Terry Industries of Oregon, Inc.

National Labor Relations Board - Board Decisions

Mar 27, 1975

217 N.L.R.B. 133 (N.L.R.B. 1975)

TERRY INDUSTRIES OF OREGON, INC. 133
Terry Industries of Oregon , Inc. and Retail Clerks
Unison, Local No. 1612, Retail Clerks International
Association, AFL-CIO. Cases 36-CA-2592- and
36-RC-3283
March 27, 1975
[Direction of Second Elections and Excelsior foot-
note omitted from publication:]
5 The grounds for setting aside the results of the first election, held on June
28, 1974, stem solely from evidence adduced relevant to Petitioner's Objec-
tions 3 and 4. As to Objection 3, the objectionable conduct found was not
the promulgation of a presumptively valid no-solicitation rule, but the dis-
criminatory enforcement of the "no-talking" portion of this rule to curtail
union activity during the election campaign.
DECISION, ORDER, AND DIRECTION OF
SECOND ELECTION
BY MEMBERS JENKINS, KENNEDY AND PENELLO
On December 11, 1974, Administrative Law Judge
Russell L. Stevens issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief. -
]Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions" and brief
and has decided to affirm the rulings, findings,' and
conclusions3 of the Administrative Law Judge and to
adopt the recommended Order.'
ORDER
Pursuant to Section 10(c) of the National Labor Re-
lations Act, as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, and hereby orders the
Respondent, Terry Industries of Oregon, Inc., La-
Grande, Oregon, its officers, agents, successors, and
assigns, shall take the action set forth in the said recom-
mended Order.
i In the absence of exceptions, we adopt pro forma the Administrative
Law Judge's conclusion that the General Counsel has not established that
Respondent discriminated against dischargees David Pattee and Louis Ly-
man, and the Administrative Law Judge's overruling of the Employer's
objections.
2 Contrary to the finding of the Administrative Law Judge, the supervi-
sory status of former Assistant Production Manager Robert Smith is^not
admitted by the pleadings. It is clear from the record, however, that Smith
had the authority to discipline and responsibly to direct other employees
We therefore agree with the ultimate finding that Smith was a supervisor
within the meaning of the Act.
3 The unlawful interrogation found herein occurred at the very beginning
of the Union's organizational campaign In our opinion, the Administrative
Law Judge inadvertently overstated the extent of supervisory and
managerial awareness of, and opposition to, union activity at that time. We
therefore rely only on clear record evidence concerning Respondent's
supervisor, Smith, to establish Respondent's opposition to unionization at
the time of the incident.
4 Members Kennedy and Penello rely on subsequent objectionable con-
duct found to have occurred during the election campaign as evidence
supporting the conclusion that the unlawful interrogation found herein was
neither isolated nor de minimis. Member Jenkins considers the interroga-
tion, standing alone, sufficiently serious and threatening to warrant finding
a violation of Sec 8(a)(1)
DECISION
STATEMENT OF THE CASE
RUSSELL L. STEVENS, Administrative Law Judge: This mat-
ter was heard at LaGrande, Oregon, on October 3, 4, and 5,
1974.1 The complaint,' issued August 29, is based on a
charge filed June 27 by Retail Clerks Union, Local 1612,
hereinafter referred to as the Union. The complaint alleges
that Terry Industries of Oregon, Inc., hereinafter referred to
as Respondent, violated Section 8(a)(1) and (3) of the Na-
tional Labor Relations Act, hereinafter referred to as the Act.
Pursuant to a petition filed in Case 36-RC-3282, involving
the same parties, the Regional Director for Region 36 ordered
a hearing on objections to election inasmuch as substantial
and material questions of fact were presented by the objec-
tions. On August 29, said Regional Director issued an order
in which he consolidated Cases 36-CA-2592 and
36-RC-3283. Both cases were heard at LaGrande, Oregon,
as aforesaid.
ISSUES
The principal issues are whether Respondent interrogated
an employee concerning his union activities, in violation of
the Act; whether employee David Pattee was discharged
from union, activities; whether Louis Lyman was discharged
for union activities; and whether a bargaining order is an
appropriate remedy in this case. Several minor issues were
presented, as more fully set forth below.
All -parties were given full opportunity to participate, to
introduce relevant evidence, to examine and cross-examine
witnesses, and to argue orally. Briefs, which have been care-
fully considered, were filed on behalf of the General Counsel,
the Charging Party, and Respondent. Upon the entire
record,' and from my observation of the witnesses and their
demeanor, I make the following:
FINDINGS OF FACT
I THE BUSINESS OF RESPONDENT
Respondent is an Oregon corporation engaged in the man-
ufacture of travel trailers at a plant located near LaGrande,
Oregon. Respondent annually sells and ships travel trailers
valued in excess of $50,000 to customers located outside the
State of Oregon, and annually receives goods and products
i All dates are within 1974, unless stated to be otherwise.
2 Paragraph 10 of the complaint was amended at hearing.
3 G C Exhs. 9(a) and (b) are stipulated substitutions for an earlier
incorrect 9(a) and (b). By undated motion to reopen the record, filed
November 21, 1974, counsel for Respondent requested that the amendment
to the complaint be corrected to show the proper date of the consent elec-
tion agreement. Said motion hereby is granted
217 NLRB No. 29
134 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
valued in excess of $50,000 directly from suppliers outside the
State of Oregon. The complaint alleges, Respondent admits,
and I find, that Respondent is engaged in commerce within
'the meaning of Section 2(6) and (7) of the Act.
II THE LABOR ORGANIZATION INVOLVED
Alleged Illegal Acts
A. Interrogation
The complaint states as follows:
Retail Clerks Union , Local No. 1612, Retail Clerks Inter-
national Association , AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
III THE ALLEGED UNFAIR LABOR PRACTICES
Background
The Union initiated its campaign to organize the em-
ployees of Terry Industries of Oregon, Inc., when its repre-
sentative met with employee representatives on February 28.
On that date union authorization cards were given by the
union representative to an employee and one other person, for
solicitation of signatures at Respondent's plant. The Union
had an organizational meeting for employees on March 27.
After obtaining 74 signed cards, the Union addressed a letter
on April 15, 1974, to Respondent, making a demand for
recognition and bargaining. The letter was received by Re-
spondent on April 17. By letter dated April 22, Respondent
refused to bargain.
On June 10, the Union held a second organizational meet-
ing for employees.
Pursuant to a petition filed April 24, 1974, by the Union,
an election was conducted on July 23, 1974. The Union lost
the election and on July 30, 1974, filed objections to the
election.
In February 1974, according to the allegations of the Gen-
eral Counsel, one of Respondent 's supervisors questioned an
employee about possession of union authorization cards and
implied that the employee would be terminated for engaging
in union activity. It is admitted by the pleadings that, on June
10, Respondent discharged employee Pattee and employee
Lyman , and the General Counsel contends that their dis-
charges were because they were engaging in union acitivity.
In seeking a Gissel type of bargaining order, the General
Counsel contends that Respondent interfered with union ac-
tivities, was extremely hostile to the Union and was guilty of
such pervasive and illegal acts throughout the plant that
Respondent should be ordered to bargain with the Union,
even though the Union lost the election.
In objections to the election filed by the Union's attorney
on July 30 , 1974, it was alleged that Respondent made intem-
perate antiunion speeches , promulgated an unlawfully broad
no-solicitation rule, changed working conditions , harassed
employees, threatened the loss of the bonus plan, threatened
closure of plant, and otherwise frustrated and interfered with
the Union 's activities at Respondent 's place of business. Re-
spondent does not contest the fact that it was desirous of
whining the election and concedes that it discharged Pattee
and Lyman. However, Respondent contends that those dis-
charges were not for union activity, but rather were for good
business cause. Respondent also contends that it did not
harass the employees or interfere with union campaign activi-
ties within the plant.
In February 1974, assistant production manager,
Robert Smith , questioned an employee about possession
of union authorization cards and implied that the em-
ployee would be terminated for engaging in union activ-
ity.
Jessie Lene, employed by Respondent, testified that in Feb-
ruary or March 1974, he had two conversations on the same
day with Robert Smith, then assistant production manager of
Respondent.4 Lene said Smith, on the final occasion, asked
him, "how's the unemployment line, Jessie?" Lene said he
then told Smith, "he couldn't scare me with that''
Lean said that on the second occasion,5 Smith "actually
came right out and asked me for a card, an authorization
card." Lene objected, saying that he had been instructed not
to give the cards out during working hours, but Smith report-
edly said it was all right, that he wanted one for the office.
Lene then gave Smith a card.
Robert Smith was called by General Counsel as a rebuttal
witness, and cross-examined , but he gave no testimony con-
cerning this alleged incident.
There being no contradictory testimony and no apparent
reason for doubting Lene's testimony, Lene's version of the
incident is accepted. It is found that the words and actions
attributed by Lene to Smith accurately were conveyed at the
hearing.
The fact that Respondent's supervisors and managers were
fully aware of, and opposed to, union organization attempts
at the time of the incident-involved herein, is well established
by the record. Respondent's opposition to unionization being
apparent, this incident properly cannot be considered isolated
from Respondent 's other actions, as de minimis. San Diego
Paper Box Company, 174 NLRB 1118 (1969).
Whether or not Lene recited the two portions of the inci-
dent in their correct chronological order is immaterial. It is
also immaterial whether or not Smith's asking Lene for an
authorization card, in and of itself, is a violation of the Act.
The crucial part of Lene's testimony is Smith's question about
the unemployment line. In view of management's awareness
of the open opposition to unionization , and in further view of
management 's knowledge that Lene was an active union
organizer,6 Smith 's query could have but one meaning: It
was a threat of discharge or layoff if Lene continued his
activity on behalf of the Union. Respondent, through Smith,
thereby violated Section 8(a)(1) of the Act. Fairview Nursing
Home, 202 NLRB 318 (1973); Glassmaster Plastics Co., 203
NLRB 944 (1973).
4 It is admitted by the pleadings and hereby found that Robert Smith was
a supervisor within the meaning of the Act.
5 Lene said the chronology related by him possibly could be reversed; that
perhaps this was the first , rather than the second , conversation.
6 That knowledge is established by Smith's asking Lene for an authoriza-
tion card . Nothing in the record shows that Smith's knowledge on this
subject was increased at any time during the day, thus the chronology of the
day's events is not material.
TERRY INDUSTRIES OF OREGON, INC. 135
B. Pettee's Discharge
The complaint states as follows:
On or about Monday, June 10, 1974, Respondent dis-
charged employee David Pattee and at all times since has
failed or refused to recall or reinstate said employee
because of his activities on behalf of the Union.
Respondent contends that it fired Pattee solely because he
defaced bathroom walls by writing on them.
The record clearly shows, and it is found, that defacement
of bathroom and other walls is a serious, continuous, and
longstanding problem at Respondent's plant.7 Uncon-
tradicted testimony shows that David Stahl was discharged
by Respondent 3 or 4 years ago for writing on bathroom and
other walls. No other discharge was established for that rea-
son alone, but the testimony and commonsense show the
difficulty in proving who does such writing.' It has been
necessary to repair bathroom walls at Respondent's plant
because of writing on them at least five times, including two
or three times since the first of 1974. Efforts have been made
by Respondent to identify the persons involved, but without
success. Pattee told his supervisor there were others who
wrote on walls , but he did not name those persons. Richard
Smith , general manager of Respondent , testified that he was
personally aware of the problem because of his knowledge of
its history (including Stahl's discharge), his regular weekly
and monthly inspections of the plant, and his receipt of em-
ployee complaints.
Unchallenged, credited testimony shows that the problem
of wall defacement was one of frequent coverage in company
meetings. It was discussed and action urged by management
at management meetings , leadman meetings, employee gath-
erings, and in personal conversations with individual em-
ployees. David Pidcock, Respondent 's production manager,
discussed the problem with supervisory personnel as late as
Monday of the week when he discovered on Thursday that
Pattee had been writing on bathroom walls. Pidcock credibly
J testified that the problem had been brought to his attention
several times by the janitor and by production employees. He
said Richard Smith instructed him on several occasions to
have the restroom walls cleaned and painted.
There is no doubt but what all employees of Respondent,
including Pattee, were fully aware of the problem and of
company prohibition of wall writing, and it is so found.
Pattee was employed by Respondent May 6, 1974. His
leadman was Bruce Kibbey, who testified that the subject of
witing on walls was discussed at a lead meeting and that he
was instructed by Pidcock at that meeting to tell employees
they were not to write on walls. Kibbey credibly testified that
he so told Pattee.
On June 6, Kibbey noticed handwriting on the bathroom
wall, and since he suspected it was Pettee 's handwriting, he
confronted Pettee.9 They went into the room, and Pattee ad-
I Uncontradicted testimony shows that there was more writing on walls
in 1 he spring of 1974 than usual.
8 Writing on walls is a violation of written company rules See Resp Exh.
4, p. 18, Item 13.
mitted he had done the writing. Kibbey reported the incident
to Robert Smith, then assistant production manager, who
called Pattee into his office. Smith told Pattee he would not
fire him for it this time, but that Pattee would have to repaint
the restroom walls. Smith testified that he normally discussed
matters of discipline with David Pidcock and that he dis-
cussed the Pattee incident. The record is not entirely clear,
but Smith conferred with Pidcock about Pattee on Thursday,
June 6, or Friday, June 7.
On Monday, June 10, Pidcock advised the general
manager, Richard Smith, of the Pattee incident, and asked his
counsel. Smith credibly testified that he and Pidcock dis-
cussed the matter in detail and that he told Pidcock that if
he was in Pidcock's position, he would fire Pattee. Pidcock
testified that he then decided to fire Pattee, and that he did
fire him at the close of business that day, June 10, for the sole
reason of writing on bathroom walls.10
Pattee testified that he signed a union authorization card
June 5, 1974. He said he gave an authorization card to
another employee, who did not return it. He said he attended
some union meetings . Pattee testified that he never discussed
the Union or its campaign with any supervisor, but that he
did attend a group meeting conducted by Respondent. This
testimony is strong support for that of Richard Smith, who
testified that at the time he talked with Pidcock about Pattee
on June 10, he did not know that Pattee was engaged in any
union activity. It is abundantly clear that Pattee was not a
union leader in any sense of the word . At most, he was a
union sympathizer.
In view of the foregoing, it is clear that Pattee was fired for
writing on the bathroom walls and for no other reason. It is
so found.
General Counsel's only rebuttal of any substance is the
testimony of Robert Smith, who said Pidcock told him Tues-
day, June 11, something to the effect that "he got rid of
another union guy," but Smith qualified the statement by
saying , "I can't say exactly . . . ." That testimony is not
credited, because: (a) Smith was not sure of his testimony; (b)
Respondent's defense was established by overwhelming evi-
dence; (c) Smith testified quite definitely that Pidcock told
him he fired Pattee for writing on the restroom wall; (d)
Pidcock credibly testified that he did not remember talking
with Smith about Pattee after Pattee was fired; and (e) when
interviewed by Respondent's counsel, Smith said nothing
about the purported statement by Pidcock.
In any event, as the Board stated in Erie Strayer Co., 213
NLRB No. 45, fn. 9 (1971):
We have long held that even when an employer may
want to rid himself of an employee whose union activi-
ties have made him persona non grata, "if the employee
himself obliges his employer by providing a valid in-
dependent reason for discharge-i.e., by engaging in
conduct for which he would have been discharged
9 Kibbey credibly testified that he did not know, and could not identify,
anyone else who had written on the restroom walls. He also testified that
Pattee did not tell him about anyone else involved
10 Pattee testified that he was told by Pidcock when he was fired that the
reason was writing on the bathroom wall. Pattee also testified that he told
Wayne Mooney , a leadman, that he had been fired for writing on the walls.
136 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
anyway-his discharge cannot propertly be labeled a
pretext and ruled unlawful."
See also Kaye-Smith Enterprises, 211 NLRB 1034 (1974).
Pattee's claim that he did not know of any company rules
about not writing on walls is not credited. He admitted seeing
posted company rules, and reading at least part of them.
Further, Bruce Kibbey, Pattee's supervisor, credibly testified
that he told Pattee about instructions from Pidcock not to
write on walls.
It is found that Pattee was not discharged by Respondent,
wholly or partially, because of his union activity and that this
portion of the complaint was not proved.
C. Lyman's Discharge
The complaint states as follows:
On or about Thursday, June 13, 1974, Respondent dis-
charged employee Louis Lyman and at all times since
has failed and refused to recall or reinstate Lyman be-
cause of his activities on behalf of the Union.
Respondent contends that it fired Lyman for three reasons:
(a) failure to wear safety glasses as required by company
rules; (b) excessive talking on the job; and (c) smoking against
company rules, while not on a break or mealtime.
(a) The record clearly shows, and it is found, that the
wearing of safety glasses is a matter of longstanding concern
of Respondent, and has been treated in serious manner. For-
mal company rules, including those relating to safety glasses,
have been published and distributed to all employees."
Plant safety rules have been posted at all times relevant
herein, in a convenient and prominent place frequented by all
employees. 12
Credited testimony, which was not challenged, shows that
the subject of safety glasses was discussed, and employees
admonished to wear them as required by company rules at
management meetings, leadman meetings, employee gather-
ings, and in personal conversations with individual em-
ployees.
Respondent's general manager, Richard Smith, testified
credibly and without contradiction and supported by other
testimony that he advised all employees at a general plant
meeting in April and again in May that the wearing of safety
glasses was a requirement, and that violation would be
grounds for termination. He also said that corporate head-
quarters (Fleetwood) had issued verbal and written instruc-
tions of Respondent that proper wearing of safety glasses was
mandatory and that U.S. Government inspectors in April of
this year commented that several of Respondent's employees
were not wearing glasses as required.
There is no doubt but what all employees, including Ly-
man, were fully aware of company requirements relative to
'safety glasses, and it is so found.
Richard Smith testified credibly and without contradiction
that he found Lyman not wearing safety glasses as required
on several occasions and warned him to put them on. He also
11 Resp. Exh. 4.
12 Resp. Exh. 5
testified that after the first such incident, he advised David
Pidcock, the production manager , of the warning.13
Bob Smith, then assistant production manager , testified
that he warned Lyman in writing on May 30 for failure to
wear safety glasses as required and that he advised Pidcock
of the warning . He also testified that on May 31 he gave
Lyman ,a final written warning for failure to wear safety
glasses and so advised Pidcock.14 He said he also warned
others about not wearing glasses and that Lyman's failure to
wear them was not more flagrant than some other employees.
However, Smith did recommend that Lyman be fired.
David Pidcock, production manager, credibly testified that
he warned Lyman three or four times for'not wearing safety
glasses and that he warned Lyman more than he considered
"normal." He said he warned about 15 employees for the
same reason , but that usually (about 80 percent of the time)
no further warnings were necessary.
Lyman acknowledged being in a company meeting at
which employees were told to wear safety glasses as required,
and that he had been warned three or four times about wear-
ing them. He also acknowledged that when he was fired, he
was told that one of the reasons was his failure to wear safety
glasses as required.
(b) Clifton Amos, a fellow employee, testified that he and
Lyman were reprimanded by Dick Pidcock on June 1-3 for
talking while working, and Pidcock, when asked by Amos,
"Is it getting to the point you can't talk to people out here
anymore?" replied, "You know what I mean, this has been
going on for a long time." Amos said Pidcock warned him
and Lyman that if the talking continued, he would "have to
do something about it."
Merrill Goldsberry, Lyman's leadman at the time, testified
that, on one occasion , leadlady Nancy Ledoux complained to
him and asked him to tell Lyman to stop talking with one of
the employees in Ledoux's department.
Michael Durfee, a fellow employee, testified that during
the last part of April, Bob Smith (then assistant production
manager) told him and Lyman just at the close of a break
period to stop talking about the Union and get back to work.
He said the bell had already rung, and the break was over at
the time of Smith's statement.
Patricia Walker, a leadlady, testified that Lyman was in
her work station almost every day, talking with and bothering
people there during Lyman's working time, usually about the
Union. She said she thought she talked with Bob Smith about
the matter.
Nancy Ledoux, a leadlady, testified that, on several occa-
sions, Lyman came into her work area to visit with employees
and with one particular girl. She said those occasions were
during working time, but Lyman was doing no work. She said
Lyman was there almost constantly one day, and she asked
him twice to go back to his own crew. She testified that she
complained, and asked Lyman's leadman to keep Lyman in
his own department except during lunch hour and regular
breaktime.
13 Smith said he warned five or six other employees about safety glasses,
and that no employee has been fired for that sole reason. As stated above,
Respondent contends that Lyman was discharged for three reasons
14 Resp Exh 2(b). This testimony is supported by that of Bob McMurphy
and is credited
TERRY INDUSTRIES OF OREGON, INC.
Wayne Mooney, a leadman , testified that on several occa-
sions, Lyman came over to his work area "just to visit" with
a female employee, during Lyman's working time (not on
break).
Virgil Woldberg, a leadman , testified that he had observed
Lyman "visiting" during working time; he said he also saw
other employees doing the same thing.
Bob Smith, then assistant productnon manager, testified
that he warned Lyman June 13 for "standing around," and
he told Pidcock that if Lyman did not quit "standing
around," he should be terminated.
Bob Smith testified that there was "lots more" talking
among employees during working time while the union com-
paign was going on than there previously was, and that David
Pidcock instructed that talking during working time should
be broken up "because it would probably be union activity
they were talking about." He said the company policy gov-
erning talking during working hours was more strictly en-
forced during, than before, the campaign. Smith said he was
instructed to, and did, make sure from about the end of May,
that employees did not stand around talking but did their job.
However, he said he was not instructed to watch Lyman
specifically.
Finally, Smith testified that when he recommended to Pid-
cock that Lyman be fired, the reason was stated to be because
Lyman frequently was "standing around, not working."15
Lyman's testimony about his conversation with Michael
Durfee being broken up by Bob Smith was the same as Dur-
fee's. Lyman acknowledged that he was warned approxi-
mately April 5 by Bob Smith about talking too much on the
job; a second time by Bob Smith about a week later; and a
third time by Bob Smith and Pidcock on June 13 (McMurphy
also was present).
Lyman acknowledged that Nancy Ledoux, on one occa-
sion, told him he was bothering employees in her work area.
It is found that Lyman repeatedly talked about nonwork
matters, and loafed during work time, following warnings by
supervisors not to engage in such activity.
(c) Testimony established, and it is found, that employees
who are temporarily caught up with their assigned work are
under instructions to assist others who are not caught up.
Ramon Loos testified that he had seen Lyman smoking in the
restroom during working hours while not on break, "on occa-
sions."
Donald Mooney testified that he met Lyman in the bath-
room smoking and talking with other employees on more
than one occasion.
Virgil Woldberg testified that he had observed Lyman not
working during working time, "visiting, restroom smoking."
Bob McMurphy testified that he was told by two individu-
als that a couple of people were sitting in the bathroom
smoking during working hours at or about 2 p.m. on May 29.
He said he called the two, Lyman and a fellow worker named
Jim Willis, into the office with their supervisors and gave
them a verbal warning. Thereafter, McMurphy placed formal
warnings in the employment records of the two. [See Resp.
Exh. 2(b).]
L5 Lyman was warned in writing on June 13th about talking instead of
working. See Resp Exh. 2(b)
137
Lyman did not deny the May 29 incident. He testified that
he and two others were in the restroom smoking, because
they did not have anything else to do.
As seen by the foregoing, it is quite clear that Lyman in fact
did not wear his safety glasses as required by company rules,
and was warned about his derelication on several occasions;
he was an unsatisfactory employee because of excessive talk-
ing during working time and was warned about that problem
several times; he was caught loafing and smoking in the rest-
room and was warned about that, too.
It is also quite clear that the three matters summarized
above were given by Bob Smith to Lyman as the reasons for
his discharge and Lyman admits as much.16 Pidcock testi-
fied to the same effect, without contradiction, and stated that
he reached his decision to fire Lyman solely on Lyman's
employment record, as shown by Respondent's Exhibit 2(b).
Pidcock commented at the time to Bob Smith and Bob
McMurphy that Lyman had received more than the normal
number of warnings and should be terminated. There is no
question but what Respondent had ample cause, and good
cause, to fire Lyman, and it is so found.
The only question, therefore, is whether an inference can
be drawn based on the General Counsel's evidence that Ly-
man was fired because of his union activity, rather than be-
cause of the reasons given by Pidcock."
Lyman was employed by Respondent March 4, 1974. He
testified that he attended his first union meeting about a week
after he was hired and that he did not know of any union
activity prior to that time. He said Clifton Amos gave him a
union authorization card and that he signed the card March
13 and gave it back to Amos. He testified that about 2 weeks
thereafter, he received blank cards from Amos, and gave
about 15 of them to prospective signers. He said he received
back about seven signed cards. On one occasion, according to
Lyman, he asked Bob Smith if he would like to sign a card,
and Smith declined. Lyman related one conversation with
Michael Durfee about union matter. There is no evidence of
other union activity on the part of Lyman. Testimony shows
that a total of 104 cards were signed. Of that number, seven
were obtained by Lyman, according to his testimony.18 Ly-
man testified that only on one occasion did any member of
management talk with him about union activities-and that
was when Bob Smith replied to Lyman's question about what
would happen if the Union came into Terry trailers. Accord-
ing to Lyman, Smith said the plant probably would close
down."
Although Bob Smith knew about Lyman' s union activities
and probably discussed them at least once with him, and
although Smith recommended to Pidcock that Lyman be
fired, the uncontradicted and credited testimony shows that
Smith's recommendation was based on Lyman's " .. .
standing around, not working." and Pidcock made the final
16 Clifton Amos testified that Lyman told him he had been "terminated
for smoking in the can."
17 Some of the argument and questioning of witnesses was directed to the
fact that Smith was supervisor with authority to hire and fire. Apparently
the thought was that whatever Smith said or did was the last word on the
subject of Lyman Such is not the case . Pidcock was Smith's supervisor
obviously having authority to change any order or action 'by Smith
18 This testimony is suspect-Lyman could recall only the names of two
signers.
19 This statement is not the basis for any charge by the General Counsel.
138 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
decision to fire Lyman based on the written warnings in the
employment record. The record is devoid of any showing that
Pidcock was aware of Lyman' s union activity. Further, that
activity was of a very limited nature. Lyman was employed
by Respondent a short time (less than 3 months) and had
such a limited acquaintance among the employees that he
handed out no more than 15 cards, and could only remember
the names of two that he received signed cards from. On the
other hand, Amos was an employee of about 3 years, handed
out about 40 cards, received all of them back signed, and
obviously was quite active with the Union. He, too, was
warned when Lyman was, for excessive talking. Amos still is
employed by Respondent, as are Jessie Lene and Bob Ashe,
who also received cards at a union meeting for signature
solicitations . Lene distributed 30 or 35 cards and got all of
them back, signed. Further, Lene discussed union activities
with Pidcock. If Respondent wanted to shoot down union
activists, it would set its sights on the obvious targets, such
as Amos and Lene, who were admittedly active and who had
broad acquaintanceship among employees, developed over a
long period of employment. There is no hint in the record of
any move to oust Amos, Lene, or any other union sympa-
thizer.
General Counsel urges consideration of the fact that others
were warned about not wearing safety glasses, but were not
fired; others were warned about talking on the job, but were
not fired; others were caught smoking in the restrooms, but
were not fired. That fact may be true , as alleged . However,
it is clear from the record that Lyman's abuses of company
rules were more frequent , more serious , and more varied,
than other employees. he received more warnings, and more
important, he was fired for all three reasons, not just one.
Finally, Pidcock credibly testified that his decision to fire
Lyman was based on the latter's written employment record,
which includes warnings as outlined above. There was noth-
ing in Pidcock's testimony or demeanor, nor in the record, on
which to conclude that Lyman was discharged for other than
the reasons given to him.
General Counsel also urges consideration of the fact that
Lyman was watched more while at work than other em-
ployees. The inference that Respondent was "after" Lyman
for his union activities is solicited. It may well be that Lyman
was under special surveillance, although that conclusion is
not dictated by the record. But assuming it is dictated, the
obvious answer, based on testimony of almost every witness
in the case, is that he needed to be watched. His working
habits hardly were those of an employee to be trusted. He
ignored repeated warnings to wear safety glasses; he spent
much time out of his work area bothering other employees;
he talked and "stood around" during much of the working
day; he hid from management eyes to loaf and smoke. If ever
an employee had to be watched to keep him gainfully oc-
cupied, it was Lyman.
Timing of the discharge is of interest. After repeated verbal
warnings, without effect, written warnings were initiated by
Respondent. The record shows four of them-May 29 for
loafing and smoking in the bathroom; May 30 for not wearing
safety glasses ; May 31 for not wearing safety glasses; and June
13 for loafing and talking too much during work hours. Ly-
man was fired June 13 after Pidcock reviewed his record. All
Lyman had to do to prevent his discharge was to conduct
himself as an employee should. He was given plenty of-oppor-
tunity, but refused to follow reasonable and proper intruc-
tions of his employer.
As in the case of Pattee, the only substantive argument is
the testimony of Bob Smith, who stated that, after Pidcock
left the night Lyman was discharged, "He said he got rid of
a union pusher." Again, that testimony is not credited, be-
cause: (a) Respondent's defense was established by over-
whelming evidence; (b) Smith testified that he recommended
Lyman be fired for standing around talking too much; (c)
when interviewed before hearing by Respondent's counsel,
Smith said nothing about the purported statement by Pid-
cock; and (d) Pidcock credibly testified that he did not
remember talking with Smith about Lyman after Lyman was
fired.
Even assuming, arguendo, that the statement was made, it
would not be persuasive under the facts of the case. Erie
Strayer Co., supra,' Haye-Smith Enterprise, supra.
In view of the foregoing, the question must be answered in
the negative-an inference cannot be drawn, based on the
General Counsel's evidence, that Lyman was fired because of
his union activity rather than because of the reasons given by
Pidcock.
It is found that Lyman was not discharged by Respondent
wholly or partially because of his union activity and that this
portion of the complaint was not proved.
1. The first objection to election is as follows:
The Employer has interfered with a fair election by call-
ing employees into his office individually and in small
groups and making intemperate antiunion speeches to
them.
There is nothing in the record to show that any individual
was called by the Employer into his office to listen to any
speech, intemperate or otherwise.
It is established, however, that all employees, in small sepa-
rate groups of 9 to 12, were called" into General Manager
Richard Smith's office a few days before the union election.
Principal speaker at the meetings was Kenley Palmer, direc-
tor of labor relations for the parent company (Fleetwood
Enterprises, Inc.). Richard Smith also attended and spoke on
some matters. Palmer distributed copies of six contracts, then
current, between various Fleetwood companies and unions.
As employees asked questions about various subjects, they
were directed to the appropriate contract page, the item
would be read and questions of employees would be dis-
cussed. Palmer testified that he made the following state-
ments when employees asked about the negotiation process:
I explained that if a union were voted in and the com-
pany recognized the union, we'd enter into negotiations.
We would start from scratch. They'd present what they
desired to have in a proposal and we would counter-
propose, back and forth, and we would negotiate, and
what was agreed upon would be written into a contract.
But, not everything that was presented by either side
would come into the contract in its final form.
20 Some controversy arose over whether attendance at these meetings was
voluntary or mandatory Based on the record, it is found that attendance
was, at least by implication, mandatory, and that the meetings were held
during regular working hours, on company time.
TERRY INDUSTRIES OF OREGON, INC.
Palmer was asked by counsel for the Charging Party what
he meant by "start from scratch," and Palmer testified,
` .. all wages and benefits were up and subject to negotiation
and that whatever was proposed and agreed upon, might
change what was presently in effect." Palmer testified that a
question was asked about strikes, and he gave the history of
strikes at each of the Fleetwood plants. He said economic
strikers were replaced at one plant.
Richard Smith testified that he was asked by one employee
about an overtime matter that has arisen in the plant. He said
he would investigate. He later ascertained the facts and dis-
seminated the information through lead people.
Smith testified that he was asked at nearly all meetings
about a wage survey and that he explained such a survey had
been conducted in the local market and covered wages and
benefits of Respondent's competitors. The surveys, he said,
were forwarded to the corporate office and returned to Re-
spondent, approved or disapproved. When employees asked
about the most recent survey, he said he was not at liberty to
disclose the recommendations or conclusions at that time
because of the then current campaign.
Smith testified that the meetings generally were on a very
friendly basis, with quite a lot of joking. He said the doors
were open, and they were interrupted by people "coming or
going."
Jessie Lene testified that he attended one of the group
meetings about 2 or 3 days prior to the elections. He said
Palmer distributed union contracts Fleetwood then had cur-
rent, and that "They were showing us, trying to give us a
comparison between a company that had gone union and the
companies that weren't union." Lene said the obvious goal of
the comparison was to show that employees in plants that had
gone union lost money. He stated that no predictions were
made at the meeting about what would happen if the plant
were to go union, and he said strikes were not discussed; that
the word "strike" did not come up. He also stated that
Palmer did not shout but that he did get irritated a couple of
times.
Chfton Amos testified that he attended one of the group
meetings on June 24. He said his group was told, as the
contracts were reviewed, that if they went union, they would
make no more than they then were making. He said insurance
was the only benefit mentioned, and Palmer remarked that all
Fleetwood plants have the same insurance program. Palmer
distributed at the meeting a "computer for lost wages"
(Charging Party's Exh. 5). Amos also testified that Palmer
said that in one of the Fleetwood plants, employees were on
strike 9 months, and those on the picket line were the last to
be called back to work-some did not come back at all.
Michael Durfee testified that he attended one of the group
meetings about 2 or 3 weeks before the election. He said
existing Fleetwood contracts were compared with existing
pay and benefits at Respondent's plant and that Palmer said
any benefit that would be in a contract would have to first be
negotiated. Durfee testified, " . . . 1Mr. Palmer said it
wouldn't matter if the union was voted in or not, whether or
not they wanted to negotiate the contracts-what we wanted
in the contracts."
Ramon Loos testified that he attended one of the group
meetings and that Palmer stated, " . . . if we would go
union, that negotiations would start, and we'd go out on
139
strike and that also in comparison with our wages, there
would be no bonus." However, on cross-examination, Loos
testified that Palmer, "didn't come out and say we were going
to go on strike if you want a union ." He testified that was his
assumption, based on what Palmer said at the meeting. Loos
also testified that Palmer said economic strikes would be
replaced. He said he received a copy of Charging Party's
Exhibits 5 and 6 at the meeting.
Based on their conduct and demeanor on the stand, and the
support generally given their statements by other witnesses,
the testimony of Smith and Palmer relative to conduct of the
meetings is credited.
There is no evidence, even remote, to support the allegation
of "intemperate" speeches. It is found that the speeches of
Smith and Palmer during the group meetings were temper-
ately made. It is found that the meetings were open, frank,
generally friendly, and conducted in a noncoercive manner.
It is found that no predictions were made during the meet-
ings, by management, of results if the Union were to be voted
in, and it is found that strike talk was limited to a review of
strike history at other Fleetwood plants, including the state-
ment that economic strikers legally can be replaced. Such
statements do not violate the Act. Texas Boot Manufacturing
Co., Inc., 143 NLRB 264 (1963); Mississippi Extended Care
Center, Inc., d/b/a Care Inn, Colliesville, 202 NLRB 1065
(1973); James Hotel Company a Corporation, d/b/a Skirvin
Hotel and Skirvin Tower, 142 NLRB 761 (1963).
It is found that no management representative at the meet-
ings said a strike was inevitable.
It is apparent that the principal topic at all meetings, and
in fact almost the only topic, was comparison between Re-
spondent's nonunion plant and other Fleetwood plants that
had gone union. Absent coercive acts or deeds, such compari-
sons are not in violation of the Act. Island Holidays, Ltd., 208
NLRB 965 (1974), Globe Shopping City, 203 NLRB 177
(1973). It is found that all meetings involved herein were
conducted free of coercive acts or deeds.
Charging Party's Exhibit 5, given to employees at the meet-
ings, is a "Strike Cost Computer." One sentence thereof is
patently in error": "Without a union strikes cannot happen."
However, the rest of the exhibit is factually correct, or in-
nocuous. The exhibit was introduced by the Charging Party,
and Respondent stipulated to the authenticity thereof. Nei-
ther-the General Counsel nor the Charging Party challenged
the propriety or legality of the exhibit. A similar cost tabula-
tor was found not objectionable in Nalco Chemical Co., 163
NLRB 68 (1967).
It is found that Charging Party's Exhibit 5 is not objection-
able.
Charging Party's Exhibit 6 also was free of challenge by the
General Counsel or the Charging Party, so far as propriety
or legality are concerned. The exhibit contains no threat or
coercive statement. It is no more than a rather crude attempt
to say that the Union offers disadvantages as well as advan-
tages, and cannot keep all the promises it may make. Obvi-
ously, the coupons are propaganda, and not intended as con-
tract forms. Such an attack on union promises does not
interfere with the election process. Oxford Pickler, Division of
John E. Cain Co., 190 NLRB 109 (1971).
The Board has long held that it will not restrict the right
of any party to inform employees of the advantages and
140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
disadvantages of unions, so long as the information is im-
parted in a noncoercive manner.21 Exhibit 6 falls within the
principles relied on by the Board.
It is found that Charging Party's Exhibit 6 is not objection-
able.
It is clear, and is so found, that Palmer's statement about
"starting from scratch" was free of threat or coercion and
made within the framework of a large statement that was
objective, factual, and entirely proper. The statement is not
objectionable. Oxford Pickles, supra.
In summary, it is found that Objection 1 is not supported
by the evidence.
2. The second objection is as follows:
The Employer has interfered with a fair election by dis-
charging two employees, Lyman and Pattie [sic] for their
union activities.
This objection is discussed above.
3. The third objection to election is as follows:
The Employer has interfered with a fair election by pro-
mulgating an unlawfully broad no-solicitation rule.
The rule complained of is found on page 17, of Respon-
dent's Exhibit 4, and reads as follows:
Posting of written or printed matter of any description,
circulation, or distribution of such matter in working
areas or solicitation on working time without approval
of the Production Manager.
Much the same rule was embodied in a letter to employees,
Charging Party's Exhibit No. 2, reading as follows:
No person will be allowed to carry on union organizing
activities in the working area during working time. Any-
body who does so and who thereby neglects his own
work or interferes with the work of others will be subject
to discharge.
Neither the foregoing rule nor the letter to employees is
invalid per se. The prohibition against solicitation is limited
to working time, which presumptively, is a valid limitation.
Stoddard-Quirk Manufacturing Co., 138 NLRB 615
(1962).22
Testimony shows, and it is found, that talking during work
time was a problem of Respondent's plant during the union
campaign and that Respondent increased its efforts to enforce
its no-solicitation rule during the campaign. The testimony
does not clearly establish, however, whether that effort was
made to protect production or to interfere with the union
campaign.
Had there been no union campaign, the no-solicitation rule
probably would have been largely ignored, as in the past.
Union activity, alone, caused increased enforcement, as
shown by the credited testimony of Amos, Durfee, Walker
and Robert Smith. That testimony was not contradicted by
21 Elgin Butler Brick Company, 147 NLRB 1624 (1964); Sharnay Hosiery
Mills Inc., 120 NLRB 750 (1958); Motec Industries Inc., 136 NLRB 711,
Oak Manufacturing Co., 141 NLRB 1323 (1963); Shure Brothers,
Incorporated, 147 NLRB 43 (1964).
22 It is Respondent's "No Talking" rule that is challenged. No question
is presented that involves distribution of literature or other material
Respondent. Robert Smith's unchallenged testimony was
particularly revealing. He credibly testified that talking was
a problem during the campaign; that union matters were
largely responsible for the increase in talking; and that he had
been instructed to be on the alert for nonwork conversations
and to break them up.
Based upon the record thus made, it is clear that increased
enforcement of Respondent's no-solicitation rule was occa-
sioned by union activity and was designed to curtail that
activity. It is so found.
Increased enforcement, in and of itself, would not neces-
sarily be a violation of the Act. However, in this case, the
increase was discriminatory in nature, and the record clearly
establishes Respondent's opposition to the Union. Under
such circumstances, Respondent's actions violated the Act,
and it is so found. [ Walton Manufacturing Company, 126
NLRB 697 (1960), enfd. 289 F.2d 177 (C.A. 5, 1961).] This
objection is well supported by the record.
The question then arises as to whether these findings rela-
tive to the no-solicitation rule affect the discharge of Lyman.
It is found that they do not.
In the first place, Lyman was not fired for talking about the
Union. He was fired for "standing around talking," among
other things. It is clear from the record that Lyman was a
loafer and disliked following his employer's instructions.
There is no evidence that Respondent knew what Lyman was
talking about when he was warned about loafing and talking,
and the evidence does show that he frequently engaged in
nonwork conversations under circumstances that impel the
conclusion that his conversations were neither work nor
union related. (See Nancy Ledoux testimony.)
In the second place, Robert Smith, whose testimony largely
is the basis for finding that the no-solicitation rule was dis-
criminatively enforced, testified that he was not instructed to
watch Lyman more closely than others.
In the third place, loafing and talking was, only one among
other reasons that Lyman was fired.
Finally, Lyman told others that he had been fired "for
smoking in the can." He said nothing about union conversa-
tions. -
It is noted, furthermore, that. Amos was warned about
talking, but was not disciplined; employees other than Lyman
and Amos talked on the job but were not disciplined; Durfee
was warned about talking, but he was not disciplined.
Clearly, Lyman's talking was linked with loafing and gener-
ally unsatisfactory conduct when he was fired, rather than
being linked with union activity. He was a new employee and
not a key union activist or organizer. His discharge clearly
was not the result of general, plantwide enforcement of Re-
sponent 's "No Talking" rule.
4. The fourth objection to election is as follows:
The Employer has interfered with a fair election by
changing working conditions to include close surveil-
lance of union supporters in their work, enforcement of
much stricter standards of production and general
harassment of employees for signing union authorization
cards.
So far as this objection relates to standards of production
and harassment for signing union authorization cards, it is
without any support in the record. There is no testimony that
TERRY INDUSTRIES OF OREGON, INC.
work standards were increased, and the only harrassment
shown was that related to talking, as discussed above.
Testimony concerning "close surveillance of union sup-
porters" is limited to that of Robert Smith, who testified that
he had been instructed to break up conversations during
worktime because they probably involved unions, and Amos,
who testified that employees were watched more closely dur-
ing the campaign than prior thereto. However, that tes-
timony, considered with the findings relative to the third
objection, is adequate to support this objection, and it is so
found.
5. The fifth objection to election is as follows:
The Employer has interfered with a fair election by
threatening employees with loss of their bonus plan and
closure of the plant in the event the Union was desig-
nated the exclusive collective-bargaining representative.
Kenley Palmer testified that he never made the comment
to employees during plant meetings that, if a union came in,
there would be no bonus. He said when he spoke about
bonuses, he remarked to employees that, generally speaking,
unions prefer higher wages rather than bonuses. He said some
employees stated to management during the union campaign
that they had been told the Union wanted a higher wage and
elimination of bonuses. Palmer also said he told employees
that if the plant went union, the subject of bonuses would be
negotiated, just as all other matters, and that there could be
changes in wages and benefits then effective.
The only testimony offered in support of this portion of the
objection was that' of Ramon Loos, who said, "To my best
recollection, he said if we would go union, that negotiations
would start, and we'd go out on strike, and that also in
comparison with our wages, there would be no bonus." ("He"
referred to Palmer.)
Loos' testimony is vague and ambiguous and, in any event,
is not greatly different from that of Palmer. The latter was a
firm and convincing witness, and his version of the statements
made relative to bonuses is credited. Those statements were
not coercive or objectionable, and it is so found. Orchard
Corp. of America, 170 NLRB 129 (1968). Further, Palmer's
testimony that employees related to management the Union's
position on bonuses was not challenged or contradicted, and
it is credited. The Union's position thus supports Palmer's
testimony. General Electric Company, 161 NLRB 614 (1966).
The only other evidence on this subject is Respondent's
poster, Charging Party's Exhibit 4, reading, "Don't put your
incentive program up for trade. Vote no union." That lan-
guage is protected free speech, and is not objectionable. It is
not coercive or threatening. Tyler Pipe & Foundry Company,
116 NLRB 1258 (1956).
Testimony concerning the alleged threat to close Respon-
dent's plant if the Union won the election was limited and
uncertain." Lyman testified that Bob Smith told him that if
the Union came in , ". . . likely, or probably the plant would
close down." Lene testified that Pidcock told him in response
to a question about the possibility of closing the plant in case
of unionization, " ... maybe they can and then maybe they
can't." After a pause of about 10 or 15 seconds, Pidock
allegedly said, "in my opinion."
23 The subject of strikes is considered elsewhere in this Decision.
141
Lyman's testimony is contradictory to his other testimony
and simply is not credited. Lene's testimony on this point is
ambiguous, but it seems to support the Respondent's position
more than that of the Charging Party.
It is found that this objection is without merit.
D. Requested Bargaining Order
General Counsel urges a remedial bargaining order pursu-
ant to the law established by N.L.R.B. v. Gissel Packing Co.,
Inc., 395 U.S. 575 (1969). Respondent contents that such a
bargaining order is not appropriate, and in support thereof,
relies upon two affirmative defenses: (a) allegation that the
Union did not make a demand in a unit appropriate for
collective bargaining and (b) allegation that the Union did not
represent a majority of the employees in the unit for which
it demanded recognition.
(a) Respondent's basic argument relative to the unit is that
the Union demanded recognition in a group that included
four truckdrivers and six clerks;" these employees were not
excluded when the demand was made. The exclusion is
conceded by the General Counsel, but it is argued that the
omission was inadvertent and immaterial.
First, as pointed out in General Counsel's brief, the de-
mand, essentially, is for the same unit agreed to between the
parties in their agreement for consent election approved May
23, 1974, and for which the election was conducted. At no
time did Respondent indicate any uncertainty about, or con-
cern with, description of the unit, until its amended answer
was filed.
Second, the law on this point was aptly stated when the
Board affirmed an Administrative Law Judge in Electric Wir-
ing, Inc., 193 NLRB 1059 (1971):
Ruff's failure to mention those magic words (Note:
guards, office clericals and supervisors) as types of em-
ployees who would obviously be excluded from a bar-
gaining unit at Electric under common and well-known
Board principles is a minor deviation from the unit de-
scription found appropriate in fn. 5, above, and not sig-
nificant enough to render the demand legally insuffi-
cient.
It is found that this affirmative defense is without merit.
The demand herein was properly and legally made.
(b) Respondent contends that the General Counsel failed
to establish that the Union at any time obtained representa-
tion cards from a majority of the employees in the unit for
which it sought recognition. This is no more than setting up
strawmen to knock down. Respondent attempts to enlarge
the unit (from 125, which is the correct number, to 134,
which is patently wrong), and then to show lack of a majority
as of April 17, 1974, when the Union's demand letter was
received by Respondent. The difference between 125 and 134
was created by including in the unit total nine employees
inadvertently omitted from the unit description set forth in
the Union's demand letter.
It is found that this affirmative defense is without merit
and that the Union did have a majority at the time it made
24 It is found that Kenley Palmer and Robert McMurphy are supervisors
within the meaning of the Act
142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
its demand. The question of authenticity of the cards is dis-
cussed below.
- (c) General Counsel seeks a Gissel order primarily on the
basis of allegedly illegal discharges of Pattee and Lyman.
However, as found above , those discharges were not in viola-
tion of the Act.
As to employer unfair labor practices that warrant a refus-
al-to-bargain finding (not sought herein) or a bargaining or-
der, the criteria to be applied are set forth by the United
States Supreme Court in Gissel. In that case, the high Court
held that a bargaining order would be appropriate in two
situations . The first is in the case of "outrageous" and "perva-
sive" unfair labor practices where the employer 's actions are
so coercive that, even in the absence of an 8(a )(5) violation,
a bargaining order is necessary to repair the unlawful effect
of those actions. The unfair labor practice found above does
not fall within that category . The second is: ". .. in less
extraordinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election process." In Ship Shape
Maintenance Co., Inc„ 189 NLRB 395 (1971), enforcement
denied in part 474 F.2d 434 (C.A.D.C., 1972), the Board
expressed the test to be whether the lingering effects of the
unfair labor practices render uncertain the possibility that
traditional remedies can ensure a fair election , and whether
the Union's majority card designations obtained before the
unfair labor practices provide a more reliable test of the em-
ployee's desires and better protect employee rights than
would an election . As stated in Joseph J. Lachniet, d/bfa
Honda ofHaslett, 201 NLRB (1973), where a coercive atmos-
phere is created by the employer, which conventional Board
remedies may not adequately dissipate so that a fair election
can be held with reasonable certainty, a bargaining order is
warranted.
The Board often has refused to issue a bargaining order
when an employer's unfair labor practices substantially ex-
ceeded those of the Company's in the instant case. For exam-
ple, in Motown Record Corp., 197 NLRB 1255 (1972), an
employer was found to have engaged in seven separate viola-
tions of Section 8(a)(1) of the Act, including coercive interro-
gation . The Board refused to issue a bargaining order, point-
ing out:
... none of (the seven instances) were directed at em-
ployees in general, none of them seriously jeopardized
the employees' job security, no specific benefits were
promised, and, taken in their context, none could have
so affected the employee or employees involved to such
an extent that they could not cast a free and uncoerced
ballot after the application of the Board's remedies.
See also Gold Circle Department Stores, A Division ofFede-
rated Department Stores Inc., 207 NLRB 1005 (1973); J. J.
Newberry Company, 202 NLRB 420 (1973); Restaurant As-
sociates Industries, Inc., 194 NLRB 1066 (1972); Central Soya
of Canton, Inc., 180 NLRB 546 (1970).
I find that, even though the Union represented a majority
of the Company's employees in the bargaining unit at the
time it demanded recognition , the Board 's conventional
remedies are adequate to neutralize the effect of Robert
Smith's unlawful interrogation of an employee so that a fair
election can be held, and that, therefore, a bargaining order
is not warranted under the criteria enunciated in Gissel.
E. Respondent's Additional Affirmative Defense
Respondent attacks the Union's claimed majority as of the
date of its demand on the basis of: (a) misrepresentation of
the purpose of union authorization cards; (b) untimely execu-
tion of cards; (c) revocation of cards by some employees; and
(d) threat and coercion of employees.
As discussed above, a Gissel order is not warranted under
the facts of this case. the Union's majority status as of the date
of its demand is not controlling, since Gissel primarily turns
on the nature of the conduct involved, rather than majority
status.
Consideration of the above-listed affirmative defenses thus
is not required for decision herein, since they are advanced
solely for the purpose of attack_ng the Union's majority
status.
However, to complete the record, it is found, based on the
credited testimony of Dorothy Lehman, supported by the
credited testimony of card signers, that all signatures on cards
in evidence are authentic, that all such cards were timely
executed, and that no card authorizations were revoked.
The testimony of Sean Harrigan and James Whitaker rela-
tive to union meetings, organizational efforts, and instruc-
tions to card solicitors is credited. Respondent offered no
credible testimony in support of its allegations that cards
were misrepresented , or that any union representative or
agent threatened or coerced any employee. Respondent intro-
duced no evidence that improper representations were made
relative to waiver of initiation fees. It is found that the affirm-
ative defenses based on allegations of misrepresentation,
threat, and coercion were not proved.
The final matter urged by Respondent as an affirmative
defense is its allegation of union "unclean hands" in -violating
Section 8(b)(1)(A) and 8(e) of the Act. This is no more than
an untimely objection to the election, and is found not
proved.
IV, OBJECTIONS TO THE ELECTION ,
As discussed above, certain of Respondent's conduct, oc-
curring during the critical preelection period, precluded em-
ployees from exercising their freedom of choice in selecting
or rejecting the Union, and constitutes substantial interfer-
ence with the election.25 I shall, therefore, recommend that
the election of July 23, in Case 36-RC-3283, be set aside and
that the case be remanded to the Regional Director for Re-
gion 19 for the purpose of conducting a new election at such
time as he deems the circumstances permit the free choice of
a bargaining representative.
V THE EFFECT OF THE UNFAIR LABOR PRACTICE UPON COMMERCE
The Respondent's activities set forth in section III, above,
occurring in connection with the operations of Respondent
described in section I, above, have a close, intimate, and
substantial relation to trade, traffic, and commerce among
25 Wilkinson Manufacturing Co. v N.LR.B, 456 F.2d 298 (C.A 8,
1972), VCA Sterling, Inc., 209 NLRB 127 (1974)
TERRY INDUSTRIES OF OREGON, INC.
the several States and tend to lead to labor disputes burdening
and obstructing commerce and the free flow of commerce.
VI THE REMEDY
Having found that Respondent has engaged in an unfair
labor practice in violation of Section 8(a)(1) of the Act, I shall
recommend that Respondent be ordered to cease and desist
therefrom, and from in any like or related manner, infringing
on its employees' Section 7 rights, and to take certain affirma-
tive action designed to effectuate policies of the Act.
Upon the basis of the foregoing findings of fact and the
entire record in this proceeding, I make the following:
CONCLUSIONS OF LAW
1. Terry Industries of Oregon, Inc., Respondent herein, is
an employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act. -
2. Retail Clerks Union, Local No. 1612, Retail Clerks
International Association, AFL-CIO, Charging Party
herein, is a labor organization within the meaning of Section
2(5) of the Act.
3. By coercively interrogating an employee concerning his
union activities, the Company interfered with, restrained, and
coerced its employees in the exercise of their rights guaran-
teed to them by Section 7 of the Act, in violation of Section
8(a)(1) of the Act
4. Respondent did not, through alleged conduct, violate
Section 8(a)(3) of the Act by dischargmg its employees Pattee
and Lyman for engaging in union activities as alleged in
paragraph 8 of the complaint.
5. The aforesaid unfair labor practice is an unfair labor
practice affecting commerce within the meaning of Section
2(6) and (7) of the Act.
Upon the foregoing findings of fact and conclusions of law,
pursuant to Section 10(c) of the Act, I hereby issue the fol-
lowing recommended:
ORDER 16
Terry Industries of Oregon , Inc., its officers, agents,
successors , and assigns, shall:
1. Cease and desist from:
(a) Coercively interrogating employees concerning union
activities on behalf of the Union.
26 In the event no exceptions are filed as provided by Sec 102 46 of the
Rules and Regulations of the National Labor Relations Baord, 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
deerried waived for all purposes.
143
(b) In any like or related manner interfering with, restrain-
ing, or coercing its employees in the exercise of their rights
guaranteed to them in Section 7 of the Act.
2. Take the following affirmative action to effectuate the
policies of the Act:
(a) Post at its LaGrande, Oregon, facility copies of the
attached notice marked "Appendix."27 Copies of the notice,
on forms provided by the Regional Director for Region 19,
after being duly signed by Respondent's authorized represen-
tative, shall be posted by Respondent 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 ensure that said notices
are not altered, defaced, or covered by any other material.
(b) Notify the Regional Director for Region -19, in writing,
within 20 days from the date of this Order, what steps Re-
spondent has taken to comply herewith.
IT IS FURTHER RECOMMENDED that the complaint be dis-
missed to the extent that it alleges violations of Section 8(a)(3)
of the Act.
IT IS FURTHER RECOMMENDED that the election conducted on
July 23, 1974, in Case 36-RC-3283 be set aside and that said
case be remanded to the Regional Director for Region 19 to
conduct a new election at such time as he deems the circum-
stances permit the free choice of a bargaining representative.
27 In the event 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."
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT coercively interrogate employees in or-
der to discourage membership in or activities on behalf
of Retail Clerks Union, Local No. 1612, Retail Clerks
International Association, AFL-CIO, or any other labor
organization.
WE WILL NOT in any like or related manner interfere
with, restrain, or coerce employees in the exercise of
their rights to self-organization, to form, ,loin, or assist
labor organizations, to bargain collectively through rep-
resentatives of their own choosing, to engage in con-
certed activities for the purpose of collective bargaining
or other mutual aid or protection, or to refrain from any
or all such activities.
TERRY INDUSTRIES OF OREGON, INC