Continental Kitchen Corp.

National Labor Relations Board - Board Decisions

Nov 30, 1979

246 N.L.R.B. 611 (N.L.R.B. 1979)

CON I NI N I AI. KlI(IlI-N (O()RPl Continental Kitchen Corporation aind Intlernational Union of Electrical. Radio and Machiie Vorker, AFl-(IO()-ClC. (Cases 25 (A 100 () an1d 25 R( 6844 November 30,() 1979 gaining or other mutual atitd or protection as guaran- teed hb Section 7 of the Act, or to refrain from an or all such activities." 2. Substitute the attached notice for that of the Administrative I aw Judge. APPL NIX)X [)FISIO(N AN I ()OR[)FR B Ml - RS Pi I ), MtN' R'I\I, \NI) FRI I Sl)\I On July R18. 1979. Administrative l.ax Judge lenr! 1. Jalette issue d the att;ichIed [ecision1 in this pro- ceeding. Ihereafter. Respondent anll the ;General Counsel filed exceptions and supporting brils. Pursuant to the provisions of Section 3(h) of the National Labor Relations Act. as amended, the Na- tional Labor Relations Board has delegated its au- thority in this proceeding to a three-member panel. The Board has considered the record and the at- tached I)ecision in light of the exceptions and briefs and has decided to affirm the rulings, findings,' and conclusions of the Administrative I.am Judge ad to adopt his recommended Order, as modified herein. 2 OR[)ER Pursuant to Section 10(c) of the National ahbor Relations Act, as amended, the National I.abor Rela- tions Board adopts as its Order the recommended Or- der of the Administrative Law Judge. as modified he- low, and hereby orders that the Respondent. Continental Kitchen Corporation, Shelbhyville, Indi- ana, its officers, agents. successors, and assigns. shall take the action set forth in the said recommended Order, as so modified: 1. Substitute the following for paragraph 1(f): "(f) In any other manner interfering with, restrain- ing, or coercing its employees in the exercise of their rights to self-organization, to form, join, or assist the above-named labor organization, or any other labor organization, to bargain collectively through repre- sentatives of their own choosing, and to engage in concerted activities for the purpose of collective bar- ' Respondent has excepted to certain credihility findings made h) the Ad- ministrative L.aw Judge. It is the Board's estahlished policy not to overrule an adminisirative law judge's resolutions with respect to credibility unless the clear preponderance of all the relevant evidence convinces us that the resolutions are incorrect Standard Dry WaIll Products, Inc.. 91 NLRB 544 (1950). enfd 188 iF2d 362 (3d Cir 1951). We have carefull examined the record and find no hasis for reversing his findings 2 In par. I(fI of his recommended Order, the Administrantve l.a' Judge provided that Respondent shall cease and desist from "in any hke r related manner" interfering with, restraining, or coercing emploNees in the exercise of their protected Sec 7 rights. However. in light of' our recent Decisio in Hickmot Foodn Inc. 242 NIRB 1357 (19791. the Order and ntice should he broadened to read "in any other manner" because Respiondent ,ls Ilund to have engaged in egregious and widespread misconduct which denimn- strated a general disregard for the emplosees' fundamental sIlitutorN rights Notl I( l() 1l (IIl S lP()S II ) () RI)I-R (It 111 NAII()NAI. [AB()R RI I I()NS B()ARI) A\n Agency of te nited States (overnment After a hearing at t hich both sides had the opportu- [Iit\ to present their Cce, the National L abor Re- lations Board has tounl wxe violated the law and has ordered us to post this nolice. \W \ 1ii l o() solicit complaints and griev- alnces from ou or the purpose of inducing you to xwithdraw your support from. or to cease giv- ing assistance to. International Union of Electri- cal, Radio and Machine Workers AFL-CIO- ('I('. or any other labor organization. WtI. 111. NO( promlise to institute, nor will we institute a job classification system where our purpose in doing so is to induce you to withdraw your support from, or to cease giving assistance to, the above-na med I n ion. WrI II I o( I threaten to close the plant if you select the Ulnion to represent you. WI: Vi.. N)t denly the Union permission to post literature on the company bulletin board when we permit other nonwork literature to be posted. W. 'v11.1 Nol refuse to recognize and bargain with the above-named Union as the exclusive representative of our employees in the appropri- ate unit described below. Wi Vwill. NO1 in any other manner interfere with, restrain, or coerce employees in the exer- cise of their right to self-organization, to form, join, or assist labor organizations, to bargain col- lectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection as guaranteed by Sec- tion 7 of the Act, or to refrain from any or all such activities. W wln.l. bargain collectively, upon request. with the above-named Union as the exclusive representative of all our employees in the bar- gaining unit with respect to rates of pay, wages, hours of employment, and other terms and con- ditions of employment, and, if an understanding is reached, embody such understanding in a signed agreement. The bargaining unit is: 246 NLRB No. 94 6 11 D(ECISIONS OF NATIONAL L.ABOR REL.AT-IONS BOARD All full-time and regular part-time production and maintenance employees at the Shelbyville Indiana, facility, including all inspectors, all specialty department employees, all shipping department employees, and all service depart- ment employees, exclusive of all sales repre- sentatives, all direct sales employees, all ofice clerical employees, all professional employees, all guards and all supervisors as defined in the Act. You are free to become and remain members of International Union of Electrical. Radio and Ma- chine Workers. AFL ('10 CI.' or any other labor organization. CO()N'INI.NI A KtI'('IlN CO()RPO()RA ION )FC(' I SION SI A11MAls I I1- I11 ( AsI HINRY L. JAIt.IitII, Administrative l.aw Judge: This con- solidated proceeding involves allegations that the above- named Respondent engaged in various acts of interference. restraint, and coercion in violation of Section 8(a)( I ) of the Act and that such unfair labor practice conduct was de- signed to destroy the above-named Union's card majority and was therefore violative of Section 8(a)(5) of the Act and warranted the issuance of' a bargaining order.' The unfair labor practice proceeding was initiated by a charge filed by the Union in Case 25-CA 1000 on July 3, 1978.2 The pro- ceeding in Case 25 RC 6844 was initiated by a petition filed on February 21, pursuant to which a Decision and Direction of Election was issued and an election held on May 5, in which 35 votes were cast in favor of union repre- sentation and 39 against. Timely objections to the election were filed, and on June 21 the Regional Director issued a Supplemental Decision and Order and notice of hearing. On July 24 the Regional Director issued a complaint in Case 25 CA 10000 and an Order consolidating the case with Case 25-RC-6844. On October 23, 24, 25, and 26. hearing was held in Shelbyville, Indiana. Upon the entire record. including my observation of the witnesses, and upon consideration of the briefs of the par- ties, I hereby make the following: I The complaint originally alleged that the Union would have been desig- nated as collective-bargaining representative of Respondent's employees but for Respondent's unfair labor practices and a bargaining order was re- quested. With his brief, the General Counsel moved to amend the complaint to conform to the proof: namely, to allege that a majority of Respondent's employees did designate the Union as collective-bargaining representative and requesting a bargaining order as a remedy for Respondent's unfair labor practices. Respondent has filed no objection to the motion. The motion is granted. 2Unless otherwise indicated, all dates hereinafter are in 1978. J With his brief, the General Counsel moved for the receipt in evidence, as G.C. Exh. I I, the eligibility list used in the election of May 5. for the purpose of establishing that one Larry Woosley should not be included in the appro- pnate unit. No objection having been made by Respondent. the document is received as G.C. Exh. 12 as the record indicates another document was designated G.C. Exh. I1I. FINDIN(S FAt I 1. I A( I UAI S' 1i N(; Respondent is an Indiana corporation with its principal place of business located at Shelhbyville, Indiana, where it is engaged in the manutfcture and sale of cabinets. vanities, and related products.4 Sometime in January the Union be- gan its organizational campaign. Thereafter, until on or about May 5. the day of the election in 25 RC 6844. Re- spondent is alleged to have engaged in various acts of inter- tercnce, restraint, and coercion. 11. IlH ,1 1+I( i1) INI I RIN(', R SIRAINI, ANI) ( )I R('IIIN A. .surtcillanc, I'he record indicates that between Januars 25 and May 4, the Union held 17 meetings at the union hall in Shel- byville. Lrmployee Kay Prather testified that on the occa- sion of five of these meetings she observed Supervisor John Nicholson drive by in a pickup truck. Each time he drove by slowly and looked toward the union hall. The union hall is located on a downtown street, and Nicholson admitted to driving by it and noticing employees on two or three occasions. He explained that the hall was on his route to pick up his wife at the beauty parlor which was only a block or so down the street from the union hall and that he did this almost every TIhursday. I credit Nicholson and conclude that the General Coun- sel has ftailed to establish b a preponderance of the evi- dence that Nicholson was engaged in surveillance. B. Promlogouion qftUnlat'lid Rule The complaint alleges that on or about April 15, Respon- dent promulgated an unlawful work rule prohibiting em- ployees from distributing and posting union literature and insignia at its facilities. There is no evidence to support this allegation as phrased in the complaint. Respondent did not promulgate any rule relative to the distribution of literature. On the matter of posting union literature, employee Walter Graham testified that in mid-April he asked General Manager Frank Toma- cek if he could post union notices on the company bulletin board and Tomacek said no. Tomacek testified there was no rule relative to posting material on the board and em- ployees would post notices of various kinds without seeking permission. He denied that Graham sought permission to post union literature and that he told him no. I credit Graham and find that he asked and was denied permission to post union literature. Apart from demeanor, I credit Graham instead of Tomacek because of what I per- ceive as a lack of candor on Tomecek's part. When first examined under Rule 611(c) of the Federal Rules of Evi- dence, Tomacek could not recall Graham's making the re- quest, yet on examination by his counsel when recalled as a witness he not only denied Graham made the request, but even assigned a reason for his recollection, a reason which, if true, should have been operative when he testified ini- 4Jurisdiction is not in issue. Respondent stipulated that it meets the Board's direct inflow and outflow standards for the assertion of jurisdiction 612 CONTINENTAI. KITCHEN (CORP. tially. In addition, the record indicates that Tomacek con- ducted five employees' meetings, and his testimony con- cerning his lack of knowledge of union activity among Respondent's employees at the time of the first meeting was singularly less than candid. The record indicates that a variety of nonwork-related notices were posted on the company bulletin board by em- ployees at various times. In the circumstances, by treating union literature differently and denying Graham's request, Respondent violated Section 8(a)(1) of the Act. Challenge Cook Brothers of Ohio, Inc., 153 NLRB 92 (1965). That employees were permitted to distribute union literature in nonwork areas during nonwork time without interference is immaterial. C. Interrogation Employees Kay Prather and Caroline MacDonald testi- fied that on May 5, before the election. Foreman Jim Fisher, an admitted supervisor, approached them and said "how do you think it's going to go today?" Prather said she thought there was a 50 50 chance the Union would win. The complaint alleges that this innocuous conversation constituted unlawful interrogation. Interrogation is not per se unlawful. Generally speaking, the lawfulness of interro- gation is measured according to certain criteria.' However. in my judgment, the absence of such criteria does not neces- sarily mean every question to employees is unlawful. In this instance the content of the question indicates at most a curiosity on the part of a supervisor about the possible out- come of an election with no element of inquiry into the employees' union activities or desires. As a matter of fact. both employees were known union adherents. I find noth- ing coercive in the incident. Sandra Burton, a former employee of Respondent, testi- fied that, on two occasions in February. Manufacturing Manager Larry Conover asked her how things were going with the Union, whether she thought it was going to get in, and how many she thought would be for the Union. Burton told him over half as far as she knew. Burton asked Cono- ver what would happen, and he said the doors would be shut. that there would be no union there. Conover admitted to one conversation with Burton re- garding the Union, but he denied asking her any questions. According to him, the one conversation was actually started by a coworker of Burton's. one Gloria Collins, who asked him what would happen if the Union came in. He replied that he did a lot of the company's purchasing and knew the company's credit was bad because he had to buy C.O.D. and that Tomacek had trouble getting enough money to keep the plant running as it was. If the Union came in, it would want something, and if it cost money it could cause the plant to close. I credit Conover whose testimony was very' explicit and find no interrogation. I further find that his remarks regard- ing possible plant closure were not violative. D. Solicitation of Grievances and Promises of Beneits The complaint alleges that in February. March. April. and May 4 and 8, Tomacek solicited employees to submit Srukrnes (onrtrucion Co., Inc., 165 NIRB 1062 (19671. grievances and impliedly promised employees Respondent would institute a job classification system and other benefits if they refrained from supporting the Union. Beginning the last of January, or the first week of Febru- ary. Tomacek had five employee meetings, three of which were plantwide and the last two of which were depart- mental. Tomacek did not state precisely what the purpose of the first meeting was, but he discussed various problems facing Respondent such as the energy shortage. deliveries to customers, absenteeism, and quality. He testified that at ei- ther this or the second meeting employee Sandra Burton asked if employees could come to see him and that he said yes, that his door was open. He indicated that if employees got a group together they could meet with him. He testified that two meetings were subsequently held. but the record does not show when or who participated. At these meetings there were discussions of the leaky roolf the condition of restrooms, and hospitalization. The second employee meeting was held in February after the petition was filed, and it was called to explain to em- ployees the company's financial problems. According to employee Carolyn MacDonald. at this meeting Tomecek told the employees "we didn't need a union, we could work things out, ourselves." "that we could come into his office any time we wanted, to discuss anything we wanted." Ac- cording to employee Richard Dillinger. Tomacek told the employees that employees could come in with any gripes. At either this or a later meeting, employees asked about job classifications (Respondent had no system of job classi- fications) and omacek testified he told them that Respon- dent was working on job classifications. (Tomacek testified that one Dr. Meyer, a stockholder of the company and for- merly an industrial engineer, had been commissioned by Respondent in November or December 1977 to set up a job classification system. Tomacek was uncertain whether or not he mentioned Dr. Meyer in his talk to the employees.) According to employee Kay Prather, the issue of job classi- fications was raised at a meeting on May 4, and Tomacek said classifications were being checked with another com- pany in order to classify Respondent's employees. The task of setting up job classifications was completed on or about May I. and on May 8 it was announced to employees and thereafter put into effect. As part of the job classification system, raises of 6 to 7 percent were granted. Prather testified that at the May 4 meeting she asked about the plant's leaky roof and that Tomacek said if sales were up in May, Respondent would fix the roof. Employee Carolyn MacDonald gave similar testimony, but could not fix the date of the meeting. The foregoing represents essentially all the evidence rel- evant to a determination of the allegations of unlawful so- licitation of grievances and promises of benefits. The Board has long held that the solicitation of erlployee grievances during an organizational campaign is unlawful.' However, the principle that an employer violates the Act when he solicits employee grievances during an organiza- tional campaign is not a principle of per se application: rather. it comes into play "where, as here, an emploer... has not previously had a practice of soliciting employee grievances or complaints .... Reliance Electric Compwal,n. Eagle -Picher Ilnlirterl Inc, 171 NI.RB 293 ( 1968). 613 I) E('ISIONS OF NATIONAL. I.ABOR RI.A IO)NS BOARI) 191 NLRB 44, 46 (1971). Moreover, the solicitation of em- ployee grievances may also be held to have been violative of the Act even though the employer may not have prom- ised to remedy the grievances and may even have expressly disclaimed making any promises.' Applying the foregoing. it appears to me that there is substantial evidence to support a finding that Respondent did solicit grievances under circumstances warranting an implied promise to remedy them in order to dissuade em- ployees from supporting the Union. In the first place. I am persuaded and find that Sandra Burton's inquiry about coming in to see Tomacek occurred at the February meet- ing after the filing of the petition. Tomacek himself testified it was possibly that meeting, and the inquiry was a natural response to Tomacek's statement at the February meeting, as described by MacDonald, that the employees did not need a union and could work things out themselves. By that statement. Tomacek invited Burton's inquiry and set into motion the discussions that followed about working condi- tions. In the circumstances, including the the fact that there is no evidence that an open-door policy had previously ex- isted or that employees had been urged to come to the office to discuss their problems, and the fact that the invitation was extended coincident with the Union's filing of the peti- tion, a finding is warranted that there was an implied prom- ise that such grievances would be remedied. The implica- tion was reenforced by Respondent's literature to employees dated March I (G.C. Exh. I) wherein Respon- dent stated, inter alia, "There are a number of reasons why I don't feel a union would be good for any of us at this time. As many of you are aware, we are making every effort to answer your questions and solve the problems as they arise." One such problem was evidently the condition of the cafeteria where improvements were made. Another prob- lem was the absence of job classifications, a concern which was voiced as a result of Tomacek's invitation, and as to which the employees were told that a job classification sys- tem would be put into effect. Respondent defends this con- duct on the uncontradicted testimony of Tomacek and Dr. Meyer that the decision to institute a job classification sys- tem was made prior to, and was unrelated to, the Union's organizational campaign. The fact that it is uncontradicted does not mean that it must be credited, and I do not credit it, because it is evident that a job classification system which, according to the timetable followed by Respondent took 6 months to prepare and which resulted in wage in- creases of 6 to 7 percent. is a matter which is not decided on without some extended discussion, particularly when finan- cial conditions are as bad as depicted by Tomacek. Yet, neither Tomacek nor Dr. Meyer could specify precisely when this decision was made. The best they could specitf was that it was in November or December 1977. cannot believe that a decision of this importance could have been made without more exact specification of the date and cir- cumstances under which it was made. On the basis of the foregoing, I find that Respondent solicited employee grievances under circumstances warrant- ing a finding of an implied promise to remedy them and 'Landis Tool Company. Dision Iof irton Indusrus. 190 Nl.RB 757 (1971), enfd. 460 F.2d 23 (3d (ir. 1972). under circumstances warranting a finding that the purpose thereof was to dissuade employees from supporting the Union. The circumstances also warrant a finding not only that the promise to institute a job classification system was motivated by a purpose to dissuade employees from sup- porting the Union. but also that the implementation of the promise on May 8 was unlawful.? I do not, however, find that the promise to fix the leaky roof was unlawful. Clearly, it would be to the employer's own interest to fix a leaky roofx: and Tomacek's reply to this inquiry about the roof reflected that the repair was condi- tioned on sales and unrelated to the employees' support of the Union. E. Threats of Plant Closure I'he complaint alleges that about 2 weeks before the elec- tion, Supervisor James Fisher threatened employees with plant closure if they supported the Union. The allegation is based on the testimony of employee Paula Shepard that a short time before the election she and employees Carolyn MacDonald Kay Prather, and Tammy Elliott were called into Fisher's office where he repeatedly told them that if the Union got in, Reed would pull his money out of the Com- pany and the doors would close. (Reed was Respondent's principal stockholder.) Fisher admitted to a conversation with the four employ- ees named above and testified its purpose was to discuss productivity. On direct examination, he was not asked whether he made the statement attributed to him by Shep- ard. All he could say was that he could not recall whether there was any talk of the Union. Nor could be recall anyone asking him what would happen if the Union got in. (Shep- ard had not testiied anyone asked such a question.) In an- swer to my question, he emphatically denied telling the em- ployees the plant would close if the Union came in. However, this was not precisely the statement Shepard at- tributed to him, and while that denial could be construed as a denial of the statement attributed to him by Shepard, one could also fairly conclude that Shepard's testimony was not contradicted. In any event. Shepard appeared to me to be a truthful witness, and there is nothing in the record to sug- gest a motive on her part to single out Supervisor Fisher and falsely attribute to him the statement here in question. Moreover, the statement is consistent with statements of Tomacek hereinafter discussed. For these reasons, I credit Shepard and find that Fisher's remark constituted an un- lawful threat in violation of Section 8(a)( 1) of the Act.9 The complaint alleges that in February, March, April. and on May 4, Tomacek threatened employees with plant closure if they supported the Union. The allegation appears to be based on statements of Tomacek in the course of the live employee meetings he held and on company literature distributed to employees during the preelection period. Although the complaint does not allege that the mplementation as unlawlill. the matter was ully litigated In crediting Shepard, I have c.onsidered the fact that Prather. MacDon- ald, and Elliolt, who were also present when Fisher made the threat, also testified and ere not asked abhout this incident by the G;eneral (ounel. True, they testified before Shepard and the General Counsel represented that Shepard's testimony was newly discovered, hut they could have been re- called. I deem the (ieneral ('Counsel's failure to doi so insufficient to overcome lmy stated reasons or crediting Shepard 614 CON NI I ITAI KI T(11 N ('O)RP' I find no threats of plant closure in Respondent's cani- paign literature, nor do I find that the statements contained therein exceed the limits permitted under Section 8(c) of the Act. As to omacek's statements at the employee meetings. the General 'Counsel's witnesses gave te tollowing testl- mony: Kayi Prather. At the Ma 4 meeting. Tomacek said that if the union got in that he would have to close the doors, no ifs, ands or huts about it: that Respondent was owned by four stockholders and that one of them. Bob Reed, would pull his shares out if the union got n and as a result the doors would he closed: that Respon- dent could not afford to pay union wages and the cost of a uni(,n and if the union wanted to come into ('on- tinental Kitchens the doors would he closed. Carolvn MacDonald: Tomacek said that there wart four stockholders of the ('ompan' and the majorit stockholder, Bob Reed. would take his money ut otf the plant if the Union got in: that if the union gets in. the company would close: that the company didn't have any money to spend, that it hat] lost money dur- ing the preceding four years, and that if the Union got in and made demands that the compan\ could not meet, the company would close. Russel Reneau: Tomacek said that if the union got in they would have to shut the plant down, because theN would be asking for more money and the company couldn't afford it; that if the Union did get in they would have to shut the plant down. Tomacek denied stating at any of the employee meetings that if the Union came in the plant would close. According to him at the second and third meetings of employees. he explained the problems facing the Company, that it was in an unsound financial situation and that any demands of a monetary nature could cause serious problems. Hie testified that at the departmental meetings he told the employees he wanted to make sure they understood the company's finan- cial position. In the process of doing so, he explained that the Company had four stockholders and that money was available to the Company either through them or through banks, but that the banks would not lend the company any more money. He also explained that the major stockholder was wealthy and would continue putting money into the company, provided he thought it was a good investment. and that if the Union made demands that would cause "bumps in the road" that would make it more difficult to continue to survive, to keep the Company going: and that the Company had a deficit of $488,270 in 4 years of opera- tion and had finished in the black in April 1978, but with a profit of only $19,350. He further testified that at the May 4 meeting he told the employees that the company's books were open for inspection and they could get their own audi- tor to inspect them. He told them they should vote as they felt; however, he wanted to make sure they understood the company's financial position. He had prepared a statement showing the company's operations since it started and he passed it around. He explained that the Company would negotiate in the event the Union was selected, but that ou cannot get blood out of a turnip. At one of the meetings he told the employees that if Bob Reed pulled out, the other three stockholders could not financiallM continue the busi- ness. he first issue to he decided relative to the foregoing is whether or not in any of the meetings held by omacek he told the employees. in haec ierhba. that if the Union got in, the plant would close. I conclude Tomacek did not do so. ;and that the testimony of the General Counsel's witnesses that he did so reflects their interpolation of lomacek's re- marks rather than his actual statements. I find that any references he made to plant closure were in the context of either explaining Respondent's poor financial condition or explaining Respondent's dependence on Bob Reed. As to his statements concerning Respondent's financial condition. there is no contention they were false, and Tomacek even offered a financial report to the employees to substantiate them. In the circumstances, including the fact that the data accumulated by Respondent on the Ulnion's history of strikes was also not shown to be false, I find that omacek's remarks were based on objective facts of demonstrably probable consequences beyond his control rather than a threat to take action solely on his own initiative. "' Ihe fitregoing does not apply to lomacek's statements about Reed. In this regard, I find that Tomacek's state- ments constituted threats of plant closure if the nion got in. Ilomacek admitted that he told the employees of the composition of stock ownership of the Company, that the Company could not continue if Reed pulled his money out, that Reed would continue putting money in providing he thought the Company was a good investment. He clearly implied that in Reed's eyes a plant with a union was not a good investment. his was, in effect, a threat to close the plant if the Union came in. I find that Respondent thereby violated Section 8(a( I) of the Act. tll. 11t AILEGiED 8(a)(5) VIOA()IAINS The complaint, as amended, alleges that since on or about April 10 the Union has been designated by a major- ity of the employees in an appropriate unit as their repre- sentative for the purpose of collective bargaining, that on or about April 10 the Union requested Respondent to bargain with it and that Respondent refused. Based on these allega- tions and the unfair labor practices of Respondent as de- scribed earlier. the General Counsel asserts that a finding is warranted that Respondent violated Section 8(a)(5) of the Act and that a bargaining order is appropriate pursuant to the principles of N.L..R.B. v. (;i.ssell Packing Co., supra. The demand for recognition and refusal were established by the Union's letter of March 21, mailed on April 6. and received on April 10, to which Respondent did not reply. As to the appropriate unit, the parties stipulated that the unit described in the complaint as hereinafter set forth was appropriate. The parties further stipulated that as of April 10, the appropriate unit consisted of 89 employees.) As to the U. nion's majority status, the record indicates that 50 .V I RR v (Giel Packing Co. In,' 395 U.S. 575. 618 6t9 (1969): (o/ul. I.. 221 NRB 8990 905 (1975} i Respondent would add one l.arry WoosleN to the unit, hut the record indicales that he had not worked for Respondent after he week ending March 10. and his name awa satrcken rom the eligihlit list n the election in 25 R( 6844 bh aigreemenl of the parties I find thal Wowsle? was not part of Ihe appropriate linit on April 10 h615 DE('ISIONS OF NATIONAL. LABOR R:L.ATIONS BOARDI unit employees had executed cards prior to April 10 which authorized the Union to act as their collective-bargaining representative. Respondent contends that 16 of those cards were improperly received into evidence because they were not properly authenticated; i.e., the person who authenti- cated the cards had received the signed cards from the indi- viduals whose names appeared thereon, but had not wit- nessed the actual signing. I find no merit to the contention.' In short, the record establishes that, as of April 10, a majority of Respondent's employees had designated the Union as their collective-bargaining representative in an appropriate unit, the Union requested and was refused rec- ognition, and 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 suffi- ciently 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 employee sentiment once expressed through cards would. on balance, be better protected by a bargaining order." In my judgment, Respondent's unfair labor practices as herein found were both serious and extensive. Threats of plant closure strike at the very heart of employee concerns. job tenure, and by their very nature tend to coerce employ- ees from exercising their Section 7 rights. There are few unfair labor practices as effective in cooling employee en- thusiasm for a union as a promise to remedy grievances which have prompted employee interest in the union in the first place. Respondent was guilty of both varieties of con- duct. Moreover, its conduct extended to the entire labor force through a series of speeches to a captive audience. The proof of its effect on employees can be seen from the fact that of the 50 signed cards, only 9 were signed after February when Respondent began its unfair labor prac- tices. One could argue that the effect of this conduct can be dissipated by traditional remedies; yet, how does one undo the fact that since about May 8 the employees have enjoyed a job classification system implemented by a 6 to 7-percent wage increase? As to the threats of plant closure, how does one assure employees that the principal stockholder will not decide to withdraw from the business if they select the Union to represent them? In my judgment, the institution of the job classification system cannot be undone and the necessary assurances cannot be obtained through tradition- al remedies. In order to protect the Section 7 rights of the employees, the sentiments once expressed through cards would, on balance, be better protected by a bargaining or- der. I shall so recommend. IV. Ill OBJE(TIONS Before the Board will issue a bargaining order based on authorization cards where there has been an election pursu- ant to a representation petition, timely objections to con- duct affecting the results of the election must have been filed and have been found meritorious so that the election results are set aside. Irving Air Chute Companv. Inc., Mara- thon Division, 149 NLRB 627 (1964). As noted earlier, a representation petition was filed in this case and an election 12 The Stride Rite Corporation, 228 NLRB 224 (1977). 1 Gissel, supra at 614, 615. was held. hereafter, the Union filed timely objections to conduct affecting the results of the election asserting as ob- jectionable conduct the following: I. The Employer solicited employee grievances and made expressed and implied promises of new benefits in order to discourage employee support for the Union. 2. Through its campaign literature, captive audi- ences speeches and other communications, the Em- ployer conducted a campaign of fear and intimidation by constant prophecy of strikes and violence as inevita- ble results of a Union. 3. The Employer repeatedly threatened to move or close the plant if the employees selected the IUE as their collective bargaining agent. 4. The Employer solicited employees in an attempt to form an anti-lUE "independent" Union. 5. The Employer enforced a discriminatory "No- Distribution, No-Posting Rule" concerning pro-union literature and signs, while it allowed the posting of "Vote No" signs throughout its plant.'" In light of the findings above of Respondent's serious unfair labor practices in the period between the filing of the petition and the election, extensive discussion of the objec- tions is not necessary. Objection I is sustained for the reasons given earlier re- specting Respondent's solicitation of grievances and the promise to institute a job classification system. Objection 2 is overruled as neither the campaign litera- ture nor Tomacek's speeches contained statements on the subject of strikes and violence which warrant a finding that there was interference with the election. Objection 3 is sustained for the reasons given above re- garding Tomacek's statements about stockholder Reed. Objection 4 is overruled as the evidence is insufficient to support a finding that Respondent attempted to form an anti-IUF "independent" Union. Objection 5 is sustained for reasons given above relative to Graham's request to post union literature. On the basis of the foregoing, I shall recommend that the election be set aside, and, in view of the recommendation that a bargaining order be issued, I shall recommend that the petition for election be dismissed. V. 'tiI: 1111;:1('1 OF 0'I UNFAIR ABR . R PRA(I(ES UP()N ('OMMIR('. The activities of Respondent set forth in section 1, above, occurring in connection with the operations described herein, have a close, intimate, and substantial relationship to trade, traffic. and commerce among the several States and tend to lead to labor disputes burdening and obstruct- ing commerce and the free flow of commerce. Til- REMEt)Y Having found that Respondent has engaged in unfair la- bor practices in violation of Section 8(a)(I) 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, including, for reasons set forth above. a recommendation that Respondent be or- 14 A sixth objection was overruled by the Regional Director and is not before me for consideration. 616 CONTINENTAL KITCHEN CORP. dered to recognize and bargain with the Union as the repre- sentative of its employees to remedy the serious unfair labor practices which it committed by which it has rendered slight the possibility of holding a fair election. CON( U SIONS ()t Lw I. Continental Kitchen Corporation is an employer en- gaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. International Union of Electrical, Radio and Machine Workers. AFL CIO-CLC, is a labor organization within the meaning of the Act. 3. All full-time production and maintenance employees at Respondent's Shelbyville. Indiana. facility. including all inspectors. all specialty department employees, all shipping department employees, and all service department employ- ees, exclusive of all sales representatives, all direct sales em- ployees, all office clerical employees, all professional em- ployees, all guards and all supervisors as defined in the Act constitute a unit appropriate for the purpose of collective bargaining within the meaning of Section 9(b) of the Act. 4. By soliciting employee grievances in a manner and under circumstances implying that employees did not need a union to redress their grievances, by promising to insti- tute, and instituting, a job classification system to dissuade employees from supporting the Union. by threatening em- ployees with plant closure if they selected the Union to represent them, and by refusing to permit the Union to post literature on its bulletin board, while permitting the posting of other literature. Respondent engaged in, and is engaging in. unfair labor practices within the meaning of Sections 8(a)(l) and 2(6) and (7) of the Act. 5. By refusing since April 10. 1978, to recognize and bar- gain with the above-named Union as the exclusive repre- sentative of its employees in the appropriate unit set out above, Respondent has engaged in, and is engaging in. un- fair labor practices within the meaning of Sections 8(a)( 1) and (5) and 2(6) and (7) of the Act. Upon the foregoing findings of fact, conclusions of' law. and the entire record and pursuant to Section 10(c) of the Act. I hereby issue the following recommended: ORDER'' The Respondent, Continental Kitchen Corporation, Shel- byville, Indiana, its officers, agents. successors, and assigns, shall: I. Cease and desist from: (a) Soliciting employee complaints and grievances and impliedly promising to remedy such complaints and griev- ances in order to induce employees to withhold support from, and to cease giving assistance to, Independent Union of Electrical Radio and Machine Workers. AFI CIO- CLC, or any other labor organization. (b) Promising and instituting a job classification system in order to induce employees to withhold their support ' In the event no exceptions are filed as provided h) Sec. 10246 of the Rules and Regulations of the National l.abor Relations Board. the findings. conclusions, and recommended Order herein shall. as provided in Sec 102.48 of the Rules and Regulations, be adopted by the Board and become its findings. conclusions. and Order. and all objections thereto shall he deemed waived for all purposes. from., and to cease giving assistance. to the above-named Union. or any other labor organization. (c) Threatening employees with plant closure if they se- lect the Union to represent them. (d) Refusing to permit the Utnion to post literature on company bulletin boards. while permitting the posting of other literature. (e) Refusing to recognize and bargain with International Union of Electrical Radio and Machine Workers. AFl ('10 CLC. as the exclusive representative of its employees in an appropriate unit composed of: All full-time and regular part-time production and maintenance employees at the Shelby ville, Indiana., fa- cility including all inspectors, all specialty department employees, all shipping department employees, and all service department employees, exclusive of all sales representatives, all direct sales employees, all office clerical employees, all professional employees, all guards and all supervisors as defined in the Act. (f) In any like or related manner interfering with, re- straining, or coercing its employees in the exercise of their rights to self-organization, to form, join or assist the above- named labor organization, or any other labor organization. to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the pur- pose of collective bargaining or other mutual aid or protec- tion as guaranteed by Section 7 of the Act or to refrain from any or all such activities. 2. Take the following affirmative action designed to elf- fectuate the policies of the Act: (a) Upon request, bargain collectively with International Union of Electrical, Radio and Machine Workers. AFL CIO CLC, as the exclusive representative of all employees in the unit described above and, if an understanding is reached, embody such understanding in a signed agree- ment. lb) Post at its Shelbyville. Indiana. plant copies of' the attached notice marked "Appendix. " ', Copies of said no- tice, on forms provided by the Regional Director for Re- gion 25. after being duly signed by Respondent's authorized representative, shall be posted by Respondent immediately upon receipt thereof and be maintained by it for 60 con- secutive days thereafter in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by Respondent to insure that said notices are not altered. defaced, or covered by any other material. (c) Notify the Regional Director for Region 25. in writ- ing. within 20 days from the date of this Order, what steps have been taken to comply herewith. As to Case 25-CA 6844, it is recommended that Objec- tions 2 and 4 be overruled, that Objections I. 3. and 5 be sustained. and that the election be set aside and the petition be dismissed. IT IS F:RIIIR RE(()MMIEND) that the allegations of the complaint not hereinabove found to have been supported by the evidence be. and they hereby are, dismissed. ' In the eent that this Order is enforced bs a Judgment of a nited States ('ourt of Appeals. the words in the notice reading "Posted bh Order of the National Labor Relations Board" shall read "Posted Pursuant to a Judg- ment of the nited States (Court of ppeals Fnforcing an Order of the Na- tiona l l.ahir Relitions Board " 617