Gould, Inc.

National Labor Relations Board - Board Decisions

Dec 1, 1975

221 N.L.R.B. 899 (N.L.R.B. 1975)

GOULD, INC. 899
Gould, Inc. and International Union , United Automo-
bile, Aerospace & Agricultural Implement Workers
of America, UAW. Cases 10-CA-10735, 10-CA-
10830, 10-CA-10937, and 10-RC-10079
December 1, 1975
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MURPHY AND MEMBERS
FANNING , JENKINS, AND PENELLO
On May 21, 1975, Administrative Law Judge
Arnold ' Ordman issued the attached Decision in this
proceeding . Thereafter, General Counsel and Re-
spondent filed exceptions and supporting briefs.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings ,) and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order,3 as
modified herein.
1. Respondent excepts , to the Administrative Law
Judge's denial of its motion for production of
affidavits of all witnesses whom the General Counsel
intended to call at the hearing . In support of its
motion , Respondent points out that the General
Counsel had conducted a prior unfair labor practice
proceeding against Respondent 'which was heard
before Administrative Law Judge Powell in February
and May 1974 and in which he issued a decision on
June 27, 1974.4 Respondent contends that under the
Board's decision in Jefferson Chemical Company, Inc.,
200 NLRB 992 (1972), the General Counsel was
foreclosed from litigating the current matter, since
General Counsel knew or should have known of the
violations alleged herein - prior to the issuance of the
said Decision on June 27 , 1974, and, therefore, could
and should have litigated these allegations in the
i The General Counsel and Respondent have excepted to certain
credibility findings made by the Administrative Law Judge . It is the Board's
established policy not to overrule an Administrative Law Judge 's resolu-
tions with respect to credibility unless the clear preponderance of all of the
relevant evidence convinces us that the resolutions are incorrect . Standard
Dry Wall Products, Inc., 91 NLRB 544 (1950), eiifd. 188 F 2d 362 (C.A 3,
1951). We have, carefully examined the record and find no basis for
reversing hisfindings.
Respondent's request for oral argumeilt ,is hereby denied , as the record
and a iceptions in our view adequately present the issues and positions of
the parties.
2 The Administrative Law Judge found merit in the Union's objection in
Case 10-,RC-10079, alleging that .Respondent discriminatorily applied its
no-solicitation no-distribution rule in such al manner that antiunion
employees were allowed to distribute literatureduring work time while
union supporters were not. He therefore recommended that the election be
set aside on that ground , as well as on his findings - that Respondent
threatened employees with reprisals for supporting the Union and
unlawfully ' interrogated them as to their union sympathies ; Respondent has
filed a motion to reopen the, record for acceptance of allegedly newly
discovered evidence that was adduced during a subsequent hearing of
another unfair labor practice proceeding (Case 101 CA- 11145) involving the
221 NLRB No. 127
prior hearing. Respondent argues- that it needed to
inspect the affidavits of General Counsel's witnesses
in order to establish- that, under Jefferson Chemical,
the complaint herein should be dismissed.
In Jefferson Chemical Company, the respondent was
originally charged with a broad refusal-to-bargain
violation: However, after General Counsel's investi-
gation of the charge,-.the complaint which issued was
predicated on the limited ground that the employer
had engaged in unlawful- unilateral action. At the
hearing, General Counsel acknowledged that it was
"making no contention of general bad-faith bargain-
ing." Nonetheless, following the close of the hearing,
General Counsel issued a new complaint making
precisely that allegation. On motion of the employer
for summary judgment of dismissal, the Administra-
tive Law Judge granted the motion on the ground
that the new complaint was predicated on events
which were or should have been known to the
General Counsel through his investigation of the
charge in the earlier proceeding. The Board, affirm-
ing the Administrative Law Judge, concluded that
General Counsel's "failure to litigate . bad-faith
bargaining in the earlier case for whatever reason
cannot now justify his litigation of surface bargaining
in the instant case." 5
We agree with the Administrative Law Judge's
conclusion herein that Jefferson Chemical is not
applicable in this situation and that General Counsel
was not required to produce affidavits of its witnesses
prior to their testimony. As, General Counsel's only
obligation in the original case was to investigate the
charges pending at that time, there is no reason why
the General Counsel could or should have discovered
the violations alleged in the second case. For "the
General Counsel is not required to be aware of each
and every fact giving rise to a possible unfair labor
practice prior to the issuance of a complaint since its
same parties , which Respondent claims supports its contentions herein that
the no-solicitation no-distribution rule was evenly applied.
Although the proffered evidence appears to have been adduced by the
General Counsel in the later proceeding solely to establish Respondent's
knowledge of certain employees' union activities, we grant - Respondent's
motion) herein and admit such evidence into the record of this matter.
However, since the issue of whether the no-solicitation rule was or was not
discriminatorily applied does not affect our conclusion that the election in
Case lO-RC-10079 should be set aside on other grounds , and inasmuch as
no unfair labor practice allegation was premised upon the application of
such rule, it is unnecessary for -us to reach or pass upon the Administrative
Law Judge's' findings or conclusions relating to the application of the rule.
3 The Administrative Law Judge found that Respondent promised
benefits to 'employees for abandoning their adherence to the Union.
However, as 'he inadvertently failed to provide a remedy for this violation,
we are modifying the Order to provide an appropriate remedy therefor.
4 On, March 13, 1975, the Board affirmed and adopted Administrative
Law Judge Powell's decision with minor modifications . Gould-Inc., 216
NLRB No. 183 (1975).
5 Member Jenkins , would not in any event apply Jefferson Chemical; see
his dissent in that case.
900 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
investigation is, normally limited to the events set
forth in the charge."s Furthermore, except for the
alleged overly broad ` no-solicitation rule, the viola-
tions alleged in the first case involved conduct by
specific named supervisors against specific- employ-
ees between June and September 1973.7 Thus, the
General Counsel's investigation focused solely on the
conduct of those particular supervisors and employ-
ees during that period.
The violations alleged in the present case, on the
other, hand, took place between February and
September 1974, and involved conduct by different
supervisors vis-a-vis different employees. Thus, the
subject of the present litigation is wholly unrelated in
time and substance to the prior one.
The first charge in the instant case was filed on
May 28, 1974, after the supplemental hearing in
Administrative Law Judge Powell's case was closed.
Furthermore, with one exception, all of the violations
alleged in the present consolidated case occurred
after the hearings in the prior case had closed.8 This
exception involved the charge filed on May 28, 1974,
in Case 10-CA-10735, alleging that Respondent had
unlawfully discharged Mary Anne Hotsinpillar on
February 15, 1974. Respondent contends that the
General Counsel knew or should have known about
Hotsinpillar 's discharge during his investigation of
the Billie Hawkins matter. See footnote 7, supra.
We disagree. No basis exists for finding that
General Counsel,' in his investigation of Respon-
dent's actions against employee Hawkins, could' 'or
should have discovered the Respondent's alleged
unlawful discharge of Hotsinpillar. 'As stated, the
charge involving Hotsinpillar was, not filed until May
28, '-1-974, after both hearings in the first case had
closed .' Prior to the filing of that charge, General
Counsel had' no reason Of cause to investigate other
charges which may have occurred. concurrently with
the Hawkins matter. For General Counsel • to
investigate every discharge, absent a charge of
discrimination, could only, be labeled a fishing
-expedition. -
g Jefferson Chemical Company, supra , at fn. 3
7 The only conduct which did not occur between June and September
1973 pertained - to Respondent's issuance , on February 8, 1974, of a
disciplinary warning to employee Billie Hawkins, allegedly because she had
testified on February 7,, 1974, , at the hearing before Administrative Law
Judge Powell On February 19, 1974, the Charging Party filed an additional
charge based on Respondent 's allegedly retaliatory action against Hawkins,
and a complaint therein issued on March 19 , 1974, in Case 10-CA-10602
The Board granted General Counsel's motion to consolidate that case with
the cases before Administrative Law Judge Powell and to reopen the record
for the purpose ' of taking testimony thereon. Additional hearings were
accordingly , held on May 9 and 10, 1974, solely to litigate the charge
involving Billie Haivkuls . Thus, the General Counsel's investigation of the
February 19, 1974, charge was limited to Respondent's unlawful actions in
regard to Hawkins'
8 Although the present case alleges instances of interrogation on
unspecified dates in "May 1974," we again note that, as set forth above, the
second hearing before Administrative Law Judge Powell , on May 9 and, 10,
Moreover, as we find in agreement with -the
Administrative "Law Judge'that Hotsinpillar's 'dis-
charge was not a violation of the Act, 'Respondent
can show no injury or prejudice by the issue being
litigated in the present case rather than the prior
one.9
In conclusion, we find that Jefferson,. Chemical,
supra, is not applicable here. Rather, we fmd that this
is a case where separate' litigation is proper as the
violations in the second case "occurred after the
complaint issued in the earlier case, were not known
to the General Counsel at the time of the earlier
hearings, were independent acts, and were not the
type of alleged violation known or readily discovera-
ble even after an exhaustive investigation." 10
2. In addition, Respondent. claims that pursuant
to the Freedom of'Information Act, U.S.C. Sec. 552,
et seq., as amended by Public- Law 93-502, effective
February 19, 1975, it was entitled to the affidavits of
witnesses whom General Counsel intended to call at
the hearing. However, in, view of our findings above,
and as General Counsel did furnish to, Respondent
copies of the witnesses' pretrial affidavits after the
witnesses ' direct testimony and Respondent did not
make any showing of prejudice, we find it unneces-
sary to ,decide the effect of the amended Freedom of
Information Act on this case."
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the ' National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge, as
modified below, and hereby orders that the Respon-
dent, Gould, Inc., Cookeville, Tennessee, its officers,
agents, successors, and assigns, shall take the action
set forth in the said recommended, Order, as hereby
modified:
1. Substitute the following for paragraph -1 (a).
"(a)' Coercively interrogating its -employees con-
cerning their union sympathies and desires; threaten-
1974, was limited to alleged violations of Sec . 8(a)(4) of'the Act vis-a-vis
Billie Hawkins
9 We note, additionally, that on July 9, 1974, ' General Counsel filed a
motion with the Board requesting that the cases decided by Administrative
Law Judge Powell be remanded to him and consolidated with the complaint
in the Hotsinpillar case for further hearings By order dated September 18,
1974, the Board denied the motion
10 Neuhoff Bros, Packers, Inc, 159 NLRB 1710, 1711, fn. 1 (1966), cf.
Truck Drivers, Oil Drivers, Filling Station and Platform Workers Union, Local
No. 705, an affiliate of International Brotherhood of Teamsters, Chauffeurs,
Warehousemen and Helpers of America (Gasoline Retailers Association of
Metropolitan Chicago), 210 NLRB'210 (1974)
Member Fanning , for the reasons set forth in the dissenting opinion in
Jefferson Chemical Company, 200 NLRB 992 (1972), finds that whether or
not the General Counsel should have known about the matters in issue here
at the time of the earlier hearing is irrelevant to the proper disposition of this
proceeding.
11 See Case Concrete Co Inc, 220 NLRB No 201 (1975)
GOULD, INC.
ing its employees with discharge because of their
union activities; threatening to close or move the
plant in the event of successful unionization; creating
the impression among its employees that their union
activities are under surveillance ; soliciting grievances
from its employees for the purpose of deterring their
unionization; and promising its employees benefits
for abandoning their adherence to the Union."
2. In paragraph 1(b), substitute the words "like or
related" for the word "other."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS HEREBY FURTHER ORDERED that the election in
Case 10-RC-10079 be, and it hereby is, set aside and
that the said case be, and it hereby is, remanded to
Region 10 for the purpose of conducting a new
election.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively question our employ-
ees about their union sympathies and desires.
WE WILL NOT threaten to discharge employees
because of their union activities.
WE WILL NOT threaten to close or move this
plant if it becomes unionized.
WE WILL NOT create the impression among our
employees that their union activities are being
watched.
WE WILL NOT solicit grievances from our
employees for the purpose, of discouraging our
employees from joining or supporting a union.
WE WILL NOT promise employees benefits for
abandoning their adherence to the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their rights to engage in
organizational activity or collective bargaining, or
to refrain from such activity.
GOULD, INC.
DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Administrative Law Judge: This is a
consolidated proceeding putting in issue unfair labor
practice allegations contained in three separate complaints
issued against Gould, -Inc., Respondent herein. The unfair
labor practice allegations relate to numerous instances of
901
asserted interference by Respondent with organizational
rights of its employees in violation of Section 8(a)(1) of the
National Labor Relations Act, as amended, by way of
interrogation , threats, promises and grants of benefits, and
other forms of interference. Also included is an allegation
of the discriminatory discharge of an employee, Mary
Hotsinpiller , in violation of Section 8(a)(3), (4), and (1) of
that Act. The fourth case, 10-RC-10079, involves objec-
tions to the validity of a representation election conducted
among Respondent's employees on September 12 and 13,
1974. The objections, urged by the Union, the Charging
Party-Petitioner herein, against Respondent , are predicated
on asserted conduct which is coextensive in substantial
part with the conduct alleged in the foregoing complaints.
Accordingly, the representation proceeding was also
consolidated for hearing herein.
Hearing in the above-entitled matters , with all parties
represented, was conducted before me in Cookeville,
Tennessee , on February 18, 19, 20, 21, 25, 26, and 27, 1975.
Following the conclusion of the hearing, General Counsel
and Respondent in April 1975 filed comprehensive briefs.
Upon the entire record in this proceeding, upon my
observation of the witnesses , and after careful considera-
tion of the briefs, I make the following:
FINDINGS AND CONCLUSIONS
Respondent admits, and I find , that Respondent is a
corporation with an office and place of business located in
Cookeville, Tennessee , where it is engaged in the manufac-
ture of heating elements for commercial and industrial
uses; that during the past calendar year it has sold and
shipped products valued in excess of $50 ,000 to customers
across state Imes; and that it is engaged in commerce
within the meaning of, Section 2(6) and (7) of the Act.
Respondent further admits , and I find, that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
The assertion of jurisdiction in this proceeding is proper.
I. THE UNFAIR LABOR PRACTICES
A. The Jefferson Chemical Issue
Before considering any of the substantive issues here
presented, it is appropriate to deal with Respondent's
preliminary challenge to the litigability of major portions
of the unfair labor practice allegations contained in the
consolidated complaints herein . Virtually at the outset of
the hearing, Respondent moved for summary judgment in
its favor in respect to all such allegations in Case 10-CA-
10735 and in respect to the first item of unlawful
interrogation contained in paragraph 7 of the complaint in
Case 10-CA-10830 . In support of this motion , Respondent
points to the fact that General Counsel had instituted a
prior unfair labor practice proceeding against Respondent
which was heard before Administrative Law Judge George
Powell and which the latter decided on June 27, 1974.
Respondent urges further that General Counsel knew, or
should have known, of the events giving rise to the
allegations it presently challenges prior to the issuance of
Administrative Law Judge Powell's decision . Accordingly,
902 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Respondent argues that litigation of these allegations in a
new unfair labor practice proceeding is now precluded. It
relies in this regard on the Board's decision in Jefferson
Chemical Co., Inc, 200 NLRB 992 (1972).1
Analysis of this defense requires brief reference to the
prior proceeding against Respondent. That litigation arose
from Cases l0-CA-10647 and 10-CA-10602 which were
consolidated for hearing before Administrative Law Judge
Powell. The same parties were involved as are here
involved. It there appeared that in the course of an
organizing campaign among Respondent's employees
beginning in late 1973, Respondent engaged in numerous
unfair labor practices in violation of Section 8(a)(1), (3),
and (4) of the Act. Hearing was conducted in February
and May 1974. On June 27, 1974, Administrative Law
Judge Powell issued his decision finding that Respondent
had engaged in interrogation, threats, and other forms of
restraint and coercion in violation of Section 8(a)(1) of the
Act; had discriminatorily discharged four employees in
violation of Section 8(a)(3) of the Act; and had reprimand-
ed an employee, for testifying, in violation of Section
8(a)(4) of the Act. That decision and recommended
remedial order antedated the instant hearing by about 8
months. On March 13, 1975, about 2 weeks after the
instant hearing closed, the Board, with minor modifica-
tions not relevant here, affirmed Administrative Law Judge
Powell's decision and adopted his recommended order.
Both decisions are reported at 216 NLRB No. 183.
In the meantime, however, General Counsel on June 27,
1974, the same day Administrative Law Judge Powell
handed down his decision, issued a new complaint against
Respondent in the first of the cases here under considera-
tion, Case 10-CA-10735. That complaint alleges, as this
record shows, that during the course of the same
organizational campaign as was alleged in the Powell cases,
Respondent engaged in further violations of Section
8(a)(1), (3), and (4) of the Act. The time span during which
these alleged violations occurred is from December 5, 1973,
to June 6, 1974.
Following the issuance of this complaint, General
Counsel on July 9, 1974, filed a motion with the Board
asking that the cases decided by Powell be remanded by
the Board and consolidated with Case 10-CA-10735 for
further hearing. Respondent countered with a motion for
summary judgment and other relief urging, inter aka, that
the allegations of unfair labor practice in Case 10-CA-
10735 be dismissed because the events there involved
occurred prior to the issuance of Administrative Law
Judge Powell's decision, that General Counsel knew, or
should have known, of those events at that time, that any
asserted unfair labor practices arising therefrom should
have been heard and litigated in that proceeding, and that
further litigation of those matters in a new proceeding is
now precluded.
On September 5, 1974, General Counsel issued the
complaint in Case 10-CA-10830 alleging further violations
1 In this connection Respondent made numerous motions both prior to
and at the instant hearing to elicit information in support of this contention.
The disposition of these motions, which for the most part, presented no
novel questions, is apparent on the face of the record and requires no
further discussion here
2 To round out the picture, it appears that on April 18, 1975, almost 2
by Respondent of Section 8(a)(l) of the Act and directed
that this complaint be consolidated with Case 10-CA-
10735. On the following day General Counsel filed a
supplemental motion with the Board asking that both these
matters be consolidated with the Powell cases.
On September 18, 1974 , the Board denied General
Counsel's motions to reopen the Powell cases and denied
also Respondent 's motion for summary judgment , reserv-
ing, so far ' as relevant here , "leave to the Respondent to
raise the Jefferson Chemical issue in the proceeding in
Cases 10-CA-10735 and 10-CA-10830."
On November 13, 1974, General . Counsel issued the
complaint in Case 10-CA-10937 which was also consoli-
dated with Cases 10-CA-10735 and 10-CA-10830. Final-
ly, as already noted, Case 10-RC-10739, involving objec-
tions to an election, has been added for hearing.2
This was the posture of the instant proceeding when
Respondent , pursuant to the leave granted it by the Board,
renewed before me its motion for summary judgment
predicated on the Jefferson Chemical decision . The merits
of the motion were vigorously argued by the parties at the
hearing. I denied the motion.
For reasons stated at the hearing and restated here, I am
of the view that Jefferson Chemical does not support
Respondent's position . In that case , like the instant cases,
there had been an earlier unfair labor practice proceeding
against the employer . The unfair labor practice charge
giving rise to, that earlier proceeding alleged, inter alia, a
broad refusal-to-bargain charge in violation of Section
8(a)(5) of the Act. The complaint that issued pursuant to
this charge , however , while alleging an 8(a)(5) violation,
predicated that violation on the limited ground that the
employer had engaged in unlawful unilateral action.
Indeed, in reply to a specific inquiry made to , General
Counsel at the ensuing hearing, General Counsel expressly
acknowledged that it was "making no contention of
general bad-faith bargaining." Nonetheless, following the
close of that hearing, General Counsel issued a new
complaint making precisely that allegation . On motion of
the employer for summary judgment of dismissal , the trial
examiner (now administrative law judge) ruled that the
new complaint was "predicated on events - which were,
or should have been , known to the General Counsel
through his investigation of the broad refusal -to-bargain
allegation of the charge [in the earlier proceeding] when,
on that date he stated , in effect, that [the employer] had
not engaged in bad-faith bargaining." Accordingly, the
motion for summary dismissal was granted . See 200 NLRB
992 (1972). The Board, by divided vote, affirmed the trial
examiner. Ibid.
In the special circumstances of the Jefferson Chemical
case , the Board was warranted in concluding that a proper
investigation of the broad refusal-to-bargain allegation
made in the original charge did reveal , or should have
revealed , a basis for making precisely that allegation in the
original complaint . Moreover, as the Board additionally
months after the instant hearing closed, General Counsel has issued still
another complaint against Respondent and, a few days later, filed a motion
with me to reopen the record in the instant proceeding to join the new
complaint On April 25 , 1975, 1 issued an order denying the motion and
stating therein the reasons for that denial
GOULD, INC., 903
noted , the charging union, which would have been the
principal beneficiary of a broad bargaining order, was also
not without fault in that case. In such a frame of reference
the Board could , as it did, properly conclude that General
Counsel 's "failure to litigate bad-faith bargaining in [the
earlier ] case, for whatever reason, cannot now justify his
litigation of surface bargaining in, the instant case." 200
NLRB at footnote 3.
On the other hand, the Board stressed , it was not laying
down in Jefferson Chemical any broad-gauged principle of
general applicability . General Counsel should' not be
required, the Board majority agreed, "to be aware of each
and every fact-giving rise to a possible unfair labor practice
prior to the issuance of a complaint since its investigation
is normally limited to the allegations set forth in the
charge." Ibid.
Appraised on this ' basis, the holding of Jefferson
Chemical is obviously not applicable to the instant
situation . This is not a situation where the plain language
of a charge would generate an investigation necessarily
disclosing the subject matter of allegations , at" first
withheld, then made the subject matter of a later
complaint . Here, the subject matter involved is not the
clear-cut issue of a refusal to bargain . Rather, the subject
matter here has to do with allegations of numerous acts of
unlawful interference and discrimination against different
employees in Respondent 's work force . That work force
numbered , during the period relevant here , approximately
348 employees . On Respondent 's hypothesis , any unfair
labor practice charge alleging unlawful interference or
discrimination against any member of this group would
impose upon General Counsel the duty, prior to issuance
of any complaint , of investigating all possible acts of
unlawful interference or discrimination in respect to all
other members of the group at the peril of denying all such
other members protection against subsequently discovered
invasions of their statutory rights.3
The imposition of such a burden is neither realistic nor
feasible . Nor do I read Jefferson Chemical as even
suggesting the imposition of such a burden here. On the
contrary , the Board has uniformly . acknowledged the
propriety of separate litigation of roughly concurrent
alleged violations where the alleged violations in the
second case were not known to the General Counsel at the
time of the earlier proceeding, were independent acts, and
were not the type of violation readily discoverable even
after an exhaustive investigation . See Truck Drivers, Oil
Drivers, Filling Station and Platform Workers Union, Local
No. 705, IBT, 210 NLRB 210 (1974); NeuhoffPackers, ;Inc.,
159 NLRB 1710, 1711 , fn. 3 (1966); and see also 'Schill
Steel' Products, Inc., 144 NLRB 69, 711`71(1963), enfd; 340
F.2d 568 (C.A. 5, 1965).
I conclude and find in all the circumstances that the
instant proceedings fall in this category and that litigation
of the unfair labor practice allegations here challenged is
not precluded.
3 As noted, Respondent would extend its immunity in this regard not
only to conduct engaged in prior to issuance of a complaint but also, as
B. The Violations of Section 8(a)(1)
1. Interrogation
Each of the complaints consolidated herein alleges
instance of unlawful interrogation of Respondent's em-
ployees by named supervisors and agents of Respondent.
Respondent admits or does not dispute the supervisory
status of these named individuals. It does, however, deny
that unlawful interrogation occurred and argues, alterna-
tively, that to the extent any questioning did take place it
was not coercive.
General Counsel adduced considerable testimony in this
regard. Employee Pauline Ward testified that when she
was initially hired by Respondent in May 1974, she was
interviewed by Ray Wilhoit, Respondent's personnel
manager, who asked her in the course of the interview what
she knew about a union and followed up his query with the
comment that there was no point in paying a union to
represent her when Respondent's office was open at any
time she wanted to speak for herself. Ward further testified
that Supervisor Ray Cole, about 2 weeks before the
representation election which took place in, September
1974, approached her at her work station, asked her what
she knew about the Union and if the company had ever
done anything to her.
Employee Barbara Allen testified that she, too, was
interviewed by Ray Willioit when she was initially hired by
Respondent in May 1974 and that Wilhoit asked her what
she knew about a union. Employee Robert Underwood
testified that Ray Wilhoit addressed a similar inquiry to
him in July 1974 in the course of a general conversation
about his union activities, a discussion dealt with in more
detail later in this decision.
Employee Kenneth Howard testified, that around mid-
July 1974 Supervisor Ken Khngler called him away from
his work station and asked him how he was going to vote at
the union election. According to Howard, his fellow-
employees, Leland Goolsby and Cecil Barlow, were with
him on this occasion. Barlow confirmed that he, Goolsby,
and Howard had engaged in this conversation with
Klmgler.
Several employees testified to being questioned by
Supervisor Don Malone. Nina Palmer stated that in May
1974 about 4 months before the election Malone spoke to
her at her work station, asked what she thought about the
Union, and in the ensuing discussion told her he wanted to
get an idea of the way his shift, felt about the Union. On the
night of the election, according to Nina Palmer, Don
Malone again approached her and asked if she was going
to vote the right way. Eris Ann Bryant testified' that late in
July or early August 1974, Malone asked her at her
machine if she was going to vote for the Union. Bryant
further testified that 4 or 5 days before the election
Supervisor Ray Cole directed, the same inquiry, to her and
also asked how she felt about the Union. Sharron Lynn
Dyer testified that she was questioned twice by Don
Malone as to her union sympathies, once in May 1974 and
again on the night of the election about an hour before the
here, to conduct engaged in prior to the handing down of a decision on that
complaint.
904 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
vote was taken. The fourth employee, Lena Calvin,
testified that Don Malone approached her at her inspec-
tion table about 2 weeks before the election to ask how she
felt about the Union and whether she thought the
employees needed a union. A few days later, according to
Dyer, Supervisor Dick Schultz asked her if she was a union
sympathizer.
Despite vigorous cross-examination , the testimony sum-
marized here remained virtually unshaken. Respondent, in
the presentation of its case , presented the supervisors here
involved as its witnesses . Generally speaking, they denied
flatly having asked the questions or made the comments
attributed to them . However, Don Malone did admit
talking to employee Calvin about the Union and admitted
also talking to employees about the Union on the night of
the election . Dick Schultz likewise admitted talking to
Calvin and other employees `about the Union but said that
he did so only when he was approached and asked
questions about the Union. Richard Sommers, also a
supervisor, forthrightly acknowledged that during the
period of August and September 1974, before the represen-
tation election , he was trying to ascertain the problems of
the employees, either union or nonunion.
On the basis of all the evidence and upon my observa-
tion of the witnesses , I credit the testimony that the
supervisors here named did engage in the interrogation
ascribed to them, and to the extent that is denied, I
discredit the denials . As the record in this case and the
record in the Powell cases, hereinbefore described, indi-
cate , an active and hotly contested organizational cam-
paign was in progress during the period relevant here. It
strains credulity to believe that the widespread program of
interrogation revealed by the testimony of the employees
and engaged in, according to them, not by one but by
several supervisors , was the product of fabricated testimo-
ny in which all the employees joined. Rather, I find that
the conduct in question did occur and that its manifest
purpose was to discourage the adherence and sympathy of
the employees to the organizational effort.
I conclude and find that Respondent, acting through its
agents and supervisors, engaged in unlawful interrogation
of its employees in violation of Section 8(a)(1) of the Act.
2. Threats
Cases 10-CA-10830 and 10-CA-10937 allege numerous
instances of threats of reprisal made by agents and
supervisors of Respondent and directed toward the
discouragement of the organizational efforts of the employ-
ees. The conduct in question spanned a period from July
through September 1974.
A major facet of Respondent 's campaign resisting the
unionization of its employees was speeches given by
William Leggitt , manufacturing manager of Respondent's
Cookeville operation since August 1973 and, prior to that,
plant manager . These speeches were given to the employ-
ees, assembled by 'shift, in the plant cafeteria on two
separate occasions , once late in July 1974 and again a few
days before the September 1974 election. These principal
speeches were supplemented by talks given to smaller
groups of employees.
As might well have been anticipated , there were
numerous discrepancies in the accounts of the speeches
testified to by the various witnesses who were present.
However, in significant respects there is no material
dispute . It is clear that in the course of the campaign, there
were numerous rumors rampant in the plant concerning
the impact of possible unionization upon the operations of
the Company and the welfare of the employees. The
substance of Administrative Law Judge Powell 's decision
in the prior proceeding was also made known to the
employees including his finding that four employees had
been discriminatorily discharged and his order that they be
reinstated to employment . According to Leggitt , a princi-
pal purpose of his speeches was to dispel false rumors and
speculations in this regard.
According to General Counsel 's witnesses, Leggitt stated
in the course of his speeches that Respondent had moved
its plant from Michigan to Cookeville because of union
trouble and would not be afraid to move again for that
reason ; that if Respondent had to reinstate the four
employees found by Administrative Law Judge Powell to
have been discriminatorily discharged , he would have to
discharge four of the people currently working; that if the
Union came in, Respondent would start bargaining from
the level of the minimum wage ; and that the employees
might lose all their existing benefits: Respondent's own
witnesses confirmed that Leggitt stated that, if the Union
came in, bargaining would start at minimum wage and the
employees might lose their benefits.
Leggitt, both in his testimony and in an affidavit he had
furnished to the Board before the hearing, gave a
somewhat different version of his speeches . Leggitt stated
that a principal purpose of the speeches was to dispel a
rumor that the plant was closing. Leggitt explained in his
speeches that the continued operation of the plant
depended only on its "profitability , nothing else ." Leggitt
admittedly added the comment that if the Union made
unreasonable demands that would make the operation
unprofitable, a closing could occur but that he was merely
saying this "could happen," not that it "would happen."
Leggin also acknowledged that he told the assembled
employees that wages sand fringe benefits were subject to
negotiation , that negotiations on wages could start at $2
per hour and negotiations on benefits could start at the
"lowest rock-bottom" possible . According to Leggitt,
however, he added the comment that "union or no union,
the company would continue with wages and benefits as
we had in the past."
Attached to Leggitt 's affidavit were portions of the
speech which he stated he read to the employees - other
witnesses testified that Leggitt was apparently reading the
speeches he delivered to the employees . These excerpts
read:
Employees have a lot to lose, should a Union create
conditions that would make it impossible for this
operation to be a successful one. At this time , when this
plant is losing money, not making money, unrealistic
union demands could only put us into a position of not
being able to operate at all.
GOULD, INC. 905
Negotiations do not start at what you presently have
and go up from there. Negotiations can start at the
lowest rock-bottom possible. They can start at $2.00 in
'wages and ground floor benefits, and this is the place a
lot of good negotiators start, and I can promise you
that here we would be expert negotiators.
Every cent you ' get over $2.00, every holiday you
presently have, every fringe benefit would be subject to
negotiations and, this union's past history shows they
have been perfectly willing to swap off a benefit you
may presently enjoy and one that means something to
you for a dues checkoff provision that means absolute-
ly nothing to you but is unpbrtant only to the union.
Finally, your company realizes it is just good business
and management to do everything within reason to
keep its employees satisfied because we know satisfied
employees make good employees, good employees
make good products. So it is'just good business and
management for us to do everything possible for our
employees which is what we have done and will
continue to do so - union or no union.'
In sum-and on all the testimony pertinent here, I find
that Leggitt's speeches were of the tenor he described. I
have no doubt that some who listened could, as they' did,
subjectively react to his speech as one containing„-threats
including threats to close the plant if the Union came in,
threats to deprive the employees of wage 'benefits and
fringe benefits if the Union came in; and threats to
discharge employees for antiunion reasons if compelled to
reinstate the four employees previously found to have been
unlawfully terminated. However, Leggitt's speeches had
obviously been carefully prepared in advance. Admittedly,
his remarks trod a fine line between permissible expres-
sions of views and opinions and impermissible threats of
reprisal. Nonetheless,'objectively considered, I cannot find
that they -constituted such threats. I find inadequate
evidence to sustain General Counsel's allegation that the
speeches in question violated Section 8(a)(1) of the Act.
On the other hand, the record affords evidence of several
situations where supervisors and agents of Respondent
were less guarded and circumspect. Thus, employees
Kenneth Howard and Cecil Barlow testified that they,
together with employee Leland Goolsby, were told, by
Supervisor Klingler several weeks prior to the election that
the plant would close if the Union was voted in. Klingler
denied making this remark but admitted telling employees
that Respondent had closed five plants before and telling
employees, upon inquiry, that these plants had been union
plants. I credit the testimony of Howard and Barlow as to
the foregoing incident.
Employee Betty Barlow testified that late in August 1974
Supervisor Richard Sommers stated to her and her
coworker, Linda Mayberry, that if they,helped vote' a
union in, they would have to walk a picket line and pay
excessive dues. Betty Barlow testified further that Mayber-
ry asked Sommers about a rumor that the plant would
close and that Sommers stated his -opinion that the plant
would close if a union came in. About a week later,
according to Betty Barlow, Sommers again approached the
two employees and asked, them not to report what he had
said about the Union. Linda Mayberry, in-her testimony,
corroborated, Betty Barlow's testimony. Sommers denied
making the statements here attributed to him but admitted
that employees had asked him if the plant would close
upon advent of a union. According to Sommers, he replied
that a factor in a determination to close down would be the
degree of cooperation between the employees and manage-
ment.
My observation of the witnesses and my scrutiny of their
testimony, satisfy me, and I find, that Sommers 'made' the
statements attributed to him by Barlow and Mayberry. In
this connection I also credit ' the testimony of employee
Madine Carmack who stated that on the day before the
election,- Sommers offered her some antiunion literature
and, in reply to an inquiry she made, told her he thought
the plant would close if the employees voted the UAW in,
'and that he thought so because the Company was acting
like it had in Michigan before they closed the plant there.
Sommers did not deny that this conversation occurred and
I find that it did occur.
Employee Robert Underwood testified that late in July
or in September' 1974, following a cafeteria speech by
Leggitt, he was called into the company personnel office
and' questioned by Wilhoit in the presence of Supervisor
Holman as to what he thought about Leggett's speech and
what he thought about the Union. According to Under-
wood, Wilhoit then berated him for promoting unioniza-
tion of the employees on plant premises on company time
and stated that if Underwood continued that activity he,
Wilhoit, would "throw me, my ass over my head first out
the door',.. .. " Both Wilhoit , and Holman denied that
Wilhoit - made the remarks attributed to, him by Under-
wood but both admitted that they had met with, Under-
wood the occasion in question. I find Wilhoifs denial
no more credible here than in the previous situations
discussed and in all the circumstances I do not credit the
denial of his fellow supervisor Holman. By agreement of
all, the interview did take place. In the context of Leggitt's
antiunion speech, I am satisfied and find that Leggett did
make the interrogations and the threat here related.
More troublesome is the question raised, by Under-
wood's report - of a meeting with, his supervisor, Carl
Harness, 2 days before the election at which Underwood's
coworker, Alfred-Mahan, was allegedly present. According
to Underwood, Harness stated at that time that the plant
would shut down if the Union came in and if Underwood
wanted to work he had better vote no in the election.
Harness, who apparently played no major role in the
events here under consideration, denied that he made the
statements attributed to him by Underwood, and Mahan,
Underwood's coworker, could not recall such a conversa-
tion. Although the total pattern of conduct manifested-in
this record suggests that the incident-in question may have
occurred,, I find the evidence here inadequate to posit a
positive finding in that regard and I do not make that
finding.
The-final incident relevant here relates to a conversation
between employee Frances Edmunson, and Supervisor
906 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Virgie Null in the latter part of July 1974. Edmunson
testified that Null approached her at her work station,
asked her how she felt about the Union and added that
she, Null, feared losing, her job if the Union came in. Null
,also volunteered, according to Edmunson, that she felt the
Union would not be a good idea because the Company was
just renting the, building, the Company had had to move
before because of union trouble, and she had heard the
Company was already looking for warehouse space.
Lengthy cross-examination of Edmunson by Respondent
did not shake Edmunson's testimony to any significant
degree . Null, who testified as a witness for Respondent,
denied asking Edmunson how she felt about the Union or
stating that the plant would close if the Union came in.
However, on cross-examination, Null admitted talking to
employees about the Union during the time period relevant
here and even admitted holding such a conversation with
Edmunson . Based on my appraisal of the relevant
testimony and on my observation of Edmunson and Null, I
am satisfied and find that Edmunson testified accurately as
to her interchange with Supervisor Virgie,Null.
In sum, I conclude and find that, as narrated above,
Respondent, acting through its supervisors and agents,
threatened employees that Respondent would close its
Cookeville plant and/or move its Cookeville, plant if the
Union came in and, in the case of Underwood, threatened
the latter with discharge if he continued his prounion
activities . Such conduct is patently a violation of Section
8(a)(l) of the Act and I so find.
3. Promise of benefits
The conversations between employees Betty Barlow and
Linda Mayberry on the one hand and Supervisor Richard
Sommers have already been discussed. In the course of the
second conversation in which, as found herein, Sommers
asked the two employees not to report what he had said
about the Union in their first conversation, Sommers told
them he could do more for them than the Union could, and
to ask him for anything they needed. The consistent
testimony of Barlow and Mayberry as to this interchange
was unshaken on cross-examination. Sommers denied
making ' this commitment. For reasons already indicated, I
credit the testimony of Barlow and Mayberry and find
Sommers' denial unconvincing. I conclude and find that
Sommers, in effect, assured the employees of benefits if
they turned to him instead of the Union, and that this
conduct was violative of Section 8(a)(1) of the Act.
4. Increases in wages and benefits
Certain of the evidence relevant here is undisputed. On
February 1, 1974, Respondent announced an increase in
all wage rates prevailing in the plant, effective as of that
date. On May 31, 1974, Leggitt, over his signature,
informed all the employees that his "recommendation to
the Company regarding increases in your wages and
benefits have been approved by your Company," and
informed the employees further that they would be
supplied with the details later. On June 5, 1974, Leggitt, 'in
another memo addressed to the employees, informed them
that effective July 1, 1974, they would receive additional
benefits in the form of an additional holiday and improved
medical , accident , and life insurance benefits . The memo
closed with a notice to the employees that ,the amount of
their wage increase and its effective date would be
announced "within a day or two ." The following day,, June
6, that announcement was made . The increase was 15 cents
per hour and the effective date was July 1, 1975. So far as
appears, the wage increases and additional benefits were
implemented on schedule and as promised.
Other than the fact that increases in wages and benefits
were announced and implemented , General Counsel
adduced no further evidence in that regard . However, it is
clear from the record that the announcements and their
implementation were made during a , period when the
organizational campaign among Respondent 's employees
was in full swing . On this basis General Counsel argues,
citing N.L.R.B. v. Exchange Parts Co., 375 U.S. 405 (1964),
that Respondent made the announcements and grants of
increased wages and benefits , for the purpose of inducing
its employees to reject- the Union and hence violated
Section 8(a)(1) of the Act.
This might be regarded as a permissible inference. But
evidence was, adduced to rebut that inference . Employee
handbooks issued by Respondent and ' introduced into
evidence in this proceeding make clear that the Company's
policy is to maintain comparable wages and that, this is
done by conducting periodic surveys of wage and salary
structures in the industry , and in the area . The record is
clear that Respondent did conduct such surveys in 1973
and 1il974 and that the improvements made in wage , and
benefit structure flowed - largely from those surveys and
from other valid "in-house" considerations . Moreover,
Respondent's practice and policy in this regard was not
kept secret from the work force . Quite apart from the
handbooks, employees were told individually or at group
meetings of Respondent 's program in this area . In essence,
then, it appears that Respondent's wage and benefit
actions here under consideration were in basic conformity
with prior well-established and publicized , policy. As such,
I find no basis for concluding that these , actions had an
antiunion motivation and the allegations , predicated
thereon must fall for want of evidentiary , substantiation.
5. Impression of surveillance
The allegation that Respondent created the impression
that it had the union activities of its employees under
surveillance hinges basically on a conversation held on
September 19, 1974, by employees Leota Moss, Virginia
Williams, and Billie Hawkins with Supervisor Margaret
Way. Leota Moss testified that pursuant to a suggestion
made by a union representative at a meeting that
employees who were union adherents make their identity
known to a company supervisor , she, Virginia Williams,
and Billie Hawkins approached Margaret Way for that
purpose during an, afternoon break . According to Moss,
the three employees told Way they wanted to show her
their union organizing cards so that the Company would
know where they stood concerning the Union . Way asked
why they were doing this and the reply was there had been
talk of a layoff. When Way suggested that they were laying
a foundation for a claim of discrimination in the event they
GOULD, INC. 907
were severed, the employees denied the suggestion and said
they simply wanted the Company to know where they
stood respecting the Union. Way's comment at this point,
according to Moss, was "Well, the company pretty well
knows anyway who is for it and who is against it." The
testimony of Virginia Williams corroborated that of Leota
Moss in every material particular although Respondent
established that a prehearing affidavit which Williams had
executed made no mention of this incident. Billie Hawkins
confirmed that the conversation was as Moss and Williams
had testified.
Supervisor Way, for her part, admitted that she had a
conversation with the three named employees on Septem-
ber 19 and that the three employees had shown her cards
indicating that they were union organizers. She denied,
however, stating to them that the Company knew pretty
well where the employees stood. This concluded Way's
testimony. There was no cross-examination.
In view of the consistent testimony of the three
employees as to the incident involved and Supervisor
Way's corroboration that the incident did occur, I am
inclined to, and do, credit the employees' accounts of the
whole conversation. I find, notwithstanding Way's denial,
that she did manifest to the employees that Respondent
"pretty well knows anyway who is for [the Union] and who
is against [the Union]." Revelation of such information to
employees that their union activities are being observed
cannot help but have a restraining effect on such activities
whether such observation is actually conducted or not.
Accordingly, settled authority supports the view, and I
find, that creating an impression of surveillance, as was
done here, violates Section 8(a)(1) of the Act.
6. Solicitation of grievances
The relevant evidence here rests in large part on a
memorandum to the employees dated May 24, 1974, and
signed by Leggitt as Respondent's manager of manufactur-
ing. This memorandum, in pertinent part, thanks the
employees for comments and suggestions made by them to
a Mr. Joe Dunn, personnel manager of the Century Motor
Division, and to a Mr. George Rhode, director of labor
relations of that enterprise. Century Motor Division is a
Corinth, Mississippi, operation of Gould, Inc., Respondent
herein . Dunn and Rhode had come to Cookeville earlier in
May, at Respondent's request, to speak to the Cookeville
employees. The memorandum went on to state that several
of the employees' suggestions and comments had already
been acted on by Respondent and others were under
consideration. The memorandum closed with the statement
that the employees would be kept informed of further
company decisions on such matters by means of biweekly
reports.
General Counsel contends that this practice of soliciting
suggestions and acting on them during the period when an
organizational campaign was going on was designed to
persuade the employees that resort to unionization to
satisfy their grievances was unnecessary and to induce the
employees to reject the Union. Such conduct, General
Considerable evidence was adduced on the issue whether Mary Ann
was, at the time of her discharge , a probationary employee under
Respondent 's 90-day rule I find it unnecessary to resolve this dispute Even
Counsel argues, interferes with the Section 7 rights of the
employees in violation of Section 8(axl) of the Act.
Hadbar, Division of Pur 0 Sil, Inc., 211 NLRB 333 (1974).
Respondent, for obvious reasons, does not quarrel with
the fact that Respondent utilized the services of Dunn and
Rhode in obtaining suggestions from the employees and
acting on them. Its defense is predicated, rather, on the
holding of Uarco, Inc., 216 NLRB No. 2 (1974), that it is
not the solicitation of grievances, as such, which is
unlawful but the implicit promise to correct the grievances
discovered, and that there is no such evidence here. The
fact is, however, contrary to Respondent's contention, that
the memorandum on its face plainly indicates that in
several instances employee comments had already been
acted on and that other suggestions were being considered.
The implicit promise that further favorable action was
likely was not veiled. Moreover, Uarco is further distin-
guishable in that, as the Board there found, the record in
that case was devoid of any evidence of union animus on
the employer's part and there was not a "scintilla of
evidence" that the employer's conduct occurred in the
context of other unfair labor practices. The record in the
instant proceeding is plainly to the contrary. Respondent's
defense is without merit.
Accordingly, I conclude and find on the facts here
presented that Respondent, in the course of an organiza-
tional campaign, solicited grievances from its employees
for the purpose of deterring their unionization, thereby
violating Section 8(a)(1) of the Act.
C. The-Discharge of Mary Ann Hotsinpiller
The complaint in Case 10-CA-10735 alleges in sub-
stance that- Respondent, on or about February 15, 1974,
discharged Mary Ann Hotsinpiller because of her union
and concerted activities and because her father, John
Hotsinpiller, had testified as a witness for General Counsel
in a prior proceeding against Respondent. The complaint
further alleged that Respondent thereby violated Section
8(a)(3), (4), and (1) of the Act. Respondent denies these
allegations.
A great deal of testimony from numerous witnesses and
a number of exhibits were introduced into evidence - all
dealing with the discharge of Mary Ann Hotsmpiller.
Extended discussion of all this testimony is not required.
Certain significant and pivotal facts are admitted or
undisputed.
Mary Ann Hotsinpiller, herein called Mary Ann for
purposes of brevity,,began her employment with Respon-
dent on November 7, 1973. She was discharged on
February 15, 1974.4 Her separation notice, dated that day
and signed by Leggitt, stated that the reason for the
discharge was "Poor Work performance and excessive
absenteeism and tardiness."
Mary Ann's union activities, on her own admission, were
minimal. She signed a union card at her home on the night
of January 23, 1974. This, according to her own testimony,
was the only union activity in which she engaged. She
further testified that she attended no union meetings, never
a probationary employee is insulated from discharge for reasons proscribed
by the Act
908 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
wore a union badge, no supervisor ever talked to her about
the Union, and she was never questioned or threatened in
any way relative to the Union.
In December 1973, about a month before she signed her
union card and about 6 weeks after her employment began,
Mary Ann was, pursuant to established procedures, given
an employee progress report. Among the negative items
checked on that report were entries that she would not
learn, that her initiative was poor, that she needed more
training, that her production was low, and that she made
frequent and prolonged visits to the restroom. Mary Ann
admitted that her supervisor, Jean McClain, had reviewed
these items with her but said her memory in respect to
specific matters was not too precise. Mary Ann did sign the
employee progress report.
On the morning of January 23, 1974, Mary Ann received
her first written warning, subscribed by Jean McClain,
faulting her for high absenteeism and poor work perfor-
mance. Mary Ann signed the written warning. She
acknowledged that she was criticized for not finding things
to do and was told to seek out her supervisor if she found
nothing to do. According to Mary Ann, no mention was
made of her absenteeism. On January 31, 1974, Mary Ann
was given a second written warning. This warning, also
subscribed by McClain, was written up as being for poor
work performance. Mary Ann signed this warning also and
acknowledged that it was discussed with her. The third
written warning directed to Mary Ann was dated February
15, 1974, and was also for absenteeism and poor work
performance. Mary Ann denied that she was shown this
written warning and her signature does not appear thereon.
On the occasion of either the second or third written
warning - the evidence is in conflict - Mary Ann became
upset, began to cry, and asked to see General Foreman
Looper who was a cousin to Mary Ann. Looper was
summoned and according to Mary Ann's own testimony, a
30-minute conversation ensued. Mary Ann testified that
Looper told her about other people that had been fired
who had not been given a second chance, that she was
being given a second chance, that her father, John
Hotsinpiller, was one of the best employees he knew, and
that surely some of that must have rubbed off on her. Mary
Ann was directed to go back to work.
Mary Ann was discharged on the afternoon of February
15 when, according to Respondent, it became apparent
that efforts to remedy her work habits were to no avail.
Looper implemented the discharge on the recommendation
of Supervisor Jean McClain. Insofar as the separation
notice ascribed the discharge to work performance, that
shortcoming had been noted both in the employee progress
reports and in the written warnings. However, as to the
notation of excessive tardiness and absenteeism, Mary Ann
denied absenteeism or that she was reprimanded for
tardiness. Nonetheless, Mary Ann acknowledged on cross-
examination that she remembered three repnmands, one in
December 1973 relating to excessive time in the restroom;
another having to do with poor work performance; and a
third in which she asked to talk to Looper. On the subject
of her absenteeism, Mary Ann stated at first that she was
absent or tardy a few times . Pressed further Mary Ann
admitted that she was absent about once a week during the
last month of her employment and that she was probably
absent more than anyone in her department.
Based on her own testimony and almost without regard
to substantial corroborating testimony both from her
supervisors and from fellow employees, it is clear that
Mary Ann was far from an exemplary employee and that
her discharge was warr anted whether she was still in the
status of a probationary employee or whether she had
survived that period. On her own acknowledgment she was
being given a second chance when others had not. Coupled
with the fact that her union activity had been minimal, that
no mention of that activity or even the subject of unions
had been made to her, there is a total absence of evidence
in the record to afford any substance to a claim that Mary
Ann was discharged for union or concerted activities. I
find that allegation of the complaint to be without warrant
in the record.
This leaves for consideration General Counsel's corol-
lary allegation that Mary Ann was discharged "because her
father gave testimony" in the prior proceeding against
Respondent heard by Administrative Law Judge Powell.
As the face of the decision in that case shows, John
Hotsinpiller did testify in that proceeding as a witness for
the General Counsel. See 216 NLRB No. 183, fn. 1 (1975),
of Administrative Law Judge Powell's decision. That
testimony was given on February 7, 1974, about 4 months
after John Hotsinpiller had voluntarily retired from his
employment with Respondent. In substance, it is General
Counsel's contention that because Respondent could no
longer take direct reprisals against John Hotsinpiller for his
adverse testimony inasmuch as the latter was no longer in
its employ, Respondent discharged his daughter instead.
Apart from speculation or suspicion, there is virtually no
evidence in the record to buttress General Counsel's
contention. Extensive consideration of John Hotsinpiller's
testimony in the instant case, which was sharply disputed
in many respects, would serve no useful purpose. More-
over, that testimony was evasive and inconsistent in
significant respects. As Administrative Law Judge Powell
concluded in the earlier proceeding, so I conclude in the
instant proceeding, that, except where independently
corroborated, John Hotsinpiller's testimony is entitled to
little credence. Moreover, even assuming the credibility of
such testimony, neither that testimony nor other. evidence
of record serves to establish the,necessary linkage which
would be required to show that Mary Ann's discharge was
attributable to Respondent's resentment against her father.
Although General Counsel in his brief vigorously asserts
that this was the situation, nowhere in his extensive
discussion does he trace that linkage.
I find a lack of probative evidence to support General
Counsel's allegation that the discharge of Mary Ann
Hotsinpiller was violative of Section 8(a)(3), (4), and (1) of
the Act.
H. THE OBJECTIONS TO THE ELECTION; CASE lO-RC-
10079
As previously noted , a representation election among
Respondent's employees was conducted on September 12
and 13 , 1974. A majority of the employees voting cast
ballots against the Union. On September 20, 1974, the
GOULD, INC. 909
Union filed 10 timely objections to the election, urging
improper election conduct by Respondent. Prior to the
instant hearing, the Union withdrew four of these objec-
tions and at the hearing withdrew a fifth The remaining
objections, assigned for hearing in this proceeding, are:
Objection I. Gould ran a campaign of fear by threats of
strikes, violence, plant closing, and loss of wages and
benefits if Union was voted in.
Objection 2. Gould ran a campaign of fear by the media
of speeches, radio, records, leaflets, letters, film, and signs.
Objection 3. Gould interrogated employees as to their
union beliefs and sympathies.
Objection 4 Gould threatened employees individually
because of their union beliefs and sympathies.
Objection 10. Gould permitted supervisors and antiunion
employees to freely roam the plant and talk against the
Union during working hours, while denying union support-
ers the same privilege.
Because certain of these objections are coextensive with
conduct alleged in the unfair labor practices alleged in the
instant complaints, the Regional Director directed that the
hearing thereon be consolidated with the hearing on those
complaints. The Union requests that the election be set
aside because the conduct of Respondent described in the
objections dissipated the Union's majority status.
Because of prior discussion and findings made herein,
extensive consideration of Objections I through 4 would be
superfluous. Respondent did engage in an extensive
antiunion campaign during the preelection period but
antiunion propaganda, whether written or oral, does not,
as such, constitute proscribed interference with an election.
On the other hand, coercive interrogation of employees as
to their union beliefs and sympathies and threats to
employees because of their union beliefs and sympathies
does, on well-settled authority, constitute such proscribed
interference The evidence summarized and the findings
made in section I of this Decision amply substantiate that
Respondent, by the acts and conduct of its agents and
supervisors, engaged during the preelection period in the
coercive interrogation and threats described in the objec-
tions. In that respect I find that the objections are valid
and established.
Objection 10 raises the issue of discriminatory applica-
tion of a no-solicitation rule.5 Respondent's defense to this
objection is that the "No Solicitation - No Distribution
Rule was not enforced."
Examination of the record, however, shows considerable
evidence to the contrary. Several witnesses, Betty Barlow,
Kenneth Howard, Robert Underwood, Fran Edmunson,
and Pauline Ward, credibly testified to seeing supervisors,
inspectors , and other employees distributing or preparing
antiunion literature in the plant during worktime. On the
other hand, union solicitation or distribution of prounion
literature was not permitted. Supervisor Richard Sommers
told Betty Barlow several times not to pass union literature
in the plant during worktime. On the other hand, when he
was observed on one occasion passing out antiunion
literature during worktime and was questioned, his reply
was that he could distribute literature, but the employees
could not. Leggitt, for his part, admitted giving verbal
warnings to the Underwood brothers for engaging in
solicitation, and, as previously described, Wilhoit threat-
ened to discharge Robert Underwood if he kept "pushing
Union cards."
On the basis of the testimony as to the foregoing matters
- testimony which I credit - I find that there was
disparate application by Respondent of its rule against
solicitation and distribution. Not presented here and not
decided is the commission or noncommission of an unfair
labor practice in this respect. The critical question which is
presented here is whether the conduct here under consider-
ation interfered with a free and fair election. In the context
of the other conduct by way of interrogation and threats, I
conclude that the obvious disparity of treatment here
meted out by Respondent could not but have that
consequence.
I find the evidence adequate to sustain Objection 10.
CONCLUSIONS OF LAW
1. By coercive interrogation of its employees as to their
union sympathies and desires, Respondent violated Section
8(a)(1) of the Act.
2. By threatening the employees that successful unioni-
zation would result in the plant closing or moving, and by
threatening an employee with discharge unless he aban-
doned his union activities, Respondent violated Section
8(a)(I) of the Act.
3. By promising benefits to employees for abandoning
their adherence to the Union, Respondent violated Section
8(a)(1) of the Act.
4. By creating an impression among the employees that
their union activities were under surveillance, Respondent
violated Section 8(a)(1) of the Act.
5. By soliciting grievances from its employees for the
purpose of deterring their unionization, Respondent
violated Section 8(a)(1) of the Act.
6. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Respondent did not violate the Act in the other
respects alleged in the consolidated complaints herein.
8. By coercively interrogating its employees concerning
their union sympathies and desires, by threatening them
with reprisals because of their union sympathies and
desires, and by discriminatorily applying its no-solicitation,
no-distribution policy, Respondent interfered with the
employees' freedom of choice in the election conducted on
September 12 and 13, 1974, in Case 10-RC-10079.
REMEDY
Examination of the remedial order issued against
Respondent in the prior proceeding, 216 NLRB No. 183,
reveals that a remedial order entered here will be in
substantial part repetitious. Nevertheless, Section 10(c) of
the Act mandates the entry of an order directing the
cessation of the unfair labor practices here found and,
under all the circumstances here disclosed, an additional
provision broadly interdicting further violations of Section
S This was the same rule considered in the prior unfair labor practice by the Board to be violative of Section 8(ax1) of the Act
proceeding before Administrative Law Judge Powell and found by him and
910 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
7 of the Act is plainly warranted. Notice-posting and
reporting requirements will also be included.
Finally, I shall recommend that the election in Case 10-
RC-10079 be set aside and that the Board take further
appropriate action in that case as required.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record, and pursuant to Section 10(c)
of the Act, I recommend the following:
ORDERS
The Respondent, Gould, Inc., Cookeville, Tennessee, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union sympathies and desires; threatening its employ-
ees with discharge because of their union activities;
threatening to close or move the plant in the event of
successful unionization, creating the impression among its
employees that their union activities are under surveil-
lance ; and soliciting grievances from its employees for the
purpose of deterring their unionization.
(b) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights under
Section 7 of the Act.
2. Take the following affirmative action designed to
effectuate the policies of the Act:
(a) Post at its plant in Cookeville, Tennessee, copies of
the attached notice marked "Appendix." 7 Copies of said
notice, on forms provided by the Regional Director for
Region 10, after being duly signed by an authorized
representative of Respondent, shall be posted by it for a
period of 60 consecutive days thereafter in conspicuous
places, including all places where notices to employees are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that the notices are not altered,
defaced, or covered by any other material.
(b) Notify the Regional Director for Region 10, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT Is FURTHER RECOMMENDED that the election in Case
10-RC-10079 be set aside and that the Board take such
further action in that case as it deems appropriate in the
circumstances.
6 In the event no exceptions are filed as provided by Sec 10246 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec
102 48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes
r In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
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 "