Rexair, Inc.

National Labor Relations Board - Board Decisions

Jul 31, 1979

243 N.L.R.B. 876 (N.L.R.B. 1979)

I):(ISI()NS OF NAIONAI L.ABOR REL.AIIONS BOARI)
Rexair, Inc. and United Furniture Workers of Amer-
ica, AFL-C(IO. ases 7-('A 14808 and 7 R(C
14644
July 31. 1979
I)E('ISION AND ORDER
BY CHAIRMAN FANNING ANI) MEMBERS JENKINS
AND PNFI- )
On March 23, 1979, Administrative Law Judge
Phil W. Saunders 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,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, as modified herein.2
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended Or-
der of the Administrative l.aw Judge, as modified be-
low, and hereby orders that the Respondent, Rexair,
Inc.. Cadillac, Michigan, its officers, agents, succes-
sors, and assigns, shall take the action set forth in said
recommended Order, as so modified:
I. Change the date in paragraph 2(a) to read "De-
cember 7, 1977."
2. Substitute the attached notice for that of the
Administrative l.aw Judge.
Respondent has excepted to certain credibility findings made by the Ad-
ministrative Law Judge. It is the Board's established policy not to overrule
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 Dr' Wall Products, Inc, 91 NLRB 544
(1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully examined the
record and find no basis for reversing his findings.
2 We note that in sec. 2(a) of the Order and in the notice, the Administra-
tive Law Judge inadvertently referred to December 5. 1977. as the date the
Union demanded recognition. The correct date is December 7. 1977. as the
Administrative Law Judge himself previously found We shall modify the
recommended Order and notice accordingly.
APPENDIX
NoTIcE To EMPLOYEES
POSTED BY ORDER OF THE
NAIIONAL LABOR RELAIIONS BOARD
An Agency of the United States Government
WE WIL. NOT interrogate employees concern-
ing their union activities, support for the Union,
membership, or sentiments.
WE WII.I. NO threaten to discharge employees
because of their union activities.
WE WiI.. NOr solicit grievances with promise
to correct them.
WE WILL NOI invoke a too broad no-distribu-
tion rule.
WF WI.l. NOT implement a production and in-
centive program to dissuade support for the
Union.
WE WI.LL NOT convey the impression of sur-
veillance of union activities.
WE WILL NOT promise promotions.
WE WIl. NOT institute wage increases to dis-
suade support for the Union.
WEV WIIL NOT circulate and condone petitions
opposing the Union.
WEi WILL. NOI announce a new and improved
health insurance plan to dissuade support for the
Union.
WE WILL. NOI threaten loss of existing benefits
for supporting the Union.
WE WILL NOI promise improved benefits.
WE WlI.I. NOT institute a new job-posting pro-
cedure.
WE WIL.L NOT restrict employees to their work
areas nor give them reprimands in respect
thereto.
WE WIl.. NO] tell our employees that they are
ineligible for promotions or salary status because
of their union activities.
WE WILL NO() refuse to bargain collectively
with the Union concerning rates of pay, wages,
hours, and other terms and conditions of em-
ployment.
WE WILL. NOT in any other manner interfere
with, restrain, or coerce employees in the exer-
cise of their rights to self-organization. to form,
join, or assist labor organizations, to bargain col-
lectively through representatives of their own
choosing, and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed in Sec-
tion 7 of the Act, or to refrain from any or all
such activities.
WE WIL.L recognize, effective December 7.
1977. and bargain collectively, upon request,
with the Union named herein as the exclusive
representative of all the employees in the bar-
gaining unit described herein with respect to
rates of pay. wages, hours of employment, and, if
an agreement is reached, embody it in a signed
contract.
243 NLRB No. 165
876
7 and 12. 1977. the Union made a request tfir recognition.
It is further alleged that since early December 1977 Re-
spondent has engaged in a campaign to destroy the ULnion's
majority status, and in so doing has interfered with, re-
strained, and coerced employees by making and engaging
in numerous discrinlinators statements and conduct all
detailed later herein.
The C'ompany manufactures vacuum cleaners at its plant
located in Cadillac, Michigan. In early December 1977 the
Union requested that the Compan5 recognize the Union as
the exclusive bargaining representative oft the emplo',ees in
the bargaining unit described herein. The Ulnion's claim of
majority status was based on union authorization cards. On
D)ecember 13, 1977. the Union filed a petition for certifica-
tion, and thereafter the parties entered into a Stipulation for
Certification Upon Consent Election. 'he election was con-
ducted on ebruars 14. 1978. The Ulnion lost the election
and on Februarx 16. 1978. filed objections to the election.
]'he charges in the instant case and objections were then
consolidated with the complaint issued on March 30. 1978X.
as aft;restated
A threshold question in this proceeding is the status of
Earl Fox. Frances Spitler. Anna Bainbridge. and Gordon
Kimbel. Fox. Spitler. and Bainbridge all signed authoriza-
tion cards, and all four of them attempted to vote in the
February election but were challenged on the grounds that
they were supervisors, and their names did not appear on
the Eclvtor list. The General Counsel now takes the posi-
tion that all four of them are leadpersons and not supervi-
sors, and that their four names should be added to the list
of unit employees. Moreover. that the authorization cards
signed in early December 1977. b Fox. Bainbridge. and
Spitler are all valid cards counting towards the Union's ma-
jority, and that Respondent's conduct directed toward em-
ployee Fox constituted violations of the Act as alleged in
certain paragraphs of the instant complaint.
Earl Fox teslified that in or about July 1977 he was in-
stalled by Respondent's Production Manager William
Haupt as a crew leader in the machine department. and
informed by Haupt that his duties were to see that the men
in the department were at their jobs. to fill out a production
sheet, and then to work on production himself. Fox said
that he was given a 10-cent raise after being made crew
leader and that his crew consisted of 10 employees. but he
also testified that about 95 percent of his time was spent in
actual manual labor. Fox testified that he had no authority
to hire, fire, layoff. suspend. discipline. promote, or to ad-
just grievances, nor did he have the authority to recom-
mend any of the above.
Frances Spitler testified that she is a leader on the motor
line, has 13 to 14 employees under her, that it is her respon-
sibility to see that the work on the motor line gets done, and
that she assigns work to the employees in the motor line
department and quite often moves employees from one job
to another. Spitler also testified that she has some say on
The appropriate unit involved herein is the following:
All full-time and regular part-time producion and maintenance em-
ployees. Including qualits conllrol and shipping and receiving employees
employed by Respondent at its Cadillac. Michigan. plant. hut excluding
office clerical emplosees. guards, and supervisors, as defined in the Act.
Wl V\ii.i restore the working conditions and
privileges enjoyed by Earl iFox prior to February
6, 1978, and will remove from his file the warn-
ing and reprimand given to him relating to the
incidents on February 6 and 22, 1978.
REXAIR, INC.
DECISION
SIAIIMINI ()F liI: (CASI
PHIL W. SAIINI)IRS Administrative Law Judge: Based
on a charge filed on February I and 22, 1978, by Ulnited
Furniture Workers of America. AFL, CIO. herein the
Union, a complaint was issued on March 30. 1978. against
Rexair. Inc.. herein Respondent or the Company, alleging
violations of Section 8(a)(1). (3). and (5) of the National
Labor Relations Act. The General Counsel and Respon-
dent filed briefs in this matter.
Upon the entire record in the case. and from mi observa-
tion of the witnesses and their demeanor I make the follo -
ing:
FINI)IN(S ()t: FAl I
I. tilL BU SINESS ()F RSPONI)I:N\
Respondent is a Delaware corporation, and at all times
material herein has maintained an office and place of busi-
ness in Cadillac. Michigan, where it is engaged in the
manufacture, sale. and distribution of vacuum cleaners and
related products. During the year ending December 31.
1977. which period is representative of its operations during
all times material hereto, Respondent purchased and
caused to be transported and delivered at its Cadillac,
Michigan. plant, goods and materials valued in excess of
$50,000, of which goods and materials valued in excess of
$50,000 were transported and delivered to its place of busi-
ness of Cadillac, Michigan. directly from points located
outside the State of Michigan. During the same period of
time Respondent, in the course and conduct of its business
operations, manufactured, sold. and distributed at its Cadil-
lac, Michigan, plant products valued in excess of $100,000,
of which products valued in excess of $50,000 were shipped
from said plant directly to points located outside the State
of Michigan.
The Respondent is an employer engaged in commerce
within the meaning of Section 2(2). (6). and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLV ED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE UNFAIR LABOR PRA('TICES
It is alleged in the complaint that on or about December
3. 1977, a majority of employees in a proper unit designated
the Union as their bargaining agent, and that on December
RIXAIR. IN( X77
DECISIONS O() NATIONAL LABOR RELA 'IONS BOARI)
who works overtime and that she trains new employees.
There is no testimony by Spitler that she had any authority
to hire, fire, promote, or discipline employees.
It appears from this record that Anna Bainbridge is a
floor leader and in exercising her duties orders stock, moves
employees from one job to another, and fills in for absent
employees. It further appears that employees in Bainbridg-
e's crew do not ask her for time off from the job, but rather
ask Personnel Mananger Evelyn Gisel or Production Man-
ager Clark Masters.
There is no evidence in the record relating specifically to
Gordon Kimbel.
In support of its position that the above-named four peo-
ple are supervisors, Respondent cites Keener Rubber, Inc. v.
N.L.R.B., 326 F.2d 968 (6th Cir. 1964). cert. denied 377
U.S. 934 (1964), where the court determined that while an
employee did not possess the authority to hire, fire, layoff.
recall, promote or discharge employees or effectively rec-
ommend such action, he did have authority to responsibly
direct other employees and, therefore, was a supervisor un-
der the Act. From the above Respondent argues that even if
the four individuals here in question did not have the au-
thority to hire, fire, or discipline employees as Fox suggests,
they possessed the necessary prerequisites to responsibly di-
rect other employees. Respondent further argues that like
the employer in Cato Show Printing Co., 219 NLRB 739
(1975), Respondent here, in the instant case, also honestly
believed that Kimbel, Spitler, Bainbridge, and Fox were
supervisors-that the Company also relied on its labor con-
sultant. Harold Craft, who relied upon the Board's manual,
"A Guide to Basic Law and Procedures" under that Na-
tional Labor Relations Act, in making these determina-
tions, and therefore, as in Cato, the Company did not en-
gage in conduct designed to interfere with employees'
statutory rights.
Respondent's Production Manager ('lark Masters de-
scribes the "job content" of the four "department supervi-
sors or leaders" in the following terms:
A. The supervisors work directly under me and are
responsible to me. It is their duty to assign personnel of
the departments to the job function on a given day or
given time.
Masters further defines the job responsibilities of the four
leadpersons to include producing "as high a quality product
as possible and to produce up to the standards required for
that job category" as well as moving employees to other
jobs in the department, and deciding which employees will
work overtime when decreed by Masters.
Actual existence of true supervisory power is to be distin-
guished from abstract, theoretical, or rule-book authority.
"It is well-settled that a rank-and-file employee cannot be
transformed into a power to perform one or more of the
enumerated functions." N.L.R.B. v. Southern Bleachery &
Print Works, Inc., 257 F.2d 235, 239 (4th Cir. 1958), cert.
denied, 359 U.S. 911 (1959). What is relevant is the actual
authority possessed and not the conclusory assertions of a
company's official. While the enumerated powers listed in
Section 2(11) of the Act are to be read in the disjunctive,
the section also "states the requirement of independence of
judgment in the conjunctive with what goes before." Poul-
try Enterprises, Inc. v. N.L.R.B, 216 F.2d 798, 802 (5th Cir.
1954). Thus, the individual must consistently display true
independent judgment in performing one of the functions of
Section 2(1 ) of' the Act. The exercise of some supervisory
tasks in a merely "routine," "clerical." "perfunctory," or
"sporadic" manner does not elevate a rank-and-file em-
ployee into the supervisors ranks. N.L.R.B. v. Security
Guard Service, nc., 384 F.2d 143, 146 149 (5th Cir. 1967).
Nor with the existence of independent judgment alone suf-
fice; for "the decisive question is whether [the individual
involved has] been found to possess authority to use [her]
independent judgment with respect to the exercise by [her]
of some one or more of the specific authorities listed in
Section 2( 1) of the Act." N. L. RB. v. Brown & Sharpe MJg.
Co., 169 F.2d 331, 334 (Ist Cir. 1948). In short, "some kin-
ship to management, some empathetic relationship between
employer and employee must exist before the latter be-
comes a supervisor for the former." .L.R.B. v. SecuritY
Guard Service, Inc., .upra, 384 F.2d at 149.
I am in agreement with the General Counsel that nothing
in this record controverts the testimony of Fox and the oth-
ers that they lacked the authority to hire, fire, layoff sus-
pend, discipline. promote, or adjust the grievances of Re-
spondent's employees. As pointed out, when Production
Manager Haupt gave Fox his present job of crew leader,
Haupt explained to him that Fox was to put the men on the
job in the morning, fill out a production report, and work
"on production" himself. Fox testified without contradic-
tion that he spends about 95 percent of his time at manual
work and 5 percent on his other duties. Thus, it can be
reasonably concluded that the assignment of work to his
crew took so little of his working time that those work as-
signments must he characterized as no more than routine
and hardly an indicium of supervisory status. This record
lacks substantial evidence to support the conclusion that
Fox had or exercised the authority to direct employees in
their actual work, and it is clear that Fox was, at all times
material, a leadman and a unit employee. This record re-
flects that whatever assistance or direction he may have
given to the other employees was of routine nature and did
not require the use of any meaningful independent judg-
ment. Moreover, even if on a few occasions Fox did partici-
pate in some activity involving a degree of supervisory au-
thority, the Board has held that isolated or sporadic
exercise of such authority is insufficient to establish an indi-
vidual as being a supervisor. Directors Guild of' America,
Inc. (Association of Motion Picture & Television Producers,
Inc.), 198 NLRB 707 (1972).
As pointed out, Bainbridge's duties also fall short of'
making her a statutory supervisor. Like Fox she is hourly
rated, orders stock for her crew, and fills in for them in their
absence. Her crewmembers do not ask her for time off.
Nothing in the record indicates that Bainbridge's duties in-
clude responsible direction of her crew.
Spitler's case is like Bainbridge's, and her rather modest
hourly rate and duties do not raise her to the level of a
statutory supervisor. Moving or assigning employees from
one job to another must be deemed routine under circum-
stances prevailing here.
The particulars of Kimbel's authority, or its exercise, do
not appear in the record at all, but his inclusion in the total
number of unit employees as of December 4 or 7, 1977, is
878
REXAIR, INC.
not important with respect to the Union's majority status
on the dates of December 3, 7, or 12. 1977.
The first meeting of Respondent's employees with the
Union was held on December 3. 1977. The Union's Inter-
national Representative Randy Harrington told the assem-
bled employees at this meeting that the purpose of signing
the authorization cards was to designate the Union as the
collective-bargaining representative of the card signer, and
it did not mean that the matter would go to an election, but
that the Union would demand recognition as soon as 70
percent of the employees had signed the cards.'
At the Union meeting on December 3, 1977, 46 of the
assembled employees filled out and signed their respective
union authorization cards, and turned them over to Har-
rington. The cards of Anna Bainbridge and Earl Fox are
included within the above-each dated December 3. 1977.
Frances Spitler signed her card a few days later. Duane
Miller's card, General Counsel's Exhibit 3(o), is dated 1/3/
77. However, Harrington's testimony places Duane Miller
at the union meeting of December 3, 1977, where the latter
signed a card and turned it over to Harrington. In addition,
the date stamp of Region 7 National Labor Relations
Board on the reverse side of the original shows the date of
December 16, 1977. Leon Salisbury's card is undated, but
both Harrington and employee Dwight Dunlap testified
that they had seen Leon Salisbury sign and turn in a union
authorization card on December 3, 1977. At this meeting
on December 3, Harrington also passed out blank authori-
zation cards to several employees present. and they were to
get signatures from other employees.
A few days later, on December 7. 1977, Union Repre-
sentative Harrington, now armed with 72 authorization
cards, met with Respondent's plant manager. Arthur
Miller, and its President, J.V. Sanders. At this time Har-
rington asked for recognition as the bargaining agent of
Respondent's production and maintenance employees.
However, he was informed by Sanders that Respondent
was not going to give the Union recognition at this time,
but wanted to go through the normal or standard proce-
dure. On December 12, 1977, the Union sent a telegram to
Respondent again requesting recognition.
Respondent maintains and argues that the Union did not
have a proper majority status. Respondent points to the
testimony of Harrington and to the effect that while he did
not make any misrepresentations to the employees in solic-
iting cards, he did direct other employees to solicit the sign-
ing of additional cards, and they, in turn (Fox, Dunlap and
Eaton), made misrepresentations in getting other employees
to sign their cards. Fox testified that in early December
1977 he told employees Dee Carlson and Lavern Kinney
that he was not sure whether they needed to sign a card in
2 The purpose of the union authorization cards is likewise set forth on the
face of the cards in the following language:
UNITED FURNITURE WORKERS OF AMERICA
Affiliated with A.F.L.-C.I.O.
I hereby request and accept membership in the above-named union,
and of my own free will, authorize it. its agents or representative to act
for me as a collective bargaining agency in all matters pertaining to pay
rates, wages, hours of employment and other conditions of employment
order to vote in the election, but that he thought it was a
good idea just in case. He further testified that although he
discovered later that it was not necessary to sign the card in
order to vote, he did not advise either Carlson or Kinney of
this fact. Dwight Dunlap testified that on December 7.
1977, during a meeting with Fox, Lavern Kinney and Dee
Carlson Dee Carlson said that the union authorization
card was to allow people to vote. The record shows that on
this occasion both Fox and Dunlap then told her "No."
The Respondent further points to the testimony of Dee
Carlson and also Beth Huffman to the effect that Fox told
them that it was necessary to sign the card in order to vote.
and that they therefore signed the cards. Finally, Carlson
admitted that Harrington visited her home and told her
that it was not necessary to sign the card to vote, but re-
called in her testimony that when she asked for the card
back, Harrington led her to believe that she would be with-
out representation if her card has pulled and the Union
won the election. She therefore decided not to have her card
returned to her. Huffman ventured in her testimony that
when she signed a card on December 7, 1977, Fox informed
her that she had to do so in order to vote. However, Huff-
man admitted that just before the February election she
inquired of Harrington if this information from Fox was
correct, and Harrington then told her it was not correct.
From the above Respondent argues that the testimony of
the General Counsel's own witnesses reveals that there were
definite improprieties and misrepresentations used in the
solicitation of the authorization cards, and further shows
that the scope and extent of these misrepresentations. and
the number of employees affected b them, is uncertain.
Therefore, in order to properly protect the interests of the
employees, a bargaining order must not enter.
On the dates of December 7 and 12. 1977, when Harring-
ton made his demands bfor ecognition. as aforestated. he
had 72 authorization cards including those of Bainbridge.
Fox, and Spitler. Richard Brown, a handwriting expert and
a question-documents examiner, testified that out of the 69
union authorization cards which he examined, by compar-
ing the signatures thereon with those on the respective em-
ployee's W 4 and employment forms, all were authentic.
The authorization cards he examined did not include the
cards signed by Bainbridge. Fox, and Spitler. However, on
December 3. 1977, at the initial union meeting. Harrington
received the signed cards of Bainbridge and Fox. In fact.
employees Wingard, Vanderhoef. and Gunia testified that
they saw Anna Bainbridge sign her card at the meeting on
December 3. Fox authenticated his own Union authoriza-
tion card, and further testified that on December 7. 1977. he
handed a blank union authorization card to Frances Spit-
ler, who returned the card, filled out and signed, the same
day, and he, in turn, handed it to card employee solicitor
Dwight Dunlap.
While there may have been some initial confusion by Fox
and others when they talked with Carlson. Kinney, and
Huffman about signing their authorization cards, subse-
quent events and conversations with the card solicitors and
with Harrington, as aforestated, pretty much cleared the air
of any misunderstanding. As a result, none of the three had
their cards withdrawn. Moreover, the cards in themselves
clearly state their purpose, as previously noted. Respondent
879
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
also argues that the scope of the misrepresentations by the
card solicitors could have been quite extensive among the
employees. However, it appears to me that if other em-
ployee card signers had been confused as to the purpose of
their cards, or actual misrepresentations had been made to
them-then they too would have come forward and made
such misrepresentations known. In all likelihood, the scope
of the alleged misrepresentations was restricted to the three
employees previously discuss herein, and there is no real
evidence or testimony in this record to the contrary.
Respondent's payroll on December 4 and 11, 1977,3 lists
84 to 85 unit employees. Add to this total the names of
Bainbridge, Fox, and Spitler and we have 87 employees. At
the time of the December 7 and 12, 1977, requests for rec-
ognition, the Union had valid cards from 72 employees.
Moreover, as early as December 3, 1977, the Union had 46
valid cards, a majority, and this was prior to any individual
solicitations of cards of Fox, Dunlap, and Eaton.
It is alleged in the complaint that on or about December
5, 1977, Respondent's Personnel Director Evelyn Gisel in-
terrogated employees concerning union activities. Earl Fox
testified as follows, "that day [December 5] why we had a
union meeting the weekend before that and that day, Eve-
lyn Gisel came up to me and asked me who was trying to
get the union started and I said I didn't know, but I said I
am all for it and she said, well, only you and Steve Winnicki
have enough brains to start a union." Gisel did not testify
to this inquiry about union activity attributed to her and it
stands undenied. Gisel's asking about who was trying to get
the Union started, violated Section 8(a)(l) of the Act. The
question sought the identity of one of the Union's chief
activists and interfered with employees' Section 7 rights.
It is alleged that on December 7, 1977, Respondent's
President Sanders solicited grievances and then promised to
correct them. On the date in question Sanders held a meet-
ing with the employees in the plant. Sanders testified that
on this occasion he read his talk to the employees from
notes that he had previously prepared,' but afterwards
opened up the meeting for general discussions. Numerous
questions were then asked, but Sanders testified that he in-
formed the employees that he could not address himself to
matters which were personal in nature, such as complaints
about withholding taxes and such matters, and could not
and would not make any promises to them. However, the
General Counsel produced credited testimony through em-
ployees Fox, Wingard, Vanderhoef, and Gunia revealing
that on this occasion Sanders told the employees that he
had heard of a union campaign, that he did not think there
were so many problems in the plant, and that he wished to
have the employees tell him what those problems were so
that he could try to help solve them.'
Furthermore, in the question and general discussion
phase of the meeting, as aforestated, the comments by em-
3G.C. Exhs. 13 and 14.
4 Resp. Exh. 1.
s Item 3 on Reap. Exh. I, also indicates that Sanders spoke as follows at
the December 7, 1977 meeting of Respondent's employees:
#3 No matter how large or small in number those are, who have enter-
tined the idea of a union, it indicates there are problems, at least in
some ones minds. Old fellow said, where there is smoke there is fire and
I want to help put that fire out if I can before it consumes any of us.
ployees pertained to unequal wages for the same work, low
wages, cost of living increases, insufficient inventory, and
the inadequacy of current insurance benefits-among oth-
ers. Saunder then made notes of the employees' comments
or grievances, and at least four witnesses for the General
Counsel testified that they then heard him say that he
would check into those matters and get back to them.
Sanders' remarks to the assembled employees were also
to the effect that the Union was not needed to solve em-
ployees' problems. (Respondent's Exhibit No. I. page 2 ...
"I do not like to have an outside third party involved, who
in my opinion and based on my experience, will make no
real contribution [sic] to our business.") As indicated,
Board precedent is that like language raises a promise that
an employer will correct grievances that it has solicited,
even where an employer has said to employees that it could
make no promises to remedy grievances. Landis Tool Com-
pany, Division of Litton Industries, 190 NLRB 757, 758,
enfd. 460 F.2d (3d Cir. 1971).
In the final analysis, I am in agreement that Respon-
dent's meeting of December 7, 1977, was well-timed to
counter the Union's organizing drive, and it appears that
the meeting had no other purpose but to block the organi-
zational efforts. As pointed out, Respondent's promise to
correct the December 7 complaints of its employees was
implicit, not merely in Sanders' soliciting employees' com-
plaints, but also in his writing down those complaints and
stating that he would check into them and get back to the
employees. Sanders' disavowal of any disposition to make
any promises to the employees does not, under these cir-
cuntstances, rebut the clear inference that Sanders was
promising to correct employees' complaints.
Respondent's conduct in the meeting on December 7
consisted of an implicit promise to correct employees griev-
ances solicited at that meeting, and was for the purpose of
countering the Union's organizational drive. Such conduct
violated Section 8(a)(1) of the Act.
It is alleged that on or about December 23, 1977, Re-
spondent gave its employees Christmas presents and wage
increases with a substantially greater value than any pres-
ents or wages previously given in other years, in order to
dissuade employee support for the Union.
This record shows that at the Christmas party held in
Respondent's plant cafeteria on December 23, 1977, Re-
spondent's President Sanders told the assembled employees
that they would get a 35-cent-an-hour increase in pay effec-
tive January 1, 1978, and would also be given a ham and a
smoke detector. While hams had been given in prior years,
no smoke detectors had ever been given. In previous years
the annual pay increases were as follows:
1975
1976
1977
25 cents
15 cents
25 cents
Sanders testified that Respondent had formerly been in
the smoke detector business, but it ceased this business in
1975, and that afterwards it was left with a substantial in-
ventory, and all efforts to sell the inventory were unsuccess-
ful. He stated that in September 1977 the inventory was
written off for tax purposes and from then on the smoke
detectors had a zero value on the corporate books. Sanders
880
Haupt stated that he had observed Fox getting cards signed
during working hours and was under the impression that it
was illegal for him to do so on company time, but when
Fox informed him that this was not the rule. Haupt then
told him to "hold off' while he checked on the matter.
After a delay of a day or so, he informed Fox that he had
consulted with Production Manager Miller and that there
was no problem with getting the cards signed on compan
premises so long as it was during the breaks or during the
lunch period. Fox denied that he was ever informed of the
above and testified that after Haupt told him they' would
check on the matter, he never got back to him.
The credited testimony by Fox and other circumstances
and events which will be detailed later herein reveal that
there had not been a no-distribution rule at Respondent's
Cadillac plant before or after this incident when Manager
Bill Haupt told employee Fox not to distribute union bro-
chures and authorization cards on company time. I am con-
vinced, and this record contains adequate testimony in sup-
port thereof' that the rule was created to thwart the
distribution of union materials and for no other purpose.
Therefore, the no-distribution rule of Respondent, applying
only to union material, violated Section 8(a)( 1) of the Act.
It is alleged that on or about January 4, 1978, the Com-
pany announced a newly instituted incentive or production
and attendance standard system, and granted prizes to em-
ployees who met those standards in order to dissuade the
employees from supporting the Union.
Respondent contends that the incentive system was intro-
duced on January 4, 1978. for the purpose of increasing
production and attendance, and that there was no mention
of the Union at the time of its introduction. Sanders testi-
fied that in 1973 and 1974 the Company had also instituted
a plan to provide an incentive for employees' attendance
and production and that the plant was successful.' Sanders
stated that the reason for instituting the current plan was
that a large order from Venezuela could not be met by
present production, and the fact that attendance records at
the end of 1977 were very bad. Respondent also pointed out
that the finished goods figures for November and December
1977 further indicated that production was not adequate.
Moreover, Sanders also testified that it was imperative to
maintain production because of the competitive nature of
the industry and the fact that their salesmen, who work
solely on commissions, would be "pirated" by other compa-
nies if they did not have products to sell.
The General Counsel introduced testimony through Ro-
berta Wingard to the effect that she had never heard of the
incentive program before January 1978, and that the incen-
tive program was discontinued after about 50 days.
The announcement of the incentive program rewarding
employees for attendance and production came during the
pendency of the representation petition and during the cru-
cial period between the filing of the petition and the Febru-
ary election. In view of the timing of the announcement.
Respondent's declared hostility to its employees' organiza-
tional efforts, and the failure to show persuasive economic
reasons for the incentive plan, as well as the short life of the
further testified that after he made the decision to junk the
smoke detectors, and after some employees made inquiries
about the smoke detectors, he thought it more reasonable to
give them to the employees rather than throw them away.
He stated he did not give the smoke detectors to the em-
ployees to affect their feelings on the Union, and he made
no reference to the Union when the smoke detectors were
distributed at the Christmas party.
The General Counsel argues that promising a wage in-
crease of 35 cents an hour effective January 1, 1978, and
giving employees smoke detectors are presumptively illegal
acts inasmuch as those acts occurred in the course of the
organizing campaign along with numerous other acts of in-
terference with Section 7 rights.
This record shows in the first instance that in past years
pay increases had been announced at Christmas time and
then made effective the beginning of the new year, and it
appears to me that this practice and custom was again im-
plemented for the period starting January 1, 1978. With
cost-of-living and inflation rates continually going up, and
everyone well aware of it, I do not believe the increase to 35
cents in 1978 from 25 cents in 1977 can be deemed discrimi-
natory. Secondly, there is testimony in this record that
Plant Manager Miller had proposed a 35-cent increase on
October 7, 1977. and that higher officials of Respondent
had determined sometime in November 1977 that the 35-
cent raise would be given effective January 1, 1978.
With regard to the smoke detectors, while Respondent
maintains that the smoke detectors had no value of any'
kind on their books, as aforestated. surely such items had
some retail value to the employees. Moreover, the gift of
smoke detectors occurred in the context of numerous other
acts of interference with Section 7 rights. In giving smoke
detectors as a Christmas present to employees under the
circumstances prevailing here, Respondent violated Section
8(a)(1) of the Act.
It is alleged that in December 1977 the Company in-
voked a too-broad no-distribution rule. The General Coun-
sel introduced testimony through Earl Fox to the effect that
in December 1977 Respondent's then production manager,
Bill Haupt, told Fox that he "could not distribute union
brochures and authorization cards on company time." Fox
testified that he had not previously heard of any rule at the
Cadillac plant with respect to the distribution of leaflets or
brochures on company time. Haupt testified that he had
two discussions with Fox within a 48-hour period, and in
his last conversation it was made clear to Fox that he could
solicit the cards on the company premises during breaks
and lunch, but not during working time.
The Board had held that a rule prohibiting solicitation or
distributions during working hours is primafacie susceptible
of the interpretation that such activity is prohibited during
all business hours, and thus invalid. However, an employer
may show by extrinsic evidence that, in the context of a
particular case, the "working hours" rule was communi-
cated or applied in such a way as to convey an intent
clearly to permit union solicitation and distributions during
breaktime or other periods when employees are not actually
engaged in the performance of their work tasks.' Manager
'See House of Mosaics. Inc.. Subhsidiar of Thomas Industries, In,. 215
NLRB 704 (1974).
There is also some estimony in this record that the prior attendance
point system was related ito the IAW election then In process
REXAIR, INC. 881
DEC(ISIONS OF NATIONAL. LABOR RELATIONS BOARD
plan, the sudden announcement and immediate implemen-
tation of the incentive plan here in ques tion must be
deemed violative of the Act.
It is alleged that in early January 1978 agents of Respon-
dent interrogated employees concerning their desires for
unionization and their knowledge of the union activities of
other employees.
In January 1978, Production Manager Haupt asked em-
ployee Barbara Gunia why she wanted a union and ex-
pressed his opinion that a union would not benefit the em-
ployees. This testimony by Gunia stands undenied in the
record and must be deemed violative of the Act.' During
the middle of January 1978, Respondent's Management
Consultant Harold Craft inquired of Earl Fox why he was
working so hard for the Union.9 Such statement or question
must also be deemed coercive. In early or mid-January
1978, Personnel Manager Gisel asked employee Fox about
the level of attendance at the previous night's union meet-
ing. I am in agreement with the General Counsel that this
inquiry was a clear signal to an employee that Respondent
had their union activities under surveillance, and I so find.
It is alleged that on or about January 12, 1978, Manage-
ment Consultant Craft promised promotions if the organi-
zational activities were unsuccessful, and that on the same
date Craft also threatened discharges and loss of benefits if
the Union were successful. Fox testified that at the time
Craft asked him why he was working so hard for the Union,
as aforestated, he then told Fox that he would have a better
chance for advancement with Respondent. I am in agree-
ment that this was an implied promise that the Company
would reward Fox for abandoning the Union. Fox further
testified that at a meeting on or about January 12, Craft
told him and the other leaders that, as supervisors, they
could be fired whether or not the Union was successful in
its organizing attempt or was unsuccessful in its efforts.
Again, the implications were that the Union offered Fox no
protection and there was the threat of discharge, especially
since Fox did not consider himself a supervisor, and, in fact,
was not a supervisor.
It is alleged that on or about January 20, 1978, Respon-
dent announced and instituted a wage increase. Fox testi-
fied that approximately a week after January 12, 1978, Har-
old Craft told him that there had been an inequity among
the first rank supervisors, and as a result each one of them
would receive a 15-cent-per-hour wage increase except for
Bainbridge, who would receive a 20-cent increase. Admit-
tedly, these hourly pay increases were made on Hal Craft's
recommendation-Fox and Bainbridge were at $3.60 and
Kimbel and Spitler went to $3.75. I have found these indi-
viduals to be leadpersons, as aforestated, and the announce-
ment and conferral of special pay raises to these employees,
in late January 1978, during the crucial period of the union
campaign, violated Section 8(a)(1) of the Act.
It is alleged that in late January and early February 1978,
agents of Respondent condoned the circulation, during
working hours, of a petition expressing opposition to the
I The interrogation by Personnel Director Gisel of Fox has been set forth
previously herein.
Harold of Hal Craft had been retained by Respondent on or about Janu-
ary I. 1978, to give assistant concerning the union election, and he had the
principal responsibility for conducting the Company's election campaign.
Union. Fox testified that during this period in question he
observed employees Clint Holden and Lloyd Maddox dis-
tributing a petition for the Union to withdraw from the
election, and that the employees solicited were working
while Maddox and Holden attempted to obtain their signa-
tures. Fox stated that he then mentioned this matter to Re-
spondent's Labor Consultant Harold Craft and his asso-
ciate. Bill Little, but Little replied that he had not seen any
such activity. Little testified that after being advised by Fox
that Maddox was distributing the materials on company
time, he advised Maddox that he was prohibited from dis-
tributing materials during work time. Respondent main-
tains that Maddox did not receive a written reprimand be-
cause he was not personally observed by management
distributing the materials.
By all reasonable inference and deductions, the conduct
of Maddox and Holden in circulating the antiunion petition
here in question was certainly observable and especially so
when actual work was interrupted in order to get employee
signatures. Moreover, such conduct was then specifically
brought to the attention of Little and Craft. Under these
circumstances there must have been condonation and ap-
proval by Respondent in order to permit the circulation of
the antiunion petition during working time. It was stipu-
lated at the hearing that Lloyd Maddox's file contained no
written reprimand for this late January or early February
solicitation. A violation of Section 8(a)(1) also exists here.
It is alleged that on or about February 13, 1978, Respon-
dent's agent, Harold Craft, told employees that the Com-
pany intended to implement a new and improved health
insurance program in order to dissuade employees from
supporting the Union.
Shortly prior to the election on February 14, 1978, Re-
spondent's Labor Consultant Harold Craft conducted nu-
merous group meetings with the employees. The meetings
were held from February 3 to February 14. The groups
ranged in size from 7 to 15 employees, and the duration of
the meetings lasted from 3 to 3-1/2 hours and were held at
the plant on work time-so the employees were paid for the
time spent at these meetings.
Respondent contends that the improved health insurance
program was considered as early as October 1977, and had
been discussed between Sanders, Miller, and Milton H.
Shaw. director of corporate service of Rexair's parent cor-
poration, and that the Company in the past had instituted
changes in the insurance program when necessary. Craft
testified that in these numerous meetings he held with em-
ployees in February he made reference to Respondent's in-
surance program, that questions were asked about it, and
he informed employees that certain changes in the program
had been previously considered prior to any union activity.
and while the new improvements had not yet been com-
pleted-life insurance coverage, maternity benefits, room
and prescription allowances, had been increased. Craft also
testified that in discussing insurance matters at these group
meetings he further told employees that it was a part of the
total economic package and would be subject to bargaining,
and indicated that the employees could either get more or
less insurance depending upon what the Union negotiated
bor, that the Union would also be interested in obtaining its
own insurance program. This record shows that Craft, in
882
Respondent's internall correspondence on the manage-
ment level reveals that there were efforts by Sanders to ob-
tain cost quotations in order to update Respondent's Group
IHospitalization package. and such efforts predate the
Union's representation petition, but this correspondence re-
lates only to inquiries about costs of increased insurance
coverages and in no way indicates that the increases had
been contracted for.':
At the time of the announcement by Respondent in Feb-
ruary of improved insurance coverage, no such terms had in
any way been integrated into the existing insurance pro-
gram, nor is there any evidence that the initial inquiries, as
aforestated. were implemented on the basis of such inquir-
ies. In the final analysis. Craft admitted that Respondent's
improved insurance plan had only been "worked on" be-
fore the Union's representation petition "and that it had
not been completed yet."
In view of the above. I conclude and find that the nature
and timing of the insurance announcement here in question
was triggered or revitalized in response to the campaign by
the Union, and therefore violated Section 8(a)( I1.
It is alleged that on or about February 13. 1978. Respon-
dent. by and through its agent. Harold Craft. told its em-
ployees that Respondent would begin bargaining from the
minimum wage and that employees could lose existing
benefits should the Union be successful in its organizational
efforts. and it did so in order to convey the impression to
employees that their support for the Union would be futile.
The General Counsel presented credited testimony as to
this allegation through several witnesses.' Lois Vanderhoef
testified that on February 13, 1978, at one of the small
group meetings conducted by Craft and Sanders. Harold
Craft stated "if the union got in, it (the insurance) would go
in the waste basket and we would start from scratch." She
also testified. "We were told that we could bargain our
wages and benefits away." Employee Barbara Gunia recalls
that Craft said "that we could lose some of our benefits that
we already had. We could bargain them away." and that
the Company could start bargaining from the minimum
wage. Roberta Wingard testified that Craft told her on or
about February 13. 1978, that if the Union were successful,
they would start bargaining at $2.65 an hour. Earl Fox tes-
tified that in mid-January 1978, Craft informed him that if
the Union did get it the Company would start bargaining
from the minimum wage, and that the insurance policy
could go into the wastepaper basket, as aforestated.
Harold Craft testified that he never told employees that
he would start bargaining from the minimum wage, but
merely that the wages would be the subject for negotiation
and that nobody could tell what the results of the negotia-
12 See Resp. Exhs. 6 and 7.
3 The facts found herein are based on the record as a whole upon my
observation of the witnesses. The credibility resolutions herein have been
derived from a review of the entire testimonial record and exhibits with due
regard for the logic of probability, the demeanor of the witnesses, and the
teaching of N.L.R.B. v. Walton Manufacturing Compoan & ganville Pants
Co, 369 U.S. 404 (1962). As to those witnesses testifying in contradiction of
the findings herein, their testimony has been discredited, either as having
been in conflict with the testimony of credible witnesses or because it was in
and of itself incredible and unworthy of belief. All testimony has been re-
viewed and eighed in the light of th entire record
his discussions with group employees. used charts to illus-
trate the bargaining process, the last page of which depicts
an economic package which includes insurance as a benefit.
Craft also used the NLRB Handbook in explaining the bar-
gaining process and stated that he allowed the employees to
study the Handbook if they so desired.'
Employee Earl Fox had four meetings, about a week
apart, with Harold Craft beginning on or about January 12,
1978. At the third such meeting, in the presence of employ-
ees Floyd Sutton and Harvey Williams, Hal ('raft spoke
about insurance as follows, according to ox. "ial ('raft
was telling us about an insurance policy that the Company
had been working on, as he told me, before the union cam-
paign had begun and he said so this is legal for us to show
to you. On this paper he had written down on. the improve-
ments were better improvements on maternity and a better
life insurance and prescription drugs. And he said. but if
the union get in, he said- he made a motion towards the
waste paper basket, and said if the union gets in, you'll have
to negotiate for it." Fox explained that when ('raft made
his "motion" over the wastepaper basket, it was "like he
was going to drop the paper into the wastepaper basket."
Fox also stated that previous to this discussion he had not
heard of any announcement that the Company was con-
templating improvements in its insurance coverage or bene-
fits.
Employees Roberta Wingard and Lois Vanderhoef testi-
fied that on February 13, 1978, Craft spoke to employees in
a meeting at the Cadillac plant about an insurance plan
Respondent had been discussing before the Union cam-
paign. Wingard also stated that she had never heard of the
contemplated improvements in the insurance plan before
this meeting. Vanderhoef testified that in the group meeting
she attended, Hal Craft was showing them a copy of the
insurance plan they were working on and told them that if
the Union got in--"it would go in the waste basket and we
would start from scratch."
From a review of the decisions evidencing present Board
policy in this area, it appears that preelection an-
nouncements of upward revisions in employment terms.
here increased insurance coverage, are presumptively un-
lawful even if based on determinations made prior to the
advent of union activity. However, the presumption is re-
buttable. Thus, an employer is free to include such refer-
ences if he can demonstrate either (1) that such an-
nouncements were limited to terms already integrated into
the existing benefit structure, or (2) at a minimum, that the
original determination to grant the prospective benefits was
followed up and implemented by a chain of events during
the period proceeding any union activity, to dispel notions
that the ultimate implementation was accelerated because
of union activity, or that union activity prompted a revital-
ization of a since-abandoned determination to grant such
benefits." Thus, in order for Respondent to prevail in the
instant case, the facts must demonstrate that the insurance
benefits announced in February 1978 were privileged under
either of the standards set for above.
'°0 Sec Resp. Exhs. 13 and 15.
' See Arrow Elastic Corporation, 230 NLRB 10 (1977).
RE:XAIR. IN(. 883
I)l4t'ISI()NS O()NAI. INS OF NAB IONAI. LAOR RL.A IONS OARI)
tions would be. [hen, according to ('raft, at his mock bar-
gaining sessions conducted by him and another employee at
his February group meeting with employees, he started bar-
gaining on behalf of a hypothetical company at $2.95 per
hour. and the bargaining session ended up at $3.30 per
hour, a rate higher than many employees presently working
at the Company were making. In explaining all of this to
the employees. he also used the chart (Resp. Exh. 13) which
does not even include $2.65., the then current minimum
wage. Craft further denied that he told the employees that
the Company would bargain from scratch and that he, as a
labor relations consultant, knew of the significance of this
term.
Remarks and statements by Craft that Respondent's in-
surance plan, improved or not, could wind up in the waste-
basket if the Union was successful, is an unlawful threat to
the loss of an existing benefit, and was a violation of Section
8(a)(1) of the Act. I am also in agreement with the General
Counsel that the mock bargaining sessions conducted by
Craft could reasonably have left the employees with the
impression that support of the Union also carried a risk that
even in contract negotiations, existing rates of pay might be
lost or lessened in that Respondent would take an adament
position. In so doing, Respondent thereby again threatened
employees with the loss of existing benefits or pay if they
chose the Union to represent them, and this would be espe-
cially so for employees who were receiving wage rates ex-
ceeding the minimum wage.
It is alleged that on or about February 14, 1978, Respon-
dent promised its employees that it would improve their
benefits if the Union was unsuccessful in its organizational
efforts.
On the day of the representation election, February 14,
1978, Respondent's President Sanders spoke to employee
Roberta Wingard. She describes the incident as follows,
"Well, I was taking some paper down to where we stack it
and Mr. Sanders stopped and was talking and he said that
he would like a chance to solve all our problems, but that
he couldn't do anything right then because his hands were
tied because of the union and that he would like, a chance
to solve them."
Employee Barbara Gunia testified that on February 14.
1978, Sanders told her that "he wanted a second chance to
prove that he could do some of the stuff he promised."
Although Sanders testified in this case, 1 am unable to
find any denial of the above statements attributed to him.
The clear import of Sanders' remarks to the above em-
ployees was that, if they voted against the Union, Respon-
dent would then have the opportunity to confer benefits on
them. This conduct also violated Section 8(a)(1 ) of the Act.
It is alleged that on or about February 15, 1978, Respon-
dent instituted a new job posting procedure in order to re-
ward employees for having voted against the Union. Bar-
bara Gunia testified that the day after the election there
appeared on the bulletin board at the Cadillac plant, a job
posting to the effect that if the Company had an opening in
a job that was not in the employees' department or any-
where in the shop, the employee could still sign up for it
and management would then decide who would get the job.
Gunia stated that before this she had never seen a job
posted.
lIabor Consultant -larold ('raft testified that after the
election he received a call from Respondent's director. Eve-
lyn (isel, who infilrmed him that the Company had an
opening fltr a particular job and asked him what the proper
procedure was for filling this position. lie stated that a dis-
cussion then ensued concerning the usual procedure, and
G(isel indicated that she would normally take the seniority
list, since she knew the skill levels of the plant employees,
and would go around to employees by seniority and ask if
they were interested in the job. She would then take the
best qualified person and put him or her on the job. How-
ever. ('raft suggested fllowing the procedure that he gener-
ally advises his other clients to follow i.e., to post the job
opening. and this method would allow those interested to
make their bids.
In the final analysis, the testimony of both ('raft and
(iunia was to the eftect that prior to February 15, 1978,
Respondent did not advertise job openings by posting.
Gunia had never seen such posting before February 15,
1978, and (raft then admitted that prior thereto Gisel only
publicized job openings by personal solicitation of senior
employees. Iherelore, the posting of jobs represented a de-
parture from past practice. I am in agreement with the
General Counsel that the timing of the new procedure sug-
gests that it was a reward to the employees for the anti-
union vote, and under such circumstances violated Section
8(a)(l I) of the Act.
It is alleged that on or about March 6. 1978, through its
agent, Evelyn Gisel, Respondent ratified and condoned the
circulation of a petition during working time requesting
that the Union withdraw the charges and objections in the
instant case, and that on the same date Gisel interrogated
employees as to who had signed this petition.
This record shows that on the above date a petition was
circulated among the employees at the Cadillac plant to
request withdrawal of the unfair labor practice charge in
the instant case, and the objections to the election in the
related representation case.'4 Lois Vanderhoef testified that
she observed Lloyd Maddox passing around the petition
here in question and that he did so on working time. More-
over, she also heard Evelyn Gisel ask employee Denise
Carlson which employees in that part of the plant did not
sign the petition. Denise Carlson testified, but did not con-
trovert Vanderhoefs testimony about the circulation of the
antiunion petition, and Evelyn Gisel did not testify.
It is obvious from the above that the antiunion petition
was circulated during working hours, and it stands un-
denied that Personnel Director Evelyn Gisel was aware of
that petition and asked an employee about the progress of
the circulation." Obviously, Respondent condoned and
ratified the circulation of the petition during working hours,
and this conduct also interfered with the employees' exer-
cise of their Section 7 rights, and I so find.
It is alleged that on or about February 6, 1978. Respon-
dent told certain employees that they could not leave their
" See G.C. Exh. 15.
' This incident also adds weight to my earlier findings that Respondent
did not have a no-distribution rule preventing solicitation and distributions
on company time.
884
REXAIR. INC.
work areas for any reason and did so because of these em-
ployees' activities on behalf of and in support of' the U nion:
and it is further alleged that on or about February 22. 1978,
Respondent. by and through its agent, Clark Masters. told
employees that they could not talk to other employees be-
cause of these employees' activities on behalf of and in sup-
port of the Union.
Earl Fox testified that on the morning of February 6.
1978, President Sanders and Production Manager Clark
Masters approached him in his working area, and Sanders
then told Fox that he was confined to his work area, that he
was not to leave that area for any reason whatsoever, and
that he was to request necessary stock or maintenance frorn
Masters. Fox stated that prior to this incident there was no
rule prohibiting him from going to other parts of the plant
for stock and maintenance. ('lark Masters wrote a memo on
the above-described incident, relative to Fox leaving his de-
partment, and entered that memo in Fox' file as a warning
notice.'"
Earl Fox testified that on February 22, 1978, on his wal
back from the restroom, he stopped flr a few minutes and
talked to another employee and while so doing was ob-
served by Personnel Director Evelyn Gisel. Hie stated that
shortly thereafter Clark Masters came by and told him he
was not to leave his work area and was not to talk to ans-
body except maintenance people, stockboys, and supervi-
sors. Later in the day Clark Masters gave Fox a written
reprimand and explained that this was his second warn-
ing. Referred to therein was the February 6, 1978. incident.
Production Manager Masters testified that he did tell
Fox not to move out of his work area when he saw him
talking to employees in an area where he had no reason
being.
It appears to me that there was a clear violation of Sec-
tion 8(a)(1) when on February 6, 1978, Sanders told em-
ployee Fox, a known adherent for the Union, that he could
not leave his work area for any reason, and especially so
since there were no prior restrictions on Fox in moving
about the plant. This restriction, of course, would substan-
tially reduce the opportunities to contact other employees.
It will also be recalled, as pointed out earlier herein, that
Maddox roamed the plant with an antiunion petition early
in February and in March 1978, but without reprimand or
notation in his personnel file. It is also well established that
restricting a principal union adherent to his workplace, in
order to seal him off from other employees, is violative of
Section 8(a)(3) of the Act.'8 Moreover, the reprimand issued
to Fox on February 22, 1978, referred to the February 6,
1978, restriction. Therefore, the latter reprimand was a con-
tinuation of Respondent's earlier interference with Fox'
Section 7 rights, and the February 22 reprimand, as also
pointed out, violated Section 8(a)(3) of the Act as punish-
ment to Fox for having broken a rule operating against
union adherents only.
It is finally alleged that on or about June 29, 1978,
through Plant Manager Arthur Miller. Respondent told
employees that they were ineligible for pay raises or promo-
" G.C. Exh. 19.
" G.C. Exh 12.
" See General Electric Wiring Devices, Inc.. 184 NLRB 837. 845 (1970)
tion to salars status because the' helped the non dtrill
the investigation of the instant charges.
l:arl [ox stated that on the above-mentioned dte ile lad
two or three other leadpersons talked to Manager Miller on
hearing that an hourly employee had been salaried Mnl ptll
on supervision. Miller was asked wh the same could not he
done for Fox and others with him. Miller then replied and
told them that a;t the present their hands were tied until the
instant charges were settled in one wa,' or allother. I hen
Manager Miller turned to Earl [-ox and stated. "'Well. sotu
can't really expect ulS to give (ou an111 Inciea.C ill Nailir', o
wages or salary you, especially when ou were palt of the
charges against the compan., and I Fox] said. well I didn't
file the charges. I said the union did and he said I knowu
that, and he said hut ou told the union about it. the
charges and they went ahead and filed them."
It is again obvious that Respondent vilated Section
8(a)( I ) of the Act when Manager Miller stated to employee
Fox that the latter vould not be promoted to salar status
because of his activities on behalf of' the I nion.
I'he remaining issue in this case is whether a bargaining
order is warranted on the authorit of V I.. R.B . (;i /
Pai' inl ( ., 1,i., 395 I'S. 575 (19')69. A set tfIrth prexl-
ousls herein, the ilion has requested recogInitlotti 1 .111
appropriate unit in which it represented ia mnIalilt\ .o the
employees.
In the instant case Respondent committed untir lab;r
practices which clearly have had "the tendene t under-
mine mjority strength and impede the electioln processes.
N...R. B. v. Gissel Packing (Co.. I.. supr. It also aippears
that "the possibility of erasing the effects of past practices
is slight." and thus a bargaining order, rather than
another election, would best protect emplo ee sentiment ais
indicated by the authorization crds.
As fully outlined earlier herein, emplotees were fre-
quently interrogated concerning various union activities,
grievances were solicited with promises to correct them.
Christmas presents of an unusual nature were gi' en. a too-
broad no-distribution or solicitation rule was invoked. a dis-
criminatory incentive program \was implemented. promo-
tions were promised, emploNees were threatened with di,-
charge, wage increases were gi en, on two occasions the
circulation of an antiunion petition on work time was con-
doned, a new or improved health insurance plan was an-
nounced to dissuade employees, loss of existing benetits
were threatened and later improved benefits were promised.
a new method of the job posting procedure was imple-
mented, employees were restricted to their work areas and
reprimanded when seen talking to others, and employees
engaging in union activities were ineligible tor promotions.
In accordance therewith I am of the opinion that the
possibility of erasing the effects of the (Company's unfair
labor practices and insuring a fair election hb the use of the
traditional remedy of a cease-and-desist order is slight and
that in this case the employees sentiment expressed through
the authorization cards obtained by the inmon would, on
balance, be better protected by a bargaining order. and I
shall therefore recommend that such an order shall issue."
*' I1 has been established that iolati.ons it Sec 8la( I. t severe rnILgh.
warrant a bargaining order under Gistel See he Board'% reccnl dccilion n
The (remnt .4tlanitl i& Paciit 7a ( .mam, Irn, 2301 NI R 7h6 (i9771
I)t('ISI()NS OF NATIONAL LABOR RI.AIIONS BOARI)
In the final analysis. Respondent's unlawful conduct.
which commenced on or about l)ecember 5, 1977. impeded
the election process. undermined the Union, and destroyed
its majority status. Thus, unlawful conduct can be remedied
only by an order requiring Respondent to bargain with the
Union as of ) December 5. 1977. the date on which Respon-
dent embarked on its unlawful conduct and on which it also
had a majority.
Timi RM Imi)Y
Having found that Respondent has engaged in unfair la-
bor practices in violation of Section 8(a)( 1), (3), and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and take certain affirmative action de-
signed to effectuate the policies of the Act.
Having found that Respondent has unlawfully refused to
bargain collectively with the Union, I shall recommend
that, upon request, it be ordered to do so concerning rates
of pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, embody
such understanding in a signed agreement.
CON(C'.USIONS 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. By engaging in conduct described and detailed in sec-
tion III, above, Respondent has engaged in and is engaging
in unfair labor practices within the meaning of Section
8(a)(1) and (3) of the Act.
4. The unit set forth herein constitutes a unit appropriate
for the purpose of collective bargaining within the meaning
of Section 9(b) of the Act.
5. On or about December 3, 1977, and at all material
times thereafter, the Union represented a majority of em-
ployees in the appropriate unit, and has been the exclusive
representative of said employees for the purpose of collec-
tive bargaining within the meaning of Section 9(a) of the
Act.
6. Respondent has refused to bargain with the Union in
violation of Section 8(a)(5) of the Act.
7. The above-described unfair labor practices affect com-
merce within the meaning of Section 2(6) and (7) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER2O
The Respondent, Rexair, Incorporated, Cadillac, Michi-
gan, its officers, agents, successors, and assigns, shall:
20 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.
I. Cease and desist from:
(a) Interrogating employees concerning their union ac-
tivities membership, and sentiments.
(bh) Soliciting grievances and promising to correct them.
(c) Giving Christmas presents not previously given.
(d) Invoking a too-broad no-distribution rule.
(e) Announcing and implementing a production and in-
centive program.
(f) Conveying the impression of surveillance of union ac-
tivities.
(g) Promising promotions.
(h) Threatening employees with discharge.
(i) Instituting wage increases.
(j) Circulating and condoning petitions opposing the
Union.
(k) Announcing a new and improved health insurance
program.
(I) Threatening loss of existing benefits.
(m) Promising improved benefits.
(n) Instituting a new job posting procedure.
(o) Restricting employees to their work areas and giving
reprimands.
(p) Informing employees that they are ineligible for pro-
motions to salary status.
(q) Refusing to bargain collectively concerning rates of
pay, wages, hours, and other terms and conditions of em-
ployment with the Union as the exclusive bargaining repre-
sentative of its employees in the appropriate unit as de-
scribed and set forth herein.
(r) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights to self-
organization to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed in Section 7 of the Act, or to refrain
from any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Recognize, effective from December 5, 1977, and
upon request, bargain collectively with the aforesaid Union
as the exclusive representative of all the employees in the
above-described unit, and if an understanding is reached,
embody such understanding in a signed agreement, pro-
vided, however, that nothing herein shall be construed to
require Respondent to vary or abandon the wage rate or
benefits changes made, or to prejudice the assertion by its
employees of any rights they may have emitting therefrom.
(b) Restore the working conditions enjoyed by Earl Fox
prior to February 6, 1978, and remove from his personnel
file the warnings or reprimands given to him relative to the
incidents on February 6 and 22, 1978.
(c) Post at its place of business in Cadillac, Michigan,
copies of the attached notice marked "Appendix."" Copies
of said notice, on forms provided by the Regional Director
21 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 Judg-
ment of the United States Court of Appeals Enforcing an Order of the Na-
tional Labor Relations Board."
886
REXAIR. INC.
for Region 7, shall, after being duly signed by Respondent's
representative, be posted by it immediately upon receipt
thereof and be maintained for a period of 60 consecutive
days thereafter in 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.
887
(d) Notify the Regional Director for Region 7, in writ-
ing. within 20 days from the date of this Order. what steps
have been taken to comply herewith.
IT IS FIIRItIER ORDFRI)t that the election held on Febru-
ary 14. 1978. be set aside, and that the petition in Case 7
RC- 14644, be dismissed and that all proceedings held in
connection therewith be vacated.