Somerset Welding & Steel

National Labor Relations Board - Board Decisions

Aug 13, 1991

304 N.L.R.B. 32 (N.L.R.B. 1991)

32
304 NLRB No. 21
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
1 The Respondent has excepted to some of the judge’s credibility findings.
The Board’s established policy is not to overrule an administrative law judge’s
credibility resolutions unless the clear preponderance of all the relevant evi-
dence convinces us that they are incorrect. Standard Dry Wall Products, 91
NLRB 544 (1950), enfd. 188 F.2d 362 (3d Cir. 1951). We have carefully ex-
amined the record and find no basis for reversing the findings.
2 NLRB v. Gissel Packing Co., 395 U.S. 575 (1969). 3 The employee in question was his son, John Tims Jr.
Somerset Welding & Steel, Inc. and United Steel-
workers of America, AFL–CIO–CLC. Cases 6–
CA–19922, 6–CA–20034, 6–CA–20096, 6–CA–
20250, and 6–RC–9822
August 13, 1991
DECISION AND ORDER
BY CHAIRMAN STEPHENS AND MEMBERS
DEVANEY AND OVIATT
On December 22, 1989, Administrative Law Judge
Joel A. Harmatz issued the attached decision. The Re-
spondent and the General Counsel each filed excep-
tions, a supporting brief, and an answering brief.
The National Labor Relations Board has delegated
its authority in this proceeding to a three-member
panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions except as modified below and to adopt the
recommended Order as modified.
I. BACKGROUND
The Respondent, which operates three facilities in or
near Somerset, Pennsylvania, is engaged in the cus-
tomized manufacture, installation, and repair of truck
bodies, trailers, and truck equipment. There is no his-
tory of collective bargaining. A union campaign began
at the Respondent’s facilities in March 1987, culminat-
ing in a May 15, 1987 election. A revised tally of bal-
lots showed 64 votes for the Union, 71 against. Both
sides filed objections (the Respondent’s have been
withdrawn). The campaign gave rise to several allega-
tions that the Respondent had engaged in various un-
fair labor practices and that, as part of a remedy for
these unfair labor practices, a Gissel2 bargaining order
was warranted. The Respondent denied having com-
mitted any unfair labor practice.
II. DISCUSSION
A. The 8(a)(1) Violations
The judge found, and we agree, that the Respondent
committed numerous violations of Section 8(a)(1) of
the Act during the campaign. Guy Rush, the Respond-
ent’s vice president in charge of production, coercively
interrogated employees about union activities and im-
plied to one of them that one of the Respondent’s three
facilities would be closed if the Union won the elec-
tion. John Tims Sr., superintendent of one of the Re-
spondent’s facilities, coercively interrogated an em-
ployee3 the night before the election, stated that the
loss of all benefits or plant closure would follow a
union victory, and threatened to fire the employee.
Dwight Clyde, plant manager of one of the Respond-
ent’s facilities, coercively interrogated an employee
about his attitude towards the Union. Clyde told one
employee (and was overheard by another) that if the
men in the shop knew what was good for them, they
would vote against the Union. He threatened several
employees, after a captive-audience meeting, by imply-
ing, based on isolated evidence, that unionization and
its attendant wage increases would make one of the
Respondent’s facilities unprofitable. Clyde also told a
group of five or six employees, during the week before
the election, that the Respondent’s chairman, Sidney
Riggs, was very angry about the Union and would
close the plant if the Union won the election. Roger
Pyle, a first-line supervisor, stated on at least two oc-
casions that Riggs would close the plant if the Union
won. Rod Berkley, another first-line supervisor, told
employees that if the Union won wages would be put
back to zero, people would probably lose their jobs,
union supporters would be disciplined or fired, and the
plant would probably close.
B. The 8(a)(3) Violations
The judge also found, and we agree, that the Re-
spondent violated Section 8(a)(3) and (1) of the Act by
denying employee Thomas Deist a promised wage in-
crease, a few days after Deist had attended a union
meeting where he signed an authorization card.
The judge found that the Respondent violated Sec-
tion 8(a)(3) and (1) of the Act by discriminatorily
transferring employee Randy Keyser, an active union
supporter. In reaching this conclusion, the judge found
that ‘‘Keyser was replaced on the hydraulic work at
the Trailer plant from which he was transferred by
Jack Updyke and Clyde Smith.’’ The judge found that
the transfer reduced neither Keyser’s pay rate nor his
benefits, but that during the relevant period after the
transfer until Keyser voluntarily quit on August 7,
Updyke worked 195 hours, Smith worked 200 hours,
and Keyser estimated that he worked 168 hours. The
judge found that Keyser was transferred from one
time-critical job to another. Stating that ‘‘the issue is
not free from doubt,’’ the judge concluded that
‘‘Keyser’s unprecedented removal from the Trailer de-
partment, with the commitant loss of overtime’’ vio-
lated Section 8(a)(3) and (1) of the Act.
The Respondent excepted to this conclusion. We
find merit in the Respondent’s exceptions, and we con-
clude, for the reasons set forth below, that Keyser’s
33SOMERSET WELDING & STEEL
4 In Harrison Steel Castings, the Board stated that the respondent had
‘‘manifested overt hostility to the union activists in its work force’’ and there-
fore ‘‘could not lawfully go on to suggest the loss of jobs as a result of loss
of business to the competition without demonstrating to employees that such
a chain of causation would be brought about through forces beyond the Re-
spondent’s control.’’ Id. at 1159.
5 The judge found that a bargaining order was necessary in light of all the
illegal conduct he had found the Respondent to have engaged in, including
Riggs’ statements.
6 The coercive effect of these threats and interrogations is especially great
because they were communicated by the Respondent’s most senior managers.
Cf. Midland-Ross Corp. v. NLRB, 617 F.2d 977, 987–988 (3d Cir. 1980) (bar-
gaining order justified where violations committed by high ranking managers
but no finding of violations by president). We also find that the timing of the
Respondent’s virulent antiunion campaign, which coincided almost to the day
with the advent of the Union on the scene, further heightened its impact on
employees. See Astro Printing Services, 300 NLRB 1028 (1990) (unfair labor
practices commenced on the day the union demanded recognition).
transfer did not violate Section 8(a)(3) and (1) of the
Act.
Our examination of the record persuades us that
Keyser was not transferred from a time-critical job at
the Trailer plant. Rather, the record references to a
‘‘rush’’ job at the Trailer plant pertained to the mili-
tary trailer project that was completed before Keyser
was transferred. Nor do we believe that it is com-
pletely accurate to state that Updyke and Smith ‘‘re-
placed’’ Keyser. The record indicates that they were
already doing hydraulic work at the Trailer plant be-
fore Keyser’s transfer. They simply took on more work
in his absence. In light of these conclusions, and the
judge’s concession that the issue was ‘‘not free from
doubt,’’ we do not believe that the difference between
the number of hours worked by Updyke and Smith and
the number of hours Keyser estimated he worked is
sufficient to justify a finding of a discriminatory trans-
fer. Accordingly, we reverse the judge’s conclusion
that the Respondent violated Section 8(a)(3) and (1) of
the Act by transferring Keyser.
C. Conduct of Respondent’s Chairman
Relying on Harrison Steel Castings, 293 NLRB
1158 (1989),4 the judge concluded that Chairman Sid-
ney Riggs’ oral and written communications during the
campaign violated Section 8(a)(1) of the Act. He found
that Riggs violated the Act by associating unionization
with loss of jobs and plant closure and that Riggs’ ref-
erences to a bargaining strategy that would allow the
process to begin from ‘‘scratch,’’ ‘‘zero,’’ or ‘‘the
minimum wage,’’ in the context of other supervisors’
coercive statements (especially John Tims Sr.’s state-
ment that if the Union was voted in the company
would take away all employee benefits) violated Sec-
tion 8(a)(1) of the Act.
Riggs held a series of four captive-audience meet-
ings at each facility. He spoke without a prepared text,
then answered questions. Riggs discussed local plants,
most but not all unionized, that had closed in recent
years. Referring to newspaper articles, he attributed the
closures partly, but not entirely, to labor problems
caused by unions. Because we conclude that the Re-
spondent’s other violations form a sufficient basis for
a bargaining order, we find it unnecessary to decide
whether Riggs’ conduct violated Section 8 (a)(1) of the
Act.
THE REMEDY
We find that a bargaining order is necessary in this
case even assuming that the statements made by Riggs
were lawful.5 The Supreme Court held in NLRB v.
Gissel Packing Co., 395 U.S. 575, 614–615 (1969),
that where
the possibility of easing the effects of past prac-
tices and of ensuring a fair election (or a fair
rerun) by the use of traditional remedies, though
present, is slight and . . . employee sentiment
once expressed through cards would, on balance,
be better protected by a bargaining order, then
such an order should issue.
Applying this standard, we find that a bargaining order
is warranted here.
The judge found, and we agree, that Vice President
in Charge of Production Guy Rush coercively interro-
gated employees concerning their union activities and
threatened plant closure and job loss in the event of a
union victory. John Tims Sr., the superintendent of one
of the Respondent’s facilities, not only coercively in-
terrogated his son, but also threatened to fire him and
told him that the loss of all benefits or plant closure
would follow unionization. Plant Manager Dwight
Clyde coercively interrogated an employee, warned
that employees would vote against the union if they
knew what was good for them, implied to several em-
ployees that unionization would be fatal to the Re-
spondent, and told a group of five or six employees
during the last week of the campaign that Riggs was
very angry about the Union and would close the plant
in the event of a union victory. In addition, Super-
visors Roger Pyle and Rod Berkely similarly threat-
ened that Riggs would close the plant if the Union
won, and Berkely threatened drastically lower wages,
job loss, the disciplining and firing of union support-
ers, and plant closure.
We have emphasized, with court approval, that
threats of plant closure and discharge not only are
‘‘hallmark’’ violations but are ‘‘‘among the most fla-
grant’ of unfair labor practices.’’ Action Auto Stores,
298 NLRB 875 (1990) (citing Indiana Cal-Pro, Inc. v.
NLRB, 863 F.2d 1292, 1301–1302 (6th Cir. 1988),
enfg. 287 NLRB 796 (1987)).6 Moreover, the judge
found, and we agree, that the Respondent violated Sec-
tion 8(a)(3) by denying a promised wage increase to
employee Thomas Deist because of his union activi-
ties. As in Action Auto and Indiana Cal-Pro, we find
that these 8(a)(1) and (3) violations, which threaten the
34 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Our dissenting colleague recognizes the presence of hallmark violations in
this case but discounts their significance in part because he contends they were
not sufficiently disseminated. However, our colleague acknowledges the role
played by Riggs’ statements to employees in thoroughly airing the Respond-
ent’s views on unionization. Under these circumstances, we find that the im-
pact of the unfair labor practices was sufficiently pervasive that it is unlikely
that our usual remedies will erase their effects. Cf. Action Auto, above (unfair
labor practices at 8 of Respondent’s 12 stores sufficient to warrant bargaining
order even in absence of finding that knowledge of respondent’s actions was
disseminated).
8 In this regard, and pursuant to the General Counsel’s request, we correct
the two references in the judge’s Conclusions of Law to the date ‘‘March 17,
1989’’ to read ‘‘March 17, 1987.’’
9 Our dissenting colleague suggests that, as an alternative to a bargaining
order, we order Riggs to read the Board’s notice aloud to the employees. We
regard this asserted alternative as illusory; the cases cited by our colleague re-
flect the lack of court approval for this remedy. St. Agnes Medical Center v.
NLRB, 871 F.2d 137 (D.C. Cir. 1989), NLRB v. Village IX, Inc., 723 F.2d
1360 (7th Cir. 1983), and NLRB v. K & K Gourmet Meats, 640 F.2d 460 (3d
Cir. 1981), cited by our colleague, are distinguishable as the unfair labor prac-
tices ultimately relied on to support a bargaining order in those cases did not
include threats of plant closure or other unfair labor practices as serious as
those present in this case. Moreover, the unfair labor practices here are suffi-
ciently severe that only a bargaining order will effectuate the employees’ right
to freely choose whether to engage in collective bargaining. In this regard, we
also disagree with our colleague’s suggestion that a Board election should be
viewed as a means of remedying unfair labor practices, as these employees
have a statutory right to participate in an election free of lingering coercion.
very livelihood of employees, are likely to have a last-
ing impact which is not easily erased by the mere pas-
sage of time or the Board’s usual remedies.7 Accord-
ingly, a bargaining order is necessary to remedy the
unfair labor practices which we have found and to ef-
fectuate the employees’ sentiment, as expressed in the
Union’s valid card majority, in favor of representation.
Finally, we respectfully disagree with our col-
league’s reluctance to give the Union’s card majority
the deference which it is due under our precedent. Of
course, we agree with our colleague that elections are
the preferred method for determining employee wishes.
However, our colleague does not dispute that, as of
March 17, 1987, a majority of unit employees had
signed valid and unambiguous authorization cards.8
Under these circumstances, and consistent with the Su-
preme Court’s observation in Gissel, ‘‘[w]e cannot
agree . . . that employees as a rule are too unsophisti-
cated to be bound by what they sign.’’ Gissel, above
at 607.9
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge as
modified below and orders that the Respondent, Som-
erset Welding & Steel, Inc., Somerset, Pennsylvania,
its officers, agents, successors, and assigns, shall take
the action set forth in the Order as modified.
1. Substitute the following for paragraph 1(d).
‘‘(d) Discouraging employees from engaging in
union activity by denying wage increases, or in any
other manner discriminating with respect to their
wages, hours, or terms and conditions and tenure of
employment.’’
2. Substitute the following for paragraph 2(b).
‘‘(b) Make whole Thomas Deist for earnings lost by
reason of the discrimination against him, with interest,
as set forth in the remedy section of this decision.’’
3. Substitute the attached notice for that of the ad-
ministrative law judge.
MEMBER OVIATT, dissenting in part.
My dissent is limited to two issues. Unlike my col-
leagues, I believe that we should decide whether the
preelection conduct of the Respondent’s chairman, Sid-
ney Riggs, violated Section 8(a)(1) of the Act. I would
find that Riggs’ stated intention to bargain from
scratch violated the Act. I would also find his state-
ments relating to plant closure unlawful, but only as
interpreted by certain of the Respondent’s supervisors.
I nonetheless dissent from my colleagues’ conclusion
that a bargaining order is warranted in this case.
As a threshold matter, I agree with the judge’s con-
clusion that, despite the puzzling omission from the
four separate unfair labor practice complaints of allega-
tions that Riggs, in April and May 1987, threatened
employees with plant closure or job loss in the event
of unionization, it was appropriate for the judge to
make findings as to this matter. In my view, ‘‘the mat-
ter was related to other allegations of the complaint,
fully and fairly litigated, and not prejudicial to the Re-
spondent.’’ Northern Wire Corp., 291 NLRB 727 fn.
1 (1988). I note that the Respondent did not object
when this matter was raised at the hearing.
While I believe that much of what Riggs said con-
sisted of accurate factual reports and legitimate efforts
during a vigorously contested campaign to persuade
the employees as to the likely consequences for the
Respondent of unionization, in a few crucial respects
he exceeded permissive bounds. Thus, Riggs made
statements indicating that if the Union won the elec-
tion the Respondent would adopt a bargaining strategy
that would place all existing benefits on the negotiat-
ing table, and allow the process to begin from
‘‘scratch,’’ ‘‘zero,’’ or ‘‘the minimum wage.’’ These
statements, in my view, could reasonably have been
understood by employees as threats of the loss of ex-
isting benefits. I would therefore find them violative of
Section 8(a)(1) of the Act.
Riggs also discussed the closure of a number of
other local plants, all but one unionized, and admitted
telling his employees that ‘‘if we’re not careful and we
don’t learn from what’s going on here, that it could
happen in Somerset.’’ He also informed the employees
that the Respondent could afford no more than the cur-
rent wages and benefits. In my view, the threats of
plant closure by the Respondent’s other supervisors
provided an interpretive gloss on Riggs’ statements on
the subject. I would find that those employees who
heard both Riggs’ statements and any of the other su-
pervisors’ plant closure statements were threatened in
violation of Section 8(a)(1) of the Act. I do not, how-
35SOMERSET WELDING & STEEL
1 The majority, rejecting this alternative as ‘‘illusory,’’ states that the cases
I cite above ‘‘reflect the lack of court approval for this remedy.’’ It is fair
to observe, however, that courts have not been uniformly enthusiastic about
the bargaining order remedy adopted by the majority. See, e.g., NLRB v. K
& K Gourmet Meats, supra; St. Agnes Medical Center v. NLRB, 871 F.2d 137,
147 (D.C. Cir. 1989) (bargaining order will be enforced only where court can
determine (1) that Board gave due consideration to employees’ Sec. 7 rights,
which are, after all, one of fundamental purposes of the Act, (2) why the
Continued
ever, find that Riggs’ plant closure statements standing
alone were unlawful.
Nor would I affirm the judge’s conclusion that a
bargaining order is warranted. As an initial matter, I
would emphasize the nature of a remedial bargaining
order. NLRB v. Gissel Packing Co., 395 U.S. 575, 602
(1969) (secret elections are generally the most satisfac-
tory—indeed the preferred—method of ascertaining
whether a union has majority support). In NLRB v. K
& K Gourmet Meats, 640 F.2d 460, 469–470 (3d Cir.
1981), the court noted that the selection of an exclu-
sive collective-bargaining agent is not a game of
chance but a matter of the highest importance to em-
ployees and employers alike, and that legislation and
experience indicate that an employee’s statutory right
to select an exclusive bargaining agent should be deter-
mined by democratic process in a free and open elec-
tion. The court stressed that the Board’s responsibility
for holding such elections was not meant to be sup-
planted by the authority found to exist in Gissel and
that only where the extensive machinery and power of
the Board are inadequate to ensure a free election,
should employees be denied their right to cast a secret
ballot for or against an exclusive bargaining agent. The
court held that a bargaining order is not a routine rem-
edy and, because it operates to disenfranchise the
workers in the choice of their representative, it is ap-
propriate only when the harmful effects of that dis-
enfranchisement are outweighed by the positive ad-
vancement of the policies underlying Federal labor
law, which are neutral as to the formation of collec-
tive-bargaining relationships. The court emphasized
that the employees’ freedom of association and free-
dom to select a bargaining agent may be substantially
diminished by dependence on authorization cards. See
also United Dairy Farmers Cooperative Assn. v.
NLRB, 633 F.2d 1054, 1067 (3d Cir. 1980) (the Su-
preme Court has noted the acknowledged superiority
of the election process as a method for selecting a ma-
jority representative of employees); NLRB v. Eagle
Material Handling, 558 F.2d 160, 166 (3d Cir. 1977)
(selecting bargaining representatives through traditional
election processes is a general and highly desirable
practice).
I find it troubling that when the Board issues a bar-
gaining order in a ‘‘category two’’ Gissel situation it
may deny the right of a majority of employees to re-
ject the union in a secret ballot election even though
a majority may have signed authorization cards. I lean
toward reliance on the electoral process to remedy un-
fair labor practices in part because of my understand-
ing of how card solicitation works. Even without mis-
representation or coercion, cards are often signed with-
out much exposure to the competing arguments that
characterize an election campaign. Indeed, it has been
my experience that employees often sign cards merely
to escape the attentions of the union organizer.
My colleagues point out that this case is not free
from violations of Section 8(a)(3) of the Act. Neither,
however, does it involve a large number of egregious
violations. We have reversed the judge’s conclusion
that the Respondent discriminatorily transferred em-
ployee Randy Keyser. The remaining 8(a)(3) violation
is the denial of a wage increase to employee Thomas
Deist. While not trivial, this violation is certianly less
serious than, for example, a discriminatory discharge.
No one lost his job here. Nor does the record before
us show that the Respondent has a history of opposi-
tion to unionization. Cf. Hedstrom Co. v. NLRB, 629
F.2d 305, 312 (3d Cir. 1980).
While I would find that Riggs violated the Act by
threatening to bargain from scratch, this is not a ‘‘hall-
mark’’ violation of the type that would normally give
rise to a bargaining order. NLRB v. Jamaica Towing,
632 F.2d 208, 212–213 (2d Cir. 1980). The plant clo-
sure threat is a ‘‘hallmark’’ violation, id., but I would
find that only those employees who heard Riggs’ plant
closure statements and the interpretive statements by at
least one of the other supervisors were threatened. The
record does not demonstrate that the statements (with
respect to both plant closure and other subjects) by the
other supervisors, all of which were made to small
numbers of employees, were disseminated to anyone
who did not hear them directly. Thus, in a unit of
more than 130 employees, approximately a dozen
heard the other supervisors’ statements. In my view,
the threat here was not communicated to a ‘‘significant
percentage of employees in the bargaining unit.’’
Rapid Mfg. Co. v. NLRB, 612 F.2d 144, 149 (3d Cir.
1979).
I do not minimize or condone the Respondent’s vio-
lations of the Act. Indeed, I believe that it would be
quite appropriate in this case for the Board to order
Chairman Riggs to read the Board’s notice to the em-
ployees, rather than merely to post it. I do not agree
with those courts that have criticized such require-
ments as humiliating or degrading. Electrical Workers
IUE v. NLRB, 383 F.2d 230 (D.C. Cir. 1967); NLRB
v. Laney & Duke Storage Warehouse Co., 369 F.2d
859 (5th Cir. 1966). Such a requirement would go far
toward dissipating the effects of the Respondent’s un-
fair labor practices and clearing the air in preparation
for a fair rerun election.1 But a fair election, not a bar-
gaining order, is the proper medicine here.
36 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Board concluded that other purposes must override rights of employees to
choose their bargaining representative, and (3) why other remedies, less de-
structive to employees’ rights, are not adequate); NLRB v. Village IX, Inc., 723
F.2d 1360, 1370–1371 (7th Cir. 1983) (bargaining order will not, except in
most egregious circumstances, be issued as way of punishing employer for
committing unfair labor practices unless practices were so serious that employ-
ees would be intimidated from voting their true preferences in a new election
even if no unfair labor practices were committed in the campaign leading up
to that election and even though a new election would be held by secret bal-
lot). I also note that the finding by the judge that the ‘‘cards signed by a ma-
jority of the unit employees on or before March 17 furnishes a more reliable
indicia of employee choice than might be possible through a future election’’
(emphasis added) (infra at 41) does not meet the test required by the Supreme
Court in Gissel. The Court held there, and we and the courts have assiduously
attempted to follow the concept, that there must be a finding of fact that, in
view of the unfair labor practices, the likelihood that a fair election could be
held is slight. I do not find the test to be, as the judge’s finding and rationale
might imply, what the judge or the Board thinks is the better way to obtain
the employees’ views with respect to unionization. The better way is an elec-
tion. Recourse to cards, under Gissel, is justified when this better way is found
to have been foreclosed.
1 Somerset Welding & Steel, 291 NLRB 913 (1988).
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found that we
violated the National Labor Relations Act and has or-
dered us to post and abide by this notice.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representatives
of their own choice
To act together for other mutual aid or protec-
tion
To choose not to engage in any of these pro-
tected concerted activities.
WE WILL NOT coercively question you about your
own or the union activity of your coworkers.
WE WILL NOT threaten you with discharge or other
reprisals in retaliation for union activity.
WE WILL NOT threaten you with loss of jobs, wages,
and benefits in the event you designate United Steel-
workers of America, AFL–CIO–CLC, or any other
labor organization, as your exclusive collective-bar-
gaining representative.
WE WILL NOT discourage you from engaging in ac-
tivity on behalf of United Steelworkers of America,
AFL–CIO–CLC, or any other labor organization, by
denying a promised pay increase or in any other man-
ner discriminating with respect to wages, hours, and
working conditions or tenure of employment.
WE WILL NOT refuse to recognize United Steel-
workers of America, AFL–CIO–CLC as the exclusive
collective-bargaining representative of our employees
in the appropriate unit defined below:
All full-time and regular part-time production and
maintenance employees employed by us at our
Somerset plant, Trailer plant and Bulow building
facilities in Somerset County, Pennsylvania, ex-
cluding all employees of Lincoln Supply and
Equipment Company’s Central Trailer farm and
family Center, retail sale employees, salesmen, of-
fice clerical employees, guards, professional em-
ployees and supervisors as defined in the Act.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL, on request, bargain with the Union and
put in writing and sign any agreement reached on
terms and conditions of employment for our employees
in the above-defined unit.
WE WILL make whole Thomas Deist for earnings
lost by reason of our discrimination against him, with
interest.
SOMERSET WELDING & STEEL, INC.
Janice Anne Sauchin, Esq. and Dalia E. Belinkoff, Esq., for
the General Counsel.
Richard A. Steyer, Esq. and John J. Kelly, Esq. (Loomis,
Owen, Fellman, & Howe), of Washington, D.C., for the
Respondent.
John M. Coates, Staff Representative, of North Versailles,
Pennsylvania, for the Charging Party.
DECISION
STATEMENT OF THE CASE
JOEL A. HARMATZ, Administrative Law Judge. On a peti-
tion filed in Case 6–RC–9822 on March 17, 1987, an elec-
tion was conducted on May 15, 1987, with the tally of bal-
lots showing that 62 ballots were cast for the Charging Party
Petitioner, 58 against, with 15 determinative challenges.
Thereafter, both the Union and the Employer filed objections
to conduct affecting the validity of the election. The Employ-
er’s objections were subsequently withdrawn. The challenged
ballots later were opened and counted and, following with-
drawal of three, seven were overruled by the hearing officer
without contest, and the remaining five were overruled by
the Board.1 The revised tally dated December 7, 1988,
showed rejection of union representation by a vote of 64 for,
and 71 against.
Earlier, pursuant to an original unfair labor practice charge
filed on March 17, 1987, a complaint had issued in Case 6–
CA–19922, alleging that the Respondent independently vio-
lated Section 8(a)(1) by coercively interrogating and threat-
ening employees concerning union activity. By order dated
June 10, 1987, the Charging Party Petitioner’s objections in
Case 6–RC–9822 were consolidated for hearing therewith.
A second complaint was issued in Case 6–CA–20034 on
July 10, 1987, alleging that the Respondent engaged in addi-
tional violations of Section 8(a)(1) by interrogating and
threatening employees and by disparate application of fire-
37SOMERSET WELDING & STEEL
2 Certain errors in the transcript have been noted and corrected.
3 The fact that resolutions of credibility hereinafter made might be accom-
panied by objective rationale does not supplant, but is merely intended to en-
force, impressions gained from my firsthand observation of the witnesses.
Unmentioned testimony, whether or not contradicted, is rejected to the extent
irreconcilable with expressly credited evidence and findings based thereon.
4 Unless otherwise indicated, all dates refer to 1987.
5 The record includes 76 facially unambiguous, single-purpose authorization
cards purportedly signed by unit employees prior to March 17. (See GCX–
100 et seq.)
6 GCX–3.
arm and bulletin board restrictions, while condoning an em-
ployee’s harassment of nonunion employees. Finally, that
complaint alleged that the Respondent violated Section
8(a)(3) and (1) by refusing to recall an employee for dis-
criminatory reasons.
Thereafter, on September 29, 1987, a third complaint
issued in Case 6–CA–20250, alleging that the Respondent
engaged in independent violating of Section 8(a)(1) based
upon additional threats, and violated Section 8(a)(3) by lay-
ing off employees, withholding a paycheck, denying wage
increases, denying overtime, and transferring an employee,
all in retaliation for union activity.
Following issuance of the revised tally of ballots, a fourth
complaint issued in Case 6–CA–20096 on February 23,
1989, alleging further independent 8(a)(1) violations, includ-
ing interrogation, threats, and creating the impression that
union activity was subject to surveillance. It was further al-
leged that the unfair labor practices set forth in all of the
complaints are so serious and substantial as to preclude an
effective remedy and fair election, and hence the desire for
union representation, already expressed through authorization
cards, would be best protected by a bargaining order. Ac-
cordingly, on authority of NLRB v. Gissel Packing Co., 395
U.S. 575 (1969), it is alleged that, since March 17, 1987, the
Respondent violated Section 8(a)(5) and (1) of the Act by re-
fusing to bargain with the Union as exclusive representative
of employees in the appropriate unit.
In duly filed answers to each complaint, the Respondent
denied that any unfair labor practices were committed.
By order of February 23, 1989, Cases 6–CA–19922, 6–
CA–20034, 6–CA–20250, and 6–CA–20096 were consoli-
dated with Case 6–RC–9822 for hearing, findings, and deci-
sion by an administrative law judge.
Pursuant thereto, a hearing was conducted by me on June
5 through 9, 1989, in Somerset, Pennsylvania. Following
close of the hearing, briefs were filed on behalf of the Gen-
eral Counsel and the Respondent-Employer.
Upon the entire record in this proceeding,2 including my
opportunity directly to observe the witnesses and their de-
meanor while testifying,3 and consideration of the
posthearing briefs, it is hereby found as follows.
I. JURISDICTION
The Respondent is a Pennsylvania corporation with pro-
duction facilities located in Somerset, Pennsylvania, from
which it is engaged in the manufacture and customized modi-
fication of tractors and trailers, as well as the sale of truck
equipment and related fabricated items. During the 12-month
period preceding issuance of the initial complaint herein, a
representative period, the Respondent in the course of said
operations sold and shipped goods and materials valued in
excess of $50.000 directly to locations outside the Common-
wealth of Pennsylvania, and received at said facilities prod-
ucts, goods, and materials valued in excess of $50,000 di-
rectly from points outside the Commonwealth of Pennsyl-
vania.
The complaints allege, the answers admit, and I find that
the Respondent is engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaints allege, the answers admit, and I find that
the United Steelworkers of America, AFL–CIO–CLC (the
Union) is a labor organization within the meaning of Section
2(5) of the Act.
III. CASES 6–CA–19922, 6–CA–20034, 6–CA–20096, AND 6–
CA–20250
A. Overview
The issue of primary concern in this proceeding derives
from the General Counsel’s claim that the Respondent’s
preelection misconduct was irreparably disruptive of free
choice, hence requiring a remedial bargaining order under
aegis of NLRB v. Gissel Packing Co., supra.
The Respondent is engaged primarily in the customized
manufacture, installation, and repair of truck bodies, trailers
and truck equipment. Its operations are conducted at three
separate locations. All are in the vicinity of Somerset, Penn-
sylvania. They are known as the Somerset plant, the Bulow
Building, and the Trailer plant.
There is no history of bargaining among the Respondent’s
employees. The instant campaign was spearheaded by em-
ployees John Tims Jr. and Bob Lee. They met with Union
Representative John Coates on March 7, 1987,4 signing
union authorization cards at that time and agreeing to serve
as employee organizers. A second meeting was conducted at
the local ‘‘Holiday Inn’’ on March 14, with a number of em-
ployees attending. On the basis of employee interest,5 on
March 17, the Union requested recognition, and filed its elec-
tion petition in Case 6–RC–9822 seeking an employer-wide,
production and maintenance unit.6
According to the General Counsel, the Respondent replied
with intimidation and reprisal. This position is founded upon
testimony by a number of the Respondent’s present and
former employees who implicated seven named supervisors
in independent 8(a)(1) violations, including interrogation and
a variety of threats. In addition, it is alleged that through
union literature and a series of four antiunion meetings, the
Respondent’s board chairman, Sidney Riggs, made unlawful
references to the possibility of plant closure and loss of bene-
fits, also suggesting that designation of the Union would be
futile. Finally, the General Counsel argues that the Respond-
ent violated Section 8(a)(3) and (1) of the Act through un-
lawfully motivated layoffs, delayed reinstatement, restrictive
changes in work practices, a detrimental transfer, denied pay
increases, and a withheld paycheck.
As indicated, the Respondent insists that it was not guilty
of any unfair labor practices.
38 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
7 Although Faidley’s testimony in this respect was uncontradicted, I am un-
willing, on that basis, mechanistically to accept that which common sense
brands as unbelievable. Considering the multiplicity of allegations and the
wealth of testimony adduced against the Respondent, I believe it more likely
that oversight allowed this sliver of untrue testimony to escape unchallenged.
8 The General Counsel places a small, but significant ‘‘spin’’ on this testi-
mony, describing Gerhard as having sworn that ‘‘he did recognize the docu-
ments as the material that had been up on the bulletin boards.’’ This was not
his testimony at all. Although the difference is facially slight, Gerhard’s actual
version does not warrant any reasonable inference that any document was
taken from a bulletin board.
9 Tims’ action in this regard was inoffensive to statutory concerns. See Ben-
jamin Coal Co., 294 NLRB 572, 582–583 (1989).
10 At the time, Lee was aware that the stickers had been ‘‘put up’’ on doors
and machinery. Though he was with others when confronted by Tims, he was
the sole witness for the General Counsel that denied being told that he could
‘‘wear stickers on his personalty [sic]. I did not believe him.’’
B. Interference, Restraint, and Coercion
1. Bulletin board restrictions
David Faidley testified that employees were allowed to
post what they wished on the bulletin boards until prounion
items began to appear. At that point, he asserts, the Respond-
ent published a rule requiring authorization by Guy Rush, the
Respondent’s vice president in charge of production, before
messages could be posted. Faidley was not believed. Cer-
tainly those engaged in posting union literature would have
been constrained by such a ban and hence aware that it ex-
isted. Yet, among the many witnesses offered to substantiate
the complaints, not one confirmed the existence of any such
rule. It is concluded that the General Counsel has failed to
substantiate by credible proof that the Respondent published
any written ban on union access to bulletin boards.7
2. Disparate restrictions on posting
The General Counsel contends that the Respondent vio-
lated Section 8(a)(1) by prohibiting prounion, while allowing
antiunion, postings. The evidence adduced in this respect re-
lates to postings on company property generally. The com-
plaint, however, alleges violations only in the context of dis-
parate bulletin board privileges, an allegation unverified by
credible proof.
Nevertheless, the energetic litigation dehors allegation,
began with David Gerhard, who testified that, on one occa-
sion, he observed John Tims Sr., the superintendent at the
Somerset plant, remove union literature from the bulletin
board, including a document appealing for a ‘‘yes’’ vote, and
then burn the literature in front of several employees. On
cross-examination, Gerhard admitted that he did not observe
Tims remove any documents from the bulletin board, but that
those burned were recognized as similar to those he had seen
posted at that location.8 In any event, I credit Tims’ denials
that he either removed from the bulletin board or burned any
union literature.
This does not mean that Tims never removed a prounion
poster. He admits that, a few weeks before the election, he
climbed high into the rafters above the body shop to remove
a 3-by-4 foot prounion placard.9 There is no evidence that
Tims did this under the guise of any established, published
rule. Nevertheless, Kenneth Mishler suggests that this action
was disparate. In doing so, he first accused Tims of declining
to remove four or five antiunion posters from the wall in the
body shop. Then, on cross-examination, he could recall only
a single ‘‘vote no’’ sign and that had been posted in the hoist
room.
There was also evidence that Tims had threatened employ-
ees with discharge to restrict prounion postings. In this re-
spect, a question exists as to whether these threats related to
anything other than adhesive stickers. The stickers carried a
prounion message and during the campaign had been affixed
to doors, truck bodies, and machinery. They ranged in size
up to 2 inches by 4 inches. On some surfaces, such as doors
and truck bodies, they were difficult to remove.
The confusion begins with testimony by Ken Mishler that,
after Tims removed the prounion poster, Tims told the men
‘‘if any more union posters was put on company property
you’ll be fired immediately on the spot.’’ However, Mishler
would later admit that he may have been confused by the
focus of this warning, testifying that he could not recall
whether Tims’ reference was to posters, signs, or stickers.
Mishler acknowledged that the stickers were a problem, and
further offered that Tims told the men they could wear stick-
ers on their personal property.
Cary Mishler confirmed that he too observed John Tims
Sr. remove a ‘‘Vote Yes’’ sign from the body shop, without
removing a ‘‘Vote No’’ placard, which he claims to have
been posted in the hoist shop. Having done so, he avers that
Tims approached the men stating:
[I]f he caught anybody putting any kinds of stickers or
signs up on company property on company time he
would fire us right on the spot . . . . [H]e said we
could put them on personal belongings . . . that’s okay,
but not on company property.
Robert G. Lee, who with John Tims Jr. was the first to
meet with union officials, testified that he was present when
John Tims Sr. told the men ‘‘if he caught anybody putting
any stickers up that he would fire them on the spot.’’10
Another employee, Lewis Ewing, who attributed similar
threats to John Tims Sr., avowed that during that same day
Tims stated that employees were free to wear the stickers on
personal items, including their hard hats and tool boxes, but
could not affix them to company property. Ewing admits that
he was wearing his stickers when Tims made the discharge
threat, but did not relate that he considered this to be in vio-
lation of that warning.
Tims confirms that after removing the prounion sign from
the overhead rafters, he told a single employee, Ted Persuhn,
that he didn’t want to see that up there any more. He
claimed that he had seen only one posted, antiunion ref-
erence. That had been inscribed on a board notice in graffiti
style. Thus, according to Tims, someone had written vote
‘‘Yes’’ on the poster, but the next time he looked, this was
stricken through, with vote ‘‘no’’ written in its stead. He de-
nied seeing a ‘‘vote no’’ sign in the hoist shop. In any event,
vagaries, and the somewhat underdeveloped proof offered by
the General Counsel in this respect, precludes a finding that
antiunion posters were visible for any prolonged period. I
credit Tims’ denials that he observed the ‘‘vote no’’ sign
prior to its removal. Moreover, on the face of the General
Counsel’s own testimony, it is fair to assume that the
antiunion posters were removed shortly after they appeared.
Tims also testified credibly that the stickers were a nui-
sance, having been affixed everywhere, and that he stated
39SOMERSET WELDING & STEEL
11 Benjamin Coal Co., supra at 582–583 (1989). The General Counsel’s reli-
ance upon Honeywell, Inc., 262 NLRB 1402 (1982), is misplaced. That case,
while denying such intention, in effect, establishes a per se rule. For, it is dif-
ficult to imagine that an employer would maintain a bulletin board while ex-
cluding all nonbusiness access. Under Honeywell, union access is required in
the absence of such an exclusion. Does this mean that any nonbusiness use
of an employer’s property requires that the property be opened for organiza-
tional purposes? In my opinion, Honeywell should be restricted to areas held
open generally to public announcements, such as bulletin boards. This is nec-
essary to avoid the intrusive result inherent in a rule which would open prem-
ises generally to union access whenever used by an employer for a nonbusi-
ness purpose, whether to counter organization activity, or for some civic cause
totally unrelated to union activity.
12 At the time of the hearing, he was a supervisor at the Trailer plant.
13 David Tims did not testify. An authorization card purporting to bear his
signature was authenticated by a union representative, Tom Antal. (GCX–109.)
14 Robert G. Lee, who worked a different shift, in response to a leading
question, testified that he recalled seeing Grandll with a gun, which Grandll
said was needed for protection.
15 Apart from the fact that Faidley’s testimony imputes a nonsensical display
to Grandll, if Grandll had the blessing of management, would there have been
a need that he engage in this cover up?
that he ‘‘don’t want to see anymore of them up,’’ that they
could be fired if they did, but that they were privileged to
place them on their personal property.
Under the relevant 8(a)(1) allegation, the threats imputed
to Tims pertained only to bulletin boards. Here again, the
evidence adduced cast a broader shadow of illegality than set
forth in the complaint. The testimony offered by the General
Counsel suggests that Tims imposed a plantwide restraint on
union postings, and stands among several important variances
between allegation and proof. In fact, the General Counsel’s
posthearing brief theorizes that the threats were unlawful be-
cause they impeded the right of employees to ‘‘display union
insignia in the work place.’’ This is a far cry from anything
described in the complaints.
Nevertheless, I did not believe testimony by the Mishlers
that Tims’ threats related to postings other than stickers. The
use of stickers on company property was a pernicious prac-
tice which the Employer had the right to eliminate, on pain
of discharge. Were the Mishlers believed, however, no dif-
ferent result would follow. I know of no statutory policy
compelling employers to consecrate the entirety of their
property to prounion use during an initial organization cam-
paign.11 Parity is not required here any more than other
vestiges of an employer’s antiunion campaign. The Employer
is free to deliver its legitimate message against representation
without compulsion under law to extend equal rights to
prounion elements, be they employees or outside organizers.
The law does not operate to divert company property to
union purposes simply because plant premises are a medium
for antiunion propaganda.
The General Counsel’s diverse views on illegal restraints
on prounion postings, whether or not alleged, are rejected as
unsupported by credible proof.
3. Charles Grandll, the Respondent’s employee agent
a. The firearms prohibition
The General Counsel contends that the Respondent vio-
lated Section 8(a)(1) by failing to invoke an established, pub-
lished firearms ban against an antiunion employee, Charlie
Grandll.
There is no dispute that the Respondent posted a rule pro-
hibiting employees from bringing weapons, guns, and any
ammunition of any kind on company property. However, the
General Counsel contends that the ban was promulgated
prior to the Union’s appearance, while the Respondent as-
serts that this ban was adopted later and in response to the
conduct of Charlie Grandll.
During the campaign, Grandll was a welder in the body
shop at the Somerset plant.12 He admittedly brought a hand-
gun to work on one occasion. Previously, according to his
uncontradicted testimony, Dave Tims, a coworker had ac-
cused Grandll of stealing materials. Grandll, in consequence,
bested Tims in a fight. These events had nothing to do with
union activity. Nevertheless, Grandll later was told by his
foreman, Baughman, of a threat by the Union to teach
Grandll a lesson for beating up Tims.13 After reporting the
threat to the police, Grandll brought his gun to work, with
full knowledge of Baughman, in order to protect himself.
The General Counsel describes Grandll’s conduct as
‘‘purely anti-union.’’ To this end, several witnesses were of-
fered to depict Grandll’s antics on that occasion. Thus, ac-
cording to Cary Mishler, many months before the organiza-
tion campaign, a notice was posted precluding employees
from bringing firearms and ammunition into the plant. He
adds that about a week before the May 15 election, Grandll,
as he had promised the day before, brought a handgun to
work. When Mishler asked about it, Grandll showed him that
the handgun was concealed under the Grandll’s field jacket.
When asked by Mishler if it were loaded, Grandll simply
pulled a handful of shells from his pocket. Grandll, who
claimed to have been threatened that ‘‘he was going to be
paid a visit from the union,’’ explained to Mishler ‘‘if them
son of a bitches come in and harass me, . . . I need some-
thing for protection.’’14 The incident occurred before starting
time, and Mishler had no knowledge that Grandll possessed
the weapon while working.
David Gerhard testified that a couple weeks prior to the
election, Grandll told him he had been threatened and was
carrying his 44 magnum for protection. According to
Gerhard, a day or two later, he asked Grandll if he was ‘‘still
packing his gun,’’ whereby Grandll slapped his side, stating
he was hunting two-legged deer, and ‘‘it wouldn’t leave his
side.’’
David Faidley, who was not actively employed at the time
of the hearing, apparently because of work-related injury, tes-
tified that he observed Grandll with the weapon during work-
ing hours. Unlike the others, Faidley claims that Grandll was
‘‘flashing it around a lot.’’ Faidley testified that Grandll told
him he was in need of protection because, ‘‘the union guys
was going to stomp his butt because of the hassle he had
with Dave Tims.’’ Faidley adds that Grandll tore down the
posted firearm prohibition, while stating that this step was re-
quired to prevent someone from finding out that he was
doing something wrong.15
James Brand states that during the shift, Carlos Sprankle
told him that he ‘‘believed’’ that Grandll had a gun. Brand
investigated and observed a bulge under Grandll’s shirt at the
hip but could not be sure of its nature. Later that afternoon,
Brand placed a ‘‘safety zone’’ marker in his work area. This
attracted Grandll, who inquired as to its purpose. Brand indi-
cated that he heard that Grandll had a gun. The latter re-
sponded by grinning and stating,’’ when the bullets start fly-
ing . . . you better crawl underneath the table.’’ Brand’s sus-
picions were confirmed at the end of the shift, when during
40 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
16 Grandll also testified that the ban was not posted until after he brought
his handgun to work. Moreover, doubt as to their capacity for clear recollec-
tion, requires rejection of testimony of David Gerhard and Cary Mishler that
the weapon was in Grandll’s possession on more than 1 day. In this respect,
I believed Grandll that he did this on but one occasion, and that the handgun
had been removed by the next morning.
17 It is not without significance that Lewis Ewing, a key witness for the
General Counsel, confirmed that when reported the incident to Rush, the latter
stated ‘‘there was really no policy on fireman.’’
18 Not a single witness testified that they had seen or heard of any antiunion
conduct by Grandll toward Ewing, or anyone else, or that they were aware
of the chicken/rat incident.
19 Ken Mishler testified but was not examined as to any such incident.
the cleanup period, Grandll allegedly emerged from the
breakroom, with pistol and holster over his head waiving it
about as he passed through the shop to punch out. Brand
concedes that this incident would have been witnessed by a
number of employees. Brand could not identify any super-
visors who might have observed the incident, though he
speculated that Baughman was usually in the area at that
time.
Later, Mishler reported the matter to Foreman Baughman,
who indicated that he was aware of Grandll’s action.
Baughman told Mishler that, the night before, Grandll told
him he would bring in the weapon, to which Baughman re-
plied that he would do the same were he Grandll. According
to Mishler, unless, he was ‘‘mistaken’’ about 2 nights later,
at cleanup, he observed Grandll returning the weapon under
his jacket.
Vice President Rush testified that employee Lewis Ewing
reported the incident to him. Rush told Ewing he would look
into it immediately. Rush, with corroboration from Grandll,
testified that he then sought out Grandll, who said he had re-
moved the gun, having been previously told to do so. Grandll
allegedly reported that he was told this twice, once by
Baughman, and again by someone that Rush could not recall.
On the threshold issue, Rush denied that a written policy
concerning this issue was in effect at the time. He claims
that in consequence of this incident, a notice was drafted,
typed, and posted on the bulletin board banning all guns.16
Apparently, no copies were made. Rush also testified that no
one had ever been disciplined for carrying a weapon into the
plant. In this respect, I believed Rush and Grandll over
Faidley and Mishler and find that, at the time of the incident,
the Company had yet to promulgate any policy concerning
firearms, and hence, contrary to the General Counsel, no
such ban could not have been relaxed in Grandll’s case.17
Accordingly, the 8(a)(1) allegation in this respect is unsub-
stantiated and shall be dismissed.
b. Harassment of prounion employees
Grandll is central to allegations that Respondent violated
Section 8(a)(1) by permitting, encouraging, and using him
‘‘to harass and intimidate its employees because they sup-
ported the Union.’’
In this connection, the General Counsel points to the
above testimony that employees were alarmed by the pres-
ence of Grandll’s weapon. Assuming they were, there was no
evidence and no reasonable basis for assumption that this
was a gesture designed to influence them one way or the
other on the issue of union representation. In this same vein,
all who testified confirmed that the weapon was possessed by
Grandll for purposes of self-defense, with no one suggesting
any threat or expressed intention on his part to use it as a
means of menacing union adherents. Moreover, on the cred-
ited facts, it is concluded that management reacted in due
course, limiting the matter to a single shift, while promulgat-
ing a formal ban on similar misconduct. In any event, as
shall be seen, there was no evidence fairly warranting a con-
clusion that Grandll had real or apparent authority to act on
behalf of the Respondent in this regard.
Apart from the pistol incident, Lewis Ewing was the piv-
otal witness against Grandll. Critical aspects of his testimony
were left to stand uncorroborated. Ewing was a prounion em-
ployee, who signed a card, encouraged others to do so, at-
tended union meetings, and wore union stickers and buttons.
He implicates Grandll in abusive behavior toward him, some
relating to union activity, the rest, neutral. According to
Ewing, Grandll would come into his area calling him names,
such as ‘‘dirtball’’ and urging him to go back to Florida.
The major incident related to union activity was described
by Ewing as having occurred about 2 weeks before the elec-
tion. At the time, he claims to have arrived at his
workstation, finding a rubber chicken with a dead rat in its
mouth, hanging from a crane, with an attached sign stating:
‘‘vote yes for the union, Lewis.’’ Ewing states that he was
the only ‘‘Lewis’’ in the plant. He claims that he tore down
the display and threw it in the garbage can.
The next morning, when Ewing reported to work, the same
chicken with a dead rat in its mouth was above his work-
bench, with a sign that said vote ‘‘yes.’’ Ewing relates that
he tore this down as well, but threw the chicken under a
truck.
Ewing apparently could not tie Grandll to the incident di-
rectly. However, he did relate that at noon that day, Grandll
brought the chicken to the lunchroom and told Ewing, ‘‘this
chicken would look better with a live rat stuck in its
mouth.’’18
Ewing, without accusing Grandll of hanging the chicken,
complained to Rush, and requested that he see to it that
Grandll’s harassment stop. Rush pointed out that this was
Grandll’s nature and that Ewing should learn to take it. How-
ever, when Ewing persisted in demanding that Grandll be
corrected, Rush agreed to talk to Grandll and to ‘‘have it
taken care of.’’
However, Ewing relates that 2 days later, Grandll entered
his work area, stating to Ken Mishler, another prounion em-
ployee, ‘‘something stinks around here, doesn’t it.’’ When
Mishler did not reply, Grandll said, ‘‘it smells like a dead
rat here.’’19
Finally, Ewing describes an incident when he went to the
office of Tims and Rick Miller, where he ran into Grandll.
The latter said that he heard that Ewing was looking for him,
wanting to kick Grandll’s butt. After being denied by Ewing,
Grandll stated, ‘‘what’d the union do, offer you a bar of soap
to vote yes.’’ Ewing simply walked off.
Guy Rush acknowledges that Ewing on several occasions
complained that Grandll was calling him names. He adds that
Grandll was not the only coworker that Ewing complained
about. Rush states that on each occasion, he would seek out
Grandll and admonish him, ‘‘he’s got to stop this completely
. . . I don’t tolerate it.’’
Grandll, who described himself as one who agitates every-
one, admits that he did so in the case of Ewing. But he de-
nied any involvement in the chicken/rat episode, claims that
41SOMERSET WELDING & STEEL
20 Absent a link with management, the Act does not guarantee or require
that all employees get along with one another, nor does it establish a generic
‘‘fellow servant’’ standard protecting all union supporters from abusive behav-
ior irrespective of their source. If Ewing were believed, the requisite link
would not be completed by his testimony that Grandll, in the presence of Fore-
man Rick Miller, made a union-related slur.
21 The Respondent argues that Sharbaugh’s account was implausible. On the
contrary, this would not be the first time that a manager reacted to news of
union organization by attempting to get to the bottom of it. Moreover, the ar-
gument that Rush would have telephoned a more tenured employee than
Sharbaugh to seek out such information was also unpersuasive. First, the
record does not substantiate that he did not do so. Second, at the time,
Sharbaugh had been employed for 3 or 4 years. Finally, I do believe that this
incumbent employee manufactured the incident out of whole cloth.
22 The independent 8(a)(1) allegations are distributed through four separate
complaints. Numerous incidents are involved and many witnesses were called
by the General Counsel to give accounts of even more confrontations with su-
pervisors. At the hearing, the General Counsel was represented by two attor-
neys. Various steps were taken by me in the course of the hearing to structure
the proceeding in a fashion which would facilitate identification of the issues,
while isolating evidence to specific allegation. In a case of this kind, the op-
portunities for mismatching evidence against allegation requires advocacy on
the part of the proponents of the complaints, rather than a dependence upon
the administrative law judge to pick up the pieces. Cf. Inland Steel Co., 257
NLRB 65, 68 (1981). To that end, and in order that the record be developed
in an understandable fashion, so as to allow expeditious processing and resolu-
tion fair to all parties, the proponents of the complaints were instructed at the
hearing to brief specifically the evidence claimed to warrant an unfair labor
practice finding, and that no findings would be made with respect to matters
omitted. In a brief of 88 pages, at least 2 episodes were not identified. First,
is testimony by John Tims Jr. that while unemployed due to injury he received
a medical release in late April and went to see Rush for purposes of securing
reinstatement. Rush at that time asked him how he felt about the Union and
what it would do for the Company. Second, Bradley Barclay, a former em-
ployee, testified that prior to the March 14 union meeting Rush asked if he
were aware of the ‘‘union thing.’’ When Barclay said, ‘‘yes,’’ Rush inquired
if Barclay intended to go to the union meeting on Saturday.
he neither touched nor saw the chicken, and that he never
even discussed the incident with Ewing. Finally, he states
that he was asked by Baughman, Rush, and Plant Super-
intendent Tims to stop giving Ewing a hard time.
Basically, I believe that Grandll’s teasing of Ewing was an
ongoing phenomenon that was not oriented in their diverse
views on the organizational issues. Neither Ewing nor any
other witness identified others treated in this fashion by
Grandll, though many had openly manifested union support.
The allegation that Grandll was an agent of the Respond-
ent borders on frivolity. The fact that he was depicted kissing
the boss’ feet in union campaign propaganda, (RX–1(e)) does
not prove that he did so, and is no substitute for proof, to-
tally lacking here, that Grandll participated to any significant
degree in the Respondent’s effort to persuade others to reject
the Union. The evidence goes no further than testimony by
Robert Lee, one of the earliest protagonists of the Union, that
Grandll told him that ‘‘he wasn’t for the union and it wasn’t
no good . . . he didn’t think it was the right way to go.’’
Moreover, the General Counsel’s own evidence fails to sub-
stantiate in even the most remote sense that any antiunion
behavior on Grandll’s part was aided, abetted, condoned, or
ratified by the Respondent.20 The General Counsel has failed
to establish, even in prima facie terms, that Grandll was an
agent of the Respondent within the meaning of Section 2(2)
of the Act.
For the above reasons, the 8(a)(1) allegations founded
upon conduct imputed to Grandll are totally lacking in evi-
dential support, and shall be dismissed.
4. Interrogation
The several complaints impute coercive interrogation to
four members of management. The evidence and my findings
and conclusions in this regard are set forth below.
a. By Guy Rush
As indicated, Rush is the Respondent’s vice president in
charge of production. His authority extends to all three
plants. Several witnesses suggest that, during the early stages
of the campaign, he was busily involved in an effort to un-
cover just who was responsible for union activity.
Thus, Joseph Sharbaugh, who is currently employed, and
during the campaign worked at the Trailer plant, received a
telephone call from Rush on Monday, March 16, in which
he was question, as to who was involved in the union move-
ment. Sharbaugh declined to divulge the names. Sharbaugh
was also questioned as to what was wrong in the shop and
whether he thought the movement could be stopped. When
this was answered in the negative, Rush allegedly stated ‘‘if
things were that bad at the Trailer division, we really didn’t
need that building out there.’’ Rush, according to Sharbaugh,
also stated that the Union was unnecessary, as he would have
taken care of the problems if the employees had spoken to
him.
Sharbaugh adds that 2 days later, Rush called once more
in a repeated effort to ascertain whether the Union could be
stopped and the identity of employees responsible. Sharbaugh
again refused to cooperate.
In a subsequent incident, Rush, according to Sharbaugh,
on April 2, asked him if he had attended union meetings,
while advising him to vote ‘‘and vote the right way.’’
David Faidley related that he too was approached by Rush
on March 16. The incident occurred at his workstation.
Faidley had signed a union authorization card that very day.
According to Faidley, Rush, who was always business-like
and to the point, on this occasion was unusually friendly,
opening the conversation at a personal level, but going on to
inquire as to ‘‘who started the union?’’ Faidley who de-
scribed himself as uneasy with this inquiry, stated that he did
not know.
Concerning Sharbaugh, Rush insists that the first phone
call was initiated by Sharbaugh, who reported that union so-
licitation was in progress. Beyond that Rush had no recollec-
tion of what was said. However, he denied ever having asked
employees whether they started or were involved in the
Union, or stated that the Respondent would close the Trailer
plant. I credit the testimony of Sharbaugh and Faidley. Not-
withstanding my misgivings concerning the latter, in this in-
stance his testimony, confirmed by Sharbaugh, discloses a
common pattern whereby Rush attempted to use them to sat-
isfy his curiosity concerning union activity during the initial
phase of the campaign. This entirely plausible evidence,21
implicates a vice president in an investigation that naturally
would impede Section 7 rights. Apart from his reference to
the Trailer plant’s fate, his effort to identify those involved
tended to undermine—at least to Sharbaugh and Faidley—
confidence that union support might be waged beyond the
ears of management. The Respondent thereby violated Sec-
tion 8(a)(1) of the Act.22
42 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
23 This struck as speculative based upon Tims Sr.’s premise that his son
never swore at him unless intoxicated. If the latter had been drinking, this
would not explain the misconduct on the part of Tims Sr. or his continued
participation in the conversation. His testimony does not support a finding that
Tims Jr. labored under any disability that might have impaired his recollection
of what transpired.
24 Clyde reports to Vice President Rush. The latter is based at the Somerset
plant. Rush testified that Clyde has no authority to hire, fire, lay off, or grant
wage increases, but may only recommend such action. Nevertheless, he obvi-
ously is the highest ranking management representative with immediate day-
to-day responsibility for trailer operations.
25 It is of interest that the General Counsel when questioned, declined to as-
sert any illegality on the basis of Sharbaugh’s testimony that Rush told him
‘‘he had heard’’ of the union meeting held at the Holiday Inn on March 14.
b. By Roger Pyle
Pyle, at times material, was a foreman in the Trailer plant.
Richard E. Miller testified that in late March, Pyle, his im-
mediate supervisor, asked if he had received a letter from the
Union. Miller said he had. Pyle expressed curiosity at its
content, but Miller declined to cooperate. The conversation
apparently ended with Pyle’s remark that he wasn’t for the
Union anyway. On cross-examination, it was developed that
Miller was thoroughly confused concerning the letter. His
prehearing affidavit shows that on July 29, 1987, Pyle ap-
proached him concerning a letter he had received from the
Board, not the Union. At that time, Pyle said that he didn’t
get one, probably because he did not sign an authorization
card.
In the circumstances, the dubious nature of Miller’s testi-
mony leads me to give credence to the denials by Pyle that
he ever questioned anyone concerning union activities. The
8(a)(1) allegation in this respect is dismissed.
c. By John Tims Sr.
John Tims Jr. was a key protagonist of the Union and one
of its initial contacts. Prior to the election he was out of
work due to a disabling injury, but was avidly seeking res-
toration. After the election, he returned to work, and was ad-
vanced from welder to shop foreman. At the hearing, he
showed a reluctance to testify concerning discussions with
his father, Superintendent Tims. However, when confronted
with his pretrial affidavit, Tims confirmed several contacts,
including one the night before the election, when his father
called him, asking how he would vote. When Tims Jr. was
noncommittal, he was pushed for an answer. They argued
concerning the pros and cons of unionization, thus, allowing
Tims Jr. to reveal himself. Tims Sr. admits to calling his son
2 days before the election in order to inquire as to how he
felt about the Union and which way he was going to vote.
Tims Jr. was not available, but returned the call later that
evening. Tims Sr. believed that his son had been drinking.23
He admits to asking how his son intended to vote, where-
upon he was told that it was none of his business. Tims Sr.
admitted that an argument ensued and that the conversation
ended ‘‘heatedly,’’ with his hanging up. He also conceded
that the bitter exchanges with his son took a long time to
heal.
It is fair to infer that Superintendent Tims initiated this
confrontation fully aware of his son’s economic situation and
quest for reinstatement. The phone call, the night before the
election, led to an argumentative discussion, together with
threats that are the subject of findings made below. The en-
tire incident appears to have been spawned as a purposeful
attempt to influence a son’s vote. The familial relationship
in this instance tended to enforce, not lessen, improper pres-
sures. The suggestion that Tims Sr. was not acting in his ca-
pacity as a company representative is belied by the remarks
imputed to him. I credit Tims Jr. and find that the Respond-
ent violated Section 8(a)(1) through this instance of coercive
interrogation.
d. By Dwight Clyde
Clyde is plant manager at the Trailer facility.24 According
to Lloyd Harkcom, during the campaign, Clyde told him that
he had talked to quite a few men and knew how they were
going to vote. When Clyde asked Harkcom how he felt about
the Union, the latter declined to comment. Clyde denied this
entire line of Harkcom’s testimony. I believed Harkcom. It
does not appear that Harkcom, previously, was open with his
sentiment. Clyde’s inquiries were not supported by any le-
gitimate objective. Moreover, the attempt to elicit Harkcom’s
views, while implying that others had cooperated by their re-
sponsiveness, would naturally be a source of added pressure.
In this context, the interrogation was coercive and the Re-
spondent thereby violated Section 8(a)(1) of the Act.
6. Creating the impression of surveillance
The General Counsel describes the testimony offered in
substantiation of this allegation as follows, ‘‘[Dwight] Clyde
stated to [Lloyd] Harkcom that he had talked to quite a few
of the employees and he knew which way they were going
to vote in the upcoming election.’’ On the face of this evi-
dence, it is clear that Clyde defined the source of his infor-
mation as conversations, not surveillance.25 Accordingly, the
attribution itself obviates any reasonably based interpretation
that information was developed on the basis of any type of
involuntary disclosure, and, hence, the evidence does not
substantiate the alleged violation and the 8(a)(1) allegation in
this respect is dismissed.
5. Threats of reprisal
a. Supervisors’ statements
(1) By Roger Pyle
Lloyd Harkcom testified that about 10 days to a month
prior to the election he overheard a conversation in the office
at the Trailer plant between admitted Supervisors Pyle and
Rod Berkley. At the time, both apparently were mindful of
his presence. Also in the area was Bonnie Schuler, the
secretary/receptionist at the Trailer plant. At that time, Pyle
allegedly mentioned that ‘‘Sidney Riggs made a statement
that if the union came in he’d close the plant down.’’
According to Mark Taylor, on the day after the election,
he had a conversation at his workstation with Roger Pyle, in
which Pyle opined that ‘‘he would look for a job because he
. . . [thought] that if the union would come in that Sidney
would shut the plant down.’’
Pyle denied the shutdown comments, but admits that when
requested, he offered his opinion as to what he thought of
a union coming to Somerset, which included the ‘‘possibility
of losing what we already had.’’ I credit Taylor and
43SOMERSET WELDING & STEEL
26 The Respondent argues that as Pyle was a low level supervisor, his state-
ments should be disregarded as ‘‘less likely to influence the employee’s deci-
sion than statements by high level officials which bear the imprint of company
policy.’’ The same assertion is advanced with respect to Rod Berkley whose
coercive conduct is discussed below. There is no merit in this view. The un-
lawful statements by both carry a sufficient resemblance to ideas spawned by
Sidney Riggs, in his unlawful attempts to influence employee choice, to ‘‘bear
the imprint of company policy.’’ Cf. Hecla Mining Co. v. NLRB, 564 F.2d
309, 315 (9th Cir. 1977).
27 On cross-examination, it was established that this conversation related to
the length of Keyser’s expected stay in the Trailer plant, that Berkley also said
changes would occur irrespective of the election results, and that, at this point,
when Taylor asked if Keyser would be one of ‘‘those,’’ Berkley answered,
‘‘probably.’’ In my opinion, these additions are too vague to establish a clear
inconsistency in Taylor’s overall account.
28 Rush testified that he did not tell anyone that if the Union were des-
ignated, the Company would close the Trailer plant and move everyone back
to town.
Harkcom, and find that the Respondent violated Section
8(a)(1) through Pyle’s threats.26
(2) By Rod Berkley
Randy Keyser testified that his supervisor, Rod Berkley,
told him that ‘‘it was his opinion that if the union was voted
in, they would just phase the company out. . . . they have
another shop in Maryland [and] . . . they could move down
there.’’
On another occasion, Keyser had heard from other em-
ployees that Berkley was going around speaking to individ-
uals about ‘‘zero-based bargaining,’’ causing Keyser to seek
him out. During their ensuing discussion, Berkley stated that
he should be allowed to vote because ‘‘if they go out of
business . . . . he’s going to lose his job too.’’ Berkley also
allegedly stated that, if the Union is defeated, some wearing
union buttons and talking a lot ‘‘probably won’t have jobs
after its over.’’ Keyser asked, ‘‘like me,’’ whereupon, Berk-
ley chuckled and replied, ‘‘probably.’’
Consistent therewith, Mark Taylor, an incumbent em-
ployee, avers that Berkley, at his workstation, used words to
the effect that certain people, including Randy Keyser were
more or less to blame for this and that ‘‘actions would be
taken against them to make sure that . . . the union didn’t
come through.’’27
Another employee, John Wegrzyniak, whose employment
terminated prior to the election, testified that in late March
or early April, Berkley, his immediate supervisor, told him
that ‘‘if we got the union in . . . we’d probably shut the
place down.’’ Wegrzyniak disputed that this would be the
case.
Berkley denied make statements that if the Union got in
(1) wages would be put back to zero, or that (2) people
would probably lose their jobs. He emphatically denied tell-
ing Wegrzyniak that if the Union were designated, the place
would probably be shut down. He denied ever telling Taylor
that certain employees, including, Randy Keyser would be
disciplined or fired after the election. In fact, he could not
recall ever even giving his opinion to employees concerning
the Union. I believed Keyser, Wegrzyniak, and Taylor, who
attribute a common pattern of coercive conduct to Berkley.
It is concluded that the Respondent violated Section 8(a)(1)
by his various threats of closedown, discharge and undis-
closed recriminations in response to union activity.
(3) By Dwight Clyde
Randy Keyser testified that Plant Manager Dwight Clyde,
of the Trailer division, during the first week in May, ap-
proached him, stating, ‘‘you better vote no on May 15th or
there isn’t going to be any jobs around, there won’t be no
more work there.’’ Keyser expressed disbelief, but Clyde re-
plied ‘‘you better believe it because that’s what he was
told.’’28 At the time, Clyde supposedly was in an agitated
state, having just removed ‘‘vote yes’’ epithets soaped on
company property. This appears to have been the same con-
versation allegedly overheard by a coworker, Mark Taylor.
However, his version is less graphic. He relates that Clyde
simply stated that ‘‘if the men in the shop knew what was
good for them . . . . [they] would vote no against the
union.’’ When Keyser laughed at this remark, according to
Taylor, Clyde angrily turned and walked away. Clyde denied
the remarks attributed to him by Keyser and Taylor. While
I doubt the incident was fabricated, Keyser’s account is re-
jected, in favor of the more generalized description by Tay-
lor. As an abstraction, the words attributed by him to Clyde
would not run afoul of the Act, but in the context of other
coercive threats of reprisal, and repeated references to close
downs and job loss in the Company’s antiunion propaganda,
this warning would naturally convey that reprisals would be
avoided by rejection of the Union. By his remark, the Re-
spondent violated Section 8(a)(1) of the Act.
Richard Keyser, Randy’s brother, testified that, after one
of the captive antiunion meetings, Clyde appeared with a
profit sheet pertaining to three completed trailers, dem-
onstrating the slight profit margin involved, while arguing
that, with any wage increases, ‘‘there’d be no way that the
shop could continue to go.’’ Clyde recalled the incident, but
not everything that was said. He claims that he offered the
‘‘summary sheet’’ to rebut claims that the Company was
making a lot of money. He told the employees that the small
margin involved could be exceeded by placing the invest-
ment in a savings account. However, his testimony does not
refute Richard Keyser’s assertion concerning the future of the
shop. Clyde had every right to demonstrate the slight profit
margins involved in producing these three trailers, but that
evidence was too isolated to privilege any comment suggest-
ing that the Trailer plant would close in the event of wage
increases. As in any campaign, many employees would per-
ceive union representation as the means to raise pay levels.
Clyde’s remark was tantamount to warning that employees
could not have their jobs and a wage increase too, and if
they supported the Union for that reason, they had better
vote no. This is precisely the type of threat that will escape
interdict only if ‘‘carefully phrased on the basis of objective
fact to convey an employer’s belief as to demonstrably prob-
able consequences beyond his control.’’ Gissel Packing,
supra, 395 U.S. at 618. As the proof offered to the employ-
ees on that occasion was too narrow to support closure under
this standard, Clyde’s threat violated Section 8(a)(1) of the
Act.
Joseph Sharbaugh, an incumbent employee, testified that
during the week prior to the election, Clyde at quitting time,
called a group of five or six together, stating, ‘‘Sid Riggs
was real mad and upset about the union and he was going
to close the plant if the union went in.’’ Clyde denied ever
having heard Sidney Riggs make such a remark, and denied
having reported to Sharbaugh that he did. Despite the ab-
44 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
29 Sec. 8(c) protects an employer’s right to address the issue of union rep-
resentation, provided that its views are devoid of threat of reprisal or promise
of benefit. Argumentation has been upheld as legitimate speech, even if, upon
interpretation, the listener might walk away with the understanding that a re-
prisal was involved. For that reason, the appraisal under Sec. 8(c) must focus
on exact words used, as distinguished from the listener’s understanding or sub-
jective belief of what was intended. In this case, I did not believe that any
of the witnesses presented by the General Counsel were capable of recalling
Riggs’ precise remarks, made some 2 years earlier. To do so, without benefit
of some form of recordation and without editorializing his statements with per-
sonally held fears and assumptions, would have amounted to a truly remark-
able achievement. While I reject the entirety of this testimony, salient aspects,
together with more specifically framed doubts as to its verity, are summarized
in Appendix B, attached to this decision.
sence of corroboration, I believed Sharbaugh, and hence find
that the Respondent thereby violated Section 8(a)(1) of the
Act.
(4) By John Tims Sr.
Tims was the superintendent at the Somerset plant. As in-
dicated his son, John Tims Jr., was a key protagonist of the
Union. The latter, who during the period after the election
was advanced from welder to shop foreman, though a reluc-
tant witness, when confronted with his pretrial affidavit, con-
firmed he was told by his father that ‘‘if the union was voted
in the company would take away all our benefits,’’ and who
added, ‘‘the plant would close if the union won.’’ Moreover
in their telephone conversation as they argued concerning the
pros and cons of unionization, Tims Sr. at that juncture said
he would fire his son.
Tims Sr. admits to calling his son 2 days before the elec-
tion in order to inquire as to how he felt about the Union
and which way he was going to vote. Tims Jr. was not avail-
able but returned the call later that evening. The latter in re-
sponse to the inquiry as to how he would vote told his father
that it was none of his business. They argued, whereupon
Tims Jr. said, ‘‘I guess you’re going to fire me.’’ Tims Sr.
replied that, if given just cause, he would discharge him, not
because of the Union or their kinship, but for ‘‘just cause.’’
Tims Sr. admitted that the conversation ended ‘‘heatedly,’’
with his hanging up, and that the bitterness took a long time
to heal.
Tims Jr. was entirely credible and references by his father
to removal of benefits and discharge, both as reprisals for
union activity, violated Section 8(a)(1) of the Act.
(5) By Guy Rush
As heretofore indicated, on Monday, March 16, incumbent
employee Joe Sharbaugh credibly described a phone call he
received from Vice President Rush, in which the latter stated
as follows:
He asked me if I heard any rumors about the union
movement and I said, yes. . . . [H]e asked me who
was involved. . . . I told him I wouldn’t give him the
names. He asked . . . if things were that bad in the
shop . . . I said, yes. . . . [T]hen he asked me what
was wrong. I said there was a lot of favoritism to some
guys and not other guys and there was no apparent rea-
son for it. He asked me if there was any way I thought
the movement could be stopped . . . I said, no, I didn’t
think it could be. . . . [H]e had asked me . . . if
things were that bad at the Trailer division, we really
didn’t need that building out there. I told him that it got
started in town and it just got back to the Trailer divi-
sion.
Having credited Sharbaugh, the statement that the Trailer
plant really would not be needed implied that it would be
closed if employees felt ‘‘things were that bad’’ that ‘‘the
movement could not be stopped.’’ The Respondent thereby
violated Section 8(a)(1) of the Act.
(6) By Clark Emert
Emert supervised a retail sales operation on premises
shared with production operations at the Somerset Plant. The
voting group excluded ‘‘retail sale employees.’’ Gary Reiber
related that while he was employed at that location, Emert
told a group of employees that he was against the Union,
that it could be of no help at the time, and that while the
Union would collect the employees’ money, it would not
stand behind them. Finally, according to Reiber, Emert stated
that, ‘‘he would not have a person in the union working
under him.’’
Emert denied having made these statements. Absent cor-
roboration, or specification of the timeframe involved, my in-
clination is to give benefit of the doubt to this management
representative who, during the period immediately prior to
the election, had no reason to attempt to influence his em-
ployees against union activity. Accordingly, the 8(a)(1) alle-
gation based on Reiber’s testimony in this respect is dis-
missed.
b. Antiunion propaganda
The General Counsel contends that the Respondent vio-
lated Section 8(a)(1) through propaganda disseminated during
the preelection period by the Respondent’s chairman, Sidney
Riggs, both in the course of speeches and through mailings
delivered to employees.
(1) Captive audience speeches
Numerous witnesses were called to advance their recollec-
tion of what was said on these occasions. However, admis-
sions by Riggs constitute the only reliable basis for evaluat-
ing the 8(a)(1) allegations in this regard.29
Riggs testified to having held a series of four meetings in
the various plants, each ranging from 30 to 60 minutes.
Aside from his own self-generated presentation, he responded
to questions raised by employees. He admittedly discussed
his view that it was ‘‘survival time’’ for industrial operatives
in the Somerset labor market. He identified a number of
plants, almost all unionized, that had closed in recent years,
stressing that, ‘‘I had an obligation to learn from these prob-
lems and try to structure Somerset Welding so that the same
thing doesn’t happen to it.’’
Riggs asserts that, although he did not go into detail, he
told the employees that the closedown of these plants was
not only caused by labor problems, but by management prob-
lems as well. Abex was one of the plants singled out. This
plant was opened to build rail wheels with a large subsidy
from the State, but as told by Riggs, early in its operations
the Steelworkers Union called a strike. The employees were
told that ‘‘the plant never reopened as a viable business after
that.’’ Riggs claims that he mentioned other causes such as
a slump in the market for railroad wheels, and the fact that
45SOMERSET WELDING & STEEL
30 The only threat imputed to Riggs appears in the original complaint in this
proceeding dated July 10, 1987. (Case 6–CA–19922.) That unsubstantiated al-
legation does not correspond to the timeframe in which the Company waged
its propaganda campaign through mailings and captive speeches. (GCX–1(s).)
Abex had a another facility in Alabama, but, despite these
causes, employees were told that the problems at Abex were
started by ‘‘a labor conflict.’’
In a similar vein Riggs also adverted to U.S. Steel’s shut-
down in nearby Johnstown, stating that this occurred after
management attempted, without success, to obtain conces-
sions from the Steelworkers.
It was in this context, that Riggs stated, ‘‘if we’re not
careful and we don’t learn from what’s going on here, that
it could happen in Somerset.’’ He discussed excessive costs
affecting the Respondent and the fact that ‘‘we were having
a very difficult time being competitive.’’ He reminded the
men that:
[M]ost of them had much more to gain by Somerset
Welding & Steel plant being there and being a strong
company than I did. I had a couple years to work yet.
Most of them had twenty . . . to thirty years to work
yet. Obviously their employment would generate much
more from the company than I was ever going to get
out of it.
The employees were told that pay rates were as high as the
Respondent could afford. They were reminded that increases
had to come from profits, but there were none to divide.
Riggs endeavored to rebut assertions in union literature by
explaining the methodology of collective bargaining. Riggs
told the employees that the wages and benefits employees
presently enjoyed would be subject to negotiation, explain-
ing:
There is many ways to structure the pay scale in a
plant. If you would go to job classifications, everybody
that’s doing that job got the same rate of pay and we
would be in chaos. We were paying all that our busi-
ness could stand to pay. Our average rate was commen-
surate with the business around us. . . . including the
union plants around us. All of it would have to be laid
on the table, all of the fringe benefits, the vacation, the
paid holidays, pension plan, the whole thing would
have to be laid out. We would have to pick and choose
. . . everything would be reviewed, not eliminated, it
could be reviewed. They were told that nothing would
change until this contract is arranged.
In discussing his anticipation of Steelworkers’ bargaining
patterns, and the problems they posed for Respondent’s oper-
ation, Riggs stated that to accommodate these demands, ben-
efits would have to be ‘‘restructured.’’ For example, because
the Respondent’s existing labor cost package was all that it
could afford, if more was given in wages, it would have to
come from other existing benefits such as pension or hos-
pitalization. As for company strategy at the table, Riggs later
expressed the belief that he might have used the words ‘‘bar-
gaining from scratch’’ to convey that:
[Y]ou have to start someplace. Normally in a bargain-
ing situation . . . a person in our position would lay
out the lowest figures they could. In this case it would
be the minimum wage.
2. Literature
Mailings posted to employees on April 10, 17, and 24 also
provide the basis for the General Counsel’s contentions in
this regard. (GCX–5(a), (b), and (c).)
In the first, dated April 10, the Respondent’s stressed its
need to remain competitive, while observing that its historic
ability to do so, despite great distances from market areas,
had created new jobs and good wages. Moreover, the letter
noted that competitiveness had enabled the Company to ‘‘get
new orders and customers and continue to provide jobs.’’ Fi-
nally, it opined that the Union would make Respondent less
competitive, and that ‘‘all of us have a lot to lose if an out-
side union like the steelworkers organizes Somerset Weld-
ing.’’ (GCX–2(A).)
Another mailing, dated April 17, stated:
[J]ob security means having a job to go to on a regular
basis. The Steelworkers do not provide you with a job
or pay your wages, the company does. Your job secu-
rity, therefore, depends upon the company being able to
remain competitive and stay in business. We have pro-
vided new jobs and good wages while many union
companies are closing their doors. We attribute this to
our ability to remain competitive.
. . . .
Customers are likely to place orders with a company
which provides the best service for the best price. You
might ask yourself: ‘‘If I were the customer, would I
be likely to give an order to a company where it might
be delayed by strikes, arguments, and restrictive work
rules, or would I give the order to a company which
is free to provide the special attention and consideration
which the job might require?’’
. . . .
You have a big stake in the company continuing to
be competitive. Only by being competitive in terms of
both quality and price can we get new orders and cus-
tomers to provide jobs. This is particularly true because
we bring a significant amount of work into Somerset
County from out-of state. Even with the added costs
which are involved when we deal with out-of-state cus-
tomers, we must still be able to do the work competi-
tively or lose the business. [GCX–2(b).]
By letter dated April 27, the following point was made:
[T]he presence of the Steelworkers could hurt our busi-
ness. We could lose jobs because customers might be
afraid to give work to a company which could have a
strike or labor unrest. [GCX–2(c).]
(3) Concluding analysis
The separate complaints in this proceeding are devoid of
allegation that Riggs, during company propaganda in April
and May, threatened employees with plant closure or job loss
in the event of unionization.30 Instead, the illegal points im-
46 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
31 The sole allegation that Riggs threatened plant closure places the incident
on or about March 20. This period was obviously distinct from the timeframe
in which captive meetings were held and written propaganda disseminated. In
fact that threat is traced to the original complaint (GCX–1(c)) in this proceed-
ing which issued on May 27, 1987, on the charge filed on March 19, 1987,
in Case 6–CA–19922. The incident obviously was unrelated to the Respond-
ent’s formal propaganda campaign. I would note, however, that the Respond-
ent in its posthearing brief construes that allegation as focusing on Riggs’ sub-
sequent conduct.
32 Cf. Benjamin Coal Co., 294 NLRB 572, 577–582 (1989); Kawasaki Mo-
tors Mfg. Corp., 280 NLRB 491 (1986).
33 See Blue Grass Industries, 287 NLRB 274 (1987); Pilliod of Mississippi,
Inc., 275 NLRB 799 (1985).
34 Cf. Kawasaki Motors Mfg. Corp., 280 NLRB 491 (1986).
35 Cf. Quality Engineered Products Co., 267 NLRB 593, 596 (1983).
36 Chas. S. Winner, Inc., 289 NLRB 62 (1988).
37 Storer Communications, 287 NLRB 890 (1987).
38 Atlas Microfilming, 267 NLRB 682, 685–686 (1983).
39 See, e.g., Wagner Industrial Products Co., 170 NLRB 1413 (1968). By
opinion dated August 31, 1989, the First Circuit Court of Appeals remanded
Shaw’s Supermarkets, 289 NLRB 844 (1988), to the Board for clarification
in the face of an apparent inconsistency with existing precedent. There, how-
ever, the remark was not made in the context of other unfair labor practices.
puted to Riggs during that timeframe were outlined in Case
6–CA–20034 as limited to the following:
[T]elling employees that Respondent would reduce em-
ployees’ wages to minimum wage level and eliminate
their benefits and the collective bargaining would start
at zero and war would begin if the Union won the elec-
tion, informed its employees that it would be futile for
them to select the Union as their bargaining representa-
tive.
The limited nature of this allegation31 is astonishing when
one considers the documentation that must have been avail-
able to the General Counsel in framing and administering
these somewhat dated complaints, and the relevance of job-
loss threats by a high-ranking official to the appropriateness
of a remedial bargaining order. That no effort was made to
amend the complaints to challenge the published literature on
this ground is an act of oversight in a critical area. Nonethe-
less, under the precedent, since the matter was documented,
and no issue of fact exists in connection therewith, Board
policy excuses such omissions and requires a finding as if
properly alleged.
In Harrison Steel Castings, 293 NLRB 1158–1159 (1989),
the Board held that, in a context of union hostility, an em-
ployer may not lawfully campaign on the basis of surmise
that collective bargaining will increase costs, thus, altering
the competitive posture of its product in the market place,
raising the specter of loss of business and jobs. The oral and
written communications by Sidney Riggs obviously fall with-
in that mold. Accordingly, that decision, in light of the other
unlawful conduct found herein, including threats of closure
and job loss, is dispositive. Indeed, I find that Riggs’ totally
unsupported assertions32 concerning reduced competitiveness
and concomitant job loss, though not as graphic, gave vent
to more direct coercive remarks by supervisors, set forth
above. For these reasons, Riggs transcended 8(c) speech
guarantees and violated Section 8(a)(1) by associating union-
ization with a loss of jobs.
The summation of plant closings was also unlawful. First,
it is noted that Riggs credibly denied having made any direct
statement that the operation would close if the Union were
designated. Furthermore, the Board has permitted employers
to chronicle the adverse track record compiled by unions,
even in the context of other unlawful statements.33 However,
this privilege does not obtain where such citings are offered
as a fear-inspiring suggestion of what was likely to occur in
the declarant’s operation. This was the case here. Riggs ad-
mittedly told employees that ‘‘if we’re not careful and we
don’t learn from what’s going on here, that it could happen
in Somerset.’’ This possibility was enhanced by that segment
of the campaign rhetoric which cautioned that the Respond-
ent could afford no more than presently paid wages and ben-
efits, a ‘‘stated belief’’ uttered by Riggs nakedly and without
demonstrable proof that this was so.34 Employees therefore
were left with no objective facts to evaluate. Instead, to
avoid closure, those taking Riggs at his word, were impelled
by his remarks to reject the Union. He created a bluffing
game, raising the ante with duress. Section 8(c) does not
privilege the attempt to influence votes in this fashion. The
Respondent thereby violated Section 8(a)(1) of the Act.
In the areas specifically challenged by the complaint, em-
ployees were not told in so many words that designation of
the Union would be futile.35 Nor does it appear that Riggs
ever said that he would decline recognition,36 that he would
refuse to negotiate in good faith,37 or that he would never
execute an agreement.38 Instead, his message was to the ef-
fect that the existing cost of wages and benefits was all that
the Company could afford, and therefore bargaining would
be constrained to those limits. In other words, employees
were led to believe that bargaining would be reduced to a
process of restructuring whereby any new benefit would be
traded off by elimination or curtailment of an existing one.
Concerning this reference, the General Counsel cites no au-
thority denying employers the right to express views as to
how fiscal concerns will impact upon the bargaining process.
The purpose of any antiunion campaign is to persuade em-
ployees that a union is just so much excess baggage and un-
necessary. Few such efforts would escape interdict were
‘‘poor mouthing’’ equated with a proscribed expression of
‘‘organizational futility.’’ The General Counsel offers little
guidance as to just how references to cost limitations exceed-
ed that category of propaganda which the law leaves ulti-
mately to the test of collective bargaining, and immediately
to employee evaluation, and their good sense. Any assertion
that employees were thereby informed that designation of the
Union would be futile is deemed insubstantial and any
8(a)(1) allegation based thereon is dismissed.
The final allegation focuses upon statements by Riggs that
the Company would adopt a bargaining strategy which would
place all existing benefits on the negotiating table, and allow
the process to begin from ‘‘scratch’’ or ‘‘zero’’ or ‘‘the min-
imum wage.’’ Such statements are not automatically con-
demned by the Board. Plastronics, Inc., 233 NLRB 155
(1977). However, they ‘‘violate the Act if, in context, they
reasonably could be understood by employees as a threat of
loss of existing benefits.’’ Taylor-Dunn Mfg. Co., 252 NLRB
799 (1980), enfd. 679 F.2d 900 (9th Cir. 1982). On the other
hand, no violation is generally found where ‘‘[t]he record is
devoid of any evidence of accompanying unfair labor prac-
tices which might color an employee’s view of the state-
ment.’’39 Here, as shall be seen, the Respondent’s effort to
defeat the Union was replete with coercive conduct on the
part of supervision, including a statement by John Tims Sr.,
47SOMERSET WELDING & STEEL
40 As shall be seen below, Thomas A. Deist, another alleged discriminatee
testified that on hire, he was told by Rush during his interview that he would
be eligible for a raise after 60 days. He too did not receive the increase, after
this initial cycle expired before any union activity. Deist’s testimony confirms
a lack of uniformity in the periodic wage evaluation process, and that on a
nondiscriminatory basis, increases were withheld even where employees, on
hire, were led to believe that they would be forthcoming.
41 The General Counsel relies on Gossen Co., 254 NLRB 339 (1981). As
was too often the case, I was not given the benefit of a spot cite. The relevant
segment is 254 NLRB at 354. Judge Zankle’s critical finding was omitted
from the General Counsel’s portrayal of that case. Thus, unlike the instant
case, the facts disclosed there that: ‘‘Whenever employees were informed . . .
that the merit system was being held in abeyance because of the Union’s pres-
ence, the campaign or union activities were mentioned.’’
the manager of the Somerset plant, that ‘‘if the union was
voted in the company would take away all our benefits.’’
This remark gave sinister meaning to Riggs’ definition of
what would take place at the bargaining table. There were
other direct threats by supervisors, but the statement by Plant
Manager Tims typifies the ‘‘impression,’’ which is viewed
by the precedent as the latent danger in the phrase, ‘‘bargain-
ing from scratch.’’ Coach & Equipment Sales Corp., 228
NLRB 440 (1977); Belcher Towing Co., 265 NLRB 1255,
1268 (1982). In this light, the references to zero-based bar-
gaining, in the total circumstances, constituted a further vio-
lation of Section 8(a)(1) of the Act.
C. Discrimination
1. Denial of wage increases
a. Carlos Sprankle
The General Counsel contends that the Respondent vio-
lated Section 8(a)(1) of the Act by, in April, denying Carlos
Sprankle a wage increase. Sprankle relates that before his
hire, wage rates were of fundamental concern to him. He re-
sided in Johnstown and, prior to his layoff at Bethlehem
Steel, had earned as much as $16.50 per hour. When inter-
viewed by Rush, a few days prior to his March 6 starting
date, Sprankle expressed concern about Rush’s offer of only
$5 hourly, but claims that Rush stated that, after 30 days, he
would receive a $1 increase, with an additional 50 cents each
quarter thereafter ‘‘if everything was going all right.’’
Sprankle, after 30 days of employment, did not receive an
increase and questioned Guy Rush about it. Rush allegedly
explained that he could not give a raise at the time because
‘‘if I give you a dollar an hour raise . . . everybody would
think I’m buying votes off of you.’’ Rush said that
Sprankle’s work was fine, but there was nothing he could do.
According to Sprankle, Rush added that when ‘‘this’’ is set-
tled he might be able to give the raise.
As a general proposition, an employer during the
preelection period is required to administer wage increases as
if the petition had not been filed. See, e.g., McCormick
Longmeadow Stone Co., 158 NLRB 1237, 1244 (1967). As
a corollary, employers are not entitled to withhold benefits
‘‘as a tactical maneuver designed to discriminate against em-
ployees and to interfere with the employees’ freedom of
choice.’’ Great A & P Tea Co., 166 NLRB 27, 29 (1967).
These are principles which conveniently apply where the in-
crease had been previously announced or identifiable because
reasonably coextensive with a clearly defined pattern or past
practice. See, e.g., Arrow Elastic Corp., 230 NLRB 110,
112–113 (1977). Here, however, the increase in question was
available on the basis of an apparently erratic, cyclical eval-
uation, subject to implementation on the basis of nonobjec-
tive, discretionary criteria. H.S.M. Machine Works, 284
NLRB 1482, 1490–1491 (1987). At a minimum, if conferred
in April, the increase would have been vulnerable as a pre-
sumptively unlawful interference with freedom of choice.40
Such being the case, fairness demands that the Employer be
privileged to withhold, provided that it does not utilize the
incident as a means of combatting unionization by casting
blame for the employee’s loss upon the Union, the Board or
the election process. Centre Engineering, 253 NLRB 419,
421 (1980). In this instance, Rush, at no time, took to the
offensive by seeking to make an issue out the denied in-
crease. He merely deflected Sprankle’s inquiry by insinuation
that any other course might portray the Company in an unfa-
vorable light. No blame was cast upon the Union, the cam-
paign, or the Board, all of which went unmentioned. Finally,
his reasoned explanation given to Sprankle, as the law re-
quired, was noncommittal as to what would occur after the
election. As in Uarco Inc., 169 NLRB 1153, 1154 (1968),
Rush did not ‘‘shift to the Petitioner the onus for the post-
ponement of adjustment in wages and benefits . . . or . . .
disparage and undermine the Petitioner by creating the im-
pression that it stood in the way of . . . planned wage in-
creases and benefits.’’41 Accordingly, and, as no increase had
been preordained through either unmistakable promise or
fixed cycle, the Respondent, in this instance, did not violate
Section 8(a)(3) and (1) of the Act. H.S.M. Machine Works,
supra.
b. Thomas A. Deist
The complaints include a like allegation founded upon a
denial, on March 17, of an increase to Thomas Deist.
Deist was hired on November 10, 1986. He relates that
during his preemployment interview with Rush, he com-
plained about the offered starting rate of $5.75 per hour, and
told Rush he could not afford to work for less than $8 hour-
ly. Rush responded that Deist would have to prove himself,
that he would be eligible for a raise after 60 days, and within
6 months Deist could be at his desired wage level.
After hire, Deist was assigned to the Bulow building
where he was supervised by Roger Cook. The 60-day period
would have expired on January 10, well prior to the advent
of union activity. Because he did not receive a raise at that
point, he complained to Cook, who later reported back, that
he had talked to Rush and that no increase would be given
at that time. Thereafter, Deist inquired about a wage increase
on a regular weekly basis, and was left with the impression,
that management felt he could quit if he did not like his pay
status.
Although Deist claims that Rush told him upon hire that
the Company had plenty of orders, on January 22, he was
laid off. He was recalled on February 19, again before any
union activity. However, he avers that on March 13, Cook
told him that he had spoken to Rush, who accepted Cook’s
recommendation that Deist be given a raise. It does not ap-
pear that Deist was apprised of any determination of when
or how much he could expect.
48 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
42 The General Counsel on the knowledge issue states that ‘‘he [Reiber] par-
ticipated in several discussions concerning the merits of unionization with
Emert and other employees.’’ Having read, and reread, his testimony, there is
no indication that he said anything in such conversations that directly or by
implication would disclose his position.
43 The complaints include no allegation embracing this direction not to vote
which, bracketed with the threatening language, would amount to a blatant
violation of Sec. 8(a)(1).
44 This procedure is left unchallenged by the General Counsel. Its use was
confirmed by at least one of the latter’s witnesses. Thus, Joseph Sharbaugh,
an employee at the Trailer division, testified that on the afternoon of the elec-
tion, as he and Mike Pritts were waiting for their paychecks, Dwight Clyde
asked if they had voted. When they said they had not they were told they
would not receive their checks until they did. They voted and then were given
their paychecks.
45 (GCX–4.) The General Counsel argues, somewhat circuitously, that
Reiber was not told of his ineligibility ‘‘because he was eligible,’’ and that
Emert knew it. This assertion is absolutely baseless. First, the Excelsior list,
which would have been forwarded to the Union well prior to the election, of-
fers objective evidence that the Employer did not consider him eligible. Also
groundless is the General Counsel’s suggestion that the retail and parts depart-
ments were separate and distinct. This stab at the literal is rebuffed by the
record’s plain indication that these terms were used interchangeably to de-
scribe the store. In any event, I believed Emert’s testimony that his employees,
including Reiber, were informed well in advance of the election as to their
ineligibility.
On March 14, Deist attended the union meeting at the
Holiday Inn where he signed an authorization card.
During the ensuing week, he had not received the increase,
so on March 18 or 19, Deist again confronted Cook in this
regard. According to Deist, Cook stated ‘‘don’t get your
hopes up, Tom, because you’re not getting the raise you
were promised.’’ Deist, who had not previously informed
any management representative that he had attended the
union meeting, asked Cook if that were the reason. Cook had
no comment.
Cook testified that he was not pleased with Deist’s
progress and denied that he recommended him for an in-
crease. However, he could not remember, and hence did not
deny either that Rush told him he was going to give Deist
an increase, or that he told Deist that this would occur.
Cook’s testimony therefore offers no effective rebuttal, and
I credit Deist’s testimony that prior to any union activity, he
was told that he would get an increase. In these cir-
cumstances, the failure to make the promised wage adjust-
ment was contrary to the well-established policy requiring an
employer during the preelection period to administer benefits
‘‘as he would if a union were not in the picture.’’ The
Gerkin Co., 279 NLRB 1012 (1986). Having made the com-
mitment prior to the campaign, the Respondent was obligated
to follow through during the campaign, a duty not excused
either by the temperate fashion in which the withholding is
communicated or because unaccompanied by specific union
animus. Cf. H.S.M. Machine Works, supra. The refusal to
grant the increase to Deist violated Section 8(a)(3) and (1)
of the Act. See, e.g., Huttig Sash & Door Co., 263 NLRB
1256, 1259 (1982).
2. Gary Reiber: his paycheck and layoff
Reiber is the beneficiary of two counts of alleged discrimi-
nation. The first concerns a withholding of his paycheck on
May 15, and the second pertains to his layoff on May 22.
Concerning the paycheck incident, it will be recalled that
the election was conducted on May 15. This was also pay-
day. The official definition of the voting group excluded ‘‘re-
tail sale employees.’’ As indicated, prior to his layoff, Reiber
worked in the Respondent’s retail sales operation which was
then located at its Somerset facility. This store-like unit ca-
tered to a walk-in trade. Also called the parts department,
Clark Emert was its manager. The operation was staffed by
five employees; namely, Martha Zerfross, Tom Schrock,
John Buratty, Larry Sarver, and Reiber. The latter describes
the others as primarily engaged in the sale of parts over the
counter to customers. His job, on the other hand, derived
from the fact that the Respondent maintained a line of steel,
of varying gauges and length, for sale to the consuming pub-
lic. Reiber was primarily engaged in the cutting and welding
of steel according to customer specification as relayed to him
by coworkers in the store. He estimates that he spent 70 per-
cent of his time cutting steel, a task performed in the produc-
tion shop at that location. However, like his coworkers,
Reiber’s duties also included stocking shelves and waiting on
and selling to customers. He participated in commissions
earned from these sales.
Reiber’s activity on behalf of the Union was confined to
his attending a ‘‘couple of . . . meetings’’ and his signing
an authorization card. There is no direct evidence that man-
agement was alert to his sentiment.42
On May 15, the day of the election, Reiber asserts that
Emert distributed all paychecks but his, retaining it in his
shirt pocket. Emert allegedly approached him, asking if
Reiber were going to vote. Reiber indicated that he was un-
sure because he was confused over the issues. Emert then
said he could not give him the paycheck unless he knew ‘‘if
you’re going to vote or not.’’ Reiber insisted that he wasn’t
‘‘really sure.’’ According to Reiber, Emert then went to the
office, but returned, advising Reiber that the attorney had in-
formed that Reiber was ineligible to vote. In giving Reiber
the check, the latter states that he was told by Emert, ‘‘I bet-
ter not see you go up there to that voting place.’’ Reiber
claims that out of concern for his job he decided not to
vote.43
Emert testified that about 1 week before the election, he
learned that his department would be excluded. He at that
time told his staff that they would not be eligible to vote in
the election. On the day of the election, the Company elected
to defer the distribution of paychecks until after employees
had voted.44 Emert, however, obtained checks for his depart-
ment early because they were not scheduled to vote. He
claims that as a joke he asked each one if they were going
to vote, and gave them their check after they replied in the
negative. He claims that neither Reiber nor any one else in
his department took him seriously.
Reiber did not impress me as a reliable witness. His testi-
mony suggests that, as of May 15, he had not been alerted
to his ineligibility, and that Emert, also uncertain in that re-
spect, had to check. Emert made more sense. Reiber’s name
was excluded from the Excelsior list prepared by the Em-
ployer several weeks prior to the election.45 Absent evidence
that Emert had any basis for suspecting how Reiber would
vote, his joking inquiries as to whether ineligible employees
had voted, while not to be condoned, were facially absurd,
would be taken as ridiculous, and hence offered no founda-
tion for concluding that his antics tended to impede the exer-
cise of Section 7 rights. On the credited facts, it is concluded
that Reiber was not subjected to any pressures to refrain
from voting, and that his testimony in this respect was a by-
product of his own confusion, rather than what actually oc-
49SOMERSET WELDING & STEEL
46 Emert’s uncontradicted testimony is to the effect that he twice precluded
Reiber from participating in group commissions because of his absenteeism.
curred. All 8(a)(3) and (1) allegations pertaining to this inci-
dent shall be dismissed.
On May 22, Reiber was laid off. He claims that Emert at
that time approached him, stating:
I was told to . . . lay you off because of lack of work,
and there would be some people that’s going to be put
down to part-time work. And the union may be coming
in . . . and it was just disrupted there.
On cross-examination, Reiber admitted that, during investiga-
tory stages, he had informed the Board that Emert specifi-
cally stated that the layoff had nothing to do with the Union.
At the time, Reiber had been assigned to the store about
7 or 8 years. He was never criticized nor disciplined regard-
ing his work. He enjoyed greater length of service than cer-
tain coworkers in the store, namely, Martha Zerfross, Danny
Schrock, and Kent May. No one else in the department had
performed his steelcutting duties. After he left, these orders
were performed in the shop by production personnel.
Emert testified that prior to the layoff, the ‘‘parts depart-
ment’’ was a full service operation, with customers being
waited on at a sales counter by department personnel. Ac-
cording to Sidney Riggs, this proved unprofitable, and in
seeking ways to cut costs, it was decided to convert to a self-
service operation. Emert described the layoff as a cost-cut-
ting measure that took place contemporaneous with the con-
version to self-service. He testified that he and Bill Riggs,
his superior, selected Reiber, not because his duties were dis-
pensable, but because, in the main, he served as a laborer
and could not understand the service reference books. Emert
also noted that Reiber’s cutting work was originally per-
formed in the production shop. During a production slow-
down, a position was created in his department for Reiber,
hence his work was readily transferrable back from whence
it came. Reiber’s dispensability was also foreshadowed by
his preference against Saturday work, and his propensity to
take off days on an unscheduled basis, without prior author-
ization, and without calling in.46
In agreement with the Respondent, it is concluded that the
General Counsel has failed to substantiate its initial burden
that union activity was a motivating factor in this layoff. It
is true that Reiber had signed an authorization card and that
the Respondent was antiunion. However, for the reasons stat-
ed, there is no direct evidence, nor basis for inferring, that
the Respondent was aware of his sentiment, or for that mat-
ter, interested. As an ineligible employee, with no overt role
in the campaign, it was highly unlikely that Reiber offered
a fitting subject for postelection reprisal. The circumstances
do not go so far as to even arouse suspicion. Accordingly,
it is concluded that the General Counsel has failed to furnish
a reasonable basis for inferring that union activity played any
contributing role in Reiber’s selection. Were I to find other-
wise, based upon the credible explanation of Emert, I would
conclude that Reiber would have been laid off even if he had
not engaged in union activity. The 8(a)(3) and (1) allegations
in this respect are dismissed.
3. The layoff of Carlos Sprankle
Sprankle had been employed for slightly less than 3
months when laid off on June 1. The General Counsel con-
tends that this was discriminatory and violative of Section
8(a)(3) and (1) of the Act.
Prior to his layoff, Sprankle signed an authorization card,
encouraged coworkers to do so, wore a union button to cap-
tive meetings in which Sidney Riggs delivered his antiunion
messages, placed stickers on a storage box in his work area,
and had argued the pros and cons of unionization with
Baughman. He avers that he had never been disciplined, and
that on several occasions Foreman Baughman and Rush told
him that his work was good.
Sprankle states that he was told that his layoff was be-
cause work was ‘‘slowing down.’’ If actually conveyed, this
explanation would have been indefensible. First, Sprankle’s
uncontradicted testimony establishes that, at the time, his job
required overtime, and that two other welders had quit, and
were recently replaced by new hires. The ongoing viability
of that job was confirmed by the testimony of Charles
Knotter, a coworker, who related, without challenge, that he
was removed from his work for 2 weeks after Sprankle’s lay-
off to perform the latter’s job. Knotter adds that he returned
to his former position, after the Respondent hired a replace-
ment, Mike Dieter. Knotter relates that it was he who trained
Dieter.
On the other hand, contrary to Sprankle, Rush, with sup-
port from Baughman, testified that Sprankle was laid off be-
cause ‘‘his work habits had been faltering, slowing down and
the quality of his work was decreasing rapidly.’’ I was in-
clined to believe them essentially because of corroboration
by Cary Mishler, an active proponent of the Union, who ear-
lier had been a major witness for the General Counsel. The
latter testified that after Sprankle was denied a wage in-
crease, he engaged in a deliberate slow down, which pro-
duced repeated warnings, but which forced Mishler to con-
clude that Sprankle ‘‘wouldn’t do his job.’’ In the light of
this entirely believable testimony, it is concluded that the Re-
spondent has established that Sprankle would have been ter-
minated even had he not engaged in activity protected by the
Act. The 8(a)(3) allegation in this respect shall be dismissed.
4. Randy Keyser: changes in working conditions
It is alleged that on various dates in June and July, the Re-
spondent discriminated against Keyser by (1) restricting his
access to the parts room, (2) transferring him from the Trail-
er building to the Bulow building, (3) reducing his hours,
and (4) denying him overtime.
Keyser was an active proponent of the Union. He was a
member of the organizing committee formed at the March 14
union meeting, and in that capacity successfully solicited co-
worker signatures to authorization cards, having executed his
own. He demonstrated his support by wearing union insignia
on his person, hat, and lunchpail. He also testified in support
of the Union during the postelection hearing on challenges
held on June 9 and 10.
It will be recalled that shortly before the election, one of
his supervisors, Berkley, allegedly told Keyser that he was
among the union protagonists who ‘‘probably won’t have
jobs after its over.’’ A similar threat was confirmed by Mark
Taylor who states that Berkley told him that certain people,
50 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
47 Not one Trailer department employee, other than Keyser, was called to
confirm that he had not been informed of this policy. Although Keyser testi-
fied that he did not know of anyone else subject to this restriction, testimony
which is facially unreliable, this absence of corroboration enforces its rejec-
tion. I credit the testimony of Rush and Berkley that the policy applied to ev-
eryone. The General Counsel argues that Keyser was restricted as ‘‘simply a
step along the path to Respondent’s ultimate goal of isolating Keyser from
other employees, so as to curtail his knowledge of Respondent’s operations as
well as to minimize his influence on other Unit employees.’’ While within the
realm of possibility, such a motivation is not inferable on this record.
48 Notwithstanding this testimony, the transfer is not construed as an offer,
which was subject to Keyser’s approval. Admittedly this possibility is raised
by Keyser’s testimony that, ‘‘I told him [Rush] I didn’t want to go in there,
but I would.’’ However, there is no contention on Respondent’s part, nor did
Rush testify that Keyser was free to decline the transfer and remain employed.
In this light, I am convinced that all involved understood that the transfer was
mandatory.
49 In the course of his testimony, Keyser appeared to admit that he per-
formed ‘‘plumbing’’ work at Bulow which was ‘‘basically the same’’ as hy-
draulic work.
50 On August 7, Keyser voluntarily took a job at a higher rate of pay.
including Randy Keyser, were more or less to blame for the
Union and that ‘‘actions would be taken against them to
make sure that . . . the union didn’t come through.’’
At the time of the election, Keyser earned $7.25 hourly,
while assigned to highly specialized military trailers being
fabricated under the Peabody-Gallion contract. He was sta-
tioned at the end of the line, responsible for checking and
testing the installation of all hydraulics. He did some finish-
ing work, and a small amount of fabrication. He also in-
stalled the front doors. According to Keyser, no one else per-
formed his job, because the trailers demanded knowledge be-
yond the skills and experience of other finishers.
After Keyser testified at the postelection hearing on June
9, he took a brief vacation, returning to work on Monday,
June 15. At that time, Supervisor Rod Berkley told Keyser
that he would no longer be permitted to go to the parts room
to get parts, a trip of more than 300 feet that Keyser claims
to have been making 15 to 20 times daily. Keyser was in-
structed to page Berkley when a part was required, and to
make a list inventorying every part requested of Berkley,
who later would deliver the parts. No explanation was of-
fered to Keyser for these changes. He testified that he was
unaware of any one else who was similarly restricted.
Concerning parts procedure, Berkley acknowledged that in
June, he reaffirmed a previously adopted routine to be fol-
lowed by employees when they needed parts. No longer
could they go to the parts room, but parts would be ordered
through supervision, then delivered to the immediate work
area either by supervisors or employees designated as ‘‘parts
people.’’ According to Berkley, though adopted in 1985, en-
forcement of this policy was lax until June. Berkley also tes-
tified that all were required to list the parts used, to facilitate
costing out the process. In addition, hydraulic work requires
large quantities of parts, and when a particular unit, new to
production, is completed, this listing enables accumulation of
parts at the workstation when the next trailer is ready for
production.
Rush confirmed that the policy was in effect, but not
closely enforced or posted until June 1987. It applied to ev-
eryone. The timing of this action was attributed by Rush to
his learning that the parts policy had been abused only after
hearing Keyser’s testimony in the representation hearing. Be-
fore this, Rush claims that he was unaware that Keyser was
making 20 trips to the parts room daily. Supervision was
therefore instructed to enforce the preexisting policy. Rush
confirmed that an element of this policy required the employ-
ees to list items needed. This is done either at the beginning
or end of the shift. Rush described this requirement as de-
signed to facilitate parts delivery to the workstation, and to
prevent disruptions to production sustained when technicians
themselves secured their parts.
Contrary to the General Counsel the parts policy, even if
new, did not strike as in the nature of reprisal. Instead, this
was sound management policy which, while serving interests
of efficiency, would reduce the burden on mechanics. After
all, Keyser himself admitted that previously his ventures to
the parts room were so frequent that he was ‘‘back and forth
all the time.’’ There can be no question, that Keyser’s strong
support of the Union was known. Moreover, specific animus
toward him made him a fitting candidate for reprisal. How-
ever, the record does not persuade that enforcement of the
parts distribution and inventory rules were part of any such
design. Nor is that view altered by the fact that the flawed
production practice was discovered through employee testi-
mony during a representation hearing. On balance, it is my
judgment that, once discovered, corrective steps would have
been taken even had there been no union activity.47 The
8(a)(3) and (1) allegations based thereon shall be dismissed.
It is also alleged that Keyser was victimized by a discrimi-
natory transfer. Thus, on or about July 10, the work on the
military trailers was completed. That afternoon at the end of
his shift, Keyser was informed by Dwight Clyde that he
would be transferred to the Bulow building, effective the fol-
lowing Monday. Clyde explained that there was a large
quantity of hydraulic work to be performed at that location.
Keyser discussed the transfer with Guy Rush, who justified
it by a backup in hydraulic work at Bulow.
Keyser relates that the trailer operation started working a
10-hour day and Saturdays a ‘‘couple days before this.’’ For
this reason, Keyser states that he asked Rush about overtime
at Bulow, prompting the latter to check by telephone, and
then report to Keyser that Bulow was then working 9-hour
days. Keyser agreed reluctantly to take the transfer,48 but
asked Rush if they were trying to get rid of him or trying
to lay him off. Rush asked if Keyser was volunteering for
a layoff, to which Keyser responded in the negative, but
asked if he could get one if he wished. Rush said they could
probably work something out.
According to coworker Mark Taylor, Keyser was replaced
on the hydraulic work at the Trailer plant by Jack Updyke
and Clyde Smith.
When Keyser reported to Bulow, he found only five em-
ployees working there. He reported to Roger Cook, a super-
visor with whom he had no problems, and who com-
plimented his work. There was no hydraulic work. Instead,
he engaged in basic fabrication, including welding, bolting,
drilling, and fitting.49 With this transfer there admittedly was
no cut in pay rate or benefits. In fact, Keyser characterized
this work as ‘‘simpler.’’
The rub was overtime. Keyser claims that during his 4-
week tenure at Bulow,50 the Trailer division had averaged 10
hours daily, plus Saturday work. In contrast, his overtime at
Bulow was cut during the first week, to 9-hour days, with
no Saturday work, and the second week, after 2 or 3 days,
to 8 hours daily. Although Keyser’s estimate of hours
worked by the Trailer department was overstated, a signifi-
51SOMERSET WELDING & STEEL
51 Uncontradicted testimony demonstrates that Keyser was replaced in the
Trailer department by John Updyke and Clyde Smith. During the relevant
timeframe, Updyke worked 195 hours and Smith worked 200 hours. According
to Keyser’s estimates, he worked only 168 hours at Bulow.
52 Contrary to the General Counsel, I did not disbelieve testimony by Roger
Cook and Rush that more manpower was needed at Bulow. Apart from pos-
sible increased overtime, the transfer apparently did not have any adverse ef-
fects in the Trailer operation. Moreover, it was not shown to have created a
surplus of labor at Bulow.
53 Both jobs were pursuant to fixed price contracts. Under the arrangement,
overtime would eat into profits and was to be avoided. For reasons not entirely
clear to me, the Respondent was less inclined to sustain these costs in connec-
tion with the time-critical job at Bulow.
54 Apparently Somerset Welding & Steel, Inc. is a subsidiary of Riggs In-
dustries. Garman’s conduct in connection with this allegation is clearly binding
upon the Respondent. Decisions as to the timing of reinstatement, or whether
it will be conferred or denied to employees on disability leave, are within his
exclusive domain. Either on agency or supervisory grounds, he was Respond-
ent’s instrumentality for passing on requests of the type registered by Tims
and under scrutiny here.
55 Garman confirms that he was later informed of Tims’ attempt to reach
him that morning.
cant discrepancy in overtime opportunities is suggested by
payroll records pertaining to the period June 21 through Au-
gust 16. (See RX–6.)51
In this light, the evidence demonstrates a detrimental trans-
fer of a known union protagonist within the period when ob-
jections were pending. Considering the specific animus di-
rected toward Keyser during the campaign, the cir-
cumstances, under Wright Line, 251 NLRB 1083 (1980), suf-
ficed to impel the Respondent to refute the inference that
union activity was ‘‘a’’ motivating factor. In this instance,
the Respondent suffered a failure of proof. Prior to the trans-
fer, Keyser had worked continuously in the Trailer depart-
ment since its opening in September 1985. Guy Rush ex-
plained that Keyser was transferred because he was short-
handed on a job in Bulow that had fallen behind schedule
while not progressing to the customer’s satisfaction.52 That
job entailed 24 units, all requiring plumbing on a tank and
sprayer unit. Capable help was needed, and because Keyser
had just completed a plumbing job in the trailer department
and because of his quality workmanship, Rush states that he
picked Keyser. However, Rush admitted that a scheduled de-
livery date was also in jeopardy at the Trailer plant, hence
requiring dreaded overtime at that location. His explanation
leaves open the question as to why this key employee, to his
personal prejudice, was removed from one, time-critical job
and placed on another. At the same time, there is no denial
of Mark Taylor’s testimony that two men replaced Keyser at
the Trailer plant, with both assigned considerable overtime in
that process.53 Although the issue is not free from doubt,
Keyser’s unprecedented removal from the Trailer department,
with the concomitant loss of overtime, under these cir-
cumstances, is deemed unaccompanied by convincing expla-
nation. I am not persuaded that this would have occurred
were he not among those blamed for union activity. The Re-
spondent thereby violated Section 8(a)(3) and (1) of the Act.
5. The refusal to reinstate John Tims Jr.
As indicated, John Tims Jr. and Bob Lee were the first
employees to meet directly with union representatives and
sign authorization cards. The contact took place on March 7.
Tims’ prounion bent was complicated by the fact that his fa-
ther, John Tims Sr., at times material, is, and has been, the
superintendent at the Respondent’s Somerset plant. Tims
Sr.’s reaction is evident from findings set forth above con-
cerning his coercive conduct the night before his son would
serve as the union observer at the May 15 election.
During the campaign, Tims Jr., due to an injury sustained
while playing volley ball, was on disability leave. On Feb-
ruary 12, he underwent reconstructive knee surgery. When
injured, Tims, an employee with over 10 years’ service,
earned $9.75 hourly. While out of work, his income was
$125 per week.
The General Counsel contends that, following Tims’ re-
covery, the Respondent violated Section 8(a)(3) and (1) of
the Act by failing to ‘‘recall’’ him since May 16.
In this connection, it appears that, on April 24, Dr. Hill,
his physician, released him for sedentary to light duty effec-
tive April 27. (See GCX–6(a).) Tims took the release to
Rush, who, as indicated, questioned him concerning the
union campaign. Tims, who was still on crutches at the time,
and needed work, told Rush he was hurting financially, but
agreed that it probably would be best to wait a while longer.
Within the next 2 weeks, Tims discarded his crutches.
However, he had been fitted with a large brace to restrict the
flex in his knee. A medical slip dated May 14, over Dr.
Hill’s signature, authorized a return to ‘‘regular’’ duties.
(RX–3(a).)
Tims, this time, applied to Larry Garman, the director of
safety for Riggs Industries.54 Garman, having observed the
large brace worn by Tims and his significant limp, was not
certain that he was completely healed. He therefore arranged
that very afternoon for a further evaluation by the orthopedic
staff at East Hills Rehabilitation Institute. It was anticipated
that the examination would be followed by immediate sub-
mission of a work report.
Tims, on May 15, was examined at East Hills by a Dr.
Yardley. He was next referred to the Fitness Institute for
‘‘work simulated’’ testing. This entailed a variety of motion
exercises designed to replicate work positions encountered by
Tims on the job. At the conclusion, Dr. Yardley advised
Tims a report would be submitted to Garman.
Garman avers that he telephoned East Hills at about 4
p.m., on May 15, and discussed the case with Mike Arnall
as well as an unidentified occupational therapist. Garman
claims that he was told that the work simulation test, which
normally runs from 2 to 4 hours was limited to 1 hour be-
cause Tims had to leave apparently to complete his duties as
union observer in the election of that same day. Also his
strength testing did not proceed beyond a 10-pound range.
Garman was given preliminary information that the knee had
limited flex, but that Tims was a determined individual, and
for that reason the prognosis was good.
That evening, according to Garman, he, without success,
attempted to reach Tims by telephone. On May 16, Tims
called Garman, who was not available. Sidney Riggs an-
swered the phone.55 Tims identified himself, telling Riggs
that he wished to return to work. Riggs angrily told Tims,
‘‘to crawl back to the hole in the ground,’’ then hung up.
The next communication between Garman and Tims was
on May 16 or 17. Thus, Garman related that, based upon the
information he had informally received on May 15, questions
existed which were inconsistent with an immediate return to
work, and which would block reinstatement until resolved.
He hoped answers would be provided in East Hills’ written
52 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
56 Tims testified that it was not until June 11, after intervention by his wife,
that he received a copy of Dr. Yardley’s report. Thereafter, for unexplained
reasons, he delayed a week before contacting Garman. According to Tims, in
that conversation, Garman claimed initially that he still had not received Dr.
Yardley’s report, but then, Garman located the document. However, Garman
told him that Dr. Yardley had not established to his satisfaction that Tims was
ready to come back to work.
57 On this occasion, to avoid misunderstanding as to the physical demands
of Tims’ job, a videotape of his working conditions was submitted to East
Hills for use in connection with their evaluation.
58 On June 4, an unfair labor practice charge in Case 6–CA–20034 was
amended to allege that Tims had been unlawfully terminated, and on July 1,
once more amended to allege that he had been unlawfully denied reinstate-
ment. (GCX 1(o) and (q).)
report. Consistent therewith, Tims asserted that he telephoned
Garman, and that he was simply told that, as yet, Garman
had not heard from Dr. Yardley, and presumably would not
act until that information was available. Thereafter, Tims
claimed to have continued to call Garner on a weekly basis
receiving the same response.
Garman explained that East Hills failed to respond in
timely fashion, but stated that he followed up regularly with
no immediate success. Eventually, on June 3, two documents
arrived, consisting of Dr. Yardley’s report dated May 15, and
a memo to Dr. Yardley dated May 18 from the Fitness Insti-
tute. (RX–3(b).) He stated that it was not until Friday, June
5, that he reviewed them in detail.
Garman was dissatisfied with the reports. He viewed them
as too limited in defining specific tasks within the objective
evaluation of Tims’ work capacity. His strongest reservations
focus on Dr. Yardley’s summation, as follows:
This man is interested in returning to work. I have cer-
tain doubts about his abilities, but he states that he will
be able to do his work and I therefore support his deci-
sion. I do think that further physiotherapy is mandatory
and I am hopeful that he will be able to regain his full
range of knee motion specifically extension. . . . This
man’s work involves standing and sitting and does not
involve a lot of lifting of weights. He is a welder and
he is able to do his job with not a lot of heavy activity
and I therefore think it is reasonable for him to return
to work at this time. [GCX–6(b).]
Garman construed this as tantamount to suggesting that Tims
be restored on a trial basis. He testified that he would not
act on this basis, but required information creating ‘‘the
greatest degree of likelihood that [Tims] . . . could success-
fully perform the work. . . .’’ He mentions several factors
in the report that undercut that possibility, including Dr.
Yardley’s references to loss of extension, the need for con-
tinued physiotherapy, Dr. Yardley’s own doubts about Tims’
abilities, and the misimpression that Tims’ job did not in-
volve ‘‘a lot of heavy activity.’’ Garman therefore decided
that until these reservations were clarified, he would not per-
mit Tims to return to work.
Garman testified that, having made up his mind to defer
his approval, he discussed this with Tims,56 and then sched-
uled him for completion of the work simulation testing and
followup evaluation. According to Garman, this was ten-
tatively scheduled for June 14 or 15, but did not actually
take place until June 23.57
In the interim, apparently on June 17, Dr. Hill released
Tims for return to work without restrictions. (GCX–6(c).)
The release was taken to Garman who remained uncon-
vinced, apparently preferring to defer action until East Hills
forwarded their findings.
Garman testified that he obtained the final round of reports
by driving to East Hills on or about June 29 and picking
them up himself. After a detailed review the following day,
Garman decided to restore Tims because of positive results
on the ‘‘task by task’’ objective evaluation. He informed
Riggs of his recommendation on or about July 1, and after
acceptance, Guy Rush was instructed to make arrangements
for Tims’ return.58 The latter actually reported for work on
July 6.
The 8(a)(3) allegation is limited to a refusal on or about
May 16, and thereafter to employ Tims. There can be no
question that considerable resentment was harbored toward
Tims, whose prounion bent not only was a family embarrass-
ment, but who underscored his indifference to his father’s
position, and the Company’s will by acting as the Union’s
observer during the May 15 election. Considering the threats
addressed to him and the hostile rebuff by Sidney Riggs, one
might readily infer that Respondent held firmly to the belief
that he was owed no favors, and that any adverse action was
caused at least in part by his strong union support. To this
extent, the burden was upon the Respondent to demonstrate
that the younger Tims would have received the same treat-
ment even if he had not engaged in protected activity.
I am persuaded that the Respondent rightfully refused to
reinstate Tims when he appeared under heavy movable cast
and with significant limp on May 15. Garman explained
credibly that this judgment was in furtherance of his respon-
sibility to ‘‘limit the exposure we have as to any injuries as
well as prevent accidents in the first place.’’ Thus, this injury
was nonoccupational and noncompensable, and Garman did
not want to have Tims return ‘‘under any circumstances
where . . . he would further aggravate the non-occupational
injury, have it turn into an occupational injury.’’ Were this
to occur, the Respondent would have been liable for all med-
ical care, as well as any subsequent disability, whether partial
or permanent. In contrast, as Garman further explained, occu-
pational injuries justified the Company in taking greater
risks. (See GCX–10.) In those cases, reinstatement on a
light-duty basis serves to reduce ongoing benefit costs, while
imposing little risk of additional liability.
The General Counsel would rebut this explanation by
pointing to the cases of Richard Hildebrand and Gooden.
Like Tims, both were welders on leave due to
nonoccupational injuries, yet both returned to work without
undergoing work simulation testing. (See GCX–11 and 12.)
Garman concedes that this was so but distinguishes Tims’
case. According to Garman, Hildebrand and Gooden applied
with unrestricted medical clearances, but, unlike Tims, in
their cases, ‘‘there was no physical indications that they
could not ambulate normally, be about and do their job.’’
This explanation was unchallenged and seemed an entirely
logical basis for diverse action. It was believed. Based upon
the testimony of Garman, which I believed in its entirety, it
is concluded that Tims, on and after May 16, was denied re-
instatement until cleared by occupational testing, a require-
ment imposed in the interest of legitimate business objectives
which would have been pursued even in the absence of union
53SOMERSET WELDING & STEEL
59 No other theory of a violation was mentioned by the General Counsel ei-
ther before, during, or after the hearing. The focal point of the allegation was
that reinstatement was denied. The only delay challenged was that occasioned
by the occupational testing interposed by Garman. Suspicion generated by de-
ferrals caused by considerations other than simulated testing are viewed as col-
lateral and neither alleged, argued, nor fully litigated.
60 This group includes the authorization card purporting to bear the signature
of Sidney Conway. (GCX–183(a).) His card was received upon the basis of
signature comparison with a W-2 held in the Respondent’s records bearing his
signature. Conway was actively employed at the time of the hearing, but he
was not called to dispute the authenticity of his signature. In light of the simi-
larity of the samplings, it is concluded that this card constitutes a valid des-
ignation which contributes to the Union’s majority. See, e.g., Aero Corp., 149
NLRB 1283, 1287 (1964). The Respondent contests eight cards solicited by
Cary Mishler and [sic] alleged supervisor. (GCX–111–118.) In this respect, the
Respondent argues that these cards were tainted because Mishler from time
to time would stand in for Mel Baughman, the supervisor of the body line.
The cards were properly authenticated and the burden was upon the Respond-
ent to defeat them. It has not done so. Mishler’s concern for his own organiza-
tion activity is no substitute for proof that he was legally bound to abstain.
The record does not establish how often Baughman was replaced, whether spo-
radic or regular, nor does it define the authority possessed by Mishler on those
occasions. Indeed, neither Mishler, nor Baughman were examined in this re-
gard. The entire issue struck as afterthought and these eight cards are counted
as valid union designations. Finally, the Respondent contests the card of Dave
Stanton (GCX–165) as not properly authenticated. This, in fact, was accom-
plished through testimony of card solicitor Franklin McVicker. The Respond-
ent urges that McVicker be discredited because he departed from practice in
failing to initial this card and in fact the card bears the cipher employed by
another solicitor, Randy Keyser. Nonetheless, McVicker impressed me as defi-
nite and truthful in conviction that he witnessed the execution of the card and
I believed his testimony, noting that the explanation he affords for the failure
to initial is entirely possible. The card is counted.
61 This figure excludes the card of Glen Hoover (GCX–173). His card was
solicited by Don Sanner. According to the uncontradicted testimony of Hoover
he was told at the time that ‘‘if I didn’t sign it . . . whenever the union come
in . . . I’d loose [sic] all my seniority, someone else could walk in off the
street and have my job.’’ The card, signed under duress, is rejected.
62 The status of Gary Reiber is contested, with the General Counsel arguing
that he should be included. There is no merit in this view. Although Reiber
performed 70 percent of his work in a production area, and often utilized skills
common to production, his duties were neither integrated with nor related to
the production function. His alignment with unit employees ends with these
nonwork-related contacts. Basically his work in the shop was in furtherance
of a specialized service offered by the Respondent to the consuming public
in support of retail sales. He was supervised in common with sales personnel,
was regularly called upon to wait upon trade and to stock shelves, and shared
in sales commissions. I find that he was a retail sales employee, within the
exclusion set forth in the agreed-upon unit. Accordingly, his authorization card
has been disregarded.
63 Although he is illiterate, the card of Merle Foust, dated April 6, was fully
authenticated by James Brant and is counted as a valid designation. The same
result is reached in the case of David Brown, who admits to signing the card,
but denies that he read it, and asserts that he understood this was a step nec-
essary to obtain more information. This attempt, through subjective state of
mind testimony, to extricate oneself from the legal effects of the designation,
was not only insubstantial as a matter of law (NLRB v. Gissel Packing Co.,
supra, 395 U.S. at 608), but also incredible. Similarly, Sanford Pletcher, who
claims that he signed the card thinking it was joke, offered no substantial basis
for repudiating his admitted execution of this single-purpose designation. Fi-
nally, three additional cards were solicited by employee Brad Barclay. He ad-
mittedly asked Joe Cabinaw, Edward Emrick, and David Hoover to sign, ad-
vising that they read the card and that the purpose of the card was to have
an election. Subsequently, Hoover testified that before signing he read it, was
told that its purpose was to organize, but could recall no other representations
concerning the card. I find the cards to be valid designations. In doing so, it
is noted that in response to a misfired, highly suggestive question by the Gen-
eral Counsel, Barclay in effect acknowledged that he told the men that the
‘‘only purpose of the card was to get an election.’’ However, in weighing this
colloquy against the balance of his narrative testimony, I did not believe that
specific statements were made inconsistent with the purpose stated on the card,
as required in Cumberland Shoe, 144 NLRB 1268 (1963), as approved by the
Supreme Court in NLRB v. Gissel Packing Co., supra at 606–609.
activity.59 The 8(a)(3) and (1) allegations in this regard shall
be dismissed.
IV. CASE 6–RC–9822
Many of the Union’s objections to the election are coex-
tensive with unfair labor practice allegations in the various
complaints. No evidence was adduced concerning Objections
1, 3, and 8. Furthermore, for the reasons stated above, Objec-
tions 6, 7, 9, 10, and 11 have been deemed nonmeritorious.
Accordingly, Objections 1, 3, 6, 7, 8, 9, 10, and 11 are here-
by overruled. However, by virtue of the above unfair labor
practice findings, Objection 2 (threats of plant closing), Ob-
jection 4 (threatened loss of benefits), and Objection 5
(threatened reduced wases) have been substantiated as having
occurred during the critical period after the petition was
filed. The coercive pattern of conduct depicted in those ob-
jections was wased at the highest echelons of management.
Moreover, the illegal remarks of Sidney Riggs, through pub-
lished materials and captive speeches, would have reached
each and every employee in the voting group. See, e.g.,
Caron International, Inc., 246 NLRB 1120 (1979). Accord-
ingly, Objections 2, 4, and 5 are hereby sustained, and based
on the Employer’s preelection misconduct described therein,
the election conducted on May 15, 1987, is hereby set aside.
V. THE REMEDY
A. The Refusal to Bargain
1. The Union’s request
There is no dispute that on March 17 the Union submitted
an unmistakable demand for recognition, which, as evident in
the Respondent’s entire course of conduct thereafter, was re-
jected.
2. The appropriate unit
The parties agree that the appropriate unit herein consists
of the following:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Somerset plant, Trailer plant and Bulow building fa-
cilities in Somerset County, Pennsylvania, excluding all
employees of Lincoln Supply and Equipment Compa-
ny’s Central Trailer farm and family Center, retail sale
employees, salesmen, office clerical employees, and
guards, professional employees and supervisors as de-
fined in the Act.
3. The Union’s majority
Duly authenticated, signed authorization cards were re-
ceived in evidence which demonstrated that of the 142 em-
ployees in the unit on the day of the election, 30 had des-
ignated the Union by March 14.60 This total was supple-
mented by 5 as of March 15; 39, by March 16;61 and 1, by
March 17, when the Union formally sought recognition.
Thereafter, 7 more cards were executed on various dates be-
fore April 15, for a grand total of 82.62
Based on the foregoing, it is concluded that the Union
held valid, unambiguous designations from a majority of unit
employees when, on March 17, it demanded recognition.63
54 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
4. The propriety of a bargaining order
Contrary to the General Counsel, the proven unfair labor
practices were not so ‘‘outrageous and pervasive’’ to warrant
a Gissel I category bargaining order. On the other hand,
Gissel II relief is warranted where lesser offenses are
so substantial in character that the possibility of erasing
the effects of these unfair labor practices and conduct-
ing a fair rerun election by the use of traditional rem-
edies is slight and . . . sentiment regarding representa-
tion, having been expressed through authorization cards
would, on balance, be better protected by issuance of
a bargaining order, than by traditional remedies alone.
The instant record manifests illegal conduct in the form of
coercive interrogation, threats of plant closure, loss of jobs,
and reduced wases and benefits. In addition, the Respondent
discriminated against an employee by denying a wase in-
crease, and later, following the election, against another by
a prejudicial transfer.
Central to the Gissel issue, however, are the threatening
remarks made during the preelection period by Sidney Riggs,
the chairman of board, a principal owner and presumably the
founder of the business; Guy Rush, its vice president; John
Tims Sr., the manager of the main plant; Dwight Clyde, the
manager of the Trailer plant; and front-line supervisors, in-
cluding Roger Pyle and Rod Berkley. Of these, the less so-
phisticated, direct threats occurred in face-to-face confronta-
tions between a supervisor and one or two employees. How-
ever, these coercive remarks often amounted to no more than
a simplification of the arguments communicated to the entire
work force on several occasions by Sidney Riggs. In all like-
lihood they were inspired by Riggs’ unsubstantiated premise
that designation of the Union would reduce the competitive
posture of the Company, resulting in a loss of business and
jobs. His exclamation that ‘‘the Steelworkers could hurt our
business’’ was complemented by the promise of a negotiat-
ing scheme that would produce no new benefits, with the
Company opening negotiations from a scratch or zero-based
position, even to the point of insisting that wases be dropped
to the minimum required by law.
Riggs’ strategy of fear was addressed to a work force soft-
ened by reminders that other unionized plants in the imme-
diate area had been closed in recent years. Some had actually
lost jobs in those very plants. Few others would have been
untouched by this experience which had thrown friends and
relatives out of work. Against this background, the illicit ref-
erences to a curtailment of jobs and employment opportuni-
ties would have indelible meaning to anyone with employ-
ment ties to this region. In short, Riggs unveiled a campaign
message, fanned by others within supervision, whereby em-
ployees would associate unionization with plant closure and
loss of jobs and benefits, thereby producing an insoluble at-
mosphere of fear likely to outlive compliance with the
Board’s traditional remedies. In this light, the threats in-
volved here were even more devastating than those in J.
Coty Messenger Service, 272 NLRB 268, 269 (1984), where
a panel majority (Members Zimmerman and Hunter, with
Chairman Dotson dissenting) stated:
It has long been established that the threat of loss of
employment, discharge of union adherents, and the
threat of plant closure, all of which occurred here, are
likely to have a lasting inhibitive effect on a significant
portion of the work force, destroying election condi-
tions, and therefore are ‘‘hallmark’’ violations, support-
ing the issuance of a bargaining order absent significant
mitigating circumstances.
On this record, including the implication that the threats
made by low level supervisors were largely inspired by the
illicit conduct of Sidney Riggs, I find that the cards signed
by a majority of the unit employees on and before March 17
furnishes a more reliable indicia of employee choice than
might be possible through a future election held under pro-
tection of conventional remedies. Accordingly, it is con-
cluded that the Respondent violated Section 8(a)(5) and (1)
of the Act by refusing on and after March 17 to recognize
and bargaining with the Union.
VI. GENERAL REMEDIAL PROVISIONS
Having found that the Respondent has engaged in certain
unfair labor practices, it is recommended that it be ordered
to cease and desist therefrom and to take certain affirmative
action designed to effectuate the policies of the Act.
The Respondent, having discriminatorily denied overtime
to Randy Keyser and a promised wase increase to Thomas
Deist, each of whose employment terminated on nondiscrim-
inatory grounds, shall make them whole for their earnings
lost in consequence thereof. Backpay shall be included with
interest as computed in New Horizons for the Retarded, 283
NLRB 1173 (1987).
CONCLUSIONS OF LAW
1. The 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. The Respondent independently violated Section 8(a)(1)
of the Act by threatening employees with plant closure, loss
of jobs, discharge, and other unspecified reprisals because
they have engaged in union activity.
4. The Respondent independently violated Section 8(a)(1)
of the Act by coercively interrogating employees concerning
their own and the union activity of coworkers.
5. The Respondent violated Section 8(a)(3) and (1) of the
Act by denying a promised wase increase and by transferring
an employee so as to produce a loss of overtime and reduced
earnings because they had engaged in union activity.
6. Since March 17, 1989, the Union has been the exclusive
agent, representing a majority, within the meaning of Section
9(a) of the Act, of employees in the appropriate unit, as fol-
lows:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Somerset plant, Trailer plant and Bulow building fa-
cilities in Somerset County, Pennsylvania, excluding all
employees of Lincoln Supply and Equipment Compa-
ny’s Central Trailer farm and family Center, retail sale
employees, salesmen, office clerical employees, and
guards, professional employees and supervisors as de-
fined in the Act.
55SOMERSET WELDING & STEEL
64 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
65 If this Order is enforced by a judgment of a United States court of ap-
peals, 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.’’
7. By virtue of the unfair labor practices described in para-
graphs 3, 4, and 5 above, the Respondent has undermined the
Union’s majority and has precluded any likelihood that a fair
election could be held in the future.
8. The Respondent has violated Section 8(a)(5) and (1) of
the Act since March 17, 1989, by refusing to recognize and
bargain with the Union in the above-defined collective-bar-
gaining unit.
9. The unfair labor practices found above constitute unfair
labor practices having an effect upon commerce within the
meaning of Section 2(6) and (7) of the Act.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended64
ORDER
The Respondent, Somerset Welding & Steel, Inc., Somer-
set, Pennsylvania, its officers, agents, successors, and as-
signs, shall
1. Cease and desist from
(a) Coercively interrogating employees about their own or
the union activity of coworkers.
(b) Threatening employees with discharge or other repris-
als for engaging in union activity.
(c) Threatening loss of jobs, wases, and benefits, or plant
closure in the event of unionization.
(d) Discouraging employees from engaging in union activ-
ity, by denying wase increases or overtime, or in any other
manner discriminating with respect to their wases, hours, or
terms and conditions and tenure of employment.
(e) Refusing, on request, to recognize and bargain in good
faith with the United Steelworkers of America, AFL–CIO–
CLC, as the exclusive collective-bargaining representative of
its employees in the appropriate unit defined below:
All full-time and regular part-time production and
maintenance employees employed by the Employer at
its Somerset plant, Trailer plant and Bulow building fa-
cilities in Somerset County, Pennsylvania, excluding all
employees of Lincoln Supply and Equipment Compa-
ny’s Central Trailer farm and family Center, retail sale
employees, salesmen, office clerical employees, and
guards, professional employees and supervisors as de-
fined in the Act.
(f) In any like or related manner interfering with, restrain-
ing, or coercing employees in the exercise of the rights guar-
anteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) On request, bargain with the Union as the exclusive
representative of the employees in the above unit concerning
terms and conditions of employment and, if an understanding
is reached, embody the understanding in a signed agreement.
(b) Make whole Thomas Deist and Randy Keyser for earn-
ings lost by reason of the discrimination against them, with
interest, as set forth in the remedy section of this decision.
(c) Preserve and, on request, make available to the Board
or its agents for examination and copying, all payroll records,
social security payment records, timecards, personnel records
and reports, and all other records necessary to analyze the
amount of backpay due under the terms of this Order.
(d) Post at its facilities in Somerset, Pennsylvania, copies
of the attached notice marked ‘‘Appendix.’’65 Copies of the
notice, on forms provided by the Regional Director for Re-
gion 6, after being signed by the Respondent’s authorized
representative, shall be posted by the Respondent imme-
diately upon receipt and maintained for 60 consecutive days
in conspicuous places including all places where notices to
employees are customarily posted. Reasonable steps shall be
taken by the Respondent to ensure that the notices are not
altered, defaced, or covered by any other material.
(e) Notify the Regional Director in writing within 20 days
from the date of this Order what steps the Respondent has
taken to comply.
APPENDIX B
Note: This discussion of testimony by 21 current and former
employees was originally intended to be a part of this deci-
sion. It has been exacted from the text, because, while of
utility as a reference source, the testimony of these witnesses
has been deemed unsuitable as a basis for reconstructing the
argumentation made by Sidney Riggs during the captive
speeches.
1. Cary Mishler Jr. testified that he attended a meeting in
which Sidney Riggs stated that:
[I]f we would get the union to come into our shop, he
could no longer be competitive . . . with the other
body companies . . . they’d loose [sic] business over it.
2. Kenneth Miller recalled Riggs stating:
[A]t this point in . . . history it would be a bad idea
if we go with the . . . steelworkers. . . . [T]he way
the economy and stuff is he’s doing the best he can for
us, . . . he don’t think the Steelworkers would help us
at all and . . . why would we want somebody to sit in
offices and tell us what to do . . . when our work is
involved.
. . .[t]he Steelworkers would do us more harm than
what it would good.
3. Kenneth Mishler added that in response to a question
whether benefits would be lost, Riggs stated ‘‘that we could
lose them and everything would be negotiated from [that]
. . . point.’’ Riggs allegedly said ‘‘wases would probably be
lowered to about minimum wase and everything negotiated
from that point.’’
4. David Faidley testified that he heard Riggs state:
[If the] union comes in you got to start from zero, you
got to start from scratch and you got to bargain for ev-
erything you get, you don’t get anything without bar-
gaining. You raise wases, you got to cut benefits be-
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cause you can’t get money from where there is none
. . . strikes ruin or cripple a company.
Faidley asserts that Riggs specifically stated, with respect
to a firm called ‘‘Abex,’’ that ‘‘the union ruined the com-
pany to the point that it had to close its doors.’’ He also
quotes Riggs as saying,
[w]e have to remain competitive and therefore . . . if
you get a raise, raises have to come from somewhere
. . . we have to raise the price of the body and when
you raise the price of the body we become noncompeti-
tive, and therefore there is no money for raises.
. . . .
[W]hen the union comes in you start from zero. . . .
Faidley admits that he does nor recall Riggs ever stating that
he would close the plant if the Union comes in, though he
left Faidley with that opinion. In fact Faidley confirms that
Riggs did not describe any specific consequences that would
occur if the plant was unionized.
5. James Brand testified that Sidney Riggs mentioned
‘‘bargaining from scratch,’’ in response to a specific inquiry
from coworker Don Zerfross, by stating, ‘‘yes, definitely, we
would have to start from zero.’’ According to Brand, Riggs
added that unions had outlived their usefulness, were not in-
terested in helping the working man, and actually had closed
many shops. Although Riggs apparently did not state that the
instant plant or plants would be closed upon unionization,
Brand testified that ‘‘somehow, I got the impression that they
was also going to close our shop.’’ Riggs did make the argu-
ment that the Union would restrict the Company’s ability to
do business with customers who seek dependable production
without threat of strike, and who might even cancel orders
in the event of a work stoppage.
6. David Gerhard testified that Riggs stated that the elec-
tion was just ‘‘a battle’’ and if the Union comes in the a
‘‘war’’ would just begin, adding that ‘‘in negotiations—we
would have to start at three dollars and thirty-five cents, an
hour or . . . we’d lose everything we already have.’’
Gerhard avers that Riggs denied the plant would be closed
in the event of unionization, but did state that he ‘‘didn’t
want anybody else telling him what to do . . . .’’
7. Carl Nickleson testified that during the three or four
meetings he attended, Riggs said that if they had to negotiate
they would ‘‘start from scratch again, probably minimum
wase, lose all benefits and have to negotiate from there with
everything all over again.’’ Nickleson claims that Riggs said
that he didn’t want outsiders coming in to run his company,
he wouldn’t stand for it, and if the Union got in ‘‘he would
do something about it.’’ Riggs allegedly said that there was
no law that required him to stay open if the Union came in.
In his prehearing affidavit, Nickleson averred that he ‘‘never
heard anything that I recall to the effect that Sidney would
close the plant if the union got in . . . .’’
8. Bradley Barclay, a former employee at the Somerset
plant, who confessed that the meetings were a long time ago,
stated that he could recall the first meeting where Riggs was
‘‘upset’’ and stated that the Company ‘‘has never been union
and it will not be union as long as I own it.’’ He allegedly
used the steel and coal industries as exemplifying higher
wases and prices unionized operations which rose to a level
which put everybody out of a job. Although Barclay first
stated that Riggs stated that the resulting shutdowns were be-
cause of the union, this link was later described as made by
Riggs in these terms: ‘‘He said, do you see what the unions
did for the steel mills and the coal mines.’’ Barclay also ac-
knowledged that some of his own employees had worked at
the closed facilities and ‘‘if they did not like the way things
were run at Somerset Welding & Steel, that they could seek
employment elsewhere.’’
9. Randy Keyser testified to comments by Sidney Riggs
at the Trailer plant. He avers that the latter spoke of the im-
pact of unionization upon customers, pointing out that Pea-
body-Gallion’s business had been acquired when its Okla-
homa trailer plant was shutdown due to labor relations prob-
lems. Riggs assertedly added that Pullman Standard, having
acquired Peabody-Gallion, and other customers as well,
might prefer to remove work if it learned that the Respond-
ent was having labor problems, rather than experience delays
in shipments should they materialize. At another level, Riggs
allegedly explained that the Respondent had taken on unprof-
itable work, just to keep its men working. Finally, according
to Keyser, Riggs said that, if the Union should be designated,
no law required its recognition, and he could just go out of
business. In his pretrial affidavit dated April 2, 1987, Keyser
stated that Sidney Riggs did not threaten to close the plant
or move it, but did state that ‘‘there was no law to stay in
business if the union came in.’’
10. Richard Keyser, Randy’s brother, who was also em-
ployed at the Trailer plant testified that Riggs used a local
foundry Abex as an example, observing that the latter was
union, had taken large wase cuts, and still had shut down.
Riggs added that if the Union were voted in, negotiations
would start with all benefits at ‘‘zero.’’
11. Another employee at the Trailer plant, Robert Gursky,
testified that Riggs told the men that ‘‘the union caused com-
panies to close.’’ He mentioned Abex as a one that the union
had closed, also mentioning coal companies in that same
vein. He said that if the Union came in, wases and benefits
would go back to zero and then be renegotiated from there.
12. Mark Taylor, who admittedly could not recall the pre-
cise words used, also testified to remarks made by Sidney
Riggs at the Trailer plant. He claims that Riggs said the
Union would not be in the best interests of the Company: it
would drive wases up, force him to raise prices, and the Re-
spondent would not be competitive. He enforced this argu-
ment by reference to the lower wases and overhead costs in
the South. He stated that if they went on strike they could
lose their jobs, and that benefits currently enjoyed would
have to be renegotiated, and there was no guarantee that em-
ployees would have as much after negotiations as they did
before.
13. Charles Knotter attended the captive meetings at the
Somerset plant. Concerning the Abex references, he first, in
response to plodding examination by the General Counsel,
related that Riggs said that Abex had shut down ‘‘[b]ecause
they went union.’’ When asked by me for the exact words
used by Riggs, he responded differently:
He just said that we better look at the Abex plant . . .
the plants around [that were shut down] that were
union.
57SOMERSET WELDING & STEEL
The General Counsel did not retreat. Following an oppor-
tunity to examine his prehearing affidavit, Knotter described
Riggs as saying:
[W]e should take a look at Abex and other surrounding
plants, they were union involved, the union was there
and they were shutdown.
These later versions are subject to a quite distinct result
when addressed from the standpoint of privileged argumenta-
tion under Section 8(c).
Knotter also testified that Riggs stated that ‘‘if the union
got in we’d have to negotiate, start from minimum wase and
negotiate for . . . all our benefits.’’
14. Nick Emerick, a former employee at the Somerset
plant, recalled that Riggs made the following points in these
meetings:
1. If Union got in, the Respondent would no longer be
competitive.
2. It would be a cold day in hell when the Union got
in.[20–30 employees present.]
3. He was doing a community service by providing
jobs, and the men should be happy to be working.
4. He referred to someone as a ‘‘mole’’ who was draw-
ing salaries from both the Company and the Union and
who was described as lower than a scab. [Tims Jr.]
5. He mentioned several operations where employees
‘‘worked theirselves out of jobs being Union,’’ adding
that a lot of former union members are now employed
by the Respondent.
15. Tom Feist was assigned to the Bulow building. He be-
lieved that only one antiunion meeting was held at that facil-
ity. He admits that he had difficulty recalling what Sidney
Riggs said, but did recall him saying that he thought the em-
ployees were receiving fair wases and benefits, and that the
Union if designated could not guarantee more, because Riggs
would be the judge of ‘‘how much money is to be made in
that industry.’’
16. Lewis Ewing claims that he attended four of these
meetings. He alleges that at the first, Riggs stated, ‘‘he really
didn’t need the company because he already made his money
. . . He could just shut the doors and walk away from it.’’
According to Lewis, Riggs at these meetings also stated that
if the Union came in, any increased wases would hurt his
ability to compete, and that all benefits would have to be re-
negotiated, that he could promise nothing, as negotiations
would start from zero.
17. Gary Reiber testified that Sidney Riggs made the fol-
lowing points:
[T]hings were sort of slow, and as time would go on
there would be some pay increases and stuff. That as
far as the union was concerned, that they could break
it down, and that a lot places went out of business be-
cause the union was in. And if things got better that
they would try to come along with a little more money
across the line. And if things got to the point where the
union would come in, that they might have to do a lot
of transferring around or close up.
18. Carlos Sprankle testified that he heard Sidney Riggs
state, within ear shot of approximately 30 employees in at-
tendance, that ‘‘if he found out who started this shit he’d get
rid of them right now.’’ Riggs on another occasion men-
tioned that he had hired a lot of men from Bethlehem Steel
who had been laid off from their union jobs, an example for
the employees to consider.
19. John Wegrzyniak testified that at the meetings he at-
tended in the Trailer plant, Riggs stated that the Union was
unneeded, dues would be turned over to the New York
Mafia, that the Union would cause strikes all the time, and
that the Respondent would have to raise prices harming its
competitiveness. He also mentioned that U.S. Steel and Abex
had shut down plants in the Johnstown area ‘‘because the
union wanted too much money from them.’’
20. Richard E. Miller summarized what he heard at the
Trailer plant as follows:
He said something about if the union would come in
we probably wouldn’t have . . . near work that we
have at this time and we might have to have more lay-
offs in order . . . to keep up. . . . [A]lso he brought
[out] that we had good benefits and maybe if a union
would come in that we wouldn’t have as good as bene-
fits as we had before. . . . [H]e said probably we’d
have to maybe lower the benefits to get . . . the raises,
something like that. [Miller’s prehearing affidavit made
no mention of lowering benefits, but did state that
Riggs said, ‘‘in order to get raises they’d have to raise
prices and they’d get less jobs.’’]
21. Robert G. Lee describes Riggs as saying that it took
a lot of blood, sweat, and tears to build the Company, and
‘‘if the union comes in we’d have to drop our wases down
to the minimum wase . . . [a]nd then if that didn’t work,
he’d just forget about the whole thing. . . .’’ Lee states that
this was ‘‘pretty much’’ Riggs’ exact words.
22. Joseph Sharbaugh, a witness who was hardly friendly
to the Respondent in other areas, testified to a different per-
spective. Thus, he related that at the Trailer plant, Riggs did
not threaten or imply that the plant would close.