
gaged in 8(a)(1) misconduct by two incidents of
creating the impression of surveillance. Thus, he
found that about a week before the election, Fore-
man James Freeman mentioned to employee Mi-
chael Grant that "not many people were attending
the union meetings on Sunday and he heard that
about only 500 people had signed cards." When
Grant asked him how he knew this, Freeman re-
sponded that was what he had heard.
In a second incident, about 3 days before the
election, Supervisor Randy Tunstall told employee
Donald Pettigrew that he had heard about Petti-
grew passing out union leaflets that day and he was
disappointed in him. When Pettigrew asked how he
had found out, Tunstall replied that "one of the
guys" had seen him.
The judge found no merit to the Respondent's
contentions that because the first comment did not
refer to specific individuals, and because Petti-
grew's leaflet distribution was open, these state-
ments were not coercive. We disagree. Freeman's
statement to Grant contained only general or
known facts which he had "heard" (i.e., on 4 June,
more than a month before Freeman's comments,
the Union made a demand for recognition with a
showing of 470 cards). An employee to whom this
kind of statement was directed could not reason-
ably believe from it alone that the Respondent had
intentionally embarked on a course of monitoring
the Union's activity. We, therefore, find the state-
ment did not create the impression of surveillance,
was not coercive, and did not violate Section
8(a)(1).
As for the second incident, the open union activ-
ity of an employee was witnessed and commented
on. This cannot reasonably convey the impression
that the Respondent had placed union activity
under surveillance. Employers are not required to
make themselves oblivious to what employees have
chosen to make known and obvious, and their fail-
ure to do so is not coercive. We, accordingly, also
dismiss the allegation that, by Tunstall's comment,
the Respondent created the impression of surveil-
lance in violation of Section 8(a)(1).
7. The judge dismissed an allegation that the Re-
spondent violated Section 8(a)(1) by engaging in
surveillance. He credited the testimony of employ-
ees Jimmie Stubbs and Richard Harris that 1 week
before the election, Supervisor Dean Meachum
504 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
raised the lid of Stubbs' wooden toolbox in the
work area and briefly leafed through the materials
which it contained. The box was Stubbs' personal
property and contained union literature, buttons,
and stickers. Union materials were also taped on
the outside of the box. Meachum told Harris, who
was standing nearby, that he had better shut the
box and that it looked like it belonged to Jimmie
Stubbs. Stubbs, who was standing across the room,
witnessed the incident. The judge concluded that
Meachum 's inspection was not unlawful because
the materials attached to the outside of the box
openly advertised that it contained union materials.
We disagree.
Meachum testified that he inspected the box be-
cause the Respondent had a rule against putting
stickers on those boxes which it supplied its em-
ployees, although stickers were allowed on em-
ployees' personal property. However, Meachum
also testifed that the only boxes that the Respond-
ent supplied its employees were wheeled carts,
which Stubbs' wooden box clearly was not. Mea-
chum offered no other explanation for his conduct.
Further, although the judge characterized Mea-
chum's conduct as "a fleeting glance," we note that
Meachum did more than open the lid and look
inside; he also leafed through the union papers that
were inside the box. We have no reasonable alter-
native but to infer that Meachum looked into the
toolbox because he wanted to observe evidence of
employee union activity. This action thereby had a
tendency to coerce the employees in the exercise
of their Section 7 rights, and we, accordingly, find
that Meachum's conduct amounted to unlawful sur-
veillance in violation of Section 8(a)(1).14 -
B. The 8(a)(5) Allegation and the Recommended
Bargaining Order
The Union made a request for recognition on 4
June 1979, on the basis of 470 signed single-purpose
union authorization cards in a unit stipulated to in-
clude 820 employees. The judge found that, as of 4
June 1979, 42,6 of the cards were valid designations
of the Union as,the collective-bargaining represent-
ative of the unit employees. The judge further
found that the Respondent's unfair labor practices
were sufficiently egregious and pervasive to war-
rant a bargaining order. He, therefore, found that
the Respondent had a duty to bargain with the
Union as of 4 June 1979, and because it has not
done so has thereby violated Section 8(a)(5) and (1)
since that date. We disagree.
Although, as found above, the Respondent has
engaged in violations of Section 8(a)(1), we do not
fmd that they are sufficiently egregious either in
nature or number to warrant a bargaining order.
Thus, in the weeks before the election the Re-
spondent violated the Act by interrogating three
employees about their union activity, threatening
two of these same employees with the loss of bene-
fits or other reprisals, interfering with the distribu-
tion of campaign literature, threatening two em-
ployees with arrest for distributing campaign litera-
ture, and engaging in surveillance of an employee's
personal property for evidence of union activity. In
addition, after the election, it further violated Sec-
tion 8(a)(1) by interfering with the Board's process-
es by advising an employee twice that he was not
legally required to honor Board subpoenas.
Considering the nature of the violations, especial-
ly in the context of the large size of the unit, and
the lack of evidence of any dissemination of the
misconduct which involved only nine employees,
we do not believe that the effects of the Respond-
ent's misconduct will linger to prevent a fair elec-
tion. It is significant, although not dispositive, that
the misconduct was exclusively in violation of Sec-
tion 8(a)(1). No union adherents were discriminated
against for their union activities despite the fact
that the campaign was an open and active event,
with many employees involved (e.g., approximately
450 signed cards) and with the Respondent know-
ing about many employees' open support for the
Union. Based on all the above factors, we do not
find that the Respondent's misconduct has preclud-
ed the likelihood of a fair election. We, therefore,
do not adopt the judge's recommendation that a
bargaining order should issue,15 or his corrollary
finding that the Respondent violated Section
8(a)(5) by refusing to recognize and bargain with
the Union.
C. The Objections
In its objections, the Union essentially contended
that the election should be set aside on the basis of
the same misconduct which it alleged amounted to
preelection violations of Section 8(a)(1). On the
basis of the evidence , which the judge found
amounted to preelection violations of Section
8(a)(1), he also found the Respondent engaged in
the following objectionable conduct: threatening
employees in its campaign literature , inter alia,
with the loss of benefits , plant closure, and the in-
15 In light of this conclusion, we find it unnecessary to address the va-
14 See Intertherm, Inc., 235 NLRB 693, 694 (1978), enfd in relevant lidity of the authorization cards used to establish majority support.
part 596 F 2d 267 (8th Car. 1979) In finding a bargaining order inappropriate, Member Dennis relies on
Chairman Dotson does not agree and would adopt the judge's dismissal her concurring opinion in Regency Manor Nursing Home , 275 NLRB 1261
of this allegation for the reasons the judge provided (1985)
CLARK EQUIPMENT CO.
evitability of strikes, and making promises; interfer-
ing with the distribution of union literature in non-
work areas and on nonworktime; interrogation; and
creating the impression of surveillance.' 6 He,
therefore, recommended setting aside the election.
We do not agree. Thus, not only have we re-
duced the number of preelection findings of 8(a)(1)
misconduct from that found by the judge, but we
conclude that those that did occur do not warrant
setting aside the election. In reaching this determi-
nation, we are cognizant that it is the Board' s usual
policy to direct a new election whenever an unfair
labor practice occurs during the critical period
since "[c]onduct violative of Section 8(a)(1) is, a
fortiori, conduct which interferes with the exercise
of a free and untrammeled choice in an election."17
However, the Board has departed from this policy
in cases where it is virtually impossible to conclude
that the misconduct could have affected the elec-
tion results. In determining whether misconduct
could have affected the results of the election, we
have considered "the number of violations, their
severity, the extent of dissemination, the size of the
unit, and other relevant factors." 18 Thus, in Coca-
Cola Bottling Co., 232 NLRB 717, 718 (1977), the
Board declined to set aside the election despite in-
terrogations affecting 2employees out of a unit of
106 employees, in violation of Section 8(a)(1).
Here, the Respondent engaged in the above-de-
scribed incidents' of preelection misconduct involv-
ing eight different employees. However, these inci-
dents occurred in a unit of over 800 employees and
in the midst of an active and open campaign. (It is
also relevant that the incidents of interference with
the distribution of union literature and the surveil-
lance were momentary only.) Further, all incidents
involved only one or two employees, and no evi-
dence of dissemination was presented. Taking these
factors into consideration, we cannot conclude that
this misconduct could have affected the results of
the election, which with a tally of 391 for, and 489
against; the Union, cannot be characterized as
close. We, accordingly, overrule all the objections
and certify the results of the election.
AMENDED CONCLUSIONS' OF LAW
The Conclusions of Law shall be amended as fol-
lows:
1. Substitute the following for Conclusion of
Law 4.
"4. By threatening employees with loss of bene-
fits and other reprisals if they selected the Union as
16 No exceptions were made to the judge's overruling of the Union's
Objections 3, 4, and 18, and these findings are adopted pro forma
17 Dal-Tex optical Co„ 137 NLRB 1782, 1786 (1962).
18 Enola Super Thrift, 233 NLRB 409 (1977).
505
their collective-bargaining representative; by inter-
rogating employees about their union sentiments;
by interfering with employees in the distribution of
union literature in nonwork areas during nonwork-
time ; by threatening the arrest of employees for
distributing union literature in nonwork areas
during nonworktime; by engaging in surveillance
of the union activities of its employees; and by
interfering with the Board's processes by telling
employees they do not have to honor Board sub-
poenas, the Respondent has engaged in, and is en-
gaging in, unfair labor practices within the meaning
of Section 8(a)(l) and Section 2(6) and (7) of the
Act."
2. Substitute the following for Conclusion of
Law 5.
"5. The Respondent has not refused to bargain
with the Union, as the exclusive representative of
its employees in the appropriate unit, within the
,meaning of Section 8(a)(1) and (5) of the Act as al-
leged in the complaint."
ORDER
The National Labor Relations Board orders that
the Respondent, Clark Equipment Company, Rock-
ingham, North Carolina,' its officers, agents, succes-
sors, and assigns, shall
1. Cease and desist from
(a) Threatening employees with loss of benefits
and other reprisals if they select United Steelwork-
ers of America, AFL-CIO-CLC or any other
labor organization as their collective-bargaining
representative.
(b) Interrogating employees about their union
sentiments in a manner or under circumstances
constituting interference, restraint, or coercion.
(c) Interfering with employees in the distribution
of union literature in nonwork areas during non-
worktime and threatening the arrest of employees
for distributing union literature in nonwork areas
during nonworktime.
(d) Engaging in surveillance of the union activity
of employees.
(e) Interfering with the Board's processes by tell-
ing employees they do not have to honor Board
subpoenas.
(f) In any like or related manner interfering with,
restraining, or coercing its employees in the exer-
cise of their rights to self-organization, to form,
join, or assist the Union, or any other labor organi-
zation, to bargain collectively through representa-
tives of their own choosing, and to engage in con-
certed activities for the purpose of collective bar-
gaining or other mutual aid or protection, and to
refrain from any or all such activities.
506 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Post at its Rockingham, North Carolina plant
copies of the attached notice marked "Appen-
dix." 19 Copies of the notice, on forms provided by
the Regional Director for Region 11, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(b) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the allegations of
unlawful conduct not found to be violative of the
Act shall be dismissed.
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for United Steelworkers of
America, AFL-CIO-CLC and that it is not the ex-
clusive representative of these bargaining unit em-
ployees.
19 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with loss of benefits
or other reprisals if you select as your collective-
bargaining representative United Steelworkers of
America, AFL-CIO-CLC or any other labor orga-
nization.
WE WILL NOT interrogate you about your union
sentiments in a manner or under circumstances
constituting interference, restraint, or coercion:
WE WILL NOT interfere with your distribution of
union literature in nonwork areas during nonwork-
time and threaten to arrest those of you who dis-
tribute union literature in nonwork areas during
nonworktime.
WE WILL NOT engage in surveillance of the
union activities of employees.
WE WILL NOT interfere with the Board's proc-
esses by telling you that you do not have to honor
subpoenas of the National Labor Relations Board.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
CLARK EQUIPMENT COMPANY
Calvin W. Sharpe, Ann B . Wahl, and George Carson,
Esqs. , for the General Counsel.
Jules I. Crystal and Neil G. Gaffney, Esgs. (Pope, Ballard
Shepard & Fowle), of Chicago, Illinois , and George H.
Plaut, Esq., of Buchanan, Michigan, for the Respond-
ent.
Michael Krivosh of Stoneville, North Carolina, and
Harold McIver, of Riverdale, Georgia, for the Charg-
ing Party.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge. This
consolidated proceeding involves allegations that Re-
spondent Clark Equipment Company engaged in conduct
violative of Section 8(a)(1) and (3) of the Act, and that
certain conduct interfered with the holding of a free
election. By reason of such conduct, and pursuant to an
allegation that a majority of Respondent's employees had
designated United Steelworkers of America, AFL-CIO-
CLC as the collective-bargaining representative, the
General Counsel contends that Respondent's refusal to
recognize and bargain with the Union, on request, was
violative of Section 8(a)(1) and (5) of the Act.
The proceeding is based on a charge in Case 11-CA-
8746 filed by the Union on November 13, 1979, and
amended on November 29, 1979. Pursuant thereto, com-
plaint issued on December 31, 1979. By order dated
April 11, 1980, Case 11-CA-8746 was consolidated with
Case I1-RC-4447 for the purpose of hearing objections
filed by the Union to conduct affecting the results of an
election held among Respondent's employees on July 13,
1979. On September 10, 1980, an amended complaint was
issued. On October 10, 1980, the Union filed a charge in
Case 11-CA-9454, which charge was amended on No-
CLARK EQUIPMENT CO.
vember 5, 1980, and pursuant to which, complaint issued
on the same date. During hearing on the prior charge,
motion was made to consolidate Case 11-CA-9454 with
Case 11-CA-8746. The motion was granted. Between
October 6, 1980, and March 26, 1981, hearing was held
at Rockingham, North Carolina,
On the entire record,1 including my observation of the
witnesses, and after consideration of the briefs of the par-
ties, I make the following
FINDINGS OF FACT
1. THE FACTUAL SETTING
Respondent is a Delaware corporation with plants in
several States of the United States, including a plant at
Rockingham, North,Carolina, the plant involved herein,
where' it is engaged in the manufacture of transmissions
for heavy-duty equipment.2 The plant employs about 900
employees. In mid-1977, the Union began an organiza-
tional campaign among such employees and on Novem-
ber 25, 1977, a petition for an election was filed in Case
1I-•RC-4447. On February 2, 1978, an election was held
in which 249 votes were cast in favor of union represen-
tation and 355 votes against. Timely, objections to con-
duct affecting the results of the election were filed by
the Union and on February 1, 1979, the Board set aside
the election and directed a second election. A second
election was held on July 13, 1979, wherein 391 votes
were cast in favor of union representation and 489
against . On July 20, 1979, the Union filed timely objec-
tions and on September 14, 1979, the Regional Director
issued a second report on objections in which he over-
ruled certain objections, sustained others, and found that
others raised material and substantial issues best resolved
by a hearing. As noted earlier such objections were con-
solidated for hearing with the unfair labor practice alle-
gations.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged Interference, Restraint, and Coercion3
1. The campaign literature
About June 19, 1979, agreement was reached between
Respondent and the Regional Director on an election
' After close of hearing, Respondent moved to reopen the record to
receive certain documents relative to Respondent's policy with regard to
employee claims for unemployment compensation. The issue of Respond-
ent's policy is collateral to an allegation of independent 8(a)(1) conduct
and the proffered material is ' offered essentially for credibility purposes. I
deem it of insufficient probative value to warrant reopening the record
and Respondent's motion is denied . The General Counsel's motion to
correct the record is granted.
2 Jurisdiction is not in issue Respondent admits, and I find, that it
meets the Board's $50,000 direct outflow standard for the assertion of ju-
risdiction.
a The complaint in Case 11-CA-8746 alleges a variety of independent
8(a)(1) conduct such as threats, a wage increase, surveillance, interroga-
tion, promises of benefit, and the solicitation of grievances. Neither the
original charge, nor" the amended charge, specified any independent
8(a)(1) conduct in the body thereof, containing only specification of
8(a)(3) and (5) conduct. Thus, the independent 8(a)(1) allegations of the
complaint are dependent wholly on the printed language of the charge
(form NLRB-4)1) that "By the above acts and other acts, the above-
named employer has interfered with, restrained, and coerced employees
507
date of -July 13. Thereafter, beginning on June 25 and
ending on July 10, Respondent distributed eight pieces of
literature to its employees expressing its opposition to the
Union. (G.C. Exhs. 2-9.)
The complaint alleges that in this volume of literature,
all of which was signed by Plant Manager George Gutts-
chalk, Respondent violated Section 8(a)(1) of the Act in
that Respondent therein- threatened its employees with
loss of benefits, plant closure, and the inevitability of a
strike if they selected the- Union as their collective-bar-
gaining representative; threatened its employees with dis-
charge, for engaging in protected concerted activity;
promised its employees benefits if they rejected the
Union as their collective-bargaining representative; and
informed its employees that it would be futile to select
the Union as their collective-bargaining representative.
In support of these allegations, the General Counsel is
not relying on express threats or promises; rather, the
counsel for the General Counsel is contending that the
threats and promises are to be implied from the entire
body of the literature. Respondent, for its part, contends
that all of the statements appearing in the literature were
true, were made in response to campaign literature of the
Union, contained no threats or promises of benefit, and
were statements protected under Section 8(c) of the Act.
The allegation that Respondent threatened its employ-
ees with loss of benefits- if they selected the Union as
their collective bargaining representative ' appears to be
predicated on statements in the Company's literature on
the subject of collective bargaining. In General Counsel's
Exhibit 9, under the heading "If the Union wins the elec-
tion, will it automatically give you more money?" the
statement is made "And bargaining starts from scratch,
which means that everything is negotiable."
While this piece of literature is the only one in which
the phrase "bargaining starts from scratch" appears, this
idea of a possible loss of benefits appeared in other forms
in other pieces of literature. Thus, in General Counsel's
Exhibit 2, Respondent stated, "Neither the Company nor
the Union can predict what will be in the contract. Your
wages and benefits could turnout to be higher, lower, or
the same as they are now." And "I'm sure the Union
will try to tell you that there is some sort of law that
will prevent the Company from negotiating for anything
less than what you now receive. That statement is simply
not based on facts. I've-given your supervisors copies of
a decision [Bendix Corp.] in which the Court upheld the
employer's rights to inform his employees that he may not
even have to agree to the continuance of existing wages and
benefits." (Emphasis added.) The letter ended, "These
FACTS may seem harsh, but I think it's important that
you know the truth about the collective bargaining proc-
ess before you vote. Remember, bargaining means putting
everything on the table, including ` the benefits you already
have." (Emphasis added.)
In the argument relative - to Respondent's threats of
loss of benefits, the General Counsel has adverted not
in the exercise of rights guaranteed in Section 7 of the Act." Respondent
contends this is insufficient to support the allegations of the complaint. I
find no merit to the contention Texas Industries, 139 NLRB 365 (1962),
enfd. in relevant part 336 F.2d 128 (5th Cir 1964)
508 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
only to the statements quoted above, but to statements
which he says conveyed the idea that strikes were inevi-
table, and to statements that Respondent's employees in
Rockingham were receiving good wages and benefits
whereas employees at Respondent's unionized plants
were not doing as well. The General Counsel argues,
"The combined effect of all these statements were to im-
press upon the employees that if the Union were selected
as their bargaining representative Respondent could take
away the benefits it had bestowed upon them just as
easily as they had been given and could deny them
future benefits." I find merit in the General Counsel's po-
sition.
In Coach & Equipment Sales Corp., 228 NLRB 440-441
(1977), the Board stated:
Thus, where a bargaining-from-scratch statement
can reasonably be read in context as a threat by the
employer either to unilaterally discontinue existing
benefits prior to negotiations, or to adopt a regres-
sive bargaining posture designed to force a reduc-
tion of existing benefits for the purpose of penaliz-
ing the employees for choosing collective represen-
tation, the Board will fmd the violation. Where, on
the other hand, the clearly articulated thrust of the
bargaining-from-scratch statement is that the mere
designation of a union will not automatically secure
increases in wages and benefits, and that all such
items are subject to bargaining, no violation will be
found. A close question sometimes exists whether
bargaining-from-scratch statements constitute a
threat of economic reprisal or instead constitute an
attempt to portray the possible pitfalls for employ-
ees of the collective-bargaining process. The pres-
ence of contemporaneous threats or unfair labor
practices is often a critical factor in determining
whether there is a threatening color to the employ-
er's remarks.
In the statements adverted to above , I do not fmd that
Respondent made an express threat to unilaterally dis-
continue existing benefits , but I do find a clear threat, in
the words of the Board, "to adopt a regressive bargain-
ing posture." I base this fording on the following state-
ments in the pamphlet (G.C. Exh. 9) distributed on July
8 or 9:
Bargaining with a union can be a complicated
and time consuming process during which the union
and the Company negotiate to get an agreement
that both sides are satisifed with. And bargaining
starts from scratch, which means that everything is
negotiable.
As I have told you, we would bargain in good
faith. But, "I would not sign a contract which I did
not believe was in this plant's best interest. Some-
times, when a company takes this position, the
union tries to force a settlement. This usually leads
to a breakdown in bargaining and can result in a
strike-which hurts everyone.
CAN YOU COUNT ON IMPROVEMENTS IN
BENEFITS IF THE EMPLOYEES VOTE IN
THE UNION?
No one can predict that!! Once again bargaining
would take place to determine whether you would
gain, lose or maintain your present benefits.
You should know, however, that the benefit
package given Rockingham employees by Clark
from the time this plant opened was better than
those at Clark's unionized plants . You were given
greater benefits voluntarily by the Company than
those in unions bargained repeatedly with Clark for
more than 20 years for their benefits.
HAVE THE PAY CHANGES FROM THE
TIME YOU WERE HIRED AT ROCKINGHAM
BEEN FAIR AND MEANINGFUL?
One of the most impressive things about our pay
plan is the income progress you have made since
being hired at Clark.
Please take the time to measure your own pay in-
creases resulting from the pay progression steps of
your grade , promotions you have earned, salary
structure adjustments from our surveys, and job
evaluation.
Your pay increases are a result of the fair and re-
sponsible compensation policy we follow at Rock-
ingham. There is no question in my mind it is better
than the union approaches to wages that I've seen
in the contracts of other companies in our area.
A vote of no union is a vote to continue the pay
practices we have committed to at Rockingham
since the day we began operations.
In my judgment , the ony reasonable construction of
these remarks is that if employees select the Union their
benefits will be reduced . This is evident when one juxta-
poses the ideas that "bargaining starts from scratch" and
"everything is negotiable" with the reminder that exist-
ing benefits are better than those at Clark 's unionized
plants after 20 years of bargaining. The clear implication
in this is that Respondent grants better benefits to em-
ployees who are not represented by a union than to em-
ployees who are; in effect , the statement implies that it
discriminates against employees in its unionized plants
because they are unionized . When one adds to this mes-
sage , the statement "A vote of no union is a vote to con-
tinue the pay practices we have committed to at Rock-
ingham since the day we began operations," the implied
threat of loss of benefits is apparent and a fmding of a
violation of Section 8(a)(1) of the Act is warranted.
In support of the allegation that Respondent made un-
lawful promises of benefit, the General Counsel adverts
to statements in General Counsel's Exhibits 2, 4, 5, 7, 8,
and 9. In my judgment , when Respondent 's statements
are considered in their totality and context , a fording is
warranted that Respondent impliedly promised employ-
ees benefits if they rejected the Union . I, base my finding
on the following: In General Counsel's Exhibit 5, which
CLARK EQUIPMENT CO. 509
had as its principal theme the dissension associated with
unions, Guttschalk stated:
I admit, no employer is perfect. However, I am to-
tally convinced that we can best resolve our differ-
ences without the Steelworkers union and the adver-
sary relationship the organizers have tried to devel-
op. In order to move ahead, we must work togeth-
er-not fight each other.
General Counsel's Exhibit 9 contained the following:
ON UNIONISM
GEORGE GUTTSCHALK'S ATTITUDE ON
UNIONS
I appreciate talking directly with each of you and
hope you value talking with me direct-not through
a third party.
Unions are known chiefly for:
-extracting dues from you
-calling strikes
-making promises
-causing confusion among employees
I am asking for a vote of confidence and a
chance to prove what we can accomplish by work-
ing together-without interference by a union. I am
asking for a chance to continue the improvements
we have underway in Rockingham-without inter-
ference by the union.
A UNION IS NOT NEEDED IN OUR
PLANT!
In any manufacturing business there will continue
to be challenges for us. Don't believe it if the union
tells you they can solve them-only you can I as
members of the Company working together have
and will solve them. We don't need a third party to
cause confusion our divert our best efforts.
In summary, our rockingham plant is on the
move. we know where we have been . Working to-
gether we will continue to show improvements. I
value my direct relationship with each of you and
the trust that we have in one another. I ask you not
to permit a union to put themselves in the middle of
our relationship. Vote no to their efforts. Vote no
to the union.
In General Counsel's Exhibit 7, Guttschalk wrote:
I am asking you in all sincerity to CONSIDER
THE FACTS. Sure we have problems and much
needs to be done. But lets first be done with all the
upset and argument we have put up with this past
year and a half. Your "No" vote will give us a one
year opportunity to work together-without having
to worry about union dues, bargaining breakdowns,
strikes and picket lines. After all, if I fail you in the
next year, bringing a union in then will be much
easier than trying to get rid of this one if it doesn't
work out.
I have learned an awful lot. I honestly believe we
can solve our problems. I appreciate your patience,
support and continuing high level of work which
you have performed during those trying times.
Finally, in General Counsel's Exhibit 8, Guttschalk
wrote:
I know that mistakes have been made, the fact
that we are having a union election at this time indi-
cates to me that some of you felt it was necessary,
at one time , for an outsider to represent you-that
management was not responsive to your needs and
concerns.
It has been difficult to bring back to Rockingham
the positive feelings that most of you had about the
company, but I sincerely feel we have turned the
corner. I am aware of your frustrations wth ma-
chine problems, material flow problems, overtime
problems, inconsistent interpretation of company
policies, pay inconsistencies, and management in
general. Also the personnel function has not been as
sensitive to your needs as it should have been or
could be. I admit that these things could have been
diagnosed sooner and acted upon. However, we all
know it is easy to quarterback Friday night's foot-
ball game on Monday morning.
I believe today we are building a management
team which is willing to recognize its shortcomings
and is actively working to correct them. It is not an
easy job, but with your help it can be done.
1) Improve scheduling in the plant.
2) Reduce scrap.
3) Provide foremen training development.
4) Improve quality of our product.
5) Purchase required machinery.
6) Improve our housekeeping.
In my judgment, the foregoing statements clearly
imply that the employees will receive benefits, albeit un-
specified, if they reject the Union. I can place no other
construction on statements about resolving differences
without the Union, working together, and not fighting
each other; statements requesting a vote of confidence
and "a chance to prove what we can accomplish"; and
references to past mistakes, which are blamed for the
employees' desire for union representation, coupled with
a request for time ("a one year opportunity to work to-
gether").
In arguing against a finding of unlawful promise, Re-
spondent contends that all that it was telling the employ-
ees was how good conditions were at its plant, what it
had done, and what its policies were and would continue
to be. I do not believe such a reading of Respondent's
literature is accurate. To the contrary, the idea conveyed
is one of a willingness to do things differently and better
if the employees reject the Union. While the promises
are not specific, they are nevertheless promises.
As to the matter of strikes, there is the allegation that
Respondent threatened its employees with the inevitabil-
ity of a strike. The Respondent's references of to strikes,
510 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and strike violence, are so numerous that I am loathe to
set them forth here. In its totality,, Respondent's litera-
ture lends itself to no other construction than that it
threatened employees with the inevitability of a strike,
although no single statement can be said to contain such
a threat. In the analysis that follows, I have excerpted
some statements which, in my judgment, support a find-
ing of a violation. At the outset, however, I would ex-
plain that the rational for my conclusion is that articulat-
ed by the Board in Amerace Corp., 217 NLRB 850, 852
(1975). The Board stated:
In arguing against unionism , an employer is free
to discuss rationally the potency of strikes as a
weapon and the effectiveness of the union seeking
to represent his employees. It is, however, a differ-
ent matter when the employer leads the employees
to believe that they must strike in order of get con-
cessions . A major presupposition of the concept of
collective bargaining is that minds can be changed
by discussion,, and that skilled, rational, cogent ar-
gument can produce change without the necessity
for striking. When an employer frames the issues of
whether or not the employees should vote for a
union purely in terms of what a strike might accom-
plish, he demonstrates an attitude of predetermina-
tion that bargaining itself will accomplish nothing.
Employees should not be led to believe, before
voting that their choice is simply between no union
or striking.
In my judgment, Respondent's employees have been
led here to believe that their choice is simply between no
union or striking. The literature, it will be noted, does
refer to collective bargaining and Respondent did state it
would bargain in good faith. (G.C. Exh. 9, p. 3.) But
giving lip service to the collective-bargaining process
does not mean that a finding of threats of the inevitabil-
ity of a strike is not warranted.
Among the statements made by Guttschalk in the liter-
ature are the following:
ALL UNION CONTRACTS ARE NOT THE
SAME. Contracts are decided by the give and take
of bargaining, and in bargaining, NOTHING IS
AUTOMATIC.
If the union wins the election, the ONLY OBLI-
GATION the company would have would be to sit
down and BARGAIN in good faith with the union.
The union CANNOT GUARANTEE any gains
in wages or benefits, nor can it guarantee any im-
provements'in working conditions.
Neither the company nor the union can predict
what will be in a contract. Your wages and benefits
could turn out to be higher, lower, or the same as
they are now.
,BARGAINING IS A TWO WAY STREET.
Both the company and the union may present pro-
posals at the bargaining table.
The LAW, does not require either the company
or the union to agree to any proposal. NOTHING
REQUIRES THE COMPANY TO AGREE TO
ANY SPECIFIC UNION, DEMAND OR TO
MAKE ANY PARTICULAR CONCESSION TO
THE UNION.
THE LAW DOES NOT PROVIDE FOR ANY
ARBITRATOR TO RESOLVE BARGAINING
DISPUTES.
BARGAINING with any union is an UNCER-
TAIN PROCESS at best. If that BARGAINING
BREAKS DOWN, the union can call you out on
STRIKE.
Unfortunately, when a union campaigns to get
into a plant, it may tell you anything to get your
vote-ignoring the fact that all bargaining demands
are subject to negotiations and the company cannot
be required to agree to any particular demand made
by the union. At best, bargaining with a union is a
human process and subject to breakdown , that's
when strikes occur-without the threat of that
weapon, the union is powerless at the bargaining
table. [G.C. Exh. 4.]
-BARGAINING?-It means nothing is auto-
matic and nothing is guaranteed. Under the law,
you can lose as a result of bargaining . Bargaining at
any time can be complicated and time consuming
process and can be even worse on a first contract.
[Leaflet, G.C. Exh. 6.]
Let's review for a moment what has been dis-
cussed lately. The union in its attempt to get your
vote has made promises of Jackson, Alcoa and
Schlitz wages. They have tried to convince you
that collective bargaining starts where you present-
ly are and can only result in more . They have fur-
ther implied not to worry about strikes and if one
does occur you will not have a problem.
HOWEVER! What they have FAILED to tell
you is that all wages, benefits and working condi-
tions are subject to give and take of COLLEC-
TIVE BARGAINING where NOTHING IS
GUARANTEED, NOTHING IS AUTOMATIC
and the RESULTS AT BEST ARE UNCER-
TAIN. Also, that strikes are always possible when a
company and union negotiate. [July 9 letter.]
IF THE UNION WINS THE ELECTION,
WILL IT AUTOMATICALLY GET YOU
MORE MONEY? -
I know the Union would have you believing, but
in dealing with a union any pay change depends on
the give and take of bargaining.
Bargaining with a union can be complicated and
time consuming process during which the union and
the Company negotiate to get an agreement that
both sides are satisfied with. And bargaining starts
from scratch, which means that everything is nego-
tiable.
As I have told you, we would bargain in good
faith. But, I would not sign a contract which I did
not believe was in the plant's best interest. Some-
times, when a company takes this position, the
union tries to force a settlement. This usually leads
to a breakdown in bargaining and can result in a
strike-which hurts everyone.
CLARK EQUIPMENT CO. 511
IF THE UNION IS VOTED IN WILL
THERE BE A STRIKE?
I know that with a union the threat of a strike
will always be with you.
I also know the only way the Union can try to
force Clark to agree to what they may be promising
you is to call you out on strike . Promises are
cheap-strikes are real and would be expensive to
you.
In 1978 unions in the United States called 4,300
strikes involving 1.6 million employees totalling 39
mill man days of lost work-and lost paychecks.
[G.C. Exh . 9 (on pay).]
Is there even the slightest suggestion in the foregoing
that in the process of collective bargaining "minds can
be changed by discussion , and that skilled , rational,
cogent argument can produce change without the neces-
sity for striking?" I fmd none . Respondent may argue
that such is not its obligation , and rightly so. But that is
not the point; the evil lies not in what it failed to say, but
in what it said , and, in that regard, the idea it conveyed
was precisely the opposite of that quoted above.
This is readily seen when one considers that with these
statements about collective bargaining Guttschalk was
making the statements considered earlier that unionized
employees of Clark were receiving less benefits than the
Rockingham employees, that the employees should give
the Company a chance , and that it and the employees
could work out their problems without the Union. Con-
fronted with such rhetoric , and the repeated refrain
about strikes and strike violence , employees could form
no other conclusion than that if they voted for the Union
a strike was inevitable. Accordingly , I fmd that by its
theme of strikes and its references to the nature and risks
of collective bargaining , in the context of other unlawful
statements , Respondent threatened employees with the
inevitability of a strike if they selected the Union and
thereby restrained and coerced employees in violation of
Section 8(a)(1) of the Act.4
As noted , the General Counsel contends that Respond-
ent's literature conveyed to employees that it would be
futile for them to select the Union as their collective-bar-
gaining representative . In support of the contention, he
adverts to^ General Counsel 's Exhibits 5, 6, and 8, but he
does not indicate which statements therein support such
a finding. Essentially, his argument is that the statements
which support a finding of threats of loss of benefits and
inevitability of strikes supports a finding that Respondent
conveyed the idea to employees that it would be futile
for them to select a collective-bargaining representative.
I agree . When an employer threatens employees with
the loss of benefits , reminds them of the failure of the
Union to obtain better benefits as its other plant (G.C.
Exh. 8), reminds them of the complexity and time-con-
suming process of collective bargaining and the inevita-
bility of a strike if the Union is selected as their collec-
tive-bargaining representative, it conveys at the same
4 The General Counsel's request for reconsideration of my ruling at
the hearing rejecting G C. Exhs . 10 and 11 for identification and for their
receipt into evidence is denied. His arguments continue to overlook the
fact that no employee could testify to having been shown the documents.
time an idea of utter futility of selecting a collective-bar-
gaining representative , and I find, based on the state-
ments quoted earlier , that Respondent thereby violated
Section 8(a)(1) of the Act.
As to allegation of threats of plant closure , it is based
on the entire body of literature with particular reference
to statements on' job security (G.C. Exh . 3), and to the
closing of plants of Clark in other locations where the
employees had been represented by the Union (G.C.
Exh. 9). Respondent contends that its statements were
true , did not attribute the plant closings to the Union,
but rather to economic considerations , and were in re-
sponse to union literature.
In my judgment , Respondent's statements about job se-
curity and its references to plant closings are unlawful
only if my earlier findings of threats of loss of benefits,
the inevitability of strikes , and the futility of selecting the
Union as bargaining representative are valid . In the con-
text of such other unlawful statements, the statements
about job security and references to plant closings
cannot be construed as other than implied threats of
plant closure . I so find.
The last threat alleged to have been contained in the
literature is a threat of discharge for engaging in protect-
ed concerted activity . In support of this allegation, the
General Counsel adverts to General Counsel 's Exhibit 5
and statements about job security and strikes . The state-
ments are part and parcel of Respondent's statements of
the inevitability of strikes and threats of plant closure
which I have already found to be unlawful . While plant
closures result in loss of jobs, to extrapolate from such a
finding a further finding of a threat of discharge appears
to me to be unwarranted.
Perhaps I have misread the General Counsel 's position
because there is support for a finding of a threat of dis-
charge for engaging in protected concerted activity in
Respondent's references to the permanent replacement of
strikers in view of the Respondent's prediction of inevita-
bility of a strike and the futility of selecting the Union as
the collective -bargaining representative . In light of such
other unlawful conduct , Respondent's statements about
permanent replacements constitute unlawful threats of
discharge . Progressive Supermarkets, 259 NLRB 512
(1981).
2. The,job evaluation program
As noted earlier , on June 19, 1979, agreement was
reached between Respondent and the Regional Director
for an election date of July 13 . On June 27 Respondent
posted a notice that beginning June 29 it would conduct
employee meetings to discuss the results of a job evalua-
tion program . On June 29 Guttschalk conducted several
meetings with employees , at each of which he gave the
same talk describing the results of the job evaluation pro-
gram . In that talk, he told the employees, among other
things, that new grades and wage ranges would become
effective July 9 and that after his meeting the supervisors
would inform each individual employee what his job
grade was and review the wage -range structure. As a
result of the job evaluation , 840 employees out of 874 re-
ceived wage increases.
512 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In accordance with Respondent's pay schedule, em-
ployees would not have been paid any increases until
Friday, July 20; however, when they were paid on July
13, the day of the election, they received their higher
rate of pay of one day of the preceding week.
The complaint alleges that Respondent announced and
granted a wage increase to its employees in order to dis-
courage union activities. This is a very straightforward
allegation , but it depends on congeries of facts and cir-
cumstances which render decision quite difficult. Thus,
in the brief, the General Counsel contends that the viola-
tion is composed of "the timing of the, announcement of
the job evaluation results; the concomitant alteration of
the existing grade and wage structure and the accompa-
nying wage increase; and the inclusion in the employees'
election day paychecks of one day's pay at the new
rate."
As to the timing, it is the General Counsel's contention
that the job evaluation process was prolonged in order to
permit announcement and implementation of the results
to coincide with the election. I find the contention lack-
ing in merit.
It is undisputed that a job evaluation review was
begun in December 1978, and that it had an estimated
completion_ date of March 30, 1979, at which time the
employees- were to be appraised of the results. (R. Exh.
21.) Respondent's witnesses testified to the delays in
meeting that estimated completion date and there is no
reason to reject that testimony. While it is true that as of
February 1, 1979, Respondent knew of an impending
election, it did not have any idea when an election
would be held because the Union had withdrawn a re-
quest to proceed it had filed earlier. The delay in com-
pletion of the job evaluation program could not in the
circumstances be attributed to an impending election
(unless one is willing to infer that Respondent had deter-
mined to delay the matter indefinitely until the Union
made its next move, an inference I am unwilling to
make).
After March 30, the record indicates the various steps
that remained to be performed to complete the job eval-
uations and that they culminated in an announcement, on
June 8 that Respondent expected to present the program
to the employees at the end of the month. As of that
date, although the Unon had demanded recognition on
June 4, there was still no election in the picture. Howev-
er, on the same date of that announcement, the Union
filed a request to proceed that triggered the election ar-
rangements . It is after this point that the timing of the
announcement must be evaluated. In my judgment, Re-
spondent was warranted on and after June 8 to continue
the process it had begun in December. I find that is what
it did and that if the timing of its actions was coincident
with the election it was attributable to the fact that the
Union filed a request to proceed when it knew that Re-
spondent had completed the evaluation and was about to
announce the results.
Actually, Respondent had not completed the evalua-
tion process before June 8. Mathematical calculations
had been made and grades had been restructured, but the
final wage rates had not yet been approved and were not
approved until sometime after June 8. In my judgment,
this does not render Respondent's conduct unlawful.
What was done was a finalization of a process of several
months. While Respondent could have delayed an-
nouncement and implementation until after the election,
it was not required to do so.
The General Counsel's second point, that there was
"concomitant alteration of the existing grade and wage
structures and the accompanying wage increase," is the
most difficult facet of the job evaluation program to un-
derstand and resolve. The first difficulty with the issue is
the fact that 840 out of 874 employees received a wage
increase. In light of such numbers, it would appear to be
appropriate to denominate the action of Respondent as
the grant of a general wage increase and, when one con-
siders that Respondent had granted a general wage in-
crease only' 10 weeks before (May 1), the inference that
the wage increases effective July 9 were for the purpose
of eroding employee support for the Union appears justi-
fiable. Yet, on reflection, a conclusion based on such an
approach substitutes a label such as "general wage in-
crease" for an analysis of the facts that assertedly pro-
duced the wage increase. This is the central question: on
what facts were the wage increases based?
It is not disputed that the job evaluation program was
based on the National Electrical Manufacturers Associa-
tion (NEMA) job evaluation plan; a plan recognized
throughout the industry as a tool for establishing a job
evaluation system. According to this plan, each job is
evaluated on a number of factors to which points are as-
signed and the total points within a certain range are
given a grade. Before the job evaluation here in question,
Respondent had nine grades with a specified range of job
evaluation, points for each grade. After the job evalua-
tion, there were only eight grades and the range of
points had been changed:
GRADE
OLD NEW
EVALUATION EVALUATION
POINTS POINTS
1-150 1-134
151-172 135-151
173-194 152-187
195-216 188-222
217-238 223-258
239-260 259-293
261-282 294-328
283-304 329+
305+
As to the wage ranges in existence before and after the
changes, they were as follows:
GRADE
OLD WAGE NEW WAGE RANGES
RANGES
START 3 9 STARTMOS. MOS.
3 - 9
MOS. MOS.
.................. $4.26 $4.54 $4.75 $4.46 $4.75 $5.06
2 .................. 4.52 4.76 5.03 4.67 4.97 5.30
3 .................. 4.77 5.05 5.34 4.89 5 21 5.55
4 .................. 5.07 5.35 5.61 5.13 5.46 5.82
5 .................. 5.37 5.67 5.97 5.37 5.72 6.09
6 .................. 5.68 5.98 6.56 5.91 6.29 6.70
CLARK EQUIPMENT CO 513
OLD WAGE NEW WAGE RANGES
RANGES
GRADE 3
MOS.
9
MOS.START 3 9 STARTMOS. MOS.
7 ................. 5.74 , 6.27 6.81 6.48
8 .................. 5.91 6.54 7.08 7 10
9 ................. 7.20 7.54 7.89
6.90 7.35
7.56 8.05
As is readily seen, the job evaluation review produced
substantial changes: the point ranges for each grade were
different, there was one less grade, and the rates of pay
were higher , in some cases, significantly so. For example,
it will be noted that the range of points for grade 1 was
changed from 1-150 points to 1-134 points, and for
grade 2 from 151-172 points to 134-151 points . In effect,
this change raised grade 1 jobs to grade 2 jobs, grade 2
jobs to grade 3, etc., without raising the point value of
the jobs. As to rates of pay, the 9-month rate for grade 2
jumped from $5.03 to $5.30 per hour, and increases
appear for every other grade.
According to Charles Smith, who was director of 'em-
ployee relations for Respondent in July 1979, and who
completed the job evaluation review after all the jobs
had been evaluated and assigned point totals, such results
were not based on management judgments ; rather they
were obtained by performing a linear regression analysis,
a widely used statistical method to determine the rela-
tionship, or the "line of best fit," between two variables.
In so testifying, however, Smith was not completely
candid. The regression data did not produce the wage
rates appearing above. This was made clear by Dennis
Bankowski, Respondent's director of personnel policies
and programs, who described how he recapitulated what
Smith had done and according to his recapitulation the
9-month wage rates, appearing above were not the prod-
uct of a regression analysis. Bankowski compared what
he had described was the regression data with the wage
rates above in the following manner:
Grade
Regression
Data
Implemented
Pay
Comparison
2 $5.09 $5.30 $.21 higher
3 5.44 5.55 11 higher
4 5.90 5.82 .08 lower
5 6.38 6.09 .29 lower
6 6.84 6.70 .14 lower
7 7.30 7.35 .05 higher
It is evident from this that the wage rates put into
effect by Respondent did not result solely from the appli-
cation of a mathematical formula, but rather represent
the results of management judgments. Respondent does
not dispute that and ascribes the judgments to one of the
elements involved in any job evaluation review, namely,
smoothing the curve. On this score, I must confess to a
great deal of skepticism, but I am persuaded by the data
in the record that whatever name is given to the process,
be it smoothing the curve or something else, the conclu-
sion that the figures were manipulated to affect the re-
sults of the election is not warranted.
For one thing, Respondent's Exhibits 49(k) and (1) in-
dicate a greater consistency in, wage rates after the
changes, one of the objectives of the job evaluation
review. More importantly, in my judgment, is the way in
which the changes impacted on the various grades and
the population in each grade. For example, grade 2
which was implemented 21 cents higher than the regres-
sion data had a population of 52 employees; grade 3 was
implemented 11 cents higher and had a population of
194; grade 4 was implemented 8 cents lower and had a
population of 320; grade 5 was implemented 29 cents
lower and had a population of 169.5 Consideration of
this data compels the conclusion that the deviations be-
tween the implemented pay and the regression data were
not for the purpose of eroding employee support for the
Union. If that had been Respondent's purpose, one
would expect deviations aimed at the greatest number
for the greatest impact. There is no rhyme or reason to
the deviations unless they are attributable to the explana-
tion offered by Respondent.
I am mindful of the fact that not only were wage rates
increased but also that by changing grade cutoff points
some employees received substantial wage increases.
However, as I understand the evidence in the record,
this combination of circumstances is to be expected when
jobs are reevaluated . An examination of the population in
each grade before and after the change does not tend to
support any finding that the grade cutoffs were so al-
tered as to have the greatest impact on the greatest
number.
In concluding that a fording is not warranted, that the
wage rates were unlawfully raised, I have considered the
testimony of the General Counsel's witness Joseph Mar-
rotti and I find nothing in his testimony to support a dif-
ferent conclusion.
The third point in the General Counsel's argument for
finding the announcement and implementation of the job
evaluation program unlawful is based on the inclusion of
1 day's pay at the new rate in the employees' election
day paychecks. I find this circustance insufficient to war-
rant,a finding of a violation.
Harry Warner, systems analyst for Respondent, testi-
fied that the inclusion of 1 day's pay at the new rates in
the election day paychecks was attributable to the way
in which Respondent prepares its payroll and how the
computer works. The paychecks of the employees on
July 13 were in payment for work performed the preced-
ing week, which included the holiday of July 4 for
which employees were entitled to holiday pay. Respond-
ent uses a computer to prepare the payroll and it is pro-
grammed to "Create Holiday Pay." However, the new
rates of pay resulting from the job evaluation review had
been loaded into the computer before the "Create Holi-
day Pay" program was activated and when the program
was activated it picked up the new rates for 1 day.
In short, according to Warner's testimony, the pay-
ment of 1 day at the new rate was a mistake attributable
to the way the computer was programmed. Respondent
submitted evidence of similar prior "mistakes," but such
5 These figures were extracted from G C. Exh. 34.
514 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence is not very impressive. Nevertheless, I credit
Warner. I simply cannot believe that Respondent con-
sciously undertook to pay 1 day at the new rate for the
purpose of affecting the results of the election when the
employees already knew that which was important to
them; namely, that they were getting a wage increase;
and 1 day's pay at the new rate would only be buried in
the entire week's paycheck.
In short, for all the foregoing reasons, I find that the
General Counsel has failed to establish by a preponder-
ance of the evidence that the announcement and imple-
mentation of wage increases in the period preceding the
election was for the purpose of affecting the results of
the election.
3. Threats and interrogation by supervisors
The complaint alleges a number of threats by supervi-
sors which are related to statements in Respondent's
campaign literature. Thus, paragraph 8(b) of the com-
plaint alleges that Supervisors Ray Simmons and Robert
Frank threatened employees with loss of benefits if they
selected the Union as their collective-bargaining repre-
sentative. The allegation is based on the testimony of
former employee Morasby, Covington that on the day
before the election, Supervisors Simmons and Frank
came up to him on the job and started a conversation.
Covington testified that they asked him why he was
voting for the Union and if he thought the Union could
give him as many job evaluations and raises as the Com-
pany had. Simmons also said that if the Union came in
Covington would lose all his benefits and have to have a
bargaining order to get them back.
Simmons and Frank denied the statements attributed to
them by Covington. Neither Simmons nor Frank im-
pressed me favorably for their candor, and except as to
the remarks that if the Union came in he would lose all
his benefits and have to have a bargaining order to get
them back, I credit him. As to those remarks, I am per-
suaded that Covington was testifying truthfully, but that
his version of the remarks was an interpolation of what
Simmons or Frank said. I am persuaded that what was
said to him was similar to the statements about bargain-
ing and loss of benefits such as have been described
above in any analysis of the Company's campaign litera-
ture. In that analysis, I found an implied threat of loss of
benefits and I find that Simmons or Frank conveyed to
Covington the same implied threat contained in the
Company's literature and thereby violated Section 8(a)(1)
of the Act.
The testimony of Covington quoted above also reveals
that he was interrogated about his union sentiments.
Paragraph 8(i) alleges such interrogation to have been
violative of Section 8(a)(1) of the Act. Apart from any
other considerations, inasmuch as the interrogation was
accompanied by an unlawful threat of loss of benefits, I
find that it had a tendency to coerce and was violative of
Section 8(a)(1) of the Act.
Employee Livingston Bridges testified that about 2-1/2
weeks before the election, Supervisor Ronnie Williams
approached him on the job and asked him what he felt
the Union could do for him. Bridges answered job secu-
rity. Williams said, "Well, if it came down to where y'all
went out on strike and they had people out, they could
go out and hire." He said there were approximately 100
or 200 people waiting for jobs at Clark. He also said
that, "If it came down to bargaining, they wouldn't get
anything for nothing; it would be more like a trade."
Williams also said, "that they would use us as examples
for other Clark plants here in the south." Employees
Hurley Perkins overheard Williams' last remark.
The foregoing is undenied and on that basis the Gener-
al Counsel contends that a finding is warranted of unlaw-
ful interrogation and a threat of discharge. Respondent
argues that a finding of unlawful interrogation is not
warranted; because Bridges was an avowed union sup-
porter who wore union insignia in the plant. The fact
that Bridges was an avowed union supporter is no de-
fense to the interrogation. As the Board indicated in PPG
Industries, 251 NLRB 1146, 1147 (1980), such question-
ing conveys an employer's displeasure with employees'
union activity and thereby discourages such activity in
the future . In this case , the coercive tendency of the in-
terrogation was enhanced by remarks that can only be
construed as an implied threat that Bridges' support of
the Union would cost him his job. Respondent denies
that Williams' remarks constituted threats, preferring to
label them a recitation of Respondent's right to replace
economic strikers. As noted earlier, in light of Respond-
ent's statements about the inevitability of strikes and the
futility of selecting the Union as collective-bargaining
representative, remarks about replacement of strikes
were unlawful. Be that as it may, there is no reference to
the replacement of strikers in Williams' remarks. What
appears are remarks that Respondent could go out and
hire, coupled with a representation (whether true or false
does not appear in the record) that there were 100 or 200
people waiting for jobs, to which was added an implied
threat of reprisal in the remark that Respondent could
use the Rockingham employees as examples for other
Clark plants. In my judgment, this conversation in its en-
tirety compels findings of coercive interrogation and an
implied threat of loss of job and does not require analysis
of cases dealing with misrepresentation of the rights of
economic strikes. I make such findings.
Former employee Richard Diggs also testified about a
conversation with his supervisor, Brad McInnis, about 1
week before the election in which McInnis assertedly
asked him how he was going to vote. Diggs told him for
the Union and McInnis asked him if he was sure he was
doing the right thing. McInnis asked him if he knew that
if the Union got in he could lose his benefits and he
should think twice about voting for the Union.
McInnis denied having a conversation with Diggs
about 1 week before the election, and denied making the
remarks attributed to him by Diggs. He based his denial
on the fact that he knew how Diggs felt because Diggs
wore union insignia, and he had been told to stay away
from employees known to be union supporters. I do not
credit McInnis who, somewhat inconsistently, admitted
that he may have told Diggs "everything was negotia-
ble." Accordingly, despite my conclusion that Diggs was
not credible in other matters, as hereinafter described,
and inasmuch as the remarks attributed to McInnis are of
CLARK EQUIPMENT CO.
a piece with those earlier discussed, I credit Diggs, and I
find that McInnis impliedly threatened Diggs with the
loss of benefits if the Union was selected by the employ-
ees as their collective-bargaining representative. I also
find that McInnis' inquiry about how Diggs was going to
vote, occurring in the context of an unlawful threat, had
a tendency to coerce and constituted unlawful interroga-
tion as alleged in paragraph 8(i) of the complaint.
According to employee Willie Moore, in the period
before the election, Supervisor Carter Kelly distributed
literature to him which he recalled dealt mostly with
strikes. Kelly asked Moore to read the literature and
come to him if he had any questions. On one occasion,
Moore did ask a question (not described in the record)
and Kelly told him, "if the Union would come in that
they could not make the company give nothing. All they
could do was negotiate, and they could not give' us bettr
wages and benefits if the Company did not want to give
them to, us." Kelly went on to say if a person was not
out on strike that they could be replaced in their job if
the Company was falling down in productivity. On an-
other occasion, when Kelly was distributing company
campaign literature, he asked Moore if he thought Clark
needed a Union. Kelly told Moore he did not' have to
answer the question, but Moore nevertheless did, saying
he did not know. Then Kelly asked him if he thought
the Union could give him more benefits than Clark.
Moore said he did not know.
The foregoing is undenied and forms the basis of alle-
gations of a threat of discharge, the futility of selecting
the Union as collective-bargaining representative, and
unlawful interrogation. I find merit in the allegations.
The remark about replacements was made in the course
of the repetition of remarks of the futility of selecting the
Union as collective-bargaining representative, and the
distribution of literature which, as found earlier, con-
tained the same theme and threatened employees with
the inevitability of a strike if they did select the Union as
their collective-bargaining representative . As to the inter-
rogation, I fmd that in the circumstances it had a tenden-
cy to coerce and was unlawful. Respondent contends it
was not,unlawful because Kelly told Moore he did not
have to answer. However, Kelly immediately followed
Moore's reply with another question designed to get him
to reveal his union sentiments. PPG Industries, supra.
Another alleged threat, arising indirectly out of the
distribution of company campaign literature, is attributed
to Supervisor Debbie Lear. According to former em-
ployee Morasby Covington, on the ' day before the elec-
tion Supervisor Lear told him there would be no more
talk about the Union and if there was she was going to
take him to the office, so the best thing for him was to
be quiet about the Union.
Lear denied having any such conversation with Cov-
ington. From my observation of the witnesses, I credit
Covington. Nevertheless, I shall dismiss the allegation
that there was an unlawful threat. While I credit Coving-
ton that Lear didmake remarks to him about being quiet
and threatening to take him to the office, a review of his
entire testimony leads me to conclude that a finding of a
violation is not warranted. As I reconstruct Covington's
testimony, on direct and cross-examination, it appears
515
that on the day in question Lear was passing out compa-
ny literature relative to the election and she gave him a
copy. She also passed literature to other employees and
apparently a discussion started among the employees and
Lear came over and said something about which Cov-
ington disagreed. Thereupon, she told him to be quiet
and to get on his job or she would take him to the office.
From this, it appears as likely that Lear's remarks were
directed to Covington's being away from his job and dis-
cussing the leaflets as much as they were directed to any
prounion sentiments he expressed. Whatever the case,
the facts were insufficiently developed to support a ford
that Lear's remarks were unlawful.
4. Interference with distribution of literature
Paragraph 8(e) of the complaint alleges that about July
12, 1979, Respondent , by six named supervisors and an
agent, interfered with the distribution of union literature
in nonwork areas during nonworktime . The allegation is
based on conduct occurring on the eve of the election
before the start of the third shift in the period between
11 o'clock or 11:15 p . m. and 11 : 30 p.m.
During that period , employees Roger Mudd and Gary
Thompson were distributing union literature on company
property at one entrance to the plant , and employees
Zeb Cox and Curtis Goodwin were distributing union lit-
erature at another . The record indicates that both two-
somes were told either explicitly or in effect that they
could not distribute literature at the entrance but would
have to remove themselves to the plant gate . Both two-
somes left the entrances and went to the plant gate
where they were advised by the union representative
that they had the right to distribute literature at the plant
entrances. They returned and resumed distribution with-
out interference, having been away from the entrances
for only a few minutes.6
Respondent does not dispute the right of the employ-
ees to distribute literature at the time and places here in
question . Its defense to the alleged interference is that it
was too inconsequential in its effect on employees' hand-
billing activities to warrant a fording of interference., I do
not agree. In Di-County Medical Center, 222 NLRB 1089
(1976), cited by Respondent , the supervisor who had
threatened to write up an employee for engaging in ac-
tivity protected by Section 7 of the Act apologized to
the employee on being advised that she had been mistak-
en in interfering with the protected activity. In Redcor
Corp., 166 NLRB 1013 (1967), the employee who had
been told he would be disciplined for handing out union
cards on company premises was, in fact , violating a 'valid
rule against solicitation during working time.
In the instant ' case, the employees were not violating
any rule, nor was , any apology made to them for causing
them to remove themselves.' In,the circumstances, in-
6 The foregoing are conclusionary facts,, but I see no need to repeat
precisely what , was said- to the employees at either entrance, because it
cannot be seriously disputed that the employees were told they could not
distribute union literature at the entrances and, as a result, they removed
themselves for a few minutes.
' According to Supervisor Dean Meachum , who was one of the super-
visors who had interfered with the handbillmg ' during the work shift that
Continued
516 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cluding the facts that a security officer threatened two of
the employees with arrest and escorted them to the plant
gate,8 and that a succession of supervisors approached
Mudd and Thompson about their activities, I am per-
suaded that a finding of interference is warranted. In this
connection, it bears repeating that the test-of interference
is not whether or not it was successful.
5. Impression of surveillance
Paragraph 8(f) of the complaint alleges that Supervi-
sors James Freeman and Randy Tunstall created among
its employees an impression of surveillance of their union
activities. In support thereof, former employee Mike
Grant testified that about 1 week before the July 13,
1979 election, Foreman James Freeman came over to his
machine and they had a conversation wherein Freeman
mentioned that "not many people were attending the
union meetings on Sunday and he had heard that about
only 500 people had signed cards. Grant asked him how
he knew and Freeman said that was what he had heard.
Freeman denied making the remarks attributed to him by
Grant. I am not persuaded that Freeman was entirely
candid about his conversations with Grant and about the
Union and I credit Grant.
Former employee Donald Pettigrew testified that
about 3 days before the July 13 election, Supervisor
Randy Tunstall told him he had heard that Pettigrew
was handing out leaflets (Pettigrew had passed out union
leaflets that day) and he was disappointed in him. Tun-
stall admitted the foregoing remarks. According to him,
Pettigrew asked how he found out and Tunstall replied
one of the guys had seen him.
Respondent contends that the remarks of Freeman, if
found to have been made, and those of Tunstall, which
are admitted, do not warrant'a finding of the creation of
the impression of surveillance; in Grant' s case , because
Freeman did not say he knew who had attended the
union meetings and, in Pettigrew' s case , because Petti-
grew's leaflet distribution was done openly. I find no
merit to the contentions. Remarks relative to the size of
the attendance at union meetings convey the same im-
night, he had a conversation with Thompson in which he acknowledged
to Thompson that he had the right to handbill at the plant door Howev-
er, he did not say this to Mudd and, in any event, this was not an apol-
ogy As a matter of fact, according to Mudd and Thompson, Meachum
spoke to them individually during the work shift and said "that the only
thing he could have done to us was to have us both arrested" and telling
Thompson that "the worst we could do is to lock you up but we are not
going to do that " The General Counsel contends that these remarks con-
stituted unlawful threats I fail to see any threat. To the contrary, the
message conveyed by Meachum was just the opposite; namely, that he
would not do that. Accordingly, I shall dismiss par. 8(q) of the com-
plaint.
9 According to employee Cox, Security Officer Lieutenant Linker told
him and Goodwin they would have to move away from the plant en-
trance and said, "that we would be fired or arrested for handbilling on
the company property." In his brief, the General Counsel requests that
these remarks, although not alleged to be unlawful in the complaint, as
amended, be found to be unlawful on the theory that the matter was fully
litigated According to employee Goodwin, Linker said nothing about
firing, he spoke only of an arrest. Linker denied threatening an arrest. In
my judgment, Linker was not a reliable witness and I credit the testimo-
ny that he threatened Cox and Goodwin with arrest. As the matter was
fully litigated, I find the threat to arrest employees for engaging in pro-
tected activity was violative of Sec. 8(a)(1) of the Act
pression of surveillance as remarks about the identity of
those in attendance. As to the openness of Pettigrew's
activities, that would be relevant to a charge of surveil-
lance , but what is asserted to be unlawful here are Tun-
stall's remarks about Pettigrew's union activities. In my
judgment, remarks of a supervisor about his awareness of
an employee's union activities, not known by the em-
ployee to have been observed by the supervisor, evince
to the employee an interest in such activities on the part
of his employer which can only tend to coerce him in
the continuation of such activities.
I find that in both the Grant and Pettigrew -incidents
Respondent violated Section 8(a)(1) of the Act.
6. Surveillance
Paragraph 8(g) of the complaint alleges surveillance of
union activities. The allegation is based on two incidents,
one of which (alleged surveillance of leaflet distribution
at the plant gate) was dismissed at the hearing. The other
incident involved the act of Supervisor Dean Meachum
in raising the lid of the toolbox of Jimmie Stubbs in the
work area and briefly leafing through papers in it. There
are variances in the testimony of the General Counsel's
witnesses and Meachum in the matter, but I was not fa-
vorably impressed by Meachum and I credit the General
Counsel's witnesses (Stubbs and employee Richard
Harris). Nevertheless, I shall dismiss the allegation.
Stubbs' own testimony indicates not only that the tool-
box contained contracts, union buttons, stickers, and lit-
erature; but also, that some of the literature was taped on
the outside of the box as were union stickers. In light of
this open advertising by Stubbs, I cannot conceive' how
Meachum's fleeting glance into the toolbox can be de-
nominated surveillance and tend to coerce employees.9
7. Solicitation of grievances
Paragraph 8(o) alleges that Respondent solicited griev-
ances among its employees in order to discourage their
support for the Union. The allegation is based on an
opinion survey questionaire distributed to all employees
by Respondent.
The survey was announced in a May 20, 1980 Syn-
chronizer, i ° and all currently employed employees com-
pleted the questionnaire in the plant cafeteria. On June
26, 1980, the questionnaire was sent to employees in
layoff status with a request that they complete it and
return it to Respondent. Whatever the results of the
survey, they had not been communicated to the, employ-
ees.
As noted above, the gravamen of the complaint is that
the taking of the survey constituted the solicitation of
grievances in order to discourage employee support for
the Union. However, the General Counsel's brief has not
addressed the issue as one of unlawful solicitation of gre-
9 Although I do not rely on employee Harris' testimony in finding that
Meacham's conduct had no tendency to coerce, it is noteworthy that as a
witness of Meachum's conduct Harris told Stubbs that he did not think
Meachum was looking for anything, that he did not think Meachum
knew the toolbox was Stubbs' property.
10 The Synchronizer is the same name of a company newsletter issued
monthly
CLARK EQUIPMENT CO. 517
vances; I' rather, it argues for a finding of unlawful inter-
rogation. Since he has not expressly abandoned the alle-
gation of solicitation of grievances, it requires disposi-
tion. In my judgment, the allegation should be dismissed.
In order for a solicitation of grievances to be held un-
lawful, it must be accompanied by an express or implied
promise to remedy the grievances disclosed. There was
no express promise made here and there is no evidence
to warrant a finding of an implied promise. A promise
may be implied when it appears that the solicitation of
opinions had never been done before and the solicitation
occurs in the context of an organizational campaign. See
Gordonsville Industries, 252 NLRB 563, 568 (1980).
In the instant case, Respondent argues that it had a
practice of conducting opinion surveys and the record
supports its argument to a degree in that surveys had
been submitted to supervisors in 1976 and to a randomly
selected group of 77 employees in 1977. In addition, in
April 1978, a questionnaire had been completed by an
undefined and indeterminate number of employees. In
March 1979 employee opinions had been solicited rela-
tive to the company handbook, and in April 1979 the
Company surveyed employees relative to their desire to
know more about company products. All of the forego-
ing are substantially different from the survey here in
question both as to the scope of inquiry and the scope of
distribution. Nevertheless, it can be said that Respondent
had a practice of conducting surveys.
Whatever Respondent's practice, or lack thereof, there
is still the element of timing. In Gordonsville Industries,
supra, the survey was taken at the very outset of a union
campaign and it was found to have been conducted as a
specific, calculated response to the employees' union
campaign. Such cannot be said here. At the time of the
survey in question, nothing was pending at the Rocking-
ham facility except the instant litigation. The situation
was essentially similar to that in Leland Stanford Jr. Uni-
versity, 240 NLRB 1138 (1979), wherein the survey was
found not to be unlawful.
In short, none of the circumstances in this case war-
rant an inference that the survey was taken for the pur-
pose of eroding employees' support for the Union. Ac-
cordingly, I shall dismiss the allegation in paragraph 8(o)
of the complaint.
As noted earlier, the General Counsel's brief argues
for a finding that the survey constituted unlawful interro-
gation. tThe complaint does not so allege, but the facts
relative to the survey were fully litigated so that a find-
ing of a violation, if there be one, under some alternate
theory is not precluded. Gordonsville Industries, supra at
fn. 7. In my judgment, however, a finding of unlawful
interrogation is not warranted.
In Gordonsville Industries, supra, the Board found that
a survey substantially identical to the survey here in
question constituted unlawful interrogation. Thus, the
survey, although asserted to be confidential, required em-
ployees to reveal information relative to their depart-
11 The General Counsel adverts to the letter to laid-off employees ac-
companying the questionnaire and states that comments therein constitut-
ed a barely veiled promise to recall if, they answered the questionnaire
and a promise to resolve the problems they raised I find no such prom-
ises in the letter.
ment, work shift, sex, and length of employment. Such
information destroyed any claim of anonymity. The
survey here likewise contains questions relative to em-
ployees' opinions, the answers to which could readily
disclose employees' union sentiments. For example, em-
ployees were asked whether the Company had unfair
rules or policies, was it a good place to work, and did
employee complaints get prompt attention. In marked
similarity to the survey in Gordonsville Industires, the
questionnaire asked, "If-you could, what changes would
you make in this company?"
Nevertheless, I am not persuaded that a fording of un-
lawful interrogation is warranted. Again, it must be
noted that the survey was taken in June 1980, 11 months
after the election, and at a time when there was no spe-
cial union activity. In the circumstances, there is no basis
for inferring that the employees would associate the
survey with their union activities or that they would
view the survey as an inquiry into their union activities.
8. Miscellaneous interference
Paragraph 8(n) of the complaint alleges that Respond-
net promised to assist a prospective employee with gain-
ing employment if such prospective employee persuaded
another employee not to support the Union. The allega-
tion is based on the testimony of Judy Perkins, wife of
employee Hurley Perkins, that on Sunday, July 8, she
telephoned Supervisor Ronnie Williams and asked him
about getting a job with Respondent. In the, course of
the conversation, Williams allegedly asked her, in return
for his help, if she would persuade her husband to vote
against the Union.
Williams admitted to a telephone conversation with
Judy Perkins about her obtaining employment with Re-
spondent. According to him, however, it was she who
introduced the idea of her husband' s union sentiments
and who suggested that if he helped her get a job, she
could talk her husband into voting for the Company. He
did not accept the suggestion. -
Williams is a third-shift supervisor, a relatively minor
position with Respondent with no hiring functions, and I
deem it highly implausible that he would have volun-
teered to involve himself in an application for employ-
ment for the purpose of influencing one employee's vote.
I credit him and I shall dismiss the allegation.
Paragraph 8(p) of the complaint alleges that on July 8,
1979, Supervisor Charles Ratliff solicited a former em-
ployee to inform management of the union activities of
its employees. The allegation is based on the testimony
of former employee Alex Washington, who had been dis-
charged on May 8, 1979. According to Washington, Rat-
liff solicited him to attend a union meeting and report
back to him, offfering him $25. Washington said he
would, but he did not. Ratliff denied Washington's alle-
gation against him. I credit Ratliff. Not only did Ratliff
appear to be a very truthful witness, the circumstances of
the case make Washington's story very implausible.
Paragraph 8(x) of the complaint alleges that on No-
vember 1, 1980, Respondent violated Section 8(a)(1) of
the Act by the conduct of Supervisor Jimmy Newton in
informing an employee that Respondent would not have
518 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
opposed his claim for unemployment compensation if he
had not filed an unfair labor practice charge. The allega-
tion is based on testimony of Richard Diggs, as alleged
discriminatee in Case 11 -CA-9454. I see no need to
recite particulars , because I do not credit Diggs. All the
circumstances of the case argue against crediting him,
and Newton appeared to me to be a truthful witness. Ac-
cordingly , I shall dismiss the allegation.
9. Interference with Board processes
Paragraphs 8(r), (s), and (t) relate to employee coop-
eration with Board agents in connection with the hearing
in these cases.
Employee Jimmy Tickle had received a letter dated
September 3, 1980, which referred to his having been
subpoenaed to testify in these cases and which requested
him to make arrangements to meet with attorneys from
the Board at a local motel. The letter listed the dates and
times the attorneys would be available. Tickle testified
he went to Employee Relations Director Ron Dickinson
and showed him` the letter and asked him about it. Dick-
inson told him that was not a legal document and that he
did not have to go to talk to the attorneys. He said the
letter was not a subpoena, that a subpoena would be sent
later . When Tickle asked what he should do in the event
he was subpoenaed, Dickinson told him that was a legal
binding document, but there was a question whether it
would be enforced. Dickinson said it would be up to
Tickle to decide whether or not to appear.
Tickle received a second and identical letter dated
September 5, 1980, which he took to Dave Hogan, em-
ployment relations manager . He told Hogan he-had been
told earlier he did not have to go, and he referred to a
notice Respondent, had posted on the bulletin board that
they were not legally obligated to go talk to attorneys.
Tickle had received a subpoena, and apparently he had
brought the subpoena with him which he showed to
Hogan. Hogan told him it was,"not a legal subpoena like
a criminal subpoena." It was a legal document, but if you
did not appear they usually did not enforce it like a
criminal subpoena. Hogan left Tickle to consult further
on the matter and returned to tell Tickle that, as far as
he knew, none had ever-been enforced and if an individ-
ual did not appear they did not do anything to him.
Tickle asked what could they do to him if he did not
appear. Hogan said the worst thing would be to send
him another subpoena and ask him why he did not
appear the first time. Tickle asked who it was that was
subpoenaing him and Hogan said the Labor Board, but
the Labor Board was acting as an agent of the Union.
Tickle said he thought the Labor Board was a neutral
party and Hogan told him, "In the beginning they were
a neutral party, but in this case they are an agent of the
Steelworkers."
The notice referred to by Tickle states:
23 SEPTEMBER 1980
REGAL INN THIS WEEK, AND ALSO WHETHER YOU
HAVE TO SIGN PAPERS PREPARED BY THE NLRB REP-
RESENTATIVE OR THE UNION.
CLARK TAKES NO POSITION WHATSOEVER WITH
RESPECT TO YOUR OWN PERSONAL DECISION TO GO
ALONG WITH THIS REQUEST OF THE NLRB AND THE
UNION HOWEVER, YOU SHOULD KEEP IN MIND THAT
YOU ARE UNDER NO LEGAL OBLIGATION TO GO TO
ANY OF THESE MEETINGS OR TO SIGN ANY PAPERS IF
YOU DON'T WANT TO.
THE CHOICES ARE YOURS ENTIRELY.
IF YOU HAVE ANY QUESTIONS DON'T HESITATE TO
CONTACT EMPLOYMENT RELATIONS.
The statements to Tickle about the subpoena and the
notice to employees about meeting at the motel with
Board attorneys present distinct, albeit related issues. It
appears to be settled law that statements to employees
expressly or impliedly telling them they do not have to
honor Board subpoenas are unlawful. Winn-Dixie Stores,
128 NLRB 574 (1960); Clothing Workers Y. NLRB, 420
F.2d 1296 (D.C. Cir. 1969); Mr. F's Beef & Bourbon, 212
NLRB 462, 466 (1974); Delta Faucet Co., 251 NLRB 394
(1980). Respondent contends such is the case only where
the statements are accompanied by direct or veiled
threats of reprisal. Bauer Aluminum Co., 152 NLRB
1360, 1367 (1965). I do not agree.
Bauer Aluminum Co. was decided in 1965 and, in my
judgment, has been superseded by the pronouncements in
the cases since Winn-Dixie Stores, supra, which are cited
above . Statements by supervisors which denigrate the
Board's subpoenas and in any way suggest that they need
not be honored have only one purpose; namely, to ob-
struct the Board in its investigation and presentation of
cases brought before it and interfere with the vindication
of employee rights guaranteed by Section 7 of the Act.
Accordingly, I find that Dickinson's statements to
Tickle, as admitted by Dickinson, that there was some
question as to whether the subpoena would be enforced
and that it was up to Tickle's discretion, were violative
of Section 8(a)(1) of the Act. I find further that Hogan's
statements to Tickle, as described by Tickle, whom I
credit, were likewise unlawful in that they falsely sug-
gested that honoring the subpoena was a matter of dis-
cretion and could be ignored with impunity.
Insofar as the notice is concerned and statements rela-
tive thereto, I am of the view that such conduct was not
unlawful. In support of the contention that it is, the Gen-
eral Counsel cites Garry Mfg. Co., 242 NLRB 539 (1979).
However, in that case, the notice mischaracterized the
purpose of the Board's investigation and it appears that it
was an unsolicited communication. In this case, the
notice itself indicated that it was in response to employee
inquiries, and it did not misrepresent the role of the
Board . i 2 Moreover, the notice indicated clearly that the
MANY OF YOU HAVE ASKED YOUR SUPERVISORS
WHETHER YOU HAVE TO GO TO MEETINGS CALLED
BY" TTHE NATIONAL LABOR RELATIONS BOARD
AND/OR UNION REPRESENTATIVES OVER AT THE
12 The notice referred to meetings called by the Board "and/or Union
representatives" and there is no evidence that union representatives were
calling any meetings I am not persuaded , however, that this warrants a
finding that it mischaractenzed the role of the Board
CLARK EQUIPMENT CO. 519
choice was the employees. It is true that in J. W. Mortell
Co., 168 NLRB 435, 437 (1967), enf. denied in relevant
part 440 F.2d 455 (7th Cir. 1971), the Board held that a
notice garnered no immunity simply because it advised
employees they were free to cooperate or not to do so;
however, it is clear that the finding of a violation was
predicated on the notice as a whole, for example, the em-
ployer's attempt to attribute the General Counsel's pre-
trial communications to "union pressure tactics." There
is no similar conduct here.
In Certain-Teed Products Corp., 147 NLRB 1517
(1964), the notice was solicited and intemperate and the
employer had made statements expressing disbelief and
annoyance at employees who had testified at an earlier
hearing. These circumstances are not present here.
In short, inasmuch as the notice was in response to
employee inquiries, that it did not mischaracterize the
Board's role, and contained no remarks to suggest to em-
ployees that Respondent would look with disfavor on
anyone who cooperated with the Board, and was not a
false statement about the nature of the obligation im-
posed on employees receiving it, a finding of interference
with the Board's processes is not warranted.
During the period of the hearing, one of Respondent's
attorneys, Neil Gaffney, interviewed employees in prepa-
ration of Respondent's defense. Employee Billy Gulledge
was one of those employees and he testified that he met
with Gaffney in a conference room where he was asked
whether he had been approached to sign and had signed
an authorization card. Gulledge refused to answer and
referred to the notice to employees discussed above and,
in effect, complained that Respondent had Gaffney there
to do the same thing. Gaffney said that the Labor Board
had Clark post the notice. A few more remarks were ex-
changed and Gaffney then told Gulledge, "Well, you
want to make up your mind what you want to do, be-
cause there are 600 employees out there that don't want
the Union."
The complaint alleges in paragraphs 8(u) and (v) that
Respondent coerced and interfered with employees by
Gaffney's remarks about the notice and his statement
that Gulledge make up his mind.
Initially, there was a dispute between Gulledge and
Gaffney as to precisely what was said in the interview. It
should be noted, however, that the allegations are not
predicated on a failure to meet the Johnnie's Poultry safe-
guards. 13 Rather, the allegation relative to the notice ap-
pears to be one of misrepresentation and interference
with the Board's processes. The General Counsel has not
articulated a, rationale for a finding of interference with
the Board's processes and it is difficult to extract one
from Gulledge's testimony, because he was not inquiring
of Gaffney whether or not he had to meet with the
Board's attorneys. In any event, I am persuaded that
Gulledge misunderstood Gaffney's remarks about the
notice. At the time in question, a Board notice to em-
ployees was posted on Respondent's bulletin boards in
compliance with a decision and order in Clark Equip-
ment Co., 250 NLRB 1333 (1980). Gaffney testified that
this was the only notice to employees he was aware of
and, when Gulledge referred to a notice, he asked, "the
NLRB Notice?" and Gulledge just looked at him ques-
tioningly.
I credit Gaffney. I cannot believe that he would mis-
represent to an employee the source of a notice. That
Gulledge may have had in mind one notice and Gaffney
another does not render Gaffney's remarks unlawful.
As to a remark that Gulledge make up his mind, any
factual dispute is as to the context in which it was made.
According to Gaffney, he may have told Gulledge to
make up his mind, but in some harmless context. That is
only his opinion, however, and leaves unanswered the
question of what context. It is abundantly clear from ob-
serving Gaffney at the hearing and a review of his testi-
mony that he was irritated by Gulledge. It appears to
me, however, that his irritation was over Gulledge's at-
tempt to enter into a discussion with him and his indeci-
sion about whether to cooperate with Gaffney. Gul-
ledge's own testimony that Gaffney said, "make up your
mind what you want to do" indicates that Gaffney's re-
marks had nothing to do with the Board's processes. If
anything, one might argue that they infringed on the
safeguards of Johnnie's Poultry, supra, and had a tenden-
cy to coerce Gulledge into giving Gaffney a statement.
However, there is too much ambiguity about the remarks
to support even such a finding.
For the foregoing reasons, I shall dismiss the allega-
tions of paragraphs em(u) and (v) of the complaint.
B. Alleged Discriminatory Discharge
Richard Diggs was hired on December 13, 1976. He
was discharged on September 22, 1980, for poor attend-
ance. On August 8 Diggs had been spoken to about his
attendance and had been advised, in writing, that failure
to improve could result in his termination. On August 22
Diggs was late 40 minutes and on September 22 he was
late 13 minutes. As noted, he was discharged.'4
Diggs was a known union adherent. His supervisor,
Brad McInnis, admitted that in the preelection period
Diggs had worn union insignia and that he was aware of
Diggs' union sentiments.
The General Counsel contends that Diggs was dis-
charged because of his union activities. I find no merit to
the contention.
It is clear from an examination of Digg's attendance
record that he had a poor attendance record. It is also
clear that he was warned, but his attendance did not im-
prove. Nevertheless, the General Counsel contends that
his discharge was unlawful, apparently on a theory of
disparity of treatment. Thus, he asserts that Supervisor
McInnis "discriminated between union and nonunion ad-
herents in determining when to proceed to the next step
of the [counseling or discharge] process." To support
this assertion, he adverts to the attendance, record of one
employee he describes as antiunion, namely, Randy
Jacobs. Whether Jacobs is antiunion or prounion is de-
batable; he appears to have wavered from day to day. In
any event, his record does not appear to be as bad as
13 Johnnie's Poultry Co, 146 NLRB 770 (1964).
14 This matter is alleged in the complaint in Case 11-CA-9454, which
was consolidated for hearing during the hearing.
520 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Diggs'. Apart from that, a comparison with only 1 em-
ployee in a plant of about 800 employees is insufficient to
support a finding of disparity.
In the final analysis, what appears here is the case of
an individual with a poor attendance record who is dis-
charged after warning. The only-basis for a finding of a
violation is that he was a union supporter. This is not
sufficient, particularly when the union activity had oc-
curred over a year earlier, was indistinguishable from
like activity by several other employees, and there is
nothing in the timing of the discharge to suggest a dis-
criminatory motive.15
In short, I conclude the General Counsel did not make
a prima facie case. In reaching this conclusion, I have
considered the background evidence concerning use of a
forklift by Diggs and an instance when he was ordered
to, stay on the job. I deem the evidence to have no pro-
bative weight whatsoever on the issue of the discharge.
C. The Refusal to Bargain
1. The obligation to bargain
The complaint alleges that since about June 4, 1979,
the Union has been designated by a majority of the em-
ployees in an appropriate unit as their representative for
the purpose of collective bargaining, that about June 4,
1979, the Union requested Respondent to bargain with it,
and that Respondent refused. Based on these allegations
and the unfair labor practices of Respondent as described
earlier, the General Counsel asserts that a finding is war-
ranted that Respondent violated Section 8(a)(5) of the
Act and that a bargaining order is appropriate pursuant
to the principles of NLRB v. Gissel Packing Co., 395 U.S.
575 (1969).
The demand for recognition and refusal was estab-
lished by the Union's letter of June 4, 1979, and Re-
spondent's reply of June 7, 1979. As to the appropriate
unit , the parties stipulated that the unit described in the
complaint and hereinafter set forth was appropriate. The
parties further stipulated that the appropriate unit con-
sisted of 820 employees, and the General Counsel con-
tends that 470 of the cards received into evidence were
valid designations of the Union as collective-bargaining
representative and that a finding of majority status is
therefore warranted.
a. Majority status
The issue of the Union's status was the issue which
consumed most of the hearing time. Respondent admits
to the validity of only nine of the cards: Thomas Jacobs
III (211), William E. Wright, Jr. (225), James A. Lindsay
(303), Robert S. Lyles (305), Bruce G. Platt (417), Alex
L. Eaves (432), Clay Thomas (573(a)), Sarah Haywood
(588), and James Cleveland Breeden (590).16
'r The General Counsel appears to contend that the timing of the dis-
charge can be related to the fact that at the time of the discharge the
General Counsel was known to be conducting interviews with Clark em-
ployees and Diggs' discharge was bound to have a chilling effect on
other employees. There is not a scintilla of evidence to support such a
contention
16 The number after each name is the exhibit number of the individ-
ual's cards
As to the remaining cards, Respondent asserts a varie-
ty of defenses:
1. Misrepresentations : Respondent's major attack on
the cards is based on alleged misrepresentations. The
attack is in two parts:
(1) Membership in the Union
The language of the card used by the Union is as fol-
lows:
I hereby request and accept membership in the
UNITED STEELWORKERS OF AMERICA,
and of my own free will hereby authorize the
United Steelworkers of America, its agents or rep-
resentatives, to act for me as collective bargaining
agency in all matters pertaining to rates of pay,
wages, hours of employment, or other conditions of
employment, and to enter into contracts with my
employer covering all such matters.
This is, according to labor law parlance, a single pur-
pose card in that it refers to authorization of the Union
to act as collective-bargaining representative, but does
not refer to an election. However, because the card also
stated "I hereby request and accept membership" in the
Union, Respondent contends that 415 cards are invalid
on the theory that this was a misrepresentation in that
the signing of the card did not confer membership and
by such language the Union purported to confer an "illu-
sory benefit." The contention is, in my judgment, so pa-
tently without merit that it requires no discussion. It is
rejected.
As a matter of fact, the question of union membership
appears to have posed a problem for some employees as
evidenced by the fact that a number of them inquired
about the membership language on the card. The record
indicates that when they did so they were assured they
did not become members by signing the cards, but would
have to sign another card. Respondent, contends that this
circumstance, coupled with representations that the card
was for an election, amounted to an indirect misrepresen-
tation of its purpose. In this connection, Respondent cites
Silver Fleet Motor Express, 174 NLRB 873 (1969), in
which the Board held cards to be invalid for purposes of
majority status when the cards designated the Union as
bargaining agent and then contained the following state-
ment in bold letters: "THIS DOES NOT OBLIGATE
ME IN ANY WAY." In my judgment, Silver Fleet is
distinguishable in that when there is no similar language
on the face of the card in this case, and when solicitors
stated to signers that their signing did not oligate them in
any way, it is clear that they were responding to' ques-
tions about membership obligations, in some instances,
the obligation to pay dues, and their answers did not
cancel out or contradict the express' language of the
card, but explained that an additional step was required
to become a member. I therefore reject contentions of
Respondent addressed to the membership language of the
card and to the statements of solicitors relative to the ob-
ligations connected with signing a card.
CLARK EQUIPMENT CO. 521
(2) Only for an election
In Gissel Packing, supra, the Supreme Court approved
Board law on determining the validity or invalidity of
authorization cards, as set forth in Cumberland Shoe
Corp., 144 NLRB 1268 ( 1963), enfd. 351 F.2d 917 (6th
Cir. 1975), and reaffirmed in Levi Strauss & Co., 172
NLRB 732 (1968). The Court described Board law in the
following terms (395 U. S. at 584):
Under the Cumberland Shoe doctrine, if the card
itself is unambiguous (i.e., states on its face that the
signer authorizes the Union to represent the em-
ployee for collective bargaining purposes and not to
seek an election), it will be counted unless it is
proved that the employee was told that the card
was to be used solely for the purpose of obtaining an
election.
Respondent contends that the evidence in this case in-
dicates that 79 cards were solicited on the direct or indi-
rect misrepresentation that the card was to be used solely
for an election, and that they are therefore invalid as
proof of majority status. To decide this issue, however,
consideration has to be given to more than the use or
nonuse of magic words. As the Board stated in Levi
Strauss, supra, quoted with approval by the Supreme
Court in Gissel Packing, 395 U.S. 608 fn. 27:
It is not the use or nonuse of certain key or
"magic" words that is controlling , but whether or
not the totality of circumstances surrounding the
card solicitation is such , as to add up to an assur-
ance to the card signer that his card will be used for
no purpose other than to help get an election.
In weighing the circumstances , however , the trier of
fact must not ignore the principle approved by the Su-
preme Court in Gissel Packing, 395 U.S. at 606, that:
[E]mployees should be bound by the clear language
of what they sign unless that language is deliberate-
ly and clearly canceled by a union adherent with
words calculated to direct the signer to disregard
and forget the language above his signature.
Moreover, the trier of fact must take into account the
observation accepted by the Supreme Court (395 U.S. at
608), "that employees are more likely than not, many
months after a card drive and in response -to questions by
company counsel , to give testimony damaging to the
union , particularly where company officials have previ-
ously threatened reprisals for union activity in violation
of Section 8(a)(1)."
It is with the foregoing principles in mind that I have
reviewed the entire testimony of the witnesses whose
cards are challenged by Respondent on the grounds of
misrepresentation. However, I will not set forth the testi-
mony of such witnesses, because I see no useful purpose
in doing so. In many of the cases, the predicate for the
challenge to the card is the fact that the solicitor of the
card stated as its purpose that it was for an election.
Such a statement of purpose does not invalidate a card
tendered for proof of majority status. In a number of
cases, where the testimony might lend itself to a finding
of a misrepresentation of purpose I explain the basis for
my finding . Whether to explain one card and not another
is a question of judgment about which some might differ;
suffice it to say that as to any given card my conclusion
as to its validity is based on the sense I find conveyed by
the testimony of the card signers themselves taken as a
whole rather than on specific questions and answers.
For example , Lester Edwards authenticated the card
of Tim Murphy (262). He testified he told Murphy, "if
we got a large majority of card signed that we could get
a union election."
Q. And you told him that was the only purpose
you were asking him to sign the card?
A. Yes, sir.
To invalidate a card on the basis of such a leading
question and answer would be to apply the Cumberland
Shoe rule mechanistically . It seems to me to be very
clear that such a question and answer distorts the truth
by the placement of the word "only." It is one thing to
tell employees of only one purpose for a card ; it's an-
other thing to tell them that the only purpose of the card
is for an election. I am convinced that witness after wit-
ness did not understand that distinction , including Ed-
wards.
Based on the foregoing , I find that the cards listed
below were not invalidated by representations to the
card signers that the purpose of the cards was only for
an election, nor were they encouraged and directed to
disregard the language of the card which authorized the
Union to act as collective-bargaining representative.
Jimmy D . Tickle (101)
Roger Mudd (103)
Thomas Garney (104)
Jessie W. Goins (105)
James L. Roberts (106)
GaryL. Thompson (107)
Curtis W. Brewington (108)
Samuel E . Cumber Jr . (109)16
Clarence England (110)
Curtis Steve Goodwin (112)
James M. Napier (113)
Walter Covington (114)
Zeb D. Cox (115)
David T . Roller (116)
Maynard Dutton (117)
Charles Pait (118)
Donald L . Pettigrew (119)
Joseph Clark (120)
Eddie Cloniger (121)
Mike E. Grant (123)
William S. Hogan Jr. (124)
Leroy Jefferson (125)
Robert T . Johnson (126)
16 Respondent contends that card 109 is a duplicate of card 546 as
both are signed by Ed Cumber of the same address However, the stipu-
lated list includes two Cumbers , and the dates of hire, department, and
rates of pay , appearing on the two cards indicate that the cards are not
duplicates
522 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Robert J. Leviner (127)
John I. Maness III (129)
Charles T. Mathis (130)
Joseph D. McCormick (131)
Robert H. Nelson (132)
Bennie Robbins (l33)17
Clayton M. Smith (134)
Floyd Smith (135)
Kenneth E. Stubbs (136)
Dean Treadway (137)
Michael A. Williams (138)
Becky D. Benson (140)
Jeffrey L. Benson (142)
Bundy K. Berry (144)
Sam Breedew (145)
Aldie Cobbler Jr. (147)
Gary Dennis (148)
Sam Fields ( 150)18
Lenier E. Furr (151)
L. Gibbs Goodwin (152)
Ronald W. Hawks (153)29
Steve K. Marlin (157)
William N. Maske (158)2Q
Floyd C. Carpenter (171)
Jimmy Stubbs (173)
Wanda Turner (174)
Kenneth Turner (175)
Richard Harris (176)
Willie Moore (177)
Livingston Bridges (178)
Melvin L. Stroman (180)
Hurky E. Perkins (181)
Ricardo Steek (182)
Luther E. Grant (183)
Morasby Z. Covington (184)
William R. Galbreath (185)
William Gerald ( 186)21
17 Robbins signed cards 133 and 604 Only card 133 is counted for ma-
jonty status.
is Fields testified he did not read the fine print on the card (which
contains the authorization language) and that he was told that the card
was "mainly just to get a vote for the Union." He also testified that he
was told "after we got the Union in ... you had a choice to sign a
union membership card." In my judgment , it is clear and I find, that
Fields knew the purpose of the card was to get the Union in and he
signed the card intending to authorize the Union to represent him.
19 Hawks testified he was told the card was just for an election. He
further testified the card was read to him and that he asked no questions
about the language The reading of the card to him evidences a desire
that employees understand what they are doing , and I am persuaded
there was no misrepresentation of purpose in Hawks' case.
20 Maske testified he was told the purpose of the card was to have a
vote and that he did not read the card. Yet, he admitted he had the card
in his possession overnight and "looked" it over. I reject his testimony
insofar as he suggests he did not know what the card said
21 Gerald's card was authenticated by Union Representative Constance
LeVier who testified that she went to his home and witnessed him sign
card 186 and his wife Dons sign card 187 Respondent contends a signa-
ture comparison warrants a fording that both card were signed by Doris
and that William Gerald's card is invalid for failure of proof he author-
ized his wife to sign for him Assuming Doris to have signed both, as she
did so in her husband 's presence , according to LeVier's testimony, an in-
ference is warranted it was with his authority.
Doris H. Gerald (187)
Billy C. Brown (188)22
Tony S. Conner (189)
Warren F. Deaton (192)23
Van Rush (193)
Fred A. Dennis Jr. (194)
Phillip Gilliam (195)
Tony Puckett (196)
Daniel Wayne Smith (198)
Malcolm Stubbs (200)
Curtis Therrell (201)
Allison B. Wiggins (203)
Carlton Wade Williams (204)
Reginald Dumas (206)
Charlie A. Ellerbe (207)
Walter Cameron (208)
Ronald Covington (209)
Kenneth Hawks (2 10)24
Stephen Wayne Jenkins (212)
Ronnie Tarlton (213)
Larry Harold Blue (214)
J. Harold Dawkins Jr. (215)
Earl De Berry (216)
Johnnie Hughes (217)
Steve Thompson (219)
Mark Hewitte (222)
Rober Montgomery (223)
Robert M. Welch (224)
Kenneth M. Allen (226)
Ernest B. Dawkins (227)
Tony W. Sanford (228)
Douglas B. Stancil (229)
Jack Stogner (230)
Willie H. Wall (231)
Willie James Wall (232)
Kenneth Allen Yates (233)
Randy Ammons (234)
Wallace H. Freeman (235)
Don L. Hammann (236)
E. Milton Player (237)
Willie Ellerbe (239)
Mary C. Ratliff (240)25
22 Brown's card is dated February 1, 1978, the day before the election
The testimony of Sam Grant , which I credit, is that the card was signed
on February 2, 1978, after the election.
28 Deaton testified he was told the purpose of the card was to get a
vote, but it is clear , and I find, that he was not told that was the only
purpose of the card . As he testified he did not read the card, a represen-
tation that the card was for a vote might invalidate it for any other pur-
pose. See Gordonsville Industries , 252 NLRB 563 (1980). However,
Deaton also testified that the card may have been read to him In the
circumstances , I conclude he should be bound by his signature.
24 Hawks testified he was told the purpose of the card was for an elec-
tion and that he signed without reading it. Hawks did not say that he
could not read . In 'the circumstances , he should be bound by the lan-
guage of the card.
25 Ratliff testified she was told the purpose of the card was to get an
election and that she did not read the card . I do not credit her. She had
signed two other cards (601(a) and 601 (b)), and I am persuaded she knew
that the card authorized the Union to represent her and she signed with
that knowledge
CLARK EQUIPMENT CO.
Michael Baker (242)
Robert G. Beck (243)
David Cobbler (244)
Larry M. Jenkins (248)
Mark McCaskill (249)
Ralph N. McDonald (250)
Cog Mills (251)
Michael Otis Orr (252)
Donnie M. Poplin (253)
Brian Puckett (254)
Steve W. Reynolds (255)26
Horace G. Shoe III (256)
William Ronald Snead (257)
Daniel Wayne Wright-(260)
Lester Edwards (261)27
Tim Murphy (262)
Larry Grooms (263)
Thomas G. Hamilton (264)
Lacy Jackson Jr. (265)
Burnett E . McRae (267)
Charles Morman (268)
Vance Waddell (270)
Robert Caudle (272)
J. Keith Croke (273)
Donald Gilliam (275)
Charles Jenkins (276)
James L. Young (277)
Robert Lee Zeigler (278)
Nelson David (279)
Robert Joey Lisk (280)
Cleyce E. Almond (283)
Kevin M. Baxley (285)
Albert Lee Brown (286)
Jimmy Brown (287)
Eugene Clark (288)
Thaddeus Collins (289)
Walter Covington III (290)
Napoleon Davis'(291)
Edward Hill (293)
James House Jr. (295)
Albert Ingram (296)
Dennis C. Ingram (297)
Clarence D. King (298)
Clifton Lee King (299)
Carol L. Leake (300)
Leroy D. King (301)
Kenneth Lockhart (304)
Eddie Lee McIntyre (306)
Johnny Miller (307)
Roy C. Minninall (308)
George Morman ', (309)28
SE Reynolds testified he was told the purpose of the card was for an
election and he just glanced at the card. Reynolds had signed a card
before the first election and I am persuaded he knew that in signing the
card he was indicating his desire to be represented by the Union.
24 Edwards' testimony suggests he was told the purpose of the card
was just to get an election. I have adverted above to Edwards' testimony
relative to the authorization of the card of Tim Murphy and I have com-
mented on the distortion of truth which can result from the wrongful
placement of the word "only." I believe Edwards' case exemplifies the
process, because it is difficult to believe that Edwards would have been
soliciting other employees to sign cards just to get an election.
23 Morman appeared to me to have a very poor understanding of the
questions posed by counsel and clearly had a very poor recollection. I
George Nicholson (310)
Danny Rainwater (312)29
Addie Robinson (313)
Alexander Robinson (314)
Leo Robinson (315)
Nathaniel Rose (316)
Gregory D. Short (317)
Harrison D. Smith (319)
Prentice J. Strickland (321)20
Michael T. Wallace (322)
Marvin Blake (323)
Stephen Cranford (325)
Fred Lathan (326)31
Vernon Lee Henderson (327)
Albert Lee Nicholson (329)
James T. Burnett (330)
Talley Covington Jr. (332)
Woodrow Dunn (334)
Harvey Gales (336)
Henry Issac Jr. (337)
John Jackson (338)
Arallen Jones Jr. (339)
Terry Wayne Lamont (340)
Cranford Wilson Lampley (341)
Roger Lampley (342)
Jimmy D. Maynor (344)
James McDonald (345)
Mortimer McLaughlin (346)
Charles A. McLendon (347)
Lawrence Moore (348)
John E. Nelson (350)
Frank Nicholson (351)
William T. Nicholson (352)
Theodore Robinson (353)
Edward Terry (355)
Benjamin Wall (356)
Michael Gerald Wall (357)
Thomas Ray Webb (358)
Stephen Webb (359)32
Raymond Wayne Abrams (360)33
523
note that at some point the solicitor told hun if the Union got a majority
they would ask for recognition . In the circumstances , I deem his card
valid,
29 Rainwater testified he was told the card would not obligate him in
any way . I find the statement related only to the question of union mem-
bership.
So Strickland testified he was told, among other things, "the only way
we would get the Union in here was to have another election , for him to
sign a card if he wanted the Union in." His signature, in the circum-
stances, indicates he wanted to get the Union in and was authorizing it to
act as collective-bargaining representative.
Si I do not credit Lathan 's testimony about his solicitation and what he
was told about the purpose of the card, because Lathan did not appear to
me to be truthful.
32,Webb testified he was told ,the purpose of the card was for an elec-
tion and that he did not read the card. Webb did not testify that he could
not read . In the circumstances, he should be bound by the language of
the card.
33 Abrams signed two cards : 360 and 546 . While part of his testimony
suggests he was told the purpose of the card was only to get an election,
a review of his entire testimony indicates he was offering his understand-
mg of the purpose of the card and that he really had no recollection of
what was said . I am persuaded he was not told toignore the language of
the card. Respondent also challenges 360 on the ground it was dated
Continued
524 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Arlis O. Atkins (363)
Robert K. Singletary (364)
Louis Hodges (365)
Tony Rush (366)
Charles Collins (371)
Henry C. Pratt (372)
Curtis Robson (373)
Cleveland Terry (374)
Eddie Fesperman (375)
Donnie Franklin (376)34
Ronald Singletary (377)
LeLand Dane Clark (378)
Charles Wesley Griggs (379)
Clyde B. Hunt (380)
Bennie C. Saunders (381)
William Allred (384)
David Benson (385)
Tommy Cline Jr. (387)
Warren Cox (388)
Gerry W. Crenshaw (389)
Howell G. Darnell (390)
Larry W. Davis (391)
John E. Ewing (394)
Scott Freeman (395)
Paul Gibson (396)
Willam W. Goins (397)
Dan Griggs (398)
Danny C . Hawks (399)
Kent Hoover (400)
Donald K. Jackson (401)
William H. Jackson (402)
Leonard P . Jones (403)
Kerry M. Little (404)
Vinh Phuouc Luong (405)
Clark McBride (406) 35
Albert McDonald (407)
Joseph McDuffie (408)
James E . McLaughlin Jr. (409)
Raymond F. McRae Jr. (410)
Jimmy W. Martin (411)
Alexander Mason (412)
Jerry F. Paker (413)
Jacqueline W. Patterson (414)
Boyd Steve Paul (415)
Luther W. Reynolds (419)
Melvin Robinson (420)36
Guy H. Smith (421)
James K. Spivey (422)
Jimmy E. Steen (423)37
after the demand for recognition , a challenge hereinafter rejected. As to
Abram's other card , 546, I will not count it, counting 360 instead as
Abrams' most recent card.
34 The testimony of Franklin is not entitled to any weight. He clearly
had no recollection of what he was told when he was solicited.
35 McBride 's testimony is neither clear , nor coherent . I am persuaded
from his entire testimony that no statements were made to him to ignore
the language of the card.
96 Robinson signed cards 420 and 602. Only card 420 is counted for
majority status.
87 Steen testified he did not read the card and that he was told it was
just-for an election. He could not identify who told him that and advert-
ed to general talk among employees. Steen had also signed card 605
before the first election . In the circumstances , I conclude he should be
Richard E. Steen (424)
Phyllis Stubbs (425)
Ulysses O'Neill Thomas (426)
James M. Thompson (427)
Dwight Lee Wall (428)
Roger Webster (429)
Kevin P. Withers (430)
Ronald W. Young (431)
Danny R. Allen (433)
Boyd A. Braddock (434)38
Al Kaurin (436)
James D. Liles (437)
Owen Glenn Taylor (438)
Kenneth R. Bostick (439)
Daniel H. Potts III (443)
Brady Baldwin (444)
Flemming A. Byrd (445)
Coy Doughlas Jr. (446)
Sandra V. Lilby (448)
Tommy B. Green (449)
Edward Pate Parson (450)
Michael Thomas Hudson (452)
Lacy A. Johnson (453)
James Woodrow Lynch (454)
Donald C. Whitley (456)
Adam Dansel Allen (457)
Ray Douglas (458)
Mildred D. Green (459)
Donald Wayne Grooms (460)
Scottie J. Harris (461)
Nathan P. Jacobs (462)
Dale Riley Nuttal (463)
Richard Diggs (465)
J. A. Bolton Jr. (467)
Bobby B. Hornbuckle (468)
John Dennis (469)
Johnny Chappel (470)
Todd Young Burgess (472)
Robert R. Caudle Jr. (473)
Richard Dean (474)
Gary Hooks (476)
Robert C. Berry (477)
Paul R . Layton Jr. (480)
James T. David (481)
Boyce Carpenter (482)
James Herman Godwin (483)33
bound by the language of the card . I shall count card 423 for majority
status, and not card 605
38 A review of Braddock 's testimony indicates that he was confusing
the word "election" for "Union." For example, he testified he was told
"if the election was passed , you would sign another card" and you would
have to sign more papers "if the election went in ." I am persuaded the
authorization language of the card was not canceled out by misrepresen-
tations of the solicitor.
as Card 483 bears the name of Herman Godwin , signed March 8, 1979.
James Herman Godwin testified he was the one who signed card 483,
using a fictitious named to avoid harassment by solicitors . He signed a
second card about 3 weeks later which he turned in at a union meeting.
Neither the General Counsel , nor the Union, could find the card On the
basis of Godwin 's testimony, which I credit, I find that he authorized the
Union to represent him and count his "lost" card . Hedstrom Co., 223
NLRB 1409 (1976).
CLARK EQUIPMENT CO.
Johnny R. Chavis (485)
George Gibson (486)
Arthur D. Collier (487)
Harry Davis (488)
William H. Horne (489)
Tyrone Covington (491)
Elijah Cooper (493)
Jeff Gregory (494)
John R. Lampley (495)40
John D. Lassiter (496)
Bruce McDonald (498)
Mike McNeill (499)
Gary F. Martin (500)
Michael Patterson (502)
Boykin E. Stewart (504)41
Joey Stogner (505)
Charles H. Tarlton (506)
Edwin S. Wilson (508)
James Randall Thomas (509)
Bobby Terry (511)
Jeffrey Scott Patrick (512)
John Kenneth White (515)42
Charles McPherson (516) 43
James T. Lisk (517)
David Randy Watson (518)
Ronnie E . Steen (519)
James T. Thompson (520)
Jerry W. Ludlum (522)
Claude Morgan Jr. (523)
Robert M. Thomas (524)
James G. Shepard (525)
Melton Robinson (526)
Luere D. Little (528)
Jimmy Waynes Liles (529)
James Curtis Caskwell (530)
Ricky D. Sweatt (531)
Vinston Littles (532)
Michael Legrand (533)
Douglas G. Wheeler (534)
Buddy Joe Cox Jr. (537)
Robert Lee McLaughlin (539)
Raymond Ellerbe (542)44
4° Lampley signed cards 495 and 603. Only card 495 is counted for
majority status.
41 Stewart signed cards 504 and 606 . Only card 504 is counted for ma-
jority status.
42 Any suggestion in White's testimony that the card was represented
to be only for the purpose of an election is rejected as a reflection of his
understanding and not of any statements to that effect by the card sohci-
tor. The challenge to his card on the ground of staleness is rejected here-
inafter.
43 It is clear, and I find, from McPherson's testimony that any sugges-
tion that the only purpose of the- card was for an election was in talk
among employees and that no card solicitor made such a misrepresenta-
tion to him. The challenge to his card on the ground of staleness is re-
jected hereinafter.
44 Ellerbe's card is dated before the first election and is challenged on
the ground of staleness This challenge is rejected hereinafter, but in El-
lerbe's case, he testified he signed a second card after the first election
and such testimony is additional ground for validating his card. He also
testified he did not read the card, but that he was told its purpose was to
get a union in.
Mitchell Reddick (543)
Henry James Everett (544)
Billy Gulledge (545)
Charles Terry (549)
Phyllis A. Wall (550)
William F. Singletary (552)
Charles Bright (553)
Wayne Mason (555)
Neil Douglas McLaughlin (556)
James Young Jr. (557)
John Eddie Harris (558)
Aaron D. Little (559)
Charles Patterson Jr. (561)
Keith O'Neal (565)
Vernon G. Gardner Jr. (556(a))
William R. Grooms (567(a))
Clarence Jackson (568(a))
Gerald Littlejohn (569(a))
George Redmond (570(a))
Willie J. Fairley (571(a))
Elvis Charles Little (572(a))
Clatis M. Thomas (574(a))
Arthur Nicholson (575)45
Jackson L. Dawkins (576)46
James Coble Jr. (577)47
James Rushing (578)48
Willie Watts (579)49
Edward F. Singletary (580)5°
Jimmy Cain (582)51
William D. Robinson (583)52
Marvin Locklear (584)53
Charles Rankin (585)
Gary Gregson (586)54
Michael Dawkins (587)55
Roger Mills (589)
Tommy Deberry (591)
Larry L. Lovin (593)
Robert McCormick (594)
Dale Treece (595)
James Miller (598)56
525
41 Nicholson signed cards 575 and 442 . Only 575 is counted for majori-
ty status.
41 Dawkins signed cards 576 and 191. Only card 576 is counted for
majority status.
41 Coble signed cards 577 and 160. Only card 577 is counted for ma-
jority status.
41 Rushing signed cards 578 and 197. Only card 578 is counted for ma-
jority status.
41 Watts signed cards 579 and 362. Only 579 is counted for majority
status.
s° Singletary signed cards 580 and 166. Only card 580 is counted for
majority status.
Si Cam signed cards 582 and 478. Only card 582 is counted for majori-
ty status.
52 Robinson signed cards, 583 and 154. Only card 583 is counted for
majority status.
ss Locklear signed cards 584 and 172. Only card - 584 is counted for
majority status.
54 Gregson signed cards 586 and 247. Only card 586 is counted for
majority status.
55 Dawkins signed cards 587 and 246. Only card 587 is counted for
majority status.
56 Miller signed cards 598 and 369 . Only card 598 is counted for ma-
jority status.
526 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
James Pressley (600)51
Keith Diggs (607(a))58
The foregoing are the cards which I deem were not
invalidated by misrepresentation purposes . The cards that
follow are cards which I fmd, in all the circumstances,
were not valid.
Card 220 was signed by William Thompson who testi-
fied he was told it was for a reelection. Thompson can
not read and the card was not read to him . I deem the
card invalid.
Card 259 was signed by Wesley Webb who testified
the solicitor told him not to pay any attention to the lan-
guage on the card, that all it was being used for was an
election. I credit Webb and find the card invalid.
Card 503 was signed by Joseph Spivey who testified
he was told he could vote like he wanted to, either way,
and "all it meant was that they had to have so many
signed just so they could have an election ." On the basis
of this testimony, which I credit, I deem his card invalid
for purposes of majority status.
Card 513 was signed by Pattie M. Long who testified
she was told "if you sign this card it does not mean the
Union is coming in, it only means that if we get enough
cards signed then it will be brought to a vote." On the
basis of the testimony, which'I credit, I deem the card
invalid for purposes of majority status.
2. Lack of proof that the card signer was on the list of
eligible employees: The record indicates that four of the
cards received in evidence were signed by individuals
whose names are not on the stipulated eligibility list.
These are: Terry Conklin (161), Allen Lee Porter (164),
Jesse Lee FLowers (292), and Roy Stephen (320). They
are therefore invalid in support of majority status.
Respondent adverts to the cards of Calvert LeGrand
(302) and Jerome McDonald (521) as cards of individuals
not on the stipulated list. However , LeGrand's name was
added at the hearing by stipulation of the parties, and I
find that Jerome McDougald's name is erroneously
spelled on the stipulated list as Jerome McDonald. I base
this finding on McDougald's testimony he was employed
during the eligibility period and he gave as his address
the same adress as that listed for McDonald in the stipu-
lated list. As there are no other grounds for invalidating
card, 302 and 521, they are found to be valid designa-
tions.
Respondent contends that nine cards are invalid , essen-
tially because there is a variance between the name of
the individual as it appears on the card and as it appears
on the list; e.g., 527 bears the name Ralph A. Shepheard,
Jr. and the list has Ralph Arlie Shepherd; 333 bears the
name James R. Dockery and the list has J. Richard
Dockery.
I find no merit in Respondent 's argument . The totality
of the circumstances, including the coincidence of names,
initials , addresses, and the authenticating testimony of
87 Pressley signed cards 600 and 447. Only card 600 is counted for ma-
jority status.
58 Diggs signed cards 607(a), 149, and 607(b). In addition to the claim
of misrepresentation, Respondent contends Diggs' card is invalid by
reason of staleness or implied revocation, contentions which I find lack-
ing in merit . Card 607(a) is the card counted for majority status.
either the solicitor or the card signer himself, supports a
finding that the cards in question are those of the em-
ployees whose names appear" on the stipulated list. Ac-
cordingly, as I find no other grounds for invalidating
them, they are found to be valid designations. The cards
are:
Keith Cloninger (146)
W. B. Barrington (156)
Charles R. Treadaway Sr. (168)59
Charles R. Tyler (258)
Walter Mark Bryant (281)
James Edward Campbell (282)
Stewart B. Nicholson (311)
James R. Dockery (333)
Charles R. Treadaway Jr. (382)
Roger Boone (386)
Johnnie D. Diggs (392)
Henry J. Eddings (393)
Roger Pemberton (416)
James G. Campbell (435)
Henry R. Davis (464)60
James Kenneth Brown (466)
Ralph Arlie Shepherd (527)61
Howard Lee Miller Jr. (554)62
Thomas A. Little (592)
3. Insufficient proof cards signed before the critical
date: Respondent contends that there is insufficient proof
as to 20 cards that they were signed before the critical
date. The cards in question are: ' 139, 141, 155, 179, 241,
245, 284, 318, 329, 331, 343, 360, 367, 368, 370, 418, 451,
455, 497, and 501. All of these, except 155, 455, and 501,
have one thing in common; they are dated between June
5 and July 10, 1979. Thus, they were signed after the
Union's demand for recognition. However, it is clear that
the Union's demand was a continuing one and as the
cards bear the names of individuals on the stipulated eli-
gibility list, I find no merit to Respondent's contention.
Accordingly, except for card 451, as I fmd no other
grounds to invalidate the following cards, I fmd them to
be valid designations:
Timothy D. Barbour (139)
Cherry J. Chavis ( 141)63
Brady Speight (155)64
ss Treadaway's card is dated before the first election . As noted herein-
after, that circumstance alone is an insufficient basis to invalidate the
card.
60 Davis' card is challenged on the ground of misrepresentation, a
challenge I find lacking in ment.
61 The totality of Shepherd's testimony indicates , and I find, that he
was not told the only purpose of the card was to get an election.
82 Card 360, signed by Abrams , was found to be valid above.
89 Chavis' card is also challenged on the ground of misrepresentation
as to its purpose. I find no merit to the challenge
64 Speight 's card is dated September 9, 1979, but it is clear that it was
signed in 1978. Authenticating witness Marshall Reynolds gave testimony
to that effect , which I credit, and Speight's card shows a rate of pay not
in existence after May 1 , 1979. As I find - on the basis of Speight's testimo-
ny as a whole that there was no misrepresentation as to the card's pur-
pose, I find the card valid.
CLARK EQUIPMENT CO.
William C. Covington (179)
Sherman Everett (241)
Gary Davis (245) -
Michael Banks (284)65
Terry Lee Singleton (318)
James A. Mudd (328)66
Francis L. Covington (331)
Connie L. Little (343)67
Henry James Everett Jr. (367)
Ernest L. Daughtery (368)
Donald Greene (370)
William Olin Player (418)
Dennis Smith (455)66
Respondent contends that these cards are invalid by
reason of staleness. I find no merit in the contention. If
the cards are old, it is because Respondent interfered
with the conduct of two elections.
Respondent contends that, in any event, the Union
should be estopped from relying on these cards for ma-
jority status because its activities in soliciting signatures
to new cards led employees to believe the first card they
signed was invalid and for that reason they forebore
acting to revoke their cards. Absent a showing that any
employee forebore to revoke his card because of the
Union's statements or conduct regarding the signing of
new cards, the, contention is rejected.
On the basis of the foregoing, and finding no other
grounds for invalidating them, I shall count the follow-
ing cards in support of majority status:
Johnny Sellers (102)
Henry Justin Sale (170)
William W. Currie (190)
Stephen F. Smith (199)
Bobby House (294)
Fred S. Caudle Jr. (324)
William D. Edwards (335)
Otis Stanback (354)
Claudius D. Boyd (440)
James S. Ingram (490)
Franics Covington (492)
Charles N. Tyler (507)
Thomas M. Williams Jr. (514)
Gary Goodwin (536)69
Willie King (540)
Eddie Edwards Jr.70
B5 The challenge to Banks' card on the ground of misrepresentation is
rejected.
66 Mudd did not date his card , nor did Fred Caudle, the solicitor,
Caudle had no independent recollection of the date he received the card
from Mudd, but he testified that it was before the second election I deem
his testimony sufficient to validate the card,
67 Little also signed card 541 before the first election: Only card 343 is
counted for majority status.
68 Smith authenticated his card . He could not verify the date on the
card, but testified he signed the card before the second election
69 Goodwin did not sign on the signature line. His testimony indicates
a clear intent to do so.
10 In Ins brief, Respondent did not challenge Edward's card for being
dated before the first election, but he did so at the hearing.
527
Robert E. Stogner (560)
Rickey W. Knight (562) °
A number of employees who signed cards before the
first election testified that they were requested to sign
cards after the first election and refused. Respondent
contends that their cards are therefore invalid on the
theory that the refusal of an employee to sign a second
card, on request, constituted an express revocation of the
card previously signed. I do not know that the term
"revocation" is the appropriate term to use in assessing
the validity of the card, but in my judgment, where em-
ployees have testified that they were asked and refsued
to sign a second card after the first election, it is a rea-
sonable inference that this objective conduct reflected
that the employee no longer desired the Union to repre-
sent him. Accordingly, I conclude that the following
cards are not valid:
Donald J. Grigss (122)71
George D. Lisk (128)
Stephen Abbott (143)
Jack T. Hudson (163)
Gary L. Pressley (165)
Branson Smith (167)
Bobby Wall (169)
William Paul Webster (238)
Terry McCumber (266)
Robert W. Carpenter (271)72
Johnny Ray Inman (441)
Randy E. Jacobs (475)
Paul Bittle (479)
Joseph F. Gilliam (484)
Austin K. William (510)
Pattie M. Long (513)
Jim Lucy Doby (535)
Ed Cumber (546)
Dewey W. Grooms (548)
B. Fran Driggers (563)
Joseph Michael Steagall (581)
5. Miscellaneous challenges:
a. Not signed on signature line: The cards of Edward
Saunders (381), David Gillis (538), and James Gerry
Covington (551) were not signed on the signature line.
For this reason, Respondent contends they are not valid
designations. I reject the contention. The three cards
were authenticated by the card signers, and all indicated
by their testimony an intent to authorize the Union to act
as their collective-bargaining representative. According-
ly, I find their cards are valid. -
b. Cards signed under the influence of alcohol -
Respond- nt contends three cards are not valid designations be-
cause they were signed while the employee was under
the influence of alcohol: In the case of William- W.
71 Gnggs' card is challenged on the ground of misrepresentation, a
challenge I deem to have no merit. However, Griggs testified he was so-
licited to sign a second card and, although he signed one, he did not de-
liver it to the Union . In the circumstances, I deem his first card invalid.
72 Carpenter not only refused to sign a second card , but his testimony,
which I credit, puts into question whether he ever delivered his first card
to the Union.
528 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Goodwin (162), Goodwin admitted to drinking, but dis-
claimed being drunk. Accordingly, I reject the challenge
to the validity of his card based on that ground.73 In the
case of the cards of James Therrell (202) and Thomas
Woolard (205), their testimony supports a finding that
they did not have the capacity to know the meaning of
their act, and I find their cards are not valid designa-
tions.
c. Revocation: Card 274 was signed by Eddie Dean
who testified that 3 weeks after he signed the card he
asked the solicitor for its return. I credit Dean who ap-
peared to me to be a truthful witness and I deem his re-
quest for the card's return a revocation of the card.
Summary
On the basis of the foregoing, I conclude that 442
cards are valid designations of the Union as collective-
bargaining representative of the employees in the appro-
priate unit.
b. The propriety of a bargaining order
In the foregoing, it has been found that as of June 4,
1979,74 a majority of Respondent's employees had desig-
nated the Union as their collective-bargaining representa-
tive in an appropriate unit, and the Union requested and
was refused recognition. It is also established that such
refusal occurred in the context of unfair labor practices.
In these circumstances, a bargaining order is warranted if
the unfair labor practices are deemed sufficiently serious
or pervasive that the possibility of erasing the effects of
such practices and insuring a fair election by the use of
traditional remedies, though present, is slight and em-
ployee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order.75
In my judgment, Respondent's unfair labor practices as
herein found were both pervasive and serious. They
were pervasive in that they reached all employees in the
form of a barrage of campaign literature. They were seri-
ous because they consisted of threats of plant closure,
discharge, loss of jobs and benefits, and threats which
strike at the very heart of employee concerns. Incorpo-
rated with these threats were the repeated reminders of
the inevitability of a strike if the employees selected the
Union as collective-bargaining representative and that it
would be futile for them to do so, reminders that are un-
likely to be erased through the traditional remedies of a
cease-and-desist order and the posting of a notice. Con-
temporaneously with the threats were promises of benefit
which cannot but linger in the minds of the employees
and preclude the holding of a fair election.
7' Goodwin's card is also challenged on the ground of staleness, a
challenge I have rejected earlier
74 As of June 4, 1979, the date of the demand for recognition, the
Union had 426 cards. Accordingly, the refusal to bargain herein found
shall be found to have occurred on and since June 4, 1979. Should any of
these 426 cards be deemed invalid on review to reduce the number below
411, the 16 cards dated after June 4 but before July 13, which I have
found to be valid, would be added to determine majority status and the
refusal to bargain would be found to have occurred on and since July 13,
1979.
7 s Gissel Packing, 395 U.S. at 614, 615
Respondent's conduct was such that had this been the
first time it so conducted itself in an election campaign, a
bargaining order would be appropriate. What makes a
bargaining order particularly compelling in- this case,
however, is the demonstrated purpose on the part of Re-
spondent to prevent its employees from ever exercising a
free choice on the issue of a collective-bargaining repre-
sentative. I state this because the free election which Re-
spondent fouled by its unfair labor practices in the period
before July 13, 1979, was'the second one it fouled. Not
only that, its objectionable conduct in the second elec-
tion was similar to, and even more egregious than, its ob-
jectionable conduct in the first election.
I refer particularly to the fact that one of the grounds
for setting aside the first election was one speech to as-
sembled employees which impliedly threatened employ-
ees with plant closure while reminding them of their ex-
isting benefits. Substantially, the same conduct was re-
peated in the campaign literature in this case and the
threats were even enlarged upon. In these circumstances,
the conclusion that a bargaining order is necessary in this
case is compelling, and the finding is warranted that by
refusing to recognize and bargain with the Union, on re-
quest, Respondent since about June 4, 1979, has violated
Section 8(a)(1) and (5) of the Act.
Respondent contends that a bargaining order here is
not appropriate for a number of reasons, principal of
which is that the unfair labor practices alleged even if
found are not sufficiently serious or pervasive that their
effects may not be dissipated by traditional remedies. For
the reasons given above, I reject Respondent's conten-
tions.
2. The unilateral conduct
Paragraph 8(w) of the complaint in Case 11-CA-8746
alleges that since about October 30, 1979, Respondent re-
fused to bargain with the Union by unilaterally adopting
a new attendance policy; paragraph 14' alleges that pur-
suant to said policy Respondent issued disciplinary warn-
ings to Richard Diggs, Charles Ellerbe, and others
known to Respondent; and paragraph ^ 15 alleges that pur-
suant to said policy Diggs, Ellerbe, and employees pres-
ently unknown were discharged on- or after October 30,
1979.
The same allegations appear in paragraphs 12, 13, and
14 of the complaint in Case I1-CA-9454, apparently in
anticipation of arguments that the allegations in Case 11-
CA-8746 are barred by Section 10(b) of the Act. Such
arguments have been presented. Respondent contends
that the allegations in question, insofar as they appear in
the complaint in Case 11-CA-8746 are barred because
no such allegations appear in the original charge, nor in
the amended charge, and are not closely related to the
general refusal-to-bargain allegation, in the amended
charge. I do not agree. In my judgment, an allegation of
unilateral conduct is closely related to an allegation of
general refusal to bargain. Accordingly, I find that the
allegations in paragraphs 8(w), 14, and 15 of the com-
plaint, as amended, in Case 1l-CA! 8746 are not time-
barred.
CLARK EQUIPMENT CO
As to the identical allegations in Case 11-CA-9454, I
find that they also are not time-barred. Although the
charge in that case was filed more than 6 months after
the alleged unilateral change in policy, the 10(b) period
was tolled by the Union's lack of knowledge of the uni-
lateral action. In this connection, Respondent argues that
the Union had constructive notice, at least, inasmuch as
the alleged change was the subject of a notice distributed
to employees about the date it went into effect. In my
judgment, this cannot be deemed notice to the Union
where the Union is being denied its lawful status as bar-
gaining representative. In such a situation, a Union has
no stewards to whom it can look to police working con-
ditions, and members of an in-plant organizing committee
are not the same as stewards. Moreover, the change in
issue here is a slight change, the nature of which could
only be appreciated by one privy to the attendance
policy and procedure in existence before the change.
There is no showing the Union was privy to the old
policy and procedure. Finally, although the policy was
asserted to have gone into effect on October 30, 1979,
there is no showing that any employee affected by it was
himself aware how it affected him and that the Union
was made aware of the enforcement of the policy. In
these circumstances, I find the 10(b) period was tolled
and that the complaint is not time-barred.
While the allegations here in question may not be
time-barred, I conclude that a finding of a violation of
Section 8(a)(1) and (5) of the Act is not warranted, be-
cause the changes in question did not constitute a materi-
al, substantial, or significant change from Respondent's
prior practice. Rust Craft Broadcasting, 225 NLRB 327
(1976); Peerless Food Products, 236 NLRB 161 (1978).
This conclusion f based on the credited testimony of
Ron Dickinson that the change in question was rather a
change of procedure than policy, and that it removed
negative connotations in the word "warning" by substi-
tuting counseling, including an additional counseling
step.
The General Counsel, in effect, argues such is not the
case. Counsel for the General Counsel concedes that the
attendance procedure before October 30, 1979, was hon-
ored more in the breach than in the practice, and refers
to the practice as chaotic and at the whim of individual
supervisors. However, he argues that after October 30,
1979, the new procedure was closely adhered to. An ex-
amination of the records submitted leaves me unpersuad-
ed. It appears at most that Respondent was attempting to
bring some order into its procedure, but there is no basis
for holding that the attendance policy was made more
stringent or substantially altered. Accordingly, I shall
dismiss the 8(a)(5) allegation relative to this issue.46
III. THE OBJECTIONS
Before the Board will issue a bargaining order based
on authorization cards where there has been an election
11 The General Counsel contends that the change in attendance policy
was violative of Sec 8(a)(1) of the Act, because it was made during the
pendency of the objections in Case 11-RC-4447. I find no merit in this
contention There is no evidence whatsoever that Respondent's action
was designed to erode union support among the employees
529
pursuant to a representation petition, timely objections to
conduct affect the results of the election must have been
filed and have been found meritorious so that the elec-
tion results are set aside. Irving Air Chute Co., 149 NLRB
627 (1964). As noted earlier, timely objections to the
election of July 13, 1979, were filed and, by order of the
Board, the objections discussed below were consolidated
for hearing with Case I1-CA-8746. They are disposed of
as follows:
(3) The Employer and/or Agents of the Employ-
er instituted wage increases in order to influence the
outcome of the election.
(4) The Employer and/or Agents of the Employ-
er paid employees at the newly instituted wage rate
prior to the effective date of the increase in order to
influence the outcome of the election.
It is recommended that these objections be overruled
in accordance with the findings above relative to the job
evaluation program,
(7) The Employer and/or Agents of the Employ-
er interfered with the distribution of Union litera-
ture in non-work areas and on non-work time in
order to influence -the outcome of the election.
It is recommended that this objection be sustained in
accordance with the findings above that Respondent
interfered with the distribution of union literature at the
plant entrances on the night before the election.
(9) The Employer and/or Agents of the Employ-
er threatened employees with loss of benefits in
order to influence the outcome of the election.
(10) The Employer and/or Agents of the Em-
ployer threatened employees with plant closure in
order to influence the outcome of the election.
(11) The Employer and/or Agents of the Em-
ployer threatened employees with the inevitability
of strikes in order to influence the outcome of the
election.
(14) ' The Employer and/or Agents of the Em-
ployer threatened employees for engaging in pro-
tected activity in order to influence the outcome of
the election.
It is recommended that these objections be sustained
on the basis of the findings above relative to the state-
ments in Respondent's campaign literature, the state-
ments of Simmons or Frank to Covington, the statement
of Williams to Bridges, the statements of McInnis to
Diggs, and the statements of Kelly to Moore.
(12) The employer and/or Agents of the Em-
ployer interrogated employees regarding their union
activity in order to influence i....e outcome of the
election.
It is recommended that this objection be sustained on
the basis of the findings above relative to the interroga-
tion of Covington, Bridges, and Moore.
530 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(13) The Employer and/or Agents of the Em-
ployer implied surveillance of protected activity in
order to influence the outcome of the election.
It is recommended that this objection be sustained on
the basis of the findings above realtive to statements to
employees Grant and Pettigrew.
(18) The Employer and/or Agents of the Em-
ployer denied employment to relatives and friends
of known adherents in order to influence the out-
come of the election.
It is recommended that this objection be overruled on
the basis of the findings above relative to Judy Perkins
and her conversation with Supervisor Williams.
The objections included an allegation of interference
with the conduct of the election by "other acts and con-
duct." Under this heading the Regional Director found
that statements in Respondent's campaign literature war-
ranted a fording of objectionable conduct consisting of a
promise of benefits. On the basis of my own findings
above of implied promises of benefits in Respondent's
campaign literature, I shall recommend that the objec-
tions "other acts and conduct" be sustained.
The objections which I have herein found to have
merit warrant setting aside the election held on July 13,
1979, and I shall so recommend and, in view of the rec-
ommendation that a bargaining order be issued, I, shall
recommend that the petition for election be dismissed.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of Respondent set forth in section I,
above, occurring in connection with the operations de-
scribed herein, have a close, intimate, and substantial re-
lationship to trade, traffic, and commerce among the sev-
eral States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of com-
merce.
V. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(r)(1) and (5) of
the Act, I shall recommend that it be ordered to cease
and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act, in-
cluding, for reasons set forth above, a recommendation
that Respondent be ordered to recognize and bargain
with the Union as the representative of its employees to
remedy the serious unfair labor practices which it com-
mitted by which it has rendered the possibility of hold-
ing a fair election slight.
CONCLUSIONS OF LAW
1. Clark Equipment Company is an employer engaged
in commerce within the meaning of Section 2(6) and (7)
of the Act.
2. United Steelworkers of America, AFL-CIO-CLC is
a labor organization within the meaning of Section 2(5)
of the Act.
3. All hourly full-time and regular part-time produc-
tion and maintenance employees, including material han-
dlers, quality control department employees, tool room
and tool crib employees, met lab technicians, and outside
drivers employed at the employer's Rockingham, North
Carolina facility located at Highway 74 W. Rockingham,
North Carolina, excluding all office clerical, plant Glen-
cals, production schedulers, plant schedulers, sales coor-
dinators, gear technicians, material planners, truckdrivers
not employed by the employer and janitors not em-
ployed by the employer, sales employees, managerial em-
ployees, professional employees, guards and supervisors
as defined by the Act, and all other employees, consti-
tute a unit appropriate for the purpose of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. By threatening employees wth discharge, loss of
jobs, loss of benefits, and plant closure if they selected
the Union as their collective-bargaining representative;
by threatening them with the inevitability of a strike and
the futility of selecting the Union as their collective-bar-
gaining representative; by promising employees benefits
if they rejected the Union as their collective-bargaining
representative; by interrogating employees about their
union sentiments; by interfering with employees in the
distribution of union literature in nonwork areas during
nonwork time; by threatening the arrest of employees for
distributing union literature in nonwork areas during
nonwork time; by conveying the impression of surveil-
lance of the union activities of its employees; and by
interfering with the Board's processes by telling them
they do not have to honor Board subpoenas, Respondent
has engaged in, and is engaging in, unfair labor practices
within the meaning of Section 8(a)(1) and Section 2(6)
and (7) of the Act.
5. By refusing since June 4, 1979, to recognize and
bargain with the Union as the exclusive representative of
its employees in the appropriate unit set out above, Re-
spondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Section 8(a)(1) and (5)
and Section 2(6) and (7) of the Act.
[Recommended Order omitted from publication.]