Swanson-Nunn Electric Company, Inc.

National Labor Relations Board - Board Decisions

Jun 23, 1981

256 N.L.R.B. 840 (N.L.R.B. 1981)

840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Swanson-Nunn Electric Company Inc. and Chauf-
feurs, Teamsters and Helpers Local Union No.
215, a/w International Brotherhood of Team-
sters, Chauffeurs, Warehousemen and Helpers
of America. Cases 25-CA-11570 and 25-RC-
7309
June 23, 1981
DECISION, ORDER, AND DIRECTION
OF ELECTION
On December 9, 1980, Administrative Law
Judge Robert A. Giannasi issued the attached De-
cision in this proceeding. Thereafter, Respondent
and the General Counsel filed exceptions and sup-
porting briefs.
The Board has considered the record and the at-
tached Decision in light of the exceptions and
briefs and has decided to affirm the rulings, find-
ings,' and conclusions 2 of the Administrative Law
Judge, as modified herein, and to adopt his recom-
mended Order.
1. The Administrative Law Judge concluded that
Respondent had engaged in a number of 8(a)(1)
violations but had not committed certain other
8(a)(1) violations as alleged in the complaint. We
affirm all but one of those findings. Specifically,
the Administrative Law Judge found that Foreman
Bill Burns did not violate the Act by interrogating
an employee. The Administrative Law Judge found
that Burns asked employee Alvey "in a joking
manner" what Alvey expected to get from the
Union. Alvey replied that he thought the employ-
ees would get better benefits to which Burns re-
plied that he did not think the Union would get
that. The Administrative Law Judge, in dismissing,
noted that the interrogation was in a joking manner
and that Alvey's verbal banter indicated that he
was not intimidated by the question. Contrary to
the Administrative Law Judge, we note that the
fact that an interrogation may have been done in a
"joking manner" does not lessen its interference
with employees' Section 7 rights. See, e.g., Tartan
Marine Company, 247 NLRB 646 (1979). We ac-
' The Administrative Law Judge found that the election unit involved
in this proceeding included 33 employees. We find, however, that the
unit included 35 employees. Specifically, we note that the election tally
was 13 for the Union, 16 against the Union. with 6 determinative chal-
lenged ballots. Subsequently, the parties agreed that the challenges to the
ballots of employees Burns and Lewis should be overruled and that these
two employees belonged in the unit. See fn. I of the Administrative Law
Judge's Decision The Administrative Law Judge then overruled the re-
maining four challenges. However, he found that the unit nowv consisted
of 33 employees. This is incorrect. The unit consists of 35 employees in-
cluding the 2 employees the parties agreed should be in the unit. We cor-
rect the Administrative Law Judge's inadvertent error in this regard.
2 For those reasons expressed in his dissenting opinion in Tops Club,
Inc., 238 NLRB 928 (1978), Member Jenkins would not include Leo But-
trum, Sr. (father of Respondent's president), in the unit and would find 34
employees to be in the unit.
256 NLRB No. 131
cordingly find here that Foreman Burns' interroga-
tion of Alvey violated Section 8(a)(1) of the Act.
2. The Administrative Law Judge found that Re-
spondent's unlawful interrogations and solicitation
of grievances created an atmosphere of coercion
which warranted that the first election held herein
be set aside and that a new election be held. While
we are in agreement with the Administrative Law
Judge that the unfair labor practices are sufficient
to set aside the election, we note that the Union
may still have won that first election. 3 Specifically,
we have affirmed the overruling of the challenges
to four ballots and the parties themselves have stip-
ulated to the overruling of the two other chal-
lenges. Hence, six ballots are to be opened which
will be determinative of the election's results.
Therefore, we will first order that these challenged
ballots be opened. If a revised tally shows that the
Union won the first election, then the Regional Di-
rector should issue a Certification of Representa-
tive. If the revised tally shows that the Union lost
that election, then a second election shall be held.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Re-
lations Board adopts as its Order the recommended
Order of the Administrative Law Judge and
hereby orders that the Respondent, Swanson-Nunn
Electric Company, Inc., Evansville, Indiana, its of-
ficers, agents, successors, and assigns, shall take the
action set forth in the said recommended Order.
IT IS FURTHER ORDERED that the overruled chal-
lenged ballots in Case 25-RC-7309 be opened and
counted. Should the revised tally show that the
Union has won the election, the Regional Director
shall then issue a Certification of Representative.
Should the revised tally show that the Union lost,
the results should be set aside and a new election
held, which is provisionally directed below.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
: In agreeing with the Administrative Law Judge, we find it unneces-
sary to pass on his additional comments concerning the possible impact of
Respondent's unlawful conduct in terms of dissipating the Union's card
majority
DECISION
STATEMENT OF THE CASE
ROBERT A. GIANNASI, Administrative Law Judge:
This case was heard on June 25, 26, and 27, 1980, in Ev-
ansville, Indiana. In addition to filing unfair labor prac-
tice charges which led to the issuance of the Complaint,
on January 15, 1980, in Case 25-CA-11570, the Charging
Party filed objections in Case 25-RC-7309, seeking to set
SWANSON-NUNN ELECTRIC COMPANY, INC. 841
aside an election held among Respondent's employees on
November 14, 1979. A number of the ballots in that elec-
tion were also challenged. The outcome of the election
was 13 votes for the Charging Party, 16 votes against,
and 6 challenged ballots.' On January 18, 1980, the
Acting Regional Director for Region 25 issued a Report
on Objections and Challenges and an order consolidating
the representation case with the unfair labor practice
case. The Acting Regional Director determined that the
objections and challenges presented issues of fact which
should be presented to an administrative law judge who
would be appointed in connection with the unfair labor
practice case. The complaint in Case 25-CA-11570, as
amended, alleges that Respondent violated Section
8(a)(1) of the National Labor Relations Act, as amended,
by various acts and statements, including the interroga-
tion of employees, the solicitation of grievances, the
promise of benefits, and threats to employees in the
course of the election campaign. The complaint also al-
leges that, because of Respondent's misconduct, the elec-
tion should be set aside and that, because the Charging
Party had obtained a majority of signed union member-
ship cards from the employees, Respondent should be or-
dered to bargain with the Charging Party. Respondent
denies the essential allegations in the complaint. The par-
ties filed briefs.
Upon the entire record in this case and from my obser-
vation of the witnesses and their demeanor, I hereby
make the following:
FINDINGS OF FACT
1. THE LABOR ORGANIZATION
The Charging Party (hereafter the Union) is a labor
organization within the meaning of Section 2(5) of the
Act.
11. THE BUSINESS OF RESPONDENT
Respondent, an Indiana corporation, with its principal
office and place of business in Evansville, Indiana, is en-
gaged in the business of electrical contracting and the
repair and sale of electrical motors and related products.
During a representative -year period immediately pre-
ceding the issuance of the complaint, Respondent, in the
course of its operations, purchased materials valued in
excess of $50,000 which were furnished to Respondent at
its Evansville facility directly from points outside Indiana
and derived gross revenues in excess of $500,000. Ac-
cordingly, I find, as Respondent admits, that it is an em-
ployer engaged in commerce within the meaning of Sec-
tion 2(2), (6), and (7) of the Act.
ll. THE ALLEGED UNFAIR LABOR PRACTICES
A. The Alleged 8(a)(1) Violations
During the election campaign a number of Respond-
ent's employees signed cards evidencing membership in
the Union and attended union meetings. An election peti-
I It was subsequently agreed between the parties that two of the chal-
lenges should be overruled and that employees Burns and Lewis rightful-
ly belonged in the election unit
tion was filed and an election was scheduled for Novem-
ber 14, 1979. Respondent engaged in a campaign of its
own which included five preelection speeches to assem-
bled employees from October 22 to November 13. In the
speeches, Respondent, through its president, Jack But-
trum, expressed its opposition to the Union. Buttrum in-
vited employees to visit him in his office and discuss any
questions they had with him. He promised to make him-
self "more available" than he had been in the past. He
also introduced his daughter, Kathy Buttrum, whom he
stated had helped in "improving the atmosphere of safety
around the company." He promised to make Kathy But-
trum "available . . . for any of you to discuss this matter
of the Teamsters organization." In a later speech he
stated that he had "talked with almost every one of you
personally." In his last speech he recited numerous bene-
fits of employment Respondent had provided including
such things as interest-free loans, personal safety equip-
ment, pension and insurance plans, employer-paid school-
ing, and other benefits. The General Counsel has not al-
leged that any of the speeches were unlawful and I make
no finding that they were.
The most significant allegations and those which I
found sustained by the evidence were those allegations
that President Buttrum and Vice President Lottes inter-
rogated employees about their union sympathies, and
that Buttrum, in some of those conversations, also solicit-
ed employee grievances with the implication that they
would be resolved without a union.
Paragraph 5(a) of the complaint alleges that Buttrum
interrogated employees on a number of occasions about
their union sympathies and activities. The evidence of a
number of employees whose testimony is mutually cor-
roborative supports this allegation. They testified that
they were directed to come to Buttrum's office where he
asked employees questions such as what the Union could
do for them, how they felt about the Union, how the
employees were going to vote, and why the employees
wanted the Union. He also asked for the employees' sup-
port. Although some of the questioning took place else-
where in the shop, Buttrum himself testified that he
called some 15 to 20 employees to his office to talk to
them. The questions were posed by the highest official of
Respondent and, in most cases, the questioning took
place in his office to which he had directed the employ-
ees to report. This is an atmosphere highly conducive to
coercion. Moreover, the questioning was systematic. As
discussed below, some of the interrogations were fol-
lowed by the solicitation of grievances with the implicit
promise of their resolution without a union. In these cir-
cumstances, I find that Respondent unlawfully interro-
gated employees in the violation of Section 8(a)(1) of the
Act.2
e Buttrum conceded that he asked some employees whether a "union
was needed " To the extent that Buttrum denied actually interrogating
specific employees, I find his testimony mplausible His euphemistic
remark to the effect that he "wanted to know them landl wanted them to
get to know me" is less precise and less reliable than the mutually cor-
roboratisc testimony of numerous employees that he did in fact question
them ilhouII their union sympathies
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The thrust of paragraph 5(j) of the complaint is that
President Buttrum solicited employee complaints and
grievances with the implicit promise that these com-
plaints would be resolved without the need for a union. I
find that the General Counsel has sustained his burden of
proving these allegations of the complaint. The evidence
reveals, again through the mutually corroborative testi-
mony of employee witnesses, that, during some of is
one-on-one meetings with employees wherein he ques-
tioned employees about the Union and asked for the em-
ployees' support, Buttrum solicited from them complaints
or grievances they had about their jobs. Two employees,
Robison and Piper, were solicited at locations other than
Buttrum's office. Buttrum asked employees how they felt
about their jobs and asked them what were their prob-
lems or complaints. Some of the employees spoke about
safety complaints or complaints about other aspects of
their job or benefits. Buttrum promised to resolve these
problems, particularly the safety complaints. Buttrum ad-
mitted, "I was soliciting problems with regard to safety."
He testified further as to the reason for calling the em-
ployees to his office as follows:
THE WITNESS: I felt that there were some obvi-
ous problems with management, with the way we
were doing things, and I felt that I needed to know
what those were.
I also wanted to get to know them, wanted them
to get to know me. I hoped by being able to talk to
them I could allow them to gain enough confidence
in me that they would see that I was sincere in my
efforts.
JUDGE GIANNASI: Had you ever called people
into your office before for that purpose?
THE WITNESS: Yes, but I didn't really know that
I had a problem in the motor shop.
JUDGE GIANNASI: Well, when did you know that
you had a problem in the motor shop?
THE WITNESS: When did I really know? When I
got the [Union's] demand letter and after I talked to
Rodney Moesner.
Buttrum conceded that he had never called in so many
employees to talk to them in the past and it is obvious
that he did so in October and November 1979 in re-
sponse to the union campaign.
Examples of specific conversations between Buttrum
and employees in response to Buttrum's request for com-
plaints are as follows: Employee Alvey told Buttrum he
was not sure to which foreman he should report. But-
trum told him he would work on this problem. In re-
sponse to the concern of employee Ayers over the han-
dling of insurance benefits, Jack Buttrum told Ayers that
his daughter, Kathy Buttrum, was going to start han-
dling insurance claims and that this problem would be
improved. Employee Piper complained about wages and
problems with insurance. Buttrum responded that he
could not afford to give raises in pay, but that his daugh-
ter would be handling insurance matters in the future.
Employee Hoffman asked about tools and better wages.
Buttrum asked Hoffman to see him about tools but did
not say anything about improving wages.
Other complaints by employees Hoffman, Ivie, Robi-
son, and Piper concerning safety matters were met with
responses that his daughter, Kathy, was responsible for
safety in the shop and would be resolving some of their
problems. Kathy Buttrum was indeed the safety officer
for Respondent, and I find, based on her credible and
clear testimony, that she was responsible for safety mat-
ters well before the union campaign and that she under-
took periodic safety inspections in the shop. In his testi-
mony, Ivie acknowledged that he knew Kathy Buttrum
was responsible for safety matters but, in his meeting
with Jack Buttrum, he questioned her efficacy. Three
employees, Hoffman, Piper, and Ivie, testified that, short-
ly after their meetings with Jack Buttrum, Kathy But-
trum came into the shop and inquired about specific
safety problems. They told her about the need for
gloves, fire extinguishers, and safety blankets. They also
told her about obstructions to a fire exit and flammable
gas or kerosene containers. Two days later, Kathy But-
trum brought the material to the men. Ivie testified:
Yes. She brought a fire blanket in in a box that
she'd purchased that day, I think. And she brought
another-she brought in a ten-pound fire extinguish-
er, some welding gloves for Dave, and she request-
ed that we paint the kerosene cans which go in the
steam-which boils water. That's about it.
The obstacles were also cleared from the shop. Piper
helped Kathy Buttrum clear obstacles and clutter from
aisles and exits. Piper testified that Bill Burns joined in a
conversation between him and Kathy Buttrum about
what work had to be performed. He gave few details
about Burns' role in this discussion except to say that
Burns asked him to show Kathy Buttrum around.
Kathy Buttrum testified credibly that she performed
safety inspections about once every 2 months. In July,
she had an inspection and brought the fire marshall
through the shop. She testified that, in early November,
after the inspection, she spent a few days with employee
Piper clearing the shop area of clutter and bringing it up-
stairs. She decided to perform this cleanup operation on
her own. The clutter had accumulated since her last in-
spection. She had a similar assignment in September
where she worked with another employee in what was
in effect a toolroom inventory.
President Jack Buttrum undertook the solicitation of
employee grievances in the course of questioning em-
ployees about their union sympathies. Buttrum was
trying to impress on employees his view that a union
was not necessary. His solicitation of complaints was un-
usual and clearly prompted by the Union's campaign. In
this context, the evidence shows that Jack Buttrum solic-
ited complaints and grievances from employees with the
implicit promise that they would be resolved without the
need for a union. Such solicitation is violative of Section
8(a)(l) of the Act. 3
a Par 50) of the complaint also alleges that unlawful solicitation was
undertaken on November 9, 1979, by Kathy Buttrum. The only testimony
which identified the date as November 9 was that of employee Piper
who testified that he escorled Buttrum around to point out needed
Continued
SWANSON-NUNN ELECTRIC COMPANY, INC. 843
Paragraph 5(a) also alleges that Foreman and Vice
President Lottes interrogated employees about their
union sympathies and activities. The evidence shows that
Lottes approached a number of employees and asked
them what they thought about the Union or what they
thought they would get from the Union. Many of these
employees wore union buttons and Lottes asked why
they were wearing them. Although Lottes' testimony
amounts to a general denial that he engaged in coercive
interrogations, he conceded he may have questioned em-
ployees. For example, he conceded he asked employee
Shane why he was wearing a union button and that he
asked employee Ayers what his thoughts were. I find
that the mutually corroborative testimony of the employ-
ees established that the inquiries were made by Lottes in
the manner they described. In most cases the conversa-
tions included legitimate argument about the pros and
cons of supporting the Union. However, Lottes, a high-
ranking official of Respondent, approached the employ-
ees directly and his questions probed the strength of their
commitment to the Union. They included management's
strong views that support of the Union would not be fa-
vored. The questioning was not isolated. President But-
trum knew that Lottes was going through the plant talk-
ing to the employees about the Union and he gave him
instructions about what he could say to the employees.
In these circumstances, I find that Lottes' interrogations
were part of Respondent's systematic effort to probe the
depth of union sentiment in the shop. They thus had the
natural tendency to coerce employees and were violative
of Section 8(a)(1) of the Act.4
Paragraph 5(b) alleges that Buttrum promised im-
proved insurance and other benefits if employees aban-
doned the Union. Without much guidance from the Gen-
eral Counsel, I view these allegations as different from
those in paragraph 5(j) which were intertwined with the
solicitation of grievances and their implied resolution. In
response to Respondent's motion to dismiss, the counsel
changes and that he helped her remove certain obstacles from aisles and
other open spaces. I am not persuaded that her conduct amounted to an
independent violation of the Act. Nothing she said or did in her conver-
sation with Piper was tied in to the Union. Nor did she mention the
Union to Hoffman and Ivie in conversations with them in early Novem-
ber. At most, her conduct was a followthrough on the implicit promise of
Jack Buttrum that he would have his daughter check the safety problems
in the shop. However, Kathy Buttrum was the safety officer in charge
and she did make periodic safety inspections. She decided to remove the
clutter with employee Piper on her own. Apart from their timing, her
inquiries of the employees were not so interwined with an effort to
combat the Union that her conduct should be considered an independent
violation of the Act. She was simply an instrumentality by which her
father imparted upon employees the impression that he was receptive and
responsive to their complaints about safety. Nor was her conduct viola-
tive of the Act in any other manner. The General Counsel did not allege
that her conduct on November 9 or any other date amounted to a grant
of benefits.
4 There is evidence that Barbara Forester, President Buttrum's secre-
tary and the secretary of the corporation, asked employee James Ivie
what he expected from the Union He was earing a union button at the
time. I view this single incident as an isolated one which, because of For-
ester's relatively low-level position, did not create an atmosphere of coer-
cion. There is no evidence that Ivie viewed Forester as an authority
figure or even knew she was a corporate officer. Forester was simply all
employee and not a member of the managerial hierarchy of Respondent
Moreover, Ivie's response was not evasive He told Forester why he as
for the Union candidly and without fear of retaliation. I shall therefore
dismiss this allegation of par 5(a) of the complaint
for General Counsel identified only two pieces of evi-
dence concerning improved insurance benefits. This was
the testimony of employees Piper and Ayers. I have con-
sidered this testimony in connection with the solicitation
of grievances. Ayers' testimony concerning improved in-
surance dealt with the handling of insurance, presumably
claims or existing benefits, not increased or improved
benefits. There was no outright promise of new benefits
by Buttrum. Likewise, employee Piper's testimony was
that he told Buttrum about his desire for better insurance
coverage. Buttrum made no specific promise to give im-
proved benefits, but simply told him that his daughter
was going to take over the handling of insurance mat-
ters. In neither case was there sufficient evidence to es-
tablish a promise that benefits would be improved if the
Union were rejected, as distinguished from the implicit
promise that complaints might be resolved without the
need for a union.
Although the General Counsel does not specifically
mention the testimony of employee Spencer as applying
to this paragraph of the complaint, his testimony could
arguably be read to suggest that Buttrum offered to pro-
vide him with a thousand-dollar loan and a lawyer to
help with his personal problems. I found much of Spen-
cer's testimony unreliable and ambiguous. It was also im-
plausible. For example, Spencer testified that, after a dis-
cussion with Buttrum wherein Spencer insisted he was
voting for the Union, Buttrum stormed out of his own
office. Buttrum's testimony about the loan and the
lawyer is more plausible. When Spencer revealed his
personal problems to Buttrum, Buttrum reminded him of
Respondent's loan program and suggested he call But-
trum's lawyer. Buttrum did not offer to pay the lawyer's
fee. There was no offer of benefit in these suggestions.
I could uncover no other evidence that Buttrum prom-
ised improved benefits except for the testimony of Mike
Brown which the General Counsel alleged went to an-
other paragraph of the complaint. I turn now to this alle-
gation.
Paragraph 5(1) of the complaint, as amended, alleges
that Jack Buttrum "promised employees a better future
with the Company and more job opportunities with the
Company." In his response to a motion to dismiss at the
end of the presentation of his case, counsel for the Gen-
eral Counsel stated that he relied solely on the testimony
of employee Mike Brown to support the allegation.
Brown testified that, in a conversation with Buttrum, the
latter asked him where he wanted to be in the Company
and Brown answered that he wanted to be in sales or
purchasing. Buttrum asked Brown what Brown thought
of the Union and why he thought the employees needed
a union. Brown replied that the Union would obtain
better working conditions and job security. After consid-
erable prodding and leading questions by counsel for
General Counsel, Brown also testified that Buttrum said
he thought Brown had a future with the Company and
"there was a possibility that I might be able to go to
sales or purchasing and he would see what he could do."
Buttrum suggested that Brown take a Dale Carnegie
course and he made arrangements for him to enroll in
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the course. Brown went to a few meetings, but later
"dropped out of it."
Buttrum conceded he might have questioned Brown
about the Union. He testified that he talked to Brown
about his future with the firm. When Brown indicated an
interest in sales, Buttrum spoke about the usefulness of a
Dale Carnegie course. He did not deny that Respondent
paid for the course. According to Buttrum, Respondent
has in the past paid for the schooling of employees, in-
cluding the payment of a Carnegie course for another
employee who became a salesman. Respondent does
have a policy of paying educational expenses for employ-
ees if Respondent sees a direct benefit for employees.
The evidence does not establish that Buttrum promised
Brown a better future or job opportunity in exchange for
rejecting the Union. The evidence simply shows a dis-
cussion about Brown's future with Respondent. No
promises were made that Brown would obtain the bene-
fits of a better job. The evidence does show that, as a
result of the conversation, Brown enrolled in a Dale Car-
negie course and attended such a course for a short time
at company expense. This was consistent with Respond-
ent's policy that employees were permitted to take
courses at company expense. In the past Respondent had
urged employees to take this course if they had an inter-
est in sales and had paid for the course. The conversa-
tion between Buttrum and Brown left open the possibil-
ity of a better job if Brown completed the course but it
did not guarantee it. Nor was such a possibility tied to
support of Respondent in the election; it was tied to
completion of the course. In view of Respondent's past
and existing practice in financing self-improvement
courses for its employees as a step toward upward mobil-
ity, the General Counsel has not shown by a preponder-
ance of the evidence that the offer amounted to a specif-
ic promise of a "better future" or "job opportunities" or
a benefit of any kind for rejecting the Union. 5
Paragraph 5(g) of the complaint alleges that, on No-
vember 5, 1979, Jack Buttrum threatened his employees
that he would not grant wage increases unless employees
rejected the Union. I have searched the record and find
no evidence to support this allegation. The General
Counsel's brief does not discuss the evidence in connec-
tion with this allegation. I shall therefore dismiss this
aspect of the complaint.
The complaint also alleges (pars. 5(a) and (d)) that
Foreman Bill Burns interrogated employees and threat-
ened that Respondent "would change employee job clas-
sifications" if employees voted for the Union. The only
evidence I can uncover which remotely relates to these
allegations is testimony by employee Larry Piper that, a
week before the election, he complained to Burns about
an inhalation problem and that Burns replied that if Piper
did not like it he could quit and testimony by employee
Alvey that Burns asked him, "in a joking manner," what
he expected to get from the Union. According to Alvey,
another employee, Terry Axton, was present. Axton did
not testify. Alvey, who was wearing a union button at
5 Of course, I have found generally that Buttrum solicited grievances
with the implicit promise of their resolution without a union. The con-
versation with Mike Brown was certainly another example of that type of
solicitation of complaints and, as such, was violative of the Act.
the time, replied that he thought the employees would
get better benefits. Burns said he did not "think" the
Union "would get that." Alvey said other union motor
shops such as General Electric were "being run very
well." Burns said he should go work for General Elec-
tric. Alvey said he did not think he could "go far" be-
cause of his inexperience. According to Alvey, Burns re-
plied that "in a union shop, there is no classes, that ev-
eryone was equal, that I would not be moved up to the
pay scale I was at."
Nothing in Piper's testimony supports the complaint
allegation. Alvey's testimony is lacking in any coherence
or detail except in establishing an interrogation. Burns'
remarks do not "threaten a change in job classification,"
and, in view of Alvey's remark that Burns' question was
presented in a joking manner, I do not believe that the
interrogation was coercive or violative of Section 8(a)(1)
of the Act. Alvey engaged in verbal banter with Burns
without showing that he was intimidated in any way and
Burns was not shown to have threatened or coerced any
other employees. I shall therefore dismiss the allegations
that Burns violated the Act.6
Paragraph 5(c) alleges a rather specific promise of
benefit; namely, that President Buttrum promised em-
ployees he would assist them in becoming members of an
electrician apprentice program if they rejected the Union
as their bargaining agent. Although there was testimony
on the part of three employees, Alvey, Shane, and Spen-
cer, that Buttrum suggested he could help them get into
the electrician apprenticeship program, they nowhere
testified that Buttrum promised to get them in the ap-
prenticeship program if they rejected the Union. Buttrum
did not deny that the apprenticeship matter was brought
up in the course of his conversations with these employ-
ees to find out the employees' ambitions. Shane testified
that he had once applied for the program, had passed his
test, and had heard nothing further. Buttrum made a
phone call but received no resolution and offered to
check back again. Spencer testified that Buttrum told
him his age was a factor against his being accepted in the
program and that he should wait a "year or so." Alvey
conceded that Buttrum said he could not guarantee
Alvey a place in the program but stated that he had a
good chance to get into the program. Buttrum also told
Alvey that he could help him find out more information
about the program and to call Buttrum after the election
about obtaining such information. Later, according to
Alvey, Buttrum spoke to Alvey again about the appren-
ticeship program and asked if he had thought about it
further; stated that the apprenticeship program would be
of greater benefit than the Union. I do not view the evi-
dence as a promise that Buttrum would grant the benefit
of placing employees in the apprenticeship program if
they rejected the Union. He simply offered to help these
6 Par. 5(j) alleges that, on November 9, 1979, Burns promised employ-
ees increased benefits and terms and conditions of employment. I have
uncovered no evidence supporting this allegation except perhaps that
which involves testimony by Piper that Burns joined a conversation be-
tween Kathy Buttrum and him and asked Piper to show Kathy Buttrum
around and point out safety changes that needed to be accomplished.
Burns' conduct in this respect neither amounts to a solicitation of com-
plaints nor a promise of benefit.
SWANSON-NUNN ELECTRIC COMPANY, INC. 845
employees explore the possibility of getting into the pro-
gram. He was not offering a benefit which was within
his control to grant. Buttrum had been chairman of the
joint employer-IBEW apprenticeship program and knew
how it operated. He credibly testified that he could not
get people into the program; he simply knew how to get
information about the program. He had channeled sever-
al of his motor shop employees into this program in the
past. In these circumstances, it is clear that Buttrum was
following past practice in advising employees of appren-
ticeship opportunities and that he was not in a position to
guarantee the implementation of the benefit. According-
ly, I do not find that Respondent promised employees a
benefit for rejecting the Union within the meaning of
paragraph 5(c) of the Complaint. 7
Paragraphs 5(e) and (f) of the complaint allege that
Richard Lottes threatened employees with discharge and
cancellation of the existing employee pension plan if they
voted for the Union. The evidence apparently relied
upon is as follows: Employee Kenny Ayers, who had
worked for Respondent for 23 years, testified that Lottes
approached him at his work station on November 1,
1979, and, after engaging him in a conversation about the
union button he was wearing, said that Ayers should
think about his pension that he would be getting in about
8 years. According to Ayers, Lottes said, "You mean
you'd just throw that away." Ayers said, "Yeah, I can
win one and lose one." Lottes responded, "I know you
are a hard-headed Dutchman. I know you got money."
After further discussion about Respondent's pension plan
and social security, Lottes told Ayers to "think about it."
Lottes testified to the same conversation and said that
he and Ayers discussed the pension plan. He testified: "I
reminded him of the fact that our pension plan is written
as a nonunion hourly pension plan. That there was a pos-
sibility of him losing the company input into this pension
plan. I asked him to give that some thought, think about
the whole thing before he made his decision." Lottes
characterized this as a "casual" conversation.
Under either view of the evidence, the conversation
did not amount to a threat of discharge. Nor did it
threaten that Respondent would cancel its pension plan if
Ayers voted for the Union. Respondent had a bargaining
relationship with a union in the construction industry
and it is well known that some unions, particularly in the
construction industry, fund their own pension plans
through joint employer and union trusts. It was a legiti-
mate point for Lottes to raise that Ayers should consider
how a collective-bargaining agent would treat the exist-
ing pension plan. Nothing in either version of the con-
versation suggested that Respondent would itself cancel
the pension plan or that it would do so in retaliation for
employees voting for the Union. I shall therefore dismiss
the allegations of a violation in paragraphs 5(e) and (f) of
the complaint. 8
I In view of the failure of the counsel for the General Counsel to
argue specifically that these incidents related to anything other than par
5(c) of the complaint and in view of the rather specific allegation in par
5(c), which obviously covered the apprenticeship matter. I do not consid
er these incidents under par 5(J) ith respect to the solicitation of grie -
ances.
"There is additional lestimon, by employee Larry Piper which could
be viewed as relating to par 5(fl According to Piper. on one of to hoc-
Paragraph 5(m) of the complaint alleges that on var-
ious dates in October 1979, Jack Buttrum threatened em-
ployees with "discharge and other unspecified reprisals if
they selected the Union." In response to a motion to dis-
miss at the end of the General Counsel's case, the Gener-
al Counsel agreed that the only evidence he relied on in
support of this allegation was the testimony of employee
Evan Barnes. Later he stated that he was also relying on
the testimony of Mike Shane. The evidence is as follows:
In the course of an interrogation of Barnes by Buttrum
in the latter's office, Buttrum told Barnes to examine
what benefits he had and what he thought the Union
would accomplish for him. According to Barnes, But-
trum said he wanted him "to look at it very carefully
before I made my decision." Even accepting Barnes' ver-
sion of this incident as true, I cannot find that Buttrum's
remarks threatened discharge or any other reprisal for
Barnes' support of the Union.
Shane testified that, in the course of an interview in
Buttrum's office in late October 1979, Buttrum told him
that if the Union came in Buttrum could not afford to
keep the motor shop open because it was not "bringing
in enough money" and that he would "probably have to
shut the doors down." He also testified that Buttrum told
him he wanted to know if he could count on Shane to
reject the Union. Shane said he did not know "yet." He
confirmed the conversation on cross-examination al-
though he said nothing about Buttrum having to "shut
the doors down."
Buttrum testified that he had the conversation with
Shane but denied he said anything about closing the
motor shop because of the cost involved. He elaborated
that he was publicly committed to building a new facili-
ty, a commitment which was made well before the
Board election. Although Buttrum was questioned on
cross-examination about some aspects of Shane's testimo-
ny he was not asked about the alleged remarks about
closing the motor shop.
I believe Buttrum's denial is more reliable than Shane's
testimony. Buttrum was committed to a continuation of
the motor shop. In his preelection speeches he had not
even hinted at closing the shop. Furthermore, Buttrum
viewed Shane as uncommunicative in their conversation.
Having observed the demeanor of both witnesses, I do
not believe that Buttrum, who is not shown to have
made any other threats in this case, would have made an
overt threat to Shane. Shane was not particularly a
leader in the union effort and my assessment of his de-
meanor was consistent with Buttrum's testimony about
him being uncommunicative. Buttrum's testimony on this
issue was not shaken by cross-examination. The alleged
casimins when Lotres spoke iar him about the Union in early November
197', I.ttes asked him whether he had considered his pension Piper re-
plied that "I wouldn't lose what I had put into it" Lottes' testimony was
far rlire reliable than Piper's and does not include mention of the petn-
,.1m plil Howsever, even accepting 'iper's testimony nothing in I ttes'
remarks illl be conslrued as a threat b Respondent to cancel the plan
Ildeed, Plpl s retort as that h did not beliese. he ould Iose anything
if th e t iil n clni i and I oitics did not dllspute 'iper's plnt [.oltes
ended both conversations wilh Piper by telling him to make up his own
nminll aholil the lUnion
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
threat was out of character for Buttrum and I do not be-
lieve he made it.
Paragraph 5(i) alleges that, on October 15, 1979,
Lottes informed employees that it would be futile for
them to select the Union as their bargaining representa-
tive. The only evidence in support of this allegation that
I can uncover is the testimony of employee Mike Shane
that Lottes approached him on October 15 and stated as
follows:
He said he wanted to know what I thought the
union had to offer, said they'd been getting along
fine without the union. I told him I thought the
union could get more money from the company for
the employees, better benefits. He said I could go
places at Swanson and he said it just takes a while,
it took him a while to get where he's at. And he
just wanted to know if he could count on me. And
I told him I didn't know.
Lottes testified as follows about the Shane encounter:
Well, I asked him what, why he was wearing the
button, what he thought the advantage would be. I
think his answer was "money." And I discussed
with him our review program along with fringe
benefits. I asked him to think it over. I asked him
whether he had discussed it with his father. I asked
him whether he thought he should. And to think it
over and make up his mind.9
Although I found Lottes' testimony to be more coher-
ent and plausible than that of Shane, I cannot find that
either view of the evidence supports the allegation in the
complaint. Lottes' remarks do not suggest that support of
the Union would be futile or that Respondent's antiunion
posture would be the cause for such futility.
Paragraph 5(i) also alleges that Buttrum made similar
statements on November 5 that selection of the Union
would be futile. The testimony apparently in support of
this allegation comes from employee Robison to the
effect that, after a conversation in which Buttrum ap-
proached him and interrogated him about his union
button and why he wanted the Union, Buttrum stated
that he did not have to negotiate with the Union. His
entire testimony on this point is as follows:
Q. Directing your attention to about ten days
before the election, do you recall talking with Jack
Buttrum?
A. Yes, I do.
Q. Where did you talk with him?
A. We talked up-He met me at the edge of the
Single Phase Department upstairs.
Q. Briefly, what was said?
A. Well, he approached me and said he'd like to
get the union button off me and I took it off and
handed it to him.
Q. What did he say?
A. He said he didn't really want it, he said, that I
probably had more where that came from. And I
9 Neither witness' testimony was subjected to cross-examination on this
point.
said, "Yeah, I did." He asked me what I wanted out
of the union and why I wanted a union. And I told
him because of safety and wages. We talked about
how his daughter was doing the-was the Safety
Director and doing the best job she could. He also
mentioned that OSHA had been heavy on his heels
and he was trying to get around everything but it
was impossible.
I told him, I said, he had supervisors and oh,
foremen, and other people in charge and it should
be taken care of but it wasn't.
And then we talked a little bit about wages and
he said he couldn't pay any more and even if the
union got in, he wouldn't pay any more because he
knew what they'd do.
Q. What did he say further, if you remember, in
this conversation?
MR. ALLEN: If anything.
JUDGE GIANNASI: If anything?
By Mr. Fisher: (Resuming)
Q. If anything.
A. He mentioned the fact that even if we had a
union, he didn't have to negotiate with us, that he'd
been on boards before-trading or negotiation
boards before and he knew how it went. And he
wouldn't talk to us about it.
Q. What further was said, if anything?
A. I remember one-I asked him about if he was
against the unions per se or just against the Team-
sters and he said, "That's a good question."
Robison was not cross-examined on this conversation.
Buttrum's version of the conversation was different
and he denied telling Robison that if the Union got in he
would not have to negotiate with it. His testimony was
as follows:
Q. And what did you say to him and what did he
say to you?
A. As I remember my conversation to him, "Erv,
I'm having a little bit of a hard time understanding
your desire for this Teamster Union. My under-
standing, you are a minister, you have a church that
you work at. And I understand you're thinking
very shortly of leaving Swanson-Nunn as soon as
you get a full-time church, becoming a full-time
minister."
He said, "Yes, I will be leaving as soon as that
happens."
I mentioned that he had left, he'd taken a church
in Princeton and it had not happened. For one
reason or another he left the church and came back
to Evansville. And I understood that he was still
looking and would find one.
And I told Erv that I knew what he was interest-
ed in and I guess I wondered a little bit about it. I
sympathized with him when I wanted him to know
that I had committed all my resources to Swanson-
Nunn and that I really hoped that I would continue
to have the opportunity to manage it without an
outside organization causing me to lose some of my
management possibilities.
SWANSON-NUNN ELECTRIC COMPANY. INC. 847
And I said, "Erv, I want you to know and I
want you to know this strong that I might disagree
with the Teamsters coming into Swanson-Nunn but
I most certainly do not argue or disagree with the
right of the employees of Swanson-Nunn to select if
they want to."
He asked me if I have any problem with unions
and I said no. And he said, "How is it, what do you
have against the Teamsters?" And I said, "Nothing
other than I surely like to operate my own busi-
ness."
Q. Do you recall anything else that was said in
this conversation?
A. No.
Q. Did Mr. Robison have on a union button?
A. Yes.
Q. Did you tell Mr. Robison that if the union got
in you wouldn't have to negotiate with them?
A. No.
Q. Was there any discussion of negotiation in
your meeting with Mr. Robison?
A. No.
On cross-examination, Buttrum repeated his denial but
did candidly concede that he may have said he was on
negotiation boards before.
I believe Robison may have misunderstood Buttrum. I
do not believe that Buttrum, who had had experience in
collective bargaining with the IBEW and who read care-
fully crafted speeches to employees during the preelec-
tion period, would have made the brash statement that
he would not negotiate with the Union. Such a statement
was not consistent with my assessment of Buttrum as one
who took care with his statements and who was more
concerned with convincing employees to keep the Union
out rather than speculating over what would happen if it
was victorious. I shall therefore dismiss this aspect of the
complaint.
Paragraph 5(k) of the complaint, as amended, alleges
that Foreman and Vice President Richard Lottes warned
employees that, if they selected the Union as their bar-
gaining representative, bargaining "would start from
scratch." The only evidence on this issue is the testimo-
ny of employee Ken Alvey who said, in response to
Lottes' questions when he approached Alvey at his work
station, that he believed that everything was negotiable
with a union. Lottes agreed but said, according to
Alvey, "It would be negotiable from the standpoint of
starting from scratch. That we would start from scratch
and we wouldn't have the benefits we do have now."
According to Alvey, Lottes continued by saying that he
did not "believe" that Respondent could afford more
money and did not think the Union would be able to get
him more money. He also told Alvey to use his best
judgment and make up his own mind about the Union.
Lottes denied he made any statement about bargaining
from scratch. He did relate a conversation he had had
with Alvey about negotiations. He told Alvey that "with
a union contract we would negotiate." He also discussed
benefits and told Alvey that Respondent's benefits were
as good or better than most contracts. He ended the con-
versation by telling Alvey to "think it over and make his
own decision."
I credit Lottes' testimony that he did not make the
"bargaining from scratch" statement. Respondent did
have a collective-bargaining relationship in another phase
of its operations which would make it unlikely that its
officials would make any such rash statements. More-
over, Lottes was not the type of man who would make
such statements. His account of the conversation with
Alvey is more coherent in all respects. He also impressed
me as a forthright and honest witness. Alvey, on the
other hand, was led by counsel for the General Counsel
during some of his testimony and he did not appear to
me to be as reliable in his recollection of this particular
conversation as Lottes. Accordingly, I shall dismiss para-
graph 5(k) of the complaint.' °
B. Unit Issues
The status of four individuals whose ballots were chal-
lenged during the Board election are at issue: Leo But-
trum, Sr. (father of President Jack Buttrum), Victor
Ross, Rodney Moesner, and Don Ramsey. The status of
these individuals is also at issue in connection with the
General Counsel's request for a bargaining order which
has, as a prerequisite, the establishment of majority sup-
port in an appropriate unit. The General Counsel wants
Buttrum and Ross out of the unit and Ramsey and
Moesner in. Respondent takes the opposite position. I
take a third. I find that all four belong in the unit.
The elder Buttrum is 84 years old. He usually works
30 to 32 hours per week and is paid only for the hours
he works. He reports to the manager of the warehouse.
His duties include general yard work and filling up
trucks and cars with gas. He is not a stockholder, was
not involved in the firm when his son purchased the
business, and is not related to other stockholders. His
son, Jack, owns 90 percent of the stock of Respondent.
The elder Buttrum lives next door to his son Jack in a
home which he, the elder Buttrum, owns. His son does
not make other payments to him or support him in any
way. The elder Buttrum is financially independent of his
son. In these circumstances, I find that Leo Buttrum, Sr.,
is not so closely aligned with his son, the president, so
that he should be disqualified from being included in the
unit. His interests are more clearly aligned with those of
the other workers in the unit and there is no reason to
exclude him from the unit.
The General Counsel argues that Victor Ross should
be excluded from the unit as a supervisor. I disagree.
Victor Ross is no longer employed but he was employed
at the time of the election as a salaried employee. He
was hired as a mechanic. According to Jack Buttrum,
whose testimony provided virtually the only evidence on
this issue, Ross worked the hours that were required
when a truck was out of order. He was a longtime em-
ployee who was required to work 40 hours, but his
hours would vary day to day. He was primarily a me-
chanic but he also repaired construction tools and vehi-
0n At he hearing I ali,o dismissed par 5(h) of the complaint hich al-
leged Ihat Respondent created an impression of surveillance hb irtue of
a conserailoll hetwccn t ottcs land employee arr Piper
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
cles on jobsites. Before the election Ross also was given
the responsibility for watching over the toolroom. When
Herman Dew, who was in charge of the toolroom, was
away, Ross sometimes filled in. When Dew hired people
for the toolroom Ross was not consulted. There is no
evidence that Ross had supervisory authority over any
particular employee or that he utilized any of the indicia
of supervisory authority set forth in Section 2(11) of the
Act by using independent judgment. He was simply a
skilled employee. I therefore find that Ross belonged in
the unit.
Contrary to Respondent, I find that neither Moesner
nor Ramsey is a supervisor within the meaning of the
Act. Both were hourly paid workers. Moesner was clas-
sified as a repairman at the time of the election. He was
subjected to yearly evaluations, one of which stated that
he was at the "top of the labor grade scale." On Septem-
ber 13, 1979, he received a written notice of "verbal rep-
rimand" for excessive absenteeism from his proper work
area during working hours. The notice stated that "any
visits to warehouse must be with verbal approval" of his
immediate supervisor. On December 10, 1979, a notation
indicated that he was given a raise in pay and designated
"working foreman" of the winding department. In Feb-
ruary 1980, a notation in his file indicated that he was
"new at foreman's job, a little insecure, but improving
steadily." President Buttrum conceded that written
warnings are not normally given to supervisors.
Moesner testified that, sometime in 1979, Winding De-
partment Supervisor Al Gee moved downstairs and Gee
told him to "more or less mind the store while he was
gone." At the time Moesner was working on the first
shift and the winding department contained four other
employees. The night-shift winding department included
Jackie Montgomery and one other employee. Moesner
and Montgomery performed the same type of work al-
though Montgomery sometimes worked on the day shift.
At the time, Moesner's responsibility was to "see what
work was left over from the night shift." He testified, "I
was supposed to do my work and if anybody needed any
help, I was the senior man upstairs, I had the most expe-
rience, I was to help around." With respect to assign-
ments, Moesner testified that if an employee could not
handle a job he would give it to someone who could, but
most of the time the employees "picked up their own
work . . . first come first serve." When there is a prior-
ity or rush job, it is Gee, not Moesner, who decides
which is a rush job. Moesner also testified that on one
occasion he told Al Gee that one of the employees,
Keith Baker, deserved a raise. Baker apparently received
the raise. However, Moesner was not consulted with re-
spect to the raises of other employees in the winding de-
partment, and he had no authority to give employees
written reprimands.
Moesner testified that he received no increase in pay
when Gee went downstairs and he performed additional
duties upstairs in the winding department. Only on De-
cember 3, 1979, after the election, was he told he was a
foreman-for the first time-and given a wage increase.
At this time Jack Buttrum held a meeting of employees
and told them for the first time that Moesner, Ramsey,
and Montgomery were foremen.
I find that Moesner did not have the supervisory indi-
cia set forth in Section 2(11) prior to December 3, 1979,
and, therefore, he was an employee at the time of the
election. His authority to assign work and direct employ-
ees was that of an experienced employee, not as a repre-
sentative of management utilizing independent judgment.
He had no authority to reprimand employees. His one at-
tempt to get a raise for an employee was an isolated
piece of evidence. He was not consulted on other raises.
Significantly, during the period he supposedly was a su-
pervisor, Moesner was reprimanded for leaving his work
area. And both he and the employees generally were
first told he was a foreman after the election. Finally,
employees Lemos and Van Hoang testified that they did
not regard Moesner as a foreman and Jack Montgomery,
who had the same responsibilities as Moesner on the
night shift, was included in the unit.
Donald Ramsey was classified as the warehouse night-
shift foreman prior to the election. His promotion to
foreman of the night shift was also announced to em-
ployees by Buttrum at the postelection meeting of De-
cember 3, 1979. Ramsey was hourly paid and performed
physical work. At first there was only one other employ-
ee in the warehouse working with Ramsey. Later, three
employees worked in the warehouse on the night shift.
When he first went to the night shift in June 1977,
Ramsey was told that he "would be in charge and . . .
would tell other things to do to keep them busy." He has
assigned employees to particular jobs when "the day
shift foreman or something, came in and told me .... "
Ramsey testified that he talked to one employee about
his tardiness and deducted time from his timecard when
he was late. That employee was subsequently terminated
but Ramsey had nothing to do with the termination.
Ramsey also wrote up reviews of the work of two em-
ployees and gave them to the warehouse manager. He
also recommended that one employee be hired; he was
Ramsey's relative by marriage.
Ramsey testified that he did not regard himself as a
foreman before December 3, 1979, because he performed
physical work. He testified, "I do just like anybody else
does on night shift." Although he gave written evalua-
tions of employees he never signed any reports or re-
views and was not present during the reviews. The
warehouse manager handles the timecards and reviews
the timecards for the second-shift employees every week.
Ramsey never hired or fired or transferred or suspended
employees. After Ramsey recommended the hiring of his
relative, the warehouse manager interviewed and hired
him. Ramsey was not consulted further and was not
present for the interview. When one of the night-shift
employees, Thornton, was laid off, Ramsey was not con-
sulted and did not even learn about the layoff until the
next day. Ramsey has never written up any employee for
disciplinary reasons and Ramsey himself received a writ-
ten warning as late as February 26, 1980.
I find that Ramsey was not a supervisor at the time of
the election. He did not use his independent judgment in
directing or assigning employees. His duties were minis-
terial. Even his notations on the timecard of the employ-
ee who was habitually late were simply a reflection of
SWANSON-NUNN EL.ECTRIC COMPANY, INC. 849
facts. If he did not make the notation, the employee
would have been paid. He simply wrote, for example,
"one-half hour late" on the timecard. He followed a
chart given to him by the warehouse manager in docking
this particular employee and he talked to the warehouse
manager about the employee's tardiness problem. Signifi-
cantly, when the employee was terminated, Ramsey was
not consulted and he has never written anyone up for
discipline. Ramsey's recommendation of a particular em-
ployee for hire was simply a suggestion initiated by him.
He was not consulted by management either before or
after the man was hired. Another employee was laid off
from his shift and he was not even consulted beforehand.
These incidents clearly show that Ramsey's role in per-
sonnel matters did not reflect the exercise of consistent
supervisory authority, utilizing independent judgment, in
the name of management.
In view of my findings set forth above, I find that But-
trum, Ross, Moesner, and Ramsey properly belong in the
unit, that their votes should be counted, and that the
cards of Moesner and Ramsey should be counted. For
the purposes of determining whether the Union had a
card majority, in connection with the General Counsel's
request for a bargaining order, I find that the unit is
composed of 33 employees.
C. The Election Objections
I find that Respondent's unlawful interrogations and
solicitation of grievances created an atmosphere of coer-
cion sufficient to destroy the laboratory conditions of a
free election on November 14, 1979. I therefore recom-
mend that the election be set aside and that the represen-
tation case be severed and remanded to the Regional Di-
rector for Region 25 for him to direct the holding of a
new election when he deems it appropriate.
D. The Refusal To Bargain and the Request for a
Bargaining Order Remedy
In view of my findings and the stipulation of the par-
ties, I find that the appropriate unit in this case-the
election unit agreed upon by the parties-consists of 33
employees. Of these, 23 signed cards designating the
Union as bargaining representative from September 5 to
September 18, 1979." Actually, the cards were member-
ship cards and most of the employees paid initiation fees
and dues when they signed the cards. Respondent attacks
the cards on the ground that they were tainted because
many were secured through the efforts of alleged super-
visors, Moesner and Ramsey. This contention fails be-
cause I have found Moesner and Ramsey to have been
employees during the period prior to the election when
the cards were obtained. Respondent also alleges some
impropriety because the employees paid dues and initi-
ation fees when they turned in the cards. I fail to see
how this destroys the intent of the employees to desig-
nate the Union as bargaining representative. If anything,
the willingness of the card signers to become members
and pay for such membership makes their adherence to
the Union all the more binding. See Aladdin Hotel Corp.,
" All the cards except one were signed before September 17, 1979,
when the Union requested recognition
d/b/a Aladdin Hotel, 229 NLRB 499 (1977), denied on
other grounds 584 F.2d 891 (9th Cir. 1978).
Thus, the Union had a majority of signed membership
cards when it demanded recognition in a letter to Re-
spondent dated September 17, 1979. Respondent an-
swered, on September 24, 1979, declining recognition
and offering to resolve the matter by a Board election.
The election was, of course, held and, as I have indicat-
ed, the election is to be set aside.
The General Counsel requests a bargaining order to
remedy the Respondent's refusal to bargain and its unfair
labor practices which resulted in the setting aside of the
November 14, 1979, election. I do not agree with the
General Counsel that a bargaining order should issue in
this case.
The standards for determining whether the unlawful
conduct found herein requires a bargaining order are set
forth in N.L.R.B. v. Gissel Packing Co., Inc., 395 U.S.
575 (1969). There, the Supreme Court held that such an
order would be an appropriate remedy for: (1) "'excep-
tional' cases marked by 'outrageous' and 'pervasive'
unfair labor practices . . . of 'such a nature that their co-
ercive effects cannot be eliminated by the application of
traditional remedies, with the result that a fair and reli-
able election cannot be had,"' and (2) "less extraordinary
cases marked by less pervasive practices which nonethe-
less still have the tendency to undermine majority
strength and impede the election processes." The Court
also noted that there was a "third category of minor or
less extensive unfair labor practices, which, because of
their minimal impact on the election machinery, will not
sustain a bargaining order." However, the Court contin-
ued, "There is . . . no per se rule that the commission of
any unfair labor practice will automatically result in a
§8(a)(5) violation and the issuance of an order to bar-
gain." (395 U.S. at 614-615.)
I find that the unfair labor practices in this case were
not so serious that they cannot be eradicated by tradi-
tional remedies or that a fair election cannot be held in
the future. Many of the employees who were interrogat-
ed wore union buttons and jackets and were not deterred
from doing so by the interrogations. These interrogations
are not likely to have long-term effects notwithstanding
compliance with a cease-and-desist order. Some employ-
ees testified about the solicitation of grievances which
carried the implicit promise of resolution without the
need for a union. The implicit promises related primarily
to supervision and the handling of insurance and safety
matters. While these are undoubtedly important issues
which cause employees to support a union, I cannot con-
clude that Respondent's conduct was such that would
linger and preclude the employees from casting a vote
for the Union in a future election, notwithstanding com-
pliance with a cease-and-desist order. 2 The solicitation
12 Another example of an implicit promise to resolve complaints as
Buitlrum', conversation with Mike rosr n in which he offered to pay for
a self-improvement course for BRron in accordance with Respondent's
policy There is no evidence that the impact of this incident went beyond
Mike Rroln himnelf and I am not consinced that t would preclude him
Ir an, onti clse from frel casting his ol c il a future election
850 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
of complaints is not the type of misconduct that would
linger and remind employees that an employer means to
use his economic power to preclude a free election. But-
trum's response to the grievances of the employees was
basically that he would pay attention to them but noth-
ing specific was offered or done. He told employees that
Kathy Buttrum would address safety problems and the
handling of insurance. But she already had responsibil-
ities in these matters. Although she did go out into the
shop and help resolve some of the safety problems, it is
clear that this was part of her normal job and periodic
inspections of the workplace. Although her conduct un-
doubtedly strengthened the impact of Jack Buttrum's un-
lawful solicitation of grievances, Kathy Buttrum was
doing something she was charged to do and the resolu-
tion of safety complaints in this context would not be
read by employees as a resolute attempt by Respondent
to preclude a free election in the future. There were no
allegations or findings of grants of benefits which might
carry the specific message that they were awards for re-
jection of the Union. Such a message, not present here,
would be likely to linger beyond a cease-and-desist order
as a reminder to employees of the economic power
behind an employer's resolve to defeat a union. In short,
the employees in this case, many of whom openly wore
union buttons and held to their views despite the efforts
of Buttrum and Lottes, would be able to express them-
selves freely in a second Board election after compliance
with a cease-and-desist order. 1 3
Moreover, I have no reason to believe that the unlaw-
ful conduct, which occurred in this case, will recur. Re-
spondent was not accused of unfair labor practices in
connection with the five preelection speeches of Presi-
dent Buttrum. Respondent does recognize a union in an-
other phase of its business. Respondent's construction de-
partment employs IBEW electricians. Buttrum himself
serves as chairman of the management negotiating com-
mittee and, in the past, has served as chairman of the
joint apprenticeship committee. My assessment of But-
trum's demeanor and his testimony generally is that he is
not likely to repeat conduct which has been found to be
unlawful. I therefore believe a new election can be un-
dertaken in an atmosphere free of coercion. Accordingly,
I shall dismiss the allegation that Respondent violated
the Act when it refused to bargain with the Union and I
reject the attempt by the General Counsel to impose a
bargaining order remedy in this case.
An Nor is it clear to me that the Union's card majority was dissipated
by Respondent's unlawful conduct. By September 18, 1979, 23 employees
had signed union membership cards. Respondent thereafter undertook to
persuade its employees to vote against the Union. It employed many
proper campaign tactics, including the five lawful preelection speeches
delivered by President Buttrum to assembled employees. Assuming that
Moesner and Ramsey voted for the Union, the Union garnered 15 votes,
a loss of 8 from the 23 supporters it had 2 months before. Although I
believe that Respondent's unfair labor practices interfered with a free
election, I cannot say that they were more responsible for the apparent
loss of majority than the considerable lawful efforts of Respondent, in-
cluding the five lawful preelection speeches. Further reflection may have
convinced some of the card signers that their earlier commitment was
precipitous.
CONCLUSIONS OF LAW
I. By interrogating employees about their union sym-
pathies and by soliciting grievances and complaints with
the implicit promise that they would be resolved without
a union, Respondent violated Section 8(a)(l) of the Act.
2. These unfair labor practices affect commerce within
the meaning of Section 2(6) and (7) of the Act.
3. Respondent has not otherwise violated the Act.
4. The unfair labor practices mentioned above warrant
setting aside the Board-conducted election of November
14, 1979. They do not warrant the issuance of a bargain-
ing order.
REMEDY
Since I have found that Respondent has engaged in
unfair labor practices in violation of the Act, I will rec-
ommend that the Respondent cease and desist therefrom
and take certain affirmative action designed to effectuate
the policies of the Act.
Upon the foregoing findings of fact, conclusions of
law, and pursuant to Section 10(c) of the Act, I issue the
following recommended:
ORDER'4
The Respondent, Swanson-Nunn Electric Company,
Inc., Evansville, Indiana, its officers, agents, successors,
and assigns, shall:
1. Cease and desist from:
(a) Questioning employees concerning their union
membership, sympathies, and desires.
(b) Soliciting grievances or complaints from employees
and implying their resolution in order to discourage sup-
port for the Union.
(c) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Post at its Evansville, Indiana, facility copies of the
attached notice marked "Appendix."15 Copies of said
notice, on forms provided by the Regional Director for
Region 25, after being duly signed by Respondent's rep-
resentative, shall be posted by it immediately upon re-
ceipt 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 cov-
ered by any other material.
14 In the event no exceptions are filed as provided by Sec. 102.46 of
the Rules and Regulations of the National Labor Relations Board, the
findings, conclusions, and recommended Order herein shall, as provided
in Sec. 102.48 of the Rules and Regulations, be adopted by the Board and
become its findings, conclusions, and Order, and all objections thereto
shall be deemed waived for all purposes.
" In the event that this Order is enforced by a Judgment of a United
States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursu-
ant to a Judgment of the United States Court of Appeals Enforcing an
Order of the National Labor Relations Board."
SWANSON-NUNN ELECTRIC COMPANY, INC 851
(b) Notify the Regional Director for Region 25, in
writing, within 20 days from the date of this Order, what
steps Respondent has taken to comply herewith.
IT IS ALSO RECOMMENDED that the complaint be dis-
missed insofar as it alleges unfair labor practices not
found herein.
IT IS FURTHER RECOMMENDED that the election con-
ducted in Case 25-RC-7309 on November 14, 1979, be
set aside and that the Regional Director for Region 25
conduct a rerun election at a time he deems appropriate.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had the opportunity to
present their evidence the National Labor Relations
Board found that we violated the National Labor Rela-
tions Act, and we are ordered to post this notice and
comply with what it says.
The Act gives employees the following rights:
To engage in self-organization
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To engage in activities together for the pur-
pose of collective bargaining or other mututal aid
or protection
To refrain from the exercise of any or all such
activities.
WE WILL NOT question employees concerning
their union membership, sympathies, or desires.
WE WILL NOT solicit grievances or complaints
from employees and imply their resolution without
the need for a union.
WE WILL NOT in any like or related manner in-
terfere with, restrain, or coerce our employees in
the exercise of the rights guaranteed them by Sec-
tion 7 of the Act.
SWANSON-NUNN ELECTRIC COMPANY,
INC.