The Tappan Co.

National Labor Relations Board - Board Decisions

Apr 12, 1977

228 N.L.R.B. 1389 (N.L.R.B. 1977)

THE TAPPAN COMPANY
The Tappan Company and Shade Lee Copley and
Stove, Furnace & Allied Appliance Workers'
International Union of North America, AFL-CIO.
Cases 26-CA-6197 and 26-RC-5249
April 12, 1977
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
By MEMBERS JENKINS, PENELLO, AND
WALTHER
On December 30, 1976, Administrative Law Judge
Ivar H. Peterson issued the attached Decision in this
proceeding. Thereafter, the Respondent filed excep-
tions and a supporting brief, and the General
Counsel filed cross-exceptions and a supporting
brief. The Petitioner Union filed a brief and response
to the exceptions and cross-exceptions.
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the
National Labor Relations Board has delegated its
authority in this proceeding to a three-member panel.
The Board has considered the record and the
attached Decision in light of the exceptions, cross-
exceptions, and briefs and has decided to affirm 1 the
rulings, findings,2 and conclusions3 of the Adminis-
trative Law Judge to the extent consistent herewith
and to adopt his recommended Order, as modified
herein.
1. As fully described in his Decision, the Admin-
istrative Law Judge credited the testimony of four
employee witnesses and concluded that the Respon-
dent's vice president, E. J. Nagele, made several
remarks in violation of Section 8(a)(1) of the Act
during a series of speeches and slide presentations
made to groups of employees on May 11 and 12,
1976.4 The Respondent's exceptions challenge the
Administrative Law Judge's credibility findings in
this regard and further contend that the Administra-
tive Law Judge failed to accord the proper evidenti-
ary weight to the transcript from a tape recording of
one of Nagele's presentations. For reasons previously
stated herein, we support the Administrative Law
Judge's credibility findings. We find merit in the
i We place no reliance herein on the Administrative Law Judge's
recitation of facts and arguments in his Decision relative to various
preelection speeches and publications by the Respondent which the
Regional Director for Region 26 had previously considered in his Report on
Objections in Case 26-RC-5249 . The Regional Director overruled, without
subsequent exception, allegations in the Petitioner 's Objections l and 2 that
the content of this campaign propaganda exceeded the bounds of free
speech permissible under Sec 8(a) of the Act We note , however, that the
Administrative Law Judge made no dispositive findings or conclusions with
respect to the speeches and publications in question His discussion of them
is therefore harmless and nonprejudicial to the remainder of his Decision.
2 The Respondent has excepted to certain credibility findings made by
the Administrative Law Judge It is the Board 's established policy not to
overrule an Administrative Law Judge ' s resolutions with respect to
228 NLRB No. 176
1389
Respondent's exceptions only to the extent they
allege that no credited witness testified that Nagele
told employees the Respondent would "see to it that
the employees would not gain a thing" if the Union
won the election . The record accords with the
Respondent's denial that Nagele ever made such a
statement except in predicting the consequences of
strike action by unionized employees at the Respon-
dent's plant . In all other respects , we agree with the
Administrative Law Judge's findings and conclusions
regarding Vice President Nagele 's remarks.
In our opinion, the tape-recording transcript
proffered by the Respondent is entitled to little
weight in the absence of sufficient credible proof that
employees Robert Nicholson, James Hilliard, Shade
Lee Copley, and Paul Brooks, the four witnesses who
testified about Nagele's illegal threats, heard a speech
identical in content to the one which was recorded.
No such evidence exists, however. It is undisputed
that the Respondent's representatives taped only
Nagele's 7:30 a.m. presentation to employees on
May 12. Nagele gave several other unrecorded talks
on May 11 and 12. During each of those 1-hour talks
he did not read from a prepared text, although he
stated that his presentations followed closely the
format outlined by the slides he was showing. The
Respondent contends that Copley and Brooks
attended Nagele's recorded presentation, but does
not deny that Nicholson and Hilliard attended
separate extemporaneous presentations which were
not recorded. Moreover, while the Respondent's
witnesses could testify only to their alleged awareness
of Copley's presence at the 7:30 a.m. session on May
12, both Copley and Brooks consistently and
credibly testified that they had attended an employee
meeting addressed by Nagele at approximately 9
a.m. In light of the above evidence, we cannot find
that the Administrative Law Judge erred in his
consideration and evaluation of the evidentiary
importance of the tape-recording transcript.
Accordingly, although we have found that the
Respondent's vice president, Nagele, did not say
specifically that the Respondent would "see to it that
the employees would not gain a thing" if the Union
won the election, we agree with the Administrative
credibility unless the clear preponderance of all of the relevant evidence
convinces us that the resolutions are incorrect Standard Dry Wall Products,
Inc, 91 NLRB 544 (1950), enfd. 188 F.2d 362 (CA 3, 1951). We have
carefully examined the record and find no basis for reversing his findings.
3 The Administrative Law Judge's Conclusions of Law 2, 3, and 4 imply
prior findings of fact relating to a conversation between employee Shade
Lee Copley and Supervisor Paul Young . Copley credibly testified that
during this conversation , which occurred some time between March 22 and
April 5, 1976, Young engaged in illegal interrogation about union activities
and in illegal threats of lost benefits and plant closure if the Union won the
impending election The Administrative Law Judge inadvertently failed
expressly to find that Young's remarks violated Sec. 8(a)(1) of the Act. The
record warrants such a finding and it is hereby expressly made.
4 All dates are hereafter in 1976 unless otherwise noted
1390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Law Judge that employees Nicholson, Hilliard,
Copley, and Brooks credibly testified that Nagele
made speeches which included statements that if the
Union won the impending election employees would
lose benefits; the Respondent would eliminate
"union hoodlums and troublemakers"; and the
Respondent "did not have to meet any demands or
even bargain with them." We further agree with the
Administrative Law Judge's conclusion that Nagele's
presentation collectively stated and coercively im-
pressed upon the employees in the audience the
futility of unionization at the Respondent's Spri ng-
field, Tennessee, plant. We therefore conclude that
the Respondent violated Section 8(a)(1) of the Act by
the conduct detailed in the Administrative Law
Judge's Conclusions of Law, and we hereby affirm
those conclusions without modification.
2. The Administrative Law Judge also found that
the Respondent violated Section 8(a)(1) of the Act by
promulgating and maintaining its retirement savings
benefit plan. We disagree with this finding. It is clear
from the record that the Respondent's plan does not
automatically exclude from participation employees
who become members of a collective-bargaining unit
or choose to be represented by a labor organization
in an appropriate unit. Such employees would be
excluded only if they became members "of a
bargaining unit recognized for the purpose of
collective bargaining, and for whom the Company
maintains or contributes to an employee benefits
plan pursuant to agreement with the collective
bargaining representative for the unit," according to
the official "Instrument Designating Employee
Group" filed by the Respondent with the Internal
Revenue Service. Furthermore, Respondent Vice
President Nagele testified that the Respondent is
willing to negotiate the continued coverage of
employees in a new collective-bargaining unit under
the existing retirement savings plan, if coverage
under an alternative plan restricted to bargaining
unit employees is not desired. Nagele also said that
the retirement plan at issue was denominated "The
Tappan Company Retirement Savings Plan for Non-
Bargaining Unit Employees" as a matter of conve-
nience, in order to distinguish this plan from existing
contributory retirement plans applicable to bargain-
ing unit employees at the Respondent's other
production plants. There were no bargaining unit
employees at the Respondent's Springfield plant
when the retirement savings plan herein was promul-
gated or when hearings were held in this proceeding.
Under these circumstances, we agree with the
Respondent that this case is distinguishable from
5 E g., White Sulphur Springs Company , d/b/a Greenbrier Hotel, 216
NLRB 721, 727 (1975).
6 We note that the Administrative Law Judge failed to incorporate
prior Board decisions finding unlawful the promulga-
tion and maintenance of employee benefit plans
which automatically exclude, and thereby inherently
discriminate against , bargaining unit employees or
union members.5 We therefore find, contrary to the
Administrative Law Judge, that the Respondent did
not violate Section 8(a)(1) of the Act by promulgat-
ing and maintaining its "Retirement Savings Plan for
Non-Bargaining Unit Employees."
The record further discloses, however, that none of
the Respondent's employees are aware of the
alternate coverage proviso which governs the retire-
ment savings plan eligibility of bargaining unit
members. It is undisputed that employees at the
Springfield plant have gained their knowledge about
eligibility in the plant's retirement plan from the
following sources alone : the employee handbook, an
informational brochure, an enrollment/waiver form,
and communications by the Respondent's officials.
As fully described in the Administrative Law Judge's
Decision, all of the enumerated written materials
refer to a retirement savings plan for nonbargaining
unit employees. In addition, it is admitted that Vice
President Nagele told at least the employees attend-
ing his recorded 7:30 a.m. speech and slide presenta-
tion on May 12 that: "Tappan, of course, has the
Retirement Savings Plan for non-union employees.
We don't have any union employees in the Retire-
ment Savings Plan." We note that this statement was
made in the context of a speech which, in versions
repeated to other employees audiences, we have
found included illegal threats of lost employee
benefits and retaliation against union activity. There
is no countervailing evidence that any of the
Respondent's representatives ever told its employees
they would not lose their eligibility to participate in
its retirement savings plan unless they became
eligible to participate in an alternative plan.
Upon objective consideration of record evidence
relative to the information communicated by the
Respondent to its employees about their eligibility in
the retirement savings plan at the Springfield plant,
we find the Respondent gave its employees the
coercive and threatening impression that they would
automatically lose the benefit of such a plan if they
chose to become members of a collective-bargaining
unit. Accordingly, we conclude that the Respondent
thereby violated Section 8(a)(1) of the Act .6
3. We agree with the Administrative Law Judge
that the Respondent violated Section 8(a)(3) and (1)
by discriminatorily transferring employee Shade Lee
references to the Respondent 's retirement savings plan in his Conclusions of
Law, recommended Order, and notice We shall include herein remedial
language appropriate for the violation which we have found
THE TAPPAN COMPANY 1391
Copley from the main plant to a position isolated
from other employees at one of its warehouses.?
For reasons detailed in his Decision, the Adminis-
trative Law Judge found that the Respondent's
representatives responsible for this transfer were
illegally motivated by a desire to prevent Copley
from engaging in organizational activities on behalf
of the Union. In addition to his union activities, it is
clear from the record that Copley engaged in
protected concerted activity when he filed a formal
complaint against the Respondent with the Occupa-
tional Safety and Health Administration, hereafter
called OSHA, on April 6, 1976. The Respondent's
representatives were apprised of the contents of this
complaint when an OSHA inspection team visited
and inspected the Respondent's plant on April 7.
Copley was suddenly transferred to his warehouse
job less than a week later, on April 12. Although the
complainant is not expressly identified in the OSHA
complaint, the allegations therein refer to matters
peculiar to Copley's plant experience. We agree with
the Administrative Law Judge that the complaint
"contained several statements from which it was
readily possible to identify Copley as the complain-
ant." We therefore find that the Respondent's desire
to punish Copley for filing the OSHA complaint was
an additional illegal motivating factor behind the
discriminatory transfer of Copley in violation of
Section 8(a)(3) and (1) of the Act.8
ORDER
Pursuant to Section 10(c) of the National Labor
Relations as amended, the National Labor Relations
Board adopts as its Order the recommended Order of
the Administrative Law Judge, as modified below,
and hereby orders that the Respondent, The Tappan
Company, Springfield, Tennessee, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Insert the following as paragraph 1(e):
"(e) Telling employees that they will be excluded
from participating in its retirement savings plan if
they become members of a collective-bargaining unit
or choose to be represented by a labor organization
in an appropriate unit."
2. Insert the following as paragraph 2(e):
"(e) Notify the Regional Director for Region 26, in
writing, within 20 days from the date of this Order,
what steps the Respondent has taken to comply
herewith."
3. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the election conducted
on May 21, 1976, in Case 26-RC-5249 be, and it
hereby is, set aside and the case remanded to the
Regional Director for Region 26 for the purpose of
scheduling and conducting a second election at such
time as he deems the circumstances permit a free
choice on the issues of representation.
[Direction of Second Election and Excelsior foot-
note omitted from publication.]
9 The Administrative Law Judge inadvertently referred to Copley's
"discharge" in the remedy portion of his Decision We hereby correct
"discharge" to read "transfer" so that the recommended Order which we
adopt, as modified herein, shall be understood to date the backpay period
from the time of Copley's discriminatory transfer.
8 In view of the adequacy of the remedy provided herein for the violation
of Sec. 8(a)(3) and ( 1) of the Act , it is unnecessary to consider the General
Counsel's contention in his cross-exceptions that Copley's transfer, insofar
as it was motivated by considerations related to his filing of a complaint
with OSHA , constituted a separate violation of Sec 8(aXl)
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a hearing at which all sides had an opportunity
to present evidence and state their positions, the
National Labor Relations Board has found that we
have violated the National Labor Relations Act, and
has ordered us to post this notice.
WE WILL NOT question employees concerning
their union membership, sympathies, or activities.
WE WILL NOT threaten to close our plant in
order to discourage our employees from joining
or assisting Stove, Furnace & Allied Appliance
Workers' International Union of North America,
AFL-CIO, or any other labor organization.
WE WILL NOT threaten to discharge those of our
employees who join or support a union; nor will
we tell our employees that they will lose their
existing benefits if they select a union to represent
them; nor will we tell our employees that it is
futile for them to support a union.
WE WILL NOT tell employees that our Retire-
ment Savings Plan is available only to nonunion
employees. Our Retirement Savings Plan is
currently open to all our employees at our
Springfield, Tennessee, location regardless of
whether they join a union or refrain from joining
a union. WE WILL NOT automatically deprive
employees of the opportunity to participate in our
Retirement Savings Plan if they become members
of a collective-bargaining unit or choose to be
represented by a labor organization in an appro-
priate unit.
WE WILL NOT unlawfully transfer or otherwise
discriminate against any employees because of
membership in or activity on behalf of Stove,
Furnace & Allied Appliance Workers' Interna-
1392 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tonal Union of North America, AFL-CIO, or
any other labor organization, or for engaging in
protected union activity or exercising rights
guaranteed by the National Labor Relations Act.
WE WILL NOT in any other manner interfere
with, restrain, or coerce employees in the exercise
of the rights guaranteed them by Section 7 of the
Act.
WE WILL offer Shade Lee Copley immediate
and full reinstatement to his former job or, if it no
longer exists, to a substantially equivalent posi-
tion, and WE WILL make him whole for any wages
lost, plus interest, as a result of our discrimination
against him.
All our employees are free to become, remain, or
refuse to become or remain members of Stove,
Furnace & Allied Appliance Workers' International
Union of North America, AFL-CIO, or any other
labor organization.
THE TAPPAN COMPANY
DECISION
STATEMENT OF THE CASE
IVAR H. PETERSON, Administrative Law Judge: This case
was heard by me in Springfield, Tennessee, on August 30
and 31 and September 1, 1976, based upon the complaint
issued by the Regional Director for Region 26 on July 14,
alleging that the Respondent engaged in violations of
Section 8(a)(1) and (3) of the Act. Briefly stated, the
complaint alleged that the Respondent's supervisor and
agent, Paul D. Young, in charge of the receiving depart-
ment, on April 14, questioned an employee concerning his
union membership, sentiments, and desires, told an
employee that the Respondent's employees would lose
their existing employee benefits and that the Respondent
would close its Springfield plant if the Union was
successful in its organizing campaign. The complaint
further alleged that E. J. Nagele, vice president of
industrial relations, on 3 days during the week of May 10,
in the course of speeches to groups of employees,
threatened them with loss of benefits if they selected the
Union as their collective-bargaining representative, told
the employees that if the Union were successful the
employees would not gain any additional benefits, and in
general told them it was futile to engage in organizational
activity and threatened to discharge employees who joined
or assisted the Union. The complaint also alleged that the
Respondent at all material times maintained a retirement
savings plan entitled "Tappan Company Retirement
Savings Plan for Non-Bargaining Employees," and threat-
ened to deny employees the opportunity to participate in
the plan if they selected the Union as their representative.
Finally, the complaint alleged that, on or about April 21,
the Respondent, acting through Young, transferred em-
ployee Shade Lee Copley from the stockroom to the
warehouse , located approximately 1 mile from the plant,
because Copley had joined or assisted the Union or
engaged in other union or concerted activity and because
the employee had filed a complaint against the Respondent
under the Occupational Safety and Health Act. By such
conduct, the complaint alleged that the Respondent had
violated Section 8(a)(1) and (3) of the Act.
In its answer, dated July 16 , the Respondent admitted
certain jurisdictional allegations of the complaint but
denied that it had engaged in any conduct violative of the
Act. On July 27, the Board issued an order directing a
hearing on objections to the election on which the Regional
Director had reported on July 6, and on July 29, the Board
issued an order consolidating the cases for purposes of
hearing . On August 4, the Board , at the request of counsel
for the General Counsel, issued a subpena directing that
the Respondent produce various records at the hearing.
Thereafter, the Respondent moved to revoke the subpena,
which motion was opposed by counsel for the General
Counsel in a memorandum dated August 17. Under date of
August 20, counsel for the Respondent filed a response,
alleging that certain of the information sought was "totally
irrelevant to any issues raised" by the complaint, and that
certain of the records sought were not maintained by it and
that to supply the information would be unduly burden-
some . However , this matter was later resolved by counsel
and required no ruling by me.
Upon the basis of the entire record i in the case,
including my observation of the witnesses as they testified
and careful consideration of the briefs filed with me by
counsel for each of the parties on or about October 7, I
make the following:
FINDINGS OF FACT
I. JURISDICTION
The Respondent, a corporation, maintains an office and
place of business in Springfield, Tennessee, where it is
engaged in the manufacture of electric ranges and
associated products. The Respondent admits that it is
engaged in commerce within the meaning of Section 2(6)
and (7) of the Act and that it comes within the Board's
jurisdictional standards; that the Union, Stove, Furnace &
Appliance Workers' International Union of North Ameri-
ca, AFL-CIO, is a labor organization within the meaning
of Section 2(5) of the Act; and that E. J. Nagele is vice
president of industrial relations, Robert F. Catlett is the
general manager, and that Paul D. Young is the supervisor
in charge of the receiving department.
II. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
On December 17, 1975, the Respondent sent notices to
the homes of its employees advising that it was aware
union organizers were currently distributing authorization
cards to employees. General Manager Catlett, who signed
' The motion of counsel for the General Counsel to correct the official
transcript is hereby granted
THE TAPPAN COMPANY 1393
the letter, stated that the outcome of this effort "could
determine not only your future, and the future of this
Company in Springfield, but also your family's future as
well." He further stated that employees were aware "that
both this Company and I are opposed to having any union
come into this plant. We do not feel that a union is in your
best interest or that you would benefit from an association
with the Union." He then called their attention to "the
suffering and personal losses suffered by the employees at
the Murray, Kentucky, plant through the stake which has
now lasted over 25 weeks." He then went on to outline
what a union could and could not do for employees. He
stated that he was aware that some employees had
attended union meetings in the preceding 3 or 4 weeks and
that he would "certainly never advise any employee not to
hear both sides of any issue , but I would caution you to
make sure that you are being told the facts. Unfortunately,
union organizers seem to feel compelled to use misrepre-
sentations, false promises, and outright lies in an effort to
get people like you to join their union. Frankly, I would
hate to build my future on that type of foundation." He
concluded by stating that he was sure that "the greater
majority of all of our employees do not want to be
represented by a Union," and added that with the help and
cooperation of the employees and the continued business
of the Respondent's customers "we can all continue to
grow and prosper. There is no way that the disruption and
interference from the group of outsiders can help you, your
future or this Company's future in Springfield."
The Union filed its petition on April 2, seeking to
represent a unit composed of the Respondent's production
and maintenance employees. On April 19 the Regional
Director approved a Stipulation for Certification upon
Consent Election, which provided for an election to be held
on May 21. It was held as scheduled and the results showed
that out of approximately 523 eligible employees 179 voted
for the Union while 273 voted against the Union. On April
14, Catlett delivered a speech to the employees on each of
the three shifts. He read from a prepared text. In it he
stated that the strategy of the Union "is to try to convince
you that there is something wrong with your job here at
Tappan and that only the Union can protect you from
some imagined `threat' or action by the Company. The
truth is that no union ever provided any employee of any
company with a single job or issued a single paycheck." He
then noted that during the preceding several months "the
appliance industry has had one of its most difficult times in
recent history. Despite the tremendous cutbacks in the
appliance industry, we have experienced very few cutbacks
at this plant. Your future and the future of the Tappan
Company in Springfield would depend on how well each of
us continues to do his or her job and on our ability to
produce quality appliances at the lowest possible cost." He
went on to state that the Respondent would present the
employees "with the facts about the cost of union
membership, both in the terms of money, and in the loss of
your individual freedom, and with the facts about strikes."
On May 18 Catlett sent a letter to the employees in which
he emphasized "how important it is that you vote in this
election. Some employees have said that they do not want
the Union and are not going to vote in the election.
Anyone who does not vote in the election is simply helping
the Union. The election will be decided by a majority of
the employees who actually vote." He urged that the
employees vote "No" because a "no" vote "means that you
have confidence in this Company and its efforts to provide
you with real job security and confidence in yourself and
your ability to make your own decisions."
Previously, under date of May 15, Catlett had issued a
letter to the employees concerning strikes conducted by the
Union at several plants the Union was attempting to
organize and concerning strikes by various unions at three
of the Respondent's plants. He included a chart which used
a 13-week strike as an example and indicated how much
employees would lose, depending upon their wage rate, and
how long it would take them to recoup such losses
assuming they gained a 5-cent-per-hour wage increase. The
Respondent issued a variety of other literature, but it seems
unnecessary to summarize it other than to note that it urges
employees to reject the Union.
Copley, the alleged discriminatee, went to work for the
Respondent in July 1975. While he was on sick leave on
February 19 and 20, Union Representative Ray Sullivan
visited him. Copley remained on sick leave until March 22,
and during that period he attended weekly union meetings
and solicited employees to sign authorization cards at
various locations outside the plant. After he returned to
work he continued that activity in the restrooms, the
cafeteria, and various other places. Shortly after returning
to work, Copley reported to his supervisor, Young, that
loose particles of insulation were getting into his mouth
and teeth. Young's response was that Copley could quit if
he didn't like it. On April 5, Copley filed with the
Occupational Safety and Health Administration a formal
complaint in which he stated, in part, that employees are
endangered "by the insulation that is used in the manufac-
ture of the stoves." A copy of this complaint was
subsequently served upon the Respondent and, while it did
not identify Copley by name, it contained several state-
ments from which it was readily possible to identify Copley
as the complainant. On April 7, inspection teams of OSHA
inspected the Respondent's plant, met with management
representatives, and reviewed with them the deficiencies
they had found. On April 13, the Division of Occupational
Safety of the Tennessee Department of Labor sent the
Respondent a written citation enumerating the deficiencies
reviewed with management in the conference held on April
7.
Copley testified that, some time during the period
between his return to work on March 22 and the day he
filed the OSHA complaint, Young came to him and said, "I
would like to know who's been getting these cards signed?"
Copley replied, "What cards are you talking about, Paul?"
Young answered, "these union cards." In addition, Copley
testified that during this conversation Young stated that "if
the Union came in, that all employees would lose all
benefits" and further stated that if the Union was voted in
"the factory would close down and go out of business and
move some other place." Young testified that he did not
recall telling Copley that the plant would close if the Union
came in and denied telling Copley that employees would
lose benefits if the Union did come into the plant.
1394 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
B. The Alleged Discriminatory Transfer of Copley
Copley, who, as previously stated, went to work for the
Respondent on July 8, 1975, was transferred to the
receiving department on November 3, under the supervi-
sion of Young. At first he was assigned to work as a
stockman but, on January 28, his classification was
changed to that of tow motor operator. His job consisted of
filling parts requisitions for assembly in other production
areas of the main plant and, on occasion, unloading trucks.
In the course of his duties, Copley received completed
requisition forms from Young's secretary. These forms
identified the parts by descriptive name and number and
also indicated their location. Copley drove a tow motor or
cart to the numbered bins, aisles, and racks listed on the
form and, after obtaining the listed parts, delivered them to
the designated production areas . Copley's job as a tow
motor operator took him to all areas of the main plant. He
related that, in the course of his inplant solicitation during
the period between March 22 and April 12, he obtained the
signatures of 55 employees on union authorization cards.
It is Copley's testimony that, shortly after he filed his
complaint with OSHA, he was driving a tow motor near a
production line when he observed a female employee
pointing her finger at him while she was standing beside
Personnel Manager Jerry Hatcher. According to Copley,
Hatcher shook his head up and down as the employee
pointed at him. He further related that he recognized the
woman as an employee whom he had asked to sign a union
authorization card but that he could not recall her name. A
few minutes after this incident, Copley heard a call over the
intercommunication system for Young to call Hatcher, and
within 5 or 10 minutes after he heard this call, Young came
to him and told him he was being transferred to one of the
Company's outside warehouses as of that date and also
instructed him not to come back to the main plant for any
reason, that he would punch Copley's timecard and further
told him that his job "would be eight hours a day, five days
a week at O'Brien warehouse only." Copley inquired why
he was being transferred but Young gave him no answer.
He was told of the transfer at approximately 11:45 in the
morning and went to the O'Brien warehouse, approximate-
ly 1 mile away from the main plant, at noon that day.
Hatcher could not recall any incident where a female
employee by some gesture or otherwise pointed out Copley.
He did, however, testify that he talks to a number of people
in the plant and "occasionally they do gripe about tow
motor operators and point them out, you know, but I can't
recall this specific incident."
Young testified that he made the decision to assign
Copley to the O'Brien warehouse a few days after an
inspection of the warehouses by General Manager Catlett
which, according to an affidavit given by Catlett, occurred
on Saturday, March 27 or April 3.
While Copley could not recall the date on which he was
informed of his transfer, his wife did identify a letter she
wrote, dated April 12, and which was marked as received in
the office of the Commissioner of Labor on April 13. In it
she stated, on behalf of her husband, that at 11:45 that
morning Young "informed me that he was sending me to
the warehouses, Colonial and O'Brien, and neither places
has bathroom or water facilities. He told me that I would
not have to come to the factory at all, that he would punch
my timecard for me every day...."
The Respondent has three warehouses where it stores
parts and materials not frequently used in the production
process and also for the purpose of storing frequently used
parts and materials when storage space at the main plant is
insufficient. Two of these warehouses, known as O'Brien
and Colonial, are each located about 1 mile away from the
main plant. The third, Cedar Hill, is about 8 or 9 miles
away from the main plant. Before Copley's reassignment,
goods were placed in and removed from the warehouses by
details of drivers and loaders who were sent from the main
plant. These details were composed of one driver and one
loader, who would leave the main plant by truck, drop off
and/or pick up goods at the warehouses and then return to
the main plant. In the daytime, the doors to the warehouses
were closed but not locked. After Copley was reassigned to
the O'Brien warehouse, drivers delivered either goods or
requisitions to him and helped him load or unload their
trucks and, on occasion, drove Copley to Colonial or Cedar
Hill for the purpose of securing and loading goods stored at
those locations. After his transfer, Copley reported each
working day to O'Brien and, except for occasional trips to
Colonial and Cedar Hill, spent all of his working hours at
the O'Brien warehouse. According to Young, O'Brien had
no restroom facilities, no running water, no heating
facilities, and no fans. Copley's testimony is not denied that
Colonial and Cedar Hill warehouses also lack running
water, restrooms, and eating and heating facilities. He
related that the nearest eating facility to O'Brien was a 10-
minute walk and that that would take up his lunch break.
Young stated that the Respondent made arrangements
with the Greyhound bus station for Copley to use the
station's restroom facilities and water fountain, which were
the same as used by Greyhound passengers.
It is Copley's testimony that, for each week during the 3
weeks immediately following his transfer, he spent from 3
hours to half a day in the actual performance of work and
that the remainder of the time he did "absolutely nothing."
General Manager Catlett testified that he conducted an
inspection of all three of the Respondent's outside
warehouses either on Saturday, March 27, or Saturday,
April 4, and that thereafter he told Materials Manager
Givens and Supervisor Young that he "wanted them
cleaned up" and that he found at Colonial that material
was improperly stacked and "falling over and broken
bundles of fiberglass ; general disarray." Young related
that, following his tour of the warehouses with Catlett and
Givens, he determined to place an employee in the
warehouses on a permanent basis, whereas in the past he
had sent employees from his departments to the warehous-
es on a half-day basis to perform cleanup functions but had
not at any time in the past assigned an employee to the
warehouses on a permanent basis. According to Young, he
selected Copley for permanent assignment because "he
could do the job. He had been pulling requisitions. He
knew all the parts that we used, and he had been used to
requisitions. He could drive a tow motor. He knew the job.
He could do the job."
When it was pointed out to Young that the Respondent
was using as many men to perform warehouse functions
THE TAPPAN COMPANY 1395
after Copley's reassignment as before , Young testified that
he "had more trouble finding the parts in the warehouse,
sir. I had to go over there more trips myself just to find the
parts before Mr . Copley went over there."
C. The Speeches Given by Vice President Nagele
Nagele testified that he came to the Springfield plant on
May 11 and 12 , and made a combination speech and slide
presentation to six separate groups of employees, each
presentation lasting about an hour . Several employees
testified concerning these presentations . Paul Brooks
testified that he and a group of 20-25 employees were
present when Nagele gave his speech 2 days before the
election . According to him , Nagele , among other things,
told the employees that "if the Union got in, the profit-
sharing would be cut off, plus he made the statement that if
the Union came in , they may even lose or either gain
benefits." Employee Robert Nicholson testified that he was
present when Nagele gave a speech to 15 or 20 employees
about 4 or 5 days before the election . By his account,
Nagele said that "if the Union was voted in and it went on
strike . . . that it was Tappan 's firm policy that he would
see to it that the employees didn 't gain a thing." Another
employee, James Hilliard , testified that during the course
of his presentation , Nagele said that "if after the election
Tappan had taken a firm stand against strikes and Union
hoodlums would be rooted out" and the Respondent would
thus be rid of the troublemakers . Copley related that he
was present when Nagele spoke to employees about 9
o'clock in the morning "on about" May 14 and it was his
recollection that Nagele said "if the Union was voted in,
the Company did not have to meet any demands or even
bargain with them."
Nagele testified that he recorded the speech he gave to
employees beginning at 7:30 a .m. on May 12 and that, in
the remaining presentations , he followed the same format.
He related that Copley was present on the morning of May
12 and that the Respondent chose to tape that presentation
because it knew that Copley would be present and "we had
had rumors that he was one of the organizers ." He further
testified that there "were enough rumors that I felt it
advisable to tape that session in the event questions were
asked and I responded ." He also stated that before the
presentation he had been informed that Copley would be
present and that he believed that Personnel Manager
Hatcher was the one who told him that Copley was
scheduled to be present . Nagele stated that the Respondent
currently had contracts with some nine different unions
and had had considerable experience in dealing with labor
organizations . He said that when the Respondent is faced
with an organizational campaign , as happens frequently, it
looks "at what the promises may be ." The first and
"perhaps most important is that you get job security," but
he expressed the opinion that employees obtained security
from good products , good prices , and good customers. He
pointed out that at one plant where the Respondent
manufactured range hoods it endeavored to work with the
union that represented the employees but was unable to do
so and the plant closed in 1972 . He stated that the
Respondent in that instance "couldn't produce a product
at the right price . When we couldn 't do that, we lost the job
security and the plant had to go ." He stated that during the
preceding 2 years a substantial number of employees had
been laid off at three unionized plants whereas at the
Springfield plant , the only nonunion plant , the work force
had more than doubled . He stated that , in the Respon-
dent's judgment , "the job security is much better at
Springfield than it is in a typical union operation ." He then
went on to compare the benefits offered by the Union with
those in effect at the Springfield plant . He stated that the
opportunity for promotion is greater "in a non-union plant
where you are not bound by rigid seniority or the type of
rules that unions try to put into an operation ." He stated
that seniority was "one of the key areas that many unions
push," but expressed the opinion that "semority puts some
rigid restrictions on your ability to move" and that it leads
to additional cost and , by way of illustration , said that he
had seen "some clauses where to move a person, one
person , from one job to another , you end up moving ten or
15 people to accomplish it because of the bumping
restrictions ." He then called their attention to the fact that
in 1974 the Respondent lost some $14 million and in 1975
lost about $8 million, but that in each year there was a
wage increase . He then spoke about union dues, initiation
fees, fines, and strikes . With respect to grievance proce-
dures, he said that "unions are frequently quite rigid and
can sometimes be unfair . Sometimes a clique within the
unions uses the grievance procedure for their own purpos-
es. Sometimes it works well ." With respect to violence, he
said "you certainly have none with a non -union operation.
But you run the very possible risk, in any union operation,
and we will show you some of the facts on that."
Nagele spoke about the retirement savings plan for
nonunion employees and said that the Respondent did not
"have any union employees in the Retirement Savings
Plan."
He then spoke of strikes in the event the Respondent and
a union were unable to reach agreement in negotiations.
He stated that the union at the Mansfield plant was on
strike for 5-1/2 weeks and the employees "returned with a
total cost of just about exactly what it was before they went
out." He stated that during that strike trains were blocked,
there was mass picketing, the Respondent found it
necessary to obtain an injunction , "we had substantial
property damage, we had windows broken , we had tires
slashed , we had radiators punctured , things like that
happen ." With respect to the strike at the Murray plant he
stated that the employees went on strike on June 23, 1975,
and that the strike was still continuing and was in its 47th
week . Nagele concluded his talk by urging employees to
vote.
D. The Retirement Savings Plan
The Respondent distributed to employees at its Spring-
field location an employee handbook entitled , "Summary
of Practices and Benefits for Employees of Tappan
Appliances ." The handbook states, in part:
TAPPAN RETIREMENT SAVINGS PLAN
You are eligible to enroll in the Tappan Company
Retirement Savings Plan for Non-Bargaining employ-
ees on January 1 and July 1 of each year after you have
1396 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
completed 1 year of service. . . . A separate booklet
will be given to you, explaining the plan in detail.
Employees also receive from the Respondent a pamphlet
entitled "YOUR RETIREMENT SAVINGS PLAN," which explains
the benefits available to participants. The pamphlet states,
in part:
The Tappan Company Retirement Savings Plan for
Non-Bargaining-Unit Employees is a defined contnbu-
tion plan which is identified under the following
numbers in accordance with Internal Revenue Service
rules ... .
Nagele testified that the plan became effective on
January 1, 1975, and was introduced to employees at the
Springfield location on April 1, 1975. At the time of the
election there were approximately 95 Springfield employ-
ees enrolled in the plan. He identified a document adopted
by Respondent on December 31, 1975, which stated that
the plan excluded from its coverage ". . . any employee
. . . who is or becomes a member of a bargaining unit
recognized by the Company for the purposes of collective
bargaining ......
In a pretrial statement, Catlett stated that the retirement
savings plan "is available only for non-union employees."
He further testified that the Respondent has had no
occasion in the past to restrict participation beyond
"factory hourly" employees "because we had no union."
A slide which Nagele said he showed to Springfield
employees on May 11 and 12 identified the retirement
savings plan as " TAPPAN-Full Retirement Savings Plan for
Non-Union Employees". The document identified by
Nagele as the text of the speech he gave on May 12 states,
in part:
Tappan, of course, has the retirement savings plan for
non-union employees. We don't have any union
employees in the Retirement Savings Plan.
It is the position of counsel for the General Counsel that
a long line of Board decisions "holds that disparate
granting or withholding of employee benefits based solely
on union membership status violates the Act." He notes
that Nagele, during the course of his speech and slide
presentation, "impressed upon the Springfield employees
that the plan was for `non-union employees' " and that the
Respondent, therefore, "in addition to unlawfully promul-
gating and maintaining the plan" violated Section 8(a)(1)
of the Act "by telling its employees that they would lose an
existing benefit if the Union succeeded in its organizing
efforts."
Counsel for the Respondent, however, referring to the
Board decisions finding that the maintenance of a plan
limited to nonbargaiiiing unit employees constitutes a
violation of Section 8(a)(1) of the Act, argues that in these
cases "the objectionable language provided for automatic
exclusion of represented employees and there was also
present either (I) communication of the exclusionary
language to the employees with a finding that such
communication was made with the purpose of discouraging
union membership among the employees, or (2) a refusal to
bargain on the part of the employer concerning continued
participation in the plan by represented employees." He
states that in the present case "there was absolutely no
proof the Respondent `exploited' the language contained in
its plan or in any manner threatened employees at the
Springfield plant with loss of such benefits should they
select a collective-bargaining representative ." Moreover, he
argues that "the eligibility language in Respondent's
Retirement Savings Plan does not require automatic
exclusion of employees who choose a collective-bargaining
representative. The language provides that a group of
employees who choose a bargaining representative will no
longer be eligible to participate, provided that the Company
has agreed to `maintain or contribute' to an employee
benefit plan under its agreement with such representative."
He also notes that Nagele "testified that the Respondent
has not refused to negotiate over coverage of represented
employees under the Plan since its adoption." Moreover,
counsel argues that the language in its plan "is expressly
permitted by the provision of the Internal Revenue Code as
amended by the Employees Retirement Income Security
Act of 1974.
In addition, counsel argues that the only language in the
plan of the Respondent referring to disqualification of
employees included in a collective-bargaining unit is set
forth in a document issued by the Respondent which
provides that all employees designated as eligible to
participate in the plan are those with the exception of any
employee "who is or becomes a member of a bargaining
unit recognized by the Company for the purpose of
collective bargaining and for the employees in which unit
the Company maintains or contributes to an employee
benefit plan ...." Counsel points out that, under the
provision of the Internal Revenue Code, in order for a trust
to constitute a "qualified trust" the plan must benefit either
70 percent or more of all employees or 80 percent or more
of all the employees who are eligible to benefit under the
plan if 70 percent or more of them are eligible to benefit
under the plan. He notes that, in determining whether or
not the mimmun eligibility requirements are met, the
Internal Revenue Code provides for the exclusion from
consideration "employees not included in the plan who are
included in a unit of employees covered by an agreement
which the Secretary of Labor finds to be a collective-
bargaining agreement between employee representatives
and one or more employers, if there is evidence that
retirement benefits were the subject of good-faith bargain-
ing between such employee representatives and such
employer or employers ...." He therefore submits that
the provisions of the Internal Revenue Code "expressly
permit the precise exclusionary language contained in
Respondent's retirement savings plan." He further notes
that the report of the conference committee, which
presented the compromise bill for the approval of the
Senate and the House, stated that "employees who are
under a collective-bargaining agreement can be excluded
for purposes of the breadth-of-coverage requirements . . .
if the employees are excluded from the plan and there is
evidence that retirement benefits have been the subject of
good-faith bargaining."
THE TAPPAN COMPANY
Counsel for the Respondent states that the only case
decided by the Board involving exclusionary language in
pension or retirement benefit plans since the adoption of
the Pension Reform Act of 1974 was Winn-Dixie Stores,
Inc., 224 NLRB 1418 (1976). It is his contention that the
exclusionary language in that case did not follow the
language permitted by section 410(b)(2)(A) as does that of
the plan of the Respondent. He further points out that the
facts in the Winn-Dixie case also disclose a refusal to
bargain on the part of that respondent and, moreover, he
states that it does not appear from the decision of the
Board that any consideration whatsoever was given to the
provisions of Section 410(b)(2)(A) and their effect on prior
decisions of the Board. He submits that "absent any
allegations or evidence of a refusal to bargain on its part
over inclusion of unionized employees in the Plan and
absent any evidence of `exploitation' of the exclusionary
language contained its Retirement Savings Plan in an effort
to discourage union membership on the part of its
Springfield employees, there can be no finding of a
violation of Section 8(a)(1) of the Act in the instant case."
He further states that the "precise language contained in
the Plan is expressly permitted by Section 410(b)(2)(A) of
the Internal Revenue Code which clearly expresses the will
of Congress that such language alone could not, and
should not, be found to be the basis of a violation of
Section 8(a)(1) of the National Labor Relations Act."
Counsel for the Respondent, therefore, submits that the
allegations of the complaint relating to asserted violation of
Section 8(a)(1) of the Act by the "nomenclature utilized to
identify the Respondent's Retirement Savings Plan should
be dismissed in their entirety and the Objection based on
such language should, likewise, be overruled."
E. Concluding Findings as to Unfair Labor
Practices
Upon appraisal of the evidence, I come to the conclusion
that Nagele did, in fact, make statements which were
violative of the Act. Thus, he told employees that if the
Union won the election the Respondent would "see to it
that the employees would not gain a thing"; he also told
employees that in the event the union won the election they
"would lose their benefits, such as insurance , paid holidays
and retirement"; he further told them that after the election
the Respondent would eliminate union hoodlums and
troublemakers; and, finally, stated that if the Union did
win the election the Respondent "did not have to meet any
demands or even bargain with them." I come to the
conclusion , and find, that Nagele made the foregoing
remarks and that the Respondent thereby violated Section
8(a)(1) of the Act.
Turning now to the alleged discriminatory transfer of
Copley, it is first to be observed that he was successful in
obtaining the signatures of some 55 employees on union
authorization cards between March 22 and April 12.
Having been assigned to work as a tow motor operator late
in January, and shortly after he filed a complaint with
OSHA, he observed, while driving a tow motor near a
production line, a female employee pointing her finger at
him while she was standing beside Personnel Manager
Hatcher. Copley's testimony is that Hatcher shook his head
1397
up and down while the employee was pointing at him. I
credit his account. He recognized the woman as an
employee whom he had solicited to sign a union authoriza-
tion card sometime previously. In a matter of minutes,
Copley heard a call over the intercommunication system
for Young to call Hatcher and, some 5 or 10 minutes later,
Young came to him and stated that he was being
transferred to one of the Respondent's outside warehouses
and further instructed him that he was not to come back to
the main plant for any reason but that he (Young) would
punch Copley's timecard and further stated that Copley's
job would be full time at the O'Brien warehouse. It seems
plain to me, considering the record, that Copley had very
little work to do at the O'Brien warehouse and, moreover,
endured substandard facilities while there. Upon the entire
record, I am convinced and find that Copley was sent to
the O'Brien warehouse in order to isolate him from other
employees and, furthermore, to discipline him for his union
activity. Accordingly, I conclude that the Respondent, by
transferring Copley, violated Section 8(a)(1) and (3) of the
Act.
We turn, finally, to a consideration of the Respondent's
retirement savings plan . As has been set forth previously,
the position of the Respondent is that its plan complies
with the applicable law and governmental regulations.
Moreover, it is the position of counsel for the Respondent
that the plan is distinguishable from prior decisions
involving comparable benefit plans.
Counsel for the Union, however , argues that the
presentation of the retirement savings plan by Nagele, in
conjunction with the printed descriptive material of the
Respondent's plan, "carried direct threat to employees that
their selection of union representation would cause a
forfeiture of their right to partake of the benefits of the
plan." In addition, he argues that the Respondent's
contention that the plan "was so named and so condi-
tioned because of ERISA requirement is nonsensical." He
argues that the Respondent could have placed in the plan a
provision that it was available to all employees with a
minimal term of employment not covered under some
other plan maintained by the Respondent. He states that
the provisions of the law "provide for the exclusion of
employees when a collective-bargaining agreement fails to
include them after good-faith negotiation and that a union
can negotiate for a simple provision that employees shall
remain covered under an existing plan and that such plan
shall be irrevocable without union consent, and that the
Union can agree to such a provision even without an
irrevocability clause . He states that an employer "would be
hard put to persuade anyone that it was engaging in good-
faith bargaining if it refused to sign a commitment to
continue doing nothing but what it was already voluntarily
doing." However, he states that in this case the Respondent
"represented that the mere existence of a bargaining unit
should exclude employees from coverage" and this repre-
sentation "is nothing less than a threat to an employee that
an employer will not engage in good-faith bargaining as to
whether employees shall be subject to the existing plan. It
announces its conclusion contrary to employees' needs
even before the duty to negotiate comes into being. This is
1398 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
a direct threat of financial injury to employees if they shall
exercise their right to select union representation."
Counsel for the Union refers to language in the Board's
decision in Boaz Spinning Company, Inc., 177 NLRB 788
(1969). In that case, the Board stated at 789 that an
employer, in arguing against unionism, "is free to discuss
rationally the potency of strikes as a weapon and the
effectiveness of the Union seeking to represent his
employees." The Board, however, continued that it was "a
different matter when the employer leads the employees to
believe that they must strike in order to get concessions,"
and that a "major presupposition of the concept of
collective bargaining is that minds can be changed by
discussion , and that skilled , rational , cogent argument can
produce change without the necessity for striking." The
Board went on to state that when an employer "frames the
issue of whether or not the employees should vote for a
union purely in terms of what a strike might accomplish, he
demonstrates an attitude of predetermination that bargain-
ing itself will accomplish nothing," and that in the event an
employer "displayed such an attitude in entering upon
collective bargaining, he would not be bargaining in good
faith, within the meaning of Section 8(a)(5) of the Act."
The Board also stated that "an employer who evinces such
a frame of mind prior to an election is indicating that he
will not live up to the mandate of Section 8(a)(5)," and that
considerations of policy "dictate that employees should not
be led to believe, before voting, that their choice is simply
between no union or striking. That narrow choice is
essentially what" the employer in that case gave to its
employees. Boaz Spinning, supra at 789. Counsel for the
Union argues that the Respondent did what the Board
described in the Boaz case, in that it "pounded home its
position that raises would come to the degree that the
company could afford them, regardless of union represen-
tation, that if the union insisted upon wages higher than
this amount predetermined by the company . . . a strike
would be inevitable and the employees would gain nothing
by a strike." Moreover, he states that the Respondent
"emphasized threats of plant closure by use of examples in
which it had closed one plant and was presently enduring a
long strike at another, while it transferred struck work to
the Springfield plant." Thus, he states that "this barrage of
propaganda was beyond the capacity of the employees to
assess not because the employees lack the intelligence but
because the correct assessment would require an extensive
amount of knowledge as to both economic laws and the
content of federal statutory law regarding labor-manage-
ment relations." He continues by stating that the Respon-
dent "brought home forcefully to the employees its
determination that union selection would gain the employ-
ees nothing by its action in ostracizing Mr. Copley as
punishment for his exercise of his Section 7 rights." He
concludes that it is quite plain that the election did not
result in the employees' choice on a basis of true facts and
their own preferences, "but instead was reached under the
compulsion of forceful managerial propaganda that no
benefit, but only harm, could come from the selection of
union representation."
While the legality of the Respondent's retirement savings
plan is by no means free from doubt, an appraisal of the
provisions of the plan and the statements of the Respon-
dent's officials , both orally and in writing, concerning it,
persuades me that it was designed and presented in such a
manner as to give employees the impression that in the
event they selected union representation they would forfeit
their rights to participate in the benefits of the plan.
Without repeating, I am of the view that the arguments of
counsel for the Union , summarized above , are valid. To
conclude , I find that the Respondent violated Section
8(a)(1) of the Act by promulgating and maintaining its
retirement savings benefit plan.
III. THE OBJECTIONS TO THE ELECTION
In view of the fact that the unfair labor practices found
above encompass the objections to the election as to which
the Regional Director recommended that a hearing be
held, it necessarily follows that such objections are
sustained. Accordingly, it is recommended that the results
of the election be set aside and that a new election be held
at such time as the Regional Director determines that it is
appropriate.
CONCLUSIONS OF LAW
1. The Tappan Company is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act and the Union is a labor organization within the
meaning of Section 2(5) of the Act.
2. By questioning its employees concerning their
membership, desires, and activities in behalf of the Union,
the Respondent violated Section 8(a)(1) of the Act.
3. By telling an employee that the Respondent would
close its Springfield, Tennessee, plant if the Union were
successful in its organizing campaign, the Respondent
violated Section 8(a)(1) of the Act.
4. By telling an employee that its employees would lose
existing benefits if the Union were successful in its
organizing campaign, the Respondent violated Section
8(a)(1) of the Act.
5. By threatening employees with loss of benefits if they
selected the Union as their representative, stating that
efforts at unionization were futile, and that they would not
gain additional benefits if the Union were successful in its
organizing campaign, the Respondent violated Section
8(a)(1) of the Act.
6. By threatening to discharge employees whojoined or
assisted the Union, the Respondent violated Section 8(a)(1)
of the Act.
7. By discriminatorily transferring employee Shade Lee
Copley, the Respondent violated Section 8(a)(3) and (1) of
the Act.
8. The aforesaid unfair labor practices affect commerce
within the meaning of Section 2(6) and (7) of the Act.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1) and (3)
of the Act, it will be recommended that the Respondent
cease and desist therefrom and take certain affirmative
action designed to effectuate the policies of the Act. It will
be recommended that the Respondent offer Copley
THE TAPPAN COMPANY
immediate and full reinstatement to his former position,
and if it is not available, to an equivalent position, without
prejudice to his seniority and other rights and privileges,
and make him whole for any loss of earnings he may have
suffered by reason of the discrimination against him, by
payment to him of a sum of money equal to that which he
would have earned from the date of his discharge to the
date of the offer of reinstatement, consistent with Board
policy set forth in F. W. Woolworth Company, 90 NLRB
289 (1950), with interest on backpay to be computed in the
manner set forth in Isis Plumbing & Heating Co., 138
NLRB 716 (1962).
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I issue the following recommended:
ORDER2
Respondent, The Tappan Company, Springfield, Ten-
nessee, its officers, agents, successors, and assigns, shall:
1. Cease and desist from:
(a) Questioning employees concerning their union mem-
bership, sympathies, or activities.
(b) Telling employees that it would close its Springfield
plant or threatening that they would lose benefits if the
Union were successful in its organizing campaign.
(c) Threatening to discharge employees who joined or
assisted the Union, or stating that efforts at unionization
were futile.
2 In the event no exceptions are filed as provided by Sec 102.46 of the
Rules and Regulations of the National Labor Relations Board, the findings,
conclusions, and recommended Order herein shall, as provided in Sec.
102.48 of the Rules and Regulations, be adopted by the Board and become
its findings, conclusions, and Order, and all objections thereto shall be
deemed waived for all purposes.
1399
(d) Discriminatorily transferring or discharging any of its
employees, or in any other manner interfering with,
restraining, or coercing employees in the exercise of their
rights under Section 7 of the Act.
2. Take the following affirmative action which is
deemed necessary to effectuate the policies of the Act:
(a) Offer Shade Lee Copley immediate and full reinstate-
ment to his former job or, if it is not available, to a
substantially equivalent position.
(b) Make Shade Lee Copley whole for any loss of
earnings he may have suffered by reason of Respondent's
unlawful discrimination against him in the manner set
forth in the section of this Decision entitled "The
Remedy."
(c) Preserve and, upon request, make available to the
Board or its agents, for examination and copying, all
payroll records, reports, and all other records necessary to
analyze the amounts of backpay due under the terms of
this recommended Order.
(d) Post at its office and place of business in Springfield,
Tennessee, copies of the attached notice marked "Appen-
dix." 3 Copies of said notice, on forms provided by the
Regional Director for Region 26, after being duly signed by
Respondent's representative, shall be posted by it immedi-
ately upon receipt thereof and be maintained by it for 60
consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees and members are
customarily posted. Reasonable steps shall be taken by
Respondent to insure that said notices are not altered,
defaced, or covered by any other material.
3 In the event that the Board's Order is enforced by a Judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."