United States Aviex Co.

National Labor Relations Board - Board Decisions

Apr 30, 1986

279 N.L.R.B. 826 (N.L.R.B. 1986)

826 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
United States Aviex Company and International
Union of Electrical, Radio and Machine Work-
ers, AFL-CIO. Cases 7-CA-21791, 7-CA-
22573, and 7-RC-16853
30 April 1986
DECISION AND ORDER
BY CHAIRMAN DOTSON AND MEMBERS
DENNIS AND BABSON
On 24 October 1984 Administrative Law Judge
Donald R . Holley issued the attached decision.'
The Respondent and the Charging Party filed ex-
ceptions and supporting briefs , and the Respondent
filed an answer to the Charging Party's exceptions.
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 as modified and to adopt his recom-
mended Order.4
' On 8 March 1985 the judge issued an Erratum to his decision
2 The Respondent and the Charging Party 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
We note that although the judge initially stated that 15 votes were cast
against the Petitioner in the February 1983 election , he correctly stated
later in his decision that 17 votes were cast against the Petitioner We
also correct the judge's error in referring to the Respondent 's foreman
Chavous as "Chaveous "
8 In adopting the judge's conclusion that the Respondent engaged in
objectionable preelection conduct , we do not rely on his finding that the
Respondent 's president Kaiser , in remarks during the employee meeting
on 17 January 1983, failed to differentiate between economic and unfair
labor practice stnkes and thereby led employees to conclude that their
participation in any strike while employed by the Respondent would
place their jobs in jeopardy
In adopting the judge's conclusion that the Petitioner did not engage in
objectionable conduct , we find that the statements made by in -plant orga-
nizing committee members Brown and Brady were unobjectionable irre-
spective of whether they were acting as agents of the Union
Furthermore , we affirm the judge ' s overruling of the challenges to the
ballots of laid-off employees Marion Glaser and Ronald Zebell, but we
disavow , for lack of substantiation, the judge 's suspicion that written ter-
mination slips for employees in layoff status, dated in January 1983, were
probably prepared after the 17 February election In addition, we note
that the judge inadvertently found that Zebell was hired on 10 October
rather than 22 October 1982
Member Babson notes that no exceptions have been filed to the judge's
dismissal of the alleged 8(a)(1) violation based on the early January 1983
conversation between the Respondent's official Craig Bryant and employ-
ee John Bryant
4 We find , in agreement with the judge , that the Respondent 's few iso-
lated 8(a)(l) violations do not warrant the issuance of a Gissel bargaining
order In so finding , however, we do not rely on his ancillary finding
that the Petitioner never made an effective demand on the Respondent
for recognition and bargaining
In finding a bargaining order inappropriate , Member Dennis relies on
her concurring opinion in Regency Manor Nursing Home, 275 NLRB 1262
(1985)
The judge found that Supervisor Chavous en-
gaged employee Arroyo in coercive interrogation
on 14 December 1982 in violation of Section
8(a)(1) of the Act. We disagree for the reasons set
forth below.
During the Union 's campaign beginning in early
December 1982 various employee supporters wore
hats and buttons bearing the I-U-E logo. Arroyo
was wearing such a hat at his workplace on 14 De-
cember when Supervisor Chavous approached and
asked if Arroyo was satisfied with the Company.
Arroyo responded affirmatively and Chavous re-
plied, "Well, I don't know, if you're satisfied or not
because you're wearing a funny hat around the
company." Arroyo further testified that he and
other employees continued to wear I-U-E buttons
and hats thereafter.
The judge credited Arroyo and interpreted Cha-
vous' remarks as indicating to Arroyo, in effect,
that people who enjoyed their jobs did not sign
union cards. He found an element of coercion in
the context of their conversation as it could have
reasonably led Arroyo to conclude that his job was
in jeopardy because he signed a union card. He
therefore concluded that Chavous' remarks violat-
ed Section 8(a)(1). Contrary to the judge, we find
Chavous' statement did not reasonably convey a
threat of job loss. Further, in the totality of the cir-
cumstances here, including Arroyo's open organiz-
ing activity and the absence of any other state-
ments in the conversation which would reasonably
tend to coerce Arroyo, we find that Chavous' re-
marks to Arroyo did not violate the Act. 5 Accord-
ingly, we reverse the judge and dismiss this 8(a)(1)
allegation.
ORDER
The National Labor Relations Board adopts the
recommended Order of the administrative law
judge and orders that the Respondent, United
States Aviex Company, Niles, Michigan, its offi-
cers, agents , successors, and assigns , shall take the
action set forth in the Order.
IT IS FURTHER ORDERED that Case 7-RC-16853
be severed and remanded to the Regional Director
for Region 7 who shall, pursuant to the Board's
Rules and Regulations, within 10 days from the
date of this Decision and Order, open and count
the ballots of Fred Shaner, Bradley Clear, Marion
Glaser, and Ron Zebell, and prepare and cause to
No exceptions were filed to the judge 's recommendation that numerous
8(a)(1) complaint allegations be dismissed
s Rossmore House, 269 NLRB 1176 (1984)
Member Dennis agrees with the judge that the conversation was coer-
cive because the supervisor suggested that the Company viewed union
activity as inconsistent with continued employment
279 NLRB No. 110
UNITED STATES AVIEX CO.
be served on the parties a revised tally of ballots,
including the count of the ballots. If the revised
tally shows that a majority of the valid votes has
been cast for the Petitioner, the Petitioner's Objec-
tions 1, 2, 3, 4, 6, and 9 will be moot, and the Re-
gional Director shall issue the appropriate certifica-
tion of representative. However, in the event that
the revised tally of ballots shows that a majority of
the valid votes has not been cast for the Petitioner,
the following shall be applicable:
IT IS ORDERED that the election conducted on 17
February 1983 be set aside. The Regional Director
shall conduct a new election when he deems the
circumstances permit the free choice of a bargain-
ing representative.
Howard M. Dodd, Esq., for the General Counsel.
Paul F. Gleeson, Esq. (Vedder, Price, Kaufman and
Kammholz), of Chicago, Illinois, for the Respondent.
Carole W Wilson, Esq, of Washington, D.C., for the
Charging Party.
DECISION
STATEMENT OF THE CASE'
DONALD R HOLLEY, Administrative Law Judge The
original charge in Case 7-CA-21791 was filed by the
above-named Union on February 23, 1983. Subsequently,
on April 29, 1983, the Regional Director for Region 7 of
the National Labor Relations Board issued a complaint
which alleged that United States Aviex Company (Re-
spondent and/or the Employer) had engaged in conduct
which violates Section 8(a)(1), (3), and (5) of the Nation-
al Labor Relations Act. In addition, the April 29, 1983
complaint set forth the Regional Director's report on ob-
jections and challenged ballots in Case 7-RC-16853, and
the representation case was consolidated with the unfair
labor practice case for hearing. Respondent filed a timely
answer denying it had engaged in the unfair labor prac-
tices alleged. On September 6, 1983, the Union filed the
original charge in Case 7-CA-22573. Thereafter, on Oc-
tober 31, 1983, the Regional Director issued an amended
consolidated complaint which reiterated the allegations
contained in the original complaint and alleged that Re-
spondent had engaged in additional violation of Section
8(a)(3) of the Act by assigning employee Jimmie Brady
to more onerous working conditions on February 23,
1983, and by demoting employee Kenneth Frantz on
February 23, 1983. On November 1, 1983, the Regional
Director issued an erratum to the amended consolidated
complaint correcting specified inadvertent errors, and on
November 4, 1983, Respondent filed a timely answer to
the amended complaint denying it had committed the
unfair labor practices alleged.
The hearing was commenced in the case in Cassopolis,
Michigan , on December 19, 1983 , and was thereafter
continued in Niles, Michigan, on December 20 and 21,
I Charging Party's motion to correct transcript, which is unopposed, is
granted
827
1983, and on February 14, 15, and 16, 1984. Subsequent
to the close of the hearing , the parties filed posthearing
briefs which have been carefully considered. On the
entire record and from my observation of the witnesses
who appeared to give testimony , I make the following
FINDINGS OF FACT
1. JURISDICTION
Respondent , a Michigan corporation , maintains its
office and place of business at 1800 Terminal Road,
Niles , Michigan , where it is engaged in the manufacture,
sale, and distribution of chemicals and related products.
During calendar year 1982 , it sold and distributed to cus-
tomers located outside the State of Michigan products
which were valued in excess of $50,000. It is admitted,
and I find , that Respondent is an employer engaged in
commerce within the meaning of Section 2 (2), (6), and
(7) of the Act.
II. STATUS OF LABOR ORGANIZATION
It is admitted , and I find, that International Union of
Electrical , Radio and Machine Workers , AFL-CIO is a
labor organization within the meaning of Section 2(5) of
the Act.
III. THE ALLEGED UNFAIR LABOR PRACTICES
A. Overview of the Case
Respondent is a privately held corporation which man-
ufactures and sells automotive chemical products. Fay
Kaiser owns all the outstanding stock of the corporation.
The business is heavily seasonable as approximately 70
percent of the products manufactured are winter-aid
automobile products , such as gasline antifreeze , starting
fluid, and windshield ice remover.
The record reveals that Respondent sells products
under its own name and under the name of a sister com-
pany, Northern Chemical. In addition, it produces pri-
vate label products for other companies. Because its
products must go through several distribution levels
before reaching the customer , Respondent 's operations
begin building up several months before the onset of
winter, generally around September of each year. Re-
spondent contends , and the record reveals, that its winter
sales season normally ends in mid -February.
At the commencement of its 1982-1983 winter sales
period , Respondent employed approximately 30 produc-
tion and maintenance employees in various job classifica-
tions , including that of machine operators , setup; line
workers ; shipping employees ; maintenance employees;
drivers; janitors and guards; and laboratory employees.
From late September through the end of October 1982, it
hired approximately 20 new employees , most of whom
were to be utilized as production line employees.
On December 1, 1982, eight of Respondent's employ-
ees met with Ellis Holland , an International representa-
tive of the Union . Each of them signed union authoriza-
tion cards and agreed that Holland could inform the Re-
spondent they were assisting the Union in an attempt to
organize its operation. The next day, December 2, West-
828 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ern Union telephoned Respondent to deliver a telegram
which advised that the Union was assisting the employ-
ees to organize and that the eight named employees were
on the organizing committee . Respondent 's receptionist
accepted a portion of the message, but, acting on the in-
structions of Respondent Vice President Fekrat, refused
to accept the portion of the telegram identifying the em-
ployee organizers.
At noon on December 2, Respondent shut down its
production lines and laid off virtually all its employees
whose job tasks related directly to production. The Gen-
eral Counsel claims Respondent effectuated the layoff be-
cause it had learned that morning that its employees
were interested in organizing. Respondent contends that
economic considerations compelled it to effectuate the
layoff.
On December 15, the Union drafted a demand letter in
which it indicated it represented a majority of Respond-
ent's production and maintenance employees and was re-
questing that Respondent recognize and bargain with it.
The following day, 12 employee-members of the Union's
organizing committee delivered the letter to Kaiser's
office. Fred Fekrat subsequently contacted one of the
employees and informed him the Company would not
accept the letter. Thereafter, it was retrieved by the em-
ployee.
During the period extending from December 3 to 13,
1982, Respondent recalled the 18 employees named in
paragraph 18(a) of the complaint to work. On various
dates extending from January 11, through 31, 1983, it al-
legedly terminated the 15 employees named in paragraph
18(b) of the complaint. The General Counsel contends
the December 2 layoff and the subsequent terminations
were effectuated in violation of Section 8(a)(3) of the
Act. Respondent contends it laid off employees on De-
cember 2 for economic reasons and the subsequent termi-
nations were accomplished in accordance with its normal
company personnel policies.
The Union filed the petition in Case 7-RC-16853 on
December 20, 1982. An election was held in that case on
February 17, 1983. The Union received 19 votes, 15
votes were cast against it, and the ballots of 5 individuals
were challenged. The Employer and the Union both
filed timely objections to the conduct of the election.
Such objections and challenged ballots are discussed in
detail, infra.
The General Counsel contends that, from the com-
mencement of the unionization campaign forward, Re-
spondent has engaged in the commission of a number of
unfair labor practices. The allegations are discussed indi-
vidually below.
B. Alleged 8(a)(1) Violations
Paragraphs 14 through 17 of the complaint allege that
named Respondent supervisors and/or agents engaged in
various conduct during the organization campaign which
violated Section 8(a)(1) of the Act. The supervisors in-
volved are named in paragraphs 7 and 8 of the com-
plaint . They are:
Fay Kaiser President
Fred Fekrat Vice President
Andy Chaveous Foreman
Rod Boyle Batch Supervisor
Jack Helt Maintenance Supervisor
Ed Bartek Machine Operator
Norm Clear
Craig Bryant
Supervisor
Technical Director
Vice President, Sales
Respondent admits , and I find, that the named individ-
uals are supervisors within the meaning of Section 2(11)
of the Act.2
The specific conduct attributed to each of the supervi-
sors named isdiscussed below:
1. Fay Kaiser
Kaiser, Respondent's sole owner and its president, is
alleged to have violated the Act through his conduct at
meetings with employees on December 9, 1982, and Jan-
uary 17, 1983, and through comments made to two em-
ployees on February 16 and 17, 1983.
a. December 9 meeting
Paragraph 13(a) of the complaint alleges that Kaiser
violated Section 8(a)(1) on December 9, 1982, as he:
(i) solicited employee complaints and grievances,
promised its employees improved conditions of em-
ployment if they rejected the Charging Party Union
as their collective bargaining representative; and
(ii) promised its employees raises and bonuses, if
they rejected the Charging Party Union as their
collective bargaining representative.
No evidence was offered to support the allegation set
forth at paragraph 13(a)(ii) of the complaint and that
portion of the complaint was dismissed on Respondent's
motion at the conclusion of the General Counsel's pres-
entation of evidence.
The General Counsel sought to prove the allegations
set forth in paragraph 13(a)(i) of the complaint through
the testimony of employee witnesses, Ronald Zebell,
David Brown, Marion Glaser, Robert Shepherd, Gary
Pease, David Wolfe, and Cedric Moodie.
When the above-named employees appeared as wit-
nesses , the General Counsel asked each of them to de-
scribe what was said at the December 9 meeting. With
respect to the allegation that Kaiser solicited their griev-
ances during the meeting, Zebell testified Kaiser told
them during the meeting that they did not need a union
because they had an open-door policy and the employees
could go to them with their problems. Brown's recollec-
tion was that Kaiser told them they had been given a
handbook, and, if there were problems, they could come
to them or their immediate supervisor. Glaser's recollec-
tion was that Kaiser informed the employees the Compa-
ny had an open-door policy, and, if there were problems,
they could see him at any time. Shepherd indicated he
2 Although Respondent indicated in its answer to complaint that it was
not admitting such individuals were its agents at all times material, I find
that as it vested them with supervisory authority , it is responsible for
their action
UNITED STATES AVIEX CO
recalled that Kaiser told them they did not need a union
there; that they could bring their complaints to the Com-
pany because of their open-door policy, and they could
take care of it. Pease, whose recollection was obviously
faulty, testified that Fekrat rather than Kaiser told them
during the meeting that, if they had any problems, they
could bring them to them and they would take care of
them. Wolfe, the only witness produced by the General
Counsel who recalled that management was represented
at the meeting by Kaiser, Fekrat, and Craig, testified
that, during the meeting, some employee asked Kaiser
how grievances could be handled. His recollection was
that Kaiser replied that all the employees were supposed
to have received a handbook and there was a procedure
to handle grievances right in the book. Finally, Moodie
testified at all meetings held by the Company, Kaiser
told them if they had any problems he would take care
of them.
When he appeared as a witness, Kaiser indicated that
during the December 9 meeting an employee from the
floor asked him how they could voice their grievances
and how they could be taken care of. He claims he re-
sponded by stating the company handbook sets out a
procedure for doing this and they had always followed
that procedure with satisfactory results. He testified he
indicated the procedure gave them a route to go if they
had problems, and it also gave them an escape hatch to
come directly to the officers of the Company as it specif-
ically talks about an open-door policy.'
I conclude that Kaiser's testimony, which was cor-
roborated to a great extent by the General Counsel's wit-
ness Wolfe, most reliably reveals what was said to em-
ployees concerning grievances during the December 9
meeting . I find that by informing employees that the
Company had an open-door policy for handling griev-
ances which was described in an employee handbook,
Respondent did not violate Section 8(a)(1) of the Act as
alleged Accordingly, I recommend that paragraph
13(a)(i) of the complaint be dismissed.
b. January 17 meeting
Paragraph 13(b) of the complaint alleges that at an em-
ployee meeting held on January 17, 1983, Kaiser "solicit-
ed employee complaints and grievances and promised to
remedy them, if employees rejected the Charging Party
Union as their collective bargaining representative."
The General Counsel sought to prove the above-de-
scribed allegation through the testimony of employees
Shepherd and Moodie. The former testified that on Janu-
ary 17 Kaiser informed employees "if we had problems
we could bring our grievances or complaints to supervi-
sors or the Company and they would take care of them."
Moodie testified that Kaiser told them if you had any
problems he would take care of them-just come to him.
Kaiser testified that he read a prepared text at the Jan-
uary 17, 1983 meeting . Significantly, he was corroborat-
3 After Kaiser explained that the handbook contained a grievance pro-
cedure , he was advised that most employees had not received a hand-
book because they were destroyed in a 1978 fire He informed the em-
ployees during the meeting that new copies would be printed and distrib-
uted to them
829
ed in this assertion by the General Counsel 's witnesses,
Shepherd and Wolfe. The text of his speech was placed
in the record as Respondent's Exhibit 18. The only por-
tions of the speech which could fairly be said to relate to
grievances directly or indirectly are found on page 5 of
the document . They are as follows:
Remember, however, we cannot make any prom-
ises or agree to any remedy during this election
period
We can solve our problems by talking amoung
[sic] ourselves and come out a lot better than bring
in an outsider. Remember, "Two is company, three
is a crowd." Thank you.
It is clear , and I find, that Kaiser did not make the
comments attributed to him by Shepherd and Moodie at
the January 17, 1983 meeting. It is equally clear that he
did not, by making the comments found in the text of the
written speech, which are set forth above, solicit em-
ployee grievances and promise to remedy them during
the meeting. I recommend that paragraph 13(b) of the
complaint be dismissed.
c. Forklift situation
Paragraph 13(c) of the complaint alleges that Respond-
ent (through Kaiser) told an employee on February 16,
1983, that employees would not be permitted to operate
the forklift if they selected the Union as their bargaining
representative.
The General Counsel sought to prove the allegation
through the testimony of employee John Bryant
Bryant testified that while he was storing items on the
mezzanine of the plant on February 16, Kaiser ap-
proached him and stated: "Do you know, after you vote
the Union in, you won't be able to drive the forklift?"
Bryant claims he responded by asking, "[W]ho told you
I was going to vote the Union in?" He claims Kaiser re-
plied, "[I]t was all over the shop," and that he then
stated, "Well, I don't know where you heard that at."
Bryant testified Kaiser concluded the conversation by
stating : "I knew I could count on you."
When he appeared as a witness, Kaiser testified that,
during the spring of 1982, Bryant tipped over a forklift
while attempting to move a tank by himself. According
to Kaiser, he learned of the incident the following morn-
ing and that caused him to warn Bryant that he was not
to operate forklifts when he was alone or without imme-
diate supervision. Kaiser claims that on February 16 he
noticed Bryant drive by the lunchroom on a forklift and
that he followed him to the mezzanine and conversed
with him as follows (Tr. 813):
A. And I said , "Wouldn't the regular lift truck
drivers do this for you, John?" I said , "Did they
refuse you?" And he said, "No, they didn't refuse
me, but they were busy so I dust jumped on the lift
truck and brought it around here. And I said,
"Well, John, we have job classifications here. They
are not strictly enforced or as strictly enforced as
they might be if we had a union here, but we do
830 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
have them; and I would appreciate it if you would
take the lift truck and take it back to where you got
it carefully and give it back to the operator, and in
the future, let the operators, the regular drivers, do
this work for you."
Q. And what, if anything, did Mr. Bryant say?
A. He said, "Okay; I will take it back."
Jack Helt, Bryant's immediate supervisor, corroborat-
ed Kaiser's testimony indirectly by testifying Bryant op-
erated fork lifts carelessly and had been repeatedly told
by him that he was not to operate them without close
supervision.
Bryant denied that Kaiser told him at any time that he
was not to operate a forklift. He claimed that he fre-
quently operated forklifts in the course of the perform-
ance of his maintenance work and claimed Helt had in-
structed him to drive forklifts on at least 20 occasions.
The record reveals that Bryant sought during the or-
ganization campaign to convince Respondent Officials
Craig, Fekrat, and Kaiser that he was procompany, and
during the same period he supported the Union by sign-
ing an authorization card . Kaiser was the more impres-
sive witness and I credit his version of the February 16,
1983 incident. Accordingly, I recommend that paragraph
13(c) of the complaint be dismissed.
d. Lawshea situation
Paragraph 13(d) of the complaint alleges that Re-
spondent violated Section 8(a)(1) on February 17, 1983,
by promising to recall its laid-off employees if its em-
ployees would agree to vote against the Union in the
representation election.
The General Counsel sought to prove the allegation
through the testimony of employee Charles Lawshea Sr.
The record reveals that Charles Lawshea Jr. was em-
ployed by Respondent on October 7, 1982. He was laid
off on December 2, 1982. His father, Charles Lawshea
Sr. testified that on February 17, 1983, the day the elec-
tion was held in Case 7-RC-16853, Andy Chaveous told
him his son "did good work and if I give them a vote for
the company my son would be called back to work."
According to Lawshea, after Chaveous made the above-
described comment to him, Kaiser walked up to them
and Chaveous told him he had just been telling Charlie
about his son and working conditions there, and that
caused Kaiser to say: "Yes, Charlie was a good worker
and if you'll give us a vote for the company and every-
thing there, then he would be called back to work."
Chaveous testified that on the occasion under discus-
sion, Lawshea Sr. told him as he was passing the em-
ployee's work station: "Andy, I will give you what you
want." Chaveous claims he asked Lawshea if he would
tell that to Kaiser, and the employee told him to go get
Kaiser. Chaveous testified he went to Kaiser, told him
Lawshea had said he would give them what they
wanted, and that Kaiser accompanied him back to Law-
shea's work station . According to Chaveous, Kaiser told
Lawshea his son was first on the list for recall to the
batch room when business picked up; that there was a
man ahead of him, but his work had been unsatisfactory.
Kaiser testified Chaveous came to him on February 17
and told him Lawshea Sr. had told him he was going to
give the Company "what we wanted," and that Lawshea
wanted to talk with him. Kaiser claims he went to Law-
shea 's work station with Chaveous and that he and the
employee discussed one of Lawshea's neighbors who had
worked at the plant previously. Kaiser indicated Law-
shea then asked him what he thought of his son's work-
where did he stand on the seniority list-and would they
be calling him back. Kaiser testified he replied his son's
work was very satisfactory; that he was number two on
the seniority list to go back to the batch room; that, in
fact, because the number one man's work was unsatisfac-
tory, he would really be number one to go back in the
batch room if and when business picked up and the work
warranted it.
Respondent contends I should refuse to credit Law-
shea's testimony because he originally indicated he initi-
ated the conversation with Chaveous on February 19 by
inquiring about his son, but subsequently claimed Cha-
veous initiated the conversation by asking him if his son
had found other work. In addition, Respondent supports
its contention by observing that Lawshea testified on
direct examination that Chaveous and Kaiser told him
his son would be recalled if he gave them a vote for the
Company, but subsequently indicated during cross- exami-
nation that they had both told him his son would be re-
called if he gave them what they wanted. Although
Lawshea's testimony during direct examination and on
cross-examination did vary somewhat, the employee ap-
peared to be a sincere individual who was attempting to
tell the truth. I strongly suspect that he did initiate the
conversation with Chaveous and I suspect that he volun-
tarily offered to vote for the Company if Chaveous and
Kaiser would assure him that they would repay him by
recalling his son to work at the plant. There is no doubt
in my mind that when Chaveous sought out Kaiser to
inform him of the deal he and Lawshea had discussed, he
informed Kaiser the employee was willing to trade his
vote for the Company's recall of his son to work. Signifi-
cantly, Chaveous testified that when he went to Kaiser,
he merely told him Lawshea had said he would give
them what they wanted. Common sense causes me to
conclude he told Kaiser more-that the quid pro quo
was the recall by the Company of Charles Lawshea Jr.
Lawshea Sr . claims that when Kaiser spoke with him, he
told him his son would be recalled if he voted for the
Company. I believe his assertion. Accordingly, I find, as
alleged , that on February 17, 1983, Respondent violated
Section 8(a)(1) of the Act by promising Charles Lawshea
Sr. that it would recall his son to work at the plant if he
voted for the Company in the February 17, 1983 elec-
tion.
2. Andrew Chaveous
a. December 2 and 3 conduct
Paragraphs 14(a), (c), and (e) of the complaint allege
that Chaveous unlawfully interrogated employees re-
garding their union membership, activities, and senti-
ments on December 2, 3, and 14, 1982. Paragraph 14(b)
UNITED STATES AVIEX CO. 831
alleges that on December 3, 1982, Chaveous violated
Section 8(a)(1) by creating the impression employees'
union activities were under surveillance and by disparag-
ing employees because they selected the Union as their
bargaining agent. The General Counsel sought to prove
the allegations through the testimony of employees
Marion Glaser, Jeffery Weaver, and Santiago Arroyo.
Glaser testified that on December 2, 1982, at approxi-
mately 9:45 a.m., Chaveous walked up to her and asked,
"[W]hat union did you have at Essex Wire?" She claims
she responded AFL-CIO, something to do with aero-
space workers, and Chaveous then asked, "[A]re you
sure it wasn't electrical workers?" Glaser claims she told
him no and attempted to find the Essex Wire contract in
her purse but discovered it was not there.
Weaver testified that early in the morning of Decem-
ber 3, 1982, Chaveous came to his work station to see
how the line was going and after Weaver told him it was
going good, Chaveous commented, "I thought we were
buddies." Weaver claims that an hour later Chaveous re-
turned and said, "Talk about Tony Grimes being stupid
. .. you aren't even a man." Weaver testified Chaveous
then told him he had received a phone call stating he
had signed. Weaver claims he said, "I signed what," and
Chaveous replied, "you know what." Later the same
morning, Weaver claims Chaveous again came to his
work station to ask how the line was going. Weaver tes-
tified that when he said fine, Chaveous said, "Chicken"
and left.
Arroyo testified that on December 14, 1982, at ap-
proximately 10 a.m., Chaveous asked him whether he
was satisfied with the Company. He claims that, when he
said yes, Chaveous said he did not know if he was satis-
fied or not because he was wearing a funny hat around
the Company. Arroyo indicated he was wearing a hat
with an I-U-E emblem on it at the time.
Chaveous denied having any of the conversations de-
scribed by the above-named employees. With respect to
Glaser, he testified the only conversation he had with
this employee on December 2 was a conversation which
occurred at approximately 11 a.m. during which the em-
ployee asked permission to go home. With respect to
Weaver's assertions, he denied making the remarks at-
tributed to him by Weaver and claimed that on Decem-
ber 3 he did not know who had signed union cards. Fi-
nally, with respect to Arroyo, he testified he had never
referred to Arroyo's hat in any way; had never asked
Arroyo if he was satisifed with the Company; and had
never told Arroyo he believed he was dissatisfied.
Respondent argues I should credit Chaveous rather
than the employees. In the alternative, it contends that
the Board's decision in Rossmore House, 269 NLRB 1176
(1984), should cause me to find that the testimony given
by Glaser and Arroyo does not prove a violation of Sec-
tion 8(a)(1).
I resolve the credibility conflicts without difficulty as
Glaser and Arroyo were impressive witnesses while Cha-
veous was not. Although Weaver was not as impressive
as the other two employee witnesses,' I credit his claim
• Respondent sought to discredit Weaver on a collateral matter as it
caused him to deny that he told another employee, Sam Milnar, that they
that Chaveous informed him he had received a telephone
call during which he learned he had signed a card and
his assertion that Chaveous subsequently sought to belit-
tle him by calling him "chicken."
In Rossmore House, the Board indicated that it would
not find an 8(aXl) violation in circumstances wherein
management officials merely discussed unionism with
known union supporters unless the words used during
the discussion, or the context in which they are used,
suggest an element of coercion or interference. Applying
the teachings of Rossmore House here, I note that when
interrogating Glaser, Chaveous merely asked what union
had represented her when she worked at a prior employ-
er, which was apparently known to be a union operation.
I find with respect to the Chaveous-Glaser conversation
that neither the words used, nor the context in which
they were used suggest an element of coercion or inter-
ference. Consequently, I recommend that paragraph
14(a) of the complaint be dismissed. Noting that Cha-
veous told Arroyo, in effect, that people that enjoyed
their jobs did not sign union cards, I find that the con-
text of the Chaveous-Arroyo conversation does suggest
an element of coercion and interference as the employee
could have reasonably concluded on hearing Chaveous'
remarks that his job was in jeopardy because he had
signed a union card. I find that Respondent, through
Chaveous' conversation with Arroyo, violated Section
8(a)(1) as alleged . Finally , it is clear , and I find , that Re-
spondent, through Chaveous' conversation with Weaver,
engaged in unlawful interrogation , created the impression
that Respondent was engaging in surveillance of its em-
ployees ' union activities, and demeaned the employee be-
cause he had signed a union card. By engaging in such
conduct, Respondent violated Section 8(a)(l) as alleged.
b. Chaveous' January 17, 1983 conduct
Paragraph 14(f) alleges that Respondent created the
impression that its employees ' union activites were under
surveillance on January 17, 1983. The General Counsel
caused employees Larry Steward and Barbara Weise to
describe mid-January conversations they had with Cha-
veous.
Steward testified that he heard from other employees
that the Company was to meet with all its employees on
January 17 and he went to the plant to attend the meet-
ing. He claims he encountered Chaveous when he ar-
rived and Chaveous informed him he had been terminat-
ed and must leave the building. At some point in the
conversation, Steward claims Chaveous asked him if he
had not heard a rumor at the union hall that he had been
terminated . He claims he said , "No"; that he paid no at-
tention to rumors.
Weise testified that she went to the plant to pick up a
Christmas turkey in mid-January and while she was there
Chaveous conversed with her. She testified Chaveous
asked, "What do you think of the talk going around?"
would burn the plant down if the Union did not get in Milnar and em-
ployee Barbara Johnson testified Weaver made such a comment Al-
though I do not credit Weaver's denial , I nevertheless conclude he is a
more reliable witness than Chaveous and I chose to credit his version of
the December 3 conversations between him and Chaveous
832 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
According to Weise, she asked if he meant talk about the
Union, and Chaveous replied in the affirmative. Weise
testified she indicated to Chaveous that she did not know
anything as fact, and Chaveous responded by saying he
thought things could be worked out; that they were
trying; and he did not think a small Company like theirs
needed a union. Weise claims she agreed the Company
was small and did not need a union.
Chaveous testified that when he encountered Steward
in the lunchroom on January 17, he told him he had
been terminated, and the meeting might not be of interest
to him, but he was welcome to stay if he wished. He
denied mentioning rumors or the union hall to the em-
ployee. He did not refute Weise's testimony.
The record reveals that, prior to the time Chaveous
had his discussion with Steward, Respondent had indi-
cated to the Union that it intended to terminate the last
six employees hired in 1982 and that they would not be
eligible to vote in the coming election. The Union appar-
ently agreed before it signed a Stipulation for Certifica-
tion Upon Consent Election in Case 7-RC-16853 on Jan-
uary 12, 1983. Viewing Chaveous' conversation in that
context, I find that even if Steward's testimony is fully
credited, the General Counsel has offered insufficient
evidence to show that Respondent created the impres-
sion that the union activities of its employees were under
surveillance through the Chaveous comments to Stew-
ard. Patently the testimony offered through employee
Weise fails to prove the allegation under discussion. Ac-
cordingly, I recommend that paragraph 14(f) of the com-
plaint be dismissed.
c. Alleged disparaging of employees on February 24,
1983
Paragraph 14(h) of the complaint alleges that Re-
spondent , through the actions of Chaveous, disparaged
its employees because of their union activities, member-
ship , and sympathies on February 24, 1983. The General
Counsel sought to prove the allegation through the testi-
mony of employee Kenneth Frantz.
On February 23, 1983, Frantz was a setup man on a
3m machine . At the beginning of his shift that day, he
removed a plastic nozzle from a filling machine and
ground it down in an attempt to cause the filling ma-
chine to operate more efficiently . His action reduced
rather than improved the operation of the machine. Cha-
veous "jumped on" him for grinding down the nozzle
and, on February 24, transferred him from the 3m setup
position to a job on the production line. Frantz testified
Chaveous informed him he was demoted stating:
I'm taking you off the 3m machine because ever
since you've been in the organizing committee in
the union your production has dropped and you got
a bad attitude and I'm going to take you off the ma-
chine.
Paragraph 20 of the complaint alleges that Frantz was
demoted in violation of Section 8(a)(3) on February 23,
1983 . That allegation is discussed in detail , infra. During
his testimony, Chaveous denied he said anything about
Frantz' union membership or his participation in the or-
ganizing committee when he informed him of his demo-
tion on February 24, 1983. Although I have, generally
speaking, credited employee testimony where it conflicts
with the testimony given by Chaveous, I do not credit
Frantz' version of the February 24 demotion conversa-
tion. Chaveous was the more convincing witness and, as
indicated hereinafter, I find the employee was transferred
for good and valid reasons having nothing to do with his
union activities or sentiments. I recommend that para-
graph (h) of the complaint be dismissed.5
3. Craig Bryant
a. January 3 conduct
Paragraph 15(a) of the complaint alleges that on Janu-
ary 3, 1983, Respondent through Craig Bryant asked em-
ployees to ascertain and divulge to Respondent the union
membership, activities, sympathies, and desires of other
employees. The General Counsel sought to prove the al-
legation through the testimony of employee John Bryant.
John Bryant, who is not related to Craig Bryant, testi-
fied that on January 3, 1983, Craig Bryant called him to
his office and conversed with him about the Union. The
employee testified that Respondent's vice president asked
him how he felt about the Union, and that, after he re-
plied there were pros and cons, Craig Bryant asked him
to go to a union meeting to be held on Tuesday night; to
take another company employee with him; and to find
out all he could and come back to him because it was
important to the Company. The employee claims Craig
Bryant told him during the same conversation to go
around the shop and tell everybody what a great guy
Fay Kaiser was. According to John Bryant, later the
same day he told Kaiser what Craig had told him to do
and Kaiser told him: "Forget it. We have not gotten to
the point where we need spies in the Company."
After indicating that he was not in the plant on Janu-
ary 3 or 4, 1983, Craig Bryant testified that on a date he
could not recall, possibly in January, John Bryant ap-
proached him and asked him if he would like for him to
go to a union meeting and report back on it. Craig
Bryant claims he told the employee, "That's up to you."
Significantly, Kaiser did not controvert the above-de-
scribed portion of John Bryant's testimony when he ap-
peared as a witness.
Respondent contends I should credit Craig Bryant
rather than the employee. In the alternative, it claims I
should find no violation as the record reveals Kaiser de-
nounced Craig Bryant's conduct and told the employee
they had not reached the point where they needed a spy
in the Company.
John Bryant was the more impressive witness, and
this, plus Kaiser's failure to controvert the employee's
testimony concerning their conversation on the date in
question , causes me to credit John Bryant. Although I
° During direct examination , Frantz sought to create the impression
that he was an excellent setup man who had been frequently compliment-
ed by his supervisors on his work . The record reveals he was, at best, a
marginal setup man and that he had been reprimanded on numerous oc-
casions because he could not accomplish his assigned duties . Frantz was
not an impressive witness.
UNITED STATES AVIEX CO.
credit the employee, I conclude no violation of Section
8(a)(1) has been shown as the record fails to reveal that
John Bryant informed other employees of Craig Bryant's
request before Kaiser, Respondent's owner and president,
disavowed the vice president's conduct in clear and un-
mistakable terms . I recommend that paragraph 15(a) of
the complaint be dismissed. See Town & Country Super
Markets, 244 NLRB 303, 307 (1979).
b. February 16 conduct
Paragraph 15(b) of the complaint alleges that on Feb-
ruary 16, 1983, Respondent coercively interrogated em-
ployees concerning their union activities and created the
impression that their union activities were under surveil-
lance. The General Counsel sought to prove the allega-
tion through the testimony of employee John Bryant.
John Bryant testified, without contradiction, that the
day before the election was held on February 16, 1983,
Craig Bryant called him into the cold storage room
where he asked, "[W]hy are you voting for the Union?"
The employee claims he asked, "[W]ho told you I was
voting for the Union?" He claims C. Bryant replied, "It's
all over the shop that you're voting for the Union . . . I
thought we could count on you." J. Bryant claims he re-
plied, "Well, I don't know who told you I was voting
for the Union," and that Bryant then stated, "Well, ev-
erybody says that you're for the Union." The employee
claims the conversation ended when he said, "That's
what I want them to think."
It is clear, and I find, that Respondent, through the
above-described conduct of its vice president, Craig
Bryant, unlawfully interrogated John Bryant concerning
his union sentiments in violation of Section 8(a)(1) of the
Act. Noting that Craig Bryant had sought, in early Janu-
ary, to cause employee John Bryant to attend a union
meeting and thereafter report to him, I find that by indi-
cating to the employee on February 16, 1983, that he
had sources of information throughout the shop, he un-
lawfully gave the employee the impression that the union
activities of the employees were under surveillance. By
engaging in such conduct, he violated Section 8(a)(1) of
the Act as alleged.
c. February 17 conduct
Paragraph 15(c) of the complaint alleges that Respond-
ent through Craig Bryant coercively interrogated em-
ployees regarding their union activities on February 17,
1983. The General Counsel sought to prove the allega-
tion through the testimony of employee Robert Shep-
herd.
Shepherd testified that during the morning on Febru-
ary 17 Bryant came up to him while he was working at
an aerosol filling machine and engaged him in conversa-
tion. The employee claims that after saying, "Good
Morning," Bryant asked him why he thought they
needed a union. Shepherd testified that he replied they
needed the Union for seniority rights, recall rights, job
descriptions, and such.
Bryant admitted he conversed with Shepherd on the
day of the election, but gave a different version of the
conversation. He claims that Shepherd started the con-
833
versation by asking him how he thought the election
would turn out. He testified he replied he did not know,
but he hoped Shepherd would vote. Bryant indicated
during his testimony that he had seen Shepherd wearing
a union badge and a hat with a union symbol on it before
the discussion occurred.
Shepherd was still employed by Respondent at the
time of the hearing . He testified in a straightforward
manner and I credit his version of the conversation.
Respondent argues that even if Shepherd 's testimony is
accepted , the Board 's decision in Rossmore House , supra,
should preclude me from finding a violation . I agree and
find that Shepherd's testimony fails to establish the viola-
tion alleged because he was a known union supporter
and neither the words uttered by Bryant nor the context
in which they were uttered suggests an element of coer-
cion or interference with employees in the exercise of
their Section 7 rights. 6 For the reasons stated, I recom-
mend that paragraph 15(c) of the Complaint be dis-
missed.
4. Rod Boyle
Paragraph 16 of the complaint alleges that on Decem-
ber 3, 1982, Rod Boyle threatened, in the presence of
employees, to discharge an employee for supporting the
Union. The General Counsel sought to prove the allega-
tion through the testimony of employee Jimmie Brady.
The record reveals that during the afternoon of De-
cember 3, 1982, Brady went to employee Steve Regenos'
home to solicit that employee to join the Union. It is un-
disputed that Rod Boyle, Regenos' immediate supervisor,
arrived at the Regenos home shortly after Brady arrived.
Brady testified that after Boyle joined him and Regenos
in the kitchen, he asked Regenos in Boyle's presence if
he would like to sign a union card. According to Brady,
Boyle then made a statement to the effect that at union
companies employees could be let go before their proba-
tionary period was up, and that employee David Brown
had "overstepped his bounds and he would be fired for
getting in the Union activity."
Boyle testified that he socializes with Regenos and in-
dicated he went to the Regenos home on December 3
because Steve Regenos had called in sick that day and
he wanted to check on Steve as well as his mother, who
was then in the hospital. He claims that when he arrived,
Brady was telling Regenos the reasons he should join the
Union, and Regenos was telling Brady the reasons he
should not join. Boyle testified that after saying "Hi" to
both employees, he said nothing until Brady asked him
some question about the Union. He claims he answered
by telling Brady he was "uncapable of giving an
6 Shepherd indicated dunng his testimony that he made no effort to
conceal the fact that he wanted a union in the plant Thus , he testified
that he was one of the 12 employees who sought to deliver the Union's
demand letter to Kaiser at the commencement of the union campaign and
that he was the employee who was requested by Fekrat to retrieve the
letter the next day He further indicated that he later participated in
union handbillmg activity during which, inter alia , copies of the demand
letter were distributed These factors, coupled with the unrebutted testi-
mony which reveals Shepherd wore a union badge and a hat with a
union logo on it at the plant, clearly establish that Shepherd was known
by Respondent to be a union supporter
834 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
answer ." Boyle denied that he made the statements at-
tributed to him by Brady . He testified that he did recall
that Regenos mentioned Dave Brown , stating that some-
body who is begging for a job had no business organiz-
ing in a union.
Regenos testified that after Boyle joined him and
Brady at his home on December 3 , Boyle said little or
nothing after he said hello . He recalled that Brady indi-
cated that David Brown was on the Union's organizing
committee and as he worked in the batch room with Re-
genos they could really slow things down if Regenos
would give them his support. While they were discussing
Brown, Regenos claims he voiced the opinion that the
Company should have gotten rid of him long ago. He
claims Boyle made no comment one way or the other.
I became convinced when listening to Regenos' testi-
mony that Brady probably recalled the substance of the
conversation concerning Brown at Regenos ' home on
December 3, but intentionally failed to relate all he re-
called. Regenos was the more impressive witness and I
credit his claim that he, rather than Boyle, stated on De-
cember 3 that David Brown should have been fired by
the Company. I recommend that paragraph 16 of the
complaint be dismissed.
5. Norman Clear
Paragraph 17 of the complaint alleges that Norman
Clear coercively interrogated employees regarding their
union membership, activities, and sympathies on Febru-
ary 16, 1983. The General Counsel sought to prove the
allegation through the testimony of employee Charles
Simpson.
Simpson testified that at approximately 4:50 p.m. on
February 16, Norm Clear approached him in the packing
room and asked him what he thought about the upcom-
ing election and how he intended to vote. He claimed he
replied he was undecided right then; that the way things
were going, he would probably consider voting yes. He
testified that Clear then made a statement about not re-
calling what went wrong and why he was not still in the
shipping department. He claims he replied that if Clear
would care to sit down with Fay Kaiser or Andy Cha-
veous, they would talk about it. He recalled that Clear
then said he hoped he would consider voting no, and
claims he replied he would give it some deep consider-
ation.
During cross-examination , Simpson admitted he was
wearing a hat, which had the Union's logo on it, and a
union button when he conversed with Clear on February
16. In addition, he indicated during cross-examination
that although he specifically recalled that Clear told him
during their discussion that he hoped he would consider
voting no-that they could use his vote-he did not
recall that Clear asked him specifically how he intended
to vote.
Clear testified he could not recall whether he had a
conversation with Simpson on February 16. He denied
that he asked any employee what they thought about the
election or how they intended to vote. He testified he
did tell a number of employees that he would appreciate
their support in the election.
Respondent contends that I should credit Clear rather
than Simpson . In the alternative , it contends that applica-
tion of the criteria set forth in Rossmore House, supra,
should cause me to find that no violation was committed
even if Simpson 's cross-examination version of the con-
versation is credited.
Although I gained the impression that Simpson sought
to tell the truth when he testified, he exhibited consider-
able uncertainty when describing the February 16 discus-
sion he had with Clear. Although it appears he discussed
his desire to return to the shipping department during
the conversation and responded to Clear's request that
he consider voting "no" by saying he would give the re-
quest "some deep consideration ," I find I am unable to
conclude with any degree of certainty that Clear asked
him what he thought of the upcoming election, or that
Clear asked him how he would vote. For the reasons
stated, I find that the General Counsel has failed to offer
sufficient reliable evidence to prove that Clear coercive-
ly interrogated the employee.' I recommend that para-
graph 17 of the complaint be dismissed.
C. Alleged 8(a)(3) Violations
The parties stipulated that the 18 employees named in
paragraph 18(a) of the complaint and the 15 employees
named in paragraph 18(b) of the complaint, all produc-
tion employees, were laid off by Respondent at noon on
December 2, 1982. The record reveals that those em-
ployees named in paragraph 18(a) were all recalled to
work between December 3 and 13, 1982, and it reveals
that the employees named in paragraph 18(b) had not
been recalled prior to the time the hearing was held in
this case. As noted, supra, Respondent learned at ap-
proximately 9 a.m., on December 2, that the Union was
seeking to organize its employees. The General Counsel
contends that Respondent effectuated the December 2
layoff because it learned that morning that the Union
was attempting to organize its operation , and she con-
tends it discharged the employees who have never been
recalled because it knew or suspected they were union
adherents. In addition, the General Counsel contends
that after recalling employees Jimmie Brady and Ken-
neth Frantz, Respondent violated Section 8(a)(3) by as-
signing Brady to more onerous working conditions on
February 23, 1983, and by demoting Frantz on February
23, 1983, and thereafter laying him off on March 17,
1983.
Respondent contends that valid economic consider-
ations , rather than the union activities of its employees,
necessitated the December 2 layoff, and it claims that
lack of demand for its products caused it to refrain from
recalling the employees named in paragraph 18(b) of the
complaint. With respect to those employees who were
never recalled, it contends it terminated them pursuant to
7 I do not reach this conclusion because I credit Clear I do not Ervin
Stryner, previously Respondent 's plant manager, testified that, during the
spring of 1981 , Clear instructed him to bypass two batchmen and recall a
third employee with less seniority Stryner testified when he asked why
the two employees were to be bypassed, Clear told him they were union
agitators Clear denied Stryner 's assertion I am firmly convinced that
Stryner told the truth , and therefore view Clear's testimony skeptically
UNITED STATES AVIEX CO.
its normal company policies during the period extending
from January 11, to 31, 1983. It denies that employee
Brady was assigned to more onerous working conditions
on February 23, 1983, and it claims that it reassigned em-
ployee Frantz from a setup position to a production line
job on February 23, 1983, because he had demonstrated
he could not perform the setup job. Finally, it claims
Frantz was laid off on March 17 along with some 10
other employees and it contends the General Counsel of-
fered no evidence which would establish that Frantz or
the other employees were chosen for layoff for discrimi-
natory reasons.
1. December 2, 1982 layoff
The General Counsel contends a finding that Respond-
ent effectuated the December 2 layoff to nip the Union's
organizational drive in the bud is warranted because the
layoff occurred immediately after Respondent learned
the Union was seeking to organize its operation and un-
controverted evidence reveals that work was available
for at least some employees, but virtually all Respond-
ent's production employees were laid off. Realistic ap-
praisal of the record causes me to conclude that Re-
spondent has shown that it effectuated the layoff for
valid business reasons.
The scenario which the General Counsel urges was
developed through the testimony of employees Shep-
herd, Mikel Reid, Larry Stewart, Ronald Zebell, Frantz,
and Respondent's former plant manager , Stryner. The
first prong in the argument is that the record reveals Re-
spondent possesses marked antiunion animus . With re-
spect to animus, Shepherd and Reid both testified that
Chaveous told them at their time of hire that the Compa-
ny had no union and wanted none. Stryner's credited tes-
timony added more as he testified, as noted, supra, that
Respondent's technical director, Clear, told him during a
1981 recall situation to bypass two employees because
they were union agitators . The second prong of the ar-
gument is a claim that employees in the batchman and
setup job classifications were told when hired that they
would never be laid off, but they were included in the
December 2 layoff. Employees Brown, Reid, Frantz, and
Zebell each testified that Chaveous or Stryner (in the
case of Frantz) made such statements to them when they
were placed in batchman or setup man positions." Next,
was the General Counsel's attempt to establish that work
was available for some employees when the December 2
layoff was effectuated, and, despite that, all production
workers were laid off. To establish that prong of his ar-
gument , the General Counsel points to Stewart 's claim
that on November 27, 1982, he overheard a sales repre-
sentative from Myer's Thrify Acres Estate, while touring
the plant with other sales representatives , that the Com-
pany's production was nice but they were still 6 months'
behind on his order.9 In addition, he relies on Shepherd's
8 Chaveous testified he gave employees no such assurances , that he
told them they would be the last to go in a layoff situation I credit the
employees
8 Fekrat testified that certain sales representatives toured the plant on
November 1 before attending a convention in Chicago on November 2,
3, and 4 He claims there was no representative from Myer's Thrifty
Acres in the group R Exh 37 reveals the automobile parts and accesso-
835
claim that Supervisor Bartek told him at 7:30 a.m., on
December 2, that he would be running the gasline anti-
freeze capping and filling machine all that day and prob-
ably into the next , and that later in the morning after vis-
iting the office where he was told the Union was at-
tempting to organize the plant, Bartek informed the em-
ployee Chaveous was talking about a layoff.
Although total acceptance of the testimony summa-
rized above might warrant an inference that Respondent
unlawfully decided to lay off its entire production crew
when it learned the Union was seeking to organize its
operation, the testimonial and documentary evidence of-
fered by Respondent during the presentation of its case
convinces me that Respondent effectuated the layoff
under discussion for valid business reasons.
Fekrat, Clear, and Chaveous gave mutually corrobora-
tive testimony to explain Respondent's reason for decid-
ing to lay off its production employees at noon on De-
cember 2, 1982. They claim that on November 22 Clear,
who schedules production, informed the other two that
they were catching up with orders and, unless new
orders were received soon, they would be caught up in
about a week and would either have to lay off employ-
ees or build inventory. Chaveous testified that after it
was decided they would not build inventory, he was in-
structed by Clear to prepare for a layoff. He claims that
caused him to instruct the payroll clerk, Kaiser, to pre-
pare a seniority list for him. She prepared such a list on
November 24 and on inspecting it, Chaveous noted that
the new employees hired after September 1 were not on
the list as they would have no seniority until they com-
pleted their 90-day probationary period, so he asked her
to prepare a second list giving the names and dates of
hire of all employees hired after September 1, 1982.10 As
Respondent had orders for certain products, Chaveous
indicated that, after obtaining the above-mentioned lists,
he determined which employees he should retain to op-
erate the production lines which would produce the
products needed and he prepared a document placed in
the record as Respondent's Exhibit 10, indicating which
lines he wanted to run, the number of employees he
needed to operate them, and the names of the employees
who would be retained. Clear testified that, on Novem-
ber 29, he informed Fekrat that by the end of the week
(last working day Thursday, December 2) they would be
caught up with orders, and Fekrat asked him to attempt
to operate until noon on Thursday, which was the day
employees were paid. Clear testified that he then in-
formed Jack Helt, the maintenance supervisor, they
would probably shut down production at noon on Thurs-
day, December 2, and he could schedule maintenance on
machines requiring maintenance. I t
According to Clear, he and Chaveous decided at 7:30
a.m. on Thursday, December 2, that they would lay off
all the production employees at noon because raw mate-
rtes show was held during the period November 2-4, 1982 In the ab-
sence of documentary evidence which would corroborate Stewart's
claim, I credit Fekrat
10 The lists were placed in evidence as R Exhs 8 and 9 Kaiser testi-
fied she prepared them on November 24, 1982
11 Helt corroborated Clear's claim during his testimony
836 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
rial shortages prevented them from producing anything
other than gasline antifreeze , and it was not feasible to
continue even that line because they were experiencing
capping problems which reduced production by 50 per-
cent. The plan was that Clear would notify the produc-
tion employees they were to be laid off at noon when
they took their morning break at 9 a.m. Chaveous testi-
fied he was called to Fekrat's office around 9 a.m. at
which time he was told the receptionist had taken part of
a telegram from the Union indicating it was attempting
to organize Respondent's employees,12 and Fekrat told
him to go to the breakroom and get Clear. Chaveous tes-
tified he went to the breakroom and asked Clear, who
was already there, whether he had made the announce-
ment yet.13 According to Chaveous, when Clear told
him he had not yet announced the layoff, he caused
Clear to accompany him to Fekrat's office where they
discussed the situation. Fekrat indicated that after ascer-
taining that Clear and Chaveous were unaware of any
union activity at the plant, he summoned Ed Bartek, an-
other supervisor, to the office where Bartek also dis-
claimed any knowledge of union activity by the employ-
ees. Finally, Fekrat testified they decided to proceed
with the layoff, after unsuccessfully attempting to seek
legal advice, because: (1) They were caught up with
their orders for product; (2) raw materials shortages pre-
vented them from producing any product other than gas-
line antifreeze; and (3) a problem with caps on the gas-
line antifreeze line had decreased production of that
product by 50 percent.
To support the testimony given by the above-named
individuals, Respondent placed considerable documenta-
ry evidence in the record. Thus, Respondent placed in
the record as Respondent Exhibits 24 and 25 a graph and
actual sales figures showing sales for its fiscal years 1978,
1979, 1980, 1981, 1982, and for the period April 1, 1982,
to November 1, 1983. The exhibits reveal, inter alia, that
Respondent's sales were $714,817 in October 1982, that
sales peaked at $826,340 in November, that they dropped
to $492,441 in December, and they continued to drop
thereafter during the first 3 months of 1983.
Having shown it experienced a precipitous drop in
sales and/or orders between November and December,
Respondent then placed a document entitled "Compari-
son on Inventory and Orders [cases] as of 12/02/82" in
evidence as Respondent's Exhibit 36.14 The document in
question contains information under four headings, i.e.,
inventory, order, shortage, and remarks. The numbers of
product ordered were subtracted from the numbers ap-
pearing in the inventory column to produce figures in
the shortage column . That mathematical exercise reveals
12 Debra Boyle, the receptionist , testified she accepted only that por-
tion of the Union's telegram received in evidence as R Exh 7 as she had
previously been instructed to refuse to accept any correspondence from
any union
19 Respondent witnesses Barbara Johnson and Gary White corroborat-
ed his testimony by testifying that Chaveous appeared in the breakroom
shortly after 9 am and asked Clear if he had made the announcement
yet
14 With the exception of certain subjective comments contained in the
notes section of the exhibit (p 3), the information appearing therein was
obtained from R Exhs 32 , 33, 34, and 35 , which had previously been
received in evidence
that on December 2 Respondent had orders for various
quantities of 21 different products which it had not filled.
Various references to footnotes appear immediately to
the right of each of the 21 items, and explanation for the
Company's inability to produce such products appear in
the referenced footnotes, which are set forth at page 3 of
the document. I see no need to set forth a description of
the 21 shortage items or the explanations set forth in the
footnotes as the document is self-explanatory. Suffice it
to say that Fekrat orally explained why each shortage
item could not be produced on December 2, and he ref-
erenced footnotes contain essentially the same explana-
tions that he provided without looking at the exhibit. t 5
Consideration of the document causes me to find that
Respondent has shown that due to raw material short-
ages, lack of containers, and other valid reasons set forth
in the exhibit, it was not feasible, or it was impossible,
for it to produce any of the 21 items which customers
had placed orders for on December 2, 1982.
In sum, I find that Respondent has shown, through the
testimonial and documentary evidence described above,
that it laid off the employees named, in paragraph 18 of
the complaint on December 2, 1982, for valid business
reasons.
2. The discharges
The General Counsel contends that the 15 employees
named in paragraph 18(b) of the complaint were dis-
charged "because of their union activity and in an at-
tempt to chill the organizational process that was then
ongoing ." I find the contention to be without merit for
the reasons set forth below.
The criteria to be utilized to resolve 8(a)(3) issues were
set out by the Board in Wright Line 16 at 1089, in which
it stated:
First, we shall require that the General Counsel
make a prima facie showing sufficient to support the
inference that protected conduct was a "motivating
factor" in the employer's decision. Once this is es-
tablished, the burden will shift to the employer to
demonstrate that the same action would have taken
place even in the absence of the protected conduct.
The General Counsel offered very little affirmative
evidence to prove that the employees named in para-
graph 18(b) were discharged in violation of Section
8(a)(3) of the Act. Through the testimony of a number of
employees and that of Leonard Speckin, a document ex-
aminer for the Michigan State Police, he established that
12 of the 15 named employees had signed union authori-
zation cards during the period December 1 to 15, 1983.17
is Significantly , the General Counsel did not controvert any of the fig-
ures or information set forth in R Exhs 32 through 35
16 Wright Line, 251 NLRB 1083 (1980), enfd 662 F 2d 899 (1st Cir
1981), cert denied 455 U S 989 (1982)
17 See G C Exhs 5 (Glaser), 8 (Pease), 9 (Brown), 10 (Zebell), I I
(Wolfe), 15 (Odle), 17 (Forrest), 22 (Stewart), 25 (Miltenberger ), 28 (Nib-
lick), 30 (Reid), and 32 (Lawshea Jr) Employee Thomas, Weise, and Le-
mieux did not sign cards
UNITED STATES AVIEX CO.
Although he was able to show that all but three of the
employees engaged in union activity, the only direct evi-
dence offered which would show that Respondent was
aware of the union activities or sentiments of the laid-off
employees was that testimony given by employees Pease,
Zebell, Brown, and Wolfe, which was to the effect that
on December 20, 1982, and at various other unstated
times, the four named employees distributed union litera-
ture in Respondent's parking lot. t s Finally, through the
testimony of employees Brady and Shepherd, the Gener-
al Counsel established that lab personnel and Chaveous
performed work in the shipping department on January
11, 1983, and that Chaveous, Norman Clear, and ship-
ping department employees performed what could be de-
scribed as bargaining unit work throughout the day on
January 18 and 19 when they assembled caps that were
to be placed on weedkiller bottles Patently, the above-
described evidence is insufficient to warrant an inference
that Respondent failed to recall the employees named in
paragraph 18(b) of the complaint to work because they
were known union adherents.
Respondent defended its failure to recall the employ-
ees named in paragraph 18(b) by claiming: (1) that it did
not need the employees because business continued to
fall off in December 1982 and January, February, and
March 1983; (2) that while it admittedly performed some
production work with supervisors and others, its practice
was to refrain from recalling employes from layoff if it
could only provide them a day or two of work; and (3)
that, in any event, it terminated all 15 employees during
the month of January 1983, pursuant to its normal per-
sonnel policies.
Respondent sought to establish its economic defense
through Fekrat. As indicated, supra, it placed its sales
records for the fiscal years 1979 through 1982, and the
records revealing sales during the period April 1982
through November 1983, in evidence as Respondent Ex-
hibits 24 and 25. Inspection of those documents reveals
that after sales dropped from $826,340 in November 1982
to $492,441 in December 1982, they dropped further to
$370,471 in January 1983, on down to $247,204 in Febru-
ary, and then rose slightly to $262,794 in March. Addi-
tionally, through Fekrat, Respondent placed in evidence
as Respondent Exhibit 26 a compilation of hours worked
at the plant by nonsupervisory personnel during the
years 1981, 1982, and 1983. That document reveals the
work force had been reduced to 36 by January 1, 1983,
decreased further to 35 by February, decreased to 33 in
March, and was down to 23 by April 1983. Viewing the
documents mentioned, one must conclude they are sup-
portive of Respondent's position that lack of orders
caused it to refrain from recalling employees in layoff
status during the period under discussion.
With respect to the claim that supervisors and other
employees performed bargaining unit work, Chaveous
admitted during his testimony that he and others assisted
18 Although the record reveals that employee Shepherd and 11 other
employees attempted to deliver the Union 's demand letter on December
16, the employees accompanying Shepherd were not identified in the
record Similarly, although 22 employees eventually signed the demand
letter which was duplicated and distributed at the plant , the record fails
to reveal that copies of the document were given to Respondent officials
837
production employees on January 11, 18, and 19, 1983, as
contended by the General Counsel 's witnesses . Chaveous
explained that Respondent 's normal practice was to
cause supervisors, office, and lab employees to perform
production line work for short periods when it became
necessary. He logically indicated that persons on layoff
were not normally recalled to perform what might only
be 1 or 2 days of work.
Realizing that Respondent's expressed reasons for re-
fusing to recall the 15 employees in question were formi-
dable, the General Counsel contends in brief (at 6 and 7)
that Respondent has taken inconsistent positions with re-
spect to the employees laid off on December 2 and never
recalled , and because it has taken inconsistent positions, I
should draw the negative inference that it discharged
them because they had engaged in union activities.
The inconsistencies referred to by the General Counsel
are revealed by the testimony of Kaiser, a position letter
sent by Respondent to the Regional Office in connection
with the representation case on February 24, 1983,19 and
by the termination slips placed in the record as Respond-
ent's Exhibit 42.
Kaiser indicated during his testimony that when he
conversed with Lawshea Sr. on February 17, 1983, the
Company intended to recall Lawshea Jr. and employee
Brown to work at some future time. Similarly, the posi-
tion letter dated February 24, 1983, indicates that Re-
spondent contended, throughout the representation case
proceeding, that the five employees named in paragraph
18(b) of the complaint with the earliest dates of hire had
a reasonable expectancy of recall at the time of the elec-
tion on February 17, 1983. Patently, these claims are at
odds with Respondent Exhibit 42 which purports to
show that all 15 employees named in paragraph 18(b) of
the complaint were terminated between January 11 and
31, 1983. The factors mentioned, coupled with my exam-
ination of Respondent Exhibit 42, which reveals that all
the termination forms were obviously filled in with the
same pen although the entries were supposedly made on
different dates, cause me to suspect the termination slips
were probably prepared by Chaveous after the February
17, 1983 election.
As indicated, infra, three of the laid-off employees
whom Respondent contends had no reasonable expectan-
cy of future employment appeared at the February 17
election and voted. Respondent challenged their votes.
In its brief, Respondent urges me to find that the three
employees-Glaser, Reid, and Zebell-had no reasonable
expectancy of recall on February 17 because they had
been terminated in January 1983. In the circumstances
described, I am inclined to infer that Respondent falsified
the three termination slips under discussion to bolster its
position in the representation case , but I do not feel its
falsification of all 15 termination slips justifies an infer-
ence that it terminated the 15 employees named in para-
graph 18(b) of the complaint because they were known
or suspected union advocates.
For the reasons set forth above, I find that the General
Counsel has offered insufficient evidence to prove the al-
" See G C Exh 38
838 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
legations set forth in paragraph 18(b) of the complaint
and recommend that paragraph 18(b) be dismissed.
3. The Brady situation
Paragraph 19 of the complaint alleges that Respondent
assigned Jimmie Brady to more onerous working condi-
tions on February 23, 1983.
The record reveals that Brady was known by Re-
spondent to be a union supporter as he and employee
Shepherd had asked Chaveous in January 1983 if they
could have a union bulletin board in the plant . He testi-
fied he had sustained a back injury while working for an-
other employer , and that in June 1982 Chaveous re-
moved him from a position in the batch room and put
him on the production line stating he was doing it be-
cause he was worried about his back.
On February 23, 1983 , Brady and another employee
were assigned by Chaveous to work on the kleer flame
line. One man 's job was to operate a machine which
filled cans with the product . Brady 's job was to place
empty cans on the line, to remove full cans and place
them in cartons, and to seal the cartons and place them
on a skid . The cans in question were quart cans, and
there were 24 to a carton or box . Twenty-eight boxes
went on a skid , and Brady claims he ran five or six skids
on the day in question. Brady testified two men were
normally assigned to do the work that was required of
him on February 23, 1983 . Brady testified that as late as
December 23, 1983 , Chaveous indicated he was con-
cerned with his health , as he called him into a smoking
area that day and told him he might not be recalled from
layoff because he had a bad back.
During cross-examination, Respondent 's counsel
caused Brady to admit he did not indicate to Respond-
ent, at the time he was hired , that he had a back injury
or a problem which would restrict him in the work he
could perform . In addition , Brady testified that although
his back would hurt when he performed certain work
tasks , he did not feel his back would prevent him from
performing any task he might be assigned . Finally, Brady
admitted that Chaveous slowed down the conveyor
which brought the product from the filling machine to
him on February 23.
Chaveous testified that in June 1982 , Brady was issued
a written warning because he walked off the job and left
the plant without obtaining his permission . He indicated
the employee was permitted to return to work the next
day after he had apologized for his conduct. He denied
that Brady had indicated , at that time, that he had left
because the work he had been performing had caused
him back problems , and he denied he had any private
conversation with Brady in a smoking area on December
2. With respect to Brady 's February 23 assignment, Cha-
veous testified that the kleer flame line is normally oper-
ated with two or three employees . He explained that
when three employees are used , one operates the filling
machine, one puts empty containers on the conveyor,
and one takes full containers off the line and packages
them . He indicated that the kleer flame line is frequently
operated with just two employees , and that on those oc-
casions the conveyor is slowed down . He claimed that
the conveyor was slowed down on February 23 to
permit Brady to keep up with the filling machine. Cha-
veous testified he had no particular reason for assigning
Brady to work on the kleer flame line on February 23;
that Brady raised no objection when he received the as-
signment that day, and that Brady said nothing to him
that day to indicate he was experiencing difficulty or
back trouble. He testified that as a line worker Brady
could have been assigned to more difficult jobs such as
packing and skidding gallon containers of windshield
washer solvent , skidding starting fluid, or skidding gal-
lons of super duty cleaning glaze.
In sum , it appears that employee Brady experiences
problems with his back on occasion , but the employee
has represented himself to be physically able to perform
routine production line work. Noting that he did not
object when Chaveous assigned him to skidding on the
kleer flame line on February 23, 1983, and that he did
not indicate to the supervisor at any time during that day
that he was experiencing back or other problems, I find
that the General Counsel has offered insufficient evi-
dence to prove that he was assigned more onerous work
on February 23, 1983 , because he had engaged in union
activities . I recommend that paragraph 19 of the com-
plaint be dismissed.
4. Frantz situation
Paragraph 20 of the complaint alleges that employee
Kenneth Frantz was transferred from a 3m setup position
to the production line on February 23, 1983, and was
thereafter laid off on March 17, 1983, because he en-
gaged in union activities.
Frantz was hired by Respondent in September 1980.
He testified that he was promoted to a setup position 2
months after he was hired . He claims Kaiser compliment-
ed him for doing a good job on December 17, 1982, and
that , at some unspecified time in January 1983 , Chaveous
marvelled at his speed on a 3m machine and asked if he
could keep up that pace. Frantz claims he replied he
could do it all day He testified that on December 2,
1982, employee Brown asked him to sign an authoriza-
tion card while Chaveous was right behind them and
when Brown dropped the card he was attempting to get
him to sign, Chaveous asked , "[W]hat are you doing?"
He claims he said , "Nothing."
According to Frantz, the nozzle on his 3m machine
was not working properly on February 23, 1983, and he
asked maintenance employee Sam Milnar to grind the
bottom of the nozzle off. When Milner refused because
he was not on the clock, Frantz ground the nozzle off.
Frantz claims that the next day, February 24, Chaveous
transferred him to the production line stating:
I'm taking you off the 3m machine because ever
since you 've been in the organizing committee in
the union your production has dropped and you got
a bad attitude and I 'm going to take you off the ma-
chine.
Although Frantz indicated Chaveous jumped on him for
grinding the nozzle down on February 23, he claims the
nozzle incident was not mentioned on February 24. He
denied that he had ever been reprimanded for making al-
UNITED STATES AVIEX CO.
terations in machines, and claimed that he had been rep-
rimanded on only two occasions; one for being late and
once because he ground down the nozzle.
Frantz testified he had never been laid off while he
was a setup man, but indicated he was laid off on March
17, 1983, after he had been demoted to the production
line job. He was recalled in August or September 1983,
and was still employed by Respondent at the time of the
hearing.
Respondent sought to refute the General Counsel's
contention that Frantz was transferred and subsequently
laid off because he had supported the Union through the
testimony of Chaveous. Chaveous testified that when he
became a supervisor in April 1981, Frantz was a setup
man on an aerosol machine , and, about that time, he was
demoted to the aerosol production line at no decrease in
pay because he could not perform the setup job. He testi-
fied, without contradiction, that in either mid-1980 or
mid-1981, he was sent to Frantz' home where he discov-
ered large quantities of the Company's products which
had been taken by Frantz without authorization. After
Chaveous recovered a pickup load of the products,
Frantz was fired. According to Chaveous, Frantz had a
nervous breakdown after he was fired, and, at some un-
stated time, he, Clear, and Kaiser decided to give him
another chance and rehired him. Chaveous indicated that
thereafter, in October 1982, the setup man on the 3m ma-
chine quit without notice, and he gave the job to Frantz
because he had become familiar with the machine by
that time. Although Frantz testified he had only been
reprimanded twice during the time he was a 3m setup
man, Respondent's records and Chaveous' testimony
reveal Frantz was reprimanded or given warning letters
on six occasions while he was assigned to the 3m setup
position. Thus, the record reveals: he was warned on Oc-
tober 18, 1982, that he had been observed taking more
company products than he was allowed to take;20 he
was orally warned on November 16, 1982, because he
had been unable to satisfactorily set the 3m machine up
for gallons from quarts;21 he was warned on December
23, 1982, because he had reported late twice in 1 week;22
he was warned on December 29, 1982, because it took
him 3 hours to set his machine up for 12-ounce bottles;23
he was warned on February 22, 1983, because he had
used vulgar language while bickering with employees
Jeff Mather and Sam Milnar;24 and he received a written
warning dated February 23, 1983, because he altered his
machine by grinding down a nozzle without authoriza-
tion.2 8
After denying that he observed Frantz and employee
Brown together on December 7, 1982, and denying that
he saw either employee either holding or dropping a
union authorization card, Chaveous testified that when
employees were assigned to setup positions they were
uniformly told that they were not to alter their machines.
He claimed that the alteration performed by Frantz to
20 See R Exh 14
Y1 See R Exh 15
22 See R Exh 16
23 See R Exh 17
24 See R Exh 13
25 See R Exh 12
839
his machine on February 22 caused the bottles filled by
the machine that day to overflow and this resulted in a
loss of production approximating 50 percent. According
to Chaveous, the nozzle incident was the "straw that
broke the camel 's back" as far as Frantz was concerned,
and, on learning what had happened, he decided to
transfer Frantz to the production line. Chaveous testified
that when he informed Frantz he was being removed
from the setup job on February 23, he did inform the
employee that it appeared to him that his attitude had
changed . He claims the employee made some comment
to the effect that he had not been the same since he had
a nervous breakdown. Chaveous denied that he said any-
thing about the Union or Frantz' membership on the or-
ganizing committee during their conversation on Febru-
ary 24.26 Apparently, Frantz' hourly rate was not
changed when he was transferred to the production line.
Patently, the General Counsel's claim that Frantz was
demoted and thereafter laid off for discriminatory rea-
sons was based on the employee's claim that Chaveous
made reference to his union activity when he informed
him of his demotion. Having decided I cannot credit
Frantz' uncorroborated claim that Chaveous told him, in
effect, that he was being demoted because he had served
on the Union's organizing committe, I find the General
Counsel has failed to offer sufficient credible evidence to
prove the allegation in question.
Assuming, arguendo, Chaveous did tell the employee
on February 23, 1983, that his attitude had changed since
he had been on the Union's organization committee, I
would, nevertheless, find that the employee was demoted
for lawful reasons. Chaveous' testimony that Frantz was
a poor 3m setup man was corroborated by the General
Counsel's witness, Zebell, as that employee testified that
when he was hired in mid-October 1982, Chaveous told
him he was going train him to take over Frantz' job be-
cause Frantz was stupid and thickheaded. There is no
doubt in my mind that Chaveous concluded that Frantz
had been stupid and thickheaded when he ground down
the nozzle of his machine, and I conclude that the em-
ployee's alteration of the machine gave Chaveous ade-
quate reason for the action he took.
With respect to Frantz' layoff on March 17, 1983,
Chaveous testified, without contradiction, that 10 em-
ployees, including Frantz, were laid off on the date in
question. Respondent's Exhibit 26 reveals that the work
force was reduced from 33 employees to 23 employees at
the time of the layoff. Absent a finding that Frantz was
removed from his setup position, where he would have
had better retention prospects, for discriminatory rea-
sons , a finding that he was laid off for discriminatory
reasons on March 17, 1983, would clearly be unwarrant-
ed.
For the reasons stated, I find the General Counsel has
failed to offer sufficient credible evidence to prove the
allegations set forth at paragraphs 20 and 21 of the com-
plaint, and I recommend they be dismissed.
26 I credit Chaveous' denial
840 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
D. Union's Majority Status, Demand for Recognition
and Bargaining, and Appropriateness of the
Bargaining Unit
By executing the Stipulation for Certification Upon
Consent Election placed in the record as General Coun-
sel's Exhibit 39, the parties agreed the appropriate bar-
gaining unit is:
All full-time and regular part- time production and
maintenance employees, including laboratory em-
ployees, quality control employees, shipping & re-
ceiving employees, truckdrivers and custodians em-
ployed by the Employer at its 1800 Terminal Road,
Niles, Michigan facility; but excluding chemists,
office clerical employees, and guards, professional
employees, and supervisors as defined in the Act.
During the hearing, the General Counsel placed 31 au-
thorization cards which had been executed by Respond-
ent's employees prior to December 15, 1982, in evi-
dence.27 Respondent does not dispute the validity of the
cards. The General Counsel contends the Union made an
effective demand for recognition and bargaining on De-
cember 16, 1982. It was stipulated that on that date there
were 52 employees on Respondent's payroll.28 As noted,
supra, 15 of those employees-the employees named in
paragraph 18(b) of the complaint-were in layoff status.
Although Respondent subsequently contended in the rep-
resentation case that the 10 employees in layoff status
with the most recent dates of hire were not eligible to
vote in the election because they had no reasonable ex-
pectancy of recall, they all remained employees until at
least January 11, 1983. It is clear, and I find, that at all
times during the period December 16, 1982, to January
11, 1983, the Union enjoyed majority status.29
Counsel for the General Counsel concedes in his brief
that he failed to offer affirmative evidence which would
reveal that the Union made a demand for recognition
and bargaining to a responsible Respondent official. He
did establish, through the testimony of employee Shep-
herd, that Shepherd and 11 other employees went to Re-
spondent 's offices on December 16, 1982, and left a
sealed envelope addressed to Kaiser on the latter's desk.
Shepherd indicated that after he and the other employees
had left the envelope on Kaiser' s desk , Fekrat called him
to his office where he informed him they could not
accept correspondence from the Union; that he should
retrieve the envelope and come back the next day and
talk to Kaiser. The record reveals that instead of seeking
to speak directly with Kaiser the next day, the Union at-
tached the demand letter (G.C. Exh. 35) to handbills,
which were distributed to employees in Respondent's
27 See G . C Exhs 2 (Bryant), 4 (Brady), 5 (Glaser), 6 (Shepherd), 7
(Moodie), 8 (Pease), 9 (Brown), 10 (Zebell), 11 (Wolfe), 14 (Matten), 15
(Odle), 16 (Weaver), 17 (Forrest), 18 (Frantz), 20 (Hall ), 21 (White), 22
(Stewart), 23 (Arroyo), 24 (Tucker), 25 (Miltenberger), 26 (Kaiser), 27
(Eisele), 28 (Niblick), 29 (Jackson), 30 (Reid), 31 (Johnson ), 32 (Lawshea
Jr ), 33 (Ferrell), 34 (Simpson), and 36 (Lawshea Sr )
88 G C Exh 35
28 If the 10 employees on layoff with the most recent hire dates were
removed from the unit and their cards were ignored , the Union would
have retained majority status with 22 cards in a unit consisting of 42 em-
ployees.
parking lot and breakroom on December 18, 1982. The
record fails to reveal that any of the handbills under dis-
cussion were given to any responsible Respondent offi-
cials.
The General Counsel contends that as the record re-
veals that Respondent refused to accept telephone deliv-
ery of the Union's December 2, 1982 telegram, which
was sent to advise Respondent it was organizing the
plant with an organizing committee consisting of eight
named employees, and the record reveals it subsequently
refused mail delivery of the same telegram , I should find
that Fekrat's refusal to accept the demand letter on De-
cember 16, 1982, warrants a conclusion that the Union
obtained "constructive" service of the demand on Re-
spondent. Although the General Counsel contends any
further effort by the Union to deliver a demand letter to
Respondent after December 16 would have been a "fruit-
less gesture," I note that Shepherd was invited to speak
personally with Kaiser and he failed to accept the invita-
tion. In the circumstances described, I find that the Gen-
eral Counsel has offered insufficient evidence to show
that the Union made an effective demand for recognition
and bargaining on Respondent.
Having found that the General Counsel failed to prove
an essential element of the 8(a)(5) allegation-that the
Union demanded that Respondent recognize and bargain
with it-I recommend that the allegation be dismissed.
IV. THE REPRESENTATION CASE
The Union filed its petition in Case 7-RC-16853 on
December 20, 1982, and an election was held among Re-
spondent 's employees on February 17, 1983. The tally of
ballots revealed:
Approximate number of eligible voters-45
Void ballots-0
Votes cast for Petitioner-19
Votes cast against participating labor
organization- 17
Valid votes counted-36
Challenged ballots-5
Valid votes counted plus challenged ballots-41
The Petitioner challenged the ballot of Fred Shaner on
the grounds that he is a casual employee, and the ballot
of Bradley Clear on the grounds that he is a relative of
management.
The Employer challenged the ballots of Marion Glaser,
Mikel Reid, and Ron Zebell on the grounds that they
were on indefinite layoff at the time of the election.
On February 22, 1983, the Petitioner filed timely ob-
jections to the election, and on February 24, 1983, the
Employer also filed objections to the election. The chal-
lenged ballots and the objections filed by the parties are
treated separately below.
A. Challenged Ballots
1. Fred Shaner
Shaner was employed by the Employer as a mainte-
nance electrician in 1969. He thereafter worked full time
UNITED STATES AVIEX CO. 841
until he contracted cancer in 1979. Subsequent to his re-
covery, he applied for and received social security bene-
fits and began to work for the Company part time. As a
part-time employee, he is covered by the Employer's
health insurance program, but he does not receive paid
vacations or paid holidays, which full-time employees re-
ceive. Because he is a social security annuitant, Shaner
works only approximately 20 hours per week. He does
not have a fixed work schedule, and is, instead, on call
24 hours a day. His immediate supervisor is Jack Helt,
who supervises the Employer's maintenance department.
Hell indicated he normally telephones Shaner at his
home to inform him that electrical maintenance repairs
of a given nature are needed, and Shaner thereafter
comes to the plant and makes the needed repairs. Helt
estimated that Shaner spends approximately 8 hours per
week performing electrical work in the Employer's Ter-
minal Road plant and spends approximately 12 hours a
week at the site of its old plant located on Huntley
Road. At the Huntley Road location, Shaner removes
parts from equipment and machinery, which he then uses
at the Terminal Road plant, and he engages in the repair
and rebuilding of certain production equipment and ma-
chinery. Shaner, who has his own key to the Huntley
Road facility, is hourly paid but, unlike other employees,
he keeps his own time records and gives them to the
Employer's payroll clerk each week.
Respondent's Exhibit 3, the employee earnings records
reflecting Shaner's earnings for the calendar year 1982
and the first three quarters of 1983, reveals that during
the first three quarters of 1982, he was paid for 20 hours
work each week. During the quarter ending December
31, 1982, he worked 40 hours or more 3 weeks, 10 hours
I week, 20 hours another week, and did not work at all 2
weeks. During the first quarter of 1983, he was paid for
20 hours work each week.
Petitioner sought through interrogation of several of
the General Counsel witnesses to establish that Shaner is
a casual employee who has insufficient community of in-
terest with bargaining unit employees to be included in
the bargaining unit. Thus, employee Bryant testified
Shaner came to work "once a week, once a month,
whenever something would break down that they
needed him to repair"; that when he came to the plant,
he would stay 30-45 minutes or whatever time it took
him to fix the problem; that Shaner never worked a full
shift and did not punch a timeclock, that about 2 weeks
before the election he heard Jack Hell tell Shaner to
come in every week so everybody could see he was
there before the election;30 and that Shaner spent more
time at the plant during the 2-week period preceding the
election, but he spent it walking around with Helt rather
than working . During cross -examination by Respondent's
counsel, Bryant indicated he was sent to the Huntley
Road facility once or twice a month and he seldom saw
Shaner there. He indicated that he normally went to the
Huntley Road site with employee Brady, and that em-
30 Helt denied Bryant 's assertion and claimed, instead, that he told
Shaner to spend more time at the plant repairing a piece of filling equip-
ment I credit Bryant
ployees John Helt Jr. and Milnar also went to that site
on occasion.
Similarly, employee Brady testified: Shaner could
come and go, and in the winter he did not have to come
in because of a lung problem; that Shaner never worked
a full day; that he did not see Shaner at the Terminal
Road plant at all during December 1982; that he saw
Shaver at the Terminal Road plant 2-3 hours a day, 3 or
4 days a week in January and February 1983, but that,
instead of working , Shaner spent his time talking and
drinking coffee with Kaiser , Fekrat, Chaveous, Helt, or
Boyle; that he did not see Shaner in the plant after the
election; that Shaner had special privileges as he could
go to the office when he pleased, drink coffee, or pop
anywhere in the plant, take breaks or lunch with supervi-
sors, and wear clothing other than work clothing.
During cross-examination , Brady indicated he had
worked 2 months at the Huntley Road plant during the
summer of 1982, and Shaner spent most of his time there.
He admitted that, when he returned to the Terminal
Road plant, he worked in the batch room and saw
Shaner only when he came to the batch room, and that
the Employer provides a soda machine and free coffee
for all employees.
Employee Shepherd added little. Like Brady, Shep-
herd claimed that Shaver "came and went as he pleased"
in the plant. Shepherd said he saw Shaner at the Termi-
nal Road plant only four of five times between Decem-
ber 1981 and December 1982. On these occasions,
Shaver would come in at "odd hours," stay a short time,
and leave. Between January 1983 and the election, how-
ever, Shepherd testified he saw Shaner in the main plant
more frequently. Although Shaner would do some elec-
trical work "once in a while" during this period, Shep-
herd stated that Shaner was more often just walking
around the plant and talking to various supervisors.
After the election, Shepherd seldom saw Shaner in the
plant . On cross-examination , Shepherd admitted that as a
production employee, his opportunities to observe other
areas of the facility were very limited. He seldom over-
heard what Shaner and the supervisors were talking
about, and did not know what Shaner did when he was
in the office area , nor did he knew whether Shaver went
into and out of the office areas of his own accord, or in
response to supervisory directions or work requirements.
Shepherd conceded that he had seen Shaner working on
various pieces of equipment and machinery in the plant,
and that Shaner's normal work methods included ex-
tended periods of observing the machinery in question.
Jeff Weaver also testified that Shaner "could come and
go as he pleased" in the plant. Like Brady, Weaver said
that Shaner had "office privileges." Weaver, however,
stated that he saw Shaner in the Terminal Road plant 2
to 4 days a week, 2 to 3 hours a day, between August
1981 and December 1982. According to Weaver, Shaner
spent slightly more time than this in the main plant in
January and February 1983, and after the election Shaner
continued to appear in the plant I or 2 days per week.
Weaver said he had observed Shaner working on con-
veyor motors and electrical panels, as well as doing
plumbing work , in the plant.
842 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
The General Counsel' s witness Charles Simpson also
testified that Shaner "could come and go as he pleased."
Simpson worked with Shaner at the Huntley Road facili-
ty between December 1979 and March 1980. Shaner was
there almost every day, doing electrical and plumbing
work. His hours per day varied, depending on the work
involved. Between January 1981 and December 1982,
Simpson frequently saw Shaner doing electrical work at
the Terminal Road plant, some two to three times a
week. Although Simpson claimed that Shaner did not
work in the plant in January and February 1983, he then
said , "If there was a job to be done [Shaner] would
come in and do it, and leave." Simpson also subsequently
conceded that he did see Shaner working on motors,
conveyors, switches, panels, and other equipment in the
Terminal Road plant in January and February 1983.
Maintenance Supervisor Helt described Shaner's duties
in detail . They include maintenance and repair of all
motors and electrical equipment, as well as the boilers,
water heaters, and heating and air-conditioning equip-
ment in the plant. He indicated that because of his
unique skills , Shaner often works on electrical mainte-
nance projects alone, although he also works alongside
other hourly employees as well. Helt listed a large
number of specific projects which Shaner worked on in
the Terminal Road plant in 1982 and 1983, both before
and after the election. Helt confirmed that Shaner spends
varying amounts of time at Terminal Road in the general
office area, and in the breakroom with Helt. However,
Helt explained that Shaner must go to the office to
obtain purchase orders for electrical parts, and to com-
plete other maintenance related paper work, as well as to
work on the thermostats and timers located in that area.
Finally, Helt testified that he routinely discusses mainte-
nance related work problems with Shaner in the break-
room, rather than his office, because this gives them
more room to spread out blueprints and equipment
manuals.
Petitioner challenged Shaner's right to vote in the
February 17, 1983 election contending this social security
annuitant who worked on an "on-call" basis has insuffi-
cient community of interest with unit employee to be eli-
gible . In Holiday Inns, 176 NLRB 939, 941 (1969), the
Board held that it would not henceforth find employees
to be ineligible to vote in a Board-conducted election
solely for the reason that they limit their working time
and earnings so as not to decrease their social security
annuity. Moreover, in a number of cases, the Board has
held that "on-call" employees who average 4 hours or
more of work per week during the quarter prior to the
eligibility date enjoy a sufficient community of interest to
be eligible to vote. May Department Stores, 175 NLRB
514, 517 (1969); Riverside Community Mental Hospital,
250 NLRB 1355, 1356 (1980). Noting that Charging
Party's Exhibit 3 reveals that Shaner worked an average
of 20 hours per week from January 1, 1982, through the
first quarter of 1983, it is clear that a finding that Shaner
was eligible to vote in the February 17, 1983 election
would be warranted.
Petitioner contends that I should not make such a find-
ing because the record reveals Shaner had little contact
with unit employees and he enjoyed special privileges. I
conclude that Petitioner has failed to factually establish
either contention.
With respect to the first contention, employees Bryant,
Brady , and Shepherd indicated , when interrogated by
Petitioner's counsel , that they seldom observed Shaner at
work, but each admitted during cross-examination that,
even though Shaner was in the Terminal Road plant
working, they may have not been able to see him from
their work stations . Significantly, Petitioner's witnesses
Weaver and Simpson testified that they saw Shaner
working at the Terminal Road plant frequently during
1982 and more frequently during January and February
1983. Viewing the described conflicting testimony, I am
unwilling to find that Shaner's contacts with bargaining
unit employees were so infrequent that a finding that he
does not have sufficient community of interest with unit
employees is warranted.
With respect to the contention that Shaner enjoyed
special privileges, all five employees who described his
special privileges asserted that Shaner could come and
go as he pleased. Obviously, the employee could come
and go as he pleased, rather than report for work and
remain for an entire shift , because he was an "on-call"
employee. As indicated above, his status as an "on-call"
employee did not , in the circumstances of this case,
render him ineligible to vote. Finally, I attach little
weight to that testimony which was to the effect that
Shaner could have coffee wherever he wanted, take
breaks when he wanted, or visit the office area when he
desired to visit it as the record fails to reveal the employ-
ee was being paid for the time he spent in such activities.
Moreover, the record reveals that he engaged in some of
the described activities in connection with the perform-
ance of his job.
In sum, the record reveals that Shaner is a regular
part-time employee who performs maintenance work
under the supervision of the same individual who super-
vises maintenance employees who are admittedly mem-
bers of the bargaining unit. I find that he shares sufficient
community of interest with such employees to be includ-
ed in the bargaining unit. Accordingly, I recommend
that the challenge to his ballot be overruled.
2. Bradley Clear
Bradley Clear was challenged by Petitioner on the
grounds that he is a relative of management.
Bradley Clear worked for Respondent from the spring
of 1982 to some unstated time in June 1983. He is the son
of Respondent's technical director, Norman Clear, and
lived at home and rode to and from work with his father
while employed at Respondent . During his tenure of em-
ployment, he worked in Respondent's laboratory under
the supervision and direction of chemists Brian Clear (his
brother) and Scott Alwine. The two chemists were su-
pervised by Norman Clear.
Although the record reveals that Norman Clear occu-
pies a position which is tantamount to the position of
plant manager as he schedules Respondent's production,
neither Norman Clear nor his son Brian Clear owns any
interest in Respondent or holds any corporate office.
UNITED STATES AVIEX CO
The record reveals that while working for Respond-
ent, Bradley Clear was a college student. He credibly
testified that he worked full time when not attending
school and 25-30 hours per week while attending school.
During the penod extending from November 1982
through February 1983, he worked from 6:30 a.m. to 5
p.m. on Monday, Wednesday, and Friday. He testified
that he was hourly paid at $3.35 per hour, performed the
same types of work performed by other lab employees,
enjoyed the same break and lunch periods, and was re-
quired to perform production work on occasion as were
other lab employees. While working as a part -time em-
ployee, he was covered by Respondent's health insur-
ance plan
Petitioner sought to show that Bradley Clear enjoyed
special privileges while employed by Respondent
through the testimony of employee Weaver Weaver tes-
tified that although Bradley Clear took his breaks and
lunch periods at the same time other employees took
them, he remained in the breakroom after Weaver left,
and he ran errands for the office, such as picking up mail
and supplies.
Bradley Clear testified he could recall no occasion on
which he took more than the 15-minute break which was
allowed all employees He indicated that he had never
been authorized to take longer breaks. He indicated he
and other lab employees were permitted to take coffee
into the lab. Finally, he agreed he picked up mail and
supplies using a company car, but he testified that his
fellow lab employees, Kluth and Johnson, also per-
formed the same functions as part of their regular work
duties.
Noting that Petitioner has failed to show that Norman
Clear and Brian Clear have any financial interest in Re-
spondent and that the record reveals they occupy no
corporate position other than that of supervisor, I find
that it has not been shown that Bradley Clear's relation-
ship to his father and brother is of such a special nature
as to warrant his exclusion from the unit. Accordingly, I
recommend that the challenge to Bradley Clear's ballot
be overruled See Rich's Precision Foundry, 262 NLRB
678, 679 (1982).
3. Ronald Zebell
Ronald Zebell was hired by the Employer on October
10, 1982. At that time, Chaveous informed the employee
that he intended to train him to be a setup man on the
filling machines in the 3m room because he intended to
replace the then-current setup man on those machines
(Frantz) because he was thickheaded and stupid. Accord-
ing to Zebell, Chaveous told him he would start at $3.35
per hour, and that by occupying the setup position he
would not be subject to layoff although he might be as-
signed to a production line job in a layoff situation.
On December 2 Zebell requested that he be permitted
to leave work early. When he reported for work on De-
cember 6, he was informed he had been laid off. Proun-
ion employees were distributing literature in the Compa-
ny's parking lot at the time , and Zebell immediately
joined them Subsequent to December 6, he participated
in union handbilling which was accomplished at the
plant.
843
As noted, supra, the Employer held a number of meet-
ings with working as well as laid-off employees during
the union organization and election campaign . Zebell
was invited to attend the meetings and was paid for the
time spent attending them.
The record reveals that at some point in time prior to
January 12, 1983, the date Petitioner signed the Stipula-
tion for Certification upon Consent Election in the repre-
sentation case , the Employer maintained , in discussion
with the Petitioner, that 5 of the 15 employees then in
layoff status with the earliest dates of hire had a reasona-
ble expectancy of recall, but the 10 laid-off employees
with later dates of hire had no reasonable expectancy of
recall. The Employer 's rationale was subsequently ex-
pressed in a position letter dated February 25, 1983,
which was sent to the Regional Office in connection
with the representation case.3 i Summarized , the Em-
ployer contended the 5 employees in layoff status with
the earliest dates of hire had been hired for the entire
winter season, but the 10 employees in layoff status with
more recent dates of hire, had been hired to perform
only peak of the season work.
In the instant proceeding, the Employer sought to bol-
ster its contention that Zebell, Reid, and Glaser were in-
eligible to vote in the February 17, 1983 election by con-
tending that they, as well as the remaining employees
named in paragraph 13(b) of the complaint, were termi-
nated, pursuant to the normal company policy, dunng
the month of January 1983.32 As noted, supra, I find the
91 G C Exh 38
32 The Employer contends that, when read together, the seniority and
probationary employee provisions set forth in its employee handbook
reveal it has a policy of terminating employees who fail to work 60 days
in its 90-day probationary penod when their days in layoff exceed the
number of days they actually worked, which are found in R Exh 20 at
pp 3, 4, 9, and 10, as follows
PROBATION PERIOD
Alll newly hired employees are on probation for the first 90 calendar
days of their employment It is during this penod that you and your
Supervisor have an opportunity to fully evaluate your capacity At
the successful conclusion of this period, you will gain senionty status
as the date of hire, provided you work at least 60 scheduled work
days during the probationary penod If you are unable to work 60
scheduled work days dunng the 90 day probationary period due to
excused absence, but completed this probationary requirement within
120 calendar days from your date of hire, you will also gain seniority
status
SENIORITY
Seniority is defined as the length of an employee's continuous serv-
ice with the company from the date of his last employment, and
shall be applied providing ability is equal Seniority as above defined
shall govern vacation preference and permanent layoff An employ-
ees' seniority shall terminate upon the occurrence of any of the fol-
lowing
A Resignation or retirement,
B Discharge,
C Layoff for a period equal to the employee's total length of serv-
ice from his most recent date of hire , or one year , whichever is the
lesser,
D Unexcused absence from work for three consecutive working
days without notification,
E Failure of an employee to report for work the first working
day following expiration of a leave of absence or following recall
Continued
844 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
termination slips placed in the record as Respondent Ex-
hibit 42 to be suspect. Moreover, I note that with excep-
tion of employee Stewart, none of the employees named
in paragraph 13(b) of the complaint have ever been in-
formed by the Employer that they have been terminated,
and, as indicated above, the Employer has taken a con-
flicting position during the pendency of the representa-
tion case . In the circumstances, I find the termination
slips under discussion are entitled to no affirmative evi-
dentiary weight.
In sum , the record reveals that employee Zebell was
hired to fill a machine setup position and, prior to the
December 2, 1982 layoff, such positions were occupied
by individuals who worked the entire winter season
rather than simply during peak periods of the winter
season . The record further reveals that he was specifical-
ly informed he was being trained to replace 3m filling
machine setup man Frantz. Noting Zebell was not in-
formed at the time of his layoff that the layoff was to be
permanent, that the Employer's need for employees was
to be determined by the weather, which no one could
predict during the months of December 1982 and Janu-
ary and February 1983, and that the record reveals the
Employer continued during the period of the layoff to be
dissatisfied with the services of employee Frantz, I find
that on February 17, 1983, Zebell had a reasonable ex-
pectancy of recall. Accordingly, I recommend that the
challenge to his ballot be overruled.
4. Mikel Reid
Mikel Reid was hired by the Employer on October 13,
1982. At the time , he was informed by Chaveous that
setup men did not get laid off.
On December 2, 1982, Reid was laid off with virtually
all of the Employer's production line employees. On
February 14, 1983, he accepted full-time employment
with another employer. It is clear, and I find, that Reid
was not eligible to vote in the February 17, 1983 elec-
tion. I recommend the challenge to his ballot be sus-
tained.
5. Marion Glaser
Marion Glaser was hired by the Employer on October
14, 1982. The record reveals she was a production line
worker.
from layoff Any employee who is promoted to foreman will main-
tain and continue to accrue seniority for a maximum of six months
and may return to an employee status anytime during that period
without prejudice to his seniority
Significantly , Fekrat indicated during his testimony that employees are
granted an additional 30 days to meet the 60-workday requirement if they
experience excused absences during the probationary period Leaving
that aside, it appears the Employer has reached a strained interpretation
of the above-described clauses here because it is clear that none of the
employees laid off in early December 1982 had obtained seniority rights
before they were laid off That being the case, they could hardly lose
what they never had by experiencing "Layoff for period equal to the em-
ployee's total length of service from his most recent date of hire, or one
year, whichever is the lesser "
In sum , the employee handbook is silent on the recall rights of employ-
ees who have not obtained seniority pursuant to the provision quoted
above Here, the Employer's principals indicated an intention to recall
employees it might need I find the handbook provisions are not support-
ive of the Employer's position
Glaser testified that Chaveous informed her during the
morning of December 2, 1982, that the employees would
be sent home at noon for lack of work. She ran out of
work at approximately 11:20 a.m. and was permitted to
go home at that time . The parties stipulated she was in-
cluded in the December 2 layoff. The record fails to
reveal whether she was told the layoff would be tempo-
rary or permanent.
During the period extending from December 2 to the
date of the election, the record reveals that Glaser, like
other active and laid-off employees, attended the election
campaign meetings held by the Employer. She was paid
for the time spent in attendance at such meetings.
As noted, supra , the Employer contended in discus-
sions with Petitioner, which preceded Petitioner 's execu-
tion of the Stipulation for Certification upon Consent
Election on January 12, 1983, that Glaser had no reason-
able expectancy of recall and was, therefore, not eligible
to vote in the February 17, 1983 election. Respondent's
Exhibit 42 purports to show that she was terminated by
the Respondent Employer on January 14, 1983. The
record fails to reveal that Glaser was ever informed by
the Employer that she had been terminated. For the rea-
sons set forth, supra , I attach no evidentiary weight to
Respondent's Exhibit 42.
The record clearly reveals that the Employer's em-
ployee needs during the month of December 1982 and
January and February 1983 were entirely dependent on
the weather which could not be predicted. In the cir-
cumstances described, I find that Glaser had a reasonable
expectancy of recall on February 17, 1983. Accordingly,
I recommend that the challenge to her ballot be over-
ruled.
B. Petitioner's Objections
The Objections filed by the Petitioner state, in perti-
nent part, as follows.
1. Through its campaign literature, captive audience
speeches, and other means, the employer created an at-
mosphere of coercion, fear, and intimidation by repeated
prophecy of strikes, violence, loss of business and loss of
jobs as inevitable results of a union victory.
2 Created the impression that collective bargaining
would be futile and harmful to employees by making re-
peated predictions of bargaining difficulties, loss of bene-
fits and economic security, strikes, and job loss.
3. Interrogated employees concerning their union sym-
pathies and activities
4. Solicited employees to engage in surveillance of
union meetings and created an impression of surveillance
of employee's union activities
5. Solicited employee grievances and made express and
implied promises to remedy the grievances in order to
undermine support for the union.
7. Refused to allow union supporters to use the com-
pany bulletin board for campaign purposes while allow-
ing antiunion employees to use it.
8. Confiscated union literature from employees and
otherwise interfered with their rights to engage in lawful
solicitation and distribution on behalf of the Union.
UNITED STATES AVIEX CO 845
9. Verbally abused employees because of their union
sympathies and activities.
10. Threatened employees with a loss of job security if
they voted in favor of union representation.
In its brief, Petitioner sets forth facts and argument in
support of Objections 1, 7, and 8. It apparently relies on
that evidence adduced by the General Counsel in sup-
port of the complaint allegations to establish the validity
of Objections 3, 4, 5, 6, 9, and 10. The conduct found to
be unlawful, supra, is alleged to be objectionable in Ob-
jections 3, 4, 6, and 9. As the record reveals the Employ-
er engaged in such conduct between the time the petition
was filed and the date of the election, I find Objections
3, 4, 6, and 9 to be meritorious and recommend they be
sustained. Having found, supra, that the Employer did
not solicit employees' complaints and grievances and
promise to remedy them, as alleged in paragraph 13(b) of
the complaint, I find Objection 5 to be without merit,
and recommend that it be overruled. The remaining ob-
jections are discussed below.
1. Objection 1
In its brief, Petitioner claims that certain testimony
given by employees Brady, Wolfe, and Moodie reveals
that Objection I is meritorious.
Through employee Brady's testimony, Petitioner estab-
lished the fact that in January 1983, the Employer cre-
ated a company bulletin board near the premix line, and
it thereafter posted antiunion literature, particularly liter-
ature referring to strikes on the bulletin board. Brady tes-
tified that antiunion employee Sam Milnar posted antiun-
ion material he had prepared on the bulletin board on
two occasions. He further indicated that after the Com-
pany created its bulletin board, he and employee Shep-
herd asked Chaveous if they could have a union bulletin
board, and that Chaveous, after conferring with Kaiser,
told him they could not have a union bulletin board.
Employee Wolfe testified that during employee meet-
ings held on January 18 and February 9, 1983, Kaiser in-
formed employees attending the meetings that the Com-
pany could replace employees who went out on both
economic and unfair labor practice strikes.
Through the testimony of Moodie, Petitioner sought
to establish that during a meeting held on January 26,
1983, Fekrat informed employees the Company had no
money and the employees would have to go on strike to
get a contract. In addition, Moodie testified Fekrat told
employees at a small group meeting held on February 3,
1983, that if they went on strike for more pay, they
could be replaced.
Employee witnesses Chaveous, Kaiser, and Fekrat
denied the Company engaged in the objectionable con-
duct described in Objection 1. Although Chaveous ad-
mitted that employee Brady asked for a union bulletin
board and Kaiser refused the request, he indicated the
company bulletin board was for the Company's use only
and he was told by Fekrat that employees would not be
permitted to use the bulletin board. Kaiser testified that
he was informed one morning that employee Milnar had
posted material on the bulletin board, and that caused
him to go to Milnar and tell him to remove the material
he had posted and to refrain from posting further materi-
al there.33 Without indicating when they were posted,
the Employer placed three leaflets it placed on the bulle-
tin board during the election campaign in evidence as
Respondent's Exhibits 21, 22, and 23. Each of the leaflets
conveys the message that a company can replace em-
ployees who engage in an economic strike.
As noted, supra, Kaiser read the speech placed in the
record as Respondent's Exhibit 18 at the January 17,
1983 meeting. Inspection of the document reveals that
Kaiser stated (at 3):
When a Union goes to the bargaining table with
a nice grocery list of things they would like to have
and ask for them, they will get them only if the
Company agrees. They will get only the things that
a Company can afford and can agree to, and they
get nothing that the Company doesn't agree to, and
then what can a Union do if the Company doesn't
agree to anything, they can do nothing except take
their members out on strike. And there you go, you
the employees lose again.
And let's talk about a strike. It's only fair for you
to know that if you were on strike and refused to
report to work, a Company can go out and hire
new employees to replace you. That's the law. The
new hirees will have first right to the jobs, even
after the strike is settled, and if you don't believe
me, go find that one out for yourself.
You should also seriously consider what type of
jobs we have and what is available and how easy in
a situation I just described, it would be to fill them
up. It's a hard fact that you should recognize and
seriously consider in your deliberations in the next
month. I'm not saying that if the Union got in here
that we would not necessarily have a strike or if we
did, that we would replace the strikers. The point
that I am making is, that with a Union there is a
risk of a strike and we have the legal right to hire
permanent replacements for anyone that goes out
on strike.
Kaiser credibly testified that while he attended small
group meetings held in February 1983, he did not speak
at such meetings. Fekrat testified that he conducted such
meetings and denied that he told employees they would
have to strike to get a contract. He testified that any re-
marks concerning replacement of employees made
during such meetings were made in the context of discus-
sions regarding replacing employees who went on strike
for more pay.
I attach little weight to the testimony given by em-
ployees Brady, Wolfe, and Moodie as I gained the im-
pression when they were testifying that they were stating
the conclusions they reached after attending employees'
meetings, rather than stating what Kaiser and Fekrat ac-
tually said during the meetings Fekrat is an intelligent
individual and I credit his claim that he did not tell em-
ployees at small group meetings that they would have to
strike to get a contract. I likewise credit his assertion
ss The record reveals Milnar's material remained on the bulletin board
for approximately 2 or 3 hours.
846 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
that any remarks he made concerning replacement of
employees were made in the context of discussions of re-
placing employees who went on strike for more pay.
With respect to the bulletin board situation, Petitioner's
contention was that the Company permitted antiunion
employees to post material in the plant but denied that
privilege to prounion employees. Noting that employee
Milnar was the only antiunion employee who posted ma-
terial on the bulletin board, and the fact that he was im-
mediately ordered to remove such material by the Em-
ployer's president, I find Petitioner has failed to establish
its contention. Finally, it is clear, and I find, that Kaiser
failed during his January 17, 1983 speech to differentiate
between economic and unfair labor practice strikes, and
his remarks could have caused employees to conclude
that by engaging in any type of strike while employed by
Respondent, they would place their jobs in jeopardy.
Having undertaken to inform employees of its legal
rights , the Employer was obligated to engage in no mis-
representation . I find that such conduct was objection-
able as contended . Olympic Medical Corp., 236 NLRB
1117, 1123-1124 (1978).
For the reasons stated, I conclude Objection I is meri-
torious to the extent stated above. Accordingly, I recom-
mend it be sustained.
2. Objection 2
Petitioner failed to set forth facts or argument in sup-
port of Objection 2 in its brief. Noting it refers to the
same types of conduct mentioned in Objection 1, I find it
to be meritorious and recommend it be sustained.
3. Objection 7
The facts offered in support of this objection are de-
tailed above in discussion of Objection 1. For the reasons
stated above, I conclude the objection is without merit
and recommend it be overruled.
4. Objection 8
Employee Brady testified that at a meeting Fekrat held
with employees on February 10, 1983, he complained
that he had heard that a dispatch supervisor had taken a
piece of union literature from the handle of his lunchbox,
which had been left on a table in the breakroom, and had
thrown it away. Fekrat admittedly replied by stating the
company tables are company property and everyone has
access to those tables and, if someone wanted to sit
down and remove literature from the area they were
using , he guessed they had a right to do that. Fekrat fur-
ther indicated that employees were not prohibited from
distributing or reading union literature in the break area
on their break period. The record reveals that, in fact,
union supporters did distribute union literature in the
Employer 's parking lot and in the breakroom or lunch-
room , and no instances of interference other than the one
described by Brady occurred.
Although Petitioner claims that Fekrat 's actions war-
rant a finding that "the Company in effect had an invalid
no-distribution rule that prohibited the distribution of
union literature in non-working areas on non -working
time," I find the facts offered to support the contention
are insufficient to establish the assertion . I conclude it is
unlikely that the isolated incident involving Brady and
his single piece of union literature had any significant
impact on the outcome of the election. Accordingly, I
recommend that the objection be overruled.
5. Objection 10
No facts or argument was offered in support of this
objection Accordingly, I recommend that it be over-
ruled.
C. Employer's Objections34
Employer's Objections I and 4 are before me for reso-
lution . These objections state:
1. After the petition had been filed, Union sup-
porters , agents and representatives threatened em-
ployees with physical harm if they did not sign au-
thorization cards for the Union and otherwise sup-
port the Union, thus intimidating voters and inter-
fering with their rights to cast ballots free from
such intimidation.
4. The Union, its agents, supporters and repre-
sentatives have engaged in and encouraged conduct
which interfered with the voters' right to cast a
ballot free from such objectionable conduct thereby
affecting the results of the February 17, 1983 elec-
tion.
The Employer sought to support its objections
through the testimony of employee Regenos. Regenos
testified without contradiction that on December 8, 1982,
employee David Brown attempted to give him some
union literature. When he refused it, he claims Brown
told him to take it and read it over or he would have to
hurt him . Regenos indicated Brown was standing right in
front of him at the time and he told him to either get out
of his way or he would have to move him. Brown
moved and Regenos went to work.
Regenos further indicated during his testimony that on
several occasions during the month of January 1983, em-
ployee Jimmie Brady solicited him to join the Union in
the plant by telling him they needed it and he would be
sorry if he did not join because they were going to get
the thing in and would know who was supporting the
thing and who was not.
Regenos testified that at unstated times in December
1982 and January 1983, David Brown and Jim Brady
told him, "They were members of the board, the com-
mittee , whatever you want to refer to it. That actually
had put the union together."
Patently, Brown's December 8 comments to Regenos
cannot serve as the basis for setting aside the February
17 election because the comment was made prior to the
time the petition was filed in the representation case on
December 20, 1982. With respect to Regenos' assertion
that Brady told him in December 1982 and January 1983,
that he would be sorry if he did not join the Union be-
cause they were going to get the thing in and would
34 In its brief, the Employer withdrew its Objections 2 and 3
UNITED STATES AVIEX CO.
know who was supporting the thing and who was not, I
note that the record simply reveals that Brown and
Brady were 2 of 12 members of the employee organizing
committee, and were not shown to have occupied any
office or official position with the Union. Moreover, the
record fails to reveal that the Union was aware of or
condoned the actions of Brown and Brady. In the cir-
cumstances, I find that the Employer has failed to show
that Brown and Brady were acting as agents of the
Union when they solicited Regenos to join. Fabricut,
Inc., 233 NLRB 1196 (1977). Apart from the question of
agency, the facts offered by the Employer fail to show
that the asserted threats to employee Regenos created a
general atmosphere of fear and reprisal among its em-
ployees; indeed, it appears Regenos was not coerced into
joining the Union, and the conduct of Brown and Brady
did not deter him from voting in the February 17 elec-
tion. I find the conduct in question does not constitute
grounds for setting the election aside. Fidelity Telephone
Co. Y. NLRB, 574 F.2d 409, 410-411 (9th Cir. 1978). Ac-
cordingly, I recommend that the Employer's Objections
1 and 4 be overruled.
D. Request for a Bargaining Order
Having found that Respondent did not commit the
8(a(3) violations alleged in the complaint, I conclude the
8(a)(1) violations found herein, standing alone, do not
warrant the issuance of a bargaining order in this case.
Although I have found that Respondent acted unlawfully
when it promised Lawshea Sr. it would recall his son if
he voted against representation, I note that conduct af-
fected only the Lawsheas and, in fact, Lawshea Sr. invit-
ed Respondent to commit the violation. Similarly, al-
though it has been found that Respondent unlawfully in-
terrogated employees, I note that such interrogation was
not accompanied with threats of reprisal or promises of
benefit. Although Respondent sought on several occa-
sions to create the impression that the union activities of
its employees were under surveillance, the effect of such
conduct was minimal , as the record reveals the Union
conducted an open campaign and caused many of its sup-
porters to wear union insignia, hats, buttons, or other
logo in the plant . Finally, Respondent's attempt to
demean employees because of their support of the Union
was limited. Viewing the violations committed in con-
text, I conclude that none of them could be said to have
affected the employees involved to such an extent that
they would be unable to cast a free and uncoerced ballot
after the application of normal Board remedies. Accord-
ingly, I find that the issuance of a bargaining order is not
warranted in the instant case.
Noting that the Board has consistently held that con-
duct which is violative of Section 8(a)(1), a fortiori,
interferes with the exercise of a free and untrammeled
choice in an election,95 it will be recommended that, in
the event my disposition of the challenged ballots does
not result in certification of the Union as the bargaining
agent of Respondent's employees, the February 17, 1983
election be set aside and a second election be held.
36 Oleson's Food No 4, Inc, 167 NLRB 543, 551 (1967), Irving Air
Chute Co, 149 NLRB 627, 629 (1964)
CONCLUSIONS OF LAW
847
1. Respondent is an employer engaged in commerce
within the meaning of Section 2(2), (6), and (7) of the
Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By unlawfully interrogating employees concerning
their union activities and sentiments , creating the impres-
sion that the union activities of their employees were
under surveillance , demeaning employees because they
support the Union, and promising to recall a laid-off em-
ployee to cause an active employee to reject the Union,
Respondent has violated Section 8(a)(1) of the Act.
4. Respondent has not violated the Act except as ex-
pressly indicated in this decision.
THE REMEDY
Having found that Respondent has engaged in certain
unfair labor practices , I shall recommend that it be or-
dered to cease and desist therefrom and to take certain
affirmative action necessary to effectuate the policies of
the Act.
On these findings of fact and conclusions of law and
on the entire record , I issue the following recommend-
ed36
ORDER
The Respondent, United States Aviex Company, Nile,
Michigan, its officers, agents, successors, and assigns,
shall
1. Cease and desist from
(a) Unlawfully interrogating employees concerning
their union activities and sentiments.
(b) Creating the impression that the union activities of
its employees are under surveillance.
(c) Demeaning employees because they support Inter-
national Union of Electrical, Radio and Machine Work-
ers, AFL-CIO or any other labor organization.
(d) Promising to recall laid-off employees to cause
active employees to reject the Union.
(e) In any like or related manner interfering with, re-
straining, or coercing employees in the exercise of the
rights guaranteed them by Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Post at the Niles, Michigan facility copies of the at-
tached notice marked "Appendix."37 Copies of the
notice, on forms provided by the Regional Director for
Region 7, after being signed by the Respondent's author-
ized representative, shall be posted by the Respondent
immediately upon receipt and maintained for 60 consecu-
39 If no exceptions are filed as provided by Sec 102 46 of the Board's
Rules and Regulations , the findings , conclusions, and recommended
Order shall, as provided in Sec 102 48 of the Rules, be adopted by the
Board and all objections to them shall be deemed waived for all pur-
poses
34 If this Order is enforced by a judgment of a United States court of
appeals, the words in the notice reading "Posted by Order of the Nation-
al Labor Relations Board" shall read "Posted Pursuant to a Judgment of
the United States Court of Appeals Enforcing an Order of the National
Labor Relations Board "
848 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
tive days in conspicuous places including all places
where notices to employees are customarily posted. Rea-
sonable steps shall be taken by the Respondent to ensure
that the notices are not altered, defaced, or covered by
any other material.
(b) Notify the Regional Director in writing within 20
days from the date of this Order what steps the Re-
spondent has taken to comply.
IT IS FURTHER RECOMMENDED that Case 7-RC-16853
be severed and remanded to the Regional Director for
Region 7 to open and count the overruled, determinative
challenged ballots, and thereafter to issue a revised tally
of ballots. Should the tally of ballots indicate that the Pe-
titioner was designated by a majority, he shall issue a
Certification of Representative. Should the revised tally
of ballots fail to disclose that the Petitioner has been des-
ignated by a majority, the election conducted on Febru-
ary 17, 1983, shall be set aside and the Regional Director
shall conduct a rerun election at such time as he deems
the circumstances permit a free choice on the issue of
representation.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
WE WILL NOT unlawfully interrogate you concerning
your union activities and sentiments.
WE WILL NOT create the impression that the union ac-
tivities of our employees are under surveillance.
WE WILL NOT demean you because you support Inter-
national Union of Electrical, Radio and Machine Work-
ers, AFL-CIO or any other labor organization.
WE WILL NOT promise to recall laid-off employees to
cause active employees to reject the Union.
WE WILL NOT in any like or related manner interfere
with, restrain , or coerce you in the exercise of the rights
guaranteed you by Section 7 of the Act.
UNITED STATES AVIEX COMPANY