Uarco, Inc.

National Labor Relations Board - Board Decisions

Sep 30, 1987

286 N.L.R.B. 55 (N.L.R.B. 1987)

UARCO, INC. 55
UARCO, Incorporated and International Union,
United Automobile , Aerospace and Agricultural
Implement Workers of America, UAW. Cases
9-CA-15126, 9-CA-15218, 9-CA-15277, and
9-RC-13255
30 September 1987
DECISION, ORDER, AND DIRECTION
OF SECOND ELECTION
BY CHAIRMAN DOTSON AND MEMBERS
JOHANSEN AND STEPHENS
On 25 February 1982 Administrative Law Judge
Thomas R. Wilks issued the attached decision. The
Respondent filed exceptions and a supporting brief,
and the Charging Party and the General Counsel
filed cross-exceptions and briefs in support.
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,2
and conclusions3 only to the extent consistent with
this Decision, Order, and Direction of Second
Election.
The judge found that the Respondent committed
numerous violations of Section 8(a)(1), (2), and (3)
of the Act. The judge determined that the Union
enjoyed majority support at the time it demanded
recognition from the Respondent. He then sus-
tained a number of the Union's objections to con-
duct affecting the election held on 21 March 1980,
' In her cross-exceptions to the judge's decision , counsel for the Gen-
eral Counsel asserts that the judge committed prejudicial error in failing
to grant her motion to strike the testimony of six of the Respondent's
witnesses who prior to testifying read portions of the official transcript
covering testimony which related to conduct of which they were ac-
cused . Noting that he was aware of the witnesses' conduct and evaluated
the testimony accordingly, the judge denied the motion Although we do
not condone the conduct of the witnesses , we agree with the judge's rea-
sons for denying the General Counsel's motion in the circumstances of
this case.
2 The Respondent and the General Counsel have excepted to some of
the judge's credibility findings The Board's established policy is not to
overrule an administrative 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.
The General Counsel also excepts to the j udge's failure to discredit the
testimony of certain of Respondent's witnesses who reviewed typewritten
statements before testifying The judge failed specifically to address this
issue We conclude that his omission is not fatal because it does not affect
the ultimate result reached herein As set forth below, we find that the
testimony of the General Counsel' s witnesses concerning statements at
employee meetings, taken together with the Respondent 's campaign liter-
ature , does not sustain finding violations of Sec. 8(a)(1) Accordingly, we
find it unnecessary to pass on the General Counsel's exception, as we
would reach the same result even if all the Respondent' s witnesses were
discredited
a We note that the judge at one point in his decision incorrectly refers
to employee Cecil Buckner as Cecil Bruckner
found that the severity and pervasiveness of the
Respondent's unfair labor practices made it futile to
order a second election, and concluded that the is-
suance of a bargaining order was warranted under
the principles of NLRB v. Gissel Packing Co., 395
U.S. 575 (1969). We disagree.
As more fully set forth below, we now dismiss
many of the judge's findings of unfair labor prac-
tices. We conclude that the remaining unfair labor
practices do not warrant a bargaining order. We
further conclude that the remaining unfair labor
practices which are also the subject of objections in
the representation case warrant setting aside the
election. Accordingly, we shall direct a second
election.
1. THE ALLEGED 8(A)(1) INTERROGATIONS
The judge analyzed the alleged unlawful interro-
gations in accordance with PPG Industries, 251
NLRB 1146 (1980), and Fruehauf Corp., 237 NLRB
399 (1978). After the judge issued his decision, the
Board established new standards for evaluating al-
leged unlawful interrogations. Sunnyvale Medical
Clinic, 277 NLRB 1217 (1985); Rossmore House,
269 NLRB 1176 (1984). We therefore proceed to a
new analysis of these allegations within the frame-
work of current Board law.
A. Plant Manager Bramble's Interrogation of
Employees Goodin and Allen
The judge found that on the day of the elec-
tion,4 Plant Manager Bramble approached employ-
ees Goodin and Allen at their work station and
asked them jointly what they were doing wearing
"pro-Union" campaign T-shirts and buttons. Bram-
ble stated, "You don't see any on me." Goodin
protested that she had the right to wear anything
she wanted; Allen offered Bramble a union button.
We agree with the judge that Bramble's ques-
tioning did not violate the Act. Goodin and Allen
were known to openly support the Union and the
surrounding circumstances demonstrate that Bram-
ble's interrogation would not reasonably tend to
interfere with the employees' Section 7 rights.
Thus Bramble's question was merely a casual refer-
ence to the visible emblems of two self-proclaimed
union adherents, and was not followed by any
other remarks concerning union activity. We there-
fore dismiss this allegation. Sunnyvale Medical
Clinic, supra; Rossmore House, supra.
4 The election was conducted on 21 March 1980 All subsequent dates
refer to 1980 unless otherwise noted.
286 NLRB No. 7
56 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
B. Supervisor Cross' Interrogation of Employee
Betty Wentz
The judge found that about 2 weeks prior to the
election, Supervisor Cross asked employee Betty
Wentz why Wentz thought the employees needed
union representation. Wentz' husband was a unit
employee and known union activist. In the ensuing
conversation, according to the judge, Cross told
Wentz that union representation did not ensure that
employees would obtain everything they sought;
that "in bargaining you had to negotiate for every-
thing you got"; and that there was a possibility of
losing benefits in the bargaining process. The judge
found that Cross' interrogation of Wentz about the
production employees' motivations for seeking
union representation violated Section 8(a)(1) of the
Act. We disagree.
Cross' initial question about employees' desire
for union representation was followed by speech
protected by Section 8(c). We find nothing coer-
cive in the circumstances surrounding Cross' ques-
tion and therefore dismiss this allegation of the
complaint. Sunnyvale Medical Clinic, supra; Ross-
more House, supra.
D. Supervisor Maynard's Interrogation of
Employee Jordan
The judge found that about 3 days before the
election, Maynard encountered employee Jordan at
the latter's work station. Jordan actively supported
the Union by distributing union literature and
wearing union insignia . According to the judge,
Maynard asked Jordan why he thought union rep-
resentation was necessary. Jordan responded by re-
citing for 2 hours his reasons for representation,
after which Maynard threw up his hands and de-
parted.
The judge found that Maynard unlawfully inter-
rogated Jordan. We disagree. Jordan was an open
union adherent. Maynard asked one question of
him and then merely listened to Jordan's views for
2 hours. We find nothing coercive in this situation
and conclude that Maynard's single inquiry to
Jordan did not violate Section 8(a)(1). Rossmore
House, supra.
II. RESPONDENT'S ALLEGED THREATS AND
INCULCATION OF FUTILE BARGAINING AT THE
PREELECTION MEETINGS AND IN CAMPAIGN
LITERATURE
C. Supervisor Maynard's Interrogation of
Employee Hanley
The judge found that on 1 March Supervisor
Maynard engaged in a conversation with employee
Hanley at Maynard's desk following Maynard's
routine review of Hanley's work report. Maynard
asked Hanley if there was anything else which
Hanley wished to talk about, and Hanley respond-
ed negatively. Maynard then asked, "Any union
business?" and Hanley replied, "No, not really."
Maynard persisted, however, and asked what
Hanley felt about the Union.
The judge found, and we agree, that Maynard's
interrogation violated Section 8(a)(1). Maynard's
inquiries lacked the casual, amiable character
which frequently typifies innocuous union-related
conversation in the workplace. Cf. Sunnyvale Medi-
cal Clinic, supra. The setting-at Maynard's desk,
following his review of Hanley's work report-em-
phasized the authoritative tone and coercive tend-
ency of the questions. Maynard's persistence in the
face of Hanley's attempt to deflect the questions
further reinforced their threatening quality. Under
all the circumstances, we conclude that Maynard's
interrogation reasonably tended to coerce this em-
ployee in the exercise of his Section 7 rights. Ross-
more House, supra.
The judge found that in the preelection employ-
ee meetings the Respondent neither threatened in-
evitable strikes, plant closure, or loss of benefits
nor implied that the employees' selection of the
Union as collective-bargaining representative
would be futile. However, the judge found that be-
tween 27 February and 19 March the Respondent
distributed to its employees 10 letters and 13 fact
bulletins which violated Section 8(a)(1) in the
above respects. In its exceptions, the Respondent
contends that these oral and written statements are
virtually the same and , when evaluated as a whole,
are permissible speech under Section 8(c) of the
Act. We find merit in this argument and dismiss all
allegations pertaining to the preelection communi-
cations.
The judge found that approximately 23 employee
meetings were held in the plant lunchroom be-
tween 3 and 19 March, which were attended by
almost all the Respondent's employees. Several of
the General Counsel's witnesses stated that during
these meetings, the Respondent's speakers informed
them that bargaining starts from scratch, and that
all benefits would be "frozen" during negotiations.
However, employees Carman, Don Wentz, and
Atcher conceded that Respondent's attorney
Treacy characterized collective-bargaining negotia-
tions as "horsetrading" in which the employees
could gain , lose, or break even. Don Wentz also
stated that, in response to a question whether the
UARCO, INC. 57
Respondent would negotiate, Treacy said that it
would do so, and that all items were negotiable as
bargaining started from scratch. Employee Ke-
plinger testified that Treacy said that in bargaining
you "give a little" and "take a little." Employee
Bates testified similarly.
The judge concluded that even if the General
Counsel's witnesses were given the benefit of every
direct credibility resolution, the Respondent's re-
marks at the employee meetings were not unlawful.
Thus, he found the Respondent's statements did not
constitute threats of economic detriment or threats
to engage in regressive bargaining . Rather , the Re-
spondent merely informed its employees that bene-
fits could be gained as well as lost in negotiations.
In the context of all the Respondent's oral state-
ments, the judge interpreted the Respondent's use
of the word "frozen" to mean only that the Re-
spondent would maintain the status quo pending
negotiations. The judge found specifically that the
Respondent did not repeatedly allude to a record of
union-forced strikes, stress the inevitability of a de-
structive union bargaining position, or suggest the
futility of union representation for the employees.
With respect to the campaign literature, the
judge found the Respondent threatened employees
with strikes in the following statements:5
Before you vote, you are entitled to know
how anxious some of your fellow-employees
are to cause a strike-and put you out of work.
Naturally, strikes are not inevitable . But union-
forced strikes do happen. And with the UAW
they happen very, very often.
We don't want a UAW strike. We won't force
one. I'm pretty sure you don't want a strike
either. But the UAW has a habit of threaten-
ing "Do it our way-or we strike."
The judge noted that the Respondent failed to
define the term "union-forced" strike and failed to
give assurances that the Respondent would bargain
in good faith. He concluded that the literature,
taken as a whole, unlawfully threatened the em-
ployees with strikes.
The judge further found that the Respondent
threatened employees with plant closure and the
futility of selecting a bargaining representative in
the following statements.
5 The judge set forth numerous excerpt :. concerning all aspects of Re-
spondent 's campaign literature in sec . III,C,1, of his decision. The state-
ments reproduced here are selections from the judge's excerpts which we
believe fairly characterize the general thrust of the Respondent's litera-
ture
Cleveland Was A Unionized Plant. In Fact, If
It Hadn't Been For The Outside Union, We
Probably Wouldn't Have Been Forced to
Close the Plant-Permanently.
The Company now is threatened by the UAW,
which has a sad record of closing plants in
Kentucky and forcing plants to leave Ken-
tucky. We have every confidence that the ma-
jority of UARCO people will vote their confi-
dence in the Company and avoid the risks to
their jobs that could be forced by the UAW.
Until a few years ago, Uarco had a plant near
San Francisco . It was a unionized plant. It was
long, neverending battle.
Finally, the strike began . Some of the union
demands were for such things as union-type in-
surance . . . . We explained , over and over,
that we didn 't do such things . . . . We ex-
plained that in all plants, with or without
unions we have the Uarco sick-pay plan. . . .
But the union bosses didn't believe us. The
strike kept on . . . . But we never gave in.
THE PRINCIPLE WAS MORE IMPOR-
TANT THAN ANY ONE PLANT.
Finally, it got so bad we were forced to close
the plant.
We moved, as you know, to Roseburg,
Oregon. And not one single union member
went along. There is no union at Roseburg.
What happened? A union trying to prove how
"tough" it was, cost the union members their
job-permanently. We have never been forced
to close a non-union plant.
The judge reasoned that the Respondent present-
ed the Union as a threat without any explanation
other than an alleged "sad record of closing plants
in Kentucky," and impliedly predicted dire conse-
quences due to the Union's bargaining position.
The judge concluded that the Respondent's threats
of plant closure were unsupported by demonstrable
evidence and violated the Act. He further found
that the Respondent gave no assurance in the liter-
ature that it would enter the bargaining process
with an open mind, rather than a determination to
maintain present working conditions. He concluded
that the Respondent implied it would enter bar-
gaining with a predetermined, fixed position and
thus threatened the employees with the futility of
selecting a bargaining representative.
Finally, the judge found that the Respondent
threatened loss of benefits in the following state-
ments.
58 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
The outside union keeps saying we can't
lose anything if the union gets in. Is this true?
NO-BECAUSE IT DOES HAPPEN.
LAST FRIDAY YOU READ WHERE THE
LAW SAID THIS WAS LEGAL.
Ok, so its legal. But has it ever really hap-
pened?
ABSOLUTELY, RIGHT HERE IN
UARCO, FOR EXAMPLE.
Has it happened to the UAW?
YOU BE THE JUDGE! HERE IS A
DIRECT QUOTE FROM THE UAW
PRESIDENT AT TELEX-AFTER 11
LOST STRIKE PAYCHECKS:
"EVERY TIME WE MET WITH THE
COMPANY, THEY'D TAKE SOMETHING
ELSE AWAY FROM US1"
The judge noted that the statements suggested
the employees' loss of benefits without reference to
bargaining or any other qualification. Concerning
the alleged quotation from the UAW president, the
judge found that it lacked supporting context and
contained no assurance that the Respondent would
bargain in good faith or would not assume a re-
gressive bargaining position. The judge concluded
that the Respondent's campaign literature, taken as
a whole, threatened the employees with loss of
benefits and violated the Act.
Our dissenting colleague agrees with the judge's
conclusions concerning the Respondent's literature
and with his finding that a remedial bargaining
order is warranted.
In evaluating the Respondent's preelection cam-
paign, we begin from the premise that the oral and
written statements must be construed together to
determine their reasonable tendency to coerce the
employees. Both the courts and the Board have
long held that statements and written materials
must be viewed in context and not in isolation.
NLRB v. Virginia Electric & Power Co., 314 U.S.
469 (1941); Nebraska Bulk Transport, 240 NLRB
135, 157 (1979), enfd. in pertinent part 608 F.2d
311, 314-315 (8th Cir. 1979).
From this viewpoint, we conclude that the Re-
spondent's campaign communications did not vio-
late the Act. In this regard, we disagree with the
judge's and our dissenting colleague's conclusion
that the Respondent's lawful oral communications
did not moderate its written statements. As noted
above, the judge found nothing threatening or false
on the face of the documents. He concluded that
they conveyed unlawful threats as a result of the
repetition of certain statements regarding strikes
and bargaining positions and the absence of context
for other statements. In each cdse the judge de-
pended on the impact of the literature as a whole
to make his finding of violations. We disagree with
his judgment in this matter. We find that the litera-
ture and oral statements, considered as a whole, are
lawful expressions of opinion protected by Section
8(c).
The Respondent held numerous employee meet-
ings . Employees Carman, Don Wentz, and Atcher
each conceded that Respondent's attorney Treacy
characterized collective bargaining as "horsetrad-
ing" in which the employees could gain, lose, or
break even. According to Don Wentz' testimony,
Treacy also expressly assured the employees that
the Respondent would negotiate. In addition, em-
ployees Keplinger and Bates each recalled Treacy's
references to the two-way nature of collective bar-
gaining.
Treacy's repeated oral assurances provided sub-
stantial context for the Respondent's campaign lit-
erature. The Respondent couched that literature in
partisan terms . Mere references to the possible neg-
ative outcomes of unionization, however, do not
deprive the Respondent's materials of the protec-
tions of Section 8(c). See, e.g., Coleman Co., 203
NLRB 1056 (1970) (strikes); American Clay Form-
ing Plant, 238 NLRB 1052 (1978) (plant closings);
Clark Equipment Co., 278 NLRB 498 (1986) (loss
of benefits). As noted, the letters and fact bulletins
contain no express threats of any kind, nor do they
contain any falsehoods. When considered in proper
conjunction with Respondent's oral assurances that
it would bargain with the Union and that bargain-
ing could go up or down, the literature has no rea-
sonable tendency to coerce. We conclude that rea-
sonable employees equipped with such assurances
would treat these documents merely as part of a
vigorous election campaign. We therefore dismiss
all allegations of 8(a)(1) threats and inculcations of
futility of selecting a representative pertaining to
the Respondent's preelection communications.
III. THE UNION 'S OBJECTIONS TO CONDUCT
AFFECTING THE RESULTS OF THE ELECTION
The judge considered 13 objections set for hear-
ing in this consolidated proceeding. He found meri-
torious Objections 3, 4, 9, and 10,6 and recom-
Objections 3, 4, and 9 are phrased as follows
3. The Employer threatened dire economic consequences , includ-
ing plant closure , if the Petitioner won the election and predicted a
loss of business to the Employer if the Union won the election
4 The Employer interrogated employees concerning protected
concerted activities
9 The Employer, through literature and speeches , and otherwise,
instilled in employees' minds that collective bargaining is futile and
inevitably leads to strikes
10 The Employer issued false and deceptive statements and en-
gaged in deceptive practices
UARCO, INC. 59
mended that the election be set aside on those
grounds. The judge dismissed the remainder of the
objections as unsupported by sufficient evidence;
the General Counsel filed no exceptions to these
dismissals , and the Charging Party excepted only
to the dismissal of Objection 11. Our rulings on the
unfair labor practices discussed above require the
overruling of portions of Objection 3 and of Objec-
tion 9 in its entirety. For the reasons set forth
below, we also overrule Objection 10 and affirm
the judge's overruling of Objection 11.
Objection 10 concerns alleged campaign misrep-
resentations committed by the Respondent. Citing
General Knit of California, 239 NLRB 619 (1978),
the judge found that the Respondent engaged in
misrepresentations which could not adequately be
rebutted by the Union, and concluded that Objec-
tion 10 was meritorious. After the judge issued his
decision, the Board adopted a new standard for
evaluating campaign propaganda. Objections based
on the truth or falsity of the parties' campaign
statements are no longer grounds for setting aside
an election. Midland National Life Insurance Co.,
.263 NLRB 127 (1982). Accordingly, we dismiss
Objection 10.7
With respect to Objections 3 and 4, we have
adopted the judge's findings that Hobbs' threat of
plant closure violated the Act, and that Maynard's
interrogation of Hanley was unlawful. In the over-
all circumstances of this case, we conclude that
these unlawful acts constitute objectionable con-
duct affecting the election8 arid, on this ground, we
accept the judge's recommendation to set aside the
election.
IV. THE RECOMMENDED BARGAINING ORDER
The judge found that the Respondent's unfair
labor practices rendered the holding of a second
election futile and could adequately be remedied
only by the issuance of a bargaining order. This
finding was based principally on the judge's con-
clusions concerning the Respondent 's campaign lit-
erature . As we have found nothing unlawful in that
literature , the major basis for the judge's recom-
mended remedy has been eliminated . The only re-
maining unfair labor practices are one interroga-
7 We affirm the judge 's dismissal of Objection I I concerning alleged
misrepresentation of Board processes The judge found that the Respond-
ent posted numerous photocopies of purported unfair labor practice
charges filed against the Union with the Board The Union conceded that
the documents were not forgenes The judge found no misrepresentation
and dismissed this objection In R:veredge Hospital, 264 NLRB 1094
(1982), the Board decided that mischaracterizations of Board actions are
to be treated in the same manner as other misrepresentations On this
ground we affirm the judge's ruling
8 We note that the Respondent also unlawfully solicited grievances and
unlawfully assisted a labor organization during the election campaign, but
these unfair labor practices were not alleged as objectionable conduct
tion, one threat of plant closure, the unlawful solic-
itation of grievances, the unlawful dominance of
and assistance to a labor organization, the postelec-
tion remedying of employee complaints, and the
postelection refusal to recall a union activist. We
find that the preelection unfair labor practices are
not sufficient to require the extraordinary remedy
of a bargaining order. We conclude that they are
not so pervasive, severe, or lingering in effect to
render unlikely the holding of a fair second elec-
tion. Nor do we find them and the Respondent's
postelection conduct together so egregious to be
properly remedied only through the issuance of a
bargaining order. Although these unlawful acts
suggest, as the judge found, a proclivity to violate
the Act, we find that the issuance of a broad cease-
and-desist order is a more appropriate remedy than
a bargaining order in the circumstances of this
case. Accordingly, we shall prescribe the tradition-
al remedies for the Respondent's unfair labor prac-
tices.9
AMENDED CONCLUSIONS OF LAW
The Conclusions of Law shall be amended as fol-
lows:
1. Omit Conclusions of Law 2, 3, and 4, and re-
number the subsequent Conclusions of Law ac-
cordingly.
2. Substitute the following for Conclusion of
Law 5 and renumber it.
"2. By coercively interrogating an employee
concerning his union sympathies, and by threaten-
ing an employee with plant closure if the Union
were selected as the collective-bargaining agent,
the Respondent has engaged in unfair labor prac-
tices affecting commerce within the meaning of
Section 8(a)(1) of the Act."
ORDER
The National Labor Relations Board orders that
the Respondent, UARCO, Inc., Radcliff, Ken-
tucky, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Threatening employees with plant closure in
the event that they designate the International
Union, United Automobile, Aerospace and Agri-
cultural Implement Workers of America, UAW, or
any other labor organization, as their collective-
bargaining representative.
(b) Coercively interrogating any employee about
union support or union activities.
9 In light of this conclusion , we find it unnecessary to address the
judge 's discussion of the Union 's majority status
60 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
(c) Soliciting and promising to correct and cor-
recting employees' complaints and grievances in
order to induce employees to reject union repre-
sentation.
(d) Dominating and interfering with the adminis-
tration of, and rendering unlawful assistance and
support to, the Employee Committee or any other
labor organization.
(e) Discharging or refusing to recall from layoff
or otherwise discriminating against any employee
for supporting International Union, United Auto-
mobile, Aerospace and Agricultural Implement
Workers of America, UAW, or any other Union.
(f) In any other manner interfering with, restrain-
ing, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action neces-
sary to effectuate the policies of the Act.
(a) Disestablish and desist from recognizing and
dealing with the Employee Committee as the rep-
resentative of any employees over employee griev-
ances, rates of pay, wages, hours, or working con-
ditions.
(b) Offer Martha Langdon immediate and full re-
instatement to her former job or, if that job no
longer exists, to a substantially equivalent position,
without prejudice to her seniority or any other
rights or privileges previously enjoyed, and make
her whole for any loss of earnings and other bene-
fits suffered as a result of the discrimination against
her, in the manner set forth in the remedy section
of the decision, except that interest will be comput-
ed in the manner prescribed in New Horizons for the
Retarded. 10
(c) Remove from its files any reference to the
unlawful discharge of Martha Langdon and notify
her in writing that this has been done and that the
discharge will not be used against her in any way.
(d) 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.
(e) Post at Radcliff, Kentucky plant copies of the
attached notice marked "Appendix."" Copies of
10 In accordance with our decision in New Horizons for the Retarded,
283 NLRB 1173 ( 1987), interest on and after 1 January 1987 shall be
computed at the "short-term Federal rate" for the underpayment of taxes
as set out in the 1986 amendment to 26 US C § 6621. Interest on
amounts accrued prior to 1 January 1987 (the effective date of the 1986
amendment to 26 U S C § 6621) shall be computed in accordance with
Florida Steel Corp, 231 NLRB 651 (1977)
11 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 notice, on forms provided by the Regional Di-
rector for Region 9, after being signed by the Re-
spondent's authorized representative, shall be
posted by the Respondent immediately upon re-
ceipt and maintained for 60 consecutive days in
conspicuous places including all places where no-
tices to employees are customarily posted. Reason-
able steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or
covered by any other material.
(f) 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 allegations of
unlawful conduct not found to be violative of the
Act shall be dismissed.
IT IS FURTHER ORDERED that the election in
Case 9-RC-13255 is set aside.
[Direction of Second Election omitted from pub-
lication.]
MEMBER STEPHENS, dissenting in part.
I dissent from my colleagues' reversal of the
judge's findings and conclusions that the Respond-
ent's preelection written communications with its
employees constituted unlawful threats of strikes,
loss of jobs and benefits, plant closure, and the fu-
tility of unionization and that it thereby violated
Section 8(a)(1) of the Act. Like the judge, I would
find that a number of the Respondent's letters and
"fact bulletins" issued to its employees during the
campaign violated Section 8(a)(1) in the foregoing
respects, even taking into account the Respondent's
entire campaign, including its somewhat more
moderate oral presentations. As the judge found,
the oral presentations did not "substantially negate"
the overall coercive impact of the written state-
ments, which were distributed to all employees and
posted on bulletin boards throughout the Respond-
ent's Radcliff, Kentucky plant.
The majority opinion sets out what it accurately
describes as selected excerpts from the Respond-
ent's literature that "fairly characterize the general
thrust of its campaign." I agree with the majority's
approach insofar as it examines the overall impres-
sion created by the campaign literature, in contrast
to considering the various pieces of the Respond-
ent's literature on an isolated, individualized basis.
From the latter perspective, no one letter or bulle-
tin here contains an explicit threat, nor does any
single document necessarily contain an implicit one.
But on viewing the documents in toto-as the Re-
spondent undoubtedly intended the employees to
view them-including the excerpts quoted by the
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
UARCO, INC. 61
majority and other similar unquoted passages, I
conclude that they go well beyond "[m]ere refer-
ences to the possible negative outcomes of union-
ization." Rather they make veiled suggestions of
plant closure and job loss that are unlawful under
the test set out in NLRB v. Gissel Packing Co., 395
U.S. 575, 618-619 (1969); and they suggest that any
improvements in the employees' working condi-
tions once the Union is voted in will bear the price
of a "union-forced strike."
With respect to the threats of plant closure and
job loss, the following statements-contained in lit-
erature distributed between 10 March and 19
March (2 days before the 21 March election) are
especially telling:
CLEVELAND WAS A UNIONIZED
PLANT. IN FACT, IF IT HADN'T BEEN
FOR THE OUTSIDE UNION, WE PROB-
ABLY WOULDN'T HAVE BEEN
FORCED TO CLOSE THE PLANT-PER-
MANENTLY. [Fact Bulletin #5, 10 March]
James B. Brown, Vice President of
UARCO, said:
The Company now is threatened by the
UAW, which has a sad record of closing
plants in Kentucky and forcing plants to leave
Kentucky. We have every confidence that the
majority of UARCO people will vote their
confidence in the Company and avoid the risks
to their jobs that could be forced by the
UAW. [12 March letter]
UARCO PLANTS. Work is slowing up at
the UARCO plants in Paris, Texas, in Deep
River, Connecticut, in Toccoa, Georgia and in
Roseburg, Oregon. They all do the same work
we do. They would all be glad to get our
work. They are all nonunion. [17 March letter]
1. Question: What has UARCO done at Rad-
cliff?
FACTS: MADE OVER 200 GOOD,
SECURE JOBS.
2. Question: What can the UAW do?
FACTS: DESTROY THESE JOBS-
INCLUDING YOURS!
[Fact Bulletin #12, 19 March; emphasis
in original]
At no time, in either its written communications
or its oral communications, did the Respondent
suggest any reason why the mere fact of the Cleve-
land plant's being unionized should cause the Re-
spondent to close it or why the mere existence of
the Union as a bargaining agent should "threaten"
the Radcliff plant. As the judge noted, the Re-
spondent had no evidence of what the Union's bar-
gaining position would be at the Radcliff plant and
as the reference to the "sad record of closing plants
in Kentucky" was made without any explanation of
the bargaining positions or surrounding circum-
stances in those instances, a reasonable inference
was that the Respondent might close a plant simply
because it did not want to operate a unionized
plant. Similarly, the possibility of "job destruction"
is presented in the final "fact bulletin" as something
that the UAW may simply "do." The Respondent
had previously suggested, in its 17 March letter,
where it might send the work of the employees
whose jobs were thus destroyed-to its nonunion
plants in four other States, who would be "glad to
get our work." These assertions are not the kinds
of "carefully phrased" predictions based on "objec-
tive fact to convey an employer's belief as to de-
monstrably probable consequences beyond his con-
trol" which the Court in Gissel regarded as mere
truthful communication under Section 8(c). NLRB
v. Gissel Packing Co., supra, 395 U.S. at 618. Rather
these statements carry the "implication" that were
the employees to select the Union as their bargain-
ing representative, the Respondent might close the
plant and transfer out jobs "solely on [its] own ini-
tiative for reasons unrelated to economic necessi-
ties"-statements of the kind that the Gissel Court
regarded as implicit threats of retaliation, in viola-
tion of Section 8(a)(1) of the Act. Ibid. Accord:
National Micronetics, 277 NLRB 993 (1985) (no ob-
jective facts showing that unionization would cause
plant to become unprofitable); Continental Radiator
Corp., 283 NLRB 234 (1987) (plant would move
south for "cheaper labor" if union were elected).'
An equally coercive message is discernible in the
Respondent's repeated references to strikes, which
it presented almost exclusively as strikes that the
Union would "force" on the employees. The Re-
spondent's message regarding strikes included the
following statements excerpted from letters and
"fact bulletins" distributed between 5 March and
18 March.
3. Some people seem to think that if this
particular union threatens us with a strike, we
will cave in and surrender.
Please, don't let this outside union force you
and your Company into a knock-down and
drag-out fight!
Because if you let them do this, you can
lose, your Company can lose-the only one
that doesn't lose is this outside union!
[5 March letter; emphasis in original] [In
answer to a question whether an employer had
' Compare Kawasaki Motors Mfg Co, 280 NLRB 491 ( 1986) (predic-
tions found lawful where employer presented to employees detailed fi-
nancial data to substantiate its prediction of the impact of unionization)
62 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
ever taken benefits away from employees who
chose to be represented by the Union]:
FACTS-YOU BE THE JUDGE! HERE
IS A DIRECT QUOTE FROM THE UAW
PRESIDENT AT TELEX-AFTER 11
LOST STRIKE PAYCHECKS:
"EVERY TIME WE MET WITH THE
COMPANY THEY'D TAKE SOMETHING
ELSE AWAY FROM US!"
[12 March letter: emphasis in original] [De-
scribing strike in the Respondent's unionized
California plant]:
Finally the strike began. Some of the union
demands were for such things as union-type in-
surance, union-type pension plans, union-type
sick-pay plans, union-type cost-of-living plans,
etc. etc.
We explained, over and over, that we didn't
do such things. We explained that the unions
that were in a part of the Chicago plant and a
part of the Watseka plant didn't have such
things. We explained that in all plants, with or
without unions, we have the UARCO sick-pay
plan, the UARCO pension, that we don't have
a cost-of-living plan-anywhere.
But the union bosses didn't believe us. The
strike kept on. The strike cost a lot of
money-and lost a lot of business. But we
never gave in. THE PRINCIPLE WAS
MORE IMPORTANT THAN ANY ONE
PLANT!
Finally, it got so bad we were forced to
close the plant. We moved, as you know, to
Roseburg, Oregon. And not one single union
member went along. There is no union at Ro-
seburg. [14 March letter; emphasis in original]
Naturally, strikes are not inevitable. But
union-forced strikes do happen. And with the
UAW they happen very, very often.
We don't want a UAW strike. We won't
force one. I'm pretty sure you don't want a
strike either. But the UAW has a habit of
threatening "Do it our way-or we strike!" [17
March letter; emphasis in original]
Suppose UARCO refused to agree to certain
UAW demands-
2. Are you willing to be forced on strike to
try to get a union-type cost-of-living pro-
gram-which UARCO doesn't have anywhere,
union or no union?
3. Are you willing to be forced on strike to
try to get sick days? UARCO doesn't have
them anywhere-union or no union!
With a recession-or depression-coming,
please think twice before you let someone else
decide whether you'll have a paycheck or not!
[18 March letter; emphasis in original]
The picture presented in the foregoing state-
ments is not one that suggests the employees have
any possibility of improving their working condi-
tions in any way without a strike; and the strike is
presented as something that the Union would prob-
ably force on them against their will. Although the
Respondent concedes in one communication that
strikes are not "inevitable" and that it will not
"force" one, it nowhere in its written communica-
tions expresses its willingness to bargain in good
faith.2 The employees are implicitly asked to see
the election choice as one between no union and
being forced into striking as the price for any im-
provement in their lot. The Board spoke cogently
to this very point in Boaz Spinning Co., 177 NLRB
788, 789 (1969):
In arguing against unionism , an employer is
free to discuss rationally the potency of strikes
as a weapon . . . . It is , however, a different
matter when the employer leads the employees
to believe that they must strike in order to get
concessions. . . . When an employer frames
the issue of whether or not the employees
should vote for a union purely in terms of
what a strike might accomplish, [it] demon-
strates an attitude of predetermination that bar-
gaining itself will accomplish nothing. . . .
Policy considerations dictate that employees
should not be led to believe, before voting,
that their choice is simply between no union
or striking.
In addition, it is noteworthy that in the excerpts
from the 14 March letter concerning the shutdown
of the California plant and the move to Roseburg,
Oregon, the Respondent combined the themes of
job loss and its intransigence in the face of a strike,
even though, as the judge found, the testimony of
the plant's manager revealed that the shutdown of
the California plant was at least in part the result of
factors unrelated to strikes or a unionized work
force (high state taxes, maintenance costs of the
building, and an unsafe location). Thus, the Re-
spondent's own evidence refuted the impression it
sought to give its employees-that the mere pres-
ence of a striking union alone caused the shut-
down. Taken together with the other statements
quoted above, this letter implicitly warned employ-
ees that a vote for the Union would be a vote for a
bargaining stalemate during which employees
2 Compare Agri-International Inc, 271 NLRB 925, 926 ( 1984) (when
employer's speech describing union 's strike history not unlawful when
employer's expressed willingness to bargain in good faith was "integral
part" of the speech)
UARCO, INC.
would be forced out of their jobs either during
lengthy strikes or permanently.
Finally, I take issue with niy colleagues' view
that various oral assurances to the employees by
the Respondent's attorney William Tracy created
a "context" that eliminated from the literature any
reasonable tendency to coerce. As already noted,
the written communications were distributed to ev-
eryone in the 200-employee unit and posted on em-
ployee bulletin boards throughout the plant, so
they were continuously on view from 27 February
up to the time of the election. Treacy's oral state-
ments were made at a series of meetings attended
by no more than 35 employees at a time. Although
almost all the employees attended at least one
meeting, some did not remain for the entire meet-
ing. Thus, it is not clear that all employees were
exposed to oral assurances that collective bargain-
ing was a two-way process and that the Respond-
ent for its part would negotiate in good faith. Fur-
thermore, this is not a case in which the Respond-
ent initially issued coercive communications and
then retracted them by subsequent statements.
Rather, as the judge aptly noted, the Respondent
continued throughout the preelection period to
issue its written depictions of what amounted to
"inevitable bargaining collapse and strike and re-
sulting economic loss." When, as here, the evi-
dence does not show that all those exposed to the
coercive statements were also exposed to the al-
leged oral retractions and when the evidence does
show that the unlawful statements continued una-
bated even after alleged retractions, I cannot con-
clude that coercive communications were "effec-
tively retracted in a manner which would cure
[their] coercive effect." Atlas Microfilming, 267
NLRB 682 fn. 2 (1983), enfd. 783 F.2d 313, 316 (3d
Cir. 1985) (company president's letter and his oral
statements that the plant would not close as a con-
sequence of unionization found not to cure unlaw-
ful plant closure statements by supervisor when
president's remarks were made to only a few em-
ployees and the supervisor continued to make the
plant closure threats after the letter was sent).3
Essentially for the reasons stated in the judge's
opinion, I would grant the bargaining order. As he
pointed out, the Respondent not only engaged in
preelection unfair labor practices of a type likely to
leave a lasting impression on the employees, but it
continued even after the election to engage in con-
duct calculated to thwart any future union cam-
8 Furthermore, as the judge in this case noted in the course of justify-
ing his recommendation of a bargaining order, "the fine points of bar-
gaining" included in the attorney's oral presentations were "more likely
to be blurred in memory" than the "written references to strikes and
plant closures " And, as he also noted, the employee witnesses' testimony
regarding the message that they heard confirmed this likelihood
63
paign , namely its discriminatory termination of an
active union supporter , Martha Langdon, and its
assistance to, and domination of, an "Employee
Committee ," in violation of Section 8(a)(2) and (1)
of the Act. Finally, the most serious conduct was
not the action of low-level supervisors but emanat-
ed from the plant manager himself and others fairly
high in the hierarchy. See NLRB v. Atlas Micro-
filming, supra, 753 F.2d at 318-319.
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.
Section 7 of the Act gives employees these rights.
To organize
To form, join, or assist any union
To bargain collectively through representa-
tives of their own choice
To act together for other mutual aid or pro-
tection
To choose not to engage in any of these
protected concerted activities.
WE WILL NOT threaten you with plant closure if
you select as your collective-bargaining representa-
tive the International Union, United Automobile,
Aerospace and Agricultural Implement Workers of
America, UAW, or any other union.
WE WILL NOT coercively question you about
your union support or activities.
WE WILL NOT solicit and promise to correct or
correct your complaints and grievances in order to
induce you to reject union representation.
WE WILL NOT dominate and interfere with the
administration of, nor render unlawful assistance
and support to, the Employee Committee or any
other union.
WE WILL NOT discharge or refuse to recall from
layoff or otherwise discriminate against any of you
for supporting the International Union, United
Automobile, Aerospace and Agricultural Imple-
ment Workers of America, UAW, or any other
union.
WE WILL NOT in any other manner interfere
with, restrain, or coerce you in the exercise of the
rights guaranteed you by Section 7 of the Act.
WE WILL disestablish and cease recognizing and
dealing with the Employee Committee as your rep-
64 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
resentative concerning your grievances, rates of
pay, wages, hours, and working conditions.
WE WILL offer Martha Langdon immediate and
full reinstatement to her former job or, if that job
no longer exists, to a substantially equivalent posi-
tion, without prejudice to her seniority or any
other rights or privileges previously enjoyed and
WE WILL make her whole for any loss of earnings
and other benefits resulting from her discharge, less
any net interim earnings, plus interest.
WE WILL notify Martha Langdon that we have
removed from our files any reference to her dis-
charge and that the discharge will not be used
against her in any way.
UARCO INCORPORATED
Jane E. Ballenger, Esq. and Donald L. Crain, Esq., for the
General Counsel.
William P. Treacy, Esq., of Lake Forest, Illinois, and
James B. Brown, Esq., of Barrington, Illinois, for the
Respondent.
Irwin H. Cutler Jr., Esq., of Louisville, Kentucky, for the
Charging Party.
DECISION
STATEMENT OF THE CASE
THOMAS R. WILKS, Administrative Law Judge. A
hearing in this consolidated proceeding was held on Jan-
uary 14-16 and 26-29, February 10-12, March 23-27,
and April 7-9, 1981, in Elizabethtown, Kentucky. The
unfair labor practice charges in Cases 9-CA-15126, 9-
CA-15218, and 9-CA-15277 were filed against Uarco,
Inc. (Respondent) by International Union, United Auto-
mobile, Aerospace and Agricultural Implement Workers
of America, UAW (the Union) on March 27, April 18,
and May 12 (amended on June 12, 1980), respectively.'
Complaints were issued on May 16 and 27 and June 17,
respectively, in those cases.
With respect to the representation case, the Union
filed a petition with the Regional Director on January
23. On February 8, a Stipulation for Certification upon
Consent Election entered into by the parties was ap-
proved by the Regional Director. An election was con-
ducted on March 21. The tally of ballots revealed that of
206 valid ballots cast, 101 were cast for the Union and
105 against it. On March 27, the Union filed objections
to the conduct of the election and to conduct affecting
the results of the election. About May 19, the Acting Re-
gional Director issued an order that consolidated certain
objections for hearing with Case 9-CA-15126. Subse-
quently, all cases were consolidated for hearing by order
of the Regional Director. At the hearing the General
Counsel's motions to amend the complaint in Case 9-
CA-15126 were granted.
At issue herein is whether the Respondent interfered
with employees' Section 7 rights by engaging in a pree-
' All dates hereinafter are 1980 unless otherwise stated
lection campaign of coercive conduct in order to inter-
fere with the election and to discourage employee activi-
ties on behalf of, support for, or sympathy for represen-
tation by the Union and thereby violated Section 8(a)(1)
and (3) of the Act. Also at issue is whether the Union
had attained a majority status prior to the election as evi-
denced by authorization cards and whether a bargaining
order is an appropriate remedy. The issues also involve
certain alleged coercive and discriminatory conduct after
the election that constituted violations of Section 8(a)(1)
and (3) of the Act. Finally at issue is the status of the
Employee Committee, and whether it was a labor orga-
nization that was dominated by and unlawfully assisted
by the Respondent in violation of Section 8(a)(2) and (1)
of the Act.
All parties were given full opportunity to participate,
to introduce relevant evidence, to examine and cross-ex-
amine witnesses, and to argue orally. Briefs were filed by
all parties about June 22.
During the trial I denied the General Counsel 's motion
to strike the entire testimony of certain Respondent wit-
nesses, i.e., supervisors and managers who had, during a
hiatus in the proceeding, read segments of the transcript
covering portions of the testimony of the General Coun-
sel's witnesses that related to conduct of which they
were accused, as a breach of my ruling excluding wit-
nesses. The General Counsel renews the motion in her
brief citing Gossen Co., 254 NLRB 339 (1981). The
Board in that case, although not approving of transcript
reading as a means of trial preparation, upheld the ad-
ministrative law judge's denial of a similar motion. One
factor the Board noted was that "the parameters of the
sequestration arrangement had not been properly de-
fined." The exclusionary order herein did not explicitly
refer to nonpersonal interaction or exchange of informa-
tion between witnesses. Thus it was silent as to whether
potential witnesses were permitted to read newspaper
summaries of preceding testimony, of which there was
an abundance, and it did not address itself to the extent
and manner counsel for Respondent could inform his
witnesses of what they were accused in preparation for
trial. Moreover, the Board also upheld the administrative
law judge in Gossen because he was aware of the alleged
breach and evaluated the credibility of the witnesses ac-
cordingly. I have considered the fact that Respondent's
witnesses Harmon, Hobbs, Maynard, Diania Gail Cle-
mons, Richard Franklin, and Kirchman had read the
transcripts where in those few instances credibility con-
flicts arose in areas of materiality. I reaffirm my ruling.
On the entire record, including my observation of the
witnesses and their demeanor, I make the following
FINDINGS OF FACT
I. RESPONDENT'S BUSINESS
At all times material, Respondent, a Delaware corpo-
ration, with an office and place of business in Radcliff,
Kentucky (Respondent's facility), has been engaged in
the manufacture and sale of business forms. During the
past 12 months, a representative period, Respondent, in
the course and conduct of its business operations, pur-
UARCO, INC 65
chased and received at its Radcliff, Kentucky facility
goods, products, and materials valued in excess of
$50,000 directly from points outside the State of Ken-
tucky . Respondent is now and has been at all times mate-
rial an employer engaged in commerce within the mean-
ing of Section 2(2), (6), and (7) of the Act.
II. THE LABOR ORGANIZATION INVOLVED
It is admitted, and I find, that the Union is a labor or-
ganization within the meaning of Section 2(5) of the Act.
III. UNFAIR LABOR PRACTICES
A. Background
Respondent maintains in the United States 10 business
form manufacturing plants and 1 forms handling equip-
ment plant, at which plants about 4000 persons are em-
ployed. Among the products of these plants are included
"unit sets ," control punches , continuous forms, and pres-
sure-sensitive label products.
The Radcliff, Kentucky plant became operative in
1972, and its purpose was to consolidate the manufactur-
ing of unit set production from various midwestern
plants. Previously , most unit set work was produced at
the Chicago, Illinois plant. In February 1980, 310 per-
sons were employed at the plant. Among employee clas-
sifications are pressmen, collator operators, preparatory
department employees , maintenance , material handling,
and office clerical employees . In early 1980, the manag-
ers were Malcom Bramble, plant manager; David Kirch-
man, industrial relations manager (sometimes referred to
as personnel manager); Robert Voight, general foreman;
and Troy Harmon, material control supervisor as well as
a plant accountant and a production planning supervisor.
There were also line foremen and group leaders, the
latter of whom were not included in the voter eligibility
list. Bramble testified that he employed about 28 supervi-
sors throughout the plant during the preelection period.
In January 1980, organizational efforts were made on
behalf of the Union among the Radcliff plant's produc-
tion and maintenance employees . On January 9, employ-
ees Mike Keplinger, Cleo Letterman, Don Wentz, Maria
Mays, and Bonnie Prochaska met with Union Agent
Tom Puckett to discuss union representation . They ob-
tained authorization cards from Puckett. Thereafter,
these and other employees commenced the solicitation of
signed authorization cards from the Radcliff plant pro-
duction and maintenance employees . On January 23, a
representation petition was filed. On February 8, a Stipu-
lation for Certification upon Consent Election was ap-
proved and, thereafter on March 21, an election was
held. The General Counsel alleges and argues that Re-
spondent embarked on a course of conduct during the
election campaign and thereafter that was violative of
the Act.
The thrust of Respondent's alleged coercive conduct
centers in the literature that it published (luring the elec-
tion campaign, and 23 employee meetings it conducted in
March . However , the complaints allege a multitude of
other unfair labor practices. In order to properly evalu-
ate the context of the publication of Respondent's litera-
ture and its statements at employee meetings , it will be
necessary herein to evaluate first the various individual
confrontations between supervisors and managers and in-
dividual employees alleged to be violative of the Act. It
will also be necessary to evaluate and understand the po-
sition of the Employee Committee prior to an evaluation
of the Respondent 's campaign literature and its state-
ments at the employee meetings.
B. Employee-Supervisor Confrontations
1. Interrogations-Case 9-CA-15126
a. Paragraph 5(c)-March 1980 interrogations by
Supervisors Jerry Corbett, Gail Clemons, and Pat
Downs
A few weeks prior to the election Foreman Jerry Cor-
bett distributed key chains bearing the slogan, "You're
No. 1 with Uarco" by folding them with each employ-
ee's paycheck that he delivered to each employee. There
is no evidence that Corbett made any observation as to
what the employee did with the key chain after opening
the paycheck. Other campaign materials , such as "Vote
No" buttons, were placed by Respondent at foremen's
desks and other central locations. There is no allegation
that the Respondent engaged in subtle interrogation by
the placement of buttons, etc., in the plant. With respect
to Corbett's activity, I conclude that it does not amount
to subtle interrogation of employees ' union sentiments as
he did not place any employee in a position of choosing
to accept or reject the key chains, nor did he observe
what the employees did with them. Farah Mfg. Co., 204
NLRB 173 (1973); McDonalds, 214 NLRB 879 (1974). In
Black Dot, Inc., 239 NLRB 929 (1978), the Board held
that the mere placement of campaign buttons at central
locations in the plant without direct supervisory partici-
pation did not constitute election interference. In Tappon
Co., 254 NLRB 656 (1981 ), election interference was
found when employees were placed in a position of
having to accept or reject a foreman's offer of antiunion
T-shirts.
Within 2 weeks of the election, Supervisor Diania Gail
Clemons distributed Respondent's campaign literature,
"Fact Bulletin" to all employees whom she supervised.
She asked each whether they had questions about the
bulletin . She did not pursue the matter when an employ-
ee expressed disinterest in any discussion . She did not
question any employee about the employee 's union ac-
tivities or sympathies. I find her conduct not violative of
the Act.
There is no evidence that Supervisor Pat Downs inter-
rogated employees as alleged in paragraph 15(c).
b. Paragraph 5(t)-March 21, 1980 interrogation by
plant manager
I credit the two General Counsel witnesses who testi-
fied as to this incident inasmuch as Respondent's witness,
Plant Manager Bramble, did not effectively contradict
their certain and convincing testimony. On the day of
the election, shortly after 8 a.m., Bramble approached
the first-shift "comp" department employees Rita
Goodin and Ulla Allen at their work station and ad-
66 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
dressed them jointly wherein he asked them what they
were doing wearing "pro union" campaign "T" shirts
and buttons and stated, "You don't see any on me."
Goodin, who had worn union insignia in the plant for
about 3 weeks, protested that she had the right to wear
anything she wanted to wear. Bramble then merely
broke off the encounter by saying, "OK." There is no
other evidence of any interference with employees'
wearing of union insignia in the plant by any other man-
ager or by any of the 28 supervisors during the entire
campaign where throughout such insignia was freely and
openly worn in the plant by numerous employees. I
cannot conclude that this incident constituted an interro-
gation of employees' motivations for wearing union but-
tons. I find that it amounted to nothing more than a face-
tious, casual observation that was recognized as such by
both employees who reacted accordingly, i.e., Goodin
with a sharp retort and Allen with an offer of a union
button to Bramble.
that union representation did not assure that employees
would obtain everything they sought but that "in bar-
gaining you had to negotiate for everything you got,"
and that there was a possibility of losing benefits in the
bargaining process. Cross, however, had no recollection
of how this conversation commenced . She did not effec-
tively and explicitly deny the interrogation of Wentz. Al-
though I find Cross to have been the more consistent
and certain witness as to the balance of the conversation,
I credit Wentz as to how the conversation commenced,
i.e., by Cross' interrogation of Wentz as to the produc-
tion employees' motivations for seeking union representa-
tion. In view of Cross' position of authority over Wentz,
the fact that Wentz' husband was a known union activist
in the production unit, and the lack of any assurances of
nonreprisal to Betty Wentz, I conclude that such interro-
gation tended to coerce Wentz and was violative of Sec-
tion 8(a)(1) of the Act.
c. Paragraph 5(h)-March 5, 1980 interrogation by
Clerical Supervisor Nancy Cross
Betty Wentz is a clerical, nonbargaining unit employ-
ee. Her husband Don, an employee in the bargaining
unit , was a union activist and is named in the complaint
as a discriminatee. During the election campaign Betty
Wentz was supervised by Clerical Supervisor Nancy
Cross. Betty Wentz testified that about 2 weeks prior to
the election she engaged in a conversation with Cross in
her work area that was occasioned by Cross' distribution
of Respondent campaign literature. Wentz testified that
the conversation commenced as Cross asked why she
thought the bargaining unit employees needed union rep-
resentation . According to Wentz, she responded that to
understand the need for union representation, you had to
be employed within the plant production unit. Thereafter
a discussion ensued wherein, according to Wentz, Cross
stated that if the Union were voted in the employees
would lose all their benefits and would have to bargain
from scratch. On cross-examination, she expanded on this
testimony and testified that she told Cross that the unit
employees were ill-treated and desired better job securi-
ty, pay, and benefits, in answer to Cross' statement that
Cross did not understand because she did not work in
the production unit . Wentz testified that Cross then told
her that even if the Union were designated to represent
production employees that the employees would not re-
ceive such improvements, and also stated "right out"
that "they would start from scratch on bargaining for
their benefits." On specific inquiry by Respondent's
counsel, Wentz stated that Cross said something further
about bargaining . On further probing Wentz testified that
she protested to Cross that it was possible for employees
to obtain better benefits through bargaining to which
Cross responded that indeed it was possible to obtain
better benefits from bargaining . Thus, on cross -examina-
tion, Wentz did not allude to a flat assertion by Cross
that employees would lose all benefits upon the election
of the Union.
Cross, who was not employed by the Respondent at
the time of the trial, testified that she did indeed have a
conversation with Betty Wentz wherein she told Wentz
d. Paragraph 5(1)-March I and 19, 1980
interrogation by Supervisor Herman Maynard
The testimony of press operator Walter Hanley with
respect to the March 1 incident is credible and uncontra-
dicted. Sometime on or shortly after March 1, Hanley
was engaged in a conversation with Supervisor Maynard
that was occasioned by regular review of Hanley's work
progress report. It took place at Maynard's desk. After
Hanley's work was evaluated and the report finished,
Maynard asked Hanley whether there was anything else
that he would like to talk about. On a negative response,
Maynard asked, "Any union business?" Hanley respond-
ed, "No, not really." Maynard persisted, asking what
Hanley "felt" about the Union. Hanley then set forth
what he thought were certain advantages to union repre-
sentation. At that point someone else approached and the
conversation ended.
The questioning of Hanley was effectuated immediate-
ly after a review of his work progress and at his fore-
man's desk, without apparent justification and without
assurances against reprisals. Within such a context the in-
terrogation and probing of Hanley's union sympathies by
Maynard constituted interference with an employee's
Section 7 rights and is a violation of Section 8(a)(1) of
the Act.
William Jordan, a third-shift strip presser, who active-
ly supported the Union, by inter alia, distribution of
union literature and the wearing of union insignia on his
person, testified that about 3 days before the election his
foreman, Supervisor Maynard encountered him at his
press and while alone questioned him as to why he
thought union representation was necessary, and there-
upon elicited a 2-hour recital from Jordan of reasons for
union representations that included citations of alleged
unfair treatment of employees. According to Jordan,
Maynard responded by gesturing upward with his hands
and departed.
Maynard testified that he indeed did engage in a con-
versation with Jordan on about that date during the
course of his regular and routine visits through the de-
partment. He admitted that during the course of the con-
versation they did talk about the Union but he could not
UARCO, INC. 67
recall what started the conversation. He testified that he
was aware that Jordan had been an active union support-
er and that it was his impression that a personal "con-
flict" existed between them because of it and that he
asked Jordan if there were anything that Maynard did or
that the Respondent had done to make him feel mistreat-
ed "or something of this nature." Thereupon Jordan re-
cited examples of perceived employee mistreatment
Maynard testified that the conversation lasted only a
quarter of an hour.
In testimony, generally Maynard was a quiet, fluent
witness. However, when attempting to recount the
Jordan conversation he appeared uncertain and discon-
certed despite his admission of having read the prior
transcript testimony of Jordan. With respect to Jordan,
his testimony covered a wide range of topics, and re-
garding this incident he exhibited far more certitude and
detailed recollection. I do not construe Maynard's testi-
mony to constitute effective contradiction of what I con-
clude is the convincing testimony of Jordan whom I
credit.
Respondent argues that Maynard's motivations were
based on a desire to maintain a good work relation with
Jordan and therefore not "sinister„" and that in any event
Jordan was openly prounion. However, Maynard offered
no explanation to Jordan as to his reasons for the interro-
gation and gave no assurances of nonreprisal. Despite
Jordan's open espousal of the union cause , Maynard was
not justified in probing Jordan's motivations for such es-
pousal . Edgcomb Metals, 254 NLRB 1085 (1981); PPG
Industries, 251 NLRB 1146 (1980); Anaconda Co., 241
NLRB 1091 (1979); Paceco, 237 NLRB 399 (1978); ITT
Automotive Electrical Products Division, 231 NLRB 878
(1977). 1 find that this conduct violated Section 8(a)(1) of
the Act.
2. Threats-Case 9-CA-15126
plant would not close if it were profitable. Hobbs stated
that he felt "that they damn sure would move the plant
to another location if the Union came in, because the one
thing Uarco did not want and hated was the Union." At
one point Newton during a persistent cross-examination
that attempted to elicit an affirmance to suggestions that
Hobbs conditioned his statement on economic demands,
answered "yes" to the question
Q. All right. Did Frank say to you if the Compa-
ny could not meet the union demands, there is a
possibility that the plant might close?
She immediately attempted to modify that answer but
was cut off with another question. When questioned fur-
ther and permitted to expand, she reiterated forthrightly
and with full assurance her prior testimony and vigorous-
ly denied that Hobbs made any reference to bargaining
demands or union demands, or greater costs due to union
representation. I credit the testimony that Hobbs threat-
ened plant closure in the event of the Union' s designa-
tion as bargaining agent because Respondent could not
"stand" and "hated" the Union. Standing alone , or taken
within the context of other discussions of plant closure
during Respondent-conducted meetings and within con-
text of Respondent literature discussed elsewhere in this
decision, such a statement was clearly coercive, and con-
stitutes a violation of Section 8(a)(1) of the Act.
c. Paragraphs 5(1)(i) and (m)-March 8 and 19
threat of Supervisor Maynard and Foreman Robert
Voight of loss of benefits and poorer working
conditions
These allegations were added by oral amendment at
the hearing on January 26, 1981. There is no reference to
these incidents in the briefs, and I find no probative
record evidence in support of these allegations.
a. Paragraph 5(i)-threats of discipline by Supervisor
Pat Downs on March 11, 18, and 19
This allegation will be discussed within the context of
other allegations in the complaint, e.g., the issue involv-
ing distribution of union literature in the plant.
b. Paragraph 5(j)-March 19 threat to employee of
plant closure by Supervisor Frank Hobbs
It is press inspector Joyce Newton's credible testimony
that on March 19 she engaged in a conversation with her
supervisor, Foreman Frank Hobbs, wherein they dis-
cussed at his desk mutual economic problems, e.g., house
mortgages, etc., and wherein Hobbs stated that he was
worried about his job and that the plant was not earning
as much as employees thought.2 Newton had asserted
that she was not worried about her job because she felt
the plant was profitable and that the employees had been
told that there had been an improvement in earnings.
Hobbs laughed and Newton reasserted that she felt the
2 Hobbs testified only that he could not "recall" any conversation with
Newton despite having read Newton's testimony herein I reject his un-
certain testimony as not constituting an effective contradiction of the
more certain and convincing Newton
3. Surveillance-Case 9-CA-15126
a. Paragraphs 5(e) and (g), surveillance of employees'
union activities on and after February 12, 1980, by
Supervisors Morrie Adams and Gail Clemons
Bonnie Prochaska was employed in the preparatory
department on the first shift with 25 other employees.
Her supervisors were Moorie Adams and Diania Gail
Clemons during the time material. Maria Mays was em-
ployed as a vault clerk in the comp department and was
supervised by Clemons who was on the first shift during
the same time period. Both employees were active on
behalf of the Union and wore union insignia . They, with
other employees, handbilled fellow employees with
prounion leaflets. Prochaska was involved in the Febru-
ary 12 employee handbilling inside the plant door that is
discussed more fully with respect to another complaint
allegation . Both employees testified that they have need
during the course of their duties to travel to various
parts of the plant. Both testified that after their engage-
ment in union activities and before the election they
were followed throughout their travels by their supervi-
sors who stared at them wordlessly and without explana-
68 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
tion . There was no evidence that they were engaged in
any union activities when they were followed . Both wit-
nesses ' demeanor revealed a lack of certitude and confi-
dence with respect to these incidents . Mays testified that
at one point she and Prochaska discussed their mutual
impressions and wondered whether their imaginations
may have been overactive . I conclude that their testimo-
ny is too generalized and impressionistic to support these
allegations of the complaint.
b. Paragraph 5(k)(i)-creation of impression of
surveillance by recording the names of employees in
attendance at voluntary antiunion meetings conducted
by Respondent
About March 3-5 , 11-13, and 17-19 , the Respondent
held a series of voluntary employee meetings at the plant
during work hours presided over by a panel consisting of
the plant manager , personnel manager , and industrial re-
lations manager and Respondent 's attorney . These meet-
ings are more fully discussed elsewhere herein. Both
prounion and antiunion employees attended the meetings.
For each meeting a seating chart was composed by Per-
sonnel Manager David Kirchman pursuant to Industrial
Relations Manager Brown's instruction . On the chart,
each attending employee 's name was inserted on the ap-
propriate corresponding location on the seating chart by
Kirchman . The purpose , as testified to by Kirchman, was
that the Respondent 's panelist might more easily address
or respond to an individual employee by utilizing his
name as ascertained by looking at the chart . However,
these charts were not destroyed after each meeting.
They were retained by Kirchman along with his notes
that reflected the remarks , in part, of the participating
employees . These notes are cryptic and generally allude
to employee work problems and complaints raised at the
meetings attributed to employees by first name. These
notes do not reflect a systematic recordation of anti- and
prounion employees . The Respondent has held employee
meetings in the past and has similarly utilized seating
charts and taken notes of employee complaints . I cannot
conclude that the evidence supports a finding that the
maintenance of a seating chart by Kirchman accompa-
nied by cryptic notes tended to give employees the im-
pression that they were under surveillance as to their
union activities and sympathies.
The evidence reveals that the Respondent did, howev-
er, under Plant Manager Bramble 's direction , maintain
lists of pro - and antiunion employees in that it instructed
its foremen to make weekly reports as to those employ-
ees whom they perceived maintained union sympathies,
those who were prorespondent, and those who were un-
decided . From those reports that commenced 4 weeks
before the election Bramble calculated the Respondent's
likelihood of election success. This conduct was not al-
leged as violative of the Act and I conclude not fully liti-
gated . There is no reference to it in the General Coun-
sel's brief. Moreover , there is no evidence employees
were made aware of these lists as was the distinguishing
factor in Electri-Flex Co., 228 NLRB 847, 864 (1977).
4. Restrictions on union activity-Case 9-CA-15126
a. Paragraphs 5(1)(U) and (K)(d)-no-distribution
rule; and enforcement Paragraphs 5(K)(iii), 6(i), and
5(d)
The complaint alleges that about February 12, Person-
nel Manager David Kirchman orally promulgated and
since maintained an overly broad no-distribution rule that
prohibits employees, during nonwork time, from distrib-
uting handbills in the area of the employee entrance, an
alleged nonworking area.
During the preelection period employee union activists
distributed literature outside the plant and inside the
plant in the lunchroom and in the restrooms. The Re-
spondent did not interfere with this activity. However,
on February 12 at 7:30 a.m. before the commencement of
the first shift at 8 a.m., first-shift employees Bonnie Pro-
chaska, Micahel Keplinger, and Donald Wentz posi-
tioned themselves inside the employee plant entrance in
an aisleway that is adjacent to the shipping and receiving
area and also near the paper roll storage area. They dis-
tributed union literature to employees entering the door-
way and walking through the aisle . During this time the
midnight shift was still in operation and was scheduled
to stop at 8 a.m. At 7:45 a.m. several employees were
seen standing and reading the leaflets in the aisleway by
Troy Harmon, shipping and receiving supervisor, who in
turn instructed one of the hyster drivers (who operated
the pickup vehicles that transport the raw paper supplies
in the area) to be cautious of those employees and to
shut down his vehicle 15 minutes before the hour. On
February 12, there were two hysters in operation. At
other times there were three or four. Shortly afterwards
Kirchman instructed the employees to leave inasmuch as
he considered the point of distribution to constitute a
work area and the employees protested that they did not
consider the area to be a work area but they left. On
March 17, Keplinger, Wentz, and first-shift employee
Ken Parisean again attempted distribution in the same
area about the same time. They were ordered to stop by
Kirchman and Supervisor Pat Downs under threat of
discipline. They protested and departed. No discipline
issued.
About 3 or 4 weeks before the election, third-shift em-
ployee Billy Vessels attempted to distribute literature in
the same area near the door during his nonwork time
shortly before his shift started and was ordered to cease
by Supervisors Maynard and Downs. He attempted to
do so again on March 18 or 19 at 4:05 a.m. during his
unpaid lunchbreak at the same place. The lunchbreak for
the shift was 4 to 4:30 a.m. Downs and Maynard again
ordered him to stop because it was a work area. Vessels
refused. He was called insubordinate and told that he
would be disciplined. Subsequently, Vessels inspected his
personnel file and found two notations therein reflecting
what had transpired at the backdoor. No other discipline
issued.
The Respondent operates several hyster vehicles that
retrieve paper from the storage area near the entrance
aisleway and deliver paper to the production areas and
that retrieve supplies from shipping and receiving. These
UARCO, INC. 69
vehicles do not operate during the 15 minutes at the end
of each shift and in the 10 minutes at the beginning of
each shift as a safety precaution in order to avoid the
sharing of the aisle with pedestrian traffic. They also do
not operate during each 30-minute lunch period on each
shift.
The General Counsel offers no argument in support of
this complaint allegation but from the nature of the
cross-examination it would appear that the General
Counsel is in accord with the argument advanced by the
Charging Party that the point of distribution, inside the
entrance door, is not a work area despite evidence that
hyster vehicles sometimes enter the aisleway near the
point of distribution, but that in any event there was no
evidence of hyster activity in the area at the time of dis-
tribution. I conclude that there is sufficient evidence on
which to conclude that hyster vehicles entered the
aisleway sufficiently close to the point of distribution
with enough regularity during the course of the day so
that the point of distribution was in fact a work area
during those occasions. Thus the hyster drivers were for-
bidden from operating at those times, shift breaks and
lunch periods, when pedestrian traffic was likely to
occur. Moreover, leaflet recipients were apt to stop and
read the leaflets at points of travel extending into the
hyster path and thus be distracted from these oncoming
vehicles. The employees attempted to distribute leaflets
at a time that did not coincide with the cessation of op-
eration of hyster vehicles. But in any event I conclude
that the area itself was a work area, as would be the pro-
duction area during any hiatus of work activity. The
Board has held that "an employer may forbid distribu-
tion of literature in work areas at all times so that the
employer can keep work area of the plant orderly and
clear of litter." Contract Knitter, 220 NLRB 558, 560
(1975). 1 therefore conclude that the Respondent did not
violate the Act by Kirchman's prohibition against distri-
bution in the aisleway near the employee entrance as that
area constituted a work area by virtue of its proximity to
the travel path of hyster vehicles. Vapor Corp., 242
NLRB 776, 790 (1979). Accordingly, I conclude that the
Respondent's enforcement of Kirchman's order by
threats of discipline and by disciplinary action were not
violative of the Act.
b. Other restraints on employee conduct paragraph
6(c)-February 12 and March 20 discriminatory
restriction on prounion employees ' movement in the
plant and restriction on prounion employees'
communication with other employees during non work
time and non work area
The General Counsel did not submit argument in sup-
port of this allegation. At the hearing when ordered to
identify the agents of Respondent who ordered such re-
striction, counsel for the General Counsel stated that it
involved primarily Gail Clemons and Moorie Adams, but
also named were Robert Voight, Charles Lewis, Herman
Maynard, Jesse Corbett, Charles Lewis, David Kirch-
man, and James Keplinger.
Assuming that the alleged surveillance and proscrip-
tion of distribution discussed above was intended to form
part of the basis of this allegation, I need comment no
further as I have found no merit with respect to those
allegations.
The record reveals other areas of possible bases for
this allegation. The Charging Party argues that employee
William Jordan was restricted from speaking to fellow
employees during work hours.
Jordan, at the material time, was a third-shift presser
who raised several complaints at the employee meeting
conducted by Respondent. According to Jordan, he en-
tered the plant while off duty on a Thursday, a week
before the election to pick up his paycheck. He wore a
union button at the time. He stopped to speak to employ-
ee Joyce Newton, an inspector who was on duty at a
certain assigned press , and he engaged her in a conversa-
tion after which he was approached by General Foreman
Robert Voight and told not to speak to anyone in the
plant with no further comment. However, when con-
fronted with his affidavit, Jordan admitted that what he
was in fact told by Voight was that he could not talk to
anybody when he came into the plant because he was
stopping them from doing their job. Off-duty employees
are normally prohibited from traveling about the plant,
and are not permitted in the plant except to pick up pay-
checks, or to proceed to the lunchroom if they arrive
early in advance of their shift. There is insufficient evi-
dence to find that Jordan was treated disparately because
of his union activity, or that he was prohibited absolutely
from any in-plant conversations that did not interrupt
employees at work.
Maria Mays, the comp department employee involved
in the surveillance allegation , also testified confusedly
and hesitantly about a purported attempt to restrict her
conversations with other employees within her own de-
partment. She testified that at no time during her travels
outside of her department was there any attempt to inter-
fere with conversations with other persons, nor was she
ever warned during the union campaign against talking
with anybody. However, she testified when asked, how
her supervisors, Clemons and Adams, attempted to inter-
fere with her conversations with other comp department
employees, as follows:
Every time I went into the Comp Department to
take work, they would just stand there and if I
stood in one place too long, they would come and
ask me if I had a problem.
She explained that this occurred whenever she stood
with another employee, i.e., the employee to whom she
was delivering work. She testified that only "sometimes"
was she required to converse with the other employee
about work. She thereafter testified that Clemons did not
"always" come up and ask if she had a problem, but that
"sometimes she did and sometimes she'd just stand there
and watched," I find the testimony of Mays too general-
ized and ambiguous to support a finding that Respondent
precluded her from conversing with fellow employees.
Moreover, her extraordinary display of lack of certitude
in demeanor causes me to reject her testimony on its
face.
Employee Vessels testified that sometime during the
week of the election he and nine other employees were
70 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
in the lunchroom reading campaign materials posted by
the Respondent from 12:30 a.m. until 2: 15 a.m. despite
the fact that his shift commenced at midnight. Vessels'
Foreman Downs came in and ordered all of them back
to work. Vessels testified that he later saw a notation in
his personnel file that reflected that Vessels and the
other employees spent 2 hours reading the campaign ma-
terial. There is no evidence that Vessels, a prounion ac-
tivist, was treated disparately by Downs. There is no evi-
dence as to whether the other employees were or were
not subjected to discipline. There is no evidence that all
the other employees were predominantly union activists.
I cannot conclude that Down's attempt to get 10 em-
ployees back to work constituted interference with pro-
tected activities, nor that he treated Vessels discriminate-
ly because of his union activities in this regard.3
Vessels testified that about 1 week before the election
he was engaged in a conversation with employee Tim
Atcher, who worked on the neighboring press. Vessels
testified that he left his own press running while he
walked over several feet to talk to Atcher who was ad-
justing his own press in order to get it to run. Vessels
acknowledged that it is important for a pressman not to
leave his press unattended. While Atcher worked on his
press, Foreman Dan Russo came up and told Vessels to
quit talking and to do his job. Vessels was not engaged
in conversation concerning the Union. It was apparently
a social conversation. Vessels testified in general terms
that there is no rule against talking to fellow employees.
There is insufficient evidence on which I can conclude
that similar type conversations have been knowingly tol-
erated prior to the union campaign . I do not consider
Russo's conduct unreasonable, particularly in view of
Vessels' history of past warnings for poor work perform-
ance. Accordingly, I do not find that the Respondent re-
stricted Vessels' communications within the plant be-
cause of his union activities.
The only other arguable incident involving restrictions
of employee movement and speech, except for the assist-
ant personnel manager 's innocent cautionary parking lot
warning to Martha Langdon that is discussed elsewhere
herein, involves the events of March 20. On that day the
election was originally scheduled to have been held, but
the Board agent did not appear at the scheduled time.
Third-shift press operators who had waited to vote after
their shift ended were purportedly restricted in their
movements and communications during the period when
Respondent was attempting to ascertain why the Board
agent had not appeared. The General Counsel and Re-
spondent witnesses testified that confusion reigned that
morning . The election, of course, was conducted the
next day.
Third-shift press operator Jesse Bates testified that he
was among some third-shift employees who were told to
leave the plant and return later, and who, in fact, re-
turned at 9:30 a.m. and went into the lunchroom where
they waited for about 1 hour. Bates testified that some
3 The complaint , par 5(a), alleges that on February 20 Respondent
placed a disciplinary writing in the personnel file of employee William
Vessels However, Vessels' testimony reveals that he received only the
notations for the cafeteria incident and the lunchroom incident in the
preelection period and that they occurred in March
auxiliary third-shift employees, however, were permitted
to work, but that he did not ask for permission to work.
He testified that no one told him that he could not leave
the lunchroom, but that whenever he left to go out for
something , e.g., a soft drink at another vending machine,
Supervisor Corbett told him to return to the cafeteria be-
cause he did not want the third-shift employees wander-
ing in the plant when not working.
William Jordan testified that he also was in the group
of third-shift pressmen waiting in the lunchroom. He tes-
tified that they were "not allowed" to leave the lunch-
room. He explained that he tried to leave the room on
one occasion for the purpose of talking to working first-
shift pressmen when he encountered Supervisor Voight
who told him to stay in the cafeteria until it was decided
whether the election would be held. In general terms,
without explication of context, he testified that on other
occasions when not "on the clock" he entered the plant
and talked to pressmen.
I cannot conclude, based on the foregoing evidence,
that the Respondent treated prounion activists in a dis-
parate manner by restricting their movements or ability
to speak to other plant employees. There is insufficient
evidence on which to conclude that past practice permit-
ted nonworking employees to freely travel about the
plant and to converse with working employees. The
credible evidence is otherwise. Assuming that the Re-
spondent believed that most third-shift pressmen were of
a prounion attitude, I cannot conclude that it imposed
the foregoing restrictions because of an attempt to inter-
fere with protected concerted activities. Obviously, the
Respondent had justification to restrict their movements
on that morning for the purpose of maintaining a sem-
blance of order amidst the confusion arising from the
nonappearance of the Board agent . There is no evidence
that the same third-shift employees, unlike the press op-
erators, who had work available on the first shift and
who were assigned work, were known as antiunion ac-
tivists. Accordingly, I find this allegation to be without
merit.
5. February 25, 1980 verbal warning to employee
Donald Wentz-Case 9-CA-15126
Donald Wentz was a first-shift press operator during
the time material. He was supervised variously by Fore-
man Frank Hobbs, Pat Downs, and Keith Ruel. Wentz
was among five employees who originally contacted
Union Organizer Thomas Puckett on January 9, and he
was among that group of prounion activists who solicit-
ed employees to sign union authorization cards and who
distributed union literature, including the attempted in-
plant distribution of February 12. His union sympathies
at least as early as February 12 were well known to the
Respondent.
The Respondent's work rules provide for bereavement
leave for family members but does not extend to neph-
ews and nieces. The Respondent's progressive discipli-
nary system provides for verbal notification as the first
step in a four-step procedure that can result in termina-
tion . Employees with excessive absenteeism, i.e., a cer-
tain number of days within a prescribed period, are sub-
UARCO, INC. 71
ject to discipline. Donald Wentz' supervisor at the time
material herein, Charles Downs, had been a supervisor
for several years and had enforced Respondent' s absen-
tee policy by having issued verbal notifications to 50 em-
ployees for breach of Respondent's absentee policy over
that period of time. He enforced the policy without ex-
ception.
On February 20, Donald Wentz took a day of vacation
leave . On that day, Todd Clemons, son of Supervisor
Diania Gail Clemons, sister to Betty Wentz, died unex-
pectedly and tragically. Subsequently that night Clemons
was telephoned by Personnel Manager Kirchman. Cle-
mons testified that during that conversation she asked
Kirchman to tell the supervisors of Betty and Donald
Wentz that they would not be in to work the next 2
days, but that nothing was stated as to how their absence
would be recorded. Kirchman testified that Clemons in-
formed him that the Wentzes would not be in to work
because of the funeral and wake and that he told her to
tell them not to worry about how to take their time, i.e.,
whether they wanted to take a vacation or take it as an
absence , but that it would be resolved when they re-
turned to work at which time they could discuss it with
their supervisors. Despite her prior reading of Wentz'
testimony, Clemons testified with hesitancy and lack of
certitude that she telephoned the Wentzes and spoke
with Don Wentz and told him that she had talked to
Kirchman and had asked him to contact their supervisors
so that they would not be required to make a telephone
call. She testified to nothing further in that conversation
but did not deny that more was said.
Don Wentz testified:
My wife said I received a phone call from Gail Cle-
mons . . . and that she had been in touch with
Dave Kirchman . . . [and] that-we could-if we
felt we needed the time off for bereavement, do so
and that Mr. Kirchman would take care of it.
In view of Wentz' greater certitude in recalling the con-
versation, I credit him and find his recollection as to this
aspect more reliable than that of Clemens who was in
emotional distress at the time of the events and who ex-
hibited, understandably, some distress at the time of the
trial. I also credit the testimony of Kirchman that was
certain, responsive, and convincing as to this incident. I
conclude that Kirchman did not authorize Clemons to
grant an exception to the bereavement leave policy but
that due probably to Clemons' distress, Don Wentz re-
ceived a somewhat different message. There is no evi-
dence of past exceptions to the bereavement policy.
The next morning, according to Kirchman's testimony,
he informed the supervisors of the Wentzes that they
would be absent that day, Thursday, and would not
report until Monday and that the supervisor should dis-
cuss with the Wentzes how they wanted to take the
time, i.e., an absence or vacation. Kirchman did not
recall the name of Don Wentz' foreman at the time, be-
cause of a rotation system it is not the same person, but
he testified it was the unit press foreman for that shift
and Don Wentz' immediate supervisor. Clearly Downs
was Don Wentz' foreman.
Don Wentz' prior absences for the year had brought
him to the point where the additional absences made him
liable for disciplinary action. Wentz conceded that he
was aware of Respondent's bereavement policy. Subse-
quent to his return to work, he received a first discipli-
nary warning for these absences from Foreman Downs.
Wentz testified that on notification from Downs that he
would be receiving a first-step warning he protested that
he had been granted permission from Kirchman. Downs,
who was not employed by Respondent at the time of the
hearing, testified credibly without contradiction on this
point that he responded to Wentz that he was unaware
of any exception to the bereavement policy granted to
Wentz from Kirchman, and that Wentz' absence for be-
reavement purposes did not fall within the bereavement
policy. Wentz did not attempt to claim his absence as va-
cation leave. Thereafter, Donald Wentz received a first-
step warning for excessive absence.
I conclude that Kirchman did not grant Wentz an
excuse from Respondent's bereavement leave policy.
There is no evidence that refusal to grant an exception
constitutes disparate treatment. Assuming that the Gener-
al Counsel is correct in the argument that the Respond-
ent maintained a hostility to Wentz because of his union
activity, it is unlikely that such exception would have
been granted. Despite Wentz' impression of Clemons'
telephone message , he was not in fact granted an excep-
tion. The first-step disciplinary warning he received
thereafter was in accord with past practice and was not
disparate treatment. Accordingly, I cannot conclude that
he was discriminated against because of union activities.
6. April 9, 1-day suspension of employee William
Vessels with pay-Case 9-CA-15218, paragraph
5(b)
Employee William Vessels, as noted elsewhere in this
decision, was a union supporter whose prounion activi-
ties were known to the Respondent. Over several years
and prior to his union activities, Vessels had developed a
work record that manifested numerous disciplinary warn-
ings, including warnings for poor work performance that
put his job in jeopardy in late 1979. In early 1980, he
continued to receive such warnings. His poor work
record is conceded.
Early on April 7, Vessels was suspended for the bal-
ance of the day with pay, a step-four discipline, by Man-
ager Voight who reviewed with Vessels his preceding
13-week work average that was rated at 70 percent and
far below his press objective of 86 percent. The only
substantive evidence of inconsistent treatment appears to
be the treatment accorded press operator Jimmy White
who during the campaign wore a "UARCO" button. On
return from suspension Vessels testified that Voight told
him that during the 4-week period before his suspension
he had dropped to a production average of 60 percent
(admitted as accurate by Vessels) and that he had better
bring it up to 80 percent. Vessels testified that prior to
April 7 he had inspected the production records and also
the recorded 13-week averages. He testified that Jimmy
White was running 37 percent the week before the elec-
tion compared to Vessels' 66 percent, and that for other
72 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
weeks White was in the 40s and 50s. However, Vessels
was unaware of White's 13-week average that is the
standard period of evaluation. He conceded that when
White achieved a 37-percent average White was assigned
to a newer, bigger press while Vessels had been judged
on his work on his routine, normally assigned press, i.e.,
his "home press."
White did not receive any discipline. However, al-
though Vessels had a production rate of 70 percent for
the 13-week period ending March 30, the last week of
which was 62 percent, White's average was 84 percent.
The General Counsel relies on the fact that during the
last 5 weeks of the 13-week period White's average was
lower than Vessels' average. For the week ending March
23, White's weekly average was 32 and 87 percent for
the prior 13-week average. Vessels' averages were 59
and 71 percent. For the week ending March 17, White's
averages were 50 percent for the week and 91 percent
for 13 weeks, wherein Vessels had 65 percent for the
week and 72 percent for the 13 weeks. For the week
ending March 9, White had a week's average of 50 per-
cent and a 13-week average of 95 percent, where Ves-
sels' averages were 61 and 73 percent. For the week
ending March 2, White's week average was 78 and 96
percent for the 13 weeks, whereas Vessels' averages
were 79 and 73 percent. Vessels worked on his home
press, i.e., the press he was most familiar with, more
often than did White work on his home press.
The General Counsel argues that White's performance
was poorer for the same period during which Vessels
was evaluated. However, Vessels' own testimony indi-
cates he was evaluated and was given discipline based on
his 13-week average and because he did not demonstrate
progress. Bramble's testimony that the 13-week period is
the only evaluation period used for employees is uncon-
tradicted and credible. There is no evidence of past work
problems of White comparable to Vessels' poor perform-
ance. Based on the record, I cannot conclude that Ves-
sels was treated disparately and therefore discriminated
against because of union activities. I find this allegation
to be without merit.
7. April 7 refusal to recall from layoff employee
Langdon-Case 9-CA-15218, paragraph 5(a)
Martha Langdon began her employment with Re-
spondent on April 23, 1979, as a temporary part-time em-
ployee, a group of about 10 who were periodically called
by Respondent to assist regular full-time employees
during peak periods of production. Langdon was utilized
on the third shift under Foreman Gary Sharp, Jim Ke-
plinger , or Dick Franklin, but she worked directly under
section leader Lou Hendley. She was laid off from about
January 21, 1980, but was recalled with other laid-off
temporary employees on February 19, 1980, and was
again laid off with other temporary workers on March 6.
It is her credible and uncontradicted testimony that be-
tween February 19 and March 6, she had received no
complaints of her work and had not missed any work. In
1979, she had missed about 41 hours of work. In October
1979, she was told by Foreman Sharp that her work was
excellent . At Christmastime 1979, section leader Hendley
told her and her coworker Lowery that they were per-
forming work of good quality. She and coworker
Lowery were told by Foreman Franklin in 1979 that
their work quality was excellent but that their emphasis
on quality caused them to be too slow in production.
Langdon was not recalled to work in April 1980, ac-
cording to Plant Manager Bramble, because of poor
work performance. Bramble, however, relied on the
judgment of General Foreman Kenneth Gardner as to
whether part-timers were to be recalled. According to
Gardner, he made the decision to terminate Langdon on
April 10, shortly after other temporary employees of
lesser seniority were recalled. In the past Langdon had
been recalled to work prior to coworker Lowery who
had less seniority. Lowery and eight others had been re-
called by April 10, Altherton, who was more senior than
Langdon, was notified of a recall but she had quit.
General Foreman Gardner testified that it is he who
decides whether a temporary employee will be recalled,
and that he relies on reports from the foremen and sec-
tion leaders regarding the employees' work performance,
attendance, and general work attitude. These reports
take the form of written evaluations in the form of a
ranking in preference of temporary employees by the
section leaders. He also receives oral reports. On No-
vember 29, 1979, Langdon was rated 6 of 12 by Foreman
Sharp and 7 of 12 by Foreman Franklin. On January 8,
1980, Langdon was rated 15 of 16 on the second shift by
section leader Ratliff and 7 of 11 by section leader L.
Hendley for whom Langdon regularly worked on the
third shift. Section leader Odell Payton, for whom Lang-
don did not regularly work because Payton was on the
first shift, rated Langdon on January 8, 1980, as 9 of 11.
The only subsequent written rating for Langdon is dated
April 11, 1980, and was composed by first-shift group
leader Payton, again not Langdon's regular third-shift
section leader. The third-shift group leader was Hendley
Payton rated Langdon as 10 of 10. There is no explana-
tion for the absence of a rating of Langdon in April by
any other foreman or group leader, particularly Hendley.
As noted, despite or because of Langdon's ratings and
work performance and despite her attendance record,
she had been recalled in February 1980. In 1979 and
again in 1980, Langdon had worked in the finishing de-
partment after an earlier transfer from another depart-
ment. This transfer was admitted by Gardner to have
been in recognition of her superior talent. Coworker
Lowery was not similarly transferred.
The Respondent contends that Langdon's work dete-
riorated so badly thereafter that she was terminated.
Gardner testified in a confused, evasive manner with
some degree of vacillation concerning the basis for his
decision to terminate Langdon. First he testified that he
did not need her, but then he testified he did not need
her because of his low opinion of her work. The basis
for Gardner's opinion in part rests, according to him, on
ratings preceding the April 11, 1980 rating; her attend-
ance record; and work performance I find this explana-
tion not credible in light of Langdon's earlier recall in
February 1980, prior to the outset of any union activity,
and in light of the generally good earlier ratings by sec-
UARCO, INC 73
tion leaders most likely to be familiar with her work,
e.g., the third-shift section leader.
Gardner testified that his decision was based on three
factors: attendance, work performance as revealed by the
ratings, and attitude. However, her attendance after her
recall in 1980 cannot be faulted and the only rating, i.e.,
the Payton rating, was admittedly not seen by Gardner
until after he had decided to terminate Langdon on April
10, a date he testified on which no precipitating event
occurred. Gardner testified that he last discussed Lang-
don's work performance with section leader Payton
prior to the discharge but that the conversation occurred
in late December or early January 1980, before her Feb-
ruary recall. He further testified that it was reported to
him that since her last pre-March rating Langdon had
developed a bad attitude. After some probing and vacil-
lation, on cross-examination he testified that this was re-
ported by more than one group leader. However, there-
after he testified that between the December 1979 and
January 1980 conversation with Payton and April 11,
1980, he recalled no complaints about Langdon's work,
although he did receive some complaint of Lowery's
work during that time. Gardner admitted that there
never had been a return from the customer of work per-
formed by Langdon despite returns caused by poor
workmanship of other temporary employees in 1979 and
early 1980.
There is no delineation by Gardner, nor any other wit-
ness about what manifestation Langdon's bad attitude
took and just how he became aware of it. No foreman or
group leader testified concerning her work performance
or attitude. On the contrary, Langdon worked a high
amount of overtime, which Gardner admitted was a sign
of positive work attitude. It is clear from the foregoing
analysis that Langdon was discharged, not because of
any deficiency in attendance or in work performance,
but because of some attitude of which the Respondent
did not approve. The General Counsel argues correctly
that the only evidence of any unusual manifestations of
attitude by Langdon during the critical period of time
was that of a prounion attitude as reflected by her active
participation in union activities despite her noneligibility
to vote in the election. Among other activities, Langdon
signed an open letter that espoused the union cause and
that was addressed and distributed by her and others to
fellow employees as they entered the Respondent's plant.
No other temporary employees were seen to engage in
similar activities.
Two days prior to the March 4 layoff Langdon assist-
ed Union Organizer Puckett and others in distributing
leaflets in the Respondent's plant parking lot. Langdon
drifted away from the main road area where the other
employees were leafleting to a place near the employees'
plant entrance. Assistant Personnel Manager Lewis ob-
served her from within, and came out and invited her to
return to a place nearer the road where he observed
there was less auto traffic and thus less danger of being
injured by parking lot auto traffic that was heavy at that
shift change time. Puckett observed the conversation
from afar and thereafter requested, via employee Wentz,
that Lewis come out again whereupon they engaged in a
conversation wherein Puckett asserted Langdon's right
to distribute literature. According to Langdon, Lewis
agreed that she had the right to distribute union litera-
ture but he did not want her to be injured by the auto
traffic. He did not instruct her to cease distribution of lit-
erature. Thus the Respondent became aware of Lang-
don's prounion attitude and union activities, and such
awareness appears to constitute the only palpable basis
for a change in Respondent's preception of employee
Langdon's attitude.
I conclude that the Respondent's termination of Lang-
don is so contrary to its past practice and the reasons of-
fered so patently frivolous and insubstantial that I am
constrained to conclude that it acted pursuant to another
illegal motivation, i.e., her manifestation of a prounion
sympathy and activity during an election campaign in
which the Union was vigorously resisted.
Accordingly, I find that by terminating Martha Lang-
don on April 10, 1980, because of her union attitude and
activities, the Respondent violated Section 8(a)(1) and (3)
of the Act.
C. Employee Committee-Case 9-CA-15277
The essential facts concerning the Employee Commit-
tee is undisputed and rests on the credible and uncontra-
dicted testimony of employee and past committee
member Aurelia Bates. The committee consists of em-
ployee representatives of each department and shift in
the plant and office for a total of about 15 or 16 employ-
ee members . The committee has no written constitution
or bylaws except for a brief general description typed on
Respondent's letterhead . How the committee was cre-
ated is unknown . Elections to membership in the com-
mittee is noticed by postings on the plant bulletin board
that solicit interested candidates to inform the Respond-
ent's personnel manager of their interest . Elections are
normally conducted in June . Elections are conducted by
the personnel manager during worktime . A recent elec-
tion was conducted in the finishing department at the
foreman 's desk by secret ballot, in the presence of a per-
sonnel department manager . Similarly conducted elec-
tions have been held in a conference room in the finish-
ing department. Employees were told by the foremen
that they may vote if they wish . Ballots and ballot boxes
are maintained in the custody of the personnel director.
Monthly committee meetings are noticed on the plant
bulletin board and are held in the plant lunchroom. No
meeting was held in March 1980 inasmuch as no notice
was posted on the plant bulletin board . These meetings,
which usually last about 2 hours, are held during work
hours and those members who attend outside of their
shift times are paid. The committee never meets without
the presence of the plant manager and personnel direc-
tor. Attempts by committee members to meet and discuss
among themselves without the presence of Respondent
managers have been discouraged by Respondent. The
committee has not met outside the plant independently
from Respondent 's supervision.
During committee meetings , its deliberations and open
voting on issues take place in the presence of Respond-
ent's managers . The committee chairperson is designated
by voting supervised by Respondent's managers. On at
74 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
least one occasion a personnel manager served as chair-
person on failure of the committee to designate a chair-
person. All minutes are prepared by the plant manager's
secretary who also attends the meetings. Employee mem-
bers are given an opportunity to correct the instant draft
of the minutes. The first typed minutes are then made
available at the foreman's desk.
The committeeperson attempts to resolve the employ-
ee grievance directly with the foremen. Failing resolu-
tion at that level, the committeeperson will present the
employee grievance to management at the monthly meet-
ings . Individual questions and grievances concerning in-
dividual wages, pay raises, step increases, cost-of-living
increases, and working conditions have been raised at
these meetings and directed to the plant manager for res-
olution. Some were resolved and some were not, e.g.,
Respondent agreed to floormats for employees, Christ-
mas favors, and/or an icemaker in the lunchroom. Bates,
on behalf of employees in her department, and other
members, complained of the lack of a parking lot, and
requested construction of a fence or the hiring of a secu-
rity guard at meetings in 1979 and early 1980, but was
told by the plant manager that it was too expensive.
About 1 month after the election, construction com-
menced on a parking lot fence and at a committee meet-
ing it was announced how and when the gates would be
operated.
At the preelection series of employee meetings con-
ducted by the Respondent in early March, several com-
plaints were raised by employees regarding the lack of a
parking lot fence. Bramble testified that such persistent
complaints have been raised by employees at general
plant meetings since 1976, to which Respondent periodi-
cally promised to "look into it." In 1977 or 1978, Re-
spondent for a time utilized, without apparent success, an
outside security service patrol. Bramble testified that
within the "last couple of years" Respondent solicited
prices on fences, i.e., prior to 1980. However, the prices
were considered to be too high and Respondent conclud-
ed that a fence would not necessarily solve all the securi-
ty problems. During the preelection employee meetings,
according to Bramble, employees asked why the Re-
spondent did not do anything to correct the lack of park-
ing lot security, to which he responded: "We would cer-
tainly take a look at it." Bramble testified that "right
after the meetings" he solicited bids and arranged for the
construction of the parking lot fence. He did not explain
why the past decision not to erect a fence was suddenly
reversed during the election campaign.
During the winter of 1979-1980, Saturday overtime
was mandatory. Complaints about mandatory overtime
were raised by committee members at the meetings, but
Bramble rejected the complaints, stating that the work-
load made it necessary. About 1 month after the election
at an Employee Committee meeting the Respondent an-
nounced that the policy of mandatory Saturday overtime
would cease. Thereafter, Saturday overtime became vol-
untary.
At the April meeting the Employee Committee was in-
formed by the chairperson that "it had been decided to
form a subcommittee to review the seniority policy."
Questions concerning employee security had been raised
at the preelection meetings, where one employee asserted
that seniority did not count for much. Five employees
were voted to serve on the subcommittee, and were
given permission by Bramble to hold separate meetings
for the purpose of coming up with a new policy. It met
twice a week for 3 or 4 weeks in the lunchroom, and
lastly with Bramble and Kirchman in an office next to
Bramble's office. The subcommittee proposal was reject-
ed by Respondent at that last meeting, after earlier pro-
posals had also been rejected. On May 14, 1980, Re-
spondent posted the following notice in its plant:
SENIORITY POLICY
TO ALL EMPLOYEES
During the employee meetings there were several
comments made regarding our seniority policies
particularly regarding layoffs or cut backs. A sub
committee of the Employee Committee was formed
to review the policies for possible revision.
To date the Committee and the Company have
not reached agreement on a proposed policy revi-
sion to present to all employees for a vote.
Nationwide business conditions have reached a
point where it will probably require a reduction in
our work force.
Until we are able to bring a proposal to vote, we
will use our current policy with the following revi-
sions:
1. Work performance will not be a reason for
layoff or bumping to a lesser job.
2. People bumped back will take back their accu-
mulated seniority on their present job to their new
job. This cumulative seniority would count for any
future bumping or layoffs, but only previous time in
that job would count for shift preference. This
change will be retroactive so that anyone previous-
ly moved to another job by the Company will not
be penalized.
Bates resigned her committee position in July 1980
after her reelection by the first-shift employees. At the
time of resignation she was working on the second shift
and her resignation was precipitated by Personnel Man-
ager Lewis' statement to her that first-shift employees
had complained that she now worked on the second
shift.
The Respondent contends that inasmuch as the Em-
ployee Committee was an unstructured entity that func-
tioned in an unstructured manner that it was not a labor
organization within the meaning of the Act. Section 2(2)
of the Act defines as a labor organization:
[A]ny organization of any kind, or any agency or
employee representation committee or plan, in
which employees participate and, which exists for
that purpose, in whole or in part, of dealing with
employers concerning grievances, labor disputes,
wages, pay, hours of employment, or conditions of
work.
UARCO, INC. 75
In NLRB v. Cabot Carbon Co., 360 U.S. 203 (1959),
the Supreme Court held that the term "dealing with" is
not coextensive with the less comprehensive phrase "bar-
gaining with." Therefore, the absence of any "bargain-
ing" in the usual sense of that word is immaterial. It is
well settled that the phrasing of the statutory definition
is in the disjunctive. Accordingly, "dealing, with" an em-
ployer concerning one (or more) of the matters enumer-
ated in Section 2(5) is a function sufficient in itself to
constitute an entity as a labor organization within the
meaning of the Act. I conclude that the Employee Com-
mittee, by meeting with the Respondent in a representa-
tive capacity, to present and discuss complaints of condi-
tions of employment, in fact did function as a labor orga-
nization Bristol Products, 238 NLRB 1695 (1978).
Based on the foregoing facts, I conclude that the Em-
ployee Committee was and is unlawfully assisted and
dominated by the Respondent inasmuch as the Respond-
ent totally controls and participates in the mechanics of
its election of members, and its meetings. The committee
has no operative existence save for the sufferance of Re-
spondent.
By unlawfully dominating and assisting the Employee
Committee since November 1979, the Respondent has
violated Section 8(a)(2) and (1) of the Act. St Vincent's
Hospital, 244 NLRB 84 (1979); Kux Mfg. Corp., 233
NLRB 317 (1977); Rideout Memorial Hospital, 227
NLRB 1338 (1977).
I further conclude that the Respondent violated Sec-
tion 8(a)(1) of the Act by promising the Employee Com-
mittee members that it would improve working condi-
tions by agreeing to establish a seniority subcommittee at
a time when a question concerning representation was
still pending. I further find that the Respondent violated
Section 8(a)(1) of the Act by the elimination of mandato-
ry Saturday overtime and the erection of a fence, at a
time when a question concerning representation was
pending. Clearly the promise to change the seniority
system, the elimination of Saturday overtime, and the de-
cision to construct a fence were the result not of any
predetermined action, but came about in response to
longstanding employee complaints reiterated during the
election campaign. The utilization of the committee in
assuaging these complaints constituted art effort to erode
further any support for the Union and to enhance the po-
sition of the unlawfully dominated Employee Committee.
The Respondent cannot justify its conduct by asserting,
as it does, that it was merely doing what it had done in
the past, i.e., adjusting complaints by dealing with the
committee because the committee itself was unlawfully
assisted and dominated . Further, the Respondent cannot
argue that because it has a past history of remedying
complaints raised outside of the Employee Committee
that it merely continued its past practice. The timing of
the decision to remedy those complaints of longstanding
history and the involvement of the committee can only
lead me to believe that they were done for the purpose
of destroying any support for outside union representa-
tion Particularly significant is Bramble's sudden rush to
get a fence erected after a preelection campaign decision
that such a fence was too costly.
D. Coercive Literature and Statements at Employee
Meetings-Case 9-CA-15126, Paragraphs 5(a) and (b)
1. Literature
The complaint alleges that during the preelection cam-
paign the Respondent distributed literature that threat-
ened employees with loss of jobs, benefits, and plant clo-
sure and that implied the futility of selecting the Union
as bargaining agent.
On February 27, the Respondent commenced preelec-
tion communication with its employees by means of a
series of 10 letters and 13 fact bulletins, which were dis-
tributed by foremen and which were posted on bulletin
boards throughout the plant and posted at employee en-
trances to the plant.
The Respondent argues that its literature simply stated
(1) a correct statement of the law as to replacement of
strikers, (2) that a union at its Cleveland, Ohio plant had
played a part in the closing , (3) that the Union herein has
struck in seven plants that later closed, (4) that this
Union could have a harmful effect at Radcliff plant be-
cause of a proclivity to engage in strikes, (5) that unions
had played a part in the closing of its Oakland, Califor-
nia plant , (6) that the law does not guarantee that with a
union benefits cannot be lost in bargaining, (7) that with
or without a union a plant may close for economic rea-
sons, (8) that the law does not force an employer to sign
a contract, and (9) that strikes can and do happen, but
are not inevitable.
The Respondent cites various Board decisions in sup-
port of the propositions that it is not unlawful for an em-
ployer to state that strikes happen, that with a strike and
loss of customers, a plant may have to close, the steps an
employer would have to take as a matter of economic
necessity if forced into an uneconomic position by a
union, and that work can be subcontracted, particularly
in view of Respondent's past history of subcontracting,
and that if costs become excessive at one location one so-
lution is to move to a less costly area. The Respondent
contends that "(1) every assertion that was made as a
fact was true, and (2) the Company never said it would
take any action of any kind for vindictive reasons, but
only that certain actions were possible for solely eco-
nomic reasons."
The February 27 letter announced the scheduled
March 30 election and stated , inter alia:
Just about every UARCO person knows how the
Company feels about outside unions , we believe
most sincerely , that by working together, without
an outside union , we can accomplish the best
wages , the highest benefits and the most genuine
job security-for everyone ! From past experience
with outside unions , we truly believe that outside
unions do not help-but instead they do harm.
The letter ended by announcing a series of voluntary
plant employee meetings for "free and open discussions"
at which employees were urged to make comments and
to ask questions.
The March 4 fact bulletin stated , inter alia , that "a
company is obligated to bargain-nothing more," and
76 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
that an outside union could win an election and "yet not
really gain anything at all," and that could happen and
"In Fact, It Has Happened Right In Uarco."
The March 5 letter stated, inter alia:
2. Some people seem to think that this particular
outside union can force UARCO to do things that
we have never done-that no other union has been
able to force us to do-anywhere!
The letter then urged employees not to let "this outside
union force you and your Company into a knock-down
and drag out fight," wherein only the employees and
Company can lose. The letter ended:
This is so important-so vital-to the existence of
the Radcliff plant-that we'll follow up with more
Facts that have to do with the very existence of
your job!
Yes-But too Many to include In a Fact Bulletin.
We'll Put the Facts In a letter.
The March 12 letter listed seven plants , their locations,
the fact of moving, and loss of jobs in answer to the
posed question "-has this same outside union, the
UAW, forced companies to close plants?" No context
was given for the bare facts noted about the closings
subsequent to a strike . During the March preelection
period the Respondent posted 14 2 -1/2-by-3-feet-sized
posters on the plant lunchroom walls. Each poster con-
tained the names of 10 employers and the corresponding
number of weeks each employer was subjected to a
strike conducted by the UAW. No other facts were de-
lineated.
The March 12 fact bulletin posed the question:
The outside union keeps saying we can't lose any-
thing if the union gets in. Is this true?
The March 5 fact bulletin stated that "with an outside
union" there was a risk of union-forced strikes that the
Respondent had experienced.
The March 6 fact bulletin purporting to contain a
short Supreme Court statement without context stated
that "The United States Government And The National
Labor Relations Board Do Not Guarantee-That [Employ-
ees] Will Lose No Benefits," in answer to the posed ques-
tion "If an outside union gets into a plant , doesn't the
government guarantee that employees can't lose what
they already have?" The bulletin then asserts that em-
ployees "can lose with an outside union." There is no
reference to bargaining, nor any other qualification to
these remarks. However, the March 7 fact bulletin con-
tains the following purported cryptic quotation from an
NLRB decision:
There Is No Requirement In the [Law] That An Em-
ployee-after Bargaining Retain All Present Benefits.
Nor Does The Presence of A Union Prohibit An Em-
ployer From Moving Its Plant Should Economic Con-
ditions So Dictate [also], An Employer may Perma-
nently Replace Economic Strikers. [John E. Cain Co.,
190 NLRB 109 (1971).]
The March 10 letter proposed a series of questions that
employees ought to ask about the Union, including
whether it has had "over a thousand strikers in, say, the
last five years," and other questions whether the Union
or company "forced" the strikes, and other questions re-
garding loss of jobs due to strikers.
The March 10 fact bulletin referred to Respondent's
Cleveland plant and stated:
Cleveland Was A Unionized Plant . In Fact, If It
Hadn 't Been For The Outside Union, We Probably
Wouldn't Have Been Forced to Close the Plant-
Permanently.
The March 11 fact bulletin alluded to the Cleveland
plant and in answer to a posed question whether there
were any plants , "this UAW has caused to shutdown,"
stated
The answer given was:
No-Because It Does Happen. Last Friday You
Read Where The Law Said This Was Legal.
In answer to a posed question the bulletin asserted that it
"really happened" and "at UARCO." As to whether it
happened "to the UAW" the bulletin asserted
You Be the Judge! Here Is a Direct Quote From
the UAW President at Telex-after 11 Lost Strike
Paycheck: Every time We Met With The Company
They'd Take Something Else Away From Us!
No context was given for that quotation. No assurance
was given that the Respondent would bargain in good
faith, no assurance was given that the Respondent would
not take a regressive bargaining posture.
A March 12 letter contained a quotation of a statement
by Respondent Vice President James Brown wherein he
extolled the virtues of Respondent's benefits at the Rad-
cliff plant and then stated:
The Company now is threatened by the UAW,
which has a sad record of closing plants in Ken-
tucky and forcing plants to leave Kentucky. We
have every confidence that the majority of UARCO
people will vote their confidence in the Company
and avoid the risks to their jobs that could be
forced by the UAW.
There is no explanation in that quotation as to why
Brown perceived the Union's future, and as yet undis-
closed bargaining position, to have constituted a threat to
Respondent's Radcliff operation, other than the reference
to an alleged "sad record of closing plants in Kentucky."
That reference was made without a context of the rela-
tive bargaining positions of the parties in those other
plants.
The March 13 fact bulletin contained two purported
quotations of employee statements at the ongoing series
of plant meetings that reflect the desire of one employee
to have the option to engage in a strike and the other
employee's observation that the Union's power is pre-
UARCO, INC. 77
mised on the ability to threaten a strike. The bulletin
concludes that
Before you vote, you are entitled to know how anx-
ious some of your fellow-employees are to cause a
strike-and put you out of work.
The bulletin contained no quotation from the more than
200 other employees at the Radcliff plant.
The March 14 letter stated:
Dear Fellow Employee,
Until a few years ago, UARCO had a plant near
San Francisco. It was a unionized plant. It was a
long, never-ending battle.
Finally, the strike began. Some of the union de-
mands were for such things as union-type insurance,
union-type pension plans, union-type sick pay plans,
union-type vacations, union-type cost-of-living plans,
etc., etc.
We explained, over and over, that we didn't do
such things. We explained that the unions that were
in a part of the Chicago plant and a part of the
Watseka plant didn't have such things. We ex-
plained that in all plants, with or without unions,
we have the UARCO sick-pay plan, the UARCO
pension, that we don't have a cost-of-living plan-
anywhere.
But the union bosses didn't believe us. The strike
kept on. The strike cost a lot of money-and lost a
lot of business. But we never gave in. THE PRIN-
CIPLE WAS MORE IMPORTANT THAN ANY
ONE PLANT!
Finally, it got so bad we were forced to close the
plant. We moved, as you know, to Roseburg,
Oregon. And not one single union member went
along. There is no union at Roseburg.
What happened? A union trying to prove how
"tough" it was, cost the union members their job-
permanently.
We have never been forced to close a non-union
plant.
The letter did not assure that the Respondent would
enter the bargaining process with an open mind, and not
with a fixed determination that certain employment bene-
fits were nonnegotiable. The letter did not, as of course
it could not, set forth what the specific bargaining pro-
posals of the Union would be in the event that it became
the designated bargaining agent. Moreover, the March
14 letter did not give the reader the advantage of a fuller
explanation of circumstances and conditions unrelated to
collective bargaining that led to the Oakland plant clo-
sure. Robert Trillet, Respondent Watseka plant manager
and in 1970 manager of the Oakland plant, testified that
the Oakland plant in 1970 was involved in negotiating
new contracts with five labor unions in a context of mul-
tiemployer bargaining, against a 30-year history of bar-
gaining with those unions, and that in 1970 a 5-day strike
ensued after purported illegal strikes , work stoppages,
and threats to employees occurred. He testified that in
view of those circumstances "plus the economics of the
plant, the high cost of the plant; also, the area in which
the plant was located, which was a safety factor, we felt,
to our employees due to the deterioration of the area,
these events led us to the determination to stop the oper-
ation of the plant."
The March 15 letter alluded to the purported state-
ment made at a plant meeting that Respondent had
moved a certain product line, the E-Z Out product, from
its Chicago plant to Radcliff because its Chicago oper-
ation was losing money. The letter then observed that it
is still running at a loss and that if the Radcliff plant
could not make a profit with that product "there are
hundreds of towns that would love to have the Radcliff
plant. For example, towns in Arkansas, Oklahoma, Mis-
sissippi, etc., are constantly trying to get new plants." To
the posed question as to what those observations "have
to do with this outside union?" the letter responded:
Everything. Because if this Union did get in here,
and the union caused us to lose even more money,
the Company would probably be better off to go
somewhere else.
The choice is up to you.
In light of the entire series of letters and literature that
refer to the purported bargaining position of the Union
at other plants, this letter clearly puts the reader in the
position of not merely deciding on union representation,
but on designating a bargaining representative that will
take a bargaining stance adverse to the economic viabili-
ty of the Radcliff plant. The use of the word "if ' does
not place this letter within the realm of mere speculation
of what might happen should certain bargaining positions
evolve. Rather, the letter contains an implied prediction
that dire consequences will occur as a result of the bar-
gaining position of the Union that is implied throughout
Respondent's propaganda as economically disastrous.
Having implied in its foregoing literature that the
Union is a strike-prone union, the Respondent again took
up the subject of "union forced" strikes in its March 17
letter where it began
Naturally, strikes are not inevitable. But union-
forced strikes do happen. And with the UAW they
happen very, very often.
The letter went on to set forth an employer's rights
during a "union-forced strike," i.e., the right to hire re-
placements for economic strikers, to maintain production,
to subcontract unit work to non-Respondent plants
where work has slowed and which also "would be glad
to get our work."
Up to this point there had been no definition by Re-
spondent of its term "union-forced" strike, i.e., is it a
strike forced by the union hierarchy on its constituency,
or a strike forced on the employer by the union hierar-
chy in compliance with the desires of its members, or is
it a strike forced because of the adamant bargaining posi-
tion of a union or a strike forced by a union because of
the adamant bargaining position of the employer, or does
it encompass strikes in protest of unfair labor practices,
etc. The March 17 letter ends by stating:
78 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
We don't want a UAW strike. We won't force one.
I'm pretty sure you don't want a strike either. But
the UAW has a habit of threatening "Do it our
way-or we strike."
This letter thus contains a clear implication that if em-
ployees designated the Union as bargaining agent, they
will end up in a strike forced on the membership. In
light of the entire context of Respondent's written propa-
ganda, the opening disclaimer does not detract from the
basic thrust of Respondent's predictions as to the certain-
ty of a strike by the Union herein on its designation as
bargaining agent. Furthermore, the letter, like the other
letters, does not assure the reader that the Respondent
would bargain in good faith, but rather stresses, instead,
a readiness to resort to available weapons to withstand a
strike, including the power to withdraw unit work from
Radcliff. Thus, as the reader was progressively exposed
to Respondent's literature, the most reasonable conclu-
sion that such person could reach was that the employee
would not be voting on the issue of union representation,
per se, but rather he would be voting on the issues of
necessarily resulting strikes and economic adversity.
The March 18 letter contains a purported quotation of
a single employee at an employee meeting to the effect
that "some people want to bring this outside union in to
punish the Company." The letter then sets up several
queries on the supposition that the Respondent refused to
agree to "certain" UAW demands. The reader is asked
whether that person wishes to "be forced" on a strike to
obtain a "union type cost-of-living program," or sick
days that it stated the Respondent "doesn't have any-
where, union or no union." It asks whether employees are
willing "to be forced" on a strike to obtain "super-se-
niority," or a "union shop," or for compulsory dues de-
duction.
The letter ended:
40
If You Vote for This Outside Union YOU MAY BE
LETTING SOMEBODY ELSE VOTE YOU OUT
OF A JOB!
With a recession-or depression-coming, please
think twice before you let someone else decide you'll
have a paycheck or not.
Again the letter does not assure employees that the
Respondent will negotiate with an open mind regarding
the above -referred -to lawful subjects of bargaining. The
prediction clearly implied therein is that the Union
would make certain immutable demands concerning
these subjects that the Respondent had predetermined
that it would reject and that would result in a strike
forced on the individual and that would therefore result
in a loss of jobs.
The March 15 fact bulletin stated in answer to the
posed question, "Besides a strike , what other force does a
union have?"
THE FORCE OF A STRIKE IS THE UNION'S
MAIN WEAPON.
Again, missing is any reference to a willingness to bar-
gain in good faith. There is no reference to the ability of
either party to persuade through reasoned argument.
Rather, in light of prior literature references to a prede-
termined adamancy in Respondent's bargaining position
and a presumed adamant union bargaining stance detri-
mental to Respondent's viability or adverse to Respond-
ent's "principle," the fact bulletin, in effect, constitutes a
prediction of strikes as the inevitable result of the
Union's designation as bargaining agent.
In the March 19 letter, Plant Manager Bramble com-
menced on a personal note and reflected on certain af-
firmative aspects of his labor management policy. He ob-
served that in union shops there exists an unfriendly em-
ployer-employee relationship "completely lacking in
trust." He urged:
I don't think you want this to happen here. I know
I don't. I feel sure that what you want is a friendly,
secure job. I feel sure you want your pay to in-
crease on a regular, secure basis. I know you want a
feeling of mutual respect.
On that same date the fact bulletin stated:
More questions-good! And more Facts!
1. Question: What has UARCO done at Rad-
cliff?
Facts : Made over 200 Good, Secure Jobs.
2. Question : What can the UAW do?
Facts: DESTROY THESE JOBS-IN-
CLUDING YOURS!
Within the context of the totality of Respondent's litera-
ture, I conclude that Bramble was not advising employ-
ees what might happen in the eventuality of circum-
stances beyond Respondent's control but rather he con-
veyed the message that what would occur if they chose
to be represented by the Union would be a stained, hos-
tile work environment for those lucky to survive and a
loss of jobs for the less fortunate. Accordingly, Respond-
ent's bulletin board poster bluntly proclaimed in large
black and red letters.
VOTE "NO"
FOR "NO" UNION-FORCED STRIKES!
FOR "NO" UNION-FORCED DUES!
FOR "NO" UNION-FORCED BITTERNESS
VOTE "NO"
"NO"
[X]
The foregoing literature was supplemented by the Re-
spondent with bulletin board postings that enumerated
the benefits the Respondent afforded to its employees
through the years 1976 through 1979, and the difficulties
the Union encountered in negotiating benefits for em-
ployees in other plants during the same time period as re-
flected in posters containing about 25 newsclippings re-
lating to UAW strikes, bargaining stalemates, and edito-
rials reflecting the adverse impact of strikes.
On March 18, Respondent placed the following full
page advertisement in the local newspaper, The News-
Enterprise:
UARCO, INC.
Open Letter
From
UARCOINCORPORATED
Radcliff, Kentucky
Next Thursday, March 20th, there will be a
union election in UARCO's Radcliff plant. UARCO
employees will decide whether to or not to bring
the United Automobile Workers Union (UAW) into
their plant.
UARCO is deeply concerned-and deeply op-
posed to having this outside union in the Radcliff
plant.
Why?
1. We are not in any way connected with the
automobile business-We print business forms.
2. If the UAW tried to force us to accept an
automobile-type contract, there is no way we could
afford to stay in business here.
3. The UAW has a long and tragic record-right
here in Kentucky-of forcing lengthy, vicious and
destructive strikes.
4. UAW strikes have driven plants-and jobs-
out of Kentucky!
UARCO came here eight years ago
-intending to stay! The only thought that could
drive us away would be economic losses-the kind
of losses that the UAW strikes bring with them.
If you have friends or relatives at UARCO,
please urge them, to vote "NO" this Thursday!-for
their own sake.
Thank You,
Mal Bramble, Manager
One of the four cases that the Supreme Court consid-
ered in NLRB v. Gissel Packing Co., 395 U.S. 575, 616
(1969), was NLRB v. Sinclair Co., 397 F.2d 157 (1st Cir.
1968), in which the Court of Appeals for the First Cir-
cuit enforced a Board order of bargaining within a con-
text of coercive preelection employer propaganda. The
Court discoursed on the free speech rights of an employ-
er and the rights to associate freely of the employees and
stated at 618-620:
Within this framework, we must reject the Com-
pany's challenge to the decision below and the fmd-
ings of the Board on which it was based. The stand-
ards used below for evaluating the impact of an em-
ployer's statements are not seriously questioned by
petitioner and we see no need to tamper with them
here. Thus, an employer is free to communicate to
his employees any of his general views about union-
ism or any of his specific views about a particular
union, so long as the communications do not con-
tain a "threat of reprisal or force or promise of ben-
efit." He may even make a prediction as to the pre-
cise effect he believes unionization will have on his
company. In such a case, however, the prediction
must be carefully phrased on the basis of objective
fact to convey an employer's belief as to demonstra-
bly probable consequences beyond his control or to
convey a management decision already arrived at to
79
close the plant in case of unionization. See Textile
Workers v. Darlington Mfg. Co., 380 U.S. 263, 274,
n. 20 (1965). If there is any implication that an em-
ployer may or may not take action solely on his
own initiative for reasons unrelated to economic ne-
cessities and known only to him, the statement is no
longer a reasonable prediction based on available
facts but a threat of retaliation based on misrepre-
sentation and coercion, and as such without the pro-
tection of the First Amendment. We therefore agree
with the court below that "[c]onveyance of the em-
ployer's belief, even though sincere, that unioniza-
tion will or may result in the closing of the plant is
not a statement of fact unless, which is most im-
probable, the eventuality of closing is capable of
proof." 397 F.2d 157, 160. As stated elsewhere an
employer is free only to tell "what he reasonably
believes will be the likely economic consequences
of unionization that are outside his control," and
not "threats of economic reprisal to be taken solely
on his own volition." NLRB v. River Togs, Inc., 382
F.2d 198, 202 (C.A. 2d Cir. 1967).
Equally valid was the finding by the court and
the Board that petitioner 's statements and communi-
cations were not cast as a prediction of "demonstra-
ble `economic consequences,"' 397 F.2d, at 160, but
rather as a threat of retaliatory action. The Board
found that petitioner's speeches, pamphlets, leaflets,
and letters conveyed the following message: that
the company was in a precarious financial condi-
tion; that the "strike-happy" union would in all like-
lihood have to obtain its potentially unreasonable
demands by striking, the probable result of which
would be a plant shutdown, as the past history of
labor relations in the area indicated; and that the
employees in such a case would have great difficul-
ty finding employment elsewhere. In carrying out
its duty to focus on the question: "[W]hat did the
speaker intend and the listener understand?" (A.
Cox, Law and the National Labor Policy 44
(1960)), the Board could reasonably conclude that
the intended and understood import of that message
was not to predict that unionization would inevita-
bly cause the plant to close but to threaten to throw
employees out of work regardless of the economic
realities . In this connection, we need go no further
than to point out (1) that the petitioner had no sup-
port for its basic assumption that the union, which
had not yet even presented any demands, would
have to strike to be heard, and that it admitted at
the hearing that it had no basis for attributing other
plant closings in the area to unionism; and (2) that
the Board has often found that employees, who are
particularly sensitive to rumors of plant closings
.. . take such hints as coercive threats rather than
honest forecasts.
Petitioner argues that the line between so-called
permitted predictions and proscribed threats is too
vague to stand up under traditional First Amend-
ment analysis and that the Board's discretion to cur-
tail free speech rights is correspondingly too uncon-
80 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
trolled . It is true that a reviewing court must recog-
nize the Board 's competence in the first instance to
judge the impact of utterances made in the context
of the employer-employee relationship , see NLRB
v. Virginia Electric & Power Co ., 314 U.S . 469, 479
(1941). But an employer , who has control over that
relationship and therefore knows it best , cannot be
heard to complain that he is without an adequate
guide for his behavior . He can easily make his
views known without engaging in "`brinkmanship'
when it becomes all to easy to "overstep and
tumble [over] the brink," Wausau Steel Corp. v.
NLRB, 377 F .2d 369 , 372 (C .A. 7th Cir . 1967). At
the least he can avoid coercive speech simply by
avoiding conscious overstatements he has reason to
believe will mislead his employees.
The Board has found that an employer violated the
Act by telling employees that if they selected a labor or-
ganization to represent them and thereafter that labor or-
ganization made unreasonable demands that the employ-
er could not afford he would close his plant . The finding
adopted by the Board in that case was that the employer
could neither predict adverse conditions of his own voli-
tion nor could he predict adverse conditions arising from
factors beyond his control if there were no factual basis
demonstrated to support such a prediction . Jimmy-Rich-
ard Co ., 210 NLRB 802, 804 ( 1974), enfd . sub nom.
Clothing & Textile Workers v. NLRB , 527 F . 2d 803 (D.C.
Cir. 1975). In that case it was noted that there was no
support for the employer 's assumption that unreasonable
demands would be presented , or that demands would be
presented that the employer could not accommodate.
Furthermore , the employer did not indicate what wage
demands or other proposals that it would consider rea-
sonable or what economic concessions it would make.
There was no evidence of the employer 's economic dis-
tress . It was noted that the employer's statement did not
convey management's decision already reached to close
the plant but contained threats to make that decision
after employees voted in the election , but before collec-
tive bargaining got started . Finally , it was noted that the
statements were not "careful and honest predictions
based on known facts ." It was found that the statements
were actually inconsistent with other statements of the
Respondent during the campaign to the effect that Re-
spondent was supplying its employees with benefits
"equal or superior to the plants in the area." Thus, the
employer therein was found to be inconsistent in telling
employees "at one time and place that they were as well
off, or better off, than employees in union plants and at
other times and places that the union would make unrea-
sonable demands on Respondent which it could not
afford."
In another case the Board adopted a finding that
looked beyond the employer 's conditioning of a plant
closure on demands that the employer could not afford
and that would render him noncompetitive to find a
veiled threat in view of the absence of a factual basis for
the prediction . Marathon Letourneau Co., 208 NLRB 213,
222-223 ( 1974).
In Hertzka & Knowles, 206 NLRB 191 , 194-195 (1973),
the Board adopted a finding that it was a violation of
Section 8 (a)(1) of the Act for an employer to express ap-
prehension that unionization would result in a loss of
customers and layoffs inasmuch as such apprehension or
prediction was not based on any objective fact . Therein
the employer produced no evidence to show that its cli-
ents would withdraw or had withdrawn business because
of unionization.
Although an employer in campaign propaganda may
legitimately argue the risks inherent in collective bar-
gaining , i.e., strikes , loss of wages , etc., and may indicate
that collective bargaining may result in diminishment of
benefits, such propaganda becomes coercive if it, by im-
plication , rejects the collective -bargaining principles set
forth in the Act and threatens a loss of benefits by per-
sistent and repetitive reference to the possibility of loss
of benefits . Hasbro Industries , 254 NLRB 587 ( 1981).
With respect to the truthfulness of Respondent 's asser-
tions regarding strikes and plant closures, aside from the
reference to the Oakland plant , the General Counsel and
the Union conceded that they were unable to offer evi-
dence of any direct falsehoods therein . The Respondent,
however, recognizing the Supreme Court 's strictures in
the Gissel case adduced certain evidence as to the basis
for its campaign assertions . Thus , its managers obtained
newspaper articles and clippings concerning plant clo-
sures and strikes and generalized information from a
local trade association . Respondent has no direct, pri-
mary information regarding the relative bargaining posi-
tions of those other employers and unions. It did not pos-
sess information , or at least did not demonstrate informa-
tion as to how many employers had negotiated with the
Union without the trauma of a strike . Evidence was ad-
duced that the Radcliff plant was not operating at a
profit, but it was also conceded that the Respondent had
operated the plant as an investment with expectation of
future profit and no evidence was adduced that any deci-
sion was even contemplated with respect to a possible
closure of the plant . With respect to the possible impact
of the additional cost that might be attributed to a con-
tract with the Union , Kirchman testified that he had ob-
tained from a trade association located in Louisville,
Kentucky , a list of employers that had negotiated collec-
tive-bargaining agreements with the Union . He then ob-
tained about 10 labor agreements from those employers
by late February . He reviewed those documents as to
wages and benefits, and made a comparison with the
Radcliff plant , and orally reported the results to his su-
pervisors . He testified that:
It was very difficult to make a valid or reliable
comparison without knowing what some of the un-
derlying costs and so forth of these programs were.
He did find that all had a union-security clause , a majori-
ty had a cost-of-living clause , and that rates of pay for
comparable "benchmark jobs" were "in most cases"
higher than that paid at Radcliff . As to the pensions and
insurance provisions he could not make a valid compari-
son with those at the Radcliff plant . From such skeletal
data , Respondent was therefore unable to make any de-
UARCO, INC.
finitive comparisons as to what additional costs it might
encounter assuming that it agreed to a contract similar to
that of 10 other local employers. Moreover, it could only
speculate as to what specific contract demands the Union
might actually make and strenuously pursue in collective
bargaining.
The Respondent was well aware of employee fears of
plant closures, strikes, and loss of benefits as questions to
these topics were persistent and continunng throughout
the in-plant, employer-sponsored meetings.4 Yet, as I
have found above, the Respondent in its literature accel-
erated its references to economic detriment to the point
where such references became not a mere speculation
but rather a prediction of inevitaoility. In its reference to
the closure of the Oakland plant the Respondent did
engage in direct misrepresentation, i.e., the literature im-
plies closure was due solely to union bargaining de-
mands . Moreover, its prediction that the Union would
adamantly, to the point of forcing a strike on its mem-
bers, pursue a bargaining position adverse to its econom-
ic viability, and its prediction that it would be forced to
close because of the union strike demands, were predic-
tions unsupportable by demonstrable evidence.5 Howev-
er, its statements that it would pursue a predetermined,
fixed bargaining stance with respect to specified, manda-
tory subjects of collective bargaining constituted events
of its control, and was conduct that was calculated to
ensure that futility of designating the Union as bargain-
ing agent and that would exacerbate its relations with the
Union in collective bargaining to the point where a
strike was inevitable. Wex-Tex of Headland, 236 NLRB
1001, 1007 (1978).
I therefore conclude that the Respondent's entire pree-
lection literature, on its face and in context of all written
propaganda, did threaten employees with strikes, loss of
jobs, benefits, and plant closure and did imply that it
would be futile to designate the Union as the collective-
bargaining agent.
As to whether such threats were rendered nugatory
within the context of the concurrent statements made by
Respondent's managers, an evaluation must be made of
the employee meetings.
2. Employee meetings
Approximately 23 meetings were held in the plant
lunchroom for each shift and department between March
3 and 19, at which almost all employees were present, al-
though attendance was voluntary. The Respondent's
panel that presided over the meeting consisted of Plant
Manager Bramble, Vice President Brown, Personnel Di-
rector Kirchman, and Attorney William Treacy. The
meetings lasted for about 1-1/2 hours. No more than 35
employees attended each meeting. Some employees did
not remain for the entire meeting.
4 At a preelection Employee Committee meeting in answer to an em-
ployee question whether the plant would be mo%ed in the event the
Union became a bargaining agent, Bramble answered "no comment "
5 I reject Manager Koelling's testimony as to his opinion of the impact
on the Radcliff plant viability of possible union demands as conclusionary
and generalized and therefore of little probative value In any event, no
objection of comparative cost data was presented to the employees
81
After Treacy made remarks concerning the mechanics
of the election process, the meetings were opened to dis-
cussion by Bramble who, according to his testimony, so-
licited "questions and comments." There is a disagree-
ment in testimony of various witnesses , including the
General Counsel's own witnesses, whether he specifical-
ly asked for employees' "complaints." However, the em-
ployees throughout the meetings responded by raising a
multitude of questions and complaints about Respond-
ent's policies and working conditions. Discussed else-
where is Bramble 's reaction to the complaint concerning
the lack of a parking lot fence, mandatory overtime, and
seniority. Although several employee witnesses testified
on behalf of the Respondent that Bramble solicited no
"complaints" and refused to respond to complaints,
Kirchman openly took notes as to complaints as they
were raised, and he freely admitted in his testimony that
the complaining employees were advised that their com-
plaints would be investigated and that he would report
back to them. Thus, regardless of Bramble's phraseology,
both employer and employee representatives understood
that complaints about working conditions would be en-
tertained , and both acted accordingly.
In addition to these complaints and questions regard-
ing working conditions, of which more will be discussed
below, the employees raised numerous questions and
comments concerning the subject matters of loss of bene-
fits, plant closure, strikes, and collective bargaining.
The testimony of 10 employees was adduced by the
General Counsel. Their testimony was cryptic, conclu-
sionary, without context, and accompanied with an un-
certain and hesitant demeanor, perhaps in part because of
the inability of the witnesses to recall events that preced-
ed the trial by so long a lapse of time.
Rita Goodin testified concerning what she could recall
of the three first-shift preparatory department meetings.
She testified that during the 1-1/2 hour meetings, after
the meetings were opened for "questions," there was
some reference to the closure of the Cleveland plant, but
that it was explained that the Cleveland plant experi-
enced an economic downturn and that Respondent un-
successfully sought to expand its product line there but
was frustrated by the refusal of the union there to agree
to a reduction of machine operators on the new product
line machine in order to make a new operation feasible.
She testified, without corroboration, that Treacy or
Brown also told the employees that the Union, if certi-
fied at Radcliff, would "require" a "closed shop" that
the Respondent would never accept and that the em-
ployees would end up on strike. She also recalled a re-
sponse to an employee question whether all benefits
would be retained if the Union were certified to the
effect that they would not as bargaining representative
start "from scratch."
Howard Carman, Don Wentz, and Mike Keplinger
testified as to the first-shift press and maintenance depart-
ment meetings . Carman testified that Brown asked for
employee "complaints or gripes" and that he and others
raised several complaints. He did not testify as to what
response he received, if any. Carman testified that he
asked whether there could be a "trade off" in bargaining,
82 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
to which Treacy responded "no" and that Treacy then
held up a paper and said that bargaining "starts from
scratch." In cross-examination he admitted that Treacy
did refer to "horsetrading" and did tell the employees
that they could gain, lose, or break even in bargaining.
Don Wentz' recollection of these meetings was that they
were opened for "discussion" by a management repre-
sentative; that an employee inquired as to the definition
of a "union forced strike," but that in his opinion Treacy
did not give a definite answer but merely said that the
Union has a "lot of strikes." Carman, in his testimony as
to these same meetings, had no recollection as to the
strike reference. Wentz testified that he asked which em-
ployees would retain benefits if the Union were certified
as bargaining agent and that Treacy responded that bar-
gaining "started from scratch" during the negotiation
process. Wentz testified that at the second meeting in
answer to a question as to whether the Respondent
would negotiate, Treacy said that it would do so and
that all items were negotiable as bargaining started from
scratch and that benefits might be lost through negotia-
tions . In cross-examination he testified that Treacy char-
acterized bargaining as "horsetrading" where a little can
be gained, a little can be lost, and no one could predict
where it would end. He further conceded that in a refer-
ence to a question concerning Respondent's Chicago
plant, which was unionized, Brown discussed the subject
of profit margin and pointed out that high union wages
was but one of several factors, including high mainte-
nance costs and high worker compensation costs, that
determine the profitability of a plant, and that the Chica-
go plant had other higher costs and was therefore being
phased out.
Mike Keplinger gave yet another view of the first-shift
press and maintenance department meetings. According
to him, Bramble opened the meetings by soliciting "com-
ments and questions." With respect to the first meeting
Keplinger had no recollection as to the subject of strikes.
As to the second meeting, in reference to the Respond-
ent's strike posters, an employee commented that a two-
thirds vote was required for a strike, to which Treacy
made reference to the Union's constitution and stated
that the union president had discretionary authority with
regard to some strike situations. At this meeting Ke-
plinger challenged the accuracy of Respondent's cam-
paign literature reference to the Lear-Siegler plant clo-
sure. Although he attended all three meetings, Keplinger
could not recall many other subjects, but he did recall
the "bargaining from scratch" statement by Treacy and
that Treacy said that employees could end up with less
benefits than they possessed at the beginning of bargain-
ing but that he also stated the Respondent did not desire
that anyone should lose benefits that they already pos-
sessed. In cross-examination he recalled that Treacy said
that in bargaining you "give a little" and "take a little,"
but that no "smart" Company wanted employees to lose
anything they already possessed.
Bill Jordan, Jesse Bates , and Sharon Pike testified as to
the third-shift meetings held for the press and mainte-
nance departments, including the packers. Bates testified
that the first meeting was opened for "questions." In ad-
dition to the "bargaining from scratch" statement, and
the statement that employees could lose benefits in the
bargaining process, he heard Treacy say that benefits
were "frozen" during negotiations. At the second meet-
ing several complaints were raised , but he could not
recall the responses. There was an employee remark
about the extent of money spent by the Respondent for
posters.
Bates testified without contradiction that he protested
that employees were "scared" by the Respondent's writ-
ten propaganda but that Treacy responded that people
are adults and that adults are not scared by the "facts."
Bates testified that he recalled an employee challenge to
the accuracy of a plant closure citation in the Respond-
ent literature and the discussion that ensued wherein the
Respondent stood by its information. In cross-examina-
tion Bates testified that Treacy stated that employee ben-
efits were frozen on notification that an election is to be
held, and that in negotiations there is a possibility that
employees could give up benefits and a possibility as
well that they could gain benefits.
Jordan testified that Bramble specifically solicited em-
ployee complaints "or anything" they wanted to discuss.
Jordan asked questions concerning the reason certain
other employees had been treated in a certain manner
and that Bramble gave explanations. He did not testify as
to any explicit promised remedial action, except that on
his complaint of Voight's restriction on his talking to
other employees discussed elsewhere, Bramble said that
he would look into it. According to Jordan, Treacy an-
swered a question as to whether benefits could be lost in
negotiations, and stated that bargaining "starts from
scratch." On a repetition of the same question, Treacy
said that benefits could be negotiated away. Jordan, in
cross-examination , testified that he asked Treacy whether
benefits could be lost or were they "frozen," that Jordan
first utilized the word "frozen," and thereafter Treacy
stated that under the law benefits are frozen from the
time an employer receives notice of the filing of an elec-
tion petition.
Sharon Pike's testimony also repeated the "bargaining
from scratch statement," and that employees could lose
or gain as a result of collective bargaining. In cross-ex-
amination she recalled that Treacy told the employees
that under the law their benefits would not change until
negotiations were completed. I discredit her testimony
that Bramble explicitly asked employees why they
needed the Union and union representation, as it is stark-
ly inconsistent with the testimony of all witnesses. I con-
clude that had it been made, Keplinger or Wentz surely
would have recalled it.
Second-shift pressman Tim Atcher testified that he at-
tended only one full meeting and part of a second meet-
ing and that the subjects of job security and bargaining
were discussed but that he could recall only one specific
statement , i.e., Treacy's response that bargaining would
start "from scratch" and there was a "chance" of em-
ployees losing benefits. He recalled that there was a
"lot" of discussion of strikes and in response to a ques-
tion why Respondent was resisting the Union's organiza-
tion effort Brown stated that he was afraid of strikes. In
cross-examination he conceded that Treacy may have
UARCO, INC 83
likened bargaining to "horsetrading" wherein sometimes
you gain , and sometimes you lose , or break even.
Meetings were also held for employees excluded from
the bargaining unit , i.e., the office clerical employees.
Mail clerk Betty Wentz testified that an employee asked
whether their benefits would be affected if the Union
were certified , and that Treacy responded that the office
employees would remain the same but that the plant em-
ployees' benefits would be "frozen" during negotiations.
Regarding a question concerning the yearly raise em-
ployees received in June , Treacy responded that the cler-
ical employees would receive the same raises as in the
past but that the plant employees would have to bargain
for it . In answer to a question concerning prevalent plant
rumors to the effect that the plant would close if the
Union were voted in , Treacy responded that if the em-
ployees ask for "too much" money in negotiations the
plant "possibly" would be shut down . Treacy also stated
that other plants can perform the Radcliff' plant work at
less cost than can be done at the Radcliff plant. Betty
Wentz ' credible testimony was uncontradicted.
Several employees testified on behalf of the Respond-
ent concerning these meetings . Employee D'hart testified
that when asked about plant closure , Brown testified that
the plant would not close solely because of the Union's
designation as bargaining agent ; and that in response to a
query as to the chance to strike , Treacy stated that no
one really knew the answer . Former employee, now
foreman , David Monroe testified that Biown explained
the Radcliff plant would only be closed for economic
reasons , and that as to strikes , Treacy stated that a two-
thirds vote was required by the membership before the
Union would strike . Betty Dillard testified that in answer
to a plant closure question Brown stated that the plant
would not close merely because the employees voted for
a union , and that such conduct would be unlawful, and
further that any closure would be determined by eco-
nomics. As to strikes , Treacy stated that no one can
"guarantee" whether a strike would or would not occur.
Third-shift press operator Gary Harper testified that
Brown stated that the plant was operating at a loss and
that if an economic loss continued , the plant would be
closed , but Brown did not relate closure to union repre-
sentation. Harper , whose credible testimony was not con-
tradicted , asked the question that if a union is out to ben-
efit employees and the Company , why was there all the
"head knocking [campaigning]," and that Brown an-
swered "because of the possibility of strikes ." As to ques-
tions about the plant 's profitability , Brown stated that it
was "just about to turn the corner " but had not yet
shown a profit . Harper testified that numerous questions
were asked about the plant 's profitability and that at
some meetings the entire time was consumed with a dis-
cussion of the Radcliff plant 's profit and loss situation,
and that it was reiterated many times by the Respondent
that it was not making a profit at Radcliff
First-shift maintenance employee Norman Copp testi-
fied that when asked if employees would lose benefits in
bargaining , Brown answered , "No one knows," and that
when asked why the Respondent feared strikes, Brown
explained that Respondent was in business to make prof-
its and if no one is working there are no profits . He testi-
fied that , when asked , Brown stated the plant would not
move simply to avoid the Union.
First-shift finishing department employee Mark Coff-
man testified that a Respondent representative in answer
to employee questions stated that the plant would not
close because of the union election as bargaining agent
but that the determining factor was whether it would
make a profit , and that the Respondent would bargain
because the law required it. Further , Brown stated that
no one knew how long bargaining would continue, and
that, in response to an employee observation , he agreed
that it was true that 90 percent of negotiations were set-
tled without strikes . First-shift finishing department em-
ployee Barry Gerlach testified that Treacy said that Re-
spondent was bound by law to negotiate regarding em-
ployee benefits with the designated bargaining agent.
Second-shift press operator Daniel Lancaster testified
that employees asked questions about plant closure if the
Union were elected , but that Brown responded that the
issue was not the Union 's election but whether the plant
could make money . Lancaster testified that an employee
stated that he had heard that 90 percent of all collective-
bargaining agreements were settled without strikes, to
which the response was that the statement was correct.
Lancaster testified that it was stated by a management
representative that a strike was "inevitable ." This was
not only in conflict with other Respondent witnesses, but
also nowhere corroborated by any witnesses , and so star-
tling at variance with all Respondent explicit statements
and the witnesses ' own testimony that I discredit it.
Treacy and Brown did not testify . Bramble testified
that many questions were raised about collective bargain-
ing, i .e., would the Respondent bargain if the Union won
the election , and that Treacy and Brown simply an-
swered : "Yes." As to questions concerning the results of
bargaining , Brown responded that there was no way to
predict the results of bargaining . At an early meeting, ac-
cording to Bramble , Treacy stated that, legally, bargain-
ing could start from a "statutory base," such as the mini-
mum wage , and that this in turn prompted the "bargain
from scratch" question from an employee , and that
Treacy stated that benefits would be frozen until bar-
gaining was completed . Treacy further explained that the
time needed to bargain was unpredictable and that al-
though an employer could bargain from the minimum
wage level that any employer would be silly to do this.
Thereupon Treacy made reference to the "horsetrading"
characterization and to the comments, "gain a little, lose
a little," etc. Treacy further assured that no benefit
would be eliminated solely because the Union was elect-
ed.
Bramble testified that many questions were asked
whether the plant would be moved if a strike occurred,
to which Treacy responded that economics would be the
determining factor in a decision to close or relocate. As
to questions regarding whether the Respondent knew
whether a strike would occur , Treacy replied that there
was no way of predicting that eventuality . Bramble testi-
fied that employees commented that representation of-
fered job security to which Brown responded that unions
84 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
cannot provide job security , that unions cannot create
jobs , and that only customer demands create jobs.
To the foregoing testimony of Respondent 's witnesses
that Kirchman largely corroborated , he added , inter alia,
the following . When employees asked how long it took
to arrive at a collective -bargaining agreement in collec-
tive bargaining , Treacy responded that some are agreed
to quickly , others longer, and some negotiations reach
impasse, and any question of bad -faith bargaining can be
resolved by resort to NLRB procedures . As to the refer-
ence to "bargaining from scratch ," Kirchman recalled
that it arose when an employee referred to one of Re-
spondent 's written distributions and asked "because of
this [bulletin] are you telling us we bargain from
scratch?" This question , he testified , came up several
times and Treacy responded by holding up a blank paper
and saying that there is nothing on this paper and all
blanks are to be filled in as you negotiate , that all bene-
fits are negotiable , and that from the point of notification
of an election all benefits are frozen , that an employer
could start negotiations from the minimum wage but that
no fair or good employer would do that because it was
not smart . Elsewhere he testified that Treacy affirmative-
ly answered the question whether wages and benefits
were frozen at the time bargaining began. Kirchman tes-
tified that some employees asked questions concerning
the Oakland plant and that Brown gave a lengthy re-
sponse that indicated that the plant was located in a high
cost area, that there were several unions in the plant, and
that was a safety factor , high taxes , that there had been
several strikes and threats of strikes that all these factors
led to plant closure that the "bottom line" factor was
"economics ." An employee then asked why employees
were being told "these things," whereupon Brown an-
swered because it was asked and because union represen-
tation of itself did not determine plant closure, but rather
economics.
Kirchman testified that an employee asked whether
there could be a strike if the Union won the election, to
which Brown answered that a strike was not inevitable
but that it was one legal means for unions to enforce
their bargaining demands and that no one could predict
what would happen . In answer to another question
Brown stated that every effort would be made to keep
the Radcliff plant open during a strike , and that protec-
tion for nonstrikers would be afforded . Several employ-
ees commented with respect to Respondent 's present
corporatewide profitability and Bramble answered that
each of Respondent 's plants was expected to stand on its
own "two feet," and that a profitable plant is not expect-
ed to subsidize an unprofitable plant . When queried as to
why the Radcliff plant continued to operate despite a
loss of profits , Bramble responded that any new oper-
ation was not expected to make money but that if losses
continued, a decision about closure would be made by
his corporate supervisors.
According to Kirchman , an employee asked whether
union representation will obtain a cost-of-living allow-
ance and that Brown responded that if the subject arose
in negotiations the Respondent could bargain but that it
had a "philosophical objection" to that benefit, and that
it had its own formula to determine wages such as com-
petitor rates , area costs , and comparable area pay and
that this subject has been the subject of negotiations in
other unionized Respondent plants but that no Respond-
ent plant has agreed to such benefit. Brown stated that if
it arose in negotiations at Radcliff that Respondent
would bargain over it, but that no one could predict the
outcome.
That testimony that expands and adds to the meeting
statements , as partially recollected by the General Coun-
sel's witnesses and that stands uncontradicted is, unless
otherwise noted, credited.
Even if the General Counsel' s witnesses were to be
given the benefit of any direct credibility resolution, I
cannot conclude that Respondent 's statements at these
meetings amounted to a threat of economic detriment as
punishment for the employees' voting for the Union.
Whether Respondent' s statements amounted to a threat
to engage in regressive bargaining , I find that they did
not. The Board has stated in Coach & Equipment Sales
Corp., 228 NLRB at 440-441 (1977):
"Bargaining from scratch" is a dangerous phrase
which carries within it the seed of a threat that the
employer will become punitively intransigent in the
event the union wins the election. The Board has
held that such "hard bargaining" statements may or
may not be coercive, depending on the context in
which they are uttered . Thus, where a bargaining-
from-scratch statement can reasonably be read in
context as a threat by the employer either to unilat-
erally discontinue benefits prior to negotiations, or
to adopt a regressive bargaining posture designed to
force a reduction of existing benefits for the purpose
of penalizing the employees for choosing collective
representation , the Board will find a violation.
Where, on the other hand, the clearly articulated
thrust of the bargaining-from-scratch statement is
that mere designation of a union will not automati-
cally secure increases in wages and benefits, and
that all such items are subject to bargaining , no vio-
lation will be found.
I conclude that Respondent 's statements at the meet-
ings merely informed the employees that benefits could
be gained as well as lost in collective bargaining but that
its statements did not imply that existing benefits would
be punitively eliminated or that it would take a regres-
sive bargaining stance . Wex-Tex of Headland, supra; Blue
Cross of Kansas City, 259 NLRB 483 (1981) (where simi-
lar conduct was found not to constitute election interfer-
ence).
Within the context of all Respondent 's statements, I
conclude that employees were not told that they would
not receive benefits and wages already scheduled or due
them, but that the use of the word "frozen" was merely
calculated to mean that nothing could be lost pending
negotiations and resolution of the question concerning
representation , i.e., the status quo would continue.
I further conclude that the statements made by Re-
spondent 's managers at these meetings did not , in con-
trast to its written propaganda , repeatedly and forcefully
allude to the Union's reputed history of causing strikes,
UARCO, INC. 85
nor did it stress the inevitability of an economically life-
threatening bargaining posture by the Union . Finally,
unlike the literature , the Respondent did not suggest the
futility of union representation by asserting that it would
maintain an intransigent bargaining posture.6
Although vastly more moderate in temper than its
campaign literature , I do not conclude that Respondent's
statements at these meetings were of such an extent and
nature as to substantially negate the coercive impact of
its literature . Throughout these meetings employees ex-
pressed concerns whether the Respondent would retali-
ate against them for selecting the Union , whether bene-
fits would be lost , whether the Respondent would close
its plant , whether the Respondent would bargain, and
whether there would be a strike . Yet, is seen from a
review of the literature , despite the moderation in its oral
statements , the essence of a prediction of inevitable bar-
gaining collapse and strike and resulting economic loss
continued unabated in the literature . Although temperate
in comparison to the literature , the Respondent many
times in its statements referred to the delicate financial
status of the Radcliff plant and only stated that results of
bargaining with this Union were unpredictable . In view
of the coercive nature of its literature, the statement that
it would bargain as obliged by law hardly constituted re-
assurance to employees whose fears were aroused by the
campaign literature. Cf. Ludwig Motor Corp., 222 NLRB
635 (1976). No suggestion was advanced that collective
bargaining with this particular union might follow the
national norm of a statistically probable nonstrike settle-
ment , or that accommodation of both employee and em-
ployer interest could be reached at Radcliff . No assur-
ance was given that in bargaining the Respondent would
have an open mind and engage in sincere and meaningful
discussion of subjects of bargaining that might entail
modifications of its predetermined concepts of wage and
benefit formulation or philosophy . Thus , when an em-
ployee questioner was told that the Respondent would
bargain concerning a cost -of-living allowance , as it had
at other unionized plants, the employee was reminded
that Respondent has not agreed to such benefit at any
plant.
Finally , although Respondent 's remarks that arguably
might soften the impact of its literature may have been
made on several occasions , the evidence is far from suffi-
cient to indicate that the reach of such remarks was of
such extent as to have been heard by all employees at all
meetings , and thus likely to have been as coextensive in
propagation as its literature.
With respect to the solicitation of employee com-
plaints , as I have noted earlier , regardless of whether
Bramble explicitly solicited "comments and questions,"
or "complaints ," it was understood by all that the Re-
spondent was inviting employees to raise complaints as
to working conditions . Respondent 's conduct herein is
similar to that in Uarco, Inc., 216 NLRB 1 (1974), in
which it impliedly solicited employee grievances . In that
9 I find the testimony concerning intransigence with respect to a
"closed shop" proposal too isolated to be of probative value, even if
"closed shop" could be interpreted as a reference to a lawful "union
shop."
case the Board , citing , inter alia , Reliance Electric Co.,
191 NLRB 44 (1971), noted that the solicitation of em-
ployees' grievances during an organizational campaign
constitutes interference with employees ' rights even
though the employer merely states that it would look
into or review the problems raised without committing
itself to specific corrective action. The Board stated,
however, that it is not the solicitation of grievances per
se that is coercive but the promise of corrective action
that can be inferred therein. In that case the Board found
that the respondent sufficiently rebutted such inference
by repeatedly and explicitly telling employees that it was
making no such promises. Such was not the evidence in
this case. For example, with respect to the question from
an employee whether the Respondent would be "willing
to listen to some new seniority systems," Kirchman testi-
fied that Bramble answered that "anything .. . that
made sense from an employee 's standpoint and produc-
tion-the Company's standpoint, of course, we would be
willing to listen to." Similarly when an employee com-
plained of improper maintenance of a machine, Respond-
ent immediately thereafter sent out its maintenance fore-
man to consult with the employees about the problem.
When several complaints were raised about inconsistent
treatment of employees by the foreman , Bramble re-
sponded, "If you have a specific incident, bring it to my
attention, or your supervisor's attention, or to his super-
visor 's attention , as soon as possible while it's fresh in
everybody's mind . . ." Bramble promised to look into a
complaint about the lack of a parking lot fence and he
immediately thereafter took affirmative steps that led to
the erection of such fence.
Therefore I conclude that the Respondent's solicitation
of grievances and complaints raised therein an inference
that corrective action would be taken, and that such in-
ference was not rebutted by any action or statements by
the Respondent. Moreover, as discussed elsewhere, af-
firmative action was taken shortly after the election with
respect to complaints concerning the fence, the seniority
system, and mandatory overtime policy.
The Respondent contends that its conduct was in
accord with past practice and thus did not constitute a
strategem to undermine the organizational efforts of its
employees. Bramble, and to some extent Kirchman, testi-
fied that in prior years employee meetings were held
under the same format wherein employee complaints
were raised and promises were made to look into the
problems and that some were resolved and some were
not. However, these meetings were conducted yearly in
the fall of the year. In 1979 the meeting was held in No-
vember just 4 months earlier. In earlier years they were
held in September or October. The duration of these
annual meetings did not encompass a span of time com-
parable to the 1980 meetings. However, in 1977 and
1978 , similar meetings were held during unsuccessful or-
ganizational campaigns of another labor organization.
Also, although it was testified that in past meetings the
Respondent listened to employee complaints, there is no
evidence that it solicited those employee complaints. I
conclude that the March 1980 meetings were precipitat-
ed by the Union's organizational efforts and constituted
86 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
an integral part of Respondent 's campaign against the
Union . Furthermore , the meetings were held against a
propaganda effort calculated to convince the employees
that collective bargaining by an "outside union" was
futile and harmful . The employee complaints were en-
twined with questions about a plant closure , strikes, and
collective bargaining . Clearly the calculated intent of the
solicitation of such complaints was to frustrate the em-
ployees' desire for representation by an "outside union."
This conclusion becomes manifest on the Respondent's
enhancement of the position of the Employee Committee
by its conduct relative to the parking lot, seniority
system, and mandatory overtime complaints . According-
ly, I conclude that , within the context of this case, the
Respondent was not merely pursuing its past practice
and policy . The fact that Respondent may have engaged
in similar conduct during the frustrated organizational ef-
forts of another union does not lead me to conclude oth-
erwise . I therefore find that the Respondent violated
Section 8 (a)(1) of the Act by soliciting employee com-
plaints of working conditions at the preelection employ-
ee meetings in March 1980.
E. Majority Status
The complaint in Case 9-CA-15126 alleges that the
Union obtained its majority status between January 1 and
February 3, 1980 , that since February 12, 1980, the
Union has been the exclusive bargaining agent of the em-
ployees in the appropriate unit , and that since February
12, the commencement of Respondent 's unfair labor
practices , that the Respondent 's conduct has warranted
the issuance of a bargaining order requiring recognition
and bargaining as of February 12. Cf. Peaker Run Coal
Co., 228 NLRB 93 (1977).
On February 12, there were 217 employees employed
within the bargaining unit . The General Counsel ad-
duced into evidence authorization cards of 124 persons
purportedly executed between January 1 and February 3.
The purported authorization cards of five persons, La-
venia Dumpster , Tom Hall , Randy Wood , Richard
Steward , and H . L. Parrisean, were offered into evi-
dence , but rejected by me because of the failure to prop-
erly identify the signatures on those cards . I rejected the
General Counsel 's request that I make a handwriting
comparison of the signatures of those cards with known
samples.
The remaining cards were authenticated either by the
card signer as in the vast preponderance of cards, or by
the card solicitors as in virtually all the remaining cards,
except for a few cases , where, for example , the signer
was deceased, or unavailable , by a combination of testi-
mony of persons familiar with the signature and the cir-
cumstances of delivery.
The Respondent argues that the cards purportedly
signed by the following employees were not properly au-
thenticated by the card solicitors , who did not witness
the actual signing of the cards , i.e., each employee re-
tained the card for a short time and then returned it, al-
ready executed , to the solicitor either directly or to a
prearranged location , e.g., the solicitor's toolbox: Mi-
chael Clymer, David Combs , Mitchell Gibson, Gary
Harper , Alan Seymour , Paul Robinson, Paula Caswell,
Thomas Padgett , Betty Jackson , Sandra Banks, Randy
Banks , Gary Brakebill , William Gary Jones, Steve Mar-
shia, Daryl Miles , and Mark Porcelli . However , the act
of returning a signed card for ultimate delivery to the
Union is sufficient for proper authentication of signature.
Stride Rite Corp., 228 NLRB 224 , 234 (1977); McEwen
Mfg. Co., 172 NLRB 990, 992 ( 1968). Accordingly, I
conclude that these cards were properly authenticated.
The Respondent further argues that with respect to
nine cards there was insufficient evidence that the cards
were delivered to the solicitor or to the Union by the
signers. Employees Linda Hagen and Robert Johnson
could not recall the identity of the solicitor but did testi-
fy that they returned the cards after they signed them.
Steve Parks testified that he signed two cards on two dif-
ferent occasions . The first card he returned to employee
card solicitor Cleo Letterman in the plant . The second
card he signed at a union meeting and placed it on a
table near the union organizer for delivery to the Union.
Employee Sheila Stone testified that she signed her card
at a union meeting and deposited it at the table near the
union business agent , clearly for delivery to the Union.
Jimmy White testified that he signed his card and depos-
ited it at a place designated for receipt by solicitor Cleo
Letterman . Jeff Weiss could not recall to whom he deliv-
ered his signed card , but vividly recalled handing it back
to the solicitor . Walt Hanley testified that he handed
back his signed card to the same person who solicited his
signature after the solicitor asked him if he wanted a
"union ." Gordon Mingus testified that after he read his
card he signed it and returned it although he could not
recall the identity of the solicitor . Cecil Bruckner testi-
fied that he was in a group discussion of employees at
the plant and during the discussion it was stated that
union representation was needed . He thereupon signed
the card as did other employees in the group . He failed
to testify that he returned the card . There is no evidence
as to how that card left his possession.
When retention of a union card by the signer occurs, it
can be concluded that the signer had not yet made up his
mind whether he should make the card effective by de-
livery to the union . Schwartzenbach -Huber Co. v. NLRB,
408 F . 2d 236 fn . 1 (2d Cir . 1969). Thus the date of deliv-
ery is paramount to the date of actual signature . Multi-
National Food Service, 238 NLRB 1031, 1039 (1978).
With the exception of Bruckner 's card , the evidence
sufficiently establishes that the card signers relinquished
possession and delivered their cards, albeit to an uniden-
tified solicitor , or to a designated depository for delivery
to the Union . Accordingly , I conclude that those cards
were not invalidated by nondelivery to the Union. How-
ever, I cannot conclude that Bruckner 's card constituted
a valid authorization in the absence of testimony of its
delivery to any person , despite its ultimate possession by
the Union.
The Respondent argues that the cards of Sheila Stone,
Leon St . Clair , and Debbie Dailey ought not be counted
as evidence of the Union 's majority status, inasmuch as
they were not employed on the date of the election.
However, the critical date for majority status is the date
the Respondent allegedly commenced its unfair labor
UARCO, INC. 87
practices . Accordingly, the issue is whether the Union
attained majority by that date. Stone quit on March 7,
and Daily quit in March but before the election. As they
were employed on February 13, their cards ought to be
counted as evidence of majority status . However, as St.
Clair was terminated on February 25, prior to the com-
mencement of conduct as alleged in Case 9-CA-15126,
and as found herein to be violative of the Act, his card
ought not be counted.
Finally, the Respondent argues that the cards of the
following employees ought not be counted as they are
invalidated by the misrepresentation of the card solicitor:
Ron Bryson, Anna Chenault, Sonny Cole, Linda Hagan,
Steve Parks, Larry Pavlicheck, Sandra Skrupskis, Jimmy
White, Kamala Barb, John Bowman, Ray Clevenger,
Mike Glackin, Harry Maphis, Joyce Newton, Ann Rob-
inson , and Amy Woods.
The Respondent relies on the testimony it elicited in
cross-examination , largely through a mode of inquiry
that suggested the desired response, i.e., that the solicitor
stated that the purpose of signing a card was to obtain an
election, or some other purpose, i.e., to invite the Union
to talk to the employees concerning representation.
The cards are clear and unambiguous. The face states:
I, - , authorize UAW to represent me in col-
lective bargaining.
The reverse side states:
This card will be used to secure recognition and
collective bargaining for the purpose of negotiating
wages, hours, and working conditions.
In Cumberland Shoe Corp., 144 NLRB 1268, 1269
(1963), the Board held that where authorization cards
unambiguously recited that the signer authorized the
union to represent the employee for the purpose of col-
lective bargaining and made no reference to an election,
those cards should be counted in favor of the union,
unless it was demonstrated that the solicitor told the em-
ployee that the sole purpose of the card was to obtain a
Board-conducted election. The Supreme Court has ap-
proved the Board's policy and stated in NLRB v. Gissel
Packing Co., 395 U.S. 575, 606-607 (1969):
In resolving the conflict among the circuits in
favor of approving the Board's Cumberland rule,
we think it sufficient to point out that employees
should be bound by the clear language of what they
sign unless that language is deliberately and clearly
canceled by a union adherent with words calculated
to direct the signer to disregard and forget the lan-
guage above his signature.
The Court, however, cautioned against a reliance on
"key or magic words" and a "too easy application of the
Cumberland rule." The Board therefore looks at the "to-
tality of circumstances" surrounding the solicitation of
cards. Great Atlantic & Pacific Tea Co., 230 NLRB 766
(1977). However, if employees who read the cards were
told that the purpose of the cards was to obtain an elec-
tion, or that if a card were signed, a union representative
would come to talk to the employees concerning the
Union, the Board concluded that the totality of circum-
stances indicated that the employees were not told that
the sole purpose of the cards was to obtain an election,
and that the additional comments of the card solicitors
were not "calculated to direct the signer to disregard
and forget the language above his signature." Great At-
lantic & Pacific Tea Co., supra. In Keystone Pretzel
Bakery, 242 NLRB 492, 493 (1979), the Board evaluated
the circumstances of card signing wherein the solicitors
stated that the purpose of the cards was "to bring an
election in, for the purpose of negotiating a contract, to
better the wages , working conditions, etc., the benefits,"
but where there was no affirmative evidence that the
signers read the cards. The Board stated:
One factor which the Board has considered in
the "totality of circumstances" is whether the em-
ployees read the cards. Thus, where an employee
was told that his card would be only used to get an
election, affirmative evidence that the employee did
not read the card supported the conclusion that the
card was signed in reliance on the misrepresentation
as to its only purpose. On the other hand, where
employees were merely told that the purpose of
their cards was to get an election, affirmative evi-
dence that the employees read their cards supported
the conclusion that the reference to an election was
not misrepresentations of the cards' purpose. In
other cases, however, the Board has held authoriza-
tion cards valid without reference to, _and in appar-
ent absence of, affirmative evidence that the em-
ployees read their cards.
The Board therein found that the reference to an elec-
tion as to the purpose for the card "did not negate, and
were not inconsistent with, the clear and unambiguous
statement on the cards that the signers authorized the
Union to represent them for the purposes of collective
bargaining."
In Ed Chandler Ford, 254 NLRB 851 (1981), the Board
considered as too remote and irrelevant, a statement that
cards were only being solicited to obtain an election,
when that statement preceded the card signing by 1
month, and there was no evidence of misrepresentation
during the card signing.
Bryson testified that he read and signed his card at a
union meeting . In cross-examination he conceded that
Business Agent Puckett stated that the Union needed
cards for an election. Cole testified that he had no con-
versation with the card solicitor, but that he took his
card home and returned it signed and that he had heard
other employees in the plant who said that it was a good
idea to get cards signed to obtain an election. Linda
Hagen testified that she read her card before she signed
it. On cross-examination she answered affirmatively to
the question whether she was told by the solicitor that
there could be an election, and then testified affirmative-
ly to the question of whether she was told by the solici-
tor that the purpose in getting cards signed is to get a
vote , and again that the purpose was to invite the Union
to talk to employees in the plant. The witness was so un-
88 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
certain and confused as to her testimony regarding the
purpose of the card that I place no weight on her testi-
mony in this regard. The only thing she seemed certain
of was that she read and signed the card.
Parks read his card before signing it. As noted else-
where, he signed two cards. With respect to the card he
signed in the plant, he testified that the solicitor told him
that the purpose of the card was to "get a union in" and
to "have a certain percentage of these cards filled out in
order for the Union to try to come and get in and see if
they could do us any good or not." The second card was
signed at the union meeting and he initially recalled no
conversation about the purpose of the card. In cross-ex-
amination he testified that the first solicitor additionally
stated as a purpose the obtaining of an election. Thereaf-
ter he added that the solicitor stated that a certain per-
centage of employees was necessary to get a union repre-
sentative to talk to the employees in the plant and that
nothing was said about and election until the union meet-
ing in which he signed the second card. Then he testified
that some reference was made to an election by the first
solicitor. In further cross-examination he conceded that
at the union meeting when he signed his second card
that Business Agent Puckett stated that cards were
needed "to have a vote." The witness was admittedly
confused as to what was stated to him about the pur-
poses of the card, and I place no weight on this aspect of
his testimony.
Pavlicheck testified that Business Agent Puckett talked
about a purpose of the cards for obtaining a vote at the
union meeting when he signed and read his card. He also
testified that Puckett said something to the effect that
cards were necessary to obtain union representation. He
finally admitted to confusion and uncertainty as to what
was said about the purpose of the cards.
Although Skrupskis testified that various employees
had made earlier statements regarding an election, the
actual card solicitor made no statements about the pur-
pose of the card that she read and signed and gave to
him. Similar testimony was given by White who had
heard earlier rumors to the effect that the only purpose
for signing cards was for an election, but that he had
signed his card after reading it and that the card solicitor
made no reference to the card's purpose.
Letterman testified that Bowman approached him in
the plant, asked for a card, filled it out, signed it, and re-
turned it without any conversation. Letterman admitted
that 2 weeks earlier he stated that he was trying to get
enough employees to sign cards in order to obtain an
election.
Clevenger testified that he read his card and while he
was filling out and executing his card, he engaged in a
concurrent conversation with card solicitor Jimmy
White wherein White stated that the purpose of the card
"was to try and organize a union to try to clear things
up around the plant, which everybody kind of thought
needed to be done." Nothing was said about an election.
On cross-examination which was marked by confusing
and uncertain responses, he testified that White said of
the card, "it could possibly get the Union down here,"
and "we could have a meeting if we get enough cards
signed."
Michael Glackin testified that when he received his
card that card solicitor employee Chuck Cook told him
that "the card was to show the UAW that there was
enough interest for them to come down." He testified
that nothing further was raised. Glackin retained the
card. Later he read it, filled it out, and executed it and
thereafter about a week returned it to Glackin without
further conversation. On cross-examination he testified
that Glackin, when he gave him the card, had told him
that if enough cards were signed the Union would "let
us listen to what they've got to offer," and that "it was
just to show them that there was enough [employee] in-
terest etc."
Harry Maphis testified that the card solicitor asked
him whether he was interested in a union. He said,
"yes," received his card, read it, filled it out, and re-
turned it. Several months later he had heard other em-
ployees say, "If enough people were interested in a
Union, they would come down, and I guess . . . we
could have a Union vote."
Joyce Newton testified that she received a card in the
plant from Don Wentz, retained it, and later filled out
and executed it, and returned it to Cleo Letterman, with-
out any discussion. She had attended the first union
meeting at which Business Agent Puckett stated that a
certain percentage of cards was needed to obtain an elec-
tion, but she testified that he instructed everyone to read
the cards "carefully."
Ann Robinson testified that she asked Maria Mays for
a card, read it, filled it out, signed it, and returned it im-
mediately to Mays without conversation. On cross-exam-
ination she conceded that she had previously heard that
other "people" in the plant were trying to get cards
signed in order to get a vote.
Amy Wood testified that in the plant she asked Don
Wentz for a card and that she took it home, read it, filled
it out, signed it, and later returned it to Wentz. On cross-
examination she testified that she had difficulty recalling
what conversation occurred when Wentz originally
asked her to sign a union card, but responded "yes" to
the question, "Did Don for example say, `Look, we want
to get an election here. Let's get a card signed. We need
some cards signed?"' She later testified that she could
not recall Wentz' words and that she thought he said
"partly" something about an election or wanting a union.
Finally she testified that she did not recall what Wentz
said about an election.
Based on the above testimony, I do not conclude that
the circumstances surrounding the card solicitation of the
above employees support a conclusion that the employ-
ees were either explicitly told or otherwise led to believe
that a purpose of the cards was not as stated in clear lan-
guage on the cards that they read before signing.
However , in one other instance I conclude that invali-
dating misrepresentation occurred. Anna Chennault testi-
fied that she received a card at the plant from employee
Allen. She glanced at the front of the card and asked
about the phrase, "I wish to be represented by the
UAW," but that Allen stated: "that that was just to get-
ting the ball started, and that she didn't think we could
get one in without an election, and not to worry aobut
UARCO, INC
it." Chennault then immediately signed it and returned it
to Allen. The circumstances warrant a conclusion that
Chennault was told to disregard the language of the card
and was given assurance by the solicitor of its nullity.
Based on the foregoing, I exclude only the cards of
Bruckner, St. Clair, and Chennault and find that at the
material time the Respondent possessed majority status as
evidenced by the valid authorizations of 121 of 217 em-
ployees in the bargaining unit.
IV. OBJECTIONS TO CONDUCT AFFECTING THE
RESULTS OF THE ELECTION
The objections set for hearing in this consolidated pro-
ceeding are as follows:
2. The Employer threatened to discontinue bene-
fits if the Union won the election.
3. The Employer threatened dire economic con-
sequences , including plant closure , if the Petitioner
won the election and predicted a loss of business to
the Employer if the Union won the election.
4. The Employer interrogated employees con-
cerning protected concerted activities.
5. The Employer created the impression of sur-
veillance of union activities.
6. The Employer discriminated against employees
in regard to terms and tenure of employment in
order to discourage support for the Petitioner.
Among those discriminated against were Marcella
Michael and Leon St. Clair , who were terminated
on or about January 23 , 1980, and February 25,
1980, respectively , because of their support for the
Petitioner . In addition, the Employer discriminated
in regard to the terms and conditions of employ-
ment of William Vessels by disciplining him for
lawful distribution of literature on behalf of the Pe-
titioner.
7. The Employer threatened to discipline employ-
ees for lawful distribution of literature in order to
discourage support for the Petitioner.
8. The employer prohibited distribution of litera-
ture and enforced a discriminatory "No Solicita-
tion" rule in order to discourage support of the Pe-
titioner.
9. The Employer, through literature and speech-
es, and otherwise, instilled in employees ' minds that
collective bargaining is futile and inevitably leads to
strikes.
10. The Employer issued false and deceptive
statements and engaged in deceptive practices.
11. The Employer interfered with employees'
free choice by misrepresentation pertaining to the
National Labor Relations Board and its processes.
12. The failure of an agent of the National Labor
Relations Board to appear on time or with ballots to
conduct the election on its scheduled date, forcing
postponement of the election until another date, and
the failure of another Board agent to appear on time
for the election on March 21 , 1980, resulted in an
atmosphere of confusion and destroyed the labora-
tory conditions necessary for a fair and free elec-
tion.
89
14. Other conduct was engaged in destroying em-
ployees' free choice, which is under investigation.
With respect to Objections 2 through 9, the Union
relies on evidence adduced in support of the complaint
by the General Counsel with the exception of one inci-
dent of purported surveillance to be discussed below. No
evidence was submitted in support of Objection 12, as
the Union now withdraws that objection.
Objections 10 and 11 are premised on the posting of
certain documents by the Respondent in the plant lunch-
room. During the afternoon of Monday, March 17, the
Respondent posted on three walls of its plant lunchroom
approximately 363 photocopies of documents purporting
to be unfair labor practice charges filed with various Re-
gional Offices of the Board by individual members
against the UAW or UAW locals. One unsigned, undat-
ed document "Notice to Employees and Members" ap-
pears to have been part of a settlement agreement to
which UAW Local 505 was a party. Certain phrases in
the charges are highlighted by underlining which pin-
points the gravamen of the charges that in general relate
to alleged unfair or disparate treatment of the individual
by the Union, e.g., failure to process grievances. This
posting was preceded by a fact bulletin distributed by
Respondent on Friday, March 14, which stated:
More questions-good! And more FACTS!
1. Question Does the UAW treat all its mem-
bers the same-or does it discriminate against some,
in favor of others?
FACTS LIKE ANY OTHER GROUP, IT
HAS ITS FAVORITES. SOME UNION MEM-
BERS ARE TREATED FAIRLY-AND SOME
AREN'T.
2. Question Can you prove this? For example,
can you prove that some people get their griev-
ances presented to management and some don't?
FACTS WE WOULDN'T SAY IF IT [sic]
WE COULDN'T PROVE IT. ON MONDAY,
YOU'LL HAVE THE FACTS! LOOK ON THE
WALLS OF THE LUNCHROOM!
The Union concedes that the documents are not for-
geries and are not other than what they purport to be.
Other than the italics, no comments were added to the
documents by the Respondent. The Union contends that
the Respondent, by posting these unfair labor practice
charges, abused Board documents and misrepresented to
employees that the Board had made findings of unfair
labor practices alleged therein.
The Union relies on the testimony of four employees
to support its contention that in addition to the postings,
the Respondent misrepresented to employees that the
Board found that the Union violated the Act in those
363 situations. Thus Keplinger testified credibly and
without effective explicit contradiction that at one meet-
ing an employee complained that the Respondent had ex-
hibited favoritism in its dealings with employees and that
Attorney Treacy responded, "What makes you think the
90 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
Union doesn't play favorites-look around the walls,
does that look like a fair union to you?" Employee
Jordan testified that at one employee meeting Treacy ex-
plained, in response to an employee question, that the
purpose of the postings was "to show .. . the employ-
ees, the reason why we did not need representation by
the UAW." Jordan admittedly was unable to recall the
words Treacy used in giving the explanation. As to this
testimony, his demeanor was markedly uncertain. Aurelia
Bates testified that at the meeting she attended employ-
ees asked questions as to what the documents were and
to what they pertained and that they were characterized
by Respondent's representative as "grievances" filed
against the Union. Finishing Department Inspector Patty
Wheaton testified that at one meeting an employee asked
where the answers were to these "grievances," to which
Treacy, she believed, responded that "the answers are
with the grievances hanging on the walls." She could
recall no other comments although she testified that
there were many questions asked about literature posted
on the cafeteria walls. Her demeanor indicated a high
degree of uncertainty. Bramble, Kirchman, and Monroe
testified that Treacy responded that he did not know the
results of the grievances. Other employee witnesses on
behalf of the Respondent, including Harper, whom I
found to be one of the more convincing, fluent, and cer-
tain witnesses in the entire proceeding testified that Re-
spondent's representatives said nothing about what the
results of the grievances were. I discredit Wheaton be-
cause her recollection was the least certain of all wit-
nesses and also not probable inasmuch as the most casual
observer of these postings would have been aware that
no answers were posted, as indeed her question itself re-
vealed. I credit the testimony of Respondent's witnesses,
which except for Wheaton's testimony is not controvert-
ed by any General Counsel witnesses, i.e., the testimony
that Respondent asserted that it did not know the dispo-
sition of the charges.
Kirchman also testified that an employee asked why
the Respondent posted copies of unfair labor practice
charges and that the response was that it was "an at-
tempt to give you all the facts." The Union argues that
Respondent's characterization of the postings as "facts"
and their utilization as proof of favoritism is tantamount
to an assertion that the Board had found the Union
guilty of unfair labor practices. I do not agree. The doc-
uments on their face are self-explanatory, i.e., over 300
individual persons in various States filed unfair labor
practice charges with the Board premised on some per-
ceived ill treatment by a union that was set forth therein
as conduct violative of the Act. The evidence is insuffi-
cient to support a finding that the Respondent misrepre-
sented this unchallenged fact by suggesting that the
Board ultimately agreed that the alleged conduct consti-
tuted violative conduct. Respondent accused the Union
of favoritism in its dealings with its members. In support
of this accusation it relied on the fact that numerous per-
sons perceived themselves as victims of such treatment.
It made no effort to discover the ultimate disposition of
those charges by the Board nor, of course, the truth of
assertions therein. Indeed, the ultimate disposition by the
Board of those charges is immaterial, for the issue here is
not whether Respondent misrepresented the Union as vi-
olator of the Act, but whether Respondent supported its
campaign accusation of union favoritism with misleading
and incomplete information, i.e., the fact that only 300
persons alleged that they were treated unfairly is not evi-
dence that they were, in fact, treated unfairly. Dismissals
or settlements of these charges, which the Union at-
tempted to prove by its request to take administrative
notice of the various Regional Offices' dispositions, but
which I rejected, does not establish that the alleged con-
duct did not constitute unfair treatment, but only indi-
cates that the Regional Directors concluded that the alle-
gations fell short of a violation of the Act, either on the
merits or because of lack of evidence, or concluded that
for a variety of reasons the issuance of a complaint was
unwarranted. The only resolution of the truth or falsity
of each alleged mistreatment would entail an inquiry of
the facts of each case, a virtual impossibility for the
Union, the Respondent, and this tribunal. Therefore the
issue here must be resolved by an evaluation of the tend-
ency to interfere with the election of Respondent's reli-
ance on a half-truth at the close of the election campaign
that half-truth could not be reasonably rebutted by the
Union within the limited time remaining before the elec-
tion. I conclude that the Union's reliance on a line of
Board cases holding that misrepresentation of Board
processes and misuse of Board findings of complaints is
misplaced. The use of the charges here did not constitute
misrepresentation of a Board finding or a document
issued by the Board, by alteration, misquotation, or par-
tial quotation. The charges, i.e., the allegations therein,
were constructions of individuals and not the Board,
albeit they appeared on Board charge forms.
The Board stated in General Knit of California, 239
NLRB 619 (1978), in which the Board returned to the
standard originally set forth in Hollywood Ceramics, 140
NLRB 221 (1962):
[A]n election should be set aside only where there
has been a misrepresentation or other similar cam-
paign trickery, which involves a substantial depar-
ture from the truth, at a time which prevents the
other party or parties from making an effective
reply so that the misrepresentation, whether deliber-
ate or not, may reasonably be expected to have a
significant impact on the election. [140 NLRB at
224.]
The Respondent in its propaganda did not simply
allege that many employees were dissatisfied with the
Union's representation. The Respondent asserted to its
employees that the Union was in fact guilty of favorit-
ism, i.e., unfair or disparate representation of employees.
I have concluded that it did not accuse the Union of vio-
lating the Act. However, it clearly characterized its ac-
cusation of favoritism as being premised on a factual
basis . It announced to the employees that it had informa-
tion to support its accusation. It thereupon posted copies
of alleged unfair labor practices. The charges, of course,
can arguably constitute evidence that many members,
with or without justification, were dissatisfied with the
representation of the Union, and can be recognized as
UARCO, INC. 91
such by the employees. However, because Respondent
characterized and stressed that the charges were evi-
dence of the fact of improper representation, it clearly
implied to the employees that it had some information to
support the truth of the accusations therein. The Re-
spondent had no such information Accordingly, I find
that the Respondent engaged in a misrepresentation that
could not be adequately rebutted by the Union. I further
conclude that the misrepresentation was of a sufficiently
serious nature as to have impacted the employees' free-
dom of choice, i.e., it would have been of significant
import to the voter whether its prospective bargaining
agent had a nationwide factual record of unfair represen-
tation of its members as reflected in the experiences of
over 300 members of the Union, which was capable of
proof by the Respondent.
Accordingly, I conclude that Objection 10 is meritori-
ous and that by such conduct the Employer interfered
with the election.
The only other litigated incident alleged to have con-
stituted election interference, but that was not encom-
passed within the allegations of the complaint, and that
was explicitly disavowed by the General Counsel as vio-
lative conduct, concerns the conduct of Supervisors
Herman Maynard and Gary Sharp.
During the election campaign, employees Jesse Bates,
Billy Vessels, and Bill Jordan made short prounion
speeches to coworkers during lunchtime in the lunch-
room. It is not clear how often these speeches were
given. Bates testified that on two or three occasions Su-
pervisor Maynard came into the lunchroom and sat and
listened as these speeches were made. Prior to the elec-
tion campaign, the foremen did not eat lunch in the
lunchroom. It is not clear whether they entered the
lunchroom for other purposes, i.e., use of the vending
machines. Maynard testified that on two occasions in
March he did go into the lunchroom because he heard of
the speeches and was curious. Therefore he went in and
remained for about 20-25 minutes each time at the far
end of the room. During the first visit he did hear Bates
and Vessels render 5-minute speeches. On his first visit,
Foreman Gary Sharp sat with him. The second day,
Maynard heard Jordan deliver a short prounion speech.
Neither foreman said anything to any employee on those
occasions. The room was large enough to accommodate
20 tables. At those times 15 employees were taking their
lunch. There is no evidence that Maynard engaged in
this conduct at the instruction of his supervisors, or that
he reported back his observations. Cf. Russell Stover Can-
dies, 223 NLRB 592 (1976).
I cannot conclude that Foreman Maynard and Sharp's
brief auditing on one or two occasions of the prounion
speeches given openly by union activists within the Re-
spondent's plant constituted coercive spying or surveil-
lance of union activity. Furthermore, the incident was
too isolated to have impacted the election, or to have
amounted to a violation of the Act.
In light of my findings with respect to the alleged
unfair labor practice allegations, I find meritorious Ob-
jections 3, 4, 9, and 10. The remainder of the objections,
I conclude, are not supported by sufficient evidence.
With respect to Objection 6, the only alleged discrimina-
tion litigated herein was pertaining to the discipline of
William Vessels discussed elsewhere as an alleged unfair
labor practice. Accordingly, I recommend that the elec-
tion in Case 9-RC-13225 be set aside.
THE REMEDY
It having been found that the Respondent engaged in
unfair labor practices in violation of Section 8(a)(1), (2),
and (3) of the Act, it will be recommended that the Re-
spondent cease and desist therefrom and take certain af-
firmative action designed to effectuate the policies of the
Act.
It having been found that the Respondent discrimina-
torily terminated and refused to recall to employment
Martha Langdon on Ap;ril 10, 1980, I shall recommend
that the Respondent be ordered to reinstate her to her
former or substantially equivalent position, without prej-
udice to her seniority or other rights and privileges, and
to make her whole for any loss of earnings she may have
suffered by reason of the discrimination against her. Any
backpay found due shall be computed in accordance
with the formula set forth in F. W. Woolworth Co., 90
NLRB 289 (1950), and Florida Steel Corp., 231 NLRB
651 (1977).'
As the Respondent has dominated, interfered with the
administration of, and rendered unlawful assistance to the
Employee Committee, I shall recommend that the Re-
spondent be ordered to disestablish and desist from rec-
ognizing and dealing with the Employee Committee as
the representative of any employees over employee
grievances, rates of pay, wages, hours, or working condi-
tions.
Finally, the General Counsel and the Charging Party
argue that a bargaining order is appropriate in this case.
The Supreme Court in Gissel, supra, 613, 614, held that
a bargaining order would be appropriate where the
unfair labor practices of the employer were "outrageous"
and pervasive" and the coercive effects were unable to
be eliminated by traditional remedies. The Court also
held that a bargaining order is appropriate "in less ex-
traordinary cases marked by less pervasive practices that
nonetheless still have the tendency to undermine majori-
ty strength and impede the election processes." Further-
more, in Gissel, the Supreme Court affirmed the enforce-
ment order of the United States Court of Appeals for the
First Circuit in the Sinclair case that provided for a bar-
gaining order as an appropriate remedy for unfair labor
practices strikingly similar to those therein, i.e., propa-
ganda that conveyed the message "that the company was
in a precarious financial condition"; that the "strike-
happy" union would in all likelihood have to obtain its
potentially unreasonable demands by striking, the proba-
ble result of which would be a plant shutdown, as the
past history of labor relations in that area indicated; and
that the employees in such a case would have great diffi-
culty finding employment elsewhere." Gissel, supra.
Preelection campaign propaganda that, in effect,
threatens plant closure, has been recognized by the
Board as the most pervasive, lingering, and irradicable
7 See generally Isis Plumbing Co, 138 NLRB 716 (1962)
92 DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD
form of coercion. Milgo Industrial, 203 NLRB 1196, 1200
(1973); Jimmy-Richard Co., supra ; Stride Rite Corp.,
supra . Such conclusion applies with cogency in a situa-
tion like that herein, where the plant's profit loss has
been stressed, and employees who pointedly informed of
the ease of plant relocation.
In the instant case the employees had designated the
Union as bargaining agent . That majority had been dissi-
pated by Respondent 's unlawful conduct . An argument
might be made that inasmuch as the election vote was
close , despite the lawful coercion , given the remedial
impact of a traditional remedy , i.e., posting of notices,
etc., that a second election would provide employees
with an uncoerced opportunity to express their choice.
Although I do not dismiss that argument lightly , I do not
agree with it. Respondent 's coercive message was force-
fully and repetitively propagated to the entire bargaining
unit . Its impact was evidenced by comments and con-
cerns raised at employee meetings . Part of that message
stressed the element of futility , i.e., whatever employee
concerted efforts were made was of no consequence.
Thus employees were told that it was futile to organize,
futile to bargain , and futile to strike. In my judgment it
would truly be futile to order a second election. The ma-
jority of employees had designated the Union as bargain-
ing agent . After much campaigning and much litigation
the employees cannot now be expected to enter the elec-
toral process with a fresh and open mind as to the issue
of representation . The length of time that had elapsed
herein does not act as a cleansing agent , but serves only
as a reminder of the futility of their original efforts. Most
likely to be blurred in memory are the fine points of bar-
gaining as explained by Attorney Treacy in those 23
meetings . Most likely to be indelibly retained in aware-
ness are the written references to strikes and plant clo-
sures and loss of jobs. As the witnesses in this proceed-
ing revealed , after the passage of time only the essential
thrust of campaign propaganda is recalled and details are
obscured. Furthermore, the Respondent's conduct that
emanated from its highest levels of authority does not
appear to be that of some briefly errant adventure.
Rather , the Respondent 's coercive literature was deliber-
ately and carefully prepared , and it persisted and acceler-
ated in coerciveness up to the election date despite the
concerns raised by employees at the meetings . Following
the election , Respondent did not cease its unlawful con-
duct . Rather , it remedied certain persistent employee
complaints and did so in a manner to enhance the posi-
tion of the unlawfully dominated Employee Committee.
By its postelection conduct the Respondent implied to
its employees that it would be more responsive to their
complaints and grievances and that the "outside" Union
was not necessary for such a function , i.e., a mechanism
to resolve grievances. The failure to recall to employ-
ment a well -known union activist served as a small re-
minder of adversity that can befall employees who sup-
port union representation . Such postelection conduct fur-
ther tended to erode the Union's status and suggests a
proclivity to engage in future unlawful conduct if an-
other election were directed.
I do not conclude that the posting of a notice can ade-
quately exercise the fears that necessarily must have been
implanted in the consciousness of the employees , nor can
such notice resurrect and restore to their prior levels of
intensity , the enthusiasms , energies , self-confidence, and
commitments of employees who had desired something
that their employer vigorously opposed but that was,
they were led to believe , guaranteed them under the law
if they formed a majority among their coworkers, i.e.,
union representation . Therefore I conclude that a second
election is not appropriate , but rather that the Respond-
ent ought to be ordered to bargain with the Union as of
the commencement date of the unfair labor practices cal-
culated to dissipate the majority status of the Union.
On the foregoing findings of fact and on the entire
record, I make the following
CONCLUSIONS OF LAW
1. All full-time and regular part -time production and
maintenance employees , including shipping and receiving
employees employed by Respondent at its Radcliff, Ken-
tucky facility, but excluding office clerical employees,
technical employees , professional employees , and all
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.
2. From about January 1 to February 3, 1980, a major-
ity of the employees of Respondent , in the unit described
above, designated and selected the Union as their repre-
sentative for the purpose of collective bargaining.
3. At all times since February 27, 1980, the Union, by
virtue of Section 9 (a) of the Act , has been , and is, the
exclusive representative of the employees in the unit de-
scribed above for the purpose of collective bargaining
with respect to rates of pay, wages, hours of employ-
ment , and other terms and conditions of employment.
4. From February 27 until March 19, 1980, by distrib-
uting literature to employees that threatened them with
loss of jobs, loss of benefits, inevitable strikes, and plant
closure in the event they designated the Union as the
collective-bargaining agent and that implied that it
would be futile for them to select the Union as their col-
lective-bargaining representative , the Respondent has en-
gaged in unfair labor practices affecting commerce
within the meaning of Section 8(a)(1) of the Act and has
interfered with the conduct of the election conducted in
Case 9-RC-13225.
5. By coercively interrogating employees concerning
their union sympathies , and by threatening an employee
with plant closure if the Union were selected as to the
collective-bargaining agent , the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act and has interfered
with the conduct of the election.
6. By soliciting and promising to correct employee
complaints and grievances during its meetings with em-
ployees in March 1980 in order to induce employees to
reject union representation , the Respondent has engaged
in unfair labor practices affecting commerce within the
meaning of Section 8(a)(1) of the Act and has interfered
with the conduct of the election.
7. Since November 2, 1979, and all material times
thereafter, the Respondent has dominated and interfered
UARCO, INC 93
with the administration of, and rendered unlawful assist-
ance and support to , the Employee Committee , a labor
organization within the meaning of Section 2(5) of the
Act, and thereby has engaged in unfair labor practices
affecting commerce within the meaning of Section
8(a)(2) and (1) of the Act.
8. By its postelection remedying of employee com-
plaints concerning parking lot security , mandatory Satur-
day overtime , and seniority , Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8 (a)(2) and (1) of the Act.
9. By discriminatorily terminating the employment of
Martha Langdon on April 10 , 1980, because of her union
activities and sympathies , Respondent has engaged in
unfair labor practices affecting commerce within the
meaning of Section 8(a)(3) and (1) of the Act.
10. The Respondent has not engaged in violations of
the Act other than those herein specifically found.
[Recommended Order omitted from publication.]