Marmon Group, Inc.

National Labor Relations Board - Board Decisions

Dec 20, 1985

277 N.L.R.B. 1157 (N.L.R.B. 1985)

LONG-AIRDOX CO. 1157
Long-Airdox Company, a Division of Marmon
Group, Inc, and United Mine Workers of Amer-
ica. Cases 27-CA-8545 and 27-RC-6402
20 December 1985
DECISION AND ORDER
By MEMBERS DENNI5, JOHANSEN, AND
BABSON
On 25 September 1984 Administrative Law
Judge Joan Wieder issued the attached decision.
The Respondent filed exceptions and a supporting
brief,' and the General Counsel filed an answering
brief and limited cross-exceptions:
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,2 and
conclusions as modified and to adopt the recom-
mended Order as modified.3 -
The judge found the Respondent violated Sec-
tion 8(a)(1) of the Act by threatening employees
with plant closure and with stricter enforcement of
plant rules and loss of jobs, and by stating to them
it would not bargain in good faith in the event of
unionization and would force employees to strike
and replace them. The judge further found the Re-
spondent unlawfully solicited employee grievances,
told employees a pay cut would have been restored
sooner if they had not attempted to organize, and
1 The Respondent has requested oral argument The request is dented
as the record, exceptions, and briefs adequately present the issues and the
positions of the parties.
The Respondent moves to reopen the record to admit evidence con-
cerning posthearing changes in managerial personnel and functions at its
Huntington, Utah facility We deny the motion, as the evidence sought to
be adduced would not require a different result, See Sec 10248(d)(l) of
the Board's Rules and Regulations
Based on her concurring opinion in Regency Manor Nursing Home, 275
NLRB 1261 at fn. 16 (1985), Member Dennis Would also deny the motion
to reopen The Respondent has not shown that most of the evidence
sought to be adduced was newly discovered or previously unavailable.
Thus, evidence of Cecil McKendrick's assignment in October 1983
"away from direct supervision of the floor" could have been introduced
at the May 1984 hearing' Likewise, the Respondent alleges that the as-
signment of Sales Director Mike Martin solely to "customer' contact" oc-
curred "since" Eugene C Holdaway's promotion to general manager on
19 September 1983, but the Respondent has not shown that the assign-
ment occurred, after the May 1984 hearing.
2 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 1'88 F 2d 362 (3d Cir 1951)
We have carefully examined the record and find no basis for reversing
the findings
In sec. III,B, par 2 of her decision, the judge, stated the parties stipulat-
ed to a unit of 25, rather than 28, employees We correct the inadvertent
error.
9 We shall issue a new notice to employees to conform more closely to
the recommended Order,
interrogated several employees about their own
and other employees ' union activities . We affirm
these findings.
We also affirm, with one exception described
below , the judge 's finding that the Respondent fur-
ther violated Section 8(a)(1) by threatening em-
ployees with "loss of business and probable job
loss" if they selected a union.
Finally , for reasons more fully discussed below,
we agree with the judge that the Respondent's
unfair labor practices have made "the holding of a
free and fair second election unlikely , if not impos-
sible," and thus issuance of a Gissel bargaining
order is warranted.4
The Respondent rebuilds and repairs mining
equipment at its Huntington , Utah plant. Mike
Martin , director of sales for the Respondent, is the
management official responsible for all customer
relations. In support of the complaint allegation
that Martin unlawfully threatened employees with
layoffs by stating several customers had -warned
they - would discontinue their patronage if the Re-
spondent became organized, the General Counsel
presented the testimony of employees Rick Allred,
Vern Lyons, Tom Meyers, and Charles Michael
Warren,
Allred testified that, a day or two before the
election , Martin approached employee Joe Jenson
and him and told them,
[H]e had been in a meeting with the manage-
ment of Beaver Creek [a Respondent custom-
er]' and he named the gentleman . And then he
told us that this guy said that they would be
very apprehensive of ever sending any work
down to a group of people that tried to close
them down every two or three years.
Lyons testified that on the day of the election
Martin spoke to Dominick Bruno, also an employ-
ee, Tot i Meyers, and himself, stating,
Fellows , I've got bad news . I've just been- to
Beaver Creek and Plateau [another Respond-
ent customer] coal mines and at both , places
the moment I arrived there I had been called
[sic] into the office and told by the boss that
they understood Long -Airdox Company was
organizing under , the UMWA, and, in fact,
today' is the election . They told me that, if the
organization-organizing attempt was success-
ful, they would refrain from sending any
repair work - at all from that time forward
down to Lang-Airdox.5
4 NLRB v. Gissel Packing Co, 395 U.S. 575 (1969)
5 Meyers corroborated Lyons' testimony, and testified Martin said on
the day of the election "that he had just come from Plateau Mining, and
Continued
277 NLRB No. 124
1158 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Warren, Martin also told him
the same day that6 [he]. was scared, that he
had-taken men around from Beaver Creek and
Plateau and they, had seen a UMWA sticker
on the -roof bolter we working [sic] on, and
that they had said that. they hoped that-it
didn't go union because their policy was that
they, did not send work to, a union company,
that, they possibly would do the work -their-
selves [sic] and build their own building.
-mark Poling, maintenance manager of Beaver
Creek Coal Company, one of the' Respondent's
major, customers, testified he was aware of ' the
Union's organizing activities at the Respondent's
plant,' and expressed to,Mike Martin his "opinions"
and "concerns" About unionization." Poling testi-
fied Beaver Creek was engaged in "a major rebuild
program and how well we- did- was hinged, quite -a
bit on how well Long-Airdox did and adhering to
the schedule-' involved in that rebuild program."
Poling's "concerns" involved the "interruption and
efficiency of the workforce, allowing them 'to de-
liver-the product as they originally planned," the
"quality, of rework on . . . non-union mines [sic]
equipment in a union environment," "schedul[ing]"
and receiving equipment if a strike occurred,-'and
`ability to -,manage the workforce, efficiently in
order- to deliver'the equipment . . . ."
The judge found that Sales Director Martin had
threatened employees with loss of business and jobs
if they unionized. According to the judge, Martin's
remarks, when placed in a "labor relations setting,"
were "not shown to,,have been based on demon-
strably probable consequences beyond its control,"
citing NLRB v. Gissel Packing Co., above, 395 U.S.
575, 617-619. -
In Gissel, at 618, the Supreme Court distin-
guished employer' protected speech, under Section
8(c) from unprotected -speech under, Section 8(a)(1):
[A]n employer is free to -communicate to his
employees any of his general views about un-
ionism or any of3 his specific views about a
particular union , so long as the communica-
tions do not contain a "threat of reprisal or
force or, promise of benefit." He may even
make a prediction as to the precise effectjs] he
believes unionization will have-on his compa-
ny. In such case, however, the prediction must
be carefully phrased,on the basis of objective
[t]hey definitely said they would not send any more equipment to us
if we went Union "
6 Martin admitted speaking to the named employees, but denied the
substance of their testimony The judge did not credit Martin's testimony,
however
Poling,'s-testimony is more fully set forth here than in the judge's de-
cision. -
fact to convey an employer's belief as to de-
monstrably' probable consequences, beyond his
control. . . ."
In Blaser Tool & Mold, Co., 196 NLRB 374
(1972), the Board found the employer's president
stated to employees that its major-customer "was
free to withdraw its patronage at any time and"that
he was apprehensive that [the customer] would
cease doing business with [the employer] if the em-
ployees voted for the :Union." In finding the em-
ployer's statement unlawful, • the Board stated "[i]t
,is well established that employer predictions of ad-
verse consequences arising from sources' outside his
control are required' to have ,an objective factual
basis in, order to be permissible under Section
8(a)(1) "11
Here, unlike the employer's statements, in Blaser
Tool, Crown Cork, and Hertzka & Knowles, we find
Martin's comments to, Allred and Jenson had- a fac-
tual basis and,, therefore, are squarely protected by
Section _8(c). Martin's statement that Beaver Creek
would be "very apprensive of ever 'sending any
work down to a group of people that tried to; close
them down every two or three, years," was cor-
roborated by Poling's testimony that he had- "con-
cerns" about, his company's ability to receive
-equipment if a strike- occurred and, in general,
about possible "interruption and efficiency, of the
workforce" in connection with product delivery.
On the-- other hand, Martin's comments to em-
ployees that, customers, would . "refrain from send-
ing any repair, work "if the Respondent became or-
ganized and that customers had policies not to send
,work to a "union company" were,not based on ob-
jective facts, and therefore violate Section 8(a)(1).
Although Poling testified to his "concerns" regard-
ing unionization at the Respondent's plant, he
,failed to confirm Martin's comments about a, com-
pany policy'to refrain from sending, work to union-
ized companies altogether.9
B Accord Crown Cork &_Seal Co, 255 NLRB 14 (1981) (employer
statements to the effect that "if, the Union got in, [the, employer's sole
customer of steel cans] would switch to less costly aluminum cans and
[the employer] would be forced to shut down,"' found to violate Sec
8(a)(1), because the employer failed to show on an objective basis that
-the customer would stop purchasing the employer's steel cans); Hertzka
& Knowles, 206 NLRB 191, 194195 (1973), enfd in relevant part 503
F 2d 625, 628-629 (9th Cir 1974) (employer's comment to employees that
unionization would-result in loss of business -and layoffs not privileged by
Sec 8(c), because the employer "produced no evidence to show that his
clients would withdraw or had withdrawn their business- because, of
unionization "
s Patsy Bee, Inc v NLRB, 654 F.2d 515 (8th Pit. 1981), where the
court reversed a Board finding that the employer's president unlawfully
threatened employees that unionization would result in customers with-
drawing contracts, is distinguishable. There, the employer's statements to
employees that customers would "withdraw their contracts," "pull their
contracts," and would "definitely pull out" if the plant were unionized
were based on the customers' established policies against contracting with
union companies Id at 517
LONG-AIRDOX CO. 1159
The judge also sustained the Union 's Objections
5, 7, and 11 to the 11 August 1983 representation
election . The Respondent , however, argues that the
judge improperly considered evidence occurring
outside the critical period , despite the Board's
policy to look only to objectionable conduct occur-
ring between the time the petition is filed and the
election is held. See Ideal Electric & Mfg. Co., 134
NLRB 1275 ( 1961). The Respondent alleges the
judge erred in considering Tietjen's and McKen-
drick's 21 June conduct in McKendrick 's office, 10
which occurred before the critical period began
running on 22 June, and statements McKendrick
made to employee Maxfield on 2 September- and in
late October, occurring after the critical period
-ended on 11 August . 1' We disagree , but find it
necessary to clarify the judge 's rationale.
First, it is clear the conduct alleged in Objection
5 regarding Tietjen's and Martin 's 29 June threats
of job loss "once the Union matter was over" oc-
curred within the critical period and the objection
is meritorious . { Accordingly , we sustain the Union's
Objection 5.
As to Objections 7 and 11, however, the judge's
decision appears, at one point , to rely on conduct
occurring outside the critical period in sustaining
the objections . Thus, the judge concluded that only
Tietjen 's and McKendrick 's actions on 21 June in
McKendrick 's" office are encompassed within Ob-
jections 7 and ' 11, and finds the Regional Director
dismissed or overruled the other alleged objection-
able conduct . The judge later stated that "[h]aving
found that the company threatened bargaining unit
employees with loss of jobs and/or plant closure
[on 21 and 29' June, 1 and 1 .1 August , and late Oc-
tober], loss of important customers [around 10 and
11 August], engaged in unlawful interrogations
[around 1 ,, 10, and 11 August], made unlawful
promises [on 121 June], the next issue is whether
this conduct warrants setting aside the election of
11 August 1983." She then concluded that "[m]ost
of the unlawful and all of ' the objectionable, con-
duct occurred ', during the organizing campaign and
were not isolated incidents during the critical
period between the filing of the petition and -the
election," thus drawing a distinction between un-
lawful conduct occurring outside the critical period
and unlawful sand objectionable conduct occurring
within it. Accordingly , we sustain the Union's Ob-
10 The judge found Tietjen and McKendrick at the 21 June meeting
unlawfully solicited grievances and threatened "plant closure, job loss,
and stricter enforcement of plant rules "
11 Maxfield testified McKendridk stated around 2 September that a pay
cut would have been restored' sooner had it not been for the organizing
campaign Maxfield further testified McKendrick in late October in-
formed him that if the Union got in, the Respondent would refuse to bar-
gain, force employees out on stnke, and replace them
jections 7 and 11- to the extent they involve objec-
tionable conduct occurring during the_ ` critical
period.12 Ideal Electric, above at 1277-1278.'
We affirm the judge's 8(a)(5), and (1) finding
based on her Gissel bargaining order recommenda
tion. The judge, found that the Union enjoyed ma-
jority status, and that the unfair labor practices
"decreased the chances of having a free election so
as to warrant the use of the authorization cards as
the indicia of employee choice." We agree.
On' 21 June, the day following the Union's
demand for recognition, Plant Manager McKen-
drick and Plant Superintendent Tiejten solicited
grievances from employees Rex Maxi ield and
Randy Jones, threatened them with plant closure,
and told them it would more strictly enforce plant
rules. Around 29 June, Tietjen, in Sales Director
Martin's presence, unlawfully threatened discharge
and plant closure by telling employee Warren "that
the men that had gone union had cut off 'their nose
to spite their face. The company was going to shut
[its] 'doors." On two occasions in August, 'Tietjen
threatened to discharge employee Jacobs, an open
and active union supporter , for , unlawful reasons.
On the morning of the 'election Martin spoke
with employees Bruno, Lyons, and Meyers, 13 tell-
ing them he had, "bad news" because several cus-
tomers had told them they would "refrain from
sending any repair work" if the plant became orga-
nized. Martin also told Warren that'several custom-
ers had seen the Union's stickers on equipment and
had told him of their alleged policy `note to send
work, to union companies, and that they would per-
form the work themselves. The same morning, Per-
sonnel Administrator Gene Lerrick approached
three employees and asked them how they were
going to vote in the election, which the judge
found violated Section 8(a)(1),14
12 The following conduct under Objections 7 and 11 occurred within
the critical period Tietjen's statement to Jacobs on 1 August that "he
wished I would screw up so he could fire me and get rid of the prob-
lem," and that he wished Jacobs "would ruin something so that he could
get rid of the problem," Martin 's statements to four employees on 11
August that several customers had stated they would stop sending work
if the plant organized , and his statement to Jacobs to go "f- [him]self
. that's what all the mines tell me when I go to get work from them
because of the Union activity", and Lerrick's unlawful interrogation of
four employees on 11 August as to how they planned to vote in the elec-
tion We agree with the General Counsel that the Regional Director rec-
ommended overruling Objections 7 and 11 only to the extent they alleged
conversation occurring in working areas on working time, including the
day of the election See Land O Trost of Arkansas, 252 NLRB 1 (1980)
13 In addition, a fourth employee, Randy Jones, learned of Martin's
comments through a conversation with Lyons.
14 The judge also found that Lerrick approached a fourth employee,
Robert Downard, the day before the election and asked what the Compa-
ny could do to keep the employees from voting for the Union The judge
found this also constituted an 8(a)(1) interrogation.
1160 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
On 2 September, after the election, McKendrick
told Maxfield a pay cut would have been restored
sooner if the Union' s organizing drive had not oc-
curred. McKendrick further told him in late Octo-
ber that if the Union had won the election the Re-
spondent "would have refused to negotiate with
the Union and forced the employees out on strike
and then replaced [them]." As noted, we have af-
firmed the judge's findings that all of these state-
ments violated Section 8(a)(1) of the Act.
The Respondent's violations were severe in
nature, extensive in number, and affected a signifi-
cant number of bargaining unit employees. Thus,
the threats to discharge, to close the plant, and to
refuse to bargain and force employees out on strike
and replace them, as well as statements concerning
loss of customers, are threats the Board and the
courts have long recognized to be "hallmark viola-
tions." These highly coercive remarks affected 7 of
28 employees. Moreover, the threats of plant clo-
sure are "one of the most coercive actions which a
company can take in seeking to influence an elec-
tion." 15 Here, not only did the Respondent threat-
en plant closure, but it also unlawfully and untruth-
fully threatened employees that important custom-
ers would withdraw their business, thus suggesting
that . the' penalty for unionization would be severe.
Less serious violations, such as the solicitation of
grievances, interrogation of employees, and threats
to more strictly enforce plant rules, affected the
same employees-plus two others. The Respondent's
8(a)(1) violations, therefore, affected 9 of 28 em-
ployees. All of the violations were committed by
the Respondent's top management officials: Gene
Lerrick, personnel administrator; Cecil McKen-
drick, plant and general manager; Mike Tietjen,
plant superintendent; and Mike Martin, director of
sales. The effect of unfair labor practices is height-
ened when they are committed by top management
officials who are readily perceived as representing
company policy and as possessing the ability to im-
plement unlawful threats..See Midland-Ross Corp.
v. NLRB, 617 F.2d 977, 987 (3d Cir. 1980), cert.
denied 449 U.S. 871 (1980) (implied threat of plant
closure warranted a bargaining order where
"senior company officials" were involved and
threat was communicated to a "significant percent-
age" of the union employees).
After the election was over and the Union's ob-
jections were pending, McKendrick continued to
engage in unlawful conduct, telling Maxfield "that
if the union would have got [sic] in, that they
would have refused to negotiate with the union
and forced the employees out on strike and replace
them," and that a pay cut would have been com-
pletely restored sooner if the employees had not at-
tempted unionization. Such postelection conduct
erodes the possibility of ensuring a fair rerun,elec-
tion. See, e.g., Chromalloy Mining & Minerals v.
NLRB, 620 F.2d 1120, 1131 fn. 8 (5th Cir. 1980)
(postelection violations "are always relevant be-
cause they demonstrate that the employer is still
opposed to unionization"); Larid Printing, 264
NLRB 369, 371 (1982) (postelection violations sug-
gest likelihood of a respondent "again engaging in
illegal conduct").
In view of the nature of the Respondent's viola-
tions, and noting the swiftness and timing of the
Respondent's unlawful conduct which "began the
day after the Union demanded recognition and its
continued unlawful conduct after the election, we
conclude that the possibility of erasing the -linger-
ing effects of the unfair labor practices and of con-
ducting a fair election by use of traditional means is
slight. We further- conclude that the employees'
representation desires expressed through authoriza-
tion cards, on balance, would be better protected
by a bargaining order than by traditional remedies.
Accordingly, we adopt the judge's recommended
bargaining order. 16
. ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, Long-
Airdox Company, a Division of Marmon Group,
Inc., Huntington, Utah, its officers, agents, succes-
sors, and assigns, shall take the action set forth in
the Order, except that the attached notice is substi-
tilted'for that of the administrative law judge. '
IT IS FURTHER ORDERED that the election in
Case 27-RC-6402 be set aside and that Case 27-
RC-6402 be dismissed.
15 Donn Products, Inc v. NLRB, 613 F.2d 162, 166 (6th Cir 1980) See
also Gissel, 395 U S at 611 fn 31, Textile Workers v Darlington Co., 380
U S 263 (1965), Irv's Market, 179 NLRB 832 (1969), enfd 434 F.2d 1051
(6th Cir 1970)
i e Member Dennis agrees that a bargaining order is an appropriate
remedy, under NLRB Y Gissel Packing, supra, because the analysis is con-
sistent with her concumng opinion in Regency Manor Nursing Home, 275
NLRB 1261 (1985)
LONG-AIRDOX CO. 1161
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
Kenwood C Youmans, Esq. (Seyfarth, Shaw, Fairweather
& Geraldson), of Los Angeles, California, for'the'Re-
spondent.
Jonathon Wilderman, Esq., of Denver, Colorado, for the
Charging Party.
DECISION
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten to close the plant before
accepting the United Mine Workers of America as
collective-bargaining representative of our employ-
ees.
WE WILL NOT coercively question you about
your union support or'activities.
WE WILL NOT threaten you with stricter - en-
forcement of the plant rules because of your union
support or activities, or state that a pay cut would
have been restored sooner if you had 'not engaged
in union organizing activities.
WE WILL NOT threaten you that unionization
will result in a loss of business and a loss of jobs.
WE WILL NOT threaten you that unionization
will result in our failure to bargain in good faith,
resulting in an economic strike, and threaten that
the strike will result in-the replacement of the strik-
ers and loss of jobs.
WE WILL NOT solicit employee grievances and
indicate a willingnes to rectify them in order to un-
dermine the Union.
WE WILL NOT refuse to bargain collectively with
the Union concerning terms and conditions of em-
ployment in the following appropriate unit:
All production employees, truck drivers,
repair and 'maintenance employees, warehouse
clerks and expeditors employed, by Respondent
at its plant located one mile south of Hunting-
ton, Utah on' Highway' 10, but excluding sales-
men, all office clerical employees, guards and
supervisors as defined in Section .2(11) of the
Act.
WE WILL NOT in any like or related manner
interfere with, restrain,' or coerce you in the exer-
cise of the rights guaranteed` you by Section' 7 of
the Act.
WE WILL, on request, bargain with the Union
and put in writing and sign any agreement reached
on terms and conditions of employment for our
employees in the bargaining unit described above.
LONG-AIRDOX COMPANY, A DIVISION
OF MARMON GROUP, INC.
STATEMENT OF THE CASE
JOAN WIEDER, Administrative Law Judge. These
cases were heard in a consolidated proceeding in Castle
Dale, Utah, on 8, 9, and 10 May 1984.1 Based on an
original and amended charge filed 20 and 23 September,
respectively, by the United Mine Workers of America
(Union), the complaint in the unfair labor practice pro-
ceeding was originally issued 20 October, amended 16
February 1984, and at trial. The amended complaint al-
leges that Long-Airdox Company (Respondent or Com-
pany) committed various violations of Section 8(a)(1) of
the National Labor Relations Act, discriminatorily issued
written warnings in violation of Section 8(a)(3) and (1) of
the Act, and refused to bargain collectively with the
Union in violation of Section 8(a)(5) of the Act, The Re-
spondent, in its answer to the complaint, denies commit-
ting any of the alleged violations of the Act.
A representation petition was filed by the Union on 22
June in Case 27-RC-6402, an election by secret ballot
was conducted on 11 August pursuant to a stipulation for
consent election. The tally of ballots indicated 12 votes
for and 12 votes against the Union. There were five chal-
lenged ballots to which no objection was taken. The
Union filed timely objections to election. On 21 October
the Regional Director, issued a supplemental decision and
direction of hearing, and an order consolidating cases
whereby several objections in the representation pro-
ceeding were deemed closely related to the issues raised
in the complaint case and that it was appropriate to con-
solidate the cases for hearing.2 Objections 5, 7, and 11
i All dates herein refer to 1983 unless otherwise indicated
2 Objections 5, 7, and 11 Were consolidated with the unfan labor prac-
tice complaint and they assert
5 On June 29, 1983, Mr. Mike Tietjen, Plant Superintendent, and
Mr Mike Martin, company salesman, threatened bargaining unit em-
ployees with loss of jobs once the Union matter was ovei
7 Mr Gene Larick, Jr., [Lerrick] company Personnel official from
Virginia, Mr Bill Meadors, company President from Virginia, Mr
Cecil McKendripk, Plant Manager Mr Mike Tietjen, Plant superin-
teiident, and Mr Mike 'Martin, company salesman, conducted indi-
vidual interviews with the bargaining unit employees during work
time at company premises continuing over a period of numerous
days up to and including the day of the election (August 11, 1983)
The purpose of these interviews was to persuade the employees to
vote against the Union Unlawful threats, promises and inducements
were made These meetings were coercive and/or affected the out-
come of the election
11 Mr. Gene Larick, Jr, company Personnel official from Virgin-
ia, spoke to at least two bargaining unit employees on an individual
basis in work areas and during work time asking support for the
company on the day of the election (August 11, 1983) prior to ballot-
ing Threats of loss of non-union customers (Arco, etc) were made
at this time Mr McKendnek, Plant Manager, engaged in similar
conversations with employees on the day of the election.
All the other objections were overruled
Michael J. Bela, Esq., for the General Counsel.
1162 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
are not consolidated for hearing in their entirety.3 Sever-
al allegations, overruled by the Regional Director, were
raised in the complaint prior to the hearing without ob-
jection to their inclusion. Any such objection is thereby
deemed waived. Respondent's Exhibit 2(b) did raise an
objection that these amendments are barred by Section
10(b) of the Act To the extent any amendments were
not included in the charge and complaint and not subject
to the above finding of waiver, they would be barred by
Section 10(b) of the Act. The proposed amendment al-
leging Meadors engaged in alleged coercive conversa-
tions in work areas during work hours was dismissed as
an objection and not included in the complaint. There-
fore, evidence relating to Meadors' conduct will be c'Qn-
sidered only as background information. Meadors' in-
quiry of Randall Jones about whether the employees'
meetings before the election "had done any good" was
not shown to have been coercive or intimidating. The
evidence regarding Meadors' behavior is not indicative
of any wrongdoing by Respondent.
No exceptions to the Regional Director's report, or re-
quest for special permission to appeal from his order,
were filed by either party within the time provided. Ac-
cordingly, the Board, by Order dated 14 November
1983, adopted,the Regional Director's recommendations.
Upon the entire record, including my observation of
the witnesses who testified at the hearing, and consider-
ation of the briefs, I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent, a Delaware corporation, rebuilds and re-
pairs mining equipment. At all times material, Respond-
ent has maintained a plant in Huntington , Utah . During
the 12-month period ending 20 September, in the course
and conduct of its operations,'it provided services valued
in excess of $50,000 to Beaver Creek Coal Company,
which operates a mine in the State of Utah. Beaver
Creek Coal Company mines coal near Price, Utah, and
during the 12-month period ending 30 September sold
and shipped from this mine products, goods, and materi-
als valued' in excess of $50,000 directly to points outside
the State of Utah. It is admitted, and I find that Re-
spondent is, and has been at all relevant times, an em-
ployer engaged in commerce within the meaning of Sec-
tion-2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union admits to be, and I find that it is and has
been at all times material herein , a labor organization
within the meaning of Section 2(5) of the Act.
3 To the extent that Objections 7 and 11 allege that, the election should
be set aside because of alleged conversations with employees in work
areas and during worktime , including the day of the election , I shall rec-
ommend that they be overruled See Land O 'Frost of Arkansas, 252
NLRB 1 (1980) Also, to the extent that Objection 7 alleges unlawful
conduct by Bill Meadors, I shall recommend that this portion of the ob-
jection be overruled as no probative evidence was presented during the
investigation to warrant a finding that he had engaged in any objection-
able conduct
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Preliminary Matters
The complaint, as amended, was subject to several mo-
tions to amend at hearing. Rulings on these motions were
deferred to afford Respondent an opportunity to request
additional time for preparation and/or to show prejudice,
surprise, denial of due process, or other basis in support
of their motions It was also alleged that Respondent vio-
lated Section 8(a)(3) and (1) of the Act by discriminatori-
ly issuing a written warning to Gary Van Wagner. This
allegation was' dismissed at trial pursuant to an appropri-
ate motion due to the General Counsel's failure to
adduce any evidence on this issue. The General Coun-
sel's brief does not dispute this finding and reconsider-
ation was not sought. A similar motion about warning
notices issued Bowman was denied. As to the amend-
ments alleging violations of Section 8(a)(1) of the Act
that have not been found time barred above, it is found
that they were encompassed within the consolidated ob-
jections to election and/or did not greatly alter the basic
matters alleged. Further, the Company has not requested
a continuance nor has it alleged that due process would
require a continuance for preparation of the defense. Re-
spondent has failed to demonstrate it did not have ade-
quate time to prepare its case , not one witness was al-
leged to be unavailable, and there was no assertion that
additional time was needed to investigate the facts. At no
time prior to the close of hearing did Respondent request
a continuance and it did not show the issues required
greater preparation time. There was no suggestion
during the course of the hearing that the Company was
handicapped by a lack of preparation and, indeed, no
specific details to the contrary were set forth in Re-
spondent's brief. Accordingly, it is concluded that the
following proposed amendments should be granted
Specifically, paragraph 5(C)(4) of the complaint is
amended to allege that "on or about August 2nd, 1983,
acting through Mike Tietjen, Respondent told an em-
ployee, `I wish you'd screw up so I could fire you."'
This allegation relates to paragraph 5(C)(2) of the com-
plaint and is encompassed in paragraph 4 of the charge.
A paragraph 5(K) was sought, as follows:
On or about the first week of June, 1983, acting
through McKendrick and Tietjen, Respondent in-
terrogated an employee about whether the employ-
ees had decided to go Union
This allegation was encompassed in the charge in the
printed phrase which reads, as here pertinent, `By the
above and other acts. . . .
The proposed addition of a paragraph '5(L) would
allege that:
On or about the last week of July, 1983, acting
through Mike Martin, Respondent told an employ-
ee, "Why don't you go [expletive deleted] yourself.
That's what the mines tell me when I go to get
work for them because of the Union."
LONG-AIRDOX CO
Since this amendment relates to paragraph 5(E) of the
complaint, is not a new and independent incident, and
was encompassed in the charge, it will be considered.
Respondent admitted awareness of this allegation at a
time "significantly earlier" than the proposal.
Paragraph 5(J) was amended to change "employee" to
"employees." Since Objection 11 is in the plural, the
amendment was found to be permissible.
B. Background
Respondent is a division of Marmon Group, Inc., and
is principally engaged in the rebuilding and repairing of
mining equipment at its Huntington, Utah plant. It is a
full-service mine machine repair shop. The Company
also fabricates equipment, performs warranty work for
customers with Long-Airdox mining equipment,4 and
performs some work for the local utility and road de-
partments and firemen.
At all times material herein, the following named per-
sons occupied the positions set opposite their names, and
were supervisors within the meaning of Section 2(11) of
the Act and agents within the meaning of Section 2(13)
of the Act: Bill Meador, president, Long-Airdox; Gene
Lerrick, personnel administrator; 5 Cecil McKendrick,
plant manager and general manager;6 Mike Tietjen, plant
superintendent; and Mike Martin, director of sales.
The size of the work force varied greatly from 60 em-
ployees in October 1982 to 5 in April 1983. The parties
stipulated that at the times pertinent herein, the unit had
a maximum of 25 employees; and stipulated to the appro-
priateness of the unit. It was further stipulated that 20
valid authorization cards were properly authenticated
and not subject to challenge.
On 2 June Respondent announced an across-the-board
pay cut of 20 percent retroactive to 1 June. The employ-
ees were advised that the pay cut was temporary, occa-
sioned by economic conditions, but were not told when
full pay would be restored. In response to this announce-
ment, the employees held a meeting between 6 and 10
June and selected Rex Maxfield and Randy Jones to be
their spokesmen. Maxfield was charged to meet with the
Company to see if the employees could get their wages
restored to precut levels and a written statement detail-
ing employee benefits. Kim Jacobs, a Tong-time employee
and a known union supporter during the organizing cam-
paign that occurred 2 years prior to the instant' proceed-
ing, testified credibly, based on demeanor and inherent
probabilities, that the morning after the meeting at
Jacob's house, McKendrick asked him how the meeting
went and whether the employees decided to go union or
not. Jacobs told him the employees selected two repre-
sentatives: himself and Maxfield. The inquiry by the
chief on-site supervisor of a known union supporter has
not been shown by tone, atmosphere, or otherwise to be
4 The mining equipment is not manufactured at the Huntington plant,
but occasionally Respondent manufactures small pieces of mining equip-
ment
5 Both Meador and Lerrick are based at Respondent's headquarters in
Oak Hill, West Virginia
6 In September 1983 Gene Holdeway became general manager There
were no allegations concerning Holdeway McKendrick retained the po-
sition of plant manager
1163
coercive. The Company has had a communications com-
mittee since June 1980. It is not clear on the' record
whether these employee representatives were also mem-
bers of the communications committee. The purpose of
the committee was to air grievances and serve as a con-
duit between the employees and management. The com-
mittee met monthly when the Company had a large com-
plement of employees. Prior to June, Respondent last
met once with the communications committee in Febru-
ary. Maxfield asserted that the committee was inactive
since McKendrick was appointed manager.
During the week of 13-17 June, Maxfield contacted
the Union and the union organizing campaign com-
menced the next day.
On 20 June John Brad Reed, a union organizer, with
two other union representatives,7 met with McKendrick,
Tietjen, and Sam Wardle and said they had a majority of
employees who wished to be represented by the Union
and requested to immediately commence negotiations. In
conflicting testimony, Reed first denied then clammed that
he told the Company that a majority of employees
signed authorization cards. The cards were, not requested
by any company official nor were they proffered to the
company officials by the union representatives. McKen-
drick said he would talk with the company attorney and
gave Reed,Meador's number if they had any inquiries.
The Union never contacted Meador. The Union mailed
the petition for representation that day. None of the
company officials denied Reed told them the Union had
told them that a majority of employees signed authoriza-
tion cards. Thus this unrefuted assertion is credited.
The afternoon of 20 June Reed met with Maxfield,
David Fuller, Chuck Warren, and Maxfield's cousin,
who was not a company employee, on a main thorough-
fare of Huntington to report the results of that morning's
meeting. Tietjen was observed driving past them, saw
them, turned around, and again drove pasty them at a
slow speed. Although Reed had met Tietjen in 1980
during a prior organizing campaign, Tietjen asserts he
did not recognize Reed or appreciate the import of the
gathering. Tietjen testified he thought one of the em-
ployees had a vehicle problem and turned around to see
if any help was needed. On the second pass, he saw it
was a social meeting, so he just waved and, proceeded
home, '
C. Asserted Unfair Labor Practices
Based on the above findings, to be considered as back-
ground evidence only is the 'allegation that at the meet-
ing convened by McKendrick to announce the 20-per-
cent pay cut, according to Charles Warren,8 in response
to an inquiry about getting union representation by an
employee whose identity Warren could not recall,
McKendrick said that if the Union represented employ-
ees the Company would shut the doors of the plant. This
testimony of Warren is not credited.9 There was no indi-
' Mike Oalpuz and Fred Lupo, who did not appear and testify.
8 Warren is not a current employee of the Company . He quit in mid-
January 1984 McKendrick tried to dissuade him from quitting.
S In making credibility findings, note was taken of the fact that the
witnesses were sequestered
1164 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cation that union organizing activity was occurring at
this'time Remarkably no other employee recalled the in-
cident. Thus, McKendrick's denial, as corroborated by
Tietjen, is credited.
The Company commenced a vigorous campaign to
defeat the,Union in the election after June 20. As part of
this campaign, the Company distributed reams of litera-
ture-stating the Company's position. None of this litera-
ture is alleged to be violative of the Act.
1. Events of 21 June
The morning after the Union sought recognition and
Tietjen drove by Maxfield, Reed, and Warren in Hun-
tington, Tietjen asked Maxfield and Jay Humphrey, a
foreman, and Jones,1 ° to meet with McKendrick and
Tietjen. The various accounts of what occurred during
this meeting contain many similarities and differences
and center mainly on whether certain threats or other
statements violative of Section 8(a)(1) were made.
At the commencement of the meeting, Tietjen admit-
ted McKendrick told Maxfield and Smith that the meet-
ing was called pursuant to a request by Meadors, for the
Company "wanted to know the complaints that had
prompted them going to the union." According to Ran-
dall Jones, i 1 the meeting lasted 2 hours and, after
McKendrick's announcement of the purpose of the meet-
ing, Tietjen stated, "there's no way Mr. Meadors will
have a union in here, and he wants to know just exactly
what it would take to keep the union out." Jones and
Maxfield corroborated Tietjen's testimony Maxfield tes-
tified that Tietjen said "than Remington [Respondent's
vice president] and Meadors . . . would never accept the
union and that they would close the doors." Mention
was made of closing a plant "back east" as a device to
break the UAW. The employee representatives said that
they could only speak for themselves, but mentioned res-
toration of pay to the prepay cut level, improved medi-
cal benefits, implementation of a pension program, and a
memorialization of these benefits in writing to guarantee
no future reductions or loss of benefits. McKendrick in-
dicated that he' could not make any commitments, that
Meadors makes all decisions.
Tietjen also mentioned that if Meadors agreed to the
proposals, he wanted a guarantee that the Union would
not be elected as the employees' representative. Another
statement Tietjen assertedly made is that some of the em-
ployees are not "putting out 100 percent and he was
going to start writing things up for that." After this
meeting, employees were written up for tardiness and for
not wearing safety glasses.12 Maxfield corroborated this
io Jacobs was on vacation so Jones acted in his stead Jones had been
on the communications committee Humphrey was admitted to be a su-
pervisor as defined in the Act
11 Maxfield and Jones are current employees of the Company -
12 The writeup for not wearing safety glasses was enforcing admittedly
posted rules Jones admitted that prior to 21 June the Company issued
warning notices on occasion for tardiness and failure to wear safety glass-
es The warning notices issued to Bowman, an alleged discriminatory act
in this proceeding , were written subsequent to this meeting- The allega-
tion is that the statement was an unlawful threat. Jones believed Maxfield
mentioned specific write-ups at this meeting which is apparently an error
in recall , This inaccuracy is insufficient to discredit this current employ-
ee's testimony
testimony and further stated that Tietjen told him "that I
could be fired at any time, because I did not meet the
classifications of what I was hired for, which is a Welder
Mechanic. I'm not a Welder, and he said that I could be
replaced at any time." Tietjen, according to Jones, as
corroborated- by Maxfield, said, "The union cannot
secure your job, that they had a union at [a prior em-
ployer of his] Nevada Power and . . . he, felt that the
company had bought them off. He [Tietjen] said, when it
ended up, that the union steward skipped the country
with a briefcase full of grievances that was never han-
dled or took care of." McKendrick did not recall and
denies these statements were made by Tietjen. Tietjen,
on the other hand, recalled talking about reduced effort
and Maxfield's lack of welding skills but, he claims, these
were in different contexts, at different times and loca-
tions than the 21 June meeting. This disclaimer is not
credited since both employees recalled similar state-
ments. The demeanor of the employees was forthright,
direct, and convincing; their version of the meeting -is
credited
Also credited is the testimony of Maxfield and Jones i 3
that they were instructed by McKendrick and Tietjen to
meet with all the other employees to ascertain "what the
employees would accept to not go union." 14 After the
meeting, Maxfield and Jones reported to the Company
that the employees wanted the same benefits discussed at
the 21 June meeting, 15 and wished to proceed with the
organizing effort. In response, Tietjen said, "Well, it
looks like that back east will be telling us both what to
do. 11
Section 8(a)(l) of the Act prohibits an employer from
interfering with, threatening, or coercing employees in
the exercise of their Section 7 rights to support or
oppose a labor organization, or to engage in or refrain
from engaging in concerted activity. This prohibition is
tempered by the provisions of Section 8(c) of the Act,,
which states:
The expressing of any views, argument, or opin-
ion, or the dissemination thereof, whether in writ-
ten, printed, graphic, or visual form, shall not con-
stitute or be evidence of an unfair labor practice
under any of the provisions of this Act, if such ex-
pression contains no threat of reprisal or force or
promise of benefit.
1a The testimony of these current employees is credited for the above-
stated reasons , particularly demeanor Also considered is inherent consist-
ency, Tietjen's admission that he could not recall what was said by
whom, which was demonstrated by his testimony, t e., the only specific
complaint was 'the 20-percent wage reduction" This testimony ignores the
requests for a pension plan, improved medical benefits , and a written
statement of benefits
14 This testimony was also corroborated by Tietjen, who testified
"right near the end of the meeting, Randy Jones says, well, in other
words, you guys want to know What it is going to take to ex (ph) the
union, and I guess I said yeah I guess so . something like that and we
asked them to go to the other employees and get specifics and please let
us know "
1-1 Maxfield also testified that McKendrick wanted to know the em-
ployees' "gripes," but this testimony was elicited after leading questions
and was not reflective of the witnesses' recollection of verbiage and im-
agery.
LONG-AIRDOX CO. 1165
The Supreme Court, in NLRB v. Gissel Packing Co.,
395 U . S. 575 , 617-619 ( 1969), balances the requirements
of these two sections of the Act as follows:
Any assessment of the precise scope of employer
expression , of course, must be made in the context
of its labor relations setting. Thus , an employer's
rights cannot outweigh the equal rights of the em-
ployees to associate freely, as those rights are em-
bodied in § 7 and protected by § 8(a )( 1) and the
proviso to § 8(c). And any balancing of those rights
must take into account the economic dependence of
the employees - on their employers , and the neces-
sary tendency of the former , because of that rela-
tionship , to pick up intended implications of the
latter that might be more readily dismissed by a
more disinterested ear.
[An employer] may even make a prediction as to
the precise effect he believes unionization will have
on his company. In such a case , however, the pre-
diction must be carefully phrased on the basis of ob-
jective fact to convey an employer 's belief as-to de-
monstrably probable consequences beyond his con-
trol or to convey a management decision already
arrived at to close the plant in case of unionization.
See Textile Workers v. Darlington Mfg. Co., 380 U.S.
263, 274 fn. 20 ( 1965). If there is any implication
that an employer may or may not take actions
solely on his own initiative for reasons unrelated to
economic necessities and known only to him, the
statement is no longer a reasonable prediction based
on available facts but a threat of retaliation based on
misrepresentation and coercion, and as such without
the protection of the , First Amendment . , We there-
fore agree with the court below that "[c]onveyance
of the employer 's belief, even though sincere, that
unionization will or may result in the closing of the
plant is not a statement of fact unless, which is most
improbable , the eventuality of closing is capable of
proof." 397 '.2d 157; 160. As stated elsewhere, an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control," and
not "threats of economic reprisals to be taken solely
on his own volition." NLRB v. River Togs, Inc., 382
F.2d 198, 202 (C.A. 2, 1967). [See also Rossmore
House, 269 NLRB 1176 (1984)].
Accordingly , Respondent's 'statements will' be' exam-
ined in the "context of its labor relations setting."
The Respondent, at a meeting called by the top local
official and held in his office pursuant to the announced
direction of the president of the Company, sought to de-
termine the employee complaints that prompted them to
seek union representation . The meeting was called the
day after the union requested recognition and indicated a
majority of employees signed union authorization cards.
There was no showing that the employer knew, Maxfield
and Jones were active and open supporters of the Union.
On the contrary , the Company indicates it sought their
counsel as members of the communications committee
and knew nothing of their roles in the organizing cam-
paign. In support of its contention of violation, the Gen-
eral Counsel cites Enterprise Products Co., 265 NLRB
544, 549 (1982).16 and Windsor Industries., 265 NLRB
1009, 1016-1018 (1982). 17
The Respondent argues that the meeting was "an iso-
lated and unique phenomenon." Thus, it concedes, the
employer does not have an established practice of solicit-
ing grievances. The context of the meeting was the an-
nouncement at its commencement that Meadors, the
company's chief officer, wanted to determine what in-
duced the employees to go to the union and the inquiry
was accompanied by inferred and/or explicit promises to
respond to the gripes by stating the inquiry was made to
determine what it would take to "keep the union out."
The purport of the inquiry was clearly to negate any
reason to seek union representation. In this milieu, the in-
quiry is violative of Section 8(a)(1) of the Act.
The coercive impact of this solicitation of "'gripes"
was exacerbated by several threats made, during the
meeting. Additionally these threats of plant closure, job
loss and stricter enforcement of plant rules have not been
is Enterprise Products holds
Although making inquiries about employees' dissatisfactions is not
unlawful, standing alone, when it is done in the context of a union
organizing campaign of which the Employer has knowledge and is
accompanied by assurances that methods of rectification of the prob-
lems are under consideration or active study , it becomes unlawful in-
terference by solicitation of grievances and conveying an implied
promise to better working conditions in order to remove any reason
for union, representation
See also Phoenix Globe G9, 268 NLRB, 680 (1984)
17 As"here pertinent, Windsor, ibid , provides at 1016-1017,
It is well settled that where, as here, an employer, who has not
previously had a practice of soliciting employee grievances or com-
plaints, adopts such a course when unions engage in organizational
campaigns, there is a "compelling inference that he is implicitly
promising to correct those inequities he discovers as a result of his
inquiries "41
However, the Board has also held that it is not the solicitation of
grievances itself that is coercive and unlawful , but the promise either
expressed or implied to correct such grievances The solicitation of
grievances merely raises an inference of such a promise, which can
be rebutted by the employer Uarco Incorporation, 216 NLRB
1(1974)
The Board's observations in Raley's, supra, are equally applicable
to the facts herein-
Were 'we to conclude that Respondent, by merely reciting a "no
promises" formula, had clearly discharged its duty to avoid giving
the employees the impression that their complaints would be reme-
died, we would be forced to conclude that the parties at these
meetings were engaged in a largely meaningless exchange con-
cerning the employees' grievances and complaints. However, it is
apparent that the reason for voicing such complaints was the hope
that they might be remedied. Clearly, as reflected in the Adminis-
trative Law Judge's Decision, the adamancy with which the em-
ployees continued to express their grievances and Respondent con-
tinued to entertain them, despite such formalized disavowals by
Respondent that any changes' would ensue, sufficiently indicates
that such disavowals were not tendered or taken at face value
Thus, we conclude that Respondent's oft-repeated stock phrase of
"no promises" was a mere formality, $ervmg only as an all-too-
transparent gloss on what is otherwise a clearly implied promise of
benefit 48
41 Reliance Electric Company, Madison Plant Mechanical Drives
Division, 191 NLRB 44, 46 (1971), Raley's Inc, 236 NLRB 971
(1978), Arrow Molded Plastics, Inc, 243 NLRB 1211 (1979)
48 236 NLRB at 972
1166 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
shown to be legitimate prophesies "[A]s to demonstrably
probable consequences beyond his control" and there
was 'no showing that "economic necessities" would have
such results. NLRB v. Gissel Packing Co., supra at 618.
On the contrary, the prophesies were predicated upon
the success of the union organizing campaign. These
threats clearly contain implications of reprisal for engag-
ing in union activities . Textile Workers v. Darlington Mfg.
Co., 324 U.S. 793 (1945): Marchese Metal, 270 NLRB 293
(1984); Rosewood Mfg. Co., 269 NLRB 783 (1984). " It is
[b]eyond question [that] employees are particularly sensi-
tive to rumors of plant closing and view such rumors as
coercive -threats rather than honest forecasts." NLRB v.
Roselyn Bakeries, 421 F.2d 165, 167 (7th Cir. 1972); Frito-
Lay Inc. Y. NLRB, 585 F.2d 62, 66 (3d Cir. 1978).
Threats of plant closure made in the atmosphere of a
union organizing campaign is considered "one of the
most potent instruments of employer interference with"
the exercise by employees of the rights guaranteed them
under Section 7 of the Act. Chem vex Laboratories v,
NLRB, 497 F.2d 445, 448 (8th Cir. 1974). By threatening ,
plant closure,-job loss, and stricter enforcement of plant
rules under the described circumstances , Respondent re-
strained and coerced employees in violation of Section
8(a)(l) of the Act. NLRB v. Heads & Threads Co., 724
F 2d 282 (2d Cir. 1983); Peabody Goal Co. v. NLRB. 725
F.2d 357 ,(6th Cir. 1984); Midwest Motel Management
Corp. of Birmingham, 261 NLRB 719 (1982).
2. Other alleged violations by McKendrick
As found above, Warren's allegation that McKendrick
threatened plant closure at the 2 June employee meeting
is not credible and, if properly included in this proceed-
ing, should be dismissed . The General Counsel alleges
that McKendrick engaged in other actions violative of
Section 8(a)(1) of the Act.
a. 1 August
Maxfield testified that on 1 August McKendrick
"made the statement that if the employees accepted the
union, that we would not be allowed to work on non-
union equipment in a union shop, and that we would lose
our business. We'd eventually close the doors." Similar
inferences were made in some of the Company's cam-
paign literature . The union 'constitution , articles 11 and
12, contained provisions which could be interpreted as
prohibiting union employees from working on equipment
owned by nonunion mines. Reed assured the employees
that the constitution , if it contained such a proscription,
would be subject to a grant of dispensation from the dis-
trict president . The General Counsel argues that the
McKendrick statement to Maxfield and the company
campaign literature mentioning" the possible union pro-
scription are not the kinds protected by Section 8(c) of
the Act. This argument is found to be without merit
based on the inability of the General Counsel to demon-
strate that the Company 's interpretation - of the constitu-
tion was not founded on objective fact and warrants dis-
missal of this allegation.
Maxfield also testified that after the election McKen-
drick "informed me that if the union would have got in,
that they would have refused to negotiate with -the union
and forced the employees out on strike and then replaced
us." Maxfield also claims that McKendrick told him that
two mine operations , Beaver Creek and Tovar Enter-
prises, among others, would withhold - business if the
Company's employees , voted in the Union. Further, Max-
field -asserts McKendrick told him the pay cut would
have been restored sooner if the union organizing cam-
paign had not occurred . McKendrick denies these asser-
tions but admits he may have mentioned the subject of
how customers would react to the unionization of the
Company. He did mention that there was customer con-
cern for timely delivery''in the event of a strike. McKen-
drick denied telling Maxfield the pay cut would have
been restored sooner if the employees had not had the
union organizing campaign . McKendrick said he recalled
a conversation with Maxfield in late October regarding
collective -bargaining , saying that the employee could
end up with less or, they could end up with more, and if
they did not accept it, they would go out on economic
strike and economic strikers could be legally , replaced.
Maxfield 's testimony is .credited based principally on his
forthright demeanor. Also considered were inherent
probabilities, surrounding circumstances , similarity of in-
cidents as related by sequestered witnesses, and reasona-
ble inferences drawn from the entire record.
McKendrick 's - comments as plant manager were not
isolated or made in, a joking or casual manner. They
were made ' during or subsequent to a hard -fought union
organizing campaign , in conversations McKendrick initi-
ated . It is a violation of the Act when an employer im-
plies that, even if the union prevails, it. intends to avoid
its statutory . duty to bargain in good faith , thereby con-
veying the - perception that the employees ' organizing ac-
tivities were futile. There were no qualifying or-disclaim-
ing statements about its lack of intent to bargain in good
faith as the ' genesis of a strike if the employees selected
the union as their representative . Thus, this statement is
not protected by Section 8(c) of the Act. NLRB v. Hen-
rickson, 481 F.2d 1156, 1162 (5th Cir. 1973 ), Kenworth
Trucks-of'Philadelphia v. NLRB, 580 F.2d 55, 57, 58-59
(3d Cir. 1978). Compare Golden Poultry Co., 271 NLRB
925, 927 (1984).
In determining whether the reference to replacement
of economic strikers is protected by Section 8(c) of the
Act, it must be considered in context .' In this proceeding,
the statement was made in conjunction with the infer-
ence that organizing would be futile and raised the possi-
bility of forcing a strike to replace unionists. In this cir-
cumstance , the statement was coercive and violative of
Section 8(a)(1) of the Act. Progressive Supermarkets, 259
NLRB 512 (1981). -
Similarly ' McKendrick 's telling Maxfield that the em-
ployees' ' pay would have been completely restored
sooner if they had not attempted unionizing is not pro-
tected by Section 8(c) of the Act under these circum-
stances where there was a clear implication of an ad-
vancement of reinstitution of, benefits during the pen-
dancy of, objections to election if the employees had, not
engaged in, protected concerted activity ; to state that at-
tempts to unionize so acted to the employees ' detriment
LONG-AIRDOX CO
is a violation of Section 8(a)(1) of the Act. NLRB `v.
Heads & Threads`Co., 724 F.2d 282 (2d Cir. 1983); St.
Francis Federation of Nurses v. NLRB, 729 F.2d 844
(D.C. Cir. 1984), and NLRB v. Exchange Parts Co., 375
U.S. 405, 409 (1984).
There is also testimony , of record regarding a conver-
sation between McKendrick and Robert Downard which
was not specifically alleged as a violation and will be
considered only with relation to the objections to elec-
tion and as background . According to Downard;
McKendrick came to his work station between 8 and 9
a.m. and
just started out by asking what I-how I felt about
what was going on. I told him I thought it was , a
bad situation all- the way around . Cecil asked me if I
had ever been in a union or had anything to do
with one. I told him I hadn't. He told me to talk to
Frank Rinna and a few other-you know, a few
people that had been in unions that had been ripped
off by unions, talk - to people that had belonged to
the UMWA, just get more of an. idea of what I was
getting myself into.
That was-he expressed a point that-empha-
sized a point very strongly that Long-Airdox was
against any union: He personally didn 't care for the
UMWA at all. That was about the gist of the first
conversation.
This conversation lasted about 2 hours.
About 3 or 4 days later, they had -another conversation
lasting about an hour. According to Downard:
Cecil started talking about the unions again,
about-he kind of asked which way I-you know,
that he wanted me to vote for the company. He
said that the union, if we voted it in, would take
money from each job. There would be less money
for the employees for raises. There was a good pos-
sibility that Long-Airdox would close up the shop
before they allowed the union in. Towards the end
of the conversation , he said that, if we voted the
union in, they would close the shop. So what it
boiled down to, was voting for the union and having
unemployment or 'voting , for the company and
having a job. That was about all that was said.
We talked about a- couple 'of jobs we had in there
at that time , a few things like that.
One job they discussed had too many hours over the
bid and according to Downnard „ McKendrick
went on to say, if we had the union , it would-the
jobs would take more time , we'd get less jobs from
the mines. There was a lot of mines that wouldn't
send their jobs to us because we were a union shop,
and they would be,afraid .: . that, if they sent their
equipment to us, if ' there was a strike , they wouldn't
be able to get it out of the shop.
McKendrick also said that if the employees unionized,
the company "might be even more in the red." He did
not explain how unionization might cause this quit. "He
1167
[McKendrick] indicated that, if the union is voted in,
we'll close this son-of-a-bitch down . . . because they
didn 't want the shop to be union . . . . Wouldn't be finan-
cially feasible to keep it open. . . . That the union would
create a bad atmosphere ." Two mines McKendrick
named as possible lost business were Beaver Ci eek and
Sulphur Creek. , . . [A]t one point Cecil [McKendrick]
said that we had always been able to work out our'prob-
lems in , the past and Nye didn 't need a third party to work
out any problems we had or wanted to talk about."
McKendrick admitted talking to Downard about the
cost overruns but denies mentioning a dollar figure. The
dollar figure of the cost , overrun was never placed in evi-
dence by the Company. He denies tying , in the cost over-
run to the union election . McKendrick also admits telling
Downard to talk with Vern Lyons, Frank Rinna, and
Dominick Bruno about unions, but denies all other alle-
gations. Downard 's testimony is credited based on de-
meanor . Downard also exhibited a facility to recall
events superior to McKendrick who exhibited some se-
lectivity in his ability to recollect events. Threatening,
plant closure or loss of jobs in the event of a successful
union organizing campaign are acts extremely 'destruc-
tive of the election process and also is indicative of the
measures Respondent utilized during the organizing cam-
paign. -
3. Other alleged violations by Tietjen
Jacobs, a known union supporter and current employ-
ee who has been found , based on demeanor ,,to be a cred-
ible witness , testified that Tietjen twice threatened him
with discharge . The first incident occurred about 1
August. "[H]& -[Tietjen] walked up behind me and told
me he wished I would screw up so he could-fire me and
get rid of the problem " About 1 week later , Tietjen, in
the company of Charles Campagni , a salesman for an-
other company ,' 8 walked near Jacobs' machine , -said in a
voice, loud- enough for Jacobs to hear, "that he [Tietjen]
wished I [Jacobs would] ruin something so he could get
rid of the problem ." Although Jacobs and Tietjen had
previously been friends and joked- with one another, the
atmosphere in which the statement was made belies
friendship or humor. Tietjen's version of the events,
wherein he claims Jacobs was complaining about the pay
cut, and he advised him to quit if he was unhappy, is not
credible based principally on demeanor also considered is
Tietjen's highly selective memory, his version of the
events does not explain the repetitive , nature of the'state-
ment nor the selectivity in address to one of the leading
union proponents and an elected employee spokesman.
Most of the employees were admittedly distressed over
the wage reduction and were not counseled to quit, The
use, of the euphemism "problem" clearly indicates the
genesis of the threat was Jacobs' organizing activities;19
18 Campagni did not appear and testify He is a salesman for Gemca in
Price, Utah.
19 McKendrick had to assure Jacobs that the Company would not re-
taliate against employees for their union activities - Jacobs sought such as-
surances on several occasions . The Company did live up to these assur-
ances by not accepting his tendered resignation shortly before this trial
Continued
1168 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Such statements by the plant superintendent are clearly
coercive and intimidating in violation of Section 8(a)(1)
of the Act.. Steiner Film Inc., 255 NLRB 769 (1981), and
Maywood Inc., 251 NLRB 980 (1979).
Warren testified that on or about 29 June Tietjen and
Martin were walking past his work 'station and they ex-
changed pleasantries. Then Tietjen, in response to a
question of how he was doing , said, "Let's put it ' this
way. We know we're going to be working when you're
gone." Then' Tietjen and Martin chuckled. Warren was
an open union advocate. Warren also testified that on 20
June, after Tietjen observed him talking to Reed, Tietjen
came up to -his work station and, in the presence of Jay
Humphrey, said "that the men that had gone union had
cut off their nose to spite their face. The company was
going to shut -the doors." Warren did not ask Tietjen
what he meant.
Tietjen denied making this statement to Warren. He
admits making a similar statement on or about 29 June,
telling Warren 'during a discussion about the election that
regardless- of the result` "that I would still be working
there, but it really didn't have any bearing on my em-
ployment." Martin had no recall of the incident. Tietjen
also denied making the statement in the context Warren
asserted, but instead testified:
We were-I was down in the work area where
Chuck and I believe Robert Downard was present
there also and we were debating, you might say,
why he was for union versus non-union. And it
`seemed like the biggest complaint was the way the
20 percent wage reduction came into effect without
some kind of forewarning and things along that
nature, and I said, well the union is not going to
guarantee that you get your money back or help
you in that way. I said, it is just going to cost you
more money, so I said, don't cut your nose off to
spite your own face.
Tietjen did not explain why he predicted the Union
would cost Warren more money. Humphrey , an admit-
ted supervisor, did not appear and testify. This warrants
taking an• adverse inference; however, such an inference
is unnecessary to support the findings made herein.
Downard did not substantiate Tietjen. Both Tietjen-and
Warren have not been found to be highly credible.' How-
ever, considering all the conversations, the admission
that Warren was told unionization would result in "cut-
ting 'off his nose to spite his face," it is found that contex-
tually this statement was most probably made in the con-
text of a plant closure threat. Such a threat, as found
above, is violative-of Section 8(a)(1) of the Act.
Julian Lyle Bowman, a' current employee who was on
medical disability leave until 27 June, asserts that Tietjen
unlawfully interrogated him on 29 June about how Rick
Allred and DeMar Guymon would vote. Similarly the
following week, Tietjen assertedly asked him how Rich-
ard Dempsey would vote. Bowman claimed Tietjen
when he was disciplined for insubordination. This action by the Compa-
ny long after the incidents here in issue and the failure to show that Tiet-
jen Wasp active in Jacobs' retention, does not place the above findings in
doubt
asked how he felt about the, Union,, but this allegation
was- not included in his affidavit dated 14 September.
Tietjen also assertedly asked him to persuade other em-
ployees to vote against the union and threatened plant
closure by saying that the Company had already closed
the Polaski plant because- W union activities. On 10
August Tietjen and McKendrick assertedly referred to
Bowman in very derogatory terms. On the preceding
day, Bowman went to Tietjen to straighten out a payroll
matter . Bowman clearly misconstrued an obvious- error
to be prejudicial treatment. Bowman's pay had been re-
duced more than the companywide mandated 20 percent
and it was immediately restored to the proper amount
when the error was noted. Bowman's' assertion that Tiet-
jen requested he not tell others of the correction because
it could cause problems with other employees because of
the union organizing campaign is patently incredible,
Further,- as noted below, Bowman is not a credible wit-
ness.
Based on Bowman 's testimony, the General Counsel
also asserts that Tietjen threatened to discharge him and
issued written warnings to him because of his efforts on
behalf of the Union. Specifically Bowman testified Tiet-
jen asked him on 9 August "why didn't I just quit or
fuck up-so he could f re me," and threatened to fire
him. Only two warnings were placed in evidence as
having been issued to Bowman. Bowman claims there
were about five and, although he ostensibly received and
retained copies, he had none even though afforded an
opportunity to search his records. On 8 March he was
written up for an unexcused absence and on 23 February
and 6 August he was written up for 7 minutes unexcused
tardiness. He was admittedly late and did not deny he
initiated a pattern of deliberately clocking in late. The
March warning was issued prior to the' organizing cam-
paign . These warnings were not shown to have been
issued for proscribed reasons or issued in a disparate
manner . Any testimony by Bowman indicating otherwise
is not credible, based on demeanor; he was visibly surly
and hostile toward Respondent. Also he tended to em-
bellish his testimony, which was confused, inconsistent,
and unbelievable, He admitted his testimony was' one
way of getting even with the Company. It is found -that
the General Counsel has, failed to establish by, credible
evidence that Tietjen interrogated, threatened, and issued
illegally warning notices to Bowman. Accordingly, these
allegations are dismissed,
4. Alleged violations by Martin
Rick Allred, a current employee, testified that a day or
two before the election Martin walked up to him and Joe
Jenson and
told us that he had been in a meeting with the man-
agement of Beaver Creek, and he named the gentle-
man. And then he told us that this guy said that
they would be very apprehensive of ever sending
any work down to a group of people that tried to
close them down every two or three years.
Mark Poling, the manager, of maintenance at Beaver
Creek, told Martin he had significant concern because of
LONG-AIRDOX CO.
the union organizing effort for he was in charge of a
"major rebuild" project and adherence to a schedule by
timely delivery was key to performing his job. He be-
lieves Martin told him that even if the shop was union-
ized they could still deliver the equipment on time.
Martin admitted speaking to ,Jenson and Allred:20
I asked Joe particularly the question of what did
we feel that we ' could still need [to meet] our
schedule[d] turnaround times, for would we] remain
a viable and reliable source of [rebuild] if our costs
would remain consistent and if in fact we felt that
we could in the same manner that we were opeating
[sic] in at that particular time.
Martin claimed some of these questions were reflective
of his own concerns as distinguished from the customers,
but he did not specify which nor does the record support
a finding that certain of the statements or questions were
related to the employees as being reflective of Martin's
concerns as distinguished from customer concerns.
Allred, •according to Martin, then asked what he thought
would happen to the Company, and Martin's response
was he did not know.
That same day Martin spoke to Dominick Bruno, Tom
Meyers, and Vern Lyons in the electrical shop. Martin
went, to the electrical shop to ask Bruno if he would act
as an observer during the election., And then he told the
employees that, customers had repeatedly expressed a
concern regarding the impact of unionization upon turna-
round time, ieliability, and the Company's ability to
remain an economically viable rebuild shop. According
to Lyons, a current employee, Martin said:
Fellows, I've got bad news. I've gotf real bad news.
I've'-just, been to Beaver Creek" and Plateau coal
mines and at both places the moment I arrived there
I had been called into the office and told by the
boss that they understood Long-Airdox Company
was organizing under the UMWA, and, in fact,
today is' the election. They told me that, if the orga-
nization-organizing attempt was successful, they
would refrain from sending any repair work at all
from that time forward down to_Lon g-Airdox.
Martin denies making this statement but admitted men-
tioning Beaver Creek' and Plateau mines to Lyons,
Bruno, and Meyers. Bruno did not testify. 'Meyers cor-
roborated Lyons, stating that Martin "told us that 'he had
just come from Plateau Mining, and he said, `They defi-
nitely said they would not send any,more equipment to
us if we went Union."' Martin also spoke to Warren that
same day. According to Warren:
He [Martin],came up to me and said that he was
scared, that he had taken some men around from
Beaver Creek and Plateau and they had seen a
UMWA sticker on the roof bolter we working [sic]
on, and that they had said that they hoped that it
didn't go union because their policy _was that they
20 Martin recalled the conversation as having occurred on the day of
the election, after noon Balloting occurred between 2 and 3 p.m
1169
did not send work to a union company, that they
possibly would ' do the work theirselves^^[stc]-'and
build their own building. '
Martin 's version is that representatives from Beaver
Creek, including Poling, complained about a union stick-
er being placed on a piece of 'their 'equipment and he
mentioned this displeasure to Warren and said there was
no humor or joke involved . Poling's testimony did not
address this incident. This lack of corroboration is unex-
plained.
Martin's versions of these conversations are not cred-
ited , based on demeanor , the similarity between the state-
ments to the various employees , the, lack of clarification
why a supervisor would , seek employees ' opinions on the
day of' ,the union election about the ramifications of
unionization, the failure to couch admitted statements' in
terms of beliefs, prohibitions , or other factors indicative
of soundly based prediction rather than a contrived
device to coerce employees ; the lack of corroboration by
Poling about the statements made about the union sticker
on their equipment ; and "the corroborative testimony of
the employees.
The issue then is Whether Martin's statements were
lawful under Section 8(c) of the Act. The only witness
for a customer, Poling, did , not indicate that it would
reduce or eliminate the business given 'Respondent. The
Company's predictions of loss - of business were not
shown to have been based on objective facts and did not
convey beliefs based on demonstrably probable conse-
quences beyond its control . The statements contained
threats of reprisal , i.e., loss'of,business and probable job
loss. See NLRB v. Gissel Packing Co ., supra, 395 U.S. 575
at 616-619. In analyzing these statements in the Compa-
ny's -labor relations setting," they are found to be viola-
tive of Section 8(a)(1) of the Act. Purolator Armored, 268
NLRB 1268 (1984).
Jacobs also alleged that Martin, about 2 weeks before
the election, in the presence of Humphrey, walked up to
Jacobs' machine and said:
"I hear you're pretty well hung," and I told him
that he's heard wrong. And he told me-be says,
"Well, that's what I've heard.,",
And I told him-told Mike Martin, "Well, what-
ever's right."
,
Then he told me he says, "Well, why don't you
go fuck yourself, then." He says, "That's what all,
the mines tell me when. I go to get work from them
because of the Union, activity." ,
Q. And what, if anything, did you say in re-
sponse to it?
A. Then I did not say anything.
Q. What did they do after that statement was
made?
A. Mike Martin just kind of snickered and
walked off.
Martin denied making the comment in the context de-
scribed by Jacobs; rather he asserts that a similar com-
ment was made as a punchline to a joke he initially
heard from Jerry Price of Plateau Mine and was repeat-
1170 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ing. Tietjen corroborated Martin's testimony, including
his denial that he concluded the joke by telling Jacobs
that is what all the mines ate saying because of the
Union . However, contrary to Martin 's testimony , Tietjen
stated that he believed Martin , was telling the joke to
Jacobs. Although it could be argued that Jacobs miscon-
strued a joke , Jacobs credibly and forthrightly testified
that Martin analogized the punchline to the actions of
customers . It was not necessary for the Employer to be
more precise in using analogy to threaten plant closure.
The use of an analogy makes the prospect of loss of busi-
ness and possible plant closure in the event of unioniza-
tion no less threatening . That a "joke" was utilized as the
vehicle to present the threat does not abrogate the coer-
cive and intimidating aspects of these statements. These
thinly veiled threats of plant closure or loss of business
from important customers in the event of unionization,
initiated by the Company in the atmosphere where
Jacobs and others received various threats, is a violation
of Section 8(a)(1) of the Act. Gentile Pontiac, 260 NLRB
429 (1982); Patsy Bee, 249 NLRB 976 (1980); Blaser Tool
& Mold Co., 196 NLRB 374 (1972). Compare Daniel
Construction Co., 264 NLRB 569 (1982).
5, Alleged violations by Lerrick
Lerrick did not appear and testify. Record evidence
fails to explain his absence. Paragraph V(i) of the com-
plaint alleges that immediately preceding the election
Lerrick unlawfully interrogated employees.21
Lerrick had one conversation with Jacobs. This is the
first time Lerrick spoke to him during Jacobs' 5 years
with the Company. On the day of the election, according
to Jacobs' uncontroverted testimony: -
Gene Lerrick came up to me at my machine and
asked me if I'd considered all the information they'd
give us in the meetings and the things they've said,
and I said, "Yes, I have."
And Mr. Lerrick asked if it had changed my
vote, and I said no, it had not. I told him I was still
for the Union.
And he asked me why.
And I said, "Because I've been threatened with
my job," and I felt I needed the protection.
And he told me that I did not have to worry
about that, 'cause nobody would fire me or harass
me because of my Union activities.
And I asked him if he would put in writing.
And he said he did not need to, but-and then
shortly after that, the intercom-it come over the
intercom, the announcement that the polls had been
open, the polls were voting. So I shut my machine
down and went and voted.
When I come back, he was not there.
According to Howard Huntsman , a current employee,
he had two conversations with Lerrick. The first oc-
curred on 10 August,22 the day before the election, and
21 The allegation does not contend that the conversations fell within
the proscription about speeches within 24 hours prior to an election
Land O'Frost of Arkansas, 252 NLRB 1 (1980)
22 Huntsman testified that on 10 August.
the General Counsel admits it was not violative of the
Act. The following morning, while working, Lerrick ap-
proached him and
asked me again-he asked me if I was still going to
vote for the Umon. I said I was.
He wanted me to make a list of the pros and cons
for the Union and just some disadvantages and
some advantages that I felt I had, and he would get
back with me. But he never did get back with me.
Warren said that the morning of the election Lerrick
spoke to him. Warren testified:
I had been sick the day before and they had had
a meeting, and that he had a couple of pieces of
paper-there was some literature he wanted me to
read because he felt it was important, and I read
them and we discussed the information. He said
that-you know, he was hoping, you know, that I
would vote "no" in the election and that, you
know, he wanted me to give the company a chance.
I told him that I felt that they were too_ late, they
should have come out a month earlier or so and
talked to us about the situation that we had. He said
that, well, they couldn't come out and talk to us
about any raises or any benefits or anything because
it was against the federal law. He apologized for the
way that the wage cut was handled and felt that,
you know, this should be enough to make us happy.
I told him that I felt that the papers that they had
given us at work and mailed to our house about the
UMWA were cold and impersonal because it
looked like they were fighting against the UMWA,
not trying to solve the men's problems at work. He
asked me to make a list of what the UMWA had
done for me and what the company had done for
me and that I would find that the company had
done a lot more than the UMWA. Again he asked
me-that he hoped I would vote "no" in the elec-
tion. We gust kind of dispersed, you know, just quit
talking.
Warren's unrefuted testimony is credited based on de-
meanor and similarity to testimony of other witnesses.
Downard testified that the day before the election:
Mr. Lerrick asked me if there was anything that the
company could do to keep the employees from
voting for the union. I told him there was. They
could give the money back that was taken on a
wage cut. He said that was impossible, that it just
wasn't available and they couldn't do that. He said
Mr. Lerrick says, "I don't know how you're going to vote"
I told him that I was going to vote for the Union
He wanted to-Mr Lerrick wanted to know what things I felt the
Union could offer me, and we talked about-I talked about a pension
program and things.
He told me that the Union could not promise me these things Ba-
sically, just what I felt -that the Union could offer me and he did not
think that the Union could promise me the things that I felt that they
could And that I would-he encouraged me to not vote for the
Union . "I hope you will reconsider and vote no for the Union "
LONG-AIRDOX CO
they needed something concrete to keep the em-
ployees from voting for the union. I told him I
didn't know what that would be other than giving
the money back. I felt that it would probably go
50-50. I didn't know whether it would go com-
pletely for the union or not. . .. He said that-that
was about the end of the conversation. He said they
would have to try to find something to keep us
from voting for the union and that was about it.
This testimony is credited based on demeanor and the
similar testimony of other employees.
Lerrick's presence at the plant was a rare appearance
of a highly placed company official.23 His statements to
Jacobs contained no threats either direct or implicit.
While Lerrick assured Jacobs there would be no repris-
als, the inquiry was cojoined with an attempt to con-
vince Jacobs not to vote for the Union. That the ques-
tion of how he was going to vote was repeated to Jacobs
enhances its coercive nature. Also, the conversations
with Jacobs, Huntsman, and Warren asking how they
were going to vote, and of Downard as to what the
Company could do to change his vote, were placed in
the context of Lerrick trying to persuade them not to
vote for the Union. These employees, unlike Jacobs,
were not assured against reprisals. These inquiries consti-
tute unlawful interrogation in violation of Section 8(a)(1)
of the_Act for there was no evidence of a legitimate need
for such interrogation, that the questioning about their
union sympathies, was made in an atmosphere of multiple
unfair labor practices, including threats of reprisals such
as plant closure or job loss due to loss of business. See
Heritage Nursing Homes, 269 NLRB 230, 233 (1984);
Matting Colson Equipment, 257 NLRB 78, 79-80 (1981);
Raley 's, Inc., supra, 256 NLRB 946, 954 (1981); Swanson-
Nunn Electric Co., 256 NLRB 840 (1981).
6. Objections to election
The Union's election objections that are identical to
the unfair labor practice allegations, for the reasons set
forth above, are deemed to be meritorious.
Specifically, it is found 'that Tietjen and Martin threat-
ened bargaining unit employees with loss of jobs, and
that Objection 5 should be sustained.' Is it also found that
Tietjen, McKendrick, and Martin conducted interviews
with bargaining unit employees to persuade employees to
vote against the Union. However, the allegations as to
Meadors and as to "alleged conversations with employ-
ees in work areas and during work time" were overruled
by the Regional Director. Therefore, it is concluded that
only Tietjen's and McKendrick's actions in McKen-
drick's office are encompassed within Objection 7, and it
should be sustained.
Concerning Objection 11, since Lerrick's conversa-
tions all occurred during worktime on the plant floor
they were dismissed in footnote 2 of the Regional Direc-
tor's decision. The threats made by McKendrick and
Tietjen were made in part in McKendrick's office and is
a meritorious objection which should be sustained.
1171
.Having found that the Company, threatened bargaining
unit employees with loss of jobs and/or plant closure,
loss of important customers, engaged in unlawful interro-
gations, made unlawful promises, I will consider the next
issue-is whether this conduct warrants setting aside the
election of 11 August 1983. Most of the unlawful and all
of the objectionable conduct occurred during the union
organizing campaign and were not isolated incidents
during the critical period between the filing of the peti-
tion and the election. The unlawful conduct was engaged
in by high-ranking supervisors. The Company engaged in
many unlawful antiunion campaign activities. The objec-
tionable interrogations were not shown to advance a le-
gitimate need or purpose nor were the employees ad-
vised of such a need. The employees, save one or two
exceptions, were not given assurances against reprisals
for such interrogations. The threats of loss of jobs, plant
closure, loss of important customers, and promises of
benefits all warrant setting aside the 11 August 1983 rep-
resentation election. B. E. & K. Inc., 252 NLRB 256
(1980); Precision Graphics, 256 NLRB 381 (1981).
7. Is Respondent obligated to,bargain with the
Union and the request for a bargaining order
The parties have stipulated, and I find, that a majority
of the employees in an appropriate unit signed valid au-
thorization cards. Therefore I find that as of 20 June
1983 the Union represented an uncoerced majority of
Respondent's employees. It is alleged in the complaint
that the Union orally requested Respondent to recognize
it as the exclusive collective-bargaining representative
and to bargain collectively as to rates of pay, wages,
hours of employment, and other terms and conditions of
employment; and "since on or about June 30, Respond-
ent has failed and refused and continues to fail and refuse
to recognize or bargain with the Union as the exclusive
collective-bargaining representative of the employees" in
violation of Section 8(a)(5) of the Act. Neither the Gen-
eral Counsel's nor Respondent's brief addresses this alle-
gation. The matter has not been amended out of the
complaint. Accordingly, the record evidence will be
considered to determine if in fact such a violation oc-
curred.
Reed testified that on 20 June 1983 he, Dalpaz, and
Fred Lupo from the Union met with McKendrick, Tiet-
jen, and Sam Wardle.24 Reed told McKendrick that a
majority of the employees wished to be represented by
the Union and the Union wished to commence negotia-
tions immediately. Initially Reed testified that nothing
was said about authorization cards or proving majority,
but on cross-examination he said he informed the Com-
pany that a majority of employees had signed authoriza-
tion cards. The cards apparently were not shown to the
Company's representatives nor was there any indication
that they agreed to recognize the Union. Neither
McKendrick nor Tietjen refuted Reed's testimony de-
spite the opportunity to do so. Accordingly, it is found
that the Union was authorized to represent a majority of
the employees and demanded recognition and the com-
23 Childress Buick, 270 NLRB 1091 (1984) 24 Wardle did not appear and testify
1172 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
inencement of negotiations after informing the Company
it had a majority of authorization cards25 signed by the
employees, on'20 June, The Company did not look at-the
cards. -
As the Board stated in Schrementi Bros., 179 NLRB
853 at 854 (1969):
Although finding that the Respondent had en-
gaged in unlawful activity, the Trial Examiner nev-
ertheless was persuaded that the Respondent did
not act in bad faith in refusing to recognize and bar-
gain, with the Union. While we affirm his dismissal
of the 8(a)(5) allegation of the complaint, we do not
rely on his good-faith rationale.26
In judging when a bargaining order is appropri-
ate in a case where an employer has refused a re-
quest to bargain based on signed authorization
cards, the Supreme Court in NLRB v. Gissel Pack-
ing Cbmpany, recently stated that an employer's
good-faith doubt is largely irrelevant. Rather, the
Court instructed the Board to determine whether
the gravity of the employer's unfair labor practices
has `so diminished the possibility of ensuring a fair
election that employee free choice is better ascer-
tained by 'resort to signed authorization cards than
by an election.
The General Counsel has failed to show that Respond-
ent, by its actions on 20 June, unlawfully refused to bar-
gain. The record evidence fails to show that the Employ-
er acknowledged the`Union represented a majority of the
'employees and McKendrick denied the request to,bar-
gain . Silver Nugget Casino, 268 NLRB 1 (1983). As the
Court held in Gissel, supra, fn. 11 at 591:
When confronted by a recognition demand based
on possession of cards allegedly signed by a majori-
ty of his -employees, an employer need not grant
recognition immediately, but may, unless he has
knowledge independently of the cards that the
union has a majority, decline the union's request
and insist on an election, either by requesting the
union to file an election petition or by filing such a
petition himself under Section 9(c)(1)(B). If, howev-
er;- the employer commits independent and substan-
tial unfair labor practices disruptive of election con-
ditions, the Board may withhold the election or set
it aside, and issue , instead a bargaining order as a
remedy for the various violations. A bargaining
order, will not issue, of course, if the union obtained
the cards through misrepresentation or coercion or
if the'' employer's unfair labor practices are unrelated
generally to the representation campaign.27
25 The validity and authenticity of the cards is not questioned
as The Trial Examiner concluded, id at 867
For the above reasons, it is concluded that the General Counsel
has failed to establish by a preponderance of the evidence that the
Respond'ent's refusal to bargain with the Union since December 22,
1967, was not based upon a good faith doubt of the Union's majority
status. There was therefore no violation of Section 8(a)(5) of the
Act.
27 As stated in Joy Silk Mills v NLRB, 185 F.2d 732, 741 (D C Cir
1950), cert. denied 341 U S 914, enfg 85 NLRB 1263 (1949), when
The issue therefore is whether the independent unfair
labor practices found herein were sufficiently disruptive
of election conditions to warrant the issuance of a bar-
gaining order as a remedy rather than ordering a new
election. As stated in Burlington Industries, 257 NLRB
712 (1981), "where the unfair labor practices of an em-
ployer have so decreased the chance of a fair election
that the already expressed desires of employees for rep-
resentation are a more reliable indication of free choice
than an election."
Solicitation of employee grievances , 28 interrogation,29
threat of job loss, plant closure, or other reprisal" are
found to have sufficiently decreased the chances of
having a free election as to warrant the use of the au-
thorization cards as the indicia of employee choice That
is particularly true here where the Employer has not
taken any steps to alleviate the effects of having engaged
in its well-orchestrated campaign against unionization by
having its representatives engage in repeated and egre-
gious, violations of the Act. In fact, Respondent engaged
in serious violations of the Act after the election, render-
ing the holding of a free and fair second election unlike-
ly, if not impossible.
Accordingly, 1, find this impedance of the- election
process after a demand' to bargain by the Union, which
held valid authorization` cards signed by a majority of
the employees in a stipulated appropriate unit, to be vio-
lative of Section 8(a)(1) and (5) of the Act, warranting
the' issuance of a bargaining order. Highland Plastics, 256
NLRB 146 (1981).
such refusal is due to a desire to gain time and to take action to dissi-
pate the union's majority, the refusal is no longer justifiable and con-
stitutes a violation of the duty to bargain set forth in Section 8(aX5)
of the Act [Citing cases ] The Act provides for election proceedings
in order to provide a mechanism whereby an employer acting in
good faith may secure a determination of whether or not the union
does in fact have a majority and is therefore the appropriate agent
with which to bargain Another purpose is to insure that the employ-
ees may freely register their individual choices concerning represen-
tation. Certainly it is not one of the purposes of the election provi-
sions to supply an employer with a procedural device by which he
may secure the time necessary to defeat efforts toward organization
being made by a union
In Linden Lumber Division, Summer & Co v NLRB, 419 U S 301
(1974), the Supreme Court held that an employer may 'lawfully
refuse to bargain on the basis of union authorization cards and insist
on an election if he reframs from conduct that would tend to pre-
clude a free election
211 Farah Supermarkets, 228 NLRB 984 (1973)
29 Great Chinese American Sewing Co v NLRB, 578 F 2d 251 (9th Or
1978)
30 As the Board held in Highland Plastics, 256 NLRB 146 at 147
(1981)
We agree with the Administrative Law Judge's finding that the Re-
spondent's unfair labor practices were sufficiently widespread and se-
rious under NLRB v Gissel Packing Co, Inc, 395 U.S. 575 (1969), to
warrant issuinga retroactive bargaining order It has long been estab-
lished that the threat of loss of employment, discharge of union ad-
herents, and the threat of plant closure, all of which occurred herein,
are likely to have a lasting inhibitive effect on a substantial percent-
age of the work force, and therefore are considered "hallmark" vio-
lations which support the issuance of a bargaining order, unless some
significant mitigating circumstances exist No such circumstances
exist in this case
LONG-AIRDOX CO.
CONCLUSIONS OF LAW
1. Respondent is, and at all times material herein has
been, an employer engaged in commerce within the
meaning of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production employees, truckdrivers, repair and
maintenance employees, warehouse clerks and expeditors
employed by Respondent at its plant located one mile'
north of Huntington, Utah on Highway 10, but excluding
salesmen, all office clerical employees, guards and super-
visors as defined in the Act, constitute a unit appropriate
for the purposes of collective-bargaining within the
meaning of Section 9(b) of the Act.
4. At all times since 20 June 1983, the Union has been
the exclusive representative of the employees in said unit
for purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
5. By threatening plant closure, threatening stricter en-
forcement of plant rules, threatening loss of jobs, threat-
ening loss of business, threatening that unionization
would result in a failure to bargain in good faith by the
Company and result in an economic strike, threatening
that unionization would result in an economic strike with
the replacement of strikers, coercively soliciting griev-
ances, coercively and intimidatingly informing employees
that a pay cut would have been restored sooner if the
employees had not attempted to unionize, and coercively
interrogating employees about their or other employees'
union activities or protected concerted activities, Re-
spondent violated Section 8(a)(1) of the Act.
6. By refusing on and after 20 June 1983 to recognize
and bargain collectively with the Union as exclusive rep-
resentative of the employees in the unit described above,
Respondent has violated Section 8(a)(1) and (5) of the
Act.
7. Respondent's unfair labor practice conduct and the
objections to election sustained hereinbefore interfered
with the holding of a free and fair election which was
conducted on 11 August 1983 in Case 27-RC-6402.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and, (7) of the Act.
9. The Respondent has not engaged in the other unfair
labor practices alleged in the complaint, as amended.
THE REMEDY
Having found that Respondent has engaged in various
unfair labor practices, I recommend that it cease and
desist therefrom and take certain affirmative action to ef-
fectuate the policies of the Act. Specifically, I recom-
mend that Respondent be ordered to recognize and bar-
gain with the Union as the exclusive collective-bargain-
ing agent of the employees in the unit found appropriate
he rein.
On these findings of fact and conclusions of law and
on the entire record, I issue the following recommend-
ed31
-'I 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
ORDER
1173
The Respondent, Long-Airdox Company, ,a Division
of Marmon Group, Inc., Huntington, Utah, its officers,
agents, successors , and assigns, shall
1. Cease and desist from
(a) Threatening to close the plant before accepting the
Union as the collective-bargaining representative of its
employees.
(b) Coercively interrogating employees about their or
other employees' union activities, desires, or sympathies.
(c) Threatening employees with stricter enforcement
of the plant rules because of union activities, and indicat-
ing that the pay cut would have been restored sooner if
the employees had not engaged in union organizing ac-
tivities.
(d) Threatening that unionization would result in the
loss of business with a concomitant loss,of jobs.
(e) Threatening that unionization would result in a fail-
ure to bargain in good faith by Respondent and result in
an economic strike.
(f) Threatening that the economic strike would result
in the replacement of strikers and the concomitant loss of
jobs.
(g) Soliciting employee grievances and indicating a
willingness to rectify them in order to undermine the
Union.
(h) Refusing to bargain collectively with the Union
concerning terms and conditions of employment of its
employees in the following appropriate unit:
All production employees, truckdrivers, repair and
maintenance employees, warehouse clerks and expe-
ditors employed by Respondent at its plant located
one mile north of Huntington, Utah on Highway
10, but excluding salesmen , all office clerical em-
ployees, guards and supervisors as defined in Sec-
tion 2(11) of the Act.
(i) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
right to self-organization, to form, join, or assist labor or-
ganizations, to bargain collectively through representa-
tives of their own choosing, and to engage in other con-
certed activities for the purpose of collective bargaining
or other mutual aid and/or protection, or to refrain from
any or all such activities.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
bargaining representative of the employees in the appro-
priate unit with respect to wages, rates of pay, hours of
employment, and other terms and conditions of employ-
ment and, if an understanding is reached, embody such
understanding in a signed written statement.
(b) Post at Huntington, Utah, copies of the attached
notice marked "Appendix."32 Copies of the notice, on
Board and all objections to them shall be deemed waived for all pur-
poses.
az 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-
Continued
1174 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
forms provided by the Regional Director for Region 27,
after being signed by the Respondent's authorized repre-
sentative, shall be posted by the Respondent immediately
upon receipt and maintained for 60 consecutive days in
conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by the Respondent to ensure that the notices
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 "
are not altered, defaced, or covered by any other materi-
al.
(c) Notify the Regional Director in writing within 20
days from the date of this Order what steps Respondent
has taken to comply.
IT IS FURTHER RECOMMENDED that the complaint be
dismissed insofar as it alleges violations not specifically
found herein.
IT IS FURTHER RECOMMENDED, in Case 27-RC-6402,
based,, upon objections sustained hereinabove, that the
electin held 11 August be set. aside and dismissed and
that the proceeding be vacated.