Motown Record Corp.

National Labor Relations Board - Board Decisions

Jun 30, 1972

197 N.L.R.B. 1255 (N.L.R.B. 1972)

MOTOWN RECORv CORPORATION
Motown Record Corporation and Truck Drivers Local
299, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of Ameri-
ca, Ind . Cases 7-CA-8644, 7-CA-8644(2), and
7-RC-10499
June 30, 1972
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On December 3, 1971, Trial Examiner William W.
Kapell issued the attached Decision in this proceed-
ing. Thereafter, the Respondent filed exceptions and
a supporting brief, and the General Counsel filed a
brief in support of and cross-exceptions to the Trial
Examiner's Decision. The Respondent then filed a
brief in answer to the General Counsel's cross-
exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings,' and conclusions as modified
below.2
We do not adopt the Trial Examiner's conclusion
that Respondent granted wage increases to certain
employees in or about the middle of April 1971 in
order to dissuade the employees from voting for the
Union in the pending election.
The Trial Examiner based this conclusion in part
on findings that the mid-April increases admittedly
given to several of the 10 unit employees "could not
be justified" as having been granted pursuant to
established wage policies. We do not agree with this
finding.
In support of this part of the complaint, General
Counsel relied on the wage records of five employ-
ees: Terrana, Gavin, Jennings, and John and Orson
Lewis. Review of these individuals' wage records
shows, in Terrana's case, that Terrana last received
I We note and correct the following inadvertent error in the Trial
Examiner 's Decision which does not affect the result in the case The Trial
Examiner found that Kosloski submitted a list of the employees ' reasons for
wanting a union on the Tuesday before the election The record shows that
the list was not submitted until after the election
2 The General Counsel excepts to the Trial Examiner 's failure to provide
in paragraph 1(f) of his recommended Order that nothing contained therein
should be construed as requiring the Respondent to revoke any wage
increases or other employee benefits previously announced , committed, or
granted We find merit in the exception and shall appropriately issue a new
Order and notice
3 There are certain suspicious circumstances which have given us pause
197 NLRB No. 176
1255
an increase on February 22, 1971-a date preceding
the filing of the Union's representation petition by
some 8 weeks, and the conduct of the Board election
by some 12 weeks. Terrana's increase therefore
provides no support for the violation premised on
Respondent's wage increases. The other four employ-
ees did in fact receive increases in or about mid-April
1970. In the case of the first three of these four, the
Trial Examiner found, and an analysis of the wage
records shows, that, in terms of timing, Respondent's
grant of the increases did not represent any substan-
tial deviation from established wage policies. Analy-
sis of the wage record of the fifth employee-Orson
Lewis-supports a similar finding with respect to the
increase granted him. Lewis was hired on March 9,
1970. He received one wage increase some 6 months
thereafter. This was in accordance with Respondent's
policy of evaluating a new employee within a
relatively short period after his employment. He also
received another wage increase in April 1971. This
was in accordance with Respondent's policy of
evaluating a new employee on an annual basis at or
near the anniversary of his hiring date.
The other factors which the Trial Examiner
apparently considered relevant to the wage increase
issue included Respondent's other contemporaneous
unfair labor practices and the fact that Respondent's
application of an evaluation program requiring some
subjective judgment resulted in the preelection grant
of increases to a substantial number of unit employ-
ees. These factors do, of course, cause us to scrutinize
with care Respondent's motives for the wage raise
grants. However, as none of the mid-April increases
were granted prematurely under the Respondent's
established evaluation policies, and as there is no
affirmative evidence that the favorable evaluations
granted the employees involved were not merited, we
cannot find that a preponderance of the evidence
establishes that Respondent in fact granted the mid-
April increases because of unlawful considerations.3
We shall therefore dismiss that part of the complaint
which allegcs that Respondent violated Section
8(a)(1) of the Act by granting wage increases in order
to dissuade employees from voting for the Union.
The Trial Examiner concluded, relying in part on
his finding that the wage increases were unlawful,
Thus, in a conversation between employee Wismewski, a recipient of a
merit increase , and Respondent 's personnel director, statements were made
which clearly violated Sec 8(a)(I) In the same conversation , mention was
made of Wisniewski's increase Yet in reviewing the total context of this
conversation , the improprieties appear totally unconnected with the
mention of the increase, and we can perceive in this conversation no basis
for an inference that Respondent was attempting to suggest that Wisntew-
ski s um-- activity. or- lack thereof,had-been considered in granting him
an increase , , r that this had been or would be the case with-others. Thus a
nexus between the improper statements and the wage increases has not been
established , and, whatever our suspicions may be, we cannot make, or
affirm , findings which do not have adequate evidentiary support
1256 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the unfair labor practices found were of such a
caliber that a fair election could not be held even
after the Board's conventional remedies had been
applied and that the authorization cards signed by
the employees would be a more reliable measure of
the employees' desires. He therefore recommended
that an order requiring the Respondent to bargain
with the Union should be issued.
We do not believe that the issuance of a bargaining
order is justified in this case. The unfair labor
practices we have found are neither extensive nor of
such a nature that they would have a lingering effect
that could not be erased by our traditional remedies.
The threat to the. tenure of the employees if they
engaged in concerted activity was made in the first
week of January 1971, 4 months before the election,
and did not deter four of the Respondent's employ-
ees from signing union cards late in February and
thus giving the Union its card majority. The
interrogation consisted of inquiries directed at two
employees and was not accompanied by any threat
to the employees' tenure or working conditions or
any suggestion that benefits would accrue by voting
against the Union. The suggestion made to one
employee that the April wage increases were con-
nected with the union activity of the employees was
not couched in coercive terms, and, in any event, the
employee was well aware that his pay was reviewed
in April of each year. Nor can we regard the failure
of the Respondent, in the same conversation, to deny
the employee's own statement that discussions of
unions were taboo, the single instance of a request
that union material received be brought to the office,
or the discussion between one of Respondent's
supervisors and an employee regarding the chances
of improved working conditions dependent upon the
advent of the Union as serious under the circum-
stances herein.
We have thus found that the Respondent has
violated Section 8(a)(1) of the Act in some seven
instances. But none of them were directed at the
employees in general, none of them seriously
jeopardized the employees' job security, no specific
benefits were promised, and, taken in their context,
none could have so affected the employee or
employees involved to such an extent that they could
not cast a free and uncoerced ballot after the
application of the Board's remedies. We therefore
believe that the employees' interests would be better
served by the holding of a second election rather
than the issuance of an order requiring the Respon-
dent to bargain with the Union.
Accordingly, we shall dismiss those portions of the
complaint alleging that the Respondent violated its
duty to bargain and that wage increases were granted
in violation of the Act. We agree with the Trial
Examiner that the unfair labor practices committed
interfered with the employees' free choice in the
election which was conducted in Case 7-RC-10499
and we shall therefore set aside that election and
direct a new election.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that Respondent,
Motown Record Corporation, Detroit, Michigan, its
officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Giving employees the impression that they
would be discharged for engaging in concerted
protected activities to improve their conditions of
employment.
(b) Impressing employees with the likelihood that
only a union defeat could improve their conditions of
employment.
(c) Permitting employees to remain under the
impression that union talk or organization would be
ground for dismissal.
(d) Coercively interrogating employees concerning
their union sentiments.
(e) Inviting employees to report on union activities.
(f) Giving employees the impression that an
antiunion position would improve their prospects of
obtaining wage increases , except that nothing con-
tained herein shall be construed as requiring the
Respondent to revoke any wage increases or other
employee benefits previously announced, committed,
or granted.
(g) In any like or related manner interfering with,
restraining, or coercing its employees in the exercise
of the rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its facilities in Detroit, Michigan, copies
of the attached notice marked "Appendix."4 Copies
of said notice, on forms provided by the Regional
Director for Region 7, after being duly signed by
Respondent's representative, shall be posted by
Respondent immediately upon receipt thereof, and
be maintained by it for 60 consecutive days thereaf-
ter, in conspicuous places, including all places where
notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure
* In the event that this Order is enforced by a judgment of a United pursuant to a Judgment of the United States Court of Appeals enforcing an
States Court of Appeals, the words in the notice reading "Posted by Order Order of the National Labor Relations Board."
of the National Labor Relations Board" shall be changed to read "Posted
MOTOWN RECORD CORPORATION
that said notices are not altered, defaced, or covered
by any other material.
(b) Notify the Regional Director for Region 7, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
It is further ordered that the complaint be
dismissed insofar as it alleges violations of the Act
not specifically found.
It is also further ordered that the election held in
Case 7-RC-10499 on May 14, 1971, be, and it hereby
is, set aside, and that the case be remanded to the
Regional Director for Region 7 for the purpose of
conducting a new election in the appropriate unit at
such time as he deems the circumstances permit the
free choice of a bargaining representative.
[Direction of Second Election and Excelsior
footnote omitted from publication.]
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten to discharge employees
who engage in concerted protected activities to
improve their conditions of employment.
WE WILL NOT impress emp'oyees with the
likelihood that only a union defeat could improve
their conditions of employment.
WE WILL NOT permit employees to remain
under the impression that union talk or organiza-
tion would be ground for dismissal.
WE WILL NOT coercively interrogate employees
concerning their union sentiments.
WE WILL NOT invite employees to report on
union activities.
WE WILL NOT give employees the impression
that an antiunion position would improve their
prospects of obtaining wage increases, except that
nothing contained herein shall be construed as
requiring the Respondent to revoke any wage
increases or other employee benefits previously
announced, committed, or granted.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our employees
in the exercise of their right to self-organization,
to form, join, or assist labor organizations, to
bargain collectively through representatives of
their own choosing, or to engage in other
concerted activities for the purposes of collective
bargaining or other mutual aid or protection, or
to refrain from any and all such activities, except
to the extent that such right may be affected by
1257
an agreement requiring membership in a labor
organization as a condition of employment as
authorized in Section 8(a)(3) of the National
Labor Relations Act, as amended.
MOTOWN RECORD
CORPORATION
(Employer)
Dated By
(Representative ) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered , defaced, or covered , by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office , 500 Book Building , 1249 Washington
Boulevard , Detroit , Michigan 48226 , Telephone
313-226-3200.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM W. KAPELL, Trial Examiner: This matter, a
proceeding under Section 10(b) of the National Labor
Relations Act, as amended, herein called the Act, was tried
before me in Detroit, Michigan, on August 23 and 24,
1971,1 with all parties participating pursuant to due notice
upon the consolidated complaint 2 issued by the Acting
Regional Director on June 21. The complaint, in sub-
stance , alleges violations of Section 8(a)(1) and (3) of the
Act in that Respondent interrogated employees concerning
their union activities, solicited employees to engage in
surveillance of union activities of other employees, threat-
ened employees with discharge if they attempted to
concertedly seek wage increases, threatened to discharge
employees if the Union won the election, stressed the
futility of bargaining through the Union and the inevitabil-
ity of a strike if the Union were selected as bargaining
agent, promised improved working conditions if the Union
lost the election, solicited grievances from employees and
implied a redress of such grievances for the purpose of
discouraging employee support of the Union, granted
certain wage increases to its recording engineers to
discourage their union support, discriminatorily discharged
Ronald H. Brown , and refused to recognize the Union
though cognizant of its majority status. At the hearing the
complaint was amended to include solicitation of employ-
ees to engage in surveillance of union activities of other
employees and to report on them to management, threats
to employees to impose straitened working conditions if
I All dates hereafter refer to the year 1971 unless otherwise noted
2 Based on charges filed by Truck Drivers Local 299, International
Brotherhood of Teamsters , Chauffeurs , Warehousemen and Helpers of
America, Ind. hereafter referred to as the Union, on April 21 in Case
7-CA-8644 and on May 20 in Case 7-CA-8644 (2), respectively
1258 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Union prevailed, and asserted violations of Section
8(a)(5) of the Act based upon unilateral changes of
working conditions and bypassing the Union in dealing
with employees. Respondent's answer denied the commis-
sion of any unfair labor practices.
In Case 7-RC-10499 a petition for an election was filed
on April 8 by the Union. Thereafter, pursuant to a
Stipulation for Certification Upon Consent Election, an
election by secret ballot was conducted on May 14
resulting in seven votes for and eight against the Union. On
May 19 Objections to Conduct Affecting the Results of the
Election were timely filed by the Union based on the
granting of a wage increase and other things of value to the
employees, the discriminatory discharge of Ronald Brown,
the coercive interrogation of employees regarding their
union activities, and threats to employees because of their
union activities. By order of the Regional Director this case
was consolidated for the purpose of hearing, ruling, and
decision by a Trial Examiner with Cases 7-CA-8644 and
7-CA-8644(2) and then transferred to the Board.
All parties were represented and were afforded opportu-
nity to introduce evidence, to examine and cross-examine
witnesses, and to file briefs. Only Respondent has filed a
brief which has been carefully considered. Upon the entire
record3 in this proceeding and from my observation of the
witnesses, I make the following:4
FINDINGS OF FACT
1. COMMERCE
Respondent, a corporation duly organized under the
laws of the State of Michigan, has maintained its principal
office and place of business at 2457 Woodward Avenue in
Detroit, Michigan, at all times material herein, and has
been engaged in the production, sale, and distribution of
phonographic records and related products. During the
fiscal year ending June 30, 1970, Respondent, in the course
and conduct of its business operations, purchased and
caused to be transferred and delivered to its Detroit place
of business goods and materials valued in excess of
$50,000, which goods and materials were transported and
delivered to its place of business in Detroit, Michigan,
directly from points located outside said State. During the
same period Respondent produced, sold, and distributed at
its Detroit, Michigan, place of business, products valued in
excess of $500,000 of which products valued in excess of
$50,000 were shipped from said place of business directly
to points located outside the State of Michigan. Respon-
dent admits, and I find, at all times material herein, that it
has been an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
Respondent admits, and I find, at all times material
3 The transcript is corrected in the following respects On p 160, I 14,
change "I am" to "Are you," and insert a question mark at the end of I 15
On p 169, I 16, change "Trial Examiner" to "Mr Alexander "
4 Rulings reserved on motions made during the hearing are hereby
decided in conformance with the findings made herein
5 The technical engineers build, install, and service the equipment to be
used in recording
herein, that the Union has been a labor organization within
the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Violations
It is undisputed that during the first week of January,
Leonard Kosloski, with Michael Grace, Glenn Garrard,
Gurdev Sandhu, and Ronald Lynch, comprising all of the
technical engineers,5 met with Donald Boehret, their
supervisor in the technical engineering department, to
protest being paid a lower wage rate than the recording
engineers,6 although both groups had been employed
approximately for the same length of time. They also
expressed a desire to pursue the matter as a group with
management. At their request, Boehret agreed to discuss
their grievance with Harry Balk, the creative division head.
Balk was unavailable so Boehret took the matter up with
Bette Ocha, Balk's administrative assistant. Later that or
the following day Boehret met again with the technical
engineers and reported that he had spoken to Ocha, who
had said that the same thing would happen to them as had
happened to others who tried talking to the Company as a
group, and that their complaints would be discussed and
considered only on an individual basis.: The Union was
not mentioned at either of the meetings with Boehret. The
technical engineers construed Boehret's report as a threat
of termination under the impression that Ocha had
referred to the engineers who, at an earlier date, had
attempted to, discuss a wage complaint as a group with
management and later were terminated. Leonard Wisniew-
ski, a recording engineer, testified concerning the group
approach to management early in 1970 as follows: Four
recording engineers were designated as a group to
complain to management on behalf of all the recording
engineers. After a meeting with management, in which they
obtained no satisfaction, one of the four engineers was
terminated because of a personality clash with his
supervisor, and another one voluntarily left the Company
because of a personality clash with his supervisor over
working conditions. He had no knowledge of what
happened to the other two engineers.
The language used to discourage employee group action
clearly had the effect of chilling if not precluding concerted
protected activity. Whether other employees had, in fact,
been terminated in similar circumstances is immaterial
The issue is whether Ocha's response, which was conveyed
to the technical engineers, tended to create the impression
that they would risk termination or be terminated if they
persisted in making their grievance through a group rather
than on an individual basis. I conclude that a reasonable
construction of Ocha's reply warranted the employees in
becoming apprehensive about their jobs in pursuing the
matter through group action, and that it, therefore,
6 The recording engineers cut and press the discs and operate the tape
equipment
r In contrast to the above -related testimony by the technical engineers,
Boehret testified that he advised them that a group meeting would not get
anywhere as had previously happened to the recording engineers The
corroborated testimony of the technical engineers is credited
MOTOWN RECORD CORPORATION
interfered with their concerted protected activities in
violation of Section 8(a)(1).
About a week before the election, technical engineer
Leonard Kosloski, in a conversation with Personnel
Director Al Brown, was asked why they had talked to the
Union. On the Wednesday prior to the election he again
had a conversation with Brown and was asked why they
had brought in the Union. Kosloski replied that they had
been unable to get any action from their supervisors.
Brown then asked him to prepare a list of the reasons why
they wanted a union . Thereafter, Kosloski, assisted by a
few technical engineers , prepared such a list and submitted
it on the Tuesday before the election. "Although there was
no evidence of intimidation [by Brown], questioning of this
character has an inherently coercive tendency because it
requires employees to reveal their personal beliefs under
circumstances where they are aware of the disapproval of
the employer" Mallow Plating Works, Inc., 193 NLRB No.
96. I therefore find Brown 's questioning violative of
Section 8 (a)(1).
Following the signing of a union card and prior to the
election, but after the filing of the representation petition,
Glen Garrard, a technical engineer, was summoned to the
office of Michael McLean, head of the technical engineer-
ing department, and told that at the behest of the
Company, he had been delegated to pick a trusted
employee and express his opinion by drawing a chart as to
what would happen as a result of the election. The chart he
drew described various possibilities in terms of percentages
in the event the Union won or lost the election. It indicated
that if the Union lost the election there would be a 65-
percent likelihood that things would remain the same and a
I-percent possibility that troublemakers (union organizers)
like Kosloski and also Garrard would leave the Company
and a 34-percent likelihood that things would get better. If
the Union won the election there was a 99-percent
likelihood that there would be no improvement and a
possibility that McLean and Boehret would be fired. After
explaining the chart to Garrard, McLean asked him to
think it over and to tell the other technical engineers about
their discussion. Garrard prepared a similar chart and
explained it to his fellow engineers.
It is uncontroverted that McLean was instructed by
management to impress upon a trusted employee the
futility of accomplishing any improvements by voting for
the Union. Realistically viewed, McLean's conversation
with Garrard had but one objective: to convince Garrard
and the employees with whom he was asked to discuss the
matter that they would not only not improve their
conditions by voting the Union in but would probably
suffer to some extent thereby, whereas a union defeat
would in all likelihood result in improving their position. I,
therefore, conclude that Respondent engaged in tactics
designed to defeat the Union by impressing employees
with the likelihood that only a union defeat could improve
their conditions. The coercion inherent in such tactics falls
within the meaning , and in violation, of Section 8(a)(1) of
the Act.
Recording engineer Wisniewski testified that about 2
1259
weeks before the election he was called to Harry Balk's
office where he was introduced to Personnel Director Al
Brown . Upon being asked whether he was aware of his pay
raise , he replied that Harris had already told him about it.
Brown then stated that they were expecting bigger and
greater things from him and that he was doing quite well
and asked whether he was aware of the pending union
activities. When he said he was, his opinion on these
activities was solicited by Brown. Wisniewski replied that
since he was hired he was under the impression that union
talk or organization was taboo because it would be ground
for dismissal. Brown then told him if he heard anything
about union activities to feel free to relate it to him, and it
would be kept in strictest confidence. Brown's failure to
nullify or correct Wisniewski's impression that engaging in
union activities would cause an employee's termination,
and his invitation to Wisniewski to act as an informer on
union activities, clearly restrained and interfered with
Wisniewski's exercise of his statutory rights in violation of
Section 8(a)(1).
Wisniewski testified further that about a week before the
election, Calvin Harris, a supervisor and head of the
recording engineering department, asked him how he was
going to vote. He replied that it was a secret election but
would give him an idea, stating he was opposed to unions
(which, however, was not true). Harris thereupon said,
"Good, you should try and persuade other engineers to go
that way."8
Harris' interrogation as to how Wisniewski was going to
vote clearly infringed upon the secrecy of the ballot, and
Wisniewski's untruthful reply indicated his apprehension
in revealing his prounion position. I find Harris' interroga-
tion had a coercive impact on Wisniewski in violation of
Section 8(a)(I).
In support of the allegations in the complaint that about
the middle of April Respondent granted wage increases to
its recording engineers to dissuade them from selecting the
Union as their bargaining representative, the General
Counsel introduced in evidence the employee compensa-
tion data sheets of five employees: Robert Gavin,
Nathaniel Jennings, John Lewis, Orson Lewis, and Russell
Terraria, to demonstrate that Respondent deviated from its
alleged wage increase policy of annually evaluating each
employee and granting wage increases based upon favora-
ble evaluations. These exhibits set forth the wage and leave
record of each employee. Gavin's record indicates that he
received two pay increases in 1971. In explanation of the
ostensible deviation from its wage policy, Respondent
stated that Gavin left the Company in 1969 for military
service and was reinstated in January 1971 at a higher rate
of pay to reflect the cost-of-living increases, and that he
was evaluated during the first 90 days of his reinstatement
and received another raise at that time. The employee
compensation data sheet for Nathaniel Jennings indicated
that he received a wage increase in February 1970 and a
further increase in April 1971. Respondent explained the
delay of more than a year because Jennings was trans-
ferred from the technical engineering department to the
recording engineering department during the year and had
8 Harris denied asking him how he was going to vote, asserting that he vacation Harris' denial is not credited
asked only whether he was going to vote because Wisniewski was going on
1260 DECISIONS OF NATIONAL
not been a recording engineer long enough to be evaluated
for an increase in February 1971. Respondent was unable
to explain why Orson Lewis' employee compensation data
sheet indicated that he received one wage increase in less
than a year after being hired in March 1970 and then
another on April 19, 1971, or why the employee compensa-
tion data sheet for Russell Terraria indicated that he
received an increase in April 1970, another one in May
1970, and still another in February 1971. The employee
compensation data sheet for John Lewis indicated that he
came to work in May 1970 and received an increase on
April 19, 1971. Respondent explained that receiving an
increase within the first year was consistent with company
policy.
It appears that although Respondent asserted that it
followed a wage increase policy, it was at loss to explain
ostensible deviations therefrom with respect to Orson
Lewis and Russell Terraria, two of the five recording
engineers who did not sign union cards. Respondent
offered explanations with respect to wage increases given
to three other recording engineers, Gavin, Jennings, and
John Lewis (another one of the five recording engineers
who did not sign a card), which could be found plausibly
consistent with its wage increase policy if considered as
unusual cases. Thus, increases to 5 of the 10 recording
engineers in the unit either could not be justified or
required explanations as unusual cases under the company
policy. In these circumstances, and considering the number
of employees involved and the size of the unit, it is not
unreasonable to infer that Respondent resorted to wage
increases during the union campaign to influence employ-
ees to vote against the Union in the election of May 14 in
violation of Section 8(a)(1). Furthermore, even assuming
that Respondent was lawfully implementing its historic
wage increase policy, which ordinarily would not be
improper during a union campaign provided it was
disassociated from seeking any adverse effect upon
unionism, it clearly appears in Wisniewski's conversation
with Brown, as related supra, that Brown implicitly if not
directly associated Wismewski's wage increase with ques-
tions concerning the then pending union activities. It is
reasonable to assume that his motive in doing so was to
create the impression that antiunionism had some bearing
currently and prospectively upon the granting of wage
increases. I, accordingly, conclude that, at least in
Wisniewski's case, Respondent subtly gave him the
impression that an antiumon position improved an
employee's prospects of obtaining a wage increase or other
employee benefits in violation of Sec. 8(a)(1).
B. The Alleged Discriminatory Discharge
of Donald Brown
Donald Brown began working for Respondent in May
1969 in the recording engineering department under the
supervision of Calvin Harris. In May 1970, he suffered a
serious brain concussion in an automobile accident, and
when he returned to work he found that the noise on the
job gave him headaches because of his head injuries. He
9 It was routine for him to call in every afternoon to obtain the location
of his work assignment for that night The company operated several
LABOR RELATIONS BOARD
called Harris, advised him of that fact, and, after stating
that it would be better for him and the Company, he
resigned. On November 1 he returned to work after
checking with and obtaining a statement from his doctor
that the noise on the job would not bother him. He did the
same type of work as when initially hired, making copies of
big tapes. On December 10 he signed a union card. During
December and the following months, Hams' secretary
began complaining to Brown about distortion on the tapes
he was preparing and omissions from the log sheet which
he had to maintain. In the middle of February, Harris
brought to Brown's attention the fact that he had left the 1,
2, 3, 4 count off the beginning of a tape, a serious error
because the musicians would be unable to come in on time.
About the beginning of March, he called in to Harris'
secretary to find out about his next assignment .9 Harris got
on the extension and asked whether he had received any
union material. When he replied that he had, Harris asked
whether there were any signatures on it. Upon hearing that
there were none, Harris then told him to bring it in, which
he did the following day, but not finding Harris in, he left
it with a secretary.
On April 12, when Brown called in to find his assignment
for that evening, Harris summoned him to his office. In the
conversation with Harris after his arrival, Brown was told
that his work had, deteriorated and reminded him of his
serious error in omitting the 1, 2, 3, 4 count on a tape in
February. Brown admitted his difficulties in keeping up
with hisjob and explained that he experienced burdensome
problems in calling in every day to find out his assignment
for that night, which interfered with his schooling at night
and entailed a good deal of bus riding since he no longer
had a car after his automobile accident. Harris then
advised him that he would have to terminate him to which
Brown replied, "Well, if that's that, I'll leave." Brown had
never been warned about being fired unless his work
improved, although the Company also had a policy
requiring an employee to be given a written warning before
being terminated.
Harris admitted Brown's testimony as being truthful with
the exception that he was not sure whether he initiated
questioning Brown about the union material . He also
stated that after speaking to Brown about the union
literature, he reported it to Ocha and his supervisors, and
one of them asked him to have Brown bring it in. He
thereafter had his secretary call Brown to bring it in.
I find that Donald Brown's discharge was based on his
admitted inability to properly perform his work, and was
not motivated by his union activities which consisted only
of signing an authorization card. I conclude that the
General Counsel has failed to establish by the preponder-
ance of the evidence that Brown was discriminatorily
discharged; and therefore recommend the dismissal of the
8(a)(3) allegations in the complaint. I find, however, that
Harris' inquiry about the receipt of union literature, and
his request that it be submitted clearly interfered with
Brown's statutory rights in violation of Section 8(a)(1).
facilities in Detroit.
MOTOWN RECORD CORPORATION
C. The Union's Request To Bargain, and its
Alleged Majority Status
In November 1970, Kosloski met with George Kraft, the
Union's business representative, for the purpose of
organizing Respondent's employees. At that meeting
Kosloski received a number of union authorization cards
with instructions to solicit employees to sign cards in order
to obtain a card majority for recognition, or if unable to
obtain a card majority, then a sufficient number of cards to
file for a petition for an election. Signed union cards were
obtained from the following employees: Ronald Brown on
December 10, 1970; Leonard Kosloski and Ronald Lynch
on December 2, 1970; Michael Grace, Glenn Garrard,
Gurdev Sandhu, and Leonard Wisniewski on December 3,
1970; and Joe Atkinson, Robert Gavin, Nathaniel Jen-
nings, and John Lewis on February 23, 1971.
It was stipulated that the following employees constitut-
ed a unit appropriate for the purpose of collective
bargaining from January 11 through April 8: recording
engineers Ronald Brown, Robert Gavin, Nathaniel Jen-
nings, John Lewis, Austin Lewis, Robert Olhsson, Vincent
Shensky, Steven Smith, Russell Terraria, and Leonard
Wisniewski,10 and technical engineers Donald Fostle,
Michael Grace, Leonard Kosloski, Ronald Lynch, and
Gurdev Sandhu. It thus appears that in a unit of 16
employees, the Union obtained 10 authorization cards.
Respondent in its brief concedes, in effect, the majority
status of the Union at one time or another during the
period from early December 1970 to February 23, 1971.11
On January 11, the Union by telegram demanded
Respondent recognize it as the exclusive collective-bar-
gaining representative for a bargaining unit, consisting of
"all employees in the technical engineering department,
excluding supervision, office clerical, guards and other
employees defined in the Act." The telegram also request-
ed a meeting on January 13 for the purpose of negotiating
a collective-bargaining agreement, and, if such date was
inconvenient, to notify the Union so that a more
convenient date could be agreed upon, and stated further
that the Union was willing to permit a neutral person to
check its authorization cards at the time of such meeting
for the purpose of verifying its majority status. On January
13, Mr. O'Meara, counsel for Respondent, telephoned
Kraft that Respondent was not prepared to meet with him
because he was not given enough notice and was caught
totally unaware. O'Meara also questioned the union
majority and the composition of the bargaining unit, and
indicated that it would be more appropriate for the Union
to pursue the matter by petition. The record does not
indicate that anything further occurred until April 8 when
the Union filed a representation petition for a unit
consisting of all recording engineers , including all technical
10 The inclusion of Joe Atkinson, a recording engineer , in the stipulated
unit was left undetermined because of a lack of evidence concerning his
layoff and termination . However, a resolution of his status would not have
any effect on the results reached herein
11 I find that the signed cards were valid single purpose cards for the
purpose, of designating an exclusive bargaining representative Nor does the
Respondent appear to challenge the validity of the cards.
12 The charge filed in Case 7-CA-8644(2) does, in fact, allege an 8(aX5)
violation based on a refusal to recognize
13 See American Newspaper Publishers Association v. N LR B, 193 F 2d
1261
engineers employed by the Employer at its Detroit,
Michigan, location, but excluding all office clerical
employees, guards, and supervisors as defined in the Act
and all other employees. In the ensuing consent election
pursuant to a stipulation for certification the Union lost by
a vote of 8 to 7, and thereafter filed timely objections to
conduct affecting the results of the election.
The complaint alleges the Union's majority status, a
demand for recognition, and Respondent's refusal to
recognize and bargain with it. However, there is no
expressed conclusion in the complaint that the aforesaid
allegations constitute a violation of Section 8(a)(5) of the
Act.12 Contrary to Respondent, I find that such omission
does not preclude the Board from considering and
deciding the allegations so presented if they do not mislead
the party charged.13 I conclude that the allegations of the
complaint herein sufficiently apprised Respondent of the
basis of an 8(a)(5) violation and afforded it a full
opportunity for hearing based thereon.i4
Respondent also contends that a demand for recognition
based on a majority status in a specific unit is an essential
requirement for a finding of an 8(a)(5) violation, and that
no demand was ever made for a unit comprising the
technical and recording engineers , the unit set forth in the
Union's representation petition.
In order to impose a bargaining duty upon an employer,
the union's demand should "clearly define the unit for
which recognition is sought." 15 The Union's demand for
recognition in its telegram of January II clearly and
definitely defined the unit. In his conversation with
Business Agent Kraft on January 13 concerning the
demand, Respondent's counsel objected, inter alia, to the
appropriateness of the unit. The evidence, however, does
not reveal that Kraft suggested any modification of the
unit. Nor did the Union thereafter communicate with
Respondent concerning its demand for recognition. It was
not until April 8 when the Union filed its petition for an
election that the appropriate unit was expanded to include
the recording engineers. I find that the Union apparently
abandoned its demand for the unit described in its
telegram of January 11. Furthermore, inasmuch as the
complaint demands recognition for the broader unit, it
becomes unnecessary to resolve the issue involving
recognition for the narrower unit. I conclude that "no
proper request to bargain having been made [for the
broader unit], there was no obligation on Respondent to
bargain collectively," based on an 8(a)(5) violation.16 I,
accordingly, recommend the dismissal of those allegations
of the complaint which constitute a violation of Section
8(a)(5) of the Act.
782, 800 (C.A 7). and Associated Home Builders v. N L.R B, 352 F 2d 745,
752-753 (C A 9)
14 Respondent in its brief also proceeds on the basis of having been
charged with violations of Sec. 8(a)(5) for refusing to bargain.
i5 See The C L. Bailey Grocery Company, 100 NLRB 576, 579.
16 Id at 580, see also Laabs, Inc, 128 NLRB 374, where the Board
stated, "Respondent correctly contends that the filing of a petition does not
constitute a request for bargaining, so as to make its failure to bargain,
without more, a violation of Sec. 8(aX5) of the Act."
1262 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. The Objections to Conduct Affecting the
Election Results; the Request for a Bargaining Order
The complaint prays for a bargaining order based upon
the alleged 8(a)(1) and (3) violations. Before such relief
may even be considered, it becomes necessary to determine
whether the election of May 14 should be set aside
pursuant to the objections filed by the Union. Only if the
objections are sustained may the remedy of a bargaining
order be considered and resolved. The objections, four in
number, are:
1. The Employer granted a wage increase and other
things of value to the employees, subsequent to the filing of
the petition.
2. The Employer did illegally discharge employee
Ronald Brown because of his concerted union activities on
behalf of Truck Drivers Local 299.
3. The Employer did illegally and coercively interro-
gate its employees regarding their union activities.
4. The Employer did make threats to its employees
because of their union activities.
As related above, the 8(a)(1) violations found, with the
exception of the interference with the concerted, protected
activities of the employees concerning their attempted but
thwarted group appeal to redress their wage grievance,
occurred between the filing of the Union's petition and the
election. The objections, in substance, consist of matters
alleged in the complaint as constituting violations of
Section 8(a)(1) and (3) of the Act. In view of my findings
above that Respondent engaged only in violations of
Section 8(a)(1) to the extent therein found, I find merit in
and sustain said objections to the extent found. The Board
has consistently held that conduct violative of Section
8(a)(1), a fortiori, interferes with the exercise of a free and
untrammeled choice in an election.17 It, therefore, will be
recommended that the election be set aside.
Having thus found that the election should be set aside,
it then becomes relevant to determine whether the issuance
of a bargaining order is appropriate. The Supreme Court in
N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S. 575,
sustained the Board's authority to issue a bargaining order
in appropriate circumstances based upon the employer's
commission of unfair labor practices, the coercive effects
of which cannot be eliminated by the application of
traditional remedies with the result that a fair or reliable
election cannot be held. Under the Gissel teachings, a
bargaining order may issue where the union had valid
authorization cards from a majority of the employees in an
appropriate bargaining unit and the employer committed
"outrageous" and "pervasive" unfair labor practices, or "in
less extraordinary cases marked by less pervasive practices
which nonetheless still have the tendency to undermine
majority strength and impede the election process." With
respect to the latter type, the Court stated further, "The
Board's authority to issue such an order on a lesser
showing of employer misconduct is appropriate, we should
17 Oleson's Food No 4, Inc, 167 NLRB 543, 551, Irving Air Chute Co,
Inc, 149 NLRB 627, 629
18 The Court also held that there is a third category of minor or lesser
extensive unfair labor practices, which , because of their minimal impact on
the election machinery, will not sustain a bargaining order
19 Stoutco, Inc., 180 NLRB No I I
reemphasize, where there is also a showing that at one
point the Union had a majority." 18 In construing the Gissel
criteria for the purpose of evaluating properly the probable
effect of conduct which is coercive in nature, the Board
held 19 that the number of instances of interference, or the
number of employees directly involved, cannot serve as
determinative factors, and that "the controlling factor is
whether the conduct involved in each case reasonably tends
to interfere with a free and uncoerced choice by the
employees ...." (Emphasis supplied.)
The unfair labor practices found herein consist of:
(1) Giving employees the impression that they would be
discharged for engaging in concerted protected activities to
improve the terms of their employment.
(2) Impressing employees with the likelihood that only a
union defeat could improve their conditions.
(3) Permitting employees to remain under the impression
that union talk or organization would be ground for
dismissal.
(4) Coercively interrogating employees concerning their
union sentiments.
(5) Inviting employees to report on union activities.
(6) Granting wage increases to employees during a union
campaign to influence them against the Union, and giving
an employee the impression that an antiunion position
would improve his prospects for obtaining wage increases.
I find that the unfair labor practices herein fall within the
category set forth in the Gissel case of "less extraordinary
cases marked by less pervasive practices tending to
undermine majority strength and impede the election
process," and in which the Court reemphasized the Board's
authority to issue a bargaining order "where there is also a
showing that at one point the Union had a majority." It is
unlikely that in the comparatively small unit herein that
the effects of Respondent's unfair labor practices could be
neutralized by conventional remedies which would insure a
fair election.20 I, therefore, conclude "that the employees'
desires as expressed through the authorization cards are a
more reliable measure of their stand on the issue of
representation and that the policies of the Act will be
better effectuated by the issuance of a bargaining order."
Heck's, Inc., 180 NLRB No. 82.
Upon the basis of the foregoing findings of fact and
upon the entire record in this proceeding, I make the
following:
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. By interfering with, restraining, and coercing em-
ployees in the,exercise of rights guaranteed in Section 7 of
the Act as found herein, Respondent engaged in and is
20 Pursuant to the language quoted from Stoutco, Inc, supra, that the
controlling factor is whether the conduct involved in each case reasonably
tends to interfere with a free and uncoerced choice by the employees, I
distinguish the Stoutco case, Schrementr Bros, Inc, 179 NLRB No 147, and
Blade-Tribune Company, 180 NLRB No 56, cited by Respondent, on the
facts
MOTOWN RECORD CORPORATION
engaging in unfair labor practices within the purview of
Section 8 (a)(1) of the Act.
4. By the aforesaid unfair labor practices , Respondent
has interfered with and illegally affected the results of the
Board election held on May 14, 1970.
5. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2 (6) and (7) of the Act.
THE REMEDY
1263
labor practices, I recommend that it cease and desist
therefrom , and that it take certain affirmative action which
is necessary to remedy and remove the effects of the unfair
labor practices and to effectuate the policies of the Act.
More specifically, I recommend that a bargaining order be
issued against Respondent for the reasons discussed above.
[Recommended Order omitted from publication.]
Having found that Respondent engaged in certain unfair