Curtin Matheson Scientific, Inc.

National Labor Relations Board - Board Decisions

Mar 22, 1977

228 N.L.R.B. 996 (N.L.R.B. 1977)

996 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Curtin Matheson Scientific, Inc. and Warehouse,
Industrial and Service Employees Union , Local No.
752. Cases 8-CA-9400 and 8-RC-9949
March 22, 1977
DECISION AND ORDER
BY CHAIRMAN MURPHY AND MEMBERS
FANNING AND JENKINS
On April 26, 1976, Administrative Law Judge
Herzel H. E. Plaine issued the attached Decision in
this proceeding. Thereafter, Respondent and the
General Counsel filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.
1. We are in agreement with the Administrative
Law Judge that Respondent's unfair labor practices,
committed in response to and in an effort to frustrate
its employees' efforts to select an exclusive bargaining
representative, warrant and require a finding that it
violated Section 8(a)(5) and (1) when it refused to
recognize and bargain with the Union, upon the
latter's request, as the exclusive representative of its
employees. Further, for the reasons expressed by the
Administrative Law Judge, we agree that, irrespective
of whether such unfair labor practices be viewed as
falling within category one or two as described in the
Supreme Court's decision in N. L. R. B. v. Gissel
Packing Co., Inc., 395 U.S. 575, 614 (1969), a
bargaining order is a necessary part of our remedy
herein.
2. We find merit in the exceptions of the General
Counsel to the Administrative Law Judge's failure to
find, through apparent inadvertence, that Respon-
dent violated Section 8(aX5) and (1) of the Act by
unilaterally instituting a bonus program for its
employees on or about August 15, 1975. Respondent
admitted this allegation of the complaint in its
answer. As the Administrative Law Judge properly
imposed the bargaining obligation as of July 8, 1975,
it follows that Respondent's subsequent refusal to
bargain with the Union before beginning this pro-
gram is a violation of the Act.2
228 NLRB No. 116
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Curtin Matheson Scientific, Inc., Cuyahoga
Heights, Ohio, its officers, agents, successors, and
assigns, shall take the action set forth in the said
recommended Order, as so modified:
1. Insert the following as paragraph 1(i), and
renumber present paragraph 1(i) as 1(j):
"(i) Unilaterally, and without prior notice to, or
negotiation with, the Union, instituting a bonus
program for employees in the above-mentioned unit,
provided, however, that nothing herein shall be
construed as requiring Respondent to vary or aban-
don any economic benefit or any term or condition of
employment which it has heretofore established."
2. Substitute the attached notice for that of the
Administrative Law Judge.
I Respondent has excepted to certain credibility findings made by the
Administrative Law Judge . It is the Board 's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect . Standard Dry Wall Produce; Inc., 91 NLRB 544
(1950), enfd . 188 F.2d 362 (C.A. 3, 1951 ). We have carefully examined the
record and find no basis for reversing his findings.
2 Member Jenkins would date the bargaining obligation from the time
necessary to correct all violations of the statute . In this case , a date of either
June 4 or July 8 will remedy all violations and he therefore is willing to join
the Chairman in dating the obligation from July 8, though in other
circumstances he would agree with Member Fanning that the appropriate
date is June 4.
Member Fanning finds that Respondent violated Sec . 8(aX5) on June 4,
1975, when it refused the Union's demand for recognition . The Union's
demand was supported by a majority of the employees in the unit.
Respondent , by thereafter engaging in the unfair labor practices described
and found , forfeited whatever rights it might otherwise have had to have that
majority status proven by other means. Hence , in refusing the request for
recognition , Respondent refused to do that which the Act requires ; namely,
to recognize and bargain upon request with the representative selected by a
majority of its employees.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten our employees with loss
of profit-sharing or pension rights, or with lesser
benefits generally, if Warehouse, Industrial and
Service Employees Union, Local No. 752 (called
the Union) represents the employees in the unit
described hereinafter.
WE WILL NOT threaten our employees that, if
the Union represents them, they must strike if they
will not accept our offer of lesser benefits and
terms of employment, and if they strike they will
CURTIN MATHESON SCIENTIFIC, INC. 997
lose their jobs or the Cleveland Branch will be
closed altogether.
WE WILL NOT coercively interrogate our em-
ployees concerning their union sympathies.
WE WILL NOT create the impression among our
employees of the futility of bringing the Union in,
and, WE WILL NOT threaten them with harsher
dealing and reprisal if the Union is brought in.
WE WILL NOT issue discriminatory disciplinary
warnings to employees because of their known or
suspected union activities or to discourage their
support of the Union.
WE WILL NOT discriminatorily require a doc-
tor's certificate for 1-day absences for illness of
employees because of their known or suspected
union activities or to discourage employee support
of the Union.
WE WILL NOT discourage employees from
support of or membership in the Union by any
other discrimination affecting their tenure and
conditions of employment.
WE WILL NOT, unilaterally, and without notice
to, or negotiation with, the Union, institute a
bonus program for the employees in the unit
described hereinafter, provided, however, that
nothing herein shall be construed as requiring us
to vary or abandon any economic benefit or any
term or condition of employment which has
heretofore been established.
WE WILL NOT refuse, upon request, to bargain
with the Union in good faith as the collective-
bargaining representative of the employees in the
unit described below:
All warehouse employees at our Cleveland,
Ohio, branch, comprising all warehouse
employees and shipping and receiving em-
ployees, excluding all office clerical employ-
ees, guards, and supervisors, as defined in the
National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed under Section 7
of the National Labor Relations Act.
WE WILL, upon request, as of July 8, 1975,
recognize and bargain with the Union as the
exclusive collective-bargaining representative of
the employees in the unit described hereinabove
and, if an agreement is reached, embody it in a
written contract.
Because we discriminatorily issued written
disciplinary warnings to employees Sandra Crews
and Lloyd McHam in August 1975, and about the
same time discriminatorily required of each of
them a doctor's certificate for absence for illness
of 1 day, WE WILL expunge from our records any
reference to these written disciplinary warnings
issued to employees Crews and McHam and WE
WILL rescind the discriminatory requirement for
submission of a doctor's certificate for absence for
illness of 1 day imposed upon employees Crews
and McHam.
CURTIN MATHESON
SCIENTIFIC, INC.
DECISION
HERZEL H. E. PLAman, Administrative Law Judge: The
questions presented are whether Respondent, a distributor
of medical instruments and supplies with a warehouse at
Cleveland (among many in other locations ), engaged in
unfair labor practices, both before and after a representa-
tion election held July 25, 1975, for its Cleveland warehouse
employees; whether Respondent's preelection conduct
interfered with the fairness of the election, which the
Charging Party (Union) lost; and whether Respondent's
preelection and postelection conduct was of such nature as
to make the holding of a fair election unlikely and the
issuance of a remedial bargaining order necessary.
The complaint, issued October 10, 1975,1 alleged that,
prior to the election of July 25, 1975, Respondent threat-
ened to close the Cleveland warehouse and to deprive the
employees of participation in Respondent's profit-sharing
pension program and other employee benefits if they
supported the Union, engaged in coercive interrogation of
an employee concerning her support of the Union, and
refused to bargain with the Union, in violation of Section
8(a)(1) and (5) of the National Labor Relations Act (the
Act); and that, immediately after the election , Respondent
discriminatorily issued disciplinary warnings to, and discri-
minatorily required doctor's certificates for 1 day's absence
for illness of, two employees believed to be supporters of
the Union to discourage employee support of the Union, in
violation of Section 8(a)(3) and (1) of the Act.
The Union objections in Case 8-RC-9949 to the conduct
of the election were the same as the Section 8(a)(1)
allegations of the unfair labor practice complaint, and by
Board order of November 2, 1975, were consolidated for
hearing with the unfair labor practice case.
Respondent has denied any preelection or postelection
violations of the Act.
The cases were heard in Cleveland, Ohio, on December
10 and 11, 1975, and January 6, 1976. General Counsel and
Respondent have filed briefs.
Upon the entire record of the case,2 including my
observation of the witnesses and consideration of the briefs,
I make the following:
i On a charge filed by the Union , August 21 , 1975, and amended October
3,1975
2 The corrections of the transcript of the testimony , requested by General
Counsel by motion of January 26, 1976, and by Respondent by motion of
January 28 , and first supplemental motion of February 4, 1976, are allowed.
Respondent 's objections , in its answering motion of January 28, to several of
General Counsel 's proposed corrections , were without substance, and are
overruled.
998 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
FINDINGS OF FACT
I. JURISDICTION
Respondent is a Delaware corporation with its principal
place of business located in Houston, Texas, and branch
offices and warehouses in 22 locations throughout the
United States.
Respondent is engaged in the sale of medical and
scientific instruments and supplies produced by others, and
the warehouse and office located in Cuyahoga Heights,
Ohio (variously referred to as the Cleveland warehouse or
branch or plant), is I of 22 regional facilities maintained by
Respondent for the storage and shipment of its goods.
Annually, Respondent ships goods valued in excess of
$50,000 from the Cleveland warehouse to points located
outside Ohio. As the parties admit, Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
As the parties also admit, the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
Il. THE UNFAIR LABOR PRACTICES
A. Respondent's Business Operations
Respondent-Curtin Matheson-is a wholly owned
subsidiary of Coulter Electronics (Coulter), constituting the
merger of two companies, acquired by Coulter in January
1974. Coulter is a manufacturer of laboratory instruments
and has its headquarters in Florida. Respondent is a
distributor of medical and scientific instruments and
supplies, and has its headquarters in Houston, Texas.
Respondent has 22 branch offices and warehouses
located regionally throughout the United States. The
Cleveland branch manager is James Alampi who was a
Coulter employee who moved into the branch manager's
job when Coulter acquired Respondent.
According to Branch Manager Alampi, the Cleveland
branch had, in July 1975, about 29 or 30 employees of
whom 7 or 83 were warehouse employees and the remain-
der office, sales , and service personnel. In addition there
were some Coulter people in the branch. Alampi said he
was supplied information by Coulter as well as by Curtin
Matheson.
Alampi testified that as Cleveland branch manager he
was and is in overall charge of the branch, including the
sales, office, service, and warehouse personnel. He has three
assistants , an operations manager, a sales manager, and a
service manager.
The operations manager is Irwin (Bud) Reese, who came
(from the Pittsburgh branch where he was a packer) to the
Cleveland branch in December 1973 as warehouse foreman
or supervisor, and after several months became operations
manager. The full duties of the operations manager were
not described, but it was clear that, among them, the
receiving, storing, and shipping of merchandise at the
warehouse was under his jurisdiction. However, he did not
3 The parties stipulated that the unit of warehouse employees in the
period June 1-7, 1975, when the Union requested and Respondent refused
recognition , was 7 employees . At the election of July 25, 1975, there were 9
eligible voters and 9 unchallenged ballots cast, according to the Regional
Director 's report of October 15, 1975
spend his time in the warehouse,4 which was immediately
and directly in the charge of a warehouse supervisor,
responsible to the operations manager.
The warehouse supervisor who succeeded Reese in
March or April 1974, when he became operations manager,
was Elliott Davis, who remained for a year until his
employment terminated sometime in March 1975. Davis
was succeeded as warehouse supervisor, sometime in June
1975, by an employee in the warehouse, Gwen Molton.
Branch Manager Alampi and Operations Manager Reese
were admitted supervisors within the meaning of the Act.
While the issue was not directly raised regarding former
Warehouse Supervisor Elliott Davis, if a finding were
necessary, there was enough indicia in the testimony to
demonstrate that he too was a statutory supervisor, such as
his authority to assign and reassign warehouse employees to
various duties, and his authority enjoyed and exercised to
institute policies in the warehouse, such as a training
program and an absentee control program. In the case of
Davis' successor, Gwen Molton, the parties stipulated that
she was a member of the bargaining unit (as of June 1-7,
1975, see fn. 3, supra), and she voted in the election of July
25, 1975. Nonetheless, though technically not a supervisor
within the meaning of the Act, it was clear from the
testimony that after her appointment as warehouse supervi-
sor, the branch management and employees alike regarded
her as in charge of the warehouse and a spokesman for
management . Betts Baking Co. v. N.L.RB., 380 F.2d 199,
202 (C.A. 10, 1967); N.L.RB. v. Solo Cup Company, 237
F.2d 521, 524 (C.A. 8, 1956).
The warehouse employees did the physical receiving,
storing, and packaging for shipping of merchandise. Ship-
ping was usually by truck carriers, such as United Parcel
Service. In the first week of June 1975, the unit of
warehouse employees comprised six warehousemen or
warehousepersons-Shirley V. Bartunek (nee Zarara),
Sandra Crews, Kyle Depoy, Frank Iran, Lloyd McHam,
and Gwendolyn (Gwen) Molton - plus a seventh employ-
ee, clerk typist Dorothy Gregorowicz.
Packaging for shipping was done, working from invoices
or shipping documents prepared by the office employees,
usually by two of the warehouse employees working as
pickers, pulling the items from stock, and two of the
warehouse employees working as packers putting the items
in cartons, sealing each carton with gummed tape and
affixing a gummed label with the name and address of the
consignee and a gummed envelope containing a copy of the
invoice or shipping document. Occasionally there was no
need for a warehouse employee to pack the order but
simply to use the unbroken carton in which the manufac-
turer sent the merchandise to Respondent. In such case
affixing the address label and shipping document envelope
were the only steps needed.
In charge of labor relations for Respondent, headquar-
tered at Houston, was Larry Gobert, director of personnel
and labor relations. According to Branch Manager Alampi,
as soon as it appeared that union organizing was under
4 This was true Reese said, even in the period April, May, and early June
1975 when the post of warehouse supervisor was vacant.
CURTIN MATHESON SCIENTIFIC, INC.
way, Gobert was alerted and he in turn dictated whatever
the branch supervisors were to say or do in relation to the
Union, and also directed that any personnel actions be
submitted to him before their execution.
B. The Union Organization
According to Personnel Director Gobert only 5 of
Respondent's 22 warehouses are union organized. Cleve-
land was not among them.
In May 1975, employee Sandra Crews discussed, with a
representative of the Union, organizing the Cleveland
warehouse employees. She signed a union authorization
card on May 22, and distributed cards to her fellow
employees. Thereafter, the employees met at the union hall.
Employees McHam, Zarara (married name Bartunek), and
Iran signed authorization cards on May 29. Two days
earlier on May 27, employee Molton signed an authoriza-
tion card for Union Business Agent Freeman.
On June 2, 1975, Union Agent Freeman called personally
on Branch Manager Alampi, requesting recognition of the
Union as bargaining representative of the unit of ware-
house employees. Alampi said he could do nothing, and the
Union followed up with a written demand for recognition
and bargaining, also on June 2, received by Respondent
June 3. Respondent replied June 4, refusing recognition
and suggesting an election.
The Union had filed a petition for an election on June 2.
On June 30, union and employer representatives met at the
Cleveland Board offices, and executed an agreement for an
election to be held July 25. Employee Crews accompanied
the union representative to the meeting.
C. Respondent's Countermeasures
Respondent's Personnel Director Govert came from
Houston to the Cleveland branch and ran four meetings
with the employees, opposing unionization of the ware-
house . The first meeting was at the end of June, and the
other three were held in the 8 days immediately prior to the
election of July 25, on July 17, 23, and 24. There was a fifth
employee meeting conducted by Branch Manager Alampi
on July 8.
Employees Kyle (Mike) Depoy and Sandra Crews
testified concerning matters told the employees at these
meetings by Director Gobert and Manager Alampi. Em-
ployee Depoy testified that the new profit-sharing pension
plan recently inaugurated for all employees was discussed
and the employees were told by Gobert and Alampi that if
the Union came into the warehouse the union people would
not be eligible for, and would not be in, the program; the
Union could promise benefits, but the company was the
only one that could deliver any pay increases or benefits; if
the Union got in, it would have to negotiate for pay and
other terms and benefits, and ask for and negotiate for a
profit-sharing pension plan. Gobert further said, according
to Depoy, if the Union got in, it would have to accept what
the company offered or the Union would have to take the
employees on strike, and the company could replace the
employees or could close the offices and warehouse.
Employee Depoy stated that Gobert amplified the discus-
sion of company alternatives to say that if the Union struck
999
Respondent could hire permanent replacements for the
striking employees or get work done with supervisory
personnel, or could close the branch altogether, or could
accede to the union demands. Regarding closing the
branch, Gobert added, according to Depoy, that he would
try to keep from closing down the place completely, if
possible.
Employee Crews testified that Director Gobert and
Manager Alampi said, if the Union came in, the warehouse
employees could not participate in the profit-sharing
pension plan, the Union would have to negotiate to get such
a plan. According to Crews, Gobert further said, if the
Union came in it had two alternatives and the company
had three. If the Union got in the Union could accept what
the company offered or the Union could take the employ-
ees on strike. The company alternatives were to accept what
the Union proposed, or permanently replace the employees
if they went on strike, or shut the branch down. Employee
Crews recalled that Gobert said if the employees went on
strike they could be called economic strikers and could be
permanently replaced, but she did not recall his saying the
company would try to keep from closing the plant down.
In connection with the profit-sharing pension plan, it
should be noted that on July 3, 1975, all of Respondent's
employees, including all Cleveland branch employees, were
notified by letter from the company president (G.C. Exh.
6), that the plan, incorporating benefits heretofore enjoyed
by Coulter employees, was in effect for Curtin Matheson
employees retroactive to the date when Coulter (the parent
company) acquired the two original component companies
now comprising Respondent (the subsidiary company,
Curtin Matheson), or, if the employee was hired thereafter,
retroactive to the date of hire. The plan vested a valuable
right in each employee, to acquire a specific monthly
income after retirement based on earnings before retire-
ment, plus an increment based on the employee's share in
company profits, the benefits to become irrevocable after
10 years of continuous service including past years of
service with the original companies. All contributions to the
plan are made by the company, tax-free to the employee.
In his testimony (and Board affidavit, G.C. Exh. 15),
Personnel Director Gobert confirmed that the profit-shar-
ing pension plan was in effect for the Cleveland branch
employees at the time of his July meetings with them.
Personnel Director Gobert testified that he took control
over what was to be said and done by supervision,
including any disciplinary actions, concerning the Union at
the Cleveland branch. This was the fifth union organizing
campaign (at Respondent's several branches) in which he
had participated for Respondent, said Gobert, and he
claimed he had been successful in defeating the unions in
the four previous campaigns. At the first meeting he
conducted of the Cleveland branch employees, Director
Gobert said he told everyone his "box score" of four wins
and no losses in defeating the unions in previous elections
held at other branches.
Personnel Director Gobert and Branch Manager Alampi
agreed that Gobert specifically instructed Alampi on what
he was to say to the employees on the matter of the Union
at the Cleveland branch meeting of July 8, when Alampi
undertook to explain the newly inaugurated profit-sharing
1000 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pension plan (G.C. Exh. 6, supra) for Respondent's employ-
ees. Alampi testified he told the employees that union
members would not automatically be included in the plan
or excluded from it, but that the matter would have to be
the subject of negotiation between the company and the
union bargaining unit.
Personnel Director Gobert testified that he was not at the
meeting Manager Alampi conducted on July 8, and that at
the employee meetings that he, Gobert , conducted he said
nothing on the profit-sharing pension plan. Gobert's
affidavit to the Board (G.C. Exh. 15), given in September
1975 shortly after the July meetings and 3 months before he
testified, contradicted this testimony, and I do not credit his
claim that he was silent on the profit-sharing pension
matter. According to his affidavit, Gobert talked to the
Cleveland employees on the subject of the profit-sharing
pension plan at the July 17 meeting, and he told them (as
had Alampi, supra) that the employees would not automati-
cally get the profit sharing or automatically not get it if the
Union came in, that it would depend on negotiations
between the employer and the Union; and he made
reference to a Midwestern Instruments decision of the Board
and gave each employee a copy of an excerpt of a sentence
from the decision (see G.C. Exh. 13). The affidavit further
stated that the profit -sharing plan was already in effect at
the Cuyahoga Heights (Cleveland) facility, a fact Gobert
confirmed in his testimony .5 In substance , if not exact
words , Gobert reiterated for the employees what Manager
Alampi had previously told them would happen to their
profit-sharing pension rights with the advent of the Union.
Personnel Director Gobert testified that he distributed
and read the pamphlet (G.C. Exh. 13) to the Cleveland
employeese in telling them that there was nothing automat-
ic about their getting better benefits if they went union, that
they could end up with less benefits, and it was not illegal if
they got less benefits; that bringing in the Union didn't
guarantee better benefits, they could be better or less or the
same depending on negotiations.
Director Gobert claimed he was asked in the first
employees' meeting by (warehouse supervisor) Gwen
Molton if the company could close and move the ware-
house out of town to avoid dealing with the Union, and that
he replied, it didn't make sense economically and would be
illegal . Director Gobert said he discussed with the employ-
ees the matter of a strike by the Union and testified that he
said the company had three choices ; to accede to the union
demands, to bring in supervisors and keep work going, or to
permanently replace the strikers as economic strikers. He
claimed he did not say the company could also close down
the Cleveland branch but that he did say, we would try to
5 The Gobert affidavit corroborates the testimony of employees Depoy
and Crews that both Director Gobert and Manager Alampi spoke to the
employees on the effect of unionization on their profit-sharing pension
rights, and spoke in a similar vein.
6 The pamphlet reads. "Regardless of what the Union says - this is the
law, 'There is , of course, no obligation on the part of an employer to contract
to continue all existing benefits, nor is it an unfair labor practice to offer
reduced benefits . . .'(Midwestern Instruments , Inc.), 133 NLRB 1132."
r 1 do not regard the statements of Managers Alampi and Reese and
management spokesman Molton , that Gobert did not discuss closing the
branch as an option , as altering the situation ; indeed they were silent on
whether Gobert said that the company would try to keep the branch open, as
Gobert himself had testified . Moreover there were problems with their
keep it open - which suggests, as employee Depoy
testified, that Gobert preceded this statement with the
assertion that the company had the option to close down
the branch. In any event, in view of Gobert's demonstrated
unreliability as a witness, supra, I regard the description of
employees Depoy and Crews as the more reliable account
of what the employees were told.?
Following the July 17 meeting, employee Crews asked
Personnel Director Gobert for an opportunity to talk to
him. She said at the hearing (in response to Respondent
counsel's inquiry) that she asked for the opportunity
because no one had asked Gobert questions at the
employees' meeting, though he had asked if there were any.
In Gobert's description of the July 17 meeting, he con-
firmed that there were no questions asked of him. Gobert
met with employee Crews the following day in the branch
lunchroom.8
At this meeting of the two of them, employee Crews
asked Gobert, what he had against the Union, and,
according to Crews, Gobert answered it was personal. He
then asked her, said Crews, why she was for the Union. She
replied , because of the need of a pay raise and because
seniority on the job meant nothing. According to Crews,
Gobert again discussed the two union and three company
alternatives, as he had in the employees ' meeting, that the
Union on its part could accept what the company offered or
take the employees on strike , and if struck , that the
company on its part could go along with the union
demands, or permanently replace the strikers , or close the
plant down. Crews asked, was it that easy to close the
branch down, and, according to Crews, Gobert replied, yes,
that he had kept the Union out of other branches and he
was planning to keep it out of this one.9
The matter of closing the branch rather than accept a
union had been broached before by management personnel
in private conversations. Former Warehouse Supervisor
Davis testified that during his tenure, at a time in August or
September 1974 when there was no union organizing in
progress, in a general discussion of company policy with
Branch Manager Alampi and Operations Manager Reese,
they told him that if Coulter (the parent company) or
Respondent thought a union would come into the Cleve-
land branch, the branch would be shut down and relocated,
and all three of them, Alampi, Reese, and Davis, would be
out of jobs because they had not controlled the situation.
Alampi and Reese denied discussing this matter, but
because of problems with their credibility discussed infra, I
do not credit these denials.
credibility as discussed in sec . II, E, infra, concerning postelection conduct.
However , all three, plus employee Bartunek who could remember only
discussion by Gobert of one option, were clear, as was everyone else, that
Gobert told the employees if the Union called them out on strike they could
be permanently replaced.
a Respondent suggested that in asking for the meeting employee Crews
was seeking to trap Personnel Director Gobert into committing an unfair
labor practice . The suggestion is without foundation. By his own testimony,
Gobert was quite alert to avoidance of any trap.
B Director Gobert denied that his meeting with Crews encompassed the
discussion described by her, but I do not credit his denials for the reason
already given.
CURTIN MATHESON SCIENTIFIC, INC. 1001
D. The Election
The Board-conducted election was held on July 25, 1975.
At the election employee Sandra Crews served as observer
for the Union.
Though there were seven employees in the bargaining
unit in the first week of June, when the Union requested
recognition of Respondent, at the election nine eligible
voters cast nine unchallenged ballots. The Union lost by a
five to four vote.
The Union filed objections, some of which the Regional
Director found required hearing, report of October 15,
1975; and the Board ordered consolidation of those
objections for hearing with the instant unfair labor practice
case, order of November 12, 1975. The residual objections
are the same as the 8(a)(1) preelection allegations of the
complaint.
E. Respondent's Postelection Conduct
A few days after the election of July 25, on August 1,
1975, Respondent issued written disciplinary warning
notices to employee Sandra Crews for alleged shipping
mistakes, and to employee Lloyd McHam for alleged
shortcomings and mistakes, and a second such notice to
Crews on August 15 for an alleged mistake . Additionally,
on August 8, 1975, Respondent imposed on McHam a
requirement to submit a doctor's certificate for an absence
of I day, and similarly on August 14, required Crews to
submit a doctor's certificate for 1-day absence.
It was stipulated that Respondent had not previously
imposed written warnings or other more serious disciplin-
ary actions upon unit employees because of errors or
mistakes in performance of job duties; and the evidence
(reviewed herein) established that Respondent had no rule
requiring production of a doctor's certificate for 1-day sick
absence, prior to imposing the requirement on employees
McHam and Crews.
General Counsel contends that the five postelection
actions by Respondent against employees Crews and
McHam were discriminatory, and in the nature of pretext,
because of the known or suspected union activities of the
two employees, to discourage further union activity or
support.
1. The claimed 1-day sick rule
Branch Manager Alampi claimed that, no later than the
beginning of 1975, Warehouse Supervisor Elliott Davis
imposed a requirement (unwritten) that warehouse employ-
ees must submit a doctor's certificate or slip for any
absence for alleged sickness of even 1 day. He also asserted
that this has been Respondent's policy uniformly enforced
since then, and that he was not aware of any occasions
when warehouse employees have not submitted a doctor's
slip for sick absence of I day.
Operations Manager Reese claimed that the rule requir-
ing warehouse employees to submit a doctor's slip for sick
absence of even 1 day was imposed by Warehouse
Supervisor Davis in the third quarter of 1974 and-that this
was Respondent's policy since then. Contradicting himself,
he further testified that about August 8, 1975, when
McHam called in sick he consulted Personnel Director
Gobert about imposing a 1-day rule for submission of
doctor's slips, because he was operating under the require-
ment to get Gobert's permission for changes in personnel
rules, and with Gobert's approval, decided to institute a 1-
day rule. Reese said he then telephoned employee McHam
and told him he had to bring in a doctor's certificate (which
McHam testified was a new requirement as far as he knew).
On August 14, Reese told employee Crews, who called in
sick, that she had to produce a doctor's certificate, and it
was not until then that he, Reese, told Warehouse Supervi-
sor Molton to talk to the employees and tell them there was
a 1-day rule for doctor's slips. Reese added that he didn't
know whether Molton had so notified all of the employ-
ees.10 Both employees McHam and Crews brought in
doctors' certificates, though Crews protested to Reese this
was a novel requirement.
Former Warehouse Supervisor Elliott Davis testified that
he never promulgated a rule requiring, and never required,
a doctor's certificate or slip for an illness absence of 1 day,
and that there was no such rule in effect when he became
warehouse supervisor in early 1974 or at any time during
his incumbency (which ended in March 1975). He further
testified that, in November 1974, he held a meeting of the
warehouse employees and announced that henceforth if
any employee was off for 3 consecutive days or more for
alleged illness the employee would have to produce a
doctor's certificate to support the claim. Davis testified that
he notified Operations Manager Reese after the meeting
that he had imposed this 3-or-more-days' rule. The only
related rule that he inherited when he became supervisor,
said Davis, was that an absent employee should telephone
in the fact of his absence.
Supervisor Davis went through the sheaf of doctors'
certificates that Respondent produced from its Cleveland
files, and demonstrated, without contradiction, that they
concerned absences of employees absent for 3 days or
more.11
I find that Alampi , Reese, and Molton were less than
truthful in their pretense' that Respondent had a rule
requiring a doctor's certificate or slip of an employee for I
day's illness, allegedly promulgated by former Warehouse
Supervisor Davis and allegedly in effect at the Cleveland
warehouse in 1975 prior to requiring such certificates from
employees McHam and Crews in August 1975. There was
no such prior rule and, if Respondent had such a rule at the
Cleveland warehouse, it came after the doctors' certificates
were required individually of employees McHam and
Crews in August 1975.
10 Molton testified that her predecessor Warehouse Supervisor Davis had that she mentioned to warehouse employees that they were to bring in
imposed a 1-day rule, and that it was in effect prior to the July 25, 1975, doctor's certificates for illness of 1 day or more.
election ; but that during her incumbency as warehouse supervisor (which 11 One certificate, for former employee Dozier , involved an employee
began sometime in June 1975 ) it was not until August 1975 after employees fired for not telling the truth about his absence , but accepted nevertheless,
McHam and Crews had been told by Reese to bung in doctor 's certificates said Davis, to pay Dozier off in terminating him.
1002 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. The disciplinary warnings
Operations Manager Reese gave employee Crews a
disciplinary warning notice on August 1, 1975, for three
alleged shipping errors in July (Resp . Exh. 3 , more fully
documented in G.C. Exh. 14). Although the notice purports
to attribute a "rash" of errors to Crews, Reese conceded
that it was not a matter of numbers for Crews (or that the
numbers in July were unusual for the warehouse compared
to other months), but that the nature of the errors caused
him to issue the disciplinary warning notice , a measure not
hitherto employed by Respondent in dealing with employee
work errors . On July 8, in a shipment to Grant Hospital
where the order called for 36 bottles of a product, the
hospital claimed it received only 2 bottles and was 34
bottles short . Reese became aware of the alleged shortage
on July 10 but did not call it to the attention of Crews,
whose initials appeared on the shipping bill as the packer
(although Reese claimed he called the matter to the
attention of Warehouse Supervisor Molton). On the make-
up order of July 29, calling for 34 bottles, the hospital
claimed to have received only 32 bottles, still short 2
bottles . Crews' initials were on the shipping bill as the
packer. Again, Reese did not call the matter to Crews'
attention . On July 30 , an order, which called for sending the
items to the "hold" bin of the warehouse, rather than
immediately shipping to the customer, was sent to the
customer. Crews' initials were on the shipping bill. Again,
Reese did not call the matter to Crews' attention.
Instead, said Operations Manager Reese , he drew up the
disciplinary warning notice, showed it to Warehouse
Supervisor Molton, then called in employee Crews and
gave her the written warning . Reese said the purpose of the
disciplinary warning was to correct the problem, and he
was satisfied that the problem had been solved by a definite
improvement . Notwithstanding his interest in correcting
the problem, Reese admitted that he made no effort to
ascertain , or discuss with , or warn , the picker or pickers on
the two Grant Hospital shipping bills, who were initially
responsible for providing the packer with the correct
amount and kind of materials and charged with the duty of
having a correction in billing made before it reached the
packer if there was a shortage . It turned out that the picker
or pickers had not initialled the shipping bills, as required,
and no effort was made by Reese to correct this shortcom-
ing. As Reese testified, only two persons, employee Bartu-
nek and Warehouse Supervisor Molton , were doing the
picking at that time.
On August 15, 1975, Operations Manager Reese issued a
second disciplinary warning notice to employee Crews
(Resp. Exh. 4), allegedly for turning a package over to
United Parcel Service for delivery without a shipping label
and the packing slip affixed to the package. This kind of
error, said Reese , was a new experience for him;12 and
Crews had never been charged with such an error before.
Nevertheless without discussion or warning beforehand, or
showing the package to Crews, Reese issued the disciplin-
ary notice to Crews, whom he determined to be responsible.
12 A rather strange claim , since he had issued a disciplinary warning to
employee McHam on August I (Resp. Exh. 2 , discussed infra) allegedly for,
among other things, failing to affix labels to packages.
13 Former Warehouse Supervisor Davis testified that he had initiated a
She protested being charged with the fault on the ground
that the label and packing slip, which were part of the
shipping bill she received for packing, routinely to be torn
off and affixed to the package by the packer, were torn off
the bill and were not on her desk, and had to have been
affixed when the package left her. Crews refused to sign the
disciplinary notice. Reese testified that a similar error has
not happened since then.
On August 1, 1975, the same day employee Crews
received her first disciplinary warning, Manager Reese gave
employee McHam a written disciplinary warning (Resp.
Exh. 1, and see Resp. Exh. 2 for backup documents) based,
said Reese, on reports to him from Warehouse Supervisor
Molton. From the attachments to Respondent's Exhibit 2,
McHam's shortcomings appear to have manifested them-
selves in the period July 18 to August 1, 1975, and,
according to Reese, there was no repetition thereafter.
McHam testified that he was told by Reese that if any of
the things he was called in for happened again he would be
fired. McHam quit his job 3 weeks later, on August 22,
1975.
According to Warehouse Supervisor Molton employee
McHam was charged with failing to place address labels on
packages for shipping, that he did this three times, and the
shipments were all returned in less than I week. On being
confronted with her memoranda, she admitted there were
two returns, one on July 18 and one on July 31, and if there
was a third instance it had to be prior to July 18 and she did
not write it up. McHam testified that when he worked in the
receiving department, prior to his working as a packer, it
was not uncommon to receive back from the carriers
packages without labels, and he was not aware of repri-
mands to employees for such (as was the established fact);
and that as a packer no one spoke to or warned him on the
subject until the written reprimand of August 1.
According to Warehouse Supervisor Molton, employee
McHam was charged with leaving his work station 10
minutes before his morning breaktime on August 1, 1975
(see Resp. Exh. 2), without letting her know his wherea-
bouts, she added orally. McHam testified that on that
occasion he had gone to help Chris Mayer in the receiving
department and that he did so under the practice estab-
lished by former Warehouse Supervisor Davis, and not
revoked, of helping elsewhere when finished with a job
without requesting permission.13 Employee McHam testi-
fied that he told this to Operations Manager Reese when he
was handed the reprimand that same day, and Reese told
him that in the future he was to notify his supervisor
whenever he left his station to help another. Reese claimed
that this was a policy in effect since the time Elliott Davis
was warehouse supervisor , but again, as in the case of the
alleged 1-day sick rule, Reese was authoritatively contra-
dicted by the author of the rule on what the actual rule was,
see footnote 13, supra.
On redirect testimony, Warehouse Supervisor Molton
claimed that employee McHam had gone out of the
building to the lunch truck. Employee McHam admitted
cross-training program to reduce idle time , and had instructed the warehouse
employees that whenever an employee finished a job he was to go to another
area to help out without applying to him for permission.
CURTIN MATHESON SCIENTIFIC, INC.
there were times (but not on August 1) when he as well as
others in the warehouse, including Molton, would go out of
the building to the street at or about morning breaktime to
catch the lunch or break truck that came by and stayed for
only a few minutes each morning. No one stopped to ask
permission, he said. As employee Crews noted, if the
employees didn't catch the truck they had no food or drink
for their breaktime. McHam testified that on occasion
(warehouse supervisor) Molton got to the truck before he
did.
Former Warehouse Supervisor Davis testified, without
contradiction, that the matter of employees running to
catch the lunch truck was a general habit of the employees
that existed throughout his incumbency, that there were
excesses at times, that Operations Manager Reese called
these to his attention noting that (then employee) Molton
was a chief offender, and that he, Davis, verbally repri-
manded (employees) Molton and Zarara for taking exces-
sive time breaks. Molton conceded that since she became
warehouse supervisor other employees have left their
stations (on nonbreaktime) without notifying her, but
McHam was the only employee she wrote up for doing so.
Warehouse Supervisor Molton provided no other testi-
mony to support the notations of charges in the disciplinary
warning to employee McHam of August 1 (such as
undependable, inaccurate, loafing, or loss of business) and
there was nothing but her reports, as Operations Manager
Reese admitted, to sustain the reprimand.
F. Section 8(a)(1) and (3) Findings
1. Preelection
Respondent conducted a campaign designed to convince
the Cleveland warehouse employees that their selection of
the Union as their bargaining agent would be futile and
would result in reduced benefits and loss of jobs. Moreover,
though purporting to state the interaction of employer,
employees, and union in terms of legal rights, Respondent
did so only partially and not correctly. In my view,
Respondent overstepped the bounds of lawful persuasion.
Respondent's telling the warehouse employees that if
they brought the Union in they would not be eligible for
(or, even as Respondent claimed it was said, automatically
included in) the newly established and existing profit-
sharing pension plan was a clear threat that by voting the
Union in the employees would deprive themselves of an
existing, valuable benefit.
The threat of deprivation was not saved by the suggestion
that maybe the Union could, or maybe it couldn't, get the
profit-sharing pension benefit restored by asking and
negotiating for it. Indeed, the suggestion was made in the
context of further telling the employees that with regard to
benefits generally, if the employees went union, they could
end up with less benefits, and it was not illegal if they got
less benefits. The implication was clear that Respondent
would offer less benefits than the employees had because
14 1 do not regard Respondent 's distribution to the employees of the
pamphlet quoting from the Midwestern Instruments case as a violation of the
Act. See N L. R.B. v. Tamper, Inc., 522 F.2d 781 (C.A. 4, 1975), reversing in
part 207 NLRB 907, and holding that distribution of the pamphlet was not a
per se violation . However , as Personnel Director Gobert said , the pamphlet
1003
the Union was representing the employees, and if the
employees ended up with less benefits it would be because
they had voted a union in to represent them.14 While less
direct than the threat to deprive the employees of their
profit-sharing pension rights, the threat was nevertheless
evident that the warehouse employees would receive less
benefits generally if they voted the Union in. By these
threats, Respondent violated Section 8(axl) of the Act.
Surprenant Manufacturing Co. v. N.LR.B., 341 F.2d 756,
761 (C.A. 6, 1965); Hendrix Manufacturing Company, Inc.,
321 F.2d 100, 104, 105 (C.A. 5, 1963).
Respondent told the employees if they voted a union in,
the Union would have to accept what Respondent offered
or take the employees on strike. This was not descriptive of
the duty of the employer (and union) to bargain in good
faith, rather it suggested the opposite, an employer's fixed
take-it-or-leave-it offer, which would be an unfair labor
practice. See, for example, McCann Steel Co., 190 NLRB 12
(1971), enfd. N.LRB. v. McCann Steel Company, Inc., 80
LRRM 2651 (C.A. 6, 1972).
If the Union then struck, Respondent told the employees,
it could permanently replace them or close the branch
altogether. If this were an unfair labor practice strike (as it
might be from Respondent's description of how it would
come about), it would be illegal for Respondent to
permanently replace the striking employees, Mastro Plastics
Corp., and French American Reeds Mfg. Co., Inc. v.
N.LRB., 350 U.S. 270, 278 (1956). A strike may be an
unfair labor practice strike notwithstanding it also has
economic objectives, and the unfair labor practice strikers
must be rehired on demand even though there were other
causes of the strike, NLRB. v. Fitzgerald Mills Corpora-
tion, 313 F.2d 260, 269 (C.A. 2, 1963), cert. denied 375 U.S.
834 (1963). Even if the strike were wholly an economic
strike, the right of the employer to permanently replace the
strikers is a qualified right. Under The Laidlaw Corporation,
171 NLRB 1366 (1968), and related Supreme Court cases,
when the economic strike ends the strikers, if they signify
their intent to return, are entitled to reinstatement or
reemployment as vacancies occur, absent substantial busi-
ness justifications which the employer has the burden of
showing. Respondent not only failed to explain but
misstated the relative rights of the employer and employees,
in violation of Section 8(a)(1). Dayton Food Fair Stores, Inc.
v. N.LRB., 399 F.2d 153, 154-155 (C.A. 6, 1968); Hicks-
Ponder Co., a Division of Blue Bell, Inc., 186 NLRB 712, 725
(1970), affd . in relevant part, N.L.R.B. v. Hicks-Ponder Co.,
a Division of Blue Bell, Inc., 458 F.2d 19,20 (C.A. 5, 1972).
As recently said of this kind of statement or misstatement in
N.L.R.B. v. Four Winds Industries, Inc., 530 F.2d 75, 78
(C.A. 9, 1976), "[I ]t is a thinly veiled threat from the
employer that voting in the Union would inevitably result
in ultimate job loss for its supporters ... a violation of
Section 8(a)(1) of the Act."
Equally, it was a violation of Section 8(axl) of the Act for
Respondent to threaten to close down the branch altogeth-
er if the Union the employees voted in did not accept
was background , in the context of which he made the point that Respondent
would deal more harshly with the Umon than with the unrepresented
employees , and the employees would end up with less benefits if they
brought in the Umon.
1004 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent's take-it-or-leave-it offer of a contract and took
the employees out on strike . An employer may not threaten
its employees with closure of the plant to avoid bargaining
in good faith with their union representative . Even were the
strike an economic strike , rather than an unfair labor
practice strike , the "employer's economic predictions must
be `carefully phrased on the basis of objective fact to
convey [a] belief as to demonstrably probable consequenc-
es beyond his control . . . . If there is any implication that
an employer may or may not take action solely on his own
initiative for reasons unrelated to economic necessities and
known only to him, the statement is no longer a reasonable
prediction based on available facts but a threat of retalia-
tion based on misrepresentation and coercion.... "
N.LR.B. v. Kaiser Agricultural Chemicals, a Division of
Kaiser Aluminum & Chemical Corporation, 473 F.2d 374,
381 (C.A. 5, 1973), quoting from N.LRB. v. Gissel Packing
Co., 395 U.S. 575, 618-619 (1969).
Here , there was no indication or even pretense that
Respondent's statement respecting closure of the branch
was related to any economic necessities .15 As in Kaiser,
supra, it was "part of a campaign to dissipate the union
majority. Rather than expressing predictions of demonstra-
ble economic consequences . . . [Respondent ] cited a
litany of horrors, including strikes, plant closings, and loss
of benefits, that would result if the employees chose the
union as their bargaining representative . The employees
could reasonably have inferred that these events would
result not from the inevitable forces of the market , but from
the deliberate acts of the company taken in reprisal ." Kaiser
Agricultural Chemicals, supra, 473 F.2d at 381.16
The inquiry, in their personal discussion, by Respon-
dent's Personnel Director Gobert of employee Crews, as to
why she wanted the Union, was coercive interrogation in
violation of Section 8(axl) of the Act, particularly in view
of his position in the company, his openly expressed
hostility to the Union, and the absence of any obvious or
explained legitimate purpose for the inquiry. Such inquiries
are judged by their tendency to be coercive not whether
they were in fact coercive. N.LRB. v. Varo, Inc., 425 F.2d
293,298 (C.A. 5, 1970).
Viewed in its totality , Respondent 's preelection conduct
was aimed at making the employees realize the futility of
electing the Union as bargaining agent and instilling the
fear of reprisal for supporting the Union, in violation of
Section 8(a)(l) of the Act. Kaiser, supra, 473 F.2d at 380-
381; Textron, Inc. (Talon Division), 199 NLRB 131, 133-135
(1972).
15 Personnel Director Gobert underscored what he had told all of the
employees in the general meeting in his personal meeting thereafter with
employee Crews, when he told her it would be easy to close the branch down,
that he had kept the Union out of other branches of the company and was
planning to keep the Union out of the Cleveland branch.
16 The threat of closing was not ameliorated ,by the indication that
Respondent would try to keep from closing down completely if possible, or
that Respondent had the further option to accede to the Union demands.
11 The warehouse unit, composing seven employees , and a maximum of
nine employees at the time of the election and early August, when the
discriminatory actions were taken, was a very small plant, see Don Swart
Trucking Co., Inc, 154 NLRB 1345, fn, 2 (1965). Employee Gwen Molton
was one of the five employees who comprised the group of union card
signers, and thereafter became warehouse supervisor and spokesman for
2. Postelection
Respondent gave manifest effect to its threatened repri-
sal, immediately following the election, by issuing discrimi-
natory disciplinary warnings to, and making discriminatory
requirement of doctor 's certificates for I day illness from,
employees Crews and McHam in violation of Section
8(aX3) and (1) of the Act.
Employee Crews was the leading union activist among
the warehouse employees and Respondent was admittedly
aware of it. Employee McHam was a union card signer and
while there is no direct evidence that Respondent knew of
his union sympathies it is reasonable to infer from the
circumstances that Respondent knew or believed or sus-
pected that he was a union sympathizer.17
Given Respondent's antiunion hostility and the timing of
the five actions against employees Crews and McHam, the
absence of any previous history of the use of written
disciplinary warnings or more serious action for shipping
errors, or of any prior rule or practice requiring doctor's
certificates for 1 day illness, and the absence of any prior
warnings before issuing the disciplinary actions to or
requiring the doctor's certificates of Crews and McHam,
indicate the discriminatory nature of Respondent's actions.
The pretextual nature of Respondent's reasons for the
disciplinary warnings of August 1 is revealed, in the case of
employee packer Crews by failing to investigate let alone
correct the failure of responsibility shared by the pickers,
and in the case of employee McHam by exaggerating the
reasons for the disciplinary action. That written reprimands
discriminatorily and pretextually motivated constitute
violations of Section 8(a)(3) and (1) of the Act. See Tamper,
Inc., supra, 207 NLRB 907, 934 (1973), aft in relevant part
in N.LRB. v. Tamper, Inc., 522 F.2d 781 (C.A. 4, 1975).
The discriminatory requirement of the doctor's certificates
made only of the same two employees at about the same
time as the discriminatory reprimands were likewise viola-
tions of Section 8(a)(3) and (1) of the Act.
G. Setting Aside Election
The Union's unresolved objections in the representation
case to the conduct of the election were encompassed by
the Section 8(a)(1) preelection allegations of the unfair
labor practice case . The commission of these unfair labor
practices has been established, and a fortiori the Union's
objections to the conduct of the election have been
established. These substantial 8(a)(l) violations interfered
with the free choice of the unit of warehouse employees in
the July 25, 1975, election, and therefore destroyed the
management in the warehouse , see discussion under heading sec. 11 , A, supra
She was consulted on issuance of the disciplinary warnings of August 1.
Discriminatory action , motivated by the employer's belief or suspicion
that an employee engaged in union activities , violates the Act, NLR.B. v.
Clinton Packing Co., Inc., 468 F.2d 953,955 (C.A. 8,1972); and the fact that
there may have been others in this category , or even known activists, who
were not similarly discriminated against , is no defense to the violation of the
Act. Rust Engineering Company and Sheet Metal Workers International
Association, Local 51 v. N.LR.B., 445 F.2d 172, 174 (C.A. 6,197 1). Moreover,
when Respondent reacted to union activity with discriminatory actions that
affected both employees known to be sympathetic to the Union and
employees whose sympathies were possibly unknown , it discouraged union
activities of all of the employees . L B. Foster Company, 192 NLRB 319
(1971).
CURTIN MATHESON SCIENTIFIC, INC. 1005
"laboratory conditions" (Neuhoff Brothers Packers, Inc. v.
N.LR.B., 362 F .2d 611, 613 (C.A. 5, 1966)) desirable for the
conduct of a Board election . Accordingly, the results of the
July 25, 1975, election must be set aside.
H. Section 8(a)(5) Finding, Bargaining Order
The question arises whether a rerun election would be an
adequate remedy, or would appear to be a futile act that
would permit Respondent to benefit by its misconduct both
before and after the election, requiring instead the remedy
of a bargaining order under the principles enunciated in
N.L.R.B. v. Gissel Packing Company, Inc., 395 U.S. 575
(1969).
In Gissel the Supreme Court recognized two categories of
unfair practices committed by an employer where a
bargaining order would be the more appropriate remedy.
The first category involves "outrageous and pervasive"
unfair labor practices, the coercive effects of which cannot
be eliminated by application of traditional remedies, with
the result that a fair and reliable election or rerun election
cannot be had. In such cases, the Board may issue a
bargaining order without inquiring whether the union
possessed a card majority. See Gissel, supra, 395 U.S. at
613-614.
The second category involves "less pervasive" unfair
labor practices which nonetheless still have the tendency to
undermine majority strength and impede the election
processes. In this situation the Board may issue a bargain-
ing order if the union had at one point a valid majority and
the Board finds that the possibility of erasing the effects of
the unfair labor practices and of ensuring a fair election of
rerun election by the use of traditional remedies, though
present, is slight, and that employee sentiment once
expressed through cards would, on balance, be better
protected by a bargaining order. See Gissel, supra, 395 U.S.
at 614-615.
In the case at bar, upon becoming aware that the Union
had begun organizing and was requesting representative
status , Respondent engaged in a campaign designed to
thwart the organizing and destroy any majority the Union
may have succeeded in obtaining. At the time of the
Union's request for recognition (or an election) and
Respondent's refusal of recognition in the first week in June
1975, the Union had a valid card majority of five employees
out of a unit of seven employees comprising the warehouse
employees of Respondent's Cleveland branch. In the
context of antiunion hostility at "captive audience" em-
ployee meetings in the preelection period that followed,
Respondent threatened that if the employees brought the
Union into the warehouse, they faced loss of existing profit-
sharing pension benefits and loss or reduction of benefits
generally, the necessity to strike if they would not accept
Respondent's offer of lesser benefits or terms of employ-
ment than currently enjoyed, and a resultant loss of jobs or
closing of the Cleveland branch altogether. In total,
Respondent sought to impress on the employees the futility
18 In addition , the very small size of the bargaining unit would contribute
further to reducing any slight possibility of erasing the effects of both the
preelection and postelection unfair labor practices by traditional methods,
for, "In a plant so small the alienation of the loyalties of even a single
prounion employee could affect the result of the election." Consolidated
of voting the Union in, and that there would be harsher
dealing and reprisal if they did. These were egregious unfair
labor practices, which, together with coercive interrogation
of an employee and reiteration of the previous threats in a
private meeting, had the tendency to undermine, and
undermined, the Union's majority strength in the election
of July 25, 1975, and prevented the holding of a fair
election.
By refusing to recognize and bargain with the Union, as
requested in early June 1975, and instead engaging in this
course of unlawful conduct which undermined the Union's
majority status and prevented the holding of a fair election,
Respondent also violated Section 8(a)(5) of the Act.
Trading Port, Inc., 219 NLRB 298 (1975).
If there was a slight possibility of erasing the effects of the
pre-July 25, 1975, unfair labor practices and of ensuring a
fair rerun election with use of traditional remedies , Respon-
dent for all practical purposes eliminated the possibility
after the election by committing further unfair labor
practices against two of the unit employees, including the
leading union activist among them, constituting acts of
discrimination and reprisal for their known or suspected
union activities and to discourage support of the Union by
the unit employees.18
Under the circumstances of this case, the sentiment of the
unit employees expressed through the union authorization
cards is a more reliable measure of their desires on the issue
of representation than the election held July 25, 1975. To
remedy Respondent's unfair labor practices, including its
Section 8(ax5) refusal to bargain, a bargaining order is
necessary, whether the violations be viewed as category one
unfair labor practices under Gissel, see Ludwig Fish &
Produce, Inc., 220 NLRB 1086, (1975), or as category two
unfair labor practices under Gissel, see Kaiser Agricultural
Chemicals etc., supra, 473 F.2d at 382-383; Felsa Knitting
Mills, Inc., supra, 208 NLRB at 509. The bargaining order
will be issued as of July 8, 1975, the date Respondent
clearly embarked on its course of unlawful conduct,
Bookland, Inc., 221 NLRB 35 (1975); Trading Port, Inc.,
supra.
CONCLUSIONS OF LAW
1. By threats to its Cleveland branch warehouse em-
ployees prior to the representation election of July 25, 1975,
that if they voted in the Union as their representative they
would lose their existing profit-sharing pension rights,
receive less benefits generally, have to accept Respondent's
offer of lesser benefits and terms of employment or strike
with resulting loss of jobs or closure of the branch, by
coercive interrogation, and in total by impressing the
employees with the futility of bringing in a union and
threatening harsher dealing and reprisal if they brought the
Union in, Respondent engaged in unfair labor practices in
violation of Section 8(axl) of the Act.
2. Immediately after the election, by issuing discrimina-
tory, disciplinary warnings to two employees and making
Rendering Co., d/b/a Burlington Rendering Company, 161 NLRB 1, 17 (1966),
affirmed N.LR B. v. Consolidated Rendering Co, d/b/a Burlington Rendering
Company, 386 F.2d 688 (C.A. 2, 1967); and see like finding in Felsa Knitting
Mills, Inc, 208 NLRB 504, 509(1974), involving a unit ofapproximately six
employees.
1006 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
special discriminatory requirement that they produce
doctor's certificates for I day absence for illness, because of
the employees' known or suspected union activities and to
discourage union support, Respondent engaged in unfair
labor practices in violation of Section 8(aX3) and (1) of the
Act.
3. Prior to commission of the unfair labor practices
enumerated in paragraph 1, above, the Union represented a
majority of the employees in an appropriate unit. Respon-
dent's misconduct undermined that majority and made
impossible the holding of a fair representation election, so
that Respondent's refusal to bargain with the Union since
July 8, 1975, when it embarked on this course of miscon-
duct, constituted an unfair labor practice in violation of
Section 8(aX5) of the Act.
4. The described unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent's preelection unfair labor practices nulli-
fied the results of the July 25, 1975, representation election,
and Respondent's preelection and postelection unfair labor
practices cannot be corrected by conventional remedies
including a rerun election. Accordingly, it is appropriate
and necessary that Respondent be ordered to bargain with
the Union, as of July 8, 1975, when it first embarked on its
course of misconduct to undermine the union majority and
prevent the holding of a fair election.
THE RIM EDY
It will be recommended that Respondent : (1) cease and
desist from its unfair labor practices ; (2) expunge from its
records any reference to the written disciplinary warnings
discriminatorily issued to employees Sandra Crews and
Lloyd McHam in August 1975, and rescind the discrimina-
tory requirement for submission of a doctor's certificate for
illness absence of 1 day imposed in August 1975 upon
employees Crews and McHam ; (3) bargain with the Union,
upon its request ; and (4) post the notices provided for
herein.
Because the Respondent by its conduct violated funda-
mental employee rights guaranteed by Section 7 of the Act,
and because there appears from the manner of the
commission of this conduct an attitude of opposition to the
purposes of the Act and a proclivity to commit other unfair
labor practices, it will be recommended that Respondent
cease and desist from in any manner infringing upon the
rights guaranteed by Section 7 of the Act. N.LRB. v.
Entwistle Mfg. Co., 120 F.2d 532, 536 (C.A. 4, 1941);
N.LR.B. v. The Bama Company, 353 F.2d 320, 323-324
(C.A. 5, 1965); P. R Mallory & Co., Inc., v. N.LRB., 400
F.2d 956, 959-960 (C.A. 7, 1968), cert. denied 394 U.S. 918
(1969).
Upon the foregoing findings of fact, conclusions of law,
and the entire record , and pursuant to Section 10(c) of the
Act, there is hereby issued the following recommended:
19 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions, recommendations , and Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations , be adopted by the Board and become
ORDER 19
The Respondent, Curtin Matheson Scientific, Inc., Cuya-
hoga Heights, Ohio, its officers, agents, successors, and
assigns, shall:
1. Cease and desist from:
(a) Threatening employees with loss of profit-sharing
pension rights and that they will receive lesser benefits
generally if th e Union comes into the warehouse.
(b) Threatening employees that if the Union comes in
they must strike if they will not accept Respondent's offer
of lesser benefits and terms of employment, and if they
strike they will lose their jobs or the Cleveland branch will
be closed altogether.
(c) Coercively interrogating employees concerning their
union sympathies.
(d) Creating the impression of the futility of the employ-
ees' bringing in the Union and threatening them with
harsher dealing and reprisal if the Union is brought in.
(e) Issuing discriminatory disciplinary warnings to em-
ployees because of their known or suspected union activi-
ties or to discourage employee support of the Union.
(f) Discriminatorily requiring a doctor's certificate for I-
day absence for illness of an employee because of his or her
known or suspected union activities or to discourage
employee support of the Union.
(g) Discouraging employees from support of or member-
ship in the Union by any other discrimination affecting
their tenure and conditions of employment.
(h) Upon request, refusing to bargain with the Union as
the collective-bargaining representative of Respondent's
unit of warehouse employees at the Cleveland branch.
(i) In any other manner interfering with, restraining, or
coercing employees in the exercise of their rights guaran-
teed under Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, as of July 8, 1975, bargain collectively
(as that term is used in Section 8(d) of the Act) with the
Union as the collective-bargaining representative of the
unit of warehouse employees at Respondent's Cleveland,
Ohio, branch, comprising all warehouse employees and
shipping and receiving employees, excluding all office
clerical employees, guards, and supervisors as defined in
the Act.
(b) Expunge from Respondent's records any reference to
the written disciplinary warnings discriminatorily issued to
employees Sandra Crews and Lloyd McHam in August
1975.
(c) Rescind the discriminatory requirement for submis-
sion of a doctor's certificate for absence for illness of 1 day
imposed in August 1975 upon employees Sandra Crews and
Lloyd McHam.
(d) Post in its warehouse and offices in the Cleveland,
Ohio, branch, copies of the attached notice marked
"Appendix." 20 Immediately upon receipt of copies of said
notice, on forms to be provided by the Regional Director
for Region 8 (Cleveland, Ohio), Respondent shall cause the
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
20 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
CURTIN MATHESON SCIENTIFIC, INC.
copies to be signed by one of its authorized representatives
and posted, the posted copies to be maintained for a period
of 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are custom-
arily posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered, defaced, or
covered by any other material.
1007
(e) Notify the Regional Director for Region 8, in writing,
within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER ORDERED that the results of the representa-
tion election of July 25, 1975, in Case 8-RC-9949, are set
aside.
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."