H. A. Kuhle Co.

National Labor Relations Board - Board Decisions

Jul 30, 1973

205 N.L.R.B. 88 (N.L.R.B. 1973)

88 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
H. A. Kuhle Company and Teamsters , Chauffeurs &
Helpers Union , Local No . 279. Cases 38-CA-1539
and 38-RC-1 153
July 30, 1973
DECISION AND ORDER
BY MEMBERS JENKINS, KENNEDY,
AND PENELLO
On March 30, 1973, Administrative Law Judge Irv-
ing M. Herman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief, and the General Counsel filed
limited exceptions to the Administrative Law Judge's
Decision and a statement in support thereof, and a
brief in support of the Administrative Law Judge's
Decision.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent, H. A. Kuhle Company, De-
catur, Illinois, its officers, agents, successors, and as-
signs, shall take the action set forth in the said
recommended Order.
I The Respondent has excepted to certain credibility findings made by the
Administrative Law Judge It is the Board's established policy not to overrule
an Administrative Law Judge's resolutions with respect to credibility unless
the clear preponderance of all of the relevant evidence convinces us that the
resolutions are incorrect Standard Dry Wall Products, Inc, 91 NLRB 544,
enfd 188 F 2d 362 (C A 3) We have carefully examined the record and find
no basis for reversing his findings
2 Member Kennedy dissents from so much of the majority's decision as
affirms the Administrative Law Judge's findings that Campbell's speeches
and McKenzie's statements that the Union's demands would have caused a
strike violated Sec 8(a)(1) of the Act However, notwithstanding that he
would not adopt these findings of the Administrative Law Judge, he believes
that the other findings of violations of the Act, with which he concurs, justify
the issuance of a bargaining order
DECISION
IRVING M. HERMAN, Administrative Law Judge: This case
was tried before me on November 14-17, 1972,1 at Decatur,
Illinois. The charge was filed by Teamsters, Chauffeurs &
Helpers Union, Local No. 279 (herein called the Union) on
August 3 and served upon Respondent August 4. The com-
plaint issued September 20. The primary issues are whether
Respondent violated Section 8(a)(1) of the National Labor
Relations Act, as amended (29 U.S.C., Sec. 151 et seq.),
herein called the Act, by interrogating, threatening, and
promising benefits to its employees, and by granting them
a wage increase and other benefits; violated Section 8(a)(3)
by constructively discharging Thomas G. Massey; and vio-
lated Section 8(a)(5) by refusing to bargain with the Union
(or whether Respondent should be ordered to bargain with
the Union even absent an 8(a)(5) finding); and whether,
absent a bargaining order, the result of the election conduct-
ed in Case 38-RC-1153 on May 24 should be set aside and
a new election directed.
Upon the entire record, including my observation of the
witnesses, and after due consideration of the briefs filed on
behalf of the General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
I RESPONDENT'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a Delaware corporation with office and place
of business located at Decatur, Illinois, where it is engaged
as a GMC dealership in the business of selling and servicing
new and used trucks and parts therefor; and that during the
past 12 months, a representative period, Respondent re-
ceived directly from points outside of Illinois goods and
materials valued in excess of $50,000. At the hearing, the
complaint was amended to allege, and Respondent stipulat-
ed, that during the last fiscal year, a representative period,
Respondent's gross sales exceeded $500,000. I find Respon-
dent to be an employer engaged in commerce within the
meaning of Section 2(2), (6), and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Robert Campbell , who had been vice president and sales
manager of Respondent , a General Motors dealership, prior
to August 1971, was put in charge of the day-to -day opera-
tions of the Company at that time upon the death of Mr.
Kuhle, its owner . He remained responsible to the Kuhle
estate (Mrs. Kuhle and her attorney) for "anything out of
All dates are in 1972 except as otherwise stated
205 NLRB No. 21
H. A. KUHLE COMPANY
the ordinary" until June 27, 1972, when he became
Respondent 's owner and general manager and assumed full
control . Campbell concededly strongly opposed the unioni-
zation of the Company. The stipulated unit consisted of the
parts department and the service department , the latter in-
cluding a mechanics ' shop and a body shop.
2. Start of the organizing drive
On March 6, 1972, five of Respondent's employees,
Thomas Massey, Wayne Sowers, Bill Skowronski, Max
Zimmerman, and Carl Mortland, visited the headquarters
of the Union and spoke with Guy Clapper, its president and
business agent, about organizing Respondent's place of
business. Each of said employees there signed a form of
application for membership which also specifically desig-
nated the Union as bargaining representative. Clapper sug-
gested that any other employees interested in the Union
should be told to contact him.
3. 8(a)(1)
a. Respondent's reaction and further developments
On March 7 Service Manager Roger McKenzie asked
Massey (who had a desk job as warranty man in Mc-
Kenzie's office) if he knew anything about any union activi-
ty on the floor. Massey said he did not. McKenzie testified
that the conversation concluded at that point. According to
Massey, however, McKenzie thereupon asked him if he
would find out what union the men were trying to get into
the shop, and he agreed. About the same time, McKenzie
asked employee Hapner 2 if he had signed a card, and Hap-
ner, who had not yet signed, so advised McKenzie.
On the same day Massey told a number of his fellow
employees to go to see Clapper and sign cards if they were
interested in getting the Union into the shop. He personally
accompanied one of such employees (Younger) to the union
hall for that purpose. The next day (March 8), at 7 a.m.,
according to Massey, he was approached by McKenzie in
his office. McKenzie asked "What are you doing being
involved in the Union?" Massey asked, "What Union?"
McKenzie replied, "You know damn well what Union. You
were hired to work for the Company and to stop the Union.
You're not supposed to be helping the men." Massey's per-
sistent denial of any knowledge of the Union went unheed-
ed as McKenzie told him to stay away from the men, not
help them in organizing, and to "stay out of the Union or
else," accompanying the warning with a clenched fist. Fi-
nally, McKenzie closed the conversation by saying, "If you
don't like the way things are run here, you can pick up your
stuff and leave." However, McKenzie returned about a half
hour later and stated that nothing he had said meant that
Massey was fired.
McKenzie's testimony did not specifically advert to the
above conversation. However, he did mention "a second
conversation . . . sometime" after the admitted interroga-
tion of March 7 that was occasioned by his overhearing
2 Body shop foreman but a member of the bargaining unit
89
Massey discussing the Union on the floor with some me-
chanics. Later, in the office, he said, he asked Massey why
he was interested in the Union, and told him that since he
was a clencal employee and the other clericals "would not
become union, that he wouldn't be able to become a mem-
ber." 3
Massey continued his union activity, sending more em-
ployees on March 8 to the union hall to sign cards, and he
visited the hall himself about every other day.
On March 9, at McKenzie's direction, Massey made up
and posted in the office they shared a new work schedule
for the mechanics which would have altered the existing
situation in two major respects. First, it would have changed
the hours of the night shift which were then from noon to
9 p.m. to 5 p.m. to 1 a.m.; and it would have increased the
size of the night shift from three men to six. The schedule
indicated no effective date, but according to Massey, Mc-
Kenzie informed him at the time that it would become
effective if the Union came in. McKenzie testified that he
had ordered the schedule made because the business re-
quired some changes. However, these changes never went
into effect.' Nor did another schedule for the mechanics
which McKenzie had earlier ordered Massey to make up.
Massey testified that the first schedule had been made up
only the previous day and had remained posted for several
weeks along with the second. McKenzie testified that the
first had been made 2 to 3 weeks before and been removed
and destroyed as unworkable when the second was made.
On Saturday, March 11, over 20 employees of Respon-
dent met at the union hall with Clapper and other union
officials, resulting in two additional card signings which
brought the total of signed cards to 22 of the 26 stipulated
unit employees.5
The following Monday, March 13, Clapper telephoned
Campbell and requested recognition of the Union. Camp-
bell replied that he thought an election would be necessary,
and Clapper responded that they could proceed in that
direction if the Company so desired. Two days later the
Union filed its petition in Case 38-RC-1153 6 Shortly there-
after McKenzie told Massey, according to the latter, that he
was glad Campbell had rejected the bargaining request be-
cause otherwise there would have been a strike for the
Union's demands, in which event the Company "would just
close the gates." McKenzie's version of the conversation
was that he said he was glad Campbell had not recognized
the Union on its "initial contact" because that might have
caused a strike.
Around this same period McKenzie told Massey and
Younger that if the Union came in the employees would no
longer be able to work on their own cars on company prem-
ises.' According to Massey, McKenzie also told him that if
3 I find this to be the same conversation as that of March 8 described above
by Massey
According to Massey, McKenzie instructed him to have Carl Mortland
see the schedule because he was one of the mechanics who would have been
moved to the night shift and he did not want to work nights Massey did not
carry out the instruction
5 A 23rd card was signed on April 20
6 Campbell's recollection of the 17th as the date of the request and refusal
to bargain seems faulty in view of the filing of the petition on the 15th.
7 McKenzie testified he said this because if he continued to allow the
Continued
90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union came in the discount on parts that the employees
were then enjoying would be discontinued; and that the
Company would start running the shop like a big factory in
respect to disciplining latecomers and those who failed to
return tools to the tool crib. None of this was specifically
denied by McKenzie.
Around the end of March or early April, McKenzie di-
rected Massey to make up a poster as follows:
COMPANY POLICY-EFFECTIVE [blank]
1. SAFETY GLASSES
2. STEEL TOE SAFETY SHOES
3.
Massey testified that McKenzie told him that if the Union
came in the men would have to get these articles at their own
expense. McKenzie testified that this poster was occasioned
by official notices issued under the Occupational Safety and
Health Act and particularly after one mechanic had a pair
of safety glasses broken by a flying object. He informed the
service personnel of this at a meeting. Respondent has never
purchased safety equipment for its employees.
About the same time, McKenzie asked Hapner if he knew
"what was going on about the Union" and when there was
going to be an election; Hapner replied that he did not
know. Also, according to employee Neeley, McKenzie stat-
ed that four men would have to move to the night shift if
the Union came in, and the shift hours would change so that
it would end at I a.m. McKenzie testified that this incident
involved a conversation with employee Bond at which Nee-
ley and Mortland were present; that Bond had been seeking
a transfer to the day shift, and McKenzie was asked why he
had not received it; that he replied that he did not have a
replacement for Bond, and someone suggested that under
a seniority system Bond would be entitled to the change;
and that McKenzie agreed, adding that under a strict sen-
iority system four men on the day shift would have to move
to night work.
b. Intensification with approaching election
On April 20, a stipulation for certification upon consent
election was approved and the election was scheduled for
May 24. The day after execution of the stipulation, Camp-
bell presided in McKenzie's office at a meeting he called of
all the employees. He read from a prepared speech, whose
text was as follows:
Men
I thought I should talk with you for a few minutes
concerning this Union matter ( I am going to use these
notes because law is pretty strick and I need to have a
record of what I say).
As most of you know the Teamsters Union has peti-
practice the Union would grieve over the Company's favoring certain em-
ployees as against those who did not take advantage of this opportunity
tioned the government to hold an election here, they
are claiming that most of you want to be represented
by this Union.
I felt that each of you should have the opportunity to
vote on a matter as serious as this. I know that the
Union and some of our employees may have put some
pressure on you to sign a union card By having an
election you will each get a chance to vote the way you
feel.
Yesterday the Government, the Union and myself met
to determine whether or not each of you would get a
chance to Vote. The Union wanted to exclude certain
people from voting, but again I felt that everyone here
should have a say so in a matter this important. Finally
the Union agreed to let everyone vote. That meant that
everyone working in the Parts and Service Dept. prior
to yesterday will be eligible to vote if they are still here
by election day. Of course Ken the Parts Manager and
Roger the Service Manager will not vote but everyone
else can.
There are a few things I do want to clear up for you.
Number 1
Just because you signed a Union card does not mean
that you are obligated in anyway to vote for the Union
on Election Day.
Number 2
As you know, I am trying to negotiate with Mrs. Kuhle
and the banks to raise enough money to buy the Com-
pany. I don't know for sure now how that will affect
any of you. Obviously I would have my own ideas
about running the Company and would hope to be free
to do that as soon as the deal was completed. I will keep
you informed. There is always the chance that I will not
buy the Company and someone else will-what will
happen then, I can't tell you.
Number 3
Just because this election is coming up and you may
choose to have the Teamsters represent you, I am not
going to change my mind about what I want to do here,
I don't want to operate a Company where the Employ-
ees are unionized but if you choose the Union I will go
along with that. I don't feel that you need a Union to
solve your problems for you, or that a Union will help
you in any way. You may feel it will and that is your
right. However I have rights to oppose the Union within
the law and I intend to do just that.
Number 4
I am sure some of you have been told that if the union
gets in here all your problems will be solved-you'll get
a raise we'll fix everthing and everything will be fine.
H. A. KUHLE COMPANY 91
Lets get another thing straight-just because you vote a
Union in here the Company doesn 't have to do any-
thing . Nothing will ever be done here Union or no
Union without Company agreement . The Union may tell
you, you will get $5.00 an hour , but unless Company
agree you won 't get it. If you vote the Union in and ask
for something unreasonable the Company won't agree,
then you'll have only two alternatives , accept Company
decision or strike. I'll be talking to you some more be-
fore the election which will be held on May 24th. I did
want you know where the Company stood and that I
just don ' t believe that you will be benefited by paying
your money to an outside organization so that they can
come in and talk for you. I hope you will agree and be
man enough to talk for yourself- if you think about that,
and then whether the Union dues, initiation fees and
assessments are voting to help you.
1st.-I'll set you straight- the union , by winning the
Election will only give you the right to sit down and
begin talking with me.
I don't have to agree to anything I don't want to and
you can be assured I won ' t agree to anything I feel is
unreasonable . The law allows me the right to deal hard
with the union-and you can be assured that I will.
3rd.-What happens if we can't reach an agree-
ment?-Then as I see it , the union and you would
have no choice but to strike.
I hope that doesn 't happen , but again I want to let you
know that if you do strike I intend to run the business
and the law allows me to have replacements for any one
on strike.
I think you'll agree that you should vote no Union on
election day.8
Around the following week , while employee Max Zim-
merman was returning from a service call with McKenzie,
the latter asked Zimmerman what he thought about the
Union and the Union 's position on job classifications. Zim-
merman said he thought , contrary to McKenzie , that the
classifications would be good for the employees . Employee
Younger , who had heard from another employee that Mrs.
Kuhle was going to close the place down if the Union came
in, asked McKenzie whether this was so, and McKenzie
confirmed that that was what she had said . Younger testi-
fied that McKenzie said nothing more, but McKenzie testi-
fied that he added that he "didn ' t know whether she could
do it or not."
During the next 2 to 3 weeks Campbell called four group
meetings of about half a dozen men each , covering all the
employees in the bargaining unit . He began every meeting
with the statement that attendance was voluntary , that the
men were free to leave at any time, and that nothing they
said there would be held against them . He then read the
following speech:
There will be an election held here May 24 , at 3:30.
Each of you will get a chance to vote on whether or not
you want the union here.
There are a few things I want you to know before you
vote.
Ist.-Just because you signed a union card you are
not obligated in any way to the union-you don't
have to vote for the union nor can they force you to
pay dues or assessments at this time.
2nd.-I understand that some of you have been told
that all you have to do is vote the union in here and
thats it-you begin to get the things you want.
4th.-Now lets talk about some of the things that can
happen if you vote the union in , and we do get a
contract, I'm sure you've all been told you get to
keep what you've got and try for more . -Thats not
true.
In negotiations , we start from scratch-just because
you have certain holiday's and vacations and other
priveleges here now doesn 't mean you'll have the same
thing after a contract is signed , you could very well get
more in some areas but get less in others.
Let me compare some union contract provisions
around this area-
1st. Lets take the contract the automobile mechanics
have in Springfield and let me show you something.
Management Rights Clause Article VL (Read ) Wheth-
er you believe it or not even with a contract we still
would run the business as we see fit.
Checkoff Article VIII (Read)
This indicates that the Company deducts any dues,
initiation fees, from the employee's pay before he ever
gets it-this includes assessments the union may au-
thorize, also , and you pay whether you want to or not
because you never get the money.
International Harvestor
Now lets talk about what has happened when the em-
ployees have gotten union for themselves right here in
Decatur.
8 Emphasis Respondent 's 1. Borg-Warner-layoff-closed up parts
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
2. A.E. Stanley Co,-Shut down & moved a drive-
way
3. Huss Schlieper-Voted union out decertified
4. Mason Steel-Voted union out unanimously
5. Murply Industries , Warrensburg-Voted Union
out
6. Malinkrodt-Voted union out (teamsters)
Now that you've been told a few facts about Unions-
let me tell you a little about your situation here-
I know @ the 1st of the year you were promised an
increase and a few other things-I couldn ' t give it to
you because Mrs. Kuhle and her lawyer wouldn't let
me. (They own 75% of the business.)
I can tell you now that I am closer to closing the deal
to buy this place.
I probably shouldn't say this in this meeting but I will
tell you that the $.10 per hour that I promised you in
January, I now have permission to put into effect. The
raise is not connected with this union matter in any
way-it's only what I promised you I would do when
Mrs. Kuhle and the lawyer said I could.
Now I have a lot of ideas about what I want to do with
the company but I can't do any thing now for fear of
having the Union charge me with unfair labor practices
and attempting to bribe you . I will say this I will not
close the deal until sometime in the next 2 or 3 months
If I don ' t buy it some one else may. If no one else buys
it then at the end of August, the contract states that
GMC terminates the Dealership. I'll be honest with
you I don't want to buy a dealership where the
employee's feel they need a Union to represent them
and where there will be possible labor trouble.
I do promise you that I can if you'll give me a chance
to work directly with you-you'll see that I am going
to be fair and reasonable.
Until now I haven't been able to do anything because
of the election coming up and you have sort of got my
hand tied because of it. I can assure that if you will give
me a chance I think you'll agree with me that you don't
need a Union to do your talking for you
I hope you do agree and vote NO on election day.9
Thank you.
After completing his speech at the meeting attended by
employees Meyer, Baker, Zeeb, Foshee, and Pope, Camp-
bell asked what the men were hoping to get through the
Union. Meyer and Zeeb both testified that they said they
were most concerned about a pension plan, and , according
to Zeeb, Campbell replied he was working on such a plan
but that it would take about a year to implement it Meyer
9 Emphasis Respondent 's None of the contract provisions mentioned in
the speech were from Teamsters ' contracts
could not recall Campbell's reply. Campbell testified that
his response was that he and Mr. Kuhle had made prelimi-
nary inquiries into this before the latter's death, and that if
he (Campbell) did succeed in buying the business, such a
program would be a year and a half off.10
At the meeting attended by employees Skowronski, Kauf-
man, Smith, Goodbred, Mortland, Shaffer and Wehrle,
Campbell asked what the complaints were that they wanted
a union to help them resolve . Among those mentioned were
the lack of cleanliness of the shop due to the accumulation
of scrap and oil on the floor, the shortage of water buckets
for filling radiators , the inadequate washing and dressing
facilities ," the insufficient lighting in the body shop, the
need for a pension plan, and the Company's apathy con-
cerning suggestions made at shop meetings unattended by
Campbell. Skowronski and Goodbred testified that Camp-
bell said he should be able to work out most of the problems
raised, but they confirmed his reservations noted above in
respect to pensions, and, according to Skowronski, Camp-
bell said that the poor lighting was a major project which
could not be resolved quickly . Skowronski also testified that
Campbell said that if things did not go the way the men
wanted , they could have another election in 6 months.
Kaufman , testifying as Respondent's witness, stated that as
to the complaints in general Campbell said in substance he
would "try and see what he could do. Try and work some-
thing out."
In response to Campbell 's inquiry at the meeting attended
by Zimmerman, Younger, Tolly, Seibert, and White, as to
the reasons they wanted a union, the Company 's unrespon-
siveness to employee suggestions or complaints at shop
meetings was raised And the parts department employees
complained about not receiving premium pay for overtime
work. According to Zimmerman, Campbell said he wanted
to know about employee grievances and so he would put up
a suggestion box, which he did that same evening after the
meeting. As to the overtime pay for the parts department,
Zimmerman said Campbell suggested getting additional
help so as to avoid or reduce the need for overtime work.
Employee Younger testified that Campbell said at the out-
set of the meeting that he could not promise anything but
that in response to his complaint about the front office's
failure to learn of the employees' grievances, Campbell said
he would start attending the shop meetings . Younger corro-
borated Zimmerman 's testimony about the parts depart-
ment overtime but he could not recall any mention of a
suggestion box. He testified, however, that a suggestion box
was put up and he thought it was after that meeting. Youn-
ger also testified that he asked Campbell whether what he
had heard about Mrs . Kuhle's intention to close the place
10 Campbell's testimony was that Neeley had raised the same issue Al-
though nobody placed Neeley at this particular meeting , Neeley testified that
he had raised the issue at a meeting called by Campbell which he attended
with Pope and Bond 2 days before the election Since in every respect but
one the matters covered in his testimony paralleled those discussed at the
meeting mentioned in text, since this was the only meeting Neeley recalled
attending with Campbell , since both Pope and Bond were present at the
meeting mentioned in the text , and since there was no need for Campbell to
repeat to them the substance of his speech (Resp Exh 4 ), I find that the
events described by Neeley occurred at the meeting mentioned in the text
The single additional matter in his testimony was that he asked Campbell for
more shop tools and that Campbell said he would try to get them
11 The men changed their clothes in the boilerroom
H A. KUHLE COMPANY
if the Union won the election was true, and Campbell re-
plied that that was what she had said but that he did not
know whether she actually would do so. Recalled as a wit-
ness later, he confirmed this conversation but stated he was
uncertain whether it occurred at this meeting . Campbell
substantially corroborated this conversation with Youn-
ger 12 but stated it did not occur at this meeting. Campbell
also acknowledged that he offered to hire an additional
parts man so as to reduce the overtime work. Campbell
testified to Seibert and Hilligoss raising the question of "the
balcony and the stairway banister" 13 in the parts depart-
ment , but Hilligoss was not present at this meeting and
Seibert recalled the matter only in connection with another
meeting confined to parts department employees which will
be discussed infra.
At the meeting attended by Sowers, Cravens, Hillogoss,
Dickinson, Hapner, and Morr, Sowers raised the matter of
the cleanliness of the shop. According to him, Campbell
said he "could work something out on that," but Campbell
testified that he said he could not promise to do much about
it then. Sowers testified that Campbell's reply to the ques-
tion of a pension plan was that he was working on it but that
it would probably take a year to a year and a half to accom-
plish anything. Sowers also testified that someone proposed
sick leave but that Campbell rejected that on the merits.
According to Sowers, Campbell said he would work some-
thing out on overtime pay for the parts employees.
Hilligoss' recollection of the meeting was somewhat vague
but he did recall Campbell's general position that "it was
really not much he could do, at the time." Cravens testified
that Campbell said this specifically in respect to the over-
time question.
Shortly after this meeting, all six of the parts employees
(Tolly, Seibert, White, Cravens, Hilligoss, and Dickson) met
with Campbell at their request after having decided that
Campbell deserved a chance to see what he could do. As
Hilligoss put it, "we wanted to talk to him and tell him that
we was on his side, and decided we didn't want to go for the
Union." Again, according to Hilligoss, they told Campbell
this after he greeted them by asking what they "needed"
while adding that he could not promise until "this deal with
the Union . . . was all settled." Tolly testified that Camp-
bell said in effect that it was "because of the Union trouble"
that he could not promise anything. The men raised the
matters of overtime and the handrail. Cravens' testimony as
Respondent's witness confused the two group meetings he
attended, but according to him Campbell's only comment
on the handrail at any meeting was that he had already
discussed it with McKenzie and that McKenzie was already
working on it. Tolly testified that Seibert defined their need
as "handrails around the balcony and down the stairs," and
that Campbell agreed they should have it and they discussed
the dimensions it should be; and as to the overtime, Camp-
bell said they were entitled to it and should get it if the
12
He testified he told Younger that he had heard Mrs Kuhle said that,
"But I said I don't hardly believe it myself "
13
This is variously referred to in the record and in this decision as a rail,
railing , handrail, or guardrail. It is more precisely described in Shaffer's
testimony quoted below but consists essentially of a fence on the upper level
topped by a handrail as well as a banister down the steps
93
Union was voted out but that if the Union came in they
would have to bargain for it. Campbell 's testimony was that
he told the men a State inspector had noted the absence of
a guardrail 14 and that his insurance agent had also pointed
out that such a rail of certain dimensions was required
under OSHA 15 regulations . As to the overtime, Campbell
testified he told the men "we couldn 't promise them any-
thing, but if this thing was all settled , if the union was voted
in, we 'd have to negotiate for it, and if the Union was voted
out, I'd be most happy to set (sic) down with them and talk
to them and straighten everything out."
About the same time , Skowronski , Mortland, and Sowers,
all of whom had already met with Campbell as members of
other groups , as indicated above, met again with him in his
office. According to Skowronski , the men were called in by
Campbell who asked them what the major problems of the
mechanics were; he replied that one of his main complaints
was that some other mechanics in the shop doing the same
work as he were making about a dollar more an hour; and
that Campbell acknowledged the inequity and said he
should be able to work something out on it later . Skowron-
ski also testified that Mortland again raised the pension
question and that Campbell said he had been talking to an
insurance man and that if something were worked out it
would take about a year. Campbell 's testimony confirmed
the meeting and his accord with the complaint about the
excessive wage differential . But he testified that the meeting
had been requested by the men and that he told them he
could not promise anything. When asked in his cross-exami-
nation whether the meeting had not in fact been requested
by the men, Skowronski stated, "This was another meeting,
as best as I can remember , I was called in on two small
group meetings . And, there was one where I went voluntari-
ly„
In addition to these meetings , other developments were
occurring during this same period that bear mention. Ac-
cording to Meyer , McKenzie asked him at his workplace
what he thought of the Union . Meyer responded he was
"kind of on a fence." McKenzie said he did not think the
men would benefit much from the Union . Mortland testi-
fied that McKenzie told him at his work area that if the
went union the shop would go on a 4-day, 40-hour week. Z
Tolly testified that he asked Parts Manager Kenneth
Stickle if that department should not get premium pay for
overtime , and that Stickle answered that he thought that if
the Union came in the Company would rather hire an extra
man than pay overtime . Stickle did not testify.
c. The wage raise
Meanwhile, effective May 5, all the bargaining unit em-
ployees received a 10-cent per hour wage increase as had
been announced at the group meetings. As reflected in
Campbell's prepared remarks at those meetings, the
14 This is confirmed by an Illinois Department of Labor report of the
January 1972 inspection of the plant That report, however, notes five addi-
tional violations, as to four of which the record is otherwise silent The fifth,
"Housekeeping shall be maintained in a clean and sanitary manner," is dealt
with herein
i5
Occupational Safety and Health Act
i6
This would have ended the customary 10-12 hours of overtime
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company's stated position was that the raise was "not con-
nected with this union matter in any way," and was only in
fulfillment of his promise in January contingent on obtain-
ing permission from the Kuhle estate which had just then
been given. The Company further offered testimony that
the raise was pursuant to a policy established long prior to
the advent of the Union. Thus, Respondent' s witness em-
ployee Baker, testified that the Company had maintained a
standard policy of raising every employee's wage by 10
cents an hour every January I for the past "four years."
Baker's testimony was very emphatic both in substance and
in manner of delivery. He stated he could not be mistaken
about this because he had seen the checks. He then ac-
knowledged, however, that some mechanics had received a
25-cent increase in 1971 while insisting that every other
employee got 10 cents. "And," he added, "they got it all
from then on," meaning "From `71-from '71 back to '70-
about four years ago." "
According to McKenzie, the policy was one he had de-
vised with Mr. Kuhle at "the beginning of 1971," to give a
blanket increase at the beginning of each year with merit
increases throughout the year. In 1971, the increase
amounted to 25 cents and went to all but six of the men. One
of the six did not start to work until after the first of Janu-
ary. Two were explained as too new, one having come in
December and the other in October. A fourth was a high
school student, and the contract with the school did not
permit him to get a raise. Employee Wehrle, also denied the
raise as a new employee, according to McKenzie's direct
examination, had been employed since June 1, 1970, 7
months. When this was pointed out by the General Counsel
on cross, McKenzie added that Wehrle "was 18 years old
and unfamiliar with the work" and that this as well as his
newness militated against his getting the raise. The sixth,
Hapner, who had worked for Respondent since August
1968, did not get the raise, because of an accident in the
summer of 1970 following which he "was only working part
time ;" and again, "because he had been-had an accident
and was unable to do full time work." Immediately after the
above testimony came the following:
Q. I don't believe you've explained that before.
Would you go into a little detail with respect to Mr.
Hapner's-the reason for his not receiving an increase?
A. Yes. That summer Jim had had an automobile
accident. Busted a hip. Was hospitalized for several
weeks. And was unable to maintain at work. We did,
however, give him a clencal job for several weeks, and
didn't give him a raise at the time, at the beginning of
the year.
On cross-examination, however, came the following:
Q. Okay. Now, and you said, as I recall, that Mr.
Hapner did not receive his Twenty-Five Cent an hour
increase, at that time because he was not employed full
time. Here I have Mr. Hapner's record, if that's what
you're looking for. Is that correct?
A. You asked me if it was correct?
Q. Isn't that what you testified tojust a minute ago?
A. I testified that he was unable to work as a produc-
tive man because of his accident. We had him doing
clerical work.
Q. I see. I misunderstood you. I thought you said he
was not full time , and that's the reason he didn't get the
raise.
A. No.
JUDGE HERMAN You actually did use that expression
yourself. You also mentioned his clerical-his assign-
ment to clerical duties. But you did mention the fact
that he was not full time.
THE WITNESS I said that he was off from the hospital,
and we gave him a job as clerical.
Q. (By Mrs. Benassi) He was full time in January of
`71. He was a full time employee, was he not?
A. Yes.
McKenzie further testified that the Kuhle estate refused
to permit the blanket increase in January 1972 although it
did allow payment for the cost of uniforms which came to
about 10 cents an hour; that he told the service employees
sometime in January that he would continue to negotiate
with the estate for an additional 10-cent increase ; and that
the May increase was given to all the employees, including
Rodney Morr who had been hired April 17.
Campbell testified that prior to 1971 all raises were on a
merit basis , that practically everybody got the 1971 raise,
but that the estate would not grant it in 1972 except as to
the 10 cents in uniform costs; that the policy adopted by Mr.
Kuhle in 1971 was to gear an annual increase to the rise in
the cost of living; that he and McKenzie had set the 1972
increase at 20 cents and hence the men were told by Mc-
Kenzie at the January meeting that he and Campbell would
continue to try to get them the additional 10 cents; that he
talked to Mrs. Kuhle about it three or four times until about
May 1 when, being close to consummating the sale of the
business to him, she authorized the 10-cent raise while cau-
tioning him against any "drastic" action or getting the Com-
pany in debt until she was entirely out of it; and that he had
been advised on April 20 by his attorney, whom he had
retained the last week in March, that he was legally free to
fulfill any promise he had made prior to "this union thing."
Employee Younger, testifying for Respondent, confirmed
the Company's position that McKenzie had promised in
January to keep trying to get the 10-cent blanket raise.
Employee Massey testified that McKenzie had stated at the
January service meeting, in response to several requests for
raises , that it could not be done "because of the Company
being in estate," but that the Company was thinking instead
of giving more benefits to the employees, like the uniform
costs, and that he thought Campbell would give "a raise or
bonus" after he took possession. Employee Zeeb testified
that he had not been told by any member of management
that he was going to receive the raise before he got it. Em-
ployee Sowers testified similarly but then admitted having
been told-and he did not remember when-that the reason
no increase was being given was the estate's refusal to per-
mit it. Employee Skowronski's testimony fairly paralleled
Sowers' but he added that the men were told at the January
meeting that "possibly I could receive a wage increase at the
end of January, or possibly not until August."
" His time concept was obviously faulty
H. A. KUHLE COMPANY
d. Action to remedy employee complaints
The testimony was somewhat varied as to the extent to
which and the time when certain of the complaints raised
at the various group meetings were remedied. Younger testi-
fied that nothing was done about the matters raised at the
meeting he attended. Neeley testified that the shop tools he
had requested at his meeting were purchased after the elec-
tion. Of all the improvements suggested at the larger group
meeting attended by Skowronski, he could recall as remed-
ied only the complaints dealing with the dirty work area and
the inadequate dressing facilities. He testified, "they
cleaned it up and they painted the walls in it. And, they did
start installing some wash basins." But he could not recall
whether these things were done before or after the election.
Goodbred, who had attended the same meeting, testified in
greater detail:
A. Well, being that the shop was so dirty, we took
and we put barrels-we cut the top of old oil barrels,
and we painted some of them green, for we-dump
floor dry in them. And, some of them, we painted red.
That was for a scrap metal, like, iron and stuff like this.
And, somebody complained about, you know, not hav-
ing enough radiator buckets to fill the radiators with.
So, they bought some radiator buckets. And, we paint-
ed them, like, in certain areas, so that they wouldn't get
tracked all over the shop, and it would keep two in
every area, two in every stall. We painted them, like,
different colors, so we know where they went. And
then, the bathroom, we put a couple more sinks in
there, and we painted it, cleaned it all up. And then, I
think, after the election, he built the locker room. Had
the locker room built. For where the guys could clean
up.
Q. When you say we painted the barrels, who paint-
ed them? Who are you referring to?
A. Well, I think that I was the only one that painted
them. But, you know, I ain't sure.
Q. What about the radiator buckets, who painted
those?
A. I think Carl Shaffer painted them.
Q. And, what about the bathroom area, or the lock-
er area that was painted?
A. Well, the carpenter painted the locker area. But,
I painted the floor in it.
Q. What about the area where the basins were, who
did that work? Or, the sinks?
A. Where the sinks were, I painted that.
Q. All right. Now, did you do this work before or
after the Labor Board election?
A. Before.
Q. Do you recall how long before?
A. No, I don't.
Q. Do you recall how long after this meeting took
place?
A. I don't recall.
Q. What work, if any, was done after the election?
A. Only thing I can think of right now, is the locker
room being built.
Sowers testified on direct that the Company built a little
locker room and installed two more sinks but could not
95
recall whether it was before or after the election although
he thought it was before. As for the dirty work area, his
testimony was:
Q. Was there anything done with respect to the dirty
shop?
A. No more than usual. They cleaned it up a couple
times. But, it just gets messy again, and gets real bad
before they clean it up.
On cross-examination, he testified that the locker room,
though used for cleaning up and changing clothes, still had
no lockers, and "could have been" built after the election.
General Counsel's brief concedes it was built after the elec-
tion.
As noted above, Zimmerman testified that the suggestion
box was put up after the meeting at which Campbell had
mentioned it, and Younger testified that he thought the box
was put up after that meeting although he was unable to
recall that the box had been mentioned at the meeting.
Cravens testified that he was the one who had made the box
and put it up, and said that he had done it in March, which
would have antedated the meeting. He was "sure" it was
March because the box was cardboard, as requested by
Campbell, and Cravens had said he would try to make one
out of wood so as to use a new saw which he had bought
in February, about 2 or 3 weeks before. He never made the
wooden one.
Tolly testified that the handrail requested by the parts
employees was put up around the balcony and down the
stairs about 2 weeks before the election. Seibert, as
Respondent's witness, testified that construction on the
handrail had not started as of the time of Campbell 's meet-
ing with the parts employees.
Employee Shaffer, however, who built it, testified for Re-
spondent that he had first been approached about the mat-
ter about "the first of February" 'A by McKenzie who told
him it was needed because an inspector had been there and
the parts men had been complaining about it for a year or
two. Shaffer did not know whom the inspector represented.
Nothing was done, however, until about a month to 6 weeks
later when another inspector (who he thought was from the
State but did not know) said it would have to be built
"immediately," showed him where, and gave him the mini-
mum dimensions.19 Shaffer ordered the material 2 or 3 days
thereafter and started work on it a week later. He worked
at it on and off for at least 6 weeks, performing his regular
duties too, but "they finally got tired of calling [him] back
and forth" and he was told to confine himself to the con-
struction until it was finished. He thereupon did the neces-
sary finishing work, completing it in about 3 or 4 days,
"somewhere between last April and the 10th of May."
Shaffer's testimony as to what the work entailed was as
follows:
Q. Okay. You said in the last four days you put the
finishing touches on. What did you actually do during
19 He "wasn't doing a whole lot at the time" at his regular job as a mechanic
and safety lane inspector, and had previously done other construction work
in the shop
19 Respondent offered no corroborating evidence, either through a written
inspection report or through the testimony of its insurance agent, Heimbur-
ger (infra), of a March inspection dealing with the railing
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the last four days? Do you remember?
A. Well, it was more of the construction of the hand-
rail for the steps. That, and, then, just a few odds and
ends. Smoothing down where it needs to. Where they
was going to be having their hands on.
Q. When you say construction , you referring to er-
ecting the hand rail, putting it up, and then, smoothing
it down?
A. Well, this is-the hand rail consists of a fence
around the balcony and down the steps. The one
around the balcony is completely enclosed, and the one
on the steps is a 2 x 4. And this one on the steps was
the main thing on the last of it to get up.
Q. How high are those steps?
A. From the floor?
Q. Do they go up about a story?
A. Yes, ma'am.
A. Warren Heimburger, sales representative for Sentry
Insurance which issued policies to Respondent covering vir-
tually all of its risks, including fire, casualty, general liability
and workmen's compensation, testified that his company
makes periodic plant inspections, the frequency depending
on the size of the risk, and that this means four inspections
a year for Respondent; that recommendations resulting
from inspections are either "urgent" (which must be fol-
lowed up), "important" (within the client's discretion), or
"casual" (friendly advice), the last given orally unlike the
first two which are so marked on the written inspection
report; that an inspection conducted March 21 resulted in
"important" recommendations to cleanup the place includ-
ing installation of appropriate receptacles for dirty rags and
removal of debris from the aisles , and recommendations to
install a water main with fire hydrants around the building,
to put a safety fire door between the body shop and the rest
of the building, and to check and tag the fire extinguishers
and obtain the necessary underwater laboratory-approved
solvents for the paint shop; that another inspection was
made in July by an engineer followed up by his supervisor
that same month , resulting in follow-up recommendations
on the water main and hydrants and as to the fire door, both
of these being "urgent"; that the failure to take the needed
steps by July despite their "urgency" was not unreasonable
because they took time, and at least in respect to the fire
door the delay was partly due to Respondent's having to
wait until July to get information from the insurance com-
pany as to where to purchase the door 20
201 sought to obtain for the record the underlying inspection reports
Respondent was unable to locate in its files its copies of any relevant corre-
spondence with the insurance company According to Helmburger , the insur-
ance company 's file for Respondent was in the possession of its engineer who
was then on circuit and could not be contacted but was scheduled to rein-
spect Respondent 's premises the following week Respondent , to whom I
issued an appropria te subpena , was unable to locate the engineer to effect
service Counsel for the General Counsel was unwilling to agree to the
posthearing introduction of the insurance company's file although not ques-
tioning its authenticity She contended that responsibility for its production
rested with Respondent who had called Heimburger as a witness and that in
the absence of the reports (" the best evidence") an appropriate inference
should be drawn against Respondent although Heimburger 's testimony
could properly be considered While both parties were willing to continue the
hearing until the reports became available and witnesses through whom they
were offered could be subjected to cross-examination concerning them, I did
not feel in all the circumstances that the matter warranted a delay in the
e. Final preelection events
About 2 days before the election, according to employee
Wehrle, he was called into McKenzie's office where Mc-
Kenzie asked him if he thought it would help to pay the
Union to come in and talk for the men, and Wehrle replied
that he did not know; that McKenzie said that if the Union
came in it would take Wehrle 4 years under the contract to
get journeyman status and Wehrle, with only 3 years, would
be an apprentice; that McKenzie asked him to vote against
the Union and said that if he did the Company would give
him a raise, win or lose; and that McKenzie asked him to
return the next afternoon and tell him what he decided to
do, but that he did not return. McKenzie's testimony was
that he called Wehrle to his office on that occasion to tell
him that he owed McKenzie a favor and urged him to vote
against the Union, and that Wehrle replied that he did not
owe him a favor, ending the conversation.
Also about that time McKenzie approached employee
Shaffer, according to the latter, in the lunch area and asked
what he thought would happen in a couple of days, and
Shaffer replied that he did not know and that he had been
on the Company's side at one time. McKenzie asked him
what some of the Union's good points were, and Shaffer
mentioned holidays and insurance.
About noon on the day before the election 21 Campbell
delivered the following speech on the inspection lane to all
the employees:
Men
This last opportunity I'll have to talk with you as a
group and I want to go over a few last minute things
concerning your decision on this Union matter. I don't
like to use these notes, but I have to have a record of
what I say-I know that you are being told that the
Union is going to get everyone a nice big raise and that
if your satisfied with the l0¢ I gave you, OK. I have
told you that I thought you would be satisfied with my
management of the deal without the Union. If you
don't believe me and want to believe the Union go
ahead-I hear the Union is promising you that ev-
eryone will be making a min . of $4.50 except appren-
tices, and we'll begin raising from there in
negotiations .-If you believe that, then you better vote
for the Union. I also know you're being told that you
will get the Teamsters pension fund by paying $5.50
more a month then the $9.00 dues you get $350.00 a
month pension after 5 yrs. of paying into the plan. That
may be true-I don't know, but what they are not tell-
ing you is that before that can happen, I have to agree
to put it in a contract here and pay money into it
also.-I have told you before that if you vote this Union
in I am going to deal hard and cold with the Union and
I don't intend to give an inch on anything unreasonable
The law gives me that right and I intend to use it. Before
you get into any organization that charges you $50.000
initiation and $9.00 a month, you better think about
closing of the hearing
21 The election was held about 3 30 p in
H. A. KUHLE COMPANY
what good they'll do you, and what can happen once
negotiations start. A perfect example I know of about
negotiations is here @ Huss & Schleiper they were on
strike 260 some days and after settlement they voted
the union out because it did them no good. Now I am
telling youyou had better think about your vote be-
fore you get the Teamsters in here and are stuck with
them, and all the problems they could cause. If you
believe the Union is going to get you everything they
say they will-then go ahead and vote for them, but
remember 4 or 5 months from now when there still may
not be any contract or any raise and the union is telling
you you have either got to take what Bob Campbell
offers or strike-don't come to me for help saying we
made a mistake, I am telling you today it could hap-
pen-After Wednesday if you vote for the union, you'-
ve chosen them to help you and you'll have to stick with
them because I can't help you then.22
On the morning of the election McKenzie asked Harpner,
leadman in the body shop, how things were going and Hap-
ner replied it had been slow getting started because some
employees had visited the shop to talk about the Union 23
McKenzie reported this to Campbell who testified that Mc-
Kenzie named the three and that he was aware of their
union leanings. Campbell thereupon called Skowronski,
Mortland, and Sowers into his office and told them he had
been getting complaints from the body shop about their
campaigning for the Union, and that if they did not stop he
would "raise hell." According to Sowers, Campbell stated
that it had happened on company time. The bodymen par-
ticipated in the conversation but were not reprimanded.
Sowers and Skowronski testified there is no rule against
talking on company time and that they received no com-
plaints about neglecting their work. Sowers denied that
Campbell said at this time that they were free to vote for and
campaign for the Union. Skowronski was not asked. Mort-
land did not testify about the incident. Campbell testified
he read the following statement to the men in question,
except that he substituted "raise hell" for "have to take
disciplinary action" because he "was getting a little hot
under the collar":
Fellows-
I have been getting a lot of complaints from people in
the shop that you 3 have been bothering them about the
union. Now I want to get 1 thing straight, you fellows
are free to vote as you want and campaign for the union
all you want, but you do it on your own time and quit
bothering these other people and disrupting the
shop-I am warning you that if I get one more com-
plaint, I am going to have to take disciplinary action-
is that clear.
According to Campbell, "just plain visiting" is not al-
lowed in the shop; nor may employees talk about subjects
other than business on company time, and although there
are no published rules to this effect, McKenzie "is supposed
22 Emphasis Respondent's
23 He did not mention names , he said, but he was referring to Skowronski
and Sowers Evidently Mortland had been there too
97
to have told the men" about this at meetings. Employees
Mortland and Sowers testified that they have never been
told that they were not permitted to discuss matters other
than business on company time, and that they in fact did
so in the presence of supervisors without incident.24 Unlike
Sowers, however, who said that in his 8 years with the Com-
pany he had never heard of any employees being told he
should be in his own work place and not talking to others,25
Mortland acknowledged that sometimes in his 4 years of
employment if there were not enough people at the back
parts window to get the needed parts they were told "there's
too much conversation up here, stay in your stall, and if
there's over two or three guys there, come up. That was all."
f. The election and objections
The Union lost the election by a vote of 15 to 11 on May
24, and on May 31 filed objections to conduct affecting the
results of the election. The objections were fairly similar to
the unfair labor practice allegations. On July 21, the Acting
Regional Director issued his report and direction of hearing
to be scheduled by the Officer-in-Charge of the Sub-Region.
On October 27, the latter ordered the cases consolidated for
purposes of hearing.
g. Postelection events
Mortland and Sowers testified that they were called to a
meeting of all the employees presided over by McKenzie
and also attended by Campbell sometime between 10 days
and 3 weeks preceding the hearing, at which McKenzie read
a statement informing them when the hearing would be held
and advising them that if the Company lost it could take two
or three appeals consuming perhaps months or a year; and
that during this period the employees could get no wage
raise or other benefits. Mortland added that McKenzie re-
peated the substance of that meeting's message the follow-
ing day on their coffeebreak in the presence of one or more
others whom he could not remember.
On the last day of the hearing Skowronski testified that
2 days earlier, while standing at the timeclock with Mc-
Kenzie, Shaffer, and the bookkeeper, McKenzie was talking
about the hearing (which was then in its second day) and
said he was wondering if it would not have been better to
do what another company did, to wit, as soon as it heard
rumors of a union in the shop it fired all the employees.26
McKenzie returned to the stand as the final witness in the
case immediately following the above testimony of Skow-
ronski. He was not interrogated concerning that testimony.
He did testify that about a week before the hearing he read
the following statement to the employees, and that he said
nothing else at the time:
I want to mention something that I am sure you are all
24 Zimmerman likewise had no knowledge of any prohibition but could
recall no occasion when he was observed in the act by a supervisor
25 Later he said employees were free to "goof off" but then qualified this,
when pressed, to "you had to be goofing off quite a bit before they ever said
anithmg to you "
6 Skowronski testified that he did not report the matter to counsel for the
General Counsel until that morning because he did not appreciate its impor-
tance
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tired of hearing about and thats this union situation. 4. Section 8(a)(3) -Massey's departure
The hearing will be held on Nov. 14 and all of you who
Massey was hired as a mechanic by Respondent in Au-
gust 1971. In October 1971 he was transferred to the office
have
some
statements
also.
job. Massey testified that shortly after he contacted the
who nts il mayprhave to
obably have
Union, his workload increased; that he was ordered by
Bob & I will be there to give our side and it probably
will be a couple of months before we get a decision. If
we lose we have the right to appeal the decision. Our
appeals may take as long as a year . Of course if we win
the union can appeal also.
Until this hearing is over we are not going to do any-
thing about our wage Structure . Bob will consult with
our Attorney at the time to determine if we are free to
give wage increases.
We have not done so until now because we are already
charged with unfair labor practice for doing so.
McKenzie also testified that the foregoing statement had
been prepared by Campbell and that the latter had attended
the meeting. In this connection, Campbell had testified
pnor to the employee testimony concerning this meeting:
Q. Did you have any meetings with your employees
after the election?
A. No.
Q. Now, as a matter of fact, Mr. Campbell, didn't
you have a meeting with your employees several weeks
ago, where you told them that if the company lost this
case they were going to take it all the way to the Su-
preme Court, and it would take several years before
anything would have been decided?
A. I never had a meeting, ma'am, with any of the-
since the election I haven't had all my people together
for-all of them, at one time, or in groups, like I had
before, at all.
Q. You've never made any of these statements to
your employees. In groups.
A. Not in groups, no.
Q. Okay. Now, Mr. Campbell-
JUDGE HERMAN Did you ever tell that to any of your
employees other than in groups?
THE WITNESS In a place like ours the grapevine is
stronger than the word of mouth, it seems like. But I've
never told-I might have discussed it with one, or
something like that. Or they asked me what was going
on, and I said there was a hearing coming up, and that
was all that had ever been said.
JUDGE HERMAN Did you tell any of your employees
that you'd fight the case to the Supreme Court, and so
it would be many years before they could get any bene-
fits out of this?
THE WITNESS No. I never told any employees like
that.
Q. (By Mrs. Benassi ) Did you ever discuss the case
with your employees in a group?
A. No.
McKenzie to take incoming calls in the service department
which had theretofore been handled by McKenzie or Ron
Harris; that he had to go down himself to the new trucks
being serviced to get the necessary warranty information
which had theretofore been gathered for him by McKenzie
and Harris; that he had to "run parts" (pickup needed parts
away from the building) "more and more often" which was
not among his duties when he was first assigned to the job
the previous October; that he was required for the first time
to put shipping receipts on all warranty parts that were to
be returned to GMC; and that in the meanwhile the warran-
ty work itself had increased so that he was unable to handle
his work "very well"; that when he had been given the
warranty job he explained to McKenzie that he lacked
mathematical ability but McKenzie told him not to worry
because that was why they had an adding machine, and that
when he made mistakes McKenzie simply told him to care-
ful; that after he contacted the Union McKenzie would lose
his temper and "bawl [him] out" for his mistakes about
every other day; that before the Union the girls in the office
would correct his mistakes for the most part but that af-
terwards they watched more closely and brought them to
McKenzie's attention "and he would jump on [Massey]
about it more and more often," 27 threatening on one occa-
sion that if he could not do the work "then you ain' t going
to be doing it"; that the work began to pile up on his desk;
but that he protested the added burden only once and never
received a response from McKenzie; and that it was be-
cause of McKenzie's treatment of him that he found anoth-
er job and quit on April 3.
On cross-examination, Massey admitted that he told
Campbell he was quitting because he had found a better
job; that job, with Norfolk & Western Railway Company,
paid $5.25 an hour as against $3 with Respondent; 28 that
he applied for that job initially in July 1971 but lacked the
necessary experience as a mechanic (by 3-1/2 to 4 months)
so went to work for Respondent in August and then reap-
plied at Norfolk on March 1, 1972, before signing the Union
card.29 Recalled later by the General Counsel, Massey stat-
27 Massey conceded that the girls may "possibly" have called his mistakes
to McKenzie 's attention before, and in response to the question whether he
may have been making more mistakes during this period , he said , "Possibly,
yes, sir I don't know "
28 His request for a raise had been rejected
29 His testimony in this connection was somewhat less than frank
Q Mr Massey, when did you apply for ajob at Norfolk & Western9
A It was in March that I applied
Q Could it have been March 1st, 19729
A I don't remember the exact date
Q Have you ever seen Mr Scott's signature on anything9
A Yes, I have
Q Mr Massey, I'm going to show you a letter which is on the Norfolk
& Western Railway Company head, and over the signature of J A Scott,
H. A. KUHLE COMPANY
ed that about a week before March 1, by which time he had
gained more than the needed experience for Norfolk, an
incident arose in which McKenzie called him a liar and that
this upset him. McKenzie placed the incident in late
March.3o
Massey also admitted that the change in answering the
telephone involved the introduction of a new system. Prior
to the change the operator rang the shop area where Mc-
Kenzie and Harris were working. After the change she no
longer rang the shop area but the office where Massey was
working, and he merely had to reach over his desk to Mc-
Kenzie's to pick up the phone.31 He further admitted that
prior to the assignment of the new duties he testified to,
there were times when he completed his regular work before
quitting time and had to report to McKenzie to be given
other work.
McKenzie testified that Massey's assignment to clerical
duties in the fall of 1971 initially entailed his computing the
mechanics' time and labor cost on the customers' work
orders; that since this included the warranty tickets, it was
decided around the beginning of January 1972 to transfer
to Massey the control of the warranty parts; 32 and that later
master mechanic And, I want you to just read the letter to yourself
Q Does that refresh you recollection any, of when you applied at
Norfolk & Western Railway Company?
A As the letter states,
Q When
A. It says, March 1st
Q Before you signed the Union card
A According to that letter, yes
Q Is it correct, or isn't u9
A To my recollection. I was sure it was afterwards
Q You were sure what was afterwards)
A That I went to see-
JUDGE HERMAN How do you feel about it now) Was it before9 Was it
March 1st, or wasn't 0
THE WrrNm According to the letter, it was March 1st
JUDGE HERMAN Well, is that right, or not9
THE Wm,Ess Yes, it is
Q (By Mr Lowry) So, you're now stating that you did apply for a
position at Norfolk & Western Railway on March the Ist9
A Yes
Q Had you ever applied for a position at Norfolk & Western before9
A I had talked to them, yes
Q When
A It was in, I believe, July Of '71
Q What did you talk to them about9
A Possibility of employment
Q So, you actually talked to Norfolk & Western Railway in July of
19719
A Yes
Q About employment
A Yes
Q And, what did they tell you, at that time?
A Told me that I didn't have the required time
Q And, what was the required time9
A Four years' experience as a mechanic
Q So, what did you do then
A I go the job with Mr Campbell
Q As what9
A As a mechanic
Massey also applied for another Job in November or December, accord-30
mg to his testimony, but rejected that company's offer of what he "believe[dl"
was $4 12 an hour He did not say why
31 Only if the call was for McKenzie or Harris did he have to leave the
office to locate them No reason appears why Massey could not have had the
operator buzz the shop in such a case
32 Transfer of this task to Massey involved a conversion of the filing system
for work orders from numerical to alphabetical, the former system having
99
on, in March, he was asked to answer all phone calls for the
service department because customers were complaining
about not being able to get phone calls in the shop, and they
could be answered quickly at the desk by Massey who could
ascertain the nature of the calls, handle some himself, and
refer the others.
McKenzie also testified that about a week before Massey
left he came to McKenzie and asked, "Would you be mad
if I quit?" McKenzie asked why, and Massey answered that
he had secured a job at Norfolk's diesel repair shop on the
strength of an application reciting that he had obtained the
required diesel training at H. A. Kuhle Company; 33 and
McKenzie told Massey he had no objection to Massey's
leaving.
5. Section 8(a)(5)-The authorization cards
Massey, Mortland, Zimmerman, Skowronski, and Sowers
all signed authorization cards at the union office on March
6 in each other's presence. According to Massey the cards
had been given to them by President and Business Repre-
sentative Clapper who stated they were membership appli-
cations and that signing them would protect the men against
being fired if the Company learned of their attempt to or-
ganize. They all read the cards before signing. Wehrle and
Shaffer read the cards that were given to them without
explanation by one of the office girls at the union hall on
March 7, and signed them. Meyer, Neeley, and Dickson
read their cards at the union hall before signing them on
March 7. They received the cards from one of the union
men there. Meyer could not recall what the man had said,
but Neeley testified that they were told the cards were mem-
bership applications and to protect their jobs "and see how
many wanted a union in," and that nothing was said about
an election until later. Dickson's testimony was that they
were told the cards were forjob protection "and if they were
voted in, then, this was my application to become a member
of the Teamsters." Zeeb signed at the union hall on March
7 after reading the card. Asked what the union man told him
at the time, he replied: "He said it would be-it would
protect my job. And, I wanted to join the Union." Good-
bred, Kaufman and Smith signed at the union hall on
March 8 after reading the cards and, according to Good-
bred, after being told by the union representative that the
cards were "to show that the Union was going to represent
us." Smith did not remember what they had been told, and
Kaufman said he did not remember being told anything by
the union man. 4 Seibert signed his card on March 7 at the
Company's place of business after reading "the top part"
and just glancing at the remainder. He did not recall any-
thing that was said to him at the time. Cravens and his
become too cumbersome for speedy retrieval for discussion with the growing
number of customers
33 He apparently had not since his mechanic's Job at Kuhle had lasted only
from August to October, which was short of the 3-1/2 to 4 months needed
34 Kaufman said that despite his reading the card (bearing at the top, in
large dark print, the words "Application for Membership") he did not under-
stand it to be such an application because he had been told by other employ-
ees, before going to the union office, that "it was mainly on job security",
but he also testified that in the very same conversation those other employees
"said they'd like for us to go over and listen to the Union, and just hear what
they had to say "
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
step-father, Foshee , signed their cards at the union hall on
March 8 after being told that they were for job protection
and "a count to see how many people were really interested
in the Union." He filled out both his card and Foshee's
because the latter did not have his glasses , but he did not
otherwise read the card except for the words, "Application
for Membership."
Bond and Tolly signed cards at the union hall immedi-
ately following the meeting of March 11. Tolly filled out his
card after reading the words, "Application for Member-
ship." Bond said he could not do so, and at his request
Charles Austin, secretary - treasurer of the Union, did it for
him. Tolly testified that the explanation of the card's pur-
pose given at the meeting was that it was an application for
membership and would provide job protection in case of
dismissal for contacting the Union, and "that there was no
obligation ." In response to the question , "During this expla-
nation , was an election mentioned in this presentation at the
Union hall?" Tolly stated, "Yes There would be an elec-
tion ." He admitted , however , that his recollection of what
had been said at the meeting was poor . Bond ' s memory of
what they had been told at the meeting was also vague. He
did not remember whether anything had been said other
than that signing the card would protect the job.
Union President Clapper, who delivered the address at
the March 11 meeting, credibly described the substance of
his remarks as fairly paralleling those he had made to the
five employees who had come to the union office on March
6, to wit , that he would first use the cards to seek voluntary
recognition but that since this was rarely granted the proba-
bility was that there would be an election; that the cards
would also serve to protect them in the event of adverse
action by the Company after it learned of their interest in
the Union; that the cards also constituted regular member-
ship applications involving a $50-initiation fee and monthly
dues of $9, but that there would be no charges until such
time as the Union had been granted voluntary recognition
or had won an election and consummated a contract. This
testimony was substantially corroborated by the Union's
secretary- treasurer, Austin; and employee Hilligoss testified
that Clapper had said he would send Campbell a certified
letter, and he could recall nothing else that Clapper had
said.
Hilhgoss, however, who had signed his card on March 9
at the union hall, i.e., 2 days before the meeting with Clap-
per, testified that he was told by the men who gave it to him
that the card was for job protection and that if the Union
were "voted in" the card was a membership application but
that if it was not voted in he was under no obligation to it,
so that he understood there would be an election before the
Union became the employees' representative . Although de-
nying that he read the card, even the words "Application for
Membership" in large print at the top, he admitted that he
"saw" them and that he read enough of the card to enable
him to fill it out. He made no attempt to get his card back
after the March 11 meeting.
Younger signed his card at the union hall on March 7
after reading it . It was given to him by Massey who, he
testified , told him that it was forjob protection and was an
application for membership "if the Union was voted in."
Massey testified that he explained to Younger at the time
that Clapper would first seek voluntary recognition but that
there would probably be an election because he did not
think Campbell would grant recognition . Younger did not
try to get his card back after attending the March I1 meet-
ing where Clapper confirmed what Massey testified he had
said were Clapper's plans
Hapner read , filled out, and signed his card on March 7
in the body shop. The card was given to him by Sowers who
told him that it was forjob security and that most of the men
had already signed. No one else was present . On direct
examination he could recall nothing else that Sowers had
said at the time, but on voir dire, in response to the question
whether Sowers had mentioned anything about an election,
Hapner stated , "I think they (sic) said that they had to have
so many cards before they could have an election , or some-
thing like that." 35
B. Analysis
1. 8(a)(1)
a. General
It is clear from the foregoing that Respondent , faced with
the organizing drive to which it was concededly hostile, and
determined to defeat it, launched a counter campaign of
speeches and other action directed to that end . Some of its
conduct exceeded the bounds imposed by the Act; some of
the conduct charged and found, however , was not unlawful;
and some did not occur as charged.
The incriminating evidence came from a substantial
number of employees, most of whom impressed me as
straightforward on the basis both of demeanor and general
consistency.36 Indeed, some of these employees were, on the
whole, favorably disposed towards Respondent. On the
other hand, I have found Respondent 's principal agents to
whom the alleged misconduct had been attributed to be less
reliable on the basis of their demeanor and of serious dis-
crepancies and other weaknesses in their testimony , some of
which has not yet been mentioned but is described infra.
Accordingly , I have resolved actual testimonial conflicts
against Respondent 37 except where otherwise noted on the
strength of specific considerations indicating a contrary
conclusion . At the same time it must be observed that some
of the misconduct testified to was admitted and insufficient-
ly explained away, and some was undenied save in the most
general terms like McKenzie 's testimony concluding his di-
rect examination:
Q (By Mr. Lowry) Mr. McKenzie , can you recall
any other conversation with any employee regarding
union activity?
15 Morr signed a card in the shop on April 20 after reading it Sowers, who
gave it to him, said it was an application for membership and would protect
his job
3 Noted also was their readiness (except for Goodbred and Massey) to
bear witness against the employer for whom they are still working See
Georgia Rug Mill, 131 NLRB 1304, 1305, The Coca Cola Company, Foods
Division , 196 NLRB 892, fn 5
37 In some instances bolstered by additional grounds specifically set forth
H. A. KUHLE COMPANY
A. No.
Q. Did you have any other conversation?
A. No.
Q. With any other employee, regarding the Union?
A. No.
I do not deem such testimony an adequate negation of
specific accusations, particularly since McKenzie was not
present to hear the adverse testimony which might well have
served to remind him of certain forgotten events not con-
templated in his overall denial. Even were I to assume (de-
spite the absence of supporting evidence in the record) that
in his preparation to testify all such matters were brought
to his attention by Respondent's counsel, his demeanor in
responding to questions concerning each incident alleged
by General Counsel's witnesses was a fit subject for my
observation the absence of which was not compensated for
by the single denial.
Of special significance in this connection was
Respondent's facile denial, in its statement of position to the
Regional Director upon the filing of the charge (G.C. Exh.
29), that McKenzie had engaged in any of the challenged
behavior or had even been aware of Massey's union involve-
ment prior to his separation. Either this was cavalierly done
without having consulted McKenzie, as both he and Camp-
bell testified, or else the information Respondent gave its
attorney was knowingly false in at least some respects be-
cause, as shown above, McKenzie admitted to some ques-
tioning of Massey in March concerning the Union and
admitted to knowing of Massey's interest in the Union in
March.
Further undermining McKenzie's credibility, in my opin-
ion, was his denial that he had discussed the case with
Respondent's attorney until the day prior to his taking the
witness stand . Not only did such position inherently lack
veracity, but Respondent's attorney admitted at the hearing
that he had "had several conversations with Mr. McKenzie
from the period from late March through yesterday."
Counsel's attempt to explain McKenzie's lapse by contend-
ing that all McKenzie had reference to was his "testimony
in today's proceeding" ignores the breadth of his denial:
Q. Mr. Lowry never talked to you about whether
any of these things had happened after that election?
A. No.
Q. When was the first time you ever discussed your
testimony with Mr. Lowry or gave him your side of what
had happened?
I have also noted McKenzie's self-contradictions in re-
spect to his discussions with employees concerning the
Union. After testifying on direct examination to certain
conversations he had with Younger and Wehrle about the
Union he flatly, repeatedly, and emphatically denied on
cross that he had ever discussed the Union with any employ-
ee but Massey. Of this he was "absolutely sure," beyond the
possibility of faulty recollection. Yet when he was specifi-
cally asked on cross about his attempt to persuade Wehrle
to vote against the Union he repeated what he had said on
direct. This peculiar behavior cannot be explained as a sim-
ple misunderstanding because in the very midst of his firm
101
denials, Respondent's attorney interjected that "the witness
on direct examination has already testified to other conver-
sations." Nor has any other explanation been suggested by
Respondent.
Finally, I have taken note of Campbell's denial, supra,
that he ever met with his employees as a group since the
election, in light of his preparation of the statement (Resp.
Exh. 7) read by McKenzie at the employee meeting called
by him and attended by Campbell just a couple of weeks
before the instant hearing.
b. Prestipulation period
Respondent's conceded strong hostility to the Union
commenced to manifest itself in conduct inimical to the
employees' Section 7 rights immediately after it appeared
that the organizational activity had begun. On the very day
following the signing up of the first five employees Mc-
Kenzie admittedly asked Massey whether he knew anything
about any union activity in the plant; when he replied in the
negative McKenzie asked him, according to Massey, to as-
certain what union the men were trying to get into the shop
and Massey pretended to agree.38 That same day McKenzie
asked Body Shop Foreman Hapner whether he had signed
a union card.
Upon learning the following day of Massey's prounion
leanings, McKenzie became enraged and threatened Mas-
sey against any further activity on the Union's behalf "or
else," simultaneously displaying a clenched fist. Again I
discredit McKenzie's version of this conversation. As
Respondent's brief says, the disclosure of Massey's bent for
the Union after the previous day's conversation " came as a
surprise to McKenzie." Yet there was no reason for such "a
surprise" on Respondent's theory. McKenzie's version of
the entire previous day's conversation was that he asked
Massey "if he knew of any union activity on the floor" and
that Massey replied, "None." There was no inconsistency
between such a lack of knowledge on Massey's part and a
subsequent conversation about the Union, and hence no
occasion for "a surprise." 39 Moreover, Respondent's brief
assigns two reasons for the "surprise," one being that "[he
had] believed Massey earlier." Again, on Respondent's
theory the reason adds nothing to the "surprise" defense.
On the other hand the "surprise and belief" make much
sense given Massey's version of the earlier conversation
because after agreeing to engage in surveillance for Mc-
Kenzie, his prounion stance must have seemed a gross act
of perfidy which could easily warrant an outburst like that
described by Massey.
Such a threat, of course, is a clear violation of Section
8(a)(1), and although its force was reduced by McKenzie's
return within a half hour to tell Massey that nothing he had
said meant that Massey was fired, the memory of the
clenched fist and accompanying "or else" must be deemed
to have survived. Moreover, the request that Massey ascer-
38 For the reasons above, I have credited Massey's version of this conversa-
tion over McKenzie's
39 Indeed, if all Massey said was that he had heard nothing about union
activity, McKenzie would have had no reason for surprise even if Massey had
simultaneously proclaimed his preference for the Union
102 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tain the identity of the Union was a form of solicitation to
engage in surveillance which, while not on its face perhaps
as serious as a similar solicitation to identify union adher-
ents and hence not strictly controlled by cases holding such
solicitation to violate the Act, nevertheless sought to obtain
through a unit member organizing information which Re-
spondent evidently recognized it was not entitled to gather
directly, and this also violated Section 8(a)(1). Cf. Lawler's
Cafeteria & Catering Company, 138 NLRB 358, 360. In this
context, moreover, and in view of the other violations found
infra, I also find McKenzie's interrogation of Massey and
Hapner coercive and violative of Section 8(a)(1). See
N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302 (C.A. 5, 1973).
A few days after the Union's recognition request was
rejected, as we have seen, McKenzie told Massey he was
glad because the Union's bargaining demands would have
caused a strike.40 This statement, together with the repeated
references to a strike in Campbell's speeches (considered in
more detail, infra), amounts to an unlawful warning of the
virtual inevitability of a strike. Cf. Clapper's Manufacturing,
Inc., 186 NLRB 324, enforced, 458 F.2d 414 (C.A. 3, 1972).
McKenzie's further statement that in the event of a strike
Respondent "wouldjust close the gates" constitutes a sepa-
rate violation, in my opinion. I see this statement not as a
mere declaration of intention to keep the plant closed for
the duration of the strike, but as an unmeant threat to go
out of business, another in the chain of threats calculated
to discourage support for the Union.
When it became clear, following Campbell's rejection of
the Union's request for recognition, that an election would
resolve the issue, McKenzie assumed a more aggressive role.
He threatened Massey and Younger that in the event of a
union victory the employees would no longer be able to
work on their own cars on the Company's premises, and he
also told Massey that if the Union came in the employees
would no longer get discounts on parts and that the existing
laxity for tardiness and failing to return tools to the tool crib
would be replaced by discipline. Such threats to harden
working conditions were obvious additional violations of
Section 8(a)(1). As indicated above, McKenzie's testimony
touched only on the matter of the men working on their
cars, and his sole explanation (fn. 7, supra), was that if the
practice were permitted to continue grievances would be
filed on the theory that Respondent was discriminating
against those employees who chose not to use its facilities
for this purpose. Evidently aware of the implausibility of
this argument, Respondent modifies it in its brief to urge
that the reason to anticipate grievances was that "not every
employee could use the shop simultaneously and a question
of fairness would always be present." One difficulty with
this position is that, as has been stated, it is at odds with
McKenzie's testimony on which it purports to rest. More-
over, the brief, going quite beyond the scope of McKenzie's
testimony, seeks to extend the argument as well to the dis-
counts on parts. Just how the inability to "use the shop
40 As shown above, McKenzie's version was that the men might have
struck over the grant of recognition In addition to the general reasons I have
stated for resolving such conflicts against McKenzie, his position is particu-
larly weak here because it suggests that the men did not want the Union As
simultaneously" bears any relation to the parts discounts is
nowhere explained, as indeed it could not be.
McKenzie also continued his probing during this period,
asking Hapner-who, on the basis of his earlier interroga-
tion and the position he held, appeared likely to favor the
Company-if he knew "what was going on about the
Union." And he told several employees, as Neeley testified,
that if the Union came in, the night shift would work later
hours and that four men would have to move to the night
shift, which consisted only of three at the time. As shown
above, McKenzie's testimony made no mention of a change
in hours but he did admit having said that four men would
have to move to the night shift, although he geared it to a
"strict seniority" system rather than to a union contract.
However, not only did he not specifically deny that the
conversation had involved specific reference to the Union
but the very concept of "strict seniority" is virtually peculiar
to the presence of a union.
This supports the General Counsel's position in respect
also to the work schedule revision Massey was ordered to
prepare. Since that schedule (G.C. Exh. 7) reflects the
change in hours testified to by Neeley as well as an increase
in the size of the night shift it tends to corroborate Massey's
testimony that McKenzie had told him that the new sched-
ule would become effective if the Union came in. However,
I do not find, as urged by the General Counsel, that Mc-
Kenzie told Massey to notify Mortland that he was one of
the four who would have to change shifts. I note the absence
of any evidence that McKenzie resented Massey's dere-
liction in failing to execute such an order or that McKenzie
even inquired as to whether it had been executed. I also note
that while Mortland's opposition to night shift work was
clear, the record nowhere indicates that the other three men
to be affected were not so opposed, yet neither does it
appear that McKenzie took special pains to bring the matter
to their attention. Finally, in view of the stress placed by the
General Counsel on the frequency of mechanics' visits to
the office where the schedule was clearly visible, a special
message to any of them seems superfluous.
Nor do I find merit to General Counsel' s contention re-
garding the poster dealing with safety equipment. McKen-
zie testified without contradiction that Respondent had
never purchased safety equipment for its employees. And
there is no evidence to rebut the inference that the men
bought their own. General Counsel's reliance on Massey's
testimony in this connection is misplaced. All he testified to
was that he had not been required to purchase any prior to
March 1, 1972, at which time he was not working as a
mechanic; and he admitted that he did not know about the
other employees. In these circumstances, I do not credit
Massey's statement that McKenzie said the policy would
become effective only if the Union came in, and General
Counsel has failed to sustain the burden of proving that the
policy was other than as described in McKenzie's testimony
and as announced to the employees at a service meeting, i.e.,
that in replacing existing equipment at any time thereafter
the men should follow OSHA requirements.
c. Poststipulation period
will appear below, the record indicated precisely the opposite Respondent's efforts intensified once the election date
H. A. KUHLE COMPANY
was set. Its principal concentration was on its meetings with
the employees, but it also found other means to spread its
message. Although the General Counsel questions
Respondent's position that its affirmative case at the meet-
ings was made entirely by reading the prepared remarks
contained in its various exhibits 3-5 and relies primarily on
the employees' testimony of what was said by Campbell, I
do not share such doubt. Campbell's testimony in this re-
gard is supported by substantial employee testimony that he
was reading; furthermore the substantive remarks recalled
in the employee testimony are sufficiently corroborative of
the written documents, and variances may as readily be
explained on the basis of the employees' imperfect memo-
ries as on the self-serving nature of portions of the docu-
ments; and finally, the documents as a whole, in my
opinion, hurt more than help Respondent's case, as will now
appear.
(1) The speeches
Campbell launched his series of employee meetings with
one for the entire unit complement on April 21 , the day
following execution of the stipulation for consent election.
His speech left no doubt of his strong opposition to the
union , but, although containing statements apparently care-
fully skirting the fringes of legality ,41 was not unlawful in
itself . Thus, he commenced by assering he "kn[e]w " (which,
as far as the record shows, he did not ) of "pressure" put on
the men by some' employees to sign cards , but that their
signing did not commit their votes in the upcoming election.
He then went on to say that he had his ideas about running
the place , and "Just because the election is coming up and
you may choose to have the Teamsters represent you, I am
not going to change my mind about what I want to do here,"
from which an inference could be drawn that if he had made
up his mind to have certain working conditions he could not
be induced to change it and bargaining therefor would be
futile . I do not draw the inference at this point but note the
matter for further consideration , infra, in a broader context.
Campbell continued by indicating he would deal with the
Union if it won the election but that "just because you vote
a union in here the Company doesn 't have to do anything.
Nothing will ever be done here Union or no Union without
Company agreement." He added that if the Company did
not agree to "something unreasonable " the men 's only alter-
native to yielding to the Company would be to strike. And
he concluded by stating his opinion that the men would not
benefit by paying money to an outside organization, and by
expressing the hope that each would be "man enough to talk
for yourself' (emphasis Respondent 's). The suggestion that
it is unmanly to accept the statutory policy favoring collec-
tive bargaining seems a snide appeal to passion over reason
but not in itself unlawful.
Campbell continued his speechmaking in the group ses-
41 I say this advisedly because regardless of grammer, syntax, vocabulary,
and spelling, the speech, purportedly written entirely by himself save for his
bookkeeper's assistance in spelling , reflects a remarkable understanding of
an employer's rights under the Act for one who admittedly "wasn't versed
in union matters at all" when he received the recognition request In point
of fact, Respondent's brief states that preparation of the speeches followed
Campbell's receipt of advice from his attorney
103
sions he thereafter conducted, commencing each meeting
with prepared remarks which uniformly reiterated his initial
statement that signing a card did not bind an employee in
any way and "set [the men] straight" as to any illusions they
may have had that the Union was a guarantee to better
conditions. On the contrary, a union victory irr the election
"will only give you the right to sit down and begin talking
with me. I don't have to agree to anything. I don't want to
and you can be assured I won't agree to anything I feel is
unreasonable. The law allows me the right to deal hard with
the union-and you can be assured that I will." Of course
it is true that an employer may be "hard" with a union and
that he is not obliged to agree on anything in particular or
to reach agreement at all. But Campbell did misstate the law
in saying that the Union's certification would only give it
the right "to sit down and begin talking." Implicit in his
remarks was a rejection of his obligation to bargain in good
faith in an attempt to reach agreement. Instead he "assured"
the employees that he would not agree to anything he felt
to be unreasonable, a jump from the statement in his earlier
speech that he did not have to agree to anything objectively
unreasonable. The obvious inference to be drawn by the
employees from the conjunction of speeches thus far was
that his "deal[ing] hard" would consist of his refusal even
to listen to argument which might, in the words of the earlier
speech, cause him to "change [his] mind." If that happened,
he added, there was "no choice but to strike," and if they
did strike they ran the risk of replacement. The natural
inference from this was that the men stood an excellent
chance of losing theirjobs even if they struck to protest an
unlawful refusal to bargain, a further unlawful misrepresen-
tation of the law. See Tommy's Spanish Foods, 187 NLRB
235, enforced as modified in other respects, 463 F.2d 116
(C.A. 9, 1972).
Proceeding next to his point marked "4th," Campbell
assumed for the first time, arguendo, that he would bargain
seriously, stated that the negotiations would "start from
scratch," 42 and cited "some union contract provisions
around this area ."43 He noted a management rights clause,
commenting "even with a contract we still would run the
business as we see fit," thus leaving the false inference that
bargaining was futile because first, a similar rights clause
was inevitable, and second, under such a clause the employ-
er had as much authority as if there were no contract or
bargaining representative. He also pointed to a checkoff
clause, commenting that the payroll deduction "includes
assessments the union may authorize, also, and you pay
whether you want to or not because you never get the mon-
ey," again substantial misrepresentations, because first, the
individual employee would have to "want to" in order to
make any deduction legal, even assuming Campbell agreed
to such a clause, which "hard" employers generally do not;
42 While such a statement is not itself a violation, as Respondent argues,
it has been held a violation in a context of other coercive conduct. E.g,
American Manufacturing Company, Inc 196 NLRB 248 fn. 2, The Coca Cola
Company, Foods Division, 196 NLRB 892, N L R B v. Kaiser Agricultural
Chemicals, 473 F 2d 374 (C A 5, 1973) 1 find it coercive here because of the
contrast noted below between this threat and the promise to do more for the
men if they forego the Union, and because of the overall coercive atmo-
sphere
43 Although this sounds like more than one contract, it was only one, and
not a Teamsters contract
104 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and second , because the failure to pay assessments-as dis-
tinguished from dues and initiation fees-could not serve as
a lawful basis for discharge in any event , and any attempt
by the Union to compel Respondent to make such deduc-
tion would have violated the Act. J-M Poultry Packing Com-
pany, Inc. d/b/a Dixie Broiler Co., Inc ( United Packinghouse
Food and Allied Workers, Local 673 AFL-CIO), 142 NLRB
768, 769.
Then came the announcement of the wage increase 44
which , until then , had been contingent upon authorization
from the Kuhle estate which was purportedly given now
because Campbell was close to buying the place. 5 Indeed,
he continued , he had "a lot of ideas" for improvements but
could do nothing now for fear of having the Union charge
him with "attempting to bribe you." 46 However , and de-
spite the "closeness" of his "closing the deal ," he noted the
possibility that he might not buy the place and that nobody
might , in which case the business would be "terminate[d],"
and to "be honest" with the men , he announced , "I don't
want to buy a dealership where the employees feel they need
a union to represent them and where there will be possible
labor trouble ." He went on to "promise ... if you ' ll give
me a chance to work directly with you . . . that I am going
to be fair and reasonable ," and he concluded by saying that
until then he could not do anything "because of the election
coming up" and "[his] hand tied because of it," but that if
the men "g[a]ve [him] a chance ," they could be "assure[d]"
they would not need a union to talk for them . As between
the carrot of fairness and reasonableness for giving him a
chance and working directly with him and the stick of hard-
ness (which in his terms necessarily translates into unfair-
ness and unreasonableness) for feeling they need a
union-if indeed against his better judgment he even
bought the place-it is difficult to choose which had the
greater impact on the employees ; but that both were coer-
cive in the circumstances of this case can scarcely be doub-
ted.
Campbell 's final speech , once again to all the employees,
came the day before the election and was brief . On this
occasion "hard" became "hard and cold" in describing how
he would deal with the Union if it were voted in, and he
would "not give an inch on anything unreasonable ." By this
time, however, as indicated above , "unreasonable" had vir-
tually became the descriptive adjective for any demand by
the Union . And he again warned of a strike as the culmina-
tion of lengthy negotiations , mentioning a local company as
an example . As indicated supra, Respondent 's constant and
persistent efforts to impress upon the employees the futility
of bargaining and the inevitability of a strike as the neces-
sary consequence of a union victory in the election violated
44 Analyzed in detail in section (2), infra
45 He testified that they were "more or less agreed on price at that time
And it looked like the banks were going to loan me the money And [Mrs
Kuhle] said , being we're this close, if you want to go ahead and give the men
the Ten Cent an hour raise , go ahead "
46 Even if this legal position were sound, which it is not (Sinclair & Rush,
Inc, 185 NLRB 25, Dodson 's Market, Inc, d/b/a Dodson IGA Foodliner, 194
NLRB 192), surely the law is not such an ass as to condemn an employer's
promises while tolerating his statement that but for such condemnation he
would make the promises See McCormick Longmeadow Store Co, inc, 158
NLRB 1237, 1242
Section 8(a)(1). In making this finding I am fully cognizant
not only of the protection afforded a charged party by
Section 8(c) of the Act but also of the more basic First
Amendment guarantee. But I find Campbell's three
speeches, considered together, and in the context of
Respondent's other unfair labor practices, to constitute not
a mere expression of views to discourage union support but
a part of a coldly calculated attempt to repress such support
by deceit and intimidation on the one hand and by the
announcement of the wage increase and implied promise of
additional benefits on the other. At the very least the
speeches reasonably tended to produce that effect, and
"The question is not only what the employer intended to
imply but also what the employees could reasonably have
inferred." N. L. R. B. v. Kaiser Agricultural Chemicals, 473
F.2d 374 (C.A. 5, 1973). Neither the First Amendment nor
Section 8(c) protects a statement which, "considered only as
to the words it contains might seem a perfectly innocent
statement, including neither a threat nor a promise," if when
viewed under all the circumstances of the case it "form[s] a
part of a general pattern or course of conduct which consti-
tutes coercion. . .." N.L R.B. v. Kropp Forge Co., 178 F.2d
822, 828-829 (C.A. 7, 1949), certiorari denied 340 U.S. 810
(1950).
(2) The wage increase
As has been shown, Respondent, despite telling the em-
ployees that it was unable to give them any new benefits
until the labor dispute was settled, granted the employees a
10-cent increase across the board, effective May 5, about 3
weeks before the election. It attempted to justify it as the
fulfillment of a promise made at a meeting in January at
which time Campbell's desire to continue a company policy
was frustrated by the Kuhle estate's refusal to permit it.
The testimony adduced by Respondent failed to establish
the existence of such a policy. Its witness Baker recalled the
policy as starting "4 years" earlier which, it developed,
meant only back to 1970 and involved a straight 10-cent
raise each January. McKenzie, however, who testified he
had coauthored the policy with Mr. Kuhle, had it starting
in January 1971,47 in the amount of 25 cents. Moreover, six
of the men were denied the benefit in 1971 for various
reasons as to some of which McKenzie's testimony was
conflicting, as shown above, and as to one of which consist-
ency would have required disqualification of at least one
present employee for the instant raise.48 In the final analysis,
McKenzie admitted that prior to 1972 the determination
was made on an individual merit basis.49 In contrast, as
47 Campbell agreed that all raises were on a merit basis prior to 1971
48 Thus, the principal reason assigned for denying the 1971 raise to Wehrle
was that he was a new employee, having come aboard only 7 months earlier
However, Morr received the raise in May 1972 after 18 days of service with
the Company
49 His testimony was as follows
JUDGE HERMAN And do you have any standard by which you decide who
gets it and who doesn't? Or is it simply an arbitrary judgment you make that
you like this man's work and he's going to get it and you don't like that man's
work and he's not going to get it Even though he's still satisfactory enough
to stay on the roster
WITNESS He would be-the person that I would decide if his work was
satisfactory that I could pay him more money, he would get more money
if a person's work wasn't good enough for me to give him any more money,
H. A. KUHLE COMPANY
stated, the 1972 raise was across the board.
Nevertheless, if the raise had been given in accordance
with a promise antedating the advent of the Union, as urged
by Respondent, it still would not have run afoul of the Act.
The alleged promise, as testified by McKenzie, was that he
would continue to seek it from the estate. And Campbell
testified that he had tried unsuccessfully several times, suc-
ceeding finally because he was "close" to consummating his
purchase of the business. In view, however, of the many
inconsistencies in Respondent's testimony concerning the
wage policy as well as the general credibility considerations
noted herein, and in light of the contemporaneous unfair
labor practices and the fact that actual purchase was still
almost 2 months away, I do not credit Campbell's testimony
in this respect and find instead that, even assuming the
promise testified to by McKenzie, the Kuhle estate would
not have withdrawn its objection to the raise but for a
purpose to defeat the Union in the election, a purpose Mrs.
Kuhle concededly shared with Campbell. Accordingly, the
wage increase violated Section 8(a)(1).
(3) Promises at the meetings and their fulfillment
Not only were Campbell's statements at the meetings
concerning his inability to make promises belied by his
prepared speech to the various groups, as shown in section
(1), supra, but consistent with the speech were his promises
to see what he could do to remedy many of the problems
raised by the men at his invitation immediately following
the speech.50 Indeed, to some extent he went beyond this,
as by admittedly promising to attend shop meetings, and
offering in response to one complaint about having to work
any overtime at all, to hire an additional parts man so as to
reduce the overtime work; and in telling the parts employ-
ees, who visited him to inform him they were "on his side,
and . . . didn't want to go for the Union," that they were
entitled to premium pay for overtime and should get it if the
Union lost the election but would have to bargain about it
if the Union won.51
An employer's solicitation of employee grievances or
complaints "as an instrument to defeat the union" violates
the Act. N.L.R.B. v. WKRG-TV, Inc., 470 F.2d 1302 (C.A.
5, 1973). In the entire context of the meetings and of
Respondent's campaign conduct generally, I find that the
solicitation here "amounted to implied promises of bene-
fits," some of which were then in fact confirmed specifically,
thus unlawfully interfering with the employees' Section 7
rights. Eagle-Picher Industries, Inc., 171 NLRB 293, 299-
300.
The actual fulfillment of any such promise prior to the
election constituted further independent violations of Sec-
but I think he might be able to become good enough , I'd keep him at the
starting salary
50 Even employees friendly to the Company so testified, including Kauf-
man
51 Contrary to Respondent's contention , I do not discredit Tolly's testimo-
ny in this connection simply because he gave it on cross after confrontation
with his written statement to the General Counsel and retracted a stronger
statement he had made on direct examination Campbell's admitted state-
ment that if the Union lost he would "straighten everything out" with the
men concerning this point is not substantially dissimilar
105
tion 8(a)(1), Id. at 293; Texaco Inc., 178 NLRB 434, 435.52
These included the extensive measures , credibly testified to
by Goodbred, entailed in cleaning up the place and in im-
proving the existing washup facilities. Also attended to was
the handrail.53
Respondent offers no explanation of its improvements in
the "bathroom." But it defends its action in respect to the
cleanliness of the shop and the handrail on the ground that
its correction of these conditions was not by way of response
to the employees' complaints but was required under its
insurance policy as well as state law and that the handrail
was also required under OSHA standards. Although Camp-
bell testified that he so indicated to the men when the hand-
rail matter was raised, such testimony, contrary to
Respondent's brief (p. 5), did not extend to the cleanness
of the shop. While he testified that the insurance inspectors
had called his attention to the dirty conditions, there is no
evidence that this was communicated to the employees.54
Indeed Campbell himself testified that his reply to Sowers'
complaint about the dirty conditions was that "I couldn't
promise him or do too much about that, at this time."
I do not credit Campbell's testimony that he even told the
employees about any legal or insurance requirements for
the handrail. As shown above, neither Tolly nor Cravens,
Respondent's witness, testifying about this conversation,
mentions it, and Seibert, also testifying for Respondent,
could recall no such mention by Campbell. When an em-
ployer undertakes to solicit complaints from its employees
and then proceeds to remedy them while an election is
pending it would seem that he should at least inform the
employees of any legitimate motivation he has rather than
the approaching election, as indeed Respondent did here in
respect to the wage increase. For if the reasons for an
employer's action are "known only to him" there is room for
implication that the action is taken "for reasons unrelated
to economic necessities." Cf. N.L.R B. v. Gissell Packing
Co., 395 U.S. 575, 618 (1969).
Moreover, if he has already started to correct this matter
in question for a valid reason he should so inform the em-
ployees, as Respondent did here in connection with the
men's expressed interest in a pension plan. Yet Campbell's
own testimony utterly fails to indicate that work had begun
on the railing, and the testimony of Tolly and Cravens fails
52 I find no ment to General Counsel's position as to the immateriality of
whether the correction of the conditions complained of occurred before the
first or a possible second election On this record I believe that to the extent
Respondent had meant to use the grant of such benefits as a weapon it would
not have reserved such use for an occasion which may never have eventuated
53I am unable to find that the suggestion box was put up before the
election Contrary to the General Counsel (br, p 30), the box was not
"undeniably requested at the meeting" at which Zimmerman was present
Zimmerman was the only one to testify that it had been mentioned at the
meeting, and even he testified not that it had been requested but that Camp-
bell had initiated the proposal to put it up in response to a complaint that
the employees' complaints generally were not reaching him Nor, contrary
to the General Counsel, did Younger (who could not recall its mention at the
meeting) corroborate Zimmerman's "certainty" that the box was put up after
the meeting On the other hand, Cravens testified that he made the box and
put it up in March, well before the meeting, and, as stated above, described
in some detail how he happened to remember the time I credit Cravens as
to this
54 Nor had the conditions been corrected despite the "importance" at-
tached to their correction by the insurance company in March
106 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
to suggest that it had.55 In fact Tolly's testimony that there
was a discussion at the meeting concerning what the dimen-
sions should be suggests quite the opposite, and Seibert
testified flatly that such construction had not yet started.
The only contrary testimony is that of Shaffer. I am unable
to accept his account, however. In the first place it is plainly
in conflict with Seibert's direct testimony and with the infer-
ences to be drawn from the other testimony mentioned,
including Campbell's. In the second place, Shaffer referred
to a March inspection purportedly precipitating commence-
ment of the work around the latter part of March. But the
only record evidence of a state inspection was that of the
January one,56 and Heimburger's detailed summary of the
results of the March inspection by the insurance company
makes no reference whatever to the handrail. Finally,
Shaffer's testimony was that only a small portion of the
work remained to be done as of the time of the meeting
where the matter was raised, so that even if it were assumed
that work had started on the rail, the evidence noted above
would militate most strongly against a contention that it had
almost been completed.
Even accepting Shaffer's testimony as to the quantum of
work done would still leave open the question of motive for
its completion prior to the election, for crediting him as to
what he had physically accomplished would not require
acceptance of the inference he drew as to Respondent's
reason for ordering the job to be finished quickly, to wit,
"they finally got tired of calling me back and forth." Since
calling him back and forth had been the practice since
March, a more likely explanation for the change would
appear to have been the single new development in May,
i.e., the employees' request. Heimburger's testimony shows
the Company to have been remarkably slow in correcting
the poor conditions noted by the inspectors including even
some marked "urgent."
McKenzie asked Shaffer how he thought it would turn out
and what he liked about the Union;59 and called Wehrle to
his office to interrogate him about his union views and offer
him a raise to vote against the Union. 0
I find no violation in Campbell's calling in Skowronski,
Sowers and Mortland on the morning of the election and
threatening to "raise hell" if they did not cease their cam-
paigning on company time in the body shop. In my opinion,
not even a history of tolerance of movement and conversa-
tion among its employees 61 precludes an employer from
insisting that worktime is for work so long as such insistence
is applied without discrimination. I do not find discrimina-
tory the failure to extend an equal warning to those body
shop employees who may have responded to the remarks of
the three men here involved and who did no visiting them-
selves.62
Respondent, however, did continue to violate the Act
even after the election by McKenzie reading, in Campbell's
presence a couple of weeks before the instant at a meeting
of the employees convoked by him, a statement prepared by
Campbell that appeals herein could delay a final decision
for perhaps a year during which time the employees could
get no raise or other benefits, a reiteration of earlier misre-
presentations. And McKenzie repeated the message to sev-
eral employees the following day. 63
Finally, while the instant hearing was in progress, Mc-
Kenzie stated to several employees that it might have been
better to follow the example of another company which
fired all its employees when it heard rumors of a union in
the shop. McKenzie did not deny this although called as a
rebuttal witness immediately after this testimony was ad-
duced. Instead Respondent's brief argues, with no record
support, that McKenzie's statement was made "jokingly."
2. 8(a)(3)
(4) Other conduct
As recited above, Respondent paralleled the speeches
with a continuation of its general campaign of unlawful
interrogation and threats. Thus, McKenzie's inquiries of
Zimmerman and Meyer as to what they thought about the
Union; his as well as Campbell's confirmation to Younger
of the rumor that Mrs. Kuhle had said she would close the
place down if the Union came in; 57 and McKenzie's unde-
nied warning to Mortland that if the Union won the shop
would go on a 40-hour week.58 Two days before the election
55 I do not read Cravens' testimony that Campbell said he had discussed
the matter with McKenzie and that McKenzie was already working on it to
mean that construction had actually started
56 Both the dirty conditions and the absence of the railing were noted at
least as far back as then.
57 Younger testified that McKenzie said nothing else on the subject, and
that Campbell added on the occasion of his reference to the matter that he
did not know whether she actually would do so But even McKenzie's testi-
mony that he had added that he "didn't know whether she could do it or not"
did not abate the fear that she would try it, and Campbell's testimony, that
what he had said was that he had heard the rumor but added "I don't hardly
believe it myself," was far short of dispelling it
58 I do not regard Parts Manager Stickle's related statement to Tolly as
violative, however, because unlike McKenzie' s statement of what would hap-
pen, which , because of the entire context I cannot find a mere prediction,
Stickle stated what in his view the Company would rather do (and without
ruling out bargaining over it) in order to avoid premium pay which the parts
In my opinion the General Counsel has failed to sustain
men were not receiving anyway
59 See Sinclair & Rush, Inc, 185 NLRB 25
60 In addition to the general reasons stated above for discrediting Mc-
Kenzie's account of this incident (that he merely reminded Wehrle that he
owed McKenzie a favor and urged him to vote against the Union), I am
unable to believe that McKenzie went this far only to accept without further
ado Wehrle's curt denial that he owed a favor Nor would a contrary credibil-
ity determination lessen the seriousness of the violation Granting a benefit
with a view to inducing favorable action would seem no worse than relying
on the benefit after its grant for the same purpose
61 i do not in any event credit any testimony that Respondent knowingly
tolerated "goofing off" on the part of employees paid by the hour
62 Although it is not crucial, General Counsel's brief errs in stating that
none of the body shop employees complained about the visit, Hapner, who
is a unit member despite his position as body shop foreman, complained to
McKenzie about the delay in starting work because of the visit
63 1 have not overlooked the fact that McKenzie's speech as reflected in
Resp Exh 7 makes no mention of any benefit but wages and limits the
announcement that there would be no improvement to the duration of the
hearing , adding that Respondent would consult with counsel " at that time"
to determine if it could give increases However, in the face of the positive
testimony of Mortland and Sowers that McKenzie said all improvements
would have to await the outcome of the appeals, in view of the Company's
position throughout that it could grant no benefits until "this thing was all
settled," since the very reference to appeals had little significance save in
terms of the effect on benefits, and in view of the incredible position of
Campbell noted above in respect to this particular speech, I have concluded
that McKenzie 's remarks on this occasion were not confined to the language
of the exhibit
H. A. KUHLE COMPANY
the burden of proving that Massey's departure from the
Company's employ constituted a constructive discharge. I
believe Respondent has presented reasonable and valid ex-
planations for assigning additional duties which Massey
claims to have found unduly burdensome, and I note that
Massey's differences with McKenzie commenced before his
union activity. Nor do I credit Massey's testimony that he
quit because his working conditions had become intolera-
ble. I find on the contrary that strong as his affection was
for his job with Respondent it was insufficient to outweigh
the 75-percent wage increase offered by Norfolk where he
had applied for a job before coming to Respondent to ac-
quire experience which Norfolk had said he lacked, and
where he had reapplied before any union activity had start-
ed, having applied to another company in the interim. I do
not believe the case even comes close to establishing that
Massey was "force[d] . . . to quit" (Action Wholesale, Inc.,
d/b/aA. L. French Co., 145 NLRB 627, 628). Cf. Southwest-
ern Co., 111 NLRB 805, 824.
3. 8(a)(5)
a. Majority status
The recital, supra, of the circumstances surrounding each
employee's card-signing necessarily leads to a finding that
the Union represented a majority in the stipulated bargain-
ing unit at all relevant times. Involved here are single-pur-
pose cards which could be ignored only if the signers were
"expressly told that their act of signing represent[ed] some-
thing else." N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 607
(1969). And that "something else" must exclude the purpose
inferable from the signing itself, i.e., the purpose stated on
the face of the card. "...employees should be bound by the
clear language of what they sign unless that language is
deliberately and clearly canceled by a union adherent with
words calculated to direct the signer to disregard and forget
the language above his signature." Id. at 606. It follows, as
the Court went on in Gissel (at 607-608), quoting approving-
ly from the Board's reaffirmation of its Cumberland Shoe
doctrine64 in Levi Strauss & Co., 172 NLRB 732, 733:
Thus the fact that employees are told in the course
of solicitation that an election is contemplated, or that
a purpose of the card is to make an election possible,
provides in our view insufficient basis in itself for vitiat-
ing unambiguously worded authorization cards on the
theory of misrepresentation. A different situation is
presented, of course, where union organizers solicit
cards on the explicit or indirectly expressed representa-
tion that they will use such cards only for an election
and subsequently seek to use them for a different pur-
pose....
By no stretch of the imagination 65 can "the totality of cir-
64 Cumberland Shoe Corp, 144 NLRB 1268
65 Not even by stretching the facts, as in Respondent's brief I Union
President Clapper did not admit telling any employees "that they would have
to go through an election before they would finally become the bargaining
representative of the employees " but said that this was the likely prospect
only because he did not expect Respondent to grant the request for recogni-
tion that he intended to make if he had enough cards 2 That "almost all of
the employees . . sign [ed] cards which they did not read and did not
107
cumstances surrounding the card solicitationts ]" here "add
up to an assurance to the card signer [s] that [their ] card[s
would] be used for no purpose other than to help get an
election" (Levi Strauss, supra, at fn . 7), or to protect their
jobs, or for any other purpose negating the cards ' face func-
tion of designating the Union as bargaining representative.
Respondent 's characterization of Cumberland Shoe as
"infamous" indicates the real nature of its defense which at
this point in history amounts to nothing less than an attack
on Gissel. Cf. J. P. Stevens & Company, Inc., Gulistan Divi-
sion v. N. L. R. B., 441 F.2d 514, 524 (C.A. 5, 1971).
b. Bargaining order
Respondent's refusal to recognize the Union and its insis-
tence upon an election despite the Union's majority status,
though valid at the outset, lost its protected character and
violated Section 8(a)(5) with Respondent's "engage[ment] in
unfair labor practices disruptive of the Board's election ma-
chinery." N.L.R B. v. Gissel Packing Co., 395 U.S. 575, 599-
600 (1969).
Those unfair labor practices, moreover, were so "exten-
sive . . . in terms of their past effect on election conditions
and the likelihood of their recurrence in the future . . . that
the possibility of erasing the effects of past practices and of
ensuring . . . a fair rerun [election] by the use of traditional
remedies is slight and that employee sentiment . . . would,
on balance, be better protected by a bargaining order." Id.
at 614-615.66 I make this finding for the reasons below and
despite the fact that two of the unfair labor practices found
above are incapable of accomplishment or repetition in the
future, to wit, threats by Mrs. Kuhle and Campbell's threat
not to buy the business.
The employer conduct here involved included "the
prompt remedy [or the promise thereof] of [many of] the
grievances which prompted the employees' union interest in
the first place" (International Harvester Co., 179 NLRB 753-
754; see also Texaco, Inc v. N.L.R.B., 436 F.2d 520, 525
(C.A. 7, 1971) ); the grant of a general wage increase C &
G Electric, Inc, 180 NLRB 427; see also General Stencils,
Inc., 195 NLRB 1109 (dissenting opinion of Chairman Mill-
er, seemingly approved in denying enforcement on other
grounds, 472 F.2d 170 (C.A. 2, 1972) ); top level threats to
all employees at group meetings concerning the futility of
bargaining and other misrepresentations of the law from the
same source threatening various specific kinds of economic
harm (id. at 17-20); and other threats and coercive interro-
gation which, though from a lesser company source, were
never disavowed by the Company (N L.R.B. v. Kaiser Agri-
cultural Chemicals, 473 F.2d 374 (C.A. 5, 1973) ).
While not quite as small as that in N.L.R.B. v. Kostel
understand" (br p 48) misstates the employees' own testimony which shows,
inter ada, that of the 22 card signers prior to the bargaining request 16 read
the cards in entirety and at least 3 others read the words, "Application for
Membership ," at the top Any testimony as to what they understood "in-
volv[es] an endless and unreliable inquiry " N L R B v Gissel Packing Co,
supra at 608
66 Respondent 's brief misstates the Gissel "test" as requiring for support of
a bargaining order such serious unfair labor practices as to render a fair
election "impossible " At the same time, in view of my finding, it is unneces-
sary to reach the contention of the General Counsel that even such test is
satisfied by the facts of this case
108 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Corporation, 440 F.2d 374(C.A. 7, 1971), the bargaining unit
here was a comparatively small one, consisting of only 26
employees, so that the effects of the unfair labor practices
may well be expected to pervade the unit. That they did in
fact is evidenced by the Union's loss of the election after
having signed up approximately 85 percent of the unit mem-
bers,6 "unsophisticated in the rights of labor." N.L.R.B. v.
Copps Corp., 458 F.2d 1227, 1230 (C.A. 7, 1972). The coer-
cive flavor of deliberate employer conduct as effective as
this does not dissipate easily. And the likelihood of its dissi-
pation is of course further minimized by the evidence that
the unfair labor practices persisted beyond the election,
continuing even into the period of the instant hearing. GIs-
sel, supra at 612. In all these circumstances the special prob-
lems attaching to a rerun election render a bargaining order
peculiarly compelling. N.L.R.B. v. L. B. Foster Co., 418
F.2d 1, 5 (C.A. 9, 1969); N.L.R B. v. Kostel Corporation,
supra at 353; see Gissel, supra at 611.
IV THE ELECTION OBJECTIONS
As noted, supra, the Union's objections to conduct affect-
ing the results of the election were roughly equivalent to the
unfair labor practice allegations. In view of my findings on
the latter, it is clear that the election was neither fair nor free
and hence should be set aside. Moreover, in view of my
recommendation for a bargaining order, a new election is
not warranted, and I recommend that the Union's petition
in Case 38-RC-1153 be dismissed and all prior proceedings
held thereunder be vacated.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has violated Section 8(a)(1) of the Act, by
interrogating, threatening, and promising and granting ben-
efits to its employees in connection with their union activi-
ties.
4. Respondent has violated Section 8(a)(5) of the Act by
refusing to bargain with the Union.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
6. Respondent did not constructively discharge Massey.
REMEDY
In order to remedy the unfair labor practices found herein
my recommended Order will require Respondent to cease
and desist therefrom and, in view of the nature and variety
of the violations and their continuation indicating a danger
of recurrence, to cease and desist from infringing upon the
Section 7 rights of its employees in any other manner. More-
over, in order to effectuate the policies of the Act, and more
particularly for the reasons set forth in the section, supra,
entitled "Bargaining Order," my recommended Order will
67 See Meehan Truck Sales, Inc, 201 NLRB No 107
require that the Company bargain collectively and in good
faith with the Union in the stipulated unit upon the Union's
request.
Upon the foregoing findings of fact and conclusions of
law, and the entire record herein, and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER 68
Respondent, H. A. Kuhle Company, its officers, agents,
successors, and assigns, shall:
1. Cease and desist from.
(a) Coercively interrogating any of its employees con-
cerning their union activities, views, or sympathies.
(b) Soliciting information from any of its employees con-
cerning developments in any organizing campaign of the
Union or any other labor organization.
(c) Threatening any of its employees with loss of existing
or prospective benefits in the event they choose or retain the
Union or any other labor organization as their collective-
bargaining representative.
(d) Stating that any planned wage increase or other bene-
fit would be withheld because of the pendency of a union
campaign or that of any other labor organization.
(e) Soliciting grievances from any of its employees with
a promise, express or implied, of redress.
(f) Remedying any grievance or granting a wage increase
or any other benefit as an inducement to any employee to
forego representation by the Union or any other labor orga-
nization.
(g) Conveying to any employee the impression that se-
lecting the Union or any other labor organization as collec-
tive-bargaining representative would be futile.
(h) Misrepresenting the nature of its employees' rights
under the Act.
(i) Refusing to bargain collectively with Teamsters,
Chauffeurs & Helpers Union, Local No. 279, as the exclu-
sive representative of the employees in the following appro-
priate unit:
All employees employed at the Employer's Decatur,
Illinois, facilities, including working foreman, mechan-
ics, mechanics (warranty), mechanic's helpers, body
repairmen, clean-up men, truckdrivers, and partsmen;
but excluding salesmen, the receptionist, office clerical
employees, guards, supervisors, and professional em-
ployees as defined in the Act.
In any other manner, interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
with Teamsters, Chauffeurs & Helpers Union, Local No.
279, as the exclusive representative of all the employees in
the above-described appropriate unit, and embody in a
68 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions and recommended Order herein shall, as provided in Sec 102 48
of the Rules and Regulations, be adopted by the Board and become its
findings, conclusions and order, and all objections thereto shall be deemed
waived for all purposes
H. A. KUHLE COMPANY
signed agreement any understanding reached.
(b) Post at its place of business in Decatur, Illinois, co-
pies of the attached notice marked "Appendix." 69 Copies of
said notice, on forms provided by the Officer-in-Charge of
Sub-Region 38, after being duly signed by an authorized
representative of Respondent, shall be posted by Respon-
dent immediately upon receipt thereof, and be maintained
by it for 60 days thereafter, in conspicuous places, including
all places where notices to employees are customarily post-
ed. Reasonable steps shall be taken by Respondent to en-
sure that said notices are not altered, defaced, or covered by
any other material.
(c) Notify the Officer-in-Charge in writing, within 20
days from the date of this Order, what steps Respondent has
taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
69 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL bargain collectively with the Teamsters,
Chauffeurs & Helpers Union, Local 279, as the exclu-
sive representative of our employees in the bargaining
unit we agreed was appropriate in April 1972.
WE WILL NOT make any changes in any working con-
ditions of our employees in the bargaining unit without
giving notice to and consulting with their collective-
bargaining representative.
WE WILL NOT coercively question any of our employ-
ees about their union activities, views, or sympathies.
WE WILL NOT solicit information from any of our em-
109
ployees concerning developments in any organizing
campaign of the Teamsters or any other union.
WE WILL NOT threaten any of our employees with loss
of existing or future benefits because they choose or
keep the Teamsters or any other union as their collec-
tive-bargaining representative.
WE WILL NOT tell our employees that a wage raise or
other benefit is barred or will be withheld because the
Teamsters or any other union is seeking recognition as
bargaining representative.
WE WILL NOT solicit grievances from any of our em-
ployees with a promise, either expressed or implied, to
remedy such grievances.
WE WILL NOT remedy any grievance or grant any other
benefits as an inducement to any employee to forego
representation by the Teamsters or any other union.
WE WILL NOT give any employee the impression that
selecting the Teamsters or any other labor organization
as collective-bargaining representative would be use-
less.
WE WILL NOT misrepresent to our employees the na-
ture of their rights under the National Labor Relations
Act.
WE WILL NOT, in any other manner, interfere with the
right of our employees to engage in organizational ac-
tivity or collective bargaining or to refrain from such
activities.
Dated By
H. A. KUHLE COMPANY
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive days
from the date of posting and must not be altered , defaced,
or covered by any other material . Any questions concerning
this notice or compliance with its provisions may be direct-
ed to the Board 's Office, Savings Center Tower , 10th Floor,
411 Hamilton Boulevard, Peoria, Illinois 61602, Telephone
309-673-9061, Ext. 282.