Oster Specialty Products

National Labor Relations Board - Board Decisions

Sep 30, 1994

315 N.L.R.B. 67 (N.L.R.B. 1994)

67
315 NLRB No. 12
OSTER SPECIALTY PRODUCTS
1 By Order dated July 11, 1994, the Board granted the Charging
Party’s request to withdraw its petition in Case 26–RC–7538 and to
sever that case from the instant proceeding. We therefore consider
only those portions of the judge’s decision concerning the allegations
in Case 26–CA–15559.
2 The Respondent’s motions to reject the General Counsel’s cross-
exceptions and supporting and answering brief are denied as we find
that the documents filed by the General Counsel substantially com-
port with the Board’s Rules and Regulations.
3 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an admin-
istrative law judge’s credibility resolutions unless the clear prepon-
derance of all the relevant evidence convinces us that they are incor-
rect. Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188
F.2d 362 (3d Cir. 1951). We have carefully examined the record and
find no basis for reversing the findings.
4 All dates herein are in 1993 unless otherwise indicated.
Oster Specialty Products, a Division of Sunbeam-
Oster Corporation and Sheet Metal Workers
International Association, Local 483, AFL–
CIO. Case 26–CA–155591
September 30, 1994
DECISION AND ORDER
BY CHAIRMAN GOULD AND MEMBERS BROWNING
AND COHEN
On February 25, 1994, Administrative Law Judge
Robert W. Leiner issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, the
General Counsel filed cross-exceptions and a brief in
support of his cross-exceptions and in answer to the
Respondent’s exceptions,2 and the Respondent filed a
reply brief.
The National Labor Relations Board has delegated
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 de-
cided to affirm the judge’s rulings, findings,3 and con-
clusions as modified below and to adopt the rec-
ommended Order as modified and set forth in full
below.
We adopt the judge’s findings for the reasons stated
by him that the Respondent during the Union’s organi-
zational campaign violated Section 8(a)(1) of the Act
by threatening and interrogating employees and by
surveilling the employees’ union activities. The Gen-
eral Counsel filed limited cross-exceptions contending
that the judge failed to find two additional 8(a)(1) vio-
lations, as alleged, and failed to provide a remedy for
two 8(a)(1) violations that he found. We find merit in
these exceptions.
The credited evidence established that on May 7,
1993,4 Supervisor Stephen Hale approached employee
Katherine Templeton and said, ‘‘I’ve been hearing
some things about you lately, some bad things about
you . . . I’ve heard you’re for the union.’’ We find
that by this statement the Respondent violated Section
8(a)(1) by disparaging an employee because of her
support for the Union, as alleged in the complaint.
In late April, Supervisor Campbell Kelsey ap-
proached employee Alene Goolsby at her work station
and asked her if she had made up her mind yet about
the Union. Goolsby replied no, and Kelsey stated,
‘‘[W]ell, you better think about your job.’’ On May 7,
Goolsby wore a union T-shirt to work and Kelsey ap-
proached her and said, ‘‘I see you made up your
mind.’’ Goolsby replied, ‘‘[Y]es, I think its what the
employees need,’’ and Kelsey responded, ‘‘[W]ell, you
better think real hard about your job and real hard
about Mexico.’’ We find that by these statements the
Respondent made threats of job loss and plant closure
in violation of Section 8(a)(1), as alleged in the com-
plaint.
We have modified the judge’s recommended Order
and notice to provide a remedy for these additional
violations of the Act, as well as for the judge’s find-
ings that the Respondent unlawfully threatened em-
ployees with a loss of wages if they chose the Union
as their bargaining representative and promised an em-
ployee a benefit if she voted against union representa-
tion.
ORDER
The National Labor Relations Board orders that the
Respondent, Oster Specialty Products, a Division of
Sunbeam-Oster Corporation, McMinnville, Tennessee,
its officers, agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with job loss, plant
closure or plant relocation, or loss of wages because
of their activities on behalf of, sympathy for, or mem-
bership in Sheet Metal Workers International Associa-
tion, Local 483, AFL–CIO, or any other labor organi-
zation.
(b) Disparaging employees because of their sym-
pathies for the Union, or any other labor organization.
(c) Coercively interrogating employees regarding
their union activities, sympathies, or membership in
the Union, or any other labor organization.
(d) Threatening employees with discipline or dis-
charge for engaging in union activities.
(e) Maintaining or creating the impression of sur-
veillance of employees’ union activities.
(f) Promising employees benefits if they agree to
vote against union representation.
(g) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
5 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
National Labor Relations Board’’ shall read ‘‘Posted Pursuant to a
Judgment of the United States Court of Appeals Enforcing an Order
of the National Labor Relations Board.’’
1 The Union’s underlying unfair labor practice charge was filed
and served on Respondent on April 5, 1993. Its first amended charge
was filed and served on July 1, 1993.
2 The Union, by an otherwise timely filed document dated Decem-
ber 16, 1993, urges me to set aside the election. Respondent charac-
terizes the Union’s communication as an untimely filed ‘‘brief.’’ I
agree and disregard it. The Union failed both to submit three copies
and to make service on the other parties as required by Sec. 102.42
of the Board’s Rules and Regulations.
3 I grant Respondent’s unopposed motion to correct the official
transcript.
(a) Post at its facility in McMinnville, Tennessee,
copies of the attached notice marked ‘‘Appendix.’’5
Copies of the notice, on forms provided by the Re-
gional Director for Region 26, after being signed by
the Respondent’s authorized representative, 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 are not
altered, defaced, or covered by any other material.
(b) Notify the Regional Director in writing within
20 days from the date of this Order what steps the Re-
spondent has taken to comply.
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT threaten our employees with job loss,
plant closure or plant relocation, or loss of wages be-
cause of their activities on behalf of the Sheet Metal
Workers International Association, Local 483, AFL–
CIO, or any other labor organization.
WE WILL NOT disparage our employees because of
their sympathies for the Union, or any other labor or-
ganization.
WE WILL NOT coercively interrogate our employees
regarding their union activities and sympathies on be-
half of the above-named Union, or any other labor or-
ganization.
WE WILL NOT threaten our employees with dis-
cipline or discharge for engaging in union activities.
WE WILL NOT maintain or create the impression of
surveillance of our employees’ union activities.
WE WILL NOT promise our employees a benefit if
they agree to vote against union representation.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce our employees in the exercise
of the rights guaranteed them by Section 7 of the Act.
OSTER SPECIALTY PRODUCTS, A DIVI-
SION OF SUNBEAM-OSTER CORPORATION
Jane Vandeventer, Esq. and Rosalind Eddins, Esq., for the
General Counsel.
William K. Harvey, Esq. and Ted M. Yeiser Jr., Esq. (Jack-
son, Shields, Yeiser, Cantrell & Harvey), of Cordova, Ten-
nessee, for the Respondent Employer.
Jack Gregg, International Organizer, Sheet Metal Workers
International Union, Local 483, of Morrison, Tennessee,
for the Charging Party Union.
DECISION
STATEMENT OF THE CASE
ROBERT W. LEINER, Administrative Law Judge. This con-
solidated matter was heard in Manchester, Tennessee, on Oc-
tober 25 and 26, 1993, based on General Counsel’s com-
plaint and notice of hearing, dated July 2, 1993,1 as further
amended at the hearing, together with certain objections to
the election in Case 26–RC–7538 (unalleged conduct) cor-
responding to parallel allegations of 8(a)(1) violations in the
complaint. Procedurally, however, the case, in large part,
turned on the propriety of the Regional Director in setting
aside his informal settlement agreement with the Respondent
in the above-captioned unfair labor practice case.
At the hearing, all parties were represented by counsel,
were given full opportunity to call and present witnesses,
make and argue motions, and to make final argument. At the
close of the hearing, the parties waived final argument and
elected to file posthearing briefs. Thereafter, General Counsel
and Respondent filed timely briefs which have been duly
considered.2
On the basis of the entire record herein,3 including the
briefs, and on my most particular observation of the de-
meanor of the witnesses as they testified, I make the follow-
ing
FINDINGS OF FACT
I. RESPONDENT AS STATUTORY EMPLOYER
The complaint alleges, Respondent admits, and I find that
Respondent, a corporation, with an office and place of busi-
ness in McMinnville, Tennessee, engaged in the manufacture
69OSTER SPECIALTY PRODUCTS
4 The complaint alleges, Respondent admits, and I find that at all
material times the following persons have been Respondent’s super-
visors and agents within the meaning of Sec. 2(11) and (13) of the
Act: Jim Thomas, division president; David Smith, plant super-
intendant; Tommie Yates, manager (manufacturing services); and
Dorris Snyder, Steve Hale, and Campbell Kelsey, shift supervisors.
5 As above noted, the underlying unfair labor practice charge alleg-
ing violation of Sec. 8(a)(1) of the Act was filed by the Union
against Respondent on April 5, 1993.
and sale of electric clippers and shears, during the 12-month
period ending March 31, 1993. In the conduct of its aforesaid
business operations, it sold from its McMinnville facility
goods valued in excess of $50,000 shipped directly to points
outside the State of Tennessee. In the same period it also
purchased and received at the facility goods valued in excess
of $50,000 received from points directly outside the State of
Tennessee. Respondent concedes and I find that at all mate-
rial times it has been an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
II. THE UNION AS STATUTORY LABOR ORGANIZATION
The complaint alleges, Respondent admits, and I find that,
at all material times, Sheet Metal Workers International As-
sociation, Local 483, AFL–CIO (the Union) has been and is
a labor organization within the meaning of Section 2(5) of
the Act.4
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
It is undisputed, as the Regional Director’s July 2, 1993
Report on Objections (G.C. Exh. 1(g)) demonstrates, that an
election petition for certification was filed by the Union on
March 24, 1993, in Case 26–RC–7538. Pursuant to a subse-
quent Stipulated Election Agreement, approved by the Re-
gional Director on April 6, 1993, an election by secret ballot
was conducted on May 13 and 14, 1993, in essentially a pro-
duction and maintenance unit embracing about 550 of Re-
spondent’s employees.5 The results of the election, disclosed
in the tally of ballots served on the parties on May 14, 1993,
showed: of approximately 552 eligible voters, with 2 void
ballots, 246 votes were cast for and 270 votes were cast
against the Union. The 21 challenged ballots were not suffi-
cient to affect the results of the election. A majority of valid
votes, therefore, regardless of the challenged ballots, had not
been cast in favor of the Union.
On May 20, 1993, the Union filed nine particular objec-
tions to the conduct of the election. Following the Regional
Director’s investigation into the April 5, 1993, unfair labor
practice charge and the aforesaid objections, the Union, on
June 28, 1993, requested withdrawal of its nine alleged ob-
jections and on July 2, 1993, the Regional Director rec-
ommended to the Board that the Union’s request be ap-
proved. The Regional Director, however, relying on
‘‘unalleged’’ objectionable conduct, discovered during the
course of his unfair labor practice and objections investiga-
tions, discovered other objectionable conduct which now also
appears as unfair labor practices in paragraphs 7, 8, 9, 10,
and 11 of the complaint. The Regional Director thus found
that the above unalleged objectionable conduct, now also
contained in the consolidated complaint as unfair labor prac-
tices, raised material and substantial issues which might best
be resolved on the basis of record testimony in a consoli-
dated hearing.
Prior, however, to issuance of any complaint, the Union
and Respondent signed a settlement agreement on Friday,
May 7, 1993, which the Regional Director approved on Mon-
day, May 10, 1993. The settlement agreement provided, inter
alia, that Respondent thereafter (1) would not threaten its
employees with plant closure and relocation because of their
activities on behalf of the Union; (2) would not tell its em-
ployees that it would be futile to engage in union activities;
(3) would not unlawfully interrogate them concerning their
activities and sympathies on behalf of the above Union; (4)
would not create an impression of surveillance of the em-
ployees’ union activities; (5) nor threaten them with dis-
cipline or discharge for engaging in union activities, nor (6)
in any like or related manner interfere with restrain or coerce
employees in the exercise of the rights guaranteed them by
Section 7 of the Act. Copies of the settlement agreement
were posted commencing May 19, 1993.
On July 1, 1993, as above noted, the Union filed its first
amended charge and on July 2, 1993, the Regional Director
set aside the settlement agreement and issued the complaint
herein.
In any event, following the Regional Director’s July 2,
1993 Report on Objections, Respondent on July 15, 1993,
filed exceptions to the Report on Objections. Respondent ob-
jected to the Regional Director’s consideration of the
‘‘unalleged objectionable conduct,’’ as being outside the
scope of the Union’s statement of objections; objected to the
conclusion that the Respondent’s alleged misconduct, consid-
ered as ‘‘unalleged objectionable conduct,’’ was discovered
during the course of the investigation; objected to the conclu-
sion that this ‘‘unalleged conduct’’ raised material and sub-
stantial issues to be resolved on the basis of record testi-
mony; and objected to the recommendation that the
‘‘unalleged objectionable conduct’’ be consolidated with par-
allel complaint allegations in the unfair labor practice case
for the purpose of hearing before an administrative law
judge.
On July 28, 1993, the Board, acting on Respondent’s ex-
ceptions to the Regional Director’s recommendation in his
Report on Objections, with regard to litigation of the
‘‘unalleged objections,’’ denied Respondent’s exceptions
‘‘without prejudice to the employer’s right to renew its argu-
ments to the administrative law judge’’ (G.C. Exh. 1(i)). No
such argument was renewed or made to me.
On October 7, 1993, the Regional Director consolidated
the ‘‘unalleged objectionable conduct’’ in Case 26–RC–7538
with the complaint allegations in Case 26–CA–15559 for the
purpose of resolving the issues raised therein in a hearing be-
fore an administrative law judge (G.C. Exh. 1(j)). On Octo-
ber 22, 1993, Respondent, in Case 26–RC–7538, filed a mo-
tion directly with the Board appealing, inter alia, the Re-
gional Director’s issuance of the order consolidating cases,
and the hearing on unalleged objectionable conduct. By letter
dated October 22, 1993, the Board, by its Deputy Executive
Secretary, rejected Respondent’s faxed motion as unaccept-
able under Board Rule, Section 102.114(d). Respondent did
not pursue its objection to consolidation before me.
As above-noted, the Regional Director issued the instant
complaint on July 2, 1993. In paragraph 12 thereof, the Re-
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 In the above-cited Farm Fresh, Inc., supra, heavily relied on by
Respondent (R. Br. 21–22), Respondent misstates the facts and law
of that case. Although the judge reinstated the Regional Director’s
settlement agreement in the face of postsettlement 8(a)(1) and (3)
violations, the judge’s decision was reversed by the Board. Contrary
to Respondent’s statement (Br. 22), the settlement agreement was
then vacated by the Board, and the case consequently remanded to
the judge for the purpose of deciding the merits of presettlement al-
legations, Farm Fresh Inc., 301 NLRB at 908.
gional Director notes that Respondent entered into the infor-
mal settlement agreement on May 7 with his approval on
May 10, 1993. In paragraph 13 thereof, the Regional Direc-
tor, alleging that by virtue of alleged conduct commencing
May 7, 1993, and, thereafter, Respondent violated the terms
of the settlement agreement, then ordered the settlement
agreement to be vacated and set aside. Further, as above-
noted, there then followed the Regional Director’s October 7,
1993 order consolidating the cases.
B. The Procedural Issues
As of May 10, 1993, the settlement agreement settled all
prior unfair labor practices.
As a crucial preliminary matter, it is necessary to deter-
mine in the first place whether unfair labor practices com-
mencing after May 10, 1993, i.e., after the Regional Director
signed the settlement agreement, are sufficient to (a) set
aside the settlement agreement; or (b) as objectionable con-
duct, set aside the election; or (c) set aside both.
If these alleged unfair labor practices and parallel objec-
tions are not only found, but found to be sufficiently serious
to set aside the settlement agreement, such a disposition
might have an effect on the election. They could uncover the
matters of alleged objection and 8(a)(1) violations occurring
on or before the Regional Director’s approval of the settle-
ment agreement (May 10, 1993) and, therefore, could include
those unfair labor practices and objections occurring after the
filing of the petition (March 24, 1993) and before the elec-
tion (May 13 and 14, 1993) as a basis for setting aside the
election itself, Ideal Electric, 134 NLRB 1275 (1961). Quite
separately, and for whatever reason, if those post-May 10,
1993, et seq. unfair labor practices are insufficient, in any
event, to set aside the settlement agreement, they remain le-
gally sufficient to be considered to set aside the May 13–14
election.
In particular, the General Counsel argues that the dates of
the so-called postsettlement unfair labor practices include
May 10 through 14 (G.C. Br. 11). Respondent, however, ar-
gues on the basis of the settlement agreement, approved as
late as May 10, that the only alleged conduct properly to be
considered as postsettlement misconduct are the allegations
of alleged violations no earlier than May 12 and 14 (R. Br.
20). If they be insufficient to set aside the settlement agree-
ment, Respondent argues that the insufficiency would stand
as a bar to set aside the election as well.
For analytical purposes, the conduct of May 12 and 14, as
Respondent suggests, will be examined, and thereafter, the
problem of whether May 10, and indeed May 7, conduct will
be considered, if necessary, to resolve the questions of
whether the (a) settlement should be set aside, (b) the elec-
tion should be set aside, or (c) both be set aside.
The Board’s rule is that a settlement agreement will be set
aside if its provisions are breached or if postsettlement unfair
labor practices are committed. R. T. Jones Lumber Co., 303
NLRB 841, 843 (1991). In determining whether there has
been a breach of a settlement agreement or whether
postsettlement unfair labor practices are committed sufficient
to set aside the agreement, the Board Rule, as Respondent
observes (R. Br. 20 et. seq.), is that the analysis cannot apply
mechanical or a priori rules, but there must be an exercise
of a sound judgment based on all the circumstances of the
case, Deister Concentrator Co., 250 NLRB 358, 359 (1980);
and, more important, in order to ‘‘properly’’ set aside a set-
tlement agreement, the subsequent or continuing unfair labor
practices must be ‘‘substantial,’’ Porto Mills, 149 NLRB
1454, 1470 (1964), and not ‘‘isolated,’’ Foodarama, Inc.,
260 NLRB 298, 299 fn. 2 (1982); Coopers Union Local 42
(Independent Stave Co.), 208 NLRB 175 (1974). As noted in
Farm Fresh, Inc., 301 NLRB 907, 935 (1991), the question,
in each case, is just what qualifies as ‘‘minor and isolated’’
or indeed ‘‘substantial.’’6
C. Allegations of Postsettlement Misconduct, the
Settlement Agreement Set Aside
(1) The testimony of Katherine Templeton: Templeton,
employed by Respondent for 17 years, worked in the blade
department under the supervision of Steve Hale (Tr. 61).
Templeton, who had shown no pro- or anti-union disposition
prior to May 7, 1993, testified concerning four conversations
with Supervisor Hale. She placed the first such conversation
about a week before the election which would put it either
on May 7 or before. As will be noted hereafter, it is unneces-
sary to decide the precise date of this conversation, although
May 7 was the date Respondent bound itself to refrain from
repetition of the above-listed unfair labor practices in the set-
tlement agreement or any other of a like or related manner.
In that first conversation, Supervisor Hale told her that he
had heard ‘‘bad things’’ about her, having heard that she was
for the Union, and then told her that she had too many years
to lose; that she had dependents to think about; and that the
Respondent’s plant could move to Mexico. He told her she
needed to make her mind up and she should call her Sunday
school teacher (a Respondent employee, Edith Dybal) to see
if she could talk some sense into her (Templeton). In re-
sponse to a leading question from the General Counsel,
Templeton recalled that Hale told her that she had ‘‘better
get your head on straight’’ (Tr. 67).
A second conversation occurred on May 10 (Tr. 66), the
day on which the Regional Director approved the settlement
agreement. Supervisor Hale, approaching her from behind
her work station, asked her if she had thought about what he
had said and then repeated that she had too many years to
lose and had too many people depending on her paycheck.
He again asked her if she had her head on straight to which
she replied in the affirmative (Tr. 67).
In a third conversation, May 12, Supervisor Hale again ap-
proached her at her work station, asked her again if she had
her head on straight, asked her if she had made up her mind
and told her again that she had too many years to lose.
Templeton only answered ‘‘[Y]es.’’
The final (fourth) conversation occurred on the second day
of the election, May 14. Templeton and a group of nearby
employees had not yet voted. Templeton, for the first time,
wore a union button on her lapel. Hale approached
Templeton at her work station and said that she was ‘‘awful
71OSTER SPECIALTY PRODUCTS
7 At the hearing, the General Counsel, without objection, deleted
from par. 10(c) of the complaint an allegation of a similar threat of
job loss occurring on April 30, 1993.
quiet,’’ and when Templeton agreed, Hale told her that she
needed to see ‘‘one of these’’ and handed her a handbill
printed on pink paper which urged employees to vote ‘‘no’’
(Tr. 70). Templeton told him that she had already seen the
handbill and she threw it in the trash (Tr. 71). This conversa-
tion occurred about 11 a.m. (Tr. 69). It apparently was pro-
voked by Hale earlier approaching Templeton at about 9 a.m.
when he first saw her wearing a union button. He looked at
the button and, as Templeton observed him, looked dis-
appointed (Tr. 72). He then walked off and returned to have
the above conversation.
The above four conversations apparently formed the basis
of complaint paragraph 10(c) as amended at the hearing.7
Discussion and Conclusions; Violation of the
Settlement Agreement; Credibility of Witness
Katherine Templeton
Respondent argues that Katherine Templeton’s testimony
is entirely unworthy of belief (R. Br. 7).
Respondent’s first argument is that Templeton testified
that coemployee Rhonda Burnett was sitting elbow-to-elbow
with her at her work station during the conversations occur-
ring on May 10 and 12. Rhonda Burnett, called as a witness
by the General Counsel, denied overhearing any of the con-
versations on May 7, 10, or 12 (Tr. 262–263). Whereas
Templeton testified that Hale had never used the expression
‘‘have you got your head on straight’’ prior to the first time
he used it about a week before the election, Rhonda Burnett
testified that in the 2-year period she worked under Hale’s
supervision, she heard him use that expression (‘‘got your
head on straight?’’) with Templeton on several occasions
during the prior year and that he did not use the expression
with anyone else (Tr. 264–265).
Respondent’s second argument for discrediting
Templeton’s credibility is that she spoke with the Sunday
school teacher whom Hale mentioned and that teacher was
not called to corroborate the matter. (R. Br. 7; Tr. 64.)
A third criticism of Templeton’s credibility was that she
asserted that she had made notes of her first conversation
(May 7) with Hale and that, in response to Respondent’s
subpoena for the production of those notes, testified that she
was unable to find the notes after searching for them. She
said that she must have thrown them away (Tr. 234).
Lastly, Templeton admitted having violated the sequestra-
tion rule imposed on witnesses at the hearing. After testify-
ing, she discussed her testimony with persons in the waiting
area outside the court room but allegedly was unable to pin-
point which of the witnesses she had discussed the testimony
with because she said, she was ‘‘nervous’’ (Tr. 236).
With regard to the first of Respondent’s observations con-
cerning Templeton’s credibility, there is no question that an-
other of the General Counsel’s witnesses, Rhonda Burnett,
contradicted Templeton concerning the frequency and dating
of Supervisor Hale’s use of the expression ‘‘have you got
your head on straight?’’ There is no question that Templeton
testified that Hale had not used the expression before the first
time he used it on May 7 (Tr. 73), whereas Burnett testified
that Hale used the expression for about a year prior to her
giving testimony (i.e., the autumn of 1992) and had used it
only with regard to Templeton (Tr. 264–265). I agree with
Respondent that this is a direct contradiction and a serious
matter concerning Templeton’s credibility. I have reread the
Templeton and Burnett testimony concerning especially
whether Templeton and Burnett understood the questions put
to them. On the basis of my rereading the testimony of these
witnesses, I conclude that there was a direct contradiction
and that such a contradiction seriously affects Templeton’s
credibility and, under other circumstances, would unquestion-
ably tend to undermine her veracity.
The General Counsel urges that May 7 was within the last
year from the time that Burnett was testifying and was in-
deed 6 months before the trial. To the extent the General
Counsel argues that Burnett’s testimony is therefore corrobo-
rative rather than contradictory of Templeton’s testimony
(G.C. Br. 9), I reject any such explanation. The burden was
on the General Counsel perhaps in redirect examination, to
explain, modify, or otherwise delineate a different meaning
to the words actually used. In no case, however, would the
General Counsel’s theory support Templeton’s testimony that
Hale’s first use was on May 7 (Tr. 73). Burnett’s testimony
contradicts Templeton.
With regard to Respondent’s second argument, that the
General Counsel did not produce the Sunday school teacher
whom Templeton allegedly spoke to at the behest of Super-
visor Hale, Respondent’s argument wholly contradicts the
facts of record. Contrary to Respondent’s citation of the tran-
script (Tr. 64), there is no testimony in the record wherein
Templeton spoke to the Sunday school teacher. The most the
record suggests is that Hale suggested that she speak to the
Sunday school teacher.
With regard to the third element of Respondent’s attack on
Templeton’s credibility, the failure to produce the notes that
she took of the May 7 conversation, I am unable to reach
a decision on this point as to whether Templeton made a
good-faith effort to find the notes or whether, indeed, she
found them and destroyed them. It is possible, however, that
she actually destroyed the notes at a prior time. Even if de-
stroyed, the motive for destruction is unclear—whether mere
housecleaning or another basis.
With regard to Respondent’s fourth argument, that
Templeton disobeyed the sequestration order, the gravamen
of the violation is that she talked to anybody outside of the
room rather than remembering who exactly she spoke to. In
the absence, however, of discovering whose testimony might
have been tainted, El Mundo Corp., 301 NLRB 351, 352
(1992), it is difficult to measure the extent to which any
other witnesses’ testimony might have been tailored. I ob-
serve, however that none of the General Counsel’s witnesses
testifying after Templeton testified on the subject of
Templeton’s testimony except Burnett. But Burnett’s testi-
mony, as Respondent observed, tended to undermine and im-
peach Templeton’s testimony rather than to suport it, even
perhaps on the basis of Templeton’s violation of the seques-
tration rule. See Seattle Seahawks, 292 NLRB 899, 906–907
(1989).
In resolving Templeton’s credibility, and notwithstanding
the contradiction by Burnett with regard to Supervisor Hale’s
use of the expression ‘‘got your head on straight?’’ and the
questions raised by her violation of the sequestration rule and
the failure to produce her notes admittedly taken, I am con-
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
8 The postsettlement conversations of Hale and Templeton of May
12 and 14, 1993, seem to me are made explicable in the context of
the language used in their prior conversations of May 7 and 10,
1993. One may discern both motive and the meaning of language
from presettlement conversations which throw light on
postsettlement conversations. Park Manor Nursing Home, 277
NLRB 197, 199 (1985); Joseph’s Landscaping Service, 154 NLRB
1384 (1965), enfd. sub nom. Northern California Hod Carries v.
NLRB, 389 F.2d 721 (9th Cir. 1968).
9 Templeton, in addition, though prounion, has no monetary inter-
est in the outcome of the hearing and, as a current employee, is testi-
fying directly in the face of Respondent’s contrary interests. See
Georgia Rug Mill Co., 131 NLRB 1304, 1305 fn. 2 (1961).
strained to observe that Respondent failed to call Hale as a
witness to contradict, explain, modify, or otherwise mitigate
the substance of Templeton’s testimony with regard to the
conversations of May 7 to 14, 1993.8
The failure to call Supervisor Hale to contradict, explain,
and directly undermine Templeton’s testimony leads me to
draw an adverse inference regarding all the conversations of
May 7 to 14. In particular, I infer that Hale, if called, would
have testified adversely to Respondent both on the substance
of his statements and the meaning of the language, particu-
larly as to whether and when his inquiries, postsettlement,
about Templeton having ‘‘her head on straight’’ occurred
and whether they were as impliedly ominous as the earlier
May 7 and 10 conversations were explicit. International
Automated Machines, 285 NLRB 1122 (1987).
As I observed Templeton, there was nothing in her de-
meanor which suggested that she was untruthful. On the
other hand, she violated the sequestration order and was con-
tradicted on a material point by a witness (Burnett) called os-
tensibly to corroborate her testimony. On the question of ac-
tual prejudice, I have been unable to discover, nor has Re-
spondent directed my attention, to any element of
Templeton’s testimony regarding violation of the sequestra-
tion order which would lead me to believe that other wit-
nesses were tainted in their testimony or that any further tes-
timony by Templeton was tainted.
While there is no doubt that the contradiction by witness
Burnett on the question of how often and when supervisor
Hale used the expression ‘‘having her head on straight,’’ a
material matter, is a significant element in weighing credibil-
ity, I do not regard the existence and failure to produce the
notes to be quite so significant. There is no doubt, in my
mind, that Respondent made a strong indirect case for dis-
believing Templeton’s testimony (Burnett’s testimony; failure
to produce the notes; violation of the sequestration order).
The countervailing element, however, which I find crucial, is
Respondent’s failure to directly contradict her testimony by
calling Supervisor Hale. That failure demonstrates that Re-
spondent was relying on otherwise formidable inferences of
Templeton’s unreliability.
As I observed Templeton, in short, it is possible that she
destroyed her notes innocently; that Burnett was mistaken;
and that the violation of the sequestration order was a matter
of excitement which, on this record, did no harm and may
have aided Respondent (Burnett). Suffice it to say that Re-
spondent has not called my attention to any of Templeton’s
own testimony which ‘‘carries its own death wound’’; nor
has Respondent, by its failure to call Supervisor Hale, or any
other witness to the conversations stretching from May 7 to
14, demonstrated that the testimony of any witness
dispositively discredits Templeton because it ‘‘carries its own
irrefutable truth.’’ NLRB v. Pittsburgh Steamship Co., 337
U.S. 656, 660 (1949). I fully recognize that I am not obliged
to credit even uncontradicted testimony. And I violate no
confidence in suggesting that, had Hale been called and ma-
terially and credibly contradicted Templeton’s prounion testi-
mony, I would have had a dispositive basis for discrediting
Templeton’s testimony and would have discredited her. On
the basis of the existing record, however, I do not discredit
Templeton. On this record, Templeton, as a 17-year em-
ployee, testified under oath and will not be discredited with-
out Supervisor Hale, in Templeton’s presence, swearing that,
in substance, Templeton’s testimony was false or mistaken.9
Having credited Templeton’s testimony with regard to her
conversations with Hale, I conclude that, on May 12, after
the May 10 settlement agreement, when Hale told her that
she had too many years to lose and asked her if she had
made up her mind (about voting for the Union), he was
warning or threatening her with job loss if she voted for the
Union. Furthermore, I regard the otherwise ambiguous con-
versation of May 14, wherein he told her that she was
‘‘awful quiet today’’ and showed her the handbill which
said, ‘‘[V]ote no—don’t bet the farm,’’ to be a reminder that
in prior conversations of May 7 and 10, he told her that she
had too many years to lose at Respondent and had her job
and her children to think about; that the plant could move
to Mexico; that she needed to make up her mind about vot-
ing for the Union and that she ‘‘better get her head on
straight.’’ The May 10 and 12 (postsettlement) threats and
warnings of job loss and plant moving were all implicit in
the May 14 statement: ‘‘don’t bet the farm’’ and whether
Templeton had her ‘‘head on straight.’’ In short, I particu-
larly regard the conversation of May 12 (‘‘head on straight’’;
make up her mind; too many years to lose) to be a serious
8(a)(1) violation and May 14 (‘‘head on straight?’’; ‘‘don’t
bet the farm’’) to also constitute a violation of Section
8(a)(1) of the Act and that they were Hale’s explicit and im-
plicit warnings of job loss in case Templeton voted for the
Union.
(2) The testimony of Margaret Knight: Knight, employed
16 years by Respondent, worked on the day shift in the blade
department, like Katherine Templeton, under Supervisor
Hale. She testified that either on Friday, May 7, or Monday,
May 10, she was approached at her work station by Super-
visor Campbell Kelsey. When she asked him what he want-
ed, he asked her whether she was going to ‘‘pay these people
[the Union] to represent [you].’’ Knight told him that she
was for the Union and did not care who knew it (Tr. 212).
Supervisor Kelsey then asked her where she was going to
work after they closed the plant (Tr. 212–213); whether she
was going to work at Wal-Mart. Such a statement is an un-
lawful threat to close the plant and a threat of job loss, vio-
lating Section 8(a)(1) of the Act. She told him that she did
not believe they would close the plant because of the Union.
Respondent failed to call Supervisor Kelsey to rebut any
of this testimony. Rather, Respondent attacks the relevance
of the testimony by adverting to Knight’s unsureness as to
the day the conversation occurred. Respondent, however,
concedes that on its cross-examination of Knight, it occurred
to her that the conversation was either on the Friday before,
73OSTER SPECIALTY PRODUCTS
10 I thus avoid answering the question whether, for purposes of
setting aside the settlement agreement, Respondent’s acts on and
after May 7 are relevant. That question is answered by determining
whether the Regional Director’s May 10 approval of the settlement
agreement disposes of Respondent having bound itself to the settle-
ment agreement by its signing on May 7. In other words, is Re-
spondent, despite the Regional Director’s necessary May 10 ap-
proval, nevertheless bound, nunc pro tunc, commencing May 7? If
so, then certainly May 10 unfair labor practices would be relevant
in deciding whether to set aside the settlement.
11 Nor did Supervisor Kelsey appear in order to refute Goolsby’s
separate testimony that apparently on Monday, May 10, he threat-
ened a closedown of the plant if the Union came in (Tr. 199–201).
or the Monday preceding, the election, i.e., either May 7 or
10. Respondent’s reference (Br. 12) to Knight’s pretrial affi-
davit to the Board, dated June 7, 1993, wherein she could
not be more specific about the date except that it was ‘‘about
a week before the election’’ (R. Exh. 11), is not inconsistent
with her testimony. Nor is it uncommon for a witness’ mem-
ory to be jogged, perhaps by extraneous events and testi-
mony, as to a particularization about dates.
Furthermore, Respondent attacks her credibility by point-
ing to an alleged contradiction on whether her conversation
with Supervisor Kelsey ended with his comment about clo-
sure of the plant or whether there were further remarks. I do
not find that Knight’s explanation (that she returned to her
work after watching Supervisor Kelsey leave when Super-
visor Hale approached) amounted to a significant self-con-
tradiction; nor that Kelsey returned thereafter and they talked
of other things.
As in the case of Templeton, above, Respondent failed to
produce its supervisor, this time Kelsey, to explain, refute, or
modify Knight’s otherwise credible testimony. I credit
Knight and find that the conversation occurred on either May
7 or 10, 1993. Since for purposes of this analysis, I am rely-
ing on testimony relating to alleged violations after May 10,
1993, I need not, for present purposes, take into account
whether this conversation, if it occurred as early as May l0,
would constitute a basis for setting aside the settlement
agreement.10 That it is available for purposes of setting aside
the election is quite another matter and will be noted here-
after. In light of Respondent’s failure to call Supervisor
Campbell Kelsey to refute this alleged conversation, I regard
the General Counsel’s failure to corroborate the conversation
by calling employee Patsy Roller whom Knight telephoned
on the night of this conversation to be of little significance.
The key element is the failure to call Supervisor Kelsey to
refute Knight’s testimony. Kelsey’s threat of plant closing
and loss of Knight’s job violates Section 8(a)(1) of the Act.
(3) Testimony of Patsy Roller: Roller, employed by Re-
spondent for 21 years, was in the blade department under the
supervision of Supervisor Campbell Kelsey, as was Margaret
Knight, above. Roller, an open advocate of the Union, wore
union insignia for 2 weeks before the election.
Roller testified that she asked Supervisor Kelsey for 2
hours of vacation time for the afternoon of May 14, before
she voted in the election. She wished to leave at 1 p.m. rath-
er than at 3 p.m. There is no dispute that Respondent re-
quires a gate pass, completed and signed by the supervisor,
before an employee can leave through Respondent’s gate. As
Respondent notes (R. Br. 16), normally, an employee advises
the supervisor, in advance, what time the employee wishes
to leave the premises and the supervisor completes the plant
pass, signs it, and returns it to the employee prior to the
specified leaving time. Roller had always followed this pro-
cedure and always had been granted time off as requested.
In the morning of May 14, at 11 a.m., Supervisor Kelsey
brought her the completed plant exit pass for leaving 2 hours
early. As he handed her the pass, she asked him: ‘‘Why
don’t you let me leave at 11 A.M.?’’ Kelsey answered:
‘‘You can if you change your vote.’’
Employee Alene Goolsby, employed for 16 years by Re-
spondent, worked in the blade department, elbow-to-elbow
with employee Patsy Roller. She heard Supervisor Kelsey
speak to Patsy Roller about leaving earlier and recalled that
he told her that she could leave earlier ‘‘if you’ll change
your vote you can’’ (Tr. 201). Like Roller, Goolsby testified
that the conversation occurred about 11 a.m. before lunch-
time. She told other employees of this conversation (R. Br.
17–18).
Kelsey was not called to refute, explain, or modify this
testimony of Goolsby and Roller.11 Respondent does not
argue that Kelsey’s offer, whether or not a statutory viola-
tion, is not an abridgment of the settlement agreement.
I found Roller to be a credible witness and find that Su-
pervisor Kelsey’s offer of further time off if she would
change her vote (and vote against the Union), in the presence
of employee Goolsby, constitutes a violation of Section
8(a)(1) of the Act. In light of Respondent’s failure to
produce its supervisor to refute her testimony and in the
presence of corroborating witness, I do not credit Respond-
ent’s attack on Roller’s credibility.
What is left, therefore, with regard to alleged unfair labor
practices occurring after the May 10 settlement agreement, is
the testimony of Templeton and Roller. With regard to
Templeton, I have found violations of Section 8(a)(1) of the
Act based on the May 12 conversation in which, inter alia,
Supervisor Hale told Templeton that she had ‘‘too many
years to lose’’ and that this was a warning or threat, re-
capitulating threats of May 7 and 10, of discharge or loss of
job in case the Union came in. I also found the May 14 con-
versation, whatever ambiguity might appear on its face, to
constitute a violation of Section 8(a)(1) of the Act. Hale,
having already threatened Templeton on May 12 with loss of
her job, was telling her, in tendering the handbill, not to ‘‘bet
the farm’’ (i.e., her job security) on the Union and was a
repetition and a reminder of his prior conversation that she
had ‘‘too many years to lose,’’ a threat of job loss.
With regard to employee Roller, there is Supervisor
Kelsey’s May 14 offer to grant Roller further time off, early
on the day of the election, if she would switch her vote and
vote no union. This also is a postsettlement violation of Sec-
tion 8(a)(1) of the Act.
D. The Settlement Agreement of May 10, 1993
The settlement agreement (R. Exhs. 1, 2), as above-noted,
was executed by the Respondent and the Union on May 7
and by the Regional Director on May 10, 1993. By its terms
(R. Exh. 1) the settlement agreement contains an attached no-
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
12 The fact that Respondent did not post the notice until May 19,
1993, does not, in my judgment, excuse Respondent’s conduct for
not complying with the agreed terms thereof on an earlier date, i.e.,
on the effective date of the settlement agreement, no later than the
end of business on Monday, May 10, 1993.
tice for posting and requires that Respondent will ‘‘comply
with all the terms and provisions of said Notice.’’12
The notice, with which compliance is mandatory by terms
of the settlement agreement, requires Respondent, inter alia,
to refrain from (a) threatening employees with plant closure
and relocation because of their union activities; (b) telling
employees that it will be futile to engage in union activities;
(c) interrogating employees regarding their union activities
and sympathies; (d) creating the impression of surveillance
of employee union activity; (e) threatening employees with
discipline or discharge for engaging in union activities; and
(f) ‘‘in any like or related manner’’ interfering with, restrain-
ing, or coercing its employees in the exercise of the employ-
ees’ Section 7 rights guaranteed by the Act.
With regard to witness Templeton, Supervisor Hale asked
her on May 12 if she had her head on straight, if she had
her mind made up, and told her that she had too many years
to lose. These statements to Templeton constitute a threat of
loss of her job if the Union prevailed, and unlawful interro-
gation within the meaning of the settlement agreement’s pro-
hibition against future interrogation. These Hale statements
are independent violations of Section 8(a)(1) of the Act, vio-
late the settlement agreement, whether in particular or by vir-
tue of the generalized prohibition against acts of a ‘‘like or
related manner.’’
With regard to Patsy Roller, I conclude that while Super-
visor Kelsey’s May 14 offer of additional time off if Roller
changed her allegiance and voted against the Union is not
within any of the specific prohibitions in the settlement
agreement, I find that it is arguably within the prohibitions
of misconduct ‘‘in any like or related manner,’’ but is cer-
tainly an independent violation of Section 8(a)(1) subsequent
to the May 10 settlement agreement.
It is well established that an unfair labor practice will not
be found based on presettlement conduct unless there has
been a failure to comply with the settlement agreement, or
subsequent unfair labor practices have been committed.
Nudor Corp., 281 NLRB 927 (1986); Farm Fresh, Inc., 301
NLRB 907, 908 (1991). As above-noted, in analyzing the
case, I have relied exclusively on evidence regarding viola-
tions demonstrated in Respondent’s postsettlement conduct
without reference to Respondent’s presettlement actions ex-
cept insofar as I may have considered presettlement actions
by Respondent’s supervisors as background evidence to de-
termine the motive, and indeed the meaning of words, in Re-
spondent’s supervisor’s postsettlement conduct. YMCA of
Pikes Peak Region, 291 NLRB 998, 1010 (1988), enfd. 914
F.2d 1442 (10th Cir. 1990); and see particularly NLRB v.
Shurtenda Steaks, 397 F.2d 939, 945 (10th Cir. 1968) (em-
ployer unfair labor conduct antedating settlement admissible
to determine purpose and intent of postsettlement conduct).
Again, Respondent’s postsettlement unfair labor practices are
not isolated and are substantial. They violate the settlement
agreement.
In defense, Respondent raises several arguments. The first
is that these postsettlement violations were merely the work
of low-level supervisors, Campbell Kelsey and Steve Hale.
But these same supervisors engaged in substantial, similar
presettlement violations as well. Whether or not Respondent
actually chooses to use its low-level supervisors as its instru-
ment to engage in unfair labor practices, the conduct of such
supervisors was a basis on which the Regional Director (as
the instant complaint reveals with regard to presettlement al-
legations) apparently caused Respondent to settle the matter
before issuance of the instant complaint. Analytically, it
would indeed be anomalous for the Regional Director to be
able to threaten issuance of complaint based on the activities
of low-level supervisors and yet not be able to set aside the
settlement on the basis of similar postsettlement activities of
the same supervisors.
Next, Respondent argues that the above incidents were iso-
lated and each was only ‘‘the opinion of the individual [su-
pervisor]’’ (R. Br. 14). These incidents were not isolated.
They were part and parcel of the supervisors’ continuing un-
lawful campaign, presettlement and postsettlement, against
the Union. If the postsettlement unlawful conduct of a single
supervisor could not be categorized as ‘‘isolated,’’ Metro-
politan Life Insurance Co., 166 NLRB 553 (1967), then it
would be difficult to conclude that the repetitious unlawful
conduct of two supervisors could be thought of as ‘‘iso-
lated.’’
Respondent further defends on the ground that the
postsettlement unfair labor practices must be ‘‘substantial,’’
relying on the footnote of the administrative law judge in
Foodarama, Inc., 260 NLRB 298, 299 fn. 2 (1982). I find
that the postsettlement violations of Section 8(a)(1) by Su-
pervisors Kelsey and Hale, an unlawful offer, interrogation
and threats of job loss, in the presence of and repeated to
other employees, are ‘‘substantial.’’ See Metropolitan Life
Insurance Co., supra, 166 NLRB at 554.
Lastly, the Respondent defends on the ground that a union
handbill (R. Exh. 5), widely distributed on May 12, 1993
(quoting a newspaper article of the same day (R. Exh. 6)),
quoted Respondent’s division president’s (Thomas) statement
that: ‘‘Charges Oster intends to move if it is Unionized are
flatly false.’’ The union flyer then ends with the Union’s
statement: ‘‘they will not close and walk away from the best
plant they have!’’ (R. Exh. 5).
Respondent argues that the union-distributed handbill of
May 12, 1993, on the eve of the election, quoted the high
company official as having denied that the plant would move
because of the Union. Respondent concludes (R. Br. 15), that
such a union-disseminated handbill eliminates the unlawful-
ness of similar ‘‘one-on-one’’ statements of plant move or
closure by its supervisors (R. Br. 15).
Respondent concedes that this argument of repudiation or
disavowal of its supervisors’ unlawful conduct does not meet
the Board’s test for repudiation of unfair labor practices in
Passavant Memorial Area Hospital, 237 NLRB 138 (1978).
Rather, Respondent argues that the employees were put on
notice, as effectively as could be, that there was not going
to be any plant movement or closure because of unionization.
It is then argued that ‘‘the slate was wiped clean through the
disavowal just as it was found by the Board in Agri-Inter-
national, 271 NLRB 925 (1984), wherein disavowal of
lower-level supervisor conduct occurred 1 week before the
election. But Agri-International hardly supports Respondent’s
position. In the first place, in that case, the employer’s chief
supervisor posted on company bulletin boards, and mailed to
75OSTER SPECIALTY PRODUCTS
13 Among other things, the requisite proof to set aside a settlement
agreement is merely that the subsequent unfair labor practices be
substantial enough to have either violated the settlement agreement
or be substantial new ones. On the other hand, to set aside an elec-
tion, unfair labor practices (coextensive with objections to the elec-
tions, as herein) must be sufficiently widespread as to have effected
the conduct of the election. Sears Roebuck de Puerto Rico, 284
NLRB 258, 259 fn. 13 (1987).
14 To the extent Respondent argues, R. Br. 22, that its above few
postsettlement unfair labor practices are not ‘‘substantial’’ because
they occurred in a unit of 550 employees, Respondent misperceives
the actual issue at hand. Not only were they committed in the pres-
ence of and repeated to other employees, but, again, we are not deal-
ing with the question whether conduct has a widespread impact suf-
ficient to set aside an election, Sears Roebuck de Puerto Rico, supra.
Rather, the question is whether the settlement agreement should be
set aside on the basis of postsettlement unfair labor practices in vio-
lation of the settlement agreement.
employees, a disavowal notice spelling out employees’ rights
under the Act and pledging that employees would not in the
future be asked how they were going to vote. By contrast,
in the instant case, Respondent’s postsettlement actions in-
cluded continued coercive interrogation, offer, and threats.
Furthermore, in the cited case, the employer directly commu-
nicated, in detail, the contents of the notice at group meet-
ings of each shift of employees. In those meetings, each su-
pervisor involved in unlawful conduct individually came for-
ward before the group and announced that he would there-
after be committed to the principles set forth in the posted
notice to employees. That did not happen in this case. Here,
Respondent’s supervisors committed further unfair labor
practices.
Moreover, the issue in the cited case was whether, despite
the employer’s attempted repudiation, the employer’s prior
conduct nevertheless constituted interference with the em-
ployees’ free choice in an election. In other words, it was
whether there had been a sufficient prior repudiation or dis-
avowal of unfair labor practices to have permitted a free
election. That is not the issue with which we are presently
dealing. We are not now dealing with the issue of mis-
conduct sufficient to set aside an election; we are dealing
only with the issue of misconduct sufficient to set aside a
settlement agreement.13
In short, therefore, unlike Agri-International, supra, we do
not have here, as Respondent concedes, a Passavant Memo-
rial Area Hospital, supra, repudiation; we do not have the
lower-level supervisors promising, in the presence of all em-
ployees at formal meetings of each shift, to refrain from their
prior unfair labor practices; and, more important, we are not
here dealing with whether that repudiation was sufficient to
avoid the lingering effects of objectionable conduct which
could interfere with the laboratory conditions of election.
Here, the legal issue is only whether a settlement agreement
was broken by ‘‘substantial’’ postsettlement unfair labor
practices or should be set aside because of substantial
postsettlement unfair labor practices whether or not in direct
violation of the settlement agreement.
I find that the unfair labor practices, postsettlement, were
neither isolated nor insubstantial nor was there a lawful repu-
diation of any of them and that they violated the settlement
agreement. I therefore recommend to the Board that the Re-
gional Director’s settlement agreement, executed by the par-
ties on May 7 and by the Regional Director on May 10,
1993, be set aside because of violation of the settlement
agreement and because of the existence of postsettlement
substantial unfair labor practices.14
The May 10, 1993 settlement agreement having been set
aside, the alleged unfair labor practices (and parallel objec-
tionable conduct) occurring presettlement are now uncovered
and may be analyzed to inquire if the election should be set
aside.
E. The Alleged Presettlement Unfair Labor Practices
and Objectionable Conduct; Violation of
Section 8(a)(1)
1. Paragraphs 9(a) and (b) of the complaint
In December 1992, 2 weeks before Christmas, employee
Norris discussed Respondent’s recent reduction of employee
vacation benefits with Supervisor Doris Snyder; in the pres-
ence of employee Peggy Blair. Employee Norris said that the
employees needed a union. Snyder asked Norris where he
would work if a union was selected and told him that if a
union came into the plant, Respondent would close the plant
and move to Mexico (Tr. 34, 50–52). Snyder’s statement that
the plant would close and move to Mexico if the Union got
in is an unlawful threat; and his statement, posed in the form
of a question, of where employee Norris would work if the
Union got in, is a threat of loss of his job in the event that
the Union got in. Each statement constitutes a violation of
Section 8(a)(1) of the Act.
In the spring of 1993, the Union began an organizing cam-
paign among Respondent’s production and maintenance em-
ployees. Its petition for certification was filed on March 24,
1993. About 2 weeks before the filing of the petition, em-
ployees Blair and Norris and Supervisor Snyder had a con-
versation between 2 and 4 a.m. on their night shift. When
Blair and Norris discussed whether the Union would get in
and whether the Employer would then close the plant, Super-
visor Snyder stated that the plant would close and Respond-
ent would lock the door and would move to Mexico. Em-
ployee Norris said that the plant was a moneymaker, making
millions of dollars of profit, and would never close to save
a hundred thousand dollars because of the Union (Tr. 36).
Snyder answered that if the plant didn’t close, the employees
would go back to minimum wage.
Complaint paragraph 9(a) alleges that in mid-December
1992, and again on or about March 10, 1993, Respondent
threatened employees with removal of Respondent’s facility
to Mexico if employees selected the Union; and (b) on or
about March 10, told employees it would be futile for the
employees to select the Union. The above uncontradicted
conversations clearly show unlawful threats by Snyder that
Respondent would move the plant to Mexico if the employ-
ees selected the Union, in both the mid-December and March
10 conversations. And his threat to the employees that the
advent of a union would cut their wages back to minimum
wages is also unlawful.
The General Counsel’s complaint characterizes this as a
demonstration of ‘‘futility’’ if the employees selected the
Union. I do not see it as an issue of ‘‘futility’’; rather, it is
a threat that unionized employees would lose their higher
wages if the Union were selected. This is not futility. This
is a threat of loss of wages. In any event I find Snyder’s
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
15 As above-noted, an additional alleged violation of April 30,
1993, was deleted at the hearing. Hale was Margaret Knight’s and
Katherine Templeton’s supervisor in the above-discussed
postsettlement unfair labor practices.
16 Division President Thomas’ pre-May 12 assurance that the
charges of moving the plant if unionized were ‘‘flatly false’’ (R.
Exh. 6, p. 2) was not consistent with Hales’ May 7 or 10 statement
to Templeton, supra. Nor is Thomas’ denial necessarily consistent
with Plant Manager David Smith’s statements to employee James
Sweeten. See above text. In fact, Thomas’ denial, quoted in the
newspaper, was apparently in response to Respondent’s perception of
widespread employee fears of plant closure or moving in response
to unionization. Hence Thomas’ denial. But the rumors were not
mere fictional union-based propaganda. Respondent’s supervisors
were making the same threats to employees. Such threats (plant clos-
ing or moving) understandably are presumed to spread quickly
among unit employees. NLRB v. J-Wood, 720 F.2d 309, 317 fn. 11
(3d Cir. 1983).
statements violate Section 8(a)(1) of the Act. In this regard,
Respondent failed to call Supervisor Snyder or any other wit-
ness to refute the testimony of employee William C. Norris
whose credible testimony supported the above findings.
2. Paragraphs 10(a) through (c) of the complaint
Paragraph 10 of the complaint deals with alleged viola-
tions of Section 8(a)(1) of the Act, in the period May 7
through 14, 1993, by Supervisor Steve Hale, the first-shift
supervisor.15
The allegations of paragraphs 10(a) and (b) are supported
solely by the testimony of 17-year employee Katherine
Templeton whom I have credited, above, particularly because
of Respondent’s failure to call or explain the absence of, Su-
pervisor Hale to refute her testimony. Templeton’s testimony
relating to these following violations is wholly
uncontradicted.
Thus, about a week before the election, i.e., around May
7 as Templeton was leaving her work station (she had not
yet identified herself as a union supporter) in the presence
of other employees, Supervisor Hale approached her while
she was cleaning her hands (Tr. 63). He told her that he
heard some ‘‘bad things about you lately.’’ When she said
that one could hear a great many things in the plant, Hale
said that he had heard that she was ‘‘for the Union’’ (Tr.
63). He then told her:
[You have] too many years to lose at Oster, and [you
have your] children and [your] job to think about, and
a lot of people depended on [your] paycheck . . . that
the plant could move to Mexico . . . that [you need]
to make up [your] mind that [you should] call [your]
Sunday school teacher and that [you] had better get
[your] head on straight [Tr. 64].
On the following Monday morning, May 10, at her work
station, with employee Rhonda Burnett at her elbow, Hale
came up behind her and asked: ‘‘Have you thought about
what I said?’’ (Tr. 67). When Templeton said that she had
thought about it, Hale told her, again: ‘‘You’ve got too many
years to lose; . . . too many depending on [your] paycheck
and [do you] have [your] head on straight?’’ (Tr. 67).
As above noted, this testimony sheds light, as background
evidence, on the meaning of Hale’s postsettlement conversa-
tions with Templeton on May 12 and 14, 1993, supra. I find
that Respondent, by Hale’s May 7, 10, 12, and 14 conversa-
tions with Templeton, threatened her with job loss or threat-
ened that the plant would move to Mexico if the employees
selected the Union in the election which was to follow on
May 13 and 14, 1993. These threats are serious threats, in
the presence of Burnett and fellow employees. In any event,
by virtue of subsequent union handouts and handbills, to-
gether with Respondent’s division president, Thomas, being
quoted16 in the local newspaper, as above-noted, all suggest
that Hale’s threat to close the plant and move to Mexico was
an understanding widely disseminated among and commonly
held by the employees. I find that such statements by Hale
constitute unfair labor practices within the meaning of Sec-
tion 8(a)(1) of the Act. Pursuant to the consolidation of the
unfair labor practice hearing with a hearing required to re-
solve the unalleged objections in the Regional Director’s Re-
port on Objections, and since the unfair labor practices track
the unspecified objections, Hale’s threats and statements of
May 7 and 10, as well as his postsettlement statements of
May 12 and 14, not only constitute violations of Section
8(a)(1), but also are objectionable conduct which interfered
with the holding of a full, fair, and free election and the lab-
oratory conditions necessary therein. On the basis of Hale’s
May 7 and 10 conduct, widely disseminated (threat of plant
closure; movement to Mexico, loss of job) among Respond-
ent’s unit employees, I would recommend that on this con-
duct, alone, that the election of May 13 and 14 be set aside.
3. Complaint paragraph 7; violation of Section 8(a)(1)
of the Act
Paragraph 7 is devoted to allegations of 8(a)(1) violations
by Respondent’s plant superintendent, David Smith, on April
2, 1993, following the March 24, 1993 filing of the petition
for certification and prior to the May 13–14, 1993 election,
thus also within the Ideal Electric Co., 134 NLRB 1275
(1961), critical period. As noted hereafter, Smith and Manu-
facturing Manager Yates followed the same course of action
in dealing unlawfully with at least three employees.
4. Paragraphs 7(a), (c), and (e)
On or about April 2, 1993, Plant Superintendent Smith
sent for employees Sam Phillips and Charles Evans to come
to his office. When Phillips got to the office, employee
Evans and Supervisor (manager, manufacturing services)
Tommy Yates were already in the office. Smith said that the
employees were called into the office because of their asking
another employee, on ‘‘company hours’’ (Tr. 131), to sign
a union card. Smith said if they were caught signing a union
card or asking anybody to sign a union card they would be
out the door. Smith denied asking the employee to sign a
union card. Smith also told Phillips that he, Smith, needed
his job and: ‘‘I don’t know about you, but if the Union
comes in here this plant could move to Mexico’’ (Tr. 132).
Phillips also credibly testified, without contradiction, that at
the time this meeting in Smith’s office took place, there was
no rule in the plant regarding talking during working time
(Tr. 133).
As alleged, Smith’s statements to Phillips that if the Union
was selected by the employees, the plant would move to
Mexico; asking him if he distributed union cards on com-
77OSTER SPECIALTY PRODUCTS
17 Neither Supervisor Smith nor Yates testified. Distributing or so-
liciting union cards during company ‘‘hours’’ is not necessarily sub-
ject to prohibition. If the solicitation was on breaktime or lunchtime,
for instance, the solicitation of union cards and signatures, prima
facie, could not be lawfully prohibited. In any event, there was no
plant prohibition of this conduct.
18 Par. 8 of the complaint alleging the April 2, 1993 unlawful in-
terrogation of employees concerning the employees’ union activities
would be merely cumulative in the context of any restraint or order
prohibiting such conduct that I might find. Since it is cumulative,
I need not address that allegation.
pany ‘‘hours’’ (without a rule prohibiting this) and telling
him that if he was caught getting anybody to sign a union
card or talking union on company time, that he would be
‘‘out the door’’ (Tr. 132) all constitute unlawful threats of
discharge, unlawful interrogation, and unlawful threat of
plant removal all in violation of Section 8(a)(1) of the Act
as alleged.17 Since this April conversation among Smith,
Evens, and Phillips occurred within the Ideal Electric critical
period, and since these unfair labor practices track the objec-
tions specified in the Regional Director’s Report on Objec-
tions, I recommend to the Board that these objections be sus-
tained and that these objections provide additional basis on
which the election should be set aside.
5. Paragraphs 7(b), (d), and (e): violations of Section
8(a)(1) of the Act18
The above paragraphs relate to violations of Section
8(a)(1) in statements by Plant Superintendent Smith implying
the futility of employees selecting the Union; unlawful inter-
rogation and a threat of discharge for engaging in union or-
ganizing activities.
Employee James Sweeten, employed for 6 years, a setup
operator in the punch press area, testified without contradic-
tion: that on Friday, April 2, 1993, he was called into the
office of Plant Manager David Smith in the presence of Su-
pervisor Tommy Yates (Tr. 93) because of an argument be-
tween Sweeten and employee Brad Bolding, a tool-and-die
employee. Supervisor Yates asked Sweeten if the argument
in the tool-and-die department was about the Union. Sweeten
told Yates that the argument was about wages. In the argu-
ment with Bolding, Sweeten called another employee a
‘‘suck but’’ (Tr. 96). Yates told Sweeten that he had heard
that he was harassing employees in the toolroom and asking
them to go to union meetings. Sweeten told him that it was
the other way around, that every time he went into the tool-
room, Bolding would tell him that he would have to ask his
union steward if he could do certain work for Sweeten (Tr.
97). Sweeten told Supervisor Yates and Plant Manager Smith
that Bolding was harassing him by suggesting that there was
a union steward Bolding would have to consult before he
could do the work for Sweeten (Tr. 97–98).
Plant Manager Smith then asked Sweeten if he would like
to ‘‘keep working at Oster’’ and when Sweeten said that he
would, Smith said that he knew of 10 employees on the sec-
ond shift that were trying to organize (for the Union) (Tr.
98). Smith told Sweeten that Sweeten knew who they were
but Sweeten said that he ‘‘might not know them’’ (Tr. 98).
Smith insisted that Sweeten did know who they were and
that if he caught those 10 employees organizing or handing
out cards, they would be terminated or out the door, ‘‘sus-
pended’’ (Tr. 98). Smith told Sweeten that he had worked for
Oster for 34 years without a union and that he hoped that
it would be 34 more years without one (Tr. 98).
When Smith told Sweeten that there were 10 employees
on the second shift who were trying to organize in favor of
the Union (Tr. 98), he mentioned that Sweeten was 1 of the
10 organizers (‘‘he said there’s 10 of you, 10 on second
shift’’).
In fact, at a prior union meeting, the union agent asked for
10 volunteers from among the employees to help the Union
get information as to what was going on in the plant (Tr.
106). Sweeten, in fact, signed on as one of the volunteers
(Tr. 106). This union meeting had occurred on Tuesday prior
to the Friday meeting in Smith’s office with Supervisor
Yates (Tr. 106).
In one part of the conversation concerning moving of the
plant, when Smith asked Sweeten what he would do if he
was ‘‘out of a job tomorrow,’’ Sweeten told him he would
be looking for another job. In the same conversation (Tr.
104–105), when Smith asked Sweeten if he would like to see
the plant stay in McMinnville (Tr. 105), Sweeten asked
Smith ‘‘point blank’’ that if the Union came in, would Re-
spondent move the plant. Smith said that he was not saying
that; he was saying that Respondent would make clippers
(Tr. 105).
With regard to the allegations of complaint paragraph 7(b)
wherein Smith allegedly implied that it would be futile for
the employees to select the Union by telling them that the
employees would never have a union at its facility, I rec-
ommend that this allegation be dismissed as unproven. The
most that Sweeten testified to was that Smith said that he
was happy that there had been no union in the plant for 34
years and hoped there would never be one for an additional
34 years.
With regard to complaint paragraph 7(d), there is no ques-
tion that Smith told Sweeten not only that he knew that there
were 10 employees on the second shift that were trying to
organize for the Union, but that Sweeten was 1 of them, a
fact which was true on Sweeten’s undenied and uncontested
testimony. Smith’s statement was therefore a statement of
Respondent’s unlawful and accurate surveillance of Sweet-
en’s union activities. It is a violation of Section 8(a)(1) as
alleged.
Finally, with regard to paragraph 7(e), when Smith asked
Sweeten, in the same conversation, whether he would like to
keep working at Oster and what Sweeten would do if he
were out of a job tomorrow and would he like the plant to
stay in McMinnville, I find that these are unlawful threats of
discharge, loss of job, and plant moving, in violation of Sec-
tion 8(a)(1) of the Act as alleged.
Since Sweeten’s conversation with Supervisor Yates and
Plant Manager Smith was uncontradicted and since, again,
neither Yates nor Smith was called, I fully credit Sweeten’s
testimony. Moreover, since the conversation on April 2 oc-
curred within the critical Ideal Electric period I find that
Yates’ and Smith’s conversation with Sweeten constitutes
objectionable conduct and is a basis for setting aside the
election.
CONCLUSIONS OF LAW
1. Respondent Oster Specialty Products, a Division of
Sunbeam-Oster Corporation at all material times has been
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
and is an employer engaged in commerce within the meaning
of Section 2(2), (6), and (7) of the Act.
2. Sheet Metal Workers International Association, Local
483, AFL–CIO has been and is a labor organization within
the meaning of Section 2(5) of the Act.
3. By engaging in, since mid-December 1992, and through
May 14, 1993, the following acts and conduct, Respondent
interfered with, restrained, and coerced its employees in vio-
lation of the rights secured them by Section 7 of the Act,
thereby violating Section 8(a)(1) of the Act:
(a) Threatening employees with removal of Respondent’s
facility to Mexico if employees selected the Union to rep-
resent them.
(b) Threatening the employees with job loss if the Union
was selected by the employees.
(c) Threatening the employees with plant closure and loss
of jobs if the employees selected the Union.
(d) Conditioning a benefit to an employee on abandonment
of an employee’s support for the Union.
(e) Coercively interrogating employees with regard to their
membership in, sympathy for, and activities on behalf of the
Union.
(f) Unlawfully surveilling the union activities of its em-
ployees.
THE REMEDY
Having found that Respondent engaged in unfair labor
practices in violation of Section 8(a)(1) of the Act, I shall
recommend to the Board that it order Respondent to cease
and desist therefrom.
Having found that Respondent violated the May 10, 1993
informal settlement agreement, and having found that Re-
spondent’s conduct in the Ideal Electric period subsequent to
March 24, 1993, and on, and prior to, May 14, 1993, inter-
fered with the holding of a fair election among Respondent’s
employees in the appropriate unit, I shall recommend to the
Board that both the settlement agreement and the election of
May 13–14, 1993, be set aside. This recommendation is
based on the unfair labor practices paralleling the objections
(complaint pars. 7 through 11) described in the Regional Di-
rector’s Report on Objections.
To the extent Respondent argues that, pursuant to Board
Rules and Regulations, Section 102.69, there are actually no
election objections of record because all of the Union’s spec-
ified objections have been withdrawn, that matter must be
addressed to the Board rather than to me. Even if that were
true, however, the crucial fact is that a consolidated hearing
remains. For the Board Rule, as Respondent concedes (R. Br.
31–34) is that findings of unfair labor practices litigated in
a hearing consolidated with a hearing on objections in a rep-
resentation case, can form the basis for setting aside the elec-
tion even though those unfair labor practices were not raised
by the objections. Monroe Tube Co., 220 NLRB 302, 305
(1975). Indeed, Respondent concedes, as it must, that in
White Plains Lincoln Mercury, 288 NLRB 1133 (1988), the
Board held:
Simply stated, a meritorious objection is anything that
would justify setting aside the election, whether that
misconduct was raised by the Union in its objections or
was discovered subsequently by the Agency’s own pro-
cedures in resolving the questions raised as to the pro-
priety of the election.
In the instant case, in the investigation of unfair labor
practices, evidence was discovered by the Regional Director
which would form the basis for setting aside the election. Al-
legations supported by such evidence indeed were pleaded as
the instant unfair labor practices and also found to be the
pleaded unalleged objectionable conduct.
To the extent Respondent relies on Framed Picture Enter-
prise, 303 NLRB 722 (1991), and John W. Galbreath & Co.,
288 NLRB 876 (1988), for the proposition that evidence dis-
covered after the time for filing objections ordinarily should
not be considered as a basis for setting aside the election,
those cases are wholly distinguishable. Those cases are not
consolidated representation and unfair labor practice cases.
They are purely representation cases and do not remotely in-
volve the rationale and rules stated in Monroe Tube Co.,
supra, and White Plains Lincoln Mercury, supra.
Respondent argues that Board Rule, Section 102.69, and
its requirement for timely filed objections, becomes meaning-
less if the Union is permitted to simply file any statement
of objections, file a contemporaneous unfair labor practice
charge, and ‘‘hope that something thereafter will result in the
issuance of a complaint’’ (R. Br. 34). That argument is
unavailing. The Charging Party Union, in such a hypothetical
case, merely does not ‘‘hope’’ that something thereafter
would result in the issuance of a complaint. Rather, if inves-
tigation of the charge results in dismissal or withdrawal, then
there would be no complaint and hence no consolidated case
on which to base objectionable conduct derived from parallel
unfair labor practices. In such a case, the rule in the two
cases cited by Respondent, above, would be engaged. If, on
the other hand, the charge is meritorious and unfair labor
practices within the critical period are alleged and found,
then it is not a ‘‘hope’’ that results in a consolidation of the
cases (and perhaps the setting aside of the election); rather,
as in the instant case, it is Respondent Employer’s own mis-
conduct and unfair labor practices.
I have found that Respondent’s objectionable conduct, oc-
curring after the filing of the March 24, 1993 petition and
up to and including the May 13–14, 1993 election, came
within the Ideal Electric period (supra, 134 NLRB 1275);
and, constituting unfair labor practices, a fortiori, constitutes
conduct which interfered with the exercise of a free and
untrammeled choice in the election. This is because the test
of conduct which may merely interfere with the ‘‘laboratory
conditions’’ for an election is considerably more restrictive
than the test of conduct which amounts to interference, re-
straint, or coercion which violates Section 8(a)(1). Dal-Tex
Optical Co., 137 NLRB 1782, 1786–1787 (1962). I thus rec-
ommend to the Board that the objections be sustained; that
the election in Case 26–RC–7538 be set aside and that a new
election be held whenever the Regional Director for Region
26 finds that the circumstances for such new election are just
and proper.
[Recommended Order omitted from publication.]