Texas Transport & Terminal Co., Inc.

National Labor Relations Board - Board Decisions

Dec 24, 1970

187 N.L.R.B. 466 (N.L.R.B. 1970)

DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Texas Transport & Terminal Co., Inc . and Texports
Stevedore Company, Inc.' and Office & Profes-
sional Employees International Union , Local 27,
AFL-CIO. Case 23-CA-3372
December 24, 1970
DECISION AND ORDER
BY CHAIRMAN MILLER AND MEMBERS
FANNING AND JENKINS
On June 2, 1970, Trial Examiner Thomas F. Maher
issued his Decision in the above-entitled proceeding,
finding that Respondent had engaged in and was
engaging in certain unfair labor practices and
recommending that it cease and desist therefrom and
take certain affirmative action, as set forth in the
attached Trial Examiner's Decision. The Trial Exam-
iner also found that Respondent had not engaged in
certain other unfair labor practices alleged in the
complaint and recommended that the complaint be
dismissed as to them. Thereafter, the General Counsel
and Respondent filed exceptions to the Trial Examin-
er's Decision and supporting briefs.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
powers in connection with this case to a three-member
panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed.
The Board has considered the Trial Examiner's
Decision, the exceptions, the briefs, and the entire
record in the case, and finds merit in certain of the
General Counsel's exceptions. Accordingly, the
Board adopts the findings, conclusions, and recom-
mendations of the Trial Examiner only to the extent
consistent herewith.
At the request of her coworkers, employee Doris
Baker contacted the Union in mid-May 19692 and, on
June 10, two union representatives met with Respon-
dent's office clerical employees to begin the organiza-
tional campaign. By June 13, 32 of the 51 employees
in the unit found appropriate by the Trial Examiner3
had signed unambiguous cards authorizing the Union
to be their exclusive collective-bargaining representa-
tive. By letter dated June 26, the Union requested
recognition and, on June 30, Respondent informed
the Union that, because it believed that the Union's
assertion of majority status was erroneous, it would
1 Texas Transport & Terminal and Texports operate a steamship agency
and provide stevedoring services to vessels in Houston , Texas The Trial
Examiner found that , for purposes of this case , the two companies
constitute a single employer , herein called Respondent
file a representation petition with the Board, rather
than recognize the Union on the basis of a card
majority.
Respondent had begun hearing rumors about the
Union in mid-May 1969, and, as noted by the Trial
Examiner, when "Respondent's officials learned of
the Union's campaign its watchword became Action."
On June 9, Respondent's vice president, Charles A.
McEniry, upon learning from Respondent's person-
nel manager that employees Baker and Quiroga had
been contacted by the Union, interviewed them,
asking, inter alia, what they had heard from the
Union, how they felt about it, and how the employees
felt about the Union. Between that date and approxi-
mately June 16, several of Respondent's supervisors
also interrogated the employees working in their
respective departments about the Union. The employ-
ees were asked by their supervisors how they felt
about the Union and their responses were reported to
McEniry.
Moreover, in the course of the interrogation of
employee Robert Pratt by Line Manager A. B. Kohut,
the latter asked if Pratt would change his mind about
the Union if he received a wage increase and, upon
receiving a negative reply, Kohut commented that
Respondent "might have to clean the slate and hire
new employees that felt differently about the subject
of unions." Employees were also told by Comptroller
K. S. Trostmann that a result of unionization would
be that if they sought employment at other steamship
companies "they may have problems securing em-
ployment," even though Trostmann admitted that he
had no basis in fact for predicting the reaction of
other employers to the unionization of Respondent's
office help.
About the same time that the supervisors interrogat-
ed the employees in their departments, the supervisors
read them a statement prepared by Respondent's
personnel manager in which Respondent reminded
the clerical employees that during the then recently
concluded longshoremen strike the employees were
kept on the payroll even though there was little to do.
On June 13, McEniry was authorized by Respon-
dent's president, H. W. Roberts, during a telephone
conversation, to grant wage increases effective Satur-
day, June 14. On Monday and Tuesday, June 16 and
17, all but I of the 42 employees who received salary
increases were personally informed of the fact in
interviews with Respondent's personnel manager. Of
the 42 employees who were given increases ranging in
amount from $10 to $150 per month, 30 were in the
appropriate unit.
2 All dates are 1969 unless otherwise indicated
3 We agree with the Trial Examiner's unit determination and his
decision to exclude line managers from the unit because they are
supervisors within the meaning of the Act
187 NLRB No. 78
TEXAS TRANSPORT & TERMINAL CO.
In a letter to employees dated June 18, Vice
President McEniry reminded the clerical employees
about the company policy that kept them on the
payroll while the longshoremen were on strike even
though there was no work for them and noted that
"this policy would change, resulting in considerable
hardship to you" if the Union were successful.
Within a week of granting the wage increases, and a
few days after sending the letter to employees,
McEniry, on June 23, 24, and 25. speaking from
prepared notes, met with groups of from four to six
employees to discuss the Union's campaign. McEniry
met with virtually all the unit employees during that
period. Among other topics discussed by him at the
group meetings, McEniry often mentioned the fact
that during the 102-day longshore strike from January
1969 to April 1969, the office employees continued to
work despite the absence of things to do.
McEniry told the employees that this policy of
working during the longshore strike would not have
been the case had the clerical employees belonged to a
union. He noted the situation at another shipping
company where the unionized clerical employees did
not work during the strike. McEniry also commented
that while Respondent's sick leave policy had been to
pay an ill employee for the duration of his bona fide
illness , he was not sure what the Union's policy would
be. However, McEniry told at least one of the groups
with whom he met that under a union contract sick
leave would be limited. Also, McEniry commented on
the fact that with a union Respondent would be more
strict in its attendance policy, including the reinstalla-
tion of the timeclock which McEniry had removed
upon becoming head of the Houston office.
As noted above, on June 30 Respondent denied the
Union's June 26 request for recognition. A petition in
Case 23-RM-232 was filed by Respondent on July 1,
but conduct of an election was prevented by the
instant proceeding. After Respondent's refusal to
recognize the Union, the Union called a strike on July
8, but only nine of the unit members participated.
They eventually returned to work without incident.
Meanwhile, on July 10 the Regional Director for
Region 23 received a letter signed by 32 of Respon-
dent's employees, 12 of whom had previously signed
authorization cards, which stated that the Union was
"non-beneficial" to their interests and that they
wanted to express their choice through an election. In
a petition received by Region 23 on August 1, 36
employees, including 18 who had signed cards,
revoked the Union's authority to represent them for
purposes of collective bargaining.
1. We agree with the Trial Examiner's finding that
by systematically interrogating its employees about
4 The record indicates that poor to 1968 virtually all increases were
given in January In 1968 Respondent granted 9 increases in June, 17 in
467
union activities, threatening employee Pratt with job
loss for supporting the Union, warning employees
that other shipping industry employers would not hire
Respondent's employees if they selected the Union,
and offering employee Pratt a wage increase to
change his mind about the Union, Respondent
violated Section 8(a)(1) of the Act.
2. The Trial Examiner found that the June 14
wage increases were a "part of the normal exercise of
Respondent's business function" and were not grant-
ed to interfere with the Union's organizational
campaign in violation of Section 8(a)(1) of the Act.
We disagree for the following reasons.
Admittedly, since January 1969 Respondent's
executives had been discussing the possibility of
salary increases for the Houston office employees
involved herein. The minutes of Respondent's Janu-
ary management meeting disclose that because of the
longshore strike then in progress Respondent decided
to defer the customary January salary increases.4 In
March 1969, it was agreed at a similar meeting of
Respondent's executive officers that Respondent's
president would receive salary recommendations for
further consideration.
In April 1969, pursuant to the prior month's
management decision, McEniry wrote to Roberts,
Respondent's president, describing Houston's person-
nel problems and indicating that most employees who
resigned did so because of money. When the long-
shore strike ended in April 1969, Respondent gave
raises ranging in amount from $15 to $75 per month to
32 employees, of whom 18 were in the appropriate
unit herein. Thereafter, on May 8, McEniry again
wrote to Roberts and stated that "not only are our
personnel problems still very much with us, but the
time is close (about two/three months) when we will
have to give serious consideration to granting salary
increases to those individuals who did not receive
increases last month."
At the May 1969 executives' meeting following
McEniry's letter to Roberts, according to the minutes,
it was "decided only that personnel are, indeed, hard
to find, and salaries steadily increase. General policy
is to hire good people at good salaries . . .." Thus, it
is clear that at no time prior to the June 14 increases
did Respondent's management discuss specifically
when to grant the Houston employees increases in
addition to those customary January increases which
were deferred until April because of the longshore
strike.
As noted above, 30 of the 42 employees given
increases on June 14 were in the appropriate unit and
13 of the 30 had also received April raises of between
$15 and $25 per month. Interestingly, McEniry's May
July, and 2 in August. We do not find that this established that
Respondent had a pattern of granting midyear increases only in June
468 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
8 letter only indicated that consideration of such
increases would be due in July or August ("the time is
close (about two/three months)") and that such
increases would be for those employees who had
received none in April 1969.
While the Trial Examiner characterized the increas-
es as "a part of the normal exercise of the Company's
business function," the record indicates that Respon-
dent had no intention of giving Houston office
clerical employees additional increases in June 1969,
at least prior to the beginning of the Union's
organizational campaign on June 10. None of the
management meetings ever involved a discussion of a
specific timetable for granting wage increases in 1969,
save deferral of the customary January increases. In
fact, at the meeting immediately prior to the June 14
increases, all that was decided was that Respondent's
general policy was to hire good people at good salaries.
Moreover, contrary to McEniry's May 8 suggestion to
Roberts that additional increases be limited to those
employees who had received none in April 1969,
several employees who had also received April raises
were granted increases in June. McEniry also only
suggested consideration of this proposal in July or
August 1969. Finally, as we have found, Respondent
did not have an established policy of granting
midyear increases only in the month of June.
The only new factor which arose between the May
meeting and McEniry's May 8 letter and the June
increases was the start of the Union's organizational
campaign on June 10. We, therefore, conclude from
the above, that when Respondent learned of the
Union's campaign it decided to accelerate implemen-
tation of the vaguely discussed proposal to grant
Houston office clerical employees additional wage
increases. Such "conduct immediately favorable to
employees which is undertaken with the express
purpose of impinging upon their freedom of choice
for or against unionization and is reasonably calculat-
ed to have that effect"5 is clearly violative of the Act.
Accordingly, we find that by granting its employees
wage increases on June 14 Respondent violated
Section 8(a)(1) of the Act.
Our dissenting colleague's disagreement with our
finding that Respondent granted wage increases on
June 14 for an unlawful purpose is based on two
grounds: (1) Respondent made no explicit reference
to the organizational campaign in granting the
increases; and (2) our finding that the increases were
unlawfully granted is based solely on their timing.
In our experience, an employer rarely couples a
wage increase intented to affect employee desires
during an organizational campaign with an explicit
avowal of such purpose. The absence of such a
statement does not make the announcement lawful,
however. N.L.R.B. v. Exchange Parts Co., 375 U.S.
405; N. L. R. B. v. Pyne Moulding Corp., 226 F.2d 818
(C.A. 2); Indiana Metal Products Corp. v. N.L.R.B.,
202 F.2d 613 (C.A. 7). Employees are well able to
understand the purpose of well-timed grants of
benefits without being told by their grantor that the
increases are intended to dissuade them from unioni-
zation. "The danger inherent in well-timed increases
in benefits is the suggestion of a fist inside a velvet
glove. Employees are not likely to miss the inference
that the source of benefits now conferred is also the
source from which future benefits must flow and
which may dry up if it is not obliged." Exchange Parts,
375 U.S. at 409.
An employer's purpose in granting wage increases
during an organizational campaign may, of course, be
proved by direct admissions of the employer. But it
may also be deduced, as here, from all the conduct of
the employer, particularly other unfair labor prac-
tices. "Other unlawful conduct may often be an
indication of the motive behind a grant of benefits
while an election is pending, and to that extent it is
relevant to the legality of the grant . ..." Exchange
Parts, supra, 410. We have not based our finding of
unlawful purpose solely on the timing of the grant, as
stated by our dissenting colleague. Rather such
finding is based on the findings made by the Trial
Examiner, with whom our colleague agrees, that
Respondent committed other contemporaneous un-
fair labor practices designed to undermine the Union,
and our additional finding that certain speeches made
by Respondent constituted unfair labor practices.
Also, Respondent's inability to justify its decision to
grant raises the same week that the organizational
campaign began, after previously having left the
increases in the posture of not being granted at this
time but postponed (and then only "for considera-
tion") until July or August, we believe warrants the
inference based on all the evidence that the granting
of the wage increases was part and parcel of the "same
course of illegal conduct embarked upon earlier to
defeat the Union." Pyne Moulding Corp., supra, 821.
The threats were the stick, the grant of wage increases
the carrot. Together they were intended to destroy the
Union's majority status. As the events proved,
Respondent was successful in its efforts.
3. The Trial Examiner found that McEniry's
speeches of June 23, 24, and 25 contained proper
expressions of opinion and fact and, thus, did not
violate Section 8(a)(1) of the Act. We disagree for the
following reasons.
In finding McEmry's comments lawful, the Trial
Examiner relied on the Supreme Court's statement in
5 NLRB v Exchange Parts Co, 375 U S 405, 409
TEXAS TRANSPORT & TERMINAL CO. 469
N.L.R.B v. Gissel Packing Co., that an employer
"may even make a prediction as to the precise effect
he believes unionization will have on his company."
However, the Court also stated that "the prediction
must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstr-
ably probable consequences beyond his control
" 7 The Court concluded that if
there is any implication that an employer may or
may not take action solely on his own initiative for
reasons unrelated to economic necessities and
known only to him, the statement is no longer a
reasonable prediction based on available facts but
a threat of retaliation based on misrepresentation
and coercion, and as such without the protection
of the First Amendment.8
Here, there is nothing in the record to support the
assumption underlying McEniry's assertion that the
Union would not allow its members to work during
future longshore strikes even if Respondent were
willing to retain the office clerical employees on the
payroll while there was no work for them. Nor, for
that matter, did Respondent have any basis in fact for
assuming that the Union would demand through
negotiations for a collective-bargaining agreement
stricter sick leave and attendance policies. In fact, it is
more probable that the Union would have desired to
retain these benevolent policies of Respondent. Thus,
when McEniry on June 23, 24, and 25 told the
employees that sick leave and attendance policies
would be stricter with a union and that had the
clerical employees belonged to a union they would
not have worked during the longshore strike, it is clear
that Respondent was attempting to convey to the
clerical employees the idea that, if the Union were
selected, Respondent would eliminate these benevo-
lent policies.
These statements are not reasonable predictions
based on available facts, but are warnings of action
that Respondent could or could not initiate solely on
its own depending on how the employees acted
toward the Union. Such clear threats of retaliation for
selecting the Union are unlawful. Accordingly, we
find that by threatening its employees with reprisals
for selecting the Union Respondent violated Section
8(a)(1) of the Act.
4. The Trial Examiner found that, on the basis of
the 8(a)(1) violations which he found, a bargaining
order was not warranted to remedy Respondent's
unfair labor practices and that Respondent had not
violated Section 8(a)(5) of the Act. We disagree.
As noted above, by June 13 the Union had received
signed authorization cards from 32 of the 51 employ-
ees in the appropriate unit, and 34 by the time it
demanded recognition on June 26. The Union thus
had a clear majority when Respondent refused to
recognize it as the bargaining representative of the
office clerical employees on June 30.
Between the beginning of the Union's organization-
al campaign on June 10 and Respondent's refusal to
bargain on June 30, Respondent committed numer-
ous violations of Section 8(a)(1) of the Act, including
offering and granting wage increases to unit members,
systematically interrogating employees concerning
their attitude toward the Union, voicing the unfound-
ed belief that other shipping industry employers
would not hire persons who had previously worked in
an organized establishment, and threatening employ-
ees with the loss of benefits (sick leave, etc.) if the
Union were successful.
As the Court in Gissel said, in approving the Board's
use of a bargaining order in cases involving, as here,
less "outrageous" and "pervasive" employer unfair
labor practices, if
the Board finds that the possibility of erasing the
effects of past practices and of ensuring a fair
election (or a fair rerun) by the use of traditional
remedies, through present, is slight and that
employee sentiment once expressed through cards
would, on balance, be better protected by a
bargaining order, then such an order should issue.9
Here, the purpose and effect of Respondent's unlaw-
ful activities were clearly such as to make the clerical
employees fearful for their jobs and the benefits
attendant thereon if the Union were selected by them,
and also to impress upon the employees that Respon-
dent could be benevolent without a union, by granting
them wage increases.
We find from the above that Respondent's extensive
violations of Section 8(a)(1) of the Act could reason-
ably be expected to have the effect of undermining the
Union's majority and destroying the conditions
necessary to the holding of a free and fair election. In
our opinion, traditional remedies would not erase the
effects of these violations or insure a fair election. The
unambiguous cards validly executed by a majority of
the employees in the unit represent a more reliable
measure of employee desires on the issue of represent-
ation than would an election, in our opinion. We
conclude that, in order to protect the statutory rights
and interests of employees, to remedy the violations
of Section 8(a)(1) of the Act committed, and to
effectuate the policies of the Act, it is essential that
Respondent, Texas Transport & Terminal Co., Inc.
and Texports Stevedore Company, Inc., be ordered to
recognize and bargain with the Union as the statutory
representative of its employees for purposes of
collective bargaining. Accordingly, we find that by
6 395 U S 575.618
1 Ibid
6 Ibid
9 Gissel, supra, In 6 at 614-615.
470 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
refusing to recognize and bargain collectively with the
Union on or after June 30, 1969, Respondent violated
Section 8(a)(5) of the Act.
CONCLUSIONS OF LAW
1. Respondent is an employer engaged in com-
merce within the meaning of the Act.
2. The Union is a labor organization with the
meaning of the Act.
3. The job classifications at Respondent's Hous-
ton, Texas, office of traffic representative, outbound
and inbound clerks, typists, multilith operators,
stenographers, freight cashiers, secretaries, payroll
clerks, accounting clerk-typists, office boys, junior
stenographers, clerk-typists, full cargo clerks, file
clerks, PBX operators, and teletype operators, but
excluding guards, confidential secretaries, the assist-
ant to full cargo manager, the assistants to the
operations managers for Texas and Houston, line
managers , and all other supervisors as defined in the
Act, constitute an appropriate unit for the purposes of
collective bargaining within the meaning of Section
9(b) of the Act.
4. By refusing on and after June 30, 1969, to
recognize and bargain collectively with Office &
Professional Employees International Union, Local
27, AFL-CIO, Respondent has engaged in unfair
labor practices in violation of Section 8(a)(5) and (1)
of the Act.
5. By interfering with, restraining, and coercing
employees in the exercise of rights guaranteed in
Section 7 of the Act, Respondent has engaged in
unfair labor practices within the meaning of Section
8(a)(l) of the Act.
6. The aforesaid unfair labor practices affect
commerce within the meaning of Section 2(6) and (7)
of the Act.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended , the National Labor
Relations Board hereby orders that Respondent,
Texas Transport & Terminal Co., Inc. and Texports
Stevedore Company, Inc., Houston , Texas, their
officers , agents, successors, and assigns , shall take the
following action:
1. Cease and desist from:
(a) Refusing to bargain collectively concerning rates
of pay, wages, hours, and other terms and conditions
of employment with Office & Professional Employees
International Union , Local 27, AFL-CIO, as the
10 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 Pursuant to a
exclusive representative of its employees in the
following appropriate unit:
The job classifications at Respondent's Houston,
Texas, office of traffic representative, outbound
and inbound clerks, typists, multilith operators,
stenographers, freight cashiers, secretaries, payroll
clerks, accounting clerk-typists, office boys, junior
stenographers, clerk-typists, full cargo clerks, file
clerks, PBX operators, and teletype operators, but
excluding, guards, confidential secretaries, the
assistant to full cargo manager, the assistants to
the operations managers for Texas and Houston,
line managers, and all other supervisors as defined
in the Act.
(b) Threatening or engaging in reprisals to employ-
ees if they join or assist a labor organization, or select
a representative for collective bargaining.
(c) Interrogating employees concerning their union
activities in a manner constituting interference,
restraint, or coercion in violation of Section 8(a)(1).
(d) Granting employees wage increases in a manner
constituting interference, restraint, or coercion in
violation of Section 8(a)(1).
(e) Threatening employees with the possibility of
discharge if the Union were selected to represent
them.
(f) Warning employees of the possibility of reduced
job opportunities in the shipping industry if the Union
were selected to represent them.
(g) Offering employees wage increases to dissuade
them from retaining their union membership.
(h) In any like or related manner interfering with,
restraining, or coercing employees in the exercise of
rights guaranteed in Section 7 of the Act.
2. Take the following affirmative action which is
necessary to effectuate the policies of the Act:
(a) Upon request, bargain with the above-named
labor organization as the exclusive representative of
all the employees in the above-described unit with
respect to rates of pay, wages, hours, and other terms
and conditions of employment and, if an understand-
ing is reached, embody such understanding in a
signed agreement.
(b) Post at its operations in Houston, Texas, copies
of the attached notice marked "Appendix A." io
Copies of said notice, on forms provided by the
Regional Director for Region 23, after being duly
signed by Respondent's authorized representative,
shall be posted by it immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all places
where notices to employees are customarily displayed.
Reasonable steps shall be taken by Respondent to
Judgment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board"
TEXAS TRANSPORT & TERMINAL CO
insure that such notices are not altered, defaced, or
covered by any other material
(c) Notify the said Regional Director, in writing,
within 10 days from the date of this Order, what steps
it has taken to comply herewith
CHAIRMAN MILLER, dissenting
I would affirm , in its entirety, the Trial Examiner's
Decision and adopt all of his findings, conclusions,
and recommendations
As to most of the issues involved, I see no need to
elaborate in detail, inasmuch as the findings and
rationale are detailed in the Trial Examiner's Deci-
sion , with which I agree
It may be appropriate, however, to comment briefly
on the majority opinion's treatment of the wage
increase issue That issue , simply stated, is whether the
June 14 increases were granted for bona fide business
reasons or whether they were made, as the majority
properly phrases it, "with the express purpose of
impinging upon their [the employees'] freedom of
choice for or against unionization "
The record here was replete with evidence of the
business justification for the increases, including the
unrefuted testimony that the Company was experi-
encing a serious labor turnover problem as demon-
strated by the fact that from January 1968 to April
1969 the Company employed 48 people and that
during that same time 45 of these 48 left the employ of
the Company
There is not a scintilla of evidence in the record to
the effect that the Company, when it granted the
increases , made any reference whatever to the
pending union organizational effort or attempted,
during the campaign, to capitalize on the increases by,
for example , suggesting in any way that the said
increases should be considered by employees in
deciding whether or not to vote for the Union
In this state of the record, the Trial Examiner, after
having heard all of the witnesses, concluded that the
granting of the increases did not violate Section
8(a)(1) of the Act The majority opinion reverses the
Trial Examiner solely on the basis that the timing of
the increases occurred within a few days after the start
of the Union's organizational campaign While such
timing may reasonably create a doubt as to motiva-
tion, it does not in my view, standing alone,
demonstrate an "express purpose of impinging upon
[the employees') freedom of choice " Rather, in my
opinion, when General Counsel introduced proof of
the timing , the burden shifted to the Respondent to
show affirmatively a business justification which,
absent such suspicious timing, it would not have been
required to make Once the Respondent as it did here,
introduces unrefuted testimony of a business justifica-
tion , it then becomes the duty of General Counsel to
introduce independent evidence of improper motiva-
471
tion Compare N L R B v Great Dane Trailers, Inc,
388 U S 26 In the absence of any such evidence, I
would hold that General Counsel failed to meet his
burden of proof and would dismiss the allegations of
the complaint which allege an 8(a)(l) violation based
on the wage increases
The remaining violations found by the Trial
Examiner are clearly insufficient to support a Gissel
bargaining order, as the Trial Examiner appropriately
found
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT refuse to bargain with Office &
Professional Employees Union , Local 27,
AFL-CIO , as the exclusive bargaining representa-
tive of our employees in the bargaining unit found
appropriate by the National Labor Relations
Board
WE WILL NOT unlawfully question you concern-
ing your union membership or sentiments
WE WILL NOT threaten you with the possibility
of discharge if a union is selected to represent you
WE WILL NOT threaten you with stricter sick
leave , attendance , and work-during-strikes poli-
cies if a union is selected to represent you
WE WILL NOT offer , or grant , you wage increases
to induce you to withdraw your union member-
ship
WE WILL NOT warn you of the possibility of
reduced job opportunities in the shipping industry
if you select a union to represent you
WE WILL NOT in any like or related manner
interfere with , restrain , or coerce you in the
exercise of your rights to self -organization or to
form, join, or assist any labor organization, or to
bargain collectively with us concerning terms or
conditions of employment through the representa-
tive you select , or to refrain from any of these
activities if you so choose
You and all our employees are free to become or
remain, or to refrain from becoming, members of or
withdrawing membership in any labor organization
TEXAS TRANSPORT &
TERMINAL CO, INC
(Employer)
Dated By
(Representative ) (Title)
472
Dated By
DECISIONS OF NATIONAL LABOR RELATIONS BOARD
TEXPORTS STEVEDORE
COMPANY, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced by
anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compliance
with its provisions may be directed to the Board's
Office, 6617 Federal Office Building, 515 Rusk
Avenue, Houston, Texas 77002, Telephone
713-226-4296.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
THOMAS F. MAHER , Trial Examiner: Upon charges filed
on June 30 , 1969, by Office & Professional Employees
International Union, Local 27, AFL-CIO, against Texas
Transport & Terminal Co., Inc. and Texports Stevedore
Company, Inc., herein called the Respondent, the Regional
Director for Region 23 of the National Labor Relations
Board , herein called the Board , issued a complaint on
behalf of the General Counsel of the Board on October 29,
1969, alleging violations of Section 8(a)(1) and (5) of the
National Labor Relations Act, as amended (29 U.S.C., Sec.
151. et seq. herein called the Act. In its duly filed answer
Respondent , while admitting certain allegations of the
complaint , denied the commission of any unfair labor
practice.
Pursuant to notice a trial was held before me in Houston,
Texas, where the parties were present , represented by
counsel , and afforded full opportunity to be heard, present
oral argument , and file briefs. Briefs were filed by
Respondent and counsel for the General Counsel on
February 24, 1969.
Upon consideration of the entire record, including the
briefs filed with me , and specifically upon my observation
of each witness appearing before me , ' I make the following:
FINDINGS OF FACT AND CONCLUSIONS OF LAW
1. THE BUSINESS OF THE RESPONDENT
Texas Transport & Terminal Co., Inc., is a Delaware
corporation with its principal office and place of business at
New Orleans, Louisiana, and an office and place of
business in Houston , Texas, where it is engaged in the
business of a steamship agency. Texports Stevedore
Company, Inc., is a Texas corporation with its principal
office and place of business in Houston , Texas, where it is
engaged in the business of providing stevedoring services to
vessels.
It was stipulated at the trial of this matter that Texas
Transport and Texports have a common labor policy,
occupy joint offices , utilize a point accounting system, and
constitute a unitary operation at Houston . Furthermore,
the Companies have officers in common , Charles A.
McEmry testifying that he is vice president of both and K.
S. Trostman testifying that he is secretary -treasurer of
Texports and comptroller of Texas Transport . In addition,
certain of the supervisors , for example , John Meyer , direct
employees of both Texas Transport and Texports; and the
line managers , those individuals responsible for operations
relating to specific ship lines , have frequent occasion to
direct the activities of employees of both companies. Upon
the foregoing , and in particular , upon the admitted
existence of a common labor relations policy , I would
conclude and find that Texas Transport and Texports
Stevedoring, henceforth referred to herein as Respondent,
constitute a single employer for the purposes of the
resolution of the issues present in this case.2
It is admitted that Respondent annually, in the course
and conduct of its operations at Houston and elsewhere
throughout the United States, receives revenue in excess of
$50,000 for the performance of service for customers
located outside the State of Texas , said customers being
engaged in the business of operating ocean-going vessels in
interstate and foreign commerce . Accordingly, upon the
foregoing I conclude and find that Respondent is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted by the parties and I accordingly conclude
and find that Office & Professional Employees Internation-
al Union, Local 27, AFL-CIO, is a labor organization
within the meaning of Section 2(5) of the Act.
111. THE ISSUES
1. Interrogation , threats , and a promise of a raise as
interference , restraint , and coercion.
2. The quantum of employer misconduct necessary to
establish that a majority has been undermined or to render
a fair election improbable.
IV. THE UNFAIR LABOR PRACTICES
A. Sequence of Events
The most recent effort to organize Respondent's office
employees commenced in mid-May 1969 on the initiative of
employee Doris Baker who had been numbered among the
opposition in earlier campaigns in 1963 and 1967. After
determining that interest in a union existed among the
employees Mrs. Baker wrote to the Union and soon
thereafter was visited in her home by Union Business
Representative Jack Langford and Mike Buzbee , the local
business agent. Thereafter Mrs. Baker signed an applica-
tion for union membership which also authorized the
Union to act as her collective -bargaining representative.
At a meeting held thereafter on June 10 , Langford and
Buzbee addressed the employees on the benefits of the
Union , passed out authorization cards to the employees for
I Cf Bishop and Malco Inc , 159 NLRB 1159, 1161
2 Mary K Gordon T/A Sun Cleaners, 180 NLRB 465
TEXAS TRANSPORT & TERMINAL CO.
their signatures, and, according to a sworn statement
provided a Board agent by employee David Long,
informed the employees that if a majority signed the cards
and "if the Company consented to a card check, they would
use the cards signed for that purpose." He continued by
saying that should the Company not consent "it would go
to an election, at which time everyone could decide for
theirselves [sic ] in privacy whether they wanted a union or
whether they didn't want it."
Thirty-four employees signed authorization cards and
returned them to the Union's representatives. This number
included not only those solicited at the June 10 meeting but
those who had signed before and after. On June 26, 1969,
the Union wrote to Respondent's vice president, Charles
W. McEniry, requesting majority recognition, as follows:
This is to advise that a majority of all office clerical
employees employed at your Houston operation, but
excluding all other employees, guards, watchmen,
professional employees, confidential employees, and
supervisors, as defined in the Act, have selected the
Office & Professional Employees International Union,
Local 27, AFL-CIO as their collective bargaining
representative in all matters pertaining to wages, hours
of work, working conditions and other terms and
conditions of employment.
Therefore, this is to request that your company
recognize the aforementioned Union as the Bargaining
representative for said employees in the above de-
scribed unit. We are prepared and are now offering to
demonstrate our majority status to you through a card
check of the employees who have designated and
authorized this Union to act as their collective
bargaining representative. We will agree for any
responsible disinterested person, such as a Minister or a
Rabbi, or a member of the Federal Mediation and
Conciliation Service to make this card check.
Please treat this request for recognition as the majority
representative of the employees in said unit as a
continuing request.
No other person or organization now represents a
majority of the above described unit, and you are
hereby cautioned against entering into any contract or
any collective bargaining negotiations with any other
organization presuming to act as agent for or in behalf
of any such employees. You are further cautioned to
take no unilateral action in regard to rates of pay, hours
of work, and all other conditions of employment
without first contacting the Office & Professional
Employees International Union, Local 27, AFL-CIO
and giving them a chance to meet and bargain on any
such changes.
This will serve as the Union's request that the company
bargain collectively with the Union and negotiate to a
conclusion the terms of a collective bargaining agree-
ment regarding all matters pertaining to wages, hours of
work, working conditions and other conditions of
employment.
We stand ready and willing to prove our majority status
and request that you contact me within seventy two (72)
hours by phone or letter at the above address and phone
number, or contact Mr. Jack Langford, International
473
Representative at the Downtowner Motel, CA 8-0911,
Room 705.
Respectfully submitted,
Mike Buzbee,
Business Representative
In reply on June 30 Respondent, by Vice President
McEniry, rejected the Union's claim stating:
We have your advices that a majority of the office
clerical employees at our Houston offices have selected
the Office & Professional Employees International
Union AFL-CIO, Local 27, as their bargaining
representative, and your request for recognition.
We believe you are in error in your assertion that the
union has such a majority, and we refuse to recognize it
as a bargaining representative.
We will at once request an election by the National
Labor Relations Board, at which we feel sure our views
will be proven correct.
Yours very truly,
TEXAS TRANSPORT & TERMINAL CO., INC.
TEXPORTS STEVEDORE COMPANY, INC.
By Charles McEniry /s/
Vice President
On the following day, July 1, 1969, Respondent filed a
petition with the Board in Case 23-RM-232 for an election
among its employees to determine their preference for the
Union as their bargaining representative. Thereafter on
July 11 Respondent filed a first amended petition which
differed from the initial petition only in the added
allegation that it had been picketed by the Union since July
8. Accompanying this document was Respondent's motion
for expedited election . For reasons which will become clear
hereafter the election was never held.
B. Respondent 's Reaction to the Organizing
Campaign
Beginning in mid-May rumors came to Personnel
Manager White's attention with increasing frequency that
the Union was seeking to organize the employees. In fact,
according to Mrs. White, a number of the employees came
to her for advice on the subject of the Union.
On the morning of June 9, in the course of a routine
conversation in her office, Mrs. White learned from
employee Rudolph Quiroga that he had been called at his
home by someone from the Union. Shortly thereafter,
employee Doris Baker, whose duties brought her to Mrs.
White's office frequently , engaged in a conversation
concerning the Union during the course of which Baker,
according to Mrs. White, volunteered that "someone came
to see me ," without further identifying her visitor.
Employee Baker described the incident in greater detail.
Thus whereas Mrs. White mentioned simply that
"something again came up about the Union," Mrs. Baker
credibly testified that Mrs. White asked her several times
during the conversation, as she had periodically during the
preceding 2 or 3 weeks, if she had heard from the Union.
When Baker replied that the union representative had
visited her and that she had listened to what they had to say
474 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Mrs. White displayed surprise, saying she thought that
Baker would be against the Union as she had been
previously.
Mrs. White immediately reported these conversations
to Vice President McEniry who summoned the two
employees, both known to him for their "pro-company"
sentiments in earlier organizing campaigns.3 At this
meeting, with Mrs. White present, McEntry asked Quiroga
if he wished to add anything to the information he had
already given to Mrs. White, and he replied, according to
McEniry, that he had nothing to add. Quiroga, however,
testified that he was asked how he felt about the Union and
Quiroga had replied that at that time he did not know. I
accept Quiroga's version.
When he spoke to Mrs. Baker, McEniry asked her if she
had any knowledge of union activities, or if she had been
contacted, and she replied that someone had visited her at
her home on the previous Saturday. Then McEniry
inquired if the employees had contacted the Union, or the
Union had sought them out, and she told him it was they
who sought the Union. McEniry replied that he did not
particularly care for a union in the office, although he did
not object to unions generally, working with them as they
were on the waterfront. He did not think a union could
supply them with anymore help in the office, a problem that
was then critical (infra, sec. IV, Q. When Mrs. White asked
what they were going to do about it, McEniry replied that
"if they want a union I guess there is nothing further we can
do about it." He also reminded Mrs. Baker that the
Company had favored the office employees by keeping
them on the job during a recent strike on the docks
involving the International Longshoreman's Association
(ILA).'
Immediately following his conversations with Baker and
Quiroga, Vice President McEniry called Respondent's
president, Harold Roberts, told him of the Union's activity
among the office personnel, and suggested that they
communicate with their attorney. Roberts concurred.
At this point it was decided that McEniry should meet
with groups of employees, as had been suggested to him by
Personnel Manager White and a number of employees
themselves. In point of time, however, McEniry did not
meet with the employee group until later in the month
(infra, sec. IV, D) Meanwhile he and other members of
management engaged in a number of activities calculated
to stem the organizing drive.
First, in McEniry's absence on or about June 10 or II
Mrs. White gave a prepared statement to each of the
supervisors to be read to the employees in their respective
departments. The statement read as follows:
It has come to our attention that a union is
endeavoring to organize the employees of this office
again.
3 McEmry's testimony gives the impression that both Quiroga and
Baker were present together during the respective conversations which
followed their summons to McEniry's office Mrs White's testimony does
not elucidate this point But both Baker and Quiroga specifically testified
that one was not present while the other was in McEniry's office While I
do not consider this variant substantial and credit McEmry generally, I am
disposed to accept the testimony of the two employees that they met
separately with McEniry and Mrs White
4 The foregoing account is a synthesis of the substantially mutually
corroborated testimony of McEniry, Mrs White, Mrs Baker, and Quiroga,
Those of you who have worked here for some time
know that we have beat this attempt twice and we
strongly oppose a union representing the employees in
this office for reasons that should be obvious to you. All
of you will remember that for several months the
longshoremen were on strike and none of them earned
any money. The Union didn't support them but all that
time we paid you for staying here when there was little
or no work to do. If you organize a union and such a
strike occurs you can see what happened to the
longshoremen and there is a possibility that that will
happen to you because a strike by office employees
would shut down our shipping operations as well.
There is one other item that I want to tell you about
and that is this: If at some union meeting or if someone
approaches you and asks you to sign a card, I implore
you not to do so because since the last time we had an
organizing campaign here the law has changed and if
the union secures the signature of more than 50 per cent
of our employees, as bargaining representatives, you
will have a union whether you want it or not.
Remember this when they ask you to sign the card
because we are opposed to a union and will resist it with
every legal means.
Supervisors testifying at the hearing stated that they had
read the statement as requested. Thereafter some of them
bespoke themselves at some length on the subject of the
Union. Thus, several days after reading the statement
Comptroller K. S Trostmann, by his own account, called
employees of his department together and told them that
management was aware that the "Union was trying to
unionize the office force." He spoke to them briefly of the
benefits the Company provided them, referring particularly
to pensions and hospitalization and vacation plans. He
went on to consider with them the consequences of
unionization of the employees and the effect that this would
have on their future employment elsewhere. Thus if they
should at some future time seek a job with another
steamship line "they may have problems securing employ-
ment." Trostmann admitted at the hearing, however, that
he knew of no employer who refused to employ union
members. Thereafter he spoke to most of the employees
individually in his office, at McEniry's request, as did the
other supervisors. During the course of these individual
conferences, 13 in number, Trostmann asked each
employee his feeling towards the Union, giving them the
choice of not answering. This he understood to be the
substance of McEniry's instructions to him. Upon learning
the employees' sentiments toward the Union he reported
his findings to McEniry as requested.
Line Manager A. B. Kohut,5 as did each of the
supervisors, addressed his employees several days after the
reading of the statement provided by Mrs. White (supra).
taking into account variations which I accept as the consequences of
passing time and fading recollection
5 The position of line manager , as described by Vice President McEntry,
includes the responsibility for the operations of a specific steamship line in
its dealings with the Company Clerical employees handling matters
concerning this line would be responsible to the line manager who directs
and assigns their work , grants them time off, and attends supervisory
meetings Upon the whole record, and particularly upon the testimony of
McEniry, Mrs White, and employee Robert L Pratt, I conclude and find
that line managers employed by the Company , including A B Kohut, are
TEXAS TRANSPORT & TERMINAL CO. 475
Employee Robert L. Pratt testified that he and his group of
employees were read the statement by Assistant Local
Manager John Duderstadt. Thereafter, on or about June
16, Pratt and his immediate supervisor, A. B. Kohut, had a
private conversation in the latter's office which he initiated
by saying that "he had been requested by the higher-ups to
speak to people under him" "and get their views on the
Union, pro and con." Kohut then asked Pratt his union
views, and when Pratt told him he was for the Union he
asked him why. Pratt told him he felt that he deserved more
money. Kohut then asked Pratt if his salary were raised to
$400 a month would he change his mind. Pratt told him that
under the circumstances by which he would receive the
raise it would not make any difference to him and he would
still prefer the Union. Whereupon Kohut stated that "he
felt like the Company might have to clean the slate, those
were his exact words, clean the slate, and hire new
employees that felt differently about the subject of
unions."6
C. The Pay Raises
Contemporaneously with the incidents detailed above the
Company granted raises to the number of 40 on June 14,
pursuant to a decision made on the previous day, Friday,
June 13. Each one of the employees receiving a raise,
excepting only Quiroga who was on vacation, was
personally notified by Mrs. White during the 2 days which
followed. In the case of Quiroga, Mrs. White notified him
by telephone. Because of the significance which the
granting of a pay raise on this particular date bears to the
complaint allegations of interference, restraint, and coer-
cion, it is appropriate at this juncture to consider
Respondent's detailed explanation of the economics
involved. Thus it would appear by the credited testimony of
Respondent's officials called as witnesses by the General
Counsel that the granting of 40 pay increases to Respon-
dent's employees was neither a spontaneous nor an isolated
action. On the contrary, I am persuaded that Respondent,
like many other employers, had been experiencing critical
shortages among clerical employees as a result of constant
turnover and difficulty of replacement. Minutes of high
level management meetings of the Respondent reflected a
continuing concern for the problem and a need for solving
it by higher wages. Thus at a meeting in St. Louis in early
January 1969 the need for salary increases in the Texas and
New York offices was considered but decision was
postponed pending the settlement of the then current ILA
strike. Present at this meeting was Respondent President
Roberts as well as Vice President McEniry and the
chairman of the board. Again at a meeting in Philadelphia
on April 4, 1969, minutes reflect that salary increases and
rising costs were "minutely examined for a considerable
length of time." And thereafter at a similar meeting in
Dallas in mid-May the subject of personnel shortage and
rising wages was again discussed. Meanwhile in early May
a comprehensive study of the office personnel situation was
prepared by Personnel Manager White for McEniry.
Therein, as in her credited testimony before me, she
detailed the problems involved in recruiting, training, and
retaining competent office help. She cited numerous cases
of "quits" and related each to the Company's inability to
meet the employees' salary requirement. In conclusion she
recommended that serious consideration be given to an
increase in the salary schedule to avoid the expense of
retraining and loss of efficiency.
On April 10, prior to Mrs. White's study, McEniry wrote
to President Roberts in New Orleans detailing the
circumstances of inadequate salary as the reason for the
resignation of five key employees. Again on May 8
McEniry wrote to Roberts on the subject of inadequate
salaries, referred to raises that had been given to some
employees in April and stated that "the time is close (about
two/three months) when he will have to give serious
consideration to granting salary increases to those individu-
als who did not receive increases last month." In this letter
McEniry went into extensive detail to describe the need for
a revision of the salary structure to achieve stability of
employment and efficiency. Finally on June 13, McEniry
wrote Roberts to advise him of the resignation of three
more employees for reasons of money. In addition,
McEniry credibly testified, he had numerous telephone
conversations with Roberts and their attorneys on this same
subject of departing personnel and a need for pay increases.
Finally on June 13 President Roberts, by telephone,
authorized the granting of wage increases effective on the
following day and, after consultation with his attorneys,
McEniry put the raises into effect.
It appears from the documents in evidence that raises had
generally been granted annually to employees in January.
A departure from this practice began in 1968 when a
substantial portion of them were given in midyear, a change
which McEniry described as a new policy of granting
increases. In 1969 the raises intended for January were
deferred because of the ILA strike then in effect on the
docks and its consequent economic effect on the Company.
At the end of the strike in April some of the raises due in
January were given to employees. Because of the losses
incurred as a result of the strike many of these raises,
according to Mrs. White, were "token raises because we
couldn't afford to do anything else," and this she explained
to the recipients. Some of these employees received another
raise with the June group and a review of the schedule in
evidence supports Mrs. White's testimony that their April
"token raises" were small when compared with the April
raises of employees who got none at all in June.
Furthermore, from a review of the documents in evidence
which detail the pay raises over the past 5 years, it is clear
that the policy of annual raises was one of long standing,
and that those most recently given were not disproportion-
ately higher than in previous years. All that appears to be
different is the timing of the granting of the raises,
beginning first in 1968, and continuing with the 1969 raises
where the January group was deferred to April, where the
raise in April was smaller, and where the remaining
employees received raises in mid-June, when the others
were given supplements to their April raise.
In consideration of the circumstances allegedly attending
that line managers employed by the Company, including A. B. Kohut, are
supervisors within the meaning of the Act.
6 The credited, undenied testimony of employee Pratt.
476 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the granting of the June 14 raises I have reviewed the
precise dates upon which employees were given raises at
midyear in 1968 when the time policy was changed.
Contrasted with the June 14 date in 1969 it appears that in
1968 a considerable number of the midyear group received
wages on July 1, 1968. The significance of this July 1 date
loses its force for considerations herein, however, when it is
seen that in 1968 nine employees received raises on June 1,
and two in August. Upon such a finding of past practice
and under the pressing economic conditions created by the
ILA strike and departing personnel I am not disposed to
draw any inference from the granting of the increase
specifically on June 14 other than that they were made after
urgent request of top management and after continuing
preparations in the best interest of all concerned.
D. McEntry s Speeches
As Respondent's efforts to counter the Union's organiz-
ing campaign progressed it was decided by Vice President
McEniry, after consultation with the home office, that he
speak with the employees in small groups. Accordingly, on
June 23, 24, and 25, speaking from prepared notes, he
conferred with groups ranging from four to six individuals
on a schedule prepared by Mrs. White. The following is a
summary of the several subjects covered by him.7 He
introduced his subject by stating to the employees (supra,
sec. IV, B) that the Respondent was not in favor of
unionization of its office personnel because of the
impersonal relationship it would develop between manage-
ment and the employees, contrasted with the present
personal individual contacts that were generally enjoyed
throughout the organization.
McEmry described his tenure as manager of the
Respondent's San Juan, Puerto Rico, facility where he was
sent to get the office on a more efficient basis. Prior to his
arrival the employees had brought in a union. Shortly
thereafter, he told the employees, some of the San Juan
employees became disenchanted with their representation
and complained to him that they could no longer bring
their personal problems to officials of the Company but
were directed to take them to their union business agent.
Moreover, two of the employees responsible for bringing in
the union left the Company and went to work elsewhere
within 6 or 8 months.
McEniry's talk as described to this point was for the most
part an effort at comparison of working conditions with
and without the Union. As he progressed he became more
specific. Thus he compared the current sick leave policy
with the one that might be anticipated under a union
contract, stating that as far "as the Company was
concerned it always paid people during the time that they
were ill," but that he was not at all sure what the Union's
sick leave policy would be. Employee Baker quotes him,
however, as saying to the group she was with that under a
union contract sick leave would be limited. I accept Baker's
recollection of this only insofar as it relates to what was told
to her group.
McEniry made numerous references to the fact that
r The details of these speeches are based on McEniry's credited
testimony, his notes introduced into evidence, and the corroborating
during the 102-day strike of the ILA on the Houston docks
the office employees continued to work. This, he said,
would not have been the case had they belonged to a union.
In this regard he referred to the time lost by Sea Land
employees who were organized and had not worked during
the strike.
McEniry then commented on the liberality of the
Company in matters of attendance. This, indeed, was
brought out in testimony of employee Baker that time-
clocks were removed by McEniry when he came to the
Houston office. But employee David Long quotes McEniry
as saying, however, that "with a union we would be more
strict and he did not know if there would be a timeclock or
not." And employee Baker quotes him as saying that "if we
had a union we would have to punch a timeclock." On this
same subject Baker also credibly quoted Supervisor Philip
Kuntz as saying, upon observing a latecomer, that "if we
had a union we would have a timeclock and that person
would be docked for the time he came in late." This
incident occurred in late June.
McEniry dealt at length with the economics applicable to
unionization. Thus he described the tenuous competitive
situation that existed among the several companies like
their own in the industry, none of which were organized,
and he speculated that under a union contract they might
well lose their competitive position and as a result lose the
patronage of some of their steamship line customers, with
consequent loss of employment. In final sum he then
described to the employees the necessity under a union
contract for maintaining salaries on a group or standarized
basis that would eliminate the opportunity for improve-
ment that presently existed by handling of salary matters on
a personal and individual basis. And with regard to salaries,
their rigidity under the present circumstances and the
benefits that the employees anticipated under a union,
McEniry suggested to an inquiring employee that if he were
"unable to get the amount of money that he needed in
shipping, that he might give some consideration to trying
some of these other industries that were highly paying."
Employee Robert Pratt quotes McEniry on this subject that
"in his opinion if we did not like the way things were, that
we should seek other employment."
When asked if during the 3-day period he had talked to
all of the employees, McEniry stated, "a good percentage of
them. I would say, yes."
E. Subsequent Activity
Following the refusal of the Respondent to recognize and
bargain with the Union and the filing of its petition for an
election in Case 23-RM-232 a strike of the office
employees was called by the Union . Beginning on July 8 a
picket line was instituted at the docks served by the
Respondent's stevedores and in front of its offices. As a
consequence the Respondent's Texas operations were
stopped for the period of 6 weeks during which the
picketing continued. Nine of the office employees went out
on strike and eventually returned. Meanwhile, Respondent
filed its amended petition for an election, alleging therein
testimony of employees who heard him Where the recollections of the
several witnesses differ the resolution will appear in the text
TEXAS TRANSPORT & TERMINAL CO
that a strike was in progress Concurrently with this
amended petition Respondent by motion to the Regional
Director sought an expedited election, based on the
picketing then in progress , the proportionately small
number of striking employees (nine out of the total office
work force), and the alleged efforts of the Union to force it
to bargain with what it claimed to be a minority union
F The Employee Protest of and Withdrawal From
the Union
On July 10, 2 weeks following the Union's demand for
recognition, and 10 days after Respondent's refusal, a letter
was sent to the Regional Director of the Board under the
unquestioned signatures of 32 of Respondent's employees,
all of whose names appear on a list supplied earlier as those
in the proposed bargaining unit and 12 of whom had a
month earlier signed union authorization cards The letter
read as follows
National Labor Relations Board
515 Rusk
Houston, Texas
Gentlemen
We the undersigned employees of Texas Transport &
Terminal Co, Inc, Houston, Texas, feel it our
responsibility as co-workers to make clear our senti-
ments on initiating the Office & Professional Interna-
tional Employees Union, Local 27 into our office To
date, we feel only a small minority of picketers, 9 people
in number of approximately 50, who will be directly
concerned are attempting to voice the majority opinion
of all
It is true many of the undersigned have signed the
`Authorization for membership-Cards,' but even this act
we feel was done in deliberate confusion , because we
were told that we would have the ultimate opportunity
to vote on the matter as we felt best We now
understand that this card will be used as a definite
affirmative vote This, we want to make clear, was not
our understanding in the formative stages of this affair
We further wish to state that it is our opinion that this
union is non-beneficial to our interests as a cooperative
group of employees
Most of us feel we have been badgered and harrassed
both directly on the street and/or by phone conversa-
tion by the representative for the union and the
picketers In cases where we have attempted to have our
cards returned in a respectful manner , we have been
told pointedly 'NO', and in at least one case when
Kenneth Powell asked for his card back in writing, he
was told through phone conversation with Mr Jack
Langford, that he could not have the card returned,
further, it would be used affirmatively regardless of his
present convictions Others who have asked for their
cards back have been met with non-recognition
Gentlemen, we feel this is still a country in which the
majority, regardless of prior commitments and after
having studied a question fairly, should be able to rule
We also think those of us who have decided negatively
on this matter should be able to express our opinion
Fortunately, this is not a city where adult citizens,
477
holding responsible jobs, can all neglect their responsi-
bilities and carry a picket sign in front of their business
We are writing this letter to protest the damage already
done by those who have left their desks and duties to
their employer and also to their cause , which is one we
are definitely not in accord with Further , we write as
conscientious adults and in good faith that the
signatures below and information herein will be
weighed accordingly
Thanking you for your attention and assuring you
this letter is spontaneous and without outside pressure,
we remain
Yours very truly,
Employees of
Texas Transport & Terminal
Co, Inc
cc Mr Charles McEniry
Vice President-TTT
Houston, Texas
Thereafter a petition dated July 31 and bearing the
unquestioned signatures of 36 employees was received by
the Regional Director The petition read as follows
We, the undersigned employees of Texas Transport
& Terminal Co, Inc and Texports Stevedore Compa-
ny, Inc , do each hereby revoke our authorization to be
represented for the purposes of collective bargaining by
the Office & Professional Employees International
Union , AFL-CIO, and we do each hereby declare that
such union has no authority to represent us for the
purposes of collective bargaining
G Analysis, Additional Findings, and Conclusions
The substance of the matter before us is the gravity of
alleged misconduct embarked upon by the Respondent and
its consequent effect upon rights of the employees to be
represented This course of conduct , the General Counsel
contends , has so permeated the atmosphere as to render a
fair election "so highly improbable as to approach
impossibility " In its decision in N L R B v Gissel Packing
Company, 395 U S 575, 610, the Supreme Court considers
the propriety of a bargaining order , as sought here,
where an employer has committed independent unfair
labor practices which have made the holding of a fair
election unlikely or which have in fact undermined a
union's majority and caused an election to be set aside
Thus it is implicit in the Court 's statement of the issue as it
is applicable here that the conduct alleged be of such
gravity as to have an effect either upon the election itself or
upon the then existing majority status of the union , or both
Before assessing this conduct it would be more appropriate
to define it
I Interference, restraint, and coercion
When Respondent's officials learned of the Union's
campaign its watchword became Action Vice President
McEniry called the home office and the Company's
attorney, Personnel Manager White interviewed the two
employees whom she considered knowledgeable in matters
relating to such matters It is admitted that at this point a
478 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
campaign of employee interrogation began, starting with
White's and McEniry's questioning of employees Baker
and Quiroga, asking them what they had heard from the
Union, how they felt about it, and how the employees felt
about it, and indicating to each the Respondent's objection
to a union, and reminding them of its past beneficiences to
the employees (supra, Sec. IV, B). The campaign of
interrogation extended beyond these two officials to all the
division supervisors when they were directed to read to
their employees a statement of the Respondent's position in
opposition to the Union. Thus Comptroller Trostmann
concedes that as part of his talk in opposition to the Union
he asked each of his 13 subordinates how he felt about the
Union, understanding this to be McEniry's direction to
him. And upon learning their individual sentiments he
reported them to McEniry. Supervisor Kohut and, it may
be presumed from Comptroller Trostmann's straightfor-
ward reply, the other division heads or their assistants did
likewise.
The context in which these supervisors and officials
interrogated their employees is significant. The incidents
were not isolated, and neither were the questions the sole
element of the individual or group conversations. Thus
Trostmann admits to extending himself. He not only
commented favorably upon existing company benefits,
emphasizing that they were given without union help, but
he speculated with the employees on their personal future.
Although admitting at the hearing that he was uninformed
on the subject he nonetheless told them that if the
Company went union "that in the event they should seek
employment with another steamship company, they may
have problems securing employment." Kohut's interroga-
tion of employee Pratt was equally significant as, on
learning that Pratt favored the Union, he asked him if a
raise to $400 per month would change his mind. And as a
final thrust to the questions posed by him Kohut stated his
feeling that the Company should "clean the slate and hire
new employees that felt differently" about unions.
The circumstances surrounding the interrogations here
belie any suggestion that they were aimed merely at
ascertaining employee sympathies, a practice permitted
under appropriate safeguards.8 Here by its own admission,
Respondent intended more, the dissuasion of its employees
from their union leavings. In this process more than inquiry
occurred. One employee was offered a raise to change his
union sentiments; a clean slate of union sympathizers was
suggested; and a group was reminded of outside employ-
ment "problems" if they went union and later looked
elsewhere.
It cannot be denied that such a promise of benefit, threat
of discharge, or suggestion of reprisal upon seeking future
employment constitute the interference, restraint, and
coercion proscribed by Section 8(a)(l) and I so find and
conclude.
Over and above this, however, I find that interrogation in
the context of such unlawful conduct is itself the further
8 Struksnes Construction Co, Inc, 165 NLRB 1062
9 Blue Flash Express, Inc, 109 NLRB 591, 594
IO 1 place no significance upon McEniry's statement that the two
employees most active in the Union terminated their employment in a
matter of months Certainly there is no correlation to be inferred between
interference, restraint, and coercion contemplated by the
Board in its Blue Flash9 decision and those which have
followed it. 1, accordingly, conclude and find that by the
systematic interrogation in which Respondent indulged it
further violated Section 8(a)(1) of the Act.
The series of talks which the vice president gave to
employee groups to discourage their unionization (supra,
sec. IV, D) is not as easily classified. To begin with he
announced that the Respondent was not in favor of unions.
It was Respondent's privilege to take this position and its
right under Section 8(c) to say so.
McEniry said much by way of comparison of conditions
with and without a union. Thus he described his experience
in Puerto Rico where the advent of the Union marked the
end of personal handling of employee problems.iO He
compared the Company's generous sick leave policy with a
more restrictive one that could emerge from the negotia-
tions for a union contract. He compared the free and easy
settlement of work problems with the more rigid system
that could exist if the Union and a shop steward were part
of the picture. Similarly, he compared absentee and
attendance handling under present rules with rules that
would be developed after bargaining with the Union. And
he compared the financial advantages of the employees
were they to be represented by the Union, indicating that
the competive position of the Company could be jeopard-
ized, business lost, and jobs curtailed. And, finally, he
suggested to them that those unhappy with their income
might look to higher paying industries.
I am referred to Stewart & Stevenson Services, Inc., 164
NLRB 741, as authority for the proposition that an
employer's speech, allegedly similar to McEniry's, was
coercive (Chairman McCuiloch, relying on Sec. 8(c) of the
Act, did not concur with the two other members on this
issue). I find the cited case inapposite. There, unlike here,
the several speeches were found to have been delivered by
the employer in a manner which reflected the force of his
"anger with the Union's propaganda material." And the
Board's conclusion that the violation that had been
committed was based in part on the fact that he had been
"infuriated." McEniry was neither angered nor infuriated.
Indeed. General Counsel's witnesses testified uniformly to
the contrary. Nor, as in Stewart & Stevenson, was McEniry's
speech "scattered with implied threats to discharge union
adherents." And, while McEntry did say that those
unhappy with their pay might well go elsewhere, a
statement which the Board has held not to be threatening or
coercive,ii the employer's remarks in the cited case went far
beyond, calling the active union employees a "ball and
chain" and urging them "to go to some company where
they have a union if they want to work there." i2
In summary, Stewart & Stevenson is not this case; for
unlike that case the speeches here did not occur in the
context of extensive unlawful conduct and discriminatory
discharges, Consequently, I reject it as support for the
authority that the speeches given by McEmry exceeded the
bounds of appropriate free speech. On the contrary, I find
union activity and extended employment tenure , absent further facts.
Brunswick Quick Freezer, Inc, 119 NLRB 1495, 1499
5 z But see Merchants Fast Motor Lines, 171 NLRB No 177, where such
a statement was held not to violate Sec 8(a)(1)
TEXAS TRANSPORT & TERMINAL CO.
that in his comparisons and his references to conditions
with and without a union he was properly reciting facts
whose validity was available to all, and he was indulging in
reasonable speculations which might quite legitimately flow
from the circumstances at hand.
In N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 618, the
Supreme Court stated that:
An employer is free to communicate to his employees
any of his general views about unionism or any of his
specific views about a particular union, so long as the
communications do not contain a "threat of reprisal or
force or promise of benefit." He may even make a
prediction as to the precise effects he believes unionization
will have on his company. [Emphasis supplied.]
I am persuaded that McEniry's remarks to the employees
were contained within such bounds.
Under all of the foregoing circumstances, therefore, I
conclude and find that McEniry's several speeches to the
employees on June 23, 24, and 25 were proper expressions
of opinion and fact protected by Section 8(c) of the Act and
not in violation of the Act.
Finally, there is for consideration the propriety of the pay
raises given to the employees on June 14.
I am quite aware that it was on June 13, the Friday of the
week during which White and McEniry interrogated
employees Baker and Quiroga, that the decision was made
to grant wage increases on the following day. Be that as it
may I cannot, by this coincidence alone, be blinded to the
established facts that those who granted the wages when
they did had been striving to do so for the previous several
months without any reference whatever, so far as this
record would establish, to the existence or nonexistence of
the Union. It may certainly be inferred that Respondent's
fiscal decision here is so heavily supported by the hard fact
of the outstanding dock strike as to negate any connection
with the delay of the wage increase until June 13. Thus, the
frequent attention given to the wage subject at top level
management meetings (supra, sec. IV, C), the constant
barrage of memoranda from White and McEniry to top
management deploring the help shortage and citing a need
for raises, all render insignificant and tenuous the
suggestion that the wage raise was suddenly given in June
to defeat the Union. On the contrary, I conclude and find
on the record made that the increases were a part of the
normal exercise of the Company's business function. I see
no need for either supervision over or curtailment of this
function merely because a union seeks to organize its
employees. Indeed a stronger case might well have been
made, as it has in other instances,13 had wages found to
have been deserved, overdue, and necessary for the efficient
operation of the business been withheld because of an
impending union campaign, such withholding being subject
to interpretation as unlawful coercion of the employees. I
am not disposed to convert such a dilemma as this into a
finding of unlawful interference, restraint, and coercion,
and I therefore conclude that in granting the pay raises to
13 See Smith Transfer Corp., 162 NLRB 143, 158, and cases cited
therein.
14 Sec . 9(c)(1)(B) provides as follows:
Wherever a petition shall have been filed, in accordance with such
regulations as may be prescribed by the board - by an employer,
479
the employees, as more fully described earlier , Respondent
did not violate Section 8(a)(l) of the Act.
2. The refusal to bargain
a. The appropriate bargaining unit
Any determination of the Respondent's obligation to
bargain contains as a necessary element the existence of a
unit of employees appropriate for collective-bargaining
purposes. Regardless, therefore, of the outcome of the
ultimate determination herein, a definition of this unit is the
first order of business. Respondent submitted to the Board
in connection with a petition for an election the names and
classifications of employees employed as of July 27, 1969.
These classifications are the same as those set forth by
Respondent in its petition for election and except for the
categories discussed below are not in dispute as constituting
the appropriate bargaining unit.
The position of assistant to full cargo manager, held by I.
W. Greene, was described by Personnel Manager White as
supervisory; the position of assistant to operations manager
for Texas, held by David S. Brown, involves dealing with
the superintendents on the docks. This and the position
assistant to operations manager appear to be of equivalent
supervisory status to the several assistants to department
heads, standing in for them in their respective absences,
and I would exclude them as supervisory. Similarly, the
position of line manager previously described as superviso-
ry (supra, fn. 5) is for that reason not included in the unit.
Upon consideration of the foregoing, therefore, and upon
the stipulations and submissions of the parties, I conclude
and find the following to be a unit of Respondent's
employees appropriate for collective bargaining:
Traffic Representative, Outbound and Inbound Clerks,
Typists, Multilith Operators, Stenographers, Freight
Cashiers, Secretaries, Payroll Clerks, Accounting Clerk-
Typists, Office Boys, Junior Stenographers, Clerk-
Typists, Full Cargo Clerks, File Clerks, PBX Operators,
and Teletype Operators, but excluding, guards, confi-
dential secretaries, the assistant to Full Cargo Manager,
the assistants to the Operations Managers for Texas and
for Houston, Line Managers, and all other supervisors
as defined by the Act.
Moreover upon the submission and stipulation of the
parties I conclude and find that the incumbents of the
foregoing "included" categories whose names appear in the
record represent a total work force of 51 employees eligible
as of July 1, 1969, to vote in an election in the bargaining
unit described above.
b. Respondent's obligation to recognize the Union
The terms of Section 9(c)(1)(B) of the Act which provide
for an employer election such as Respondent sought here
have never been interpreted as giving him an absolute right
to an election.14 Rather, as the Supreme Court states in
Gissel (395 U.S. at 599):
alleging that one or more individuals or labor organizations have
presented to him a claim to be recognized as the representative
defined in section 9(a); the Board shall investigate such petition and if
it has reasonable cause to believe that a question of representation
affecting commerce exists shall provide for an appropriate hearing
(Continued)
480 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
[I It was intended, as the legislative history indicates, to
allow them, after being asked to bargain, to test out
their doubts as to a union's majority in a secret election
which they would then presumably not cause to be set
aside by illegal activity.
Accordingly, the Court concludes:
[A]n employer can insist on a secret ballot election,
unless . . . he engages "in contemporaneous unfair
labor practices likely to destroy the union's majority
and seriously impede the election." [395 U.S. at 600.]
It is apparent from these holdings of the Court that an
employer-petitioned election may still be an appropriate
test of majority status even in circumstances where validly
authenticated union authorization cards are available to
establish the majority status.15 What is essential , to be sure,
is that there be a doubt on the employer's part as to that
majority. While Gissel eliminates the distinction between
"good faith" and "bad faith" doubts,16 it does not foreclose
a doubt such as Respondent expressed when, on June 30,
McEniry wrote "we believe you are in error in your
assertion that the union has such a majority."
In Gissel, the Supreme Court stated the Board's present
position on the employer's duty to recognize a union, in the
absence of unfair labor practices (395 U.S. at 591):
When confronted by a recognition demand based on
possession of cards allegedly signed by a majority of his
employees, an employer need not grant recognition
immediately, but may , unless he has knowledge independ-
ently of the cards that the union has a majority, decline the
union's request and insist on an election, either by
requesting the union to file an election petition or by
filing such a petition himself under § 9(c)(1)(B).
[Emphasis supplied.]
Thus Gissel requires as a specific for petitioning an election
under Section 9(c)(1)(B), as Respondent did here, that he
not have "knowledge independently of the cards that the
union has a majority."
There is no evidence in this record that Respondent ever
acquired such knowledge either legally or illegally prior to
June 30. Nor did it enhance its knowledge of this fact after
June 30, for only 9 of 51 employees in the bargaining unit
engaged in the Union's recognition strike. This is not the
certainty that the Board requires to assure itself that the
employer had that degree of "independent knowledge"
required by Gissel to dispense with an election.
What negates the right which an employer has to an
election , says the Court, is the effect which that unfair labor
practice would have either upon the election itself or upon
the majority which it would test. The significance, then, of
the unfair labor practices rests not in themselves but in their
effect. For Gissel speaks in terms of effect. Thus, discussing
the propriety of a bargaining order where an employer has
committed independent unfair labor practices the Supreme
Court identifies these unfair labor practices as those
which have made the holding of a fair election unlikely
upon due notice Such hearing may be conducted by an officer or
employee of the regional office, who shall not make any
recommendations with respect thereto If the Board finds upon the
record of such hearing that such a question of representation exists, it
shall direct an election by secret ballot and shall certify the result
thereof
15 Pacific Abrasive Supply Co, 182 NLRB 329
or which have in fact undermined a union's majority
and caused an election to be set aside. [395 U.S. at 610.]
[Emphasis supplied.]
Essentially what is presented for resolution here is not
whether the conduct of Respondent's officials and
supervisors was good or bad, for we have decided that
already (supra). What remains to be decided, is whether,
however bad it may have been, in and of itself, what effect,
if any, was it shown in fact to have had on the majority
status of the Union and the election process.
In point of time it is to be noted that the unlawful
conduct found herein occurred well in advance of the June
26 request to bargain and the June 30 refusal, the
interrogations by White, McEniry, Duderstadt, Trostmann,
and Kohut occurring between June 9 and 20, as did
Trostmann's remark that unionized employees might have
trouble getting jobs elsewhere; Kohut's offer of a raise to
employee Pratt, and a threat implicit in his "clean the slate"
remark (supra) occurring on June 11; and Personnel
Manager White's irritated comment to employee Baker
upon observing her wearing a union button occurring in
late June." To significantly effect the Union's established
majority this conduct must be shown to have done more
than to have "just happened." It is, therefore, to evidence of
its effect on the majority status that we must concern
ourselves. Chronologically, no effect has been shown prior
to June 26, or indeed to June 30, when Respondent
expressed by letter the doubt the Supreme Court holds he is
entitled to express.
The first tangible indication of a loss of majority occurred
2 weeks after the Union's demand when, on July 10, 32
employees, 12 of them card signers , protested in a letter to
the Board their objections to the Union generally, and in
particular to the strike for recognition which it called
against the Company and in which only 9 employees
participated.
Clearly at this point of time, July 10, the majority was lost
or seriously damaged. But the short answer cannot be that
it was the earlier unfair labor practices caused the loss. The
letter sent to the Board by 32 employees, including 12 of the
majority group, does not blame the unlawful conduct of the
Employer for their disenchantment with the Union. They
single out specific conduct of the Union. We cannot ignore
this signed statement of these majority members that the
majority was so lost, and substitute for it an unfounded
inference that it was the Employer's much earlier conduct
that was the cause and that the employees cannot be
believed when they complain of what happened much later.
Upon the foregoing, therefore, I conclude and find that it
has not been established by the evidence presented here
that it was the unlawful conduct of Respondent that caused
the loss of the Union's majority, as that loss was first
manifest on July 10.
There remains for consideration whether the unlawful
conduct "would have made the holding of a fair election
16 395 U S at 5§4
17 Baker credibly testified that White observed the button and stated,
"As good as I have been to you, and after all I have done for you how
could you do this to me " When Baker sought to justify wearing it White
replied, "All right, young lady, you just go right ahead." I am not disposed
to dignify this incident as the type of employee interference , restraint, and
coercion contemplated by Sec 8(a)(l) of the Act.
TEXAS TRANSPORT & TERMINAL CO.
unlikely." At the outset is the Board's criteria, cited with
approval by the Supreme Court in Gissel. In Aaron Brothers
Company of California, 158 NLRB 1077, 1079, the Board,
after discussing unlawful conduct calculated to dissipate
union support, stated:
However, this does not mean that any employer
conduct found violative of Section 8(a)(1) of the Act,
regardless of its nature or gravity, will necessarily
support a refusal-to-bargain finding. For instance,
where an employer's unfair labor practices are not of
such a character as to reflect a purpose to evade an
obligation to bargain, the Board will not draw an
inference of bad faith.18
A review of the conduct herein which I have found to be
unlawful does not disclose a purpose to evade an obligation
to bargain. While Respondent has most certainly intruded
itself into its employees' affairs it clearly stated its
willingness to bargain, speculating only on the wisdom of
selecting a representative to make that bargain and on their
ultimate satisfaction, by comparison, with the bargain
reached. I am, of course, aware of threats made by
Trostmann and Kohut and Kohut's offer of a wage raise to
an employee. These, I deem to be of insufficient
consequence in the overall circumstances presented here.
To meet the test established by Gissel it must be shown that
these instances of misconduct "because of their minimal
impact on the election machinery, will not sustain a
bargaining order." Because , at the time the offending
statements were made there is no evidence that an election
was to be held and because all the employees had in fact
signed for the Union when the election was sought I fail to
see what the conduct's impact could have been upon an
election . Indeed, the only impact shown to have been
exerted upon the election machinery was the Union's
conduct, as evidenced by the employees' later complaints to
the Board.
Upon all the foregoing I reject the argument that the
conduct of Respondent in any way exerted an effect upon
1s In citing the Aaron Brothers decision with approval the Supreme
Court has nevertheless restricted its scope. Thus, referring to the Board's
decision the Court stated (at p 594)
Under the Board's current practice, an employer's good faith doubt is
481
the election machinery or upon the probability that a fair
election could be held. I would conclude and find,
therefore, that upon the evidence presented in this case the
General Counsel has not established that Respondent's
unlawful conduct, which I have found to violate Section
8(a)(1), (supra) has made it unlikely that a fair election
could be held, or that it had the effect of dissipating the
majority which the Union enjoyed by virtue of signed
authorization cards prior to the beginning of its strike for
recognition. I will, accordingly, recommend that so much of
the complaint as alleges a refusal to bargain in violation of
Section 8(a)(5) and (1) be dismissed.
V. THE EFFECT OF THE UNFAIR LABOR PRACTICES
UPON COMMERCE
The activities of the Respondent set forth in section IV,
above, occurring in connection with the Respondent's
operations described in section I, above, have a close,
intimate, and substantial relationship to trade, traffic, and
commerce among the several States and tend to lead to
labor disputes burdening and obstructing commerce and
the free flow of commerce.
VI. THE REMEDY
I have found that by numerous acts and statements
Respondent has interfered with, restrained, and coerced its
employees in violation of Section 8(a)(1) of the Act. I shall
recommend that it cease and desist therefrom. For the
reasons previously stated I have not found that this conduct
either in itself or in the context of other conduct alleged to
be unlawful satisfies the criteria established by the Supreme
Court in N.L.R.B. v. Gissel Packing Co., 395 U.S. 575, 615,
for the issuance of an order to bargain. I shall therefore not
recommend such an order.
[Recommended Order omitted from publication.]
largely irrelevant , and the key to the issuance of a bargaining order is
the commission of serious unfair labor practices that interfere with the
election processes and tend to preclude the holding of a fair election