Flexsteel Industries

National Labor Relations Board - Board Decisions

May 28, 1993

311 N.L.R.B. 257 (N.L.R.B. 1993)

257
311 NLRB No. 36
FLEXSTEEL INDUSTRIES
1 On February 12, 1993, the Union moved to withdraw its objec-
tions in the representation case. On March 8, 1993, the Board grant-
ed the motion and ordered that Case 25–RC–9113 be severed from
this proceeding.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
3 We agree with the judge, however, that statements made by Su-
pervisor Sensibaugh in connection with the February 7 letter con-
stituted threats in violation of Sec. 8(a)(1).
4 E.g., Rood Industries, 278 NLRB 160, 164 (1986).
Flexsteel Industries, Inc. and United Steelworkers of
America, AFL–CIO and Leroy Clark. Cases
25–CA–21795, 25–CA–21823, 25–CA–21832,
and 25–RC–91131
May 28, 1993
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS OVIATT
AND RAUDABAUGH
On November 9, 1992, Administrative Law Judge
Wallace H. Nations issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the General Counsel filed a brief in support of the
judge’s decision.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,2 and con-
clusions, as amended, and to adopt the recommended
Order as modified.
1. The judge found that highlighted portions of the
Respondent’s February 7, 1992 letter to employees
violated Section 8(a)(1) of the Act by threatening loss
of benefits. The Respondent argues that the judge mis-
quoted the portions of the letter he found to be unlaw-
ful and that the actual statements do not violate Sec-
tion 8(a)(1). We agree.
The judge relied on the following misstatements of
the February 7 letter: The statement the judge quotes
as ‘‘present benefits would be lost’’ actually reads
‘‘present benefits could be lost’’ (emphasis added).
Similarly, the parenthetical in the sentence the judge
quotes as ‘‘[n]egotiations often go on for many months
while your wages and benefits would be frozen by law
(the Company could not unilaterally agree to give a
wage increase) while negotiations continue’’ actually
reads, ‘‘the Company could not unilaterally give a
wage increase.’’ (Emphasis added.)
We find that the statements contained in the Feb-
ruary 7 letter do not threaten employees with loss of
benefits. The judge’s finding that portions of the letter
are unlawful could be sustained only if the language
were as the judge described it. In fact, the letter (as
quoted above) merely contains statements of what
could lawfully happen during the give and take of bar-
gaining with the Union. See, e.g., Montrose-Haeuser
Co., 306 NLRB (1992) (statement in employer’s lit-
erature that ‘‘while bargaining goes on, wages and
benefit programs typically remain frozen until changed,
if at all, by contract’’ held not unlawful); Oxford Pick-
les, 190 NLRB 109 (1971) (accurate statements of law
and facts did not amount to implied threats). Accord-
ingly, we reverse the judge and find that the Respond-
ent’s February 7 letter did not violate the Act as al-
leged.3
2. The judge found that the Respondent created the
impression of surveillance when its personnel manager,
Don McFarland, on two occasions, informed employee
Leroy Clark that he had heard rumors about Clark’s
union activity. Specifically, in early December 1991,
McFarland told Clark he had heard a rumor that Clark
had instigated the union campaign. Thereafter, in late
December 1991 or early January 1992, McFarland told
Clark that he heard a rumor Clark was passing out au-
thorization cards. The judge found that McFarland’s
disclosures would tend to coerce and restrain Clark
from continuing this kind of protected activity. We
agree.
As our dissenting colleague accurately states, the
test for determining whether an employer has created
an impression of surveillance is whether the employee
would reasonably assume from the statement that their
union activities had been placed under surveillance.4
Our colleague would require evidence tantamount to
actual surveillance to support this violation, however,
and would excuse employer statements couched in
terms of rumor. We disagree.
The idea behind finding ‘‘an impression of surveil-
lance’’ as a violation of Section 8(a)(1) of the Act is
that employees should be free to participate in union
organizing campaigns without the fear that members of
management are peering over their shoulders, taking
note of who is involved in union activities, and in
what particular ways. We have never required, as our
dissenting colleague suggests, evidence that manage-
ment actually saw or knew of an employee’s union ac-
tivity for a fact, nor do we require evidence that the
employee intended his involvement to be covert or that
management is actively engaged in spying or surveil-
lance. Rather, an employer creates an impression of
surveillance by indicating that it is closely monitoring
the degree of an employee’s union involvement. See
Emerson Electric Co., 287 NLRB 1065 (1988).
In this case on two separate occasions in statements
coupled with interrogations and implicit threats, which
258 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 Contrary to our dissenting colleague, the ‘‘close relationship’’ be-
tween Clark and McFarland, in our view, supports, rather than mili-
tates against, the finding of a violation. McFarland’s disclosure, in
the context of the men’s friendship, would reasonably convey a
warning to Clark: ‘‘Be careful. Management’s watching you.’’
6 South Shore Hospital, 229 NLRB 363 (1977), and G. C. Murphy
Co., 217 NLRB 34 (1975), cited by our dissenting colleague, are
distinguishable. In South Shore Hospital, the employer’s statement
that ‘‘talk of a union was all over the hospital’’ was not made in
the context of direct accusations and threats as were McFarland’s
statements to Clark. Similarly, in G. C. Murphy, a supervisor re-
sponded affirmatively when the employee asked whether he (the su-
pervisor) had heard a rumor about the employee’s union activities.
Under those circumstances, acknowledgement of the rumor did not
indicate the degree of close workplace monitoring present in this
case.
1 E.g., South Shore Hospital, 229 NLRB 363 (1977); Schrementi
Bros., Inc., 179 NLRB 853 (1969).
our dissenting colleague agrees are violations, McFar-
land related his knowledge of ‘‘rumors’’ to Clark,
thereby informing him clearly that management was
aware not only that Clark may have been a union sup-
porter, but was also taking note of the reported mani-
festations of that support, i.e., that Clark may have in-
stigated the union campaign and that Clark had been
passing out authorization cards. McFarland’s state-
ments, on their face, reasonably suggested to Clark that
the Respondent was closely monitoring the degree and
extent of his organizing activities.5 The Respondent’s
direct personal reference to Clark’s suspected union ac-
tivity, in the context of unlawful interrogation, would
reasonably lead Clark to believe that his protected ac-
tivity was under surveillance, and this would tend to
discourage his protected activity.6
AMENDED CONCLUSIONS OF LAW
1. Delete paragraph 3(g) and reletter subsequent
paragraphs.
2. Add the following as paragraph 5.
‘‘5. The Respondent has not violated the Act as al-
leged in complaint paragraph 5(m).’’
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent,
Flexsteel Industries, Inc., New Paris, Indiana, its offi-
cers, agents, successors, and assigns, shall take the ac-
tion set forth in the Order as modified.
1. Delete paragraph 1(g) and reletter the subsequent
paragraphs.
2. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER OVIATT, dissenting in part.
The administrative law judge found, and my col-
leagues affirm, that the Respondent’s personnel man-
ager, Don McFarland, unlawfully interrogated em-
ployee Leroy Clark about his union activities, and that
McFarland also unlawfully created the impression that
the Respondent was keeping the employees’ union ac-
tivities under surveillance.
I agree with the judge and my colleagues, for the
reasons set forth in the penultimate paragraph of sec-
tion III,F,1 of the judge’s decision, that McFarland en-
gaged in unlawful interrogation. I disagree, however,
with their finding that McFarland created the impres-
sion of surveillance. The facts relevant to this latter
issue, as set out in section III,F,1 of the judge’s deci-
sion, are essentially as follows.
1. Facts
In a conversation between McFarland and Clark in
December 1991, Clark told McFarland that if McFar-
land could not change procedures so that the employ-
ees could have good communications and a good place
to work, then the Union would get Clark’s vote.
McFarland told Clark that the matter was out of his
hands and that he had done all that he could. McFar-
land also told Clark that he had heard a rumor that
Clark was the person who had started the union cam-
paign. Clark in effect denied the rumor.
In another conversation around late December,
McFarland told Clark that he had heard a rumor that
Clark was passing out authorization cards. Clark de-
clined to tell McFarland whether the rumor was true
or false.
2. Discussion
In the final paragraph of section III,F,1 of his deci-
sion, the judge concludes, sans rationale, that
McFarland’s mentioning the rumor about Clark passing
out authorization cards relayed an impression of sur-
veillance and conveyed an implied sense of dis-
approval, if not an actual threat, that would ‘‘cer-
tainly’’ tend to coerce and restrain Clark from continu-
ing this line of protected activity, thus constituting the
creation of the impression of surveillance in violation
of Section 8(a)(1) of the Act. My colleagues agree. I
do not.
In determining whether an employer has created an
impression that its employees’ union activities are
under surveillance by management, the Board applies
this test: Would the employees reasonably assume
from the statement in question that their union activi-
ties have been placed under surveillance?1
Applying this test to the facts at hand, I find that
Clark would not reasonably assume from either or both
of McFarland’s statements that Clark’s or his fellow
employees’ union activities had been placed under sur-
veillance.
First, Clark himself testified that he had a very close
relationship with McFarland, one that was marked by,
inter alia, Clark’s candor during the campaign in let-
259FLEXSTEEL INDUSTRIES
2 Clark also testified, however, that he did not want to volunteer
information about his role in the campaign, because he feared retal-
iation from General Foreman Ken Hampton.
3 I note here that there is no evidence, in any event, that any other
employees learned of McFarland’s ‘‘rumor’’ statements to Clark. No
one else was present when McFarland made these statements to
Clark, and there is no evidence that McFarland or Clark told anyone
else about them.
4 South Shore Hospital, supra, 229 NLRB at 363; see also G. C.
Murphy Co., 217 NLRB 34, 36 (1975).
5 South Shore Hospital, supra, 229 NLRB at 363–364.
6 National Gypsum Co., 293 NLRB 1138, 1141 (1989) (by Brian
Baker).
7 Cf. United Charter Service, 306 NLRB 150 (1992) (Member
Oviatt dissenting in pertinent part) (impression of surveillance cre-
ated where operations manager not only told employees that he
knew of their organizing efforts, but also went into detail about ex-
tent of activities and specific topics discussed at meetings).
8 Cf. Jennie-O Foods, 301 NLRB 305, 338–339 (1991) (Member
Oviatt dissenting in pertinent part) (impression of surveillance cre-
ated where plant manager did not testify how he found out that em-
ployee in question was ‘‘getting into politics,’’ and especially did
not testify that he found out through ‘‘some idle gossip in the plant
or from the newspaper or from any other source’’).
ting McFarland know that Clark was a union sup-
porter.2 The existence of this ongoing, open, and can-
did relationship between Clark and McFarland, particu-
larly in light of the additional considerations discussed
below, belies a realistic finding that Clark would rea-
sonably assume from either or both of McFarland’s
statements that his or his fellow employees’ union ac-
tivities had been placed under surveillance.3
Second, Clark testified that at the time McFarland
told him about the rumor that Clark had started the
union campaign:
I already knew there was [such] a rumor going
around . . . because I heard it from other em-
ployees . . . Yes [there was such a rumor going
around], I heard it from other employees before
Don McFarland told me that.
Thus, McFarland’s revelation to Clark, that there was
a rumor going around that Clark was the one who
started the union campaign, was already old news to
Clark by the time McFarland passed it on to him. Ac-
cordingly, rather than creating the impression that the
Respondent was keeping the employees’ union activity
under surveillance, McFarland’s belated rumor state-
ment to Clark may well have reasonably created the
impression for Clark that the Respondent was not
keeping the employees’ union activity under surveil-
lance, but that the Respondent was instead getting the
same workplace rumors that the employees themselves
were getting—only later!
Third, McFarland did not tell Clark that he or the
Respondent knew anything about Clark’s union activi-
ties. McFarland simply told Clark that he had heard
rumors about them—rumors which Clark, himself, had
already heard from his fellow employees. This is not
the stuff out of which an impression of surveillance is
created. An employer does not create an impression of
surveillance by merely stating that it is aware of a
rumor pertaining to the union activities of its employ-
ees, so long as there is no evidence—and here there
is none—indicating that the Employer could only have
learned of the rumor through surveillance.4 Since
rumor is, by definition, talk or opinion widely dissemi-
nated with no discernible source, employees cannot
reasonably assume from an employer’s knowledge of
such a rumor, without more, that their union activities
have been placed under surveillance.5 Indeed, by at-
tributing his information to rumors, McFarland dis-
pelled any implication that management was actively
engaged in spying or surveillance.6
Moreover, inasmuch as McFarland did not tell Clark
that he knew anything about Clark’s union activities,
he perforce did not convey to Clark any knowledge on
the part of McFarland, or the Respondent in general,
about any details of the extent of such activities.7
Rather, as seen, it was reasonable for Clark to con-
clude no more nor less than what McFarland told
him—that whatever information McFarland had about
Clark’s union activity, he got it through gossip, ‘‘ru-
mors.’’8
Accordingly, I find that McFarland’s statements to
Clark about rumors of the latter’s union activities do
not constitute creation of the impression of surveil-
lance, and I would dismiss this allegation.
My colleagues profess to believe that for me to find
that an employer has created an impression of surveil-
lance, I would require a showing of that the employer
has engaged in actual surveillance. That is not my po-
sition.
I understand the difference, and I trust my col-
leagues do also, between actual surveillance and the
creation of an impression of surveillance. They can
and do exist independently of each other, and the ex-
istence of one is neither necessary nor sufficient for
the existence of the other. Thus, an employer can actu-
ally keep its employees’ union activities under surveil-
lance—but without letting its employees know it is
doing so. That is actual surveillance, but not creation
of an impression of surveillance.
Conversely, an employer can create an impression of
surveillance by flatly telling its employees that it is
keeping their union activities under surveillance—even
though it is not actually doing so. That is a creation
of an impression of surveillance, but not actual surveil-
lance.
Or, less blatantly, an employer—like the one in
Emerson Electric Co., 287 NLRB 1065 (1988), cited
by my colleagues—can create an impression of surveil-
lance by telling an employee that it knew the extent of
the employee’s involvement with the union—even
260 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 Indeed, in finding a creation of an impression of surveillance in
Emerson, the judge, affirmed by the Board, found it to be immaterial
whether the employer ‘‘actually had been engaged in actual surveil-
lance.’’ The gravamen of the violation was found to be that the em-
ployer told the employee that it ‘‘knew what he was doing’’ (empha-
sis added).
10 In affirming the judge’s finding of a violation on these facts, I
do not, however, rely on the judge’s alternative finding that even
Moon’s discredited version of this conversation (set forth by the
judge) supports a finding of a creation of an impression of surveil-
lance.
11 I am not persuaded by my colleagues attempts to distinguish the
cited cases.
though the employer in that case was not shown to
have engaged in actual surveillance.9
I agree with the reasoning in Emerson. Indeed, I join
my colleagues in affirming the judge’s finding, in sec-
tion III,D of his decision, that the Respondent did un-
lawfully create an impression of surveillance when, ac-
cording to the credited testimony of employee Stoney
Gawthrop, Supervisor Jack Moon told Gawthrop that
he knew that Gawthrop was getting people to sign au-
thorization cards. When Gawthrop replied that he did
not know what Moon was talking about, Moon told
Gawthrop that he knew that Gawthrop knew what
Moon was talking about, because people had told
Moon that Gawthrop was getting them to sign cards.10
So, contrary to my colleagues expressed belief, I
would not require evidence tantamount to actual sur-
veillance in order to find that an impression of surveil-
lance has been created. Employer statements to em-
ployees that that the employer knows about its’ em-
ployees’ particular union activities, as in Emerson and
as in the instant case in regard to Moon’s remarks to
Gawthrop, are sufficient for me to find the creation of
an impression of surveillance.
But I do, however, consistent with the Board prece-
dent that I have cited,11 require more than mere em-
ployer statements to employees about rumors the em-
ployer has heard, to support a finding that the employ-
ees would reasonably assume that the employer has
placed their union activities under surveillance. Thus,
contrary to my colleagues, I do not find that
McFarland’s remarks to Clark, about rumors he had
heard about Clark engaging in union activities, reason-
ably suggested to Clark that the Respondent was close-
ly monitoring the degree and extent of his organizing
activities. Thus, I would dismiss this allegation.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT promise you unspecified improved
terms and conditions of employment if you will aban-
don support for the Union.
WE WILL NOT interrogate you regarding your union
membership, activities, and sympathies.
WE WILL NOT discriminatorily enforce our no-solici-
tation, no-distribution rule against union-related solici-
tations and distributions in plant work areas, while per-
mitting nonunion related solicitations and distributions
in the same work areas.
WE WILL NOT threaten you through our supervisors
with the elimination of your benefits and with requir-
ing the Union to bargain from scratch if you select the
Union as your collective-bargaining representative.
WE WILL NOT give you the impression that your
union activities are under surveillance by us.
WE WILL NOT withhold a portion of your pay as
simulated union dues, fines, and assessments without
your authorization, requiring you to sign a receipt ac-
knowledging your agreement with our position that
you would be required to pay at least the amount with-
held for union dues, fines, and assessments, and delay-
ing by a day paying the amount withheld to any of you
who refused to sign the receipt.
WE WILL NOT threaten you through our supervisors
with more onerous work rates and thus loss of pay if
you select the Union as your collective-bargaining rep-
resentative.
WE WILL NOT threaten you through our supervisors
with loss of your jobs or discharge if you select the
Union as your collective-bargaining representative.
WE WILL NOT threaten you through our supervisors
with plant closure if you select the Union as your col-
lective-bargaining representative.
WE WILL NOT issue written material to you wherein
we threaten you with loss of work and jobs if you se-
261FLEXSTEEL INDUSTRIES
1 All dates are in 1992 unless otherwise noted.
2 The complaint allegations set out below are as they appear in the
complaint and the amendment thereto. They have been renumbered
for the purposes of this decision and will be referred to hereinafter
by the new number.
lect the Union as your collective-bargaining representa-
tive.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
FLEXSTEEL INDUSTRIES, INC.
Walter Steele and Merrie Thompson, Esq., for the General
Counsel.
Arthur D. Rutkowsi, Esq., of Evansville, Indiana, for the Re-
spondent.
Eric Jacobsen, of Jasper, Indiana, for the Charging Party
Union.
DECISION
STATEMENT OF THE CASE
WALLACE H. NATIONS, Administrative Law Judge. Based
on charges filed by the United Steelworkers of America,
AFL–CIO (Union) on February 26, 1992, in Case 25–CA–
21795 and on March 5, 19921 in Case 25–CA–21823, and
on a charge filed by Leroy Clark, an individual, on March
9, in Case 25–CA–21832, the Regional Director for Region
25 issued an order consolidating cases, consolidated com-
plaint, and notice of hearing (complaint) on April 30. The
complaint alleges that Flexsteel Industries, Inc. (Flexsteel or
Respondent) engaged in certain activity in violation of Sec-
tion 8(a)(1) of the National Labor Relations Act (Act). At the
hearing held in this case, the General Counsel was allowed
to amend the complaint to allege two additional allegations
of conduct by Respondent in violation of Section 8(a)(1) of
the Act. Also consolidated for hearing in this proceeding are
several objections to conduct affecting the results of election.
Respondent has filed timely answer to the complaint and the
objections and denies the commission of any unfair labor
practice or objectionable conduct.
Hearing was held in these matters in Elkhart, Indiana, on
July 14 and 15, 1992. Briefs were received from the parties
on or about August 18, 1992, based on the entire record, in-
cluding my observation of the demeanor of the witnesses and
after consideration of the briefs, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent, at all times material to this proceeding, has
maintained its principal office in Dubuque, Iowa, and places
of business at various other locations, including one at New
Paris, Indiana, where it engages in the manufacture, sale, and
distribution of recreational vehicle equipment and related
products. Respondent admits and I find that it is an employer
engaged in commerce within the meaning of Section 2(2),
(6), and (7) of the Act.
II. THE INVOLVED LABOR ORGANIZATION
It is admitted and I find that the Union is a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the Dispute and the Issues for
Determination
As noted above, Respondent has a facility located at New
Paris, Indiana, where it manufactures products for rec-
reational vehicles. It employs about 200 people at this loca-
tion. Beginning sometime in October 1991, the Union began
an organizing campaign to seek representation of Respond-
ent’s employees in an appropriate unit consisting of all pro-
duction and maintenance employees employed by Respond-
ent at its New Paris, Indiana facility; but excluding all office
clerical employees, professional employees, and all guards
and supervisors as defined in the Act. Several employees, in-
cluding Rebecca Chaney, Naomi Churchill (nee Whitaker),
Leroy Clark, James J. Hall, Dawn Hepler, Stoney Gawthrop,
and Tom Dye, were actively involved in the organizing cam-
paign for the Union. A petition was filed on January 15,
1992, which resulted in an election on February 28, 1992,
that was won by Respondent.
The complaint alleges that during the course of the cam-
paign, Respondent committed a number of unfair labor prac-
tices, acting through certain of its admitted statutory super-
visors including Ken Hampton, general foreman, Don
McFarland, personnel manager, Larry Sensibaugh, super-
visor, Jack Moon, foreman, and Ronnie Nash, plant manager.
Specifically, the complaint alleges the following actions as
violations of Section 8(a)(1) of the Act:2
1. On or about two unknown dates in early or mid-Feb-
ruary 1992, the Respondent, acting through Ken Hampton,
promised its employees unspecified improved terms and con-
ditions of employment if they would abandon their support
for the Union.
2. On or about an unknown date in early or mid-February
1992, Respondent, acting through Ken Hampton, interrogated
its employees regarding their union membership, activities,
and sympathies.
3. Since on or about August 26, 1991, the Respondent has
discriminatorily maintained and enforced a rule prohibiting
its employees from engaging in union-related solicitations
and distributions in work areas, while permitting nonunion-
related solicitations and distributions in work areas.
4. On unknown dates in January and February 1992, the
Respondent, acting through Don McFarland, announced to its
employees the rules described above.
5. On an unknown date in early 1992, occurring before the
election, Respondent, acting through Don McFarland, warned
its employees that it would discipline them if they engaged
in union-related solicitations and distributions in work areas
in violation of the rules described above.
6. On an unknown date in February 1992, the Respondent,
acting through Larry Sensibaugh, threatened its employees
with the elimination of their benefits and requiring the Union
to bargain from ‘‘scratch’’ if its employees selected the
Union as their collective-bargaining representative.
7. On or about January 15, 1992, the Respondent, acting
through Jack Moon, threatened its employees with discharge
262 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 A portion of Objection 1 alleges that Respondent’s supervisor
Lance Slavicek engaged in objectionable conduct. No evidence was
offered with respect to this allegation and it is overruled.
4 The evidence shows that a number of employees took their
breaks and ate lunch at their workstations rather than using one of
Respondent’s two lunchrooms or other formal break areas.
if they selected the Union as their collective-bargaining rep-
resentative.
8. On or about January 15, 1992, the Respondent, acting
through Jack Moon, created an impression among its em-
ployees that their union activities were under surveillance by
the Respondent.
9. On or about December 7, 1991, the Respondent, acting
through Don McFarland, interrogated its employees regarding
their union membership, activities, and sympathies.
10. On or about December 7, 1991, the Respondent, acting
through Don McFarland, created an impression among its
employees that their union activities were under surveillance
by the Respondent.
11. On or about February 21, 1992, the Respondent re-
quired its employees, as a condition of receiving $50 of
wages earned by each of them, to sign a document acknowl-
edging their agreement with the Respondent’s position that
they would be required to pay union dues, union fines, and
union assessments in the amount of $50 from their pay-
checks if they selected the Union as their collective-bargain-
ing representative.
12. On or about February 21, 1992, the Respondent de-
layed paying an employee $50 in wages earned by him be-
cause he refused to agree with the Respondent’s position that
the Union would compel Respondent’s employees to pay $50
in dues, fines, and assessments from their weekly pay.
13. On or about February 7, 1992, the Respondent, by dis-
tribution of handout material to employees, threatened its
employees with the following described actions if they se-
lected the Union as their collective-bargaining representative:
a. The Respondent would delay the collective-bargaining
process leading to the bargaining of a contract for many
months.
b. The Respondent would delay wage raises and benefit
increases regularly given its employees because they selected
the Union as their bargaining representative.
c. The Respondent would eliminate all wages, beyond the
minimum required of the Respondent, and other employee
benefits at the start of any bargaining with the Union.
14. On or about January 25, 1992, the Respondent, by dis-
tribution of handout material to employees, threatened its
employees with loss of work and jobs if they selected the
Union as their collective-bargaining representative.
15. On or about January 29, 1992, the Respondent, acting
through Larry Sensibaugh, threatened its employees with
plant closure if its employees selected the Union as their col-
lective-bargaining representative.
16. On or about February 21, 1992, the Respondent, acting
through Larry Sensibaugh, threatened its employees with loss
of work if the employees selected the Union as their collec-
tive-bargaining representative.
In addition to the foregoing, there are presented for con-
sideration portions of the Union’s Objections 1 and 2 and its
Objections 4 and 6.3 The remainder of the objections filed
by the Union were overruled by the Regional Director for
Region 25. Objections 1 and 2 correspond to certain of the
unfair labor practice allegations. Objection 4 alleges that Re-
spondent made an objectionable promise to employees during
a speech given during the course of the organizing campaign.
Objection 6 alleges that the Respondent maintained a pres-
ence outside the voting area immediately after the polls
opened and immediately after the polls closed. Each of the
complaint allegations and objections will be discussed below
in appropriate groupings.
B. The Alleged Violations Regarding Respondent’s No-
Solicitation—No-Distribution Rule (Complaint
Allegations 3, 4, and 5, above)
Since at least 1987, the Respondent has had in place in its
employee handbook a rule regarding solicitation and distribu-
tion which reads:
Solicitation of an associate by another associate is
prohibited while either person is on working time.
Working time is all time when an associate’s duties re-
quire that he or she be engaged in work tasks, but does
not include any associate’s own time, such as meal
periodg, scheduled breaks, time before or after a shift
and personal cleanup time.
Associates may not distribute literature, written or
printed material of any description, in working areas at
any time or in non-working areas during an associate’s
working time.
During the course of the union organizing campaign, this
rule was enforced for the first time in any witness’ memory.
Two employees were stopped from distributing union lit-
erature in the plant in work areas during their breaktime. Re-
becca Chaney, an employee of Respondent for over 8 years,
was part of the Union’s organizing committee, which was
composed of about 20 employees. Her union sympathies
were known to Respondent as she was active in the cam-
paign, wearing a union button, and acting as the Union’s ob-
server in the election. She works on the day shift at the facil-
ity, either 6 a.m to 2:30 p.m. or 7 a.m. to 3:30 p.m., depend-
ing on the season. Part of her responsibilities in the cam-
paign involved passing out union handbills. She did this
twice, the first time in late January and the second time
about a week later. On the first instance, she passed out the
literature outside the plant’s door as employees left work. On
the second occasion, though she was aware of the Respond-
ent’s no-distribution—no-solicitation rule, she passed out the
handbills during lunchtime throughout the work area of the
metal shop within the facility.4 She also passed out handbills
in the lunchroom where some employees ate their lunch.
Shortly after this activity, she was approached by Plant
Personnel Manager Don McFarland, who asked her if she
had passed out union literature. After telling him she had,
McFarland advised her that she was not supposed to pass out
literature in work areas or during worktime. Literature could
only be passed out in the plant in break areas during breaks
according to McFarland.
Employee and campaign committee member Naomi
Churchill also passed out handbills during her lunchtime in
the sewing department where she worked. She started in the
breakroom giving employees handbills and then went to the
263FLEXSTEEL INDUSTRIES
5 Although not alleged specifically in the complaint, another exam-
ple of Respondent’s enforcement of its no-solicitation rule against
union handouts is found in the testimony of employee and union
committee member James J. Hall. He testified credibly that he
passed out union bumper stickers during the campaign. His super-
visor, Al Douglas, told him that Respondent prohibited him from
passing out these stickers in work areas.
sewing work area where some employees were having lunch
at their machines. About 15 minutes after she did this, she
was approached by McFarland who told her what she had
done was illegal, that the Company was trying to run a fair
and honest campaign, and that she had cheated by passing
out handbills in the work area. He told her she could distrib-
ute them in the breakroom or the parking lot, but not in work
areas. Evidently Churchill questioned this interpretation of
the no-solicitation—no-distribution rule because McFarland
became angry and shook his finger and yelled at Churchill.
Other employees who observed this confrontation said they
had never seen McFarland angry before. After this incident,
Churchill ceased distributing handbills in her work area, but
other employees continued other types of solicitations with-
out comment from management.
McFarland admitted that he did speak with Chaney and
Churchill about their distribution of handbills after being in-
formed by supervisors that they were distributing them in
work areas. He admitted that he told them that they could
not distribute in work areas, but could do so in break areas
or outside the plant. He further admitted that he became
angry with Churchill when she argued with him, saying that
she could do what she wanted on her break. He testified that
the rule against solicitations and distributions in work areas
had been enforced equally against all distributions, including
Girl Scout cookies and Avon products. However, he denied
any knowledge that employees had sold or distributed items
in work areas thus offering an explanation why no employee
before Chaney and Churchill had been either disciplined or
warned against such solicitations and distributions.5
Virtually every witness who testified conceded that solici-
tations of employees and distributions of a variety of items
for a variety of reasons and causes (all nonunion in nature)
had routinely taken place inside the plant for years. In totally
unconvincing testimony, management witnesses testified that
to their knowledge such activity had always been confined
to break areas and on breaktimes. A number of employees
credibly testified that solicitations and distributions had taken
place on worktime and in work areas, with the knowledge
of and at least tacit approval of management.
Rebecca Chaney testified that Respondent allowed the sell-
ing of Girl Scout cookies, Boy Scout popcorn, band raffle
tickets, Tupperware, Mary Kay cosmetic products, and simi-
lar items in the facility. She testified that she sold a variety
of items, primarily for charitable organizations, before work-
ing hours or during breaks in break areas, work areas, and
the office. She had observed other employees selling items
during worktime with the knowledge of supervisors. About
2 weeks prior to the hearing, she sold Respondent’s super-
visor, Al Douglas, a raffle ticket for a high school band in
her work area before work began. She has sold McFarland
items in his office. She has observed a supervisor delivering
Avon products and collecting money for them and during the
fall of 1991, she sold a fellow employee some sausage at Su-
pervisor Douglas’ desk while he was present. She purchased
Avon products before Christmas 1991 at her workstation on
worktime.
Employee Naomi Churchill testified that other than union
material, the Respondent did not enforce its solicitation and
distribution rules. She passed out a solicitation sheet for a
charity in September 1991 that went from employee to em-
ployee who noted the amount they would give and signed
their names. This took place in the plant’s work area. She
also solicited a supervisor as well as other employees during
worktime for money to help an employee whose house bad
burned. She has observed a supervisor solicit for a charity
during worktime in work areas. She has observed the selling
of Girl Scout cookies in work areas on worktime for years.
Employee Leroy Clark testified that he had purchased
items at the plant from other employees for 10 years. He
noted an example that took place just before the election
when another employee came into his work area and sold
him candy bars.
Employee Dawn Hepler testified that employees regularly
bought and sold items such as cookies, candy, and popcorn
in working areas. Employee James Hall testified that he had
had a similar experience.
Employee Thomas Dye testified that he did not think there
was a no-solicitation policy because employees regularly sold
items such as Avon and candy throughout the plant at any
time, including worktime.
Employee Stoney Gawthrop testified that people regularly
sold items in breakrooms at the facility and to employees
who were taking breaks at their workstations. He has bought
candy from another employee at his workstation on
worktime. His supervisor, Jack Moon, attempted to sell him
items for his daughter. Moon also solicited other employees
at their work areas on worktime. Moon denied attempting to
sell candy or other items for his daughter in work areas, on
worktime, to Gawthrop. Moon first admitted that if buying
and selling items in the workplace by employees violated the
no-solicitation—no-distribution rule, then it had been violated
in the past. He then changed his testimony to confine such
activities to break areas on nonworktime. He appeared unfa-
miliar with the rule per se, but was familiar with what could
be enforced with respect to union solicitation and distribution
in the plant. Because of the inconsistency in his testimony
on this point and for other reasons which will be discussed
later, I credit Gawthrop’s testimony in this regard.
The credible evidence reflects that Respondent’s involved
rule has only been enforced with respect to distribution of
union material during the campaign and not otherwise,
though the rule has been routinely violated both before and
after the campaign with the knowledge of and in at least
some cases, the participation by supervisors. Such disparate
enforcement of a no-solicitation rule has long been held to
be a violation of Section 8(a)(1) of the Act. Although the
Board has made exceptions to finding a violation when there
have been only isolated instances of charitable solicitations
allowed by employers in contravention of their no-solicita-
tion—no-distribution rules, that does not appear to be the
case here. Solicitations and distributions of both a charitable
and commercial nature were routinely allowed in contraven-
tion of the involved rules. Therefore I find that by dispar-
ately enforcing its no-solicitation rule against solicitations
and distributions on behalf of the Union, Respondent has
violated Section 8(a)(1) of the Act as alleged in the com-
264 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 Plant Manager Ronnie Nash testified that he did not believe this
newspaper article was posted; however, I find that it was posted
based on a notation on the article which indicates it was posted on
1–24–92 and on the testimony of employee Leroy Clark who re-
called seeing the article posted.
plaint. See Hammary Mfg. Corp., 265 NLRB 57 fn. 4
(1982); St. Vincent’s Hospital, 265 NLRB 38 (1982); New
York Telephone Co., 304 NLRB 259 (1991).
C. Allegations of Threats of Plant Closure and Loss of
Jobs (Objection 1)
1. The January 22 and 28 postings by Respondent
(complaint allegation 14, above)
The petition for election was filed on January 15, 1992.
On January 22, the Respondent posted a news release from
corporate headquarters in Iowa which announced the closing
of Respondent’s Evansville, Indiana plant and the transfer of
its functions to another Flexsteel facility in Dublin, Georgia.
Such postings of news releases are unusual in the involved
facility. On January 24, the Respondent posted a newspaper
article about the Evansville closing which makes the point
that the unionized Evansville employees declined to agree to
wage and benefit concessions, and the Dublin plant is non-
union as is the New Paris plant.6
The posting of the news release and article was followed
closely on January 28, 1992, by Respondent posting in its fa-
cility a memorandum to all employees. The memorandum
reads as follows:
As a courtesy to the National Labor Relations Board,
your Company, on this date, willingly agreed to allow
a secret-ballot election to be held on Company property
and on Company time.
[Time and place information omitted.]
This election is about ‘LOST JOBS’!!!
You can now vote by secret ballot for the best job
security we can have at New Paris without COMPUL-
SORY UNIONISM—OR—for UNION DOMINATION
and this Union’s history of FAILURES at Evansville
and Waxahachie. They failed at Evansville to get a
workable contract and the jobs are going to be moved
to Dublin, Georgia. The Steelworkers failed at
Waxahachie. Now they want to play with your jobs
when now is the time for us to stay unique (non-union)
with the greatest job security we can have (quality man-
ufacturing with no interruption for strikes, grievances,
red tape, compulsory unionism) here at New Paris. Yes,
the Dubuque Union Bosses want to take away your
non-union status. WHY? So that they can have more
money in Dubuque. They really don’t care about you,
but only want to take your money in the form of
$19.50 a month.
Because we feel it is so vital to all our jobs here at
New Paris in these recessionary and concessionary
times, we are asking each and every one of you to
VOTE NO in this election. We will also be stating
Flexsteel’s position in communications to you during
the next few weeks.
We will inform you why we feel we do not need a
Union here, and in fact, why we feel a Union could be
harmful to all of us.
FLEXSTEEL
By: Ronnie Nash
Plant Manager
According to Nash this memorandum remained posted for
longer than a week. Although an employer has the right to
present its views during an organizational campaign, it does
not have the right to threaten loss of job security or jobs
solely because of the possibility of union representation. In
my opinion, that is what the January 28 posting does, espe-
cially following closely the January 22 and 24 postings. The
posting clearly equates the Union’s presence at the Evans-
ville facility for the loss of that facilities’ jobs to Respond-
ent’s nonunion Dublin, Georgia plant. It also clearly equates
job security with nonunion status. No other circumstance
other than union representation is given for the loss of jobs
at Evansville and that is the only circumstance given which
would threaten jobs at New Paris. I believe this posting con-
stitutes a threat and crosses the line of permissible campaign
statements of position and opinion. See White Plains Lincoln
Mercury, 288 NLRB 1133 (1988).
2. Alleged threats by Supervisor Sensibaugh to
employee James J. Hall of plant closure and job loss
(complaint allegations 15 and 16 above)
James J. Hall is an employee of Respondent working as
a forklift driver and die setter. About 2 weeks before the
election, Hall had a conversation with Supervisor Larry
Sensibaugh at his workstation. It was preceded by a remark
made by Hall to fellow employee Janet Newell. He told her
that she would probably be for the Union if she were not
running around with Sensibaugh. Sensibaugh, who was ap-
parently present, said that if the Union gets in, Respondent
was going to make the plant a warehouse so he (Hall) might
as well fill out a resume. Sensibaugh also told Hall that if
the Union got in, Respondent would not be generous about
giving more time for jobs (on piece-rate jobs). This would
have the potential effect of lowering wages. Sensibaugh ad-
mitted having a conversation with James J. Hall in which he
said the Respondent might not be able to be as lenient as it
had in the past (if the Union was voted in).
Sensibaugh denied having the portion of this conversation
involving resumes and plant closure with James J. Hall, but
testified about a similar conversation with another employee,
James M. Hall, at a time at the end of January when
Sensibaugh was at his desk updating his resume. He testified
that James M. Hall approached him and asked if he had
heard rumors that the plant was going to close down and be-
come a warehouse if the Union was voted in. Sensibaugh
said he had heard no such rumors. Hall then asked him what
he was doing and he said he was updating his resume, mak-
ing the comment that if the place would close down for any
reason, he wanted to be prepared. Sensibaugh admitted he
knew of no reason the plant would shut down.
I credit the testimony of James J. Hall over that of Super-
visor Sensibaugh. Uncontroverted evidence reflects that there
was a rumor circulating in the plant during January that the
plant would be closed and turned into a warehouse if the
Union were voted in. Sensibaugh admitted discussing with
another employee the preparation of his resume in the con-
text of it being needed if the plant closed for any reason. His
general denial of the conversation with James J. Hall does
265FLEXSTEEL INDUSTRIES
7 Sensibaugh’s admitted conversation with employee James M.
Hall is also coercive and violates the Act in the context of the con-
versation. It clearly conveys the threat that the plant might close if
the Union were voted in.
not seem credible when compared with the relatively detailed
and straightforward testimony of Hall. Sensibaugh also ad-
mitted having a conversation with James J. Hall in which he
threatened that Respondent would not be as lenient if the
Union became the employees’ representative. I also credit
James J. Hall’s version of this conversation. Accordingly I
find that Supervisor Sensibaugh’s comments to James J.
Hall, in the presence of another employee, Janet Newell,
constitute a threat of plant closure if the Union were voted
in. Such a threat, involving the potential of job loss, is clear-
ly coercive and in violation of Section 8(a)(1) of the Act.7
Similarly, Sensibaugh’s threat that time allotted for piece-rate
jobs would not be as generous if the Union were voted in
is highly coercive as it directly affects an employee’s pay.
I find this threat also violates Section 8(a)(1) of the Act.
Respondent argues that it should not be held liable for
Sensibaugh’s threats or the alleged threats of other super-
visors because the supervisors had been specifically in-
structed by Respondent’s counsel not to engage in such ac-
tivity. They were told in meetings with the Respondent’s
labor counsel that they could not do what the counsel called
SPIT (Spy, Promise, Interrogate or Threaten). In this regard
Respondent cites National Apartment Leasing, 272 NLRB
1097 (1984). In that case, the Board held that it would look
to see if a supervisor alleged to have made threatening state-
ments had authority to make such statements on behalf of
management, or whether such supervisor was reasonably
viewed by employees as speaking on behalf of management.
Accepting Respondent’s argument that its supervisors were
not specifically instructed to threaten employees and to the
contrary, received specific instructions from its counsel not
to threaten, interrogate, spy on, or promise employees, I still
find that Respondent’s supervisors were its agents in this re-
gard and that Respondent is legally responsible for their ac-
tions. In addition to what Respondent told its supervisors
what they could not do, it is important to look at what it told
them to do during the campaign.
The supervisors were instructed by Plant Manager Nash to
meet one on one with employees, to ask them if it was all
right to speak with them about the Union, and if they said
yes, to ask them what they felt the Union could do for them
and other similar questions. The supervisors were then told
to tell the employees what management was currently pro-
viding for them, stressing that their wages, benefits, and
working conditions were good in relationship to other com-
panies in the area.
Additionally, the supervisors were asked to give their
opinions to management about how they believed employees
under their supervision would vote in the election. This was
referred to in notes of a supervisors’ meeting under direc-
tions to supervisors to ‘‘talk to associates one on one,’’ and
‘‘take informal poll (union—questionable—no union).’’ Plant
Manager Nash testified that this ‘‘poll’’ was to come from
the supervisors’ knowledge and judgment and they were not
to interrogate employees.
The written material promulgated by Respondent and post-
ed or mailed to employees certainly gave tacit approval to
its supervisors to convey the thoughts therein contained to
employees and removes any doubt that employees could rea-
sonably believe that these supervisors were speaking on be-
half of management when they spoke of loss of jobs, plant
closure, loss of benefits, and other matters mentioned in the
written material. It is also clear that Respondent’s supervisors
were considered management by the employees under their
supervision. No specific instructions had been given to the
supervisors about the exact parameters of their conversations
with employees, except they were to convey management’s
belief that the employees did not need a Union. That what
they said followed the line put forth by management in its
posting of an article attributing the closing of a sister union-
ized plant and the shifting of that plant’s work to a nonunion
plant, and a letter which indicated that employees could lose
their existing benefits through collective bargaining would
make their statements even more believable to employees.
Therefore, even under the test set out by the Board in Na-
tional Apartment Leasing, supra, Respondent is liable for the
actions of its supervisors during the campaign.
D. Alleged Impression of Surveillance Given by and
Alleged Threats Made by Respondent’s Supervisor Jack
Moon (Complaint Allegations 7 and 8, above, and
Objection 2)
Stoney Gawthrop is employed as an assembler by Re-
spondent. He supported the union campaign, attended some
meetings, and talked with his friends about the Union. He
was on the union employee organizing committee. He signed
an authorization card and wore a union button at work for
about 2 days. He also had about seven or eight other em-
ployees sign authorization cards. In this regard, he testified
about a conversation with his supervisor, Jack Moon, which
took place a week or two before the election. Moon ap-
proached him at his workstation and told him that he knew
that he was getting people to sign authorization cards and not
to do it. Gawthrop replied that he did not know what Moon
was talking about. Moon said that he knew what he was talk-
ing about because people had told him that Gawthrop was
getting them to sign cards. Moon then commented that
Gawthrop was low in seniority and would be one of the first
ones to go.
Moon testified that an employee named Francesca came to
him and told him that Gawthrop had come to her house to
convince her to vote for the Union, stayed a long time, and
she had difficulty getting get rid of him. Moon testified that
later that day he saw Gawthrop moving from one workstation
to another and told him that it was fine for him to talk about
the Union in the break area and lunchroom, but he could not
do so in the work area. He did not hear what Gawthrop was
saying to other employees nor did he ask them. He evidently
assumed it was union business. He testified that he also
asked Gawthrop if he knew what unions were about and
Gawthrop said he did because his Dad was in one. Moon
said that its got a lot to do with seniority, and Gawthrop re-
plied that he did not have a lot of it (seniority). According
to Moon, the conversation ended there. Moon denied threat-
ening Gawthrop and denied telling Gawthrop that he knew
he was signing up people and not to do it.
I credit Gawthrop’s version of his encounter with Moon
over that given by Moon. Gawthrop’s testimony was more
consistent and believable. Moon made a great deal about the
266 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
complaint he received from the employee Francesca, yet the
activity complained about by her did not take place at work
and was not covered by any employee rule. It appeared to
me that he was searching for an excuse for his surveillance
of Gawthrop and his threat to Gawthrop. Even Moon’s ver-
sion of the events reflect giving the impression of surveil-
lance and the implied threat of Gawthrop’s loss of his job
if the Union were voted in. I find that Moon’s statements to
Gawthrop are coercive, give the impression of unlawful sur-
veillance of Gawthrop’s protected activity, and threaten job
loss because of that activity. Accordingly, I find that Re-
spondent has violated Section 8(a)(1) by the actions of its su-
pervisor, Moon.
E. Threats Made in a February 7 Letter Concerning
Loss of Wages and Benefits and Delays in the
Collective-Bargaining Process and Related Threats
Made by Supervisor Sensibaugh
1. The February 7 letter (complaint issue 13, above)
During the Respondent’s campaign against the Union, it
distributed to employees a number of memorandums or let-
ters. One such letter, dated February 7, reads:
BARGAINING: WHAT IS THE LAW?
Some associates have said, ‘‘What have I got to
lose? By bringing in a union, don’t I start with my
present wages and benefits and then get an automatic
increase?’’
However, this is so WRONG! The NLRB has upheld
statements describing the Bargaining Process to be law-
ful which said:
‘‘the parties come together with two BLANK
pieces of paper’’
and that
‘‘the bargaining will START from SCRATCH’’
and
‘‘THAT PRESENT BENEFITS could be LOST’’
(Copy of NLRB Decision 259 NLRB No. 70 at-
tached)
Also, the Union could TRADE some of your present
PAY, HOLIDAYS HEALTH INSURANCE in order to
get a UNION SHOP (where everyone must join the
Union in 30 days) and an AUTOMATIC DUES
CHECKOFF. (See attached SELL-OUT AGREEMENT
where the Union traded such benefits for a union shop
and AUTOMATIC DUES CHECKOFF made by Fur-
niture Workers Union).
Negotiations often go on for MANY MONTHS
while your WAGES and BENEFITS WOULD BE
FROZEN by law (the Company could not unilaterally
give a wage increase) while negotiating continue.
FEDERAL LAW gays that NEITHER SIDE hag to
AGREE to any DEMAND or make CONCESSIONS.
So you see, you won’t necessarily KEEP ALL
PRESENT BENEFITS and just get more in
NEGOTIATIONS! THIS IS ABSOLUTELY WRONG,
BECAUSE THE UNION CAN’T EVEN GUARAN-
TEE that you will keep your PRESENT WAGES OR
PRESENT BENEFITS. THEY CAN’T GUARANTEE
ONE SINGLE ITEM.
Although we would bargain in good faith, if the
Union would make unreasonable demands, the only
weapon to back up such demands would be to TAKE
YOU OUT ON STRIKE. And, to those of you who say
that you will not support a strike, I point out to you
that every Union CONTROLS the ‘‘STRIKE VOTE’’
and always will.
We are NOT going to AGREE to unreasonable de-
mands. You should not be MISLEAD by DUBUQUE
and Evansville UNION BOSSES who have no interest
in you at New Paris except to get YOUR JOBS back
in their cities. We need to support each other here in
NEW PARIS without STRIKES, with a UNION SHOP,
without PICKET LINES, and without a UNION. For
the SUCCESS of NEW PARIS and your jobs.
Signed by Ronnie Nagh
At the hearing, though nothing in the February 7 letter
would go indicate, it was asserted that this letter was distrib-
uted in response to a union distribution which states:
HERE’S WHY YOU DON’T NEED TO BE
CONCERNED:
1. Nobody can order us to go on strike. Only we, the
employees of Flexsteel, New Paris will decide if we
are to strike ever.
2. The only way we would ever go on strike is if we,
the employees of Flexsteel, New Paris, voted in a se-
cret ballot election. We don’t know anybody in our
plant who wants to strike.
3. Federal Law requires the company to bargain, with
the Union, in good faith, for the purpose of achieving
a signed contract. That means under penalty of law,
the company and the Union have a legal obligation to
get the job done right and not play games.
4. Under Federal Law, once we vote for the Steel-
workers, the company cannot change our wages or
benefits unless we agree to such changes.
5. If we should ever see the need to exercise the right
to strike, the Steelworkers Strike and Defense Fund
has in excess of $150 million dollars. Strike benefits
for newly organized units start from day one;
$85/weekly for the first 2 weeks, $115 for the 3rd
week, $115 for the 4th, 5th, and 6th weeks, and $125
from the 7th week on.
If the Respondent’s letter was issued to correct some
misstatement of law contained in the union distribution, I
cannot find that it does so. I can find no misstatement of the
law in the union distribution except for the generalization in
paragraph 4, above, which does not address the possibility of
impasse being reached after good-faith bargaining. Certainly
the highlighted statements in the February 7 letter which say:
‘‘the parties would come together with two blank pieces of
paper,’’ the bargaining will start from scratch, and ‘‘that
present benefits would be lost,’’ do not address any
misstatement of law. These statements, taken without any ra-
tional context or explanation of the bargaining process ap-
pear to me to be nothing more than the type of threat found
267FLEXSTEEL INDUSTRIES
to be unlawful in Lear-Siegler Management Service, 306
NLRB 393 (1992). Therein, the Board found the statement
‘‘Under the union, all benefits would have to be negotiated,
starting from zeros to be unlawful as it was not made in a
context which made clear that any reduction in wages or
benefits will occur only as a result of the give and take of
negotiating.’’ In the involved letter, there is no indication of
normal give and take in negotiations, only the clear indica-
tion that benefits will be lost as a result of union representa-
tion. Indeed, the letter goes on to gay that ‘‘Federal saw says
that neither side has to agree to any demand or make conces-
sions,’’ and follows this statement with ‘‘you won’t nec-
essarily keep all present benefits and just get more in
negotiations!’’ and ‘‘[T]his is absolutely wrong, because the
union can’t even guarantee that you will keep your present
wages or present benefits.’’
I also believe the letter is violative of the Act when it
states that ‘‘Negotiations often go on for many months while
your wages and benefits would be frozen, by law (the Com-
pany could not unilaterally agree to give a wage increase)
while negotiations continue.’’ Absent any hint in the letter
that there was a possibility that the Company and Union
might reach an agreement on anything, I believe that this
statement constitutes a threat that the Company would delay
negotiating and use the bargaining process as a means to
avoid giving any increases in wages or benefits. This is even
more true given the threats noted above that benefits would
be lost because of the bargaining process. See Frank’s Nurs-
ery & Crafts, 297 NLRB 781 (1990), and Columbus Mills,
303 NLRB 223 (1991).
For the reasons set forth, I find that Respondent’s letter of
February 7 violates Section 8(a)(1) as alleged in the com-
plaint.
2. Alleged threats made by Supervisor Sensibaugh in
connection with the February 7 letter (complaint
allegation 6)
Employee Thomas Dye had a conversation with his super-
visor, Larry Sensibaugh, about this letter. Dye and two other
employees were standing near Sensibaugh’s desk when he
approached. The employees were talking about the letter and
Sensibaugh joined in the conversation. Dye said that he be-
lieved that what the letter said was not true. Sensibaugh said
the letter was true and that if the Union were voted in, the
employees would have nothing, and would lose everything
they had. Sensibaugh took a blank piece of paper and laid
it on his desk, saying that is what the employees would have.
Dye got mad, said that was a lie, and walked away.
Employee James M. Hall testified that he was present at
this conversation and remembers Sensibaugh pulling out a
blank rate card and saying that is where the employees will
start if the Union is voted in.
Employee James L. Hare testified that he heard this con-
versation and that Sensibaugh said that if the Union gets in,
employee pay and benefits would go down to zero and bar-
gaining would begin at that point. He remembers Sensibaugh
taking a blank piece of paper and saying this is what you
will start with. Hare said that he did not believe that the em-
ployees could lose their benefits, prompting Sensibaugh to
again refer to the blank sheet and say this is where you will
start. After this conversation, Hare wag approached by em-
ployee Richard Smith who seemed upset. Smith asked him
whether the Respondent could take away his health insurance
if the Union was voted in. Hare said he did not think so, but
that Smith should call the Labor Board to make sure.
Sensibaugh recalls only a conversation with Dye in this re-
gard. He remembers Dye approaching him, showing him the
letter, and telling him it was not true. According to
Sensibaugh, Dye said bargaining would not start from
scratch. Sensibaugh testified that he told Dye he would find
out more information and get back with him. He then went
into a meeting with his supervisor and asked for more infor-
mation. Later, he sought out Dye and told him that every-
thing would remain frozen with respect to employee benefits
and wages, and the Company and Union would get together
with two blank pieces of paper and draw up a contract. He
denied telling employees that they would lose all their bene-
fits if the Union came in, and pointing to a blank piece of
paper. He denies any conversation with James M. Hall on
this subject, and similarly denies any such conversation with
Jim Hare.
I credit Dye’s and the other employees’ version of the in-
volved conversation over that of Sensibaugh. I have already
found Sensibaugh to be less than candid, and I do so again
in regard to this conversation. In his affidavit given to the
Board during the investigation of this case, Sensibaugh could
not recall any conversation with any employee where ‘‘bar-
gaining from scratch’’ or a ‘‘blank piece of paper’’ came up.
I can find no reason to credit his selective memory improve-
ment over the apparently credible testimony of employee
witnesses Dye, Hare, and Hall. The statements attributed to
Sensibaugh by these employees are clearly coercive and I
find them to be in violation of Section 8(a)(1) of the Act.
F. Allegations of Interrogations, Surveillance, and
Promises By Don McFarland and Ken Hampton
1. The alleged interrogation and impression of
surveillance by Don McFarland (complaint allegations 9
and 10, above)
Leroy Clark is employed by Respondent as a tool-and-die
maker and is the only employee in that category at New
Paris. Clark was the first employee to contact the Union
about possible representation at New Paris. This contact took
place in early October 1991. He thereafter engaged in getting
authorization cards signed and solicited support from fellow
employees. In the first part of December 1991, before he
began wearing any insignia of union support or otherwise
identifying himself as a union supporter, he had a conversa-
tion at the plant with Don McFarland. McFarland asked him
if he had attended a union meeting and Clark said he had.
According to Clark, this ended the conversation. About a
week later, he had another conversation with McFarland in
which he asked the same question. Clark had not attended
a meeting that week so he responded negatively. McFarland
then asked if Clark had heard how many employees had at-
tended the meeting. Clark responded that there were not
enough to worry about.
In yet another conversation in the same timeframe, McFar-
land and Clark were discussing a problem with getting co-
operation from Respondent’s general foreman, Ken Hampton.
Clark commented that if McFarland could not change the
process around so that the employees could have good com-
munications and a good workplace, that the Union would get
268 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 E-Rep meetings were meetings between employee representatives
and management for the purpose of solving work-related problems.
The program was evidently not successful and had been canceled for
some time prior to the instant organizing campaign.
his vote. McFarland said it was out of his hands, that he had
done all that he could. McFarland also told Clark that he had
heard a rumor that Clark was the person who had started the
union campaign. Clark indirectly denied the rumor. In an-
other conversation, McFarland related to Clark that he had
heard a rumor that Clark was passing out authorization cards.
Clark declined to tell him whether he was so engaged or was
not.
Clark testified that he and McFarland were good friends
with a very close relationship. During the campaign they
talked openly about the Union. However, he did not want to
volunteer information about his role in the campaign as he
feared retaliation from General Foreman Ken Hampton.
McFarland testified that he and Clark had a good relation-
ship and talked almost daily. McFarland admitted telling
Clark that he had heard a rumor that it was Clark who start-
ed the union campaign. With respect to the matter of ques-
tions about union meetings, McFarland could not remember
if he asked Clark about them or whether Clark just volun-
teered the information. At a later point in his testimony, he
testified that Clark volunteered the information that not
enough people attended the union meeting to be worried
about. Ne denied ever asking Clark if he was getting em-
ployees to sign authorization cards. In this regard, Clark tes-
tified that McFarland told him that he (McFarland) had heard
that he was passing out such cards. I credit Clark on this
point. McFarland generally corroborated Clark’s testimony to
the extent that he could remember the conversations and his
memory of them was not as clear as Clark’s. Moreover,
Clark noted this statement in an affidavit given to the Board
in April, a time much closer to the conversations in question
than the hearing held herein. Such a statement would also be
consistent with McFarland’s admitted mentioning of the
rumor about Clark starting the union campaign.
McFarland testified that the way he discussed the Union
with Clark indicated that he considered the Union a problem.
McFarland also testified that he believed that the rumor
about Clark starting the union campaign could be detrimental
to Clark.
Given the admittedly close relationship between Clark and
McFarland, I would not ordinarily find a violation based on
their conversations about the Union. I believe that McFarland
knew that Clark was a union supporter based on his support
of the Union in an earlier organizing campaign at the plant,
and Clark’s statements to McFarland that the Union would
get his vote if things were not changed around at the plant.
However, I believe the matter of their friendship is over-
shadowed by the veiled threat implicit in the questioning of
Clark by McFarland about the rumor that Clark was behind
the current campaign and the rumor that Clark was passing
out authorization cards. Clark testified that he was fearful of
divulging his role, fearing retaliation from Hampton. Even
McFarland indicated he viewed the Union as a ‘‘problem’’
and believed the rumor about Clark’s instigating the union
campaign could be detrimental to Clark. I find that the threat
implied in the questions about Clark’s role in starting the
campaign tends to make the whole line of questioning Clark
about his and other employees’ attendance at union meetings
coercive.
I also find that mentioning the rumor about Clark passing
out authorization cards to relay an impression of surveillance
and convey an implied sense of disapproval, if not an actual
threat. It would certainly tend to coerce and restrain Clark
from continuing this line of protected activity. I therefore
find that the conversations between McFarland and Clark ag
described above constitute unlawful interrogations and creat-
ing the impression of surveillance in violation of Section
8(a)(1) of the Act.
2. Alleged interrogation by General Foreman Hampton
and promises of improved terms of employment
(complaint allegations 1 and 2, above)
Dawn Hepler is employed as a press operator and painter
for Respondent. She supported the Union by attending meet-
ings, passing out buttons, and making house calls. She also
passed out handbills in the lunchroom. She confined her
handbilling to the lunchroom as she had seen McFarland tell-
ing Chaney that they could not be passed out in work areas.
She testified that she attended a meeting for employees held
by Respondent during the campaign and after the meeting
stayed to talk with Plant Manager Nagh and General Fore-
man Hampton. She tried to explain to them how the union
campaign came about, that employees wanted a fairer work
rate on their piece work. She asked Nagh and Hampton
about a rumor she had heard that they were going to turn
the plant into a warehouse if the Union was voted in. Nagh
said that the rumor was not true; however, no general an-
nouncement was made to employees to this effect.
About 2 days later, she had a discussion with Hampton
wherein he thanked her for talking with Nagh and himself.
Hampton, who initiated the discussion, allowed as how the
Company was really scared that the Union would get in.
Hepler then said that Respondent had to listen to the employ-
ees and if they had listened there would be no campaign.
Hampton replied that the employees did not need a third
party, that the Company and employees could work out their
problems. He said there would be some changes if the Union
lost so that Respondent would not have to go through a cam-
paign again. He said that if the Union did get in there would
be a lot of changes that the employees would not want.
Later that day she had another conversation with Hampton.
She was wearing a union hat and Hampton asked her what
she thought about that, pointing to the hat. She said it was
a good thing. He then repeated what he had said earlier.
Hampton testified that he spoke with Hepler after the
meeting with himself and Nash. He asked Hepler if he could
talk with her about the Union and she agreed he could. He
asked her what wag the biggest problem, and she said that
work rates were not taken care of in the proper way and em-
ployee questions were not being answered in a timely fash-
ion. Hampton commented that the E-Rep meetings had
stopped quite a while back and that management had lost its
means of communicating with the employees.8 He denied
making any promises or saying things would change or that
employees would not want the changes. He believed Hepler
to be a union supporter at that time because of her actions
in asking questions at the employee meeting, much like a
spokesperson.
269FLEXSTEEL INDUSTRIES
I credit Hepler’s version of the involved conversations.
She appeared to be an entirely credible witness and had a
much better memory of the conversations than did Hampton.
Moreover, Hampton admitted the fact of the conversations,
that he asked her about the cause of the organizing effort and
commented that management had lost its means of commu-
nication with the end of the E-Rep program. I believe that
by telling Hepler, after she had stated that employee work
rates and communication were the problems behind the cam-
paign, that positive changes would take place if the Union
did not get in and negative changes would take place if it
did constitute both a promise and a threat. In the context
given, Hepler could only draw the implication from such
statements that work rates would be more favorable and
communications would be improved if the Union were not
voted in. Mentioning the E-Rep program would only enforce
this implication. Although Respondent questions whether
Hepler could reasonably believe that Hampton spoke for
management in making this promise and threat, I find that
that question must be answered that she could and did. This
conversation was a follow up to her talk with Plant Manager
Nash and Hampton after the Respondent’s employee cam-
paign meeting. If they were speaking for management at that
meeting, one would have to draw the presumption that
Hampton was speaking for management when he approached
Hepler and began the conversation by reminding her of that
earlier meeting.
I find that the promises and threats made to Hepler by
Hampton are coercive and in violation of the Act, and the
interrogation itself to be unlawful as it was accompanied by
this promise and threat.
G. The Alleged Unlawful Wage Deduction (complaint
allegations 11 and 12, above)
On February 21, with the employees paychecks, they also
received a letter which reads:
Today your regular paycheck is S50.00 short!! What
makes up this $50.00 amount is shown on the enclosed
sample union bill for DUES ($240.00 a year), rep-
resenting $20.00 a month for DUES, $10.00 for a FINE
for NOT ATTENDING UNION MEETINGS, and
$20.00 for a STRIKE ASSESSMENT to pay for
STRIKES at other Steelworkers Union plants. This
$50.00 will be given to you in cash and should be
picked up from me, Tom Morris, Ken Hampton, or Don
McFarland immediately.
Together, your check and the money you will receive
today from us will make up your total paycheck.
I am not saying this is the exact amount the Union
is going to charge you. IT COULD BE MORE!! The
Union could even FINE you for crossing a PICKET
LINE and coming into work during a STRIKE.
In fact, the Union could DOUBLE YOUR DUES
($40.00 a Month) to pay for a strike at some other
Steelworkers Union plants.
Also, this money does not include any FINES for
DISCIPLINARY ACTIONS for failure to follow the
Union’s ORDERS. Remember that part of the hard-
earned money you have in your hand for DUES is what
you would pay MONTHLY. Money that you could
apply on your gas and electric bill, mortgage, rent or
car payment.
If the Union should be successful in winning the
February 28th election, CHARGES like these would
probably be DEDUCTED AUTOMATICALLY from
your paychecks EACH MONTH.
DO YOU NEED THE UNION OR DOES THE
UNION NEED YOUR MONEY TO PAY THEIR
HUGE SALARIES WHICH I SHOWED YOU? ISN’T
THE BEST ANSWER TO VOTE ‘‘NO’’ ON FEB-
RUARY 28TH.
Signed: Ronnie Nash
When the employees went to one of the members of man-
agement named to pick up the withheld $50, they were re-
quired to sign a receipt in the form of a union bill which
set out the amounts withheld as described above. The ‘‘re-
ceipt’’ reads:
I have received this 21st day of February, 1992,
Fifty Dollars ($50.00) in cash from FLEXSTEEL IN-
DUSTRIES, INC. which represents one MONTH’S
DUES, a fine for not attending union meetings and a
STRIKE ASSESSMENT of $20.00 for me to pay for
Steelworkers’ Union strikes at other plants, that could
be deducted from my paycheck if we agree to an
AUTOMATIC DUES CHECKOFF and a Union comes
in at FLEXSTEEL INDUSTRIES, INC., (New Paris).
Associate’s Signature
WITNESS:
Employee Leroy Clark went to McFarland and refused to
sign the receipt as he believed it was not true. McFarland
said he had to sign something because he needed a receipt.
Clark told McFarland to give him a check or something to
sign that was true, or he would go to the Labor Board. Ac-
cording to Clark, McFarland told him to go to the Labor
Board. Clark was given a check for $50 the next day.
Clark doubted the truthfulness of the letter and receipt as
he had been given information by the Union that indicated
that the figures used by the Respondent were incorrect.
McFarland testified that Clark came to him and demanded
his $50. According to McFarland, Clark refused to sign the
receipt and he said he would not give him the $50 without
a receipt as he was accountable for the cash. Clark then left.
McFarland denies anything being said about the Labor Board
at this time and testified that Clark did not tell him why he
was not signing the receipt. He testified that Clark was upset
and cannot recall whether or not Clark said the Company had
no right to deduct the $50 from his paycheck. Two days
later, McFarland had a conversation with Clark in which
Clark informed him that he had called the Labor Board on
the day the incident occurred and was told to go in the next
day and pick up his check. According to McFarland, Clark
said he had no hard feelings and offered to buy McFarland
a hot chocolate. I credit Clark’s version of these conversa-
tions.
I find this so-called simulated dues checkoff to be coercive
and violative of the Act for the following reasons. One, it
purports to establish as a minimum a $50 deduction from
each employee’s paycheck without any factual support for
270 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
the numbers being given. The letter which announces the de-
duction indicates that the $50 deduction is a minimum figure
and might be more. Second, to receive the money rep-
resented by the deduction, employees were required to sign
the receipt set out above which requires the employees’ ac-
knowledgment that such deductions, again without any fac-
tual support, could be deducted from their paychecks if the
Union were voted in. Third, Respondent did not have in
place any means to immediately pay the employees the $50
it withheld from their checks if they refused to sign the re-
ceipt. Clark refused and had to wait until the next day to re-
ceive a check for the amount withheld. Tampering with em-
ployee paychecks without permission of the employees is
certainly a serious matter and one guaranteed to get their at-
tention. Because of the seriousness with which employees
treat their pay, I do not believe the Respondent has the right
to play fast and loose with the facts in the process of with-
holding pay without any employee authorization, and then
force employees to sign a purportedly factual antiunion re-
ceipt to get this pay without delay. For the foregoing reasons,
I find that Respondent’s actions in withholding $50 and re-
quiring a day’s delay in paying the sum to Clark when he
did not sign the receipt for the $50 in cash to go beyond
simply stating Respondent’s opinion about the possible re-
sults of unionization and is an unlawful and coercive intru-
sion upon their protected rights. Consequently, I find that
Respondent violated Section 8(a)(1) of the Act in this regard.
H. Objection Based on Alleged Election Line
Misconduct
The Union’s Objection 6 alleges that the Respondent inter-
fered with the voting procedure by maintaining a presence
outside the voting area immediately after the polls opened
and immediately after the polls closed. Specifically, the
Union contends that for a period of time, General Foreman
Ken Hampton engaged employee Lewis Wallace in conversa-
tion in the vicinity of the voting area while Wallace was
waiting to vote, such conversation taking place within the
view of a number of other voters.
Wallace testified that he was a member of the organizing
committee and attended a couple of union meetings. He was
on layoff status at the plant immediately prior to the vote be-
cause of his son’s serious illness. He came to the plant on
election day wearing his union button and asked Supervisor
Larry Sensibaugh where to go. Sensibaugh directed him to
the voting area and he joined a line of voters. According to
Wallace, Ken Hampton approached him and started talking,
so he stepped out of line to let people continue to move for-
ward while they talked. About 10 or 15 people were in line
when this conversation began. Wallace testified that he and
Hampton moved about 5 feet away from the line and had a
conversation that lasted about 15 to 20 minutes. During this
time another five to eight people joined the line. After the
conversation ended, Wallace rejoined the line and voted. He
testified that people in line would glance at he and Hampton
while they talked. The conversation was friendly and con-
cerned the condition of Wallace’s son and the timing of Wal-
lace’s return to work.
Ken Hampton admitted that he had such a conversation
with Wallace on the day of the election, but contends that
the conversation did not take place near the voting area or
within the view of any voters. He testified that the plant is
divided by a partition which separates the metal shop from
the upholstery department. The election was held in the up-
holstery breakroom. Hampton testified that on the day of the
election, he saw Wallace coming toward his office which is
on the metal shop side of the partition. He greeted him and
asked how he and his son were doing. He asked when Wal-
lace thought he could return to work. After this conversation,
which he estimated lasted 2 or 3 minutes, Hampton testified
he directed Wallace to the election area, which was on the
other side of the partition dividing the plant. Hampton denies
that he took Wallace out of the voting line or that Wallace
had even been in the voting line when they spoke. He testi-
fied that the conversation took place adjacent to his office
and adjacent to the door leading over to the voting place.
According to Hampton, from this location, one could not see
the polling area nor could one see the line of employees
waiting to vote.
Hampton’s version of where the conversation took place is
not only challenged by Wallace, but by two other employees
who testified that they observed the conversation. Employee
Thomas Dye testified that, on election day, the employees
voted by department and would stand in line to enter the vot-
ing area. He testified the voters lined up near a large opening
in the partition which divided the plant. Through this open-
ing he could see at least 10 or 12 people who were standing
in line to vote. He noticed that Hampton pulled Wallace out
of line and engaged him in a conversation. This struck Dye
as strange as the employees had been told that there were to
be no supervisors in the voting area. Dye said everyone in
line at the time could observe Hampton and Wallace having
a conversation.
Employee James M. Hall testified that he too observed
Hampton speaking to Wallace during the voting procedure
near the line of employees waiting to vote.
I credit the testimony of Wallace and the other two em-
ployees over that of Hampton. Hampton does not deny that
the conversation took place, only its location. On this point
the testimony of the three employees appeared truthful. It
seems incredible to me that Wallace, Dye, and Hall would
make up their testimony about the location of the conversa-
tion. Moreover, Wallace testified that Supervisor Sensibaugh,
not Hampton, directed him to the voting area. Sensibaugh
testified after Wallace and did not deny this testimony. I find
that Hampton did engage Wallace in a conversation in the
vicinity of the voting area, within the view of other voters
and thus sustain the Union’s objection in this regard. Such
conduct is normally found to be prejudicial and I so find.
Milchem Inc., 170 NLRB 362 (1968).
I. Union’s Objection Based on Allegations of
Objectionable Promises
Under a portion of the Union’s Objection 4, it alleges that
Respondent, in a campaign speech given to employees on
February 27, promised the formation of a Manage-
ment/Associate Committee in response to a request from cer-
tain employees and this amounted to an objectionable prom-
ise of benefit should the employees reject representation.
Employee Rebecca Chaney testified that on February 27,
1992, she attended a company-sponsored dinner where, inter
alia, Plant Manager Ronnie Nash told the assembled employ-
ees that he wanted to establish a committee comprised of
employees and management to work on the problems that
271FLEXSTEEL INDUSTRIES
were causing employees to want the Union. According to
Chaney, this was a new suggestion; however, she did not
consider it to be a promise. It was said during a part of a
speech given by Nash. The text of that speech in pertinent
part reads:
I have been approached by two loyal associates who
asked me to form an Associate-Management Committee
that would work together as a team to establish in pri-
ority a list of problems with goals and timetables to re-
solve these problems, and to establish common ground
to work together as a team with a common goal.
While I can’t promise you anything at this time or
that we will have this type of committee, I can inform
you that with our Quality Work Groups that a good part
of you have already received training, part of our over-
all program does include plans for some form of joint
Management-Associate Participation Committee to deal
with all our problems including Quality. This Commit-
tee will take the shape of our E-Rep Meetings that we
had a while back. This is part of our Quality Work
Group Plans that have already been decided.
Chaney testified that the E-Rep groups were composed of
an employee representative and a management team. Her un-
derstanding was that through the representative, employees
could request new equipment or bring up work-related prob-
lems. She was of the opinion that nothing much came of
these meetings. Employee Leroy Clark testified that company
dinners were unusual and that the last one occurred in 1986,
also during the course of a union organizing campaign.
I do not believe that the record is clear enough on this
point to sustain the objection. There is nothing to indicate
that Nash deviated from the prepared speech, and in the
speech he does not promise anything new. Evidently there
were already in place some form of quality groups, and the
only thing that Nash added was that these groups would have
some procedure for providing a forum for discussion of all
problems, not just those involving quality. The speech indi-
cates that this was part of an existing plan and I can find
no proof that it was not. There is also no threat that this pro-
gram’s continuance was dependent on the employees reject-
ing the Union. Accordingly, I overrule this portion of the
Union’s Objection 4.
IV. CONCLUSIONS WITH RESPECT TO THE ALLEGED
UNFAIR LABOR PRACTICES AND OBJECTIONS
For the reasons set forth above, I have found that Re-
spondent has violated Section 8(a)(1) of the Act in every re-
spect alleged in the complaint. I have further sustained the
Union’s objections as they correspond to the unfair labor
practice allegations and additionally, Objection 6. Pursuant to
the Board’s usual policy, a new election is to be directed
‘‘whenever an unfair labor practice occurs during the critical
period since [c]onduct violative of Section 8(a)(1) is, a
fortiori, conduct which interferes with the exercise of a free
and untrammeled choice in the election.’’ Dal-Tex Optical
Co., 137 NLRB 1782, 1786 (1962), quoted with approval in
Clark Equipment, 278 NLRB 498 (1986). Accordingly, I rec-
ommend that the election conducted on February 28, 1992,
be set aside on the basis of the Union’s objections referred
to above and a rerun election be conducted.
THE REMEDY
Having found that the Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1) of the Act, I
shall recommend that it be ordered to cease and desist there-
from and to take certain affirmative action designed to effec-
tuate the policies of the Act.
CONCLUSIONS OF LAW
1. Flexsteel Industries, Inc. is an employer engaged in
commerce within the meaning of Section 2(2), (6), and (7)
of the Act.
2. United Steelworkers of America, AFL–CIO is a labor
organization within the meaning of Section 2(5) of the Act.
3. Respondent has engaged in unfair labor practices in vio-
lation of Section 8(a)(1) of the Act by:
a. Promising its employees unspecified improved terms
and conditions of employment if they would abandon support
for the Union.
b. Interrogating its employees regarding their union mem-
bership, activities, and sympathies.
c. Discriminatorily enforcing a no-solicitation, no-distribu-
tion rule against union-related solicitations and distributions
in plant work areas, while permitting nonunion-related solici-
tations and distributions in the same work areas.
d. Threatening its employees through its supervisors with
the elimination of their benefits and requiring the Union to
bargain from scratch if its employees selected the Union as
their collective-bargaining representative.
e. Giving its employees the impression that their union ac-
tivities were under surveillance by Respondent.
f. Withholding a portion of its employees’ pay as simu-
lated union dues, fines, and assessments without their author-
ization, requiring its employees to sign a receipt acknowledg-
ing their agreement with Respondent’s position that they
would be required to pay at least the amount withheld for
union dues, fines, and assessments, and delaying by a day
paying the amount withheld to any employee who refused to
sign the receipt.
g. Issuing to its employees written material wherein it
threatened its employees that it would delay the collective-
bargaining process leading to a contract for many months,
that it would delay wages and benefit increases regularly
given its employees because they selected the Union as their
collective-bargaining representative, and that it would elimi-
nate all wages beyond the minimum required of Respondent,
and other employee benefits at the start of any bargaining
with the Union.
h. Threatening its employees through its supervisors with
more onerous work rates and thus loss of pay if they selected
the Union as their collective-bargaining representative.
i. Threatening its employees through its supervisors with
loss of their jobs or discharge if they selected the Union as
their collective-bargaining representative.
j. Threatening employees through its supervisors with plant
closure if they selected the Union as their collective-bargain-
ing representative.
k. Issuing to its employees written material wherein it
threatens its employees with loss of work and jobs if they
selected the Union as their collective-bargaining representa-
tive.
272 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
9 If no exceptions are filed as provided by Sec. 102.46 of the
Board’s Rules and Regulations, the findings, conclusions, and rec-
ommended Order shall, as provided by Sec. 102.48 of the Rules, be
adopted by the Board and all objections to them shall be deemed
waived for all purposes.
10 If this Order is enforced by a judgment of a United States court
of appeals, the words in the notice reading ‘‘Posted by Order of the
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.’’
4. The unfair labor practices described above are unfair
labor practices affecting commerce within the meaning of
Section 2(2), (6), and (7) of the Act.
On the foregoing findings of fact, conclusions of law and
on the entire record, I issue the following recommended9
ORDER
The Respondent, Flexsteel Industries, Inc., New Paris, In-
diana, it officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Promising its employees unspecified improved terms
and conditions of employment if they would abandon support
for the Union.
(b) Interrogating its employees regarding their union mem-
bership, activities, and sympathies.
(c) Discriminatorily enforcing a no-solicitation, no-dis-
tribution rule against union-related solicitations and distribu-
tions in plant work areas, while permitting nonunion-related
solicitations and distributions in the same work areas.
(d) Threatening its employees through its supervisors with
the elimination of their benefits and requiring the Union to
bargain from scratch if its employees selected the Union as
their collective-bargaining representative.
(e) Giving its employees the impression that their union
activities were under surveillance by Respondent.
(f) Withholding a portion of its employees pay as simu-
lated union dues, fines, and assessments without their author-
ization, requiring its employees to sign a receipt acknowledg-
ing their agreement with Respondent’s position that they
would be required to pay at least the amount withheld for
union dues, fines, and assessments, and delaying by a day
paying the amount withheld to any employee who refused to
sign the receipt.
(g) Issuing to its employees written material wherein it
threatened its employees that it would delay the collective-
bargaining process leading to a contract for many months,
that it would delay wages and benefit increases regularly
given its employees because they selected the Union as their
collective-bargaining representative, and that it would elimi-
nate all wages beyond the minimum required of Respondent,
and other employee benefits at the start of any bargaining
with the Union.
(h) Threatening its employees through its supervisors with
more onerous work rates and thus loss of pay if they selected
the Union as their collective-bargaining representative.
(i) Threatening its employees through its supervisors with
loss of their jobs or discharge if they selected the Union as
their collective-bargaining representative.
(j) Threatening employees through its supervisors with
plant closure if they selected the Union as their collective-
bargaining representative.
(k) Issuing to its employees written material wherein it
threatens its employees with loss of work and jobs if they
selected the Union as their collective-bargaining representa-
tive.
(l) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Post at its New Paris, Indiana facility copies of the at-
tached notice marked ‘‘Appendix.’’10 Copies of the notice,
on form provided by the Regional Director for Region 25,
after being signed by the Respondent’s authorized representa-
tive, shall be posted by the Respondent immediately upon re-
ceipt and maintained by it for 60 consecutive days in con-
spicuous places including all places where notices to employ-
ees are customarily posted. Reasonable steps shall be taken
by the Company to ensure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 25 in writing
within 20 days from the date of this Order what steps the
Respondent has taken to comply.
IT IS FURTHER RECOMMENDED that Case 25–RC–9113 be
severed from Cases 25–CA–21795, 25–CA–21823 and 25–
CA–21832, and be remanded to the Regional Director for
Region 25 who shall conduct a rerun election at such time
as he deems the circumstances permit a free choice on the
issue of representation.