Industry Products Co.

National Labor Relations Board - Board Decisions

Aug 27, 1980

251 N.L.R.B. 1380 (N.L.R.B. 1980)

1380 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Industry Products Company and United Paper-
workers International Union, AFL-CIO. Cases
8-CA-12364, 8-CA-12490, and 8-RC-11560
August 27, 1980
DECISION AND ORDER
BY MEMBERS JENKINS, PENELLO, AND
TRUESDALE
On December 31, 1979, Administrative Law
Judge Bernard Ness issued the attached Decision in
this proceeding. Thereafter, Respondent and Gen-
eral Counsel filed exceptions and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions2 of the Administrative Law
Judge and to adopt his recommended Order, as
modified herein.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modi-
fied below, and hereby orders that the Respondent,
Industry Products Company, Piqua, Ohio, its offi-
cers, agents, successors, and assigns, shall take 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 credi-
bility unless the clear preponderance of all of the relevant evidence con-
vinces us that the resolutions are incorrect Standard Dry Wall Products.
Inc., 91 NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have
carefully examined the record and find no basis for reversing his findings.
The Administrative Law Judge incorrectly found that employee Lore-
lei Taylor received a wage increase to $4 an hour in March 1978 The
record indicates that Taylor received that increase in April 1978. In addi-
tion, the Administrative Law Judge found that the unit description in-
cluded employees at Respondent's South Main facility Respondent, how-
ever, closed its South Main facility in November 1978. and the parties
have agreed that the unit is limited to Respondent's East Statler Road
facility. Accordingly, we have modified the recommended Order and
notice to accurately reflect the unit description agreed to by the parties.
2 In view of our adoption of the Administrative Law Judge's finding
that Taylor was not a supervisor at the time of her discharge, we find it
unnecessary to determine her earlier status. prior to her sick leave. More-
over, even if we were to find that Taylor had been a supervisor at the
time of her discharge, we find no merit to Respondent's contention that
authorization cards solicited by Taylor were tainted and void and could
be utilized in establishing majority support for the Union. The record
contains no affirmative evidence indicating that any employee signed a
union card because Taylor's involvement in organizational activities
misled any employee intol believing that Respondent favored the Union
or coercively induced any employee to sign a union card through a fear
of supervisory retaliation from Taylor. Sourdough Sah's. Inc. d/h/l Kul
Rate Kid and Shop KwiA. 246 NLRB No. 20 (1979), and cases cited there-
in
251 NLRB No. 183
action set forth in the said recommended Order, as
so modified:
I. Substitute the following for paragraph 2(c):
"(c) Recognize and, upon request, bargain col-
lectively with United Paperworkers International
Union, AFL-CIO, as the exclusive representative
of the employees in the appropriate unit set out
below with respect to wages, hours, and other
terms and conditions of employment, and, if an un-
derstanding is reached, embody such agreement in
a signed contract:
All production and maintenance employees, in-
cluding quality control employees, shipping
and receiving employees, and truck drivers
employed at the Employer's East Statler Road
facility in Piqua, Ohio, but excluding all office
clerical employees and professional employees,
guards and supervisors as defined in the Act."
2. Substitute the attached notice for that of the
Administrative Law Judge.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportu-
nity to present evidence and state their positions,
the National Labor Relations Board found that we
have violated the National Labor Relations Act, as
amended, and has ordered us to post this notice.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through repre-
sentatives of their own choice
To engage in activities together for the
purpose of collective bargaining or other
mutual aid or protection
To refrain from the exercise of any or all
such activities.
WE WILL NOT coercively interrogate em-
ployees about their union activities and sympa-
thies.
WE WILL NOT engage in surveillance of the
union activities of our employees.
WE WILL NOT threaten our employees with
plant closure, transfer of the business or a re-
duction in our operation if the employees
choose to be represented by United Paper-
workers International Union, AFL-CIO, or
any other labor organization as their collec-
tive-bargaining representative.
INDUSTRY PRODUCTS COMPANY 1381
WE WILL NOT offer employees supervisory
status and additional benefits to discourage
union activities or support for the above-
named Union or any other labor organization.
WE WILL NOT indicate to employees the fu-
tility of supporting the above-named Union or
any other labor organization because we will
not increase wages.
WE WILL NOT maintain any rules which pre-
vent employees from engaging in union solici-
tation or activities during their nonworking
time or from distributing literature on behalf
of the Union in nonworking areas on non-
working time.
WE WILL NOT discharge or otherwise dis-
criminate against employees to discourage
union activities or support for the above-
named Union or any other labor organization.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of rights guaranteed to them under Sec-
tion 7 of the Act.
WE WILL offer Kristy Brown, Delena
Howard, and Lorelei Taylor immediate and
full reinstatement to their former jobs or, if
such jobs are no longer available, to substan-
tially equivalent jobs, without prejudice to
their seniority and other rights and privileges
previously enjoyed, and WE WILL make them
whole for any loss of earnings they may have
suffered as a result of our discrimination
against them together with interest.
WE WILL recognize and, upon request, bar-
gain collectively with United Paperworkers
International Union, AFL-CIO, as the exclu-
sive representative of the employees found
herein to constitute an appropriate unit and, if
an understanding is reached, embody such
agreement in a signed contract. The bargaining
unit is:
All production and maintenance employees,
including quality control employees, ship-
ping and receiving employees and truck
drivers employed at the Employer's East
Statler Road facility in Piqua, Ohio, but ex-
cluding all office clerical employees and
professional employees, guards and supervi-
sors as defined in the Act.
INDUSTRY PRODUCTS COMPANY
DECISION
SIATEMENT OF THE CASE
BERNARI) NSS, Administrative Law Judge: This pro-
ceeding was heard before me on June 18-21, 1979, at
Piqua. Ohio. The unfair labor practice charge in Case 8
CA-12304 was filed by United Paperworkers Interna-
tional Union, AFL-CIO. herein called the Union, on Oc-
tober 27. 1978. The complaint, based on the charge,
issued oil December 27, 1978 Thereafter, the original,
first, and second amended unfair labor practice charges
were filed by the Union in Case 8-CA-12490 on January
2, January 10, and February 2, 1979, respectively. An
order consolidating the two cases and an amended con-
solidated complaint issued on February 28, 1979. The
complaint alleged unlawful 8(a)(1) conduct by admitted
supervisors and the unlawful discharge of six employees
violative of Section 8(a)(3) and (1) of the National Labor
Relations Act, as amended, herein called the Act.' The
complaint further alleged that the unlawful conduct en-
gaged in by the Respondent was so outrageous and per-
vasive in character as to warrant a remedial order requir-
ing the Respondent to recognize and bargain with the
Union. The Respondent has denied the commission of
any unfair labor practices.
The Union filed the representation petition on October
18, 1978 (Case 8-RC-11560). Pursuant to a stipulated
consent election entered into by the parties and approved
by the Regional Director for Region 8 on November 6,
1978. an election was held on December 13, 1978.2 Of
the 82 valid votes counted, 40 were for and 42 against
the Union. Five ballots were challenged and were suffi-
cient in number to affect the results of the election. The
Union also filed timely objections to conduct affecting
the results of the election. The Regional Director issued
a Report on Objections and Challenged Ballots on
March 1, 1979. The Board on April 2, 1979. issued an
order directing hearing on certain of the objections and
challenges. The objections in the representation case on
which a hearing was ordered are coextensive with alle-
gations contained in the complaint. One of the five chal-
lenged ballots was sustained by the Regional Director.
Two of the remaining four challenged ballots were cast
by Delena Howard and Lorelei Taylor, named as alleged
discriminatees in the complaint. The other two chal-
lenged ballots, those cast by Gayle Blankenship and
Daryl Blankenship, were challenged by the Union. The
issues raised by the four challenges and the objections
were referred to a hearing and consolidated with the in-
stant unfair labor practice proceeding."
Delena Howard, Lorelei Taylor, Kristy Brown. Hannelore Funk-
houser, Don Snapp, and Janet Burnside. At the hearing, the General
Counsel's motion to delete Deborah Jones was granted
2 The appropriate bargaining unit is described as follows: All produc-
tion and maintenance employees, including quality control employees,
shipping and receiving employees, and truckdrivers employed at the Em-
ployer's East Statler Road and South Main Street facilities in Piqua.
Ohio, but excluding all office clerical employees and professional employ-
ees guards, and supervisors as defined in the Act.
: At the hearing, he parties agreed that the challenge to the ballot of
Gayle lankenship should be sustained Thus, there remain only three
challenged ballots to consider
INDUSTRY P ODUCTS COPANY 381
1382 DECISIONS OF NATI()NAI IAIB)OR RELATIONS B()ARI)
Upon the entire record,4 including my observation of
the witnesses, and after due consideration of the briefs
filed by the General Counsel and the Respondent, I
make the following:
FINI)IN(S O: FACI'
I. HE BUSINESS OF T-1HE RFSPONI)N I'
The Respondent, an Ohio corporation, with its princi-
pal office and place of business in Piqua, Ohio, is en-
gaged in the manufacture of metal and fiber gaskets. It
annually ships manufactured products valued in excess of
$50,000 from its Piqua, Ohio, facilities directly to points
located outside the State of Ohio. The complaint alleges,
the answer admits, and I find the Respondent is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
II. THE I ABOR ORGANIZATION INVOI VED
The complaint alleges, the Respondent admits, and I
find the Union is a labor organization within the meaning
of Section 2(5) of the Act.
III. THE UNFAIR ABOR PRACTICES
A. Iterference, Restraint, and Coercion
The Respondent manufactures gaskets out of metal,
felt, or paper. The presses stamp out gaskets in various
sizes. In September 1978,5 the Union began obtaining au-
thorization cards. On October II, Respondent's presi-
dent, William Pautsch called a meeting of supervisors
and office employees. He took issue with a union hand-
bill which intimated the Respondent was receiving a
kickback on insurance premiums. He said he could not
understand why the employees would want a union. He
said he could retire if he wanted to. He instructed the
supervisors to distribute a piece of literature with the
paychecks to the employees that day announcing a meet-
ing with the employees that afternoon.
1. The Pautsch speech to employees on October I1.
The General Counsel alleges in the complaint that
Pautsch told the employees he would close the plant or
transfer the ownership of the business, would lay off or
reduce work hours, would never negotiate with the
Union, and conveyed the impression of surveillance of
the employees' union activities.
On the afternoon of October 11, Pautsch addressed the
assembled employees. He did not speak from a prepared
text nor was a tape made. No employee asked questions.
It is uncontroverted Pautsch spoke of the insurance and
denied any kickbacks by the Respondent. He told the
employees he did not want a union in the plant nor was
one needed. A synthesis of the credited testimony of
4 The hearing was adjourned sine die on June 21 to give Respondent's
counsel an opportunity to investigate the authenticity of G C. Exh. 29, an
authorization card of Trudy Stahl (deceased). Having been informed sub-
sequently by Respondent's counsel that he did not wish to introduce fur-
ther evidence concerning the card, I issued an order on July 19 closing
the hearing
s All dates hereinafter mentioned refer to 1978 unless indicated other-
wise
Janet Burnside, Delena Howard. Don Snapp, and Lorelei
Taylor reveals Pautsch told the employees lie had not
had a vacation in several years and he could retire and
turn over the business to his son-in-law, Kenny Cleve-
land, a supervisor at the plant. lie said, if the Union got
in. the Respondent could reduce its operation and make
parts only for Copeland, a principal customer. He said
that, in those circumstances, he would have a job but the
employees would lose. Pautsch denied making the above
statements. There was no testimony that Pautsch made
any statements which conveyed the impression of unlaw-
ful surveillance. Pautsch testified that he told the em-
ployees the Respondent was a minimum-wage-type com-
pany and because of the competitive nature of its busi-
ness it would remain that way without change whether
or not a union came in.
I find and conclude Pautsch conveyed to the assem-
bled employees the clear message that it would be futile
for the employees to select the Union as their bargaining
representative because the Respondent would not raise
wages and that selection of the Union may result in plant
closure, transfer of the business, or a reduction in the op-
eration. I find such statements by Pautsch to be unlawful
threats violative of Section 8(a)(1) of the Act.
2. The threats by John Mueller
Employee Don Snapp testified that, following
Pautsch's speech to the employees on October 11, he
told Mueller, an admitted supervisor, he would support
the Union and sign a card. Mueller replied that Pautsch
would shut down the plant if the Union came in. Mueller
testified the only conversation he recalled with Snapp
about the Union was on one occasion when Snapp came
out of Pautsch's office and told him Pautsch did not
need the money and would probably close the plant.
Employee Delena Howard testified that, on October
11, employee Ron Mote asked Mueller why Pautsch was
making the comments about the Union contained in the
literature which accompanied the pay checks distributed
that morning to the employees. Mueller replied the Re-
spondent would close down rather than have the Union
as the bargaining representative of the employees. Em-
ployee Goodson then asked why Pautsch would close
down the plant. Mueller replied, "We'll show you little
girl, what we can do."' Mueller testified that one day
Goodson asked him what would happen when the Union
came in and remarked that the Company could not close
because of its contract with Copeland. Mueller testified
he replied that perhaps Pautsch would take early retire-
ment.
Lorelei Taylor testified she attended the October 11
meeting held by Pautsch with supervisors and office em-
ployees. After the meeting, while she was receiving her
paycheck from Mueller, he told her that Pautsch was not
kidding and would shut down the plant, referring to the
possibility of the Union becoming the bargaining repre-
Goodson and Mote did lnot testify The, us cre n longer employed
by the Respondent at the time of the hearing
INDUSTRY~K~ PRODUCTCT CMPANYN'I 1383
sentative.7 Mueller did not testify concerning this inci-
dent.
I credit the testimony of Snapp, Howard, and TFaylor
and find that, on three separate occasions on October I1.
Mueller unlawfully threatened employees with plant clo-
sure if the Union became their bargaining representative.
Such threats clearly are violative of Section 8(a)( ) of
the Act.
3. Unlawful surveillance
Before the morning shift started on October 17, sever-
al employees and Union Representative Abrams were
passing out handbills to employees outside plant I.
George Blankenship, Respondent's manufacturing man-
ager and second to the company president in the supervi-
sory hierarchy, stopped his vehicle in the driveway and
took a picture of the employees passing out the handbills.
When questioned why he engaged in such activity, Blan-
kenship's explanation only was it was "just an impulse."
I find such conduct constituted unlawful surveillance and
tended to have a restraining and coercive effect upon the
employees and violated Section 8(a)(1) of the Act."
4. The conduct of Gordie Gesell9
Employee David Thompson testified that, on or about
October 17, Gesell, an admitted supervisor, and he were
talking about the Union. During the course of the con-
versation, Gesell said, "what makes you think that Mr.
Pouch [Pautsch] wouldn't lock this plant up and start an-
other plant under his son-in-law's name." Employee Tom
Jones testified that on a Saturday, towards the end of
November, Gesell asked two other employees and him
why they were so interested in the Union. Gesell told
them he wanted to bring their opinions to the attention
of Respondent's president, Pautsch. Employee Don
Snapp testified Gesell told him the plant would be shut
down if the Union came in. He did not state when this
occurred.' ° Gesell was not called to testify and the testi-
mony of the three employees stands uncontradicted. I
find that on or about October 17 and on another occa-
sion, date unknown, Gesell threatened the employees
with plant closure if the Union became their bargaining
representative. I also find that Gesell engaged in unlaw-
ful interrogation of employees in the latter part of No-
vember. I find and conclude such conduct violated Sec-
tion 8(a)( 1) of the Act.
5. The Pautsch speech of December 12.
On December 12, the day before the election, Pautsch
again addressed the employees. The complaint alleges
that Pautsch threatened that the Respondent would not
negotiate with any union or, if negotiations took place,
no agreement would ever be reached. The General
Counsel's witnesses, Janet Burnside and William Walls,
One of the issues in'voled is the surpers isor status of Ta lor I have
concluded later in this Decision he was not a supervisor at the time of
this incident.
" Fluid Chemical Company. Inc., 203 NLRB 244 (1973).
9 His name was incorrectl spelled in various a.s in the record
'o On the stlate of the record, it ould be inappropriapre to find such
statement was made during the critical period: i . after the petition sas
filed
testified that, in the course of his talk to the employees,
Pautsch said he would not negotiate a contract with the
Union. Pattsch gave his talk from a prepared written
text (Resp. Exh. 26). Pautsch testified he deviated from
the text only to the extent that in his prefatory remarks
he mentioned that his law yers had told him to read the
speech or else they would kick him in the posterior. I
have examined the prepared text of the speech and find
nothing therein supports the General Counsel's allega-
tions. Nor do I believe Pautsch said he would not negoti-
ate a contract with the Union. I believe the testimony of
Burnside and Walls appears to be based on conclusions
drawn by them from Pautsch's remarks rather than the
statements made by him. Accordingly, I shall recom-
mend this allegation of the complaint be dismissed.
6. The no-distribution and no-solicitation rules
An employee handbook has been distributed to all em-
ployees and has been in effect at all times (G.C. Exh. 3).
The complaint alleges the following described rule con-
tained in the handbook and listed as a major rule viola-
tion, is an unlawful no-solicitation rule:
Instigating or participating in unauthorized gather-
ings or meetings on Company premises-Immediate
Discharge. (G.C. Exh. 3, p.8.)
In his brief, the General Counsel refers only to the fol-
lowing described rule, listed in the handbook among the
minor rule violations, and contends this to be an invalid
no-distribution rule.
Distributing or posting any written or printed mate-
rial without management approval. (G.C. Exh. 3,
p.8.)
Not referred to by either party but listed in the hand-
book among the minor rule violations is the following:
Soliciting, collecting contributions or distributing litera-
ture of any description on company premises without
permission of management. (G.C. Exh. 3, p.9.)
No evidence was offered of any special circumstances to
justify the maintenance of the broad scope of the rules. I
find the latter two rules are overly broad and unlawfully
restrict the lawful union activities of the employees. The
maintenance of such no-solicitation and no-distribution
rules violated Section 8(a)(l) of the Act.
B. The Discharges
I. The discharge of Delena Howard
Howard was first employed by the Respondent in De-
cember 1976. She quit on two occasions and last re-
turned to the Respondent's employ on August 28. When
she first spoke to Blankenship about returning to work,
Blankenship told her he was not satisfied with her past
attendance record and told her it would have to im-
prove. She signed a union authorization card at a union
meeting the evening of October 11. During a break
period earlier in the day, she passed out maps to employ-
ees showing directions to the local where the union
INI)tSVRY PRODCTS CONII'ANY 5
1384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
meeting was to be held that evening. Her supervisor,
Bud McNees, was in the vicinity and she gave him
one. 1
Howard was ill and did not report for work on Octo-
ber 12. The next day she was again absent but called in
about 12:30 p.m. and told the office girl of her ab-
sence.'2 On Monday, October 16, she returned to the
plant but her timecard was missing. She was told by
McNees she was terminated. She explained she had been
sick and had a doctor's excuse, but to no avail. She then
spoke to Personnel Director Heater who told her she
had been discharged because she had been out 2 days
without calling in. She explained she had called in and
had a doctor's excuse, but again without success. She
then spoke to Blankenship and showed him the doctor's
excuse. She told him Heater knew about the excuse and,
in answer to Blankenship's inquiry, said she had called in
and told the office girl she would be in on Monday.
Blankenship told her to wait and he left. A little while
later McNees appeared and told her the termination
stood. 3
Between August 28, when she came to work, and Oc-
tober 12, Howard was absent a fraction of a day on two
separate occasions. On the first occasion, her son was ill
and she reported for work later in the day. On the
second occasion, she reported for work in the morning,
left for a doctor's appointment, and returned later in the
day. No supervisor admonished her for these two ab-
sences. In fact they were considered to be excused ab-
sences.
Listed among major rule violations in the Respond-
ent's employee handbook is the following: "Failure to
report absence for a 48-hour period-Immediate Dis-
charge." Listed among the minor rule violations in the
handbook is the following:"Excessive Tardiness or Ab-
senteeism should an employee miss two days of work
within a continuous 90-day period without excuse the
employee will be given a written reprimand. Should the
offense occur a second time, another written reprimand
will be issued along with a 2-day disciplinary layoff.
Should there be a third offense, IMMEDIATE DISCHARGE."
As stated above, the separation report was prepared on
October 13, the second day of Howard's absence, and it
was noted thereon by Heater that she had called in that
afternoon. Thus, at the time the separation report was
prepared, her absence, did not fall within the major rule
violations calling for immediate discharge. Nor did her
absence fall within the minor rule violations. On her
return to the plant on Monday she furnished a doctor's
excuse. Even if the Respondent did not consider the note
from the doctor a valid excuse, the disciplinary action
called for in the Respondent's handbook was a written
reprimand. A second violation called for another written
II I do not credit McNees' denial that she gave him a map He testi-
fied he saw maps laying around.
2 She had no telephone at home.
'3 I discredit Blankenship's testimony that the first he heard she had
called in was from Heater and it was a day or two after the discharge.
McNees testified he was aware on Monday she had called in. He also
testified Blankenship and Heater spoke to him that Monday morning con-
cerning the discharge Moreover, the separation slip prepared on October
13, and initialed by Blankenship stated she had called in on October 13
(Resp. Exh. 18).
reprimand plus a 2-day disciplinary layoff. Howard did
not receive a reprimand. She was not laid off for 2 days.
She was discharged. When Howard spoke to Heater on
Monday, he told her she was discharged for being absent
for 2 days without calling in. Yet Heater was aware on
the previous Friday she had called in that afternoon. Al-
though Heater was a witness in the proceeding, he was
not questioned concerning Howard's discharge.
McNees testified he was the one who decided to dis-
charge Howard. He initially testified he reached this de-
cision on October 12 when he ascertained she had not
called in and after he checked her file and noted her at-
tendance record. Yet he also testified her earlier ab-
sences-two fractional days-were excused absences.
Later in his testimony he said it was on October 13 that
he checked her attendance record. He also stated that,
had she reported to work the second day, he still would
have discharged her. He offered no explanation for not
following the procedures concerning absences as de-
scribed in the Respondent's handbook. He had been her
supervisor when she was out for the 2 fractional days.
They were excused absences. Apparently, McNees con-
sidered significant whether Howard had called in to
report the absence because he made such inquiry on Oc-
tober 12 and again on October 13. Before he signed the
separation slip, he was aware she had called in. Yet he
testified he did not discuss this with Heater in the per-
sonnel office when he signed the separation slip. I find
this incredible of belief. McNees did not impress me as a
credible witness. His reason for discharging Howard did
not ring true. He testified he was aware at the time of
employee interest in the Union but had no idea as to
who any of the adherents were. Specifically, he stated he
had no reason to believe Howard supported the Union.
But indeed he did. It was on October 11, he observed
Howard giving out the maps concerning the Union meet-
ing and was given one by her.
Under all the circumstances, I am convinced Howard
was not discharged for her absence but was terminated
because the Respondent knew her to be a supporter of
the Union in its attempts to become the bargaining repre-
sentative of the employees. Accordingly, I find and con-
clude the Respondent violated Section 8(a)(l) and (3) of
the Act by discharging Howard on October 16.
2. The discharge of Lorelei Taylor
Taylor was first employed by the Respondent in April
1974 and quit that September. She returned in January
1975 and quit again in March 1977. She was rehired on
January 9, 1978, and discharged on October 20. The
basic issue involved here is whether Taylor was a super-
visor at the time of her discharge. For it is clear she was
discharged for engaging in union activity. Blankenship
gave a number of evasive and misleading reasons for her
discharge until he finally admitted she was discharged
for engaging in union activity.
Taylor was rehired by Blankenship as a press operator
on January 9, at $3 an hour. Her rate was increased to
$3.75 on January 30. In March, Blankenship transferred
her to the pick-and-pack department and her rate was in-
creased to $4 an hour. At the time of her discharge she
INDUSTRY PRODUCTS COMPANY 1385
was still in pick-and-pack. She was out on a sick leave
from June 29 until she returned to work on September 5.
Her rate was increased to $4.50 on September 5. The Re-
spondent contends Taylor was a supervisor and her
duties and responsibilities remained the same after her
return from sick leave. To determine whether she was a
supervisor at the time of her discharge, her status both
before she went on sick leave and after her return must
be examined.
We first examine her area of responsibility prior to
going on sick leave. The gaskets come to the pick-and-
pack department from the press area with an order card
which showed the customer's name, the destination, the
quantity of gaskets to be put in boxes, and the due date
for shipment. The pick-and-pack employees then clean
and count the gaskets and stack them in boxes. The
boxes are then removed to the shipping department. At
any given time there were 4-10 employees in the pick-
and-pack department. In all the other departments, the
supervisors were salaried. Taylor was an hourly rated
employee although she received a substantially higher
hourly rate than the other employees in the department.
She punched a timecard and received the same fringe
benefits as the hourly rated employees. The hourly rated
employees, including Taylor, received $7,000 life insur-
ance whereas the supervisors received $12,000 life insur-
ance. Taylor testified Blankenship was the supervisor of
the department and she, in effect, was the head lady
there. The work in the department was routine in nature
and she instructed new employees how to do the work.
She did not determine when overtime was to be worked.
When she was told overtime work was to be performed,
she relayed this information to the employees in the de-
partment but did not select employees to work. When
employees in other departments had downtime, such as
the press department, or when the exigencies of the pro-
duction schedule called for it, the department supervisors
would select the employees to help out in pick-and-
pack. Taylor would then tell the employees what orders
to work on. The supervisors of these employees would
later shift the employees back to their respective depart-
ments with no clearance or consultation with Taylor.
She had no authority to grant time off but would refer
the employee to Plant Manager Blankenship or Person-
nel Director Heater. Taylor had no authority to hire, dis-
charge, or discipline employees. The record does show
she did initial timecards when asked by the payroll clerk
or by the employee concerned. The record does disclose
that during the March-June period she did prepare 30-
and 90-day evaluation reports on employees in the pick-
and-pack department and rated the employees. These
forms were furnished to her by Personnel Director
Heater. She also made recommendations for their rate in-
creases. Although she did not participate in the decision
to discharge or lay off any employees, she was called
upon by Heater to comment on the separation report
concerning the employee's efficiency and recommenda-
tion as to reemployment. Heater would tell her the
reason for discharge or lay off. Taylor went on sick
leave on June 29 and did not return until September. In
the meantime, John Mueller commenced his employment
with the Respondent on August 1. Mueller was put in
charge as supervisor over several departments, including
shipping and pick-and- pack. When Taylor returned on
September 5, she was introduced to Mueller by Blanken-
ship. Taylor asked Blankenship if she still had a job.
Blankenship said Mueller had handled the pick-and-pack
department while she was away and her duties remained
the same as before. She inquired about a rate increase she
had asked for before she went on sick leave. Blankenship
told her she would get a 50-cent increase from $4 to
$4.50 an hour. He also told her she was to report direct-
ly to Mueller rather than to him and Mueller was her
boss. I do not credit Mueller's testimony that Taylor
asked Blankenship if she was the pick-and-pack supervi-
sor and that Blankenship said she was. Taylor continued
to perform those duties which can be characterized as
those performed by a nonsupervisory lead person or
"pusher," e.g., getting the orders and lining up those
which were to be processed first, and telling employees
which orders to work on. She did not fill out any evalu-
ation forms or separation reports as she did before or
make any recommendations for wage increases. She con-
tinued to initial timecards when asked by the payroll
clerk or individual employees. It should be noted that
she even initialed timecards of employees in the shipping
department, both before and after she returned from sick
leave.' 4 Blankenship and Mueller also initialed timecards
for pick-and-pack and shipping department employees.
Both Blankenship and Mueller pictured Taylor as the
sole supervisor of the pick-and-pack department. Mueller
testified she was to report problems to him but she never
reported any to him. I credit Taylor's denial that she
reprimanded May Willis or that she told Mueller of such
action. Mueller had so testified. Audrey Williamson, an
employee in the pick-and-pack department at the time
and still employed by the Respondent, was called as a
witness for the General Counsel to authenticate her au-
thorization card. On cross-examination she testified she
"oversaw" the pick-and-pack department when Taylor
went on sick leave until Mueller was hired. When Taylor
returned from sick leave, she considered Mueller her
boss and if she wanted time off the employees would
clear with Mueller.
Taylor was one of the first to sign a union authoriza-
tion card on September 28. Thereafter she solicited other
employees and collected cards from other employees. On
October 9, she was called into the office by Blankenship.
Mueller was present. Blankenship told her that "due to
the things that are now occurring" she had a change of
attitude and was not performing her duties. When Taylor
professed ignorance of what he had reference to, Blan-
kenship told her she knew what he was talking about
and said he would wait a few days and see what hap-
pens. Taylor attended the supervisory meeting held on
October 11 conducted by Pautsch, referred to above.
She testified she went to this meeting out of curiosity be-
cause she thought the Union would be discussed. No ob-
jection was raised to her presence. On October 16,
Taylor was again called to the office by Blankenship.
4 Timecards of Michelle Walling and Lillian Meeds Before Mueller
began his employment, Blankenship was the direct supervsisor of the ship-
ping departmnent Aftersard,, Mueller wa, the upervisor.
INDUSTRY P ODUCTS COMPAN 5
1386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mueller as again present. Taylor credbily testified
Blankenship showed her a paper addressed to all em-
ployees of the pick-and-pack department stating that
Taylor was to be the assistant supervisor as of that date
and Mueller would be above her. It also stated that em-
ployees were to follow her instructions. 15 When Taylor
said she did not understand this, Blankenship told her he
was putting her on salary but her earnings would be the
same. He mentioned she would get more life insurance.
Blankenship said he was doing this to stop her from sup-
porting the Union. He told her she had three choices;
first, accept the salary, second, revert back to $3.10 an
hour or, third, be terminated. Taylor told him she would
give him an answer in 24 hours. The following morning
Taylor was at the gate passing out handbills before the
shift started. On October 20, she was terminated.
As already noted above, most of the duties and respon-
sibilities of Taylor prior to going on sick leave may be
characterized as those performed by a nonsupervisory
lead person or "pusher." It should be noted that all de-
partment heads were salaried while Taylor at all times
was an hourly rated employee, receiving the same bene-
fits as the other hourly rated employees. Before she was
transferred to pick-and-pack, Blankenship was the direct
supervisor of the pick-and-pack department. I am not
convinced the authority exercised by Taylor over the
employees was other than routine. Nor did it entail the
type of independent judgment necessary to confer her
with supervisory status. However, not to be overlooked
is her formal 30- and 90-day evaluations of employees
and recommendations for wage increases as well as her
recommendations on separation reports concerning rehir-
ing employees laid off or terminated. It is well settled
that to constitute a person a supervisor it is sufficient to
show the person performs any one of the functions, or,
in the performance of the person's duties, possesses one
of the enumerated powers and responsibilities set forth in
Section 2(11) of the Act. The record discloses that, when
employees in pick-and-pack were terminated or laid off,
she was not consulted nor did she make any recommen-
dations concerning such action. She was told the reason
for the action and then prepared the separation report.
As for the evaluations, Personnel Director Heater had
told her to prepare such evaluations including recom-
mendations for wage increases. Taylor reported directly
to Blankenship and he, as well as Heater, passed on her
evaluations. Although certain documents were intro-
duced which reflected that her recommendations for
wage increases were approved and granted, I am not
convinced her recommendations were necessarily effec-
tive. She did not stand on an equal footing with the
other departmental supervisors. It is my conclusion that
prior to going on sick leave her authority and duties
were such that she neither had the statutory authority of
a supervisor nor did she exercise it. And when she re-
turned in September, she was placed under the supervi-
sion of Mueller who was looked upon by the pick-and-
pack employees as the supervisor of that department.
She no longer prepared evaluation reports or separation
15 Neither Blankenship nor Mueller referred to this paper in their ac-
counts of this meeting.
reports. It follows that, with this reduced degree of re-
sponsibility, she was not a supervisor at the time of her
discharge. Since she was an employee at the time of her
discharge and it is undisputed she was discharged for en-
gaging in protected union activities, her discharge consti-
tuted a violation of Section 8(a)(l) and (3) of the Act. I
further find that Blankenship's offer, on October 16, to
confer supervisory status on Taylor and to grant her ad-
ditional insurance benefits to dissuade her from engaging
in union activities violated Section 8(a)(1) of the Act.
3. The discharge of Kristy Brown
Brown commenced her employment on September 25,
1978, in the pick-and-pack department under the supervi-
sion of Mueller. He discharged her on December 27. She
signed a union authorization card on October 12, attend-
ed union meetings, and wore a union button on her shirt
at work about 4-5 times before the election. On the day
before the election was held on December 13, she wore
a T-shirt which had a legend "Vote Yes" on the back of
it. Mueller testified he had no idea that Brown was a
union supporter. I do not believe his testimony. Blanken-
ship testified he was aware Brown supported the Union.
It seems incredible to believe that Mueller, Brown's im-
mediate foreman, would not have any inclination she was
a union adherent when Blankenship, the top supervisor
in the plant, was aware of such activity.
When Brown reported for work on December 27, her
timecard was not in the rack. Mueller told her she was
discharged because the quality and quantity of her work
was not good enough. When she contended her work
had not been rejected, Mueller said it was her quantity,
rather than her quality. On October 24, Mueller had pre-
pared a 30-day evaluation on Brown (Resp. Exh. 19). On
this printed form employees are rated poor, fair, satisfac-
tory, good, or excellent for each of 10 categories. She re-
ceived satisfactory in four categories, good in five cate-
gories, and Excellent (attendance) in one category. She
was not rated poor in any category. In his comments on
the form, Mueller noted she would make a good employ-
ee, she had a better attitude, and her work had im-
proved. He recommended her for a 10-cent increase
which was granted effective October 30. Mueller pre-
pared a 90-day evaluation on Brown on December 2 2.6
On this form, Mueller noted his recommendation she be
discharged "due to poor work performance during pro-
bationary period." On her separation report, Mueller
noted he would not recommend her for reemployment
because of "Bad attitude and work habits" (Resp. Exh.
22). When asked by Respondent's counsel whey he dis-
charged Brown, Mueller testified as follows: "Poor atti-
tude, poor work performance. I just didn't feel she
would be the type of employee we wanted because of
the things that she did." He testified Brown's work went
downhill after her 30-day evaluation. He stated she was
slow on the job and he received complaints from other
employees about her being slow in her work. No em-
ployee testified in support of this. It should be noted that
'6 Resp. Exh. 21. Although the date on the form is December 20.
Mueller testified he actually prepared it on Friday. December 22
INDUSTRY PDUCTS COMPANY 1 387
in the 90-day evaluation he rated her fair, not poor, in
the categories asking whether the quality and quantity of
her work met expectations. Mueller also testified that the
last week before Christmas a gauge could not be located
because she had hidden it. She then told him she did it as
a joke. Brown denied she had hidden the gauge but that
it was put in the drawer while cleaning up. Mueller also
testified that, during the last week before Christmas, a no
smoking sign which was being placed in the area was put
in the trash can by Brown. Brown admitted she and an-
other girl had done this as a joke and she thought that
Mueller treated this incident as a joke. Brown placed this
incident as having occurring 3-4 weeks before her termi-
nation. In any event, I do not believe either of these two
incidents played a part in Mueller's decision to discharge
Brown. Mueller said these two incidents occurred the
last week before Christmas. His 90-day evaluation was
prepared on Friday of that week. Had Mueller consid-
ered these events seriously it would appear Brown
would have received at least one poor rating in the cate-
gories listed. Yet his recommendation for discharge was
predicated on poor work performance. I found Mueller
to be an unpersuasive witness and his explanation for
Brown's discharge unconvincing. His 90-day evaluation
was made on Friday, December 22. Monday was a holi-
day. His rating on her separation report was made on
December 27, the second working day following the 90-
day evaluation. It is incredible to believe that in such a
short period Brown's rating for quantity of work and co-
operation would drop from fair to poor and quality of
work would drop from satisfactory to poor. The election
had been held on December 13. Objections were filed by
the Union on December 19. Mueller's recommendation
for Brown's discharge was prepared 3 days later. Con-
trary to Mueller's denial, I find he was aware Brown
was a union adherent. Under all the circumstances, I find
Brown was discharged because she engaged in union ac-
tivities and was a supporter of the Union. Accordingly,
Brown's discharge was violative of Section 8(a)(l) and
(3) of the Act.
4. The discharge of Hannelore Funkhouser
Funkhouser commenced her employment with the Re-
spondent in July 1978 as a machine operator and worked
under the supervision of Dave Pontious. He discharged
her on December 28. Funkhouser signed a union authori-
zation card on September 29. She passed out cards to
other employees when she worked at plant 2. After the
two plants merged into plant I in November, she wore a
union button. Although Pontious stated he was not
aware she supported the Union, I believe he would have
observed her wearing the button and find he was aware
she was a union adherent.
In her 30-day evaluation prepared by Pontious he
rated her fair in two categories and satisfactory or better
in the remaining eight categories. She received a 20-cent
wage increase. In her 90-day evaluation prepared by
Pontious on October 10, she was evaluated fair in one
category (whether she seems to enjoy her job) and satis-
factory in the remaining nine categories. In his comments
on the forms, Pontious stated she could make a very
good operator "but again she is one who likes to make
her say." He recommended her for a 25-cent wage in-
crease which she received. On October 30, she received
a written disciplinary report for improperly running her
machine causing a substantial number of bad parts to be
made. She acknowledged bad parts were run but claimed
it was not entirely her fault. On December 21, Pontious
criticized her for running a number of bad parts the day
before. On December 28, she was called into the office
and Pontious told her she was discharged because she
was not doing her job and disobeyed orders. In the oper-
ation of the machine she was running the morning of her
discharge, she would put material into the hopper and it
was then fed into the press. She then removed the fin-
ished gaskets from the press, trimmed off the excess, and
stacked the gaskets on the table. About every 10 minutes
she would feed more material into the hopper. This was
a continuous operation and the parts would come out
automatically. Pontious testified she had shut down the
machine several times and was trimming the gaskets; in
effect, she was not working as fast as she could have and
was not keeping up with the machine. He testified she
had run this machine before and a couple of times that
morning he showed her how he wanted her to perform
the operation. He testified she got mad, said he was
always picking on her, and called him an "S.O.B.""7 He
then decided to discharge her. In the separation report
he noted her cooperation was poor, she had a bad atti-
tude, and did not follow orders. Based on the record as a
whole, I do not believe a preponderance of the evidence
established Funkhouser was discharged because of her
union sympathies. Accordingly, I recommend this allega-
tion be dismissed.
5. The discharge of Don Snapp
Snapp began working for the Respondent in Januar
1978. He was employed as a maintenance man and
worked directly under Blankenship. Snapp attended
Pautsch's meeting with the employees on October 11.
After the meeting, he told Mueller he was going to sign
a union card. That evening he did sign a union authoriza-
tion card.
In or about May or June, a second maintenance man,
Walker, was employed for plant 2. The two plants
merged into plant I in November. Initially after the con-
solidation there was considerable work in the installation
of machines, wiring, and welding. But then there were
less machines to service. On December 29, Snapp was
terminated by Blankenship. Blankenship explained that
after the consolidation and the machine installation there
was insufficient work for two maintenance men and he
decided to retain Walker whom he considered to be the
more qualified of the two. At the time of the hearing in
this matter, Walker was still the only maintenance man. I
find Blankenship's testimony in this regard convincing
and find the evidence insufficient to establish Snapp was
l? Funkhouser's version as that she had asked Pontious several tilme
that morning if the gaskets ere coming hrough passahl, and he told
her she should knoAv and she hould tlot ask sl often She hiad been per-
forming this operation for 2 da!> She did nlrt testif hether he cursed
Pontious. I find Pontious' version more con, lncing
I N D U S T R Y P R O D U C T S C O M P A N Y I 3 tt 7~~~~~~~~~~~~~
1388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
discharged because of his union activities. Accordingly, I
recommend this allegation be dismissed.
6. The discharge of Janet Burnside
Burnside began her employment in October 1977 as a
press operator. She was an active union adherent and
Personnel Director Heater admitted he was aware she
supported the Union. On December 26, she left work in
the morning after telling Heater she had a doctor's ap-
pointment. When she returned to the plant later that
morning she gave Heater the doctor's slip and told him
the doctor had told her she would have to be off on sick
leave until he released her because she had fainting spells
and high blood pressure. On December 27, she had some
tests at the hospital and then came to the plant that after-
noon for her paycheck. Heater handed her a termination
letter stating that her ailment was a recurring one and
the length of her disability was uncertain. She com-
plained she was being treated unfairly and that one of
the other girls on sick leave had not been discharged.
The following day she received another letter from the
Respondent stating it would reinstate her if she provided
medical evidence that she could perform the job without
any restrictions. Heater testified he terminated Burnside
because there was no definite date she could return to
work. The two instances he gave where employees who
were on sick leave were terminated were distinguishable.
In one case, the employee had a series of personal ill-
nesses and there was no definite date to return. In the
other case (Baker) the employee was notified he would
be terminated in two weeks because of his inability to
work and his disabling personal injury would not permit
him to perform required duties. Heater testified he sent
Burnside the second letter on advice of his attorney.
Burnside returned to work on January 8'8 and voluntar-
ily quit on January 29. She had been reinstated with full
seniority. She had worked for the Respondent for more
than a year and there was no evidence of prior absences.
It appeared that Heater acted precipitously when Burn-
side informed him she was going on sick leave. The very
next day she was terminated. As it turned out she was
able to return to work less than 2 weeks later. In Baker's
case, it was clear the employee would be unable to work
and even then he was given 2 weeks' notice. Burnside's
termination came shortly after the election and the ob-
jections filed by the Union. The Respondent's antipathy
towards the Union was established. I am convinced her
termination was because of her known union advocacy
and I so find. Accordingly, Respondent violated Section
8(a)(1) and (3) of the Act when it discharged Burnside.
Since she returned to work and thereafter voluntarily
quit, no affirmative remedy requiring reinstatement or
backpay is appropriate.
C. The Challenges
Daryl Blankenship: Daryl Blankenship, the son of
George Blankenship, started working for the Respondent
in April 1978, at the age of 16, while still a high school
student. He performed general housekeeping duties at the
plant, sweeping floors, picking up trash, mowing grass,
'8 Apparently she was then physically able to return to work
and packing cartons. He received $3 an hour. The shift
for the regular employees was from 7:30 a.m. to 4 p.m.
When Daryl worked, it was after the regular shift had
ended. He was directly supervised by his father. One
other individual did housekeeping chores full time and
was supervised by McNees, a department foreman.
George Blankenship testified he personally supervised his
son because of the family relationship. Daryl Blankenship
did not work regular hours. Until September, he worked
less than 10 hours a week during four of the weeks in
that period. From the period ending September 2 until
the week ending October 21, he did not work. The rep-
resentation petition was filed by the Union on October
18. During the 8-week period from the week ending Oc-
tober 21, when he resumed working, until the week
ending December 16, he worked a total of 65 hours, or
an average of 8.1 hours per week.' 9 George Blankenship
testified that his son worked when he asked him to but
this depended on whether Daryl had band practice or
was playing with the band at a football game or had a
date. George Blankenship said he knew when his son
had a conflicting schedule and asked him to work when
he was available. George Blankenship testified that had
his son not been available to perform the work he would
not have hired anyone to do the work.
Based on the foregoing, I find Daryl Blankenship pos-
sessed a special status that allied his interest with that of
management and that he was not an eligible voter. Ac-
cordingly, I recommend the challenge to his ballot be
sustained.
Delena Howard and Lorelei Taylor: There had been 82
valid votes counted, excluding the challenges, 40 votes
having been cast for the Union and 42 against. Five bal-
lots were challenged. One of the five challenged ballots
was sustained by the Regional Director. At the hearing,
the parties agreed the challenge to the ballot of Gayle
Blankenship should be sustained. I have found above that
Daryl Blankenship was an ineligible voter and the chal-
lenge to his ballot should be sustained. I have also found
above that Howard and Taylor were unlawfully dis-
charged. Accordingly, they were eligible voters and the
challenges to their ballots should be overruled. However,
even if their ballots were in favor of the Union, it never-
theless would not have obtained a majority of the valid
votes cast. In light of my recommended disposition
below, I shall not recommend their ballots be counted or
that a certification of the results be issued.
D. The Objections
The petition was filed by the Union on October 18,
and the election was held on December 13. I have found
above that, during this period, Supervisor Gesell unlaw-
fully interrogated employees and the Respondent main-
tained unlawful no-solicitation and no-distribution rules
in violation of Section 8(a)(l) of the Act. I have also
found that during this same period, the Respondent un-
lawfully discharged Lorelei Taylor in violation of Sec-
tion 8(a)(l) and (3) of the Act. I further find such con-
duct interfered with the holding of a free election, there-
1 Resp. Exh. 3
INDUSTRY PRODUCTS COMPANY 1389
by affecting the results of the election conducted in Case
8-RC-11560 and recommend the election be set aside. In
light of my recommended disposition below, I shall not
recommend a new election be held but rather that the
petition be dismissed.
E. The Majority Question and the Propriery of a
Bargaining Order
The complaint alleges that the Union attained a major-
ity on October I and that, since the Respondent's unfair
labor practices were so outrageous and pervasive in
character, the entry of a remedial order requiring the
Respondent to recognize and bargain with the Union is
appropriate. In his brief, the General Counsel contends
that October 14 is the date when the Union attained its
majority. The Respondent contends that Taylor was a
supervisor within the meaning of the Act and the cards
of the employees she directly solicited should not be
counted toward any card majority. Thus, it argues, the
Union never had a valid uncoerced card majority.
The starting point in determining the majority is to as-
certain the number of employees in the bargaining unit.
Joint Exhibit I purports to be a list of the employees in
the bargaining unit as of October 11, listing 98 individ-
uals. The parties agreed that the names of Mote and
Snapp should be added bringing the list to 100. Daryl
Blankenship's name is on the list, Taylor's name is not.
Blankenship should be deleted and Taylor should be
added-still 100. On October I 11, the Union had 44 cards
in a unit of 100.20 Respondent's brief states that, on Oc-
tober 12, the Union had 47 authorization cards and the
unit consisted of 95 employees. I disagree. My count
shows that the Union had 52 cards in a unit of 100 em-
ployees on October 12. Fisher, who had signed a card,
last worked on October 11. The figures now become 43-
99. Reck, who did not sign a card, commenced his em-
ployment on October 12. The figure now becomes 43-
100. The Respondent showed the total complement on
October 12 to be 95. It had dropped five from the unit of
100 because they were separated on October 12.21 They
should have been included in the total number in the unit
on October 12. Joint Exhibit I states these 5 were sepa-
rated on October 12. However, Personnel Director
Heater testified that the date of separation on Joint Ex-
hibit I represented the last date the employee worked.
Thus, these five individuals were still employees on Oc-
tober 12. Snider had signed his card on October 12; the
other three had signed their cards on prior dates. The
figures now becomes 44-100. Eight other employees
signed cards on October 12.22 The figure now becomes
52-100. Accordingly, on October 12, a majority of the
employees in the appropriate bargaining unit had desig-
nated the Union as their exclusive bargaining representa-
tive.
The complaint does not allege an 8(a)(5) violation. The
Union did not demand bargaining or recognition. The
filing of the petition on October 18 did not constitute a
20 The Respondent's brief states the figures are 43 )00. The difference
is in the consideration of Blankenship and Taylor
21 Gent. Snider, Stahl. Stevens, and Willis All but Willis signed cards
22 Baker, Brown, Bubeck, Carver. C S Nason. M. L Nason, Rowe,
and Walls.
request for recognition or bargaining upon which an
8(a)(5) violation may be predicated. However, the ab-
sence of a specific 8(a)(5) violation does not affect the
propriety of a bargaining order to remedy extensive
unfair labor practices that have made unlikely the hold-
ing of a fair election. 23
In NL.R.B. v. Gissel Packing Co.. Inc., 395 U.S. 575
(1969), the Supreme Court approved the Board's use of
bargaining orders to remedy an employer's independent
8(a)(1), (2), or (3) violations which undermined a union's
majority status and fatally impeded the holding of a fair
election. In doing so, the Court depicted two situations
in which such orders could appropriately be given. The
first involves unfair labor practices which are so "outra-
geous" and "pervasive" that traditional remedies cannot
erase their coercive effect, with the result that a fair
election is rendered impossible. In this connection the
Court noted that the Board itself had a "similar policy of
issuing a bargaining order, in the absence of an 8(a)(5)
violation or even a bargaining demand, when that was
the only available effective remedy for substantial unfair
labor practices." The second, or intermediate type is de-
scribed by the Court as follows at 614-615:
The only effect of our holding here is to approve
the Board's use of the bargaining order in less ex-
traordinary cases marked by less pervasive practices
which nonetheless still have the tendency to under-
mine majority strength and impede the election
processes. The Board's authority to issue such an
order on a lesser showing of employer misconduct
is appropriate, we should reemphasize, where there
is also a showing that at one point the Union had a
majority; in such a case, of course, effectuating as-
certainable employee free choice becomes as impor-
tant a goal as deterring employer misbehavior. In
fashioning a remedy in the exercise of its discretion,
then, the Board can properly take into consideration
the extensiveness of an employer's unfair practices
in terms of their past effect on election conditions
and the likelihood of their recurrence in the future.
If the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair elec-
tion (or a fair rerun) by the use of traditional reme-
dies, though present, is slight, and that employee
sentiment once expressed through cards, would, on
balance, be better protected by a bargaining order,
then such an order should issue ....
In the present case, the Union achieved majority status
on October 12, and filed a representation petition with
the Board on October 18. In considering whether the
election held on December 13, should be set aside, I
have considered the Respondent's conduct only during
the period during the "critical period" during the elec-
tion, i.e., the period between the filing of the representa-
tion petition and the election itself. However, all the
unfair labor practices committed by the Respondent are
' Naaum Bro.. Inc., 240 NlRB 311 (1979): Production Plating Compa-
ny. 233 NtRB 116 (1977)
.. n A
1390 I)tCISIO)NS OF NATIONAI. LABOR RELAII()NS BO()ARD
to be considered in determining the appropriateness of a
Gissel bargaining order.
Having learned the Union was engaging in an organi-
zational campaign, the Respondent embarked on a course
of conduct designed to stifle employee support for the
Union. On October II11. Respondent's president, Pautsch,
addressed the assembled employees where he conveyed
the message it would be futile for the employees to select
the Union because the Respondent would not raise
wages. He threatened that selection of the Union by the
employees would result in plant closure, transfer of the
business, or a reduction in operations. On this same day,
Supervisor Mueller, on three separate occasions, threat-
ened that Pautsch would close down the plant if the
Union became the bargaining representative.24 On Octo-
ber 16, Delena Howard was unlawfully discharged be-
cause of her support for the Union. On this same day
Blankenship unlawfully offered to confer supervisory
status on Taylor and to increase her life insurance bene-
fits to dissuade her from supporting the Union. On Octo-
ber 17, Blankenship engaged in unlawful surveillance
when he photographed the employees at the plant drive-
way while union handbills were being distributed before
working hours. Also, on October 17, Supervisor Gesell
threatened employee Thompson with plant closure. On
October 20, 2 days after the petition was filed, Lorelei
Taylor was unlawfully discharged because of her support
for the Union. In the latter part of November, Gesell un-
lawfully interrogated employee Jones and two other em-
ployees why they were interested in the Union. The
election was held on December 13. The Union filed its
objections seeking to have the election result set aside
because of Respondent's conduct. On December 27, the
Respondent unlawfully discharged Kristy Brown and
Janet Burnside. During this entire period, the Respond-
ent also maintained unlawful no-solicitation and no-distri-
bution rules. At a time not disclosed in the record,
Gesell threatened employee Snapp with plant closure if
the Union came in.
The Respondent's unfair labor practices described
above from the inception of the Union's organizational
campaign continuing beyond the election were both ex-
tensive in nature and pervasive in timing. A natural con-
sequence of such conduct was to instill fear in the em-
ployees, to stifle further interest in the Union, to dissi-
pate the Union's achieved majority, and to seriously
impede the election process. A fair rerun election, after
such conduct, cannot be insured by the use of traditional
remedies and the employee sentiment expressed through
authorization cards would, on balance, be better protect-
ed by a bargaining order. In light of the foregoing, I
shall recommend that the Respondent recognize and,
upon request, bargain collectively with the Union as the
exclusive bargaining representative of the employees in
the appropriate bargaining unit. I find the bargaining ob-
ligation arose on October 12, the date the Union
achieved majority status.
24 To employee Snapp, to employees Howard. Mote, and Goodson,
and to Taylor.
IV. IHI. :ITFIC I OF I HI UNIAIR AHOR PRACICES
UPON COMMERCEI
The activities of the Respondent set forth in section
III, above, occurring in connection with the operations
of the Respondent described in section , above, have a
close, intimate, and substantial relationship to trade, traf-
fic, and commerce among the several States and tend to
lead to labor disputes burdening and obstructing com-
merce and the free flow of commerce.
CONCl USIONS OF LAW
I. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating employees concerning their union
activities, by engaging in unlawful surveillance, by
threatening plant closure, transfer of the business, or a
reduction in its operations if the Union became the bar-
gaining representative, by offering to confer supervisory
status on an employee and to increase her life insurance
benefits to dissuade her from supporting the Union, by
indicating to employees it would be futile for employees
to select the Union as their bargaining representative be-
cause it would not raise wages, and by maintaining un-
lawful no-solicitation and no-distribution rules, Respond-
ent has violated Section 8(a)(1) of the Act.
4. By discharging Delena Howard, Lorelei Taylor,
Kristy Brown, and Janet Burnside, Respondent violated
Section 8(a)(3) and (1) of the Act.
5. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
6. Except as is set forth above, the General Counsel
has not established by a preponderance of the credible
evidence that Respondent has violated the Act.
7. All production and maintenance employees, includ-
ing quality control employees, shipping and receiving
employees, and truckdrivers employed at the Employer's
East Statler Road and South Main Street facilities in
Piqua, Ohio, but excluding all office clerical employees
and professional employees, guards, and supervisors, as
defined in the Act, constitute a unit appropriate for the
purposes of collective bargaining.
8. At all times material herein, since October 12, 1978,
the Union has been the exclusive representative of the
employees in the above-described appropriate unit within
the meaning of Section 9(a) of the Act.
THE REMEDY
Having found that the Respondent has engaged in cer-
tain unfair labor practices, I shall recommend that it be
ordered to cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
Having found that Respondent unlawfully discharged
Kristy Brown, Delena Howard, and Lorelei Taylor, I
recommend that Respondent be ordered to offer them
immediate and full reinstatement to their former positions
or, if those positions no longer exist, to substantially
INI)lSTRY PR()DUCIS COMPANY1 13l91
equivalent positions, without prejudice to their seniority
or other employee benefits, and to make them whole for
any loss of earnings and employee benefits, they may
have suffered to the date reinstatement is offered. The
amount of backpay hall be computed in the manner set
forth F W Woolworth Company,, 90 NLRB 289 (1950),
with interest thereon to be computed in the manner pre-
scribed in Florida Steel Corporation, 231 NLRB 651
(1977).
2
5
In view of the seriousness of Respondent's unfair labor
practices, the recommended Order will provide that Re-
spondent cease and desist from in any manner interfering
with, restraining, or coercing employees in the exercise
of rights guaranteed to them in Section 7 of the Act.
It is further recommended that Respondent be ordered
to recognize and bargain with the Union as the exclusive
bargaining representative of the employees in the above-
described unit.
Upon the foregoing findings of fact and conclusions of
law, and upon the entire record, and pursuant to Section
10(c) of the Act, I hereby issue the following recom-
mended:
ORDER 2 6
The Respondent, Industry Products Company Piqua,
Ohio, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating any employees concerning
their union activities and sympathies.
(b) Engaging in surveillance of the union activities of
the employees.
(c) Threatening employees with plant closure, transfer
of the business or a reduction in its operation if the em-
ployees choose to be represented by United Paper-
workers International Union, AFL-CIO, or any other
labor organization.
(d) Offering employees supervisory status and addi-
tional benefits to discourage union activities or support
for the above-named Union or any labor organization.
(e) Indicating to employees the futility of supporting
the above-named Union or any other labor organization
because it would not increase wages.
(f) Maintaining any rules which prevent employees
from engaging in union solicitation or activities during
their nonworking time or from distributing literature on
behalf of any labor organization in nonworking areas on
nonworking time.
(g) Discharging or otherwise discriminating against
employees to discourage union activities or support for
the above-named Union or any other labor organization.
:s See, generally, Isis Pluumbing d leating (o., 138 NLRB 716 (1962)
26 In the event no exceptions are filed as provided hv Sec 102 46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall. as pro'.ided
in Sec 102 48 of the Rules and Regulations, he adopted h the Board and
become its findings, conclusions. and Order. and all objections thereto
shall he deemed waixed for all purposes
(h) In any other manner interfering with. restraining,
or coercing its employees in the exercise of rights guar-
anteed to them under Section 7 of the Act.
2. Take the folloing affirmatie action necessary to
effectuate the policies of the Act.
(a) Offer Kristy Brown, Delena Howard, and Lorelei
Ta. lor immediate and full reinstatement to their former
positions or, if those positions no longer exist, to substan-
tially equivalent positions, without prejudice to their se-
niority or other rights and privileges. and make them
whole for their loss of earnings in the manner set forth in
the section of this Decision entitled "The Remedy."
(b) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, reports, and all other records necessary
to analyze the amounts of backpay due under the terms
of this recommended Order.
(c) Recognize and, upon request, bargain collectively
with United Paperworkers International Union, AFL-
CIO, as the exclusive representative of the employees in
the appropriate unit set out below with respect to wages,
hours, and other terms and conditions of employment,
and, if an understanding is reached. embody such agree-
ment in a signed contract.
All production and maintenance employees, includ-
ing quality control employees, shipping and receiv-
ing employees, and truck drivers employed at the
Employer's East Statler Road and South Main
Street facilities in Piqua, Ohio, but excluding all
office clerical employees and professional employ-
ees, guards and supervisors as defined in the Act.
(d) Post at its facilities in Piqua, Ohio, copies of the
attached notice marked "Appendix." 27 Copies of said
notice, on forms provided by the Regional Director for
Region 8, shall after being duly signed by the Respond-
ent's authorized representative, shall be posted immedi-
ately upon receipt thereof, and be maintained by it for 60
consecutive days thereafter, in conspicuous places, in-
cluding all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by the
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
(e) Notify the Regional Director for Region 8. in writ-
ing, within 20 days from the date of this Order, what
steps the Respondent has taken to comply herewith.
IT S FURTHER ORDERED that those allegations in the
complaint as to which no violations have been found are
hereby dismissed.
IT IS RECOMMENDED that the election held in Case 8-
RC-11560 be set aside and the petition in said case be
dismissed.
' InT the e enlt that this Order is enforced hb a Judgment of the
United Slates Court of Appeals, the words in the notice reading "Posted
by Order of the National Labor Relations Board" shall read "P'osted P'ur-
suant to a Judgment of the United States Court (of Appeals Enforcing an
Order of the National Labor Relations Board"