Struthers-Dunn, Inc.

National Labor Relations Board - Board Decisions

Feb 9, 1977

228 N.L.R.B. 49 (N.L.R.B. 1977)

STRUTHERS-DUNN, INC. 49
Struthers-Dunn, Inc. and Local 1973, International
Brotherhood of Electrical Workers, AFL-CIO-
CLC. Cases 1-CA-10658, 1-CA-11049, and 1-
RC-13745
February 9, 1977
DECISION AND ORDER
BY MEMBERS JENKINS , PENELLO, AND
WALTHER
On June 21, 1976, Administrative Law Judge Irving
M. Herman issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge and to
adopt his recommended Order as modified herein.2
We agree with the Administrative Law Judge that a
bargaining order is warranted here to remedy the
unfair labor practices committed by Respondent.
However, in accordance with our recent decision in
Trading Port, Inc., 3 our remedy will require Respon-
dent to bargain with the Union as of March 25, 1975,
the date on which Respondent embarked on a clear
course of unlawful conduct.4
Respondent contends that the Union lost its
majority strength prior to the commission of any
unfair labor practices and that therefore a bargaining
order is not an appropriate remedy under N. L. R. B. v.
Gissel Packing Co., Inc.5 We disagree.
The record reveals that on March 19, 1975, 1 week
after the Union had obtained a card majority and
Respondent had refused its request for recognition,
the Board's Regional Office in Boston, Massachu-
setts, received the following statement, dated March
' The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge. It is the Board 's established policy not to
overrule an Administrative Law Judge's resolutions with respect to credibili-
ty unless the clear preponderance of all of the relevant evidence convinces us
that the resolutions are incorrect Standard Dry Wall Products, Inc., 91
NLRB 544 (1950), enfd. 188 F 2d 362 (C.A. 3, 1951). We have carefully
examined the record and find no basis for reversing his findings
2 Although the Administrative Law Judge found that on two occasions
Respondent violated Sec. 8(a)(1) by threatening employees with harsher
working conditions in the event the Union were successful , he failed to
provide in his recommended Order that Respondent shall cease and desist
from such conduct . Accordingly, we shall modify the recommended Order
and notice in this regard.
3 219NLRB298(1975).
4 Although the complaint alleged Respondent 's failure to recognize and
bargain with the Union to be violative of Sec. 8(aX5), the Administrative
228 NLRB No. 9
14 and subscribed by 16 of the 46 employees who had
previously signed authorization cards for the Union: 6
We the Undersigned have signed cards petition-
ing a Union into Struthers-Dunn, Inc. We now
feel that we would like to withdraw our names
from any such Petition.
The 16 employees who signed this document took no
steps to advise the Union that they wished to
withdraw their cards. Respondent had committed no
unfair labor practices at the time the letter was
submitted to the Regional Office.
Respondent's contention that the Union's majority
was lost as a result of the withdrawal letter is without
merit in light of the well-established rule that an
authorization card cannot be effectively revoked in
the absence of notification to the Union prior to the
demand of recognition.? In the instant case, it is clear
that the 16 employees never communicated their
change of mind to any union official. Accordingly, we
find that the 16 employees who signed the withdrawal
letter did not effectively revoke their cards and
therefore conclude that that document did not
deprive the Union of its status as majority representa-
tive of Respondent's employees.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board adopts as its Order the recommend-
ed Order of the Administrative Law Judge as
modified below and hereby orders that the Respon-
dent, Struthers-Dunn, Inc., Manchester, New Hamp-
shire, its officers, agents, successors, and assigns, shall
take the action set forth in the said recommended
Order, as so modified:
1. Insert the following as paragraphs 1(h) and (i),
and renumber present paragraph 1(h) as 1(j):
"(h) Threatening its employees with harsher work-
ing conditions in the event they choose or retain the
Union, or any other labor organization, as their
collective-bargaining representative.
Law Judge failed to pass on this allegation on the ground that it was
"apparently abandoned in General Counsel's brief " See fn. 2 of the attached
Decision . As the record establishes the validity of the 8(ax5) allegation of the
complaint, we find, in accordance with Trading Port, that Respondent
engaged in misconduct which violated not only Sec. 8(a)(1) of the Act, but
Sec. 8(aX5) as well.
Member Jenkins also finds the 8(a)(5) violation , because it has been
alleged and proved, and would accordingly find that Respondent's bargain-
ing obligation began on the date of the Union's demand , March 12, 1975
5 395 U.S. 575 (1969).
6 There are 64 employees in the unit.
7 Jas H Matthews & Co. v. N.L.R.B., 354 F.2d 432, 438 (C.A. 8,1965),
cert. denied 384 U.S. 1002 ( 1966); Southbridge Sheet Metal Works, Inc., 158
NLRB 819, 829 (1966), enfd. 380 F 2d 851 (C A. 1, 1967); Priced-Less
Discount Foods, Inc, d/b/a Payless, 157 NLRB 1143, 1150 (1966), enfd. 405
F.2d 67 (C.A. 6, 1968).
50 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
"(i) Refusing to recognize and bargain with the
Union as the exclusive bargaining representative of
the employees in the bargaining unit described
below."
2. Substitute the following for paragraph 2(a):
"(a) Recognize , effective from the date beginning
March 25 , 1975, and , upon request , bargain collec-
tively and in good faith with Local 1973, Internation-
al Brotherhood of Electrical Workers, AFL-CIO-
CLC, as the exclusive representative of all the
employees in the following appropriate unit, and
embody in a signed agreement any understanding
reached:
"All production and maintenance employees at
the Manchester, New Hampshire plant of Struth-
ers-Dunn , Inc., but excluding all office clerical
employees , professional employees , guards and
supervisors as defined in Section 2(11) of the Act."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election in Case 1-
RC-13745 be, and the same hereby is, set aside, and
that Case 1 -RC-13745 be dismissed.
IT IS ALSO FURTHER ORDERED that the complaint be,
and it hereby is, dismissed insofar as it alleges
violations not found herein.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT grant wage increases to our
employees to discourage their union activities.
WE WILL NOT threaten our employees with loss
of existing or prospective benefits in the event they
choose or retain the Union, or any other labor
organization , as their collective-bargaining repre-
sentative.
WE WILL NOT threaten to close down or move
the plant in the event of a union victory in an
election.
WE WILL NOT state that any planned wage
increase or other benefit will be withheld because
of the pendency of a union campaign or of a
proceeding before the National Labor Relations
Board.
WE WILL NOT coercively interrogate our em-
ployees concerning their union activities, views, or
sympathies.
WE WILL NOT give our employees the impres-
sion that we are maintaining surveillance over
their union activities.
WE WILL NOT threaten our employees for
attending union meetings , or otherwise discourage
such attendance except through views, argument,
or opinion protected by Section 8(c) of the Act.
WE WILL NOT threaten our employees with
harsher working conditions in the event they
choose or retain the Union, or any other labor
organization , as their collective-bargaining repre-
sentative.
WE WILL NOT refuse to recognize or bargain
with the Union as the exclusive representative of
the employees in the bargaining unit described
below.
WE WILL NOT in any other manner interfere
with, restrain, or coerce our employees in the
exercise of their rights guaranteed by Section 7 of
the Act.
WE WILL recognize, effective from the date
beginning March 25, 1975, and, upon request,
bargain collectively and in good faith with Local
1973, International Brotherhood of Electrical
Workers, AFL-CIO-CLC, as the exclusive repre-
sentative of our employees in the following
appropriate unit, and embody in a signed agree-
ment any understanding reached:
All production and maintenance employ-
ees at the Manchester, New Hampshire plant
of Struthers-Dunn, Inc., but excluding all
office clerical employees, professional em-
ployees, guards, and supervisors as defined
in Section 2(11) of the Act.
STRUTHERS-DUNN, INC.
DECISION
STATEMENT OF THE CASE
IRVING M. HERMAN, Administrative Law Judge: This
consolidated case was heard before me on December 1-3,
1975,1 at Manchester, New Hampshire. The charges were
filed by Local 1973, International Brotherhood of Electrical
Workers, AFL-CIO-CLC (herein called the Union), and
duly and timely served on Respondent. Complaint issued
on July 8 and was amended on September 22. The primary
issues are whether Respondent violated Section 8(axl) of
the National Labor Relations Act, as amended (29 U.S.C.
Sec. 151, et seq.), herein called the Act, by interrogating and
threatening its employees, giving them the impression of
surveillance, and granting them a wage increase; whether
I All dates are in 1975 except as otherwise stated.
STRUTHERS-DUNN, INC.
Respondent should be ordered to bargain with the Union to
remedy such violations; 2 and whether, absent a bargaining
order, the result of the election conducted in Case I-RC-
13745 on April 25 should be set aside and a new election
directed.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed on
behalf of General Counsel and Respondent, I make the
following:
FINDINGS AND CONCLUSIONS
1. RESPONDENT 'S BUSINESS
The complaint alleges, the answer admits, and I find that
Respondent is a New Jersey corporation maintaining its
principal office and place of business at Lambs Road,
Pitman , New Jersey, with a division headquarters at 5
Bedford Street, Manchester, New Hampshire, where it is
engaged in the manufacture, sale, and distribution of
electrical relays and controls; that Respondent annually
receives goods at its Manchester plant valued at over
$50,000 from points outside New Hampshire, and ships
goods valued at over $50,000 from its Manchester plant to
points outside New Hampshire; and that Respondent is
engaged in commerce within the meaning of the Act.
II. THE LABOR ORGANIZATION INVOLVED
The complaint alleges, the answer admits, and I find that
the Charging Union is a labor organization within the
meaning of Section 2(5) of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Facts
1. Background
Respondent's main plant, which has about 200 produc-
tion employees, has been located in Pitman, New Jersey, for
about 20 years after about 10 years in Philadelphia. These
employees have been represented by the IUE throughout
this period. The Manchester plant was purchased by
Respondent at least 10 years ago and, according to
Respondent's president and chief executive officer Pfeffer,
is merely "a relocation of a department we would have in
[Pitman]," with its sales, accounting, engineering, and
quality control functions all directed from Pitman. Respon-
dent's quality control manager, Jordan, has his office in
Pitman where he supervises the work of the quality control
department which consists in Pitman of five quality control
inspectors, all of whom are in the bargaining unit there.
2 An 8(a)(5) allegation in the complaint is apparently abandoned in
General Counsel's brief which mentions it nowhere and whose argument for
a bargaining order is couched entirely in terms of the 8(a)(1) violations
3 He testified variously to "8 years," "4 to 5 years," "5 or 6 years," and "6
or 7 years "
4 One of them supervises two lines
5 The dip line consists of only about 3 employees , as compared with about
5 on another, 7 on a third, and 15-18 on each of the remaining lines
6 Grossman 's testimony on direct examination in this respect was
... we must build the quality into this in the very beginning , and that
51
The Manchester plant maintains five production lines,
each ending with a tester who insures that each relay
functions properly by testing pickup voltage and dropout
voltage. In addition, one quality control inspector directly
responsible to Jordan in Pitman in respect to her quality
control functions spot checks all outgoing orders to insure
an adequate level of quality which involves voltages,
components, coil resistance , and armature gap and over-
travel.
Grossman, a former foreman in Pitman, has been
manager of the Manchester plant for 4 to 8 years.3
Reporting directly to him is Chretian, production manager,
who in turn oversees three foremen who supervise all but
one of the various production lines.4 According to Respon-
dent's evidence, Grossman himself maintains direct super-
vision over the dip line or dual-in line 5 because of the
peculiar type of relay made on that line. Unlike the other
relays which can be repaired and salvaged if made
improperly, those coming off the dip line must be scrapped
if they fail to operate properly.6 The testing and quality
control of dip relays are preceded by microscopic checking
of each unit by the girl who builds it.
Grossman and Chretian have separate offices, as do
Mason (engineer), the buyers, and Eve MacArthur, who is
quality control inspector for the plant, and who General
Counsel contends is the supervisor of the dip line. The
foremen apparently have no offices.
2. The organization campaign
a. Card-signing; bargaining demand and refusal;
representation petition
Robert Fisher, president of the Union, whose office is in
Eliot, Maine, met with five of Respondent's employees
(including Rachel Libby and Regina and Rhea Letares) in
Manchester on the evening of March 6. He testified that he
told them that cards would have to be signed on the basis of
which the Union might obtain recognition but that such
recognition was not often granted and he did not believe it
would happen in this case; they would probably have to
present the cards to the Board to invoke its processes,
including an election. All the employees at the meeting
signed cards and were given blank cards to distribute
among their fellows,7 and they were specifically told that
anyone who signed a card remained free to change his mind
and withdraw it. A total of 43 signed cards were received by
Fischer by the morning of March 12 when he telephoned
Grossman from Kennebunk, Maine, introduced himself,
and said he had a card majority8 and wanted
recognition.9 He could not "recall exactly what Mr.
is why I have personally kept this line under my jurisdiction from the
time it has come into Manchester
r All cards were single purpose authorization cards
8 A total of 64 employees are stipulated in the unit as of the time of the
demand, to which Respondent would add Eve MacArthur who the General
Counsel contends is a supervisor.
9 A 44th card stipulated as authentic (O'Leary) was not signed until
March 12 Two additional cards (Murphy and Roy, respectively dated
March I I and 12) were apparently received later.
52 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grossman said," but Respondent's answer admits the
refusal to bargain at that time.10 Fischer sent a representa-
tion petition to the Regional Office the same day, followed
on March 14 by transmittal of the 44 stipulated cards.
b. Withdrawal of signatures
On March 19 the Regional Office received the following
statement, initiated by Denise Marion, dated March 14 and
subscribed by Marion and 16 other employees:
We the undersigned have signed cards petitioning a
Union into Struthers-Dunn, Inc. We now feel that we
would like to withdraw our names from any such
petition."
c. Details of the campaign
(1) The conversations
As Respondent asserts, "the campaign was hot and
heavy," with considerable literature reaching the electorate
from both sides. In addition, Grossman, Chretian, and
MacArthur had certain conversations with various employ-
ees, and (apart from the wage increase of August 4, infra,) it
is in these conversations that the alleged misconduct
occurred, all prior to the election held on April 25 pursuant
to a Stipulation for Certification Upon Consent Election
executed on March 25.
The original complaint, issued on July 8, contained 20
Section 8(ax1) counts. The amended complaint, which
issued on September 22, added another 26. The earliest date
of alleged 8(axl) conduct appearing in the complaint up to
the date of the hearing herein was March 25. On November
25, General Counsel issued a notice of intent to amend
complaint at the hearing, specifying 12 additional counts.
At the hearing, however, following objection by Respon-
dent, General Counsel agreed to limit her motion to just
one of these, an allegation that, on March 11, MacArthur
had asked an employee who had contacted the Union. At
the same time, General Counsel moved to amend an
allegation already in the complaint that MacArthur had
asked an employee if she had signed a union card, by
changing the date of the alleged event from March 25 to
March 11, General Counsel stating on the record that both
questions occurred in the same conversation. I allowed the
two amendments inasmuch as they both related to a
conversation already alleged (albeit on a different date) and
since Respondent would have time to prepare to meet the
issues before the close of the hearing.
Regina Letares, who resigned her employment immedi-
ately after the election, testified to this conversation, stating
on direct examination that MacArthur telephoned her on
the evening of March 11 to say that she had heard about the
union activity and asked what she (Regina) knew about it,
whether she had signed a card, and whether certain other
employees whom MacArthur named were involved; that
10 The unit, as defined in the pleadings , includes "all production and
maintenance employees at the Manchester , New Hampshire plant of
Struthers-Dunn , Inc., but excluding all office clerical employees , profession-
al employees, guards and supervisors as defined in Section 2(11) of the Act."
11 One of the signers of this document (Santos) had not signed a card
12 It was this "significan [ce]" that fixed the date in her mind.
Regina said they weren't; that MacArthur said Respondent
"just couldn't afford a union . They would move back to
Pitman if it, you know, got in there"; MacArthur said she
was disappointed that Regina had not discussed the matter
with her and was "really upset," that when Grossman
learned of it "he was really going to be upset." Regina
testified further, on cross, that she thereupon called Beverly
Gingras, at whose house the March 6 meeting with Fischer
had occurred, and that Gingras in turn called Fisher who
then phoned Grossman the next morning. Although she
testified that MacArthur's call was "significant" 12 because
it precipitated Fischer's call to Grossman and that she "was
very upset by the phone call," she admitted that she had
failed to mention it to the Board agent investigating the
charge , explaining that he was there "a very brief period of
time and didn't really go into any detail."
Regina, who had solicited other signatures after the
March 6 meeting and who was known to be one of the
Union's activists,13 testified to the following additional
conversations on direct examination:
March 25 - MacArthur, with whom she had always
fared well,14 told her " it meant a lot to [MacArthur]" that
Regina not attend the first postorganizational union
meeting on March 25, so she did not attend.
March 26 - MacArthur told her she had heard that
Regina had not gone to the meeting, and thanked her.
Early April - MacArthur asked her to accompany her to
Grossman's office. MacArthur asked Grossman if it was
true that the employees would lose their "benefits, vaca-
tions and holidays" 15 if the Union got in, and Grossman
said yes "because ... when it got to the table the
bargaining would start with nothing and they would take it
from there. You know, that he didn't have to accept what
the Union would offer." He also said Respondent had the
Manchester plant because that was a low-wage area where
its products could be made cheaply and compete with
nonunion shops, and "there wasn't much alternative but to
go back to Pitman"; he read some figures on how long it
would take to recoup wages lost in the event of a strike and
said that the employees would be called out to support
strikers in other IBEW plants. He asked her if she had
attended the last union meeting ; and she said no; and he
said "he'd been good and kept everybody at work as long as
he could even though things were really bad at the shop,
and that he couldn't possibly give raises at this time because
we were involved in this union business and we'd have to
wait until later."
April 23 - Grossman spoke to her and others in the
cafeteria "and he again talked about manufacturing the
relays in Manchester because it could be done at a profit
here; but he didn't really want to be a manager of a union
shop and they just couldn't afford a union, and eventually
they would move to Pitman if the Union did get in."
April 25 - On the morning of the election MacArthur
said she was disappointed that Regina had attended the
union meeting the night before and asked how she was
13 According to Rachel Libby, Regina wore a union button and there was
"no doubt as to where she stood. "
14 Her daughter Rhea characterized the relationship as that of"old" and
"good friends."
15 The complaint confines this to "vacations"
STRUTHERS-DUNN, INC. 53
going to vote, and she replied that she would vote "like I
was from the beginning." 16
On cross-examination, Regina brought her account
regarding Grossman's reference to Pitman in the early
April conversation in line with her direct testimony to the
similar reference in the April 23 conversation by testifying
that Grossman had said that "if the Union were voted in
the Company would no longer be able to produce here at a
profit and they'd have to move back to Pitman." Pressed
further by counsel, however, she admitted that what
Grossman had said on both occasions was that "if
[Respondent] had to pay more in wages, it couldn't
compete." She added that these two statements, though put
"in a different way," were of similar import. On redirect she
testified as follows:
Q. And on cross-examination you said that your
understanding of what Mr. Grossman had said was that
you would lose everything, they would start from
nothing when they started bargaining?
A. Right. That's right.
Q. Did Mr. Grossman tell you what would happen
from the time the Union was elected to the time they
started bargaining with regard to these benefits?
A. Well, we'd have no benefits. That when it got to
the bargaining table, that's when they started dealing on
what we would have for benefits, and that he didn't
even have to accept, you know, what the Union had to
offer.
s s s s
Q. Did he say what the effect of the Company's
inability to compete would be if the Union was elected?
A. Well, they couldn' t operate in Manchester;
they'd have to move back to Pitman.
Libby testified on direct examination to the following
conversations:
End of March - Chretian 17 went around the floor
speaking to small employee groups at various times. When
he approached Libby's bench, employees Dumont and
Ballard were also there . He said he wanted to point out a
few things about the Union . He said that , if an IBEW plant
struck, they could be asked or forced to join the strike or
have money deducted from their pay to compensate the
strikers . And he explained that the reason the plant was in
Manchester was because production was cheaper there, but
that if the Union got in Respondent would close that plant
and move back to Pitman.
April 22 or 23 - MacArthur invited her to her office and
asked how she felt about the Union . She replied that she
was "one of the very strongest on the floor for the Union" 18
because "it could do so much " for the employees . Asked to
be more specific , she said they would have job security if
the plant were taken over by another company. MacArthur
then asked if she was willing to speak to Grossman about it,
16 Libby confirmed this conversation on her redirect examination , adding
that on that occasion MacArthur also asked Libby how she was going to vote
and that her response was similar to Regina's. The complaint alleges such
interrogation of only one employee on that date.
17 The only allegations in the complaint of misconduct by Chretian relate
to April 24, but two of such allegations involve subject matter similar to this
and she agreed. They went to Grossman's office where
MacArthur said they were there "to discuss different points
on this union." She asked Grossman whether Libby was
right about the job security and Grossman said yes.
MacArthur then asked if it was true that if the Union got in
the employees would lose their holiday pay and all their
benefits. He said yes, they would start from nothing and
"have absolutely nothing until they went to the bargaining
table and reached an agreement," that even then the Union
could not force Respondent to sign any papers; that if they
went on strike it would take a long time to recover lost pay.
He said Respondent was in Manchester because of the low
wage scales and that if the Union got in production costs
would be so great that it would not be able to afford to stay
there but would go back to New Jersey where production
would cost no more. He asked Libby if she "would be
attending the [union] meetings" and she replied affirma-
tively because she wanted to hear both sides in order to
"make an honest decision."
April 22 or 23 - Grossman told her and two other girls
in the cafeteria whom she could not identify that if the
Union got in they could be asked to join a strike at another
company or that "the Union could deduct wages from our
pay to pay for the other people on strike." He repeated that
Respondent was in Manchester because of the low wages,
and that "if the Union were to get in ... they would close
the doors here and move back to Pitman ... because they
couldn't afford to stay here in Manchester with the wages
going up."
On cross, Libby acknowledged she did not remember
dates when Respondent's counsel pointed out that her
statement to the Board agent during the investigation
placed her conversation with Chretian at or about a week
before the April 25 election. Her testimony of Grossman's
statements about moving back to Pitman became:
He said the plant was here in Manchester due to the
fact that it was a low income bracket of people and that
the Company could make the relays at a much lower
price here, but if the Union were to get in that - not
automatically - once they reached an agreement and it
was signed that the income bracket for the people in the
Company would go up and they wouldn't be gaining
that much by having the plant here so that they would
move back there to Pitman where they originally were
in the first place.
Q. In other words, if the Union got in and if an
agreement were reached and if the wages got too high
then the plant might have to move back to Pitman?
A. He didn't say that it might. He did say that it
would go back to Pitman.
Q. If the wage level got too high?
A. Right.
She still insisted, however, that Chretian's reference to
moving back to Pitman was hinged only on the Union's
testimony . It should also be noted that another allegation involving similar
subject matter, but relating to April 18, appeared in General Counsel's
November 25 notice of intent to amend the complaint but was withdrawn,
supra.
18 She wore a union pin and it "was well known" that she was an active
campaigner.
54 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
coming in and that , unlike Grossman , he made no mention
of higher wages or bargaining . Her testimony concerning
the loss of benefits became:
He said first that once the Union was in that we
would start off with nothing ; we would have absolutely
nothing to begin with. Then they would go into
bargaining and we would start from scratch and they
would bargain until they came to an agreement and
then the Company couldn 't be forced to sign that. So,
we would have absolutely nothing until an agreement
had been signed.
Q. Did you ask about the Fast Day holiday?
A. I asked him if it meant the holiday that was
coming up, and about the July vacation . And he told
me, he says, "It means everything. Everything that you
have right now will be gone." 19
After testifying that she quit on May 16 to avoid "hassles
in [her ] work" starting right after the election , in that she
"felt as though I was being treated as a complete outcast
among the other workers," she admitted that she signed her
resignation on April 29, giving as the reason that she was
"seeking better employment," and testified further:
Q. All right. Just another question or two about
your resignation from the Company . Who was harass-
ing you that resulted in your wanting to resign the
Company?
A. I felt as though I was being mistreated in many
ways by Eve MacArthur herself.
Q. Anyone else?
A. No. I didn't come in contact with any of the
other people in the plant that much.
Q. Did you and Eve have trouble getting along
prior to the election?
A. Not really. It was - we had our bad days, but
on the whole we got along.
Q. The bad days were the days when the quality of
your work wasn't up to standard?
A. Yeah. Mainly; yeah.
Rhea Letares, Regina's daughter, who resigned her
employment on May 13, testified on direct to the following
incidents:
End of March - Chretian approached her workplace
before her morning break and asked if he could talk to her.
She agreed , and he said he was talking for Grossman who
was too busy to talk to all the employees . He said he knew
cards were being passed out. She volunteered that she had
signed one. Chretian said Respondent couldn 't possibly
afford the Union , and that if it got in there was plenty of
space and help available in Portsmouth where it could
move from Manchester. He also said that , if the Union got
19 Regina Letares did not ask Grossman about that Fast Day but testified
as follows on cross -
Q The election was held on April 25, and Fast Day was the
following Monday, April 28th.
A Right
Q Did you have any concern that you weren't going to get the Fast
Day holiday? Did that ever cross your mind?
A Yes, it did.
Q Why'
in and there was a strike , the employees would lose a lot of
money and that if another company, like the telephone
company, went on strike the Union would take money out
of the employees' pay to compensate those strikers.
April 18 - MacArthur asked her to bring something to
her office, and when she got there, MacArthur invited her
to sit down and they engaged in small talk until Rhea said
she knew what she was there for and told MacArthur to ask
her anything she wanted to. MacArthur then asked how she
felt about the Union, and she replied that she did not really
know, that while she might not benefit from it some of the
older people would. MacArthur said that she once worked
at a union plant and did not like it. Asked why, MacArthur
responded that she could not smoke at the bench, and had
to sign in and out when she went to the ladies' room.
MacArthur said that the girls would have to meet work
quotas and that "she definitely could not stay if the Union
got in. Her life was really miserable when she had worked
for one." And she added, "You know, Rhea, this will
happen to you if the Union gets in. You'll start from
scratch. It will take all your privileges away." She also said
that Respondent could not afford a union and would have
to close the shop and move to New Jersey. She asked
whether Rhea had attended any union meetings, and Rhea
said she had just "sat back and listened." MacArthur asked
how Rhea was going to vote, and Rhea felt she could not
tell her she would vote for the Union so she answered that
she would cast a blank ballot. MacArthur said that would
not "help us," and Rhea replied that she would vote "what
I'm going to vote." MacArthur asked if she was going to
attend "the big meeting" the following Thursday, April 24,
and she said she did not know. MacArthur then said she
would call Rhea Monday morning and asked her to reflect
over the weekend on how the Union would benefit her.
April 21 - MacArthur called her in to her office that
morning and asked whether she had thought the matter
over. Rhea said she had not. MacArthur asked if she was
going to the Thursday meeting, and she said she did not
know.
April 22 - MacArthur approached her at her workplace
in the morning and asked if she was going to the meeting.
She said no, and MacArthur said, "You'd better not "20
April 22 or 23 - Grossman called her, Nancy Whipple,
and Rita Pinard to the cafeteria, said this was his only
chance to talk to them before the election, that there was
no need for a union because the employees "had all the
benefits [they] could possibly want," and that Respondent
couldn't afford a union because it would not be able to
compete and would close the doors and move to New
Jersey. Her direct examination concluded:
Q. Did he say anything about benefits?
A. Yes. He said if the Union did get in that we'd
have to start from nothing and we'd lose all of our
A. Well, we earned it, you know. This was one of the days that had
been posted as a holiday for employees.
Q. Yes. But what made you think that you might lose it?
A. Well, talk.
Q. Talk . Rumor around the shop?
A. Rumor, and also one conversation I had with Eve. She said that
there was a question that , you know, on whether we would have the day.
Eo The date of this conversation in the complaint is April 21.
STRUTHERS-DUNN, INC.
holidays, our benefits. We'd have to start from nothing
and work our way up. And he said it would take just as
much time for us to do that to gain that much back.
And, you know, if we wanted more it would take just as
much time ; therefore, it would take double time.
Q. Did he say when you would lose your benefits?
A. If the Union got in.
On cross, Rhea attributed her inability to be as specific
concerning the date of her conversation with Chretian,
supra, as she was with regard to the other conversations, to
the fact that the latter were "closer to the election." She
testified as follows about her conversation with MacArthur
on April 18:
Q. Did Eve say anything about bargaining?
A. Well, to the effect that if the Union did get in
we'd lose everything from then and we'd have to work
our way up.
Q. Did she say anything about a contract with the
Union?
A. Not that I know of.
Q. An agreement with the Union?
A. No. What type of an agreement?
Q. Well, an agreement between the Company and
the Union.
A. No.
And her testimony regarding Grossman's alleged statement
about Respondent's inability to compete was as follows:
Q. And he said, "We're making cheap relays and
we can't compete with other companies."?
A. Right. Well, yeah.
Q. What did all of this have to do with the Union as
you understood it?
A. Okay. That if they're making cheap relays and
they can't afford to - if they're making cheap relays
and they can't afford to compete with other companies,
you know - I don't know, the sales or something to
that sort - how could they afford to let a union come
in.
Q. Did he say that if a union came in and they had
to pay higher wages it would be harder to compete?
A. I don't recall that.
Q. How do you think he said it?
A. Excuse me. I didn't hear you.
Q. How do you think he said it?
A. About paying higher wages?
Q. Uh huh.
A. Well, I understood that he couldn't afford to pay
higher wages and that it wouldn't get to the point where
he had to.
Q. It wouldn't get to the point where he had to
what?
A. Pay higher wages.
Q. Oh. Because he couldn't compete?
A. Yes. And he couldn't afford to have a union
come in.
Nancy Whipple, who never signed a card and swore she
voted against the Union in the election, testified under
55
subpena that she was present at the conversation with
Grossman testified to by Rhea Letares, that Grossman said
there was "no need of going to any union meetings because
we just couldn't afford it, and that if the Union did get in we
would have to lose-we would lose all of our benefits and
we would have to start from scratch." On cross, she testified
that Grossman did not say "anything about the plant
closing or moving."
Patricia McGuigan, who left Respondent's employ on
June 27, testified that Chretian told her at her workplace
during the week preceding the election that Respondent
could not afford a union because it was a small company
and it would probably close the shop if the Union got in
and move to Portsmouth which was looking for industry
and where it could get labor much cheaper. He also told her
that if Anchor Electric went on strike Respondent's
employees would be assessed for the strikers' wages. She
also testified that around the same time Grossman told her,
Denise Marion, and Monica Nichols in the cafeteria that
the Company was small enough so that the employees did
not need a union, and that Respondent couldn't afford it
because it was a very competitive business, pointing out
that it had just lost a contract because of 2 cents. He also
said that if the Union got in the employees would lose all
their benefits and would have to start from scratch; that he
responded affirmatively to a question by Denise Marion
whether there would be work quotas if the Union got in.
She testified finally that the day before the election she
asked MacArthur if the employees were going to lose the
approaching Fast Day (Monday, April 28) "because of the
Union," and MacArthur answered "that there was a
possibility that we would lose everything. We might lose
Monday, too."
On cross, McGuigan testified she was "sure" that
Chretian had said Portsmouth , "Because [she ] thought it
was odd that they'd go to Portsmouth instead of back to
New Jersey." She admitted that Chretian had mentioned
the competitive nature of the business and "probably"
referred to prices charged by Respondent's competitors,
but testified that she did not "think" that either he or
Grossman had related their concern for the Company's
ability to compete to higher costs. She also testified that
Grossman's statement about loss of benefits was in direct
response to her question. She testified further:
Q. Did he say anything to you about bargaining?
A. Bargaining? Yes, he did. He said that the
Company didn't have to - I think this is what you
mean by "bargaining" - that it wouldn't have to accept
anything the Union proposed and they wouldn't have to
sign anything even after they agreed. Something to that
effect, if that's what you mean by "bargaining."
Q. That is right. I mean talking between the
Company and the Union.
A. Right.
Q. And did he say something about the Union
might ask for one thing instead of another?
A. I don't think he said anything like that.
Q. Did he say anything about all of your present
benefits being on the table or being subject to bargain-
ing?
. He could have, but I don't remember for sure.
56 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. You don't remember that?
A. Not for sure.
Grossman testified on direct that when he first learned of
the organizing campaign he called Respondent President
Pfeffer in Pitman who instructed him to retain an attorney;
that the attorney (a different firm from the one representing
Respondent at the hearing) told him to be sure not to say
anything to anyone until he had gone over "a set of rules"
or "[g]uidelines so that we did not overstep laws of the
Labor Board"; that the attorney reviewed the rules with
him and he in turn went over them with Chretian and his
other supervisors , but he did not review them with
MacArthur because "she's not a supervisor." Grossman
testified further that he also retained a consulting agency
which helped him and his attorney prepare written material
to disseminate among the employees as part of a "vigorous
campaign against union representation "; and that he spoke
to the employees from time to time. He first addressed them
in groups of 25-30, then individually in groups of 3 or 4; he
spoke to them in the cafeteria as well as in his office.
The general thrust of his campaign, he testified , was that
Respondent was in Manchester because of its ability to
outbid its competitors ; that it would remain there as long as
it could remain competitive and show a profit "because no
company can afford to operate at a loss ," but that its
competitors were nonunion, and that if the Union came in
and its demands were too high Respondent would no
longer be able to compete. He also testified that he told the
employees that if the Union won the election they would
bargain over every demand the Union might make but that
although he said nothing about losing current benefits or
even "indicate[d] that there was a possibility that they
might lose benefits," he did say all current benefits would
go on the table . He testified that he never said anything
about "bargaining from scratch or anything similar," that
he "never heard the word" until its mention by the General
Counsel's witnesses.21 He denied saying that work quotas
would be introduced if the Union came in, testifying that
what he said was that he believed Anchor Electric had work
quotas and that they had the IBEW . He denied ever
discussing with employees the signing of a collective
agreement or who attended union meetings or what went
on at the meetings . Although he could not "particularly"
recall the substance of his conversation with Libby in his
office he denied saying anything different from his state-
ments to the employees generally, and he denied asking her
if she would be attending a union meeting , testifying that he
did "remember asking [her]," about 2 weeks before the
election , "that if she does go to the next union meeting
would she be sure and listen to both sides of the story." And
he generally denied every allegation in the complaint
"respecting [him]."
Grossman acknowledged on cross that he had no
prepared statement in front of him when he addressed the
various groups or individuals and hence "said different
things to different employees" although "along the same
lines." Asked to restate what he had told the employees in
the cafeteria, Grossman testified in part to having said that
if the Union's demands became too great and "the
Company did not show a profit then obviously we would
possibly have to close the business"; and that, in response
to employee questions as to whether they would lose their
benefits while the bargaining was in progress , he said they
would not lose their benefits . He testified that the written
guidelines he had received from his first attorney were silent
as to "what the employer could or could not say about
losing benefits before or after the election " but that the
attorney advised him as to that. Almost immediately
thereafter , however, he testified as follows:
Q. Were you ever told that you couldn 't tell the
employees that they would lose all their benefits after
the election?
A. After the election?
Q. If the Union won.
A. Lose all the benefits after the election? No.
Q. That wasn't in the rules and regulations either?
A. No.
Q. Did it indicate that you couldn't tell employees
that they would lose all their benefits before the
election?
A. I didn't say that.
Q. I asked you if it said that in the rules.
A. In the rules? No.
Q. The rules didn't tell you that you couldn't tell
employees that they were going to lose benefits?
A. Not to my knowledge.
Q. It said that you couldn't threaten to close the
plant though ; right?
A. I said that before. I believe that - no, I don't
think that's in there. I don't recall that being in there;
no. I've changed my statement on that.
Q. Then prior to the election you didn 't know that
you couldn't tell employees that you would close the
plant and -
A. Oh, yes. That's one thing Mr. Higgins when he
got together with us in conversation - I don't recall
whether - it was not in that - in conversation, it is one
thing he made very clear; we could not tell the
employees that.
Q. And during these 5 or 10 meetings you held with
small groups of employees you told them that if you
couldn't remain competitive you would possibly close?
A. And show a profit.
Q. And show a profit you would close.
A. It's an obvious answer. I think it's an obvious
answer. There isn't any company that can stay in
business if you don't show a profit.
JUDGE HEI .v r : That you would possibly close?
THE wrrxEss: Pardon?
JUDGE imRMAN : Is it an obvious answer that you
would possibly close?
Tim wImEss : No, I don't think that -
JUDGE HEituAN : Or that you would close?
THE wimuss: No, I - really don't have that say.
JUDGE HERMAN: What I am saying is you said it was
an obvious answer that a company - you intimated
21 He repeated this denial on cross.
STRUTHERS-DUNN, INC.
that a company isn't going to stay in business if it is not
profitable.
THE wrrNEss: That's right. That's my answer.
JUDGE HERMAN : My question to you was would you
say that you would possibly close or that you would
close in that event?
THE WITNESS: No. I wouldn't say we would close. I
don't have any authority to say that. I would say that it
would be possibly that we would close.
JUDGE HERMAN: Go on.
Q. (By Ms. Timmins) If the Company is losing
money, is it going to stay in business?
A. That's not my decision.
Q. Isn't it possible, Mr. Grossman, that during 5 or
10 of these meetings that you held that you might have
forgotten to say "possibly" once?
A. No; I don't think so.
Q. Twice or three times?
A. No.
Q. Was it your opinion during the time when the
Union was trying to organize your employees that the
Company could not afford the Union?
A. Was it my opinion?
Q. (Shakes head.)
A. No. I don't have any particular idea at the time
whether - what the Union would be asking for.
Q. So, you didn't have an opinion on it one way or
the other?
A. Everything would be on the bargaining table. I
wouldn't know what they would bargain for.
Q. But you knew that if the Union asked for
anything more than you were giving now your product
would cost more; is that not correct?
A. I didn't say that. The product would cost more,
yes. But that - that's right.
Q. And if the product costs more, you are not going
to be as competitive . Is that not also true?
A. That's correct.
Q. And if you are not as competitive , you are not
going to maintain profitability?
A. That's correct.
: : * s s
Q. So, you know that any demands the Union made
would up those costs ; isn't that correct?
A. Positively.
Q. Any demands?
A. I wouldn't say any demands . How great the
demands maybe ; not any.
Q. Well , anything the Union asked for is going to
cost you money ; is that not correct?
22 MacArthur's testimony in this connection was as follows.
Q. And it was you that called in other employees to see Mr.
Grossman in his office when they had questions that you couldn't
answer.
A. No No. That's not so . If I was talking to an employee and we
were discussing the union I would - if I didn't understand what I was
saying and if they wanted some information that I couldn't give them or
I - or anybody on the floor - usually we talked in a group, or
individually - I can't say always in a group - can we take an example?
57
A. Yes.
Q. So, any demands they make is going to increase
your costs?
A. That's right. Yes.
Q. And you are in Manchester because it is
competitive; is that correct?
A. That's right.
Q. So, you really know whether or not you can
afford a union; isn't that correct?
A. Yes. I guess the answer's correct.
Q. Yet you had formed no opinion other than that
you would have to wait and see what the Union put on
the table?
A. Yes.
Grossman also testified that the girls with whom he
discussed the Union in his office, including Libby and
Regina Letares, were brought there by MacArthur because
they had asked to come to see him.22 Interrogated about his
conversation with Libby, he confessed to being,
... very vague on Rachel Libby as an individual.
I've talked to, as I said before, many girls in my office
who requested to come in and talk to me. I don't
particularly know what pointed questions Rachel asked
me or I answered.
s s
Q. So, you are not really sure whether or not you
asked her if she was going to the union meeting or not;
is that correct?
A. That question was brought up and I particularly
remember that - if you have other questions that
Rachel Libby has said maybe it would refresh my
memory . Each girl asked different questions. It's pretty
hard for me to remember exactly what ones were asked
and who asked them.
He also testified that he remembered Regina's asking him
in his office whether the employees would lose their
benefits.
Chretian testified that he asked employees to put to him
any questions they had about the campaign; that one
question that was raised repeatedly23 was whether Respon-
dent would close down and move if the Union got in; and
that his stock answer was that he "had no idea," which he
thereafter enlarged upon as follows:
A. I responded this way that - I explained the cost
of relays, all right, that there are certain prices - a
certain amount of money goes into making a relay.
Now, should a union get in, in all probability a union
will get more money for people, which increases the cost
Q. Sure
A Okay . Regina, I spent - I think I discussed the Union more
with Regina than with anyone. She said that she was very confused
about the union . She said that her sister had a lot of literature against the
union and she was going to bring it in so I could read it , which she never
did. She had her reasons . And she said that she wanted to know why the
company is so against the union. And I asked her why she didn't go in
and speak to Mr . Grossman.
23 The only employee he could identify in this connection was McGuigan.
58 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of the item we are manufacturing or any item that any
company may manufacture.
And at this point, by raising the price of the item, if
it's too high we are no longer in competition with other
people who are maintaining a lower cost of the item. In
this case, if the Company starts losing money they are in
no way obliged to remain in business when they are
losing money. So, they may close the plant down. They
may do whatever the Board decides to do or Directors
or whoever. Myself or people in Manchester have no
decision as to that matter.
He denied ever mentioning Portsmouth in this connection.
He recalled discussion of the subject of moving in such
terms with Dumont and Ballard who were together in a
group at the time but did not recall whether Libby was with
them. He testified that he discussed the matter of strikes
with employees but that he did not mention the telephone
company in that connection. He recalled asking Rhea
Letares if she had any questions about the Union but he
could not recall her answering at all. He denied ever telling
any employee that Respondent could not afford the Union
or "that there was a chance the Company would close
down." Frequently asked by employees whether they would
lose the Fast Day, he testified he said that he "doubt[ed] it
very much if they would lose this one, but the next Fast Day
would have to be negotiated."
According to Chretian, "A definite'no' " in the guideline
of "don'ts" was "not to mention anything about moving the
plant." He then testified:
Q. And with regard to moving the plant, would you
tell us again what your standard answer was to
employees who asked that?
A. Essentially, I mentioned the cost of the item.
Q. Would you tell it to us as you would to an
employee?
A. All right. Let's say the Union did get in. We'd
start getting pay raises that are out of proportion and
the cost of the item increases to a point where we are no
longer competitive with other competitors. That means
we're out of the market and out of production for relays
because we no longer have a market for them.
At that point, if the Company is losing money there's
no - there's no law or nothing that forces the Company
to remain in business while they are losing money. So,
that would be one item for them to think about.
The employees asked Chretian no questions he was
unable to answer himself, and in fact he told employees
about assessments even though not asked.
MacArthur testified that she considered herself a part of
the bargaining unit, talked freely and openly about the
Union with other employees, and never reported such
discussions to anyone. She opposed the Union because of
some prior experience she had had in a unionized shop and
did not believe the Union could help the employees. She
told the girls "that I didn't think that the Company could
afford higher wages and make competitive relays." Her
"basis for this opinion" was that she had "heard Mr.
Grossman discussing union and I just took it from him."
She admitted that in answer to McGuigan's question
whether the employees would lose the approaching Fast
Day she "told her I didn't know, but I wouldn't take a
chance." She testified further, however, when asked "[w]hat
would happen between the time the union got in and the
time they started negotiations," that she "assumed we
would have what we had."
Dumont, the only employee (other than MacArthur)
called to the stand by Respondent, testified on direct that
Grossman said that, if the Union came in, "everything
would be the same , you know - the holidays - and
nothing would change." On cross, however, she testified in
relevant part:
Q. At that time in the cafeteria Mr. Grossman
talked about holidays?
A. Yeah.
Q. And that was the only time that you can
specifically remember you ever talked to Mr. Grossman
A. Yeah.
Q. - about the Union?
A. Yeah.
Q. And he talked about holidays. What else did he
talk about at that time?
A. That things would remain the same.
Q. Did he say that things would remain the same if
the union got in?
A. He said - no - he said changes would be
made.
Q. What kind of changes did he say would be
made?
A. He didn't really talk about that. He just said -
Q. He just said changes would be made if the
Union got in?
A. Changes; yeah.
Q. Did he tell you that some of the changes that
would be made would occur - when did he tell you
that the changes would occur?
A. I don't think he did. He didn't really talk about
changes when we were in the cafeteria.
Q. But when else did you talk to him when he
talked about changes?
A. I guess that was it, in the cafeteria.
Q. But you just said he didn't talk about changes in
the cafeteria.
A. He didn't talk too much about changes.
(2) MacArthur's status
Libby testified that when she first reported for work
Chretian, who had hired her, introduced her to Grossman
and to MacArthur, identifying Grossman as plant manager
and MacArthur as her supervisor on the dip line; that she
"received all my work procedures from Mrs. MacArthur
unless she was out sick or wasn't in the plant at that time
and then we would speak to Mr. Grossman. And she's the
one that would come out in the morning and she would tell
STRUTHERS-DUNN, INC.
us which relays she would like to have out first and in what
order she would like to have them"; 24 that if she had any
problems with her work she would call MacArthur in her
office; that she once had to leave work because of family
problems, and MacArthur allowed her to go home without
checking with anyone else, and she also allowed her to leave
when she got sick at work, and one evening she telephoned
MacArthur at home for an indefinite amount of time off to
help care for her father who had been injured in an
accident, and MacArthur told her to take whatever time
was needed ; that about a week or two after starting work,
MacArthur told her that she had gotten Grossman to give
her a raise because she was pleased with the amount of
work Libby had produced; 25 that on several subsequent
occasions MacArthur criticized her for insufficient produc-
tion as well as for poor quality, once threatening that if it
continued she would turn the matter over to Grossman for
further action, and that MacArthur once "chewed [her]
out" for failing to report to work on a Saturday; that
MacArthur also threatened to call Grossman's attention to
certain disharmony among the girls on the dip line, after
which some of the girls were transferred to another line.
Libby also testified that the standard workday was 8
a.m.-4:30 p.m., with a half hour for lunch, but that
MacArthur's day started at 6:30 and she took a longer
lunch period as well as time off to go shopping; that when
overtime was needed it was MacArthur who asked the girls
if they could stay; and that apart from occasions when
Grossman was escorting a visitor around the plant she
didn't see him near the dip line for more than 5 minutes a
week.
Regina Letares testified that she never reported to
anyone but MacArthur for her work assignments, that she
asked MacArthur for time off which MacArthur granted
"on her own," which was not unusual , and that she received
her last pay raise in June 1974 after MacArthur told her she
had recommended it to Grossman. 26 Regina knew her as
quality control inspector who had trained her to be a tester.
Rhea Letares testified that she had been hired by
MacArthur, reported to her every day, and when she
needed time off she asked MacArthur, who would grant it
without consulting anyone; and that MacArthur spent
most of her time in her office.
Whipple testified that she and two other girls went to the
Company for work, that after completing the application
forms they were brought into MacArthur's office where she
interviewed them; 27 that MacArthur told one of the girls
she had the job and would start work in a couple of weeks,
and told a friend who worked there and had advised them
to apply that she would tell her if Whipple and the third girl
got the jobs so she could pass the word to them. When they
were informed they had the jobs they reported to MacAr-
thur who told them their rate of pay and brought them to
the line supervised by Rogers. Whipple thereafter moved to
24 According to Libby, no one else assigned work or gave instructions to
the dip line except in MacArthur 's absence.
25 She testified that she never asked MacArthur for a raise
26 She testified she never asked for a raise
27 They were not interviewed by anyone else
28 Libby testified on cross that she had never noticed MacArthur punch
out in the evening When it was pointed out that she was not there when
MacArthur left, she said she was usually there when there was overtime She
59
MacArthur's line . While on that line, she reported to no one
but MacArthur; if she wanted time off she would ask
MacArthur who granted it without checking with anyone
else; if she called in sick and MacArthur answered the
phone she so informed MacArthur, and if someone else
answered the phone she asked that the message be relayed
to MacArthur.
Whipple testified further that her work is recorded on
workcards which are passed on to her boss at the end of the
week, and while she was working for MacArthur she turned
the cards in to her. She also testified to the practice of
having one's boss initial the employee's timecard on
occasions when the employee has forgotten to punch in or
out, which happened to her several times during lunch
periods, and that she brought it to MacArthur once while
she was working for MacArthur. According to Whipple,
MacArthur parks her car in a "reserved" area near the main
office, as do Grossman and Chretian.
Finally, Whipple testified that, one time when she was
testing some relays, Foreman Rogers gave her some to test
and, while she was working on these, MacArthur came up
and said, "I'm your boss," and that she was not to listen to
Rogers; that while working overtime one night she and a
friend from Rogers' line spent too much time talking in the
ladies' room, and when they came out MacArthur called
them into Grossman's office where he berated them and
told Whipple's friend, "You stay on your side with your
boss, Jack Rogers," and told Whipple, "You stay on your
side with your boss, Eve [MacArthur]." But she had heard
MacArthur described as quality control inspector and
MacArthur spent about 3 hours a day at a bench actually
inspecting relays herself.
MacArthur punches a timecard 28 and receives time and a
half for hours over 40, which she has worked routinely.29
Her weekly wage for the 40-hour regular workweek since
the 12-percent general wage raise of August 4, 1975 (infra),
has been $183 .68. Between that date and her last previous
raise on June 14, 1974, her basic weekly wage was $164.
However, her average weekly earnings for weeks actually
worked between the week ending June 23, 1974 (the first
week following her June 14 raise), and the week ending
March 23, 1975,30 were $255.63. William Maki, who has
concededly been a supervisor at least since the general wage
increase, receives a weekly salary of $162.40. He had been
hired as a "group leader" 31 at a weekly salary of $120,
apparently in June 1974. On August 5, 1974, his salary
became $135 which was raised to $145 on November 4,
1974. Foreman Rogers' salary became $179.23 on June 17,
1974, $188.85 on December 16, 1974, and $211.51 on
August 11, 1975. Foreman Albrechinski's salary became
$179.62 on December 16, 1974, and $201.07 on August 11,
1975. Chretian's salary became $209.23 on June 17, 1974,
$218.85 on December 16, 1974, and $238.08 on August 11,
1975.
reappeared on rebuttal to testify that MacArthur did not punch her timecard
at night but only in the morning, and that she learned this by checking her
timecard when she "got very curious one morning."
28 She generally opens the plant at 6:30 and remains until 5 o'clock or
later
30 The last week shown by the evidence in the record
31 A term used to indicate probationary status of a prospective foreman-
supervlsor but whose duties were supervisory from the outset.
60 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Grossman testified on direct examination as follows:
Q. (By Mr. Cohen) Now, Mr. Grossman, you may
have gone into this before, but to be a little neater, you
mentioned that you supervised the dip line yourself.
Now, can you tell us why?
A. I stated before that the quality has to be built
into the product in this particular stage before it is
molded. There are certain inspection operations under a
microscope to make sure that none of the glass is
cracked on any of these switches because we could
replace it in this particular position here , but once it's
got molded it would not be replaceable.
According to him , MacArthur's opening the plant in the
morning is an "automatic" carryover from her early days
with the Company antedating his tenure in Manchester
since she "was always the first one there ." He explained
that MacArthur has an office because the plant has "an
abundance of offices" and she needs a place to keep her
quality control records which reflect every order shipped
from Manchester ; 32 and that large companies who are
potential customers , like Xerox and Univac, would not
consider giving Respondent an order without first being
able to examine its "quality control setup." He added that
MacArthur spends about an hour or two a day in her office,
and that the remainder of her time is spent at the
production lines either checking quality after the testing or
improving quality in the line before the testing. Asked
whether MacArthur supervises any employees, he an-
swered, "None that I know of." He denied that he ever told
anyone she was a supervisor . He testified that she has no
authority in respect to hiring, transfers, suspension, dis-
charge, or discipline , although she has authority to criticize
employees for poor work and to stop a production line until
the problem is corrected . He also testified that decisions as
to work assignments , wage increases, and requests for time
off are made by him and Chretian ; that MacArthur's
paycheck, like those of all hourly and office personnel, is
made up in Manchester while supervisors ' paychecks come
from Pitman ; that MacArthur's only function in the
scheduling of work is to take schedules that he has prepared
for the dip line and give them to the employees when he
himself is not in the vicinity of the line ; that she also brings
questions to him that girls have asked her to; and that no
parking place is assigned to MacArthur, that Respondent
leases five spaces at the building , one of which is marked
with his name and the other four just have the Company's
name but they are available on a first come , first served
basis.
In addition to MacArthur, Grossman testified on cross,
keys to the building are held by himself, Chretian, Mr.
Marion (the buyer), and Mason (the maintenance engi-
neer), who is not a supervisor . He testified about the dip
line as follows:
Q. And one of these duties that you testified about
on direct examination was that you were in charge of
the dip line ; is that correct?
32 Each form records "the pickup, dropout, coil resistance , overtravel,
and armature gap, contact gap."
A. I'm in charge of all lines , but I make it a specific
point to, let's say, have my particular hands on that
particular line, control of it.
Q. And when you are not out on the dip line, which
is the great preponderance of the day, who supervises
the dip line?
A. Supervises the dip line?
Q. That is correct . It is my understanding -
A. I don't understand why two or three girls would
need a supervisor to - we don't have foremen standing
over not letting girls go in the ladies ' room or things like
that. We trust the girls.
Q. You don't have anyone standing there supervis-
ing the dip line?
A. I don't think they need a supervisor to stand
there and supervise them . Those girls are qualified girls,
and all we have to do is make sure the quality is in the
product.
Q. We have a Mr. Rogers who supervises the reed
line; is that correct?
A. That's correct.
Q. And he is out on the floor most of the day; is
that correct?
A. Between two floors; yeah.
Q. And Mr. Albreschinski is on the 425 line?
A. He has machines to take care of.
Q. And he is out on the floor all day, isn't he?
A. That's right.
Q. And Mr. Maki on the 314 frame?
A. Uh huh.
Q. He is on the floor all day?
A. Yes.
Q. They are all out there watching what is happen-
ing; isn't that correct?
A. (No response.)
Q. Who stands and watches what happens on the
dip line?
A. Nobody.
Q. Nobody supervises the dip line . Are these
exceptional employees on the dip line?
A. No. I wouldn't say they're exceptional . I would
think the quality, as I stated before, has to be built into
the product and Mrs. MacArthur, who is the quality
control, will see that the quality is there.
Grossman admitted that it was "quite possible" that in
preparation for his entering the hospital for 2 weeks in
October 1973 he put a notice on the bulletin board to the
effect that MacArthur would be in charge in his absence,
and that it could "easily have been" MacArthur whom he
left in charge .33 His testimony soon became more positive:
"Mr. Marion took care of my duties while I was in the
hospital . But as far as the production end of the units and
the quality of the units , I left in Mrs. MacArthur's hands."
According to the testimony of both Grossman and Chre-
tian, MacArthur reports to no one in Manchester other
than Grossman, while the line supervisors report to
Chretian as well as Grossman.
33 Regina Letares testified on rebuttal that a notice had been posted
STRUTHERS-DUNN, INC.
Chretian testified that foremen have no authority to grant
time off except for an emergency in his and Grossman's
absence.34 He also testified that MacArthur spends 6-7
hours a day on the floor inspecting relays for shipment; and
that raises are generally given on his recommendation to
Grossman with no prior recommendation from a foreman.
MacArthur testified that, in addition to checking quality
at the end of the production process, she checks for faults
during production and sometimes her attention is directed
to some defect by one of the girls on a particular line. The
results of her postproduction checks are written up as the
basis for releasing the goods for shipment, and the
paperwork is filed in her office where it is kept for an
unspecified limited period, during which customers may
examine it, and then it is sent to Jordan in Pitman . Besides
reporting to Jordan concerning quality, she reports to
Grossman concerning output generally. She testified she
supervises no one although she instructs the testers in the
use of their equipment, and while they report to her
concerning quality they are also under their individual
foremen on the respective production lines. While she does
not review how a particular employee does her job, "If a
line isn't running smooth [she ] scream[s] about it," and
stops the line till the matter is corrected.
She acknowledged interviewing job applicants in Chre-
tian's absence as would Grossman's secretary or "anybody
that happens to be there," but denied that she does any
hiring, saying Chretian does that. She admitted interview-
ing Whipple and another girl but testified (as to Whipple),
"I don't think I'd even seen her application, in fact. I'm
pretty sure I didn't see her application. I don't usually see
anybody's application." She testified further that the
"interview" consisted of "more or less just general talking
to her about the job. You know, not - not `what school did
you go to?' and `When did you get out?'and `why did you
get out?' or anything of that kind .... I think I asked her
what kind of a job she was looking for. And I truly don't
remember what she said that she was interested in." And
she testified that she told Whipple that Chretian would
have to go over her application. She denied hiring Rhea
Letares, stating that Rhea came back after having worked
there one previous summer and asked if MacArthur
thought she could have her job back, and she had Rhea fill
out an application; and that although she instructed Rhea
in her duties, she did not consider herself her supervisor.
She acknowledged that people ask her for time off, but
testified that she "usually" says she will take it up with
Grossman, and that she never makes the decision herself.
She could not remember Libby calling her at home but
testified that, if she had, in view of the emergency nature of
the incident she would have authorized the time off and
would have told Libby she would report it to Grossman.
She denied giving Libby time off on any other occasion.
She testified that she has no function in connection with
wages but that, if people tell her they would like a raise, she
offers to ask Grossman about it, and that the only reason
she could think why the girls would mention it to her is that
she's a woman. She testified that she spends no more than
an hour a day in her office.
61
MacArthur testified that Grossman schedules the work
and she transmits a copy of his instructions to the various
foremen; that she does the same with the employees on the
dip line, denying that she has any authority over that line.
She admitted that she may have criticized Libby for poor
work but not for insufficient quantity. She denied ever
reprimanding Libby for not calling in on a Saturday
morning . She denied that she plays any role in transfers
except insofar as she executes Grossman's directions; or
that she has anything to do with scheduling overtime,
although she might ask a girl whether she is going to work
overtime on a particular night if she is looking for a specific
item to be coming off the line for shipment to meet a
production schedule or shipment schedule.
She denied on cross-examination that any notice was
posted in 1973 that she was to be in charge during
Grossman's hospitalization, and her testimony continued
as follows:
Q. Do you know who was in charge during that
period of time?
A. Yes. We had foremen in charge.
Q. Who was that?
A. Well, on the 425 it was Ed Albreschinski.
Q. This was October of'73?
A. That's right.
Q. Okay. Go ahead.
A. On the reed line, it was Dave Waisman.
Q. And do you know how long Dave Waisman had
been with the Company in October of'73?
A. He started before I did.
Q. So, he had been there a long time?
A. Yes, he had.
Q. And do you recall which one of them was in
charge while Mr. Grossman was in the hospital?
A. Well, I would assume that it was Dave Wais-
man.
Q. But it was not you?
A. No.
Q. Did you have any authority at all while he was in
the hospital?
A. The same authority that I have now.
Q. Your duties did not change at all?
A. No.
She admitted that she was never called to any meetings in
the cafeteria by Grossman.
She admitted that in her interview of Whipple and the
others it was "very possible" she asked them if they were
going on to college and that she thereafter informed
Chretian she had talked with these girls, and her testimony
continued as follows:
Q. What did you tell him you had talked about?
A. I really can't remember. I really can't remember.
Q. Did he ask you any questions about the individ -
uals?
A. No. He had the application. He checked it and
he talked with the girls.
Q. He talked with the girls separately?
34 Libby testified in rebuttal that she and Rhea Letares once asked
Chretian to be excused early in MacArthur 's absence and that he said they
would have to ask Grossman if MacArthur was not there.
62 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
A. I don 't know if he talked with them separately or
not. He was the one that got in touch with them and
hired them.
Q. But you never gave him any information based
on your interview with them?
A. No.
Q• Or your discussion with them?
A. No.
Q. You never said anything?
A. No.
Q. Do you remember telling him that Nancy
Whipple had come in to talk to you?
A. Very possible I told him that.
Q. But you didn't have an application blank at that
time ; is that right?
A. No; I did not.
Q. So, what did you tell him you discussed?
A. I really don 't remember.
Q. Would you have told him that she was available
for work in a certain period of time?
A. That's possible.
Q. And did he ask you what you thought of her?
A. Not necessarily; no.
Q. You are sure about that?
A. No; I'm not sure , but I doubt it.
Q. But you are not sure?
A. I'm not sure; no.
After repeating on cross her denial on direct that except
for Libby's emergency call about her father she "always"
checks with Grossman before granting time off, she became
less positive, stating she did not remember ever doing it but
that she could not say that she hadn't. She denied that
Grossman ever asks her for her opinion as to whether the
request should be granted or that he asks her whether the
scheduling is up to date.
She testified that girls on lines other than the dip line have
also asked her to talk to Grossman about raises in pay, and
that when she takes the request to Grossman he does not
ask her about the quality of the individual's work.
According to Respondent's president, Pfeffer, MacAr-
thur performs the same type of work in Manchester as that
performed by the inspectors in Pitman.35 He also testified
that he had told Grossman to supervise the dip line directly
because they had had troubles with those relays and moved
them up to Manchester on an experimental basis.
Dumont testified on direct that when she wants a raise
she asks Grossman. Her cross-examination in this connec-
tion went as follows:
Q. You testified that if you wanted a raise you
would ask Mr . Grossman?
A. Uh huh.
Q. How many times have you asked Mr. Grossman
for a raise?
A. I think a couple of times.
Q. And did you ask Mr . Grossman directly or did
you ask Eve to ask Mr . Grossman for a raise?
A. When the Company first moved over to Bedford
Street a bunch of us went in and we talked to Eve and
we asked her if she'd ask him because we was too scared
to.
Q. You were too scared to ask him yourself?
A. Well, we weren't scared; you know, we just
didn't want to go in there.
Q. And you said you asked him twice. What about
the second time? Did you again ask Eve to get the raise
for you?
A. Yeah. I asked her once and she said that we'd
have to go in and ask; you know, she couldn't ask.
Q. And when did you ask that she told you that?
A. Oh, it was a long time ago.
Q. Since the election?
A. It was before that.
Q. Before the election. And she told you that she
could not go in?
A. No. She said we'd have to ask.
Q. Did she tell you why?
A. No.
She also testified that, following her hire by Grossman,
she reported to MacArthur who showed her where and how
to work and told her to report any problems to her.
According to Dumont, neither Grossman nor MacArthur
ever criticized the work of the dip line, although her
testimony in this respect was more positive as to Grossman;
and both Grossman and MacArthur questioned her con-
cerning the progress of various orders. Grossman handed or
sent notes by MacArthur or Chretian to individuals on the
dip line to get certain products out for shipment.
d. The election and objections
The Union lost the election by a vote of 31 to 21 on April
25, and on May 1 it filed objections to conduct affecting the
results of the election. On June 26, the Regional Director
issued his report on objections directing a hearing, in
consolidation with the instant complaint, on objections
alleging (1) threats of "loss of holidays and other fringe
benefits if [the employees] elected the Union," and (2)
threats of "a shutdown or transfer of operations if [the
employees ] elected the Union." Upon Respondent's excep-
tions, the Board affirmed the Regional Director's report on
September 3.
e. The wage raise
Meanwhile , on August 4, Pfeffer ordered a 12-percent
general wage raise for Manchester . It was the first general
raise in the history of that plant . Pfeffer explained his
decision on direct examination as follows:
This division, as I have just finished saying, has been
actually an extension of one of the departments of our
company, and I've left it up to the divisional manager to
give raises when he saw fit over the past few years, and
I've not got involved myself in this.
31 He described the Manchester operation as "just an extension of our
home company in New Jersey."
STRUTHERS-DUNN, INC.
However, we were running a negotiation with our
own union in New Jersey. I was getting complaints from
George Grossman that the people were restless up here;
they needed money. I heard the same complaints in
New Jersey. I could see it throughout the country.
There was only one way to take care of that as far as I
could see and that was to give them an across-the-board
so that everybody benefited; not from a merit basis, but
from a cost-of-living increase basis.
Q. I show you a list of employees and dates and
wages, which I believe has been marked General
Counsel's Exhibit No. 6(a). Do you recognize that
document?
A. Yes, I do.
r s r
Q. Can you tell us the origin of that document and
the use you made of it?
A. I requested a list of the employees in Manches-
ter. I called George Grossman from Pitman and
requested this list to be made up to show the history of
wages and the people that were employed at that time.
And I did this somewheres around the latter part of
July. I wanted to see , because I had heard all of the
complaints from - the fact that people were restless;
that they needed money; that inflation was getting so
high that they couldn't exist anymore; we were going to
lose some people; they were going to have to quit - and
I wanted to see when they had their last raises and what
those raises consisted of. So, I requested this list from
George Grossman. He sent it to me in Pitman, New
Jersey.
Q. And on the basis of that list you made your
decision?
A. On the basis of that list I made the decision.
Q. Can you explain the basis for the timing of the
increase?
A. Yes. Because we had been negotiating with our
union in Pitman. And up here, as far as this division is
concerned, we had a bad condition, I thought. We had
an election to take place for unionization.
I had talked with Mr. Higgins , our lawyer here, about
what I could do and could not do. I talked to Mr.
Cohen, my Philadelphia attorney, of what I could do
and could not do. And they informed me what I could
and could not do. It was just as bad to not give an
increase if it's normal business as it is to give an
increase.
And I considered these a business as usual . This is the
type of thing I would normally do anyway under these
conditions of inflation. So, therefore - I didn't want to
do it - we had held off doing anything until after the
election, but it was getting out of hand.
I had been informed by both attorneys that since we
were in - being questioned by the National Labor
Relations Board and the Union that this could go on for
anywheres up to a year. And these people just can't wait
for money. What are you going to do? You cannot keep
63
these people from getting an increase . So, I made a
business decision to give them an across-the-board.36
Q. There has been some testimony here that during
the campaign questions were raised about what the
Company could afford and couldn't afford. How do
you reconcile that campaign talk with your decision?
A. Well, that campaign talk, as far as I'm con-
cerned, has nothing to do with my decision. My
decision has to do with what I see has to be done within
the Company. And these people, because of the cost of
living, had to have money, and so did our people in
Pitman. I also gave them an across-the-board.
On cross-examination Pfeffer admitted that collective
bargaining had occurred annually in Pitman for many years
but maintained that although this was the first general
increase in Manchester that fact had nothing to do with the
Union's organizational drive. His testimony continued:
Q. You testified that Mr. Grossman told you the
employees were getting restless.
A. He did that often.
Q. But it wasn't until after the election that you
decided that they warranted a wage increase?
A. No. You see, Mr . Grossman would normally be
giving the increases, but he didn't and wasn't allowed
to. I told him not to because of the union election. So,
everything was held off.
Then when we got into the situation that it would go
possibly for another six months to a year, my advice
that I got - and the people were restless . He came to
me and asked me what he should do. So, I finally
decided to do business as usual and let this take care of
itself. The people needed the money.
Q. They indicated to you very strongly that they
needed the money when they attempted to organize;
isn't that correct?
A. No; they didn't indicate that to me.
Q. It was indicated to you indirectly in that they
contacted the Union; isn't that correct?
A. Not necessarily.
Q. When you say the people were restless , what do
you mean?
A. Well, they wanted to - people are restless -
they're discontented for lots of reasons . But what I
meant by "restless" in this case was the fact that the
people were seeing that the prices of what they had to
buy and their power - everything was going up and
they were - had no way to compensate for this increase
of their cost to live. And, therefore, people get almost
frantic under these conditions.
Q. The cost of living has been going up for 10 or 20
years, has it not?
A. It's been going up more rapidly lately.
36 This included supervisors and office personnel.
64
s s s
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Q. And it was while you were negotiating with the
Union in Pitman that you decided - Mr. Grossman
told you that the employees were getting restless - and
you decided to grant the wage increase to employees in
Manchester?
A. I'd have made that increase in Manchester
regardless because it had to be done. And I chose that
time because it was convenient. I was doing it all at the
same time.
Q. You stated that you had been negotiating with
the union in Pitman , and there was a bad condition up
here because an election for unionization had just been
had.
A. I didn 't mean a bad condition . I meant - if I
said "bad condition," no. There was no bad condition
because of unionization . We've got a union in Pitman.
There's no bad condition.
Q. Wasn't it -
A. I'm talking monetary situation as far as the
people are concerned . They - they needed an increase
and it looked as though with the question of the union
that it was going to take a long time.
Q. I quote your testimony. "Up here there was a
bad condition because an election for unionization had
just been held."
Now, aren't you saying that your decision to grant
the wage increase was in some way affected by the prior
election?
A. No.
Q. Not at all?
A. Not at all. We would have done it anyway.
On redirect, Pfeffer testified:
Q. (By Mr. Cohen) Was there any reason for a
change of method from the individual method to the
general method at this time.
A. Yes, because the Company was beginning to get
larger up here . The growth of the Company is obviously
in the last - ever since July it's gotten much larger, and
it's still getting larger . And it's changing from a small
company to a larger one . So, the pattern has to relate
itself to our basic company policy.
B. Analysis
1. Respondent 's motions
Respondent 's brief in effect renews its motion to dismiss,
made at the outset of the hearing, because of General
Counsel 's refusal to honor its request under the Freedom of
Information Act for disclosure of the names of prospective
witnesses and copies of their investigative statements. I do
not believe Respondent is entitled to the information. See
Goodfriend Western Corp. d/b/a Wrangler Wranch v. Robert
S. Fuchs, 535 F.2d 145 (C.A. 1, 1976 ); Title Guarantee Co.,
Subsidiary of Pioneer National Title Insurance Co. v.
N.LR.B., 534 F.2d 484 (C.A. 2, 1976); N.L.R.B. v.
Biophysics Systems, Inc., 91 LRRM 3079 (S.D.N.Y., 1976).
Nor do I see any injustice to Respondent from my denial
of its motion to strike all evidence of alleged misconduct
prior to March 28, the date specified in the amended
charge in Case 1-CA-10,658 as the beginning of the
misconduct. My ruling merely reaffirmed my earlier one,
supra, of allowing the amendment of paragraph 8 of the
complaint limited to the change of a date in certain
interrogation already alleged and the addition of another
related item of interrogation as part of the same conversa-
tion.37
However, some of General Counsel's evidence (particu-
larly in Rhea Letares' testimony) related to allegations
covered in the notice of intent to amend complaint which
General Counsel had agreed to withdraw at the outset of
the hearing. I of course was not sufficiently familiar with
the details of the complaint to be able to enforce this
understanding by excluding such testimony as it was
presented and without objection. While the Board may and
frequently does consider evidence not objected to on issues
litigated at the hearing though not formally incorporated in
the complaint, I believe the peculiar facts of this case
require a different result. First, the General Counsel
specifically narrowed her request to the two amendments
allowed. Second, she specifically requested that she nev-
ertheless not be precluded from "allowing the witnesses to
testify with regard to [the remaining] material," which
request I specifically rejected. And finally, in my opinion,
because of the frequent duplication of allegations here, and
the proximity and uncertainty of the dates of numerous
alleged incidents, even Respondent 's counsel could not
reasonably be expected always to know, in the absence of
the discovery sought, whether particular evidence did or
did not relate to issues covered by the complaint. Hence, his
failure to object or to move to strike irrelevant evidence as it
was adduced cannot properly be deemed a waiver, and I
make no finding of unfair labor practices based on such
evidence. If any instances where I find unfair labor
practices appear to involve such evidence, those findings
rest on other allegations in the complaint which are either
identical or similar to those which I have excluded.
2. The merits
a. Preliminary
Although none of the written material issued by Respon
dent during the campaign is a subject of any allegation in
the complaint, some reference thereto is warranted, at least
for a flavor of the case, by Respondent's assertion that this
material "shows that the management representatives were
`set up' and that they were then made easy targets for attack
by misquotation."
Respondent's first written communication to the employ-
ees was a letter of March 19, signed by Grossman, evidently
in reaction to "Union buttons and literature . . . distribut-
ed throughout the shop" the day before. In its letter
Respondent states:
37 Respondent has in no event been prejudiced by the amendment in light
of my findings, infra
STRUTHERS-DUNN, INC. 65
Any employee who feels that he or she does not want
any part of the union may be assured that there are
Federal laws protecting them. The Federal law guaran-
tees you a free choice and protects you from any type of
union coercion including threatening phone calls and
the like. I want to personally assure you that this
Company will do all it legally can to prevent such
coercion.
There is no evidence of any coercion on behalf of the Union
either before or after this letter.
Immediately prior to the letter's conclusion thanking
those who had stood by Respondent so far, was the
following:
I WANT YOU ALL TO KNOW THAT THE COMPANY WILL
DO ALL IT LEGALLY CAN TO RESIST THE ATTEMPT BY THIS
UNION TO BRING ABOUT COMPULSORY UNION
MEMBERSHIP IN OUR PLANT.
The record reveals no evidence at any time of the Union's
desire for "COMPULSORY UNION MEMBERSHIP." Nevertheless,
2 days later, Grossman followed up with another letter "to
make . . . clear" that "It is not necessary and it is not going
to be necessary for anyone to belong to this union or any
other union in order to work for this company."38 Another
point "ma[d ]e . . . clear" in the same letter, again reverting
to a prior theme, was that "If anybody causes you any
trouble at your work or puts you under any unlawful
pressure to consider joining the Union, you should let us
know and we will see that it is stopped."
Also "ma[d]e . . . clear" was that "this matter is one of
concern to your company. It is also a matter of serious
concern to you and your family. It is my sincere belief that
if this union were to get in here, it would not work to your
benefit but to your serious harm."
On March 31, predicting union efforts to convince the
employees that it could improve existing benefits, Gross-
man wrote, "what they probably won't tell you is that the
company would not have to agree to any contract de-
mands." This was repeated in his letter of April 4 as well as
in his letter of April 7, where, for the first time, he stated,
"In collective bargaining, everything is put on the bargain-
ing table." This was expanded in his letter of April 14 as
follows:
In collective bargaining, everything would go on the
bargaining table-including what you have now. There
are no guarantees. Remember, the law would not require
the Company to accept the union's demands. The law
recognizes that irresponsible union demands could
close a company that couldn't afford to continue to
operate.
Meanwhile, in his April 4 letter, Grossman again re-
turned to his compulsory unionization theme, this time
completely misstating the law by saying, "Theoretically, if
only one person votes, and the vote is for the union, all
employees in the unit will have to join the union-even
though they didn't vote." And significantly, in his letter of
April 23, his last prior to the election, he stated:
If the Union were to win, it probably would press for a
union shop. That would mean that everyone in the unit
would have to join the union and pay monthly dues.
Under a union shop, the union could force those who
refused to join out of their jobs.
Thus, after repeated warnings to the employees of how
they might lose in the event of a union victory because
Respondent did "not have to agree to any contract
demands," and contrary to what earlier seemed an adamant
opposition to union security, Grossman now virtually
predicted Respondent's surrender to the one demand he
speculated the Union would "probably" make if it won that
would threaten the employees' jobs.
In light of the foregoing, the Union's prediction of "scare
tactics" by Respondent would seem not altogether unjusti-
fied despite Respondent's contention to the contrary. These
tactics, moreover, including Grossman's prediction of
"serious harm,"-quite apart from any unfounded "ru-
mors" the Union may have started-provided ample basis
for concern among the employees to raise any of the
questions they posed. Indeed, the "setup" suggested by
Respondent would leave entirely unexplained (1) Chre-
tian's testimony that he invited questions, (2) the fact that
MacArthur admittedly initiated invitations to employees to
put their questions to Grossman, and (3) the fact that the
question concerning the imposition of work quotas was put
by Denise Marion, the instigator of the defection move-
ment.
b. MacArthur's status
Whatever the character of the employment status of the
quality control inspectors in Pitman it is unlike that of
MacArthur who represents quality control in her own
person in Manchester. Hers is the first and last word in
quality control as far as the employees are concerned. She
has authority to stop the production lines and to criticize
the work of those who fail to measure up. And she has
exercised this authority in no uncertain terms, testifying
herself to screaming at errant employees. She reports to no
one in Manchester other than Grossman while the foremen
report to Chretian as well as Grossman. She opens the plant
most mornings and works longer hours than the employees.
Her weekly earnings substantially exceed those of every
foreman and even of Production Manager Chretian. She
has her own office while the foremen have none. Grossman
admitted that during his extended sick leave in October
1973 (before Chretian's employment) he left MacArthur in
charge of "the production end of the units and the quality
of the units." MacArthur has indicated a continuing
interest in meeting production and shipment schedules.
Unlike all other unit employees, she was never called to any
cafeteria meeting by Grossman. Nor was she included in
the list of unit employees prepared in Manchester at
Pfeffer's request in August in connection with his consider-
ation of the pay raise. Employees ask MacArthur for time
38 Although, as indicated, General Counsel has not attacked any of the
written material, it is not irrelevant to note the suggestion in this statement of
a closed mind as to a mandatory subject of bargaining in any future
negotiations.
66 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
off and address requests for raises to her. And finally, her
antiunion views mirrored those of management, with which
indeed she identified herself by bringing employees to
Grossman's office to discuss the matter.
On these undisputed facts,39 I find MacArthur to be a
statutory supervisor or at least that she has been accorded a
position by management in which the employees may and
do reasonably believe that she speaks for management, and
hence she is an agent of Respondent within the meaning of
the Act. Cf. Aircraft Plating Company, Inc., 213 NLRB 664
(1974); Oahu Refuse Collection Co., Inc., 212 NLRB 224,
229 (1974); Broyhill Company, 210 NLRB 288, 294 (1974);
The Bama Company, 145 NLRB 1141, 1143 (1964).40
c. The unfair labor practices
(1) The threats of loss of benefits
It is the Board's position that "in the course of organiza-
tional campaigns, statements are sometimes made of a kind
that may or may not be coercive, depending on the context
in which they are uttered. `Bargaining from scratch' is such
a statement. In order to derive the true import of these
remarks, it is necessary to view the context in which they
were made." Wagner Industrial Products Company, Inc. 170
NLRB 1413 (1968); see also Stumpf Motor Company, Inc.
208 NLRB 431-432 (1974).
If the oral statements of Respondent's agents here had
gone no further than those contained in its written
communications (supra) in respect to putting everything on
the bargaining table, the absence of guarantees and no
requirement that Respondent accept the Union's demands,
I should find no violation in this connection. I would then
view General Counsel's failure to attack the written
material as a concession that any similar statements were
nothing more than Respondent's "legitimate contention
that the selection of the union would not automatically
bring increased benefits" and that they "contain[ed] no
veiled threat of a withdrawal of benefits should the
employees choose a union"; (C & K Coal Company, 195
NLRB 1038, 1039 (1972)) and "no specific implication that
Respondent intended to adopt a bargaining posture offer-
ing the employees less than they were then receiving"
(Wagner Industrial Products Company, supra). See also
White Stag Mfg. Company, 219 NLRB 1246 (1975);
Computer Peripherals, Inc., 215 NLRB 293 (1974).
But the testimony recited above shows that the oral
statements varied somewhat from the written, with a
39
One of these facts is disputed only in the sense that MacArthur
contradicted Grossman's admission that he had left her in charge of
production during his 1973 absence . I regard her testimony in this respect as
undermining her general credibility.
40 In view of this finding it is unnecessary to resolve testimonial conflicts
concerning additional factors relied on by General Counsel.
41 It does not necessarily follow from this, however, contrary to Respon-
dent, that the words "cannot be remembered precisely and any attempt to
quote them is bound either to fail or to suggest ex past facto re-creation."
42 This is illustrated as much by the confused testimony of Respondent's
witness Dumont as by that of General Counsel 's witnesses.
43 In this connection I find no overstatement such as is indicated in
testimony that Grossman said that even if agreement were reached
Respondent could not be forced to sign any papers. The only witness for that
bald a statement was Libby as to whose general credibility I have substantial
misgivings (infra). The closest any other witness came to this was McGui-
gan's testimony on cross-examination that on another occasion Grossman
greater stress on loss of benefits and, of especial signifi-
cance , on a loss pending the negotiations. As Respondent
asserts, "In an active campaign such as this one, words are
voluminous - and they are ephemeral." 41 Precisely
because of this, they must be chosen with particular care.
Civic Center Sports Inc., 206 NLRB 428, 433434 (1973). It
is apparent that the employees here did not understand
exactly what Respondent now contends it had in mind.42
That understanding is as essential to a determination of the
legality of the statements as Respondent's intent in making
them. N.L.R.B. v. Gissel Packing Co. Inc., 395 U.S. 575, 618,
619 (1969). And if "brinkmanship" results in overstate-
ments which reasonably tend to mislead the employees,
who are peculiarly sensitive thereto, the employer must
answer therefor. Id. at 620. See also N.LR.B. v. Rollins
Telecasting Inc., 494 F.2d 80, 82 (C.A. 2, 1974).43
The clearest example of such overstatements relates to
holidays. Chretian testified that his stock answer to the
frequent question whether the employees would lose the
Fast Day immediately following the election was that he
"doubt[ed] it very much." Not only was this a far less firm
statement than should have been expected from one who
knew that existing benefits would remain in effect pending
the negotiations, but it also is significant because it
illustrates the extent to which the oral statements may have
departed from the written, for Grossman's letter of April 23
referred to the "return to work on Tuesday" rather than
Monday, the Fast Day. Similarly, McGuigan testified that,
when she posed the question to MacArthur, the reply was
"that there was a possibility that we would lose everything.
We might lose Monday too." This was in effect conceded
by MacArthur who testified that in reply to McGuigan she
"told her I didn't know but I wouldn't take a chance." 44
And Regina Letares testified similarly concerning MacAr-
thur while Libby gave similar testimony against Gross-
man.45 This evidence shows that Respondent's oral state-
ments "could reasonably be taken by the employee[s ] as a
threatened loss of benefits to be enacted unilaterally by the
Employer as a reprisal for the employees having selected
the Union" rather than being "traded away for others."
Stumpf Motor Company, supra at 432. In addition, as will be
discussed below, the remarks were "made in an atmosphere
of coercion" with "accompanying unfair labor practices"
(see C & K Coal Company, supra; Wagner Industrial
Products Company, supra) both in the very conversations
and in the surrounding context. Cf. Textron, Inc. (Talon
said "something to [the I effect" that Respondent had no obligation to reach
agreement or to sign. In an area like this, where precision of language is all-
important , a finding of a violation should not rest on so vague a foundation,
particularly since the statement in respect to not reaching agreement would
be protected, Grossman had been advised by counsel, and the testimony did
not emerge until cross-examination.
44 Even if MacArthur's subsequent testimony were credited, that she
personally assumed that existing benefits would be retained pending
negotiations, this would not undercut the contrary effect on the employees
resulting from what she admittedly told McGuigan
45 I have grave doubts of the veracity of Grossman's denial that he had
ever heard the common English expression , "from scratch." I certainly
discredit his testimony that he never even said anything of "similar meaning"
or "indicate[d I that there was a possibility that [the employees I might lose
benefits" in view of his admission to having told the employees that "all
present benefits ... would go on the bargaining table "
STRUTHERS-DUNN, INC. 67
Division), 199 NLRB 131, 134-135 (1972); Saunders Leasing
System Inc., 204 NLRB 448,454-455 (1973).
(2) The threats to close down and move
On the other hand, Respondent' s agents made no bare
threats to close down and move in the event of a union
victory. Not only would such threats have been wholly
inconsistent with the statements alleged and found con-
cerning future negotiations46 but also such testimony as
does appear in the record to that effect is also qualified by
later testimony of General Counsel' s witnesses so as to
make clear that the predicted move turned on Respondent's
inability to compete as a result of increased production
costs . The question nevertheless remains whether such
higher costs were forecast as the inevitable consequence of
a union victory or only as contingent upon the Union's
forcing improved working conditions in the negotiations,
the former constituting a violation and the latter not - if
the eventuality were demonstrably probable. N.L.R.B. v.
Gissel Packing Co., supra, 618-619.
Respondent contends that not only did no one in
Manchester lack authority to decide the matter of closing
the plant but also that all its agents said about it was that "if
the Union's demands became expensive ... the company's
competitive position could be affected. And if a company is
not competitive, then the responsible officers could reason-
ably close it." The alleged lack of authority to decide on the
move is of no moment. There was ample apparent authority
in the speakers for the employees to be reasonably coerced
if the statements were substantively unlawful. As to the
latter, I do not credit any testimony by Grossman or
Chretian of statements phrased in the potential rather than
conditional mode, while MacArthur freely expressed her
view, admittedly based on what she had heard from
Grossman, that "the Company could [not] afford higher
wages and make competitive relays." Indeed, analysis of
the credibility of Grossman or Chretian is virtually ren-
dered supererogatory by MacArthur's testimony for, even if
she was not an agent of Respondent and her statements to
the employees were not imputable to Respondent, if she,
being much closer to Grossman than the employees
generally, gained the impression from Grossman that the
Company could not remain competitive with higher wages,
then it was certainly reasonable for the employees to
understand the message to be at least as McGuigan
testified, that the plant "would probably" close.
Moreover, as indicated, I do not credit Grossman or
Chretian. Chretian even denied that he ever told an
employee "that there was a chance the Company would
close down," a clear inconsistency with both his earlier
testimony that his stock answer to the employees' question
whether the plant would close was that "in all probability a
union could get more money for people" which could
increase the production cost to the point where the
46 As they also would with alleged warnings in the same conversations
that if the Union got in the employees would be obliged to support strikes in
the other plants
47 This testimony went.
Let's say the Union did get in Weil start getting pay raises that are out
o/ proportion and the cost of the item increases to a point where we are no
longer competitive . . At that point, if the Company is losing money
- there 's no law or nothing that forces the Company to remain in
business while they are losing money [emphasis supplied ]
Company suffers losses which "may close the plant down,"
and his later testimony restating his stock answer even more
positively by assuming what had first been only "pro-
babl[e ]."47
While Grossman's estimate of the Union's demands in
the event of an election victory was more speculative, his
conclusion as to the effect of exorbitant demands was
perhaps even stranger than Chretian's for he testified to
telling the employees that if because of those demands "the
Company did not show a profit then obviously we would
possibly have to close the business." This bizarre use of
"possibly" where it was "obvious" even to Grossman that
"there isn't any company that can stay in business if you
don't show a profit" renders his account patently incredi-
ble, particularly in light of his insistence that he never
omitted the word "possibly" in this connection, his admis-
sion that he really knew whether or not Respondent could
afford a union, and his earlier testimony that what he said
was that, if the Union's demands were too great, "We could
no longer compete in the market any longer." It is
impossible, moreover, to reconcile the doubt inherent in his
"possibly" position with the certainty of his asserted
statements of the converse "in simple words," to wit, that
,.as long as Struthers-Dunn can remain competitive in
producing these relays and show a profit then we will be in
Manchester, we will stay in Manchester, New Hamp-
shire." 4s
In any event, Respondent offered no evidence whatever
of the amount of increase in wages or other benefits that
would make the operation noncompetitive, which, by that
token alone, reduced its position in effect to an assertion of
the inevitability of a closedown if the Union won the
election. Absent such evidence, Respondent's statements,
even if sincere, "were not protected expressions of opinion
but mere threats of retaliation in violation of Section
8(a)(1)." Oahu Refuse Collection Co., Inc., 212 NLRB 224,
226 (1974).49 A fortiori, the statements were violative in
view of their insincerity manifested by the 12-percent wage
increase given in August with no ill effect on Respondent's
ability to continue the operation in Manchester. "[T ]he
eventuality of closing" was thus specifically demonstrated
as not "capable of proof," (Gissel, supra at 618-619), but
was indeed acknowledged by Pfeffer himself to have been
mere "campaign talk."
(3) Other preelection misconduct
I do not credit Regina Letares' testimony concerning the
alleged phone call from MacArthur on March 11. Her
explanation for failing to recall the date or one of the two
items of interrogation until the eve of the hearing, a matter
of over 4 months after issuance of the initial complaint and
2 months after issuance of the amended complaint, leaves
too many questions unanswered. It is significant, I think,
that the witness was not some casual union supporter but
48 This was variously restated as "as long as we got these orders and
Struthers-Dunn could show a profit then we'd be in business here in
Manchester , as long as we could show a profit", and "as long as we can
remain competitive and show a profit then we would - we'd have the
company here."
49 By the conclusion of his testimony Grossman virtually acknowledged
that any increase would have made the plant noncompetitive.
68 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
one of its stalwarts, a charter member of the group, an
activist in the campaign from the outset, and the source of
other evidence since the filing of the original charge. Nor
was this a conversation that had been overlooked thereto-
fore. It appeared in part in the amended complaint as
having occurred 2 weeks later. Indeed, it was so important,
according to her testimony, that it precipitated Fisher's
telephonic demand to bargain. Yet despite its importance
and the fact that she "was very upset by the phone call,"
and notwithstanding its greater proximity to the investiga-
tion of the case, she failed to include this in her investigative
statement because the Board agent "didn't really go into
any detail" during the interview. That Ms. Timmins
(hearing counsel for the General Counsel) "spent more time
with us" hardly explains the failure to make the allegation
until the hearing in the absence of evidence of when Ms.
Timmins became involved in the case. Nor is the credibility
of Mrs. Letares' testimony in this respect enhanced by the
fact that it now also includes an allegation of a threat to
move which is still not alleged in the complaint and was not
included in the notice of intent to amend at the hearing. I
also discredit the allegation as it stood initially in the
amended complaint, that MacArthur asked her on March
25 if she had signed a card, because Letares' union activity
was well known by that time and would have been
particularly known by MacArthur, an old and good friend,
herself active in the campaign.
However, I credit Letares that MacArthur asked her not
to attend the meeting of March 25 and thanked her the next
day for honoring her request; 50 and that Grossman
thereafter asked her whether she had attended that meet-
ing 51 I also credit her testimony that Grossman said he
could not give raises because of the Union, a position
consistent with Pfeffer's testimony that he had ordered the
usual merit raises withheld for that reason. This, of course,
contravenes the established principle that "an employer, in
deciding whether to grant benefits while a representation
petition is pending, should decide that question as he would
if a union were not in the picture." The Great Atlantic &
Pacific Tea Company, Inc., 166 NLRB 27, 29, fn. 1 (1967);
Sinclair & Rush, Inc., 185 NLRB 25 (1970). I also credit
Letares that MacArthur expressed her disappointment on
the morning of the election over Letares' attendance at the
last union meeting and asked how she was going to vote.
Although MacArthur still knew Letares as a unionist, I
view this as a last-ditch appeal for old times sake.
McGuigan testified that Grossman responded affirma-
tively to Denise Marion's question whether there would be
work quotas if the Union got in. Grossman's testimony was
that he said he believed Anchor Electric had work quotas
and that they had the IBEW. Marion, the leader of the
defection movement from the Union, was not called to
testify. In this state of the record, I credit McGuigan, noting
also that Grossman's admitted statement left ample room
for an inference equivalent to what McGuigan described as
explicit.
50 If this did not evidence surveillance it at least gave the impression of
surveillance.
Sl It is noteworthy that Respondent 's witnesses were generally vague at
best in recalling specific conversations or any conversations with specific
employees.
I also credit Rhea Letares' testimony concerning a similar
threat by MacArthur on April 18 made simultaneously with
threats of harsher conditions in respect to smoking and
restroom visits. And I credit her testimony that MacArthur
asked on April 21 and 22 if she was going to attend a union
meeting and warned her not to.
I have not found Libby's testimony generally trustworthy
and have not credited her except where she has been
corroborated. Thus, her explanation on direct examination
for leaving Respondent's employ almost sounds like a
constructive discharge for her union activity by making her
a pariah for some 3 weeks following the election. The true
picture emerges only with her revelation on cross that she
actually turned in her resignation the first working day after
the election, that she quit because she was "seeking better
employment," and that her only "hassle" in this brief
period had been with MacArthur over her work rather than
with "the other workers." Perhaps more telling was her
rebuttal testimony concerning MacArthur's timecard. Ex-
panding considerably on her initial testimony that she had
never noticed MacArthur punch out in the evening, which
invited the question as to how she knew this since
MacArthur regularly remained at work after she had gone
home and her somewhat lame answer that she occasionally
also worked overtime, she now declared positively, based
on her personal examination of MacArthur's timecard, that
MacArthur did not punch out evenings. Absent some
explanation from the General Counsel as to how, given this
state of affairs, Respondent was able to compute overtime
pay for MacArthur, which the record shows she earned
every week she worked,52 I can only conclude that Libby's
rebuttal testimony was made out of whole cloth.
I specifically do not credit Libby's testimony that
MacArthur asked her on April 22 or 23 how she felt about
the Union. In my opinion this question would have been
entirely superfluous at that point. For if MacArthur did not
already know, only 2 or 3 days before the election, after an
active and hectic campaign of some 6 weeks, how this "well
known" union supporter felt, MacArthur must have been
much less active than the complaint alleges or than I have
found. By the same token, I do not credit her testimony that
MacArthur asked her on the morning of the election how
she was going to vote at the same time that she put the same
question to Regina Letares. MacArthur did not have the
same special relationship with Libby that she did with
Letares; the complaint confined the allegation in this
respect to only one employee; the evidence as to Libby's
involvement in this did not come out until her redirect
examination, nor was it corroborated by Letares who
testified immediately after Libby.
There evidently was a conversation, however, between
Libby and Grossman in which her attendance at a union
meeting did arise. Her testimony was that the conversation
occurred only 2 or 3 days before the election, and that it
consisted of his asking if she "would be attending the
[union ] meetings" and her reply that she would because she
wanted to hear both sides. According to him, he asked her
52 General Counsel relied on these pay records in comparing MacAr-
thur's ea rungs with those of other company personnel.
STRUTHERS-DUNN, INC.
about 2 weeks before the election that if she attended the
next union meeting she should "be sure and listen to both
sides." Although this incident was not the subject of any
allegation in the complaint (or even included in the notice
of intent to amend) I have considered it since Grossman
testified about it. I credit Grossman's account as the more
likely of the two. The record discloses only one union
meeting in the 2 or 3 days immediately before the election,
and there is no reason to believe that more were contem-
plated so as to explain why he would have asked about
meetings in the plural. Moreover, her purported answer
seems contrived in view of her known union activity53 if
indeed such knowledge did not even prevent him from
asking such an idle question. On the other hand, his
knowledge of her union activity would be quite consistent
with his assuming she would attend the upcoming meeting
and asking her, as he testified, to consider the Company's
side as well.
(4) The wage raise
The Board's test for determining the validity of a wage
increase during the pendency of a representation petition is
whether it is given "for the purpose of inducing employees to
vote against the union" (emphasis the Board's). Tonkawa
Refining Co., 175 NLRB 619 (1969), enfd. 434 F.2d 1441
(C.A. 10, 1970). And the burden is on the employer to come
forward with an explanation for the timing other than the
election . The Singer Company, Friden Division, 199 NLRB
1195, 1196 (1972); Schwab Foods, Inc., d/b/a Seatts IGA
Foodliner, 223 NLRB 394 (1976); Emery Air Freight
Corporation, 207 NLRB 572, 575 (1973). Respondent,
resting entirely on the testimony of its president, Pfeffer,
has clearly failed to sustain this burden.
Pfeffer's explanation was that from reports by Grossman
he had become aware by July that the employees were
restless from the effects of inflation; that he "had a bad
condition" because of the pending election since he had
ordered "normal" merit increases withheld on account of
the election but had been advised by counsel that the
instant proceeding might drag on for another year; that he
was also informed by counsel that it "was just as bad to not
give an increase if it's normal business as it is to give an
increase"; and that he was in the midst of negotiations with
the Pitman union; so he made "a business decision" which
was "business as usual . This is the type of thing I would
normally do anyway under these conditions of inflation,"
i.e., "give them an across-the-board so that everybody
benefited; not from a merit basis, but from a cost-of-living
increase basis." He reconciled the "campaign talk" about
Respondent's inability to afford any raise with the decision
to give a 12-percent one by testifying that the "campaign
talk . . . ha[d ] nothing to do with my decision. My decision
has to do with what I see has to be done within the
company. And these people, because of the cost of living,
had to have money, and so did our people in Pitman. I also
gave them an across-the-board."
This frank confession of deceit in the "campaign talk"
raises questions, of course, as to what statements by
53 Such an answer would far better fit the question whether she would
attend a company meeting.
54 1 do not rely, for purposes of this finding , on the retroactive unfair
69
Respondent are worthy of belief generally. But beyond
that, Pfeffer's explanation fails on its own merits because no
equation of the "people in Pitman" to the people in
Manchester is possible on this record. The "people in
Pitman" have been the beneficiaries of annual collective-
bargaining agreements for many years. In the approximate-
ly 10 years of the existence of the Manchester plant its
employees had never before received a general wage raise.
And contrary to Pfeffer's bare testimony that the rate of
inflation in previous years was lower than in 1975, it may be
noted judicially that the 1975 rate of inflation was lower
than that in several years prior thereto during the period of
Respondent's operation of the Manchester plant. Besides,
this general "cost-of-living" increase was quite unrelated to
the widely disparate dates of the various employees' last
raises. Hence Pfeffer's statement that the raise was "the
type of thing [he ] would normally do" is in conflict with the
entire record, particularly when viewed in light of Gross-
man's figures on which Pfeffer claims to have relied, which
show a lapse of over a year between the dates of some
employees' last raises and the appearance of the Union, as
well as a spread of over a year among the last raise dates of
various employees, some having received raises as recently
as March 1975. Moreover, to the extent that Pfeffer claims
to have been motivated by the advice that it is illegal to
withhold a normal increase, the individual merit increases
he admits withholding were certainly more "normal" than
the general increase which he had never given before. His
belated and novel explanation on redirect for the shift from
the individual method to the general, that the company had
grown larger, is not documented nor is the conclusion self-
evident.
The single obvious new element in Manchester - and the
one which Pfeffer stubbornly refused to acknowledge as a
possible cause of the employees' "restlessness" - was the
Union's organizational campaign. I have no doubt whatev-
er that the increase was intended as a reward for the
favorable count in the first election and as an inducement
to a like result in the expected second one. It thus violated
Section 8(a)(1) Cf. Monarch Tape Duplicating, A Division of
Monarch Record Manufacturing Corp., 205 NLRB 520, 525,
526 (1973); Tommy's Spanish Foods, Incorporated 187
NLRB 235, 236, 241 (1970); Sea Life, Incorporated, 175
NLRB 982, 985 (1969); Ambox, Incorporated 146 NLRB
1520,1521 (1964).
Bargaining Order
Although Respondent was clearly within its rights in
refusing to recognize the Union when it did, its subsequent
preelection conduct prevented the election from reflecting
the free will of the employees, and the election must
therefore be set aside.54 Moreover, those unfair labor
practices together with the general wage increase of August
14 were so extensive and serious as to render unlikely a fair
and free election in the future. Cf. Oahu Refuse Collection
Co., Inc., 212 NLRB 224, 230 (1974); Tower Enterprises,
Inc., d/b/a Tower Records, 182 NLRB 382, fn.2 (1970). In
such circumstances, a bargaining order is warranted if the
labor practice effect of the wage increase on the threats to close and move the
plant
70 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Union had card authorizations to bargain from a majority
of employees in the unit . N.LRB. v. Gissel Packing Co.,
Inc., 395 U.S. 575 , 600, 610-611, 614-615 (1969).55 The
Union did in fact possess such cards from approximately
two-thirds of the unit employees by the time of the
bargaining demand and refusal.56
Respondent seeks to undermine the majority showing by
the evidence that Fischer had indicated he would respect a
change of heart by the employees and that just such a
change occurred with the withdrawal petition prior to any
unfair labor practices .57 However, Gissel requires only "a
showing that at one point the union had a majority" in order
to "effectuat[e] ascertainable employee free choice" (em-
phasis supplied). 395 U.S. at 614 . If Respondent had
refrained from misconduct, it may well be that the
voluntary defection from the Union would have been
reflected to Respondent's advantage in an election which
would have proved conclusive. But after choosing to engage
in violative conduct to guarantee that result it may not now
be heard to protest "negat[ion]" of the employees' "free
selection" which it itself has "negated." 58
The Election Objections
In view of my determination that the election held on
April 25 should be set aside , and my recommendation for a
bargaining order, a new election is not warranted herein,
and I recommend that the Union 's petition in Case 1-RC-
13745 be dismissed and all prior proceedings held thereun-
der be vacated.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. Respondent has violated Section 8 (axl) of the Act by
coercing its employees in the exercise of their union
activities.
4. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
5. Respondent did not violate the Act except as
specifically found above.
REMEDY
In order to remedy the unfair labor practices found
herein my recommended Order will require Respondent to
cease and desist therefrom , and, in view of their serious
nature and variety, to cease and desist from infringing upon
55 While the complaint characterizes Respondent 's conduct as "outra-
geous" and "pervasive," which Gissel suggests might suffice to support a
bargaining order "without need of inquiry into majority status" (395 U.S. at
613), the Board has not seen fit to grant this remedy even in such an
`.exceptional" case where "the record does not at any point reveal a showing
of majority status" (The Loray Corporation, 184 NLRB 557 (1970)); and the
General Counsel 's brief drops the operative adjectives, urging the order only
in reliance on the majority showing.
58 Respondent 's suggestion of the inadequacy of these single-purpose
cards based on Fischer 's statements that he expected an election rather than
voluntary recognition runs head-on into Gissel 395 U.S. at 606-608.
Montgomery Ward & Co., Incorporated, 220 NLRB 373 (1975).
57 Even if, contrary to my finding , supra, Regina Letares had received the
the Section 7 rights of its employees in any other manner,
and to post the usual notices . Moreover, in order to
effectuate the policies of the Act, and more particularly for
the reasons set forth in the section supra, entitled "Bargain-
ing Order," my recommended Order will require that
Respondent bargain collectively and in good faith with the
Union upon the Union's request.
Upon the foregoing fmdings of fact and conclusions of
law, and the entire record herein , and pursuant to Section
10(c) of the Act, I hereby recommend the following:
ORDER59
The Respondent, Struthers-Dunn, Inc., Manchester, New
Hampshire , its officers , agents, successors , and assigns,
shall:
1. Cease and desist from:
(a) Granting wage increases to its employees to discour-
age their union activities.
(b) Threatening its employees with loss of existing or
prospective benefits in the event they choose or retain the
Union or any other labor organization as their collective-
bargaining representative.
(c) Threatening to close down or move the plant in the
event of a union victory in an election.
(d) Stating that any planned wage increase or other
benefit will be withheld because of the pendency of a union
campaign or of a proceeding before the Board.
(e) Coercively interrogating its employees concerning
their union activities , views, or sympathies.
(f) Giving its employees the impression that it has been
maintaining surveillance over their union activities.
(g) Threatening employees for attendance at union
meetings , or otherwise discouraging such attendance except
by expression of views, argument, or opinion protected by
Section 8(c) of the Act.
(h) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights
guaranteed by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act:
(a) Upon request, bargain collectively and in good faith
with Local 1973, International Brotherhood of Electrical
Workers, AFL-CIO-CLC, as the exclusive representative
of all the employees in the following appropriate unit, and
embody in a signed agreement any understanding reached:
All production and maintenance employees at the
Manchester, New Hampshire plant of Struthers-Dunn,
Inc., but excluding all office clerical employees, profes-
telephone call from MacArthur on March 11 , as alleged, I would not find the
two questions put to her on the occasion a cause for the withdrawal 3 days
later by 16 others (but not herself or the other employee to whom she
allegedly mentioned the call), absent at least some evidence that the
substance of the call had been communicated to those employees.
5e See concurring opinion of Judge Sobeloff in N.LR. B. v. Sehon
Stevenson & Co., Inc., 386 F.2d 551 ,557 (C .A. 4,1967).
59 In the event no exceptions are filed as provided by Sec . 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Sec. 102.48
of the Rules and Regulations , be adopted by the Board and become its
findings, conclusions , and Order, and all objections thereto shall be deemed
waived for all pufposes.
STRUTHERS-DUNN, INC. 71
sional employees, guards and supervisors as defined in
Section 2(11) of the Act.
(b) Post at its place of business in Manchester, New
Hampshire, copies of the attached notice marked "Appen-
dix. " 60 Copies of said notice, on forms provided by the
Regional Director of Region 1, after being duly signed by
an authorized representative of Respondent, shall be posted
by Respondent immediately upon receipt thereof, and be
maintained by it for 60 consecutive days thereafter, in
conspicuous places, including all places where notices to
employees are customarily posted. Reasonable steps shall
be taken by Respondent to insure that said notices are not
altered, defaced, or covered by any other material.
(c) Notify the Regional Director in writing, within 20
days of this Order, what steps Respondent has taken to
comply herewith.
IT IS FURTHER ORDERED that the petition in Case 1-RC-
13745 be dismissed and all proceedings therein be vacated.
IT IS FURTHER ORDERED that the complaint be dismissed
insofar as it alleges violations of the Act not specifically
found.
60 In the event that the Board 's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."