Ring Metals Co.

National Labor Relations Board - Board Decisions

Aug 22, 1972

198 N.L.R.B. 1020 (N.L.R.B. 1972)

1020 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ring Metals Company and District No. 9, Internation-
al Association of Machinists and Aerospace Work-
ers, AFL-CIO. Case 14-CA-6354
August 22, 1972
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
KENNEDY AND PENELLO
On October 29, 1971, Trial Examiner Arnold
Ordman issued the attached Decision in this pro-
ceeding. Thereafter, the General Counsel filed
exceptions and a supporting brief, and the Respon-
dent filed an answering brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the Trial
Examiner's Decision in light of the exceptions and
briefs and has decided to affirm the Trial Examiner's
rulings, findings, and conclusions and to adopt his
recommended Order only to the extent consistent
herewith.
The Respondent is engaged in the manufacture of
metal frames, rings, and related products at its plant
in St. Charles, Missouri. The St. Charles plant had
been in operation approximately a year when the
initial union organization began on July 6, 1971. On
that date Machinists representatives distributed
handbills to employees outside the plant attached to
which were union authorization cards. On July 9,
1971, the Union received through the mail signed
and dated authorization cards from 9 of the 10
employees working in the production and mainte-
nance unit' at the plant. On July 12, 1971, union
representatives visited the plant for the purpose of
meeting with Plant Manager Ferrante but found that
he was on vacation and left for his attention a written
request for recognition of the Union.
The next day Ferrante returned from his vacation,
learned of the demand, and addressed the employees
in the lunchroom at the close of their lunch break.
Ferrante told the employees that he understood that
they had been approached by the Union and asked
,whether they were committed in any way to the
Union at that time . Ferrante told the employees that
he had nothing against the Union and could not tell
the employees what to do, but then offered his
opinion that it would not benefit the employees to
have a union. Ferrante explained that Respondent
was a small company and was having a hard time
1 We find, in accordance with the stipulation of the parties, that the
Respondent's production and maintenance employees constitute an
appropriate unit for collective bargaining
dust keeping its head above water. He then told the
employees that he had been trying for some time to
get them more money and would continue to do so.
He said that he was going to meet with the Company
that night and would renew his attempts to get the
employees more money, an incentive plan, and a
profit-sharing plan. However, in view of Respon-
dent's economic situation at that time, Ferrante
asked the employees if they would be willing to wait
until December for their raises . Ferrante then
informed the employees that, if they had any
complaints, they should bring them to him because
that was what he was there for, to handle employee
grievances and complaints. Ferrante then suggested
that the employees appoint a spokesman to transmit
their grievances to him.
That afternoon the employees discussed Ferrante's
proposals among themselves and appointed Hays as
their spokesman. Immediately after the afternoon
break period, Hays approached Ferrante and in-
formed him that the employees were not interested in
the proposed incentive plan but definitely wanted an
hourly wage increase. Ferrante told Hays that he
would write that down because he was going to the
meeting with the Company that night and reminded
Hays that, if there was anything else, to come to him,
because he would take all of the employees'
grievances or complaints. Ferrante then asked Hays
what she thought, in response to which she related
her personal opinion about the consequences of
unionization 2 and added that the group had decided
to talk to the Union but also to await Ferrante's
answer from the Company. The following day
Ferrante came up to Hays at her work station and
told her that he had talked to the Company, that
management was seriously considering the employ-
ees' proposals, and that a decision would be made
the following week.
On July 23 Ferrante approached Hays with a letter
from the Board's Regional Office containing the
charge which had been filed in this case and the
Board notice regarding a representation petition
which had been filed by the Union. Ferrante told
Hays that he had asked the Company about the raise
as he had promised but that the Union had filed a
petition for a vote and also had filed some unfair
labor practice charges against the Company and
until these matters were cleared up the Company
could not offer any type of salary increase or other
benefits and that his "hands were tied."
On these facts the Trial Examiner concluded that
the General Counsel had failed to prove the
allegations of the complaint and recommended that
2 Hays testified that Ferrante asked her "what [she] thought ." Ferrante
testified that Hayes volunteered her personal views of the consequences of
unionization
198 NLRB No. 143
RING METALS COMPANY 1021
the complaint be dismissed in its entirety. The
General Counsel contends that the Respondent
violated Section 8(a)(1): (1) by Ferrante 's interroga-
tion of the employees at the meeting on July 13
regarding their committments to the Union; (2) by
Ferrante 's statement at the same meeting regarding
wage increases , an incentive plan, and a profit-
sharing plan ; (3) by Ferrante ' s request that the
employees bring their grievances and complaints to
him; (4) by Ferrante 's interrogation of employee
Hays, and (5) by Ferrante 's statement to Hays on
July 23 that the Respondent could not offer wage
increases or other benefits because of the filing of
unfair labor practice charges and a petition for an
election by the Union . The General Counsel further
contends that the Respondent violated Section
8(a)(5) of the Act by its refusal to bargain and that a
bargaining order is warranted because the unfair
labor practices have precluded the holding of a free
and fair election.
Contrary to the Trial Examiner we find that
Ferrante 's inquiries with regard to whether the
employees were committed to the Union and to Hays
with regard to what she thought clearly constitute
instances of unlawful interrogation and must be
considered as violations of Section 8(a)(1) of the Act.
We further find that Ferrante unlawfully solicited
employee grievances and promised employee bene-
fits at the July 13 meeting . It is obvious that Ferrante
met with the employees on that date because of the
Union's demand for recognition the previous day.
There is no evidence that Respondent had previously
held meetings with its employees for the purpose of
discussing employee complaints and there are indica-
tions in the record that it had not. Thus Hays
testified that an employee , Alston, had remarked to
Ferrante at the meeting on July 13 "that she could
not understand why we had never had any meetings
of this type previous to this day ...." In addition,
Ferrante told the employees that he would communi-
cate their grievances to higher management that
evening , that he was there to take care of their
grievances , and suggested that the employees appoint
a spokesman to transmit grievances to him . In these
circumstances we conclude that Ferrante implied to
employees that their desires for higher wages and
other benefits would be taken care of, and where, as
here, an employer who has not previously had a
practice of soliciting employee complaints, institutes
such a practice to coincide with an organizational
campaign , the employer has engaged in improper
interference with his employees ' freedom of choice in
violation of Section 8(a)(1).3
We further find that Ferrante 's announcement to
Hays on July 23 that any benefits would have to be
withheld because of the filing of the charges and the
election petition was unlawful. On July 13 Ferrante
told Hays that he intended to present the employees'
request for wage increases at a meeting with
Respondent that evening. On the following day
Ferrante reported to Hays that the Respondent was
seriously considering the employees' request and
would report back to Hays the following week. On
July 23 Ferrante told Hays that because of the filing
of the unfair labor practice charge and election
petition by the Union, the Respondent's hands "were
tied" with respect to this matter and there would be
no increases until these matters were settled.
In our opinion the plant manager 's entire course of
conduct, with respect to the increase, was calculated
to lead employees to believe that wage increases
would be forthcoming upon rejection of the Union.
The wage increase question was viewed by all parties
as a highly significant issue . Ferrante, through his
conversations with Hays, led employees to believe
that higher management would give careful consider-
ation to his request for an increase, that a determina-
tion would be made shortly, and that the employees
would then be informed of management 's determina-
tion. At the appointed time, Ferrante approached
Hays and without stating that management had
rejected the increase on economic grounds merely
indicated that no increase would be forthcoming
until the union matter was settled. From this,
employees would rightly have assumed that manage-
ment had not rejected the increase on economic
grounds, but that the Union's presence was the only
obstacle to realization of these benefits.
In these circumstances Ferrante's announcement
that any benefits would have to be withheld because
the Union had filed unfair labor practice charges
against Respondent was improper interference with
the employees' Section 7 rights and violative of
Section 8(a)(1).4
We do not believe, however, that the violations of
Section 8(a)(1) we have found herein are sufficient to
justify the issuance of a bargaining order under the
standards set forth in the Gissel case .5 We have
found two instances of interrogation which, while
unlawful intrusions into the employees' rights, were
not extensive, nor were they done under circum-
stances which would have a lingering effect on the
employees. Similarly, while the solicitation of griev-
ances on the one occasion cannot be countenanced
by the Board, we are persuaded that its impact on
employees in casting ballots in a secret election
would be minimal. And while the implied promise of
benefits contained in Ferrante's discussion with the
3 Reliance Electric Company, 191 NLRB No I Company, 174 NLRB 770
4 Sinclair & Rush, Inc, 185 NLRB No 9, The May Department Stores 5 N LR B v Gissel Packing Company, 395 U .S. 575.
1022 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
employees and the later withdrawal of any benefits
which might otherwise have been granted were
violative of the Act, such promised benefits were so
vague at that point that they could not have had a
substantial effect on the employees, and would
obviously have been the subject of further effective
discussion during any future election campaign. We
therefore believe that the fact that these unfair labor
practices occurred would not have precluded the
holding of a fair election and that, in any event, any
residual effect stemming from them could be
dispelled by our traditional remedies for such unfair
labor practices. Accordingly we shall not issue a
bargaing order in this case.
THE REMEDY
Having found that the Respondent has engaged in
certain unfair labor practices in violation of Section
8(a)(1) of the Act , we shall order that Respondent
cease and desist therefrom and take certain affirma-
tive action designed to effectuate the policies of the
Act.
Upon the basis of the foregoing findings of fact
and upon the record as a whole , we make the
following:
CONCLUSIONS OF LAW
1. The Respondent, Ring Metals Company, is
engaged in commerce within the meaning of Section
2(6) and (7) of the Act.
2. District No. 9, International Association of
Machinists and Aerospace Workers, AFL-CIO, is a
labor organization within the meaning of Section
2(5) of the Act.
3. By interrogating employees with regard to
whether they had committed themselves to the
Union, by interrogating an employee about the
Union, promising benefits to the employees, with-
holding increases in wages, and informing employees
that the increases could not be considered because of
the Union, and by soliciting the presentation of
grievances to discourage its employees' designation
of a union representative, the Respondent has
interfered with, restrained, and coerced its employees
in the exercise of their Section 7 rights, in violation of
Section 8(a)(1) of the Act.
(a) Interrogating employees in any manner which
constitutes interference in violation of Section 8(a)(1)
of the Act.
(b) Promising or implying to its employees that
they will receive benefits, economic or otherwise, in
the event that they repudiate union representation in
collective bargaining.
(c) Soliciting the presentation of grievances and
indicating that such grievances will be adjusted in
order to discourage employees from designating a
union as their collective-bargaining representative.
(d) Withholding increases in wages or other
benefits from employees and informing employees
that such increases or benefits cannot be granted
because of the Union.
(e) In any like or related manner interfering with
the rights of employees guaranteed by Section 7 of
the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Post at its place of business in St. Charles,
Missouri, copies of the attached notice marked
"Appendix."6 Copies of said notice, on forms
provided by the Regional Director for Region 14,
after being duly signed by the Respondent's repre-
sentative, shall be posted by the Respondent immedi-
ately upon receipt thereof, and be maintained by it
for 60 consecutive days thereafter, in conspicuous
places, including all places where notices to its
employees are customarily posted. Reasonable steps
shall be taken by Respondent to insure that said
notices are not altered, defaced, or covered by any
other material.
(b) Notify the Regional Director for Region 14, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith.
6 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 be changed to 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
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Ring Metals Company, St. Charles, Missouri, its
officers , agents, successors , and assigns , shall:
1. Cease and desist from:
WE WILL NOT promise or imply to our employ-
ees that they will receive benefits, economic or
otherwise, if they repudiate union representation
in collective bargaining.
WE WILL NOT solicit the presentation of
grievances and indicate that such grievances will
be adjusted to discourage our employees from
RING METALS COMPANY
designating a union as their collective-bargaining
representative.
WE WILL NOT withhold increases in wages or
other benefits from our employees or inform our
employees that such increases or benefits cannot
be granted because of the Union.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce employees in the
exercise of their right to self-organization, to
form, join, or assist the above-named Union or
any other labor organization, to bargain collec-
tively through representatives of their own choos-
ing, to engage in concerted activities for the
purpose of collective bargaining or other mutual
aid or protection, or to refrain from any and all
such activities.
RING METALS COMPANY
(Employer)
Dated By
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be
altered, defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions, may be directed to the
Board's Office, 210 North 12th Boulevard, Room
448, St. Louis, Missouri 63101, Telephone 314-622-
4167.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
ARNOLD ORDMAN, Trial Examiner: This case was tried at
St. Louis, Missouri, on September 20, 1971.1 The charge
was filed by the Union on July 19, complaint is dated
August 6, and Respondent's answer August 10. The
primary issues are whether the Company, the Respondent
herein, (1) unlawfully interfered with its employees'
organizational rights by interrogation, promises of benefit,
and related conduct in violation of Section 8(a)(1) of the
Act; and (2) refused to bargain with the Union as the
representative of its employees in violation of Section
8(a)(5) of the Act.
Upon the entire record 2 including my observation of the
witnesses , and after due consideration of the briefs filed by
General Counsel and the Company, I make the following:
I All dates are in 1971 unless otherwise stated
2 Following the hearing, General Counsel filed an unopposed motion to
correct the transcript in the following particulars Page 62, line 4 , change
"Organization" to "Authorization", page 81 , line 24, change "figures" to
"figured"; page 109, line 16, change `on" to "one " The motion is granted
FINDINGS OF FACT
1. JURISDICTION
1023
The Company, a Missouri corporation, manufactures,
sells, and distributes metal frames, rings, and related
products at its plant in St. Charles, Missouri. More than
$50,000 worth of goods and materials are shipped,
respectively, to and from that plant across state lines. The
Company admits, and I find, that the Company is engaged
in commerce within the meaning of Section 2(6) and (7) of
the Act, and that the Union is a labor organization within
the meaning of Section 2(5) of the Act.
II. THE FACTS
A. The Organizational Campaign
The relevant evidence is largely undisputed. On July 6,
1971, as a result of a letter received by the Union
requesting that it start an organizational campaign at the
Company's plant, the Union distributed handbills to the
Company's employees as they were leaving the plant at
quitting time , 4:30 p.m. The handbill urged that the
employees protect their wages and working conditions, and
sign an authorization card attached to the handbill which
unequivocally designated the Union to act as their
collective-bargaining representative for wages, hours, and
working conditions. Within the next few days 9 of the 10
employees stipulated by the parties at the hearing as
constituting the appropriate unit signed such authorization
cards which were turned in to the Union.3
Thereafter, on the morning of July 12, James M.
Bagwell, business representative of the Union, accompa-
nied by Steinbeck, another union business representative,
went to the plant and spoke to a Mr. Walling. The union
representatives introduced themselves and stated they were
there to request recognition of the Union as representative
for the production and maintenance employees. Mr.
Walling replied that he was merely filling in for Nick
Ferrante, the plant manager, who was on vacation and
would return the following day. Thereupon Bagwell gave
Walling his business letter and a standard form of
recognition letter for transmission to Ferrante. Bagwell
asked Walling to tell Ferrante that the Union represented a
majority of the employees and that "he should not take any
steps whatsoever to discuss their working conditions or
anything else pertaining to their employment until he had
spoke with us." Walling said he would transmit the
message.
Two days later on July 14, Bagwell returned to the plant,
this time accompanied by Hammond, grand lodge repre-
sentative of the Union. They met with Plant Manager
Ferrante who acknowledged receiving Bagwell's business
card and his request for recognition.
According to Bagwell's testimony, the following conver-
sation ensued. Ferrante stated that he had gotten together
3 A number of the cardsigners attached their signatures on July 7 but
dated the cards July 8 pursuant to an understanding among themselves It is
clear that a majority of the employees in the appropriate unit designated the
Union as their collective-bargaining representative . No contention is made
to the contrary
1024 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with the employees, that the employees had decided they
did not need a union ; that they had only one grievance and
he took care of that. Bagwell told Ferrante that such
conduct may have been an unfair labor practice because
Respondent's bargaining obligation ran to the Union as
majority representative. Bagwell further offered to prove
the Union's majority to a neutral party. Ferrante declined,
saying he did not know whether the employees had signed
cards or not, and that the Union would have to get in the
plant through a Board election. Ferrante also said he
would not "sign the recognition." On this note, Bagwell
and Hammond left with the comment that they would be
talking to Ferrante in the future.
Ferrante's testimony as to the July 14 meeting with
Bagwell and Hammond was not materially different. On
the question whether Bagwell had offered to prove the
Union's majority status, Ferrante testified that Bagwell
said he had cards, but Ferrante did not remember Bagwell
offering "to show me any proof." Similarly, Ferrante did
not recall telling Mr. Bagwell that "we didn't need a
union," or that the employees had only one grievance
which he took care of, but did remember saying that
"whatever the problem they [the employees] had I would
take care of it."
The variance between the two versions of the July 14
conversation hinges largely on Ferrante's inability to recall
parts of the conversation. I credit Bagwell's testimony as to
this conversation.
Following the conversation Bagwell and Hammond
returned to the union office. That evening Bagwell called
an employee who told him that Ferrante had met with the
employees, had questioned them as to their union
activities, and had promised them benefits. On this basis
the Union filed the instant unfair labor practice charge
dated July 19. Bagwell on July 14 also told Forrest
Brandon, another grand lodge representative, of his
conversation with Ferrante and the following day, July 15,
the Union filed a petition for certification. The petition for
certification was withdrawn on September 3.
B. The July 13 Meeting Between Ferrante and the
Employees, and Related Matters
As Walling had indicated, Plant Manager Ferrante
returned to the plant on July 13 and was told of Walling's
conversation with the union representatives the day before.
At 12:30, at the conclusion of the lunchbreak just as the
bell rang for return to work, Ferrante appeared at the
lunch table located in the plant where most of the
employees ate, and asked the employees to remain seated
while he spoke to them.4 All the girls were present except
for one who was out on sick leave.
Ferrante stated his understanding that the employees
had been approached by the Union to organize and asked
whether the employees had committed themselves to the
Union. Employee Patricia Hays replied that they had
4 Several of the employees testified as to this meeting as did Ferrante.
The accounts vary only in minor and immaterial detail
5 Ferrante denied suggesting that the employees appoint a spokesman
for grievances but admitted stating that "anytime they had_a complaint or
suggestion to come to me as an individual or as a group and I would be glad
to take care of it for them " I regard the difference as one turning largely on
agreed to talk to the Union. Ferrante emphasized that he
had nothing against the Union and was not telling the
employees what to do or not to do. He alluded to the fact
that Respondent was a small company and that it would
not benefit the employees to have a union. It rapidly
developed that money was the main issue . Ferrante
explained that he had been trying all the time to get more
money for the employees, that the Company was having a
hard time just keeping its head above water, and that he
was going to attend a company meeting that night at which
he would again repeat his plea for more money. He also
asked the employees if they would wait until December for
raises in view of the Company's financial posture.
The employees indicated their dissatisfaction with this
proposal. The possibility of incentive raises or a profit-
sharing plan was raised by one of the employees. Other
employees rejected this suggestion . More conversation
along this vein ensued. Ferrante said he would transmit the
proposals to the Company at the meeting that night, and
asked whether there were any other gripes or grievances.
Ferrante said he was ready to entertain any grievances and
suggested that the employees could designate a spokesman
for this purpose rather than have the whole group act.5
Following this luncheon meeting, the employees at their
2:30 workbreak discussed the matter, agreed to reject
incentive and profit-sharing proposals in favor of an hourly
wage increase , and designated Patricia Hays as their
spokesman to transmit this information to Ferrante. Hays
did so immediately after the workbreak. Ferrante wrote
down the information, undertook to transmit it to the
Company, and inquired as to whether there was anything
else. Ferrante also asked Hays what she thought.6 Hays
replied for herself and added that, so far as the group was
concerned, the employees would await the Company's
answer, confer with the Union, and then make their
decision.
The following day July 14, Ferrante came to Hays while
she was working at her machine, told her that he had
transmitted the employees' proposals to the Company the
previous evening, that the proposals were receiving serious
consideration, and that a determination would be made the
following week. Ferrante said he would promptly inform
Hays as to the decision.
The following week, on July 23, Ferrante again ap-
proached Hays. Ferrante, who had some papers in his
hand, told Hays in her capacity as spokesman for the
employees that the Union had filed unfair labor practice
charges against the Company and also an election petition,
that until these matters were cleared up, the Company
could not offer any type of salary increase or any other
benefit, and that his "hands were tied." He showed Hays a
Board election notice which he proceeded to post on the
bulletin board above the plant timeclock.
differing interpretations of the particular words used . In fact , the employees
did designate Patricia Hays as their spokesman
6 Hays testified that she understood Ferrante to be asking about her
views about the Union Ferrante denied asking such a question The record
does not afford sufficient basis for finding that Ferrante interrogated Hays
as to her union sympathies
RING METALS COMPANY
At no time during any of these conversations with the
employees, or with Hays separately, did Ferrante promise.
a raise or other benefits to the employees beyond his
commitment to press the employees' demands upon the
Company. In fact, apart from 5-cent increases given new
employees after 6-week periods, no raises were given'
although Ferrante, even before the Union's organization's
began, had advised employees that he was hopeful of raises
when the Company' s financial situation improved and had
discussed such proposals with company officials.
C. Concluding Findings
1. The alleged interference, restraint, and coercion
General Counsel alleges in his complaint and urges in his
beef that the Company interrogated, promised benefits to,
and offered to take grievances from, the employees at the
July 13 meeting and engaged in like conduct with respect
to an employee in order to discourage union activity in
violation of Section 8(a)(1) of the Act.
Insofar as the meeting of July 13 is concerned, I find that
Plant Manager Ferrante's speech and comments to the
employees were not violative of the Act. In view of the fact
that Ferrante had been apprised of the Union' s organiza-
tional effort and its request for recognition, his inquiry of
the employees as to whether they were committed to the
Union does not fall in the posture of coercive interrogation
especially when couched in the context of his assurance
that he had nothing against the Union and was not telling
the employees what to do or not to do. Similarly, his
statement to the employees that he would transmit their
demands for a wage increase or other benefits to the
Company can scarcely be considered a promise of benefit
particularly in view of his recital of his previous efforts to
obtain such benefits, his report of the Company' s financial
difficulties, and his suggestion that benefits, if any were
forthcoming, were unlikely before December. In fact, the
record is clear that no benefits were promised and none
was given. The employees understood what Ferrante
plainly conveyed, namely, that he would transmit their
proposals to the Company and that he would let them
know what the Company decided. That Ferrante in this
frame of reference welcomed and even asked for other
gripes or grievances can scarcely be assimilated to an
unlawful solicitation of grievances. In sum, I conclude that
in the circumstances here presented, Ferrante's talk to the
employees on July 13 amounted to no more than a
,permissible expression of views and opinions and con-
tained neither threats of loss nor promises of benefit. See.
Texaco, Inc., 178 NLRB 434,7
Ferrante's conversations with employee Hays on July 13
and July 23 fall in the same category: Hays on the
afternoon of July 13 merely elaborated on the discussion
which Ferrante had in his meeting with the employees
earlier that day and Ferrante as before promised nothing'
more than to transmit the employees' desires to the
Company so that they could, as they had indicated, confer
with the Union as to their future action.
In the absence of any promised or previously scheduled
7 In his brief General Counsel cites numerous cases to establish that
coercive interrogation, promises of benefit, and solicitation of grievances
constitute violations of Section 8(a)(1) of the Act. This is, of course , correct
1025
wage or other benefits, Ferrante's statement to Hays on
July 23 that the filing of an unfair labor practice charge
and a representation petition precluded any grant of
benefits and that his "hands were tied" was altogether
proper. Indeed, any unilateral grant of benefits in these
circumstances could properly be regarded as an effort to
coerce the employees into rejecting the Union as their
bargaining representative. In the context of a forthcoming
representation proceeding, the Company had no other
option.
I conclude that a violation of Section 8(a)(1) of the Act
has not been established.
2. The alleged refusal to bargain
The parties stipulat8d and I find that the Company's
production and maintenance employees, with the custom-
ary exclusions as set forth in the pleadings, constituted an:
appropriate unit and that there were 10 employees in that'
unit. Nine of these ten employees signed authorization
cards, unequivocally designating the Union as their
collective-bargaining representative. The Union requested
recognition on the basis of its card showing and the
Company through its plant manager denied the request, on
the basis that it was not interested in the cards and
preferred the Board election route for determination of the
Union's status.
On settled principles (see NLRB. v. Gissel Packing Co.,
395 U.S. 575), the issue to be resolved here is whether
under the circumstances here present a violation of the
bargaining obligation arises and a bargaining order is
warranted when unfair labor practices preclude or make
unlikely the possibility of holding a fair election. General
Counsel urges that the conduct of Ferrante in his July 13
meeting with the employees and in his separate conversa-
tions with employee Hays constitutes such unfair labor'
practices.
For reasons already stated, I have found no unfair labor
practices in these respects. Moreover, even assuming that a,
finding of unfair labor practice could be predicated on any
aspect of this conduct, I am satisfied that it does not rise to
the stature of behavior which would preclude or make
unlikely the possibility of holding a free election.
Accordingly, I conclude that a violation of Section
8(a)(5) has not been established.
I shall further recommend that the complaint be
dismissed in its entirety.
CONCLUSIONS OF LAW
1. The Company is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.'
2. The Union is a labor organization within the
meaning of Section 2(5) of the Act.
3. The General Counsel has not shown by a preponder-
ance of the evidence that the Company committed any
unfair labor practice.
RECOMMENDED ORDER
I recommend that the complaint be dismissed in its
entirety.
but in those cases, unlike the instant case , such conduct was clearly
established The instant case lacks the factual predicate for a finding of
violation.