Times Wire & Cable Co.

National Labor Relations Board - Board Decisions

May 30, 1986

280 N.L.R.B. 19 (N.L.R.B. 1986)

TIMES WIRE & CABLE CO.
Times Wire & Cable Company and United Rubber,
Cork, Linoleum & Plastic Workers of America,
AFL-CIO, CLC. Cases 5-CA-12971, 5-CA-
13153, and 5-RC-11315
30 May 1986
DECISION, ORDER, AND DIRECTION
OF THIRD ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND JOHANSEN
On 30 June 1983 Administrative Law Judge
Richard A. Scully issued the attached decision.
The Respondent filed exceptions and a supporting
brief and the General Counsel filed cross-excep-
tions and a supporting brief.
The National Labor Relations Board has delegat-
ed its authority in this proceeding to a three-
member panel.
The Board has considered the decision and the
record in light of the exceptions and briefs and has
decided to affirm the judge' s rulings, findings, I and
conclusions only to the extent consistent with this
Decision and Order.2
The judge found, and we agree, that the Re-
spondent engaged in the following unlawful con-
duct:
1. The Respondent made plant closure threats in
violation of Section 8(a)(1) of the Act: (a) the Re-
spondent's supervisor Kelly informed employee
Richardson that the Respondent's primary reason
for relocating to Virginia was to escape a union
and that it could move again if the Respondent felt
that a union wanted too much. The Respondent,
through Kelly, also solicited employee Richardson
to revoke his union authorization card in violation
of Section 8(a)(1),3 and (b) the Respondent posted
adjacent to the unit employees' timeclock and pho-
tograph depicting an aerial view of an uncompleted
i The Respondent and General Counsel have excepted to some of the
judge's credibility findings . The Board's established policy is not to over-
rule an administrative law judge's credibility resolutions unless the clear
preponderance of all the relevant evidence convinces us that they are in-
correct . Standard Dry Wall Products, 91 NLRB 544 (1950), enfd. 188 F.2d
362 (3d Cir. 1951) We have carefully examined the record and find no
basis for reversing the findings
2 The Respondent has requested oral argument . The request is denied
as the record , exceptions, and briefs adequately present the issues and the
positions of the parties
a Chairman Dotson disagrees with both the findings of a plant-closure
threat made by Kelly and with the solicitation-of-revocation violation.
The Chairman further would distinguish Jimmy-Richard Co, 210 NLRB
802 (1974), relied on by the judge Contrary to both the judge and the
majority, the Chairman concludes that the interchange between low-level
Supervisor Kelly and employee Richardson which occurred off premises
in an informal atmosphere over coffee was noncoercive , akin to a casual
exchange between acquaintances Furthermore , Jimmy-Richard is inappo-
site because it involved not a front line supervisor , as here, who engaged
in an isolated casual exchange , but a plant manager who made plant-clo-
sure threats to approximately 60 employees
19
construction site.4 The posting occurred subse-
quent to the commencement of the Union' s organi-
zational campaign . The posting, while not an
8(a)(1) violation by itself, aroused the employees'
curiosity regarding plant closure as manifested in
their questions addressed to management . Thereaf-
ter, both Supervisors Mosher and Phaneuf engaged
in threats of plant closure by responding to em-
ployees' questions concerning the above-described
photograph with statements that it showed a land-
site which the Respondent abandoned despite its
construction plans and that the Respondent relo-
cated to Virginia because of problems with a
union.5
2. The Respondent violated Section 8(a)(3) and
(1) by failing to grant a normal and expected wage
increase to employees in November 1980 and by at-
tributing the loss of the increase to the Union.
3. The judge found that the Union had achieved
majority status and recommended a bargaining
order. The judge found that there was no reasona-
ble assurance that, given its past actions, the Re-
spondent would not again engage in a course of
unlawful conduct to keep the Union out. He fur-
ther found that it was unlikely that the effects of
the Respondent's unlawful conduct would be
erased or that a fair election would be insured by
the use of traditional remedies. Supporting evi-
dence for his conclusions consists of. A pre-first
election antiunion campaign which included unlaw-
ful threats of plant closure followed by a pre-
second election strategy involving withholding
wage increases and blaming the wage loss on the
Union.
We disagree with the bargaining order remedy
recommended by the judge.6
This case involves a unit of about 180 employees.
The first election, conducted in November 1980,
resulted in a union victory.7 The union victory oc-
curred subsequent to the Respondent 's commission
of the following unfair labor practices: a threat of
plant closure made by a supervisor at a cafe away
from the plant to one employee; a solicitation by
4 As set forth more fully in the judge 's decision , the Respondent for-
merly operated from a facility in Connecticut . It began construction on a
new plant in Mendan , Connecticut. However, that plant was never com-
pleted, and the Respondent moved its operation to Chatham , Virginia.
5 We concur with the judge that Respondent's president Lynch's pree-
lection speech to unit employees where he discussed the photograph and
the objective economic reasons for the relocation did not fully dispel
these threats.
8 Chairman Dotson does not subscribe to either the judge 's analysis of
the authorization cards or to their revocations. However , having found a
bargaining order unwarranted , the Chairman finds no necessity to make
findings on whether the Union represented a majority of unit employees
based on valid authorization cards
r After the first election , the Union agreed to the sustaining of certain
objections filed by the Respondent Thus, the election was set aside be-
cause of the Union's objectionable conduct, not the Respondent's
280 NLRB No. 3
20 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
the same supervisor at the cafe to the same em-
ployee to revoke his authorization card ; and plant-
closure threats by two supervisors in conjunction
with the posting of the aerial photograph of a par-
tially completed plant. Immediately prior to the
first election, the Respondent 's president made a
speech to employees setting forth the legitimate
economic and competitive reasons for the Re-
spondent 's relocation . Though the speech did not
fully dispel the plant-closure threats, it reasonably
assuaged employees ' fears . Of greater significance
is the fact that the violations did not dissipate the
Union's majority. Rather, the Union won the elec-
tion.8
Subsequent to the Union 's election victory and
before the second election , the Respondent com-
mitted one further violation. It unlawfully withheld
an expected wage increase and placed the onus on
the Union . Nonetheless , this violation , even in light
of the violations occurring before the first election,
cannot be viewed in these circumstances as being
sufficiently serious to justify the imposition of bar-
gaining . We are not convinced that a third election
free from the lingering coercive effects of the Re-
spondent's 5-year-old unfair labor practices cannot
be held . Rather, we believe that the Board 's tradi-
tional remedies will enable the unit employees to
express their true sentiments regarding representa-
tion in a fair election.9
4. We reverse the judge 's fording that conduct
which occurred between the filing of the petition
and the first election constituted interference with
the exercise of free choice in the second election.
We hold that the second election should be set
aside and a third directed only on the basis of the
Respondent's illegal withholding of an expected
wage increase and the Respondent's placing the
onus on the Union, conduct which occurred during
the critical period for the second election. i 0
8 Contrary to our dissenting colleague, we deem it appropriate in this
proceeding to rely on the Union's winning the first election Ultimately,
with regard to imposing a bargaining order, the question to be decided is
whether traditional remedies can remedy the unfair labor practices to
permit a free and fair election to take place . Employee sentiment ex-
pressed in a Board -conducted election is an objective-not subjective-
factor that can be relevant to resolving this question; indeed , it is the best
possible evidence.
9 Cf. Quality Aluminum Products, 278 NLRB 329 (1986) There, an em-
ployer , in a unit of less than 20 employees, unlawfully laid off 30 percent
of the unit and also threatened job loss and plant closure . A bargaining
order was imposed . Here, the unit is a large one and the violations found
are less serious.
The Respondent has moved the Board to reopen the record to take
evidence regarding certain posthearing events . The General Counsel filed
an opposition . In light of our decision , the Respondent 's motion is denied
io The critical period for a second election commences as of the date
of the first election . Singer Co , 161 NLRB 956 (1966).
ORDER
The National Labor Relations Board orders that
the Respondent , Times Wire & Cable Company,
Chatham , Virginia, its officers , agents, successors,
and assigns, shall
1. Cease and desist from
(a) Threatening employees with plant closure in
the event that they designate or select the United
Rubber , Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC, or any other labor or-
ganization, as their collective-bargaining represent-
ative.
(b) Coercively soliciting employees to revoke
union authorization cards which they have signed.
(c) Telling employees that they will not be given
an expected wage increase because of the Union's
presence.
(d) Failing to adhere to its established policy of
granting , a general wage increase during the last
week of November because of its employees' sup-
port of the Union.
(e) In any like or related manner interfering
with , restraining , or coercing employees in the ex-
ercise of the rights guaranteed them by Section 7
of the Act.
2. Take the following affirmative action designed
to effectuate the policies of the Act.
(a) Make whole all employees in the appropriate
unit for any loss in wages caused by the Respond-
ent's unlawful failure to implement an expected
wage increase during the last week of November
1980 by paying each employee a sum equal to the
additional amounts of wages each would have re-
ceived had the wage increase been implemented
during the last week of November 1980 until the
day that the increase was implemented in April
1981 . In each case in which backpay is due under
the terms of the Order , it will be computed in the
manner set forth in the section of this decision enti-
tled "The Remedy."
(b) Preserve and, on request , make available to
the Board or its agents for examination and copy-
ing, all payroll records, social security payment
records, timecards, personnel records and reports,
and all other records necessary to analyze the
amount of backpay due under the terms of this
Order.
(c) Post at its facility in Chatham, Virginia,
copies of the attached notice marked "Appen-
dix."" Copies of the notice , on forms provided by
i i If 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 Nation-
al 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 "
TIMES WIRE & CABLE CO
the Regional Director for Region 5, after being
signed by the Respondent's authorized representa-
tive, shall be posted by the Respondent immediate-
ly upon receipt and maintained for 60 consecutive
days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent
to ensure that the notices are not altered, defaced,
or covered by any other material.
(d) Notify the Regional Director in writing
within 20 days from the date of this Order what
steps the Respondent has taken to comply.
IT IS FURTHER ORDERED that the consolidated
complaint is dismissed insofar as it alleges viola-
tions of the Act not specifically found.
IT IS FURTHER ORDERED that the second election
in Case 5-RC- 11315 is set aside and that the case is
severed and remanded to the Regional Director for
Region 5 to conduct a third election whenever he
deems it appropriate.
[Direction of Third Election omitted from publi-
cation.]
MEMBER DENNIS, dissenting in part.
I agree with my colleagues' affirmance of the
judge's unfair labor practice findings. I emphatical-
ly disagree, however, with their reversal of the
judge's recommended issuance of a bargaining
order under NLRB v. Gissel Packing Co., 395 U.S.
575 (1969). In setting forth my reasons for conclud-
ing such an order is appropriate, I rely on the ana-
lytical framework outlined in my recent concurring
opinion in Regency Manor Nursing Home, 275
NLRB 1261 (1985).
Briefly, the employees here were subjected to se-
rious "hallmark" violations I permeating the entire
180-person bargaining unit. Although only about 10
employees were directly threatened with plant clo-
sure,2 the judge found that Plant Manager Currie
acknowledged plant closure rumors were circulat-
ing in the facility. Currie denied them, if at all,
only to 10-16 employees at one meeting. I there-
fore find the unlawful plant closure statements
were disseminated throughout the unit.
Contrary to the majority, I can in no way con-
clude that Respondent President Lynch's speech
before the first election, although it "did not fully
i See my Regency Manor concurrence, above, 275 NLRB 1261, NLRB
v. Jamaica Towing, 632 F 2d 208, 215 (2d Cir 1980)
2 Supervisor Kelly threatened employee Richardson, as did Supervisor
Mosher Mosher threatened three or four braiding department employees
Superintendent Phaneuf threatened employee Smith and "several" other
people
Nor can I agree with my colleagues it is proper to rely on the Union's
securing a majority vote in the first election to assess the threats' serious-
ness See Plateau Coal Sales, 279 NLRB 1151, 1152 fn 4 (1986) (employ-
ee authorization card signing after unfair labor practices committed does
not negate reasonable tendency to coerce)
21
dispel the plant-closure threats . . . reasonably as-
suaged employees' fears." While the judge found
Lynch's remarks not themselves unlawful, the
judge properly determined that they "did not clear-
ly counteract the impression given by [Mosher's
and Phaneuf's] remarks or deal with the rumors of
plant closure. . . ."3
In agreement with the judge, the majority ac-
knowledges that before the second election, the
Respondent violated Section 8(a)(3) and (1) by
withholding a general wage increase and further
violated Section 8(a)(1) by seeking to place the
onus for the denial on the Union. The withheld in-
crease was significant. In the 5 years prior to 1980,
the raises amounted to 9 percent, 9 percent, 8.5
percent, 8.5 percent, and 9 percent. When the raise,
which should have been granted in November
1980, was finally given in April 1981, it amounted
to 13 percent. The judge also observed that, in
"numerous" conversations with employees, Super-
intendent Phaneuf told employees, in response to
their questions, that one employee had calculated
that each was losing $20 a week while the wage in-
crease was withheld. The Respondent's denial of
the increase was a serious act of discrimination af-
fecting the whole unit-clearly a "hallmark" viola-
tion-aggravated by the Respondent's blaming the
Union for its own misconduct.
In judging the Respondent's unfair labor prac-
tices as a whole,4 I classify them as falling within
"Gissel Category 2," and conclude that "the possi-
bility of erasing the effects of past practices and of
ensuring a fair election (or fair rerun) by the use of
traditional remedies, though present, is slight, and
employee sentiment once expressed through cards
would, on balance, be better protected by a bar-
gaining order."5
In so concluding, in accord with my Regency
Manor position, I find that, up to the time of the
hearing, no evidence of new management or em-
ployee turnover was presented that might mitigate
the Respondent's misconduct. The passage of time,
alone, is not in my view sufficient to warrant
3 The text of Lynch's remarks bears out the judge's interpretation
Lynch, after asserting that competitive conditions involved in dealing
with a unionized facility in Connecticut caused the Respondent to cancel
construction of a new plant there, stated
Tom [Currie] tells me many people have asked about the picture
of an empty foundation on the plant wall That was to be a new
plant It was never built A union which acted irresponsibly con-
vinced Times that it could not be competitive with another plant in
Connecticut Times did what it had to, to stay competitive back in
1973 It could do it again if it faced the same kind of problem
4 The Respondent, by Supervisor Kelly, also violated the Act by solic-
iting an employee to withdraw his authorization card
5 NLRB v. Gissel Packing Co, above, 395 US at 614-615; Regency
Manor Nursing Home, above
I agree with the judge, for the reasons he stated, that the Union pos-
sessed a card majority
22 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
denial of an otherwise appropriate bargaining
order.6
6 I would deny the Respondent 's motion to reopen the record to offer
subsequent evidence of employee turnover . The Respondent 's motion
simply makes general , unverified assertions that are wholly inadequate to
justify record reopening , i e., "a significant number of unit employees
who were present at the time of Respondent 's illegal conduct have
ceased working with Respondent," and its "workforce has expanded sub-
stantially "
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
The National Labor Relations Board has found
that we violated the National Labor Relations Act
and has ordered us to post and abide by this notice.
WE WILL NOT threaten our employees with plant
closure in the event they designate or select United
Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC, or any other labor or-
ganization as their collective-bargaining representa-
tive.
WE WILL NOT coercively solicit our employees
to revoke union authorization cards which they
have signed.
WE WILL NOT tell our employees that they will
not be given an expected wage increase because of
the Union's presence.
WE WILL NOT fail to adhere to our established
policy of granting a general wage increase during
the last week of November because of our employ-
ees' support for the Union.
WE WILL NOT in any like or related manner
interfere with, restrain , or coerce you in the exer-
cise of the rights guaranteed you by Section 7 of
the Act.
WE WILL make whole all employees for any
losses in wages caused by our unlawful failure to
implement a general wage increase during the last
week of November 1980, plus interest.
TIMES WIRE & CABLE COMPANY
John M. Glynn, Esq., and John S. Singleton, Esq., for the
General Counsel.
Stuart Newman, Esq., and Jeffrey M. Mintz, Esq., of At-
lanta, Georgia, for the Respondent.
DECISION
STATEMENT OF THE CASE
RICHARD A. SCULLY, Administrative Law Judge.
Upon charges filed on January 31 and March 24, 1981,
by United Rubber, Cork, Linoleum & Plastic Workers of
America, AFL-CIO, CLC (the Union) the Acting Re-
gional Director for Region 5 of the National Labor Rela-
tions Board (the Board) issued complaints on March 9
and June 22 , 1981, and an amended consolidated com-
plaint on November 24, 1981, alleging that Times Wire
& Cable Company (the Respondent) had committed cer-
tain violations of Section 8(a)(1) and (3) of the National
Labor Relations Act (the Act). The Respondent has filed
timely answers denying that it has committed any viola-
tion of the Act.
With regard to Case 5-RC-11315, pursuant to a peti-
tion filed by the Union on September 5, 1980, an election
was conducted on November 7 and 8, 1980, pursuant to
a Stipulation for Certification Upon Consent Election, in
an appropriate unit consisting of:
All production and maintenance employees, inspec-
tors, shipping and receiving employees and leadmen
employed by the Employer at its Chatham, Virginia
location, but excluding all office clerical employees,
guards and supervisors as defined in the Act.
The result was 103 votes for the Union and 83 against.
Thereafter, the Respondent filed timely objections to the
election with the Board. On January 27, 1981, the Acting
Regional Director issued a "Report on Objections and
Notice of Hearing" recommending that certain objec-
tions be dismissed and that others be set for hearing. On
January 29, 1981, the Board issued its Order adopting
those recommendations . By telegram dated January 22,
1981, the Union notified the Acting Regional Director
that in order to avoid further delay it would agree to the
sustaining of certain objections and the holding of a
second election. Pursuant to this, the Acting Regional
Director issued a supplemental report recommending
that the objections be sustained and a new election con-
ducted. On February 24, 1981, the Board issued a Deci-
sion , Order, and Direction of Second Election and the
second election was held on March 19, 1981. Challenged
ballots were determinative of the results of that election
and the Union filed timely objections to conduct affect-
ing the results of the election. On June 17, 1981, the
Acting Regional Director issued his recommended dispo-
sition of the objections and challenges. Pursuant to the
Board's Order of July 24, 1981, 4 of 5 challenged ballots
were opened and counted resulting in a final tally of 77
votes for the Union and 79 against. Because of the simi-
larity of the Union's objections to the second election to
the unfair labor practices alleged in the complaint in
Case 5-CA-12971, those cases were consolidated for
hearing and were subsequently consolidated for hearing
with the complaint in Case 5-CA-13153.
The hearing on this consolidated proceeding was held
in Danville, Virginia, on November 30 through Decem-
ber 2, 1981, and February 8-11, 1982, at which the par-
ties were given a full opportunity to participate, to exam-
ine and cross-examine witnesses , and to present other
evidence and argument. Briefs submitted on behalf of the
General Counsel and the Respondent have been carefully
TIMES WIRE & CABLE CO.
considered.' On the entire record and from my observa-
tion of the demeanor of the witnesses, I make the follow-
ing
FINDINGS OF FACT
1. THE BUSINESS OF THE RESPONDENT
At all times material , the Respondent was a Delaware
corporation engaged in the business of manufacturing
cable and wire at its plant in Chatham , Virginia. During
the 12-month period preceding November 24, 1981, a
representative period, the Respondent purchased and re-
ceived materials and supplies valued in excess of $50,000
directly from suppliers located outside the Common-
wealth of Virginia and, in the course and conduct of its
business, had a gross annual volume in excess of
$500,000 . The Respondent admits , and I find, that it is an
employer engaged in commerce within the meaning of
Section 2(6) and (7) of the Act.
H. THE LABOR ORGANIZATION INVOLVED
At all times material, the Union was a labor organiza-
tion within the meaning of Section 2(5) of the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Background
The Union's campaign to organize the Respondent's
Chatham plant began in the latter part of August 1980.2
Four employees, James Scruggs , Richard Adkins, Byron
Motley, and Michael Walker, met with the Union's field
representative , Ray Michael, at its Local 831 office in
nearby North Carolina on August 25. Each of the em-
ployees signed a union authorization card and gave it to
Michael. They returned to Chatham and began soliciting
other employees to sign the cards at various times and
locations over the next few days. On September 5 the
Union filed a representation petition with the Board. On
that date, there were 180 employees employed by the
Respondent in the bargaining unit.
B. Alleged Violations of Section 8(a)(1) and (3)
The General Counsel contends that the Respondent,
through its plant manager and supervisors, engaged in a
course of unlawful conduct throughout the election cam-
paign . The Respondent denies any wrongdoing.
1. Conduct of Terry Kelly
Richard Richardson is employed by the Respondent as
a braider mechanic. He testified that Michael Walker and
a friend came to his trailer one evening in late August
and discussed the union campaign. Richardson was asked
' The brief submitted by counsel for the General Counsel contains the
statement in fn I on p. 3 that "Witness James Scruggs has been fired
since the date of the hearing " The Respondent filed a motion to strike
that statement on several grounds. Thereafter, counsel for the General
Counsel made a written request that the statement be withdrawn The re-
quest is granted In reaching decision in this matter , I have given no con-
sideration to this allegation or to any factual allegation in the Respond-
ent's motion to strike.
2 Hereinafter all dates are in 1980 unless otherwise noted
23
to sign an authorization card and did so. A short time
later Richardson stopped for breakfast at Violet's Cafe in
Chatham after working on the third shift. As he was
parking his car he encountered Terry Kelly, a supervisor
over the draw line and final cable production, who asked
him what he was doing . When told that Richardson was
about to have breakfast, Kelly said he would go along
and have a cup of coffee. They went into the cafe and
after some conversation Kelly said that there was "a
nasty rumor going around the plant." Richardson asked
what it was and Kelly said, "[T]hey're trying to organize
a union." Richardson asked him who was doing this and
Kelly said that he did not know but that he had heard
Plant Manager Tom Currie and Supervisor Tom Fuller
discussing it that morning in the plant cafeteria. Kelly
then said that he did not know if Richardson had signed
a card or not, but if he wanted to he could write to the
Union and ask for it back. Kelly said that he did not
think a union was needed at the plant, that the "main
reason" the Respondent moved to Virginia was "to get
away from a union up north," that Fuller had said he
was involved with unions up north and would never
want to be in a union again because of the bad experi-
ences he had had, that the Respondent did not necessari-
ly have to go along with what the Union wanted, and
that "if they felt like the union wanted too much, then
they could just pick the plant up and move it somewhere
else."
Kelly testified that he remembered meeting Richard-
son at Violet's Cafe one morning when he went to Chat-
ham for breakfast. He denied that he said anything to
Richardson about getting his authorization card back,
that he had mentioned a conversation between Currie
and Fuller in the plant cafeteria, or that he said anything
to Richardson about a "nasty rumor." According to
Kelly, the subject of a union came up when, while he
and Richardson were discussing other things, their wait-
ress said that "once the Union was organized at the plant
that we would have to pay the employees more money
and give them more benefits." Kelly told her he did not
know what she was talking about. At that point, Rich-
ardson told the waitress that "there had been enough
cards signed to file a petition for a union at Times Wire."
Kelly testified that he did not know what Richardson
was talking about and that, at the time, he did not know
what union authorization cards were and did not ask
anything about them. The portion of his conversation
with Richardson concerning a union consisted entirely of
Richardson saying he thought a union was needed and
Kelly responding that he thought the Company was a
good place to work and that "there was no need for a
union." On cross-examination, Kelly testified that he
went to Plant Manager Currie the same morning and
told him about his conversation with Richardson.
Richardson was an impressive witness whose testimo-
ny was straightforward and convincing. Kelly was just
the opposite. His version of the conversation with Rich-
ardson in which the subject of the Union was interjected
by an unidentified waitress and his total lack of interest
in the subject even when allegedly told the Union had
enough cards signed to petition for an election was
24 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
simply not credible. Although Kelly testified that the dis-
cussion of the Union lasted only a matter of seconds and
involved only three or four sentences, that was the only
subject of the entire conversation with Richardson he
could remember. If the conversation meant so little to
Kelly, it is difficult to understand why he reported it to
Currie the same morning. Based on their demeanor while
testifying, the content of their testimony, and the inher-
ent probabilities, I am convinced that Richardson testi-
fied truthfully and Kelly did not.
I find that Kelly's remarks about the main reason for
moving to Virginia being to get away from a union and
that if the Respondent felt the Union wanted "too much"
it could move the plant, constituted a threat of plant clo-
sure in violation of Section 8(a)(1) of the Act. The clear
implication of these remarks, made in the context of
Kelly's explanation of why he felt a union was not
needed, was that the Respondent had moved its plant
once to get away from a union and would do so again.
He gave no details or background concerning the Re-
spondent's move to Virginia except to say that it was
principally motivated by the desire to avoid a union. His
suggestion that it would move again if the Respondent
felt the Union wanted "too much" created the impres-
sion that the Respondent would unilaterally determine
whether the Union's demands were unreasonable on the
basis of undisclosed criteria3 and, once it did so, would
"pick the plant up and move it somewhere else." Kelly
did not refer to any objective facts, such as economic ne-
cessity, which would force relocation of the plant;4 thus,
his statements constituted a threat of retaliation for en-
gaging in protected activity in violation of Section
8(a)(1) of the Act.5
It is not a per se violation for an employer to advise
employees that they can revoke their union authorization
cards even when the employees have not solicited such
information, as long as the employer does not offer as-
sistance in doing so or seek to monitor whether employ-
ees do so, or otherwise create a situation in which em-
ployees would tend to feel peril in refraining from such
revocation.6
Here, it was Supervisor Kelly who sought out Rich-
ardson to talk with him and who brought up the subject
of the Union. Before Richardson made any comment on
the subject of the Union, Kelly suggested that if Rich-
ardson had signed an authorization card he could revoke
it. The Respondent contends that even if Kelly did make
such a suggestion, it was not coercive. Although it is
true that the conversation took place away from the
plant in a casual atmosphere, Kelly's references, in the
same conversation, to the "nasty rumor" about the orga-
nizing drive, the conversation between Plant Manager
Currie and Supervisor Fuller conveying, as it did, the
concern of top management at the plant , and his unlaw-
ful statements concerning possible plant closure, all
tended to make Kelly's statement to Richardson coer-
3 See Jimmy-Richard Co., 210 NLRB 802, 805 (1974)
* See NLRB v. Gissel Packing Co., 395 U S. 575, 618 (1969).
6 Warehouse Groceries Management, 254 NLRB 252 (1981)
It L White Co., 262 NLRB 575 (1982)
cive. I find that, in this context , it was a violation of Sec-
tion 8(a)(1) of the Act.7
2. Other threats of plant closure
After the Union's organizing campaign started, a pho-
tograph of what appeared to be an aerial view of a con-
struction site was posted by the Respondent near the
timeclock used by all unit employees. There was no cap-
tion or other identifying information with the photo-
graph which, in fact, showed the concrete footings at a
site in Meridan, Connecticut, where the Respondent had
once begun building a new plant. Construction of that
plant was halted and its intended operations were moved
to Chatham, Virginia. The General Counsel contends
that the posting of this photograph coupled with the ex-
planations of what it depicted, given to employees by
various supervisors, violated Section 8(a)(1) of the Act
by creating the impression that the Chatham plant would
close or be moved because of the Union. The posting of
the picture without caption or comment was a neutral
act which without more would not ordinarily be a viola-
tion of the Act. However, it cannot be doubted that in
posting the picture without any identification in a place
where it would be seen by most employees on an almost
daily basis could be expected and was, in fact, intended
to arouse their curiosity and generate inquiries about it.
No other reason for posting the picture has been estab-
lished or even suggested.
Richard Richardson testified that after seeing the pho-
tograph, he asked Supervisor Noel Mosher what it was.
Mosher told him it was a landsite where the Respondent
was going to build a plant up north but at the time con-
struction was to start "they found out that if they built it
a union was going to try to organize as soon as they got
it built. So they decided to move it down south."
Mosher testified that during the campaign on one oc-
casion he was asked what the photograph was by a
group of employees whom he identified as three or four
girls from the braiding department. He could not recall if
Richardson was present at the time. According to
Mosher, he told them that "it was a picture of a plant
that they started building in Connecticut and they were
having union problems in the plant and they moved the
plant, stopped construction, and moved the plant to
Chatham." This was the only conversation about the
photograph he could recall.
As noted above, Richardson was a credible witness
who appeared to have a better recollection of the details
of this conversation than did Mosher and I accept Rich-
ardson's version of what was said. In any event , Mosher
did not really contradict Richardson and it is clear that
the thrust of his remarks was that when the Company
was confronted with union activity which it considered a
"problem," it had moved its plant to a new location. Al-
though Mosher did not say that the plant would be
moved from Chatham because of the Union, the clear in-
ference to be drawn from the posting of the picture by
the Respondent, coupled with this explanation , was that
I See L'Eggs Products, 236 NLRB 354, 389 (1978); Aircraft Hydra-
Forming, 221 NLRB 581, 590 (1975).
TIMES WIRE & CABLE CO
if it had moved once because of union "problems," it
would move again.8 I find this conduct a thinly veiled
threat which tended to coerce the employees and to
interfere with their rights in violation of Section 8(a)(1)
of the Act.
Employee Betty Jean Smith testified that, in October,
she attended a meeting with 40 or 50 other employees in
the plant cafeteria during which Plant Manager Currie
was asked about the same photograph. According to
Smith, Currie said it was a picture of a site "where the
plant used to be before the Union came in; and that if
they had to, you know, they would move it again."
After the meeting , Smith spoke with Supervisor Bill
Phaneuf, telling him that she did not understand what
Currie had said about the picture and asking Phaneuf
what it was. Phanuef told her "that it was a picture of
the plant that they used to have before the Union came
and that if it got in again they would move it-they
would move the plant again."
According to Currie, he was asked about the photo-
graph at a group meeting which Smith may have attend-
ed. In response to a question, Currie told employees that
the photograph was of footings to fit the plant they were
now in, that the plant was originally being built in Meri-
dan, Connecticut, but because a union became so unrea-
sonable in its demands, the Company put the plant in
Chatham. Phaneuf testified that he talked to several
people about the photograph prior to the November
election, but that he did not recall speaking to Smith
about it. According to Phaneuf, in his conversations with
employees he told them "that the factory was going to
be built in Meriden, Connecticut, and they were having
so many problems with the union that they decided to
move it to Virginia." He did not specify where the Com-
pany was having these problems with a union or what
they were and he did not say that the plant would move
from Chatham.
Although I do not think Smith was intentionally being
untruthful while testifying, she impressed me as having
little recollection of the specifics of the conversations she
testified about, as having a tendency to oversimplify and
generalize , and as being an unreliable witness where spe-
cific details of an event or conversation were concerned.
I believe Smith attended a meeting in which Currie was
asked about the photograph and I accept her statement
that she did not understand what Currie said about it. I
do not credit her testimony that Currie said the photo-
graph was of a plant the Company had "before the
Union came in" and that "if they had to . . . they would
move it again," although that may have been her subjec-
tive impression of what Currie had said. I find Smith's
testimony insufficient to establish that Currie made re-
6 Although the Respondent offered testimony to the effect that it had
stopped construction at the proposed new plant in Meridan and moved
the plant to Chatham after a lengthy strike at another plant in Connecti-
cut by a union with which it had had a lengthy bargaining relationship,
there was no indication that Mosher was aware of any such circum-
stances and he did not give this explanation in the conversation involving
Richardson The testimony of Plant Manager Currie indicated that
rumors of plant closure were rampant during the organizing campaign at
the plant
25
marks concerning the photograph which violated Section
8(a)(1) of the Act.
I also believe that because Smith did not understand
what Currie said about the photograph, she asked Phan-
euf about it, but I do not credit her testimony concerning
his response which was almost identical to what she had
attributed to Currie . I accept, as true, Phaneuf's testimo-
ny about what he told employees who asked him about
the picture (which I find included Smith) that it was a
proposed plant which the Company abandoned and built
instead in Virginia because of unspecified "problems with
the union ." As with the remarks of Supervisor Mosher,
discussed above , I find that Phaneufs statement that the
Company had moved its plant to its present location be-
cause of what it considered "problems" with a union,
coupled with the picture of an abandoned construction
site , were designed to and had the effect of intimidating
employees "by suggesting, in the absence of any objec-
tive criteria, that unionization can lead to plant shut-
down,"a and that they violated Section 8 (a)(1) of the
Act.
Employee Jimmy Scruggs testified that he had a con-
versation about the photograph with Supervisor Tom
Fuller while working in the extrusion department. He
asked Fuller what the photograph was and Fuller re-
sponded that "it was a picture of a construction site
where they were going to build a plant in Connecticut,
but they had some trouble with the union so they moved
it down here ." Fuller testified that he had conversations
with several employees about the photograph , including
one with Scruggs . He said he had described it as a pic-
ture of the footings of the plant that was to be built in
Meridan , Connecticut , but was built in Chatham.
Scruggs asked how the plant got to Chatham and Fuller
told him there had been a lengthy strike at the plant in
Wallingford, Connecticut, and because of the availability
of labor in the Chatham area, the plant was built there.
Fuller impressed me as having a better recollection of
what was actually said during his conversation with
Scruggs than did Scruggs who admitted he could not re-
member Fuller's "exact words." I find that the conversa-
tion occurred as Fuller described it. Fuller was obvious-
ly familiar with the facts surrounding the relocation of
the plant to Chatham and gave Scruggs a clear and com-
plete explanation of what the photograph depicted and
the circumstances of the relocation to Chatham . Unlike
the remarks of Supervisors Mosher and Phaneuf, dis-
cussed above, there was no suggestion in Fuller's answer
that unspecified union activity or problems had caused
the Company to move the plant it had started to build in
Connecticut . I find that Fuller's remarks to Scruggs,
even when coupled with the photograph , were not such
as to reasonably be construed as a threat of plant closure
simply because the employees engaged in prounion activ-
ity and did not violate the Act.
The Respondent contends that even if the remarks of
any of its supervisors should be found to constitute
threats , no violations should be found because any un-
9 Midland-Ross Corp, 239 NLRB 323, 332 (1978), Russell Stover Can-
dies, 221 NLRB 441 (1975)
26 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
lawful impression was dispelled by Company President
William Lynch in a final preelection speech delivered to
all unit employees in which he discussed the photograph.
In his speech, Lynch referred to the fact that, in 1973,
the Company was unable to reach agreement with the
union representing its employees in a Connecticut facility
and a long strike took place. He stated that, at the time,
the Company was being underpriced and outproduced
by its competition, resulting in a serious loss of business.
Its reaction was to cancel construction of a new plant in
Meridan, Connecticut, and to build it in Chatham. He
went on to say:
Tom [Currie] tells me many people have asked
about the picture of an empty foundation on the
plant wall. That was to be a new plant. It was
never built. A union which acted irresponsibly con-
vinced Times that it could not be competitive with
another plant in Connecticut. Times did what it had
to, to stay competitive back in 1973. It could do it
again if it faced the same kind of problem.
Currie testified that prior to the November election
there were many rumors going around the plant, one
being that "somebody said the plant was going to close."
In spite of this, when Currie was asked about the photo-
graph of the abandoned construction site by Jimmy
Scruggs, he declined to give Scruggs any explanation
saying, "I will tell you in due time ." "Due time" was the
day before the election when Lynch addressed the em-
ployees and made the statement about the photograph
quoted above. Given the atmosphere at the plant con-
cerning possible plant closure, as described by Currie, I
fmd that Lynch's remarks would have done little to
dispel the fears that had been engendered among the em-
ployees, no doubt in part, by the photograph, Currie's
coyness about it, and the comments of Supervisors Kelly,
Mosher, and Phaneuf. Although Lynch's speech may not
have violated the Act, it did not clearly counteract the
impression given by those supervisors' remarks or deal
with the rumors of plant closure Currie admitted were
known to be going around the plant.' 0 I fmd that
Lynch's speech was insufficient to dispel the impression
of possible plant closure created by the posting of the
photograph and the remarks of Supervisors Kelly,
Mosher, and Phaneuf.
3. Creating the impression of surveillance
Michael Walker testified that during a meeting in the
plant conference room prior to the November election,
Plant Manager Currie told a small group of employees,
which included the four employee organizers, that he
knew the employees who were working with the Union
to organize the plant. The General Counsel contends
'° Currie testified that in the face of the rumor he forcefully told em-
ployees at a preelection meeting that "this plant is not going to close. We
are going to be open , Union or not , we are going to [do] business as
usual We will be open whether they come in or they don 't " However,
these remarks, if made at all, were limited to a single meeting attended by
10 to 16 employees Lynch's speech gave no such assurances that the
plant would be open no matter how the employees voted in the follow-
ing day's election
that the statement created the impression of surveillance
of protected activity in violation of the Act. Currie ad-
mitted making the statement that he knew who the em-
ployee organizers were, but explained that the subject
came up in the context of a discussion of rumors circu-
lating at the plant, one of which was that Currie had
been seen outside of a building while a union meeting
was being held there. Currie told the employees that this
was not true and said, in effect, that he had no need to
engage in surveillance because Chatham was a small
town, and that he did not "have to ask or spy or do any-
thing" to find out what was going on . During this dis-
cussion, one of the employee organizers asked Currie if
the organizers would be discriminated against if the
Union did not win the election. Currie stated emphatical-
ly that they would not be. Walker's testimony confirmed
this.
While an employer's naming or claiming knowledge of
the identity of union activities or supporters can, in ap-
propriate circumstances, violate the Act by creating an
unlawful impression of surveillance, t t I find that Currie's
remarks about knowing who the union organizers were
did not violate Section 8(a)(1). The evidence shows that
over the course of several days, the employee organizers
regularly solicited employees to sign union authorization
cards in the parking lot of a gas station near the plant
around the times of shift changes. They were exposed to
public view while engaged in this solicitation and they
made no effort to conceal what they were doing which
sometimes involved flagging down employees in cars and
waving them into the parking lot. Rather than serving to
create the impression of surveillance, Currie's statement
was meant to dispel a rumor that he had been surrepti-
tiously observing a union meeting. Under these circum-
stances, his pointing out that he had no need for such
clandestine activity because he and others knew who
was working on behalf of the Union could not reason-
ably have been perceived as an attempt at coercion.
More important, he clearly and emphatically told the
employees that there would be no discrimination against
the employee organizers regardless of the outcome of the
election. Where, as here, there is no reasonable basis for
believing a supervisor's remarks were improperly moti-
vated and the remarks are not sufficient to alarm em-
ployees, to coerce them, or to make them feel their
union activity would be cause for discrimination against
them, there is no interference with their Section 7
rights.12 Therefore, I shall recommend that this allega-
tion be dismissed.
4. Interrogation
Employee Betty Jean Smith testified that during the
election campaign she had several conversations about
the Union with each of three supervisors, Bill Phaneuf,
Junior Hedrick, and Stanley Bowen. She described the
conversations with each supervisor in almost identical
terms, with the supervisor talking about the Union and
" See General Electric Co ., 255 NLRB 673 (1981); Hamilton Avnet
Electronics, 240 NLRB 781 (1979)
12 Atlas Metal Parts Co., 252 NLRB 205, 210 (1980); Deringer Mfg. Co.,
201 NLRB 622 , 627 (1973)
TIMES WIRE & CABLE CO.
asking her "how I was going to vote, and things like
that." She could not recall the dates and gave no details
of any of the conversations. As indicated above, I found
Smith to be an honest but unreliable witness with a tend-
ency to generalize and give her impression of conversa-
tions rather than what was actually said . Phaneuf and
Bowen candidly admitted discussing the Union with
Smith during the campaign, but both credibly denied
having asked her how she was going to vote. I find that
the evidence fails to establish any unlawful interrogations
on the part of Phaneuf or Bowen. Hedrick testified that
he did speak with Smith about the upcoming election,
but that he did not ask her how she was going to vote.
On cross-examination , he stated that in discussing the
Union with employees the approach he used varied de-
pending on what he thought an employee's sympathies
were. In order to ascertain this, he had asked employees
how they felt about the election campaign, but he denied
ever asking how they were going to vote. I fmd that the
evidence is insufficient to establish any specific instance
in which Hedrick coercively interrogated Smith or any
other employee in violation of Section 8(a)(1) of the Act
and shall recommend that all the allegations concerning
unlawful interrogations of employees be dismissed.
5. Allegations concerning annual wage increase
The Respondent began operations in its Chatham plant
in November 1973. It granted a general wage increase to
its employees for the first time on January 6, 1975, in the
amount of 9 percent . It next granted a general wage in-
crease on August 2, 1976, in the amount of 9 percent. It
granted a wage increase of 8.5 percent on November 28,
1977, a similar increase on November 27, 1978, and an
increase of 9 percent on November 26, 1979. The con-
solidated complaint alleges that the Respondent violated
the Act prior to the first election when Plant Manager
Currie told employees that their regularly scheduled
wage increase would be withheld due to the pendency of
the representation petition and by offering to implement
the pay increase if the employees would vote against the
Union.
Richard Richardson testified that during a meeting in-
volving a small group of employees from the braiding
department and Currie, one of the employees brought up
the subject of raises and Currie said that the Respondent
could not give a general increase at the time because the
election was coming up and "they had to wait until that
business got out of the way." Michael Walker testified
that he had attended a meeting with Currie and a group
of about 45 employees a short time before the election
and an employee asked if the Union was voted out
would they get their annual raise . Currie answered that
he could not say one way or the other, all he could say
was look to past years.
Currie testified that prior to the November election, he
was asked "a couple of questions" by employees about
whether they would get a wage increase. He said he re-
sponded by saying that he could not answer the question
but that if the Union won the election the Company
would negotiate in good faith . He also told the employ-
ees "to look at our past record and judge for yourself."
27
There is no evidence that Currie ever brought up the
subject of a wage increase before the November election.
I do not find that his response in the meeting described
by Walker when he was questioned about it by an em-
ployee was such as to assert or imply that a wage in-
crease would be granted if the employees voted against
the Union. It strikes me as an attempt to give an even-
handed and realistic statement of what could be expected
in the event one side or the other won the election. I
also find no violation with respect to Currie's alleged
statement that a wage increase would not be granted
until the election was "out of the way." Although I
found Richardson to be a generally trustworthy witness,
his recollection of this incident appeared to be less than
vivid. I find it unlikely that Currie would have made
such a statement before the first election, which was
scheduled to be held nearly 3 weeks before the end of
November, when wage increases were usually given.
Even if it were, under the circumstances, it would not
have been unlawful because it does not indicate that the
increase would be delayed or imply that a delay would
result because of the employees' union activity. There is
no evidence that before the November election Currie
offered to implement a pay raise in return for employees'
voting against the Union. I shall recommend that these
allegations be dismissed.
It is also alleged that the Respondent violated Section
8(a)(3) and (1) of the Act by failing to implement a regu-
larly scheduled wage increase for its employees because
of their union activity and by informing them that the
wage increase was being withheld "due to the pendency
of the representation proceeding and due to the Union"
and also by increasing employees' insurance benefits in
April 1981. The Respondent contends that it had no
policy of granting its employees a regular annual wage
or benefit adjustment and that no wage or benefit in-
crease was finalized or announced until after the second
election.
The testimony of Tom Currie established that, in 1977,
the Respondent determined and announced to its em-
ployees that it would conduct an annual review of em-
ployee wages and benefits. In 1977, and each succeeding
year, the Respondent has conducted surveys of the
wages and benefits in its area in July or August. On the
basis of these surveys, Currie has formulated his recom-
mendations for adjustments to wages and benefits and
presented them to his superiors at the Company's quar-
terly meeting, held each year in October, at Wallingford,
Connecticut. The final decision on his recommendations
each year was made by the company president and the
adjustments's were implemented during the last week of
November. This process resulted in wage increases being
announced and implemented during the last week of No-
vember in 1977, 1978, and 1979.
In early August 1980, as in the 3 preceding years,
Currie directed his manager of administration, Tony
Gardiner, to conduct a wage and benefit survey. He did
this in a memo in which he indicated the proposals he
13 Curve's recommendations were often modified during the process
of obtaining the corporate president's approval , sometimes being reduced
and, on occasion , increased
28 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
already had in mind and asked for cost information on
certain medical benefits adjustments . Gardiner did the
survey and supplied the requested cost information.
Currie discussed recommended adjustments with a com-
pany vice president on October 2 and his formal recom-
mendation for wage and benefits adjustments was pre-
pared and presented to the company president at the
quarterly meeting during the third week of October. Ac-
cording to Currie, there were several mistakes in his cost
projections and the president asked Currie and the Com-
pany's industrial relations manager to go back and check
the cost of several items . Because of this , the president
could not be given the total cost of the recommended
adjustments in wages and benefits before the end of the
quarterly meeting . Consequently, he did not make any
final decision on these adjustments at the meeting be-
cause he wanted to know the impact on the Company of
the entire benefits package before making his decision.
No such decision was made before the November elec-
tion.
Currie testified that after the Respondent lost the No-
vember election, a meeting was held in Atlanta, Georgia,
to discuss what action the Respondent would take. The
meeting was attended by Currie, other company officials,
and the Respondent's attorneys, and it was determined
that the Respondent would file objections to the election
with the Board. During the course of that meeting, the
subject of the wage and benefits adjustments was dis-
cussed. Currie asked the attorneys what they should do
about the adjustments and "whether we should give it or
not." He was advised by the attorneys that "probably
either way we went was a problem, but the most con-
servative and safe way to go was not to give the raise as
long as the election proceedings were taking place." On
the basis of this advice, the Respondent did nothing
more about finalizing the wage and benefits adjustments
at that time and no wage increase or change in benefits
was announced or implemented during the last week of
November. Because he knew that he was going to be
questioned about it by the employees, Currie asked the
attorneys to prepare a statement he could use to answer
questions about the wage and benefits adjustments and
they did so. Thereafter, Currie held a series of meetings
with all employees on November 25 and December 1, at
which he informed them that the Company had filed ob-
jections to the election and explained what the objections
were . In each meeting , questions were asked about the
wage increase and, in answer, Currie read the statement
prepared by his attorneys, as follows:
We believe that the union engaged in certain im-
proper conduct before the election which improper-
ly effected [sic] the outcome . Based upon this belief,
our Company filed objections to the election with
the National Labor Relations Board. The Labor
Board is now investigating their objections.
Since the election proceedings are not over, we
have been advised by the Company's attorneys that
it would be improper for our Company to make any
changes in wages or benefits or other employment
conditions.
As noted above, in January 1981, the Union agreed to
sustain two of the Respondent 's objections and the con-
duct of a new election, which was scheduled for March
19, 1981. The preliminary result of that election was 77
votes for the Union and 75 against with 5 ballots chal-
lenged, 2 each by the Union and the Respondent and 1
by the Board agent conducting the election . The Union
also filed objections to the election . The challenges were
not resolved until June 17, 1981 , when the Acting Re-
gional Director issued his report . In April 1981 the Re-
spondent announced to its employees and implemented a
13-percent wage increase and improvements in the em-
ployees' health and life insurance benefits and in short-
term disability coverage . These wage and benefit in-
creases were essentially the same as those proposed by
Currie prior to the first election . Currie testified that in
early April 1981 he informed the employees that the
Union had filed objections to the election and "it looked
like it was going to go on forever," that he was going to
"let the lawyers battle it out ," and that "we were going
to move ahead with the wage increase and benefit
changes."
The Board has often stated that an employer's legal
duty with regard to increases in wages and benefits
while election proceedings are pending is to proceed as it
would have done had the union not been on the scene.14
It is also clear that the rule is easier to state than it is to
apply15 and that "each case turns on its own particular
facts and circumstances."16
The record shows that the Respondent had announced
and, for at least 3 years prior to 1980, followed a policy
whereby employees' wages and benefits were reviewed
on an annual basis , a process which began in late summer
with a survey of wages and benefits in its area and cul-
minated with the announcement and implementation of
wage and benefits adjustments during the last week of
November. To hold, as the Respondent contends, that it
did not have an established policy of granting a wage in-
crease and benefits adjustments in November and that
because it had not made a final decision on the amount
of the wage increase and the changes in benefits it would
grant and no announcement of any adjustments had been
made to its employees before the Union came on the
scene , any finding of a violation of the Act on its part is
precluded, would require the very kind of "mechanistic
and unrealistic application of the Act" the Board has
previously rejected.'' The testimony of the Respondent's
own witnesses, Plant Manager Currie and Supervisor
Phaneuf, makes it clear that the Respondent had an es-
tablished policy of giving a wage increase during the last
week of November and that its employees expected that
the policy would be followed in November 1980.18
14 E.g, Cutter Laboratories, 221 NLRB 161 (1975); Gates Rubber Co.,
182 NLRB 95 (1970), McCormick Longmeadow Stone Co., 158 NLRB
1237 (1966)
18 Compare Russell Stover Candies, 221 NLRB 441 (1975), with Singer
Co., 199 NLRB 1195 (1972).
18 Pacific Southwest Airlines, 201 NLRB 647 (1973).
17 Cutter Laboratories, supra at 168
18 At the meeting in November with the company attorneys, Currie
asked them "whether we would give it [the wage increase] or not" and
Continued
TIMES WIRE & CABLE CO.
When Currie left the Company's quarterly meeting in
October, the only thing preventing a final decision on
the proposed benefits package by the company president
was that he wanted additional cost information. There is
no reason to believe that the necessary information could
not have been readily obtained or that the wage increase
and benefits adjustments could not have been finalized
and approved in time for implementation during the last
week of November. I find that the Respondent failed to
announce and implement an expected wage increase and
benefits adjustments for its employees in November 1980
solely because of the representation proceeding.19
This alone does not necessarily require a finding that
the Respondent violated the Act. The legality of with-
holding a wage increase turns on whether the employer
is manipulating benefits in order to influence its employ-
ees' votes in the election.20 There have been cases in
which withholding a wage increase was not found to be
a violation because the employer did not seek to capital-
ize on the absence of a wage increase, to connect the
delay with the employees' union activity, or to interfere
with the employees' exercise of free choice in the elec-
tion. 21
In the present case, the Respondent did not formally
announce to its employees that the expected wage in-
crease would not be forthcoming notwithstanding the
fact that the matter was of such concern to Currie that
he had the Respondent's attorneys draft the language he
would use in answering expected questions about it.22
Instead , it held a series of meetings to inform the em-
ployees of its objections to the November election based
on its allegations of union misconduct. When, in each
meeting , questions were raised about the wage increase,
as Currie knew they would be, he read his prepared an-
swers which referred to the Respondent's election objec-
tions and the fact the Board would be investigating them
and said that because the election proceedings were not
over, the Company's attorneys had advised him that it
would be improper to make any changes in wages or
benefits. Currie did not tell the employees that this
action was not a result of their vote in the election or
he told them "there was no question that I was going to be asked [about
it by the employees] " Even the written statement prepared by the attor-
neys for Currie to read in answer to the employees' questions is titled.
"RE NOVEMBER WAGE INCREASE" Phaneuf testified about sev-
eral of the employees under his supervision asking him "why they were
not getting their raise" and about their being upset about not receiving it
19 Although the amount of the wage increase or the changes in bene-
fits might have been adjusted on the basis of the corrected cost informa-
tion, under the circumstances, it cannot be doubted that an increase in
wages and benefits would have been approved in 1980 Since it started its
practice of conducting annual wage surveys, the Respondent had never
failed to grant a wage increase during the last week of November. The
evidence is sufficient to establish "that the practice of granting wage in-
creases following periodic surveys was an established condition of em-
ployment." Eastern Maine Medical Center v NLRB, 658 F 2d 1, 8 (1st
Or. 1981). Economic considerations played no part in the Respondent's
failure to implement the wage increase
20 NLRB Y Otis Hospital, 545 F.2d 252 (1st Cir. 1976)
21 See, e g., Heckethorn Mfg. Co., 208 NLRB 302 (1974); Uarco Inc,
169 NLRB 1153 (1968).
22 I infer that the Respondent adopted this approach to coincide with
its position that it did not have an established policy of granting a wage
increase at the end of November. Obviously , to announce there would be
no increase or that it would be delayed would be to admit that there was
such a policy
29
that it was being done solely to avoid the appearance of
seeking to influence a subsequent election. He gave no
reason other than his having been advised by the Com-
pany's attorneys how to proceed. He gave no assurances
that the wage increase would be implemented after the
election proceedings were concluded, saying only that, if
the Union won, the question of a wage increase "will be
a subject for negotiation" and that, if the Union lost, "we
will then be free to move ahead, based on our own judg-
ment, given the economic conditions at the time."
I find that the Respondent's failure to grant the ex-
pected wage increase within a matter of 3 weeks after
the employees had voted in favor of the Union, in the
culmination of vigorously contested election campaign, is
sufficient to support the inference that protected conduct
was a motivating factor in the Employer's decision and
that the General Counsel has established a prima facie
case of discrimination under the Board's decision in
Wright Line.23 I also find that the evidence as a whole
does not establish that the Respondent would have taken
the same action even in the absence of the protected
conduct. On the contrary, it convinces me that denying
the wage increase was an integral part of the Respond-
ent's effort to undermine support for the Union among
its employees, the success of which was evident in the
results of the second election.
Richard Richardson testified that sometime in Decem-
ber 1980 Supervisor Bill Phaneuf held a meeting with the
third-shift employees of the braiding department to intro-
duce Pete Yeatts, a newly appointed supervisor, and to
discuss things going on in the department. During the
course of the discussion, one of the employees asked
Phaneuf, since the election was over, "why couldn't we
get our raise?" Phaneuf responded that "they couldn't
give a raise because charges have been filed" and they
had to wait until they got "all the Union business cleared
up and out of the way." According to Richardson, Phan-
euf also told them "from the time that we usually got
our raises that he estimated that we had lost the average
of $20 a week."
Phaneuf testified that he recalled the meeting at which
he had introduced Yeatts, but that he did not recall being
asked why the employees had not received a raise at that
meeting . However, he had been asked numerous times
by employees why they were not getting their raises
after the election and his response was: "we were not
giving a raise now on the advice of counsel, that they
thought we should not give them a raise while the elec-
tion was pending." He said he never raised the subject of
the raise with employees, but only responded to their
questions. On the subject of "losing $20 a week," Phan-
euf testified that when anyone asked him "about how
much they were losing, I told them. I said Harry has fig-
ured out that you are going to lose about $20 a week."
The "Harry" he was referring to was Harry Gillispie, an
employee in the extrusion department. On cross -examina-
tion, Phaneuf stated that he takes pride in his awareness
and understanding of his employees' concerns and that
he knew that the employees were concerned and upset
23 251 NLRB 1083 (1980)
30 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
about their failure to get their wage increase after the
first election.
The subject of the wage increase also came up during
a meeting Currie had with 40 to 50 employees in January
1982 in which a layoff caused by production scheduling
was announced. An employee asked Currie if "this [the
layoff] means we won't get our raise?" Currie testified
that he responded:
We are not crying poor mouth. We are not saying
that we can't afford to give the raise. The layoff has
nothing to do with whether you get a raise or not.
The only thing that we have been told by attorneys
is that as long as the election proceedings are going
on, that based on attorney's advice, we would do
nothing to change the general wage increase [sic].
A similar question was asked and Currie gave a similar
response in a later smaller meeting held to explain the
layoff to other employees.
This evidence further convinces me that the Respond-
ent's action in withholding the expected increase in
wages and benefits was intended to undermine the em-
ployees' support for the Union and that, through the
statements of Currie and Phaneuf, the Respondent sought
to capitalize on such action to influence the employees'
choice in the election.
An employer violates Section 8(a)(3) of the Act when
it abandons an established wage increase policy during a
representation proceeding unless it postpones the in-
creases only for the duration of the proceeding and in-
forms the employees at the time of the postponement
that the sole reason for its action is to avoid the appear-
ance that it seeks to influence the election.24 Here, the
Respondent did not merely postpone an expected in-
crease, it completely abandoned its practice of announc-
ing and implementing an increase during the last week of
November, 3 weeks after the employees had voted in
favor of the Union. The election was the only factor in
November 1980 which was different than in November
1977, 1978, and 1979 when increases were given. The
message was clear: the employees' union support cost
them a wage increase. It is no surprise that the Respond-
ent made no formal announcement of a change in policy
to its employees inasmuch as its position was that no
such policy existed. Obviously, under these circum-
stances it gave no assurances that the wage increase
would be given once the election proceedings concluded.
On the contrary, it told the employees that, if the Union
ultimately won, a wage increase would be a subject for
negotiation and, if the Union lost, the Company would
exercise its judgment based on the economic conditions
at that time. Nor did the Respondent tell its employees
that the fact that the wage increase had not been imple-
mented had nothing to do with the way they had voted
a few weeks earlier or that it was done solely to avoid
the appearance that it was seeking to influence a second
24 Smith & Smith Aircraft Co, 264 NLRB 1045 (1982), Progressive su-
permarkets, 259 NLRB 512 (1981)
election,25 an election which, at that point, had not been
announced or scheduled.
The Respondent also sought to place the onus for the
failure to grant the expected wage increase on the Union.
Currie scheduled and held a series of meetings with all
employees about the same time the wage increase was
usually announced. The ostensible purpose of the meet-
ings was to inform the employees that the Respondent
had filed objections to the election on the grounds of
union misconduct. Currie made no mention of the wage
increase even though he knew it was a matter of great
concern to the employees; instead, he left it to the em-
ployees to ask about it. His answer, in effect, was there
will be no increase because the election proceedings are
not over and it was so because the Union has acted im-
properly. The theme that the Union, alone, is the reason
there has been no wage increase was repeated in Currie's
January meetings with employees which were held to
discuss layoffs. There, he told them it was not that the
Company could not afford to increase wages and bene-
fits, it was not going to do so because its attorneys said
not to do so. Once again he said nothing about not want-
ing to interfere with employees' free choice, but only
that because of the election proceedings there could be
no increases. Phaneuf's approach was less subtle. He told
the employees the amount of money they were losing
each week because the representation proceeding was
going on. The fact that he let the employees raise the
subject and attributed the computations to another em-
ployee did nothing to lessen the impact of his message.
I find that the Respondent's actions in withholding the
wage increase and then seeking to place the onus there-
for on the Union were attempts to influence its employ-
ees' votes in the second election. These actions demon-
strate the true nature of its motivation much more vivid-
ly than its protestations that it acted in a good-faith at-
tempt to comply with the law and with no intent to dis-
criminate against its employees or to influence their
votes. I consider it significant that Currie, the only com-
pany official with direct knowledge of the Respondent's
actual motivation to testify, did little to support its posi-
tion. He was asked on cross-examination if the Respond-
ent's officials had discussed how giving or withholding
the wage increase would affect the outcome of the
second election. I found his answers to be equivocal and
less than credible. He would not admit having any dis-
cussions, but he would not deny them either.26
25 I find this omission to be particularly significant under the circum-
stances presented in this case. Had it done so, its argument that it was
acting in good faith would have more meaning. In its brief, the Respond-
ent faults the Union for not taking advantage of the "opportunity to re-
nounce any intention to charge the Company with an unfair labor prac-
tice were it to grant any improvements." If the Respondent had informed
its employees that "improvements" were being withheld solely to avoid
an unfair labor practice charge, the Union clearly would have had such
an "opportunity" and the resulting economic losses to the employees and
the effect on the second election might have been minimised.
E' By Mr. Glynn.
Q. Now isn't it true that when you talked to your attorneys in At-
lanta on November 19th you discussed whether granting or with-
holding a wage increase would help you or hurt you in winning the
election
Continued
TIMES WIRE & CABLE CO.
The Respondent also contends that if any employees
might have mistakenly believed the November wage in-
crease was canceled in order to influence their votes, this
impression was corrected in a series of meetings Currie
held with all employees in groups of three or four prior
to the second election. In these meetings, Currie says he
explained why the Company's attorneys and president
felt they could not give a wage increase "based on the
upcoming election." Currie read from various case deci-
sions, placing particular reliance on the Eighth Circuit
Court of Appeals decision in NLRB v. Planters Pea-
nuts,27 which he told the employees was a case "exactly
like this." I do not agree that Currie's statements during
these meetings erased the prejudicial effect of the Re-
spondent's unlawful failure to implement the wage in-
crease some 2 to 3 months before the meetings were
held. Nor do I agree that Planters Peanuts was "exactly
like" the situation in the present case or that it should be
controlling here.28 Although there are similarities be-
tween the cases, there are also significant differences.
The principal differences are (1) the decision to not grant
a wage increase in Planters Peanuts did not come within
a few weeks after a first election in which the union had
been chosen by the employees; (2) when Planters an-
nounced its decision, it indicated that the increase was
being deferred "until the election is over" because it
feared that the union, which had already filed two unfair
labor practice charges against it, would file another one;
and (3) the administrative law judge who heard the case
specifically found that the deferral of the wage increase
was not coercive and that the employer did not try to
undermine the union or attempt to influence its employ-
ees' votes.
Had the Respondent passed around copies of the
Planters Peanuts case and explained to its employees that
it was withholding the expected wage increase not be-
cause of their vote in the first election but because it did
A I can't recall those exact words, but I am sure we discussed
everything to do with giving or not giving a wage increase.
Q So you are sure you did discuss whether or not it would help
you or hurt you in winning the election; didn't you?
A I didn't say that . I said I am not sure we discussed it in that
way We discussed everything I know about the legalities of giving
or not giving a wage increase I really don't think any amounts ever
came up in that meeting
Q Well, I am not talking about the amount though, but isn't fit]
true that because you were concerned about whether or not you
won the election you discussed how not giving the wage increase
would affect the outcome of the election?
A I don't recall discussing how it would affect the outcome of the
election. What I recall is the legalities if we would give it or not
give it because November was the normal time, and that question
did come up
87 574 F 2d 400 (8th Cir 1978).
88 I am bound by the Board's ruling in Planters Peanuts, 230 NLRB
1205 (1977), in which it found that the facts indicated that the employer
had placed the onus for the withholding of an expected wage increase on
the union and had engaged in a "carefully dramatized and well-timed sce-
nano" to undermine and discourage employee support for the union. Id.
at 1206 . Insofar as there are factual similarities , I would, likewise, find a
violation in the present case based on the Board 's decision in Planters
Peanuts However, as discussed herein , I find that there are significant
differences in the facts of the present case from those in Planters Peanuts,
which were interpreted by the administrative law judge to conclude that
there was no violation of the Act. It is noted that the Eighth Circuit
denied enforcement of the Board 's Order in reliance on that interpreta-
tion, which it accorded "great weight " 574 F 2d at 401.
31
not want to violate or be charged with violating the Act,
during its meetings with employees during the last week
of November 1980 (instead of acting like there was no
wage increase to defer) the coercive effect of its action
might well have been countered. To come around for
the first time 2 to 3 months later, just before the second
election, and tell the employees that it deferred the wage
increase for the same reasons as in Planters Peanuts and,
further, imply that its action had court sanction was
meaningless and could not serve to relieve the influence
of its unlawful action on the employees.
Finally, the fact that the Respondent took the action it
did pursuant to advice from its attorneys does not relieve
it of liability where that action is a violation of the
Act.29
In summary, I find that the Respondent abandoned its
established policy of granting a wage increase during the
last week of November 1980 because of the representa-
tion proceeding and because the Union won the first
election. In abandoning this policy, it gave no assurances
that it was not being done in reprisal for the employees'
prounion vote in the election held just a few weeks
before or that a wage increase would be forthcoming
when the election proceeding concluded. It offered no
reason for its failure to grant the expected wage increase
other than to say that its attorneys had informed it that it
would be improper to do so. At the time it made known
to its employees that there would be no wage increase
and, again prior to the second election, the Respondent
sought to place the onus for the loss of the increase on
the Union, through the remarks of its supervisors, Currie
and Phanuef. Under all the circumstances , I find that the
Respondent's failure to grant the wage increase in No-
vember 1980 was discriminatory and was used by the
Respondent in an effort to influence the votes of its em-
ployees in violation of Section 8(a)(3) of the Act. The re-
marks of Currie and Phanuef, attributing the loss of the
wage increase to the Union, also violated Section 8(a)(1)
of the Act. 3 o
I find that the General Counsel has failed to establish
by a preponderance of the evidence that in January 1981
Tom Currie offered to implement a pay raise in return
for employees' voting against the Union in the second
election. As in the case of similar statements made by
Currie before the first election concerning how the Com-
pany would act if the Union lost, I do not believe they
constituted attempts to influence employees' votes and
will recommend that this allegation be dismissed.
I find that the Respondent's implementation of an im-
provement in employees' insurance benefits at the same
time it granted a wage increase in April 1981 was not a
violation of the Act. The changes in the insurance bene-
fits were those that the Respondent had been considering
and would have granted in November 1980 had it not
withheld the wage increase and benefits adjustments at
that time for the reasons discussed above.
29 See G C. Murphy Co , 223 NLRB 604 (1976), enfd. 550 F 2d 1004
(4th Cir. 1977), Great Atlantic & Pacific Tea Co, 166 NLRB 27 (1967).
30 Centre Engineering, 253 NLRB 419 (1980)
32 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
IV. THE APPLICABILITY OF A BARGAINING ORDER
The consolidated complaint alleges that the unfair
labor practices committed by the Respondent are so seri-
ous and substantial in character and effect to warrant the
entry of a remedial order requiring it to recognize and
bargain with the Union as the exclusive collective-bar-
gaining representative of its employees. The Union did
not make a demand on the Respondent for bargaining in
this case and no violation of Section 8(a)(5) was alleged.
Such a demand is not a prerequisite for a bargaining
order in an appropriate case.31 In NLRB v. Gissel Pack-
ing Co., 395 U.S. 575 (1969), the Supreme Court ap-
proved the use of the bargaining order remedy not only
in exceptional cases marked by outrageous and pervasive
unfair labor practices, but also
in less extraordinary cases marked by less pervasive
practices which nonetheless still have the tendency
to undermine majority strength and impede the
election processes. The Board's authority to issue
such an order on a lesser showing of employer mis-
conduct is appropriate, we should reemphasize,
where there is also a showing that at one point the
union had a majority; in such a case, of course, ef-
fectuating ascertainable employee free choice be-
comes as important a goal as deterring employer
misbehavior. In fashioning a remedy in the exercise
of its discretion, then, the Board can properly take
into consideration the extensiveness of an employ-
er's unfair labor practices in terms of their past
effect on election conditions and the likelihood of
their recurrence in the future. If the Board finds
that the possibility of erasing the effect of past prac-
tices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employer sentiment once expressed
through cards would, on balance, be better protect-
ed by a bargaining order, then such an order should
issue.3 2
A. Challenged Union Authorization Cards
The General Counsel contends that a majority of the
employees in the bargaining unit had signed valid union
authorization cards as of September 5, 1980 . The Re-
spondent denies that the valid authorization cards in evi-
dence establish that the Union had a majority and con-
tends that, even if some of its actions were found to be
unlawful, they do not warrant entry of a bargaining
order.
The Respondent apparently contends that none of the
authorization cards should be considered a valid indica-
tion of employee support for the Union because the em-
ployee organizers engaged "in a general pattern of mis-
representation as to the purpose of the authorization
cards" which misled all the employees who signed cards.
The evidence in the record does not substantiate this33
si See Production Plating Co, 233 NLRB 116 (1977); Peaker Run Coal
Co., 228 NLRB 93 (1977).
32 395 U.S. at 614-615.
as Based on the testimony of Richard Adkins, one of the four employ-
ees who initially contacted the Union and solicited most of the cards, the
or provide any basis for a blanket rejection of all the au-
thorization cards which were single-purpose cards, stat-
ing clearly and unambiguously that the signer designated
and authorized the Union as his or her collective-bar-
gaining representative. Such cards will be found to be
valid and the signers "bound by the clear language of
what they sign unless that language is deliberately and
clearly canceled by a union adherent with words calcu-
lated to direct the signer to disregard and forget the lan-
guage above his signature ."34 The circumstances sur-
rounding each challenged card must be carefully exam-
ined to ensure employee free choice.35
The Respondent contends that many of the employees
who signed authorization cards were led by the misrep-
resentations of the card solicitors to believe that signing
a card did not obligate them in any way and that the
only purpose the cards would be used for was to bring
about an election. The Board has made it clear that the
fact that a card solicitor discussed or stressed an election
purpose of an unambiguious card does not necessarily in-
validate it , since such a concurrent purpose is consistent
with the authorization purpose expressed in the card.36
Respondent claims that the solicitors, themselves , were misled about the
purpose of the cards by Umon Official Ray Michael, who misrepresented
the purpose of the cards at the meeting on August 25, at which the cards
were distributed , and they, in turn, misrepresented the purpose of the
cards to everyone they solicited. Adkins, who was still in the Respond-
ent's employ when called by it as a witness , was the employee who first
started talking about bringing a union into the plant He subsequently
abandoned his support for the Union after the first election and stated
that the reason he did so was the hardship caused him and many of his
friends by the Respondent's failure to implement the wage increase which
he was expecting and needed His hostility toward the Union, to which
he attributed the loss of the wage increase , and toward Ray Michael,
whom he accused of humiliating him in front of his wife and family, was
evident . I found his testimony unconvincing and not credible in almost
every respect. His testimony that at the meeting on August 25, Michael
told them signing a union authorization card did not mean they wanted
to be Union members and did not obligate them to the Union in any way,
strikes me as a fabrication The uncontradicted testimony of Michael,
Jimmy Scruggs , and Byron Motley was that Michael emphasized the
need for a serious commitment to bringing the Union into the plant as
their bargaining representative before he even agreed to distribute au-
thorization cards. Adkins appears to have converted something Michael
did not say (`But, like I say, he never did say it committed us to being a
Union member or anything to that effect.") into an affirmative statement
("He told us these cards did not commit us to being Union members.").
Of the four employees who met with Michael , the most credible witness
was Byron Motley, who testified that Michael told them the purpose of
the card "was just to show that you was wanting the Union to represent
you in a bargaining force." Although he testified that Michael also talked
about an election , there was no indication that he misrepresented the pur-
pose of the cards or said anything that served to cancel the language
printed on the cards. Michael testified that after he gave the four employ-
ees authorization cards, "I said , well, you might as well start the ball roll-
mg, if you boys are interested in having the Union sign your card now;
read it and sign it . They all had a card . They read it and signed it and
they gave it to me " I do not credit the testimony of Adkins about the
meeting with Michael and find that the four solicitors were not misled as
to the purpose of the cards and did not, as Respondent argues , convey
"to each employee they approached that the sole purpose of the card was
to get an election."
s' NLRB Y. Gavel Packing Co., supra at 606.
ss It was for this reason I rejected the Respondent 's offer of proof as
to "a general approach" Richard Adkins allegedly used in soliciting au-
thorization cards from "practically each and every" employee he contact-
ed about signing a card. Adkins had the opportunity to testify about what
he told each specific employee from whom he solicited a card; his "gen-
eral approach ," if any , was superfluous and meaningless.
3s See Area Disposal, 200 NLRB 350, 355 (1972), Levi Strauss & Co.,
172 NLRB 732, 733 ( 1968).
TIMES WIRE & CABLE CO.
Likewise, statements to the effect that signing a card
does not obligate the signer to become a member of a
union are not inconsistent with its expressed purpose,
representation by a union, and do not invalidate the
card.97
The Respondent contends that the cards of Jimmy
Scruggs, Byron Motley, Michael Walker, and Richard
Adkins are invalid because Union Representative Ray
Michael misrepresented the purpose of the cards as being
solely to get an election. As discussed above, I find no
credible evidence to support this contention. On the con-
trary, while Michael discussed the possibility of an elec-
tion with the four men, he stressed the need for their se-
rious commitment to having the Union represent them
before he even agreed to work with them in organizing
the Respondent's employees. Considering all the circum-
stances surrounding their meetings with Michael, I find
that there was no misrepresentation as to the purpose of
the cards. I fmd the testimony of Richard Adkins to the
effect that he was told and, therefore, thought the card
he signed was solely to bring about an election to be a
deliberate falsification which undermines the credibility
of much of his testimony. I find each of the four cards is
valid and should be counted.
Byron Reynolds signed a card while being visited at his
home by Jimmy Scruggs and Richard Adkins. Scruggs
testified that he told Reynolds they were "trying to or-
ganize a union," that they were "getting cards signed"
and did he "want to get a union?" Reynolds said "yes"
and read and signed the card. Nothing else was said
about the cards. Adkins testified that it was he who told
Reynolds they were trying to organize a union and "we
need these cards signed to bring it to an election." Reyn-
olds was not called as a witness. Even if Adkins' testimo-
ny is credited,38 his statement did not misrepresent the
purpose of the card or cancel the language thereon
which Reynolds read. The card will be counted.
Robert Hubbard was visited at home by Scruggs and
Adkins where he signed a card. Byron Reynolds, who
was acquainted with Hubbard, went along to show them
where he lived. According to Adkins, he told Hubbard
they were trying to organize a union and had to have
cards signed. Hubbard asked him if Tom Currie would
see the card and Adkins said that he would not, that it
would go to the union representative and/or to the
Board. Adkins testified that he also told Hubbard that if
enough cards were signed "we would get an election at
Times Wire and Cable to see if everybody wanted a
union" and that "it did not obligate him in any way to
being a union member ." Hubbard did not testify. Noth-
ing that Adkins said to Hubbard was untrue, misrepre-
sented the purpose of the card, or served to clearly
" See Tipton Electric Co., 242 NLRB 202, 218 (1979), enfd. 621 F.2d
890 (8th Cir 1980), Ft. Smith Outerwear, Inc., 205 NLRB 592 (1973)
se Although I found many instances in which I thought Adkins was
not testifying truthfully, the same is true of Scruggs . I have no doubt but
that the subject of an election was discussed with many of the card sign-
ers, who were either unfamiliar with the organizing process or, in some
cases, concerned that Plant Manager Currie might see their card . Scruggs
incredibly maintained that the subject of an election was never discussed
with any employee from whom he solicited a card and that he was never
asked by anyone about the purpose of the cards I accept as true Adkins'
version of the solicitation of Reynolds' card
33
cancel the wording on the card. The card will be count-
ed.
James D. Doss was solicited by Adkins and Scruggs
when they met him on the street in Gretna, Virginia. Ac-
cording to Adkins' testimony, he told Doss they were
trying to organize a union and were "getting these cards
signed to get an election at Times Wire and Cable for a
union." There was no misrepresentation of the purpose
of the card and no basis for invalidating it. The card will
be counted.
Dwight Watson and Danny Montgomery signed cards
solicited by Adkins and Scruggs at the Red Fox Inn in
Chatham on August 26. When asked by Respondent's
counsel what he said to them, Adkins testified that
Montgomery already knew they were soliciting cards
and approached him as soon as he entered and asked for
a card which Adkins gave him. Watson was with Mont-
gomery and also asked for a card. They asked if this
meant they were joining the Union and Adkins told
them, "[Y]ou are not obligated to the Union in any
way," that the cards would be returned to Ray Michael,
they would go on to the Board, and no one else would
see them. Watson and Montgomery signed the cards and
handed them to Adkins. Adkins' "no obligation" com-
ment did not invalidate the card. However, Respondent's
counsel next asked Adkins if he had explained "the pur-
pose of the cards" to the two men and he had a signifi-
cantly different response. He repeated how Montgomery
already knew about what they were doing and asked him
for a card and said both Montgomery and Watson "did
not bother to wait for me to read the card[s]," but signed
their cards and returned them to him. He then went on
to say that they asked where the cards were going, what
would they be used for, and why they had to have the
cards. To which Adkins claims to have responded: "I
said the only thing the card was for was to see if enough
people were interested at Times Wire and Cable to have
a vote for an election at Times Wire. I said that is the
only thing, I said you would not be committed to a
union in any way." If his testimony were to be believed,
Adkins has admitted to expressly misrepresenting the
purpose of the cards as being "only" to obtain an elec-
tion. Based on his demeanor while testifying, his overall
lack of credibility, his obvious bias against the Union,
and the inherent probabilities, I do not believe him. I
have already indicated that I have discredited Adkins'
statement that he, personally, was misled about the pur-
pose of the cards by Ray Michael on August 25. I find it
incredible, under the circumstances described by Adkins,
when Montgomery came to him, asked for a card, and
immmediately turned around to the bar and signed it
before Adkins could read it to him, that Adkins would,
nonetheless, voluntarily cancel the language of the card
by telling him that it was "only" for an election. One
normally thinks of a solicitor misrepresenting the pur-
pose of a card, as a last resort, to mislead and coax a re-
luctant employee into signing. Here, the two employees
needed no coaxing and, in fact, had already asked for
and signed the cards before Adkins could get out his al-
leged disclaimer. Neither Montgomery nor Watson was
called as a witness. In the absence of any corroborating
34 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
evidence, I cannot accept Adkins' testimony that he mis-
represented the purpose of the cards to these two em-
ployees and find that it is not a sufficient basis to con-
clude that their signing of the cards was the product of
misrepresentation. Further, even if Adkins did say what
he claims to have said, he did not do so until after Mont-
gomery and Watson had already signed their cards. Con-
sequently, the claimed misrepresentation did not influ-
ence their decisions to sign them. I find that the cards
should be counted.
John Pope signed a card solicited by Adkins and
Scruggs at his home on August 25. According to the tes-
timony of Adkins, Scruggs explained to Pope that they
"were trying to see if the people at Times Wire and
Cable wanted a union, we were trying to organize," and
read the card aloud to him. Adkins told Pope that "it
would not obligate him in any way" and that, if enough
cards were signed, it would come to an election. I find
no basis for invalidating Pope's card and will count it.
Earl King was also solicited by Adkins and Scruggs on
August 25 at his home. Adkins testified that he explained
to King that they were trying to organize a union at
Times Wire, showed and read the authorization card to
him, told him they "had contacted URW and that was
who we were going to be represented by and that we
needed him to sign a card before we could get an elec-
tion at Times Wire and Cable." King signed the card and
returned it to him. There was no misrepresentation of the
purpose of the card and it should be counted.39
Jessie Crane signed a card which both Jimmy Scruggs
and Richard Adkins claimed to have solicited. I accept
Adkins' testimony that he solicited the card because his
initials are first on the back of the card and appear to
have been written with the same pen that Crane used to
fill out the card. Scruggs' initials are below those of both
Adkins and Byron Motley and were written with a dif-
ferent pen. I find it likely that it was Adkins who re-
ceived the card from Crane.40 Adkins testified that
Crane was "leery" about signing, saying he would sign
it, but did not want anyone to know he had signed.
Adkins says he told Crane he would not be obligated in
any way and that he needed the card to get an election,
that "the more people who sign cards, the more apt we
are to get an election . We had to have a certain
amount." Such statements do not serve to invalidate the
card and it will be counted.41
Irvin Wood signed a card solicited by Jimmy Scruggs
at the Texaco station near the plant on August 27. The
Respondent attacks the validity of this card on the basis
of testimony by Richard Adkins that he was present
when Scruggs addressed a group of employees at the
Texaco station, which included Wood; that he heard
38 See Dresser Industries , 248 NLRB 33, 36 (1980).
4° Adkins ' testimony clearly authenticated the card and established
that Crane had signed it. Adkins testified that the card was solicited on
August 26, but it bears the date August 25 Whatever date it was signed,
it bears a Board Regional Office stamp of September 5, the date by
which the General Counsel contends that a majority of the unit employ-
ees had signed authorization cards. The Board 's stamp establishes that it
was signed prior to the date indicated by the stamp . Gordonsville Indus-
tries, 252 NLRB 563, 596-597 (1980); J. P Stevens & Co., 179 NLRB 254
(1969).
41 See Medley Distilling C0, 187 NLRB 84 (1970).
Scruggs tell them that "we were getting cards signed to
get a union at Times Wire and Cable" and "needed the
cards in order . . . to get an election"; and that Adkins
told Wood the card would go to Ray Michael who
would turn it over to the Board "in order to determine
whether we had enough cards to have an election." Nei-
ther the comments of Scruggs nor those of Adkins
would invalidate the card. On cross-examination, on the
following day of the hearing , Adkins testified that he
told Wood that "the only purpose of using the card for
was to get an election." Adkins admitted that he did not
remember word for word what he had said to every em-
ployee. He could not remember whether Wood had ex-
pressed concern that the Company would see the cards,
whether Adkins had said anything to Wood about the
obligations involved with signing a card, or whether he
had observed Wood sign his card. It appears that
Adkins' testimony about telling Wood the "only" pur-
pose of the card was to get an election was not based on
any specific recollection of what he said to Wood, but
on his claim that he said the same things to Wood that
he said to "the rest of the people I had contact with," a
claim which I find to be erroneous after reviewing the
totality of his testimony and considering the lack of any
corroborating evidence. I find Adkins' testimony insuffi-
cient to invalidate Wood's card and will count it.
David Chumley, one of the relatively few employees
who signed an authorization card to appear as a witness,
testified that he pulled into the Texaco station to buy a
drink after working on the night shift and saw Adkins
and Byron Motley standing with a crowd of people. He
had no conversation with Adkins or Motley, but was
given an authorization card which he read as he filled it
out, signed, and returned to one of the solicitors. The
only statement concerning the card he remembered hear-
ing was that "if we get enough people to fill out these
cards, we can get an election." The Respondent attacks
the validity of Chumley's card on the basis of that testi-
mony and Adkins' testimony that Chumley was standing
near Irvin Wood when Adkins allegedly told Wood the
only purpose of the cards was to get an election. There
is no credible evidence that Chumley heard anything but
the statement he recounted , that if enough people signed
cards there could be an election. That statement does not
invalidate Chumley's card and it will be counted.42
Leon Gibson, Gerald Matherly, Dale Motherly, and
Randy Matthews, who ride to and from work together,
pulled into the Texaco station after work on the morning
of August 26, while Adkins, Motley, and Scruggs were
soliciting cards . Each of the four was given a card,
which was filled out, signed, and returned to one of the
solicitors. Richard Adkins testified that he addressed
these men as a group; told them they had contacted a
representative of the URW; and that they were trying to
organize a union . He told them that "the only thing the
cards were for is to get an election." And then he told
them "it was just to get an election." There is no evi-
48 Although Chumley apparently misdated his card "8/25/80," when
he could not have been solicited before the morning of August 26, the
Board's time stamp establishes that it was signed prior to September 5,
1980.
TIMES WIRE & CABLE CO.
dence that any of these employees questioned Adkins
about the purpose of the cards, which they were given
the opportunity to read. I find it incredible that Adkins
would gratuitously and repeatedly make statements cal-
culated to contradict the clear language printed on the
cards. Particularly, when not one of these men, all of
whom appeared as witnesses, remembered Adkins saying
any such thing. Matthews testified that he did not ask
what the card was for because he "read it and it stated
what it was for." Gibson recalled Adkins saying some-
thing about an election, but not that the card was "just
for an election." Gerald Matherly testified that Adkins
explained that the purpose of the cards was "to get a
union at Times Wire" and that he also said that "if
enough employees signed up, we would get an election."
He did not remember Adkins say that the card was only
to get an election. I find no basis for invalidating any of
these cards and they will be counted.43
Edwin Cooper was also present at the Texaco station
and signed a card at the same time the Matherlys,
Gibson, and Matthews signed theirs. He recalled some-
thing being said about the petition for an election but "it
was not just that one thing." I find no basis for invalidat-
ing Cooper's card and it will be counted.
Melvin Reynolds signed a card at the Texaco station on
August 25. Both Scruggs and Adkins claim to have solic-
ited his card. Reynolds did not appear as a witness.
Adkins testified that he met with Reynolds while
Scruggs was occupied with a group of employees and
told him "we were trying to organize a union" and had
to have authorization cards signed to do so. He also said
he told Reynolds "in no way would it obligate him to be
a member of the union" and that it would be used to pe-
tition for an election for a union. Even assuming that
Adkins solicited the card from Reynolds and said what
he claims to have said, he did not say anything which
would contradict or cancel the clear language of the
card or which constituted assurance that the card would
be used only for an election. The card will be counted.
Brian Giles testified that he signed a card given to him
at the Texaco station by Jimmy Scruggs. Giles had
talked to Scruggs at the plant and he was aware that
Scruggs was trying to organize a union and that cards
were being solicited. He had been avoiding stopping at
the Texaco station because he had not decided what he
wanted to do. However, while he was passing the sta-
tion, Scruggs waved him down and he stopped. Scruggs
told him that he needed a certain number of signatures to
get a vote. Giles was concerned about the purpose of the
card, which he admits he read, because he "didn't want
to just join a union that we didn't have or anything."
49 Adkins testified over 2 days In assessing his credibility, I consider it
noteworthy that on the first day he testified about soliciting several cards
and in only two instances did claim to have told card signers that the
cards were "only" or "just" for an election. On the second day of testi-
mony, with respect to everyone he claimed to have solicited , he consist-
ently maintained that he told everyone-m fact, emphasized to them-
that the cards were "only" or "just" to get an election , words deliberate-
ly calculated to contradict and cancel the language on the cards . None of
his testimony was corroborated by any of the card signers to whom he
allegedly misrepresented the purpose of the cards. I am unwilling to
accept Adkins' uncorroborated testimony as grounds for invalidating any
card.
35
Giles told Scruggs he wanted to know exactly what he
was signing and Scruggs told him "it was just a petition
to give the employees a chance to vote for the Union."
Giles said he signed the card because he "didn't see any-
thing wrong with giving the people a chance to vote for
one."
Jimmy Scruggs testified that Giles came into the gas
station a couple of days after they started soliciting
cards; that he told Giles they were trying to organize a
union; that he gave Giles a card and asked him to read
it; and that Giles took the card, read it, filled it out, and
handed it back. I credit the testimony of Giles over that
of Scruggs, who denied ever having mentioned or dis-
cussed the possibility of an election with any employee
from whom he solicited a card. Although he could not
recount the exact words of their conversation at the gas
station, Giles appeared to have a good recollection of his
concerns about the card and what he was told by
Scruggs which eventually convinced him to sign a card.
I believed his testimony that, although he read the card,
he did riot sign it until Scruggs assured him that it was
just to give the employees a chance to vote for the
Union.44 Considering all the circumstances, I find that
faced with the undecided and reluctant Giles , Scruggs
misrepresented the purpose of the card to induce him to
sign it . Although Scruggs' comments to Giles concerning
needing a certain number of cards in order to get an
election were not inconsistent with the stated purpose on
the cards, his assurance that the cards would just be used
to give the employees the opportunity to vote for or
against the Union served to override and cancel the
stated purpose.45 I find that Giles' card did not reflect
an informed and uncoerced choice to have the Union
represent him and that his card should not be counted.
Rita Kendrick Babbie Stockton, and Sandra Amos
signed cards on August 26 at the Texaco station. Al-
though they apparently rode to work together, Jimmy
Scruggs testified that he solicited Kendrick while she
was in Sandra Amos' car and Byron Motley testified that
he solicited cards from Stockton and Amos. Richard
Adkins, who was also present at the time, testified that
Motley read the card aloud to Stockton and Amos and
told them what the solicitors were doing. Motley told
them they were trying to organize a union and that "we
needed the card to be turned back . . . for an election."
Motley testified that he had told them "that the main
reason for signing the card was to have an election and if
44 I am aware of the possibility that long after the election, when ques-
tioned by the Employer's counsel, an employee is more likely to give tes-
timony damaging to the Union See NLRB v Gissel Packing Co, supra
However, after observing Giles as a witness, I am satisfied that he was
testifying truthfully and was not intimidated.
45 I make this finding solely on the basis of the statements of Jimmy
Scruggs, as described in Giles' testimony. Richard Adkins testified to
having a conversation with Giles at the Texaco station about signing a
card in which he told Giles "it would not commit him in any way" and
"that the card was gust to be used to get an election and that is all it was
going to be used for." Giles, who was called as a witness by the Re-
spondent, did not make any reference to any conversations with Adkins
in his testimony and, in fact, testified to avoiding going into the Texaco
station, until Scruggs flagged him down, because he knew that cards
were being solicited there I consider this further evidence of Adkins'
lack of credibility and willingness to fabricate testimony
36 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
we got enough cards signed then we would have an
election." Stockton and Amos had either read the card
or had it read to them before they signed . Under the cir-
cumstances, neither the representation that the "main"
purpose of the card was to get an election nor that if
enough cards were signed there would be an election
serves to invalidate the cards.46 The cards of Stockton
and Amos will be counted as will the card of Kendrick
who, according to Adkins, had already signed a card
before Motley spoke to Stockton and Amos.
Samuel Owen signed a card on August 26.47 Jimmy
Scruggs testified that he solicited Owen's card at the
Texaco station. Richard Adkins testified that he solicited
Owen's card and spoke with him alone. Adkins said
Owen asked where the card was going and Adkins told
him it would go to the Board and if enough were signed
there would be an election. He said he also volunteered
to Owen that it did not obligate him to be a member of
the Union. Even assuming that Adkins did make these
representations to Owen, as he claims, they did not con-
tradict or cancel the clear language on the card. The
card will be counted.
Donley Hupp signed a card on August 26 at the
Texaco station. The Respondent attacks the validity of
this card based on the testimony of Richard Adkins that
Hupp was present at the Red Fox Inn when Adkins told
employees Dwight Watson and Danny Montgomery that
the cards were needed to get an election. Having reject-
ed the claim that the cards of Watson and Montgomery
were invalid because of Adkins' statements, I also reject
it with respect to Hupp as well as for the additional
reason that I do not credit Adkins' testimony about
Hupp being at the Red Fox Inn on August 25. If he was
there, it seems likely he also would have been solicited
to sign a card, yet Adkins said he did not ask him to sign
at that time because "to my recollection, he had already
signed." August 25 was the day the employee solicitors
first got the cards from the Union. Hupp's card will be
counted.
Elwood Barber was given a card by Jimmy Scruggs at
the plant which he took with him and later returned to
Scruggs. The Respondent attacks the validity of Barber's
card based on the testimony of Richard Adkins. Adkins
testified that he rode to and from work with Barber and
that during the days prior to August 28, the date on his
card, he had a continuous conversation in the car with
Barber and Byron Motley about the efforts to organize a
union . Adkins claimed he told Barber that signing a card
would not obligate him in any way, also: "And I told
him the purpose of the card was that the only thing that
we wanted to do was just sign the card and the card
would just be used to get an election, that was all it
would be used for."
Barber did not appear as a witness . If believed,
Adkins' testimony about his emphatic assurances to
Barber that the card would only be used for an election
could invalidate the card. I did not believe him for the
48 See Area Disposal, supra
47 Although the date is in a different color ink than the writing on the
rest of the card, Jimmy Scruggs testified that Owen signed on August 26
and, in any event, the Board's stamp dated September 5, 1980 , establishes
that the card was signed prior to that date.
reasons previously discussed and, for the additional
reason, that Adkins, on cross-examination , admitted he
was off work between August 25, when the cards were
obtained from the Union , and August 28 , when Barber
signed his card , and did not ride with Barber during that
period. I find his testimony about his "continuous con-
versation" with Barber during the week before August
28 to be a complete fabrication. Barber's card will be
counted.
Roderick Holley, Michael Fallen, and David Owen
signed cards given them by Byron Motley at the Texaco
station. Motley testified that the three employees came in
at the same time and that they asked questions about the
cards, such as whether Currie would find out about
them. Motley gave them cards and told them to read
them. He also told them that the purpose of the card
"was mainly to get an election."48 They read and signed
the cards and returned them to Motley. Richard Adkins,
who was with Motley, testified that he told Holley in the
presence of Fallen and Owen that "the only reason the
card would be used is to get an election." I do not credit
the uncorroborated testimony of Adkins49 and find that
Motley's statement that the "main" purpose of the card
was to get an election did not contradict the language on
the cards which the three employees read and signed.
The cards of Holley and Fallen will be counted. Owen's
card is discussed further, infra.
Richard Richardson testified that he signed a card so-
licited by Michael Walker who came to his home. He
said that Walker told him they were getting cards signed
in order to get an election and that it did not "mean that
the Union was necessarily going to be in if I signed a
card. That it was just to have a petition for the Labor
Board to hold an election ." The Respondent argues that
this amounts to a representation that the sole purpose of
the card was to petition for an election and, therefore,
his card is invalid . I do not agree . Considering all the
circumstances surrounding the solicitation of Richard-
son's signature on his card, I do not find it to be the
product of misrepresentation. Although Walker talked
about an election, he also talked about having the URW
represent them in bargaining . In context, Walker's state-
ment about the card being "just to have a petition . . . to
hold an election" was not a misrepresentation of or an
expressed limitation on the purpose of the card, rather, it
was a truthful statement that even if Richardson signed a
card, there could be an election and the Union might not
ultimately get in as their bargaining representative. Rich-
ardson read the card before he signed it. I find no basis
for invalidating the card and it will be counted.
Sam Fowlkes had accompanied Michael Walker when
he solicited the authorization card of Richard Richard-
48 Although in response to a leading question on cross-examination,
Motley said he told Holley , Babbie Stockton , and Sandra Amos the card
was "just" to get an election , I consider his own words to be a more
reliable indicator of what he actually said . "I told them that the main
reason for signing the card was to have an election and if we got enough
cards signed then we would have an election."
49 David Owen was called as a witness by the Respondent , but was
not asked about the circumstances surrounding the solicitation of his
card. I infer that his testimony would have been adverse to the Respond-
ent's position
TIMES WIRE & CABLE CO.
son and was present during their conversation about the
card . The Respondent contends that for this reason
Fowlkes ' card is also invalid . Having found Richardson's
card was not the result of misrepresentation by Walker, I
would find the same to be true of Fowlkes' card. Fur-
ther, since Fowlkes came to Richardson 's home with
Walker and Walker testified that Fowlkes had read and
signed a card at Walker 's home about 8 p.m., it appears
that Fowlkes had already signed his card before they
met with Richardson . Fowlkes ' card will be counted.
James Moore testified that Jimmy Scruggs asked him
to sign a card , and, "he said, `you sign enough of those
and the Union would call a vote or something like that.'
Yes, it was like that-you would get a vote ." He also re-
membered Scruggs saying he was trying to organize a
union. There is nothing in Moore's testimony which
would indicate that Scruggs misrepresented the purpose
of the card or said anything inconsistent with the lan-
guage on the card . The card will be counted.
Timothy Pickral testified that he signed a card at the
Texaco station where Jimmy Scruggs and Richard
Adkins were soliciting on August 25. Pickral , a current
employee called as a witness by the Respondent , testified
on direct that Scruggs told him signing a card would not
make him a member of the Union and also that "the
main purpose of the card was to-if we got X number of
people to sign a card that we could get an election and
that was the main purpose of the card to be used only to
get an election ." On cross-examination , he testified that
Scruggs said he was trying to get a union in and if he
"got enough percentage of the people in the plant to sign
the card , we would get a chance to vote for a union,"
but said nothing about the card being used "only to get
an election ." Jimmy Scruggs testified that when Pickral
got out of his car Scruggs offered him a card saying, "if
he wanted to be a union member-sign up." Between
Scruggs and Pickral, I credit the testimony of Pickral to
the extent that Scruggs told him they needed a certain
percentage of employees to sign cards to get an election.
Such a statement does not invalidate the clearly worded
card . As for Scruggs' statement that "the main purpose
of the card" was "only to get an election ," even if relat-
ed correctly by Pickral , it is not the equivalent of an as-
surance that the card would be used for nothing other
than an election. This card will be counted.
The Respondent also contends that the cards of Hale
Crider, Terry Tuck, Dallas McCrickard, and Charles
Prunty are invalid because they were present when
Scruggs made the statements concerning the purpose of
the cards to Timothy Pickral . In addition to finding that
Scruggs' comments did not serve to invalidate Pickral's
card, I also find Pickral's testimony about who he
thought might have been standing around in a group
when he spoke to Scruggs about the cards is insufficient
to establish that those employees were actually there or
that they heard what Scruggs told Pickral. Consequent-
ly, there is no basis for invalidating their cards and they
will be counted.
Jerry Webb testified that while driving home from
work he was flagged over to the Texaco station by
Jimmy Scruggs who was there with Adkins and Motley.
Adkins did most of the talking-telling Webb that "they
37
had been over to the Local Rubber Union and they were
trying to get up a petition for an election ." Adkins said
he was aggravated with the Company and "thought it
was time to get a union in the plant." Scruggs gave him
a card which he read, signed, and returned . The Re-
spondent attacks the validity of the card and the basis of
testimony from Richard Adkins that he told Webb that
"the card would only be used to get an election." I
credit the testimony of Webb that what Adkins said was
they "were trying to get the Local Rubber Union to rep-
resent us and that we had to get enough cards signed for
an election." Such statements do not contradict the
stated purpose of the card and do not invalidate it. The
card will be counted.
B. Revocations of Union Authorization Cards
Bennett Yeatts and Kenneth Scruggs and a third individ-
ual, whose card was not offered in evidence , sent a letter
to the Union , dated September 9, asking that the authori-
zation cards they had signed be returned to them . Yeatts,
who testified that he became a supervisor on December
15, 1980, signed a card solicited by Jimmy Scruggs,
dated August 26. He testified credibly that after attend-
ing a union meeting "from everything that I seen down
there , everyone trying to talk at one time , some drinking
and so forth going on , I decided then and there that it
wasn 't for me." Kenneth Scruggs testified to having sent
the letter asking to have his card returned , but did not
explain why he did so.
Rachel Wallace testified that she signed an authoriza-
tion card, which is dated August 26 , but "decided that I
didn't want to have any part of it and I wrote a letter to
have my name removed." The letter is dated September
9.
Edward Buck testified that he signed an authorization
card , but later changed his mind and wanted the card re-
turned. He said that he sent a letter asking for the card
back and Ray Michael wrote him a letter saying the card
had been turned over to the Board. According to Buck,
he sent his revocation letter "a few weeks , several weeks
after I had signed the card." He did not have a copy of
his letter or the one he said he received from Michael.
He later said he sent his letter "around October."
David Owen testified that he signed an authorization
card, but got to thinking about it and asked a supervisor
at the plant how he could get it back . He says he sent a
letter asking to have his card returned a week or two
after he had signed the card. No copy of the letter Owen
sent to the Union was produced at the hearing.
The Respondent contends that each of these employ-
ees affectively revoked his or her authorization card and
that they should not be counted in determining whether
the Union had a majority. The General Counsel contends
that because all the attempts to revoke cards came after
September 5, the date the Union is alleged to have at-
tained majority status, they are irrelevant . I do not agree.
If the employee 's decision to revoke the card was not in-
fluenced by unlawful action by the Respondent , it should
relate back to the date the card was signed and cancel
the authorization for all purposes , otherwise, the employ-
ee's freedom of choice might be infringed . I have found
38 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that the Respondent 's unfair labor practices began in late
August when Supervisor Terry Kelly made a threat of
plant closure to employee Richard Richardson. At the
same time , Kelly coercively suggested to Richardson
that, if he had signed an authorization card, it could be
revoked. I have also found that Supervisors Noel
Mosher and Bill Phaneuf made unlawful threats of plant
closure in comments about the picture of an abandoned
construction site the Respondent had posted at the plant
prior to the first election in November. Although there is
no direct evidence that any of these five employees were
unlawfully solicited to revoke their cards or that they
were aware of any threats of plant closure, the fact re-
mains that the Respondent had unlawfully threatened
plant closure on at least one occasion before any of the
revocation letters were written. The Board has held that
it is a fact of industrial life that a threat of plant closure,
which has such serious consequences for all employees,
"will, all but inevitably, be discussed among employ-
ees."50 In view of this, it has placed on the employer the
burden of establishing that a threat of plant closure, even
if made to only one employee, remained isolated and did
not become known to other employees.5' As noted
above, Plant Manager Currie testified that rumors of
plant closure went through the plant prior to the first
election. I find that the Respondent has failed to dis-
charge that burden with respect to Scruggs, Wallace,
and Owen. They offered no explanation for their change
of heart and there is no evidence to negate the inference
that the Respondent's threat of plant closure to Richard-
son had been discussed among its employees during the
period of more than a week that had passed before they
sought to have their cards returned. As for Buck, it is
not clear when he even made the request to have his
card returned. By the end of October, the picture of the
abandoned construction site was on the wall and other
unlawful threats of plant closure had occurred. I found
the testimony of Yeatts about the reasons he sought to
revoke his card to be credible and convincing and find
that in his case revocation of his card was not the result
of or influenced by the Respondent's unfair labor prac-
tices. I find that the cards of Kenneth Scruggs, Wallace,
Owen, and Buck should be counted to determine if the
Union had a majority on September 5, but that of Yeatts
should not.
C. The Union's Majority Status
The evidence establishes that on September 5, there
were 180 employees in the appropriate bargaining unit
and that the Union had valid authorization cards from
117 employeesb2 on that date. I conclude that the Union
6 0 General Stencils, 195 NLRB 1109, 1110 (1972).
51 Ibid.
5 2 At the hearing , the Respondent's objected to the introduction of the
cards of Terry Holley, Dennis Walker, Ernest Crider Jr., Don Ashworth.
Aubrey Reynolds, and Omer Adkins on the grounds that they were not
properly authenticated Michael Walker testified credibly that whenever
he received an authorization card from an employee , he put his initials
and the place where he received the card on the back He further testi-
fied that he never put his initials on a card he did not receive directly
from an employee Each of the cards in question bore Walker 's initials
and "Texaco" which was where he was soliciting cards Walker was able
to identify his initials, but had no present recollection of the circum-
represented a majority of the Respondent's employees in
the appropriate bargaining unit on September 5, 1980.
D. Whether a Bargaining Order is Warranted
The Respondent committed several violations of Sec-
tion 8(a)(1) of the Act prior to the first election, the most
significant being its implied threats that the plant would
move close or if the Union were successful. Immediately
after the first election, the Respondent violated Section
8(a)(3) of the Act by discriminatorily withholding an ex-
pected wage increase and placing the onus therefor on
the Union. The wage increase was not given until after
the second election and was not retroactive. These unfair
labor practices were such as to have an effect on each
and every employee in the bargaining unit and, cumula-
tively,53 were egregious enough to warrant the issuance
of a bargaining order under the second category speci-
fied in Gissel Packing Co., supra.
In considering the propriety of a bargaining order, in
addition to the lingering effects of its past violations, the
likelihood of recurrence of unlawful action by the Em-
ployer in the future must be considered. Prior to the first
election, the Respondent waged a vigorous campaign
which included unlawful threats of plant closure. When
the results of the first election showed that its strategy
had failed, it embarked on a new course of unlawful
stances surrounding the execution of the card. It is not surprising that
Walker was unable to remember details of the execution of every card
given the large number of employees at the Respondent's plant , the evi-
dence that cards were being solicited from large numbers of employees
coming and going at the Texaco station before or after work, and the
fact that Walker may not have been acquainted with every employee
from whom he received a card . I found his testimony , that he put his
initials on every card he received and that every card he initialed came
from an employee , sufficient to authenticate the card under the Board's
rulings in Stride Rite Corp, 228 NLRB 224 (1977), and McEwen Mfg. Co.,
172 NLRB 990 (1968). No evidence was offered which would indicate
that any of these cards was not signed by the employee whose name it
bears
There is no merit in the Respondent's contention that it was the victim
of disparate treatment because I rejected the proffered testimony of Rich-
ard Adkins about his "general approach" in soliciting cards and allowed
in that of Walker about what he did with respect to the cards he re-
ceived. Walker did not purport to say that, because he had a general
practice he followed, he must have done the same thing with respect to
these employees, which was the tenor of Adkins' proffered testimony.
Walker affirmatively and credibly testified about what he did in every in-
stance, not about his "general approach "
sa I do not agree with the Respondent 's contention that because of the
Union's victory in the first election, unfair labor practices occurring
before that election should not be considered in determining whether a
bargaining order is appropriate Although the approach of hanging a pic-
ture of the abandoned construction site coupled with suggestions of plant
closure in the event of "union problems " may have proved too subtle to
coerce some employees , the Respondent 's display of economic power fol-
lowing the first election in withholding the expected wage increase from
every employee was anything but subtle I find it likely that anyone who
missed the Respondent 's message the first time around had it brought
home to them the second time That time it was more than just a threat,
it was action, and demonstrated that the Respondent was willing to use
its economic power to keep the Union out. There is no reason to believe
that all Respondent 's unfair labor practices did not have a cumulative
effect on its employees. On the contrary , the continuing loss of support
for the Union, evidenced in the results of the two elections indicates that
they did. Although on September 5, the Union had valid authorization
cards from 117 employees, it received just 103 votes in the first election
held November 7 and 8 , and only 77 votes in the second election on
March 19, 1981
TIMES WIRE & CABLE CO.
action, withholding the employees' wage increase, while
at the same time telling all of the employees in the bar-
gaining unit that it was acting lawfully and the loss of
the wage increase was the result of the Union's miscon-
duct. There is no reasonable assurance that, given its past
actions, the Respondent would not again engage in a
course of unlawful conduct to keep the Union out. I also
find it unlikely that the effects of the Respondent's un-
lawful conduct would be erased or that a fair election
would be ensured by the use of traditional remedies. I
conclude that a bargaining order is necessary to protect
the free expression of employee sentiment as evidenced
by the signed authorization cards. I, therefore, recom-
mend the issuance of an order requiring the Respondent
to recognize and bargain with the Union on request.
V. CASE 5-RC-11315
As noted above, the Union's remaining objections to
the second election were similar to the alleged unfair
labor practices. Having found that certain conduct of the
Respondent between the filing of the petition on Septem-
ber 5, 1980, and the second election on March 19, 1981,
constituted interference, restraint, and coercion in viola-
tion of Section 8(a)(1) and (3) of the Act, I also find that
such conduct interfered with the exercise of free choice
in that election. Accordingly, I recommend that the
second election held in Case 5-RC-11315 be set aside.
CONCLUSIONS OF LAW
1. The Respondent, Times Wire and Cable Company,
is an employer engaged in commerce within the meaning
of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. All production and maintenance employees, inspec-
tors, shipping and receiving employees and leadmen em-
ployed by the Respondent at its Chatham, Virginia, loca-
tion, but excluding all office clerical employees, guards,
and supervisors as defined in the Act, constitute a unit
appropriate for the purposes of collective-bargaining
within the meaning of Section 9(b) of the Act.
4. At all times material since September 5, 1980, the
Union has been and, is now, the exclusive representative
of the employees in the appropriate unit for the purposes
of collective bargaining.
5. By threatening employees with plant closure in the
event that they selected the Union as their collective-bar-
gaining representative, by coercively soliciting an em-
ployee to revoke a union authorization card, and by tell-
ing its employees that their expected wage increase
could not be given due to the Union, the Respondent
violated Section 8(a)(1) of the Act.
6. By failing, in November 1980, to implement a wage
increase, normally given to all unit employees during the
39
last week in November of each year, because the em-
ployees had supported the Union and had chosen the
Union as their collective-bargaining representative, the
Respondent violated Section 8(a)(3) of the Act.
7. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
8. The Respondent's unlawful conduct interfered with
the representation election held on March 19, 1981.
9. The Respondent did not engage in any unfair labor
practices alleged in the consolidated complaint which are
not specifically found herein.
THE REMEDY
Having found that the Respondent engaged in certain
unfair labor practices, I shall recommend that it be re-
quired to cease and desist therefrom and to take certain
affirmative action designed to effectuate the policies of
the Act.
Having found that the Respondent unlawfully failed to
implement an expected wage increase for all employees
in the bargaining unit during the last week of November
1980, 1 shall recommend that it be ordered to make these
employees whole for any losses in wages caused by the
failure to implement until April 1981 that expected wage
increase'54 with interest to be paid on the amounts
owing, computed in the manner prescribed in Florida
Steel Corp., 231 NLRB 651 (1977).55
As discussed above, I have found that the Respondent
engaged in substantial and pervasive unfair labor prac-
tices which were calculated to destroy the Union's ma-
jority status; that traditional remedies for such unfair
labor practices cannot eliminate the lingering and coer-
cive effects therefrom; and that the chances of holding a
fair rerun election are slight. Accordingly, I will recom-
mend that an order be issued requiring the Respondent
to recognize and bargain with the Union as the exclusive
representative of the Respondent's employees in the ap-
propriate unit.56 Inasmuch as the Respondent's unfair
labor practices, which served to nullify the election
process, began immediately after it learned of union ac-
tivity among its employees in late August 1980, its obli-
gation to bargain should date from September 5, 1980,
the date by which the Union had attained majority status
among the employees.57 As a bargaining order has been
found appropriate, the election in Case 5-RC-11315
should be set aside and the petition in that case dis-
missed.
54 See Smith & Smith Aircraft Co, supra.
55 See generally Isis Plumbing Co., 138 NLRB 716 (1962)
55 NLRB v Gusel Packing Co, supra
57 See Production Plating Co , supra, Trading Port, 219 NLRB 298
(1975)