Reliable Mfg., Corp.

National Labor Relations Board - Board Decisions

Jan 24, 1979

240 N.L.R.B. 90 (N.L.R.B. 1979)

90 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Reliable Manufacturing Corporation and Local 1031,
International Brotherhood of Electrical Workers,
AFL-CIO. Cases 13-CA-16979 and 13-RC-14527
January 24, 1979
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
By MEMBERS JENKINS, MURPHY. AND TRUESDALE
On September 21, 1978, Administrative Law Judge
Thomas R. Wilks issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions ' and brief
and has decided to affirm the rulings, findings,2 and
conclusions of the Administrative Law Judge and to
adopt his recommended Order.3
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that the Respondent, Reliable Manufacturing
Corporation, Franklin Park, Illinois, its officers,
agents, successors, and assigns, shall take the action
set forth in said recommended Order.
IT IS FURTHER ORDERED that the election held on
November 11, 1978, in Case 13 RC-14527 be, and it
hereby is, set aside, and that the Regional Director
for Region 13 be, and he hereby is, directed to con-
duct a new election pursuant to the following.
[Direction of Second Election and Excelsior foot-
note omitted from Publication.]
'In the absence of exceptions, we adopt, pro forma, the Administrative
Law Judge's recommendations that the Union's election Objections 3. 8,
and 9 be overruled, and his related finding that complaint allegations based
on statements made by Respondent in its "Flavorite News, Special Edition"
be dismissed.
2 Respondent has excepted to certain credibility findings made b the
Administrative Law Judge. It is the Board's established policy not to over-
rule an administrative law judge's resolutions with respect to credibility
unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect. Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd 188 F.2d 362 (3d Cir. 1951). We have carefull)
examined the record and find no basis for reversing his findings.
3In adopting the Administrative Law Judge's finding that Respondent
violated Sec. 8(aKl) by soliciting grievances, Member Jenkins does not
adopt, en toto, the Administrative Law Judge's remarks concerning the legal
principles applicable to such conduct. In this connection see Member Jen-
kins' dissenting opinion in Uarco Incorporated, 216 NLRB (1974).
240 NLRB No. 8
DECISION
STATEMEN T OF I HE CASE
THOMAS R. WILKs. Administrative Law Judge: A hearing
in this consolidated proceeding was held on March 30 and
31, 1978, in Chicago, Illinois, based on a charge filed
against Reliable Manufacturing Corporation, herein called
Respondent, on October 21, 1977,1 by Local 1031, Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
herein called the Union, and a complaint issued by the
Regional Director on December 13, alleging that Respon-
dent violated Section 8(a)(1) of the National Labor Rela-
tions Act, as amended, by interrogating employees con-
cerning union sympathies and desires; by soliciting
employees' grievances in order to discourage support of the
Union; by promising and granting benefits to an employee
in order to discourage support of the Union; by soliciting
an employee to campaign on behalf of Respondent against
the Union; by promising to promote an employee to a su-
pervisory position in order to discourage support of the
Union; by conducting a survey of employees concerning
o[,'lions and grievances as to wages, hours, and working
conditions in order to discourage support of the Union;
and by distributing to employees a written statement con-
taining threats of loss of employment and/or income if
they support the Union.
Pursuant to a petition filed on September 13, and a Stip-
ulation for Certification Upon Consent Election Agree-
ment approved on September 28, an election by secret bal-
lot was held in Case 13-RC-14527 on November I 1, under
the direction and supervision of the Regional Director for
Region 13 in the unit consisting of employees:
Including all full time and regular part time employees
working at the Employer's facility now located at 9201
King Street, Franklin Park, Illinois 60131, and exclud-
ing all office clerical employees, professional employ-
ees, guards and supervisors as defined in the Act.
The tally of ballots disclosed that, of 137 valid votes count-
ed, 58 votes were cast for the Petitioner and 79 votes were
cast against it. Ten challenged ballots were not determina-
tive. On November 16, the Petitioner filed timely objec-
tions to conduct affecting the results of election. On De-
cember 15, the Regional Director issued a report on
objections, order consolidating cases and notice of hearing.
That report approved of the Petitioner's withdrawal of Ob-
jection 1, the portion of Objection 3 relating to the handbill
concerning rates of pay at ARI, and Objections 4 and 5.
Because of the identity of issues in the remaining objec-
tions and the unfair labor practices, the report ordered the
two cases consolidated for hearing before an administra-
tive law judge. On May 15 and 17, briefs were filed by
Respondent and General Councel.
On the entire record in this case, including my observa-
tion of the witnesses, and after due consideration of the
briefs submitted, I make the following:
All dates herein are 1977, unless otherwise indicated.
RELIABLE MANUFACTURING CORPORATION 91
FINDINGS OF FACT 2
I. THE BUSINESS OF RESPONDENT
Respondent is, and has been at all times material herein,
a corporation duly organized under and authorized to do
business by the laws of the State of Delaware. Respondent
maintains its office and principal place of business at 9201
King Street, Franklin Park, Illinois, where it is now, and at
all times material herein has been, engaged in the business
of manufacturing electrical appliances. During the calen-
dar year or fiscal year preceding the complaint, a represen-
tative period, Respondent, in the course and conduct of its
business, shipped goods valued in excess of $50,000 from
its Franklin Park, Illinois, facility directly to points located
outside the State of Illinois. During the same representative
period, Respondent in the course and conduct of its busi-
ness received goods valued in excess of $50,000 at its
Franklin Park, Illinois, facility directly from points located
outside the State of Illinois. Respondent is, and has been at
all times material herein, an employer engaged in com-
merce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES
Reliable Manufacturing Corporation was purchased by
another company, Libco, in early April. The former princi-
pal stockholders, Charles Lee and Ervin Dusek, retained
their positions as president and vice president of the corpo-
ration. Ronald K. Zuckerman, a director of and consultant
to Libco, served as Libco's "representative" but in August
succeeded to the presidency of Respondent. Henry Dun-
can (Sandy) Saunderson commenced his duties as manu-
facturing manager in mid-June.
Subsequent to the filing of the representation petition on
September II, Zuckerman engaged the services of Man-
plan Consultants (herein called Manplan), a management
consulting enterprise. Zuckerman and a representative of
Manplan represented Respondent at the September 28
conference with representatives of the Union and the
Board, which resulted in the election agreement. At that
conference, union agents were accompanied by four em-
ployees: Aurora Bravo De Vasquez, Mercedes Larrea, So-
ledad Fregosa, and Mario Romero. At that conference, an
election date of November II was designated.
On October 5, Respondent conducted a survey of its
employees. The survey was devised and conducted by
Jeanne Erdevig, a Manplan consultant, upon the authori-
zation of Respondent. Erdevig's agency is admitted. She
addressed the employees in English or Spanish, where ap-
2 The unopposed motions of General Counsel and Respondent to correct
the transcript are granted.
propriate. She surveyed 118 employees, in 8 separate
groups. in the lunch area, to which they were directed by
Respondent. She testified, without contradiction, that she
advised the employees that the survey was confidential,
that their participation was voluntary, that their responses
should be written on paper provided to them by her, that
only she would read these responses, and that she would
thereafter destroy the responses after preparing transla-
tions. She testified that she also read to the employees a
printed covering instruction sheet, i.e., "Confidential Com-
ments Sheet," which had been printed in English and
Spanish and provided to each employee. Thereafter, Erde-
vig prepared a synopsis of the survey summarizing the vari-
ous unidentified employee responses and submitted it to
Zuckerman with whom she discussed the results a week to
10 days later. She denied making any explicit references to
the Union, and she was not contradicted in this regard.
Her report indicated that of 130 Spanish-speaking employ-
ees 95 or 73 percent responded with comments and sugges-
tions, and of 40 English-speaking employees 23 or 58 per-
cent participated. She concluded that 69 percent of all
employees participated. Various complaints about working
conditions were expressed.
The "Confidential Comments Sheet" pointed out that
Respondent had a new management and that "because our
employees are mostly Spanish speaking that there are ques-
tions concerning the new management," and ". . . this new
management wants to learn more about Reliable employ-
ees." The employees were asked therein to "express your
views, comments, and suggestions about any aspect of your
job and the company." The employees were advised
therein that participation was voluntary and confidential
and that their jobs "will in no way be affected." It was also
stated therein that, "We are sincerely interested in what
you have to say, both good and bad, about your job here at
Reliable Manufacturing, Inc." It concluded: "Incidentally,
this survey will not be used to change or improve wages or
benefits, but to clear up any misunderstandings and learn
more about you. This is the case because of the current
representation election."
A. Larrea-Saunderson Conversation
Mercedes Larrea testified that, the day after the survey
in which she participated, Saunderson summoned her from
her work station to his office where they engaged in a con-
versation alone. Saunderson recalled that a conversation
occurred sometime in October, but did not deny its prox-
imity to the survey. According to Larrea, Saunderson
opened the conversation by asking her what she thought of
the survey. Saunderson did not explicitly deny that he
opened the conversation in this manner. Larrea testified
that she responded that the survey was a very good idea
because of many non-English-speaking employees, and
then she told him that he had made a "big mistake" by
ignoring seniority with respect to the assignment of more
work to less senior employees. According to her, Saunder-
son apologized claiming that he had already initiated a
better recordkeeping system and pleaded for a "chance."
She testified that she then told him that the reason employ-
ees desire union representation is because the union will
92 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
obtain greater seniority rights. According to her, Saunder-
son responded:
Mercedes, I think you don't need a third party; if the
people have problems with the company all you have
to do or all the people have to do is to come to the
office and explain to me, and I know in the future
what I will do the best way for the people.
According to Larrea, she responded that it was "too late,"
that "the people are tired," "the people don't believe you
and the people want the Union." According to Larrea,
Saunderson offered to give her "pretty soon, a supervisor's
place." She testified that she immediately refused and said
that she preferred to "keep my place." She went on to com-
plain of "supervisors" Carmen and Carlo, their inability to
speak her language, their lack of education, and their inep-
titude in the treatment of employees to which Saunderson
responded, "I am sorry, but in the future we will change."
She then told him again that it was too late, but he con-
cluded the conversation by showing her new products that
Respondent was to produce, which meant future progress.
After a series of leading questions, Larrea testified that
Saunderson asked her opinion of the Union during that
meeting. However, she had testified that it was she who
first initiated the subject of the Union when she first ac-
cused him of making a mistake, at which point she told
him that "a lot of people like the Union," and he respond-
ed that a third party was not needed. She explained that
after she offered the reasons why employees desire union
representation, i.e., enhancement of seniority rights, he
then asked about her own attitude toward the Union to
which she responded that the employees need a union. Lar-
rea further testified on cross-examination that Saunderson
made no comments as to what impact a "supervisor's
place" would have upon her "still being in the Union."
It is clear from her testimony and the testimony of Saun-
derson that the "supervisor's place" and other supervisory
positions to which she referred are working leader posi-
tions which do not possess any of the statutory indicia of a
supervisor within the meaning of the Act. Furthermore,
there is no evidence that such position entails greater mon-
etary compensation, or any other palpably better condition
of employment.
Saunderson testified that he initiated a conversation with
Larrea because of the need for new line leader positions
caused by new product lines and the promotion of Carlos
Seraro from line leader to quality control inspector, and
Saunderson's recognition of her as a "leader" who is recog-
nized by the employees and who is bright and bilingual. On
cross-examination, he admitted that he was also aware of
her presence at the Board conference. According to Saun-
derson, he offered her the position of line leader which she
refused, claiming that she was interested in a union. He
attempted to point out to her that her support of the Union
was of no matter because it was Respondent's position that
all of the line leaders would be within the unit and she
could "make sure they [employees] are treated properly." 3
He further advised her to reconsider because she could do
3Surely this is a tacit admission that the subject of mistreatment of em-
ployees by supervisors had indeed been discussed in that conversation.
a good job as a line leader and "I think it would be good
for you." According to him, he asked her to think about it
and after a few days she returned and again rejected the
job. Soledad Fregosa, who also accompanied the union
representatives at the Board conference, was subsequently
appointed a line leader.
Saunderson denied stating to Larrea, "What do you
want a union for?" He made no other explicit denials. As
soon as the election results were known, Larrea voluntarily
terminated her position with Respondent. Although she
apparently was vigorously prounion in her sentiments, I
did not find her to be so biased as to render her testimony
unreliable. Moreover, she impressed me as being far more
certain of the details of the conversation that Saunderson,
who, I note, failed to deny that the survey was discussed or
that the topics of the Union or employee complaints were
raised. I found that whatever confusion that resulted in
Larrea's testimony resulted from the leading questions of
the General Counsel, and that, left to her recollection, she
was fluent, detailed, and spontaneous. I conclude that the
subject of the survey was discussed as she testified, that the
topic of the Union was raised by her, not Saunderson, that
she volunteered her opinion of other persons' support of
the Union, and that Saunderson asked her about her own
opinion after she had set forth the general opinion of the
employees. I further conclude that although she was of-
fered the position of line leader, that offer was not condi-
tioned upon her disavowal of union membership or sup-
port, nor was there any specific offer made to improve her
wages or other conditions of employment.4
B. Vasquez-Saunderson Conversation
Aurora Bravo De Vasquez not only accompanied union
representatives to the Board conference, but she was an
open active supporter of the Union who solicited other em-
ployees to execute union authorization cards. She partici-
pated in the October 5 survey. Vasquez testified that, I or 2
weeks after that survey, she was asked to go to
Saunderson's office and engaged in a conversation with
him which was translated for them by employee Alicia Ali-
cea. According to Vasquez' recollection of Alicea's transla-
tion, Saunderson opened the conversation by stating that
he was aware that she favored the Union and that she
responded affirmatively and offered the reason, i.e., when
she had injured her leg in 1974, she lost her seniority rights
upon her return to work which resulted in a reduction in
paid vacation time and a reduction in wages; and that
Saunderson immediately characterized that treatment as
unjust, whereupon he summoned payroll clerk Pauline
Millich and requested to see "records."
According to Vasquez, Saunderson asked Millich why
Vasquez had been deprived of her seniority, and Millich
explained that it was because Vasquez was absent for more
than 6 months. At that point, Vasquez claimed that she
denied that her absence was of 6 months' duration and that
an inspection of records by Saunderson revealed it to be
less than 6 months. Saunderson then engaged Millich in a
4 1 do not, however, credit Saunderson's testimony that he affirmatively
assured Larrea that she could retain her union membership.
RELIABLE MANUFACTURING CORPORATION 93
conversation and thereafter told Vasquez that he would
restore her seniority and her lost vacation time, as well as
restore her lost rate of pay by granting her a 25-cent raise.
Next, according to Vasquez, Saunderson told her that
Zuckerman wanted him to talk to her and inquire why she
wanted a union; and that she responded that it was be-
cause of her loss of seniority resulting from the leg injury
and unsatisfactory conditions in the factory. She testified
that Saunderson responded that a mistake had been made
and rectified and therefore there should be no reason for
her to desire union representation. She then protested to
him that the employees were unhappy for a long time and
cited examples of how newer employees were assigned
work while more senior employees were sent home early.
To this Saunderson replied that such conduct had al-
ready been corrected and would not occur again. But Vas-
quez further cited the inconsiderate treatment of employ-
ees by the "supervisors." Vasquez testified that Saunderson
ended the conversation by asking her if she were willing to
meet with Zuckerman and she agreed to do so.
Alicea, who had voluntarily terminated her employment
on February 17, 1978, testified that sometime in early Oc-
tober she acted as translator for Vasquez and Saunderson.
Alicea's recollection varies from that of Vasquez. Accord-
ing to Alicea, Saunderson started the conversation by ask-
ing Vasquez what problem she was having with the Com-
pany, and Vasquez explained her past loss of seniority, loss
of vacation time, and reduction in pay, and, at that point,
Saunderson asked her if that was the reason why she sup-
ported the Union. Vasquez then explained that she had
complained to "management" many times to no avail and
that she thought a union would help everybody and cited
further the disregard of seniority in the assignment of
work, i.e., less senior employees were given longer work-
days, and also cited the inept treatment of employees by
supervisors. Thereafter, Saunderson claimed that the sup-
ervisors were undergoing training and that a mistake had
been made which would not occur again; i.e., assignment
of work. Thereafter, records were brought into the room
and Saunderson pronounced Vasquez' prior loss of senior-
ity to be "ridiculous" and instructed Millich to take care of
the problem.
Saunderson testified that he did have a conversation
with Vasquez through the translating efforts of Alicea. He
testified that the conversation was prompted by a written
inquiry from the Social Security Administration concern-
ing Vasquez' records. The inquiry was received on Septem-
ber 29. On an unspecified date, according to Saunderson,
Millich brought the inquiry to his attention. Saunderson
therefore telephoned the local social security office and
discovered the nature of the problem; i.e., they had no
record of "Aurora Bravo De Vasquez." According to Saun-
derson, he summoned Vasquez to his office and ascer-
tained that she had in the past changed her name from
"Aurora Arcos" under which name she was hired. He
thereafter advised her that he could communicate by letter
to the social security administration, which he did on a
date before October 7.
Saunderson testified that because of the language barrier
he felt awkward, and in search of a "graceful way to end
the conversation." he asked: "Aurora why are you so mad
at Ron?" Saunderson testified that Zuckerman had made
the rounds in the plant "a couple of days prior to that" and
noticed Vasquez "glaring" at him, and he had asked Saun-
derson to ascertain why she appeared to be hostile.5 After
Saunderson, as he characterized it, "blurted out" the ques-
tion, Vasquez purportedly explained at that point her loss
of seniority, vacation time, and pay reduction, which fol-
lowed her leg injury and that she was therefore angry not
with Zuckerman but with the "Company." Saunderson
then summoned Millich, asked her if she recalled the inci-
dent and whether Vasquez' treatment comported with the
outstanding work rules extant at the time, and Millich said
it did not. He asked for a copy of the work rules and con-
cluded that under those rules Vasquez should not have suf-
fered a loss of seniority for extended sick leave. He then
instructed Millich to determine what Vasquez' proper pay
would be if she had not lost her seniority and how much
vacation time she had lost for the current year. She was
also instructed to see if there were any other employees
similarly treated, but subsequently reported that there were
none.
Saunderson was then examined as to what further tran-
spired in his conversation with Vasquez, i.e., whether he
said anything further to her. He was uncertain and hesitant
in recalling the balance of the conversation but testified
that he was aware that the "union drive was going on at
that time," and therefore he said:
You know, Aurora, I said, this is sort of illustrative of
the fact that people can get together and discuss prob-
lems. .... We do this all of the time. I have an open
door policy. I want people to talk to me that person-
ally to [sic] ... whether we do or don't have a union
that is up to the individual people.... People can
bring in a union and they can stand for it or no [sic];
that is totally their business.... Whatever it is we
are in business and to do this we have to work togeth-
er; we all have to work hard and we have to be a team
.... regardless of what happens we will continue to
do this and we will continue to treat people fairly
.... I believe we don't need a third party to come
between us; . . . I think we can do better by working
directly together, two of us at a time, but . . . in any
case I am glad we were able to solve this problem for
you.
According to Saunderson's uncertain testimony, at that
point Alicea and Vasquez left his office. Both Alicea and
Vasquez testified that the conversation in regard to the so-
cial security problem was a separate and distinct encounter
which occurred about I week prior to the leg injury discus-
sion. Millich did not testify. Saunderson did not explicitly
deny that he had discussed with Vasquez her opinion as to
why she or other employees desired union representation.
He did testify at one point, that Vasquez told him that she
supported the Union. He did not specify the date, place, or
context of that conversation.
I credit the testimony of Vasquez and Alicea to the effect
Zuckerman testified that he noticed Vasquez' diffident attitude in late
August or "ver early" September, and mentioned it to Saunderson and
asked him to find out what her apparent problem was.
94 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the social security issue was discussed on a separate
occasion. Zuckerman had specifically instructed Saunder-
son to question Vasquez as to her hostile attitude. It is
unlikely that Saunderson raised the topic as a "graceful"
way of ending a conversation concerning social security
recordkeeping. With respect to the substance of the conver-
sation, I find Saunderson the least convincing. He was hes-
itant and uncertain in demeanor as to what was said, and
his testimony does not clearly exclude the probability that
more was discussed than what he recalled. As between Ali-
cea and Vasquez, I found Alicea to be more credible. She
was more certain and fluent in her testimony and was less
susceptible to leading questions by counsel for the General
Counsel. Despite her past support of the Union, she did
not attempt to enhance her testimony in order to strength-
en the General Counsel's case. She has no present interest
in the proceedings, and despite a tendency to expand upon
her testimony when no question was pending before her,
she did not manifest a prounion bias. She was impressive in
demeanor in both direct and cross-examination. 1, there-
fore, credit her testimony that Saunderson initiated the
conversation by asking Vasquez what her problem was and
that it was after Vasquez responded, that Saunderson then
asked if that was the reason she sought union representa-
tion which led to a further discussion of employee com-
plaints. I also credit Alicea's testimony that Saunderson
did not assure Vasquez that she was free to choose or not
choose the Union.
Within a few days, Vasquez' pay was increased by 25
cents per hour to bring her up to the level she would have
been had it not been for the loss of seniority. She received
I additional week's vacation pay in order to compensate
her for the loss of vacation time incurred during the incum-
bency of the new owners. All her seniority rights were rein-
stated.
Saunderson testified without contradiction that he "in-
herited" work rules which had been promulgated by the
prior ownership, and which he adopted and utilized in van-
ous other situations. At least on one occasion, he publicly
referred to those rules, in a notice posted to employees in
reference to the July 4 holiday. A small segment of Vas-
quez' testimony seems to corroborate Saunderson on this
point. Vasquez testified that when Millich entered the con-
versation, there was some talk of whether Vasquez had
been absent for 6 months. Rule No. 6 refers to a 6-month
grace period during which a voluntary terminated employ-
ee retains reinstatement rights with full seniority. Rule No.
7 provides:
If an employee takes a sick leave of absence he will
return with seniority and his automatic raises will also
be figured minus time he was off work.
There was no evidence submitted to rebut Saunderson as
to the past existence of these work rules. However, there
was no evidence submitted that these rules, particularly
Rule No. 7, were actually followed as a general practice.
With respect to the office utilized by Saunderson, it is a
small room. Since Zuckerman maintains no office at the
plant, Saunderson's office is the situs of the highest man-
agement authority in the plant. However, it is frequently
utilized to discuss various and routine production problems
with employees in order to escape the noise of the produc-
tion area. It is subjected to visitation by office employees,
production employees, and work leaders. Toolroom em-
ployees use it as a passage way from the toolroom to the
supply room.
C. First Zuckerman Conversation With Vasquez
Within 3 days after her conversation with Saunderson,
Vasquez was again called to Saunderson's office. Through
the translating efforts ot Alicea, she engaged in a conversa-
tion with Zuckerman. No one else was present.
According to Alicea, Zuckerman asked Vasquez if she
were still angry with him. Vasquez answered, "No! Why do
you ask? ?" and Zuckerman explained that she gave the ap-
pearance of being angry. Vasquez then explained that she
was not angry with him but that she was dissatisified with
her treatment by the prior owners regarding her leg injury
and that it was Vasquez who at that point volunteered that
that was the reason why she desired union representation.
Zuckerman then argued that the intervention of a third
party, particularly the Union herein, was unnecessary. Vas-
quez adamantly insisted that representation by the Union
was indeed necessary because on so many past occasions
management had not listened to employees' complaints
and that the Union would strengthen the employees' cause.
Zuckerman again stated that a third party was not neces-
sary to solve employees' problems. To that, Vasquez de-
manded to know why Zuckerman was so concerned about
a union inasmuch as it was the employees who would have
paid for it with their dues. To that, Zuckerman pleaded to
be given a "chance" and that he was "new." Vasquez re-
jected his pleas, claiming that it was difficult for her "to
believe the spoken words, that words would be blown by
the breeze, by the wind, that there was no guarantee given
to them." Zuckerman then assured Vasquez that she was
an employee highly regarded by him, much liked, and
needed and that "everybody working together would result
in progress for the company." Vasquez then protested the
utilization of "uneducated" supervisors. Zuckerman re-
sponded by asking her if she thought the Union could re-
move supervisors. She asserted that the Union might ob-
tain an improvement in the supervisory situation, but
Zuckerman retorted that such an assumption was false be-
cause the "Company" appoints the supervisors; i.e., not the
Union.
At one point in the conversation, Vasquez characterized
his words as "very pretty" but difficult to believe, and
Zuckerman stated that "at that moment" he could "not
promise anything" but that she "should wait for the fu-
ture." Alicea testified that at the conclusion of the talks,
Zuckerman: "said to her [Vasquez] that if she would like to
talk about their conversation with the other employees that
she was free to do that."
Despite an attempt by the General Counsel to lead the
witness, she adamantly insisted that Zuckerman did not
initiate the conversation by interrogating Vasquez concern-
ing her union sympathies, but instead reasserted her fore-
going testimony.
Vasquez' testimony tracks that of Alicea. However, Vas-
quez added that initially Zuckerman asked her why she
RELIABLE MANUFACTURING CORPORATION 95
wanted a union, and at that point she responded that less
senior employees had been assigned more work, to which
Zuckerman responded that that was a mistake which had
been corrected and which would not reoccur and that it
was an insufficient reason to seek union representation.
Then he stated that he should be given a "chance to show
us that everything would change for the better." and that
the Union would only result in the expense of dues incur-
red by employees.
According to Vasquez when she asked what guarantee
would be given to employees that his promises of change
would be fulfilled, he said to "trust" his word. When she
characterized his words as such as could be blown "by the
wind," he insisted that he was a man of his word and that
he "really wanted to fulfill it." He recited how the new
owners had granted a wage increase that had only been
promised by the prior owner. She insisted that the employ-
ees were tired of listening to promises of the owners with-
out results. He asked her how she felt about the promises
that were fulfilled to her; i.e., restoration of seniority. She
said she felt good about it. She testified:
. . .he asked me when I left there would I go around
and talk to my fellow-workers about this conversation
I had with him, and be sure, he said that I will be
keeping my word, and talk to your fellow workers
about what you talked to me here about....
Zuckerman admitted conversing with Vasquez subse-
quent to the Board conference, but denied that her partici-
pation or attitude at the conference was the cause of the
conversation. It was rather her diffident and cool de-
meanor toward him in the plant that prompted him to
speak to her. According to Zuckerman, Vasquez explained
that she had been unhappy over the past loss of seniority
which she explained to him. He responded that at the mo-
ment they were conversing the problem had already been
corrected, and that it was not "equitable" for her to judge
him by the conduct of prior owners. Zuckerman explained
that he had already been apprised of the leg injury situa-
tion and its correction and that he was still puzzled as to
Vasquez' continued hostile attitude. That is the reason he
desired to speak to her. He did not deny that there was
more to the conversation than the reference to the past leg
injury incident, and although he testified that it was his
impression that Alicea was using more Spanish verbiage
than he thought necessary for the amount of English used,
he did not deny the substance of the testimony of either
Alicea or Vasquez, except for one point. Zuckerman was
explicitly asked by his counsel whether he said anything to
Vasquez regarding employee communication. He testified
in response:
At the end of the conversation I told her that I had
had an opportunity to meet and talk with her at some
greater length than the other employees and that she
had some better feel for the type of person I was and
that if she wanted to she could tell the other employ-
ees.
He also denied that he asked her at any point in the con-
versation why she wanted a union.
The foregoing testimony of Zuckerman suggests that a
more substantial conversation transpired between Zucker-
man and Vasquez than a mere quick inquiry as to the leg
incident complaint which had already been resolved. As
admitted, Zuckerman wanted to know why Vasquez was
still hostile inasmuch as her seniority complaint was re-
solved. I conclude that there was much more to the conver-
sation.
For reasons noted above, I credit the testimony of Alicea
that it was Vasquez who volunteered to Zuckerman the
reasons why she supported the Union. However, I also
credit her testimony and that of Vasquez' that Zuckerman
and Vasquez discussed the merits and demerits of union
representation and employees' complaints, and that Zuck-
erman promised that things would change for the better
and, therefore, a union was not necessary. Under any ver-
sion, it is clear that Zuckerman suggested that Vasquez
discuss the substance of their conversation with fellow em-
ployees. Under such context, it matters little whether the
phraseology was in the form of a request or in the form of
a dispensation of a nonexistent restraint.6
D. Second Zuckerman-Vasquez Conversation
Approximately 2-4 days prior to the election, Zucker-
man approached each employee in the plant at the employ-
ees' work stations, and, through the translating efforts of
Erdevig, engaged in separate, sequential conversations.
Vasquez testified that, through Erdevig, Zuckerman en-
gaged her in a conversation about 10:30-11 a.m., at the
place where she was engaged in her assembly duties. Ac-
cording to her, immediately after the initial greeting and
after Erdevig was introduced as the interpreter, Zuckerman
asked, through Erdevig's translation, what Vasquez
"thought about the Union." Vasquez then commenced to
narrate a conclusionary account of Zuckerman's conduct.
She was redirected by counsel to testify as to "What was
said?" She then testified that Zuckerman stated that his
purpose in talking to the employees was to "tell us of the
things that were going to change there"; that he believed a
union was not needed; that he wanted the employees "to
give him an opportunity"; and that the Union was exagger-
ating its ability to obtain wage increases. Vasquez testified
that she accused the Respondent of publishing falsehoods
about the Union and that Zuckerman responded that he
"had been told about these things." Vasquez countered by
telling him that whatever "they" had told him was not true.
According to her, she then stated:
Look, you insist that thingfs are going to change; look
here, for example, George how he talked, how bad he
talked to us.
Vasquez went on to remind Zuckerman of her recent
complaint of George's language to her. She testified that
Zuckerman responded:
Aurora, you have to give me time. I am going to cor-
rect all those things. Give me the chance and I will do
all I can do to re-educate them.
tI find that Alicea is the more reliable witness. I therefore credit her
version which comports, in essence, with that of Zuckerman on this point
This is an apparent reference to George Johnson. plant supervisor
---
96 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Vasquez thereupon accused Zuckerman of telling false-
hoods about the Union. The conversation ended with a
protestation of friendship by Zuckerman and an assurance
by Zuckerman that he would not retaliate against her for
her support of the Union. This was done in response to her
suggestion that he might try to terminate her under the
pretext of an economic layoff.
Zuckerman testified that he spoke to Vasquez in "the
same manner" that he spoke to all of the employees, i.e., he
"basically" asked if the employee was agreeable to talking
to him and then, merely asked whether the employee
wished to raise any question about any matter raised by
the campaign literature of either side. If they did, he re-
sponded to the question and urged them to be present at
balloting time. He could not recall whether Vasquez raised
any questions, inasmuch on the day he spoke to her he also
spoke to 35 other employees. He testified that the only
question he had asked any employee was whether they had
any questions and thus he did not ask whether they sup-
ported the Union.
I credit Zuckerman. As noted earlier in comparing the
testimony of Vasquez and Alicea, Vasquez tended to em-
bellish her testimony somewhat. Furthermore, Vasquez
had already vigorously set forth her thoughts about the
Union, and the question does not fit in with any logical
sequence with the remainder of the conversation. When
directed by counsel to testify only as to what was actually
said to her, she did not repeat that interrogation but rather
testified that Zuckerman announced that his purpose in
talking to employees was to discuss "things that were going
to change there," etc. She made no reference to answering
an interrogation of her union support. However, Zucker-
man did not deny the balance of that conversation and
appeared most uncertain of his recollection of what else
was stated. Accordingly, I credit the balance of Vasquez'
testimony as to what was discussed between the two of
them.8
E. Conversation With Juan
Vasquez testified that, immediately after Zuckerman
spoke to her, he and Erdevig approached an employee
identified as "Juan," 8 feet away, and that she heard Zuck-
erman ask Juan what he "thought about the Union." She
testified that was all that she had heard of the conversation
between Juan and Zuckerman. In her pretrial affidavit she
testified that she heard much more of the conversation. She
explained that what she narrated in the affidavit was based
on hearsay. "Juan" was not identified by a last name. He
did not testify.
Zuckerman denied interrogating any employee on that
occasion as to the employee's thought about the Union.
Based on my overall review of Vasquez' testimony, I con-
clude that she had a tendency to characterize a conversa-
tion as to her subjective perception of it, particularly with
regard to interrogations of union support. I have no confi-
dence that she actually did hear "Juan" being interrogated
rather than having acquired that conclusion upon some
8 Erdevig, who testified as an adverse witness on other matters, was not
called to testify as to this event.
hearsay comments. Thus, despite the failure of Respondent
to corroborate Zuckerman's testimony with Erdevig's testi-
mony on this point, I do not credit Vasquez. In any event,
such comment if made was admittedly only a small frag-
ment of a large, unheard conversation.
F. The "Fairy Tale"
On November II1, Respondent distributed the seventh
edition of its house organ, Flavorite News, Special Edition,
to all the employees. It was prepared and written jointly by
Zuckerman and Saunderson. The initial sentence sets
forth:
The following fairy tale has two endings. You can
choose either one. We thought you might enjoy read-
ing it.
The "fairy tale," is composed of a chronicle of two sepa-
rate Hispanic couples employed "long, long ago in a dis-
tant galaxy far, far away," at separate employers both of
which are so described as to bear an identical image of
Respondent. At one employer, an attempted union organi-
zational effort is rejected by the employees. Before it is
rejected, the imaginary couple discuss the disadvantages of
unionization and decide to vote against it. The union lost
and in that scenario the employer's business prospered, ex-
panded, and the couple was promoted. However, in the
other company the couple was favorably inclined toward
the union which thereafter was designated exclusive bar-
gaining agent. Thereafter, the mythical employer was sub-
jected to a lengthy strike, the striking employees suffered
from a loss of income while on strike, customers were lost,
business decreased, profits dropped thus impacting profit
sharing, and, ultimately after the strike, employees were
laid off. Those who were not laid off worked in an unhap-
py environment.
Analysis and Conclusions
1. Soliciting of grievances
The unprecedented solicitation of grievances during a
preelection campaign by an employer raises an inference
that the employer is implicitly promising to remedy those
grievances and by such conduct the employer violates Sec-
tion 8(a)(1) of the Act. Reliance Electric Company, 191
NLRB 44 (1971), enfd. 457 F.2d 503 (6th Cir. 1972). It is
not, however, the mere solicitation of grievances that is
itself coercive, but rather it is the express or implied prom-
ise to remedy those grievances that constitutes the coercive
nature of the conduct. An employer may rebut any implied
inference of a promise to remedy grievances and thus ne-
gate any coercive tendency of his conduct. Uarco Incorpo-
rated, 216 NLRB 1 (1974). The solicitation of grievances
can also be rendered coercive if it occurs in conjunction
with interrogation or polling union sympathies. Uarco, su-
pra.9
The use of opinion surveys are not inherently coercive,
9 The interrogation or polling factor does not constitute a conjunctive
element necessary for a finding of coercion. The Uarco decision, supra, re-
fers to that element in the disjunctive.
RELIABLE MANUFACTURING CORPORATION 97
but they become so if they are accompanied by express or
implied promises of benefits that tend to interfere with em-
ployees' organizational rights. The Miller Press, 197 NLRB
574, 582 (1972).' 0 Clearly the taking of an opinion survey is
itself a means of soliciting employee complaints about
working conditions, and should be judged under the gener-
al criteria described above with regard to solicitation of
grievances.
Vague and ambiguous comments have been held by the
Board not to have constituted implicit promises of benefits.
In Uarco, the Board considered an employer's promise to
"work out these problems" and "do my best" as too ambig-
uous, particularly in the context of a clear disclaimer that it
could not make any promises to take corrective action."
In Associated Mills, Inc., 190 NLRB 113, 116 (1971), the
following speech was evaluated:
I have heard people say that the company is fine . . .
but there might be one small irritation, that irritation
is not enough to vote for a union. It [sic] there is an
irritation let us straighten that irritation out .... The
company is willing and anxious to straighten all things
out. Whatever they might be.
On the line I have been told that we should have a
closer communication. Of course, I agree. We are
working constantly to try to improve relations and
communications with our employees.... We will
work the problem out. We can work the problem out.
The Board adopted the finding that such employer
speech contained "promises to adjust any employee griev-
ance and to improve communications between manage-
ment and the employees," and thus was violative of the
Act. 12
In Minnesota (3M) de Puerto Rico, Inc., 214 NLRB 468,
470 (1974), the Board adopted the finding that an employer
violated the Act by summoning a leading union activist
into the general manager's office: questioning him con-
cerning his union leadership role and the employees' prob-
lems; and, upon a recital of specific problems, promising to
"see if they could solve the problems," and asking that
employees should "try to hold the problems of the union
for a while to see what [management] resolved." Unlawful
interrogation and unlawful solicitation of grievances and
implied promises were found therein.
An employer that had solicited employee grievances and
advised employees that corrective action had been effectu-
ated prior to the onset of union activity, but that it would
not at that time take any action because of ongoing "pro-
' See also WKRG-TV. Inc. 190 NLRB 174 (1971), wherein the Board
found violative of the Act a job content survey in light of the context of the
emRloyer's prior conduct.
InAllied'Egrv Business Syslemrns, Inc., 169 NLRB 514. 517 (1968). it was
held that a prediction of a "bright future" did not constitute an implied
promise of improved benefits.
The Board further found that the employer's additional questioning of
two individual employees "about their problems, how they felt about the
Company and their jobs. and whether they had any complaints or griev-
ances," I week before the election, constituted an "unlawful probing into
the employees' reasons for supporting the union which tended to interfere
with, restrain, and coerce them in the free exercise of their Section 7 rights.'
tected activity," was held to have failed to effectively ne-
gate promises implied. Rather it was found, in effect, that
such statement conveyed to employees an intention "to
satisfy more of the grievances when in the absence of union
activity it was free to do so," particularly where the em-
ployer had stressed the lack of any necessity for a union.
Campbell Soup Company, 225 NLRB 222, 228 (1976).13
Similarly, an employer's admonition, upon receipt of solic-
ited grievances, that it thought employees "were asking for
too much" did not constitute an effective rebuttal of an
inference that employees' grievances would be corrected.
Tendico, Inc., a subsidiary of Ripley Industries, Inc., and Rip-
lev Industries, Inc., 232 NLRB 735, 744 (1977).
The Board has held to be unambiguous promises of im-
proved benefits an employer's statement to employees that
"they should have given him a chance," and that "they
should have come in and sat down and discussed it," and
that they "should see what raises and benefits I could give
you without a union." Freedom Dodge, Inc., 236 NLRB
1188 (1978).
Finally, the Board has held that an employer is not privi-
leged to solicit and remedy grievances during the course of
an organizational campaign on the grounds that it is a new
operation, inasmuch as such license would insulate all new
operations from union organizational efforts. Hadley Adhe-
sive & Chemical Company, 202 NLRB 946 (1973). '
In the facts of this case, we find that Respondent was, if
not a new operation, in the process of having recently in-
stalled a new ownership. There is no evidence that neither
the prior owners nor the new owners had any established
method of soliciting employee grievances prior to the filing
of the petition. Although Zuckerman testified to a midsum-
mer practice of touring the plant and greeting employees,
the evidence indicates that his first actual attempt to solicit
employees' grievances occurred after the election agree-
ment conference on September 28, which was attended by
several employees. The work rules "inherited" by Saunder-
son include no reference to any mechanism for the submis-
sion of employee grievances nor their adjustment. Indeed,
the credible testimony of Larrea and Vasquez indicates
that employees were frustrated in their past complaints be-
cause no one would listen. As Larrea explained to Saun-
derson, it was a very good idea to institute a bilingual
mechanism in order that Hispanics could effectively ex-
press their complaints which they could not do in the past
because of the language barrier.
The rapidity and timing of Respondent's desire to com-
municate with its employees and solicit their problems is
stark, despite the fact that Saunderson and Zuckerman
were relatively new on the job. The survey of October 5
clearly was a solicitation of employee grievances which in
13 See also Montgomery Ward & Co., Incorporated. 228 NLRB 750. 757
(1977). where purported disclaimers were calculated to be treated as "dou-
ble talk similar to a nod and wink" and not to be taken at face value: and
Raley's, Inc.. 236 NLRB 971 (1978)., where the context of the employer's
conduct dissipated the effect of the "no promises" disclaimer.
IX The Board took note of the fact that the employer's concern for em-
ployees' working conditions did not anse until after the initial union meet-
ing of employees. Member Kennedy in his dissent noted that the employer's
plant involved therein was indeed new, but that it was its established prac-
tice in its other plants to periodically canvass employees for suggested im-
provements in working conditions.
98 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
view of the context of this case, including the factors of
timing and other communications to individual employees,
raised an inference that complaints would be corrected and
working conditions improved. I do not construe the con-
cluding sentence of the "Confidential Comments Sheet" to
constitute an effective rebuttal of that inference. Rather, I
find that it constitutes a clear message to employees that
the pending representation petition is the only obstacle to
the use of the results of the survey to improve wages and
benefits. Plainly, it infers that, upon removal of that obsta-
cle, Respondent will be unrestrained in its ability to im-
prove wages and benefits. The survey, I conclude, mani-
festly tended to interfere with employees' guaranteed rights
under Section 7 of the Act and thus violated Section 8(a)(1)
of the Act.
Furthermore, Respondent enhanced the inference that it
would redress employee complaints and working condi-
tions by its conversations with employees who were known
to it as leaders in the union organizational effort. Its com-
munications, under such circumstances, cannot be viewed
as isolated conduct. Clearly, it had the tendency to be pub-
licized beyond the confines of Saunderson's office. Indeed.
Zuckerman's suggestion to Vasquez indicates Respon-
dent's anticipation and expectation that she would publi-
cize the message he had conveyed to her. I conclude that
the thrust of the conversations Saunderson and Zuckerman
had with Larrea and Vasquez shortly after the survey was
that Respondent would now open its ears to employees'
complaints, would rectify those complaints, and would im-
prove working conditions and wages, if only it would be
given an opportunity to do so without the intervention of
an outside representative which would therefore be totally
unnecessary and burdensome. I do not find that Saunder-
son and Zuckerman were merely making some vague and
ambiguous statements of a possible general improvement.
Larrea, Vasquez, and the translator, Alicea, had within
days been subjected to a survey wherein employees' indi-
vidualized complaints were solicited. Larrea, a recognized
employee leader, was summoned to Saunderson's office
and questioned about her opinion of the survey. Surely this
constituted an invitation to raise the subject of employees'
complaints and she recognized it as such and proceeded to
make specific complaints, i.e., assignment of work to less
senior employees and a more basic problem of a lack of
respect for seniority, and the abusive treatment of employ-
ees by supervisors. Saunderson promised that seniority
would be honored in the assignment of work and no future
"mistakes" would be made in this regard. He further ex-
plicitly promised that the supervisors' inept treatment of
employees would be rectified. Indeed, his offer to her of a
line leader's position was admittedly pointed out to her as
a means for obtaining an improvement of her fellow em-
ployees' treatment.
With respect to Vasquez, she was possessed of a long-
standing grievance dating back several years. However,
only after she attended the election agreement conference
was there any concern expressed about her hostile attitude.
She was interrogated by Saunderson as to why she was
unhappy, and he admittedly rectified her complaint and
pointed out to her how such corrective action was "illustra-
tive" of how he can and will resolve employee complaints,
and that, therefore, a union was unnecessary. Under such
circumstances, I cannot conclude that he was innocently
correcting some prior mistake. He was under no obligation
to correct an historic injustice that dated back several years
and which had been perpetrated by prior owners and man-
agers. To hold that he was privileged to do so would, in
effect, grant a license for every employer, upon being con-
fronted with a union organizational drive, to ferret out past
breaches of its own unilaterally promulgated work rules
which adversely affected employees and to redress those
grievances in order to frustrate union organizational ef-
forts.
Respondent is quite correct in arguing that Respondent
was obligated to act as if there were no union on the scene
and to continue to adhere to its past policy.'5 However,
Respondent herein was not merely continuing a course of
action that it would have engaged in regardless of the
Union. Rather, it has engaged in conduct in consequence
of the filing of the representation petition. It commenced
for the first time to solicit grievances from employees, par-
ticularly two union activists and leaders. The timing and
manner of Saunderson's remedial action toward Vasquez
clearly was calculated to dissipate her desire for union rep-
resentation. When Zuckerman failed to understand why
she continued to exhibit hostility in her demeanor, despite
the corrective action of Saunderson, he personally con-
fronted Vasquez in the highest situs of managerial authori-
ty; i.e., Saunderson's office. He pressed her for a further
explanation for her apparent hostility. He was, in effect,
soliciting further grievances. lie received specific com-
plaints, and he responded by telling her that the Union was
unnecessary for improvements in conditions and that given
a chance he would make improvements and, thus, gave his
"word" as a guarantee. He further cited how the new own-
ers had actually granted wage increases, that the prior own-
ers had only promised, and, thus, implied that further wage
increases would be granted. Within 3 days of the election.
Zuckerman again approached Vasquez, again promised
improvements in working conditions, if he were only given
time and the absence of an unnecessary third party, i.e., the
Union; and he specifically promised to reeducate the sup-
ervisors with respect to the treatment of employees.
Based on the foregoing, I conclude that Respondent vio-
lated Section 8(a)(l) of the Act by soliciting employee
grievances, and expressly and impliedly promising to re-
dress those grievances and to grant its employees improved
wages and working conditions; by its conduct, on October
5 in conducting an employee survey, and the conduct of
Saunderson and Zuckerman in their October conversations
with Larrea and Vasquez; and by Zuckerman's conduct in
his conversation with Vasquez in early November. I further
conclude that Respondent violated Section 8(a)(l) of the
Act by granting employee Vasquez a raise of 25 cents per
hour. I week's vacation pay, and increased seniority rights
in early October.
VorlkA Carolina Telephone (mpaornl, 234 NI.RB 1235 1978).
RELIABLE MANUFACTURING CORPORATION 99
2. The interrogation of Larrea and promise of promotion
In the conversation that Saunderson engaged in with
Larrea in his office in early October, she proffered the rea-
sons why the employees desired union representation. At
that point, Saunderson questioned her as to her own views
on the Union.
Larrea attended the election agreement conference on
September 28 and was apparently an open union support-
er. There is Board precedent to the effect that not all inter-
rogation of self-proclaimed union activists is per se coer-
cive. Thus, an isolated remark made to a union activist
regarding his open distribution of union literature has been
held nonviolative. The William Carter Company, Inc., 225
NLRB 550 (1976).'6
Although I find that specific reference to the Union was
indeed first raised by Larrea, it was done so after Larrea
was summoned to Saunderson's office and after he interro-
gated her as to the October 5 survey. As noted earlier, I
conclude that, in effect, what Saunderson was attempting
to elicit from her was a discussion of employee complaints.
He did not have to ask her explicitly why other employees
desired the Union. She understood what he was asking and
responded with an exposition of their complaints. He then
proceeded to interrogate her about her own subjective atti-
tude toward the Union and, thereafter, attempted to wean
away her support of the Union by implying promises of
benefits. All this occurred in Saunderson's office while they
were alone. His office, although utilized for other purposes,
was the situs of the highest managerial authority in the
plant, and when they used it, they were secluded and unin-
terrupted. He gave no assurances of nonreprisal when he
commenced his interrogation. Despite Larrea's known par-
ticipation in the election conference, I cannot conclude
that she willingly placed herself in such a posture that Re-
spondent was free to subject her to a penetrating interroga-
tion under such conditions. I find that Saunderson's inter-
rogation of Larrea was therefore coercive and violative of
Section 8(a)(l) of the Act.
The General Counsel argues that Saunderson's promise
to promote Larrea to a line leader position is also indepen-
dently violative of the Act. Respondent argues that the line
leader's position is not a supervisory position and that
there is no demonstrable benefit flowing from the position,
and there was no offer of a benefit to induce her to refrain
from supporting the Union. However, Saunderson's testi-
mony reveals that he offered the job to her in the posture
that it would resolve one of the complaints she had about
working conditions; i.e., the treatment of employees. Thus,
the offer was made clearly in the context of Respondent's
attempt to rectify her complaints and thereby dissipate her
need or desire for union representation.
I conclude that the offer of a line leader's job to Larrea
was to remedy her and other employees' grievances, de-
spite the fact that it was not explicitly conditioned upon
her disavowal of the Union. Whatever business justifica-
tions Respondent may have had to fill the line leader posi-
tion, the timing and manner of the presentation of the offer
16 See also federal Paper Board Company, Inc 206 NLRB 681. 682 (1973)
to Larrea tended to manifest to her that Respondent was
willing to improve working conditions and particularly the
situation of the Hispanics by improving the quality of
treatment they received from supervisors and line leaders,
if only they would give Respondent a free hand; i.e., free
from the encumbrance of union representation. I therefore
conclude that the offer of a line leader's position to Larrea
constituted an integral part of Respondent's promises to
improve working conditions and was, thus, violative of the
Act.
3. October interrogation of Vasquez by Zuckerman
The interrogation of Vasquez as to her personal reasons
for supporting the Union arose in a context almost identi-
cal to that of Saunderson's interrogation of Larrea. She
was interrogated in the same office and a similar technique
was applied. She was questioned as to what complaints she
had and, when she responded with her personal complaint,
she was then asked if that were the reason she supported
the Union. When she confirmed that that was part of the
reason, her complaint was adjusted and promises were
made with respect to the other general complaints. Accord-
ingly, I also conclude that by Saunderson's interrogation of
Vasquez in early October, Respondent violated Section
8(a)(1) of the Act.
4. Solicitation to campaign on behalf of Respondent
The complaint alleges, and the General Counsel argues,
that Respondent, by its agent Zuckerman, violated Section
8(a)(1) of the Act by soliciting Vasquez to campaign on its
behalf. This contention rests upon Zuckerman's closing re-
marks to Vasquez during the October encounter. I have
concluded that Zuckerman suggested that Vasquez publi-
cize to other employees his conversation, wherein he made
unlawful promises of benefit. Under the circumstances
herein, and given the nature of the entire conversation, I
conclude that the suggestion of the chief executive officer
of Respondent was tantamount to a request by Respon-
dent that Vasquez aid Respondent in its campaign by con-
veying the message of promised benefits if Respondent
were given the chance to be unencumbered with a union. I
find that such conduct violated Section 8(a)(1) of the Act.
Baker Manufacturing Co., Inc., 218 NLRB 1295, 1297
(1975).
5. November interrogations by Zuckerman
In light of the factual findings above, I conclude that
Zuckerman did not engage in coercive interrogations of
employees in the 4-day period preceding the election.
6. Threats
The complaint alleges and the General Counsel argues
that the Flavorite News, Special Edition, previously de-
scribed contains threats of loss of employment and/or loss
of income if employees should vote for union representa-
tion.
Contrary to Respondent, I do not find the depiction of
100 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
persons and employers therein to be fictional or mere ab-
stract representations. The resemblance to Respondent and
its employees is too strong. I conclude that the document
was in effect a message to employees which speculated
what might occur if they select the Union as their represen-
tative. That is to say, the use of a pseudo-fictional format
does not render this propaganda mechanism to be merely
an account of a nonevent, but it does posture the events in
a conditional frame of reference. Therefore, at most, Re-
spondent asserted therein that the Union might make "de-
mands" which are so economically disadvantageous as to
result in a situation where Respondent would "accept a
strike." The strike depicted therein lasted 4 months. Em-
ployees were depicted as being disqualified for unemploy-
ment compensation,' 7 and therefore deprived of income
with resultant hardships. Additionally, because of the
strike, i.e., lack of production, some customers were lost
and, in consequence, profits were reduced, thus impacting
the profit sharing plan and causing layoffs. Those that con-
tinued to work were not friendly and argued over the cause
of these adverse conditions. One of the fictional employees
became so unhappy that she missed work extensively and
was discharged. Each of these events is contingent upon a
preceding event.
The Supreme Court has stated in N.L.R.B. v. Gissel
Packing Co., Inc., et al. 395 U.S. 575, 618 619 (1969):
Thus, an employer is free to communicate to his em-
ployees any of his general views about . .. a particu-
lar union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of
benefit." He may even make a prediction as to the
precise effect he believes unionization will have on his
company. In such a case, however, the prediction must
be carefully phrased on the basis of objective fact to
convey an employer's belief as to demonstrably prob-
able consequences beyond his control or to convey a
management decision already arrived at to close the
plant in case of unionization. See Textile Workers v.
Darlington Mfg. Co., 380 U.S. 263, 274, n. 20 (1965). If
there is any implication that an employer may or may
not take action solely on his initiative for reasons un-
related to economic necessities and known only to
him, the statement is no longer a reasonable pre-
diction based on available facts but a threat of retalia-
tion based on misrepresentation and coercion, and as
such without the protection of the First Amendment.
We therefore agree with the court below that "[c]on-
veyance of the employer's belief, even though sincere,
that unionization will or may result in the closing of
the plant is not a statement of fact unless, which is
most improbable, the eventuality of closing is capable
of proof." 397 F.2d 157, 160. As stated elsewhere, an
employer is free only to tell "what he reasonably be-
lieves will be the likely economic consequences of
unionization that are outside his control," and not
"threats of economic reprisal to be taken solely on his
own volition." N.L.R.B. v. River Togs, Inc., 382 F.2d
198, 202 (2d Cir. 1967).
1 There is no evidence that such assertion is false.
Respondent herein alluded to obvious probable conse-
quences of a long-term strike. Nowhere did Respondent
suggest that it would bargain in bad faith, nor did it suggest
that a strike was inevitable, nor did it imply that a strike
was the only way a union could achieve reasonable con-
tract demands. What it did suggest is that it might be put in
a position to accept a strike in the eventuality that unrea-
sonable demands were made. I therefore conclude that the
reference to a strike and its consequences was a prediction
of consequences not within Respondent's control, not a
threat of reprisal to be taken at its own volition. Accord-
ingly, I conclude that such reference did not interfere with
the employees' free choice in the election. J. R. Wood, Inc.,
228 NLRB 593 (1977). Consequently, I do not find it to be
violative of the Act.
IV. THE OBJECTIONS
Objection 2
This alleges that:
Between September 28, 1977 and November 11, 1977,
[the Respondent] summoned all or most of the eligible
voters individually and in small groups during work-
ing hours and subjected them to antiunion propa-
ganda, thereby creating in the minds of the persons so
summoned and assembled outright fear and uneasi-
ness tinged with fear as to the consequences of union-
ism.
Although there is no evidence that Respondent engaged in
any coercive conversations with groups of employees, as I
have found above, it did coercively interrogate two of its
employees concerning their union sympathies. Accord-
ingly, I find that the objection is meritorious, in part, and I
recommend that it be sustained in this regard.
Objection 3
I have concluded above that the Flavorite News, Special
Edition, did not constitute a threat of economic loss. As to
the allegation in the objection that it also contained "mis-
leading and false statements," no evidence was adduced. In
any event, the Board has recently ruled that it will no long-
er inquire into the truth or falsity of the parties' campaign
statements. Accordingly, I recommend that this objection
be dismissed. Shopping Kart Food Market, Inc., 228 NLRB
1311 (1977).
Objections 6 and 7
Inasmuch as I have found that Respondent unlawfully
promised its employees benefits in order to induce them to
vote against the Union and did, with respect to Vasquez,
granted her a raise, a paid vacation of 1 week, and restored
seniority privileges to her for the purpose of unlawfully
interfering with her free choice of union representation, I
therefore conclude that Objections 6 and 7 are meritorious
and recommend that they be sustained.
RELIABLE MANUFACTURING CORPORATION 101
Objection 8-Threat of reprisal
The only threat of reprisal litigated is that allegedly con-
tained in the Flavorite News, Special Edition. In view of
my conclusion in regard to that issue, I find this objection
without merit and I recommend its dismissal.
Objection 9
This objection is merely a conclusionary allegation that
Respondent "otherwise engaged in unlawful acts and im-
proper conduct which effected the election results." Nei-
ther the Charging Party nor the General Counsel alleged
any conduct not specifically alleged in the objections or in
the complaint. Therefore, this objection was dismissed at
the hearing as insufficiently specific.
CONCLUSIONS OF LAW
1. Respondent is engaged in commerce within the mean-
ing of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the meaning
of Section 2(5) of the Act.
3. Respondent has interfered with, restrained, and
coerced employees in the exercise of their rights under Sec-
tion 7 of the Act, in violation of Section 8(aXI) of the Act.
4. Such unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
5. By engaging in the aforesaid unlawful conduct, the
Employer interfered with the free choice of employees in
the election.
THE REMEDY
Having found that Respondent engaged in certain unfair
labor practices, I recommend that it be required to cease
and desist therefrom, and from any like or related conduct,
and to post appropriate notices. It is further recommended
that the election which was held on November II, 1977, be
set aside and that Case 13-RC-14527 be remanded to the
Regional Director for Region 13 for the purpose of con-
ducting a new election at such time that he deems that such
circumstances permit a free choice of bargaining represen-
tative.
On the foregoing findings of fact, conclusions of law,
and the entire record herein, and pursuant to Section 10(c)
of the Act, I hereby recommend the following:
ORDER
The Respondent, Reliable Manufacturing Corporation,
Franklin Park, Illinois, its officers, agents, successors, and
assigns, shall:
I. Cease and desist from:
(a) Coercively interrogating its employees concerning
their union sympathies and desires.
(b) Soliciting its employees' grievances or complaints
and in connection therewith, correcting or promising to
correct their grievances and complaints or promising other
benefits or inducing its employees to convey to other em-
ployees its promises to correct grievances and complaints
or other promises of benefits in order to interfere with its
employees' free choice to be represented by Local 1031,
International Brotherhood of Electrical Workers, AFL-
CIO, or any other labor organization.
(c) In any like or related manner interfering with, re-
straining, or coercing its employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Franklin Park, Illinois, place of business,
the attached notice marked "Appendix." Copies of said
notice, in English and in Spanish, on forms provided by the
Regional Director for Region 13, after being duly signed
by its authorized representative, shall be maintained by it
for 60 consecutive days thereafter, in conspicuous places,
including all places where notices to employees are cus-
tomarily posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered, de-
faced, or covered by any other material.
(b) Notify the Regional Director for Region 13, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed in all other respects.
:1 In the event no exceptions are filed as provided by Sec. 102.46 of the
Rules and Regulations of the National Labor Relations Board. the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations. be adopted by the Board and become
its findings. conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
19 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
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate our employees
concerning their union sympathies and desires.
WE WILL NOT solicit our employees' grievances or
complaints and in connection therewith, correct or
promise to correct their grievances or complaints or
promise other benefits, nor induce our employees to
convey to other employees our promise to correct their
grievances or complaints or other promises of benefit
in order to interfere with our employees' free choice to
be represented by Local 1031, International Brother-
hood of Electrical Workers, AFL-CIO, or any other
labor organization.
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.
RELIABLE MANUFACTURING CORPORATION