Sacramento Clinical Laboratory, Inc.

National Labor Relations Board - Board Decisions

Jun 11, 1979

242 N.L.R.B. 944 (N.L.R.B. 1979)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Sacramento Clinical Laboratory, Inc. and Joint Coun-
cil of Teamsters No. 38, International Brotherhood
of Teamsters, Chauffeurs, Warehousemen and
Helpers of America. Case 20-CA- 13912
June 11, 1979
DECISION AND ORDER
BY CHAIRMAN FANNING AND MEMBERS JENKINS
AND TRUESDALE
On January 10, 1979, Administrative Law Judge
Richard D. Taplitz issued the attached Decision in
this proceeding. Thereafter, Respondent filed excep-
tions and a supporting brief; the General Counsel
filed cross-exceptions, a supporting brief, and a brief
in response to Respondent's exceptions; and Respon-
dent filed a brief in response to the General Counsel's
exceptions.
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 briefs
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge only to
the extent consistent herewith.
We agree with the Administrative Law Judge's
findings of violations of Section 8(a)(1) and (3) of the
Act; however, for the reasons set forth herein, we dis-
agree with his conclusion that Respondent did not
violate Section 8(a)(1) of the Act by threatening an
employee with loss of access to management if the
Union became the employees' bargaining representa-
tive, and his conclusion that Respondent did not vio-
late Section 8(a)(5) and (1) of the Act by refusing to
bargain with the Union.
As more fully detailed in the Administrative Law
Judge's Decision, the record indicates that Respon-
dent is in the business of performing clinical tests and
analysis of human body fluids for hospitals, clinics,
and doctors. On April 12, 1977, the Board certified
the Union as exclusive representative for a unit of
couriers who pick up specimens for Respondent's cus-
tomers and deliver reports back to them. Actual col-
lective bargaining did not commence until a meeting
was held in April 1978.2 A second meeting occurred
I 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 Dry 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 All dates herein refer to 1978 unless otherwise indicated.
on May 4. A third meeting was scheduled for May
16; however, on May 12, Respondent canceled this
meeting and announced its withdrawal of recognition
based on a petition signed by 6 of 12 unit employees
which indicated that they no longer wished to be rep-
resented by the Union.
On May 3 employee Deborah Keillor met with Re-
spondent's business administrator, William
McKnight, in his office. She informed him that she
was to attend the negotiating meeting on the follow-
ing day and that she "didn't know what was going
on." During the course of this conversation
McKnight told Keillor that Respondent took good
care of its employees; that a union was not needed;
that if the Union came in she would not be able to
talk to him as she had, but would have to go through
channels; and that if the Union came in employees
would no longer make their own decisions, but the
Union would make decisions for them. Keillor subse-
quently repeated the content of this conversation to
employee Pat Little. Contrary to the Administrative
Law Judge, we find that the reference to employees'
loss of access to management constituted a violation
of Section 8(a)(1) of the Act. We conclude that this
statement is a clear misstatement of employee rights
set forth under Section 9(a) of the Act and an unlaw-
ful threat of loss of benefits. C & J Manufacturing
Company, 238 NLRB 1388 (1978), Han-Dee Pak,
Inc., 232 NLRB 454 (1977). With regard to the cases
relied upon by the Administrative Law Judge as sup-
porting dismissal of this portion of the complaint, we
would point out that each case must be viewed in the
context of its own particular circumstances to deter-
mine whether a statement conveys a clear threat of
loss of benefit in violation of the Act. For example, in
K. 0. Steel Casting, Inc., 172 NLRB 1837 (1968), and
in Furnas Electric Company, 183 NLRB 1 (1970), the
references to dealing through "a third party" or with
a "middleman" do not necessarily imply that all di-
rect dealings with the employer are prohibited. How-
ever, in the instant case it is clear that Respondent
intended to convey and in fact did convey the mes-
sage that all direct dealings between the employee
and Respondent would be banned and that the em-
ployee would each and every time be forced to seek
the intervention of the bargaining representative. This
conclusion is further reinforced by the circumstances
in which the statement was made. Thus, preceding
the statement, we have a situation in which a newly
appointed member of a negotiating committee is in-
volved in a one-on-one discussion in Respondent's of-
fice on the eve of the second collective-bargaining ses-
sion ever between the parties and statements to the
effect that Respondent was good to its employees, a
union was not needed, if the Union came in employ-
242 NLRB No. 136
944
SACRAMNINTO CLINICAL LABORATORY, IN(:.
ees could not communicate directly with manage-
ment, and employees would no longer be able to
make their own decisions. Under these circumstances.
we are persuaded that a clear threat of loss of benefits
was communicated and that a violation of Section
8(a)(1) of the Act occurred.
We also disagree with the Administrative Law
Judge's conclusion that Respondent did not violate
Section 8(a)(5) and (1) of the Act when it withdrew
recognition from the Charging Party on May 12. It is
apparent that Respondent did not rebut the Union's
presumption of majority status by establishing (1)
that the Union had in fact lost majority support or (2)
that Respondent had a reasonable doubt of the ma-
jority based on objective considerations)
We find the petition signed by 6 of the 12 unit
employees which stated that they no longer wished to
be represented by the Union was tainted and there-
fore was not a reliable indicator that the Union had
in fact lost majority status. First, we note that the
8(a)(1) violation found with regard to statements
made to employees Keillor and Bielenberg occurred
before the Union's alleged loss of majority occurred,
as indicated by the petition. In this connection, we
note that the threat conveyed to Keillor was repeated
to at least one other employee.4 In addition, the rec-
ord demonstrates that Respondent was aware of and
gave tacit support to the petition, thus rendering it a
totally unreliable indication of the Union's loss of
majority status. The petition was circulated openly
during working time and with the admitted knowl-
edge of Respondent. Contrary to the Administrative
Law Judge, we place significance in the fact that
when employee Bielenberg complained to Supervisor
Anton that Morrill, the employee circulating the peti-
tion, was bothering her, Anton replied that Bielen-
berg did not have to listen if she did not want to,
thereby evidencing Respondent's total disinterest in
Bielenberg's complaint. While on the one hand giving
approval to the solicitation of signatures for the peti-
tion, Respondent also, during the same period of
time, threatened several employees concerning their
union support or activity, in violation of Section
8(a)(1) of the Act, and subsequently discriminated
against an employee because of her union support, in
violation of Section 8(a)(3) of the Act. The disparate
treatment shown by these facts evidences that Re-
spondent played more than a disinterested neutral's
role regarding the petition. Moreover, we note that
employee Morrill, while soliciting signatures for the
petition, made statements to the effect that support of
the Union might result in a loss of jobs and in this
3 Terrell Machine Companv, 173 NLRB 1480, 1481 (1969), enfd. 427 F.2d
1088 (4th Cir. 1970).
4Cf. Standard Knitting Mills, Inc., 172 NLRB 1122 (1968).
manner rendered the petition ineffective to demon-
strate the Union's loss of majority support.)
Similarly, Respondent cannot claim that it had a
reasonable doubt based on objective considerations
as to the Union's continuing majority status. The
presence of unfair labor practices prior to the with-
drawal of recognition negates any such claim. Free-
morlt .VVewspraprs. I., 179 NLRB 390 1969). More-
over, Respondent's approval of the petition rendered
it inoperable as an objective consideration.
In these circumstances, we conclude that Respon-
dent unlawfully withdrew recognition from the
Charging Party on May 12, in violation of Section
8(a)(5) and (1) of the Act.
AMENDED REMEDY
Having found that Respondent has engaged in fur-
ther unfair labor practices, we shall order it to cease
and desist therefrom and to take certain additional
affirmative action designed to effectuate the policies
of the Act.
Having found that Respondent violated Section
8(a)(5) and (1) of the Act by unlawfully withdrawing
recognition from the Union on May 12 and at all
times thereafter, we shall order Respondent to recog-
nize and, upon request. bargain in good faith with the
Union.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board hereby orders that Respondent, Sacra-
mento Clinical Laboratory, Inc., Sacramento, Cali-
fornia, its officers, agents, successors, and assigns,
shall:
1. Cease and desist from:
(a) Threatening any employee with the loss of the
right to present grievances directly to management in
order to discourage employee support of Joint Coun-
cil of Teamsters No. 38, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and Helpers
of America.
(b) Threatening any employees with denial of re-
quests for time off or denial of other benefits.
(c) Denying the request of any employee for time
off because of the activity of that employee on behalf
of that Union.
We find persuasive those cases relating to the issue of the validity of
union authorization cards to establish a union's majonty status, by way of
analogy, in determining the present issue of the validity of the petition to
establish the Union's loss of majority status. See Roney Plaza Apartments,
232 NLRB 409 (1977). Accordingly, we also conclude that the questions of
whether employee Morrill was an agent of Respondent or whether Morrill's
statements were such as would warrant setting aside a representation elec-
tion are not determinative.
945
[)ECISIONS OF NATIONAL LABOR RELATIONS BOARD
(d) Refusing to bargain collectively concerning
rates of' pay, wages, hours, and other terms and con-
ditions of employment with Joint Council of Team-
sters No. 38, International Brotherhood of Teamsters,
Chauffeurs, Warehousemen and Helpers of America,
as the exclusive bargaining representative of its em-
ployees in the following appropriate unit:
All courier drivers and warehousemen employed
by the Employer at its 2430 J Street, Sacra-
mento, California, facility; excluding office cleri-
cal employees, laboratory technicians, janitors,
guards and supervisors, as defined in the Act.
(e) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights
guaranteed them by Section 7 of the Act.
2. Take the following affirmative action to effectu-
ate the policies of the Act:
(a) Upon request, bargain with respect to rates of
pay, wages, hours, and other terms and conditions of
employment, and, if an understanding is reached, em-
body such understanding in a signed agreement.
(b) Post at its Sacramento, California, facility cop-
ies of the attached notice marked "Appendix." 6 Cop-
ies of said notice, on forms provided by the Regional
Director for Region 20, after being duly signed by
Respondent's authorized representative, shall be
posted by it immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices
to employees are customarily posted. Reasonable
steps shall be taken by it to insure that said notices
are not altered, defaced, or covered by any other ma-
terial.
(c) Notify the Regional Director for Region 20, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply here-
with.
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 read "Posted Pursuant to a Judgment
of the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board."
APPENDIX
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT threaten any employees with the
loss of the right to present grievances directly to
management or threaten any employees with the
denial of requests for time off or denial of other
employee benefits in order to discourage em-
ployee activity on behalf of Joint Council of
Teamsters No. 38, International Brotherhood of
Teamsters, Chauffeurs, Warehousemen and
Helpers of America.
WE WILL NOT deny the request of any em-
ployee for time off because of the activity of that
employee on behalf of that Union.
WE WIL.L NOT refuse to bargain collectively
concerning rates of pay, wages, hours, and other
terms and conditions of employment with Joint
Council of Teamsters No. 38, International
Brotherhood of Teamsters, Chauffeurs, Ware-
housemen and Helpers of America, as the exclu-
sive bargaining representative of our employees
in the bargaining unit described below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
WE WILL, upon request, bargain with the
above-named Union, as the exclusive representa-
tive of all employees in the bargaining unit de-
scribed below, with respect to rates of pay,
wages, hours, and other terms and conditions of
employment and, if an understanding is reached,
embody such understanding in a signed agree-
ment. The bargaining unit is:
All courier drivers and warehousemen employed
by Sacramento Clinical Laboratory, Inc., at its
2430 J Street, Sacramento, California, facility;
excluding office clerical employees, laboratory
technicians, janitors, guards and supervisors as
defined in the Act.
SACRAMENTO CLINICAL LABORATORY, INC.
DECISION
STAIEMENT OF THE CASE
RICHARD D. TAPLITZ, Administrative Law Judge: This
case was heard before me in Sacramento, California, on
October 5, 1978. The charge was filed on June 23, 1978, by
Joint Council of Teamsters No. 38, International Brother-
hood of Teamsters, Chauffeurs, Warehousemen and Help-
ers of America, herein called the Union. The complaint
issued on August 11, 1978, alleging that Sacramento Clini-
cal Laboratory, Inc., herein called Respondent, violated
Section 8(a)(1), (3), and (5) of the National Labor Relations
Act, as amended.
Issues
The primary issues are:
1. Whether Respondent violated Section 8(a)(1) of the
Act by threatening one employee with loss of benefits to
discourage union activity and by threatening another em-
946
SACRAMENTO CLINICAL LABORATORY. INC.
ployee with loss of benefits because she supported the
Union.
2. Whether Respondent violated Section 8(a)(3) and ()
of the Act by refusing to grant an employee time off be-
cause of that employee's support for the Union.
3. Whether Respondent violated Section 8(a)(5) and (l)
of the Act by withdrawing recognition and refusing to bar-
gain with the Union.
All parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, to argue orally, and to file briefs. Briefs, which
have been carefully considered, were filed on behalf of the
General Counsel and Respondent.
Upon the entire record' of the case and from my observa-
tion of the witnesses and their demeanor, I make the follow-
ing:
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
Respondent, a California corporation with a place of
business in Sacramento, California, is engaged in the per-
formance of clinical tests and analysis for physicians and
others. During the past year Respondent's gross revenues
have exceeded $500,000 and during the same period Re-
spondent has purchased goods and supplies valued in ex-
cess of $50,000 from suppliers located outside of California.
Respondent is an employer engaged in commerce within
the meaning of Section 2(2), (6), and (7) of the Act.
II. TE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
111. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
Respondent is in the business of performing clinical tests
on human body fluids for hospitals, clinics, and doctors.
Respondent employs about 160 full-time-equivalent em-
ployees. About 12 of those employees are couriers who pick
up specimens from Respondent's customers and deliver re-
ports back to those customers. For the sakes of both Re-
spondent's business and the health of its clients' patients, it
is absolutely necessary that specimens be transported to the
laboratory for analysis in prompt fashion. Respondent
therefore employs full-time, part-time, and on-call couriers.
In addition, some courier work is contracted out to other
firms, and on some occasions clients bring specimens di-
rectly to the laboratory.
On March 23, 1976,2 a majority of Respondent's courier
i Certain errors in the transcript are hereby noted and corrected.
2 The original complaint reads "March 23, 1977." During the hearing Re-
spondent pointed out that the correct date for the election was March 23,
1976, and counsel for the General Counsel amended the complaint to read
"1976."
drivers and warehousemen' designated and selected the
Union as their bargaining representative in a secret-ballot
election conducted by the 20th Region of the Board. On
April 12, 1977, the Union was certified by the Board as the
exclusive representative of the employees in that bargaining
unit. Negotiations began between Respondent and the
Union with the first meeting held in early to mid-April
1978. 4 A second meeting was held on May 4, 1978, and a
third meeting was scheduled for May 16, 1978. That meet-
ing was never held. On May 12 Respondent notified the
Union in writing that it was withdrawing recognition and
canceling the May 16 meeting. Respondent based its with-
drawal of recognition on the claim that the Union no longer
represented a majority of employees in the appropriate unit
as evidenced by a petition signed by six of those employees.
B. The Alleged Threat to Keillor
I. Factual findings
Deborah Keillor has been employed as a courier for Re-
spondent since April 1977. Her immediate supervisor is Sue
Anton. who in turn reports to Respondent's business ad-
ministrator, William McKnight.'
At the negotiating session in early or mid-April 1978, the
Union informed Respondent that an employee committee
would be present at the next meeting. About a week before
the scheduled May 4 meeting, the Union told Respondent
the names of the employees on that committee. One of
them was Keillor.
On May 3, 1978, Keillor went into McKnight's office and
told McKnight that she was one of the employees who was
going to the meeting, that her going to the meeting did not
mean she was for or against the Union, and that she was
going because she wanted to know what was going on.
McKnight told her that he was glad to hear that she was
interested in trying to find what was going on. He also told
her that the lab felt that it was taking good care of its
employees and the Union was not needed. He said that if
the Union did come in, she would not be able to come in
and talk to him the way she had and that she would have to
go through channels in order to talk to him. He mentioned
something about a shop steward. He also told her that if the
Union came in, the employees would no longer be able to
make their own decisions, and the Union would be making
all decisions for them. 6
J A full description of the bargaining unit is:
All courier drivers and warehousemen employed by the Employer at its
2430 J Street. Sacramento, California facility; excluding office clerical
employees, laboratory technicians, janitors, guards and supervisors, as
defined in the Act.
4This chronology raises a number of questions not answered in the record.
There is no explanation as to why more than a year passed between the
election and the certification and why another full year passed between the
certification and the first bargaining session. However, the complaint does
not allege and the General Counsel does not contend that these inordinate
delays were caused by misconduct on the part of Respondent.
Respondent admits and I find that McKnight and Anton are supervisors
within the meaning f the Act.
6 These findings are based on the testimony of' Keillor. McKnight in his
testimony acknowledged that the conversation took place, but he dated it in
late April, before he knew that Keillor was on the union committee Accord-
IContinued)
947
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The following day Keillor told employee Pat Little about
the conversation she had with McKnight. Within the next
week or 10 days she also told employee Shorey about the
conversation.
2. Analysis and conclusions
As found above, on May 3, 1978 McKnight told Keillor
that if the Union came in, she would not be able to come in
and talk to him the way she had and that she would have to
go through channels in order to talk to him. His reference
to the shop steward indicated that he was referring to union
channels. He also told her that the Union would be making
decisions for the employees and that the employees would
not be able to make decisions on their own.'
There are two separate lines of Board cases relating to
the lawfulness of such remarks. The two lines are diffic.ult if
not impossible to reconcile. The first line of' cases is typified
by Graber Manufacturing Company, nc., 158 NLRB 244
(1966), enfd. 382 F.2d 990 (7th Cir. 1967), in which a Board
panel, with Member Zagoria dissenting, affirmed the Deci-
sion of Administrative Law Judge Fannie M. Boyls, which
held in part:
Section 9(a) of the Act, which makes the representative
chosen by a majority the exclusive bargaining repre-
sentative of all, expressly provides that "any individual
employee or a group of employees shall have the right
at any time to present grievances to their employer and
to have such grievances adjusted, without the interven-
tion of the bargaining representative, as long as the
adjustment is not inconsistent with the terms of a col-
lective-bargaining contract or agreement then in effect:
Provided further, That the bargaining representative
has been given opportunity to be present at such ad-
justment." The employees, accordingly, have a right to
present their own grievances to their employer and
need not permit the union to talk for them to their
exclusion. The employees' statutorily protected right to
present their own grievances and thus speak for them-
selves is undoubtedly a right cherished by many em-
ployees and Respondent's statement that if the Union
became their representative it would talk to the em-
ployer about their own job affairs to their exclusion
amounted to a threat that they would lose a substantial
benefit.
ing to McKnight, Keillor told him that she had an open mind and was going
to the meeting to listen to what each party had to say; he told her that the
Company did not feel that it needed the Union and that he felt the Company
had done well by the couriers in the past and would probably do well by
them in the future; he told her about possible changes in the channels of
communication if the Union came in and that he thought things would be
different: and as Keillor was leaving he told her that he hoped that he could
continue to talk that way, whether they had a union or not. McKnight also
testified that he did not recall saying that the Union would he making deci-
sions for the employees and that the employees would not be able to make
decisions on their own. Much of the testimony of Keillor and McKnight was
mutually corroborative. Where the testimonies differed, I believe that Keil-
lor's recollection was more accurate, and I credit her above McKnight.
7 The Union had been certified a year before, and the parties were actively
engaging in collective bargaining at the time this conversation took place.
Therefore, it seems strange that McKnight was talking about what would
happen if the Union came in. It must be remembered, however, that the
election was 2 years before and that bargaining had just commenced.
The Board continued to follow the same approach in subse-
quent cases. In Howard Maonufatcuring Co., Inc.. 180 NLRB
220. 233 (1969), enfd. 436 F.2d 581 (8th Cir. 1971), a Board
panel. with Member Zagoria again dissenting, affirmed an
administrative law judge's finding that a company violated
the Act by telling an employee that she would not be able
to go to the office and to her supervisor with any problems
but would have to go through her stewards if the union
prevailed. In C. P. Lesh Paper Company, 187 NLRB 359
(1970). a Board panel, this time with Chairman Miller dis-
senting, affirmed an administrative law judge's finding that
an employer violated the Act by telling employees that if
the union came in the employees would be taking away
their own freedom of speech because they would have to go
to the union steward instead of going to the bosses. Chair-
man Miller's view was that there was nothing improper in a
Company's essentially truthful observation that, for the
most part. collective bargaining is collective rather than in-
dividual. In Cosito Graphics, Ine., 217 NLRB 1061. 1065
(1975), a Board panel, with no dissent, affirmed the Deci-
sion of an administrative law judge which held that an em-
ployer violated the Act by soliciting grievances and telling
employees that if they voted for the union, the Company
would not be able to talk to them. In Han-Dee Pak, Inc.,
232 NLRB 454 (1977). a Board panel, with no dissent, af-
firmed a Decision of an administrative law judge which
held that an employer violated the Act by telling employees
that the employees would not be able to come directly to
management with their problems if they selected the union.
It is noted that in all of the above-cited cases the "access of
employees to management" issue was a relatively minor
part of the mass of unfair labor practices that were found.
The second line of cases espouses a rather different phi-
losoph). In K. . Steel (asting, Inc., 172 NLRB 1837
(1968), a Board panel found that an employer did not vio-
late the Act when it told its employees that if the union
came in, "it would break up our home, so to speak. because
we would not he dealing together, but would have to deal
through a third party." The Board reasoned that the em-
ployer's remark did not imply that the employer would take
an) action in retaliation against its employees if they se-
lected the union and that the remark was a statement of
opinion which was devoid of threat or coercion and per-
tained to a matter relevant to union organization. In Furnas
Electric Company, 183 NLRB 1. 14 (1970), enfd. in part 463
F.2d 665 (7th Cir. 1972), a Board panel affirmed the deci-
sion of an administrative law judge which held that an em-
ployer did not violate the Act when it told its employees
that if' they joined the union, they would lose their right to
conduct their own affairs in a way that they felt was best for
them, and they would have to do business through a mid-
dleman. The administrative law judge held: "These com-
ments in my opinion do not constitute any threat of what
the Emplovyer would do if the employees joined the Union.
At most it constituted the Employer's opinion of what the
Union might do and not what was within its power to make
come true." In Allied Stores of New York, Inc., d/b/a Gertz
and United Stoeworkers, Retail Wholesale and Department
Store Union, AFL-CIO, 197 NLRB 718, 723 (1972), a
Board panel affirmed the decision of Administrative Law
Judge Ricci in which Judge Ricci found that an employer
948
SACRAMENTO CLINICAL LABORATORY. INC.
did not violate the Act by telling employees that when a
union is in the picture, employees are not able to discuss
their grievances directly with management, and problems
have to be presented to the employer through the union
steward. In that case a company official also reminded the
employees that in the past employees had brought their
problems to him personally and that that personal relation-
ship ends when it is replaced by collective bargaining under
the law. The Administrative Law Judge discussed the prob-
lem at length, holding:
The theory of illegality here urged is that because
the provisos to Section 9(a) of the Act say that employ-
ees have a right to bring grievances to the employer so
long as any adjustments made are consistent with an
existing union contract, and so long as union agents
are permitted to be present, Dowd was that day threat-
ening [his employees with loss of benefits]. .... The
decisional precedents cited by opposing Counsel in
support are divided decisions by Board panels, always
with a dissent on the point in question. Satico Meat
Packing, 182 NLRB 713; Winn-Dixie Stores. 166
NLRB 227; and Graber Manufacturing, 158 NLRB
244. And in each of these cases, the statement about
direct dealing with the employer appeared in a context
of other, more pervasive unfair labor practices, out-
right discharges, interrogations, threats of discharge.
etc. And Henty 1. Siegel, 172 NLRB 825, in which a
three-member panel agreed, dealt with an employer re-
spondent whose history of unfair labor practices was
such as to reduce virtually every, word he uttered to an
implied threat.
In contrast to the above, the Board found the following
statement a protected expression of opinion: "[If the Union
came in, the employees would have to go to a union man
. . .for adjustment of their problems." Skirvin Hotel, 142
NLRB 761. There the Board characterized the statement as
"no more than a lawful prediction that if the Union were
selected as the representative of the employees, the employ-
ees would have to work through their union representative
in resolving their grievances." Accord: Worzalla Publishing
Co., 171 NLRB 219, where the statement was that "em-
ployees would no longer be able to discuss gripes and trou-
bles directly with management if the union got into the
plant," although the employer had in the past "done every-
thing possible to find jobs for employees in other depart-
ments when work was slow, and had given valuable advice
and assistance to employees." The Board found nothing
wrong with that statement. And, finally, there is Bostich
Division of Textron, 176 NLRB 377 (1969), on which Re-
spondent here relies in its brief. The statement said to be
illegal there reads as follows:
Up until now, you had the right to speak for yourself
and settle with us personally any problems you have
had. But if this Union were to get in here, this freedom
and this right would be taken away from you and
placed in the hands of the Union. And, who would be
the stewards and committee people who would handle
your affairs? Look around you and see who is active in
pushing the Union. Are they individuals whom you
consider capable of handling your problems, and into
whose hands you would be willing to entrust your busi-
ness and your affairs.
The Board said these words did no more than state "a fact
of industrial life." The written talks read by Dowd were
obviously prepared by Respondent's counsel, and on this
point they remarkably parallel the speech appraised in Bos-
tich. But if an employer may not look to a Board decision
itself for guidance as to what it may or may not say to its
employees, where can it look?
That the very purpose of union life is to replace indi-
vidual dealings between employees and management
with group collective negotiations through employee
spokesmen and the company has been said too often to
require citation of authority now. Significantly, the
Union. which filed the charge, elected not to file a brief
and argue that the employees must be reassured of
their right to bypass an exclusive bargaining agent.
There is no question in my mind that Dowd was not
threatening anyone, but only reminding the employees
of the substantive meaning of collective bargaining,
and this is how the employees understood him.
Finally, in F. M. Broadcasting Corporation d/b/a WHLI
Radio, 224 NLRB 1540, 1545 (1976), a Board panel af-
firmed the decision of an administrative law judge which
found that an employer did not violate the Act when it told
employees that they would no longer be able to personally
present their problems to management rather than through
a union if the group chose to join a union.
I believe that the second line of cases is more persuasive
than the first with regard to the instant case. As in Allied
Store of New York, Inc., supra, the Company was not
threatening anyone, and the employees were only being re-
minded of the substantive meaning of collective bargaining.
As in K. O. Steel Casting, Inc., supra, the Company did not
imply that it would take action in retaliation against em-
ployees if they selected the Union. Rather, McKnight's re-
mark was a statement of opinion, devoid of threats or coer-
cion, and pertaining to a matter relevant to union
organization. As in Furnas Electric Conmpany, supra,
McKnight's remarks indicated his opinion of what the
Union might do and not what was within Respondent's
power to make come true. I therefore recommend that that
allegation of the complaint be dismissed.
C. The Alleged Threat to Bielenberg-Facts and
Conclusions
Donna Bielenberg was employed by Respondent as an
on-call courier in March 1977. In April 1978 Supervisor
Anton and Business Administrator William McKnight of-
fered Bielenberg a full-time courier position. She informed
them that if she accepted the job, she would need time off
on various dates because she attended craft fairs to sell jew-
elry. They told her that if she gave sufficient notice and if a
replacement could be found. she would be allowed to take
time off for craft fairs.' Bielenberg gave them a list of the
' Though there was some conflict in testimony between Bielenberg, Anton,
and McKnight on this point, Bielenberg acknowledged in her testimony that
it was her understanding that another driver would have to be found to
replace her when she was to be given time off. Both Anton and McKnight
testified in substance that Bielenberg was told that she could have the time
off if they could find someone to replace her.
949
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
days she wanted off to attend craft fairs, and thereafter she
was granted time off' on a number of occasions.
David Morrill is a part-time, on-call courier for Respon-
dent. As is set forth in more detail below, Morrill drafted
and solicited signatures on a petition which stated that the
employees did not want the Union to represent them. On
May 3, 1978, Morrill had a conversation with Bielenberg in
Respondent's courier room. He spoke against the Union
and asked Bielenberg whether she was for the Union. She
said that she was. The courier room is 15 or 20 feet square.
At the time of the conversation, Anton was working at her
desk, about 12 to 17 feet away from where Morrill and
Bielenberg were standing. Other people were in the room at
the time, and noise level in the room was high due to people
speaking and sound of the machines. Anton testified that
she did not overhear the conversation.
On May 4, 1978, Bielenberg told Anton of a fair that she
was going to attend that weekend. Anton told Bielenberg;
"By the way, you know when the Union goes through, you
will not be able to have days off for fairs any longer."9
Bielenberg did not discuss that conversation with any em-
ployee.
In mid-June 1978 Bielenberg asked Anton if she could
have July 3 off for a craft fair. Anton said that she would
see about it. On June 21 Bielenberg repeated her request for
July 3 off. At that time Anton told Bielenberg that Bielen-
berg could no longer have days off for craft fairs until the
union question was settled. Bielenberg replied that she had
been hired with the understanding that she was to have
days off for fairs as long as the Company has enough no-
tice. Anton then said that that was before McKnight found
out that Bielenberg was for the Union.'0
Later on the same day, relief driver George Young asked
Bielenberg whether he was going to have to work for her on
July 3. Anton was present at the time. Bielenberg said: ' "I
don't get anymore days off for craft fairs, because I am for
the Union." Anton then said, "Please don't get cocky about
it."
On May 8, 1978, Bielenberg approached Anton and
asked her to request Morrill to leave her alone on work
hours with regard to union matters. Anton replied that Bie-
lenberg did not have to listen to Morrill if she did not want
to.
As found above, on May 4, 1978, Supervisor Anton told
Bielenberg that when the Union went through, Bielenberg
would not be able to have days off for fairs any longer. That
constituted a threat to remove a work benefit if the employ-
ees selected the Union to represent them. As such it vio-
lated Section 8(a)(1) of the Act. If there were any doubt
9 This finding is based on the testimony of Bielenberg. Anton, in her testi-
mony, denied that any such conversation took place. After observing Bielen-
berg on the witness stand, I do not believe hat she manufactured the exis-
tence of the entire conversation. Anton's total denial was unconvincing, and
I credit Bielenberg.
'°This finding, as well as others discussed below relating to conversations
between Bielenberg and Anton, is based on the credited testimony of Bielen-
berg. Anton's contradictory testimony is not credited. Whether or not Anton
overheard Bielenberg tell Morrill that she was for the Union on May 3, 1978.
it is clear from Anton's remark to Bielenberg on June 21, 1978, that, by that
time at least, Respondent had obtained knowledge that Bielenberg was fir
the Union.
" Bielenberg described her comment as "a little bit smart."
about the meaning of Anton's words, it was cleared up on
July 21 when Anton told Bielenberg that she could no
longer have days off for craft fairs until the union question
was settled and that the understanding that days off were to
be granted was made before McKnight found out she was
for the Union.
D. The Refusal To Give Bielenherg Time off on Jul 3,
1978-Facts and Conclusions
Bielenberg requested and was granted time off to attend
craft fairs on April 21 and 24 and May 5 and 26, 1978. The
first hint of a problem with future days off was on May 4,
1978, when Anton told Bielenberg that she would not be
able to have days off for fairs any longer when the Union
went through. On June 21, 1978, Bielenberg asked Anton
for July 3 off for a craft fair. As set fbrth more fully above,
Anton said that until the union question was settled, Bielen-
berg could no longer have days off for craft fairs. When
Bielenberg complained that she had been hired with the
understanding that she was to have days off for craft fairs,
Anton replied that that was before McKnight knew she was
for the Union. On June 30, 1978, Anton became more cau-
tious and told Bielenberg that she could not have July 3 off
because Bielenberg was going to start on a new route on
July 3. Bielenberg did begin a new route on July 3, and on
that day she was accompanied on the route by Anton.
Anton testified that when Bielenberg asked her for time
off for July 3, she (Anton) replied that she would check into
it; that she spoke to McKnight, who told her that Anton
could only have the day off if they could find a replacement
for her; that they were very busy at that time because hos-
pitals were granting their own employees time off in antici-
pation of the Fourth of July and that the extra work would
have to be picked up by the couriers: that there were two
relief drivers, one of whom had to fill in for an employee
who was on vacation, whereas the other was not fully
trained for Bielenberg's route; and that she told Bielenberg
that the day off could not be granted because there was no
coverage for her. Two other employees, Larry Durant and
Deborah Keillor, had also asked for time off on July 3, and
both of those requests had been denied.
Both Anton and McKnight testified that they had no
knowledge of any union activity on the part of Bielenberg
at the time the July 3 time off was denied to her. However,
on June 21, when Bielenberg asked for July 3 off, Anton
told her that the understanding about time off was reached
before McKnight knew she was for the Union. The follow-
ing day Bielenberg told employee Young in the presence of
Anton that she (Bielenberg) was for the Union. I do not
credit Anton's assertion that she had no knowledge of Bie-
lenberg's union activities.
Anton, in effect, admitted to Bielenberg on June 21 that
the July 3 time off was being denied because she was for the
Union. In addition, Respondent's defense does not stand
scrutiny. Anton testifies that one of the relief drivers was
not fully trained for Bielenberg's route. However, Bielen-
berg's route was shifted, and she covered a new route on
July 3. Anton accompanied her on that route. It is difficult
to believe that the relief driver could not have taken over
for Bielenberg on July 3 if Anton went with him as she did
with Bielenberg. I find that Respondent's defense is simply
950
SACRAMENTO CLINICAL. I.ABORATORY. INC.
a pretext and that Bielenberg was denied time off on July 3
because she supported the IUnion.1' That denial violated
Section 8(a)(3) and (I) of the Act.
E. 7The 4AlIged R/fitsal to Bargain
1. The employees in the bargaining unit and the petition
By letter dated May 12, 1978, Respondent withdrew rec-
ognition from the Union. At that time there were 12 em-
ployees in the bargaining unit." During the hearing the
General Counsel took the position that a 13th employee.
Frank Jiminez, should also he included in the unit. The
evidence does not support that contention, and the General
Counsel has not pursued the issue in his brief. Jiminez
voted without challenge in the 1976 election, but his duties
have changed since that time, He is a janitor and handy-
man. He works in the purchasing department and supervi-
sors another janitor. The supervisor Jiminez reports to is
different from the one the unit employees report to. The
only relation that Jiminez has to bargaining-unit work is
that he picks up specimens on an emergency basis. He does
not normally drive as a courier and does not do that work
on a regular basis. The emergency pickup work that he
performs takes place about once a month, and it is the same
type of work that supervisors and other nonunit employees
perform when an emergency exists and no one in the unit is
available. The unit description, which is quoted in section
A. above, specifically excludes janitors. Jiminez' duties are
not of such a nature as to create a real community of inter-
est with bargaining-unit employees. The courier work he
occasionally performs in emergency situations is not so ex-
tensive as to qualify him as a dual-function employee per-
forming a substantial amount of unit work. He cannot be
counted as part of the bargaining unit. Elvin Salow Cornm-
pany, 209 NLRB 833 (1974): Davis Transport. Inc., 169
NLRB 557, 562 (1968), enfd. 433 F.2d 363 (6th Cir. 1970).
From May 3 through May 6, 1978. six of Respondent's
employees in the bargaining unit signed the following peti-
tion:
Mr. William G. McKnight
Sacramento Clinical Laboratory, Inc.
2500 J Street
Sacramento, CA 95816
Dear Mr. McKnight:
The Couriers who have signed below do not wish to
be represented by the Teamsters Union. Most of them
were not employed by Sacramento Clinical Laboratory
at the time of the original note.
We request that action be taken to cease all negotia-
tions with the Union.
/s/ David Morrill 5-3 78
/s/ Hubert A. Hurley 5-3 78
n The fact that two other employees were denied time off on July 3 does
not change this conclusion. Bielenberg had been hired with the understand-
ing that she had a special need for time off and that it would be granted if a
substitute could be found.
1 The employees were Pat Little, George Young. Stan Blake. Matthew
Kane, David Morrill, Susan Lara, Rosemary Stewart. Debbie Keillor, Don-
na Bielenberg, Larry Durant, Hubert Hurley, and Mark Stacpool.
/s/ Susan Lara
/s/ George D. Young
/s/ Larry Durant
/Is' Rosemary Stewart
5 3 78
53 78
5 4 78
s-6-78
Part-time relief courier David Morrill drafted the petition
and solicited employees to sign it. Morrill delivered the pe-
tition to Respondent on May 7, 1978. Respondent's with-
drawal of recognition from the Union in its May 12. 1978.
letter was based on that petition.
Morrill testified that each of the employees who signed
the petition signed in his presence. without an 5 supervisory
personnel being there, lie further averred that he did not
consult with anyone about the language or the procedure.
Anton admitted that she knew Morrill was soliciting signa-
tures on the petition. However. I am unable on the record
evidence to find that Morrill was acting as the agent of
Respondent or that Respondent adopted Morrill's actions
in such a way as to make Respondent responsible for them.
Nor is there any evidence that he had apparent authority to
act for Respondent. On May 8. 1978. Bielenberg asked An-
ton to request Morrill to leave her alone with regard to
union matters on work hours. Anton replied that Bielen-
berg did not have to listen if she did not want to. That
incident does not establish an adoption by Anton of Mor-
nll's conduct. It is understandable for an employer to exer-
cise caution in interfering with either pro- or antiunion so-
licitation. There is no evidence in the record to indicate that
Respondent treated antiunion solicitation differently from
prounion solicitation.
Morrill campaigned quite aggressively in seeking signa-
tures on the petition. On May 3, 1978, he told Bielenberg
that it would cost her $140 to join the Union and $80 a
month. He also told her that he would lose his job, because
the Company would not pay him as a part-timer when the
Union came in.' 4 Morrill testified in some detail concerning
the comments he made to employees to obtain their signa-
tures on the petition. This testimony was often rambling
and confusing. He acknowledged that he told three part-
time employees that there was a possibility that they were
going to lose their jobs if the Union came in. He testified
that he made those remarks in the context of conversations
in which he told the employees in substance that it would
not be worthwhile for the employees to work for Respon-
dent on a part-time basis if they had to pay full union initi-
ation fees and dues. He further testified that no one from
management ever told him anything which led him to be-
lieve that the employees would not be able to keep their
jobs if the Union came in or that any part-timer would be
terminated. Morrill testified that he told some of the em-
ployees that the Company might not want the Union in
there, so the Company might get rid of the courier system
altogether. He further averred that he told some of the part-
time employees that if the Union came in, it might be
cheaper for the Company to hire full-time employees, and
there was a possibility they would lose their jobs.
2. The withdrawal of recognition
Morrill gave the petition to Respondent on May 7, 1978.
On May 12 Respondent wrote to the Union as follows:
'' This finding is based on the credited testimony of Bielenberg.
951
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
I have been advised by a substantial number of em-
ployees that they do not wish to be represented by the
Teamsters Union. They have also requested that recog-
nition on their behalf be ceased. As a result of this
information, it is clear that the Teamsters Union does
not, at the present time, represent a majority of the
employees of the certified bargaining unit at the Sacra-
mento Clinical Laboratory. Accordingly, the Sacra-
mento Clinical Laboratory is withdrawing recognition
from Joint Council No. 38. In this circumstance, no
purpose would be served by any further meetings. I
will, therefore, cancel the arrangements which have
been made for a room for next Tuesday. May 16, 1978.
at the International Host Hotel.
The Union responded with a telegram dated May 16,
1978, demanding that Respondent comply with the Board's
certification and return to the bargaining table. Respondent
has maintained its position and has refused to bargain with
the Union.
3. Analysis and conclusions
Absent unusual circumstances, which are not present in
the instant case, the majority status of a certified union will
be conclusively presumed to continue for I year from the
date of certification. Ray Brooks v. N.L.R.B., 348 U.S. 96
(1954); Celanese Corporation of America, 95 NLRB 664, 672
(1951). At the end of the certification year, the presumption
of majority continues, but at that point it becomes a rebut-
table presumption. Then an employer may lawfully refuse
to bargain with a union if it rebuts the presumption by
showing either of two things. The first is that the union has
in fact lost its majority status. The second is that the em-
ployer has sufficient objective basis for reasonably doubting
the Union's continued majority. Such an objective basis re-
quires more than the employer's assertion based on its sub-
jective frame of mind. In addition, the employer must not
have engaged in conduct which tends to encourage em-
ployee disaffection from the union. See James W. Whitfield,
d/bla Cutten Supermarket, 220 NLRB 507, 508 (1975).
The applicable law is set forth in Bartenders, Hotel, Motel
and Restaurant Employers Bargaining Association of Poca-
tello, Idaho, and its Employer-Members and Local 510, Hotel
and Restaurant Employees and Bartenders International
Union, AFL-CIO 213 NLRB 651 (1974), where the Board
quoted from Terrell Machine Company, 173 NLRB 1480
(1969), enfd. 427 F.2d 1088 (4th Cir. 1970), as follows:
It is well settled that a certified union, upon expiration
of the first year following its certification, enjoys a re-
buttable presumption that its majority representative
status continues.' This presumption is designed to pro-
mote stability in collective-bargaining relationships,
v,thout impairing the free choice of employees.2 Ac-
cordingly, once the presumption is shown to be opera-
tive, a prima facie case is established that an employer
is obligated to bargain and that its refusal to do so
would be unlawful. The primafacie case may be rebut-
ted if the employer affirmatively establishes either (1)
that at the time of the refusal the union in fact no
longer enjoyed majority representative status:3 or (2)
that the employer's refusal was predicated on a good-
faith and reasonably grounded doubt of the union's
continued majority status. As to the second of these.
i.e., "good faith doubt." two prerequisites for sustain-
ing the defense are that the asserted doubt must be
based on objective considerations and it must not
have been advanced for the purpose of gaining time in
which to undermine the union.' [This second point
means. in effect, the assertion of doubt must be raised
"in a context free of unfair labor practices." See ,Nu-
Southern Dyeing & Finishing, Inc.. 179 NLRB 573, In.
I (1969), enfld. in part 444 F.2d II (C.A. 4, 1971).]
I Celanese Corporation of/ Anerica. 95 N L R B 664, 671 672.
'"Majority representative status" means that a majority of employees
in the unit wish to have the union as their representative for collective-
bargaining purposes. Id.
See Lavrstrom Manuficruring Company, 151 NLRB 1482, 1484, en.
forcement denied on other grounds (sufficiency of evidence) 359 F.2d
799 (C.A. 7. 1966): United Aircraft Corporation, 168 NLRB No. 66
(TXD): N.L.R.B. v. Gulfmont Hotel Company, 362 F.2d 588 (C.A. 5.
1966). enfg. 147 NLRB 977. And cf. United States Gypsum Compar,
157 NLRB 652.
5 C C Plywood Corporation, 163 NLRB No. 136: Ball) Case and
Cooler,. Inc.. 172 NLRB No. 106.
The Union was certified as a collective-bargaining repre-
sentative of Respondent's employees in the appropriate unit
on April 12, 1977. When Respondent withdrew recognition
from the Union on May 12, 1978, the certification year had
expired. However, the presumption of continued majority
status continued. The key question is whether Respondent
has effectively rebutted that presumption.
As of May 12, 1978, when recognition was withdrawn,
half of Respondent's employees in the appropriate unit had
signed a petition indicating that they did not want represen-
tation by the Union. If that petition was a valid indication
of the wishes of the employees, then the Union did not have
the support of the majority of the employees as of that
date." As found above, Respondent violated Section 8(a)(1)
of the Act on May 4, 1978, when Anton told Bielenberg
that when the Union went through, she would not be able
to have days off for craft fairs any longer.'6 However, Bie-
lenberg was not one of the employees who signed the peti-
tion, and she credibly testified that she did not tell any
employee about her conversation with Anton. While
Anton's remark might be relevant in evaluating Respon-
dent's good faith, it could have no impact on the validity of
the petition and could have no bearing on the question of
whether the employees who signed the petition in fact did
or did not want the Union. If the employees of their own
free will and without coercion decided they' did not want
the Union, that decision should be controlling. As found
above, the evidence does not establish that Respondent was
'5 A majority would have consisted of one-half of the bargaining unit plus
one.
16 The other violations of Sec. 8(aX 1) occurred well after the petition was
signed and Respondent withdrew recognition from the Union. Those viola-
tions could not affect the viability of the petition.
952
SACRAMENTO CLINICAL LABORATORY, INC.
responsible for the petition or that Respondent took any
unlawful action that tainted the petition.
Part-time employee Morrill, who circulated and solicited
signatures on the petition. did make remarks to employees
who signed the petition that would have had a coercive
effect if he were speaking on behalf of Respondent. Though
his testimony was very confused, it appears that he did tell
employees that their jobs might be in jeopardy if they sup-
ported the Union. However, there is nothing in the record
to indicate that Respondent took any action that would
make employees believe that Morrill was speaking on its
behalf,' 7 nor is there any evidence that Morrill was in fact a
representative or agent of Respondent. It appears that one
employee was simply telling other employees what he
thought the Company might do. The employees were in a
position to evaluate Morrill's remarks and Morrill was not
in any position to control or even influence Respondent's
actions. I am unable to find that Morrill's remarks pre-
vented the employees from making a free choice with re-
gard to whether they did or did not want the Union, and
therefore I must find that the petition was untainted. Cf.
Orleans Manufacturing Company, 120 NLRB 630, 633
(1958); Information Magnetics Corporation, 227 NLRB
1493, 1495 (1977): Fabricut, Inc., 233 NLRB 1196 (1977).
The petition does establish that less than a majority of the
employees in the appropriate unit on May 12, 1978. desired
the Union to represent them.
In Fremont Newspapers, Inc., 179 NLRB 390 (1969).,
enfd. in part 436 F.2d 665 (8th Cir. 1970), the Board held
that an employer did not have a good-faith doubt of a
union's majority because it engaged in conduct in violation
of Section 8(a)(1) even though that conduct did not in fact
cause a defection from the union. However, that case was
keyed to the employer's good-faith doubt based on a decer-
tification petition rather than to the issue of whether a ma-
jority of the employees in fact did not want the Union. As I
have found that the presumption of continuing majority has
been rebutted by affirmative proof that the Union had in
fact lost its majority status and that that loss was not attrib-
utable to any conduct of Respondent, there is no need to
consider whether Respondent's unfair labor practices which
were unrelated to the loss of majority preclude Respondent
from relying on a reasonably based doubt as to the Union's
continued majority status. See Deblin Manufacturing Corpo-
ration, 208 NLRB 392, 401 (1974); Newhouse Broadcasting
Corporation, dbla WAPI-TV-AM-FM, 197 NLRB 885,
893 (1972).
The facts set forth above raise a serious suspicion that
Respondent has been playing fast and loose with its obliga-
tion to bargain. The employees voted for the Union on
March 23, 1976. The Union was not certified until April 12,
1977, which was more than a year later. Negotiations did
not begin until early to mid-April 1978, a full year after the
certihcation and more than 2 years after the election. There
was a second meeting on May 4, 1978, and no meetings
thereafter. An employee, supposedly on his own initiative,
circulated an antiunion petition beginning on May 3, 1978,
and about the same time Respondent spoke against the
'7 His fellow employees had no reason to identify Morrill with manage-
ment. Morrill is a young college student who works for Respondent as a
part-time courier.
Union to one employee and violated Section 8(a)(1) of the
Act by threatening another employee with loss of time off.
Respondent shortly thereafter withdrew recognition before
enough time had passed for meaningful bargaining.'8
Though I do have strong suspicions with regard to Re-
spondent's conduct, a case cannot be built on suspicion.
There is no evidence in the record to indicate who was
responsible for the inordinate delay in the commencement
of bargaining. The evidence does not establish that Respon-
dent took any action that caused the employees to sign the
antiunion petition, that Respondent did anything to lead
employees to believe that Morrill was acting on its behalf,
or that Respondent was responsible for the petition. The
evidence does establish that half of the employees did sign a
petition which stated that they did not want the Union to
represent them. Under all these circumstances I am con-
strained to find that Respondent did not violate Section
8(a)(5) of the Act as alleged in the complaint.
IV. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON
COMMERCE
The activities of Respondent set forth in section II1,
above, occurring in connection with the operations of Re-
spondent described in section 1, above, have a close, inti-
mate, and substantial relation to trade, traffic, and com-
merce among the several States and tend to lead to labor
disputes burdening and obstructing commerce and the free
flow of commerce.
V. IHE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it be ordered
to cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act.
In view of the seriousness of Respondent's violations and
the fact that they involve discrimination against an em-
ployee in violation of Section 8(a)(3) of the Act, I recom-
mend that Respondent be ordered to cease and desist from
in any manner interfering with, restraining, or coercing em-
ployees in the exercise of rights guaranteed them in Section
7 of the Act.'9
CONCLUSIONS OF LAW
1. Respondent 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. Respondent violated Section 8(aXI) of the Act by
threatening employee Donna Bielenberg with the denial of
her requests for time off in order to discourage employee
activity on behalf of the Union.
11 It is noted that in Brooks v. N.LR.B., supra at 100, the Supreme Court
held: "A union should be given ample time for carrying out its mandate on
behalf of its members, and should not be under exigent pressure to produce
hothouse results or be turned out."
t N.LR.B. v. Entwistle Mfg. Co., 120 F.2d 532, 536 (4th Cir. 1941); Boston
Pet Supply, Inc, 227 NLRB 1891 (1977).
953
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
4. Respondent violated Section 8(a)(3) and (I) of the Act
by denying the request of Donna Bielenberg for time off
because of her activities on behalf of the Union.
5. The aforesaid unfhir labor practices are unfair labor
practices affecting commerce within the meaning of Section
2(6) and (7) of the Act.
6. Except as set forth above, the General Counsel has
not established by a preponderance of the credible evidence
that Respondent violated the Act as alleged in the com-
plaint.
[Recommended Order omitted from publication.]
954