Peerless of America, Inc.

National Labor Relations Board - Board Decisions

Aug 18, 1972

198 N.L.R.B. 982 (N.L.R.B. 1972)

982 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Peerless of America, Incorporated and International
Union, United Automobile, Aerospace and Agricul-
tural Implement Workers of America (UAW). Case
14-CA-6043
August 18, 1972
DECISION AND ORDER
BY MEMBERS FANNING, JENKINS, AND
PENELLO
On August 6, 1971, Trial Examiner William J.
Brown issued the attached Decision in this proceed-
ing. Thereafter , the General Counsel and Respon-
dent filed exceptions and supporting briefs. Respon-
dent also filed an answering brief .' The Charging
Party filed a brief in opposition to exceptions of
Respondent.
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 finds merit in certain of the exceptions.
Accordingly , the Board adopts the findings , conclu-
sions , and recommendations of the Trial Examiner
only to the extent consistent herewith.
1. We find , in agreement with the Trial Examiner,
that Respondent violated Section 8(a)(1) by Plant
Manager Kritzer's poll of employee union sympa-
thies through inquiries of supervisors (in employee
Vicki Steele 's presence), creating the impression of
surveillance and coercing employee Steele by telling
a supervisor, in Steele 's presence, that Benny Kessler
was a union instigator and should be separated from
the other employees (allegations B, C, and D of the
complaint); 2 by unlawful interrogation of employee
Layton about attendance at a union meeting (F and
H of the complaint); by Supervisor Embry's interro-
gation of , and threats of job loss to, employees Shope
(V and W)3 and Ferchow (UU and VV); by
Superintendent Becton's interrogation of employees
Broeringmeyer and Davidson about their union
1 Respondent 's request for oral argument is hereby denied as the record,
the exceptions, and briefs adequately present the issues and positions of the
parties
2 We refer hereinafter to the complaint allegations as they appear in the
subparagraphs of complaint par 5
3 In adopting the Trial Examiner 's findings that Supervisor Embry
unlawfully interrogated employee Shope (W), we find that this incident
occurred as part of the same conversation in which Embry threatened
Shope (V).
4 American Manufacturing Company, Inc, 196 NLRB No. 41
5 In addition, the Trial Examiner dismissed a number of other complaint
allegations at the hearing and in his Decision, finding no violation (K, L, 0,
LL, and NN were dismissed at the hearing , and U, Z, KK, and QQ were
dismissed in the Decision ) The parties have not excepted to such dismissals
We adopt them, pro forma, in the absence of exceptions
syngpathies (CC); by Becton's interrogation of
McCormick about a job applicant's union sympa-
thies (EE); by Becton's interrogation of employee
Ricketts (HH); by Becton's repeated solicitation of
employee Jack Stevenson to get employees to change
their mind about the Union (PP); 4 by Superintend-
ent Stigers' interrogation of employee Ferchow (T);
and by Stigers' interrogation and threat of worsened
working conditions to employee Dorothy Stevenson
(II and JJ).
2. We also find, contrary to the Trial Examiner,
that Supervisor Embry unlawfully promised employ-
ee Dorothy Stevenson improved benefits and work-
ing conditions to discourage union activity (5I).
When Embry's conduct is measured in light of his
threats to employees Shope and Ferchow to close the
plant, we conclude that Embry's telling Stevenson
that the Union wouldn't do her any good but, if
given time, the Company's president would change
things, interfered with the employee's organizational
rights.
3. We further find, in agreement with the Trial
Examiner, that Respondent did not violate the Act
by the conduct alleged in the following complaint
subparagraphs: 5 A, E, G, M, N, P, Q, S, X, Y,6 AA,
BB, DD, FF, GG,7 00, and RR.
We treat with more particularity the incidents
described below which we find, contrary to the Trial
Examiner, did not violate the Act (J,R). We also find
no violations as to allegations SS and TT, concerning
which the Trial Examiner did not make findings.
4. The Trial Examiner found that Supervisor
Hardiek violated Section 8(a)(1) by threatening
employee Wallace with discharge in order to discour-
age union activity. Respondent contends that Embry
made no unlawful threat. The credited testimony of
Wallace and other employees bears out this conten-
tion.
Wallace testified that while he was procuring parts,
Hardiek told him to get busy and that he answered
that he was busy, whereupon Hardiek replied that he
could get letters to have Wallace dismissed and the
Union couldn't do anything about it. Later in the
day, according to Wallace, Hardiek apologized,
The Trial Examiner made no findings respecting allegation MM No
exceptions were filed to his failure to find We therefore dismiss MM.
6 In adopting the Trial Examiner's findings that President O'Connor did
not unlawfully interrogate or promise benefits to employees (X and Y), we
have examined O'Connor's conversations with all of the employees and not
only those mentioned by the Trial Examiner , which are representative of the
others. We have considered not only O'Connor's credited testimony that he
told each employee that he could make no promises but also whether
O'Connor's other statements to employees implied a promise of benefits.
7 The Trial Examiner properly dismissed complaint allegation FF,
finding no unlawful interrogation of, or promises of benefit by Supervisor
Becton to, employee Parks . He omitted reference to paragraph GG of the
complaint which alleged the unlawful promises . As the Trial Examiner
properly found that the evidence failed to establish any violation in the
Becton-Parks conversation , we dismiss both FF and GG in the complaint.
198 NLRB No. 138
PEERLESS OF AMERICA, INC. 983
saying that he was sorry for what happened. Wallace
never received such letters. Employee Ferchow, who
was present, and whom the Trial Examiner credited,
testified that Wallace was talking while getting parts
for employee Wanda Murray, and that Hardiek may
have seen him dust talking. Employee Murray
testified that Wallace was talking to her when
Hardiek made his remarks. She said that "both of us
probably were just goofing off a little bit."8
The facts thus show that Hardiek's remark to
Wallace was a reprimand for apparent inattention to
his work duties. The reference to the Union did not
convert the lawful disciplinary admonition into a
coercive threat, particularly when Supervisor Har-
diek apologized to Wallace soon after the two had
exchanged words. We therefore dismiss complaint
allegation J.
5. The Trial Examiner found that Supervisors
Embry and Hardiek did not engage in surveillance of
union meetings but created the impression of it. He
therefore sustained the allegation that Respondent
gave such impression (R) but dismissed the allega-
tion on actual surveillance (S). Respondent and
General Counsel each except to these findings. We
find merit in Respondent's exception.
The supervisors were alleged to have unlawfully
placed under surveillance an open space in the
shipping department. Employees met there, near
employee Brockett's workbench, during the after-
noon workbreak. After union organization began,
employees congregated in larger numbers than
previously. Shipping Department Supervisor Har-
diek, who was responsible for the department's
security, advised Plant Manager Kritzer of the large
gatherings. The two agreed that, because of past
problems of pilferage, fire, and employee horseplay,
Hardiek or Supervisor Embry should remain in the
shipping area during the meetings. As found by the
Trial Examiner, the supervisors told employees
Wallace and Brockett that they would do that, and
that Kritzer wanted to know what was going on at
the meetings. Both employees expressed indifference,
saying that they did not care which one of the
supervisors was present. Thereafter, during the break
meetings one of the supervisors remained in the
shipping department at his usual place of work, a
cage enclosure some 80 feet distant from the others.
Neither tried to see nor hear what was going on
among employees at breaktime.
In accord with the Trial Examiner we find no
surveillance. Contrary to the Trial Examiner, we find
no impression of it. The gatherings were not secret.
They were held in an open work place, a place that
could be observed by anyone who passed by.
Supervisors, as well as employees, who worked in the
shipping department had a right to be there. We hold
that the Trial Examiner erroneously inferred that the
supervisors gave an impression of unlawful surveil-
lance. We therefore dismiss subparagraph R of the
complaint.
6. The Trial Examiner made no findings respect-
ing the complaint allegations that Supervisor Becton
promised employee Luchtefeld improved benefits
and working conditions to discourage union activity
and told her that employees could not obtain such
benefits because of the Union. The General Counsel
contends that the record supports the allegations and
also shows unlawful interrogation.9
Employee Luchtefeld testified that Becton asked
her whether she thought the employees should give
President O'Connor another chance; that all O'Con-
nor was asking for was 6 months; that, if he had 6
months, he could make things right, but he couldn't
do anything on account of the Union. She said he
had not promised benefits or told her that she had
lost any because of the Union. Luchtefeld also
testified that Becton had asked her "which way are
you going to go," and that she had declined to tell
him. Luchtefeld acknowledged that she had worn a
"UAW" sign on her back for a brief period in the
plant. Her testimony also revealed that she had not
mentioned to Respondent's attorney in a pretrial
interview that Becton had asked her about her union
feelings. The record further shows that, in a prehear-
ing statement made to a Board agent, Luchtefeld
said "no company supervisor ever asked me if I was
for the Union."
Beckton's testimony was that he told Luchtefeld
that O'Connor had been fair, that he deserved a
chance, and that we didn't need outsiders. He also
said that he could not promise anything, but
O'Connor should be given a chance. He said that,
when he asked Luchtefeld if she had any problems,
she answered in the negative, replying that she was
going to vote the way she wanted to. Becton denied
asking Luchtefeld how she was going to go or how
she felt about the Union.
We are unable to resolve the issue on unlawful
interrogation inasmuch as the Trial Examiner failed
to resolve the credibility problem. In view of
Luchtefeld's affidavits contradicting her oral testimo-
ny on Becton's asking her union sympathies, together
with the fact that the Trial Examiner credited Becton
in resolving credibility issues on other allegations, we
8 Contrary to the Trial Examiner, who failed to discuss Murray's 9 The parties erroneously assume in their briefs that the Trial Examiner
testimony in detail and characterized it as not probative because dismissed allegations SS and TT at the hearing for lack of evidence The
"discursive," we find Murray's account of the Hardiek-Wallace incident Trial Examiner at first granted Respondent 's motion to dismiss but later
directly to the point in issue reserved his ruling He failed to deal with the issues in his Decision.
984 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cannot say that a preponderance of the evidence
points to unlawful interrogation.
Becton 's remaining remarks about giving the
Company a chance are in line with those made by
O'Connor to employees, which the Trial Examiner
found were lawful persuasion (X, Y, AA, BB).10
Luchtefeld characterized them as "more or less
begging," a characterization that belies coercion. We
therefore dismiss subparagraphs SS and TT of the
complaint.
7. The Trial Examiner found that when the
Union sought recognition on October 2, 1970, in a
unit of 39 employees, it had at least 29 signed
authorization cards. He therefore directed Respon-
dent, because of the numerous serious unfair labor
practices which he found, to bargain with the Union.
Respondent excepts on the ground that the Union
did not possess a majority on January 14, the date
the election was scheduled, that the card authoriza-
tions were invalid because of improper solicitation,
and that, in any event, a bargaining order is not
justified under the United States Supreme Court's
decision in N. L. R. B. v. Gissel Packing Co., Inc., 395
U.S. 575, rehearing denied 396 U.S. 869.
Contrary to Respondent's contention, the critical
Gissel date for determining majority status where no
election has been held is the date the union seeks
recognition. We have examined the evidence relating
to the solicitation of cards and agree with the Trial
Examiner that the Union represented a valid majori-
ty when it requested recognition. The card is
unambiguous.ii It states on its face that the card will
be used to secure recognition and for collective-
bargaining purposes. The solicitors did not tell card
signers either literally or in substance that the cards
would be used for no purpose other than to help get
an election .12 Of 39 unit employees the Union had 24
clearly valid cards. We find it unnecessary to
determine the validity of the remainder of the cards.
We therefore find, in agreement with the Trial
Examiner, that the Union represented a majority of
10 Cf National Can Corporation, 159 NLRB 647, 660
ii The authorization card reads
This card will be used to secure recognition and collective bargaining
for the purpose of negotiating wages, hours , and working conditions
You have the right under Federal law to organize and join a union
By Joining the UAW you have the support of one of the world' s largest
unions.
12 Levi Strauss & Co., 172 NLRB No. 57, fn 7, enfd. 441 F.2d 1027
(C.A D.C), cited with approval, N LR B v Gissel Packing Co, 395 U S
575
13 Respondent contends that the Board's recent decision in Motown
Record Corporation, 197 NLRB No 176, in which a bargaining order was
denied , requires the same conclusion in the instant case . Member Penello,
who participated in that decision , finds the instant situation readily
distinguishable The antiunion activities of Respondent in the instant case
were flagrant , extensive , and far-reaching ; covered a much longer period of
time , and included direct threats of discharge and plant closing, as well as
promises of benefits . Motown, in contrast, involved one statement which the
employees when it sought recognition on October 2,
1970.
8. An issue is raised as to whether the facts justify
a finding of an 8(a)(5) violation and a remedial
bargaining order o : the basis of the Union's card
majority. The facts show that, as soon as the Union
began to organize, Respondent began to undermine
the Union. Thus Respondent systematically polled
union sentiment, created the impression of union
surveillance and directed a supervisor in the presence
of an employee to segregate a union supporter,
repeatedly interrogated employees about their own
and others' union sympathies and about attendance
at a union meeting, made'repeated efforts to have an
employee persuade others to give up their support of
the Union, promised a change for the better in
working conditions, threatened worsened working
conditions, and threatened a plant shutdown and
layoff-all in discouragement of union support.
These unfair labor practices were directed at under-
mining union strength and impeding the election
process. Applying the standards of N.L.R.B. v. Gissel
Packing Co., supra, we consider whether there is still
a possibility of ensuring a fair election. We believe
that possibility is slight because of the lingering
coercive effect of the unfair labor practices.13 We
therefore hold that the employees' majority designa-
tion of the Union as expressed in their authorization
cards provides in this case a more reliable measure of
the employees' true desires than would be provided
by an election.
AMENDED CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce and in a business affecting commerce within
the meaning of Section 2(6) and (7) of the Act.
2. International Union, United Automobile, Ae-
rospace and Agricultural Implement Workers of
America (UAW), is a labor organization within the
meaning of Section 2(5) of the Act.
3. By seeking, in the presence of employees, to
employees interpreted as meaning possible discharge if they engaged in
concerted activities (i.e., not a direct threat by any interpretation),
interrogation of two employees unaccompanied by any threats or promises
of benefits, and a suggestion to one employee that a wage increase was
connected with union activity but not couched in coercive terms, and the
Board concluded there that these were neither extensive nor of such a
nature as to have lingering effect that could not be erased by the Board's
traditional remedies. Under these circumstances , the fact that the direct
threat of discharge in the instant case and the possible suggestion of
termination in Motown both occurred 4 months before the election dates (no
election was held herein) does not require a different result , as timing is only
one factor to be considered and is not controlling Members Fanning and
Jenkins, neither of whom participated in the Motown decision , agree with
Member Penello that the instant case is factually distinguishable from
Motown However, their agreement in this respect does not necessarily mean
that they agree with their colleagues' refusal to adopt the Trial Examiner's
recommendation that a bargaining order be issued in the Motown case
PEERLESS OF AMERICA, INC.
determine from supervisors the union sentiments of
employees; by creating in the presence of employees
the impression of company surveillance of employee
union activity; by stating in the presence of employ-
ees that a union supporter should be segregated; by
interrogating employees concerning attendance at
union meetings; by interrogating employees concern-
ing their own and others' union sympathies; by
promising beneficial employment changes if the
Union were not selected; by threatening employees
with unpleasant changes in work conditions in the
event of union selection; by soliciting an employee
repeatedly to dissuade other employees from support
of the Union; and by threatening to close the plant
as a consequence of union representation, Respon-
dent has interfered with, restrained, and coerced its
employees in the exercise of the rights guaranteed in
Section 7, thereby engaging in unfair labor practices
in violation of Section 8(a)(1) of the Act.
4. All production and maintenance employees
employed by Respondent at its Effingham , Illinois,
facility, excluding office clerical employees, profes-
sional employees, guards and supervisors as defined
in the Act, constitute a unit appropriate for collective
bargaining within the meaning of Section 9(b) of the
Act.
5. The Union at all times since October 2, 1970,
has been and now is the exclusive representative of
all the employees in the above-described unit for the
purposes of collective bargaining within the meaning
of Section 9(a) of the Act.
, 6. By refusing on October 7, 1970, and at all times
since, to recognize and bargain collectively with the
Union as the exclusive representative of its employ-
ees in the appropriate unit, Respondent has engaged
in, and is engaging in unfair labor practices within
the meaning of Section 8(a)(5) and (1) of the Act.
7. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respondent,
Peerless of America, Incorporated, Effingham, Illi-
nois, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning
their union membership, sympathies, or activities, or
those of other employees or prospective employees.
14 In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by Order
of the National Labor Relations Board" shall read "Posted pursuant to a
985
(b) !Creating the impression of surveillance and
otherwise coercing employees by seeking, in the
presence of employees, to determine from supervi-
sors the union sentiments of employees or directing
reprisals against union supporters.
(c) Coercively soliciting employees to use their
influence to dissuade employees from joining or
supporting the Union, or any other labor organiza-
tion.
(d) Promising better working conditions if a union
were not selected.
(e) Threatening unpleasant working conditions or
plant shutdown if the employees selected a union to
represent them.
(f) Refusing to bargain collectively with the
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), as the exclusive representative of the
employees in the following unit:
All production and maintenance employees em-
ployed by Respondent at its Effingham, Illinois,
facility, excluding office clerical employees, pro-
fessional employees, guards and supervisors as
defined in the Act.
(g) In any other manner interfering with, restrain-
ing, or coercing their employees in the exercise of
their right to self-organization, to form, join, or assist
International Union, United Automobile, Aerospace
and Agricultural Implement Workers of America
(UAW), or any other labor organization, to bargain
collectively through representatives of their own
choosing, and to engage in other concerted activities
for the purpose of collective bargaining or other
mutual aid or protection or to refrain from any or all
such activities.
2. Take the following affirmative action which
the Board finds is necessary to effectuate the policies
of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all employees in the appropriate unit described above
with respect to rates of pay, wages, hours, and other
terms and conditions of employment and, if an
understanding is reached, embody such understand-
ing in a signed agreement.
(b) Post at its office and plant in Effingham,
Illinois, copies of the attached notice marked
"Appendix." 14 Copies of said notice, on forms
provided by the Regional Director for Region 14,
after being duly signed by Respondent's authorized
representative, shall be posted by Respondent
immediately upon receipt thereof, and be maintained
by Respondent for 60 consecutive days thereafter, in
Judgment of the United States Court of Appeals enforcing an Order of the
National Labor Relations Board."
986 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
conspicuous places, including all places where
notices to employees are customarily posted . Reason-
able steps shall be taken by Respondent to insure
that said notices are not altered , defaced , or covered
by any other material.
(c) Notify the Regional Director for Region 14, in
writing , within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
PEERLESS OF AMERICA,
INCORPORATED
(Employer)
Dated
WILLIAM J. BROWN, Trial Examiner: This proceeding
under Section 10(b) of the National Labor Relations Act,
as amended, hereinafter referred to as the "Act," came on
to be heard before the Trial Examiner at Effingham,
Illinois , on April 26 through April 30, and on May 3 and 4,
1971. The original charge of unfair labor practices had
been filed on January 12, 1971, by the above-indicated
(Charging Party, hereinafter sometimes referred to as the
""Union," and the complaint herein was issued March 22,
1971. It alleged, and the duly filed answer of the above-
^indicated Respondent, hereinafter sometimes referred to as
the "Company," denied' the commission of unfair labor
practices defined in Section 8(a)(1) and (5) of the Act.
At the hearing, the parties appeared and participated as
,noted above with full opportunity to present evidence and
'argument on the issues. Subsequent to the close of the
hearing all parties filed written briefs I which have been
fully considered. On the entire record herein and on the
basis of my observation of the witnesses , I make the
following:
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 , 210 N. 12th Boulevard, Room 448,
St. Louis, Missouri 63101 , Telephone 314-622-4167.
TRIAL EXAMINER'S DECISION
WE WILL NOT coercively interrogate employees
concerning their union membership , sympathies,
or activities , or those of other employees or
prospective employees.
WE WILL NOT create the impression of surveil-
lance and otherwise coerce employees by seeking,
in the presence of employees , to determine from
supervisors the union sentiments of employees or
direct reprisals against union supporters.
WE WILL NOT coercively solicit employees to
use their influence to dissuade employees from
joining or supporting the Union , or any other
labor organization.
WE WILL NOT promise better working condi-
tions if a union were not selected.
WE WILL NOT threaten unpleasant working
conditions or plant shutdown if employees select
a union to represent them.
WE WILL NOT in any other manner interfere
with, restrain , or coerce employees in the exercise
of their organizational rights under the National
Labor Relations Act.
WE WILL bargain collectively on request with
International Union, United Automobile, Aero-
space and Agricultural Implement Workers of
America (UAW), as the exclusive representative
of the employees in the appropriate unit described
below with respect to wages, hours of employ-
ment, and other terms and conditions of employ-
ment and , if an understanding is reached, we will
embody such understanding in a signed agree-
ment . The appropriate unit is:
All production and maintenance employees
employed by us at our Effingham , Illinois,
facility, excluding office clerical employees,
professional employees , guards and supervi-
sors as defined in the Act.
FINDINGS OF FACT
By
(Representative) (Title)
1. THE BUSINESS OF THE COMPANY
The pleadings and evidence establish and I find that the
Company is a corporation organized and existing under
and by virtue of the laws of the State of Illinois with its
principal office at Chicago, Illinois , and a plant at
Effingham, Illinois, where it is engaged in the manufacture,
sale, and distribution of heating and refrigerating products
and components. During the calendar year 1970,2 a
representative period, the Company manufactured at its
Effingham plant products valued in excess of $50,000 and
shipped directly from the Effingham plant to points
outside the State of Illinois. I find, as the Company
concedes, that it is an employer engaged in commerce
within the purview of Section 2(6) and (7) of the Act.
I Briefs were filed on June 28.
2 Dates hereinafter, unless otherwise noted, relate to the calendar year
1970
PEERLESS OF AMERICA, INC. 987
II THE LABOR ORGANIZATION INVOLVED
The pleadings and evidence establish that the Union is a
labor organization within the purview of Section 2(5) of the
Act.
III. THE UNFAIR LABOR PRACTICES
A. Introduction and Summary of Events
Sometime about August 15, the Union commenced an
organizational campaign among the production and
maintenance employees of the" Company. On October 2,
the Union demanded recognition in the concededly
appropriate unit, vis all production and maintenance
employees of the Effingham plant excluding office clerical
employees, professional employees, guards, and supervi-
sors as defined in the Act. On October 6, the Union filed a
representation petition and on December 14 an election
was scheduled for January 17, 1971; the election was
deferred indefinitely upon the filing of the charges herein.
By letter dated October 7, the Company declined the
Union's request for recognition on the basis that (1) it
doubted the union claim of majority status and (2) another
labor organization was engaged in organizational efforts
among company employees in the umt embraced by the
union demand . The complaint alleges that the Company
engaged in numerous unfair labor practices embraced
within the scope of Section 8(a)(1) of the Act in the period
from August to December, and engaged in an unlawful
refusal to bargain with the Union from and after October
2. The answer denies the aforementioned allegations of the
complaint. It also denies the allegations of the complaint to
the effect that William Embry and Kenneth Hardiek,
allegedly company agents in the commission of unfair
labor practices, are supervisory employees.
B. Supervisory Status of Embry and Hardiek
In the hearing on the representation petition, the Union
took the position that Hardiek and Embry were supervisors
and excludable from the unit; the Company contended
that they were nonsupervisory employees. The Regional
Director found that they were supervisory employees and
excluded from the umt. In reaching this conclusion the
Regional Director relied on evidence establishing that,
unlike rank-and-file workers, Embry and Hardiek receive
biweekly salaries and pay for illness absences, do not
punch timeclocks, and are not paid for overtime. They
attend management meetings, have authority to move
employees to different jobs and, for substantial periods of
the workday, are in sole charge of their respective
departments. The evidence taken in the instant complaint
case confirms the conclusion that Embry and Hardiek
were at material times supervisors within the meaning of
the Act, Thus, conclusion is buttressed by the fact that on
learning of the inception of the union campaign, Plant
Manager Richard Kritzer convened a meeting of supervi-
sors, including Embry and Hardiek, to plan a management
course of action. The evidence indicates that both Embry
and Hardiek are regarded by executives and rank and file
as supervisors; I conclude that their status as such clearly
appears from all the evidence.
C. Interference, Restraint, and Coercion
1. Plant Manager Richard Kritzer
Plant Manager Kritzer, an admitted supervisor, is alleged
to have engaged in various instances and types of
interference, restraint , and coercion within the period from
August 26 to December 4. The allegations and evidence in
this regard are set forth according, as in the complaint, to
chronological sequence as to each of the several company
agents alleged to be involved.
In paragraph 5A of the complaint, Kritzer is alleged to
have, on or about August 26, spoken to an employee and
given the employee the impression that it would be futile
for employees of the Company to obtain union representa-
tion . General Counsel asserts that the allegations of the
complaint in this regard are established by the testimony of
Vicky Steele, employed by the Company as secretary to
Kritzer and assigned to occupy the same office as did
Kritzer. The Company contends that Steele, as a confiden-
tial secretary, could not be an "employee" coerced,
restrained, or interfered with within the ambit of Section
8(a)(1) of the Act. But, as the General Counsel points out
the only special treatment accorded confidential employees
is their exclusion from rank-and-file representation units
and there can be no inference that they are not accorded
the protection of the Act from unfair labor practices. Steele
testified that on or about August 26 Julian Becton,
extrusion superintendent and an admitted supervisor, came
to the office with a union letter apparently distributed
among employees . Kritzer, according to Steele, whose
account I credit, telephoned company headquarters in
Chicago and then told Steele that there was no way the
Union could succeed in organizing the Effingham plant
and that the Company had beat the Union in Chicago and
could beat it at Effingham. General Counsel's reliance
upon the Board's decision in L F. Strassheim, 173 NLRB
846 seems to me to be misplaced . I regard the remarks of
Kritzer on the occasion in question as no more than a
statement of a company policy to oppose the Union's
organizational campaign without indication that unlawful
means would be employed in such opposition and
recommend dismissal of the allegations of paragraph 5A of
the complaint.
Kritzer is alleged in paragraph 5B of the complaint to
have, in late August or early September and in the presence
of employees, sought to determine from supervisors the ,
union sympathies of employees. General Counsel appar-
ently relies on the testimony of Steele to substantiate these
allegations. Steele testified that on or about September 11
Kritzer summoned Supervisors Becton, Embry, Stigers,
and Hardiek to the office and, inquiring of the four
supervisors as to their knowledge of employees' union
sympathy, checked their probable sympathy against a list
of employees. The General Counsel relies on Cannon
Electric Co., 151 NLRB 1465 at 1468 which appears to
require the conclusion that such inquiries are unfair labor
practices . I credit Steele's testimony in this matter and find
that the Company engaged in unfair labor practices by
such systematic inquiry and tabulation under circum-
stances where the investigation and tabulation were openly
apparent to employee Steele.
988 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
In paragraph 5C of the complaint, Kritzer and Embry
are alleged to have created the impression of company
surveillance of employee union activity by stating in the
presence of an employee, in late August or early Septem-
ber, that they thought a certain employee was a union
instigator. Steele testified that shortly after the September
11 meeting referred to above, Kntzer and Embry conferred
on the question of who among the employees was the
prime instigator of the umon movement. They settled on
employee Benny Kessler and agreed that he should be
segregated and eventually placed on the night shift. This
conversation occurred in the presence of Steele and
constituted an unfair labor practice under Section 8(a)(1)
of the Act as alleged in paragraphs 5C and D of the
complaint.
It is alleged in paragraph 5E, F, and G of the complaint
that Kritzer, on or about September 4, created the
impression of surveillance of employee union activity,
interrogated an employee concerning his attendance at a
union meeting, and asked the employee to report the
events occurring at the meeting; Kntzer is also alleged in
paragraph 5H of the complaint to have, on Septebmer 8,
interrogated the same employee concerning a umon
meeting. General Counsel relies on the testimony of Gerald
(Tom) Layton. Layton, a union supporter, testified that on
or about September 4, Kntzer asked him if he planned to
attend a union meeting scheduled for that evening, adding
that Layton should take a pencil and pad and take notes.
After the meeting, according to Layton, Kritzer asked him
how many attended. Although I found Layton the most
credible witness on this aspect of the case, I conclude that
his testimony substantiates only the allegations of para-
graphs 5F and H and not those of paragraphs 5E or G.
Kntzer is also alleged, in paragraph 5QQ of the
complaint to have engaged in an act of interference,
restraint, and coercion by having, on or about December 4,
promised an employee improved benefits and wages in
order to discourage employee union activity. General
Counsel relies on the testimony of employee Wallace,
apparently the employee leader of activity on behalf of the
Union. Wallace testified that about 9 p.m. on the evening
of December 4, Embry telephoned him at home and asked
him to meet with him that evening concerning some
rumors. Wallace, according to his account, agreed to meet
then called Kritzer and reported Embry's telephone call
whereupon Kritzer told him to disregard Embry's invita-
tion and added that if Embry ever called again he would be
discharged. Kritzer then added, according to Wallace, that
if everything went O.K. at the plant they could double
Wallace's salary and assure him of a bright future.
Kritzer's account is that he informed Wallace that Embry
had been instructed not to telephone employees and if he
violated these orders he would be discharged; Kritzer
denied promising the doubling of Wallace's salary and/or
assurances of a bright future. I credit Kntzer's account and
recommend dismissal of the allegations in this regard.
2. Supervisor William Embry
Embry, whose supervisory status is discussed above, is
alleged to have engaged in various instances and types of
interference, restraint, and coercion during the period
beginning October 10 and ending in December.
Paragraph 51 of the complaint alleges that Embry, on or
about October 10, at the Company's plant, promised an
employee improved benefits and working conditions in
order to discourage employee union activity. Employee
Dorothy Stevenson, an inspector and a union supporter,
testified that Embry stated to her that he thought
employees did not need a union. When Stevenson
disagreed, Embry, according to Stevenson, stated that he
thought they could iron problems out among themselves,
that they had made mistakes but would try to improve, and
that if employees gave O'Connor 6 months he could get
things patched up. I am unable to conclude that the
expression by Embry of his opinion in this respect and
under these circumstances, while it might constitute some
type of unfiar labor practice, fails to amount to a promise
of improved benefits and working conditions as alleged in
the complaint and I find no support in the citations
furnished. I recommend dismissal of the allegations of
paragraph 51 of the complaint.
Paragraph 5R of the complaint alleges that Embry and
Hardiek on or about November 12 created, before an
employee group, the impression of company surveillance
of employee union activity. In this area of the complaint,
General Counsel appears to rely on testimony of Wallace,
indicating that soon after the commencement of the union
campaign and the resultant gathering of employee groups
during break periods in the area of the shipping room,
Embry and Hardiek informed employees Wallace and
Brockett that one or the other of the two supervisors had to
be in the shipping area at all times because Kritzer wanted
to know what went on at the employee gatherings. I
conclude that the allegations of the creation of the
impression of surveillance are established by the credited
testimony of Wallace, notwithstanding the accounts of
Embry and Hardiek that their presence in the area was
innocent in purpose.
The complaint alleges in paragraph 5S that in the period
from November 13 until December 16, Embry and
Hardiek engaged in surveillance of employee union
activity. The evidence establishes that during the course of
the Union's organization campaign, employees gathered,
during their break periods, in unprecedentedly large
numbers in the area about employee Brockett's bench. This
matter was discussed between Kntzer and Hardiek and it
was settled that Hardiek should keep an eye on the
gatherings in view of past problems of pilferage, fire, and
horseplay in the area. The evidence fails to establish that
either Kritzer, Hardiek, or Embry ever maneuvered so as
to be in a position to hear employee discussions or even to
have a panoramic view of the gatherings. I conclude that it
fails to indicate by a fair preponderance that the Company
engaged in actual surveillance of employee union activity.
Embry is alleged in paragraph 5V of the complaint to
have, on or about November 16, interrogated an employee
concerning the latter's union sympathies. The employee in
question, Alonzo Joseph Shope, testified that in mid-
November, Embry asked him what he thought about the
Union and added that he did not think the plant needed a
union. There was apparently a friendly association be-
PEERLESS OF AMERICA , INC. 989
tween Embry and Shope and the conversation in question
could have occurred away from the Company 's premises.
Nevertheless I credit Shope 's testimony and find that the
question put to him by Embry constituted an unfair labor
practice within the scope of Section 8(a)(1) of the Act as
alleged in paragraph 5V of the complaint.
Embry is also alleged , in paragraph 5W of the complaint,
to have in the course of a mid-November talk with Shope
threatened the shutdown of the plant and the layoff of
employees in order to discourage employee support of the
Union . Shope testified that about 3 or 4 days before his
December 18 layoff , Embry told him that he did not think
the Union was needed and that employees would be laid
off and the factory closed. Although Embry denied these
comments , I credit Shope 's account and find that the
Company by them engaged in the unfair labor practices
alleged in paragraph 5W of the complaint.
Paragraph 5KK of the complaint alleges that Embry, on
or about December 1, interrogated an employee at the
company plant concerning an employee 's union sympa-
thies and activities . Wallace, the employee in question,
testified that on or about December 1, Embry asked him
how he felt about the Union and when Wallace expressed a
prounion sympathy, Embry stated a contrary view. Embry
conceded talking to Wallace on the occasion in question
but denied asking him as to his union sympathy and
activities . I credit Embry's denial and recommend dismiss-
al of the allegations of paragraph 5KK of the complaint.
Embry is alleged in paragraph 5UU of the complaint to
have interrogated an employee in the period October-
December 1970, concerning the employee's union activity.
The employee in question , apparently Ferchow , testified
that in the course of two or three talks with Embry in the
last 3 months of 1970, Embry asked him what he thought
he would gain from a union and whether he thought it was
a good idea to attempt to bring a union in at Peerless.
Although Embry denied interrogating Ferchow , I fould the
latter a thoroughly credible witness and conclude that the
allegations of the complaint in this regard are fully
supported by his credited testimony.
Embry is alleged in paragraph 5W of the complaint to
have, sometime in the last 3 months of 1970, threatened an
employee , Ferchow , with the statement that the Company
would close its Effingham plant rather than permit union
representation there . Embry denied stating that the
Company would close its Effingham plant as a conse-
quence of Union representation but I credit the contrary
account of Ferchow and find that the Company engaged in
the unfair labor practices alleged in paragraph 5W of the
complaint.
3. Supervisor Kenneth Hardiek
Hardiek is alleged in paragraph 5J of the complaint to
have , on or about October 12, threatened an employee,
(Dean Wallace), with discharge in order to discourage
employee union activity . Wallace testified that on October
12 he was working procuring parts in the parts area when
Hardiek approached him and told him to get busy. He
replied that he was busy whereupon , according to Wallace,
Hardiek said that he could get two letters that afternoon to
get him dismissed and the Union could do nothing about
it. According to Wallace, Hardiek later apologized and
recanted . Employee Ferchow essentially corroborated
Wallace's account , but the testimony of employee Wanda
Murray is too discursive to aid in resolving the credibility
issue . I credit the accounts of Wallace and Ferchow and
find that the reference by Hardiek to the Union 's inability
to help in the event of discharge converted what might
have been a proper rebuke into an instance of interference
as alleged in this portion of the complaint.
4. Extrusion Superintendent Julian Becton
Becton , whose supervisory status is established by the
pleadings , is alleged to have engaged in some 16 distinct
instances of interference with employee organizational
rights. As in the case of other company representatives
alleged to have engaged in acts of interference , restraint,
and/or coercion , several of the allegations were withdrawn
or dismissed at the conclusion of the General Counsel's
case in chief.
The allegations remaining with respect to Becton include
those of paragraph 5N of the complaint to the effect that in
the month of October Becton interrogated an employee
concerning the latter 's union activity and desires. Jack
Stevenson , a tool and die maker , testified that late in
October Becton talked to him at his workbench and asked
him why the employees wanted a union or why he thought
they should have a union . There followed some discussion
in the course of which Becton , according to Stevenson, said
that he did not think a union would do them a bit of good.
Becton's account of the conversation is that he related his
experience with a union in his former self-employment and
argued against certain union difficulties , stating that he did
not think a union would do any good in the plant. The
circumstances of the conversation and the tenor of the
conversation seem to me to make out a clear case of
expression of views without express or implied threat of
reprisal and to be protected under Section 8(c) of the Act. I
recommend dismissal of the allegations of paragraph 5N of
the complaint.
In paragraphs P and Q of section 5 of the complaint
Becton is alleged to have , on or about November 1,
interrogated an employee concerning union activity and
implicitly promised improvements in order to discourage
union activity . The allegations concern a conversation in
the plant between Becton and employee Daryl McCor-
mick . McCormick testified about mid -November Becton,
McCormick's supervisor , came to him at work and said
that he was sure counting on McCormick for his support,
adding that Company President O'Connor was a nice man
and that they had always been able to work out things
without the necessity of a third party. Becton testified that
on the occasion in question he asked McCormick if he had
seen President O'Connor in the plant talking to employees
and also inquired if McCormick had any questions. The
conversation terminated with Becton stating that O'Con-
nor deserved a chance to operate the plant without
outsiders . I conclude that the conversation in question was
of the type protected by Section 8(c) of the Act and
recommend dismissal of these allegations.
In paragraphs 5CC and DD of the complaint Becton is
alleged to have , before an assembled group of employees,
990 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
interrogated employees concerning their union sympathies
and created the impression of surveillance of their union
activities. The parties agree that the allegations stand or
fall on the testimony of employee Casselman and Supervi-
sor Becton concerning an episode in the plant on
November 21. The conversation in question occurred in
late November when Becton came upon employees
Casselman, Broenngmeyer, Davidson, and Schmoe, joined
the group and said that he knew how Casselman and
Schmoe felt about the Union and wanted to know how the
other two felt. This evidence fails to substantiate the
allegations of the creation of impression of surveillance
since it is not incompatible with the inference that
knowledge of union activity of Casselman and Schmoe was
gained through innocent means. I conclude, however, that
the episode in question constitutes interrogation into union
sympathy of Broeringmeyer and Davidson and that while
the allegations of paragraph CC are substantiated those of
paragraph DD are not.
Paragraphs 5EE, FF, and HH of the complaint allege,
respectively, that Becton, on or about December 1, (a)
interrogated an employee about another employee's union
sympathies; (b) interrogated an employee to learn the
employee's own union sympathies; and (c) interrogated an
employee about the employee's own union sympathies.
With respect to paragraph EE, General Counsel relies on
the testimony of McCormick to the effect that on or about
December 3 Becton asked him if he knew an applicant for
employment, Ronald Schultz, what kind of a fellow he was
and how he would feel about the Union and whether he
could be persuaded to swing the Company's way. McCor-
mick denied knowledge. I credit McCormick's account.
This inquiry relating to the union sympathies of an
applicant for employment constituted interference, re-
straint, and coercion as alleged in paragraph EE of the
complaint.
With respect to paragraph 5FF of the complaint,
General Counsel points to the evidence supplied by the
testimony of employee Dons Jean Parks to the effect that
about 2 or 3 weeks before her layoff on December 18,
Becton came to her work place and asked her to give
President O'Connor a chance to straighten things out.
There was no reference by Becton to the Union in this
brief exchange and it occurred, apparently, as a result of
Parks' complaints about certain working conditions. This
evidence fails to establish that Becton interrogated her to
ascertain her union sympathies and I recommend dismissal
of paragraph 5FF of the complaint.
As to paragraph 5HH relating to alleged interrogation by
Becton on or about December as to an employee's union
sympathies, General Counsel relies on the testimony of
employee Charlene Ricketts to the effect that about
December 1 Becton asked her what she thought about this
whole thing and whether the Company could not solve its
problems without the intervention of an outsider. This
question was coupled with a reference to the numerous
benefits afforded by the Company and terminated with an
appeal by Becton to be counted on the Company' s side.
Although Becton denied ever interrogating Ricketts con-
cerning her sympathies vis-a-vis the Union and the
Company, I credit Ricketts' account and find that his
questioning of Ricketts amounted to interrogation respect-
ing her sentiment with respect to the union campaign and
constituted interference within the purview of Section
8(a)(1) of the Act.
Becton is alleged, in paragraph 500 of the complaint, to
have, on six separate occasions between December 4 and
11, interrogated an employee concerning his union activi-
ties . The employee in question , Jack Stevenson, testified
that , commencing about December 4 and on seven or eight
occasions thereafter, Becton spoke to him, urged him to
change his mind about the Union and to prevail upon
other employees to change their minds about the Union.
There is no evidence of interrogation and I recommend
dismissal of the allegations of paragraph 500 of the
complaint.
Paragraph 5PP of the complaint alleges that, on six
separate occasions between December 4 and 11, Becton
solicited an employee to discourage other employees'
support of the Union. Stevenson testified that, on seven or
eight occasions starting about December 4, Becton urged
him to change his mind about supporting the Union and to
prevail upon other employees to do the same. Becton
conceded that he talked to Stevenson about December 4
and said that he hoped Becton had changed hid mind
about the Union and that he would tell other employees to
change thier minds . According to Becton, he asked
Stevenson to talk to other employees and influence them
against the Union only once. I credit Stevenson's testimony
and find that the allegations of paragraph 5PP are
sustained by the credited testimony of Stevenson.
The complaint alleges in paragraph 5RR that Becton, on
or about December 14, interrogated an employee concern-
ing his union sympathies. This relates to the testimony of
employee Shope to the effect that some 4 days before his
layoff on December 18 Becton, in the washroom, asked
him where the Company had failed respecting the Union
and who Becton could talk to to get things straightened
out. Becton's account of this episode is that he asked Shope
if he had any questions about the current talk in the plant
and when Shope said he did not, Becton said he wished he
knew who to talk to to straighten things out in the plant. I
credit Becton's account and conclude that the evidence
does not make out an unfair labor practice as alleged in
paragraph 5RR of the complaint.
5. Press Department Superintendent Charles
Stigers
The supervisory status of Stigers is established by the
pleadings. He is alleged in paragraph 5T of the complaint
to have, on or about November 16, interrogated an
employee concerning the latter's union sympathies. Em-
ployee Ferchow testified that about November 16 Stigers
came to his work area and, after some preliminaries, asked
him what his attitude was respecting the Union's coming in
to the Company.When Ferchow expressed his union
sympathies, Stigers, according to Ferchow's account,
related instances in other plants where a union had caused
difficulties and expressed the view that the same would
happen at Peerless. At some stage during his several talks
with Ferchow, Stigers apparently expressed his disinterest
in whether Ferchow was for or against the Union . Stigers'
PEERLESS OF AMERICA , INC. 991
account is that Ferchow initiated the conversation by
stating that they would not have quality problems if they
had a union at the plant , to which Stigers replied that
unions caused many problems but that Ferchow had a
right to support the Union . Stigers denied asking Ferchow
as to his union sympathies . I credit Ferchow 's account and
find that Stigers question as to Ferchow 's views respecting
the Union constituted unlawful interrogation as alleged in
the complaint.
In paragraph 5U of the complaint , Stigers is alleged to
have , on or about November 16, told an employee that
representation by the Union would be futile . The statement
in question was apparently alleged by General Counsel to
be part of the interrogation episode mentioned above.
Ferchow testified that in the talk of November 16 Stigers
said that a union would bring a lot of problems and more
trouble than it was worth. Stigers denied stating to
Ferchow that the Union would cause more trouble than it
was worth . I credit Stigers ' account in this respect and
recommend dismissal of paragraph 5U of the complaint.
Stigers is alleged , in paragraph 511 of the complaint, to
have interrogated two employees as to their union
sympathies on or about December 1. Employee Dorothy
Stevenson testified that she was working in the press room
about December 1 when Stigers approached her and asked
her how she felt about the Union . This occurred , according
to Stevenson , in the presence of Musser , a press room
employee . Musser was not interrogated by the General
Counsel on this aspect of the case and, when questioned by
Respondent , disclaimed recollection of any such incident. I
credit Stevenson 's testimony on this aspect of the case and
find that the allegations of the complaint are supported by
her testimony.
Stigers is alleged in paragraph 5JJ of the complaint to
have , in the course of the December 1 talk with Stevenson,
threatened two employees with more unpleasant working
conditions in order to discourage employee union activity.
Stevenson testified that in the December 1 talk Stigers, in
the presence of employee Musser , and after she had
expressed , in reply to Stigers ' question , her belief in the
need for a union at the plant , said that a union would do
nothing but take her money and that if the Union does get
in they will really crack down on employee . Musser, a
union card signer , could not recall ever being present at a
conversation between Stevenson and Stigers involving the
Union . Notwithstanding Stigers' denial of the incident and
Musser 's inability to recall , I credit Stevenson 's testimony
and find that the allegations of paragraph 5JJ of the
complaint are established by her testimony.
6. President Joseph O 'Connor
Company President O'Connor is alleged , in paragraph
5X of the complaint , to have individually interrogated
employees about the end of November in order to elicit
their union sympathies. Dean Wallace , the employee
leader of union activity , testified that in the last days of
November , O'Connor asked him at his work place how he
felt towards the third party. Employee Hallman testified
that early in December O'Connor asked him what he
thought of the Union . Employee Waldhoff testified that
about the middle of November in the plant , O'Connor
asked him what his problem was and when Waldhoff
referred to working conditions and pay and overtime
variations , O'Connor stated that the problems could be
worked out without a third party . O'Connor conceded
talking to employees and asking them the nature of their
problems ; he denied asking Wallace how he felt towards a
third party . Similarly , O'Connor conceded talking to
Hallman but denied asking him as to his union sympathies,
which , according to O'Connor, were evident both from
Hallman 's wearing of a union shirt and from Hallman's
forthright assertions of his union sympathy . I credit
O'Connor's denial of interrogating employees to elicit their
sympathies respecting the Union and recommend dismissal
of paragraph 5X of the complaint.
O'Connor is charged, in paragraph 5Y of the complaint,
with having , in late November , spoken individually to
employees and implicitly promised them better wages and
working conditions in order to discourage employee union
activity . Employee Charlene Ricketts testified that in late
November O'Connor asked her as to her problems and the
need for a third party in the plant to which O'Connor
stated that they would straighten out her complaint
concerning pay rate inequalities and other problems.
Employee Dorothy Stevenson testified that in November
O'Connor asked her as to problems and then stated that
the plant had a bright future and if employees gave him 6
months he would get everything ironed out. Wallace
testified that in late November O'Connor asked him as to
his problems and how he felt about a third party. When
Wallace referred to pay inequalities , O'Connor, according
to Wallace , asked for 6 months to iron the matters out.
Employee Doris Parks testified that about the last of
November , O'Connor inquired as to her problems and
when she referred to a warning letter and pay inequities,
O'Connor stated that they did not need a third party to
straighten things out. This exchange appears to fall short of
interference , restraint , and coercion and I do not rely on
this testimony as establishing the unfair labor practices
alleged in this respect.
O'Connor testified that he made several trips to the plant
in November and talked to several employees , asking them
if they had any problems . He testified that in these
conversations he told employees that he could make no
promises . I credit O'Connor's testimony that he informed
each employee to whom he spoke that he could make no
promises and I recommend dismissal of the allegations of
paragraph 5Y of the complaint.
In paragraph 5Z of the complaint it is alleged that on or
about December 1, O'Connor , at the plant , impliedly
promised an employee more favorable treatment in order
to discourage union activity . The employee in question,
Brockett , testified that he had asked O'Connor , sometime
in November , to look into the matter of his alleged
demotion and that O'Connor promised to do so and, on
the occasion of their December talk in the plant,
O'Connor , in reply to Brockett's question, said that he had
looked into the matter but that his hands were tied on
account of the union campaign . I can find no unfair labor
practice of the type alleged in paragraph 5Z and recom-
mend dismissal of this allegation of the complaint.
Paragraph 5AA of the complaint alleges that O'Connor,
992 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
on or about December 1, interrogated an employee
concerning the latter's union sympathies . Employee Hall-
man testified that he was introduced to O'Connor about
December 1 in the plant and that O'Connor asked him
what he thought of the Union . Hallman referred to the fact
that he had belonged to the Teamsters Union in Chicago
and that he was 100 percent for the Union . O'Connor
denied interrogating Hallman as to the latter's union
activities and I credit his denial and recommend dismissal
of these allegations of the complaint.
The complaint alleges in paragraph 5BB, that O'Connor
promised an employee improved working conditions in
order to discourage employee union activity . General
Counsel relies on the testimony of Hallman to the effect
that in the course of the early December talk with
O'Connor , O'Connor asked him what grievances he had
and that Hallman referred to low pay, warning letters for
minor absences , and several other unrecollected items.
According to Hallman , O'Connor said that the matters
could be thrashed out without a third party and referred to
expansion of the plant , increased employment, and
absence of layoffs . This conversation appears from the
testimony of both individuals involved to be a free
exchange of ideas without coercive elements and I
recommend dismissal of the allegations of paragraph 5BB
of the complaint.
D. The Refusal To Bargain
Under date of October 2, the Union wrote to the
Company , claiming to have been designated as exclusive
bargaining representative of the Company 's production
and maintenance employees , offering to prove its majority
status by card check through a mutually acceptable neutral
party and requesting negotiations on terms and conditions
of employment . On October 7, the Company, by its
attorneys , replied , expressing doubt as to the union claim
of majority status in any appropriate unit and suggesting
that the Union petition the Board for an election. The
production and maintenance unit in which the Union
requested recognition numbered 39 employees on October
2 and there is no question but that on that date the Union
was in possession of 29 signed union cards , the cards
appearing on their face to be clear and unambiguous
authorizations to the Union to secure recognition and
collective bargaining . Before and after the Union 's demand
for recognition , the Company engaged in numerous unfair
labor practices of a character inherently capable of
affecting the results of any election procedures and
requiring in the instant case a bargaining order as the only
effective and appropriate remedial relief . I conclude on the
basis of the facts herein and on the authority of Gibson
Products Company, 185 NLRB No. 74 , that the Company's
refusal to bargain was unlawful and can only be remedied
by an order to bargain.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Company set forth in section III,
above , and there found to constitute unfair labor practices,
occurring in connection with the business operations of the
Employer set forth in section I, above , have a close,
intimate , and substantial relation to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing such commerce
and the free flow thereof.
V. THE REMEDY
In view of the findings set forth above to the effect that
the Company has engaged in certain unfair labor practices
affecting commerce , it will be recommended that it be
required to cease and desist therefrom and from like or
related unfair labor practices and take such affirmative
action, including recognition of and bargaining with the
Union , as appears necessary and appropriate to effectuate
the policies of the Act.
On the basis of the foregoing findings of fact and upon
the entire record in this case, I make the following:
CONCLUSIONS OF LAW
1. The Company 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 purview
of Section 2(5) of the Act.
3. By seeking, in the presence of employees, to
determine from supervisors the union sentiments of
employees ; by creating in the presence of employees the
impression of company surveillance of employee union
activity ; by stating in the presence of employees that a
union supporter should be segregated ; by interrogating
employees concerning attendance at union meetings; by
threatening an employee with discharge in order to
discourage union activity ; by creating the impression of
surveillance of union activities ; by interrogating employees
concerning their union sympathies ; by threatening closing
of the plant and layoff of employees in order to discourage
union activity; by interrogating employees concerning the
union sympathies of other employees; by threatening
employees with unpleasant changes in work conditions to
discourage union activity; by soliciting an employee
repeatedly to dissuade other employees from support of the
Union ; and by threatening closing of the plant as a
consequence of union representation , the Company has
engaged in unfair labor practices defined in Section 8(a)(1)
of the Act.
4. By refusing from and after October 2 to recognize
and bargain with the Union as exclusive representative of
all production and maintenance employees at its Effing-
ham plant , exclusive of office clericals , professional
employees , guards , and supervisors, the Company has
engaged in unfair labor practices defined in Section 8(a)(5)
and (1) of the Act.
5. By refusing to recognize and bargain with the Union
as exclusive representative of employees in the appropriate
unit , the Company has engaged in unfair labor practices
defined in Section 8(a)(5) of the Act.
6. The aforesaid unfiar labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
7. Except as otherwise specifically found herein, the
Company has not engaged in unfair labor practices alleged
in the complaint.
PEERLESS OF AMERICA, INC. 993
I
Upon the foregoing findings of fact , conclusions of law, [Recommended Order omitted from publication.]
and the entire record , and pursuant to Section 10(c) of the
Act, I hereby issue the following.