Intertherm, Inc.

National Labor Relations Board - Board Decisions

Apr 5, 1978

235 N.L.R.B. 493 (N.L.R.B. 1978)

INTERTHERM, INC.
Intertherm, Inc. and International Union, United
Automobile, Aerospace & Agricultural Implement
Workers of America (UAW). Cases 14-CA-9980
and 14-RC-8330
April 5, 1978
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY MEMBERS JENKINS, MURPHY, AND
TRUESDALE
On September 6, 1977, Administrative Law Judge
Benjamin K. Blackburn issued the attached Decision
in this proceeding. Thereafter, the General Counsel
and Respondent filed exceptions and supporting
briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,1 and conclusions 2 of the Administrative Law
Judge as modified herein.
We agree with the Administrative Law Judge that
Respondent violated Section 8(a)(1) of the Act by
threatening employees with plant closure in the event
they selected a collective-bargaining representative,
threatening employee Longworth by telling him that
his union activities were inconsistent with his contin-
ued employment, interfering with the right of em-
ployees to wear union insignia, interrogating employ-
ees about their union activities, and threatening them
with reprisals for engaging in such activities.
We further agree with the Administrative Law
Judge that Respondent violated Section 8(a)(l) of the
Act by Supervisor Frost's failure to disavow employ-
ee Caleco's threat to employee Smith that the latter
could be fired for wearing union insignia. As the
Administrative Law Judge found, Frost not only
failed to repudiate Caleco's comment but responded
to it by telling the employee to remove his insignia.
In these circumstances, we conclude that Frost
ratified Caleco's threat and indicated that Caleco's
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 credibili-
ty unless the clear preponderance of all of the relevant evidence convinces
us that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F.2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings.
2 In the absence of exceptions thereto, we adopt, pro fornaa the
Administrative Law Judge's conclusion that Respondent did not violate Sec.
8(aXI) of the Act through the statement of its president, Duchinsky, on
January 12, 1977, that in the event of unionization negotiations would start
"from scratch," noting the context of other extensive unfair labor practices
in which this occurred.
235 NLRB No. 101
views were also those of management-at least until
Smith was notified to the contrary. 3 Accordingly, we
find that Frost unlawfully impliedly threatened an
employee with discharge for wearing union insignia. 4
We further find that Frost's own conduct in ordering
the employee to remove his union insignia interfered
with the latter's right to engage in the Union's
organizational campaign and therefore constituted
an additional violation of Section 8(aXl)(1) of the Act.5
We also find, contrary to the Administrative Law
Judge, that Respondent violated Section 8(a)(l) of
the Act when it reprimanded employee Longworth
for leaving work early on January 13 to attend a
preelection conference and when Supervisor Graham
pulled an authorization card out of Longworth's shirt
pocket and read it.
With respect to the reprimand, the record estab-
lishes that on January 12 Longworth learned that he
was to act as observer during the upcoming Board
election. On the morning of January 13, Longworth
informed Graham, his immediate supervisor, of this
fact. That same afternoon, Plant Manager Bill
Whited told Longworth that he would have to "clock
out in order to attend a pre-election conference." It is
clear to us from these facts that Respondent not only
had no objections to Longworth's leaving early but
rather gave its tacit approval by reminding Long-
worth that he had to clock out. Notwithstanding this
fact, Respondent subsequently used this absence as a
basis for issuing Longworth a reprimand on the
grounds that Longworth had been either absent or
late three times during the month of January. When
Longworth protested the reprimand to his superiors,
he was told that his participation as an observer in
the election was voluntary and that Respondent
made no exceptions in applying its absen-
tee/tardiness rule. During the course of a conversa-
tion concerning the reprimand, Respondent's direc-
tor of personnel and employee relations, Robert
Long, told Longworth that if "he was not happy with
the Company, he should look elsewhere for a job."6
Viewing the reprimand in light of Respondent's well-
established union animus, Long's threat to Long-
worth, and particularly Respondent's prior indica-
tion of approval of Longworth's absence, the prepon-
derance of the evidence establishes that Longworth
3 Although Frost indicated that Caleco's comment about employees
being fired for wearing union insignia might not be accurate, at the time of
the incident he left the threat outstanding. Indeed, his ordering Smith to
remove the button in the interim could only have had the tendency to
reinforce the import of Caleco's comment as it appeared to belie his own
expression of uncertainty concerning the threatened consequence.
4 Stewart & Stevenson Services, Inc., 164 NLRB 741, 742 (1967).
5 Republic Aviation Corporation v. N.LR.B., 324 U.S. 793, 802 (1945);
Mayrath Company, 132 NLRB 1628, 1629(1961).
6 The Administrative Law Judge found, and we agree, that this statement
constituted a threat in violation of Sec. 8(aX I ) of the Act.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
was reprimanded in order to inhibit him and other
employees from exercising their right to participate
in the Board's electoral processes. Accordingly, we
find that the reprimand violated Section 8(a)(1) of
the Act.
We also find that Respondent violated Section
8(a)(1) of the Act when Supervisor Graham pulled an
authorization card out of Longworth's pocket and
read it. While Graham testified that he thought that
the document was a warranty card, the Administra-
tive Law Judge discredited him in this regard and
Graham offered no other explanation for his con-
duct. The Administrative Law Judge, however, found
that Graham's conduct did not amount to a violation
of Section 8(a)(l), inasmuch as Graham "put the
card back where he had found it" as soon as he had
"satisfied his curiosity as to what Longworth was
carrying in his pocket." We find, contrary to the
Administrative Law Judge, that Graham's conduct
amounted to unlawful surveillance of Longworth's
union activities and therefore violated Section 8(a)(l)
of the Act.
Finally, we do not agree with the Administrative
Law Judge's finding that Graham's unlawful interro-
gation of six employees on January 11, 1977, was
effectively cured when Respondent posted a notice at
all of its plants disavowing and apologizing for
Graham's conduct on January 13. Although the
notice posted on January 13 purported to reassure
employees of their right to engage in union activities
without fear of reprisal, Respondent committed
additional unfair labor practices the following day
and on January 24, 1977, 7 thereby essentially vitiat-
ing its earlier repudiation of Graham's unlawful
conduct. Additionally, Graham, as discussed above,
had engaged in other unlawful conduct which Re-
spondent made no attempt to disavow. Under these
circumstances, we conclude that the January 13
notice was ineffective to cure the effects of Graham's
unlawful interrogation8 and that our usual cease-
and-desist order and requirement that Respondent
post a Board notice is warranted.9
7 Supervisor Sandbothe's covering the union insigna employee Gilliam
was wearing, and the issuance to Longworth of an unlawful reprimand and
threatening him that his union activities were inconsistent with his
continued employment.
8 See Group One Broadcasting Co.. West, 222 NLRB 993 (1976); Austin
Powder Company, 141 NLRB 183, 192(1963).
9 Member Murphy would adopt the Administrative Law Judge's finding
that Respondent effectively disavowed Supervisor Graham's interrogation
of six employees and, in this regard, did not violate Sec. 8(aXl) of the Act.
The record establishes that, when Respondent learned of Graham's
interrogations, it immediately reprimanded Graham, ordered him to
apologize to the six employees, and posted a notice on the bulletin boards at
all of its plants disavowing and repudiating Graham's conduct and
promising not to permit such conduct to occur again.
The facts clearly show that Graham did not thereafter engage in any
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Intertherm, Inc., St. Louis, Missouri, its officers,
agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Reprimanding employees for participating in
the Board's election processes.
(b) Engaging in surveillance of employees' union
activities by removing and examining authorization
cards in the possession of employees.
(c) Telling employees that they could not wear and
must remove or cover union insignia.
(d) Threatening employees that their union activi-
ties are inconsistent with continued employment with
Intertherm, Inc.
(e) Interrogating employees about their union
activities and threatening them with reprisals for
engaging in such activities.
(f) Threatening employees with plant closure in the
event they select a collective-bargaining representa-
tive.
(g) Threatening employees with discharge if they
do not remove or cover union insignia.
(h) In any like or related manner interfering with or
attempting to restrain or coerce employees in the
exercise of rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act:
(a) Post at its plants in St. Louis, Missouri, copies
of the attached notice marked "Appendix." 10 Copies
of said notice, on forms provided by the Regional
Director for Region 14, after being duly signed by
Respondent's authorized representative, shall be
posted by Respondent immediately upon receipt
thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respon-
dent to insure that said notices are not altered,
defaced, or covered by any other material.
unlawful conduct. Furthermore, the subsequent unlawful conduct directed
at Gilliam and Longworth was committed by other of Respondent's
supervisors and does not operate to negate the disavowal of Graham's
misconduct. Under these circumstances, Member Murphy would find that
Graham's unlawful interrogations had been effectively neutralized by
Respondent's prompt publication of its notice repudiating such conduct
and, therefore, that a cease-and-desist order and notice provision regarding
this incident are not warranted. Fleetwood Trailer Co., Inc., 118 NLRB 1355
(1957).
o1 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
694
INTERTHERM, INC.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps Respondent has taken to comply here-
with.
IT IS FURTHER ORDERED that the complaint be
dismissed insofar as it alleges Respondent violated
Section 8(a)(1) of the Act by conduct not found to be
violative herein and Section 8(a)(3) and (1) of the Act
by suspending Arnold Harris on January 19, 1977,
and discharging him on January 21, 1977.
IT IS FURTHER ORDERED that the election in Case
14-RC-8330, held on January 14, 1977, be, and it
hereby is, set aside and that a new election be
conducted.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board having found,
after a hearing, that we violated Federal law in
various ways, we hereby notify you that:
The National Labor Relations Act gives all
employees these rights:
To engage in self-organization
To form, join, or help unions
To bargain collectively through a repre-
sentative of their own choosing
To act together for collective bargaining
or other aid or protection
To refrain from any or all of these things.
WE WILL NOT reprimand employees for partici-
pating in the Board's election processes.
WE WILL NOT engage in the surveillance of
employees' union activities by removing and
examining authorization cards in the possession
of employees.
WE WILL NOT interfere with the employees'
right to wear union insignia by telling them that
they cannot wear and must remove or cover up
such insignia.
WE WILL NOT threaten you that your union
activities are inconsistent with continued employ-
ment with us.
WE WILL NOT interrogate you about your union
activities and threaten you with reprisals.
WE WILL NOT threaten you with discharge if
you do not remove or cover union insignia.
WE WILL NOT threaten to close the plant in the
event you select a collective-bargaining represen-
tative.
WE WILL NOT in any like or related manner
interfere with you or attempt to restrain or coerce
you in the exercise of the above rights.
All our employees are free to join International
Union, United Automobile, Aerospace & Agricultur-
al Implement Workers of America (UAW), or any
other labor organization, if they choose.
INTERTHERM, INC.
DECISION
STATEMENT OF THE CASE
BENJAMIN K. BLACKBURN, Administrative Law Judge:
The petition in Case 14-RC-8330 was filed on December
15, 1976.' A Stipulation for Certification Upon Consent
Election was executed and approved on December 27. The
election was held on January 14, 1977. In a production and
maintenance unit of approximately 437 employees, there
were 201 votes for the Charging Party, 216 against, and 10
challenged ballots. Timely objections were filed on January
21.
The charge in Case 14-CA-9980 was filed on February
I; the complaint was issued on February 18. On February
23 the Regional Director issued his Report on Objections
in Case 14-RC-8330 and an order consolidating it for
hearing with Case 14-CA-9980 and thereafter transferring
it to the Board. The hearing was held in St. Louis,
Missouri, on April I and 12.
The principal issues litigated were Respondent's motive
for discharging Arnold Harris on January 21 and whether a
portion of a speech delivered to employees by John Oxley,
Respondent's vice president in charge of manufacturing,
on January 4 and 5 amounted to a threat to close in the
event the Charging Party won the election scheduled for
January 14. For the reasons set forth below, I find that
Respondent's motive for discharging Harris was not one
proscribed by Section 8(a)(3) of the National Labor
Relations Act, as amended, but that the words spoken by
Oxley were, at law, a threat, thus constituting not only a
violation of Section 8(aX)(I) of the Act but also grounds for
setting aside the election.
Upon the entire record, including especially my observa-
tion of the demeanor of the witnesses, and after due
consideration of briefs, I make the following:
FINDINGS OF FACT
I. JURISDICTION
Respondent, a Missouri corporation, is engaged at St.
Louis, Missouri, in the business of manufacturing heating
I Dates are late 1976 or early 1977, as the case may be.
695
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
and air-conditioning equipment. During calendar 1976 it
shipped products valued in excess of $50,000 directly to
customers located outside the State of Missouri.
II. THE UNFAIR LABOR PRACTICES
A. Discharge of Arnold Harris
The issue of Arnold Harris' discharge turns on credibili-
ty. The crucial question is what happened on the afternoon
of January 18 when Harris protested a reprimand he had
received that morning to Alfred Carden, Respondent's
manufacturing superintendent at the plant where Harris
worked. (Respondent's operations are spread over four
plants in St. Louis.) According to Harris the worst thing he
said was "To hell with flexibility" and the worst thing he
did was to wave his arms in the air. According to Carden,
Harris wadded up the reprimand and stuffed it into
Carden's pocket, threatened to kick Carden in the ass, and
invited Carden to step outside for fisticuffs, an invitation
which Carden wisely declined. I credit Carden over Harris
principally because of Harris' evasiveness in testifying
about his conduct. The following, from cross-examination,
is a sample:
Q. It would be a fair comment to make that you
were shouting at Mr. Carden, weren't you?
A. We were both, our voices were both up.
Q. So, to answer my question, you were shouting at
Mr. Carden?
A. No. Our voices were raised.
Q. What is the difference?
A. O.K., so he was shouting and I was shouting.
Q. So you were shouting?
A. If this is what you say. His voice was up and my
voice was up.
I attach no significance to the fact Respondent produced
no employee witness to corroborate Carden's version of the
incident. The General Counsel produced none to corrobo-
rate Harris even though Carden and Harris agreed their
confrontation took place in view and earshot of numerous
persons working in the area at the time. Similarly, I attach
no significance to the fact Harris did not admit Carden's
version at the two meetings on January 19 which resulted
in suspension. It is clear even from Harris' version of what
happened at those times that he did not deny it either.
Consequently, I have credited Harris only where his
testimony is undisputed, for instance, as to his overt
support for the Charging Party in its organizing campaign,
or corroborated by others, for instance, as to the fact he
engaged in various conversations with supervisors. In all
cases, however, where there is a conflict between his
version and the version of Respondent's witnesses, I have
credited the latter.
Harris worked more than 8-1/2 years for Respondent as
a spray painter and laborer, most of the time at the plant
located at 812 South Theresa. He was an employee
representative. He was openly and vocally prounion. In a
Teamsters organizing campaign which preceded the one
launched by the Charging Party in the late summer of 1976
he supported the Teamsters. Respondent, aware of his role
and his attitude in that campaign, offered him a promotion
in the hiatus between the two campaigns. When the
Charging Party came on the scene, Harris was one of its
early supporters, signing an authorization card on Septem-
ber 29. He handed out cards to other employees. He wore
union insignia, as did many other employees, in the week
before the January 14 election. His views were no secret to
his supervisors.
Respondent has a policy of routinely reprimanding
employees who are late for work and/or leave work early
three times in a 30-day period. The document which
memorializes the reprimand is prepared by a clerk without
consulting a supervisor as soon as the records which the
clerk maintains indicate the transgression. Harris was late
for work on January 3, left early on January 13, and was
late again on January 17. On the morning of January 18 the
clerk prepared a reprimand slip which read, "Company
policy states more than two tardys or leaving early in a one
month period is considered excessive. On 1/3/77 and
1/17/77 you came in late and on 1/13/77 you left early.
This is a verbal warning. Your next excessive occasion will
result in a written reprimand." Fred Boeckman, Harris'
immediate supervisor, signed it and gave it to Harris.
The reprimand upset Harris. In his view Respondent
should have exercised its policy of "flexibility" to forgive
him for being late on January 17 because weather was to
blame. January 17 had been a stormy day but not so bad
that Respondent considered it a "wipeout," i.e., a day on
which such a large number of employees are delayed in
getting to work by some catastrophe that it does not apply
its policy. Consequently, a few minutes before quitting
time, Harris sought out Carden to make his point about
"flexibility" and the need for a union in the plant. A loud
argument resulted in the course of which Harris and
Carden walked together for some distance in the plant.
During the argument Harris wadded up the reprimand he
had received and thrust it into Carden's shirt pocket with
the comment that Carden could stick it up his ass and
invited Carden to step outside to settle their differences
man to man.
The next morning Carden removed Harris' card from the
timeclock rack. When Harris reported for work and could
not find his card, he sought out Carden. Carden assembled
Harris, Harris' department representative, Robert Baum-
gartner, and Harris' department supervisor, Boeckman, in
his office. Carden described his confrontation with Harris
the previous afternoon. Harris said he did not remember
saying what Carden said he had said. Bill Wood, the plant
manager and Carden's immediate superior, came in while
the meeting was in progress. Carden said he was willing to
submit to a polygraph test. He asked Harris if he was
willing. Harris did not reply. The upshot of the meeting
was that Harris was placed on indefinite suspension
pending further investigation. An immediate meeting with
Robert Long, Respondent's director of personnel and
employee relations at the Gustine plant where Long's office
is located, was arranged. Harris rode to the Gustine plant
with Carden in Carden's automobile.
Long first interviewed Carden. When Carden came out
of Long's office, Harris went in. Long asked Harris if the
events which Carden had related were true. Harris neither
696
INTERTHERM, INC.
admitted nor denied Carden's story. Rather, when Long
asked Harris if Harris had told Carden he would whip his
ass, Harris replied, "Oh, now, Bob, come on, I didn't say
that exactly. Yeh, I got mad and I said some things I
shouldn't have said, but come on now, Bob, you're not
going to hold that against me." His replies to specific
questions about other things he was alleged to have said or
done were similar. The upshot of this meeting was that
Harris continued in a suspended pending investigation
status. Long told Harris to check with him later.
Long referred the problem to John Oxley, Respondent's
vice president of manufacturing. When Harris telephoned
Long on January 20 to find out his fate, Long told him a
decision had not yet been made. Long said the least that
Harris could anticipate was a 3-day suspension.
Oxley decided to discharge Harris. When Harris tele-
phoned Long again on January 21, he was referred to Plant
Manager Wood. Harris telephoned Wood. Wood informed
Harris he was discharged. Harris telephoned Long and
protested. Long refused to discuss the decision with him.
On the following Monday, January 24, Harris telephoned
Oxley. Oxley also refused to discuss his decision with
Harris.
The General Counsel's theory is, of course, pretext. In his
view, Respondent seized on the argument between Harris
and Carden on January 18 as a pretext masking its real
motive of getting rid of a notorious union leader as a
warning to other employees at a time when the outcome of
the election held on January 14 was still uncertain. The
effect of my crediting Respondent's witnesses over Harris
is to discredit much of the evidence the General Counsel
relies on to support that theory. I find that Long did not
interrogate Harris about union activities at a meeting of
employee representatives in December. I find Long did not
tell Harris, in the course of a conversation on January 4,
that Harris would be a lonely person if the Union did not
get in. I find Long did not say to Harris on January 19,
"You have been going through this union thing and I feel
like you have spit in my face after all I have done for you
guys. .... Pass the word to the rest of the guys I am not
going through this next year. The company is going to start
going up and making money, but we are not going through
this union thing next year and spending money again as we
have in the past." The facts I have found will not support a
pretext finding. I find, therefore, the General Counsel has
failed to prove by a preponderance of the evidence on the
record as a whole that Respondent violated Section 8(aX3)
and (1) of the Act by suspending Arnold Harris on January
19, 1977, and discharging him on January 21. Even if I
were to find Long spoke the words which Harris claimed
he spoke on these occasions, I would reach the same result.
Harris' conduct on January 18 was so egregious that it
furnished cause for discharge outweighing the additional
evidence relied on by the General Counsel. The statements
which Harris attributed to Long are ambiguous at best.
They do not weigh enough to cause me to conclude that
Harris would not have been discharged for what he did on
January 18 but for his union activities.
Another effect of my crediting Respondent's witnesses
over Harris is to leave the General Counsel with no
evidence in support of five allegations in the complaint of
independent 8(a)(1) violations. Two of these are predicated
on Harris' version of his conversations with Long on
January 4 and 19. Similarly, I credit the testimony of
Carden and Boeckman about their relationship with Harris
in the period leading up to the election, including an
incident a few days before January 14 in which Harris used
an office telephone to call the Board office in St. Louis.
(Carden's and Boeckman's version of the latter is that
Harris merely asked permission to use the telephone and
they played no role in instigating the call or discussing the
information about wages and negotiations which Harris
obtained in this manner.) Harris' version of his telephone
conversation with Wood on January 21 indicates Wood
said nothing more than that a decision had been reached to
discharge Harris. Such a statement in this context does not
constitute an independent violation of the Act. I find,
therefore, the General Counsel has also failed to establish
that Respondent violated Section 8(a)(1) by Long telling
"an employee that if the union didn't get in, that employee
was going to be a lonely person"; by Long telling "an
employee that said employee is being suspended because of
said employee's union sympathies and activities"; by
Carden and Boeckman interrogating "an employee regard-
ing his union sympathies"; by Boeckman threatening "an
employee with a wage reduction in case of unionization";
or by Wood telling "the employee referred to [in the
subparagraph based on Long's alleged statement to Harris
on January 19] that said employee was terminated."
B. Reprimand of Robert Longworth
Respondent's policy with respect to tardiness also figures
in several independent 8(a)(1) allegations relating to Rob-
ert Longworth. Longworth was a last-minute substitute as
an observer for the Charging Party on January 14.
Longworth learned of his assignment from the Charging
Party's organizer on January 12. The next morning he
informed Allen Graham, his immediate supervisor. That
afternoon Bill Whited, manager of the plant at which
Longworth works, told Longworth he would have to clock
out in order to attend a preelection conference. Longworth
did so, about an hour before his shift ended.
On January 24 Longworth received a reprimand, signed
by Graham, similar to the one Harris received on January
18. It had been routinely prepared by a clerk and was
predicated on Longworth's having been late on January 12
and 19 and having left work early on January 13. When
Longworth realized he was being officially reprimanded as
a result of clocking out early in order to participate in the
preelection conference, he sought out Whited. He told
Whited he thought Respondent was retaliating against him
for his union activities. Whited commented that acting as
an observer had been voluntary on Longworth's part but
said he would talk to Long to see what he could do about
it.
The next day, when Longworth failed to hear from
Whited, he sought out Long himself. Longworth explained
the situation and made the same point to Long that he had
made to Whited. Long's response was the same as
Whited's-acting as observer is a voluntary thing and
Respondent makes no exceptions in applying its tardiness
rule. Longworth argued it was this sort of inhuman attitude
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
toward employees which caused them to engage in union
activities. In the course of this discussion Long told
Longworth that, if he was not happy with the Company, he
should look elsewhere for a job. (I do not credit Long's
denial that he made this remark.)
On February 10, on advice of counsel, Respondent
withdrew the reprimand from Longworth's personnel file
and returned it to him. At the same time Graham handed
the reprimand to Longworth, Graham gave him a memo-
randum signed by Graham which read, "As of today the
attached reprimand date 01-24-77 has been rescinded and
withdrawn from your personnel file."
The first of three allegations based on this incident is that
Respondent violated Section 8(a)(1) by issuing "a written
tardiness reprimand for an employee because that employ-
ee had left work to attend a pre-election conference
concerning an election in which he was to be an observer."
The other two are based on the words spoken to Long-
worth by Whited and Long. There is no merit to the
contention that the reprimand itself or Whited's and
Long's statements that Longworth's participation in the
election as an observer had been his voluntary choice
violated the Act. Longworth was not reprimanded for
acting as an observer. (If he had been, I presume the
General Counsel would have alleged a violation of Section
8(a)(3), for a reprimand for such a reason would obviously
have discriminated against Longworth in order to discour-
age his membership in the Charging Party.) He was
reprimanded for violating Respondent's consistently ap-
plied policy with respect to arriving late and leaving early
and by being late for work on January 19. By the same
token, Whited's and Long's statements about that policy
were simply an assertion of its right to have such a
nondiscriminatory policy. However, Long's statement
about Longworth seeking another job did violate the Act.
Padre Dodge, 205 NLRB 252 (1973). I find, therefore,
Respondent violated Section 8(a)(1) of the Act by convey-
ing to an employee the threat that it considered engaging in
union activity and continued employment essentially in-
compatible.
C. Activities of Foreman Allen Graham
1. Authorization card incident
Robert Longworth and his immediate supervisor, Allen
Graham, also figure in this incident. It, too, involves a
conflict as to just what happened. According to Long-
worth, Graham plucked one of the Charging Party's
authorization cards out of his pocket and read it. Accord-
ing to Graham, he did not get the card out of the pocket
and he did not read it. The General Counsel called Danny
Wampler, an eyewitness, to corroborate Longworth. How-
ever, Wampler's account of what he saw accords more
closely with Graham's than with Longworth's. Therefore, I
do not credit Longworth's testimony that Graham actually
got the card out of his pocket and read it before returning
it. On the other hand, I do not credit Graham's testimony
that he thought it was a warranty card. Respondent's
warranty cards are white. The Charging Party's authoriza-
tion cards are a bluish green. Graham did not claim to be
colorblind.
Sometime in October Longworth was operating his
forklift truck with a number of authorization cards sticking
out of his shirt picket. Graham directed Longworth's
attention away from himself, stepped up on the forklift,
pulled one of the cards part way out of Longworth's
pocket, saw what it was, and thrust it back. Bill Whited, the
plant manager, was walking by and asked if there was a
problem. Longworth complained Graham was harassing
him. Whited did not reply.
In Benner Glass Co., 209 NLRB 686 (1974), the Board
found an 8(a)(1) violation on analogous facts. There a
plant superintendent deliberately stationed himself in a
position where he could observe one employee give a
supply of authorization cards to another and then confis-
cated the cards. The Board found an 8(a)(1) violation in
that "Garner engaged in unlawful surveillance of employ-
ees engaged in distribution of union authorization cards in
a nonwork area during breaktime and disrupted the
distribution of the cards." Here the incident occurred in a
work area during worktime, and Graham did not seek out
Longworth to keep his union activities under surveillance.
More importantly, what Graham did had no effect on
Longworth's distribution of cards to other employees for,
as soon as Graham had satisfied his curiosity as to what
Longworth was carrying in his pocket, he put the card back
where he had found it. I find, therefore, on the authority of
Benner Glass, that Respondent did not violate Section
8(aX)(1) of the Act by Graham's taking "an authorization
card from an employee's pocket and" reading "the card in
the presence of the employee."
2. Admitted interrogation
On January 11, having been asked to tell his superior
how his subordinates would vote on January 14, Graham
polled six employees. On January 13 he apologized to each
of the six, stating that he should not have interrogated
them. Respondent reprimanded Graham. On January 13 it
posted the following notice to employees on the bulletin
boards in all of its plants:
DATE: JANUARY 13, 1977
FROM: JACK OXLEY
TO: ALL SHOP HOURLY EMPLOYEES
ALL PLANT BULLETIN BOARDS
It has just come to my attention that on Tuesday,
January 11th, 1977, the foreman in our Material
Handling Department at Gustine Plant asked several
employees how they were going to vote in the NLRB
election scheduled for January 14th, 1977. This kind of
conduct is strictly against Company policy for as we
have said in our letters and speeches we want all
employees to be able to decide this issue free from any
unlawful interference, restraint or coercion. I want all
Intertherm employees to know that the foreman imme-
diately apologized to the employees he had questioned
and stated to them that he should not have asked those
questions; additionally that foreman has been repri-
manded for his actions.
698
INTERTHERM, INC.
On behalf of Intertherm, I want to inform all employees
that the Company unequivocally disavows and repudi-
ates all such inquiries that took place at the Gustine
Plant on January 11th. This kind of action shall not
occur again.
As we have often said, our employees have the right to
form, join, and assist any labor organization or to
refrain from so doing whichever you care to do. You
have the right to engage in union activities without any
fear of threat or reprisals by the Company. No ones job
will be adversely affected, now or later, because of
support for or opposition to a union.
/s/ J. H. Oxley
J. H. Oxley
V. P. Manufacturing.
Whether Respondent should now be required to remedy
this admitted interrogation violation of Section 8(aXl)
turns on the significance of its efforts to remedy it itself. In
Fashion Fair, Inc., 159 NLRB 1435 (1966), the Board found
violations despite efforts by the employer to disavow and
apologize for the actions of its supervisor. However, in
Fashion Fair the Board said (at 1444):
Unless properly and effectively neutralized, the impact
of coercive action upon employees is not vitiated just
because the illegal acts in question are subsequently
rescinded. Merely making an apology to employees for
the misconduct committed [is] ambiguous and insuffi-
cient, without clearly identifying the wrongdoing, indi-
cating recognition of the employees' organizational
rights, and assuring them against recurrence of the
offenses committed. Moreover, to be effective, a neu-
tralization effort must be adequately publicized sub-
stantially to reach all employees.
The supervisor who was required in Fashion Fair to
apologize and make amends to employees also committed
other unfair labor practices which were not covered by the
apology and restoration of the status quo.
Here, no other unfair labor practices can be attributed to
Graham. More importantly, all the criteria mentioned in
Fashion Fair are present. Graham's wrongdoing was clearly
identified in the notice posted on January 13. It recognized
employees' organizational rights and assured them against
recurrence of the offense Graham had committed. It was
more than adequately publicized. Published only 2 days
after the offense, it was posted in a manner that brought it
forcefully to the attention of the more than 400 employees
in 4 plants who were scheduled to vote next day. Graham
had interrogated only six employees in one plant. I find,
therefore, on the authority of Fashion Fair, that Respon-
dent did not violate Section 8(a)(1) of the Act by Graham
interrogating "employees regarding . . . how they would
vote in the forthcoming representation election."
D. Interrogation of and Threats Directed to
Kenneth Lay
1. By Plant Manager Bill Whited
One day in mid-November, at lunchtime, Plant Manager
Bill Whited stopped Kenneth Lay and said, "Ken, can I see
you for a moment? What can you tell me about the
UAW?" Lay said, "UAW? What is that? I thought the
Teamsters were still trying to get in." Whited said,
"Someone told me you were passing out union cards." Lay
said, "I'm sorry, Bill, I can't help you." Whited said, "O.K.,
if that is the kind of answers you are going to give me, that
is the kind of answers I am going to give you." Lay said,
"When have I ever asked you for a favor?" Whited said,
"Well, you know, like when you wanted a transfer from
first to second shift." Lay said, "I didn't know you were
doing me favors. I thought that was just part of your job"
and walked away.
I do not credit Whited's denial that he spoke the words
Lay attributed to him after Lay said, "I'm sorry Bill, I can't
help you." (Whited's version of this admitted conversation
was "I talked with Kenny and told him that I knew that he
was active in the union campaign and I was just trying to
find out for the best interest of himself and the company
why a long time employee would be campaigning for the
union.")
On the basis of this incident, I find that Respondent, in
the person of Bill Whited, violated Section 8(a)(1) of the
Act by interrogating an employee about his union activities
and threatening reprisals for engaging in such activities.
2. By Foreman Richard Vogt
About 2 or 3 days before the January 14 election
Kenneth Lay's immediate supervisor, Richard Vogt, began
working beside Lay on the air-conditioning line. Lay said,
"Why are you so hot against the union, Dick?" After a
pause, Vogt said, "What are you going to do for a job if the
union don't get in?" Lay said, "I guess I will still be
working here."
On January 13, as Lay was reading a copy of the notice
about Allen Graham's polling of employees which Respon-
dent posted that day, Vogt joined him at the bulletin board.
Lay said, "Dick, do you see what it says about harassing or
bothering the employees?" Vogt said, "Well, nobody else
heard it but you and I. You can't prove it." Lay said, "I
don't want to cause any trouble. I am not going to mention
this."
I do not credit Vogt. (Vogt denied there was any
conversation at the bulletin board. His version of what
happened on the line was that he asked Lay where he
would be working the following Monday because he
wanted to know whether Lay was scheduled to be rotated
off the line and Lay accused Vogt of threatening him.)
On the basis of this incident, I find that Respondent, in
the person of Richard Vogt, violated Section 8(a)(1) of the
Act by threatening an employee with reprisals for engaging
in union activities.
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DECISIONS OF NATIONAL LABOR RELATIONS BOARD
E. Activities of General Foreman Alvin Frost
1. Alleged threats
On November 11 Alvin Frost, general foreman at
Respondent's plant located on South 38th Street, checked
with William Stricklin and Billy Shockley about a rumor
which had reached him through his brother, Leonard
Frost, second-shift foreman in the same plant. In his
conversation with Stricklin, Frost said, "Bill, we don't want
no trouble here." Stricklin said, "What do you mean?"
Frost said, "Well, we have had someone say they were
threatened about a card." Stricklin said, "Did he say it was
me?" Frost said, "Your name was mentioned." Stricklin
said, "If you bring the man in front of me, I will tell him he
is wrong."
In his conversation with Shockley, Frost said, "I have a
report that you are threatening people about signing."
Shockley said, "If you mean signing union cards, I did not
threaten anybody. You get your source of information and
I'll get mine and we'll go to the Labor Board and prove
whether I did or not." Frost said, "That won't be necessary.
The company has a good thing going here." Shockley
interrupted Frost to say, "I'm 2 coming down here to screw
things up for you." Frost said, "Bill Wood asked me to ask
you about it." Shockley said, "Well, you can tell Bill Wood
I am not guilty of it and we can still go to the Labor
Board."
National Water Life Company, 179 NLRB 926 (1969),
relied on by the General Counsel with respect to these
allegations, is distinguishable on its facts. There, the
employer sought to determine if employees had in their
toolboxes union literature shaped like footprints and
designed to be placed on the floor, ostensibly because of a
litter problem in its plant. An 8(a)(1) violation was
predicated on the finding that "Respondent undertook a
studied effort to determine which, if any, of its employees
in the drill department possessed union literature . . . to
pinpoint the Union adherents or sympathizers through the
systematic interrogation of each employee in the depart-
ment." Here, Frost's purpose in talking to Stricklin and
Shockley was to get their side of the story that they were
engaging in improper union activities, not to discover if
they were, in fact, engaging in proper union activities or to
threaten them because they were. What he said could not
reasonably be interpreted by Stricklin or Shockley as an
attempt to interfere with them or restrain or coerce them in
the exercise of their right to engage in legal union activities.
Respondent's concern that union adherents among its
employees not exceed the bounds of permissible conduct in
attempting to recruit their fellows is a legitimate one. The
words Frost spoke in dealing with that concern do not
exceed those bounds any more than Stricklin's and Shock-
ley's activities apparently had. (There is no suggestion in
the record that Stricklin and Shockley had, in fact,
threatened other employees in an effort to persuade them
to sign authorization cards for the Charging Party.) I find,
therefore, that Respondent did not violate Section 8(a)(1)
of the Act by Frost telling "an employee that Frost had a
2 I reject the suggestion contained in the General Counsel's brief that the
record should be corrected at this point to insert "not."
report that the employee was threatening other employees
to sign union cards" when "Respondent had no informa-
tion that the employee was threatening other employees to
force them to sign union cards" or by Frost accusing "an
employee of having threatened another fellow employee in
order to have that fellow employee sign a union card."
2. Insignia incident
About a week before the January 14 election the
Charging Party distributed pins and pocket protectors
bearing a UAW message to Respondent's employees. (A
pocket protector is a plastic pen and/or pencil holder
which fits inside a shirt pocket with a flap hanging over the
front of the pocket. Its purpose is to keep the shirt from
being soiled.) Many employees wore them in Respondent's
plants between the time they were distributed and the
election. When Eugene Smith did so for the first time
around January 7, he happened to pass by Alvin Frost and
Frank Caleco, who were standing together by Frost's desk.
Caleco, the timekeeper and a rank-and-file employee, said,
"You can't wear that, you can get fired."
Frost said, "Well, take it off. You can't wear it until I
check with personnel. I don't know if you can wear them or
not on company time." Smith took off the union insignia.
I do not credit Frest's testimony that this incident never
happened. (Caleco was not called as a witness by either
side.) The fact he had been instructed by higher manage-
ment not to do anything of this sort is no guarantee that he
did not. Allen Graham, the supervisor who admittedly
polled six employees on January 11, underwent the same
indoctrination.
In Franklin Stores Corporation, et al., 199 NLRB 52
(1972), an 8(aXI) violation was found where supervisors
told employees who worked in a retail store to remove their
union buttons. There is even less justification for Frost's
order in a factory. Frost's failure to disavow Caleco's "you
can get fired" made Respondent liable for the threat that
Smith would be discharged if he did not obey. I find,
therefore, on the authority of Franklin Stores, that Respon-
dent, in the person of Alvin Frost, violated Section 8(a)(l)
of the Act by impliedly threatening to discharge an
employee if he did not remove union insignia.
F. Another Insignia Incident
A similar incident in the same plant on election day
involved an employee named Glenwood Gilliam and a
supervisor named Carl Sandbothe. The credibility conflict
posed by this part of the record is different from that
involving Smith and Frost. Gilliam did not deny that he
played a part in hiding the UAW message on Gilliam's
pocket protector with a stick-on Intertherm logo. Rather,
the two stories differ in that Sandbothe's version of what
happened makes the event part of a running joke between
them while Gilliam's does not. Notwithstanding Gilliam's
admission on cross-examination that there was laughter in
the conversation before it was all over, I credit his
testimony that the affair was no joking matter. Even if I
were to find it was more playful than I believe it was, I
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INTERTHERM, INC.
would still find an 8(a)(1) violation. The net effect was that
a union adherent wound up sporting a company emblem
on election day because a supervisor put it on him. The
following findings of fact are based on Gilliam's version of
what happened:
Gilliam began wearing a union pocket protector, usually
under his jacket, around January 7. On January 14 he was
approached by Sandbothe, foreman in another depart-
ment, who asked Gilliam why he was wearing the protector
in plain view. Gilliam said it was warm and he had taken
his coat off. Sandbothe said he would rather see it covered
up. Gilliam said it was too hot to wear his coat. Sandbothe
said, "Well, I will get an Intertherm sticker and put it on."
Gilliam said, "O.K., if I have to wear one."
Sandbothe went to an office and returned with an
Intertherm sticker. He peeled off the backing and stuck the
logo on the flap of Gilliam's pocket protector, covering the
UAW message. Sandbothe said, "That looks a lot better."
A little later he told Gilliam he had spent the entire
morning going around pulling UAW stickers off walls and
presses.
I find, also on the authority of Franklin Stores, supra, that
Respondent committed the same sort of 8(a)(1) violation in
this incident as already found in the Smith-Frost incident
above.
G. Speeches to Assembled Employees
1. By President Bernard Duchinsky
This allegation grows out of a series of preelection
speeches to assembled employees on January 12 by
Bernard Duchinsky, Respondent's president. At issue is
whether, in responding to an employee's question on one
occasion when he had finished his prepared remarks, he
used that dangerous phrase "bargaining from scratch." (I
credit Duchinsky's testimony that only once did he
entertain questions as he went from plant to plant to
address all employees in groups of 20 or so.) William
Stricklin and Billy Shockley said that he did. They named
Glen Knowles as the employee who asked the question.
Duchinsky denied he used the phrase in answering Knowles.
Respondent called Knowles, apparently in an effort to
corroborate Duchinsky. However, Knowles' testimony
helped neither side for his response to the key question was
merely that he did not recall and his recollection of the
incident was hazy. I credit Stricklin and Shockley over
Duchinsky.
The sum total of the evidence as to the context in which
Duchinsky referred to bargaining from scratch is as
follows. Stricklin's version:
Q. Do you recall any particular questions that were
asked and by whom?
A. One question in particular was Glen Knowles
asked him when or something about where do we start
negotiating and how long.
Q. Who is he?
A. Glen Knowles asked Mr. Duchinsky and Mr.
Duchinsky said we would start from scratch and,
therefore, we would be negotiating up through July.
Shockley's version:
Q. At the end of his speech in chief, if you want to
call it that, was there-then what happened?
A. Well, Mr. Knowles asked him if the union gets
in, where would we start negotiating from. Bernie said
from scratch. I believe that is about the last thing that
he said.
The only conclusion I can draw from this testimony is
that Duchinsky's remark cannot be taken as a threat either
to unilaterally discontinue existing benefits prior to negoti-
ations or to adopt a regressive bargaining posture designed
to force a reduction of existing benefits for the purpose of
penalizing employees for choosing collective representa-
tion. Rather, its thrust is that the mere designation of a
union will not automatically secure increases in wages and
benefits and that all such items are subject to bargaining. I
find, therefore, that Respondent did not violate Section
8(a)(1) of the Act by Duchinsky telling "employees that in
case of unionization, Respondent would start negotiating
'from scratch.' " Coach and Equipment Sales Corp., 228
NLRB 440 (1977), and cases cited therein.
2. By Vice President John Oxley
Vice President John Oxley also addressed all of Respon-
dent's employees in small groups as part of Respondent's
preelection campaign. He made the rounds of Respon-
dent's plants on January 4 and 5. He gave this speech:
Good Morning:
I want to spend just a few minutes with you talking
about the National Labor Relations Board election that
is scheduled for January 14th. I understand that I'm
not the first company official that has had to stand
before you and talk about this particular subject. I
think, however, that I can bring to bear a few new ideas
and personal thoughts of my own since I am sort of a
newcomer to the Intertherm team. I think, therefore,
that I can stand back and take a different sort of look at
this whole situation.
I am shocked and amazed to learn that we are going
to have a union election. There were a lot of things
about this Company that disturbed me when I came
here. Its operating efficiency was not what it should be.
Its methods of doing business were, in a lot of cases,
not what they should be and its ability to meet our
competitors in a direct open contest was not what it
should be. But the thing that did impress me was the
personnel policies and practices which we have here at
this Company. If anything should be obvious to any
person sitting in this room, both me and you, it should
be that this Company has done a damned fine job of
trying to meet the economic and other needs of its
employees. We have shortcomings and that is one of
the reasons I am here, but there is a lot of good about
this Company and one of the positive areas is in the
area of wages and benefits.
In short, I cannot possibly understand from what I
have seen why any employee here feels that he needs a
union. I don't see any major issue as I look around this
701
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Company. I don't see people coming up to me and
saying Jack, we're firing people that shouldn't be fired
or I got cheated out of a wage increase or that the
Company is not being fair with its employees in its
communications meetings. I don't hear any of this.
What I'm afraid has happened is that a small group of
malcontents, employees who like to gripe to bring
attention to themselves, are simply trying to involve
you, everyone of you and your future and your job
security, in something just to create attention.
If I were you I would give a lot of thought to that. I
know that some employees will run to a union for many
reasons, whether it is to bring attention to themselves or
because they are in hopes of getting some shop
steward's job or whatever. But if I were one of the other
ninety five percent of you, who were not in that
category and who recognized that this Company,
despite its shortcomings, does have a great future if we
pull together and that despite the fact we have had
problems in the past, your wages and benefits have
more than remained competitive, I'd give serious
thought to whether or not it is in your best interest to
get on that sort of bandwagon.
Unions have no magic to them. I have dealt with
unions for twenty years and I have dealt with the
United Automobile Workers, I've dealt with the Ma-
chinists, the Steelworkers and the Brotherhood of
Electrical Workers. In all of that time I have never
known wages and benefits to be determined by any
means other than comparison with similar sized and
kinds of operations in the area in which the company
was located. That's the method we have now, so why
you would want to pay union dues, be subject to union
control and bring something in here that represents an
unknown for the future is simply beyond me.
As I said, there is no magic in unions. If a company
is competitive, if it manufactures a good product in an
efficient and productive way, there is going to be job
security whether you have a union or whether you do
not. I have dealt with a number of unions in which I
have had to shut down plants, or move them elsewhere.
I've sat at the bargaining table and told an internation-
al union that you'll either have to agree to the
company's position or we'll shut the plant down. They
didn't believe me and we shut the plant down. These
are not threats, these are simply facts showing what I
think all of you really understand. Whether you have a
union or whether you do not have a union, a company
must remain competitive and it must grow if it is going
to succeed.
For the first time in a long time, Intertherm is going
to show a profit in 1976. But I would also tell you that
I'm still concerned because one year of operating at a
profit does not put us in the best of positions. In 1977 if
we only equal 1976 we will only have about one half of
the profits that we have in 1976 because of some
adjustments in the Federal income tax. While there
were a great many things to be thankful about in 1976,
there were some things that were not so cheery.
Furnaces operated at a loss and there was no payout to
shareholders in 1976. You and I must work together to
try to correct all of these things and let me tell you why.
What if you invested in Intertherm and put in a
thousand dollars, or two thousand dollars, or twenty
thousand dollars, as a shareholder in this Company.
You would expect some return on your investment just
like you expect the bank to pay you interest on your
savings account. If you didn't get it, would you
continue to buy Intertherm stock or would you sell it?
The answer is pretty obvious. We are going to have
to start making profits so we can pay our shareholders a
return on their investment or they are not going to stay
with their investment in Intertherm. The question I
would be asking yourself is this. Can you and I work
better together, more harmoniously together, more
efficiently together, to try to correct that situation with
or without the UAW? I think here you only have to
look to the old expression that too many cooks spoil the
broth to see the answer. I believe that you and I can do
a better job of meeting not only the needs of our
employees but of our investors if we work together
without the UAW in the picture trying to tell us both
how to run our affairs.
Let me give you an example of where I believe the
UAW has hurt job security of its own members. And
for that you only have to turn to Detroit, the home of
the UAW. Because of the silly union practices and the
restrictive work rules that don't benefit the employees
but do cost the Company hundreds of thousands of
dollars, the tool and die industry in Detroit which used
to be gigantic is practically nonexistent. Look at the
automobile industry: For the first time in its history
General Motors is putting plants outside of major
metropolitan areas and attempting to run those plants
without the union. Why? Because General Motors is
finding that it just cannot compete in the market place.
Its built its seventh plant in the south recently and Ford
Motor Company is now importing a Brazilian engine
and expanding its Mexican operation in order to try to
compete in the market place.
In fact, I was reading an article in Automotive
Magazine and it points out, and I am quoting them,
"The UAW has helped to kill the Detroit tool and die
industry, largely to the union's detriment." It was
pointed out that in 1956 there were fourteen thousand
tool and die workers affiliated with the UAW in the
Detroit area and "today that number is three thou-
sand."
These are some of the reasons why I believe that
your Company deserves a "No" vote in the election. I
think it is in your best interest. I believe a "No" vote
will help us preserve the situation we have now which
gives this Company the freedoms, the flexibility, the
management rights to take quick and positive correc-
tive action to try to get around some of our problems.
I'll tell you one thing, if we didn't have that right in
1974 and 1975 when this Company was undergoing a
drastic economic condition, this Company would not
be here today.
I believe that we have a better ability to function if
we do not have a union and I believe that ability to
function goes directly to the benefit of every man and
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INTERTHERM, INC.
woman sitting in front of me today. Sure, we had some
hard times. I understand that two, three years ago you
folks had to accept some wage increases that were not
the greatest in the world but the Company made it, it
was able to be responsive, it was able to have the
freedoms and flexibilities to keep its head above water
and that has benefited everyone of us here today.
I've gone on long enough but I did have some of
these personal ideas and thoughts that I wanted to pass
on to you. I'm around the plant a lot as all of you know
and I want to answer your questions. If you have
questions on your mind about this union situation,
discuss them with your foreman or stop me as we go
through and we'll get you answers. We want all of you
to be informed. We want all of you to have the
necessary facts in front of you so that you can make the
right decision when you vote on January 14.
Thank you very much.
The General Counsel contends that the sixth paragraph
contains a threat of plant closure in the event Respondent's
employees opt for collective representation. Respondent
contends that, in context, the paragraph contains a reason-
able prediction of events beyond Respondent's control in
the event they go union. I have reproduced the entire
speech so as to set forth the total context. I agree with the
General Counsel. I find, therefore, that Respondent, in the
person of John Oxley, violated Section 8(a)( 1) of the Act by
threatening employees with plant closure in the event they
selected the Charging Party as their collective-bargaining
representative. Russell Stover Candies, Inc., 221 NLRB 441
(1975), and Marathon LeTourneau Company, 208 NLRB
213 (1974).
III. THE OBJECTIONS TO THE ELECTION
The Charging Party's objections to the election in Case
14-RC-8330 (at least those that have been referred to me)
are the same as some of the 8(a)(1) allegations in the
complaint in Case 14-CA-9980. I have found that, during
the period between the filing of the petition on December
15 and the election on January 14, Respondent violated the
Act when General Foreman Alvin Frost threatened to
discharge Eugene Smith if he did not remove union
insignia, when Foreman Carl Sandbothe covered union
insignia being worn by Glenwood Gilliam, and when Vice
President John Oxley threatened all the employees with
plant closure in the event the Charging Party won the
election. The first two incidents were too limited in their
impact on this multiplant election to require a new election.
The last, however, was a threat of vital significance which
was repeated in all four plants to all 400-plus employees.
Because of it, I recommend the election of January 14,
1977, in Case 14-RC-8330 be set aside and a second
election held at such time as the Regional Director deems
appropriate.
Upon the foregoing findings of fact, and upon the entire
record in this proceeding, I make the following:
CONCLUSIONS OF LAW
I. Intertherm, Inc., is an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
2. International Union, United Automobile, Aerospace
& Agricultural Implement Workers of America (UAW), is
a labor organization within the meaning of Section 2(5) of
the Act.
3. By threatening an employee that his union activities
were inconsistent with continued employment with Re-
spondent, by interrogating employees about their union
activities and threatening them with reprisals, by threaten-
ing employees with discharge if they did not remove or
cover union insignia, and by threatening employees with
plant closure in the event they selected a collective-bar-
gaining representative, Respondent has violated Section
8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The allegations of the complaint that Respondent
violated Section 8(aX 1) of the Act by conduct not found to
be violative in paragraph 3 above have not been sustained.
6. The allegations of the complaint that Respondent
violated Section 8(aX3) and (1) of the Act by suspending
Arnold Harris on January 19, 1977, and discharging him
on January 21 have not been sustained.
[Recommended Order omitted from publication.]
703