Fisher-Haynes Corporation of Georgia

National Labor Relations Board - Board Decisions

Jul 26, 1982

262 N.L.R.B. 1274 (N.L.R.B. 1982)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Fisher-Haynes Corporation of Georgia and Truck
Drivers and Helpers Local Union No. 728
Fisher-Haynes Corp. and Teamsters Local Union
No. 728, affiliated with the International Broth-
erhood of Teamsters, Chauffeurs, Warehouse-
men and Helpers of America, Independent, Peti-
tioner. Cases 10-CA-15975 and 10-RC-12101
July 26, 1982
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS FANNING, JENKINS, AND
ZIMMERMAN
On May 26, 1981, Administrative Law Judge
Richard J. Linton issued the attached Decision in
this proceeding. Thereafter, both the General
Counsel and Respondent filed exceptions and sup-
porting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge only to the extent consistent herewith and to
adopt his recommended Order, as modified herein.
We agree with the Administrative Law Judge
that Respondent violated Section 8(a)(1) of the Act
by engaging in the following conduct: (1) Supervi-
sor Glenn Vicent's coercive interrogation of em-
ployee Nicely Adams; (2) Vicent's separate threats
of plant closure to Adams and employee LuAnne
Glover; and (3) Plant Manager Richard Miller's
promise that he would promote Adams and give
her a pay raise if she refrained from supporting the
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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect. Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
2 Member Jenkins adopts the Administrative Law Judge's finding that
Respondent did not violate the Act when its vice president and general
manager, Edwin Anderson, expressed shock and disappointment to em-
ployee groups after receiving a telegram which advised him that employ-
ees were involved in union activities. In reaching this conclusion,
Member Jenkins finds that the Administrative Law Judge's reference to
Wilker Bros. Co., Inc., 236 NLRB 1371 (1978), is inapposite here. In that
case the employer received a telegram from the union listing the names
of several employees who were members of the union's in-plant organiz-
ing committee. Then, a few days after the telegram was posted in the
plant, three employees on the list were approached separately by their
supervisors who expressed shock or surprise that the employee's name
had appeared on the list. Anderson's expression of shock and disappoint-
ment here, by contrast, was not directed at any specific employee. Thus,
his remarks constituted nothing more than an innocuous reaction to the
Union's telegram and did not reasonably tend to interfere with employee
rights as did the supervisors' remarks in Wilker Bros
262 NLRB No. 155
Union. The General Counsel has excepted to the
Administrative Law Judge's failure to find addi-
tional 8(a)(1) violations. For the reasons set forth
below, we find merit in certain of these exceptions.
1. On two occasions in March 1980,3 Respond-
ent's vice president and general manager, Edwin
Anderson, denied requests by production and main-
tenance employees for a wage increase because of
economic conditions. Anderson said that he would
discuss this matter with corporate headquarters and
asked the employees to allow him 30 days in which
to do so. Thereafter, on April 7, the Union in-
formed Respondent that its employees were en-
gaged in organizational activities. Later that same
day, Anderson convened a meeting of all employ-
ees and announced that Respondent was giving
them a 25-cent wage increase.
In dismissing this 8(a)(1) allegation, the Adminis-
trative Law Judge found that here Respondent had
overcome the presumption that a wage increase is
unlawful when granted during a union organizing
campaign. The Administrative Law Judge relied
on evidence that the raise was granted about 3
weeks after Anderson asked employees for 30 days
in which to consult with corporate headquarters
concerning the employees' pay raise request. Thus,
he concluded that the General Counsel had failed
to establish that Respondent would not have given
the pay raise in the absence of union activities.
Contrary to the Administrative Law Judge, we
agree with the General Counsel that Respondent
had the burden of disassociating the announcement
of the wage increase from the organizing cam-
paign. The Board has held that, where, as here, the
timing of changes in terms and conditions of em-
ployment occurs shortly before an election, absent
an affirmative showing of some legitimate business
reason for the timing it will infer improper motiva-
tion and interference with employee freedom of
choice.4 Respondent has presented no evidence to
establish that the timing of the announcement was
in response to the employees' prior request for a
pay raise. Thus, it is apparent to us that Respond-
ent's action, coming so quickly after it learned of
the employees' interest in union representation, was
calculated to quell dissatisfaction emerging from
the grievance over wage which had prompted the
employees to seek union representation in the first
place. In these circumstances, we conclude that
Respondent violated Section 8(a)(1) of the Act by
granting employees the wage increase of April 7.
2. The Administrative Law Judge also found
that Plant Manager Miller told a group of employ-
3 All dates are in 1980 unless otherwise indicated.
4See The May Depaurrnent Storer Company. 191 NLRB 928 (1971).
1274
FISHER-HAYNES CORP. OF GEORGIA
ees about 3 days before the election that Respond-
ent planned to expand its plant so that Miller could
move "his company" into the facility. Miller also
stated "that if a union came in, that he was not
going to bring his plant." The Administrative Law
Judge found these remarks lawful because he con-
cluded they did not have an adverse impact on em-
ployees' Section 7 rights.
We disagree with the Administrative Law Judge.
In our view, Miller's statement constitutes an un-
lawful threat of reprisal for the employees' involve-
ment in union activities. An expanded facility
would in all probability provide Respondent's em-
ployees with increased job security and greater op-
portunity for advancement. Miller, in effect, prom-
ised the employees a benefit in one breath and then
in another threatened to withdraw the benefit if
they selected the Union as their bargaining repre-
sentative. Accordingly, we find that Respondent
has further violated Section 8(a)(1) of the Act by
threatening to discontinue its plans for plant expan-
sion.
3. Additionally, the Administrative Law Judge
credited the testimony of employees Adams and
Mary Louise Thompson concerning another group
meeting conducted by Miller. In this regard,
Adams stated that in mid-June Miller told the em-
ployees that "he knew there were some problems
in the plant; but if we gave him a chance [he]
would straighten things out." Thompson testified
that Miller commented, apparently during that
same meeting, "that things were going to get better
and that the business was slow and just as soon as
be could get things kind of straightened out for us,
we would all be made happy; and he also said busi-
ness was slow, and he knew that we needed a raise,
but right then he couldn't get it, and that he would
try all he could to get us a raise for . .. whatever
benefits he could get, that he would try to get it
for us, that he was our shop manager .... " The
Administrative Law Judge concluded that Miller's
remarks were ambiguous and thus fall short of the
combination of "whatever you guys want, I can
get for you," coupled with the intention to
"straighten this whole thing out," and thus was not
an illegal promise of benefits such as the Board
held in Rexart Color & Chemical Co., Inc., 246
NLRB 240 (1979).
Contrary to the Administrative Law Judge, we
conclude that Miller's speech was not ambiguous,
but clearly conveyed an unlawful promise of future
benefits similar to the statements the Board found
unlawful in Rexart, supra.5 We found, supra, that
Member Zimmerman swould adopt the Administrative Law Judge's
conclusion that Miller's statements at the mid-June meetings were am-
biguous, and that they did not convey a promise of benefits in exchange
for the withholding of support from the Union. For the reasons stated by
Respondent engaged in unlawful conduct by grant-
ing the wage increase of April 7 immediately after
receiving notification of its employees' involvement
in union activities. By subsequently telling the em-
ployees about 2 weeks before the election that "if
they gave him a chance, he would straighten it out
. . . [that they] would all be made happy," Miller
was assuring them of even greater benefits than
those granted in April if they turned to him instead
of the Union. Accordingly, we find that Respond-
ent also violated Section 8(a)(1) of the Act when it
offered employees increased benefits and wages to
induce them to abandon their support for the
Union. 6
The Representation Proceeding
Since certain of Respondent's unfair labor prac-
tices also interfered with the election held in Case
10-RC-12101 on June 27, 1980,7 we adopt the Ad-
ministrative Law Judge's recommendation to sus-
tain the Union's Objections 3 and 5.8 The Adminis-
trative Law Judge further recommended, and we
agree, on the basis of these meritorious objections
that the June 27 election should be set aside and
that Case 10-RC-12101 be remanded to the Re-
gional Director for the purpose of holding a
second election. In reaching this conclusion, we
note that our additional 8(a)(l) findings, supra, con-
cerning Plant Manager Miller's threat to discontin-
ue plans for plant expansion and his unlawful
promise of benefits provide a further basis for sus-
taining the Union's Objections 3 and 5, respective-
ly. 9
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusion of Law
3:
"3. By interrogating employees concerning their
union activities; by threatening employees with re-
the Administrative Law Judge, he would dismiss the complaint allega-
tions in this regard.
6 See. e.g., C Markus Hardware, Inc.., 243 NLRB 903, 910 (1979): Fed-
eral Alarm, 230 NLRB 518, 527 (1977); Gould. Inc., 221 NLRB 899, 906
(1975).
7 The election was conducted pursuant to a Stipulation for Certifica-
tion Upon Consent Election. The corrected tally of ballots shows that, of
approximately 47 eligible voters, 14 cast ballots for, and 21 cast ballots
against, the Union; there were II challenged ballots and 2 void ballots.
On December 15, 1980, the Board issued an unpublished Decision in
which it adopted, inter alia, the Regional Director's recommendation that
the challenges to 8 of the II challenged ballots be sustained because the 8
voters challenged were no longer employed on the date of the election.
Thus, the three remaining challenged ballots were no longer determina-
tive of the election results.
8 We find it unnecessary to pass on, and we do not rely on, the Ad-
ministrative Law Judge's recommendation that the Union's Objection 4
be sustained.
9 For the reasons stated in fn. 5, above, Member Zimmerman would
not rely on the alleged promises of benefits to employee groups as a basis
for sustaining Objection 5.
1275
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
prisals, including plant closure and the discontinua-
tion of plans for plant expansion, if they selected
the Union as their bargaining representative; and
by granting employees wage increases and promis-
ing them increased benefits if they withdrew sup-
port from the Union, Respondent has violated Sec-
tion 8(a)(1) of the Act."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Fisher-Haynes Corporation of Georgia, Norcross,
Georgia, its officers, agents, successors, and as-
signs, shall take the action set forth in the said rec-
ommended Order, as so modified:
1. Substitute the following for paragraph l(c):
"(c) Granting employees wage increases and
promising them increased benefits, including pro-
motions with pay raises, if they refrain from join-
ing, supporting, or engaging in activities on behalf
of the Union."
2. Insert the following as paragraph l(d) and re-
letter present paragraph l(d) as l(e):
"(d) Threatening employees with reprisals, in-
cluding plant closure and the discontinuation of
plans for plant expansion, if they select the Union
as their bargaining representative."
3. Substitute the attached Appendix B for that of
the Administrative Law Judge.
IT IS FURTHER ORDERED that the election held
on June 27, 1980, in Case 10--RC-12101 be, and it
hereby is, set aside, and that Case 10-RC-12101 be,
and it hereby is, severed from Case 10-CA-15975
and remanded to the Regional Director for Region
10 for the purpose of conducting a new election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX B
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
Accordingly, we give you these assurances:
WE WILL NOT interrogate our employees
concerning their union membership, activities,
and desires.
WE WILL NOT threaten our employees with
plant closure if they bring Truck Drivers and
Helpers Local Union No. 728, affiliated with
the International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of
America, or any other labor organization, into
the plant.
WE WILL NOT grant our employees wage in-
creases or promise them increased benefits, in-
cluding promotions with pay raises, if they re-
frain from joining, supporting, or engaging in
activities on behalf of the Union.
WE WILL NOT threaten our employees with
reprisals, including plant closure and the dis-
continuation of plans for plant expansion, if
they select the Union as their bargaining repre-
sentative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employ-
ees in the exercise of their rights guaranteed
by Section 7 of the National Labor Relations
Act.
FISHER-HAYNES CORPORATION OF
GEORGIA
DECISION
STATEMENT OF THE CASE
RICHARD J. LINTON, Administrative Law Judge:
These consolidated cases were heard before me in Atlan-
ta, Georgia, on April 7, 1981, pursuant to a complaint,
dated August 6, 1980, issued by the General Counsel of
the National Labor Relations Board through the Acting
Regional Director for Region 10 of the Board in Case
10-CA-15975, and the August 11, 1980, order directing
issued by the Regional Director in Case 10-RC-12101.
The complaint is based upon a charge filed by Truck
Drivers and Helpers No. 728, affiliated with the Interna-
tional Brotherhood of Teamsters, Chauffeurs, Warehou-
semen and Helpers of America (herein called Local 728,
Union, or Petitioner) against Fisher-Haynes Corporation
of Georgia (herein called Respondent, Fisher-Haynes, or
Employer). In the complaint, the General Counsel al-
leges that Respondent has violated Section 8(aXl) of the
Act by interrogating and threatening employees, promis-
1276
FISHER-HAYNES CORP. OF GEORGIA
ing employees promotions and other economic benefits,
and announcing and granting a wage increase to its em-
ployees on April 7, 1980.1
By its answer, Respondent admits certain allegations,
but denies that it has violated the Act in any manner.
The petition in Case 10-RC-12101 was filed April 28,
1980, and pursuant to a Stipulation for Certification
Upon Consent Election duly approved, an election by
secret ballot was conducted on June 27, 1980, among the
employees in the stipulated appropriate unit to determine
the question concerning representation.2
Upon conclusion of the balloting, the parties were fur-
nished a corrected tally of ballots which shows that, of
approximately 47 eligible voters, 14 cast valid votes for,
and 21 cast valid votes against, Petitioner. There were 11
challenged ballots3 and 2 void ballots. Petitioner filed
timely objections to the election, some which were dis-
missed by the Regional Director in his August 11, 1980,
Report on Objections. The Regional Director ordered a
hearing only with respect to Petitioner's Objections 3, 4,
and 5.
In his Report on Objections the Regional Director
stated: "The evidence presented in support of Objections
3, 4, and 5 is coextensive with conduct alleged as viola-
tive of Section 8(a)(1) in the complaint heretofore issued
in Case 10-CA- 15975."
Upon the entire record in this consolidated proceed-
ing, including my observation of the demeanor of the
witnesses, and after due consideration of the briefs filed
by all counsel, I make the following:
FINDINGS OF FACr
1. JURISDICTION
Respondent, a Georgia corporation with an office and
place of business located at Norcross, Georgia, is en-
gaged in the manufacture of wire produces. During the
past 12 months, Respondent sold and shipped from its
Norcross, Georgia, facility goods valued in excess of
$50,000 directly to customers located outside the State of
Georgia. Although Respondent does not so admit, I find
that Fisher-Haynes is an employer within the meaning of
Section 2(2), (6), and (7) of the Act.
All dates are for 1980 unless otherwise indicated.
2 The stipulated appropriate unit is:
All full-time and regular part-time production and maintenance em-
ployees employed by the Employer at its Norcross, Georgia facility
including all general production employees, role and multi-spot, C &
S operators, mig welders, setup men, sheet metal operators, mainte-
nance men, tool & die makers, machinists, forklift drivers-material
handlers, truck drivers, customer relations shipping clerical employ-
re, the janitor and the C & S and paint line leadmen, but excluding
all office clerical employees, professional employees, guards, the F
department leadman, grid department leadman, the tool & die de-
partment leadman and all other supervisors as defined in the Act.
a Of the II challenged ballots 8 were resolved, subject to Board ap-
proval, by the Regional Director in his August 11, 1980, Report on Ob-
jections and Challenged Ballots, and are not at issue in this consolidated
proceeding As the remaining three ballots are not determinative, the Re-
gional Director deemed it untlecessary to resolve them.
II. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, that Local 728 is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR PRACTICES
A. Introduction
In early March, Respondent's employees met with
Vice President and General Manager Edwin L. Ander-
son in the lunchroom and requested a pay raise. Ander-
son informed them that business was poor so no wage in-
crease could be granted at that time, but he stated he
would discuss the matter with them further. The em-
ployees then appointed a committee of some seven em-
ployees, including Nicely Adams and Mary Thompson,4
to meet with Anderson a week later. The first committee
meeting was held in the lunchroom and employees pre-
sented Respondent with a list of seven or eight items
they wanted considered, including sick days, floating
holidays, posting of job openings, and formation of a
grievance committee and credit union. Anderson again
told the employees that he could not grant a wage in-
crease at that time, but that he would discuss the request
with corporate headquarters. He asked employees to
allow him 30 days in which to do so.
Thereafter the employees contacted Local 728, and on
April 7, Respondent received a telegram (G.C. Exh. 2)
from the Union informing it that Respondent's employ-
ees were engaged in union organizational activity.
B. The 8(a)(1) Allegations
1. Complaint paragraphs 8 (Anderson), 13, and 14
dismissed
On or about April 7, Vice President Anderson con-
vened a second meeting of the committee and told them
he was shocked when he received the Union's telegram
because he thought they had agreed to wait 30 days to
allow Respondent time to take some action. Later that
day, Anderson also convened a meeting of all shift em-
ployees in the lunchroom and repeated that he was dis-
appointed when he learned of the employees' union ac-
tivities, especially since he thought they had agreed to
settle things among themselves. I credit the testimony of
Nicely Adams who heard Anderson's statement at the
meeting of committee members, and the testimony of
LuAnne Glover who heard Anderson make the state-
ment at the lunchroom meeting. Glover was not a
member of the committee.
Counsel for the General Counsel argues that the alle-
gation in complaint paragraph 8 relating to Vice Presi-
dent Anderson's April 7 threat of "reprisals" is his ex-
4Adams and Thompson were two of the five witnesses who testified
in this proceeding. Adams was called by the General Counsel and
Thompson was called by Respondent. A sixth individual, employee
Thoung Nguyen, was called by Respondent to testify, but gave the ap-
parent indication that he was unable to communicate without an inter-
preter. Respondent did not seek to secure an interpreter and withdrew its
request that Nguyen testify. I make no finding regarding the ability of
Nguyen to testify without the assistance of an interpreter.
1277
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pression of shock and disappointment, upon receipt of
the Union's telegram, that the employees had not given
him the 30 days they said they would. I find no viola-
tion, and I shall dismiss paragraph 8. Wilker Bros. Co.,
Inc., 236 NLRB 1371, 1376 (1978). Other cases cited by
counsel for the General Counsel in her brief involve situ-
ations where the employer equated union activity with
disloyalty to the employer, thereby implying future re-
prisals. Anderson made no disloyalty-equating remarks.
Still later on April 7, Vice President Anderson con-
vened a second meeting with employees during which he
announced a 25-cent wage increase. The pay stubs of
Nicely Adams for early to mid-April 1980 (G.C. Exh. 3)
reflect this pay increase.
Complaint paragraphs 13 and 14 allege that the an-
nouncing and granting of the 25-cent wage increase was
conduct prohibited by Section 8(a)(l) of the Act. While
a wage increase is presumptively unlawful when granted
during a union organizing campaign, the presumption
disappears here in face of the evidence that employees
had requested a raise about a month earlier and Vice
President Anderson had requested a month's time to
work on the request. As the General Counsel's evidence
fails to establish that Respondent would not have an-
nounced and granted the wage increase of April 7 in the
absence of the Union's telegram of the same date, I find
no violation. Accordingly, I shall dismiss complaint para-
graphs 13 and 14.
Thereafter Respondent conducted an active campaign
against the Union which included: (1) holding all-em-
ployee meetings during which Respondent presented its
views against unionization; (2) holding small group meet-
ings during which Respondent informed employees
about big union expenses and fancy living on the part of
union representatives; and (3) speaking to individual em-
ployees about the Union in their work area.
2. Supervisor Vicent interrogates and threatens
Nicely Adams in mid-April
Adams testified that Supervisor Glenn Vicent came to
her at machine number 12 around the first of April" and
told her that he was surprised that, after she had been
working for Respondent for so long, she would want a
union in the building. He asked her (whether she
thought) that if the Union came in, would it spoil the
future of her children. Adams told him that it would not
because she had been working there 10 years and there
was no future there for her children.
Vicent then asked her what Adams would do if Re-
spondent closed down the plant. She told him that she
would probably go on welfare and obtain food stamps
and that she probably would make just as much at the
end of the month as she earns working for Respondent,
Vicent recalls the conversation occurring around April
10, and concedes that they did talk "a little about the
union and what would happen, possibly, if the union
I Adams had a tendency to date events slightly earlier than they actu-
ally occurred. An example of this pertains to the date of Respondent's
receipt of the Union's telegram which she also placed around the first of
April. Accordingly, I find that this conversation, which Vicent concedes
in fact happened, occurred somewhere around the first or second week
of April 1980.
were to come into the company," that the future of her
children was mentioned, but he denied saying that the
plant would close. He admitted that he was not exactly
sure what he did ask Adams and that basically he really
could not say. Moreover, he conceded that the conversa-
tion concerned "what she would do if the company was
no longer there and what I would do if the company
was no longer there."
Q. Did you talk in terms of relating this to the
union?
A. I suppose so, yes, sir.
Vicent testified that, following the conversation with
Adams, Respondent's attorney, Tom Rebel, met with the
supervisors regarding the union situation and gave them
a list of "do's" and "don'ts" regarding what they could
say and could not say. "Plant closure was at the top of
the list of what we could not say."
I credit Adams concerning the foregoing testimony
with Supervisor Vicent, not only for demeanor reasons,
but also for the reason that Supervisor Vicent conceded
most of what she had to say. Accordingly, I find the that
the General Counsel has established that Respondent un-
lawfully interrogated employee Adams, as alleged in
paragraph 7 of the complaint, and threatened her with
plant closure as alleged in paragraph 9 of the complaint."
3. Supervisor Vicent threatens LuAnne Glover in
early May
Machine operator LuAnne Glover testified that, in
early May, Vicent engaged her in a conversation at her
machine. He told her that a union was not needed and if
one came in the plant would probably close down and
that if the employees went on strike they could be re-
placed. He further said that a union would take up too
much time with the union steward on (grievance) mat-
ters.
During his own testimony, Supervisor Vicent candidly
admitted that he had engaged Glover in conversation in
early May. He testified that when he approached her he
stated that he was not making any threats or promises to
her regarding the Union or what the Company would
do. He testified that he told Glover that, if the Union
were to come into the plant, there could be negotiations
with the Union at which time "there may be a strike; and
that we could-not necessary would-replace the people
involved in the strike." According to Vicent, Glover
said she knew that and that ended the conversation.
I was impressed with Glover's demeanor, and I credit
her. Accordingly, I find that, in early May, Respondent,
through Supervisor Glenn Vicent, threatened Glover
with probable plant closure in the event the employees
voted in Local 728. I further find that by such plant clo-
sure threat Respondent violated Section 8(a)( ) of the
Act as alleged in complaint paragraph 9.7
a In the absence of evidence of other threats, I shall dismiss complaint
par. 8 as it relates to Supervisor Vicent threatening employees with repri-
sals on or about April 15.
' Counsel for the General Counsel stated in her oral argument that the
statement that strikers "could be replaced" was not alleged as a violation
of the Act.
1278
FISHER-HAYNES CORP. OF GEORGIA
4. Complaint paragraph 8 dismissed as to Plant
Manager Miller
Paragraph 8 of the complaint sets forth three incidents
in which Respondent allegedly "threatened its employees
with reprisals" if they engaged in activities on behalf of
the Union. I have dismissed the first two. The third such
incident is attributed to Plant Manager Richard C. Miller
on or about June 13, 1980. At the hearing, counsel for
the General Counsel asserted that automatic welder Gen-
evia Leach's testimony supported the allegation.
Leach testified that, at a meeting with a small group of
employees which she attended about 3 days before the
June 27 election, Miller spoke of expansion plans for the
building and that he was going to bring his (unnamed
company) "down here." Miller added: "He told us that if
a union came in, that he was not going to bring his
plant."
Miller did not testify. Supervisor Vicent did testify,
but conceded that he was not present at all of the group
sessions Miller had. Although Vicent testified that Miller
read from a printed text at the group sessions he attend-
ed, he admitted that he did not attend all the sessions at
which Miller spoke. Vicent did concede that plant ex-
pansion had been discussed, apparently among manage-
ment. However, he testified that it was not mentioned to
Vicent's recollection at the meeting with employees.
In light of the specific testimony of Leach, the fact
that Vicent did not testify that he was present at the
group meeting Leach described, and in view of the fact
that Vicent conceded that there had been some discus-
sion of plant expansion, apparently at least among man-
agement, I find that Miller, who did not testify, did make
the statement attributed to him by Leach. Having so
found, I further find that such a statement does not con-
stitute a threat of reprisal in violation of Section 8(a)(1)
of the Act. Thus. there is no showing that this statement
in any way indicates a detriment to the employees at the
Norcross facility.
Accordingly, I dismiss paragraph 8 with respect to the
portion alleging that Plant Manager Miller threatened
employees with reprisals on or about June 13, 1980. As
all incidents in paragraph 8 have been dismissed, I shall
dismiss complaint paragraph 8 in its entirety.
5. Plant Manager Miller's June 13 promise of
benefits-complaint paragraph II dismissed
Paragraph 11 of the complaint alleges that Plant Man-
ager Miller unlawfully promised employees economic
and other benefits on or about June 13, 1980.
In support of complaint paragraph 11, Nicely Adams
testified that, at one of the group meetings in mid June,
Miller, the new plant manager, read to them from a
paper. In so reading, Miller described a matter involving
the Teamsters Union in Florida, the salaries of union rep-
resentatives, referred to the Teamsters having employees
on strike, union representatives enjoying fine dinners and
expensive wines, driving big cars, and that union dues
would be $20 to $25 a month. Adams further testified
that Miller said he knew there were problems in the
plant between management and employees, but that if
they gave him a chance, he would straighten it out.
In her testimony, Genevia Leach testified that in the
June group meeting she attended Miller told employees
they would be treated fairly and that they could come to
him with any problems they had.
Employee Mary Louise Thompson, called by Re-
spondent, described a meeting Miller had with the com-
mittee of employees in which he told them that business
was slow and that "as soon as he could get things kind
of straightened out for us, we would all be made happy;
and he also said business was slow, and he knew that we
needed a raise, but right then we couldn't get it, and that
he would try all he could to get us a raise for whatever,
you know-whatever benefits that he could get, that he
would try to get it for us; that he was our shop manager,
and so onl and on." Thompson could not recall when this
meeting occurred except that it was before the election.
Thompson further described another meeting held
later in June between Miller and about seven or eight
employees, this one attended by Nicely Adams among
others. Thompson testified that Miller read from a paper
but that "I can't remember all he said from that."
In his own testimony, Vicent did not deny that Miller
referred to straightening out problems. Instead, Vicent
testified that Miller read from a written speech which
Vicent had read prior to Miller delivering it. However,
Vicent conceded that he did not follow the speech as it
was given, and could not say that Miller read it word for
word. In the speech given, Vicent testified that Miller
described problems involving the Teamsters at other
plants, including some divisions of Respondent in Flor-
ida, and referred to strikes and replacements of strikers.
At no point, however, did Vicent deny that Miller re-
ferred to straightening out problems.
In her oral argument, counsel for the General Counsel
contends that Plant Manager Miller's mid-June request to
employees, that they give him a chance to prove himself,
that he would straighten things out, constitutes an illegal
promise of benefits if employees would refrain from
voting in the Union. I find that such ambiguous remarks
fall short of the combination of "whatever you guys
want, I can get for you," coupled with the intention to
"straighten this whole thing out" found to be an illegal
promise of benefits in Rexart Color & Chemical Co., Inc.,
246 NLRB 240 (1979). Accordingly, I shall dismiss com-
plaint paragraph 11. See also Visador Co., 245 NLRB 508
(1979).
6. Miller's promotion promise to Nicely Adams
Paragraph 10 of the complaint alleges that on or about
June 20, 1980, Plant Manager Miller promised employees
promotions with wage increases if they refrained from
supporting the Union. The General Counsel relies upon
the testimony of Nicely Adams to support this allegation.
Adams testified that, around the first of June, Miller
approached her while she was running the press brake.
After greeting Adams, he said he would like to get her a
promotion but that he could not do it because it would
seem like a "bribe" because of the union activities.
Adams responded that she did not want a promotion but
that she just wanted to make some money. Miller replied
that a raise in pay automatically comes with a promo-
1279
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion. Adams then responded, "Well, okay, then, I'll take
a promotion."
However, it was not until the Wednesday before the
instant hearing that Adams was promoted at which time
she received a pay raise. In the meantime, she continued
to work the same job.
As earlier noted, Plant Manager Miller did not testify.
Thus, the testimony of Adams stands unrefuted. In her
oral argument, counsel for the General Counsel contends
that this unrefuted evidence establishes that Respondent
promised employee Nicely Adams a promotion if she re-
frained from union activity, and that Respondent thereby
further violated Section 8(a)(l) of the Act.
In its brief, Respondent cites cases, such as WCAR,
Inc., 203 NLRB 1235 (1973), in which the employees
were advised that they would not receive increases be-
cause of the union's organizational campaign for the
"employer's hands were tied" and no pay increase could
be granted at that time. No violation was found. Howev-
er, I find such cases inapposite. In our situation we have
the testimony of Adams, whom I credit, that Miller initi-
ated a conversation in which he stated that he wanted to
give Adams a promotion, with a pay raise, but could not
do so because it would be considered a bribe in view of
the pending election. Respondent offered no evidence,
and the record contains none, pointing to a need for
Miller to approach Adams. He raised the subject and
dangled the bait of a promotion with a pay raise before
her. I find that the action of Miller was calculated to in-
terfere with the Section 7 rights of employees to support
a labor organization by persuading Adams to vote
against Local 728 in the election to be held the following
week in order that she could receive the promotion with
pay raise that Miller dangled before her. It is irrelevant
that Adams did not in fact receive the promotion until
many months later. The relevant and material fact is that
the interference occurred on some date in June before
the election. Accordingly, I find that, by expressing a
desire to promote Adams with a pay raise, Respondent
violated Section 8(a)(1) of the Act. s
IV. PETITIONER'S OBJECTIONS TO THE ELECTION
A. Objection 3
This objection, that Respondent coerced employees by
threatening plant closure if the Union were elected, is
substantially similar to complaint paragraph 9. Accord-
ingly, Objection 3 is supported by the findings I have
made regarding an early May 1980 threat by third-shift
Foreman Glenn Vicent made to employee LuAnne
Glover that Respondent would close its plant if employ-
ees selected the Union as their bargaining representative.
The other date set forth in complaint paragraph 8 is
the April 15 plant closure threat made by Supervisor
Vicent to employee Adams. However, the date of April
s The General Counsel does not allege that the refusal to promote con-
stitutes a violation of Sec. 8(a)(3) of the Act, nor does counsel for the
General Counsel request a remedial order that Adams' 1981 promotion
be made retroactive to June 1980 and that she be paid backpay for any
higher earnings she may have lost by reason of Respondent's failure to
promote her. See Colorado Seminary (University of Denvvr}, 219 NLRB
1068 (1975).
15 predates the critical period which opens with the
filing of the petition in the representation case on April
28, 1980. Goodyear Tire and Rubber Company, 138 NLRB
453 (1962). In its brief, Local 728 argues that conduct
occurring prior to the opening of the critical period may
be considered. It is true that the Board has held that pre-
petition conduct may be considered in determining
whether a party has engaged in objectionable conduct
where such pre-petition conduct lends "meaning and di-
mension" to post-petition conduct. Blue Bird Body Com-
pany, 251 NLRB 1481, fn. 2 (1980). Nevertheless, the
pre-petition event does not itself constitute an independ-
ent act of objectionable conduct.
B. Objection 4
In this objection, Local 728 contends that "The Com-
pany intimidated and coerced the employees by threaten-
ing the employees with discharge and other disciplinary
action if the Union was elected." The only evidence sup-
porting this objection which falls within the critical
period is the early May 1980 remarks to employee
Glover by Supervisor Vicent that strikers could be re-
placed.9 I find such statement to be objectionable con-
duct inasmuch as the Board has found such a threat to be
a violation of Section 8(a)(1) of the Act. Brownsboro Hills
Nursing Home, Inc., 244 NLRB 269 (1979). Cases hold-
ing such a remark to be lawful involve situations where
the employer gave an adequate explanation of employee
reinstatement rights, or differentiated between an eco-
nomic strike and an unfair labor practice strike, or other-
wise dissipated the raw impact of such a blunt remark.
An example of a "full explanation" is Liberty Nursing
Homes, Inc., d/b/a Liberty Nursing Home, 236 NLRB
456, 459 (1978), cited by Respondent in its brief.
C. Objection 5
This objection reads: "The Company promised wage
increases and other benefits to employees if the Union
was defeated." As the wage increase and its implementa-
tion of April 7 are pre-petition events, such conduct does
not constitute grounds for setting aside the election.
However, the objection is supported by the evidence re-
lating to the June 1980 promise of benefits to employee
Nicely Adams by Plant Manager Miller.
Based upon the foregoing, I shall recommend that the
election herein be set aside, that the Regional Director
conduct a second election to determine the question of
representation, and that the Regional Director include in
the notice of election the Lufkin Rule paragraph set
forth in the attached notice marked "Appendix A."' °
Upon the basis of the foregoing findings of fact and
the entire record, I make the following:
e In her oral argument, counsel for the General Counsel expressed the
position that the General Counsel was not alleging the strike replacement
statement to be a violation of the Act.
io The Lufkin Rule Company, 147 NLRB 341 (1964); Bush Hog, Inc.,
161 NLRB 1575 (1966); Assorioted Milk Producers. Inc., 255 NLRB 750
(1981).
1280
FISHER-HAYNES CORP. OF GEORGIA
CONCLUSIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Local 728 is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees about their union activi-
ties, by threatening them with plant closure if they select
the Union, and by promising them promotions with
wage increases in order to persuade them to reject the
union, Respondent has violated Section 8(a)(1) of the
Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Other than found above, Respondent has not en-
gaged in unfair labor practices within the meaning of the
Act.
6. By engaging in the conduct described above, Re-
spondent has interfered with its employees' freedom of
choice in the election conducted June 27, 1980.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease
and desist therefrom and take certain affirmative action
necessary to effectuate the policies of the Act.
Upon the basis of the foregoing findings of fact, con-
clusions of law, and the entire record, and pursuant to
Section 10(c) of the Act, I hereby issue the following
recommended:
ORDER l
The Respondent, Fisher-Haynes Corporation of Geor-
gia, Narcross, Georgia, its officers, agents, successors,
and assigns, shall:
I. Cease and desist from:
(a) Interrogating its employees concerning their union
membership, activities, and desires.
(b) Threatening its employees with plant closure if
they bring Truck Drivers and Helpers Local Union No.
728, affiliated with the International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers of
America, into the plant.
(c) Promising its employees promotions with wage in-
creases if they refrained from joining, supporting, or en-
gaging in activities on behalf of the Union.
I' In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings. conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
(d) In any like or related manner interfering with, re-
straining, or coercing employees with respect to their
rights guaranteed by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Norcross, Georgia, facility copies of the
attached notice marked "Appendix B."12 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by Respondent's au-
thorized representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained by
it for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to employees
are customarily posted. Reasonable steps shall be taken
by Respondent to ensure that said notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 10, 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 complaint, including
paragraphs 8, 11, 13, and 14, is dismissed insofar as it al-
leges unfair labor practices not specifically found herein.
IT IS FURTHER ORDERED that the election held June
27, 1980, in Case 10-RC-12101 is hereby set aside and
that said case be remanded to the Regional Director for
Region 10 for the purpose of conducting a new election,
and that the paragraph set forth in attached "Appendix
A" be included in the Notice of Second Election to be
issued by the Regional Director.
I In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pilrsu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
APPENDIX A
NOTICE To ALL VOTERS
The election conducted on June 27, 1980, was set aside
because the National Labor Relations Board found that
certain conduct of the Employer interfered with employ-
ees' exercise of a free and reasoned choice. Therefore, a
new election will be held in accordance with the terms
of this notice of election. All eligible voters should un-
derstand that the National Labor Relations Act, as
amended, gives them the right to cast their ballots as
they see fit, and protects them in the exercise of this
right, free from interference by any of the parties.
1281