Steel-Fab, Inc.

National Labor Relations Board - Board Decisions

Jun 28, 1974

212 N.L.R.B. 363 (N.L.R.B. 1974)

STEEL-FAB, INC. 363
Steel-Fab, Inc . and United Steelworkers of America,
AFL-CIO, Petitioner . Cases 1-CA-8560 and
1-RC-12298
June 28, 1974
DECISION AND ORDER
On April 20, 1973, Administrative Law Judge Mel-
vin J. Welles issued the attached Decision in this pro-
ceeding. Thereafter, the Respondent and the General
Counsel filed exceptions and supporting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and briefs
and has decided to affirm the rulings, findings, and
conclusions of the Administrative Law Judge and to
adopt his recommended Order, except as modified
below.
Contrary to the Administrative Law Judge, we do
not find it "pointless" to rule on Respondent's alleged
postelection misconduct. If Respondent engaged in
further unfair labor practices subsequent to the elec-
tion, it becomes even more appropriate for the Board
to issue a bargaining order as part of the remedy.
In this case, prior to the election, the Respondent
promised employees increased benefits and a new job
classification system. After the election, the Respon-
dent granted an I1-cent-per-hour increase to all em-
ployees on October 17, 1972, effective retroactively to
October 1. As to the job classification problem, the
Respondent, after the election, abandoned its own
plan and hired an outside consultant. Pursuant to the
consultant's recommendations, a new job description
and wage rate plan, dated December 1, 1972, was fully
implemented by the Respondent between December
4 and 18, 1972. The new system resulted in wage
increases for 39 employees and no decreases.
In light of the Respondent's preelection promises,
we conclude that the Respondent's aforementioned
postelection conduct constituted the implementing of
illegal promises in order to reward employees for re-
jecting the Union and to dissuade employees from
further union activity. Therefore, the Respondent's
granting of postelection benefits and instituting of a
new job classification system was violative of Section
8(a)(1) t of the Act. Further, the Respondent's serious
postelection misconduct indicates its continued hos-
tility to the Union and clearly shows that a fair rerun
election could not take place. The propriety of issuing
a bargaining order in this case is thus bolstered by our
further findings herein.
i Accordingly, we shall include in our remedial order a provision that the
Respondent cease and desist from such conduct. However, this is not to be
construed as a requirement that the Respondent rescind such benefits as were
granted.
However, unlike our colleagues, we do not find that
the Respondent's postdemand or postelection mis-
conduct constituted independent violations of Section
8(a)(5). Further, upon reexaming these Gissel-type
cases, we conclude that it is unnecessary to predicate
the bargaining order on any 8(a)(5) violation. Under
Gissel, to determine whether or not a bargaining order
should issue as part of the remedy, we evaluate the
seriousness of the employer's misconduct and its im-
pact on the holding of a fair election (or rerun elec-
tion). In effect, by issuing a bargaining order, we are
remedying an employer's 8(a)(1) violations that have
dissipated a union's majority and prevented the hold-
ing of a fair election. It serves no real purpose to find
additionally a violation of Section 8(a)(5). In Gissel,
the Court's decision approved the propriety of a bar-
gaining order as a remedy for substantial non-8(a)(5)
violations. The Court, recognizing the Board's author-
ity to issue a bargaining order without finding a viola-
tion of Section 8(a)(5), stated, "The Board . . . has
long had a . . . policy of issuing a bargaining order,
in the absence of a §8(a)(5) violation or even a bar-
gaining demand, when that was the only available,
effective remedy for substantial unfair labor practic-
es." N. L. R B. v. Gissel Packing Co., Inc., 395 U.S. 575,
614 (1969).
One of the distortions of analysis which the artifi-
cial injection of 8(a)(5) issues produces is referred to
in the dissenting opinions herein. The dissents con-
tend that unilateral changes in wages or working con-
ditions after the date on which the 8(a)(5) violation is
held to have occurred should automatically be found
by the Board to be further 8(a)(5) violations, with no
analysis as to whether such changes were made for
bona fide business reasons or whether they were moti-
vated by antiunion considerations.
In a true 8(a)(5) situation, such holdings are entirely
proper. For we have long held that, once a union is
certified or recognized, any change made without ne-
gotiations with the employees' exclusive agent consti-
tutes a failure on the part of the employer to fulfill his
bargaining obligations.
But in the context here, such a rule rests on specious
foundations. For in this type of case we decide the
so-called 8(a)(5) issue on an assessment of the serious-
ness of the employer's unfair labor practices, not on
whether a bargaining obligation has arisen.
Thus on August 4, the date on which our dissenting
colleagues would find a bargaining obligation to have
arisen, there was no way for anyone, including the
Employer, the Union, or the employees, to have
known that a bargaining obligation existed. The elec-
tion, which at that time everyone thought would de-
cide the question of whether the Union would be the
bargaining agent, had not yet been held. So how could
212 NLRB No. 25
364 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the Employer possibly know that any action taken
thereafter, with respect to wages, hours, or working
conditions, would have to be first negotiated with the
Union? Upon reflection we think it unsound to as-
sume that an employer is sufficiently prescient to di-
vine that this Board may later say, in hindsight, that
a bargaining obligation existed and thus impose a
retroactive bargaining obligation.2 To do so may, we
fear, create anomalies under existing precedent.
For example, had the Employer here had a regular
practice of granting a set amount of wage increases
every August 5, surely we would not hold that, be-
cause, as the dissents would have it, a bargaining obli-
gation existed on August 4, the Employer should have
withheld any such increase until bargaining could oc-
cur. Indeed, if the evidence showed such a regular
pattern, and if an employer did not unilaterally grant
any such increase before the election, we would, in
most cases, find such withholding unlawful.
If, on the other hand, as here, the employer prom-
ised and gave benefits in order, to discourage union
activity by the employees, then and only then is such
action unlawful. And, it is unlawful for 8(a)(1) rea-
sons, not because of a bargaining obligation which
has no discernible existence until our decision reveals
that we have found it necessary to impose the obliga-
tion as a remedy for serious unfair labor practices.
Member Fanning argues that we are violating the
principles laid down by the Supreme Court in Gissel
and reverting to the decisions of the fourth circuit
which were disapproved by the Supreme Court. This
is simply not true.
It is of course true that the Supreme Court in the
Gissel case affirmed the Board's finding of an 8(a)(5)
violation. That is not to say, however, that the Su-
preme Court was mandating that the Board find such
a violation as a predicate for entering a remedial bar-
gaining order, and nowhere in the Gissel opinion is
there any denial of the Board's authority to enter such
an order to remedy 8(a)(1) and/or 8(a)(3) violations.
Upon review of our past decisions it is our opinion
that resting our remedial authority upon an 8(a)(5)
finding is both unnecessary and undesirable. It will be
2 Our dissenting colleagues misconstrue our point with respect to the re-
troactivity of an 8 (a)(5) bargaining order. In the normal 8 (a)(3) case, for
example, the facts constituting the unfair labor practice generally take place
at or about the time of the discharge ; the respondent can make his evalua-
tion-right or wrong-as of that time, and backpay dates from then In
finding a Gissel 8(a)(5) violation , on the other hand, our colleagues support
their findings by examining , inter aka, subsequent employer unfair labor
practices, and their effect on an election subsequently held. If these are found
sufficiently serious, our colleagues would date their 8(a)(5) findings from the
date of the union's earlier request to bargain , and the employer's refusal It
is not the respondent 's uncertainty that is bothersome , but rather that the
operative facts, on which the violation will rest , will not yet have occurred
on the date respondent is to be found guilty of an 8 (ax5) violation . To find
a violation nunc pro tunc seems to us analytically unsound , in addition to
whatever unfairness may be present.
recalled that the Supreme Court in Gissel accurately
outlined the Board's position in the cases there at
issue as follows:'
Relying on these three assertions, the Board asks
us to approve its current practice, which is briefly
as follows. When confronted by a recognition
demand based on possession of cards allegedly
signed by a majority of his employees, an em-
ployer need not grant recognition immediately,
but may, unless he has knowledge independently
of the cards that the union has a majority, decline
the union's request and insist on an election,
either by requesting the union to file an election
petition or by filing such a petition himself under
§ 9(c)(1)(B). If, however, the employer commits
independent and substantial unfair labor practic-
es disruptive of election conditions, the Board
may withhold the election or set it aside, and
issue instead a bargaining order as a remedy for
the various violations.
It is obvious from the above quotation that the
essence of what was being argued in Gissel was the
scope of the Board's remedial authority in cases
where, as the above quotation sets forth, "the employ-
er commits independent and substantial unfair labor
practices disruptive of election conditions...." It is
equally apparent from the above Court description of
the Board's position that the Board was not seeking
to establish its authority to enter a bargaining order
based solely on a refusal of a recognition demand in
the absence of other independent employer unfair la-
bor practices.
Nor do we here seek to revert to the fourth circuit's
standards for the appropriateness of the bargaining
order remedy.
The Supreme Court in Gissel described its differ-
ences with the fourth circuit in the following language
(395 U.S. at 613-615):
Despite our reversal of the Fourth Circuit below
in Nos. 573 and 691 on all major issues, the actual
area of disagreement between our position here
and that of the Fourth Circuit Js not large as a
practical matter. While refusing to validate the
general use of a bargaining order in reliance on
cards, the Fourth Circuit nevertheless left open
the possibility of imposing a bargaining order,
without need of inquiry into majority status on
the basis of cards or otherwise, in "exceptional"
cases marked by "outrageous" and "pervasive"
unfair labor practices. Such an order would be an
3 395 U.S. at 591 (1969).
STEEL-FAB, INC. 365
appropriate remedy for those practices, the court
noted, if they are of "such a nature that their
coercive effects cannot be eliminated by the ap-
plication of traditional remedies, with the result
that a fair and reliable election cannot be had."
N.L.R.B. v. Logan Packing Co., 386 F.2d 562, 570
(C.A. 4th Cir. 1967); see also N.L.R.B. v. Heck's
Inc., 398 F.2d 337, 338. The Board itself, we
should add, has long had a similar policy of issu-
ing a bargaining order, in the absence of a §
8(a)(5) violation or even a bargaining demand,
when that was the only available, effective reme-
dy for substantial unfair labor practices. See, e.g.,
United Steelworkers of America v. N. L. R. B., .. .
376 F.2d 770 (1967); J. C. Penny Co., Inc. v.
N.L.R.B., 384 F.2d 479, 485-486 (C.A. 10th Cir.
1967).
The only effect of our holding here is to ap-
prove the Board's use of the bargaining order in
less extraordinary cases marked by less pervasive
practices which nonetheless still have the tenden-
cy to undermine majority strength and impede
the election processes. The Board's authority to
issue such an order on a lesser showing of em-
ployer misconduct is appropriate, we should
reemphasize, where there is also a showing that
at one point the union had a majority; in such a
case, of course, effectuating ascertainable em-
ployee free choice becomes as important a goal
as deterring employer misbehavior. In fashioning
a remedy in the exercise of its discretion, then,
the Board can properly take into consideration
the extensiveness of an employer's unfair practic-
es in terms of their past effect on election condi-
tions and the likelihood of their recurrence in the
future. If the Board finds that the possibility of
erasing the effects of past practices and of ensur-
ing a fair election (or a fair rerun) by the use of
traditional remedies, though present, is slight and
that employee sentiment once expressed through
cards would, on balance, be better protected by
a bargaining order, then such a order should is-
sue (see n. 32, suprd).
We would note particularly the portion of the
above rationale wherein the Court said "The only
effect of our holding here is to approve the Board's
use of the bargaining order in less extraordinary cases
marked by less pervasive practices which nonetheless
still have the tendency to undermine majority strength
and impede the election processes."
The central issue in all these cases is, as the Court's
opinion in Gissel spells out, the propriety of the
Board's use of a bargaining order as a remedy for
varying degrees of employer unfair labor practices.
We see no point, in cluttering up the analysis of this
central issue with the kinds of matters which we cus-
tomarily consider in deciding whether an employer
has or has not met the kinds of bargaining obligations
dealt with in our typical refusal-to-bargain 8(a)(5)
cases. Indeed it is our view, in hindsight, that if the
Board, ab initio, had treated this as a purely remedial
issue and had not interjected the superfluous 8(a)(5)
finding, much confusion could have been avoided.
Even today it is not uncommon for unsophisticated
critics of the Board to misinterpret the Board's policy
in this area and to erroneously assert that this Board
frequently requires employers to bargain with unions
on the strength of authorization cards instead of al-
lowing employees the more democratic alternative of
utilizing the Board's election processes. Had we made
plain initially that the bargaining order is not de-
signed to do that, but instead is designed solely as a
remedy for serious employer interference with em-
ployee rights, it is at least arguable that we could have
precluded the erroneous impression that the Board
was attempting to substitute, as a general policy, the
use of authorization cards for the Board's orderly and
highly respected election machinery.
We are therefore not departing one iota from any
teaching of Gissel with respect to the scope of the
Board's authority to enter bargaining orders as a rem-
edy for employer unfair labor practices, nor from the
standards set forth therein outlining the categories of
cases in which such a remedial order is appropriate.
Instead, we are simply removing from the analytical
process involved in applying those standards a seman-
tic difficulty which we believe has clouded the central
issue over the years.
Accordingly, having concluded that it is not essen-
tial to make 8(a)(5) findings in order to issue a bar-
gaining order, Members Kennedy and Penello join
the position of Chairman Miller, as stated in his con-
curring opinion in United Packing Co., 187 NLRB
878, 880. As stated by Chairman Miller in United
Packing, it distorts our analysis to predicate bargain-
ing orders on 8(a)(5) violations, and it is desirable for
the Board to concentrate solely on a careful examina-
tion of the employer's 8(a)(1) conduct and its impact
upon the holding of a fair election. Henceforth, in
these Gissel-type situations, we shall dispense with
finding an 8(a)(5) violation and instead determine
only whether or not a bargaining order is necessary to
remedy the employer's 8(a)(l)'s.
In this case , the Respondent's numerous and egre-
gious violations of Section 8(a)(1) and (3), occurring
both before and after the election, clearly dissipated
the Union's majority and have created an atmosphere
366 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
in which a free and fair election could not take place.
Our additional 8(a)(1) findings herein, showing the
Respondent's continuing unlawful activity, indicate
conclusively that a bargaining order is the only appro-
priate remedy for the Respondent's misconduct.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge , as herein
modified , and hereby orders that Respondent, Steel-
Fab, Inc ., Fitchburg , Massachusetts , its officers,
agents, successors , and assigns , shall take the action
set forth in the said recommended Order, as modified
below:
1. Substitute the following as paragraph 1(b) of the
Administrative Law Judge 's recommended Order:
`'(b) Promising and thereafter granting employees
benefits and/or new job classifications to dissuade
them from union activities and to reward them for
ceasing to support a union."
2. Eliminate paragraph I(f) of the Administrative
Law Judge 's recommended Order.
3. Substitute the following as paragraph 2(b) of the
Administrative Law Judge 's recommended order:
"Upon request , recognize and bargain with United
Steelworkers of America , AFL-CIO, as the exclusive
collective -bargaining representative of the employees
in a unit of all production and maintenance employ-
ees at the Employer's Fitchburg , Massachusetts,
plant , excluding office clerical employees , guards,
foremen and all supervisors as defined in Section
2(11) of the Act, respecting rates of pay, wages , hours,
or other terms and conditions of employment and, if
an understanding is reached , embody such under-
standing in a signed agreement."
4. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
on August 31, 1972, in Case 1 -RC-12298 be set aside,
that the petition therein be dismissed , and that the
proceeding in Case 1 -RC-12298 be vacated.
MEMBER FANNING, concurring in part and dissenting
in part:
I agree with my colleagues in the majority that Re-
spondent engaged in egregious violations of Section
8(a)(1) and (3) of the Act and that a bargaining order
to remedy such violations is warranted in this case. I
dissent from their conclusion that Respondent did not
violate Section 8(a)(5) of the Act and that a bargain-
ing order, dating from August 4, 1972, the date the
Union demanded recognition based on its conceded
status as the employees' bargaining representative is
"unnecessary."
This is the first time in the long history of the Board
that a majority of its members have refused to find a
violation of Section 8(a)(5) where a union's majority
has been established by valid authorization cards and
the employer, upon demand, has refused to bargain
while at the same time committing serious unfair la-
bor practices. The majority's failure to find this unfair
labor practice is contrary to the literal language of
Section 8(a)(5), which directs the Board to find such
a violation where the employer has refused to bargain
with a union selected by a majority of its employees.
It Is contrary to the holding of the Supreme Court in
the Gissel case, supra, where the Court found that
Section 9(c)(1)(B) was not intended "to relieve any
employer of his § 8(a)(5) bargaining obligation where,
without good faith, he engaged in unfair labor practic-
es disruptive of the Board's election machinery."a It is
contrary to the legislative history of Section 8(a)(5) set
forth in particular detail by the Supreme Court in
Gissel, supra, in support of its conclusion.5
I have carefully considered and I reject the
majority's assertion that a finding of a violation of
Section 8(a)(5) in cases such as this is "unnecessary,"
"serves no real purpose," and "distorts our analysis."
Obviously, this is not a situation where the remedy for
the same unfair labor practice would inevitably be the
same regardless of the particular section of the statute
invoked by the General Counsel.
I submit that in cases of this kind it is of overriding
importance for the effectuation of the purposes of the
Act that employers be found in violation of Section
8(a)(5). Consider, that after August 4, when under
normal Board Law this Employer's bargaining obliga-
tion would have commenced, the Employer engaged
in bargaining with individual employees contrary to
the statutory requirement that he bargain only with
their selected representative. The majority's Order
does not remedy this violation. Consider, that after
August 4 the Employer engaged in unilateral changes
in conditions of employment in violation of Section
8(a)(5). The majority's Order does not remedy this
violation except to the extent such conduct constitutes
independent violations of Section 8(a)(1). Consider,
that after August 4 the Employer, again violating his
bargaining obligation, refused to furnish the Union
with information relating to changes in wages and job
classifications. The majority's Order does not remedy
this violation. Violations of even more serious propor-
tions will go unremedied in similar cases under the
majority's new rule. For example, after a bargaining
° 395 U S at 600
5 395 U S at 598-600
STEEL-FAB, INC. 367
obligation has been established by the use of cards an
employer may decide to relocate his plant for eco-
nomic reasons, to cut wages, or to go out of business
in whole or in part. Contrary to precedent, the majori-
ty would find no violation of Section 8(a)(5) and pro-
vide no remedy for such conduct no matter how
serious the employer's other unrelated unfair labor
practices. The employer would be under no order of
the Board to bargain about its decision or even the
effect upon its employees of such 8(a)(5) unfair labor
practices. We do not know and cannot predict at this
time the impact of the Board's decision upon the ac-
cepted rule that a union's majority, once established,
is presumed to continue until rebutted by substantial
evidence. Where the Board's order is based not on the
union's right as the employees' majority representa-
tive to a bargaining order, but upon the remedy of
other unfair labor practices, what weight can or
should be given to its unrecognized lawful selection as
the majority representative of employees under Sec-
tion 8(a)(5) of the Act?
I can find no justification or reasonable rationale
for the majority's decision, reversing, as it does, long-
established Board and court precedent. It will not
help to say that but for the Employer's independent
unfair labor practices there would be no violation of
Section 8(a)(5) and a bargaining order under existing
rules would not issue where, as here, the Union has
acquired its majority by means of authorization cards.
It has always been a cardinal tenet of Board law that
a Board election is the preferable method of estab-
lishing employee preference for or against union rep-
resentation. Indeed, the Supreme Court in Gissel,
supra, took note of and approved the Board's policy
in this respect .6 But this is not to say that an employer
is or should be' exonerated from his statutory obliga-
tion under Section 8(a)(5) where his conduct has
made it improbable or unlikely that a Board election
would be a method better than, or as good as, authori-
zation cards to determine the union's majority status.
This, however, is precisely the Frankenstein that the
majority has chosen to manufacture in this case.
The, majority's position boils down to a truncated
version of the fourth circuit's rule that a bargaining
order in a Gissel-type case can be used only to remedy
independent unfair labor practices, but not an 8(a)(5)
violation. In an extended analysis of that court's view
the Supreme Court reversed the fourth circuit's hold-
ing with respect to its refusal to grant a bargaining
order on an 8(a)(5) charge based on cards, but left
standing the court's position that such an order could
be issued for outrageous unfair labor practices irres-
pective of the union's majority status.? The Supreme
6 395 U.S at 596.
Court noted that the Board had a "similar policy" 8
without pointing out that the Board's policy related
only to the issuance of a bargaining order for substan-
tial 8(a)(1) and (3) violations where no 8(a)(5) viola-
tion was involved, but in which the Board required
that the union had at one time attained majority
standing. In an attempt to walk between the rain-
drops, the majority concludes that it is "unnecessary"
to base a bargaining order on an 8(a)(5) violation, that
its order need only remedy other serious unfair labor
practices, but nevertheless, and somewhat inconsis-
tently, that the Union must have achieved majority
status, which the Employer is free to disregard with-
out violating Section 8(a)(5). Apart from being very
confusing, I submit that the majority is clearly wrong.
The similar policies of the fourth circuit and the
Board were considered by the Supreme Court in the
first category of pervasive unfair labor practices .9 In
the next paragraph the Court pointed out that the
only effect of its holding was "to approve the Board's
use of the bargaining order in less extraordinary cases
marked by less pervasive practices, which nonetheless
still have the tendency to undermine majority strength
and impede election processes." 10 If the majority is
right, the Court in adopting the Board's rule gov-
erning 8(a)(5) authorization card cases adopted only
that portion relating to the appropriateness of a bar-
gaining order, but rejected, ignored, or did not consid-
er the rule in its entirety. It is undisputed that the
Board's rule in such cases provided for a bargaining
order to remedy 8(a)(5) violations from the date of the
employer's initial refusal to bargain. Indeed, the
whole tenure of the Court's opinion is contrary to the
majority's decision. Unlike my colleagues, I cannot
assume that the Supreme Court has, in effect, reversed
Board law while appearing to approve it.
In affirming the Board's policy of granting a bar-
gaining order to remedy 8(a)(5) violations where the
union's majority was based on cards, the Court indi-
cated that the Board had discretionary authority to
reduce the number of cases theretofore included in
that category." Citing Aaron Brothers Company of
California, 158 NLRB 1077 (1966), with approval, the
Court emphasized the absence of a per se rule that the
commission of any unfair labor practice would auto-
matically result in an 8(a)(5) violation and the is-
suance of a bargaining order. 12 In Aaron Brothers the
Board had held that the commission of minor unfair
labor practices did not warrant a finding that the
employer had violated Section 8(a)(5), despite the
7 395 U.S at 613-614.
8 395 U.S at 614.
9 Ibid
10 Ibid.
395 US. at 615.
12 Ibad.
368 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
union's successful campaign in securing authorization
cards. So too, the Court concluded, a fair election
might be possible in some cases in which the
employer's unfair labor practices were less than per-
vasive." Accordingly, the Court instructed the Board
to examine the record in such cases carefully and
reach a balanced judgment on this issue. If, on bal-
ance, the Board decided that a fair election could be
held, obviously this method of determining the
union's majority status was to be preferred over its
designation by means of authorization cards. If, on
the other'hand, the Board concluded that there was
only a slight possibility of erasing the effects of the
employer's unfair conduct, then the sentiment of the
employees for the union, evidenced by authorization
cards, was a better indication of their true desires.14
Clearly, in the latter situation, the Court was uphold-
ing long-established Board law that a union's majority
representative status would be recognized by the
Board and enforced through the statutory command
of Section 8(a)(5) and 8(d).
If I have read the Gissel decision correctly the Court
has found that: (1) Congress has not eliminated the
use of authorization cards as one means of estab-
lishing a union's majority status for purposes of Sec-
tion 8(a)(5); (2) a Board election, if it can be
conducted fairly, is a preferable method of determin-
ing employee choice; (3) where an employer commits
extraordinary violations of Section 8(a)(1) and (3) a
bargaining order is a proper remedy for such viola-
tions whether or not the union had ever achieved
majority status; (4) the Board's policy of granting a
bargaining order to remedy an 8(a)(5) violation where
the evidence of the union's majority consists of valid
authorization cards, is proper if, on balance, the
Board decides that this method of exercising employ-
ee choice is, in the circumstances, preferable to a
Board election; and (5) where a fair election can be
conducted or where the employer has engaged only in
minimal unfair labor practices, as in Aaron Brothers,
supra, no violation of Section 8(a)(5) should be found
and no bargaining order should issue.
Conceding that the Supreme Court in Gissel found
a violation of Section 8(a)(5), the majority neverthe-
less argues that the Board is not "mandated" to do
likewise in this and similar cases . Apparently, the ma-
jority takes the position that the Court in Gissel was
merely approving a reasonable policy of the Board,
but that the Board is now free to adopt another policy
different from the one approved by the Court. I sub-
mit that the majority is mistaken . The fact that the
Court acknowledged the Board's authority to grant a
Ibid
14 395 U S. at 614-615
bargaining order without finding a violation of Sec-
tion 8(a)(5) is not an invitation to the Board to ignore
conduct in violation of this section of the Act. In
considering the validity of Board law under Section
8(a)(5) the Court set forth in great detail the legislative
history of the 1947 amendments to the Act, particular-
ly Section 9(c)(1)(B) as it affected an employer's obli-
gations under Section 8(a)(5), the statutory directive
of Section 8(a)(5), and the Court's own precedents
such as N. L. R. B. v. Bradford Dyeing Association, 310
U.S. 318, 339-340 (1940), and Franks Bros. Company
v. N.L.R.B., 321 U.S. 702 (1944), among others, citing
with approval its decision in United Mine Workers v.
Arkansas Flooring Co., 351 U.S. 62, 69 (1956), to the
effect that, where the union had established its majori-
ty by the use of authorization cards without any bona
fide dispute, the employer's "denial of recognition of
the union would have violated § 8(a)(5) of the Act." 15
The Court next considered whether cards were so
unreliable that they ought never be used to establish
a union's majority and support an order to bargain.16
The Court concluded that where the employer had
engaged in conduct disruptive of the election process
cards could be the "most effective-perhaps the
only-way of assuring employee choice." " The
Court finally held, in accordance with Board law as
distinguished from that of the fourth circuit, that a
bargaining order based on cards was appropriate
where the employer's conduct had made a fair elec-
tion improbable. Thus, it is no longer open to the
Board, through the advantage of hindsight or other-
wise, to hold that a finding of a violation of Section
8(a)(5) in these cases is a "superfluous finding." The
Supreme Court has spoken, not only in Gissel, but in
the more recent case of N.L.R.B. v. Savair Manufac-
turing Co., 414 U.S. 270 (1973), where the Court , citing
Gissel, interpreted that case as follows: "There we
held that the gathering of authorization cards from a
majority of the employees in the bargaining unit may
entitle the union to represent the employees for collec-
tive-bargaining purposes, even though there has been
and will be no election . . . and that rejection of that
authorization by the employer is an unfair labor prac-
tice." 18 (Emphasis supplied.) While the dissenting
Justices in that case had a different view with respect
to the issue in Savair, they too pointed out that a card
majority would serve as the basis for an 8(a)(5) bar-
gaining order under Gissel if the employer had com-
mitted serious unfair labor practices.19
The majority deny that their view of the law corre-
sponds to that of the fourth circuit. Like the fourth
15 395 U S at 597-598
16 395 U S at 601-603
'7 395 U S at 602
18 N L R B v Savair Manufacturing Company, 414 U S at 280 (1973)
'9 Id at 281
STEEL-FAB, INC. 369
circuit, however, the majority will not find a violation
of Section 8(a)(5) although the employer has refused
to recognize and bargain with a union selected by a
majority of its employees by authorization cards. The
fourth circuit's position, rejected by the Supreme
Court, was that cards were too unreliable to support
a bargaining order. The majority's view is that the
bargaining order should be treated as a "purely
remedial issue" relating only to employer unfair labor
practices other than Section 8(a)(5). It would clutter
up their analysis, the majority contend, to find and
remedy the violation of Section 8(a)(5). Unlike the
fourth circuit's view, there is no intimation in the
majority's opinion that they would issue a bargaining
order as a remedy for employer unfair labor practices
if the union had not, in fact, secured a majority of
valid cards. If Section 8(a)(5) is so unnecessary, super-
fluous, and cluttering of analysis, will the majority
remedy serious unfair labor practices without regard
to the union's majority status? And if not, have not the
majority accepted three-fourths of the fourth circuit's
opinion relating to bargaining orders for pervasive
employer unfair labor practices and applied'that rule
to less pervasive conduct which, the Supreme Court in
Gissel held, would justify a bargaining order if the
record showed that the union at one point had
achieved majority status?
In my opinion, the issue in this case is of paramount
importance in effectuating the policies of Section
8(a)(5) of the Act as interpreted by the Supreme
Court. I cannot agree that we are engaged here in
disputing a mere "semantic difficulty." Nor do I be-
lieve that it is the business of the Board to placate
uninformed critics, who frequently misjudge and mis-
quote Board law. Rather, it seems to me our effort
should be in the direction, of stating our view of the
law in the clearest, fullest terms, relying on the highest
precedents, and remedying every violation of the Act,
which the record shows has been committed by an
employer or a union.
Finally, I must respond to the majority's argument
that no violation of Section 8(a)(5) should be found
because to do so would impose a "retroactive bargain-
ing order" on this Employer. It should not require
saying that every order of this Board finding a viola-
tion of the Act is retroactive and the remedy applies
as of the date of the finding of the original unfair labor
practice. No one knows that an employer has violated
Section 8(a)(3) on the date an employee is discharged
until the Board and the courts make that decision. No
one knows that an employer has engaged in bad-faith
bargaining in violation of Section 8(a)(5) or has violat-
ed that section of the Act even after refusing to bar-
gain with a certified union until the Board and
ultimately the courts speak. Every union and every
employer acts at its peril by engaging in conduct that
may subsequently be the subject of an unfair labor
practice charge. This has always been the law, as I
understand it. Clearly, this particular Employer must
be held to have known that when President Hall and
others engaged in serious unfair labor practices the
Respondent was running the risk that the Board
would find the authorization cards of August 4 the
best available evidence of the Union's majority status
and that such a finding would put the Employer in
violation of Section 8(a)(5) as of that date. Whether
or not a further violation of that section would occur
if Respondent granted a wage increase on August 5 is
a matter, again, for the consideration of the Board
and the courts, upon a proper charge filed and com-
plaint issued. But however viewed, this Employer,
even in the majority's analysis, is hardly an innocent
and unsophisticated participant in unfair labor prac-
tices. To suggest that it is somehow unfair to find the
Respondent in violation of Section 8(a)(5) and to in-
sist that a remedy for such a violation apply, if at all,
only as of the date of the Board's Order finding an
unfair labor practice is, in my opinion, sheer non-
sense.
Accordingly, I dissent from the majority's refusal to
find and remedy the conceded violation of Section
8(a)(5) in this case.
MEMBER JENKINS, concurring in part and dissenting in
part:
I agree with my colleagues that Respondent violat-
ed Section 8(a)(1) and (3) as set forth by the Adminis-
trative Law Judge. I further agree with my colleagues
in the majority that Respondent's granting of post-
election benefits and instituting of a new job classifi-
cation system were violative of Section 8(a)(1) of the
Act. Moreover, in my view, a bargaining order to
remedy these violations is warranted in this case. On
the other hand, I disagree with my colleagues in the
majority when they fail to find that Respondent vio-
lated Section 8(a)(5) of the Act and fail to provide a
bargaining order dated from August 4, 1972, the date
the Union demanded recognition. Also, inasmuch as
I would find that, at all times after August 4, Respon-
dent was obligated to bargain with the Union as col-
lective-bargaining representative of its employees, I
would also find that Respondent's changes in wages
and job classifications after that date without notifica-
tion to or bargaining with the Union further violated
Section 8(a)(5) of the Act.
My colleagues, as their opinions express, have
widely differing views as to the import of the Supreme
Court's decision in N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). Since I am not in complete
agreement with either of the views expressed, I have
370 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
elected to set forth my views briefly in a separate
opinion.
The Court's decision in Gissel is essentially a reaf-
firmation of many long held Board views and a rejec-
tion of the numerous and varied attacks on these
holdings by litigants before us and by those courts to
which we must look for enforcement of our Orders,
including the fourth circuit . Thus, the very first issue
considered by the Court was whether a union can
establish a bargaining obligation by means other than
a Board election and whether the validity of possible
alternative routes to majority status, such as cards,
was affected by the 1947 amendments to the Act. In
this regard the Board had always preferred that the
bargaining obligation be established through its elec-
tion procedures , but recognized that certain other lim-
ited avenues were available warranting the creation of
a bargaining relationship . The Court expressly ap-
proved the Board 's views and approach to this trou-
blesome problem (395 U .S. at 596-598), as follows:
The most commonly traveled route for a union to
obtain recognition as the exclusive bargaining
representative of an unorganized group of em-
ployees is through the Board's election and certi-
fication procedures under § 9(c) of the Act .. .
it is also, from the Board's point of view, the
preferred route. A union is not limited to a Board
election, however, for in addition to § 9, the pres-
ent Act provides in § 8(a)(5) . . . as did the Wag-
ner Act in § 8(5), that "[i]t shall be an unfair labor
practice for an employer . . . to refuse to bargain
collectively with the representatives of his em-
ployees, subject to the provisions of section 9(a)."
Since § 9(a), in both the Wagner Act and the
present Act, refers to the representatives as the
one "designated or selected" by a majority of the
employees without specifying precisely how that
representative is to be chosen, it was early recog-
nized that an employer had a duty to bargain
whenever the union representative presented
"convincing evidence of majority support." Al-
most from the inception of the Act, then, it was
recognized that a union did not have to be certi-
fied as the winner of a Board election to invoke
a bargaining obligation; it could establish major-
ity status by other means under the unfair labor
practice provision of § 8(a)(5)-by showing con-
vincing support, for instance, by a union-called
strike or strike vote, or, as here, by possession of
cards signed by a majority of the employees au-
thorizing the union to represent them for collec-
tive bargaining purposes.
We have consistently accepted this interpreta-
tion of the Wagner Act and the present Act, par-
ticularly as to the use of authorization cards.
[Citations omitted.] Thus, in United Mine Work-
ers, supra, we noted that a "Board election is not
the only method by which an employer may sat-
isfy itself as to the union's majority status," 351
U.S., at 72, n. 8, since § 9(a), "which deals ex-
pressly with employee representation, says noth-
ing as to how the employee's representative shall
be chosen," 351 U.S., at 71. We therefore pointed
out in that case , where the union had obtained
signed authorization cards from a majority of the
employees, that "[i]n the absence of any bona
fide dispute as to the existence of the required
majority of eligible employees, the employer's
denial of recognition of the union would have
violated § 8(a)(5) of the Act." 351 U.S., at 69. We
see no reason to reject this approach to bargain-
ing obligations now, and we find unpersuasive
the Fourth Circuit's view that the 1947 Taft-
Hartley amendments, enacted some nine years
before our decision in United Mine Workers, su-
pra, require us to disregard that case. [Footnotes
omitted.]
Not only did the Court spell out its approval of the
Board's approach to these matters, but, in the pas-
sages I have quoted, the Court made crystal clear that
in denial of recognition, where the union obtains
signed authorization cards from a majority of the em-
ployees, the violation is of Section 8(a)(5) of the Act.
I see no reason in logic or in law to change our long
held views as the majority of my colleagues now pro-
pose, nor do I believe that the Board has heretofore
"artificially" injected 8(a)(5) matters in these cases.
Clearly, the Supreme Court did not believe it was
"artificial" or "unnecessary" to predicate a bargain-
ing order on any 8(a)(5) violation.
On the other hand, in certain limited areas, the
Court, in Gissel, also approved the Board's long held
views that a bargaining order may be appropriate to
remedy unfair labor practices not normally running
afoul of Section 8(a)(5). Thus, at page 614, the Court
stated:
The Board . . . has long had a . . . policy of
issuing a bargaining order, in the absence of a §
8(a)(5) violation or even a bargaining demand,
when that was the only available, effective reme-
dy for substantial unfair labor practices.
Those long held policies of the Board, approved by
STEEL-FAB, INC. 371
the Court in Gissel, are correct, and I see no present
need or sound policy reason for abandoning them at
this time. Needless to say, the application of these
policies may require the Board, on occasion, "to walk
between the raindrops" as suggested by my colleague
Member Fanning, but this is the course, in my view,
which is essential to the sound administration of the
Act.
The majority of my colleagues conclude that no
violation of Section 8(a)(5) should be found because
to do so would impose a "retroactive bargaining or-
der" on an employer. In other words, in the instant
case, they would allow the Respondent to escape with
the fruits of its unlawful behavior. I believe their posi-
tion on this point to be logically wrong. A Board
decision does not create rights and obligations, but
merely ascertains and expresses their existence. The
facts, conduct, and legal principles create the rights
and obligations of the parties. This is the sound reason
why every order of this Board and indeed every judi-
cial opinion is retroactive to the date of conduct and
not the date of the Board or court opinion. Indeed, my
colleagues have long provided for backpay remedies
from the date of the conduct, not the date of the
Board opinion. Logic demands the same principle be
applied to bargaining orders.
So that there may be no doubt as to my views in this
troublesome area of the law, I would continue to find,
as in the instant case, an 8(a)(5) violation where there
has been a demand for bargaining or recognition; I
would find the violation occurred at the time of the
demand, and any unilateral changes in terms and con-
ditions of employment thereafter would, in my view,
constitute additional 8(a)(5) violations. In those cases
where no demand or request for bargaining has been
made, but a petition has been filed and the election
has been frustrated by the employer's misconduct, I
would consider the petition as constituting a construc-
tive demand or request for bargaining and I would
find the 8(a)(5) violation from the date the petition is
filed. Similarly, any unilateral changes in terms and
conditions of employment would constitute addition-
al violations of Section 8(a)(5). My views would be the
same in those situations where a petition has been
filed but subsequently withdrawn. In those cases
where no demand or request for bargaining has been
made, and no petition has been filed, but the union
has in fact represented a majority of the employees,
I would not find an 8(a)(5) violation, but would find
an 8(a)(1) violation only. If the 8(a)(1) misconduct
rises to the level suggested by the Court in Gissel, I
would provide for a collective-bargaining remedy dat-
ing from that first instance of misconduct which ulti-
mately frustrated the election process. Moreover, I
would further find that any unilateral change in the
terms and conditions of employment after that date
would not only constitute additional violations of Sec-
tion 8(a)(1) but would also constitute violations of
Section 8(a)(5).
Member Fanning has correctly pointed out the de-
ficiencies in remedy, which the majority now creates,
and the undermining of the statute which results,
without logic or reason to support the change, from
our present position. My own views are set out, not in
disagreement on this point, but solely in order to
make clear some matters which seem not to have been
explicated fully in the other opinions.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT question employees about their
union activities.
WE WILL NOT promise and thereafter grant em-
ployees benefits and/or new job classifications to
dissuade them from union activities or reward
them for ceasing to support a union.
WE WILL NOT grant raises or other benefits to
our employees to influence their rejection of a
union.
WE WILL NOT threaten employees because of
their testimony in a National Labor Relations
Board proceeding.
WE WILL pay Charles Valera for losses he suf-
fered as a result of our having rescinded his wage
increase in August, 1972.
WE WILL NOT discriminate against any employ-
ee because of his activity on behalf of United
Steelworkers of America, AFL-CIO.
WE WILL, upon request, bargain collectively
with United Steelworkers of America, AFL-
CIO, respecting rates of pay, wages, hours, or
other terms and conditions of employment, as
the representative of our employees in the follow-
ing bargaining unit:
All production and maintenance employees
employed by us at our Fitchburg, Massachu-
setts, plant, excluding office clerical employ-
ees, professional employees, guards, foremen,
and all supervisors as defined in the Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of their right to join or assist that Union or any
other union.
STEEL-FAB, INC.
372 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
(Employer)
Dated By
(Representative ) (Title)
workers of America, AFL-CIO, is a labor organization
within the meaning of Section 2 (5) of the Act.
II THE UNFAIR LABOR PRACTICES
A. The Facts
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced or covered by any other material. Any ques-
tions concerning this notice or compliance with its
provisions may be directed to the Board's Office, 7th
Floor-Bulfinch Building, 15 New Chardon Street,
Boston, Massachusetts 02114, Telephone 617-223-
3300.
DECISION
STATEMENT OF THE CASE
MELVIN J. WELLES, Administrative Law Judge: This case
was heard at Fitchburg, Massachusetts, on various dates in
December 1972 and January 1973, based on charges filed
September 6, 1972, and a complaint issued October 19,
1972, alleging that Respondent violated 8(a)(1), (3), and (5)
of the Act. In its answer, Respondent denied that it engaged
in any unfair labor practices. In Case 1-RC-12298, an elec-
tion was conducted on August 31, 1972, pursuant to a stipu-
lation for certification upon consent election, which
resulted in a 36-35 vote against the Union. On October 7,
1972, the Union filed timely objections to the election. On
October 11, 1972, the Regional Director determined that a
hearing on the objections was necessary, and ordered that
the objections be consolidated with Case I-CA-8560 The
complaint was amended by the Regional Director on De-
cember 1, 1972, and by counsel for the General Counsel at
the hearing on January 4, 1973. The General Counsel and
Respondent have filed briefs, which have been carefully
considered.
Upon the entire record in the case,) including my obser-
vation of the witnesses, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF THE EMPLOYER AND THE LABOR ORGANIZATION
INVOLVED
Respondent, a Massachusetts corporation, is engaged in
the manufacture, sale, and distribution of fabricated steel
and related products at its plant in Fitchburg, Massachu-
setts. Respondent annually both receives from and ships to
points outside the Commonwealth of Massachusetts materi-
als and products valued in excess of $50,000. I find, as
Respondent admits, that it engaged in commerce within the
meaning of Section 2(6) and (7) of the Act. United Steel-
1 The General Counsel's unopposed motion to correct the transcript is
hereby granted.
Charles Valera, an employee of Respondent, was at all
pertinent times chairman of the employees' "Shop Commit-
tee," which functioned as the representative of the employ-
ees with respect to presenting grievances, and requests for
wage increases, to the Company. It met monthly with the
Company's general manager and plant superintendent. As
spokesman for the committee, Valera had presented a num-
ber of demands to management at the March, April, and
May meetings. Among the demands was a general wage
increase, thejob classification system, and that the Compa-
ny remedy the chronic lateness of the 6-month wage re-
views. These demands, along with others, were reiterated at
successive monthly meetings through the July meeting. At
the May meeting, the committee was informed that a gener-
al wage increase would be considered about October 1. The
Company also indicated at that time that they would try to
speed up the reviews and to straighten out the classifica-
tions. Following that meeting, the employees concertedly
refused to work overtime for about 3 days, returning to
work after a meeting with Company President Edward Hall,
who promised to see about correcting the lateness of the
reviews and to examine the wage scale, and repeated the
earlier expectation of an October 1 general increase.
Valera began receiving requests from the employees to
get a union into the plant in July. He then called on an
official of the Steelworkers local, who instructed him in
organizing the plant. Valera was given a number of authori-
zation cards. He distributed some to employees, and also
called Union Representative Chris Joyce. The Union's or-
ganizational campaign at Respondent's plant thus began in
late July. About July 24, union organizers passed out leaf-
lets and authorization cards, with return addressed enve-
lopes attached, to Steel-Fab employees outside the plant.
Valera received a number of signed authorization cards
from employees, and the Union received a number of cards
in the envelopes given out to the employees. At a meeting
about August 2, to which Valera invited six employees, Bart
Murray, a union staff representative in charge of the union
campaign at Steel-Fab, spoke to the men, telling them that
the Union had received signed authorization cards from
"well over 60%d" of the employees, and that they intended
to ask the Company for recognition the next day. This was
done, by letter dated August 3, 1972. On August 4, the
Respondent refused to recognize the Union.
As noted above, the Union filed a representation petition
on August 4, and, pursuant to a stipulation for certification
upon consent election, an election was conducted August
31, with the Union losing 36 to 35. The bulk of the alleged
unfair labor practices in this case occurred between July 24
and August 31, and these also constitute the grounds for the
Union's objections to the election. There is also at issue
before me other conduct by Respondent, occurring after
August 31, alleged to have been violative of the Act
On the same day that the Union distributed cards at the
STEEL-FAB, INC.
plant entrance, President Hall called the day-shift employ-
ees together in the lunchroom. Hall told them he knew that
cards were being distributed, that if the employees signed
them, the union would be "automatically put into the facto-
ry," and that "we don't need a god damn union in here."'
Hall, according to his own testimony, also told the men that
the company "had run for six years without a union and I
thought we could run our affairs better without any outside
interference, and I hoped we wouldn't have a Union." He
added that he understood "that they received cards and I
hope they would not sign them and return them," and that
"we thought we could run our affairs better by ourselves."
Respondent at about that time, and continuing almost to
the date of the election, August 31, posted a number of
notices on its bulletin board dealing with the Union's cam-
paign, and sent several letters to employees. None of these
notices or letters is specifically alleged as violative of Sec-
tion 8(a)(1) of the Act. All of them stated and reiterated the
theme that the Company was against having the Steelwork-
ers represent its employees, hoping the employees would not
commit themselves by signing cards for the union, empha-
sizing that the employees did not need a union to receive fair
treatment from the Company, and pointing out various
promises allegedly earlier made to the employees regarding
wage increases and other benefits.3
During the next few weeks after Hall's initial talk to the
employees, Hall went around the plant, talking to the men
at their work stations. In response to the question, "Did you
attempt to find out from the men why they wanted a Union
in the plant?" Hall replied, "Yes, I talked to all our men,
most all of them." This was part of his "campaigning against
the Union."
In furtherance of this campaign, Hall also sought to as-
certain why the employees felt they needed a Union. During
the course of his travels around the plant, "most of them
told me they didn't want a Union." The "job classification
setup, " which had, for many of the positions in the plant,
three ratings, with some eight different pay rates within each
of the three, "seemed to be a bone of contention." Hall also
testified that the men indicated great dissatisfaction with the
lateness of the wage reviews, which were supposed to be
given each six months. On discovering this, "The first thing
I did was try to check on the reviews, on the reviews which
I had paid no attention to, because it was supposed to be
taken care of by other people . . . And I found, somewhat
to my dismay, that we were way behind in having our re-
views, properly on the six month basis." This was "probably
the first part of August," according to Hall, and he "said we
must immediately catch up and have these reviews as quick-
ly as we can."
Early in August, Malta reported to Hall that he "began
to get caught up." Hall informed the employees, when he
found out what their problems were, that he would take
steps to take care of them. Hall further testified that he
indicated to the employees, during the course of his cam-
2 Based on the testimony of Valera; Hall did not deny having made these
statements.
3 Valera testified to a particular notice, which is not in evidence, the word-
ing of which was denied by MacRae and Hall. I need not resolve the alleged
"conflict" as it would not affect any findings or conclusions herein
373
paign, that he could not correct many of the things that were
causing dissatisfaction until the Union business was re-
solved. Asked by the General Counsel "Did you ask them
whether or not they were interested in the Union when you
discussed these things to [sic] them?" Hall said "I am sure
I did." He also, in these conversations at the employees'
work stations, "made it more positive that I was against the
Union, . . . and I tried to convince them to be against the
Union, too." Hall kept a personal running account of how
he thought the election was going to come out.
Although Hall, as noted above, admitted that he attempt-
ed to ascertain employees' union sympathies during his anti-
union campaign, he denied that he had flatly asked any
employee whether he was for or against the Union, or any
direct words to that effect. The testimony of perhaps a score
of employees is to the contrary. Thus, employee Dennis
Barret testified that Hall asked him "What do you feel
about the Union?" John Buckley testified that Hall asked
him "if I had an opinion on the Union." Thomas Koula
testified that Hall asked him "how things were going and if
I was going to stick with him." Norman LeBlanc testified
that Hall asked him "what I thought about the Union."
Raymond Paradis testified that Hall asked him "How I felt
about the Union." William Lekaditis also testified that Hall
asked him "how he felt about the Union." Hoyt Norris
testified that Hall said to him "You're a strong union man,
aren't you?" John Gallant testified that Hall asked him if he
"was going to back him up, or vote for the union." Steven
Smith testified that Hall asked him "if I was going to vote
for the union." I shall not detail any further employee testi-
mony in this regard, for I am satisfied that in accomplishing
his avowed purpose of finding out how the employees felt
about the Union, Hall did in fact ask the question in so
many words, as the above, and other, employees credibly
testified.
The testimony of many employee witnesses also confirms
Hall's having solicited from them what their grievances and
dissatisfactions were. In many instances, such solicitation
accompanied Hall's questioning them about their union
sympathies. Hall also promised some of the employees ben-
efits, sometimes accompanying the promise with the condi-
tion "if we beat this union thing" (testimony of Michael
Yedinak, who I credit); or "if the union didn't get in that
he would like to see this wage problem straightened out and
go into effect as soon as possible" (testimony of Thomas
Gallant); or "if we can beat this thing, he was going to give
the Class A Fitters $4.25 an hour";4 or that "if I give him
a chance he is going to bring us to $4.25 an hour" (testimony
of Walter Sebek); or that "if the union doesn't come in I am
going to get the 5-1/2% the day after" (testimony of William
Lekaditis); or that "the following Monday, after the Union
election is over, that this would come into effect, this A,B,
and C rating which would give equality to all the men"
(testimony of Hoyt Norris); or that "things will change after
the election, provising the union didn't get in" (testimony of
Dante Tonet); or that "people working there as Fitters and
Welders could go up, pertaining [sic] that the union didn't
get in, could go up a certain amount of money" (testimony
of John Gallant). Other employees testified to the same
4 Testimony of Norman LeBlanc, a class B fitter at the time.
374 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
general effect, and I see no need for setting forth the sub-
stance of all their testimony.
I do not find that General Manager Theodore MacRae
questioned any employees directly about their union senti-
ments. Only one employee, John Keegan, testified that
MacRae had questioned him,5 and MacRae specifically de-
nied questioning anyone. However, MacRae did testify that
although he never asked any employee how he felt about a
union, he did ask them "how they felt about the company"
in discussions in which the Union was mentioned, "proba-
bly" raised by MacRae himself. MacRae, like Hall, kept a
separate poll of how he thought employees were going to
vote, as a result of his conversations with them.
In addition to promising employees benefits during the
course of his individual talks with them, Hall met with four
employees, John Gallant, Tom Gallant, Al Hendrickson,
and William Johnson on August 15. Hall told the four em-
ployees at this meeting about his new wage plan, about his
proposal to change the classification system, and that a
general increase would "definitely happen." According to
Hendrickson, Hall said he wanted to put his ideas into
effect, but "the Union matter had to be settled first." Hen-
drickson also testified, and I credit him, that Hall "did tell
us to go out and spread the word." In fact, Hendrickson did
go out and spread the word.
President Hall testified that he learned from the employ-
ees that they were particularly concerned about the lateness
of the periodic wage reviews, supposed to be held every 6
months, and that he gave instructions that the general man-
ager and the plant superintendent "catch up" and "have
these reviews as quickly as we can." During the month of
August, 44 employees received wage increases. According
to the somewhat confusing records and equally confusing
testimony of Tony Malta,6 it appears that there were about
37 "regular" reviews in August, and seven "incentive" re-
views, or reclassifications. It is clear that only two employ-
ees were reviewed without receiving any pay increase in
August, one of them being Charles Valera, who first was
told he was getting an increase, and then, by President Hall,
that he was not. There were approximately 73 employees on
the payroll at that time, with about 15 of them not having
been hired before April. The previous February, there had
been approximately 21 reviews (4 listed as incentive re-
views), with 15 increases granted. The testimony of compa-
ny officials indicates, and the documentary evidence bears
out, that a review does not automatically result in an in-
crease. In prior months, for example, there had been only
5 increases granted out of 24 reviews in June 1972, only 6
out of 10 in May 1972, and only 14 out of 24 in April 1972.
I shall not detail all the evidence, both testimentary and
documentary, with respect to reviews and wage increases;
the above suffices for purposes of the issues in this i.ase.
As already noted on several occasions, Charles Valera
was one of two employees who were reviewed without re-
ceiving wage increases during August. On August 4, 1972,
5 "What about this union thing9" was the way Keegan put it
6 His definition of "regular reviews" and "incentive" or "merit" reviews
did not seem to accord with that of MacRae, nor did his own handwritten
notations on employees' cards always accord with the stipulated payroll
information in evidence
Tony Malta gave Valera a review. Valera had not received
any wage increases, although accorded reviews in April and
June of 1972, since June 1971. Malta told Valera that he was
giving him a raise. Valera then left for his 2-week vacation.
He returned to the plant August 11 on personal business,
and was met in the lunchroom by President Hall, who asked
him to step outside, and told him he was rescinding the
raise. When Valera asked why, Hall said it was because he
did not do enough work for a class A fitter. Valera re-
sponded, "If I don't do enough work, then why did they give
me the raise in the first place?" Hall then said that he did
not care what they did, he was rescinding the raise, and if
Valera did not like the way he (Hall) did things, he "could
go elsewhere." The conversation ended with Hall asking
Valera "how in hell did you ever become shop committee
chairman?" Valera answered that he was "elected by the
men."
The testimony of Hall, MacRae, and Malta with respect
to the granting and rescission of Valera's August raise was
confusing and self-contradictory. Hall testified that he
heard about the raise from employees Perry and Quimby,
that these two employees were upset about it, and that he
then went to MacRae and "strongly recommended" that the
raise be rescinded. MacRae, on the other hand, testified that
he himself decided to rescind the wage increase, having
heard about it by overhearing a conversation, although Hall
testified that when he first questioned MacRae about
Valera's raise, MacRae "didn't know about it." Valera was
far and away the most active Union proponent among
Respondent's employees. He was responsible for bringing
the Union into the plant in the first place, and he was the
only employee who passed out union authorization cards to
other employees. Hall admitted that Valera had been some-
what of a thorn in his side because of his activities on behalf
of the shop committee, of which Valera was Chairman.
As already noted, the Union demanded recognition, by
letter, on August 3, 1972, and Respondent declined to rec-
ognize the Union on August 4. The Union, on that date, had
cards signed or purportedly signed by a substantial majority
of Respondent's employees. Whether or not it had a legal
majority will be considered in the "Discussion" section of
this Decision
B. Discussion and Conclusions
The alleged violations of Section 8(a)(1) of the Act fall
into three general categories: (1) coercive interrogation, (2)
promises of benefits, and (3) granting of extraordinary ben-
efits in the period between the advent of the Union and the
election. The alleged violation of Section 8(a)(3) consists of
the "rescission" of a wage increase presumably promised to
Charles Valera. The General Counsel also contends that
Respondent violated Section 8(a)(5) by refusing to bargain
with the Union on and after August 4, 1972, and by certain
"unilateral acts" and "refusals to furnish information to the
union," subsequent to the August 31 election. Finally the
General Counsel alleges as violative of Section 8(a)(1) cer-
tain conduct of Respondent's president, Edward Hall,
which occurred during a hiatus in the hearing before me.
STEEL-FAB, INC. 375
1. The 8(a)(1) and (3) violations cial agents" Albert Henrickson, Jr., or Thomas A. Perry's
That Respondent violated Section 8(a)(1) by coercively
interrogating its employees is fully established by the testi-
mony of Edward Hall, Respondent's president, taken to-
gether with that of employee witnesses too numerous to
mention here. I have found that Hall asked a great many
employees how they felt about the Union, or words to that
effect, while engaging in his "personal campaign" against
the Union. As the facts reported above show, many of these
interrogations occurred in conjunction with Hall's attempts
to ascertain the source of employee dissatisfaction, and Hall
often accompanied the questioning with promises of bene-
fits, and assurances that the conditions being complained
about would be remedied, sometimes making such benefits
contingent upon the Union losing the impending election.
In these circumstances, I cannot accept Respondent's argu-
ment that because Hall never sought to determine who had
actually signed authorization cards, or because the "nature
and tone of his talks with employees was affirmative and not
inquisitive," or because the union campaign was the pri-
mary matter of discussion among the employees during
that period, the questioning somehow became benign, rath-
er than coercive in nature.
Respondent also argues that Hall's "frank and open ad-
mission of such discussion is indicative of the harmlessness
of the discussion and the absence of any intent to violate the
Act" Perhaps lack of intent is suggested by Hall's "open-
ness," but "harmlessness" does not follow from frankness or
openness. Nor is the fact that "no one felt restrained from
being honest and sincere as to their interest in the Union,"
which Respondent claims is manifest from all of the em-
ployees' testimony, indicative of the fact that "the employ-
ees felt perfectly safe." Indeed, even direct employee
testimony that they did not feel coerced would have no
bearing on whether as a matter of law Respondent's con-
duct was coercive. I question, moreover, the factual basis
for Respondent's contention in this latter respect, as Hall
himself indicated in his testimony that he was quite sur-
prised by the vote at the election (36 to 35 against the
Union), having believed as a result of his survey that the
overwhelming majority of the employees would vote against
union representation. Perhaps the employees were not so
honest and sincere with Hall; perhaps they were in fact
coerced.
In any event, as I have indicated, I find that Respondent
violated Section 8(a)(1) by the systematic interrogations, as
described above, of its president, Edward Hall. I conclude
also that General Manager MacRae's more subtle attempts
to ascertain the extent of union sentiment in the plant vio-
lated Section 8(a)(1). As MacRae's own testimony estab-
lishes, he did seek to get employees' views, not by asking
them whether they were for the Union, but whether they
were for the Company. With Hall himself during the same
period asking the more direct question, it is unlikely that
any employee would fail to realize the import of MacRae's
questioning, particularly since "union" was prominently
mentioned in most of his discussions with the employees.
I do not find any substantial evidence to support the
General Counsel's allegations of interrogation by Tony
Malta or Robert Rossitter. Nor do I find that alleged "spe-
conduct entailed any violations of the Act, for I do not
regard either as a supervisor or as an "agent" within the
meaning of the Act. As noted below, Henrickson did play
a role in letting employees know about certain benefits Hall
was dangling before them as part of Respondent's antiunion
campaign, but in this latter respect he was only a conduit
for Hall's unlawful conduct, not an "agent" in his own right.
I find also that Respondent violated Section 8(a)(1) by
questioning its employees with respect to the sources of their
dissatisfaction, and by both promising and bestowing vari-
ous economic benefits to the employees for the purpose of
inducing them to refrain from supporting, or voting for, the
Union. The evidence detailed above clearly demonstrates
that Hall in particular, and MacRae and Rossitter as well,
did promise wage increases, changes in the classification
system, and the like, in some instances making the granting
of the benefit contingent on the Union not becoming the
employees' bargaining representative, and in most instanc-
es, as to Hall, accompanying the promise with interrogating
the employees about their union sentiments.
As noted above, Hall held a meeting with four employees
about August 15, outlining his plans for improving the class-
ification system, restructuring the wage rates, and indicating
his intent to give a general wage increase when the "union
business" was over. He told the employees at this meeting
to "spread the word" to the other employees. This too con-
stituted an obvious promise of benefit to the employees.
Telling the employees to "spread the word" plainly demon-
strates Respondent's purpose to capitalize on its promises,
so that their impact would be broader than just to the four
men at the meeting, or merely to those that the four hap-
pened casually to mention the matter. Enlisting employee
aid in such dissemination, however, does not make the em-
ployee an agent of Respondent, and I reject the General
Counsel's contention that Hendrickson, or Perry in another
respect, was in fact an agent of Respondent so as to attrib-
ute any conduct on their part to Respondent.
As to former Plant Foreman Rossitter's involvement, it
stems from his having advised Norman LeBlanc on,August
12, that he was one of three employees in line for the next
foreman's job, at about the same time that Hall had interro-
gated LeBlanc about his union activity, and, about a week
later, telling LeBlanc that he (Rossitter) "felt I would be
better off without a union and that I could go further with-
out one.,,
As related above, Hall himself testified that as a result of
the employees' expressed concern about the lateness of the
reviews, Hall set about to "immediately catch up and have
these reviews as quickly as we can." Respondent did "catch
up." During the month of August there were 46 reviews,
resulting in 44 wage increases. One of the two which did not
result in an increase was with respect to Charles Valera, who
in fact had been "recommended" for the increase by Tony
Malta at the review, but had the increase rescinded. As
discussed below, -1-am finding this rescission violative of
Section 8(a)(3) and (1) of the Act.
Never before had Respondent reviewed so many employ-
ees in a single month. The previous high, as I read the
documentary evidence, was 33 m December 1971, which,
since it was followed by only two reviews in January of
376 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
1972, I infer was attributable to the "Christmas spirit." And
never before was the percentage of wage increases so high,
as a result of the reviews, as during August. By contrast, in
June 1972, there were 24 reviews, with only 5 wage increas-
es; in April 1972, there were 24 reviews with only 14 wage
increases .? The highly disproportionate number of reviews
and of wage increases, standing alone, establishes a pattern
that can only be attributed to the advent of the Union. See
Gruber's Food Center, Inc., 159 NLRB 629, 636-637; Kaw-
neer, Inc., 164 NLRB 983, 985, enfd. 413 F.2d 191 (C.A. 6,
1969). Coupled with Hall's own admitted intent to cure
employee dissatisfaction by curing the lateness of the re-
views, there is no question but that the inference drawn
from the numbers is correct. I conclude, accordingly, that
Respondent violated Section 8(a)(1) of the Act by bestow-
ing upon its employees an excessive number of wage in-
creases in August 1972.
It is a bit difficult to ascertain exactly how many reviews,
or wage increases, would normally have taken place during
that period, particularly in the light of the Company 's long-
standing failure to adhere to its own policy of periodic
6-month reviews prior thereto. Thus, it is no defense to this
allegation to show, as Respondent attempts to do, that a
large number of the "reviews" during August were either
"on time," being approximately 6 months after a prior re-
view, or "late," as more than 6 months after a prior review.
The "catch up" itself, attributable to Hall's desire to amelio-
rate the dissatisfaction, and part of his "campaign" against
the Union, suffices to negate that defense. Indeed , since "on
time" reviews had not been the pattern in the past, it can
hardly be argued that they suddenly became the norm. It is
true that employees were not specifically told, with respect
to reviews, that they were being given in return for a vote
against the Union. But the impact of such a large number
of wage increases, virtually admitted as one way of curing
the dissatisfaction that engendered the desire for a union,
could not have been lost on the employees. This impact
surely was greatly magnified by the fact that the one em-
ployee whose increase was actually rescinded during that
period after it had been promised was Charles Valera, the
prime moving force of the Union's drive to organize Steel-
Fab's employees.
The rescission of Valera's increase not only served to
emphasize the purpose, and enhance the effect, of the many
increases given to the employees after the Union's advent;
it also was itself a violation of Section 8(a)(3) and (1) of the
Act. The facts set forth above with respect to its rescission
amply support the inference that it occurred because of a
combination of Valera's role as the employee leader of the
union movement, and his gadfly role as chairman of the
shop committee, during the preceding months. Respondent
argues that the granting of the increase by Malta "was un-
doubtedly influenced by Valera's position in Union organi-
7 The record is confusing , as noted above , as noted above with respect to
"reviews ," in that Malta and MacRae testified to "incentive ," "merit," and
"regular" reviews or increases, without any clear delineation of the differ-
ences involved Some of the increases , the testimony shows , results from
changes in an employee 's classification I have, however, lumped all of them
together in this discussion under the term "review," for the numbers involved
are the significant feature , rather than the precise basis for the wage increase,
during the preelection period.
zational efforts," that Malta "was faced with a problem and
took what he figures was the easy way out," and as MacRae
testified, "We were in a very critical time right there, be-
cause I knew that Charlie had been named in the correspon-
dence from the union, and that whether I did or did not
allow a raise for Charlie, I was in trouble." I cannot agree
that there would have been "trouble" by keeping in effect
a raise to Valera during a period when some 46 of
Respondent's employees were receiving raises, with Valera
himself not having been reviewed since December 1971, and
not having received a wage increase since July 1971, 13
months earlier.
Hall's intervention 8 itself, was unprecedented; he had
never before intervened in such matters, had never before
rescinded any wage increase granted an employee. The ver-
sions of MacRae and Hall were in sharp conflict with re-
spect to the rescission of Valera's increase. Hall testified
that he strongly recommended to MacRae that the raise be
rescinded. According to Hall, he first learned about the
raise from two employees, Perry and Quimby, who were
purportedly upset that Valera got a raise when they did not.
Hall then questioned MacRae about Valera's raise, and,
according to Hall, MacRae "didn't know about it." Hall
then said "you better check with Mr. Malta because person-
ally I don't approve of that particular increase and in fact,
I am very much against it. And.he did check with Mr. Malta
and I understand that Mr. Malta said well, I promised I
would try to get him a raise, but I know I made a mistake."
MacRae testified that he heard about the increase to Valera
by overhearing a conversation in the foreman's office, and
that he then wrote a note to Hall informing Hall about the
increase , and that he subsequently told Hall the increase
should be rescinded, and Hall- agreed with him.
As has been stated, Valera was the prime mover, among
the employees, in the Union's organizational drive. It was
he who first contacted union officials. It was he who passed
out union authorization cards to many employees in the
plant. He had also been chairman of the shop committee,
and Hall, when asked by the General Counsel, "Don't you
feel he [Valera] has been somewhat of a thorn in your side?"
responded "Because of his activities on the committee, to a
little extent, but to a much greater extent he doesn't work
hard." Hall also indicated in his testimony that he was
unaware of prior promotions or merit increases having been
accorded to Valera.
Assuming, arguendo, that Malta was influenced by
Valera's position as the chief union adherent among the
employees to promise him the raise in the first place, that
would only serve to emphasize the discrimination involved,
and the lesson to the other employees manifest, in its subse-
quent rescission. The extensive coercive interrogations, the
promises of benefits, and the bestowal of benefits, all keyed
to Hall's "personal campaign" against the Union, coupled
with the unprecedented nature of the rescission of the wage
increase, with Hall intervening in a matter never before of
direct concern to him, as well as the conflicting stories of
8 Were Ito believe that MacRae independently decided to rescind Valera's
raise, and therefore that it was only a coincidence that Hall made the same
decision at the same time , I would nonetheless conclude that the rescission
was discriminatory, MacRae, rather than Hall, then being the Steel-Fab
official acting for discriminatory reasons.
STEEL-FAB, INC. 377
Hall and MacRae, all lead inescapably to the inference that
Respondent was motivated, in rescinding Valera's increase,
by his open espousal of and leadership in the Union's orga-
nizational drive, as well as his having been a leader of the
employees as chairman of the employee shop committee. I
conclude, accordingly, that Respondent thereby violated
Section 8(a)(3) and (1) of the, Act.
President Hall, about December 20, 1972, told employees
Quimby and Koula that he would meet with the shop com-
mittee at its next scheduled meeting about a week later only
if Valera were not present, because Valera had called him
a liar in the courtroom. Quimby and Koula reported this to
Valera. On December 26, all three employees reported to
Hall's office for the scheduled meeting . Hall then told Val-
era that he wasn't going to talk to him at the meeting, and
that Valera was excused. He left, and Quimby and Koula
left with him. The next day, Ted Hall, Jr., concededly a
supervisor, tolda meeting of all the day-shift employees that
Valera should step aside, because he had called his (Hall,
Jr.'s) father a liar under oath. The occasion for Hall's ire was
the following colloquy at the second day of the hearing
before me. Respondent's counsel asked Valera "Did you
hear Mr. Hall testify yesterday you swore at him?" Answer:
"Yes, I did." Question: "Are you telling us that he is a liar?"
Counsel for General Counsel: "Objection." Judge Welles:
"Overruled." Question: "Are you telling us that he is a liar
for the statement he made yesterday?" Answer: "For the
things that he said, yes."
Manifestly, Valera was disagreeing with testimony previ-
ously given by Hall. But he was not himself using the word
"liar," the word was used only by Respondent' s counsel,
and Valera was hardly in a position to do other than agree,
with the limitation "for the things that he said," without in
effect changing his own testimony. This could scarcely be
characterized as impugning the character of President Hall.
Even if it could, Hall's refusal to meet with the shop com-
mittee, as long as Valera was there, compounded by his
son's telling the employees that Valera should be removed
from the committee, as a reprisal for what he said in testify-
ing in this case, constitutes a clear violation of Section
8(a)(1) of the Act.
2. The refusal to bargain
a. The unit appropriate for bargaining
The parties agree that the appropriate unit, the one in
which the election was held, is as follows:
All production and maintenance employees of Respon-
dent employed at its Fitchburg, Massachusetts plant,
excluding office clerical employees, professional em-
ployees, guards, foremen, and all supervisors as defined
in Section 2(11) of the Act.
b. The majority status of the Union
The General Counsel introduced into evidence 55 union
authorization cards in a unit of 73 employees. Forty-four
employees testified with respect to their cards. Forty-three
of these employees identified their signatures on an authori-
zation card. One, Raymond Paradis, testified that he was
handed a card by Charles Valera, filled it out and handed
it back to Valera, and intended to sign it, but unaccountably
omitted to do so. I have no reason not to credit Paradis'
explanation, and therefore no hesitancy in counting his
card. Francis Deschene testified that he signed a card after
it was read to him by his wife-he does not read English.
However, he also testified that he did not know what the
card meant, and that he signed it because he thought ev-
erybody had to sign a card. In these circumstances, I shall
not count Deschene's card.
Many of these 43 cards were obtained by employees at
the plant entrance, where they were being distributed by
Union agents. Attached to these cards was a union flyer
entitled "Simonds Sez." After describing a union victory the
preceding year at another company in Fitchburg, and the
wage and fringe benefits obtained in the Union's contract
with that company, Simonds Saw & Steel Division of Wal-
lace-Murray Corp., the flyer went on to say "HOW ABOUT
YOU? Today, the Steelworkers' Union is offering you the
same opportunity to have a voice in your wages, hours, and
working conditions. To start the ball rolling, you should sign
the attached card and return in the postage-paid envelope.
When 60% of the employees have signed, we will petition
the United States Government to conduct a secret ballot
election. We're offering the tools to a better way of life, the
decision to use them is yours." The Union agents distribut-
ing the cards with the flyer attached did not have any con-
versations with the employees to whom they gave them,
other than a "Good morning," or something of that nature;
they had been instructed not to carry on conversations with
the employees, but to refer problems or questions to Union
Representatives Joyce and Murray. Respondent argues that
all persons who signed cards received in this manner were
misled by the above-quoted language, and that those cards
should not be counted .9
The Supreme Court, in N.L.R.B. v. Gissel Packing Co.,
39,5 U.S. 575, 606 (1969), said that "employees should be
bound by the clear language of what they sign unless that
language is deliberately and clearly canceled by a union
adherent with words calculated to direct the signer to disre-
gard and forget the language above his signature." In this
case, the authorization card stated: "°I hereby accept and
request membership in the UNITED STEELWORKERS
OF AMERICA, and of my own free will hereby authorize
the United Steelworkers of America, its agents or represen-
tatives, to act for me as a collective bargaining agency in all
matters pertaining to rates of pay, wages, hours of employ-
ment, or other conditions of employment." This is, of
course, and Respondent does not contend otherwise, a per-
fectly straighforward, clear, and unambiguous card. I am
9 Union Representative Murray testified that the cards with the flyers
attached contained the language "If you wish to serve on the Organizing
Committee please check this box," while those given to Valera did not con-
tain this language Respondent argues that as the cards of some of the
employees who testified they were given cards by Valera contained this
language, they must have been received at the plant entrance, and therefore
the employee recipients must have received the above flyer. In view of my
disposition of Respondent's contention that any card signed by a recipient
of the flyer is invalid, I need not determine precisely how many cards were
distributed this way and how many by Valera
378 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
satisfied that the language of the flyer does not nullify the
clear card language Southwest Regional Joint Board v. N. L
R.B 441 F.2d 1027, 1033-1034 (C.A.D.C., 1970). No other
basis is asserted for invalidating these cards.
The above conclusion, that nothing in the union flyer
invalidates the cards, means that the Union's majority is
established, 43 valid cards out of 73 employees, without
more. As to nine other cards introduced by the General
Counsel, no testimony was presented, but cancelled payroll
checks were introduced, presumably endorsed by the signer,
for the purpose of comparison with the signatures on the
authorization cards. There is, of course, no testimony that
the payee on the check actually signed it, but to the extent
that the endorsement on a paricular check is identical with
the signature on an authorization card, it staggers the imagi-
nation to conceive that each could have been forged As to
seven of the nine, I have no doubt whatsoever that the
signatures are identical. These are: Frusciante, Vassallo,
Richard, Norton, Martin, Allard. and Faatz. In the circum-
stances, I have sufficient doubt, although the signatures are
similar, so as not to count the cards of Guillemette or Bur-
gess. The 7 cards I am counting brings the total of valid
cards to 50. The Union thus had a clear majority of the
employees signed up when it demanded recognition on Au-
gust 3, 1972.
c. The refusal to bargain
The unfair labor practices already found in this case were
pervasive, in that almost every employee in the plant was
directly subject to interrogation by Respondent's President,
Edward Hall, both with respect to his union sympathies and
the reasons for employee dissatisfaction. Furthermore, Re-
spondent took steps to eliminate the causes of dissatisfac-
tion, and hence of the desire for union representation, by
either curing or promising to cure, in many instances mak-
ing the fulfillment of the promise contingent on the Union
losing the election, the stated sources of dissatisfaction. Fur-
thermore, Respondent rescinded, for discriminatory rea-
sons, the wage increase promised to the employee
responsible for bringing in the Union, Charles Valera. Fi-
nally, Respondent continued to give the employees benefits
after the election was lost by the Union 36 to 35, and while
objections to the election were pending. In these circum-
stances, it is apparent that traditional remedies cannot rad-
icate the impact of Respondent's unlawful conduct, and
that the only available effective remedy is a bargaining
order. N.L.R.B. v. Gissell Packing Company, supra at 614;
Skaggs Drug Centers, Inc., 197 NLRB 1240; Soil Mechanics
Corp., 200 NLRB No. 60. I conclude, accordingly, that Re-
spondent violated Section 8(a)(5) and (1) of the Act by
refusing to recognize the Union on August 4, 1972.
d. Further alleged refusal-to-bargain conduct
The General Counsel contends that Respondent also vio-
lated Section 8(a)(5) of the Act by certain conduct occurring
after August 4, 1972 , such as the refusal to furnish the
Union certain information requested by it, and the " unila-
teral" implementation of various wage increases and other
benefits. Contrary to the General Counsel, I view these
matters as wholly derivative from the refusal to bargain I
have already found. In other words, were there no flat refus-
al to bargain found unlawful, there would be nothing wrong
with "unilateral" action taken thereafter. With a refusal to
bargain, and an order to bargain to remedy that refusal, it
would be pointless to find that everything Respondent did
after August 4 with respect to its employees further violated
the Act, and equally pointless to issue specific remedial
orders for such alleged violations. The remedy I am recom-
mending thus needs no further embellishment.
CONCLUSIONS OF LAW
1. By unlawfully interfering with, restraining, and coerc-
ing its employees, as found herein, Respondent has engaged
in unfair labor practices within the meaning of Section
8(a)(1) of the Act.
2. By discriminating against Charles Valera because of
his union activities, Respondent has engaged in unfair labor
practices within the meaning of Section 8(a)(3) and (1) of
the Act.
3. By refusing to bargain with the Union, on and after
August 4, 1972, when the Union represented a majority of
the employees in the appropriate unit described above, Re-
spondent has engaged in unfair labor practices within the
meaning of Section 8(a)(5) and (1) of the Act.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices, I shall recommend that it cease and
desist therefrom, and that it take certain affirmative action
necessary to remedy the unfair labor practices and to effec-
tuate the policies of the Act. Included in this affirmative
action will be a recommendation that Respondent make
whole Charles Valera for losses he suffered because of the
rescission of his wage increase in August 1972, with the
payment of interest at the rate of 6 percent per annum. Isis
Plumbing & Heating Co., 138 NLRB 716.
As the unfair labor practices found also interfered with
the election held on August 31, 1972, I recommend that the
election be set aside. And, in view of my finding that a
bargaining order is warranted, I further recommend that a
petition in Case 1-RC-12298 be dismissed and that all pro-
ceedings held in connection therewith be vacated and set
aside.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
STEEL-FAB, INC. 379
ORDER 10
Respondent , Steel-Fab, Inc ., Fitchburg, Massachusetts,
its officers, agents, successors , and assigns , shall:
1. Cease and desist from:
(a) Interrogating its employees about their union activi-
ties.
(b) Promising employees benefits to dissuade them from
union activities.
(c) Bestowing benefits on employees to dissuade them
from union activities.
(d) Threatening employees with reprisals because of the
nature of their testimony in a National Labor Relations
Board proceeding. ,
(e) Discouraging membership in United Steelworkers of
America, AFL-CIO, or any other labor organization, by
discriminatorily rescinding wage increases to employees of
their union or other concerted activities.
(f) Refusing to recognize United Steelworkers of Ameri-
ca, AFL-CIO, as the exclusive collective -bargaining repre-
sentative of its employees in the following appropriate unit:
All production and maintenance employees at its
Fitchburg, Massachusetts, plant, excluding office cleri-
cal employees, professional employees, guards, fore-
men, and all supervisors as defined in Section 2(11) of
the Act.
(g) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights guaran-
teed by the Act.
i° In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions , and recommended Order herein shall, as provided in Section
102 48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions, and Order , and all objections thereto shall be
deemed waived for all purposes.
2. Take the following affirmative action which is neces-
sary to effectuate the policies of the Act:
(a) Make whole Charles Valera, in the manner set forth
in the section entitled "The Remedy," for any loss of earn-
ings suffered by reason of the discriminatory rescission of
his wage increase.
(b) Upon request, recognize and bargain with United
Steelworkers of America, AFL-CIO, as the exclusive collec-
tive-bargaining representative of the employees in the afore-
said appropriate unit respecting rates of pay, wages, hours,
or other terms and conditions of employment and, if an
understanding is reached, embody such understanding in a
signed agreement.
(c) Post at its premises in Fitchburg, Massachusetts, cop-
ies of the attached notice marked "Appendix." 11 Copies of
said notice, on forms provided by the Regional Director for
Region 1, after being duly signed by Respondent's author-
ized representative, shall be posted by it immediately upon
receipt thereof, and be maintained by it for 60 consecutive
days thereafter, in conspicuous places, including all places
where notices to employees are customarily posted. Reason-
able steps shall be taken by Respondent to ensure that said
notices are not altered, defaced, or covered by any other
material.
(d) Notify the Regional Director for Region 1, in writing,
within 20 days from the receipt of this Decision, what steps
the Respondent had taken to comply herewith.
IT IS FURTHER ORDERED that the complaint be, and it hereby'
is, dismissed insofar as it alleges unfair labor practices not
specifically found herein.
IT IS FURTHER ORDERED that the election held on August 31,
1972, be set aside, and that the petition in Case 1-RC-12298
be dismissed, and that all proceedings held in connection
therewith be vacated and set aside.
i i In the event that the Board's Order is enforced by a Judgment of a '
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall be changed to read
"Posted Pursuant to a Judgment of the United States Court of Appeals
Enforcing an Order of the National Labor Relations Board."