Saunders Leasing System, Inc.

National Labor Relations Board - Board Decisions

Jun 25, 1973

204 N.L.R.B. 448 (N.L.R.B. 1973)

448 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Saunders Leasing System , Inc. and United Cement,
Lime & Gypsum Workers International Union,
AFL-CIO. Cases 26-CA-4225 and 26-RC-4137
June 25, 1973
DECISION, ORDER , AND DIRECTION OF
SECOND ELECTION
BY MEMBERS FANNING. KENNEDY AND PENELLO
On February 7, 1973, Administrative Law Judge
Fannie Boyls issued the attached Decision in this pro-
ceeding . Thereafter , General Counsel filed exceptions
and a supporting brief and Respondent filed excep-
tions , a supporting brief , and a brief in support of the
Administrative Law Judge 's Decision.
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 and to
adopt her recommended Order.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge and hereby
orders that Respondent , Saunders Leasing System,
Inc., Foreman , Arkansas , its officers , agents , succes-
sors, and assigns , shall take the action set forth in the
said recommended Order.
IT IS FURTHER ORDERED that the election conducted
in Case 26-RC-4137 be, and it hereby is, set aside,
and that said case be , and it hereby is, remanded to
the Regional Director for Region 26 for the purpose
of conducting a new election at such time when he
deems the circumstances permit the free choice of a
bargaining representative.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
DECISION AND REPORT ON CHALLENGE AND
ON OBJECTIONS TO ELECTION
STATEMENT OF THE CASE
FANNIE M . BOYLS , Administrative Law Judge : Case 26-
CA-4225 was initiated by a charge filed on January 27,
1972, and a complaint issued on April 4, 1972. This com-
plaint, as subsequently amended , involves the questions
whether Respondent's layoff of employee William R. "Bob"
Young on December 15, 1971, was discriminatorily moti-
vated and whether Respondent engaged in certain other
conduct prior to as well as subsequent to a representation
election held on January 21, 1972, constituting a violation
of Section 8(a)(l) of the Act. Following an investigation and
report by the Regional Director of certain challenged bal-
lots and objections to the election in the representation case
(Case 26-RC-4137), there remained unresolved a determi-
nation of the challenge to the ballot cast by Young and of
the validity of objections to the election involving alleged
interrogation, coercion, and intimidation. All of the unre-
solved issues in the representation case are also involved in
the unfair labor practice case. The Regional Director ac-
cordingly ordered that the two cases be consolidated. A
hearing on these consolidated cases was had before me at
Texarkana, Arkansas, on September 26 through 30, 1972.
Subsequent to the hearing counsel for the General Counsel
and for the Respondent filed helpful briefs.
Upon the entire record in these proceedings, upon my
observation of the demeanor of the witnesses who testified,
and after a careful consideration of the briefs, I make the
following:
FINDINGS OF FACT
I JURISDICTIONAL FINDINGS
Respondent is a corporation with an office and place of
business located at Foreman, Arkansas, where it is engaged
in the business of leasing and renting trucks and trailers for
interstate and intrastate use. During the 12-month period
preceding the issuance of the complaint, Respondent had a
gross volume of business in excess of $500,000 and during
that period purchased and received goods and materials
valued in excess of $50,000 directly from points outside the
State of Arkansas. On the basis of these admitted facts, I
find that Respondent is engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
11 THE LABOR ORGANIZATION INVOLVED
United Cement, Lime & Gypsum Workers International
Union, AFL-CIO, herein called the Union or the Cement
Workers Union, is a labor organization within the meaning
of Section 2(5) of the Act.
III THE UNFAIR LABOR PRACTICES ALLEGED
A. The Alleged Discriminatory Selection of Employee
Young for Layoff
William R. "Bob" Young was first employed by Respon-
dent in February 1970. During that year Young played an
active role in supporting a Teamsters local in its attempt to
organize Respondent's plant. Young's active role in that
campaign, which culminated in the defeat of the Teamsters
in a representation election, was well known both to the
employees and to management. After about 8 months of
employment with Respondent, Young voluntarily quit his
job to work elsewhere.
204 NLRB No. 68
SAUNDERS LEASING SYSTEM 449
In January 1971 Young sought reemployment with Re-
spondent and was rehired , first on a temporary basis to
permit him to give an appropriate notice to his then employ-
er, then on a permanent basis as a B mechanic , the classifi-
cation he held at the time he had quit his employment. At
the time of rehiring Young , Branch Manager Marvin Sikes
called assistant vice president -per§onnel , Milton Hauser, at
the latter 's headquarters in Birmingham, Alabama, to in-
quire if he could give Young seniority dating from his initial
employment in February 1970. Hauser vetoed this sugges-
tion, pointing out that such action would be contrary to
Respondent 's established policy.'
Respondent has about 90 places of business located
throughout the United States and Canada . The Foreman,
Arkansas , branch , which is here involved , is across the road
from its basic account customer , Arkansas Cement Compa-
ny, whose production and maintenance employees have
been represented by the Cement Workers Union for about
13 years and whose office workers have been represented by
the Union since July or August 1971. In December 1971,
one of the Cement Company 's employees told Union Rep-
resentative Paul Balliet that employees at Respondent's
plant were interested in organizing and suggested that he get
in touch with Young.
Balliet met with Young on Friday evening , December 10,
at a motel in Ashdown , Arkansas , and asked him to discuss
the Union with other employees and ascertain the feasibility
of an attempt to organize them at that time . Ashdown,
where Young lives, is about 17 miles from the shop in Fore-
man. On Monday Young did talk to about 15 employees
during the lunch period and during breaks about how they
felt about a union . Arrangements had been made by Balliet
to meet with Young and any other employees interested in
organizing at a hall in Foreman on Monday evening. How-
ever , due to a misunderstanding as to the meeting place,
Balliet went to the Union 's regular meeting place, Young
and some of the other employees went to another place, and
the group did not get together that evening . Balliet did talk
to Young later that night at a motel in Ashdown and gave
him cards to distribute to employees . Young got a few cards
signed on Tuesday, December 14. He met again with Balliet
at his home and at the motel in Ashdown on Tuesday night.
This is the extent of Young 's union activities prior to his
layoff, described below . He thereafter continued to assist
the Union in getting cards signed at the homes of employees
and attended union meetings.
On Wednesday afternoon , December 15, Respondent
posted a notice on its bulletin board announcing that
Young, a B mechanic , and five servicemen were being laid
off as of that date for lack of work . On the same afternoon,
Young discussed his layoff with Branch Manager Sikes and
contended that , instead of laying him off, Sikes should have
laid off an A mechanic, Shaver, who had worked for Re-
spondent about 8 years but who at the time of the layoff was
working only 38 hours a week and was therefore regarded
as a permanent part-time employee. Sikes explained that
1 The "Employee's Guide," distributed by Respondent to all its employees,
provides that an employee loses his seniority when he voluntarily resigns (as
Young had done ) or when he is laid off for more than 3 months
after consulting with management in Birmingham it had
been decided that five servicemen and one B mechanic
should be laid off, that Young had the least seniority in the
B mechanic classification , and that he was therefore the one
selected. Sikes informed Young that he had a right to bump
the least senior mechanic trainee employee, but Young at
that time appeared interested only in retaining his B me-
chanic job and did not exercies his right to bump into the
classification below his own.
On Friday, December 17, Young returned to the plant
with his employee 's guide in hand and sought to resume his
argument with Sikes that Shaver should have been laid off
instead of Young. Upon this occasion Sikes became angry
and, according to his testimony, told Young that he did not
like a person coming into his office and telling him how to
run his business. According to Young, Sikes became angry
and told him that so long as Sikes was behind the desk,
Young would never work there. I believe Sikes ' account is
probably the more accurate, since the conduct of both men
thereafter is more compatible with Sikes ' version. In any
event, when Young asked if Sikes would mind Young going
over his head and talking to Hauser about the matter, Sikes
stated that he did not mind and offered to cooperate by
having Hauser called over the office phone . Hauser was not
in his office at the time this call was made.
During the early part of the following week, about Tues-
day, December 21, Young again returned to Sikes' office,
this time in a more friendly mood and had a long talk with
Sikes about things such as hunting , fishing, and cattle. There
was another attempt on this occasion to reach Hauser by
telephone , but this attempt also was unsuccessful . Accord-
ing to Young, one of the statements made by Sikes on this
occasion was that he did not understand why Young was
working so hard for the Union because the employees could
get only a 5-1/2-percent raise anyway (an apparent refer-
ence to the Federal wage price controls then in effect).
Young had not in any previous conversation mentioned to
Sikes that he was working for the Union. Sikes denied that
the subject of the Union was mentioned on this occasion
and testified that he did not even know that there was any
union activity in the plant until he received a letter from the
Union on December 22 requesting recognition. Young fur-
ther testified that about a week later when he returned to the
plant to talk about bumping into a trainee 's job , he again
had a friendly conversation with Sikes during which the
latter mentioned the freeze on wages. I credit Sikes ' testimo-
ny that the subject of the Union did not arise at the Decem-
ber 21 conference. I am convinced, however, that at the later
meeting with Young-subsequent to the Union's request for
recognition and after Young's open support of the Union
apparently became well known at the plant-Sikes did refer
to the controls then in effect and made- the statement which
Young mistakingly placed as having been uttered on De-
cember 21.
It was not until about December 28 (according to Young)
or after the first of the year 1972 (according to Sikes) that
Young made a request to bump an employee in the mechan-
ic trainee classification . Sikes asked if Young had read his
employee's guide and pointed out to him a provision requir-
ing a written notice within 24 hours of the layoff notice
when an employee wishes to bump into a lower classifica-
450 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tion.2 Since Young had not given written notice (or oral, for
that matter) of his desire to bump within 24 hours after
receiving his layoff notice, he was not permitted to displace
a mechanic trainee when he sought to do so 2 weeks or more
later. As Assistant Vice President-Personnel Hauser ex-
plained at the hearing, it is Respondent's policy where eco-
nomic layoffs are necessary, to effectuate all the layoffs at
one time rather than staggering them over a period of days
or weeks because it is bad for an employee's morale to be
kept in fear that he may lose his job.
Both Sikes and Hauser denied having any knowledge that
a union campaign was underway at the time the layoff
notices were posted. Sikes testified that the first inkling he
had of employee interest in organizing came when he re-
ceived a registered letter from Union Representative Balliet
on December 22, 1971, requesting recognition. Hauser testi-
fied that he first learned about it when Sikes called to inform
him of the Union's letter. Both denied knowing of any union
activity on the part of Young prior to his layoff, other than
Young's 1970 activities on behalf of the Teamsters local.
Both Sikes and Hauser testified convincingly on this point
and I credit their testimony.3
2 The topical heading in the employee 's guide labeled "Layoff and Recall,"
insofar as here relevant, reads
Although your branch has seldom , if ever, experienced a layoff,
should it ever become necessary to reduce the work force , part time
employees within the effected classification (s) will be laid off first If
it is necessary to reduce the work force further, reductions will be made
as follows
I Employees with the least branch seniority within the affected classifi-
cation and/or the least ability to perform the work will be the first to
be removed from their classification
2. Employees who are displaced from theirjob by the process stated in
number 3 above of this section , may exercise their branch seniority and
bump an employee in a lower classification provided the senior employ-
ee meets the requirements to perform the fob in a satisfactory manner
without further training and will be paid at the applicable wage rate for
the classification it is understood , however, that any employee who
wishes to displace a junior employee must give his notice of such desire
in writing within twenty-four (24) hours of the posting by the branch of
the notice of layoff, so that there will be no delay in the layoff procedure
3 Employees with the least amount of branch seniority, for whom no
work is available for which they are qualified , will be laid off
It is noted that in the paragraph numbered 2, there is a reference to "the
process stated in number 3 above of this section " [emphasis supplied] The
topical headings in the guide are not designated as "sections ," but the cen-
tered headings are apparently considered as such. It is not clear what is meant
by the phrase referred to above It could be that the work "above" was meant
to be "below ," or it could be that the word "this" was meant to be "the
preceding" section dealing with employees who are reemployed after perma-
nent and total disability insurance benefits cease . Respondent interprets the
24-hour notice provision to apply to any employee wishing to displace a
junior employee
3 The General Counsel asks me to infer knowledge of the Union's cam-
paign and of Young's part in it on the theory that in a small shop like
Respondent 's, employing only about 27 employees, in a small town such as
Foreman, having a population of only 1,800 people, management must be
presumed to have knowledge of these activities . Whatever may be said for
the soundness of such a theory in some cases , the fact situation in this case
does not warrant the application of such a theory Here , most of the employ-
ees of Respondent 's basic customer across the road from Respondent's shop
had been organized by the Union for many years and its office employees
had more recently selected the Union to represent them The appearance of
a union representative in town would presumably therefore have been noth-
ing unusual and no occasion for alerting Respondent to the fact that its own
employees were being contacted Moreover, at the time of the layoffs Union
Representative Balliet had met with Young only in Ashdown-about 17
Moreover , the reasons given by Respondent for selecting
Young for layoff do not appear unreasonable and therefore
a basis for inferring that the reasons assigned were not the
true ones.
To properly understand Respondent 's explanation, a
brief description of the nature of Respondent 's work and its
operations is necessary .. Respondent 's Foreman branch
owns about 98 tractors and 99 trailers , most of which it
leases to Arkansas Cement Company under a contract by
which Respondent performs the necessary maintenance aid
mechanical work . Most of this equipment is located at Fore-
man but some is (or was at the time of the layoffs) located
at Memphis and Oklahoma City. The leasing and mainte-
nance of this equipment is managed by Branch Manager
Sikes who is stationed in Foreman . The work performed on
the vehicles is done by A mechanics , B mechanics , mechan-
ic trainees , and servicemen , those employees having the
greatest skill being A mechanics and the others in the de-
scending order listed , having lesser skills.
The busiest time of the year for Respondent 's basic cus-
tomer, Arkansas Cement Company , is during the summer
months when the weather is best for its cement work. That
also is normally the best season for Respondent's ser-
vicemen and repairmen . Since 1968 Respondent has had a
rebuild department where component parts , taken off
equipment as it breaks down , are rebuilt and, for the most
part, stored for use on other vehicles . The rebuilt part is
seldom put back on the vehicle from which it is taken for
this would normally tie up the vehicle for too long when it
needs to be used . Instead, the broken down part is replaced'
with a new or rebuilt part taken from inventory . This re-
build work as well as some of the major repair jobs on
vehicles can be done during the winter months or less busy
periods and normally no layoff of mechanics is necessary
during the principal customer 's slack period.
Conditions were not normal for Respondent during the
winter of 1971 to 1972. Several factors were responsible for
this . One principal factor was the purchase by Respondent
of 48 new tractors , which were delivered between May and
August 1971 and which replaced 48 old 1966 tractors which
had required an inordinate amount of major repairs and
rebuild work . With these new tractors and the remaining
1968 equipment , which Respondent found to be exception-
ally good models , the necessity for major repair and rebuild
work declined substantially .4 Another important consider-
ation in Respondent's determination to effect the layoff was
an unusually heavy slowdown of business at Arkansas Ce-
ment resulting in the layoff of some of the Cement
Company's drivers, with a resulting lessening of service,
miles from Foreman-and had held no group meetings with Respondent's
employees. During the 2 days before his layoff when , according to Young,
he was talking to fellow employees about the Union, he did so only during
his lunch period or during breaks and there is no evidence that any supervisor
or management representative was near enough to hear or observe what he
was doing.
Lunsman , an A mechanic who had been doing most of Respondent's
rebuild work , suffered a heart attack in May 1971 and has not returned to
work yet Respondent operated without any replacement for him until Sep-
tember when Young bid for and received the rebuildjob at his same classifi-
cation-that of a B mechanic He thereafter did both rebuild and regular
mechanic work but Respondent 's records show that after a peak in rebuild
work in September, the amount of that type of work performed by Young
declined steadily and substantially
SAUNDERS LEASING SYSTEM
repair, and rebuild work by Respondent. In addition, Re-
spondent learned in November that the Cement Company's
facility in Oklahoma City, for which Respondent had been
furnishing and servicing vehicles, was to be closed. This
meant that Respondent would soon have to transfer back
to Foreman the A mechanic and serviceman assigned to
that location. These men were on the Foreman branch pay-
roll and had seniority over employees in their respective
classifications at the Foreman location.' Presented with this
economic picture, Branch Manager Sikes says that it was his
judgment that Respondent had an excessive number of B
mechanics and servicemen and that the least senior B me-
chanic (who turned out to be Young) and the five least
senior servicemen should be laid off. I am not convinced
that Sikes was motivated by other than business consider-
ations when he selected Young for layoff.
It is noted, moreover, as pointed out by Sikes, that Young
would have had the right to bump into a mechanic trainee
job if, in accordance with the employee's guide, he had
made the request to do so in writing within 24 hours after
receiving his layoff notice. Sikes testified that he fully ex-
pected Young to do so and that Sikes had anticipated hav-
ing to lay off a mechanic trainee after Young had bumped
into that classification. If that had happened, Respondent
would not have been able to rid itself of a leader in the union
movement, which the General Counsel asserts was
Respondent's motive in selecting Young for layoff.
It is Respondent's established policy, as set forth in the
employee's guide, that any employee laid off for as long as
3 months loses his seniority and that if he returns thereafter
he does so as a new employee. Respondent has hired no B
mechanics since the December 15, 1971 layoffs and con-
tends that it has no need for more employees in that semi-
skilled classification. In September 1972, after one of its
mechanic trainees had quit, it did hire another mechanic
trainee, Willis, who had worked for Respondent on two
previous occasions and who had, shortly before the employ-
ee quit, made application for reemployment. Sikes testified
that Young has never indicated that he would be willing to
come back as a new employee, but that if he did, Respon-
dent would be willing to take him back at the first opportu-
nity.
Because the layoffs occurred at the beginning of the
Union's efforts to organize the shop , it is understandable
that Young as well as some of the other employees may have
honestly believed that there was a connection between the
two events. Upon all the evidence, however, I am convinced
that Respondent did not lay off or fail to recall Young for
discriminatory reasons and that Respondent has not en-
gaged in an unfair labor practice in violation of Section
5 The Cement Company's operations in Oklahoma City did not actually
cease, and Respondent's employees there were not actually transferred back
to Foreman, until about mid-January 1972, but this situation was a part of
determining in December to effect the layoff of a B mechanic in addition to
five servicemen on December 15. The five least senior of the servicemen were
laid off because Respondent had completed the erection of a service island
which it had started during the summer of 1971 and had no need for the men
for regular service work The charge filed by the Union on January 27, 1972,
alleges that these servicemen, in addition to Young, were discriminatorily
laid off, but their names are not included in the complaint and the General
Counsel in effect concedes that their layoffs were not discriminatorily moti-
vated
8(a)(3) of the Act.
451
B. The Alleged Interference, Restraint, and Coercion
Following its letter to Respondent of December 22, re-
questing recognition, the Union filed a representation peti-
tion on December 27 and an election was thereafter held on
January 21, 1972. The complaint alleges that-during this
preelection period as well as thereafter, Respondent,
through certain of its supervisors and agents, engaged in
various acts of interference, restraint, and coercion in viola-
tion of Section 8(a)(1) of the Act. The evidence regarding
these allegations is set forth below.
1. Conduct attributed to Foreman McCormick
In supposed support of the allegations of the complaint
that Foreman McCormick had threatened and coerced its
employees by assigning an employee a different job and
stating that that would teach the employee to sign a union
card, and by interrogating an employee concerning his
union membership, activities, and desires, employee Jimmy
Roden testified as follows: On one occasion, after Young's
layoff and before the election, as Roden and McCormick
were working together, McCormick asked "what we was
trying to get out of the Union, or what we thought the
Union could get for us." Roden replied that "we wouldn't
be harassed and pushed around so much." McCormick then
gave Roden a key to a truck, assigned Roden a job, and
stated "that would learn me to sign a union card. Teasing,
I thought." Roden asked how McCormick knew he had
signed a union card and McCormick responded that he
would "bet me all the cows, and the land and everything he
had, against the money I had in my front pocket that I
signed a card." Roden conceded that he had been voicing
his feelings about the Union very openly and that it would
have been difficult for McCormick or anyone else not to
have known that he was for the Union and that the job
assignment McCormick gave him on this occasion was one
he would have had to do anyway. Roden testified that he
considered McCormick's remarks to be in jest and that he
later apologized to McCormick for getting him involved in
the unfair labor practice case. McCormick testified that he
did not remember the incident about which Roden testified
but that Roden had talked to him about the Union, said that
everyone was blaming him for starting it, and that although
he had not started it, he was in it all the way.
It is clear to me that the allegations regarding Foreman
McCormick were improvidently included in the complaint
and that McCormick's conduct was not in violation of the
statute.
2. Conduct attributed to Branch Manager Sikes
The complaint alleges that Sikes, along with Hauser, in-
terrogated an employee in January 1972 regarding his union
membership, activities, and desires and that on or about
June 16, 1972, Sikes threatened an employee with discharge
if he gave testimony adverse to Respondent at a Board
hearing. The complaint also alleges that Hauser on or about
January 21, 1972, in a telephone conversation with an em-
452 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ployee , created the impression of surveillance of the em-
ployees' union activities and warned the employee not to tell
anyone about their prior conversation because it might
cause trouble with the Labor Board , but it developed at the
hearing that it was Sikes , not Hauser , to whom this allega-
tion referred and the issue as to Sikes was fully litigated.
a. The alleged coercion of Hudson
The testimony in support of the allegation that Sikes had
interrogated an employee about the Union was given by
William Hudson , one of the servicemen who was laid off by
Respondent on December 15, 1971. Hudson had been re-
called to work in June 1972 and was working for Respon-
dent at the time of the hearing . Hudson appeared to be a
reluctant as well as a confused witness. It was necessary for
the General Counsel to attempt to refresh his recollection
from written statements Hudson had previously given a
Board agent . Hudson did testify, however , among other
things , that during the week following his layoff when he
returned to the plant for his final paycheck , he had a conver-
sation with Sikes , in Hauser 's presence, during which Sikes
assured him that he would be recalled to work when work
picked up , asked him if he "had ever belonged to the Union
before," offered to try to find him a job at another branch
of Respondent , and asked him not to say anything about the
conversation . Hudson also testified that he talked to Sikes
on a later occasion when he returned to the plant to discuss
his group insurance , but he did not relate the details of his
conversation at that time. Hudson further testified that on
the morning after the last union meeting before the election
(which would probably be the morning of January 21), he
was awakened by a telephone call from someone whose
voice he did not recognize but who identified himself as
Sikes . This person , according to Hudson , said he had heard
that Hudson had been to a union meeting and asked Hud-
son not to say anything about the earlier conversation they
had had in his office because "it might cause trouble with
the Labor Board."
Sikes gave a much more articulate and convincing ac-
count of his conversations with Hudson subsequent to the
latter's layoff . He testified that the occasion when Hudson
came into his office and talked to Sikes in Hauser 's presence
was on January 20, 1972 , the day before the election; that
Hudson came in to talk about his insurance and stayed to
talk about a number of other subjects, including hunting
and fishing . On this occasion Hudson also inquired, as he
had done on a number of previous occasions , about when
Sikes thought he could return to work and Sikes told him
that it was not within any foreseeable time . Neither the
Labor Board or the Union was mentioned during this con-
versation . After Hudson left the office, Sikes discussed with
Hauser the fact that Hudson was a hardship case because
Hudson had just bought a new home , his wife was pregnant,
his father-in-law who lived with the Hudsons was very ill,
and Hudson himself had suffered a back injury which
would make it difficult for him to obtain employment Ise-
where.' He asked Hauser about the possibility of trying to
6 Hudson also testified to this hardship situation, adding that his father-in-
law had subsequently died
find an opening for Hudson in one of Respondent 's other
branches . Hauser suggested that Sikes ask Hudson first
whether he would be interested in locating in some other
city before Hauser started trying to find an opening for him.
Sikes accordingly sought to reach Hudson on the phone
during the afternoon but was unsuccessful . Early the next
morning , Sikes again sought to reach Hudson. Hudson
sounded "groggy" as he answered the phone . Sikes identi-
fied himself and told Hudson that he had tried to call him
the night before and Hudson responded , "Oh, I went to a
union meeting." Sikes then explained that he was calling
about the possibility of giving him a serviceman 's job at
some other location and asked if Hudson would be interest-
ed. Hudson replied that he had problems at home and could
not leave town . Sikes then asked Hudson to keep the call
confidential because he did not want anyone to think he was
showing favoritism toward Hudson . This was the only occa-
sion, according to Sikes, when the Union was mentioned.
Hauser testified in substantial corroboration of Sikes' ac-
count of the interview with Hudson on the day before the
election . He also testified that he was present when Sikes
called Hudson the next morning ; that he heard what Sikes
said on the phone; and that Sikes related to him immedi-
ately thereafter what Hudson had said . His account corro-
borates Sikes ' testimony . He further testified that on neither
occasion when he was present did Sikes ask if Hudson had
ever belonged to a union, and that no reference was made
to any Labor Board proceeding.
I am satisfied that the recollections of Sikes and Hauser
regarding their conversations with Hudson were, on the
whole , more accurate than those of Hudson and credit their
accounts . I find that a preponderance of the credible evi-
dence does not support the allegations of the complaint
regarding the alleged coercive statements to Hudson.7
b. Sikes' treatment of employee Reed
On June 15, 1972, Eddie Reed, a mechanic trainee, gave
a statement to one of Respondent's attorneys, McCrary, at
the latter's request in connection with his investigation of
allegations in the complaint. Two days later, at or about
4:30 or 5 p.m., according to Reed's credited testimony, Sikes
approached Reed and angrily accused him of "hotrodding"
the trucks, stated that he did not like for Reed to drive the
trucks fast or misuse company property, and that Reed
"was just kind of lucky to have a job." He then told Reed
"You think you're going to hurt me, don't you, but you are
not.. . . You think you are smart, but .. . I'm going to be
in that court room and I'm going to hear everything you say
and you'd better watch what you say." He then added,
according to Reed, that Reed had better not say anything
7 There is also testimony by Hudson that about 2 weeks after the election
he telephoned Sikes to inquire about when he could return to work and was
told that it would depend on when business picked up A minute later, when
pressed by the General Counsel to state again the reason assigned by Sikes.
Hudson testified , inconsistently , that Sikes had "said that he would have to
get settled with the Labor Board before they could put anybody to work "
This incident was not alleged in the complaint as an unfair labor practice and
does not appear to have been litigated as such In any event , I do not regard
Hudson's testimony in this respect as sufficiently reliable to form a basis for
an unfair labor practice finding
SAUNDERS LEASING SYSTEM 453
about this conversation and that if Reed did , Sikes would
deny under oath the statements attributed to him.
Sikes ' explanation was that on the preceding Saturday,
June 10-6 days prior to his confrontation with Reed-
Reed had left some black streaks on the concrete in the shop
as a result of hotrodding Respondent 's equipment; that
upon learning about this on the follwoing Tuesday, Sikes
had instructed Foreman Martindale to caution Reed about
his hotrodding and remind him that he had been cautioned
before about abusing company equipment ; and that there-
after , on Friday , June 16, Martindale reported to Sikes that
employee Paul Denny had told him that Reed, following his
interview by Attorney McCrary, had boasted about what he
had told McCrary and given " the impression that he was
going to just go out and screw the Company."s According
to Sikes , he became very angry upon hearing about Reed's
boasting remark and confronted him substantially in the
manner described by Reed . Sikes conceded that he told
Reed that the latter "was just lucky to have a job" with
Respondent but denied that he told Reed that he would
deny making the statements to Reed . I do not regard it as
material whether he made the latter statement and shall not
resolve that conflict in testimony . Sikes sought to justify his
statements to Reed on the ground that if Reed hurt the
Company by his testimony it would be because Reed would
be lying . He meant only to warn Reed that he had better tell
the truth.
I have no doubt that but for Reed 's boasting remark to
a fellow employee that in his interview with company coun-
sel he had "really fixed the Company up," Sikes would not
have sought him out and warned him about the hotrodding
6 days earlier attributed to Reed by Foreman Martindale,
and concerning which Martindale had already talked to
Reed . What had angered Sikes and caused him to confront
Reed and warn him that he was lucky to have a job with
Respondent was the alleged remark to a fellow employee
about what he had told company counsel when called by the
latter for an interview . In these circumstances , the clear
implication of Sikes ' remark to Reed that he was lucky to
have a job with Respondent was that if Reed gave testimony
unfavorable to Respondent in the unfair labor practice
hearing , Respondent would in the future not be as tolerant
of Reed's fast driving or hotrodding of company vehicles as
it had been in the past.
The Board and courts have long recognized that an em-
ployer has a right , subject to certain limitations and safe-
guards , to question employees in the investigation of unfair
labor practice charges and the preparation of its defense.
This as the Court of Appeals for the Fifth Circuit pointed
out in N.L.R.B. v. Guild Industries Manufacturing and Paul
A. Saad, 321 F.2d 108, 114 (1963), " is a matter of drawing
a balance between the separable rights of the employer and
the employees , delicate in all events, and one that requires
the utmost care and good faith on the part of company
counsel ." One of the safeguards required of the employer or
his attorney agent in interviewing employees is that the
employee shall be assured that his participation in the inter-
8 Employee Denny confirmed the fact that he had reported to Martindale
that Reed had said " 1 really fixed the Company up" and Martindale con-
firmed the fact that he had relayed Denny's report to Sikes
view and what he might say in the interview will not result
in any reprisals against him.9 As I find, infra, Respondent's
counsel, at their intervues with each employee, did give the
necessary assurances. The effect of Sikes' statements to
Reed thereafter, however, was to cancel out and overrule
the assurances given by Respondent's counsel. It is no de-
fense that Sikes may merely have been trying to impart to
Reed a warning that Reed had better tell the truth when
testifying at the unfair labor practice hearing. The Act pro-
tects the employee against discrimination because he gives
testimony under the statute irrespective of whether the em-
ployer believes his testimony to be false or whether the
ultimate proof sustains the accuracy of the testimony. Amer-
ican International Aluminum Corp., 149 NLRB 1205, 1210.
The employer may not lawfully put employees under fear
of job reprisal for testifying freely at a Board hearing. To
do so, as Sikes sought to do in this case, constitutes not only
an interference with the integrity of the Board 's processes
but also restrains and coerces the employees in the exercise
of their rights guaranteed under Section 7 of the Act tojoin
and assist a labor organization and engage in other activities
for their mutual aid and protection. Sikes' conduct in this
respect was therefore in violation of Section 8(a)(1) of the
Act. See N.L.R.B. v. Scrivener d/b/a AA Electric Company,
405 U.S. 117; Dollar General Corporation, 189 NLRB 301.
3. Coercive statements attributed to Assistant
Vice President Hauser
The complaint charges Hauser with coercive statements
in preelection speeches made to groups of employees and
also in a conversation had with one of the employees on
election day wherein he indicated that employee Young had
been laid off because of his union activities.
a. The preelection speeches
Hauser had a total of five meetings with Respondent's
employees on two shifts during an approximately 2-week
period preceding the January 21 election on the subject of
the Union and the forthcoming election. During the first of
his meetings with each group of employees , he read from a
prepared question and answer form a statement, and at
those and subsequent meetings he expanded upon his argu-
ments against the need of union representation by
Respondent 's employees and entertained questions from
the floor. Those parts of his speeches alleged in the com-
plaint to be coercive were made in connection with his
comments about whether the choice of the Union would
result in the employees receiving some benefits, an account
of what had happened at Respondent's Anniston, Alabama,
branch where the Union had been selected as the employ-
ees' bargaining representative , and a statement as to the
circumstances under which Respondent might have to send
employees home rather than transferring them to other
work after they had finished their regular work for the day.
The General Counsel called seven witnesses to testify
about statements made by Hauser at the preelection meet-
9Johnme's Poultry Co, 146 NLRB 770, enforecment denied on other
grounds , 344 F 2d 617 (C A 8, 1965) Automotive Warehouse Distributors,
Inc, 171 NLRB 683, 684
454 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rags. The recollections of these witnesses were not all consis-
tent as to what was said and as to the context in which the
statements were made. Respondent called Hauser, Sikes
(who attended only one of the five meetings), and two em-
ployees. There were also inconsistencies in some of their
testimony. I have carefully weighed all of the testimony,
bearing in mind the tendency of witnesses in general to
testify as to their impressions or interpretations of what was
said rather than attempting to give verbatim accounts and
also bearing in mind that even the person testifying about
his own remarks may well tend to elucidate or express what
he said or intended to say in language more explicit or clear
than he used in the actual speech or discussion. Set forth
below is an account of what I believe is a substantially
correct version of Hauser's statements on the subjects in
issue.
During the course of the meetings, one employee asked
in connection with the question as to how collective bar-
gaining works, "Don't you start in negotiations with what
we have got already and go from there?" (Testimony of
employee Wright and Hauser.) The General Counsel's wit-
nesses testified almost uniformly that Hauser responded to
the effect that in bargaining, all benefits would be taken
from the employees and Respondent would then bargain
from nothing or from scratch. Thus, Knighten testified that
Hauser said "We wouldn't have nothing unless they were
negotiated back in"; Berry testified that Hauser "said em-
ployee benefits would be thrown out if it [the Union] came
in"; Wright testified that Hauser said "We would lose all
our benefits if the Union came in; we'd have to start from
the beginning, all over again if the Union came in"; Roden
testified that Hauser said "that if the Union came in, it
would take away all the benefits we had now and begin from
scratch in negotiations"; Brown testified that Hauser said
"that we didn't need a union and that if we went union, that
all the benefits we had now would be dropped and we would
have to start from scratch"; and Vanscoder testified that
Hauser said that "if the Union was to come in to the shop,
the employees would lose all their benefits and would start
from scratch, and the benefits they got would be through
bargaining."
On this subject Hauser himself was questioned and an-
swered as follows:
Q. (By Mr. Agee) Mr. Hauser, you testified that you
told the employees during these speeches to them at the
plant that, "We would actually start from scratch and
go from there," is that correct?
A. That that was the way we did it in Anniston.
Q. You told them that's the way you did it in Annis-
ton?
A. Yes.
Q. What got you on to the subject of benefits at that
point in the conversation?
A. Well, as well as I remember, there was a question
that was brought up about benefits, having to do with
what an employee had been told, or something to that
effect, that they would keep their benefits and go from
there.
Q. (Continuing) And to that you responded, ex-
plaining, "We would actually start from scratch and go
from there"?
A. No.
I explained to them, not necessarily so, that you
don't start from there, that all the benefits are negotia-
ble.
Q. Do you remember whether you told them that,
"We would actually start from scratch and go from
there" before or after this question was asked?
A. I don't recall.
Q. Mr. Hauser, did you tell the employees in any of
these meetings that that, at the commencement of neg-
otiations in Anniston, Alabama, "We took the position
that we were bargaining as though the employees had
nothing"?
A. Well, starting from scratch, yes. In reference to
the beginning from scratch, having to do with the bene-
fits, we were bargaining from nothing.
Q. Does bargaining from scratch mean to you that
the employees have nothing?
A. That we start from nothing, yes.
Q. And that's the way you intended the employees
to understand it, that scratch meant that they had noth-
ing?
. That we begin with nothing; that each benefit,
that each item that was discussed, each benefit was
negotiable.
Sikes similarly stated that Hauser took the position that
he was bargaining at Respondent's Anniston, Alabama,
branch as though the employees had nothing. He testified:
"I think that's the position he stated, probably, all along. I
think this was the intent that he meant in the meeting when
I was there, the fact that the benefits are negotiated and it's
just like wages. They are negotiated and, really, what you
start with is from nothing."
I have no doubt from the testimony of Hauser and Sikes
as well as from the testimony of the employees that whether
Hauser was describing the manner in which he proceeded
to bargain in Anniston or the manner in which he intended
to proceed at Foreman if the Union won the election (and
I believe that he was describing both), he meant to and did
leave the impression with the employees that all their ex-
isting benefits would be eliminated for purposes of bargain-
ing and that what they ended up with would depend in large
measure upon what the Union could induce Respondent to
restore. Thus, Respondent at the outset of bargaining would
be unilaterally changing the employees' existing working
conditions instead of bargaining with the Union about
whether any of those conditions should be changed and in
what manner-as the statute requires Respondent to do
once its employees have selected a bargaining representa-
tive. Hauser's statements in this regard interfered with, re-
strained, and coerced the employees in the exercise of their
Section 7 rights, including their exercise of a free choice at
the election (which occurred only about 24 hours after the
meeting at which Hauser made these statements) and con-
stitute a violation by Respondent of Section 8(a)(1) of the
Act. See Textron, Inc. (Talon Division), 199 NLRB No. 17,
and exhaustive analysis and collection of authorities by Ad-
ministrative Law Judge Sidney Sherman on this subject. See
SAUNDERS LEASING SYSTEM 455
also Suprenant Manufacturing Co. v. N.L.R.B., 341 F.2d 756,
761 (C.A. 6, 1965); N.L.R.B. v. Marsh Supermarkets, Inc.,
327 F.2d 109, 111 (C.A. 7, (1963) ), cert. denied 377 U.S.
944; Hendrix Manufacturing Co. v. N. L. R. B., 321 F.2d 100,
105 (C.A. 5, 1963); Famco, Inc., 158 NLRB 111, 115; Feder-
al Envelope Company, 147 NLRB 1030, 1037-41; Howell
Refining Company, 163 NLRB 18, 23; Bauer Welding &
Metal Fabricators, Inc., 154 NLRB 954, 962; and Winn-
Dixie Stores, Inc., 153 NLRB 273, 283.10
In connection with answering a question posed by Hauser
himself as to whether the employees would have to go out
on strike if the Union came in , Hauser gave as an example
what had happened in Respondent's Anniston, Alabama,
branch where the Union had won an election. There, he
stated, the parties had bargained but the Union was unwill-
ing to accept what Respondent was offering and went out
on a strike which lasted about 13 weeks; that as a result of
the strike, a customer upon whom Respondent depended
for its business, cancelled its contract with Respondent,
causing Respondent to lose about one-half its business and
to close down one of its shops in Anniston and consolidate
it with the remaining shop. He told the employees that when
the strike ended, the employees came back to work at or
about 2 cents an hour less, figured over a 3-year period, than
they would have received had they not gone out on strike
and accepted Respondent' s last offer before the strike. li He
stated, moreover, that as a result of the loss of business,
Respondent was unable to reinstate 15 of its employees. He
also reminded the employees that at Foreman,
Respondent's basic customer across the road from
Respondent's shop could cancel its contract with Respon-
dent in the event of a strike at Respondent's shop."
As already noted, Hauser, in addition, told the employees
that he had taken the position in bargaining at Anniston
about employee benefits that Respondent had started from
scratch and gone from there. I have no doubt that Hauser
intended to let Respondent's employees know that Respon-
dent opposed their selection of the union to represent them,
that Respondent believed that the Union would be bad for
them as well as for Respondent and that what had happened
10 Host International, Inc, 195 NLRB 348, and other cases cited by Re-
spondent in its brief are, in my opinion, distinguishable on their facts The
"bargaining from scratch " statements made in those cases did not , as in this
one, reasonably lead the employees to believe that the benefits they had
would be taken from them at the time bargaining began
11 Hauser testified at the hearing , in explanation of his statement , that the
Anniston employees under the terms of their signed contract after the strike,
received increases of about 30 cents an hour in pay, but that subtracting the
amount of their wages lost during the strike from their earnings over the
3-year period of the contract, they actually lost about 2 cents an hour by
striking I am satisfied , however , that Respondent did not make clear to his
Foreman employees the basis for his assertion that the Anniston employees
had lost 2 cents an hour
12 According to employee Knighten, Hauser told the employees that after
the strike at Anniston, "some of the employees went back to work with less
pay than they had" and that the plant there finally closed Wright's recollec-
tion was that Hauser had said that the Company "went out of business down
there on account of the union coming in " Reed testified that Hauser told
the employees that "after negotiations they [the Union] settled for two cents
less than what they had started with," and that the plant had to close down
on account of the union going in " Nevertheless , I am convinced that these
witnesses were merely testifying to impressions of what was said to them and
that the account given by Hauser and set forth in the test above is a more
accurate account of what Hauser actually said
at the Anniston branch could well happen at the Foreman
branch. However, except for Hauser's statement about
starting from scratch in bargaining about employee bene-
fits, which I have already found is inconsistent with a duty
to bargain in good faith, I am not persuaded that Hauser's
statements about the Anniston plant went beyond the ex-
pression of lies, arguments, and opinions permissible under
Section 8(c) of the Act.
At one of the meetings an employee stated his preference
for working at one job rather than at several and asked
Hauser how the selection of the Union would affect this
situation. Hauser responded that if it was provided in the
union contract that an employee could work in only one
classification, then Respondent would have to send an em-
ployee home when he finished his regular work because it
could not afford to pay him for doing nothing. Hauser
added that he did not think such a result would be good for
the Company or for the employees (testimony of employees
Yauger, Shaver, and Knighten and of Hauser)." I do not
regard Hauser's statements on this subject as a threat to
institute a permanent assignment system or as otherwise
coercive.
B. The alleged coercive statements made to employee Roden
At one of the meetings held by Hauser with groups of
employees dust before the election, employee Roden indi-
cated that he would like to have a private talk with Hauser.
On election day, but before the time set for the election,
Hauser and Roden had a conversation. According to Ro-
den, Hauser asked him if the latter had any questions to ask
before the election started. Roden told Hauser that some of
the employees believed that Bob Young and some of the
other employees had been laid off because of their union
activities. There is a conflict in the testimony of Roden and
Hauser as to Hauser's response. According to Roden, Hau-
ser replied that during the preceding year when Young had
supported the Teamsters Union which had tried to organize
the shop but had lost the election, Young had quit his em-
ployment with Respondent and obtained employment else-
where; that when Young later sought his job back, Plant
Manager Sikes had called Hauser on the phone and asked
Hauser's advice about hiring Young back; that Hauser had
told Sikes that "he shouldn't, but to go ahead if he wanted
to"; that Sikes had thereupon rehired him. Roden further
testified that Hauser said "Now here he is in this again this
year. . . . What else do you do to a guy like that?" That
Roden then told Hauser that he did not believe that Young
was "the one that got the Union going," and that Hauser
replied, "Yeah, I know the man that got it going. He's down
there working right now, downstairs." Then, according to
Roden, he told Hauser that he did not believe Young had
much to do with the Union until after he got laid off and
that it was only then that he had `jumped in with all four
13 Two of the employees understood Hauser to say that the "permanent
assignment" situation to which Hauser was referring would result if the
Union won the election not lust in the event a provision for it was negotiated
in the contract (Berry and Roden) and one employee (Reed) understood him
to say that the "permanent assignment" would come about as a result of the
Union requiring tests for job classifications I am convinced on the basis of
all the evidence, however, that the version set forth in the text is the more
accurate
456 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
feet," whereupon Hauser "said that he knew that Bob
[Young] was involved in it."
Hauser's version of the conversation is to the effect that
after Roden informed him that some of the employees be-
lieved that Young was laid off because of his union activi-
ties, Hauser explained to him that this was not so; that when
the Teamsters Union was attempting to organize the shop,
Young had openly supported that Union without any ad-
verse effect on his job; that when Young, after thereafter
voluntarily quitting, returned to the plant and asked to be
rehired, Sikes called Hauser and asked whether he could
give seniority to Young based on the date of his original
employment (thereby showing no hostility to Young based
on his previous union activity); that Hauser refused to ap-
prove the grant of the seniority because that would be con-
trary to Respondent's established policies. According to
Hauser, he also told Roden that Young had an opportunity,
after receiving his layoff notice, to bump into a lower job
classification that Young had chosen not to do so and had
"gone out the door" instead. Hauser asked Roden, "what
else could we do?"
Without attempting to decide precisely what was said at
this interview, I am persuaded that Roden misinterpreted
some of Hauser's statements and drew unwarranted infer-
ences from them. I am convinced, as Hauser testified, that
he was attempting to assure Roden that Young had not been
laid off because of his union activities and that Respondent
had done all it reasonably could have done for Young in
these circumstances. It is probable, as Roden testified, that
Hauser did acknowledge knowing that Young was involved
with the Union but Hauser, if he made the statement attri-
buted to him, was undoubtedly referring to Young's open
union activities subsequent to his layoff. Hauser credibly
testified that he did not even know that there was any union
activity among the employees until after the Union on De-
cember 22 sent Respondent its request for recognition.
It is accordingly found that a preponderance of the credi-
ble evidence does not support the allegation of the com-
plaint that Hauser told an employee that enother employee
was selected for layoff because of his union activity.
4. Alleged coercive conduct attributed to Respondent's
counsel
The complaint, as amended, alleges and the General
Counsel sought to show that during interviews with
Respondent's employees in February and in June 1972, in
connection with investigating objections to the election and
unfair labor practice charges, Respondent's counsel interro-
gated two employees as to whether they had signed union
authorization cards and inquired of one of them as to
whether he had handed out authorization cards and from
whom he got the cards. The General Counsel relies upon the
testimony of two employees, Roden and Berry, to support
these allegations.
Roden testified that shortly after the election, he was
called to Respondent's offices and interviewed by
Respondent's attorney Edward R. Young who, despite as-
suring Roden that he was not going to ask who was passing
out union cards or whether Roden was for the Union, later
did ask Roden, among other things, whether Roden had
handed out any union cards or signed one. Roden upon that
occasion admittedly signed a preliminary statement pre-
pared by Young in which Young introduced himself, told
the purpose of the interview, assured Roden that his partici-
pation or lack of participation would in no way affect his
job, that he had a right to join or not to join a union without
fear of reprisals, stated that Respondent was not interested
in determining whether Roden was for or against the Union
and that it was interested only in learning the truth, and
requested Roden's signature to the statement if he was will-
ing to paricipate in the investigation.
Berry had two meetings with Respondent's attorney,
George D. McCrary. He testified that at one of these meet-
ings , "I think he asked did I sign a union card." When
pressed for a more positive answer, Berry responded "I
don't remember. I just was recalling that." At one or both
of these interviews Berry signed a statement identical in
form to that signed by Roden.
Both Young and McCrary categorically denied the
above-described statements attributed to them. Young
credibly testified that he interviewed six of Respondent's
employees, including Roden, in February 1972 in connec-
tion with investigating objections to the election and the
layoff; that he commenced each interview by introducing
himself and reading the prepared statement or "waiver"
which Roden and Berry described."' Young then asked each
employee to sign this statement if he was willing to cooper-
ate. He did ask Bob Young, whose alleged discriminatory
layoff was under investigation, whether he had handed out
union cards and from whom he got the cards but did not
ask those questions of Roden or any other employee he
interviewed. Nor did he ask any employee whether he had
signed a union card.
McCrary credibly testified that he interviewed a total of
13 or 14 employees in June or during the week before the
hearing in connection with investigating the charges and
preparing for the hearing; that in each instance , he read the
form of preliminary statement described above and asked
each employee to sign it if he was willing to cooperate in the
investigation; that Berry was one of the employees McCrary
interviewed in June and again during the week before the
hearing; that McCrary did not ask Berry whether he had
signed a union card and Berry did not volunteer any infor-
mation on that subject. McCrary further testified that he did
ask the following question in investigating the alleged discri-
14 The test of this statement reads as follows.
TO ALL EMPLOYEES
I am , the company attorney
The only purpose I have in interviewing you is to prepare a defense
to unfair labor practice charges which have been filed by the union
against the company
Your participation or lack of participation in this investigation will
not in any way affect your job or your rights as an employee
We are not interested in determining whether you are for or against
the union
We positively assure you that you have the right to join or not to join
any labor organization without fear of reprisals
We are interested only in the truth!
If you agree to participate in this investigation, would you please sign
your name below to show that you have read this page
x
SAUNDERS LEASING SYSTEM 457
minatory layoff of Bobby Young: "I don't want to know
where, how, from whom; but did you know that Bob Young
was a union supporter before the time he was laid off?"
I have no doubt as to the honesty and integrity of Attor-
neys Young and McCrary. I accept their explanation of the
manner in which their interviews were conducted and their
denials that they questioned employees Roden or Berry
about those employees' union activities. It is therefore
found that Respondent did not violate Section 8(a)(1) of the
Act, as alleged in the complaint, by reason of any activities
of their counsel.
Recommendations regarding Case 26-CA-4225
It having been found that Respondent has engaged in
unfair labor practices in violation of Section 8(a)(1) of the
Act, my recommended Order will require that it cease and
desist therefrom and take the affirmative action normally
required to remedy unfair labor practices of the nature
found.
Upon the foregoing findings of fact and conclusions of
law, upon the entire record , and pursuant to Section 10(c)
of the Act , I issue the following recommended:
Conclusions of Law
1. By threatening unilaterally to withdraw all employee
benefits and bargain from scratch should its employees se-
lect the Union to represent them, Respondent has interfered
with, restrained, and coerced its employees in the exercise
of their rights guaranteed under Section 7 of the Act, in
violation of Section 8(a)(1) of the Act, and by the same
conduct it has interfered with a free and untrammeled
choice by the employees at the polls.
2. By threatening an employee with job reprisal if he
testified unfavorably to Respondent at a Board hearing,
Respondent has interfered with, restrained, and coerced the
employee in the exercise of his rights guaranteed in Section
7 of the Act, in violation of Section 8(a)(1) of the Act.
3. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
4. Respondent did not violate the statute by laying off
employee William R. Young or by any other conduct al-
leged in the complaint except as above found.
The Remedy
Recommendations Regarding Case 26-RC-4137
It having been found that employee William R. Young
was not discriminatorily selected for layoff as alleged in the
complaint, it is recommended that the challenge to his bal-
lot cast in the January 21, 1972, election be sustained. There
are two ballots, the challenges to which have been over-
ruled, but their counting has been held in abeyance pending
a resolution of the challenge to Young's ballot. Because I
have sustained the challenge to Young's ballot, it will not be
necessary to open and count the other two challenged bal-
lots, for those ballots, even if both were cast for the Union,
could not result in a majority vote for the Union.
In view of my finding that Respondent interfered with the
exercise by its employees of a free and untrammeled choice
at the polls by telling them, in effect, that it would eliminate
existing benefits and bargain about any benefits from
scratch if they choose the Union to represent them, it is
recommended that the election results be set aside, that
Case 26-RC-4137 be severed from this proceeding and re-
manded to the Regional Director for Region 26 for the
purpose of conducting a new election at such time as he
deems the circumstances will permit the free choice of a
bargaining representative.
ORDER15
Saunders Leasing System, Inc., its officers, agents, succes-
sors, and assigns, shall:
1. Cease and desist from:
(a) Threatening unilaterally to withdraw employee bene-
fits and bargain from scratch should its employees select
United Cement, Lime & Gypsum Workers International
Union, AFL-CIO, to represent them.
(b) Threatening any employee with job reprisal should he
testify unfavorably to Respondent in a National Labor Re-
lations Board hearing.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of their
Section 7 rights.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act:
(a) Post at its Foreman, Arkansas, facilities copies of the
attached notice marked "Appendix."16 Copies of the notice,
on forms provided by the Regional Director for Region 26,
after being duly signed by an authorized representative of
Respondent, shall be posted by Respondent immediately
upon receipt thereof, and be maintained for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to insure that the
notices are not altered, defaced, or covered by any other
material.
(b) Notify the Regional Director for Region 26, in writ-
ing, within 20 days from the date of this Order, what steps
Respondent has taken to comply herewith.
IT is ALSO ORDERED that the complaint be dismissed insofar
as it alleges unfair labor practices not herein found.
IT IS FURTHER ORDERED that the election conducted in Case
26-RC-4137, be and it hereby is set aside; that said case be
and it hereby is remanded to the Regional Director for
Region 26 for the purpose of conducting a new election at
such time as he deems the circumstances permit the free
15 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec. 102 48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions, and order, and all objections thereto shall be deemed
waived for all purposes
16 In the event that the Board's 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 "
458 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
choice of a bargaining representative.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
with, restrain , or coerce our employees in the exercise
of their rights guaranteed under Section 7 of the Na-
tional Labor Relations Act.
Dated By
WE WILL NOT threaten unilaterally to withdraw em-
ployee benefits and bargain from scratch should our
employees select United Cement, Lime & Gypsum
Workers International Union , AFL-CIO, to represent
them.
WE WILL NOT threaten any employee with job reprisal
should he testify unfavorably to us at any National
Labor Relations Board hearing.
WE WILL NOT in any like or related manner interfere
SAUNDERS LEASING SYSTEM.
INC
(Employer)
(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 compliance with its provisions may be direct-
ed to the Board 's Office , Clifford Davis Federal Building,
Room 746 , 167 North Main Street , Memphis, Tennessee
38103 , Telephone 901-534-3161.