Kokomo Tube Co.

National Labor Relations Board - Board Decisions

Jun 16, 1986

280 N.L.R.B. 357 (N.L.R.B. 1986)

KOKOMO TUBE CO.
Kokomo Tube Company and United Steelworkers of
America, AFL-CIO-CLC. Cases 25-CA-16543
and 25-RC-8036
16 June 1986
DECISION, ORDER, AND
CERTIFICATION OF RESULTS OF
ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 27 June 1985 Administrative Law Judge
Harold Bernard Jr. issued the attached decision.
The Respondent filed exceptions and a supporting
brief, and the General Counsel filed a brief in sup-
port of the judge's decision.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge's rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.
For the reasons stated in his decision, we adopt
the judge's findings that the Respondent, through
its supervisors Shriver and Cline, interrogated em-
ployees Broke and Binkerd and threatened them
with plant closure in violation of Section 8(a)(1) of
the Act. We also affirm his finding that the Re-
spondent's announcement and grant of an across-
the-board 25-cent "merit" wage increase to its em-
ployees in April 1984 violated Section 8(a)(3) and
(1) of the Act.2 As discussed below, in agreement
with the judge, we find that the Respondent grant-
ed the increase to undermine the union organizing
campaign.
The record shows that for several months prior
to April 1984 there were rumors of union activity
circulating among the employees in the Respond-
ent's plant. General Manager Huskins admitted that
he was aware of these rumors. The judge found
that these rumors were converted into open activi-
ty on 24 April when union officials appeared at the
Respondent 's main gate and distributed 80 to 85
handbills announcing a union meeting on 26 April.3
i The Respondent has excepted to some of the judge 's credibility find-
ings. The Board 's established policy is not to overrule an administrative
law judge 's credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect Standard Dry
Wall Products, 91 NLRB 544 (1950), enfd 188 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
8 The judge inadvertently omitted his 8(a)(3) finding from his Conclu-
sions of Law . We shall amend them accordingly
8 The judge found that the Respondent was aware of this activity
based on employee James Wagner 's testimony that he saw one of the Re-
spondent's supervisors , William Downhour, carrying a handbill into the
357
On the day of the union meeting, General Manager
Huskins announced the wage increase at a plant
meeting.
In excepting to the judge's finding that the in-
crease was motivated by the union activity, the Re-
spondent argues that it had granted wage increases
in every year but one since 1975; that these in-
creases were always granted in April; and that
General Manager Huskins' comments to employees
had committed the Respondent to grant an increase
in April 1984. We find the Respondent's arguments
unpersuasive.
As found by the judge, although the Respondent
had a history of granting annual wage increases,
they were always based on profitability. The
record indicates that between 1975 and 1982, when
the Respondent showed an annual4 profit, it grant-
ed a wage increase, but in 1983 when the Respond-
ent showed a loss, no increase was granted. Yet, in
1984 when the Respondent admittedly again
showed a loss, it granted an increase. While the
Respondent contends that its decision was based on
the employees' overall good performance (i.e.,
"merit") rather than the union campaign, General
Manager Huskins admitted that the Respondent
had never before granted such an increase. Fur-
thermore, all prior increases were effective during
the first week of April of each year. In 1984, how-
ever, the increase was not announced until 26 April
and was not effective until 30 April. Although the
Respondent contends this delay was necessary be-
cause it was waiting to see its March financial
report, the Respondent admits it ultimately an-
nounced the increase without having seen the
report. Finally, far from committing the Respond-
ent to grant a wage increase in April, General
Manager Husking testified that he merely told the
employees that he had recommended a raise to top
management.5
plant . The judge discredited Downhour's denial that he had seen any
handbilling before the petition was filed on 2 May, and that he had ever
carried a handbill into the plant , based in part on his following testimony:
Q How do you know the handbills were handed out after the pe-
tition?
A It's impossible for me to put a specific date on the passing out
of the handbills.
Q You testified because that 's the, that's when the petition was
filed That 's what you were told to testify , right? Answer yes or no
A Yes.
Pursuant to the General Counsel's motion and his own recollection, the
judge corrected the above testimony so that the General Counsel 's latter
question read , "You testified because that 's the company line , that's when
the petition was filed ." The Respondent excepts to the judge's ruling. We
find it unnecessary to pass on the judge 's ruling insofar as Downhour's
uncorrected testimony above clearly manifests his unreliability as a wit-
ness
4 Contrary to the judge , we have found no evidence in the record that
the Respondent showed a "monthly" profit from 1975 to 1982
5 Chairman Dotson notes that, while he agrees with his colleagues that
the preelection wage increase violated Sec 8(a)(3) and ( 1), he does not
Continued
280 NLRB No. 35
358 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
We do not affirm, however, the judge's fmding
that the election should be set aside as a result of
the Respondent's unfair labor practices. 6 The judge
recommended setting the election aside based on
the following unfair labor practices which he found
occurred during the critical period: (1) the unlaw-
ful wage increase; (2) Supervisor Shriver's coercive
interrogation and threat of plant closure to employ-
ee Broke; and (3) Shriver's separate threat of plant
closure to employee Binkerd. For the reasons dis-
cussed below, we find that these unfair labor prac-
tices do not warrant setting the election aside.
It is undisputed that the wage increase was both
announced and effective before the petition was
filed. Accordingly, contrary to the judge, we find
that the wage increase occurred before the critical
preelection period and, under the Board's long-
standing Ideal Electric7 rule, cannot serve as a basis
to set aside the election.8
Second, the record also does not support the
judge's finding that Shriver's interrogation and
threat of plant closure to employee Broke occurred
postpetition. In so finding, the judge cited Broke's
testimony that the conversation had occurred 2
weeks after the 26 April meeting where Huskins
announced the wage increase. Broke's testimony in
this regard is ambiguous at best, however, as
shown in the following exchange:
Q. Now when did this conversation take
place in regard to the last meeting with Mr.
Huskins?
A. A couple of weeks after, a week or two.
Q. When was that?
A. In April.
agree with their analysis. As he has stated on previous occasions, a
proper analysis of a preelection benefit must first examine whether the
General Counsel established a prima facie case of unlawful motivation,
before examining the Respondent 's proffered justifications for granting
the benefit. See Adams Super Markets, 274 NLRB 1334 (1985) Here, the
Chairman finds, based in part on the Respondent 's contemporaneous vio-
lations, that the General Counsel made a prima facie showing that the
wage increase was unlawfully motivated Further, for the reasons out-
lined by his colleagues , he agrees that the Respondent failed to rebut that
showing
6 The election was conducted pursuant to a Stipulated Election Agree-
ment The tally of ballots shows 35 for and 40 against the Union, with 2
challenged ballots, an insufficient number to affect the results
Ideal Electric & Mfg Co., 134 NLRB 1275 ( 1961).
We reject the judge 's conclusion that the Board in Scott Glass Prod-
ucts, 261 NLRB 906 (1982), modified the Ideal Electric rule to allow con-
sideration of a prepetition wage increase which is not actually received
by the employees until after the petition is filed In Scott Glass not only
did the employees receive the increase postpetition, but the effective date
of the increase was postpetition In Ideal Electric , and here, while the em-
ployees received the increases during the critical period , the increases
were both announced and effective before that period Moreover, con-
trary to the judge, we do not believe a different result is required simply
because the Respondent referred to the wage increase in a postpetition
letter to the employees The letter on its face is innocuous-listing all
wage increases since 1975 with no special emphasis on the 1984 in-
crease-and the letter is not specifically alleged by the General Counsel
or the Union, or found by the judge, to be unlawful or objectionable
Further, Broke earlier testified that his conversa-
tion with Shriver occurred before his similar con-
versation with Supervisor Cline, which Broke ad-
mitted and the judge found occurred in April. And
at still another point in his testimony, Broke testi-
fied that the Shriver conversation occurred between
two union meetings, both of which were in April.
Based on this testimony, contrary to the judge, we
are unable to conclude that this conversation oc-
curred during the critical period. Accordingly, this
conversation cannot serve as a basis to set aside the
election.
Third, in our view, Shriver's remark to employ-
ee Binkerd in mid -May that "I guarantee Kokomo
will shut down if the Union comes in" is not alone
a sufficient basis to set aside the election. There are
75 to 80 employees in the unit and there is no evi-
dence that Shriver's remark was disseminated.9
Further, the conversation occurred over a month
before the election. Under these circumstances, we
are unable to conclude that this single incident af-
fected the results of the election.1 ° Accordingly,
we find that a certification of results of election
should be issued.
AMENDED CONCLUSIONS OF LAW
Substitute the following for Conclusions of Law
3 and 4.
"3. Respondent violated Section 8(a)(1) and (3)
of the Act by announcing and granting to employ-
ees a wage increase in April 1984 in order to dis-
suade them from supporting the Union, and Section
8(a)(1) by engaging in unlawful interrogation of
employees and by threatening employees with
plant closure if they voted for the Union.
"4. Respondent's unfair labor practices do not
constitute objectionable conduct warranting that
the election conducted on 22 June 1984 be set
aside."
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Kokomo
Tube Company, Peru, Indiana, its officers, agents,
successors , and assigns , shall take the action set
forth in the Order.
a Contrary to the judge , we will not presume dissemination of Shriv-
er's remark Nor, contrary to our dissenting colleague , are we persuaded
that dissemination can be inferred from the circumstances of this case
10 See Metz Metallurgical Corp, 270 NLRB 889 (1984)
KOKOMO TUBE CO. 359
CERTIFICATION OF RESULTS OF
ELECTION
IT IS CERTIFIED that a majority of the valid bal-
lots have not been cast for United Steelworkers of
America, AFL-CIO-CLC, and that it is not the
exclusive representative of the bargaining unit em-
ployees.
MEMBER JOHANSEN, dissenting in part.
Contrary to my colleagues, I would set aside the
election in this case based on Shriver's postpetition
remark to employee Binkerd that he could "guar-
antee" that the Respondent would close the plant if
the Union won the election. Although there is no
direct evidence that Shriver's remark was relayed
to other employees, I would infer dissemination in
the circumstances of this case. Shriver's remark
constituted a serious threat, effectively warning
that not only Binkerd but all employees would lose
their jobs if they voted for the Union. The judge
also found that Shriver made his remark after
handing Binkerd a company letter describing the
recent shutdown of two competitors due to, inter
alia, "high labor cost." The testimony of both
Shriver and Cline indicates that they handed this
letter out to other employees as well.' Further,
while the unit was relatively large, the Union lost
the election by only five votes. Under these cir-
cumstances I cannot conclude that Shriver's
remark was de minimis. Accordingly, I would
direct a new election.
1 Cf Crompton Co, 272 NLRB 1121 (1984) (inferring dissemination of
supervisor 's unlawful threats since supervisor admitted conversing with
all employees under his supervision about pending election , despite lack
of evidence that supervisor repeated threats in those conversations)
Robert E. Hayes, Esq., for the General Counsel.
George H. Baker, Esq., of Indianapolis, Indiana, for the
Respondent.
DECISION
STATEMENT OF THE CASE
HAROLD BERNARD JR., Administrataive Law Judge. I
heard this matter 27 November 1984 in Peru, Indiana, on
complaint allegations consolidated for hearing with iden-
tical representation election objections alleging that Re-
spondent had engaged in interrogation, threats of plant
closure, and the grant of a wage increase to employees in
violation of Section 8(a)(1) and (3) of the Act, warrant-
ing appropriate remedial action as well as an order set-
ting aside the election results in Case 25-RC-8036.11
On the entire record, 2 including the demeanor of the
witnesses and briefs filed by the parties, I make the fol-
lowing
FINDINGS OF FACT
1. JURISDICTION
Respondent, an Indiana corporation engaged in the
manufacture of steel tubing in Peru, Indiana, is admitted-
ly an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act, and it is so
found. Further admitted and found is that the Union is a
labor organization within the meaning of Section 2(5) of
the Act.
II. THE UNFAIR LABOR PRACTICES
A. The Wage Increase
1. Background
Aside from germane references to background matters,
the timespan within which relevant events occur is from
July 1983 through June 1984.
Respondent's steel tubing manufacturing operations,
employing at times some 75 or 80 production , mainte-
nance, and truckdriving employees, showed a monthly
profit annually from 1975 to 1982, and Respondent grant-
ed wage increases, in varying amounts based on individ-
ual and different job classifications, to its employees each
of those years in the month of April. (G.C. Exh. 2.)
However, after early 1982, as described by General
Manager Gene Huskins, there ensued an unprofitable
period extending through 1983 and no April wage in-
crease was granted to employees that year, 1983.
2. Employee union activity and Respondent's
knowledge
Manager Huskins testified that he heard employee talk
about dissatisfaction and that a union might help the situ-
ation from July 1983 onward. He denied knowing about
any union "activity"-organizational drives-until 2 May
1984, describing what he heard beforehand as union talk
and rumors going around for several months. The record
reflects a good bit more than talk and rumor entailing
employee activities was occurring and was known to Re-
spondent prior to 2 May 1984. Thus, employee Bruce
Binkerd testified that in mid-April 1984 his Supervisor
Scott Shriver, in a conversation discussed further below,
told Binkerd he heard there was a union trying to orga-
nize and asked him why he thought a union ought to
come in. Shriver did not recall such a conversation.
Randy McKay, a Steelworker local union president, tes-
tified that he and an International union representative
and two other members in the local union distributed
union pamphlets to employees at the main gate to Re-
spondent's plant on 24 April 1984-handing out some 80
to 85 pamphlets between 2 and 4 p.m. The pamphlets an-
nounce a meeting at the union hall on 26 April "to
Answer All Your Questions, Concerns, and Fears Con-
1 The tally showed 35 votes cast for the Petitioner and 40 against.
(G.C Exh 1(g) ) 2 The General Counsel' s motion to correct the transcript is granted.
360 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cerning Your Efforts In Becoming a Member of the
United Steelworkers of America." (G.C. Exh. 5.) McKay
further testified that there had been a union meeting ear-
lier, before the 26 April meeting, for midnight and day-
shift employees at which the Union received between 25
to 30 signed authoriation cards from Respondent's em-
ployees. The parties stipulated that the first union au-
thorization card signed by an employee was signed on 16
April.
Employee James Wagner testified that he saw Supervi-
sor William Downhour with a pamphlet (G.C. Exh. 5)
during the 24 April union handbilling while Wagner was
leaving the plant and Downhour was entering. Down-
hour recalls that the Union handed out pamphlets at the
plant on two occasions but could not recall the dates.
Downhour, however, asserted without supporting clarifi-
cation that the date "would have been after 2 May" after
further questioning by Respondent's attorney. On cross-
examination Downhour admitted he had placed this date
when the handbilling took place as after 2 May-the
date the Union's petition was filed, because that "was the
company line." Furthermore, although Downhour, when
first questioned about whether he had carried a union
handbill into the plant responded, "I do not recall," and
again testified during recross-examination that he did not
recall doing so, next testified he had never carried a
handbill into the plant, erroneously asserting that this
was his testimony only moments earlier. Based on
Downhour's admittedly rehearsed and biased account,
his hostile demeanor, and the manifested unreliability in
his recollection, his disclaimer is not credited and Wag-
ner's account, straightforwardly rendered, is relied on.
Supervisor Randy Cline testified he had a conversation
with employee Mike Broke about things going on in the
plant in late April toward the beginning of May 1984 in
which Broke said he thought outside help was needed as
he could not relate to Huskies . Cline wondered aloud if
there was any reason why Broke could not go on a one-
on-one basis with Huskins and keep it inside the plant,
recalling that Broke said employees needed something
from an outside source to help them. Supervisor Cline
admitted on cross-examination that these questions and
answers related to the Union, and that there was "quite a
bit" of talk going around the plant regarding the Union
in April and early May, including discussions between
Cline and his fellow supervisors.
I consider that the openness of the employees' union
activities in and nearby the plant, wherein supervisors
and employees discussion concerning employee union ac-
tivities occurred from July 1983 throughout the ensuing
12 or more months, and including union campaign efforts
also known to Respondent 's supervisors are compelling
reasons to conclude Respondent had actual knowledge
whether considered direct or imputed concerning em-
ployee union activities prior to its grant of a wage in-
crease on 26 April.3 Collins & Aikman Corp., 187 NLRB
8 Huskin's denial that he had ever seen the pamphlet distributed by the
Union on 24 April until after the Union filed its petition on 2 May is im-
material given his admission that he knew about employee union talk
from July 1983 onward-as did his plant supervisors-and given supervi-
sory knowledge concerning the handbilling , which is properly imputed
from Supervisor Downhour to Respondent Moreover , an obvious eager-
620, 625 (1970); Omsco, Inc., 273 NLRB 872 (1984), and
Kimball Tire Co., 240 NLRB 343, 344 (1979).
As admitted by Huskins, Respondent's policy in this
regard, that is, union representation, held that employees
did not need representation as problems could be con-
trolled internally and therefore Respondent wanted to
avoid being unionized "within the framework of the
law."
3. Respondent 's past practice of wage increases
As noted above, Respondent had granted employees
yearly wage increases during profitable periods, 1975
through 1982 measuring out different increases to differ-
ent job classifications, such as foundry pourers, whose
rates rose from a 1975 level of $4.50 to a 1982 level of
$7.61; welders A $4.90 to $9. 11, and maintenance A ma-
chine A $5.15 to $9.11.
No raises were paid in 1983 following a profitless
period after early months of 1982-said profitless period
(except for a small improvement in January 1984) con-
tinuing through 1983 and the events described herein in
1984.
In January 1984, during a monthly information meet-
ing with plant employees, Huskins told them it was too
early to make a committment , yes or no, regarding a
wage increase because a wage increase was tied to prof-
itability, and he had not seen the numbers to warrant
concluding there was a profit in company operations. He
testified, however, that in other January discussions, with
Owner Michael Kral and Ron Pflueger , he recommend-
ed, "[W]e give them a raise based on what I'd seen, they
were going for my program starting in November, per-
formance level being high." No authorization then
ensued.
In a later employee meeting in March , Huskins told
employees he had recommended "the increase" to top
management and would not discuss it until the April
meeting. He testified to March discussions with Kral,
who was the person who had to give the green light, in
which Kral, "was still saying from our financial state-
ment to look at March." Although February figures
showed a break-even performance, Huskins stated he
considered that good because shipments had been cur-
tailed by bad weather.
On 16 April Huskins again met with employees and in-
formed them he had recommended a raise to Kral but
that Kral was still waiting for the "financials" to come
in; and as soon as Huskins found out what they were he
would get back to them. Huskins then testified that there
ness to deny Respondent 's knowledge concerning the union campaign
arises on Huskins' part from his testimony that the New York-based
owner did not have knowledge concerning such union campaign-to
Huskins' knowledge because either he or another plant official, Vice
President Ron Pflueger , would have had to have told the owner Yet nei-
ther the owner nor Pflueger was called on to testify Huskins was not
shown to be in any position to say what the owner did not know , nor did
he explain how or even whether he knew what Pflueger knew concern-
ing these events , or even what Pflueger may have, or not have, told the
owner This left the Respondent's denial of knowledge unsupported and
unpersuasive, as did Huskin's weakly rendered response to the question
whether he was aware of any union activity before 2 May which would
include the Union's 24 April 2-hour long handbilling under the quise of
company office persons, that "[not] to my knowledge "
KOKOMO TUBE CO.
were daily discussions going on among him, Pflueger,
and Kral at this time , with Huskins informing Kral and
Pflueger it was imperative that Respondent grant employ-
ees an increase because the performance level was so
much better. There is nothing in the record to support
the imperativeness or urgency behind the alleged daily
meetings on this subject, especially as Huskins testified
the improved performance had been evident since he as-
sumed the position of manager in November 1983, other
than the accelerated pace in employee efforts to secure
"outside" representation, and the Union' s campaign, dis-
cussed below. Moreover, I consider Huskins' account of
"daily discussions" unsupported, self-serving exaggera-
tion.
In any event, the 16 April meeting was followed by
still another meeting among Huskins , Kral, and Pflueger
in which Huskins allegedly sought a wage increase based
on employee performance and because the Company had
been doing "much better" since November 1983.
On 24 April the Union handbilled the plant announc-
ing a meeting for employees to be held on 26 April.
On that day, 26 April, after only 1 day had elapsed
since the handbilling, Huskins announced to employees
in a plant meeting an immediate across-the-board merit
wage increase of 25 cents an hour for all plant employ-
ees, which employees received on 6 May, 4 days after
the union petition was filed on 2 May. This was the first
time in the Company's history that employees received a
merit increase, nor was there provision for any such type
increase in the Respondent's employees personnel hand-
book.
During his testimony, Huskins admitted that, in fact,
the March figures showed a loss, notwithstanding which
the wage increase, earlier tied to profitability so far as
the employees were informed on numerous occasions
(and also, it should be noted, as reportedly told to Hus-
kins by Kral), was granted. Huskins, further, was unable
to say when he received the March figures but was as-
sertedly sure he did not know what the March figures
were when the increase was announced. Manifestly, it is
difficult to believe this assertion, given the fact that a
wage increase was repeatedly tied to profitability by
Huskins and Kral, and thus it is reasonable to suppose
references to that question would have been made be-
forehand, unless the Union's campaign handbilling influ-
enced a change in plans , because no other reason appears
present for the unprecedented action swiftly timed on
the heels of the Union's activity. Huskins admitted that
one of the reasons for March's poor result was "some of
the performance levels not being where they should in
certain areas," so that neither a profit basis for the in-
crease, or the so-called all around "much better perform-
ance" materialized in March, yet the wage increase was
granted.
Further, on this pivotal inquiry into Respondent's
motive, Respondent offered only Huskins' testimony that
Owner Kral told him on 26 April to go ahead and give
an increase if he felt Huskins had "this thing on the road
to recovery or stablized." Yet Huskins had allegedly
been telling Kral that this was the case since November
1983. Neither Kral nor Pflueger, the former with author-
ity to give Huskins the green light, was offered to testify,
361
though it was Kral who decided to grant the unheralded
merit increase and Pflueger, according to Huskins,
played a significant role in the discussions leading to the
decision. Even under Huskins' uncorroborated account,
no reason for the timing of the announcement so near
heightened union activity is advanced, and no reason is
even attributed to Kral's decision-making why the earlier
criteria of profitability or even a look at the "financials"
for March are both suddenly jettisoned for an immediate
merit increase on 26 April.
In my view, Respondent failed therefore to show that
the timing or announcement of unprecedented grant of a
merit wage increase across the board on 26 April, admit-
tedly a departure from its past policy and made during
the Union's organization effort, was tied to economic
considerations related to legitimate business concerns,
rather than as a tactic to influence employees to reject
union representation. Respondent failed to "show by ob-
jective evidence that it would have made the same grant
or announcement of benefits had the union not been
present." Village Thift Store, 272 NLRB 572 (1984). As
such, this action violated Section 8(a)(1) and (3) of the
Act as the merit increase unlawfully interfered with the
exercise of rights of the Respondent's employees under
Section 7 of the Act to choose or reject such representa-
tion free from improperly discriminating influence. Scott
Glass Products„ 261 NLRB 906, 910 (1982), Allied Letter-
craft Co., 272 NLRB 612 (1984), and Simpson Electric
Co., 249 NLRB 148, 152, 153 (1980).
Lending further authority to this finding and flowing
from Respondent's failure to produce or explain the ab-
sence from the witness stand of Owner Michael Kral,
who had the best knowledge about the reason why the
merit increase was granted, is the established legal maxi-
mum that the production of weak evidence (Huskins' ac-
count of why Kral granted the increase) when strong is
available but unexplainedly not produced warrants the
inference that the strong (Kral's own account) would
have been adverse. Goodyear Tire Co., 271 NLRB 343
(1984), citing Martin Luther King Sr. Nursing Center, 231
NLRB 15 fn. 1 (1977), Certified Service, 270 NLRB 360
(1984); G.C. Murphy Co., 223 NLRB 604 (1976), enfd.
550 F.2d 1004 (4th Cir. 1977), and Interstate Circuit Inc.
v. United States, 306 U.S. 208, 226 (1938). Equally cogent
is the unexplained failure on Respondent's part to
produce the vice president, who played a major role in
the decision-making either to explain matters or corrobo-
rate Huskins' account. Collins & Aikman Corp., 187
NLRB 620, 626 fn. 30 (1970), and cases cited.
Additionally, I cannot rely on Huskins' testimony
about why Respondent granted this wage increase, be-
cause it was Kral who did so, not Huskins, and Kral did
not testify concerning the reason he authorized the in-
crease-nor did the other management official equally as
knowledgeable as Huskins concerning events-if not
more so because he was Respondent's vice president.
Consequently, for these additional reasons, I conclude
Respondent has failed to present a satisfactory explana-
tion or carry its burden of proving the increase was not
tied to the union campaign and union activities of its em-
ployees, namely, that Huskins' account , sometimes exag-
362 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
gerated and unsupported by events and therefore not al-
together reliable or controlling, however evaluated in
terms of credibility, is simply insufficient to establish Re-
spondent 's motive for the wage increase was lawful, as it
was Respondent's duty to do.4 (Cases cited above.)
4. Whether the unlawful wage increase is a basis to
set aside the election results
The Respondent granted the unlawful wage increase
on 26 April 1984, several days before the election peti-
tion was filed on 2 May and employees received the in-
crease on 6 May; consequently, Respondent argues, such
wage increase occurred before the critical preelection
period and therefore cannot serve as a basis to set aside
the election results and conduct a second election. Re-
spondent correctly states the Board's general rule. Micro
Met! Corp., 257 NLRB 274, 280 (1980); and Ideal Electric
& Mfg. Co., 134 NLRB 1275 (1961). However, it is
equally well established by Board law that events occur-
ring prior to a petition for election being filed can be
considered in determining whether a party has engaged
in objectionable conduct when such events give meaning
and dimension to events occurring within the critical
period after the petition is filed. Blue Bird Body Co., 251
NLRB 1481 fn. 2 (1980), Parke Coal Co., 219 NLRB 546,
547 (1975), and Dresser Industries, 242 NLRB 74 (1979).
Thus, the unlawful nature of the grant of the wage in-
crease here-or announcement of it on 26 April if you
will-can be considered when evaluating the payment or
receipt of it by employees in their paychecks on 6 May
and thus this postpetition event considered as the actual
fruit or product of a benefit unlawfully designed before-
hand may be considered as objectionable conduct. But,
Respondent argues, the Ideal Electric decision, cited
above, stands for the proposition that it is the announce-
ment not the payment that it pivotal-a valid argument if
the resolution of this question were confined to a consid-
eration of the 1961 decision in Ideal Electric. Since then,
however, the law has developed further and the Board
has not only allowed a look at prepetition conduct to
better evaluate postpetition conduct, but has adopted the
view that "[t]he actual grant and payment of the raise
should properly be considered as a distinct violation, re-
lated to, but not merged with the violation of announc-
ing or promising the raise. Cf. Baker Bush Co., 233
NLRB 561 (1977)." Scott Glass Products, supra at 920 fn.
26. This being true, it is clear that the payment within
the period after the petition was filed in the instant case
"should properly be considered a distinct violation, relat-
ed to, but not merged with, the violation of announcing
... the raise." Doing so, it is clear, and I find, that such
payment constituted objectionable preelection conduct.
There is, moreover, an independent, yet further basis to
conclude this. In the Board's decision in United Foods,"
4 Kral, after all , was not an altogether "absentee" owner or disinterest-
ed about these events, for even if Huskins' account of "daily meetings"
by management on the subject of the wage increase is adjusted for infla-
tion , it is clear that Kral and his subordinates discussed the matter fre-
quently , it being clear Kral alone had the authority to give the "green
light" for the increase
5 170 NLRB 1489 (1968)
respondent had reached a decision found to be unlawful-
ly motivated to grant an increase before the filing of an
RC petition , but made later references to the wage in-
crease postpetition. The Board held such references
"constitute an independent basis supporting the Trial Ex-
mainer's finding, which we adopt, that Respondent en-
gaged in conduct requiring that the election be set
aside." 170 NLRB at 1490.
In this case-the United Foods decision-Respondent
abstained from paying the unlawfully generated increase
but its reference to its postpetition during the election
campaign sufficed to constitute a specific basis to set
aside the election. It follows by analogy to such decision
that here, when Respondent not only paid the unlawfully
granted wage increase employees, postpetition, but also
referred to it in communications with its employees post-
petition and before the election on 19 June, the week of
the election, in a widely distributed letter setting forth
the increase, and adverting to improvements possibly due
to employee cooperation without employees having to
pay union dues, that an even stronger case for finding
the Respondent's postpetition conduct objectionable is
present herein. (G.C. Exh. 2.)
B. The Threatened Plant Closing and Interrogation
Maintenance employee James Wagner, employed 8
years in Respondent's plant, testified that he and Mainte-
nance Supervisor William Barkhaus talked about the
Union frequently in the morning, when Wagner came in
during the "shifting"-during the morning, that the two
of them would sit around and the conversation about the
Union came up quite a bit, from the "beginning" and
"more frequent" towards the election. Wagner testified
that Supervisor Barkhaus told him Owner Michael Karl
could be stubborn, did not have to answer to the board
of directors or the Union if the he did not want to and
that "he could just shut the doors." Wagner testified that
Supervisor Barkhaus told him the employees at another
plant, Denment, which Wagner assumed was owned by
Kral-a fact which Huskins asserted during his testimo-
ny to be true (as did Barkhaus)-went out on strike and
Kral "did not want to mess with the union so he shut the
doors." Barkhaus could not recall the month of a con-
versation he had with Wagner which differed substantial-
ly from Wagner's account. However, in view of the fail-
ure of the Gerneral Counsel to elicit any date or even
approximation of time or period of time when the al-
leged talk occurred, it is obvious that no reliance can be
made thereon for purposes of this proceeding. Not only
is Wagner's testimony that he and Barkhaus had frequent
talks concerning the Union "from the beginning" and to-
wards the election meaningless for this purpose, but
Wagner was also simply never asked when the specifical-
ly described talk had taken place other than if he knew
the month.
1. Employee Binkerd and Supervisor Shriver
Employee Bruce Binkerd testified concerning two
conversations with his supervisor, Scott Shriver, one in
mid-April 1984 and the other closer to May. In the first,
Binkerd testified that Supervisor Shriver came to him
KOKOMO TUBE CO.
and asked, "Well, Bink , what's going on. I heard there
was a union trying to organize." Binkerd told Shriver
they were on company time and he would rather not
talk about it right then. Shriver, who had assigned Bin-
kerd his work for the evening, nevertheless followed the
employee to his work area and kept asking him why he
thought a union ought to come in, whereupon Binkerd
referred to the need to more effectively cope with wors-
ening safety conditions in the plant. Shriver did not
recall such a conversation with Binkerd, but did not
deny the described incident.
Binkerd at first placed the second conversation closer
to May and then corrected himself to "later on in the
month of May," more than likely accurate because the
talk revolved around a company letter to employees
dated 23 May 1984. Binkerd testified that Shriver
showed him the letter (G.C. Exh. 4), and told him to
read it, "right now." When the employee had finished
reading the letter which described the closing of oper-
ations by two competitors of Respondent due to, "Poor
business conditions, low volume, low prices and high
labor cost," Shriver asked the employee if he had any
questions and after Binkerd replied no, Shriver said, "I
guarantee Kokomo will shut down if the union comes
in." Binkerd told Shriver he "can't say that to me," and
Shriver then replied, "Well Kokomo could too."
For Respondent to meet the detailed particulars in the
testimony credibly rendered by Binkerd it behooved Re-
spondent to either break down the account in cross-ex-
amination or by a reasonably specific series of denials by
its own witness, Shriver, of the employee's testimony,
have the two versions meet head-on, leaving the determi-
nation of the facts to be based on a credibility resolution.
Respondent achieved neither-instead, Shriver could
merely not recall an April conversation with Binkerd as
the latter had described, whereupon Respondent had
Shriver describe how Binkerd had once come to him in
April and asked him about the Union, and so forth.
Regarding the second conversation, Shriver at first
placed it in April, a month before its actual occurrence
sometime in May after 23 May and was only able to cor-
rect himself after Respondent counsel led him. Further,
once again Respondent counsel did not meet the oppos-
ing witness' testimony head-on, that is, he did not ask
Shriver to admit or deny Binkerd's account but instead
went off in a different direction on his own asking Shriv-
er merely what the latter recalled concerning that con-
versation. After Shriver stated only that Binkerd had
asked him whether there was a possibility the Company
could close and Shriver said he said there was a possibili-
ty, counsel asked merely, "Anything else" and Shriver
stated "no."
I find that Binkerd's reasonably specific allegations in
his believably rendered accounts of both conversations
with Shriver called for some reasonable, specific re-
sponses on Shriver's part by way of denial rather than
vague references to, for all that fairly appears, uncon-
nected fragmented remembrances on Shriver's part of no
probative value as not demonstrated to be material to
Binkerd's testimony. I therefore credit Binkerd's account
and find that Respondent, via Shriver, unlawfully inter-
rogated Binkerd at his work area in mid-April 1984, and
363
that Respondent, also through Shriver, unlawfully threat-
ened Binkerd with a plant closing if the Union came in,
between 23 May and the end of that month, thereby vio-
lating Section 8(a)(1) of the Act.6
The finding of unlawful interrogation arises from the
fact that the context for Shriver's questioning of Binkerd,
who was not shown to be a known union supporter, indi-
cates a hostility by Shriver towards union represenation
manifested by his ignoring Binkerd's polite refusal to dis-
cuss the questioning during company time and following
Binkerd to his work station where he persistently contin-
ued the interrogation-all in a locale where by dint of
his superior position in the workplace Shriver's conduct
was coercive. Furthermore as discussed below, these is
evidence that Shriver engaged in interrogation of other
employees as well, and I do not believe Binkerd's re-
sponse-vaguely attributing the need for union represen-
tation to "safety concerns"-belies or negates any infer-
ence he might have feared reprisal. Dora! Building Serv-
ices, 273 NLRB 454 fn. 4 (1984). Cf. Crompton Co., 272
NLRB 1121 (1984).
The subsequent statement by Shriver to Binkerd that
he guaranteed that "Kokomo will shut down if the union
comes in" was made against the background of earlier
unlawful interrogation setting a plainly coercive context
for the express threat of a loss of employment for all em-
ployees should they vote the Union in-no ifs, ands, or
buts-and the effect of this threatened, unconditional
plant closing should the employees choose union repre-
sentation was not wholly ameliorated by Shriver's
amendment that "Kokomo could too" (close). I find the
threat was a calculated interference with employee Sec-
tion 7 rights. Donnelly Mfg. Co., 265 NLRB 1711 (1982),
and Western Waste Industries, 274 NLRB 175 (1985). It is
understandable why, as Binkerd testified, the words used
by Shriver, "I guarantee Kokomo will shut down if the
union comes in" would stick in his mind and, absent
proof to the contrary, it is reasonable to presume this se-
rious threat to employees' livelihood would be circulated
among employees throughout the plant. RJR Archer,
Inc., 274 NLRB 335, 336 (1985).
2. Employee Broke and Supervisors Shriver and
Cline
Employee Mickey Broke testified that 2 weeks after
the 26 April meeting in which the merit wage increase
was announced by Manager Huskins, he was at his work
area when one of his supervisors, Scott Shriver asked
him for his opinion concerning the Union. Broke, who
had 6 years' seniority, and was not shown to be a union
supporter, testified as follows, "He [Shriver] asked me
what my opinion was of the union, was I surprised. I
tried not to commit myself. He stated that it wouldn't,
between the union and the company, it wouldn't work
and things could get pretty tough and there was a possi-
bility that they could close their doors." Shriver did not
recall the above conversation, and testified he only re-
called "a conversation with Mr. Broke about the union,"
6 This prepetition interrogation does not constitute objectionable con-
duct.
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which Respondent's 23 May letter, described above,
was briefly discussed-Shriver asking Broke if he had
any questions and Broke replying no. Shriver was not
asked to deny the details in Broke's account nor did he
take issue with Broke's testimony concerning Shriver's
flat declaration that it would not work between the
Company and the Union, things could get tough and
possibly "they" could close the doors. Shriver's conduct,
I find, amounted to a continuation or repetition of his un-
lawful interrogation of employee Binkerd, for the reasons
noted above, and his linkage of a possible closing of the
plant, as things could get tough because it would not
work between the Company and the Union clearly raised
the spectre of a loss of employment should the Union
represent employees-a substantial interference with em-
ployee rights under Section 7 of the Act as not shown to
be based on objective economic factors but merely the
clearly implied result if the employees chose union repre-
sentative. I therefore conclude on the basis of the above-
cited authority that Shriver's conduct further violated
Section 8(a)(1) of the Act and also, occurring some 2
weeks after 26 April and therefore after the petition-
filing on 2 May constituted objectionable conduct.
Broke also testified to being questioned about his feel-
ings towards the Union 2 or 3 weeks after the 26 April
meeting announcing the merit pay raise, by another of
his supervisors, Randy Cline-portions of which conver-
sation are described above. During cross -examination,
however, Broke corrected himself after reference to an
affidavit and placed the questioning by Cline in April.
Broke stated that Supervisor Cline, who was in the
area inspecting tubes, while Broke was in his work
area-inspection area number 2-asked him what his
opinion was of the Union, and "what I found out." He
testified that Cline asked him why he and employees
could not communicated with Plant Manager Husking
without outside interference. Broke expressed a noncom-
mittal opinion, after which Cline said if it did not work
between the Union and the Company did Broke not
think it was possible the Company could close the doors.
Cline's account under questioning coincides with Broke's
and Cline does not deny his reference to plant closing.
On the surface, and given the further fact that the two
were long-time acquaintances, there is room for the
belief that the above discussions were merely centered
around the expression of possible effects of unionization
by Respondent's supervisor, particularly as Cline used
the word if and this Cline's conduct was lawful, Tri-Cast
Inc., 274 NLRB 377 (1985). However, as has been noted
before, such allegations are better evaluated when
viewed in the context of events. Donnelly Mfg. Co.,
supra, the dissent.
Doing so, it is clear that Respondent, through the ac-
tions of Supervisor Shriver towards Binkerd and Broke,
linked employee support for the Union with a plant clos-
ing, a dire flat out prediction which became a recurrent
theme via Respondent 's otherwise permissible reference
to such possibility given economic postulates in its letter
to employees and the far less economically connected
statements to employees by Shriver and Cline. It seems
to me that whatever Respondent's intentions may have
been to lawfully express its position on employee repre-
sentation as permitted by Section 8(c) of the Act, that
the distinction between economically based possibilities
of a plant closing-as reflected in the 23 May letter to
employees-and threats of reprisals-like or reflex-like
plant closings in the event of unionization became so
blurred by supervision's conduct that it can fairly be
concluded that employees exercise of Section 7 rights
were unlawfully impeded. Respondent's persistent and
unwarranted questioning of its employees, accompanied
as it was by threats of a plant closing constituted coer-
cive interrogation proscribed by Section 8(a)(1) of the
Act. Rossmore House, 269 NLRB 1176 (1984); and West-
ern Waste Industries, supra. I therefore conclude that
Cline's questioning of Broke was unlawful interrogation
into an employee's union sentiments arising in the contest
of unlawful predictions of a plant closing if employees
secured the Union as their bargaining representative, vio-
lations of Section 8(a)(1) of the Act.7
3. The representation election
In view of the foregoing, including Respondent's un-
lawful grant of a wage increase, interrogation of employ-
ees, and threats of a plant closing should employees
select union representation, viewed cumulatively created
an atmosphere in which a fair election could not be con-
ducted. In such circumstances, especially where the elec-
tion results were so close, I do not view the election as
reflecting the free choice of the employees. Accordingly,
it will be recommended that the Charging Party's objec-
tions be sustained in the respects noted above, that the
election be set aside, and that the case be remanded to
the Regional Director for the purpose of conducting a
second election.
CONCLUSIONS OF LAW
1. Respondent Company is an employer engaged in
commerce as alleged.
2. The Union is a labor organization as alleged.
3. Respondent Company violated Section 8(a)(1) of the
Act by granting employees a wage increase on 26 April
1984 in order to dissuade them from supporting the
Union, by engaging in unlawful interrogation of employ-
ees concerning their opinion and sentiments towards the
Union, and by threatening plant closure if employees se-
lected the Union to represent them, as described herein-
above.
4. Respondent's conduct in connection with the an-
nouncement and grant of the wage increase paid to em-
ployees on 6 May and its unlawful interrogation of and
threats of plant closure communicated to employees fol-
lowing the Union's filing of a representation petition in
Case 25-RC-8036 on 2 May 1984 constituted objection-
able conduct warranting that the results in the election
be set aside and a new election conducted.
REMEDY
To remedy the unfair labor practices found above, Re-
spondent will be directed to cease and desist from engag-
7 These violations occurring prepetitlon do not therefore constitute ob-
jectionable preelection penod conduct.
KOKOMO TUBE CO.
ing in such conduct or like or related conduct and to
post the attached notice.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
eds
ORDER
The Respondent, Kokomo Tube Company, Peru, Indi-
ana, its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Granting employees a wage increase to dissuade
them from seeking union representation.
(b) Coercively interrogating employees about their
protected union activities.
(c) Threatening employees with plant closure if the
employees select the Union to represent them.
(d) In any like or related manner interfering with, re-
straining or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the National
Labor Relations Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at its facilities in Peru, Indiana, copies of the
notice attached hereto as "Appendix."9 Copies of said
notice, on forms provided by the Relgional Director for
Region 25, shall, after being duly signed by Respondent,
be posted immediately upon receipt thereof, in conspicu-
ous places, and be maintained for a period of 60 consecu-
tive days thereafter. Reasonable steps shall be taken to
insure that the notices are not altered, defaced or cov-
ered by any other material;
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
8 If no exceptions are filed as provided by Sec. 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
e If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al 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 "
365
(c) Nothing herein shall be construed as requiring Re-
spondent to withdraw, cancel, or rescind the 26 April
1984 wage increase.
IT IS FURTHER RECOMMENDED that the results in the
election conducted on 22 June 1984 in Case 25-RC-8036
be set aside and this case be severed from Case 25-CA-
16543 and remanded to the Regional Director to conduct
a new election.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Wi, WILL NOT coercively interrogate our employees
about their protected union activities.
WE WILL NOT threaten our employees with plant clos-
ing if they choose United Steelworkers of America
AFL-CIO, CLC or any other labor organization as their
collective-bargaining agent.
WE WILL NOT grant employees a wage increase to dis-
suade them from supporting the Union.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise of
the rights guaranteed in Section 7 of the National Labor
Relations Act.
KOKOMO TUBE COMPANY