Triec, Inc.

National Labor Relations Board - Board Decisions

Nov 21, 1990

300 N.L.R.B. 743 (N.L.R.B. 1990)

743
300 NLRB No. 91
TRIEC, INC.
1 While the Respondent does not specifically except to certain credibility
findings made by the judge, it nonetheless disputes these credibility resolutions
in its brief. It is the Board’s established policy not to overrule an administra-
tive law judge’s credibility resolutions unless the clear preponderance of all
the relevant evidence convinces us that they are incorrect. 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.
1 All dates herein are for 1989 unless otherwise indicated. alleged unlawful
or improper conduct occurred during the critical period between filing of the
petition and the election. The Regional Director ordered that the unfair labor
practice and the representation cases be consolidated for the purpose of hear-
ing, ruling and decision by an administrative law judge, and that thereafter,
the representation case be transferred to and continued before the Board. 2 At p. 73, L. 25 of the transcript, ‘‘warn’’ should read ‘‘worn.’’
Triec, Inc. and International Brotherhood of Elec-
trical Workers, Local 669, AFL–CIO–CLC.
Cases 9–CA–26705, 9–CA–26955, and 9–RC–
15522
November 21, 1990
DECISION AND ORDER
BY MEMBERS CRACRAFT, DEVANEY, AND OVIATT
On June 19, 1990, Administrative Law Judge
Marvin Roth issued the attached decision. The Re-
spondent filed exceptions and a supporting brief.
The National Labor Relations Board has delegated
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 brief and has de-
cided to affirm the judge’s rulings, findings,1 and con-
clusions and to adopt the recommended Order.
ORDER
The National Labor Relations Board adopts the rec-
ommended Order of the administrative law judge and
orders that the Respondent, Triec, Inc., Springfield,
Ohio, its officers, agents, successors, and assigns, shall
take the action set forth in the Order.
IT IS FURTHER ORDERED that the election in Case 9–
RC–15522 is set aside and the petition is dismissed.
Andrew L. Lang. Esq., for the General Counsel.
Fred A. Ungerman, Esq., of Dayton, Ohio, for the Respond-
ent Employer.
DECISION
STATEMENT OF THE CASE
MARVIN ROTH, Administrative Law Judge. These consoli-
dated cases were heard at Springfield, Ohio, on March 27,
1990. The charges were filed, respectively, on August 4 and
November 1, 1989, by International Brotherhood of Elec-
trical Workers, Local 669, AFL–CIO–CLC (the Union).1 The
consolidated complaint, which issued on December 12, al-
leges that Triec, Inc. (Respondent or the Company), violated
Section 8(a)(1) and (5) of the National Labor Relations Act.
The Company’s answer denies the commission of the alleged
unfair labor practices.
On July 7 the Union filed a petition for a Board-conducted
election (Case 9–RC–15522). Pursuant to a Stipulated Elec-
tion Agreement approved by the Regional Director on July
27, an election was conducted on August 10, among the em-
ployees in the following appropriate unit:
All full-time and regular part-time employees engaged
in electrical work who are employed by Triec, Inc. out
of its 2858 Collier Road, Springfield, Ohio location but
excluding all office clerical employees, professional
employees. guards and supervisors as defined in the
National Labor Relations Act.
The tally of ballots showed that of approximately 12 eligible
voters, 2 voted for the Union and 9 voted against the Union.
There were no challenged ballots. The Union filed a timely
objection to the conduct of the election. On September 29
the Regional Director issued his report on objection, finding
that the objection covered essentially the same subject matter
as the unfair labor practice complaint, and that a significant
amount of the alleged unlawful or improper conduct occurred
during the critical period between filing of the petition and
the election. The Regional Director ordered that the unfair
labor practice and the representation cases be consolidated
for the purpose of hearing, ruling, and decision by an admin-
istrative law judge, and that, thereafter, the representation
case be transferred to and continued before the Board.
All parties were afforded full opportunity to participate, to
present relevant evidence, to argue orally, and to file briefs.
Upon the entire record in this case,2 and from my observa-
tion of the demeanor of the witnesses, and having considered
the briefs submitted by General Counsel and the Company,
I make the following
FINDINGS OF FACT
I. THE BUSINESS OF RESPONDENT
The Company, a corporation with an office and place of
business in Springfield, Ohio, is engaged as an electrical
contractor in the building and construction industry. In the
operation of its business, the Company annually performs
services valued in excess of $50,000 outside of Ohio. I find,
as the Company admits, that it is an employer engaged in
commerce within the meaning of Section 2(6) and (7) of the
Act.
II. THE LABOR ORGANIZATION INVOLVED
The Union is a labor organization within the meaning of
Section 2(5) of the Act.
III. THE ISSUES
The principal issues in these cases are:
1. Whether the Company engaged in promises and grants
of benefits, threats of job loss and other reprisal, withholding
of wage increase and coercive interrogation, all in order to
discourage support for the Union, and thereby violated Sec-
tion 8(a)(1) of the Act.
2. Whether the election of August 10 should be set aside.
3. Whether by the above alleged unfair labor practices the
Company precluded the holding of a fair election, and there-
744 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
fore violated Section 8(a)(5) and (1) of the Act by refusing
to recognize and bargain with the Union as representative of
the employees in the appropriate unit. There is no dispute as
to the appropriate unit. In its brief (p. 8), the Company con-
cedes that a ‘‘bare’’ majority of the employees in the unit
signed authorization cards for the Union.
IV. THE COMPANY’S OPERATION, THE UNION’S
ORGANIZATIONAL CAMPAIGN, THE UNION’S ALLEGED
MAJORITY STATUS STATUS, AND COMPANY’S
KNOWLEDGE OF UNION ACTIVITY
The Company commenced operations in 1985 as a merger
of three electrical contracting firms owned respectively by
Scott Yeazell, Dennis Jones, and Daniel Heaton. Yeazell,
Jones, and Heaton are co-owners of the Company. Yeazell
is corporate president and functions as chief executive, han-
dling business and administration matters. Jones is primarily
in charge of sales, marketing, and customer relations.
Heaton, a skilled electrician, operates in the field. The Com-
pany included Heaton on its Excelsior list of employees eli-
gible to vote, but now admits that Heaton was and is a co-
owner and supervisor. Yeazell testified that the co-owners try
to make business decisions by concensus, but that he has the
final say. In May, and continuing until June 21, the Com-
pany had 10 electricians, i.e., unit employees.
In March employee Michael Parks contacted Union Rep-
resentative Thomas Williams concerning union representation
for the employees. The Union conducted meetings at its hall
and at Parks’ home. In May 6 of the 10 unit employees
signed union authorization cards, captioned in bold capital
letters ‘‘AUTHORIZATION FOR REPRESENTATION.’’
The text stated as follows:
I authorize Local Union No. 669 of the International
Brotherhood of Electrical Workers to represent me in
collective bargaining with my present and future em-
ployers on all present and future jobsites within the ju-
risdiction of the Union. This Authorization is non-
expiring, binding, and valid until such times as I submit
a written revocation.
Williams testified in sum that he explained the benefits of
unionization to the employees, and that he told each em-
ployee who signed a card that the employee had shown his
commitment to Williams, and that Williams would show his
commitment by trying to represent the employee. By letter
dated June 3, enclosing copies of the signed authorization
cards, the Union told the Company that it had signed cards
from a majority of the employees in an appropriate unit, and
requested recognition and bargaining. By letter dated June 9,
the Company’s attorney told the Union that the Company did
not believe it represented a majority of the employees, and
therefore would not recognize or bargain with the Union. In
June the Company hired two new employees, and on June
30 one of the card signers, Michael Parks (the leading union
adherent) quit his job. However, one of the new employees,
Jeff Nickell, signed an authorization card on the day he
began work (June 21). Nickell, who was presented as a com-
pany witness, testified that at a union meeting Representative
Williams asked him if he wanted to sign a union card.
Nickell initially testified that he understood that the card was
an authorization to Williams to continue talking to him.
Nickell then claimed that this was what Williams told him.
Thereafter Nickell went back to his original assertion that
this was his understanding of the card. Nickell testified in
sum that he read the card before signing it, was capable of
understanding the language, and that no one told him that the
card did not mean what it said. Nickell never claimed that
Williams said that the only purpose of the card was to au-
thorize him to continue talking to Nickell. Nickell’s some-
time assertion as to what Williams allegedly said was incred-
ible. Williams did not need a signed authorization card in
order to talk to an employee. Even if I were to credit
Nickell, the card would still be valid. NLRB v. Gissel Pack-
ing Co., 395 U.S. 575, 606 (1969); NLRB v. WKRG-TV, 470
F.2d 1302, 1317 (5th Cir. 1973); Peerless of America, Inc.
v. NLRB, 484 F.2d 1108, 1117–1118 (7th Cir. 1973). There-
fore the Union continued to hold valid authorization cards
from a majority of the unit employees.
Employee Parks testified in sum as follows: In May, at an
All-Phase Electric job, he told Company President Yeazell
that IBEW was interested in having the Company as a union
shop, and there would be an organizing effort. Parks did not
tell Yeazell whether he was interested in a union. However
one Sunday in late May, at his home, Parks told Co-owner
Heaton that he thought the Union was a good idea because
of the benefits which unionization offered. Heaton responded
that they were better off as they were. On Monday, June 5,
Parks was in the Company’s offices. He saw an envelope
from the Union on Yeazell’s desk. (As will be discussed, the
following day the Company conducted a meeting for em-
ployees, which is the subject of certain complaint allega-
tions.) President Yeazell testified that he first learned of
union activity on Friday, June 2. According to Yeazell, on
that date salesman Keith Holmes informed the three co-own-
ers that he was quitting to accept a better job offer. The
owners asked if they could make a counteroffer. Holmes re-
sponded that he didn’t think the Company could pay more
because they were becoming unionized. Yeazell further testi-
fied that in mid-May, at the All-Phase job, Parks said he was
contacted by the Union, but was happy at the Company and
not interested in a union. Co-owner Heaton also testified that
he first learned of union activity from salesman Holmes
when he quit on June 2. However, Heaton did not deny
Parks’ testimony concerning their conversation at Parks’
home. Co-owner Jones, in his testimony, contradicted
Yeazell’s testimony concerning when the Company learned
about the organizing campaign. Jones testified that Holmes
quit his job on the last Friday in May (May 26), and that
the previous day (May 25) Holmes told him that the Com-
pany would be unionized. Jones further testified that employ-
ees told him they were seeing ‘‘Mr. Williams, your neigh-
bor,’’ and that Jones understood from these remarks that the
employees were attending union meetings. In sum, Jones was
getting feedback concerning the organizing campaign directly
from the employees. With regard to the Union’s request for
recognition, Yeazell testified that his secretary opened the
letter, and he did not see it until the afternoon of June 6,
after the meeting for employees that day. Yeazell’s assertion
is incredible. If as indicated by Parks, the letter was on
Yeazell’s desk, then it is obvious that Yeazell saw it. Given
Yeazell’s admitted knowledge of union activity, it is highly
probable that his secretary would have immediately called
the letter to Yeazell’s attention. Although Yeazell’s secretary
745TRIEC, INC.
was presented as a company witness, she did not corroborate
Yeazell’s testimony in this regard. The Company also failed
to produce the original union letter at the hearing, although
the letter probably would have indicated when it was
stamped in as received. I credit Parks’ testimony. I find in
light of Parks’ testimony and Jones’ admissions, that by mid-
May the Company was aware of the organizing campaign. I
further find that Yeazell received the Union’s letter prior to
the June 6 meeting, and by reason of that letter, knew that
a majority of the unit employees had signed union authoriza-
tion cards.
V. THE ALLEGED UNFAIR LABOR PRACTICES AND
OBJECTION TO THE ELECTION
A. Alleged Unlawful Promises and Grants of Benefits,
Threats of Job Loss and Other Reprisal, Withholding of
Wage Increase, and Coercive Interrogation
The Company had a written policy manual which was in
effect until July 1. The manual outlined company policies,
practices and procedures, and employee benefits. The manual
stated, among other things, that ‘‘pay raise evaluations’’
would occur every 6 months, specifically, in January and
July, and that raises if any would be effective February 1 and
August 1. There would be no other pay increases. The man-
ual provided for paid holidays, but not for paid vacations.
The manual further provided that employees would provide
their own handtools, although the Company would replace
broken tools. The cost of the required handtools (30 items),
was listed as $331.85. The manual also indicated that em-
ployees would enjoy pension plan coverage while assigned to
a prevailing wage project, but would not otherwise be cov-
ered by a pension plan. It is undisputed that except in one
respect, the foregoing reflected actual company practice until
June 6. The testimony is in dispute as to whether and under
what circumstances the Company made evaluations or gave
pay raises as often as every 6 months. President Yeazell tes-
tified in sum that at least since 1986 the Company regularly
conducted individual evaluation sessions in December and
June, the sessions were conducted over lunch, with the Com-
pany paying for the employee’s lunch, and most but not all
employees received wages increases. Co-owner Heaton testi-
fied that he thought the Company followed the semiannual
evaluation policy, and that most employees got semiannual
raises. Michael Parks, who began working for the Company
in the fall of 1987, testified that when hired the Company
told him there would be evaluations every 6 months. Parks
testified that he received a 50-cent-per-hour wage increase
after working 8 to 9 months, but was never given an evalua-
tion before June 6, 1989, although he requested an evalua-
tion. Employee Jeffrey Tackett, who began working for the
Company in March, testified that when hired he was not told
anything about an evaluation or raises. Tackett was not eval-
uated until mid-June. Employee James Powell, who also
began in March, testified that he was told there would be a
2-week probationary period followed by an evaluation. Pow-
ell was also not evaluated until mid-June. The Company did
not present any employee witnesses concerning evaluations
and wage increases. Yeazell and Heaton testified in sum that
the Company kept no records of evaluations, although the
Company’s payroll records would reflect wage increases. If
their testimony was true, then the payroll records would
demonstrate a pattern of semiannual raises at regular inter-
vals. The Company did not produce its payroll records at the
hearing. The inference is warranted, and I so find, that if the
Company had produced the payroll records, the records
would not support the Company’s position. If, as claimed by
Yeazell and Heaton, the employees were regularly evaluated
each June, then there would have been no reason to change
the Company’s policy in order to conduct evaluations in June
1989, whether to meet employee grievances or for any other
reason. As has been and will be discussed, Yeazell’s testi-
mony was demonstrably lacking in credibility on several key
matters. I credit the employees’ testimony, in particular that
of Parks. I find that prior to June 1989, the Company did
not even follow a practice of semiannual evaluations as set
forth in its manual, and that its failure to do so was a factor
which led to the Union’s organizational campaign.
On June 6 the Company summoned the unit employees to
a meeting on company premises on their working time, for
which the employees were paid. President Yeazell conducted
the meeting. At the outset the Company distributed two doc-
uments. One was a new policy manual. This manual fol-
lowed the format of the old manual, but contained several
significant changes. The new manual provided for employee
‘‘performance conferences’’ every 3 months, and that any
raises would occur as a result of these conferences. The new
manual also provided for paid annual vacations of 1 week
after the first year of employment. The new manual also stat-
ed that the Company would provide employee handtools (37
listed items at a total cost of $447.35). The second document
was a conference schedule for the employees, with individual
conferences scheduled during the period June 6 through July
7. The first conference was scheduled for Parks that same
day (June 6). Yeazell proceeded to describe the manual
changes which the Company was implementing, specifically,
3-month evaluation for pay raises, paid vacations, and
handtools provided by the Company. The employees had not
previously been informed of these changes, or that the Com-
pany would issue a new manual. Parks testified without con-
tradiction that prior to June 6 Yeazell told him that the em-
ployees didn’t work hard enough for a vacation. Employees
Park, Tackett, and Powell testified in sum that at the June
6 meeting Yeazell said he heard that the Union was talking
to some of the employees, that he didn’t think they needed
a union, and that the Company and the Union could work
out their problems on a one-to-one basis. Parks, but no other
witness, testified that Yeazell also said that the Company
was working on a retirement program. For reasons which
will be discussed, I find that this subject first came up at a
later meeting.
President Yeazell in his testimony, admitted that at the
June 6 meeting he told the employees that he didn’t think
the Company needed a union. Yeazell testified that issuance
of the new manual, and announcement and implementation
of the changes in the manual, was unrelated to the union or-
ganizational campaign. If so, then it is difficult to see why
Yeazell would couple announcement of the changes with a
statement that the Company didn’t need a union. Neverthe-
less, Yeazell testified that the Company revised its manual,
including improved benefits, and also decided to finalize a
pension program, because of (1) the loss of two valued em-
ployees, Jeff Yeazell (President Yeazell’s brother), and Steve
Standley, and (2) feedback which Co-owner Heaton received
746 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
from employees on the job. In support of this assertion, the
Company presented further testimony by President Yeazell,
Co-owners Heaton and Jones, and payroll clerk Deborah Col-
lins. Heaton testified in sum as follows: In late April and
continuing until May 12 he was working on a job in Geor-
gia. Parks was also working on the job. Parks made many
complaints, ‘‘mostly about personalities.’’ He wanted a raise,
and communication more often than every 6 months. He did
not complain about vacations, and he did not compare union
wages and benefits with those at the Company. Heaton said
he would see what he could do. After leaving the job Heaton
went on vacation, and returned to the shop on Monday, May
22. Upon his return he met with his co-owners, and they dis-
cussed improving communications. Heaton suggested quar-
terly evaluations. They decided upon quarterly evaluations,
pay levels comparable to those of two other employers in the
area (Wittenburg and Honda) and paid vacations, and also to
distribute a new manual. Standley and Jeff Yeazell left the
Company on the Memorial Day weekend (May 27–29). The
Company prepared the new manual during the week fol-
lowing Memorial Day. Heaton did not testify concerning any
feedback from employees other than his Georgia conversa-
tions with Parks. Co-owner Jones testified that in mid-May
the co-owners discussed policy manual changes, including
paid vacation and a pension or profit-sharing plan, the dis-
cussions took place over several weeks, and they began dis-
cussing a pension plan in 1988. Jones testified that he did
not know when they decided upon the policy manual
changes. President Yeazell testified in sum as follows: On
May 22 the co-owners met and decided upon the new policy
manual. On or about May 23 they met with the secretaries
present, dictated the wording of the new manual, and di-
rected the secretaries to prepare the new manual. They also
prepared the conference schedule. They changed ‘‘evalua-
tion’’ to ‘‘conference’’ because they wanted to use these ses-
sions as a means of obtaining employee feedback. Yeazell
did not regard company provision of handtools as an em-
ployee benefit. The Company made this change because of
confusion over whether tools belonged to the Company or
the employee. According to Yeazell, on the day that Jeff
Yeazell and Standley left, which was on or about May 21,
there was an argument over ownership of their handtools.
Yeazell admitted that the Company could have resolved such
problems by requiring the employees to furnish and replace
all of their handtools. Payroll clerk Collins testified in sum
as follows: On a Wednesday prior to Tuesday, May 30,
which was also before Jeff Yeazell and Standley left, the co-
owners and the office staff had a meeting. They discussed
changes in the policy manual. The secretaries suggested paid
vacations because employees were leaving to get better bene-
fits at other jobs. The co-owners agreed upon paid vacations
effective as of July 1. President Yeazell said he was going
to work on a pension plan for the employees. The secretaries
proceeded to prepare a revised manual, which was completed
within a few days.
In light of the testimony of Heaton, Jones, and Collins, the
Company’s explanation for the June 6 meeting and the re-
vised policy manual falls flat on its face. In light of Jones’
testimony, it is evident that he and President Yeazell began
discussing policy changes in mid-May, even before Heaton
returned to Springfield. At that time the co-owners did not
know that Jeff Yeazell and Standley would be leaving, but
they did know that the employees were attending union
meetings. The testimony of Heaton and Collins indicates that
Jeff Yeazell and Standley left the Company on the weekend
of May 27 to 29. If as suggested by President Yeazell, they
left on or about May 21, then the Company’s payroll records
would corroborate his testimony. However, the Company did
not produce such records. The inference is warranted, and I
so find, that Yeazell sought in his testimony to suggest the
earlier date in order to bolster his explanation for the events
of June 6. As for the alleged feedback from employees
through Heaton, the only such feedback, as indicated by
Heaton’s testimony, consisted of Parks’ personal complaints.
According to Heaton, Parks did not complain about vaca-
tions, provision of handtools, or the need for a pension plan.
If the Company wanted to meet Parks’ complaints, then it
could have done so by holding an evaluation and giving him
a raise under the existing manual procedure. If the Company
was concerned about loss of employees, the Company could
and probably would have informed the employees as soon as
possible that it was considering improvement of employee
wages and benefits. There was no need to wait until a new
manual was completed. (As will be discussed, after June 6
the Company told the employees that it was considering, and
later that it intended, to implement a pension plan, although
the Company still had not done so at the time of the present
hearing.) Even after completing the revised manual, the
Company waited until Tuesday, June 6, i.e., after the Union
requested recognition, to announce the manual.
I find that upon learning of the union activity, the co-own-
ers discussed ways of discouraging employee support for the
Union. They met with the office clericals in order to learn
causes of employee discontent. The clericals made sugges-
tions, and the Company incorporated improvements in a
standby revised manual. However, the Company did not in-
tend to implement the manual unless absolutely necessary.
The Company had long resisted paying higher wages or
granting improved benefits. As indicated, the Company did
not even consistently follow its policy of semiannual evalua-
tion for wage increases, and told Parks that the employees
did not deserve a paid vacation. Therefore the Company did
not issue the revised manual until it learned that a majority
of the unit employees signed authorization cards. At this
point President Yeazell announced the changes, including
quarterly reviews for wage increases, paid vacations and
company-furnished handtools. These were substantial benefits
to the employees. The quarterly reviews afforded the em-
ployees twice as many opportunities as before to qualify for
wage increases. Lack of paid vacations was, as the Company
learned from its clericals, a source of employee discontent.
Company-furnished handtools were a substantial benefit, par-
ticularly to new employees. Under the guise of ‘‘performance
conferences,’’ the Company used the quarterly reviews as a
further means of sounding out the employees and applying
additional pressure to discourage union support. I find that
the Company announced and implemented quarterly wage re-
views, paid vacations and company-furnished handtools in
order to discourage employee support for the Union, and
thereby violated Section 8(a)(1) of the Act. NLRB v. Ex-
change Parts Co., 375 U.S. 405 (1964).
Employees Parks, Tackett, and Powell testified concerning
their ‘‘performance conferences.’’ All conferences were
scheduled at or about noon. Yeazell and a co-owner would
747TRIEC, INC.
take the employee out to lunch at a restaurant. The three
named employees were interviewed by Yeazell and Jones.
They met with Parks on June 6, following the employee
meeting. They told Parks he was doing a good job, promoted
him to crew leader, and gave him a $1-per-hour pay raise.
Parks testified that Jones said they know he was involved
with the Union, and asked if he had signed a card. He an-
swered that he did. Yeazell testified that he did not recall the
Union coming up in the conversation. I credit Parks. Tackett
was interviewed on June 12. Yeazell and Jones told him he
had not worked long enough to get a raise, but would prob-
ably get an evaluation in 3 months. Powell was interviewed
on June 14. Yeazell told Powell he was doing a good job,
and would get a raise in pay effective July 1. Powell re-
ceived the raise, although he did not qualify for one. The
Company hired Powell under an apprenticeship program, and
he had not worked the requisite number of hours for a pay
increase. I find that the Company implemented its quarterly
wage review policy, including paid lunches, and gave wage
increases to Parks and Powell in order to discourage em-
ployee support for the Union, and thereby violated Section
8(a)(1). These actions were a continuation of the unlawful
course of conduct which commenced with the June 6 meet-
ing, when the Company announced the quarterly reviews. I
further find that the Company coercively interrogated Parks.
Under different circumstances, Jones’ question might have
been lawful. As of June 6, the Company had received the
Union’s request for recognition, based on asserted majority
support, which identified Parks as one of the card signers.
Therefore the Company was asking Parks for information
which the Union (Parks’ designated bargaining representa-
tive) had already furnished to the Company. The Company
could, with proper safeguards, attempt to verify the Union’s
claim of majority status. However, this was not such a case.
First, President Yeazell testified (falsely) that he did not
know of the Union’s letter until he returned to his office on
the afternoon of June 6. Therefore it is evident that the Com-
pany does not claim that it asked Parks whether he signed
a union card, in order to verify the Union’s claim. Second,
the Company did not give Parks any assurance against re-
prisal. Rather, the Company questioned Parks in the context
of unfair labor practices, including a pay raise and a paid
lunch. In these circumstances, Jones’ question constituted a
form of pressure upon Parks to use the performance con-
ference as an occasion to abandon his support for the Union.
Therefore the Company violated Section 8(a)(1) by interro-
gating Parks as to whether he signed a union card. See
Struksnes Construction Co., 165 NLRB 1062, 1063 (1967).
On June 12 the Company conducted another captive audi-
ence meeting for employees. All three co-owners were
present. President Yeazell did most of the talking. Employees
Parks, Tackett, and Powell testified in sum as follows:
Yeazell asked the employees what it would take to keep the
Union out. Parks spoke up. He said the employees wanted
higher wages, a good health and welfare and retirement pro-
gram, and a union apprentice program. Tackett also said that
he wanted a retirement program. Yeazell said that the Com-
pany was working on some things, including a retirement
plan, and would conduct another meeting. Employee James
Gangwer, the Company’s residential electrician, who had
signed a union card, asked what would happen to the resi-
dential end of the Company’s business if the Company went
union. Co-owner Heaton answered that the Company would
probably phase out the residential end, because of the in-
creased expense in being union. Heaton also said that the
Company would probably lose customers because some cus-
tomers liked dealing with the same electricians. Yeazell told
the employees to leave their tools at home, because the Com-
pany would be furnishing all handtools. Yeazell also said the
Union might strike, in which event the Company had the
right to hire more employees. Co-owner Heaton testified in
sum as follows: He spoke at the meeting. He said that if the
Company were a union shop, the atmosphere would probably
change, and the Company would have to run a ‘‘much tight-
er organization.’’ He also said that if he had to increase
prices, some customers would ‘‘typically’’ be lost. Heaton
could not recall what else he said. Heaton did not testify as
to what Yeazell said at the meeting. Co-owner Jones did not
testify concerning the June 12 meeting. As Heaton and
Yeazell were the only company witnesses to testify con-
cerning that meeting, Yeazell’s account of the meeting was
uncorroborated by any other company witness. Yeazell testi-
fied in sum as follows: He said the Company felt they didn’t
need a union. He said the employees could come to the
Company with their grievances on a one-to-one basis. The
purpose of the meeting was to inform the employees of the
Company’s position on unionization. He did not promise
benefits, and he did ask what it would take to keep the
Union out. He could not recall what else he said. Heaton said
that if the Company were unionized, it would have to raise
rates for electrical work, and when this happened, ‘‘you lose
customers.’’
As indicated, Yeazell’s version of his remarks were
uncorroborated by any other witnesses. Both Yeazell and
Heaton professed to be unable to recall much of what was
said. Their testimony, even considered together, patently re-
flected an incomplete account of the meeting. If Yeazell’s
version of what he said was correct, then the June 12 meet-
ing was redundant and unnecessary. By his own admission,
Yeazell said substantially the same thing on June 6, namely,
that the Company didn’t need a union. I credit the testimony
of the employees. I find that Yeazell impliedly promised the
employees increased benefits and improved terms and condi-
tions of employment, all in order to discourage support for
the Union, and thereby violated Section 8(a)(1). The applica-
ble standard, as set forth in Uarco, Inc., 216 NLRB 1 (1974),
is as follows:
[T]he solicitation of grievances at preelection meetings
carries with it an inference that an employer is implic-
itly promising to correct those inequities it discovers as
a result of its inquiries. Thus, the Board has found un-
lawful interference with employee rights by an employ-
er’s solicitation of grievances during an organizational
campaign although the employer merely stated it would
look into or review the problem but did not commit
itself to specific corrective action; the Board reasoned
that employees would tend to anticipate improved con-
ditions of employment which might make union rep-
resentation unnecessary. However, it is not the solicita-
tion of grievances itself that is coercive and violative of
Section 8(a)(1), but the promise to correct grievances or
a concurrent interrogation or polling about union sym-
748 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
3 The employees’ testimony differed as to when Yeazell discussed a pension
plan. As indicated, Parks testified that Yeazell said on June 12 that the Com-
pany was working on a pension plan. Powell testified that Yeazell said this
on July 21. Tackett testified that he first heard about a company pension plan
at a meeting on August 9. Yeazell admitted in his testimony that he spoke
about a pension plan at the August 9 meeting. As Parks quit his job at the
end of June, he must have heard about the plan in June. I find that Yeazell
first mentioned the matter at the June 12 meeting. When Yeazell asked what
it would take to keep out the Union, and employees complained about the lack
of a pension plan, Yeazell responded that the Company was working on a
plan. As will be discussed, at the August 9 meeting Yeazell again promised
such a plan.
pathies that is unlawful; the solicitation of grievances
merely raises an inference that the employer is making
such a promise, which inference is rebuttable by the
employer.
See also Ace Hardware Corp., 271 NLRB 1174 (1984). At
the June 12 meeting Yeazell solicited employee grievances,
but made no effort to rebut the inference that he was prom-
ising to remedy such grievances. Quite the contrary, Yeazell
bluntly stated the purpose of the meeting by asking the em-
ployees what it would take to keep out the Union. After
hearing from the employees Yeazell suggested that the Com-
pany was working on some things, thereby further intimating
that there would be redress of grievances. (I shall defer to
a later point in this decision, the specific matter of a retire-
ment program.) By telling the employees to leave their per-
sonal tools at home, Yeazell implemented the Company’s
June 6 announcement that it would furnish all handtools, and
thereby further violated Section 8(a)(1). I further find that the
Company, by Heaton, threatened the employees with loss of
jobs if they chose the Union as their representative. Heaton’s
assertion that unionization meant probable loss of the resi-
dential work, was not ‘‘carefully phrased on the basis of ob-
jective fact.’’ NLRB v. Gissel Packing Co., supra, 395 U.S
at 618. Heaton equated loss of residential work, per se, with
unionization, without even mentioning that wages, benefits,
and other terms and conditions of employment affecting the
cost of operations would be subject to bargaining between
the Company and the Union. Moreover, Yeazell contradicted
the premise for Heaton’s assertion. Yeazell testified that at
a meeting on July 21, he told the employees that the Com-
pany had a history of rising wages, but the Union had a his-
tory of flat or decreasing wages. In sum, the Company was
telling the employees on one hand that unionization meant
lower wages, and on the other, that the increased cost of
unionization meant fewer jobs. Heaton’s statements con-
stituted an unlawful threat. NLRB v. Gissel Packing Co.,
supra.
On July 7 the Union filed its election petition, and on July
21 the Company conducted another captive audience meeting
of employees. By this time Parks had quit the Company. Em-
ployee Powell testified in sum as follows: Yeazell and
Heaton were present at the meeting. Yeazell told the employ-
ees that he and his co-owners decided not to accept the
Union. He discussed the election procedures. Yeazell said
that the Company did not charge union scale wages, and if
the employees worked for the Union they would be on layoff
for 6 months of the year. Yeazell said that the Company was
working on a pension plan, and as the employees grew with
the Company their wages would also grow. Employee
Tackett testified that Yeazell said the Company decided not
to be a union shop. Yeazell discussed the election, and said
that union electricians worked only 6 months of the year, and
were on layoff for 6 months. Co-owner Heaton testified with
regard to the July 21 meeting, that he could not recall any-
thing beyond what he testified concerning the June 6 and 12
meetings. Again, Yeazell’s version of the meeting was
uncorroborated by any other company witness. Yeazell testi-
fied in sum as follows: At the July 21 meeting he said that
the Company ‘‘desired’’ not to be a union shop. He did not
say ‘‘decided.’’ He did not forecast the future at that meet-
ing. Yeazell said that the Company employed people year
round, but that electricians often did not work year round. He
said that the Company had a history or rising wages, but that
union wages remained relatively flat or decreased. He did not
mention a pension plan at this meeting.
I credit the testimony of employees Powell and Tackett to
the effect that Yeazell said (1) the Company decided not to
be union, and (2) union electricians worked only 6 months
out of the year. As indicated, Yeazell’s version was
uncorroborated and he demonstrated lack of credibility on
important matters in this proceeding. With regard to (2)
above, Yeazell did not talk in terms of company practices,
i.e., he did not simply argue that the Company had a history
of providing steady employment. Rather Yeazell equated
unionization, per se, with lack of regular employment.
Yeazell thereby violated Section 8(a)(1) by threatening the
employees with loss of employment if they selected the
Union as their bargaining representative. I also credit Pow-
ell’s uncontradicted testimony that Yeazell said that employ-
ees’ wages would grow as they grew with the Company.
Standing in isolation, such a statement might seem too vague
as to constitute a promise of benefits if the employees re-
jected the Union. However, when considered in the context
of the Company’s new quarterly wage review system, which
resulted in immediate raises for some employees, Yeazell’s
statement could reasonably be interpreted by the employees
as a promise of further wage increases if the employees re-
jected unionization. The Company thereby further violated
Section 8(a)(1). I am not persuaded that Yeazell mentioned
retirement benefits at this meeting.3
Employee Powell testified in sum as follows: On July 27
he was working at the Northridge Elementary School job. He
saw Co-owner Heaton. Heaton said, ‘‘I know you’re one of
the most pro-union guys we have at the shop.’’ Powell did
not respond. (Powell testified that he was not openly
prounion, and was afraid to answer.) Heaton asked what
were the advantages and disadvantages of a union. Powell
answered that the advantages were wages, health and welfare
and pension, and the disadvantages were travel. On August
1 Heaton again approached Powell at work. He showed Pow-
ell an NLRB decision which purportedly held that an em-
ployer did not have to sign a contract. Heaton said that he
wanted to give Powell a wage increase, but could not be-
cause wages were frozen until after the election. Heaton tes-
tified in sum as follows: He had a conversation with Powell
at the Northridge job. They discussed ‘‘common goals.’’
Powell said he wanted to be a journeyman electrician.
Heaton asked Powell whether he was in the Union, and what
he would gain from the Union. Powell answered that union
training was better than ABC (the apprentice program used
by the Company). Heaton testified that he could not recall
anything else about the conversation. Heaton did not deny
749TRIEC, INC.
4 Yeazell’s reference to pay raise evaluations in December 1988 is at best
questionable. As found, the Company did not adhere to its asserted policy of
conducting semiannual evaluations. Yeazell testified that he revised the manual
to change ‘‘evaluation’’ to ‘‘conference’’ in order to use these sessions to ob-
tain employee feedback. If so, then in December 1988 the Company would
not have used the evaluations in order to ask employees for their opinions
about a pension plan. If the Company did so, then Yeazell’s explanation for
the manual change would be false. Either way, Yeazell’s credibility is im-
pugned.
Powell’s testimony concerning Heaton’s reference to a pay
raise. I credit Powell. I find that Heaton violated Section
8(a)(1) by telling Powell that he would not receive a pay
raise because wages were frozen until after the election. It
is settled law ‘‘that during the preelection period an em-
ployer must grant or withhold benefits ‘as he would if a
union were not in the picture.’’’ Gerkin Co., 279 NLRB
1012 (1986). By placing the onus on the Union for with-
holding benefits, the Company unlawfully threatened Powell.
Gerkin, at fn. 5. I further find that Heaton violated Section
8(a)(1) by coercively interrogating Powell concerning his at-
titude toward the Union. Heaton had no legitimate reason for
questioning Powell, and he gave no assurance against re-
prisal. Rather Heaton questioned Powell in the context of un-
lawful threats and promises of benefit. The questioning was
coercive and unlawful.
Employee Tackett testified in sum as follows: On July 28,
at the Ohio Stamping and Machine job, Co-owner Jones
asked him what were the advantages of being a union con-
tractor. Tackett answered that it would open doors for the
Company. Jones asked how Tackett felt about the Union.
Tackett answered that he wasn’t sure. (Tackett was not open-
ly prounion.) They did not discuss the apprenticeship pro-
gram. Tackett planned to take the journeyman test after the
union matter was settled. Jones testified in sum as follows:
He visited jobsites during the election campaign and talked
individually to employees, sometimes more than once. He
had a conversation with Tackett at the Ohio Stamping job.
He approached Tackett, saying he was waiting for an oppor-
tunity to talk. Tackett asked whether it was about the Union.
Jones said it was, and asked Tackett what the Union meant
for him. Tackett answered that he would have to take a jour-
neyman’s test. Jones asked about the pay scale. Tackett an-
swered that if he passed he would get more. Tackett said he
was upset because of a rumor that he was a company plant,
and had mixed emotions about the whole union matter. Jones
answered that he felt the same way. I credit Jones. In con-
trast to his other testimony, Jones gave a detailed version of
this conversation. Nevertheless, I find on the basis of Jones’
credited testimony, that he violated Section 8(a)(1) by coer-
cively interrogating Tackett concerning what the Union
meant to him. As with similar questioning by the co-owners,
Jones had no legitimate reason to question Tackett, he gave
no assurances against reprisal, and the questioning occurred
in the context of unlawful threats and promises and grants
of benefits.
On August 9, the day before the election, the Company
conducted another captive audience meeting. The three own-
ers were present, and all spoke. Yeazell conducted the meet-
ing. Employee Tackett testified that Yeazell said wages and
benefits would equal or surpass those of the Union, and the
Company had been working on a pension plan since the be-
ginning of the year. Tackett testified this was the first he
heard about a company pension plan. Employee Powell simi-
larly testified that Yeazell said the Company would have bet-
ter wages and benefits than the Union. Yeazell asked the em-
ployees to vote no. Powell did not testify concerning any ref-
erence to a pension plan at this meeting. Co-owners Heaton
and Jones testified, respectively, concerning what each of
them said at the August 9 meeting, but not as to what Presi-
dent Yeazell said. Again, Yeazell’s version of his remarks
were uncorroborated by any other company witness. Yeazell
testified in sum as follows: He again referred to the Com-
pany’s history of rising wages, as contrasted with the
Union’s history of flat or decreasing wages. He did not make
any promise concerning wages. Yeazell said that the Com-
pany had been investigating pension plans, and decided to
implement a pension plan. This was the first time Yeazell
told the employees about the plan, and he did not tell them
when the plan would be implemented.
I credit the employees’ testimony, in sum, that Yeazell
said wages and benefits would equal or surpass those of the
Union. For the reasons discussed in connection with the June
6 meeting, I find that the Company promised its employees
better wages and benefits in order to discourage support for
the Union, and thereby violated Section 8(a)(1). As indicated,
there is no dispute that Yeazell announced a pension plan at
the August 9 meeting. However, there is dispute as to the or-
igin and motivation of this announcement. President Yeazell
testified in sum as follows: In December 1988 the Company
conducted pay raise evaluations. At these evaluations the
Company asked the employees whether they were interested
in a pension plan. The co-owners then met, and concluded
that a pension plan was needed to keep career employees.
They agreed that Yeazell would investigate all types of
plans, and decide which insurer and which plan was best for
the Company. Yeazell contacted one insurer and looked at
one plan. Thereafter Yeazell did absolutely nothing about the
matter until he met with his co-owners on May 22, when
they decided upon the revised policy manual. At that time
they decided to implement a pension plan. They did so for
the same reasons they decided upon other changes, namely,
because of the loss of two employees and the feedback
which Heaton got from employees on the job. Nevertheless
Yeazell did nothing more about a pension plan until July. In
July and August 1989 and February 1990, respectively,
Yeazell contacted three more insurers and received a plan
from each. As of the present hearing (March 27, 1990), the
Company was considering the four submitted plans and an-
ticipated deciding upon implementation within the next 30
days. Co-owners Heaton and Jones corroborated Yeazell’s
narrative, although in less detail, indicating that they left to
Yeazell the matter of investigating and deciding upon a pen-
sion plan.
Yeazell’s explanation was patently false. Assuming, as tes-
tified by Yeazell, that the Company first considered a pen-
sion plan in December 1988, it is evident from Yeazell’s
own narrative that after a cursory investigation, the Company
decided against proceeding with such a plan.4 Yeazell
checked with one insurer, and for the next 6 months did
nothing more about the matter. As found, prior to learning
of the union campaign, Yeazell said that the employees did
not work hard enough to deserve a paid vacation. It is un-
likely that Yeazell would have been more favorably disposed
to give them a pension plan. Yeazell’s narrative was hope-
lessly contradictory. Yeazell variously testified that the Com-
750 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
pany (1) decided in December 1988 to implement a pension
plan, (2) decided on May 22 to implement a pension plan,
and (3) anticipated deciding upon implementation of a pen-
sion plan in or about April 1990. I find that the Company
first seriously considered a pension plan on May 22, when
the co-owners decided to draft a revised policy manual. They
did so for the same reason, namely, as as standby plan for
combatting the Union in the event the organizational cam-
paign was successful. When the Union requested recognition,
demonstrating that the campaign proved successful, the Com-
pany swiftly moved to implement quarterly wage reviews, in-
cluding wage increases, paid vacations, and company-fur-
nished handtools. The Company was not yet ready or willing
to implement a pension plan. However, upon questioning the
employees as to what it would take to keep out the Union,
the Company learned that the employees regarded a pension
plan as an important matter. Therefore Yeazell impliedly
promised the employees that such a plan would be forth-
coming, by telling them that the Company was working on
such a plan. Yeazell did so at the meetings on June 6 and
August 9. The Company thereby violated Section 8(a)(1) by
promising that the Company would provide a pension plan,
in order to discourage employee support for the Union.
B. Concluding Findings with Respect to the Union’s
Objection to the Election
As indicated, the Union’s objection to the election par-
allels the allegations of the complaint. In determining wheth-
er an election should be set aside, the critical period is that
between the date the petition was filed and the date of the
election (here, the period from July 7 to August 10).
Prepetition improper or unlawful conduct may be considered
insofar as such conduct lends ‘‘meaning and dimension’’ to
the postpetition conduct. Blue Bird Body Co., 251 NLRB
1481 fn. 2 (1980), enfd. 677 F.2d 112 (5th Cir. 1982). Here,
during the critical period, the Company conducted meetings
of employees (on July 21 and August 9) at which it threat-
ened the employees with loss of employment if they selected
the Union as their bargaining representative, and promised
the employees wage increases, a pension plan, and wages
and benefits equal to or better than those of the Union, all
in order to discourage employee support for the Union. Dur-
ing the critical period the Company also coercively interro-
gated employees Powell and Tackett, and threatened that
wages would be frozen until after the election. These unfair
labor practices constituted conduct which interfered with the
exercise of the employees’ free choice in the election. See,
e.g., Gerkin Co., supra. Therefore I am sustaining the
Union’s objection to the election, and recommending that the
election be set aside.
C. The Alleged Violation of Section 8(a)(5) and the
Propriety of a Bargaining Order
The next question presented is whether by reason of the
Company’s unlawful conduct, I should find that the Com-
pany unlawfully failed or refused to recognize and bargain
with the Union, and therefore, that a remedial bargaining
order is warranted. The applicable standard is set forth in the
landmark case of NLRB v. Gissel Packing Co., 395 U.S 575,
613–615 (1969). As the Gissel rationale has been the subject
of much discussion and citation, some of it erroneous, I find
it useful to quote at length from that decision. In Gissel the
Supreme Court held as follows:
Before considering whether the bargaining orders
were appropriately entered in these cases, we should
summarize the factors that go into a determination. De-
spite our reversal of the Fourth Circuit below in Nos.
573 and 691 on all major issues, the actual area of dis-
agreement between our position here and that of the
Fourth Circuit is not large as a practical matter. While
refusing to validate the general use of a bargaining
order in reliance on cards, the Fourth Circuit neverthe-
less left open the possibility of imposing a bargaining
order, without need of inquiry into majority status on
the basis of cards or otherwise, in ‘‘exceptional’’ cases
marked by ‘‘outrageous’’ and ‘‘pervasive’’ unfair labor
practices. Such an order would be an appropriate rem-
edy for those practices, the court noted, if they are of
‘‘such a nature that their coercive effects cannot be
eliminated by the application of traditional remedies.
with the result that a fair and reliable election cannot
be had.’’ The Board itself, we should add, has long had
a similar policy of issuing a bargaining order, in the ab-
sence of a § 8(a)(5) violation or even a bargaining de-
mand, when that was the only available, effective rem-
edy for substantial unfair labor practices. . . .
The only effect of our holding here is to approve the
Board’s use of the bargaining order in less extraor-
dinary cases marked by less pervasive practices which
nonetheless still have the tendency to undermine major-
ity strength and impede the election processes. The
Board’s authority to issue such an order on a lesser
showing of employer misconduct 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, effectuating ascertainable employee free
choice becomes as important a goal as deterring em-
ployer misbehavior. In fashioning a remedy in the exer-
cise of its discretion, then, the Board can properly take
into consideration the extensiveness of an employer’s
unfair labor practices in terms of their past effect on
election conditions and the likelihood of their recur-
rence in the future. If the Board finds that the possi-
bility of erasing the effects of past practices and of en-
suring a fair election (or a fair rerun) by the use of tra-
ditional remedies, though present, is slight and that em-
ployee sentiment once expressed through cards would,
on balance, be better protected by a bargaining order,
then such an order should issue.
We emphasize that under the Board’s remedial
power there is still a third category of minor or less
extensive unfair labor practices, which, because of their
minimal impact on the election machinery, will not sus-
tain a bargaining order. There is, the Board says, no
per se rule that the commission of any unfair labor
practice will automatically result in a § 8(a)(5) violation
and the issuance of an order to bargain. [Citations omit-
ted; emphasis added.]
In sum, the Supreme Court identified two categories of cases
in which a bargaining order might be appropriate, and a third
in which such a remedial order would not be appropriate. As
751TRIEC, INC.
5 The cases relied upon by the Company (br. 8) did not involve situations
comparable to that in the present case. In Uarco, Inc., 286 NLRB 55, 59
(1987), and Blue Grass Industries, 287 NLRB 274, 275–276 (1987), the Board
reversed key findings of violations of Sec. 8(a)(1), thereby undercutting the
basis for the administrative law judge’s recommendation that a bargaining
order should issue. In Schwartz Mfg. Co., 289 NLRB 874, 893–894 (1988),
the administrative law judge found that the principal violations of Sec. 8(a)(1)
were committed by one first line supervisor near the outset of the union cam-
paign, and that the principal violations of Sec. 8(a)(3) were substantially rem-
edied by the employer. Therefore he did not recommend a bargaining order.
In the present case the violations were committed by top-level management,
and persisted throughout the campaign and beyond.
indicated, in determining whether an election should be set
aside, the Board will consider employer conduct from the
date the petition was filed until the date of the election.
However, once the Board has determined that the election
should be set aside, the Board will consider the employer’s
overall course of conduct, including prepetition conduct, in
determining whether a bargaining order should issue. Trading
Port, Inc., 219 NLRB 298, 301 (1975).
Upon consideration of the evidence, I find that this case
falls at least into the second category of cases under Gissel,
and meets the Gissel standards for issuance of a bargaining
order. I find specifically that: (1) A majority of employees
in the appropriate unit validly signed union authorization
cards, and on the basis of that majority status the Union re-
quested bargaining; (2) Upon receiving the Union’s request
the Company embarked upon an unlawful course of conduct
which destroyed the Union’s majority status; and (3) a fair
rerun election cannot be held in the circumstances of this
case. The Company extended, in full sweep, the ‘‘fist inside
the velvet glove.’’ NLRB v. Exchange Parts, supra, 375 U.S.
at 409. Upon learning that the Union was engaged in an or-
ganizational campaign which appeared on the verge of suc-
cess, the Company’s co-owners, in consultation with their
clerical personnel, carefully considered what grievances
brought about that campaign. The Company devised a plan
to destroy the union campaign through promises and grants
of benefits directed at the principal areas of employee dis-
satisfaction, i.e., to steal the Union’s thunder. Upon learning
that a majority signed union cards, the Company, before
even responding to the Union’s request for recognition, im-
mediately swung into action. The Company summoned the
unit employees to a meeting, informing them of quarterly
pay increase reviews (which would begin immediately), paid
vacations, and company-furnished handtools. The Company
did not rest at this point. The Company again summoned the
employees to a meeting, bluntly asking them what else it
would take to keep out the Union. The Company learned that
the employees wanted a pension plan, a benefit which the
Company previously considered and rejected. The Company
was neither ready nor willing to implement a pension plan
at this time. However, in order to assure the Union’s defeat,
the Company dangled before the employees the prospect of
a pension plan, by repeatedly telling them that it was work-
ing on such a plan, thereby creating the impression that a
pension plan was imminent. The major benefits promised or
implemented by the Company, specifically, quarterly pay in-
crease reviews and a pension plan, were far reaching in na-
ture. By promising and implementing quarterly reviews, the
Company held out the promise of frequent pay increases
(whether or not true, and of course, subject to the Company’s
whims, particularly if the Union sought to renew its organi-
zational efforts). The Board has on more than one occasion
pointed out that unlawfully granted wage increases or bene-
fits ‘‘are particularly lasting in their effect on employees and
difficult to remedy by traditional means . . . not only be-
cause of their significance to the employees, but also because
the Board’s traditional remedies do not require the Respond-
ent to withdraw the benefits from the employees.’’ Camvac
International, 288 NLRB 816, 820 (1988); Color Tech
Corp., 286 NLRB 476, 477 (1987). See also Red Barn Sys-
tem, 224 NLRB 1586 (1976), enfd. 574 F.2d 315 (6th Cir.
1978); Michigan Products, 236 NLRB 1143, 1147 (1978).
Lest the employees mistake the import of its message, the
Company coupled its promises and grants of benefit with
threats of dire consequences if the employees were so fool-
hardy as to choose the Union as their representative. The
Company did not go so far as to threaten the ultimate pen-
alty, i.e., plant closure. However, the Company went only
slightly short of such conduct by threatening the employees
with loss of their job security. The Company threatened its
employees that in the event of unionization, they would work
only 6 months out of the year, and that residential work
would probably be phased out, with consequent loss of em-
ployment. In view of the employees’ ‘‘natural interest in
continued employment,’’ such threats are particularly serious
and long lasting in their effect. Cf. Indiana Cal-Pro v. NLRB,
863 F.2d 1292, 1301 (6th Cir. 1988).
I further find that neither a conventional Board cease-and-
desist order, the passage of time, nor employee turnover, nor
a combination of these factors, would likely result in condi-
tions which would allow uncoerced employee choice in a
free and fair election. The Company has shown no disposi-
tion to alter its unlawful course of conduct. As of the present
hearing, the Company was still suggesting to its employees
that it was about to implement a pension plan, i.e., a promise
which was devised as a means of discouraging support for
the Union. As discussed, the Company’s unlawful conduct
was far reaching in nature. The evidence indicates that the
Company tends to attract employees who are interested in
long-term employment. Thus the employees demonstrated
particular concern about such matters as job security, peri-
odic wage reviews, and a pension plan. It is also significant
that this case involves a relatively small unit of employees,
and that the unfair labor practices were committed by top-
level management. Indiana Cal-Pro v. NLRB, supra.5 I find
that the Company violated Section 8(a)(5) and (1) of the Act
by failing to recognize and bargain with the Union on and
after June 6, 1989, when it commenced its unlawful course
of conduct, and that a bargaining order is warranted. Trading
Port, supra, 219 NLRB at 301.
CONCLUSIONS OF LAW
1. The 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 meaning
of Section 2(5) of the Act.
3. All full-time and regular part-time employees engaged
in electrical work who are employed by Respondent out of
its 2858 Collier Road, Springfield, Ohio location but exclud-
ing all office clerical employees, professional employees,
guards, and supervisors as defined in the National Labor Re-
lations Act, constitute a unit appropriate for the purposes of
752 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
6 If no exceptions are filed as provided by Sec. 102.46 of the Board’s Rules
and Regulations, the findings, conclusions, and recommended Order shall, as
provided in Sec. 102.48 of the Rules, be adopted by the Board and all objec-
tions to them shall be deemed waived for all purposes.
7 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 National Labor Rela-
tions Board’’ shall read ‘‘Posted Pursuant to a Judgment of the United States
Court of Appeals Enforcing an Order of the National Labor Relations Board.’’
collective bargaining within the meaning of Section 9(b) of
the Act.
4. By promising and implementing wage increases, bene-
fits, and other changes in terms and conditions of employ-
ment in order to discourage employee support for the Union,
by threatening employees with loss of employment and loss
of job security if they chose the Union as their bargaining
representative, by threatening to withhold wage increases be-
cause of a pending Board-conducted election, and by coer-
cively interrogating its employees concerning their union atti-
tude and activities, the Company has interfered with, re-
strained, and coerced its employees in the exercise of rights
guaranteed in Section 7 of the Act, and thereby has violated
and is violating Section 8(a)(1) of the Act.
5. The Union’s objection in Case 9–RC–15522 has been
sustained by the evidence, and the Company thereby inter-
fered with the Board election on August 10, 1989.
6. By the conduct set forth in paragraph 4 above, the
Company interfered with the employees’ freedom of choice
in the election, and precluded any reasonable possibility of
a fair and uncoerced rerun election.
7. Since June 6, 1989, the Union has been and is, the ex-
clusive collective-bargaining representative of the Company’s
employees in the unit described above.
8. By failing and refusing since June 6, 1989, to recognize
and bargain with the Union as the exclusive bargaining rep-
resentative of the employees in the above appropriate unit,
the Company has engaged in and is engaging in unfair labor
practices within the meaning of Section 8(a)(5) and (1) of the
Act.
9. The aforesaid labor practices are unfair labor practices
affecting commerce within the meaning of Section 2(6) and
(7) of the Act.
THE REMEDY
Having found that the Company has committed violations
of Section 8(a)(1) and (5) of the Act, I shall recommend that
it be required to cease and desist therefrom. In view of the
extensive and continuing nature of the Company’s unlawful
conduct, which demonstrates a general disregard for employ-
ees’ fundamental statutory rights, I shall recommend that the
Company be ordered to cease and desist from in any other
manner infringing upon the rights guaranteed its employees
in Section 7 of the Act. As heretofore found, affirmative re-
lief is also appropriate here. I shall direct the Company to
recognize and to bargain collectively, upon request, with the
Union as the exclusive bargaining representative of the em-
ployees in the unit found appropriate herein, and to embody
any understanding reached in a signed agreement. The reme-
dial order will also include the customary provisions relating
to the posting of notices and related matters.
Finally, I shall recommend that the election in Case 9–
RC–15522 aside and, in view of the bargaining order entered
herein, that Case 9–RC–15522 be dismissed.
On these findings of fact and conclusions of law and on
the entire record, I issue the following recommended6
ORDER
The Respondent, Triec, Inc., Springfield, Ohio, its officers,
agents, successors, and assigns, shall
1. Cease and desist from
(a) Threatening its employees with loss of jobs or job se-
curity, loss of work or loss of wage increases if they des-
ignate, select, or support International Brotherhood of Elec-
trical Workers, Local 669, AFL–CIO–CLC, or any other
labor organization as their bargaining representative, or with-
holding of wage increases because of union activity or a
pending Board-conducted election.
(b) Coercively interrogating employees about their union
attitude or activities.
(c) Promising or granting wage increases, benefits, or
other improvements in terms and conditions of employment,
or redressing grievances, in order to discourage support for
the Union; provided, however, that nothing herein shall be
construed as requiring Respondent to vary or abandon any
economic benefit or any term or condition of employment
which it has heretofore established.
(d) Refusing to recognize and bargain collectively with the
Union as the exclusive collective-bargaining representative of
its employees in the above-described appropriate unit.
(e) In other manner interfering with, restraining, or coerc-
ing employees in the exercise of their rights guaranteed in
Section 7 of the National Labor Relations Act.
2. Take the following affirmative action necessary to ef-
fectuate the policies of the Act.
(a) Recognize and, on request, bargain collectively in good
faith with the Union as the exclusive bargaining representa-
tive of the employees in the unit described above, and em-
body in a signed agreement any understanding reached.
(b) Post at its office and place of business in Springfield,
Ohio, copies of the attached notice marked ‘‘Appendix.’’7
Copies of the notice on forms provided by the Regional Di-
rector for Region 9, after being duly signed by Respondent’s
authorized representative, shall be posted by Respondent im-
mediately upon receipt thereof, and be maintained by it for
60 consecutive days thereafter, in conspicuous places, includ-
ing all places where notices to employees are customarily
posted. Reasonable steps shall be taken by Respondent to in-
sure that said notices are not altered, defaced or covered by
any other material.
(c) Notify the Regional Director in writing within 20 days
from the date of this Order what steps Respondent has taken
to comply.
IT IS FURTHER RECOMMENDED that the election in Case 9–
RC–15522 be set aside and that the proceeding be dismissed.
753TRIEC, INC.
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 vio-
lated the National Labor Relations Act and has ordered us
to post and abide by this notice.
WE WILL NOT threaten you with loss of job security, loss
of work or loss of wage increases if you designate, select,
or support International Brotherhood of Electrical Workers,
Local 669, AFL–CIO–CLC, or any other labor organization
as your bargaining representative, or withholding of wage in-
creases because of union activity or a pending Board-con-
ducted election.
WE WILL NOT coercively question you about your union
attitude or activities.
WE WILL NOT promise or grant wage increases, benefits,
or other improvements in terms and conditions of employ-
ment, or remedy grievances, in order to discourage support
for Local 669; provided, however, that nothing herein re-
quires us to vary or abandon any economic benefit or any
term or condition of employment which we have heretofore
established.
WE WILL NOT refuse to recognize or bargain collectively
with Local 669 as the exclusive bargaining representative of
our employees in the following appropriate unit:
All full-time and regular part-time employees engaged
in electrical work who are employed by us out of our
2858 Collier Road, Springfield, Ohio location but ex-
cluding all office clerical employees, professional em-
ployees, guards and supervisors as defined in the Na-
tional Labor Relations Act.
WE WILL NOT in any other manner interfere with, restrain,
or coerce you in the exercise of your right to engage in
union or concerted activities, or to refrain therefrom.
WE WILL recognize and, on request, bargain collectively in
good faith with Local 669 as the exclusive bargaining rep-
resentative of our employees in the unit described above, and
embody in a signed agreement any understanding reached.
TRIEC, INC.