Wake Electric Membership Corp.

National Labor Relations Board - Board Decisions

Sep 30, 2002

338 N.L.R.B. 298 (N.L.R.B. 2002)

DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 298
Wake Electric Membership Corp. and Local Union
553 of the International Brotherhood of Electri-
cal Workers, AFL–CIO, CLC. Cases 11–CA–
18297 and 11–RC–6322
September 30, 2002
DECISION AND ORDER
BY MEMBERS LIEBMAN, COWEN, AND BARTLETT
On February 2, 2000, Administrative Law Judge How-
ard I. Grossman issued the attached decision. The Re-
spondent filed exceptions and a supporting brief, and the
General Counsel filed exceptions.1
The National Labor Relations Board has considered
the decision and the record in light of the exceptions and
brief and has decided to affirm the judge’s rulings, find-
ings,2 and conclusions3 only to the extent consistent with
this Decision and Order.4

1 The Respondent also filed a motion to reopen the record, to which
the General Counsel filed an opposition. As discussed infra, we deny
the motion on the ground that it is moot.
2 The Respondent has excepted to some of the judge’s credibility
findings. The Board’s established policy is not to overrule an adminis-
trative law judge’s credibility resolutions unless the clear preponder-
ance 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 correct the last sentence of the fifth paragraph of the judge’s de-
cision to indicate that it was the Union, rather than the Respondent, that
filed objections to the election.
3 In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) of the Act by soliciting and promising to remedy grievances, we
note that there is no evidence that the Respondent had an on-going
practice of soliciting and remedying grievances prior to the advent of
the union organizing effort.
We adopt the judge’s finding, based on employee Russell Smith’s
uncontradicted testimony, that the Respondent violated Sec. 8(a)(1)
through General Foreman Charles Pernell’s statement to employee
Eddie Peoples about employees Jeffrey Garrett and Duke Holmes.
Therefore, we find it unnecessary to consider the judge’s rationale,
stated in fn. 20 of his decision, for declining to draw an adverse infer-
ence from Peoples’ failure to deny Smith’s testimony.
In adopting the judge’s finding that the Respondent violated Sec.
8(a)(1) by polling employees about whether the election petition should
be withdrawn, Member Cowen finds that the poll was prompted by the
Respondent’s unlawful solicitation and promising to remedy griev-
ances, as Operations Managers Don King and Phillip Price both told
employees that, for the employees to benefit from the grievances that
they had presented, the employees had to cause the Union to withdraw
the petition, and Price recommended that the employees vote to ask the
Union to do so. Accordingly, Member Cowen finds it unnecessary to
rely on the judge’s finding that the poll was unlawful because it vio-
lated the rules set forth in Struksnes Construction Co., 165 NLRB 1062
(1967).
In sec. III of his decision, the judge described certain events, includ-
ing King’s and Price’s meetings with employees and Crew Leader
Larry Mishue’s polling of employees about whether the petition should
be withdrawn, as occurring in February 1999. The Respondent has
excepted, pointing out that the record shows that these events took
1. The judge found that Human Resources Administrator
Faye Bridges was a supervisor and agent of the Respon-
dent and that her statement to new employee Russell
Smith concerning the Union constituted an unlawful
promise of benefits to employees if the employees
caused the Union to withdraw its election petition. We
find it unnecessary to pass on the judge’s finding that
Faye Bridges’ statement to Smith violated Section
8(a)(1) of the Act, as this allegation is cumulative of
other violations and, thus, does not affect the remedy.
We further find, however, that, contrary to the judge,
Bridges was not shown to be a supervisor within the
meaning of Section 2(11) of the Act.5 One of Bridges’
prescribed job functions was to “[c]onduct recruitment
program[s] for vacant positions including advertising,
screening and initial interviewing to assure an adequate
pool of qualified applicants [is] obtained for each posi-
tion.” The judge’s principal basis in declaring Bridges to
be a supervisor was his finding that, in performing the
function of screening job applicants, Bridges effectively
recommended hiring. James Mangum, the Respondent’s
general manager, testified that Bridges would select sev-
eral applicants as the best of a group. For example, out of
10 applicants, she would select 3 as the best qualified.
Bridges’ screening would then go to a department head,
who would do the actual hiring. Mangum testified that
Bridges’ recommendations were generally followed. The
judge found that Mangum admitted that Bridges made a
judgment call as to the best applicants in a group. The
judge also noted that there was no evidence that the de-
partment heads hired any applicants other than ones rec-
ommended by Bridges. The judge found that, “[a]lthough
Bridges recommended several candidates instead of one
from a group, this was her recommendation, and it was
generally followed.”
We find, contrary to the judge, that Bridges did not ef-
fectively recommend hiring when she merely narrowed
the applicant pool by screening applicants and
recommending several to the department head, who
ultimately decided which, if any, of the applicants was

place in March 1999. We correct the judge’s inadvertent error and find
that these events occurred on the respective dates set forth by the judge
but in the month of March 1999, rather than in February. This correc-
tion does not alter the violations found based on the conduct described
in sec. III of the judge’s decision.
4 We will substitute a new notice in accordance with our recent deci-
sion in Ishikawa Gasket America, Inc., 337 NLRB 175 (2001).
5 There are no exceptions to the judge’s finding that Bridges was an
agent of the Respondent. In light of our disposition of this 8(a)(1) alle-
gation, we find it unnecessary to pass on the judge’s finding.
Because the complaint allegation concerning Bridges is cumulative
of other violations found, Member Bartlett finds it unnecessary to pass
on whether Bridges is a supervisor within the meaning of Sec. 2(11) of
the Act.
338 NLRB No. 32
WAKE ELECTRIC MEMBERSHIP CORP. 299
hired. Thus, if, as in the example given by Mangum,
Bridges recommended 3 applicants out of 10 as the best
qualified for a single position, and the department head
ultimately hired 1 of the 3, 2 of the 3 applicants who
Bridges recommended would, necessarily, not be hired
for the position. Thus, Bridges does not actually make
hiring recommendations; she simply ranks applicants
according to their qualifications and tells the department
head which are the most qualified. Such actions do not
constitute effective recommendations for hire.6
Our finding Bridges not to be a supervisor is in accord
with Ohio State Legal Services Assn., 239 NLRB 594, 596
(1978). There the Board found that Staff Attorney Mulli-
nax’s interviewing and screening of job applicants and rec-
ommending a limited number of candidates to the em-
ployer’s executive director, who then reviewed the candi-
dates and made a selection, did not constitute effective
power to recommend hiring. Similarly, in The Door, 297
NLRB 601, 602 (1990), the Board stated: “[A]lthough we
agree with the hearing officer that [Laboratory Director]
Hilfer reviewed applications and recommended that certain
applicants not be interviewed, we do not find that the ability
to screen resumes and to make such recommendations, even
if followed, is sufficient to establish the authority to effec-
tively recommend the hire of employees.” Accordingly, we
do not find Bridges to be a supervisor.7
2. We adopt the judge’s finding that the Respondent,
through its general manager, James Mangum, violated
Section 8(a)(1) by telling employees, in a speech on
March 29, 1999,8 2 days before the election, that other
electrical cooperatives would not work with the Respon-
dent if it became unionized. As the judge noted, Man-
gum’s statement meant that, if the employees selected

6 The judge erroneously cited JAMCO, 294 NLRB 896, 900 (1989),
for the proposition that hiring recommendations were made “effec-
tively” when 75 percent of them were followed. In that case, Foreman
Bell’s recommendations to hire employees were followed about 75
percent of the time, but he was not found to have effectively recom-
mended the hiring of employees. Bell was found to be a supervisor on
the basis of other factors, including his independent adjustment of
grievances regarding time keeping and his disciplining of employees
for tardiness.
7 In finding Bridges to be a supervisor, the judge also mentioned that
she participated in the evaluation of employees and conducted exit
interviews. We find these factors unpersuasive. Bridges’ conduct of
exit interviews does not establish supervisory status. As the judge
noted, conducting an exit interview is not synonymous with making a
decision to terminate an employee. The judge’s speculation that an exit
interview would include an explanation of the reason for the termina-
tion would not alter this fact. Further, the judge’s finding that Bridges
participated in employee evaluations lacks support in the record, as the
judge inferred this “participation” solely from Bridges’ stated job func-
tion of “administer[ing] performance appraisal system.” That Bridges
“administered” a performance appraisal system does not establish that
she performed employee evaluations herself.
8 All dates herein are in 1999 unless otherwise indicated.
the Union, they would not be able to rely on help from
other electrical cooperatives in case of storms or other
emergencies. It is well settled that an employer’s predic-
tions of adverse consequences of unionization arising
from sources outside the employer’s control—including
the future actions of other employers—violate Section
8(a)(1) if they lack an objective factual basis. E.g.,
Tawas Industries, 336 NLRB 318, 321 (2001). Mangum
provided no basis for his statement that other electrical
cooperatives would not work with the Respondent if it
became unionized. Accordingly, we adopt the judge’s
finding that Mangum’s statement violated Section
8(a)(1).9
3. The General Counsel excepts to the judge’s failure
to include in his conclusions of law the finding that the
Respondent, through General Manager Mangum, vio-
lated Section 8(a)(1) by telling employees that a vote for
the Union was futile. The judge credited testimony by the
General Counsel’s witnesses that Mangum told employ-
ees they would not receive any benefits if there was a
“high vote” for the Union. The judge found that this
statement, in context, was the equivalent of telling em-
ployees that a vote for the Union was futile. Elsewhere in
the judge’s decision, however, the judge referred to this
statement as a threat of loss of benefits if the Union won.
In addition, the judge’s conclusions of law, recom-
mended Order and notice all refer to the statement as a
threat of loss of benefits rather than as a statement that
selecting the Union would be futile.
We find that the statement is best described as a threat
of futility. Accordingly, we shall modify the Conclusions
of Law, Order, and notice to substitute that description.
4. The judge found, based on uncontroverted testi-
mony, that, on February 27, General Foreman Charles
Pernell, while intoxicated, barged into the home of em-
ployee Jeffrey Garrett, grabbed Garrett by the shoulders,
pushed him down on a bed, and said that he (Pernell) had
been to a meeting, that Garrett and employee Duke
Holmes were the heads of the union movement, and that
Garrett had to stop it. Pernell further told Garrett that
Garrett, Holmes, and Pernell were going to be fired and
that there was no way that the employees could win an
election. Pernell then punched a hole in the sheetrock
wall of Garrett’s bedroom. The judge found that Per-
nell’s statement to Garrett that he was going to be fired
was a threat violative of Section 8(a)(1) and that Per-
nell’s statement that he had been to a meeting and that
Garrett and Holmes were the leaders of the union cam-
paign created an impression of surveillance of union ac-
9 In adopting this violation, Member Cowen does not rely on the
judge’s taking judicial notice of a particular storm that occurred shortly
prior to the hearing in this case.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 300
tivities in violation of Section 8(a)(1). We agree. See
Royal Manor Convalescent Hospital, 322 NLRB 354,
362 (1996), enfd. 141 F.3d 1178 (9th Cir. 1998) (“The
Board has long held that, when, in comments to its em-
ployees, an employer specifically names other employees
as having started a union movement or as being among
the union leaders, the employer unlawfully creates the
impression, in the minds of its employees, that he has
been engaging in surveillance of his employees’ union
activities.”); Athens Disposal Co., 315 NLRB 87, 92, 98
(1994) (Supervisor Uicab’s statement to employee Salas
that he thought that Salas was one of the leaders of the
union was “the type of comment . . . which . . . create[s]
the impression, in the mind of an employee, that his em-
ployer has been engaged in surveillance of its employ-
ees’ union organizing activities”).10
The amended complaint also alleged that, on February
27, the Respondent, through Pernell, violated Section
8(a)(1) by assaulting an employee because he engaged in
union activities. The judge failed to find explicitly that
Pernell’s assault on Garrett violated Section 8(a)(1), even
though he later mentioned the assault in a summary of
the Respondent’s violations. We therefore grant the Gen-
eral Counsel’s exception and correct the judge’s inadver-
tent failure to include this assault as a violation in his
conclusions of law and recommended Order.
5. The judge found that the Respondent, on March 24,
violated Section 8(a)(3) and (1) of the Act by accelerat-
ing the resignation dates of employees Scott Abbott, An-
thony Brogden, Keith Browning, and Vaden Kearney

10 Member Bartlett agrees with former Chairman Hurtgen’s dissent
in United States Coachworks, Inc., 334 NLRB 955, 960 (2001), that an
employer’s statement to an employee acknowledging his protected
activity does not create the impression of surveillance in the absence of
any finding that the employer was unlikely to have learned of the em-
ployee’s protected activity by lawful means. However, in the absence
of a three-Member Board majority to overrule Board precedent, Mem-
ber Bartlett joins in adopting the judge’s finding, for the reasons stated
above, that Pernell’s comments created the impression of surveillance.
Contrary to his colleagues, Member Cowen would not adopt the
judge’s finding that Pernell’s statement to Garrett created the impres-
sion that the Respondent had engaged in surveillance of union activi-
ties. Member Cowen notes that, while Pernell’s statement shows
knowledge of Garrett’s and Holmes’ union activities, it does not indi-
cate the source of that knowledge, which could as easily have been
through the “grapevine” or some other means as by surveillance. Thus,
in Member Cowen’s view, without more than is shown on the record
here, the impression of surveillance allegation must be dismissed for
failure of proof.
Member Liebman notes that, contrary to Member Cowen’s view,
Pernell’s statement was coercive even though it did not indicate the
source of his information about Garrett’s and Holmes’s union activities.
“The Board does not require that an employer’s words on their face
reveal that the employer acquired its knowledge of the employee’s
activities by unlawful means.” Mountaineer Steel, Inc., 326 NLRB 787
(1998), quoting United Charter Service, 306 NLRB 150, 151 (1992).
and granting each of them a severance package, because
of their union and other protected, concerted activities,
and to deter their voting in the March 31 Board election.
We agree with the judge that the Respondent’s action
was unlawful.
Abbott, Brogden, and Browning, who the Respondent
knew to be union supporters, and Kearney, who had
worked for the Respondent for only 5 weeks, submitted
their resignations during the week of March 24. The four
employees anticipated that they would be required to
work for 2 weeks after giving notice of resignation,
which was the Respondent’s normal practice. Instead, the
Respondent, departing from its normal practice, offered
to pay the employees 2 weeks’ severance pay and release
them from any further work requirements. The employ-
ees accepted this offer.
The judge found the Respondent’s actions unlawful,
citing the principle that “a grant or promise of benefits
during the critical pre-election period will be considered
unlawful unless the employer comes forward with an
explanation, other than the pending election, for the tim-
ing of such action.”11 The judge found that the Respon-
dent did not provide a believable explanation, other than
the pending election, for offering to pay the employees
severance pay and release them from any obligation to
work for 2 more weeks. The Respondent contended that
safety was its main concern in offering the severance
pay, because previously one of its employees, distracted
by his mother’s upcoming surgery, had been killed in an
accident. Thus, the Respondent purportedly believed that
personal problems or concerns away from the job created
a dangerous situation for employees engaged in hazard-
ous work. Additionally, the Respondent asserted that its
concern about safety was heightened in early March by a
report it had received of a fatality at Pee Dee Electric
Cooperative.
In discrediting the Respondent’s asserted reason for of-
fering severance pay to employees Abbott, Brogden,
Browning, and Kearney, the judge noted that the Re-
spondent had required another employee, apprentice
lineman Greg Risuti, who had resigned less than 3
months before Abbott, Brogden, Browning, and Kearney
did, to work his 2-week notice period, even though he
had made strong complaints against the Respondent in
his letter of resignation and the Respondent admitted that
Risuti was not very happy toward the end of his tenure.
Additionally, the judge found that the cause of the fatal-
ity at Pee Dee Electric was simply the wearing of old
protective gloves and that the minutes of the Respon-
dent’s March 15 safety meeting did not support the Re-
11 Honolulu Sporting Goods Co., 239 NLRB 1277, 1280 (1979).
WAKE ELECTRIC MEMBERSHIP CORP. 301
spondent’s contention that the Pee Dee Electric fatality
was discussed at that meeting. Accordingly, the judge
found that the Respondent’s asserted reason for offering
severance pay and accelerating the departure of employ-
ees Abbott, Brogden, Browning, and Kearney was pre-
textual.
We agree with the judge that the Respondent’s offer-
ing severance pay in lieu of additional work to the four
resigning employees was clearly a new benefit, as the
Respondent’s standard practice previously had been not
to offer severance pay to employees who gave notice of
resignation or to relieve them from working during the
customary 2-week notice period. We further agree with
the judge that the Respondent failed to show that it had a
reason, other than the pending election, for granting the
four employees this new benefit. Accordingly, we adopt
the judge’s finding that the Respondent’s grant of this
benefit violated Section 8(a)(1). Moreover, as the Re-
spondent’s offer to pay the four employees for 2 weeks’
work while relieving them from any obligation to per-
form work was made only about a week before the elec-
tion, it was clearly aimed at eliminating the employees,
three of whom were known union supporters, from the
bargaining unit prior to the election and deterring them
from voting. The Respondent’s action thus interfered
with the employees’ Section 7 rights, and violated Sec-
tion 8(a)(1), on this basis as well. We therefore find it
unnecessary to pass on the judge’s finding that the Re-
spondent’s conduct also violated Section 8(a)(3).
6. The judge found that the Respondent’s unfair labor
practices were of a nature that precluded the possibility
of a fair rerun election. Therefore, he recommended issu-
ance of a remedial bargaining order pursuant to NLRB v.
Gissel Packing Co., 395 U.S. 575 (1969). We disagree.
Contrary to the judge and our dissenting colleague, we
conclude that, under all the circumstances, a Gissel bar-
gaining order is not warranted in this case.
The judge’s unfair labor practice findings that we
adopt involve soliciting and promising to remedy griev-
ances, promising benefits if employees ceased their sup-
port for the Union, polling employees to determine
whether they would ask the Union to withdraw its elec-
tion petition, telling employees that their union activities
would damage their relationships with other electric co-
operatives and cause the latter to discontinue helping
employees during emergencies, telling employees that it
would be futile to select the Union, threatening employ-
ees with unspecified reprisals, threatening employees
with discharge, creating an impression of surveillance of
union activities, and accelerating the resignation dates of
four employees and granting them severance pay. Thus,
the Respondent’s violations do not include discharge or
other adverse actions against union supporters, the clos-
ing of a plant, or threat of plant closure, which are the
more typical “hallmark” violations found in cases war-
ranting Gissel bargaining orders.12
To justify the bargaining order, the judge and our dis-
senting colleague rely in part on the “hallmark” violation
of a grant of significant benefits to employees. In so do-
ing, the judge relied on the Board’s decision in Amer-
ica’s Best Quality Coatings Corp., 313 NLRB 470
(1993). In that case, however, the employer “utilized a
classic ‘carrot and stick’ approach, first denying the em-
ployees expected wage reviews and paid vacations before
the election, and then granting such benefits after the
election.” Id. at 472. By contrast, in the present case, the
benefits granted to employees, offering severance pay to
employees who resigned and not requiring them to work
for an additional 2 weeks, were neither expected nor ini-
tially denied. Further, unlike the typical case, these bene-
fits were not designed to “remedy the very grievances
which gave rise to the union interest”13 and thereby un-
dercut the unionization effort. Indeed, the benefits that
the Respondent granted were rather peripheral to em-
ployees’ terms and conditions of employment, as they
were applicable only when employees resigned their em-
ployment. Moreover, in America’s Best Quality Coat-
ings, the Gissel bargaining order was justified by the
discharge of 3 leading union adherents and the layoff of
21 other employees. No comparable violations are pre-
sent here.
In granting the bargaining order, the judge also relied
on the Respondent’s solicitation of grievances and prom-
ise to remedy them. He found that these actions by the
Respondent were similar to the employer conduct in As-
tro Printing Services, 300 NLRB 1028 (1990), and Tele-
dyne Dental Products Corp., 210 NLRB 435 (1974),
where Gissel bargaining orders were issued, and that the
rationale of those cases justified a bargaining order here.
In those cases, the employers not only solicited employ-
ees’ grievances, they also agreed to specific demands of
the employees. In the present case, however, while the
Respondent solicited grievances and impliedly promised
to remedy them, it did not promise, orally or in writing,
any specific benefit improvements.
In Astro Printing, after soliciting a list of grievances
from the employees, the employer signed and gave to the

12 “Hallmark” violations are unfair labor practices that the Board
finds especially significant in evaluating the long-term effects of em-
ployer misconduct on employee free choice. See NLRB v. Jamaica
Towing, Inc., 632 F.2d 208, 212 (2d Cir. 1980); Garvey Marine, Inc.,
328 NLRB 991, 994 (1999); General Fabricators Corp., 328 NLRB
1114 fn. 7 (1999).
13 NLRB v. Jamaica Towing, Inc., supra at 213.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 302
employees a document promising specific and wide-
ranging benefits, including a 6-percent raise on March 1;
annual cost-of-living increases; merit increases pursuant
to an annual review; increased health and sick leave
benefits, vacation, paid holidays, and paid personal days;
payment of accumulated vacation pay on termination;
and 30 days’ notice prior to any future changes in poli-
cies. On receiving this document, the employees re-
quested the union to cancel the election petition. In Tele-
dyne, the plant manager obtained a list of the employees’
specific wishes, including a pay increase, told them that
it would have to be approved by headquarters, and later
returned and told them that the list had been approved.
The employees thereafter told the union that they had
gotten what they wanted and they did not want the union
any more. Thus, the employers’ actions in Astro Printing
and Teledyne undermined the unionization efforts in
those cases in a direct and specific way, while the Re-
spondent’s implicit promise here to remedy grievances in
this case was amorphous and unspecified. Accordingly,
we find the judge’s reliance on those cases to be mis-
placed.14
Our dissenting colleague also cites as a hallmark viola-
tion the Respondent’s threatening employees with dis-
charge. Three such threats were made, all by Supervisor
Pernell. The threats were made in statements to individ-
ual employees, not in a speech to a large group. More-
over, one of the statements, which contained the most
direct threat, was made outside of work hours and at a
time when Pernell was visibly inebriated. Under these
circumstances, we do not find that these threats, even
coupled with the other violations that the Respondent
committed, have such a lasting inhibitive effect on a sub-
stantial portion of the work force that they would pre-
clude the possibility of a fair rerun election. Indeed, the
threats were of such limited impact that the judge did not
rely on them as hallmark violations in justifying his bar-
gaining order.
Based on the foregoing, we cannot conclude that in
this case “the possibility of erasing the effects of past
practices and of ensuring a fair election (or a fair rerun)
by the use of traditional remedies, though present, is
slight and that employee sentiment once expressed
through cards would, on balance, be better protected by a
bargaining order.” Gissel, 395 U.S. at 614-615. We shall
therefore use the Board’s traditional remedies for the
Respondent’s unfair labor practices.15 We leave the ques-

14 Cf. Aqua Cool, 332 NLRB 95 (2000) (Gissel bargaining order not
warranted where, among other violations, employer unlawfully solic-
ited grievances and promised to remedy them).
15 Consistent with our finding that a Gissel bargaining order is not
warranted here, we reverse the judge’s findings that the Respondent
tion concerning the Union’s representation of the Re-
spondent’s unit employees to be resolved by the pre-
ferred method of a second Board election.
Having decided that a Gissel bargaining order was
necessary, the judge did not rule on the Union’s objec-
tions to the election in Case 11–RC–6322. The Union’s
objections parallel certain unfair labor practice allega-
tions with respect to events occurring during the critical
preelection period. With respect to those allegations, we
have affirmed the judge’s findings that the Respondent
violated Section 8(a)(1) by soliciting and promising to
remedy grievances if the employees would cause the
Union to withdraw a petition for a Board election and
would otherwise cease their support for the Union and by
polling employees to determine whether they would
cause the Union to withdraw its petition for a Board elec-
tion. Conduct violative of Section 8(a)(1) is a fortiori
conduct which interferes with employee free choice in an
election. See Dal-Tex Optical Co., 137 NLRB 1782
(1962). We therefore sustain the Union’s objections to
this misconduct, and we shall set aside the election on
that basis.
ORDER
The National Labor Relations Board orders that the
Respondent, Wake Electric Membership Corp., Wake
Forest, North Carolina, its officers, agents, successors,
and assigns, shall
1. Cease and desist from
(a) Soliciting and promising to remedy grievances if
the employees would cause the Union to withdraw a peti-
tion for a Board election and would otherwise cease their
support for the Union.
(b) Promising employees benefits if they ceased their
support for the Union.
(c) Polling its employees to determine whether they
would cause the Union to withdraw its petition for a
Board election.
(d) Telling employees that their union activities would
damage their relationship with other electric cooperatives
and cause the latter to discontinue helping employees
during emergency situations.

violated Sec. 8(a)(5) by failing and refusing on February 18 to recog-
nize and bargain collectively with the Union as the representative of the
unit employees and by unilaterally changing its policy concerning
acceleration of resignation dates and granting severance pay on March
24, “because at that time the Respondent was not obligated to bargain
with the Union.” Fiber Glass Systems, 278 NLRB 1255, 1256 (1986).
See also Beverly California Corp., 326 NLRB 232 fn. 17 (1998). Addi-
tionally, in view of our rejection of the bargaining order remedy, we
dismiss as moot the Respondent’s motion to reopen the record to ad-
duce evidence concerning an alleged change in composition of its work
force.
WAKE ELECTRIC MEMBERSHIP CORP. 303
(e) Threatening the employees with unspecified repri-
sals if the Union won the election.
(f) Threatening employees with discharge because of
their union activities.
(g) Accelerating the resignation dates of employees
and granting them severance packages in order to deter
them from voting in a Board election and because of
their union activities.
(h) Creating an impression of surveillance of union ac-
tivities.
(i) Telling employees that it would be futile to select
the Union as their collective-bargaining representative.
(j) Assaulting employees because they engage in union
activities.
(k) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their rights un-
der Section 7 of the Act.
2. Take the following affirmative action necessary to
effectuate the policies of the Act.
(a) Within 14 days after service by the Region, post at
its facilities in Wake Forest, Zebulon, Oxford, Louis-
burg, and Youngsville, North Carolina, copies of the
attached notice marked “Appendix A.”16 Copies of the
notice on forms provided by the Regional Director for
Region 11, after being signed by the Respondent’s au-
thorized representative, shall be posted by the Respon-
dent at its facilities located at Wake Forest, Zebulon,
Oxford, Louisburg, and Youngsville, North Carolina,
immediately upon receipt and maintained for 60 con-
secutive days in conspicuous places including all places
where notices to employees are customarily posted.
Reasonable steps shall be taken by the Respondent to
ensure that the notices are not altered, defaced, or cov-
ered by any other material. In the event that, during the
pendency of these proceedings, the Respondent has gone
out of business or closed any of the facilities involved in
thee proceedings, Respondent shall duplicate and mail, at
its own expense, a copy of the notice to all current em-
ployees and former employees employed by the Respon-
dent at any time since March 16, 1999.
(b) Within 21 days after service by the Region, file
with the Regional Director a sworn certification of a re-
sponsible official on a form provided by the Region at-
testing to the steps that the Respondent has taken to
comply.
IT IS FURTHER ORDERED that the proceeding in Case
11–RC–6322 be severed and remanded to the Regional
16 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 Na-
tional Labor Relations Board” shall read “Posted Pursuant to a Judg-
ment of the United States Court of Appeals Enforcing an Order of the
National Labor Relations Board.”
Director for Region 11 for further action consistent with
this decision.

MEMBER LIEBMAN, dissenting in part.
Unlike my colleagues, I agree with the judge that the
nature and extent of the Respondent’s unfair labor prac-
tices warrant the imposition of an affirmative bargaining
order. See NLRB v. Gissel Packing Co., 395 U.S. 575
(1969). Those unfair labor practices included three sepa-
rate threats to discharge employees for engaging in union
activities, as well as granting significant benefits to em-
ployees shortly before the election. Such actions are con-
sidered “hallmark” violations of Section 8(a)(1), which
will normally support the issuance of a bargaining order.
See, e.g., Garvey Marine, Inc., 328 NLRB 991, 994
(1999), enfd. 245 F.3d 819 (D.C. Cir. 2001); America’s
Best Quality Coatings Corp., 313 NLRB 470, 472
(1993), enfd. 44 F.3d 516 (7th Cir. 1995), cert. denied
515 U.S. 1158 (1995); NLRB v. Jamaica Towing, 632
F.2d 208, 212–213 (2d Cir. 1980).
And these were not the only violations of the Act. Far
from it: they were accompanied by a drumbeat of other
unlawful actions, some of which were committed by high
management officials and were directed at nearly all em-
ployees. Those included soliciting and promising to rem-
edy grievances, promising benefits if the employees re-
jected the Union, polling employees to determine
whether they would cause the Union to withdraw its rep-
resentation petition, telling employees that it would be
futile to select the Union, threatening employees with
unspecified reprisals and with the loss of assistance from
other electric cooperatives if they supported the Union,
creating the impression that employees’ union activities
were under surveillance, and accelerating the resignation
dates of four employees to keep them from voting in the
election. In uttering one of the discharge threats, Super-
visor Charles Pernell even assaulted employee Jeffery
Garrett in Garrett’s own home, and punched a hole in the
wall of Garrett’s bedroom.1 Nor did the unlawful con-
duct end with the election: Pernell threatened employees
with discharge even after the election, thus demonstrat-
ing a likelihood that the Respondent would continue to
violate the Act in the future in order to keep the Union
out. See Garvey Marine, 328 NLRB at 995; America’s
Best Quality Coatings Corp., 313 NLRB at 472.
In these circumstances, and for the reasons discussed
by the judge, I find it unlikely that the effects of the Re-
spondent’s unlawful conduct can be erased by the use of
1 I am not at all persuaded by the majority’s contention that this con-
duct was somehow less serious, or its coercive effects less long lasting,
because it took place outside of working hours when Pernell was ap-
parently drunk.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 304
traditional remedies and that a fair rerun election could
be held. Gissel, supra, 395 U.S. at 614–615. Accord-
ingly, I would adopt the judge’s recommended bargain-
ing order. I would also affirm his finding that the Re-
spondent violated Section 8(a)(5) by refusing to bargain
with the Union and by making unilateral changes in the
unit employees’ terms and conditions of employment. I
therefore respectfully dissent.
APPENDIX A
NOTICE TO EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government

The National Labor Relations Board has found that we vio-
lated Federal labor law and has ordered us to post and obey
this notice.
FEDERAL LAW GIVES YOU THE RIGHT TO
Form, join or assist a union
Choose representatives to bargain with us on
your behalf
Act together with other employees for your bene-
fit and protection
Choose not to engage in any of these protected
activities.

WE WILL NOT solicit and promise to remedy grievances
if our employees cause, Local Union 553 of the Interna-
tional Brotherhood of Electrical Workers, AFL-CIO,
CLC, the Union, to withdraw a petition for a Board elec-
tion and otherwise cease supporting the Union.
WE WILL NOT promise our employees benefits if they
cease their support of the Union.
WE WILL NOT poll our employees to determine whether
they will cause the Union to withdraw a petition for a
Board election.
WE WILL NOT tell our employees that their union activi-
ties will damage their relationships with other electric
cooperatives and cause the latter to discontinue helping
employees during emergency situations.
WE WILL NOT threaten our employees with unspecified
reprisals if the Union wins an election.
WE WILL NOT threaten our employees with discharge
because of their union activities.
WE WILL NOT accelerate the resignation dates of our
employees and grant them severance packages in order to
deter them from voting in a Board election and because
of their union activities.
WE WILL NOT create an impression of surveillance of
our employees’ union activities.
WE WILL NOT tell our employees that it would be futile
to select the Union as their collective-bargaining repre-
sentative.
WE WILL NOT assault our employees because they en-
gage in union activities.
WE WILL NOT in any other manner interfere with, co-
erce, or restrain our employees in the exercise of their
rights under Section 7 of the Act.
WAKE ELECTRIC MEMBERSHIP CORP.

Jane North, Esq., for the General Counsel.
W. Britton Smith Jr., Esq. and Aaron M. Christensen, Esq.
(Smith & Christensen), for the Respondent.
S. Eugene Ruff, International Representative, for the Charging
Party.
DECISION
STATEMENT OF THE CASE
HOWARD I. GROSSMAN, Administrative Law Judge. The
charge in Case 11–CA–l8297 was filed on March 23,1 l999 by
Local Union 553 of the International Brotherhood of Electrical
Workers, AFL–CIO, CLC (the Union), and an amended charge
on May 28, l999. Complaint issued on July 30, l999, and al-
leges that Wake Electric Membership Corp. (Respondent, or
the Company) solicited and promised to remedy grievances in
order to discourage union activities, promised its employees
that it would remedy grievances if they ceased their support for
the Union, promised its employees benefits if they ceased their
support for the Union, polled its employees concerning their
support for the Union, advised its employees that their activities
on behalf of the Union damaged their working relationships
with other nonunion electric cooperatives, advised its employ-
ees that they would lose the help of other electric cooperatives
during emergency situations if they engaged in activities on
behalf of the Union, threatened its employees with loss of bene-
fits if they engaged in activities on behalf of the Union, made
threats of unspecified reprisals if employees voted for the Un-
ion, advised its employees that it would be futile to select the
Union as their collective-bargaining representative, and threat-
ened its employees with termination because of their activities
on behalf of the Union,—all in violation of Section 8(a)(1) of
the Act.
The complaint also alleges that Respondent accelerated the
resignation dates of Scott Abbott, Anthony E. Brogden, Keith
Browning, and Vaden Kearney because they joined or assisted
the Union, and engaged in other concerted activities—in viola-
tion of Section 8(a)(3) and (l) of the Act.
Finally, the complaint allege that Respondent violated Sec-
tion 8(a)(5) of the Act by refusing to recognize and bargain
collectively with the Union, and by unilaterally changing its
policy concerning acceleration of resignation dates, and the
granting of severance pay.
The complaint further alleges that the foregoing unfair labor
practices are so serious that the possibility of erasing their ef-

1 All dates are in 1999 unless otherwise stated.
WAKE ELECTRIC MEMBERSHIP CORP. 305
fects by conducting a fair election is slight, and that the expres-
sion of the employees’ sentiments in the authorization cards
should be protected by issuance of a bargaining order.
Pursuant to a Stipulated Election Agreement approved on
March 3, a secret-ballot election was held on March 31 in a unit
which the pleadings establish as appropriate for the purposes of
collective bargaining.2 The tally of ballots showed 8 votes for
the Union, 18 against it, and 4 challenged ballots. Respondent
filed timely objections to the election, and an order consolidat-
ing cases and directing a hearing issued on July 30.3
A hearing on these matters was conducted before me in Wake
Forest, North Carolina, on September 27, 28, and 29, 1999.
Thereafter, the General Counsel and Respondent filed briefs.
Based upon all the evidence of record, including my observation
of the demeanor of the witnesses, I make the following
FINDINGS OF FACT
I. JURISDICTION
Respondent is a North Carolina corporation with a principal
place of business located at Wake Forest, North Carolina, and
additional facilities located at Zebulon, Oxford, Louisburg, and
Youngsville, North Carolina, where it is engaged in distribution
and retail sale of electric power and energy to members/con-
sumers. During the l2 months preceding issuance of the com-
plaint, Respondent purchased and received at its Wake Forest,
North Carolina place of business, goods and materials valued in
excess of $50,000 directly from points outside the State of
North Carolina, and derived revenues in excess of $250,000.
Respondent is an employer engaged in commerce within the
meaning of Section 2(6) and (7) of the Act.
The Union is a labor organization within the meaning of Sec-
tion 2(5) of the Act.
II. THE EMPLOYEE SIGNING OF AUTHORIZATION CARDS; THE
UNION’S DEMAND FOR RECOGNITION
A meeting of certain of Respondent’s employees was held on
February 13 in a motel, and was conducted by S. Eugene Ruff, an
International representative. He distributed union authorization
cards, which provided that the signatory authorized the local
union of IBEW to represent him in collective bargaining with his
Employer. Ruff repeated the language set forth on the cards and
their purpose—to enable the Union to bargain with the Employer.
He stated that it was the Union’s policy to attempt to get authori-
zation cards signed by 65 percent of the employees. The Interna-
tional representative told the employees that, after the Union had
obtained authorization cards from a majority of the employees, it
would ask the employer to recognize it as the employees’ bar-
gaining representative. Some employees asked what would hap-

2 All full–time construction and maintenance employees including
Apprentice Linemen, Journeymen Linemen, Meter Readers, the Lead
Meter Reader, Crew Leaders, Servicemen, Warehousemen, part–time
Warehousemen, the Garage Coordinator, and Right–of–Way techni-
cians, employed by Respondent at its Wake Forest, Zebulon, Oxford,
Louisburg, and Youngsville, North Carolina facilities, but excluding
Member Services Department employees, Engineering Department
employees, office clerical employees, and guards, professional employ-
ees, and supervisors as defined in the Act.
3 GC Exh. 1(g).
pen if the Company did not recognize the Union. Ruff replied
that, in such event, the Union would be forced to file a petition
with the Board.
Prior to the election, employees signed 13 authorization
cards on February 13, 1 on February 15, 3 on February 16, and
1 on February 17, a total of 18 employees.4 The cards stated
that the signatory authorized the Union to represent him in
collective bargaining, and made no reference to a Board elec-
tion. I conclude that International Representative Ruff’s state-
ment to employees, that he would be forced to file a petition for
an election if Respondent failed to recognize the Union, did not
affect the validity of the cards. NLRB v. Gissell Packing Co.,
395 U.S. 575, 584 (1969) (card is to be counted unless em-
ployee was told that it would be used solely for the purpose of
obtaining an election); Cumberland Shoe Corp., 144 NLRB
1268 (1963), enfd. 351 F.2d 917 (6th Cir. 1965); DTR Indus-
tries, 311 NLRB 833, 838 (1993).
There were 32 employees in the unit on February 18, and 31
on February 19, and for the next 4 payroll periods.5 I conclude
that a majority of the employees in the appropriate unit had
signed valid authorization cards by February 17.
The Union sent Respondent a letter dated February 18 in
which it asserted that it represented a majority of the employees
in the unit, and that it was prepared to prove this. In the letter,
the Union requested a meeting for the purpose of establishing
its claim and scheduling negotiations for a collective-bargain-
ing agreement.6 By letter dated February 24, Respondent de-
clined, on the asserted grounds that it was not convinced that
the Union represented an uncoerced majority in the unit.7 This
letter also asserts that the Company had received a faxed copy
of a petition by the Union to the Board dated February 18.
III. THE COMPANY’S SOLICITATION OF EMPLOYEE CONCERNS
A. Summary of the Evidence
Operations Manager Don King testified that an employee
told him about the authorization card signing. The company
executives held numerous conferences about this, and hired a
consulting firm. General Manager James Mangum and Opera-
tions Manager Phillip Price testified that identifying employee
concerns was a major objective.
King further testified that employee Eddie Peoples told him
that some employees had questions about the Union, and asked
whether a meeting with the employees could be arranged. Peo-
ples corroborated this testimony. King then held a meeting of
employees on February 16 in the operations center. Two super-
visors accompanied him. According to employee Jeffery
Garrett, King asked whether any employees had grievances
against the Company, and, if so, they should be stated. In re-
sponse, the employees stated concerns about the number of
contractors compared to employees, wage rates, insurance, and
sick leave. The meeting lasted until 2:30 p.m., during which
time the Company purchased a pizza lunch for the employees.
4 GC Exhs. 3, 4, 8, 9, 11, 13–20.
5 Jt. Exh. 1. The parties agreed to the exclusion of certain employees
whose names on the exhibit have been lined out.
6 GC Exh. 23.
7 GC Exh. 24.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 306
According to Garrett, King said that he would take these mat-
ters to “management,” and that he was confident that the Com-
pany would “work with” the employees on the grievances.
Employee Duke Holmes and former employee Anthony Brog-
den corroborated this testimony. King testified that he wrote
down the employees’ comments, but told employees that he
could not make any promises.
King held another meeting the following morning, February
17. Employee Garrett testified that King informed employees
that he had spent 3 hours with “management,” its consultants,
and attorneys, and that he was confident that the Company would
“work with” the men, but that its hands were tied because of the
“Union vote.” If the employees would give the Company 6
months to “work out their grievances,” after 6 months the em-
ployees could vote on the Union if the Company did not satisfy
employee concerns. Former employee Anthony Brogden and
employee Duke Holmes corroborated this testimony.
King gave contradictory testimony on this subject. On cross-
examination, he testified that, in response to an employee ques-
tion, he answered that the only way employees could receive
benefits “sooner” was for them to cause the Union to withdraw
the petition. On redirect examination, he denied that he “prom-
ised” anything if the employees would withdraw the petition—
an employee asked how the petition could be withdrawn, and
King said he did not know, but told them that they would have
to “initiate” the request to the Union to withdraw the petition.
“It was their call.” On re-cross-examination, King denied that
he had previously testified that the only way employees could
get benefits “sooner” was to have the petition withdrawn.
King held another meeting of employees on the afternoon of
February 17. Employee Garrett testified that King asked the
employees to give the Company “another chance.” If so, King
was confident that the Company would “work it out.” The only
way that employees could receive benefits earlier was to cause
the Union to withdraw the petition. King’s testimony does not
indicate that two meetings were held on February 17.
Operations Manager Phil Price held a meeting of employees
in the conference room on the morning of February 19. Em-
ployee Russell Smith testified that Price said that he had been
asked whether the employees could benefit from the grievances
they had presented. The only way this could be done, Price
stated, was to have the employees vote to ask the Union to
withdraw the petition; he recommended that the Union do so.
Former employee Anthony Brogden affirmed that Price said the
employees could hold a “polling or vote” to see whether “we
could put it off for 6 months.” This testimony was corrobo-
rated by employee Duke Holmes.
Price agreed that he spoke to the employees in response to a
prior employee question about speeding up the process. He
also agreed that crew leader Larry Mishue asked him whether
the employees could meet for awhile and that he consented.
Mishue contended that there was a brief meeting of employees
on whether the election should be postponed. Price was not in
the room at the beginning of the meeting. I conclude that
Mishue separately asked Price whether there could be an em-
ployee meeting, and that Price consented.
Mishue testified that there was then a brief 15-minute meet-
ing of employees in which he spoke in favor of voting to give
the Company another 6 months. He then asserted that nobody
knew how he voted. He was concerned that other members of
the unit (meter readers) were not present, and asked Price
whether they could be brought over to the conference room.
Price agreed, and caused the meter readers’ supervisor to send
them from a distance of several miles, using company vehicles.
According to Russell Smith, Mishue said, “We could vote on
this now.” Price then stated, “Well, let’s get some pads. I’ll get
you all some pads and you all do what you’ve got to do and I
am going to leave the room.” Price brought in some pads, ac-
cording to Smith.
Mishue then conducted a poll by having the employees write
on a piece of paper their decision on whether to postpone the
election. Mishue asked Duke Holmes to assist him. “I guess
since I was not for the union,” Mishue testified, “I wanted
someone that was for the Union so it would be on an equal
basis.” Holmes called out the votes on the slips of paper, and
Mishue recorded them. The result was 14 votes for postponing
the Board election, and 11 opposed to the postponement. These
events took place during working time. Mishue reported the
results to Price, and, the next day, reported the events to the
union representative. The petition was not withdrawn.
B. Factual and Legal Conclusions
I credit Garrett’s corroborated testimony that Don King at
the first meeting solicited employees to state their grievances,
and, after receiving them, told the employees that he was confi-
dent that the Company would “work with” them on these mat-
ters. Garrett was a believable witness—his status as a current
employee of Respondent enhances his credibility under current
Board law, as does his position as a crew chief. Duke Holmes
was also a current employee and was equally believable, while
Anthony Brogden, as a former employee was an impartial wit-
ness. Although King contended that he did not make any
promises, he did not explicitly deny the testimony of the Gen-
eral Counsel’s witnesses.
I credit the testimony of the General Counsel’s witnesses
that, on February 17, King told the employees that, after con-
sulting with the Company’s managers, he was confident that
the Company could “work it out,” that the employees should
give the Company another chance, that the Company’s hands
were tied because of the “Union vote,” and that the only way
the employees could get benefits earlier was to cause the Union
to withdraw the petition. If the Company did not satisfy the
employees’ concerns within 6 months, the employees could
have a Board election at that time. Although King may have
said that he was not making any “promises,” this was mere
verbiage, in light of his request that the employees give the
Company “another chance,” and his averment that the Com-
pany would “work with” the employees. King’s contradictory
testimony on whether he told employees that they could receive
earlier benefits by causing the Union to withdraw the petition
inspires little confidence in him as a witness. On similar facts
the Board has concluded that an employer’s solicitation of
grievances contained an implicit promise to correct them, viola-
tive of Section 8(a)(1), despite asserted denials of promises.
Kinney Drugs, 314 NLRB 296, 298–299 (1994); Noah’s New
York Bagels, 324 NLRB 266 (1997). The Board has found that
WAKE ELECTRIC MEMBERSHIP CORP. 307
the employer violated the Act when it “presented the employees
with a choice between their union support and a quick, favor-
able resolution of their grievances.” Carpenters Health & Wel-
fare Fund, 327 NLRB 262, 263 (1998). I make the same con-
clusion herein.
It is clear from Price’s admission that he spoke to employees
on February 19. I credit the testimony of the General Counsel’s
witnesses that Price told them that the only way they could
resolve the grievances they had presented was to ask the Union
to withdraw the petition. He told the employees that they could
hold a “polling or vote” on whether to do so. When Mishue
said that the vote should take place immediately, Price provided
notepads on which the votes could be recorded, and caused
other members of the bargaining unit to be brought to the meet-
ing with company vehicles. These events took place during
working time on company property.
Price then left the room, and Mishue conducted the polling.
This sequence of events, which Price had started and which
Mishue was continuing, could reasonably have been interpreted
by employees as meaning that Price and Mishue were acting in
concert, and that Mishue was acting on Price’s behalf. Price’s
leaving the room while the vote was being conducted could
only have meant that he was leaving Mishue in charge of events
which he wished to take place. Mishue thus had apparent au-
thority to conduct the poll. I conclude that Mishue was an
agent of Respondent for this purpose. Shen Automotive Dealer-
ship Group, 321 NLRB 586, 593 (1996); Zimmerman Plumbing
Co., 325 NLRB 106 (1997).
I do not credit Mishue’s testimony that the employees did
not know how he voted, as this contradicts his prior testimony
that he told employees they should vote to give the Company
another 6 months. Mishue was an observer for the Company
during the election.
The polling which took place was thus conducted by a com-
pany agent whose opinion that the election should be postponed
was known to employees. The Board has stated that employer
polling of employees will be violative of Section 8(a)(1) unless
the purpose of the poll is to determine the truth of the Union’s
claim of majority status, this purpose is communicated to em-
ployees, assurances against reprisal are given, the employees
are polled by secret ballot, and the employer has not engaged in
unfair labor practices or otherwise created a coercive atmos-
phere. Struksnes Construction Co., 165 NLRB 1062 (1967).
The purpose of the polling in this case was not to determine the
truth of the Union’s claim of majority status—the Company
rejected the Union’s offer to prove this. The purpose was to
postpone the Board election. No assurances against reprisal
were given. The polling described above can scarcely be char-
acterized as one conducted by secret ballot, and the Board has
rejected an employer’s reliance on a poll because of failure to
meet this requirement. Lou’s Produce, 308 NLRB 1194, 1195
fn. 6 (1992). Finally, contrary to the Struksnes rules, Respon-
dent engaged in the unlawful solicitation of grievances from
employees. I conclude that Respondent violated Section 8(a)
(1) by conducting this poll.
IV ALLEGED THREAT OF TERMINATION BY BRENDA HARRISON
A. Summary of the Evidence
The complaint alleges that Brenda Harrison was a billing su-
pervisor, and that she was a supervisor and an agent of the
Company. It further alleges that she threatened an employee
with termination because of his union activities. The answer
denies these allegations.
Duke Holmes testified that he entered Respondent’s office in
late February to check on a workers’ compensation claim. On
the way out, he stopped to talk with Brenda Harrison, whom he
understood to be “some kind of supervisor” dealing with “col-
lections or something to that order.” Harrison’s office was a
small eight by ten office in the collections department. There
was no one else in the office. Holmes testified that Harrison
told him that there had been a meeting of the department heads
that morning to discuss the union movement, that they knew
who was responsible, and that they were going to be fired.
Harrison added that she was speaking to Holmes “as a friend,”
and that she hoped he knew what he was doing, because he was
going to be fired. Harrison did not testify.
Respondent’s documents show that Harrison was a secretary
in the engineering and operations department in 1995.8 By
1996 she was the Company’s “Customer Accounting Supervi-
sor,” and a customer was informed of this fact.9 A review of
her functions in this position shows that she makes sure that
billing is done on time, collections received, and payments
made. She “works closely” with the billing supervisor.10 Har-
rison also performs statistical and scheduling functions.11
B. Factual and Legal Conclusions
It is obvious that Harrison’s statement to Holmes would be
unlawful if it may be attributed to Respondent. Counsel for the
General Counsel concedes that “there is no record evidence that
Harrison actually possesses or exercises any of the statutory
indicia of supervisory status.”12 She nonetheless argues that
“Respondent cloaked Harrison with apparent authority by des-
ignating her a supervisor and by holding her out to employees
as a supervisor, as evidenced by the memorandum announcing
her appointment, and by identifying her to the public as one of
Wake’s supervisors.”13
The Board has stated: “It is well settled that possession of the
title of supervisor does not in itself confer supervisory status
under the Act (authority cited).” Hallandale Rehabilitation
Center, 313 NLRB 835, 836 (1994). In Jordan Marsh Stores
Corp., 317 NLRB 460 (1995), the employee in question had the
title “stock supervisor.” She was hourly paid at a rate 50-
percent higher than other stock associates. She made work
assignments and schedules, and selected employees for over-
time work. She wrote up records of personnel interviews that
would go into the employee’s personnel file “like a little bit of
a warning.” She attended regular meetings of department su-

8 GC Exh. 25, p. 7.
9 Id. at 5.
10 Id. at 2.
11 Id. at 4.
12 GC Br. p. 23.
13 Id.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 308
pervisors. Nonetheless, the Board agreed with the judge’s con-
clusion that this employee did not exercise any authority that
was more than routine, and that there was no evidence that she
possessed any of the statutory indicia of supervisory status (id.
p. 467).
In the case at bar, the evidence shows that Harrison per-
formed administrative and financial services. It does not show
any regular interaction with employees concerning their duties
and responsibilities. The fact that the public was informed that
Harrison’s work included handling complaints from customers
does not evidence supervisory authority over employees. I
conclude that Harrison was not a supervisor, and I shall rec-
ommend that this allegation be dismissed.
V. ALLEGED PROMISE BY HUMAN RESOURCES ADMINISTRATOR
FAYE BRIDGES TO REMEDY EMPLOYEE GRIEVANCES IF THEY
WOULD CEASE SUPPORTING THE UNION
A. Summary of the Evidence
The complaint alleges and the answer denies that Human Re-
sources Administrator Faye Bridges was a supervisor and an
agent of Respondent, and that she promised employees that
Respondent would remedy grievances if the employees ceased
their support for the Union.
Former employee Russell Smith was hired by Respondent in
late February. In early March, Operations Manager Price intro-
duced him to Faye Bridges, who had some documents to give
him pertaining to insurance. Russell met with her in the office of
Right-of-Way Supervisor Ed Wheeler. At the conclusion of
these matters, Bridges told Russell that everybody was confused
about the Union, but that she was certain that the Company
would prevail, and the employees needed to give it one more
chance to work out its differences with the employees. Specifi-
cally, the employees needed to vote against the Union to give the
Company a chance to correct its mistakes. Bridges did not tes-
tify. Russell’s testimony is uncontradicted and is credited.
The remaining issue is whether Bridges’ statement may be
attributed to Respondent. Evidence of Bridges’ status may be
found in company documents, and the testimony of General
Manager Mangum. The record includes a performance ap-
praisal of Bridges by the chief financial officer. The document
is relevant, not for the rating Bridges received (“excellent”), but
for the list of functions which she performed. These were as
follows:

1. Conducts recruitment program for vacant positions
including advertising, screening and initial interviewing to
assure an adequate pool of qualified applicants are ob-
tained for each position.
2. Administers Performance Appraisal system.
3. Performs new employee orientation program, in-
cluding information of benefit programs, and conducts exit
interviews as needed.
4. Assists Department Managers in arranging training
programs, for both their Department and each employee,
in order to assure a well trained work force in accordance
with the Strategic Plan.
5. Develops and maintains, in concert with Depart-
ment Managers and Supervisors, position specific docu-
ments including position descriptions and job specifica-
tions to conform with changing responsibilities and legal
requirements (i.e. ADA).
6. Administers alcohol and drug testing program, in
concert with the Director of Safety, to assure compliance
with current DOT regulations and Wake EMC policy.
7. Administers the fringe benefit program including
all enrollments, separations and changes.
8. Establishes and maintains an employee communi-
cation program in order for employees to understand the
programs available to them.14

General Manager Mangum testified about the “screening”
process described above. Bridges would select several appli-
cants as the best of a group, e.g., out of 10 applicants she would
select 3 as the best qualified. The screening would then go to a
department head, who would do the actual hiring. Mangum
testified that Bridges’ recommendations were followed “gener-
ally,” but did not know the times when they were not followed.
Mangum gave equivocal testimony on whether a “screening”
constituted a “recommendation.” He affirmed that Bridges was
stating her opinion as to the three best candidates of the group
of applicants, and that she made a “judgment call,” but con-
tended that there was a difference between a “screening” and a
“recommendation.” The difference was not explained. If an
applicant was rejected, Bridges sent notice of this fact to him.15
B. Factual and Legal Conclusions
Section 2(11) of the Act defines a supervisor as “any indi-
vidual having authority, in the interest of the employer, to hire,
transfer, suspend, lay off, recall, promote, discharge, assign ,
reward, or discipline other employees, or responsibly to direct
them, or to adjust their grievances, or effectively to recommend
such action, if in connection with the foregoing the exercise of
such authority is not of a merely routine or clerical nature, but
requires the use of independent judgment.” It is well estab-
lished that the presence of any one of these “indicia” is suffi-
cient to prove supervisory status. NLRB v. Edward G. Budd
Mfg. Co., 169 F.2d 571, 576 (6th Cir. 1948), cert. denied 335
U.S. 908 (1949).
I find that Bridges’ screening of job applicants constituted a
recommendation. This is the only conclusion which can be
reached from Mangum’s admission that Bridges made a judg-
ment call as to the best applicants out of a group. There is no
evidence that the department heads hired any applicants other
than the ones selected by Bridges as the best, and Mangum
agreed that the department heads generally followed Bridges’
recommendations. The Board has held that hiring recommenda-
tions were made “effectively” when 75 percent were followed.
JAMCO, 294 NLRB 896, 900 (1989). Although Bridges rec-
ommended several candidates instead of one from a group, this
was her recommendation, and it was generally followed.
Bridges’ list of functions included administration of the per-
formance appraisal system. This necessarily means that
Bridges evaluated employees or administered the process of
their evaluation by others. The Board has relied on one em-

14 GC Exh. 29.
15 GC Exhs. 27, 28.
WAKE ELECTRIC MEMBERSHIP CORP. 309
ployee’s evaluation of another as a factor to be considered in
determining whether the former was a supervisor. Lab Glass
Corp., 296 NLRB 348, 351 (1989); Impact Industries, 285
NLRB 5, 11 (1987).
Bridges’ list of functions also shows that she conducted “exit
interviews.” Although conducting an exit interview is not syn-
onymous with making a decision to terminate an employee, it
usually includes an explanation of the reason for the decision.
Bridges signed the Company’s response to a notice of a claim for
employee benefits from the State unemployment insurance divi-
sion. The printed form lists various explanations for the termina-
tion, including discharge due to inability to perform the work.16
I conclude that Bridges effectively recommended the hiring
of applicants and thus performed one of the functions of a su-
pervisor. This conclusion is buttressed by her participation in
the evaluation of employees, and her conduct of exit interviews.
Accordingly, she was a supervisor within the meaning of Sec-
tion 2(11) of the Act, and an agent of the Company.
Respondent argues that the statements made by Bridges did
not constitute a promise that the Company would remedy griev-
ances if the employees ceased supporting the Union—as alleged
in the complaint.17 As indicated, Bridges said that that the em-
ployees needed to give the Company one more chance so that
they could work out the problems that they had created, and that
the employees should vote against the Union to give the Com-
pany a chance to correct its mistakes. The credited evidence
shows that Operations Manager Don King told employees that
the only way they could get earlier benefits was to cause the Un-
ion to withdraw its petition. This statement was made prior to
Smith’s conversation with Bridges. King’s meaning was implicit
in Bridges’ statements to Russell. Accordingly, I conclude that
those statements constituted a promise of earlier benefits if the
employees would comply. I therefore find that what Bridges said
to Russell was violative of Section 8(a)(1) for the reasons set
forth in section III of this decision.
VI. ALLEGED ASSAULT, THREATS, IMPRESSION OF SURVEILLANCE,
SOLICITATION OF GRIEVANCES BY CHARLES PERNELL
A. Summary of the Evidence
The complaint as amended alleges that General Foreman
Charles Pernell, an admitted supervisor, assaulted an employee
because he engaged in union activities, solicited and promised
to remedy grievances in order to discourage union activities,
threatened employees with termination because of their union
activities, and created an impression of surveillance of union
activities.
Pernell and Jeffery Garrett were neighbors, and had social-
ized and exchanged favors. On February 27, the Garretts were
at home during the evening with their two children and two
guests. Pernell pulled up to the house, and Mrs. Garrett came
to the door. “I’m here to see your fucking husband,” Pernell
said to her. He walked past her into the house. Garrett’s 10-
year-old son approached him. “Not now,” Pernell said, picked
up the boy and threw him on the hearth near the fireplace. The

16 GC Exh. 26. Bridges checked the box entitled “No work avail-
able.”
17 R. Br. p. 4.
boy started crying, and one of the guests comforted him.
Garrett was in the bathroom adjoining the bedroom, and Pernell
and Mrs. Garrett raced towards it. Pernell entered the bath-
room, He grabbed Garrett by the shoulders, pulled him towards
the bed, and told Mrs. Garrett to get out. The latter said she
was going to call the police, but Garrett advised against it.
Pernell pushed Garrett down on the bed, and said that he had
been to a meeting, and that Garrett and Duke Holmes were the
head of the union movement. “You’ve got to stop it,” he said.18
Mrs. Garrett was standing in the foyer next to the bedroom
door. According to the credible testimony of both Garrett and
his wife, Pernell said that Garrett, Duke Holmes, and Pernell
himself were going to be fired, and that there was no way the
employees could win an election. Pernell clenched his fist and
punched a hole in the sheetrock wall of the bedroom. Pernell
then said he was sorry, and that he was going home. Garrett
replied that Pernell had been drinking, and had no business
driving. Garrett then drove Pernell home.
General Manager Mangum testified that, in early March, he
heard from Operations Manager Price that Pernell had gone to
Garrett’s home and had engaged in an “argument.” Mangum
assumed that it was about the Union. Although Pernell’s
conduct violated the “do’s and don’ts” given to the Company
by its consulting firm, Mangum took no action against Pernell
at that time because it was just a “rumor.” In June, Pernell
was promoted from general foreman to line superintendent.
Mangum testified that, several days prior to his issuance of a
memo to employees on September 2, he learned from Re-
spondent’s counsel that Mrs. Garrett intended to hold the
Company accountable for Pernell’s conduct. In his Septem-
ber 2 memo to employees, Mangum stated that the Company
had “a problem with a supervisor going to an employee’s
home regarding Union activities.” The supervisor was identi-
fied as Pernell19 Mangum then suspended Pernell for a week
without pay.
Russell Smith was hired just past mid-February. In March
about a week before the election, while he was still in proba-
tionary status, Smith was sitting in the supervisor’s office in the
Youngsville plant talking to other employees about the Union.
Pernell came around the corner, and said, “You might ought to
think about your new hire. You’re still under probation and we
don’t really need a reason to get rid of you.”
Pernell was asked on direct examination whether he ever had
a conversation about union activity with Russell Smith. He
replied affirmatively, and asserted that he apologized to Smith
for hiring him while a union campaign was going on, because it
was not “fair.” This answer, of course, does not relate to
Smith’s testimony.
Smith also testified about a conversation which he heard in
the parking lot after the election, between Pernell and employee
Eddie Peoples. Although he did not see them, he recognized
their voices. Peoples said that Garrett and Holmes were taking
the union loss “pretty bad.” Pernell replied that Garrett and
Holmes should “watch themselves,” and that he would “hate to
18 General Counsel’s motion to strike the word “her” in l. 22, p. 26,
and insert in lieu thereof the word “it,” is granted.
19 GC Exh. 48.
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 310
see them fired over bullshit like that.” Pernell denied making
any such statements. Peoples was called as a witness for Re-
spondent, but was not asked any questions about his conversa-
tion with Pernell related by Smith.
B. Factual and Legal Conclusions
Pernell’s statement to Garrett on February 27 that he was go-
ing to be fired because of his union activities was a threat
which was violative of Section 8(a)(1). His statement that he
had been to a meeting, and that Garrett and Holmes were the
leaders of the union campaign created an unlawful impression
of surveillance of union activities, also violative of Section
8(a)(1).
I credit Russell Smith’s testimony that, about a week before
the election when the employees were discussing the Union,
Pernell said that they had better think about their new hire.
This was clearly a reference to Smith, who was then on proba-
tion. Pernell’s further statement that Smith was on probation
and that the Company did not really need any reason to get rid
of him was a scarcely veiled unlawful threat of discharge.
I also credit Smith’s uncontradicted testimony that, after the
election, he heard Eddie Peoples tell Pernell that Garrett and
Holmes were taking the Union’s defeat “pretty bad.” Pernell
replied that Garrett and Homes should “watch themselves,” and
that he would hate to see them fired over “bullshit like that.”
This again was a threat of discharge which was unlawful. It was
coercive irrespective of Pernell’s intent and the fact that it was
overheard by Smith. Frontier Hotel & Casino, 323 NLRB 815,
816 (1997).20
VII. ALLEGED UNLAWFUL STATEMENTS BY
GENERAL MANAGER MANGUM
A. Summary of the Evidence
The complaint alleges that General Manager Mangum told
employees that their union activities damaged their working
relationships with other nonunion cooperatives, that they would
lose the help of those cooperatives during emergency situations,
and that they would lose benefits if they continued their union
activities Mangum also allegedly made threats of unspecified
reprisals if employees voted for the Union, and said that it
would be futile for the employees to elect the Union as their
bargaining representative.
Mangum made a speech to most of the members of the bar-
gaining unit on March 29, 2 days before the election. The Gen-

20 The General Counsel argues that I should make an adverse infer-
ence based on the fact that Peoples did not deny Smith’s testimony.
The Board has accepted the “missing witness” rule in Martin Luther
King, Sr., Nursing Center, 231 NLRB 15 fn. 1 (l977). Under that rule,
“where relevant evidence would properly be part of a case is within the
control of the party whose interest it would be to produce it, and he
fails to do so without satisfactory explanation, the (trier of fact) may
draw an inference that such evidence would have been unfavorable to
him.” 29 Am.Jur.2d § 178 (cited in Martin Luther King, supra). In this
case, Peoples was not missing—he was not questioned concerning the
matter about which Smith had testified. General Counsel could not
properly cross-examine him concerning a matter about which he had
not testified. I make no adverse ruling, and rely on Smith’s believable
testimony.
eral Counsel’s witnesses testified that he said the employees
would not see any benefits if there was a high vote for the Un-
ion, and that the fight had just begun,21 that the other coopera-
tives would not help Wake employees in times of emergency,22
and that the other cooperatives would not permit their employ-
ees to train with Wake employees.23 Mangum also told em-
ployees that their vote could be used “for or against them.”24
General manager Mangum testified that he communicated
regularly with other electric cooperatives in the state. Some-
time in March, he prepared a draft of a memo to all employees
on the subject of Wake Electric’s relationships with other elec-
tric cooperatives. It reads in part:

A number of employees have asked if the debate we are
having about union representation will affect our relation-
ships with other North Carolina electric cooperatives. . . .
In the past, we have benefited from our association
with the other electric cooperatives in North Carolina. We
have worked together to create training programs for
linemen and other employees. We have been asked to as-
sist in storm restoration efforts at other cooperatives and
we have asked for their assistance when we needed help. I
expect that we will continue to find these relationships ex-
tremely valuable.
If the past is an accurate guide, there will probably be
electric cooperatives in North Carolina that will reduce or
suspend their association with Wake Electric as a way to
limit the contact between our employees and theirs. The
extent of this potential problem is difficult to determine
because this is their choice and not ours.25

Mangum testified on cross-examination that, at the time this
draft was written, no other electric cooperative had expressed
any concern to him about the results of the union campaign.
On March 28, he prepared a document entitled “Talking
Points.” It states that he had been asked to report the vote count
at a statewide meeting, that every general manager in the state
would be there, and that this was very important to them.
“These working relationships have been very valuable for both
Wake Electric and for our employees. In my opinion, Wake
Electric’s future relationship with the other electric coopera-
tives in the state may depend on the number of YES and NO
votes . . . . If the Union were to win this election, as far as I’m
concerned, the battle has just started.” 26
Mangum denied the statements attributed to him at the
March 29 meeting. He asserted that he spoke from notes, con-
cerning the first paragraph of which he made “comments,” but
that he read the second paragraph to the employees verbatim
because it was “very important that (he) not say too much about
this particular issue.” The second paragraph reads as follows:
21 Jeffery Garrett.
22 Jeffery Garrett, Russell Smith, Duke Holmes, and Larry Missue
gave similar testimony, but said that Mangum’s statements were made
after the election. This is contrary to the other evidence, is unlikely,
and I do not credit it.
23 Garrett, Holmes.
24 Garrett, Holmes.
25 GC Exh. 45.
26 GC Exh. 56.
WAKE ELECTRIC MEMBERSHIP CORP. 311

The other electric cooperatives’ reaction to our vote is an is-
sue that we do not have a lot of control over. It is well known,
however, that all the other electric cooperatives in the state are
union free. Whether or not they would choose to reduce or
suspend their association or working relationship with us over
our union activity is unclear. The extent of this potential
problem is difficult to determine because this is their choice
and not ours. Their reaction, however, may be affected by the
actual number of YES and NO votes.27

On cross-examination of Russell Smith, Respondent quoted
the foregoing paragraph from Mangum’s notes, and asked
whether Smith remembered it. He replied that the notes were a
“watered down version,” and that there was “a lot left out.”
Asked to identify what was left out, Smith replied that he could
distinguish “what’s fiction and what’s fact.” When Mangum was
speaking about other cooperatives, he stated that they would not
want to work with Wake Electric if it became unionized.
B. Factual and Legal Conclusions
There is no evidence that the two documents Mangum pre-
pared prior to his speech on March 29—the memo to employ-
ees and the “Talking Points”—were ever distributed to employ-
ees. However, the language in them has similarities to the
statements attributed to Mangum by the General Counsel’s
witnesses at the March 29 meeting. The memo asserts benefits
from association with other electric cooperatives in the areas of
employee training and storm restoration efforts. It adds that the
associations will probably reduce this cooperation as a method
of limiting contact between their employees and those of Wake
Electric. The same prediction is stated as a possibility in the
“Talking Points.”
As Russell Smith put it, Mangum’s statements in the asserted
“verbatim” portion of his speech were a “watered down” version
of what he actually said. Even the asserted text notes that “all the
other electric cooperatives in the state are union free.” The cumu-
lative evidence from the General Counsel’s witnesses has more
probative weight than Mangum’s careful tiptoeing between
unlawful and merely arguable statements. Russell Smith gave a
blunt characterization of the asserted verbatim text—it was “fic-
tion,” not “fact”—and Mangum told his employees that the other
cooperatives would not work with Wake Electric if it became
unionized. I so find. This meant that, in case of storms and other
emergencies, Wake Electric employees could not rely on help
from other electric cooperatives. This would create onerous
working conditions. I take judicial notice of the fact that, only a
short time prior to the opening of the hearing in this case, and
only a few miles from the site of the hearing, North Carolina
suffered a devastating storm and flooding. I conclude that Man-
gum’s statement violated Section 8(a)(1).
I also credit the consistent and mutually corroborative testi-
mony of the General Counsel’s witnesses as to the other state-
ments made by Mangum. This evidence shows that Mangum
told employees that they would not receive any benefits if there
was a “high vote” for the Union, and that the fight had just
begun. In HarperCollins Publishers, 317 NLRB 168 (1995),

27 R. Exh. 2.
enfd. 79 F.3d 1324 (1996), the Board found with judicial ap-
proval that an employer’s statement that it intended to fight
with every weapon at its disposal conveyed to employees the
threat that it would use any means, including unlawful conduct,
in order to defeat the Union. In agreeing with the Board, the
court relied upon the fact that the employer had made other
unlawful threats.
In this case, Respondent created an impression of surveillance
of union activities, committed an assault upon a union sympa-
thizer, and threatened its employees with termination because of
those activities (Pernell). It threatened them with loss of coop-
eration from other electric companies and consequent onerous
working conditions. It unlawfully solicited grievances from its
employees, conducted an unlawful poll on whether the Union
should discontinue its election efforts, and promised employees
earlier resolution of their grievances if they would cause the Un-
ion to withdraw its petition for an election. As I find hereinafter,
it unlawfully accelerated the resignation dates of four employees.
I conclude that these actions, when combined with Mangums’
statement that a vote in favor of the Union would result in loss of
benefits, and that the fight would continue, conveyed to employ-
ees the impression that Respondent’s unlawful conduct would
continue if the Union won.
The complaint also alleges that Mangum made threats of un-
specified reprisals if the Union won. The credited evidence
shows that Mangum said that the employees’ vote could be
used for or against them. I conclude that this conveyed to em-
ployees the message that a vote for the Union could be injuri-
ous to them in some unspecified way, and therefore constituted
a threat of unspecified reprisals. Considered in the context of
Mangum’s statement that the employees would lose benefits if
the Union won, this was equivalent to telling the employees
that a vote for the Union was futile. In the “Talking Points,”
Mangum wrote that if the Union won the election, the battle
had just started. Based on the similarity of Mangum’s written
statements to those attributed to him by Garrett, and the latter’s
trustworthiness as a witness, I credit Garrett’s testimony that, in
his speech to the employees, Mangum said that there would not
be any benefits if there was a “high vote” for the Union, and
that the fight had just begun.
In Reno Hilton, 319 NLRB 1154 (1995), the employer wrote
a memo to employees saying in part that the union would not
benefit the employees, could hurt them seriously, and might
jeopardize their jobs (id. p. 1155). These statements were made
in a context of other coercive conduct by the employer. The
Board evaluated this evidence as follows:

The coercive effect of Hughes’ memo is apparent when it is
read against the backdrop of those unfair labor practices,
which give both specificity and force to Hughes’ otherwise
vague assertions that the Union would not benefit employees,
and might jeopardize their jobs. We therefore find that Re-
spondent violated the Act in this respect . . . . (id. p. 1155.)

Although the unlawful conduct committed by the employer
in Reno Hilton is not precisely similar to that by Respondent
herein, the coercive effect is equivalent. Mangum’s statement
that the employees would not obtain any benefits if the Union
won is the same as telling them that a union victory would be
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 312
futile. This was emphasized by Mangum’s statement that, in
such event, the fight would just begin. I conclude that Man-
gum’s statements—that the employees would not receive any
benefits if the Union won, that the fight would just begin, and
that the employees’ vote could be used for or against them—
were violative of Section 8(a)(1).
VIII. THE ALLEGED ACCELERATION OF RESIGNATION DATES
A. Summary of the Evidence
The complaint alleges that, on or about March 24, Respon-
dent violated Section 8(a)(3) by accelerating the resignation
dates of four employees and by offering them a severance pack-
age, because of their union activities.
Anthony Brogden, Scott Abbott, Keith Browning, and Vaden
Kearney submitted resignations during the week of March 24.
Kearney had been employed for 5 weeks. Respondent’s cus-
tomary practice was to require resigning employees to work for
two weeks after notice of resignation. Immediately after the
tendered resignations, Respondent offered the employees 2
weeks of severance pay, and released them from any further
work requirements. The employees accepted. This was the
first time that Respondent had offered severance pay to an em-
ployee. General Manager Mangum testified that he knew that
Brogden, Abbott, and Browning were union supporters. During
the Board election on March 31, the ballots of Abbott and
Browning were challenged.
Mangum testified that the primary concern in offering the
severance pay was “one of safety.” The Company had experi-
enced a fatality in the past. An employee had been concerned
about his mother’s forthcoming surgery, and died under cir-
cumstances not fully indicated in the record. The Company
concluded that “distraction” was the primary cause of the acci-
dent, according to Mangum. More recently, there had been a
fatality early in 1999 at another company, Pee Dee Electric
Cooperative. There was a safety meeting at Wake Electric at
which the accident at Pee Dee Electric was the primary topic.
Mangum asserted that this accident “reinforced” the Com-
pany’s earlier belief that personal problems, or concerns away
from the job, created a dangerous situation when an employee
was engaged in hazardous work.
The record contains a letter from Pee Dee Electric to Man-
gum, dated March l, which reports a fatality involving a line-
man who was wearing old rubber gloves.28 Also in evidence is
a record of a safety meeting held at Wake Electric on March 15.
Safety meetings were held every 2 weeks. There is no refer-
ence to the Pee Dee fatality in the record of the March 15 safety
meeting at Wake Electric.29
Mangum agreed that other employees had resigned in the
past, one of whom was Greg Risuti. In Risuti’s letter of resig-
nation, he made strong complaints against the Company,30 and
Company Manager Mangum agreed that Risuti was not very
happy toward the end of his tenure. Nonetheless, he was al-
lowed to work a 2-week notice period. There is no evidence
that he was offered a severance package.

28 GC Exh. 52.
29 R. Exh. 4.
30 GC Exh. 51.
B. Factual and Legal Conclusions
As indicated, the complaint alleges that Respondent violated
Section 8(a)(3) of the Act by accelerating the resignation dates
of Scott Abbott, Anthony Brogden, Keith Browning, and
Vadeen Kearney, and by offering them a severance package.
There is no doubt about the facts. The employees tendered their
resignations, anticipating that they would be required to work
the customary 2-week notice period. Instead, the employer
offered them 2 weeks of severance pay, and excused them from
further work. The employees accepted.
The Board has stated its position on this issue as follows:

The validity of wage increases or other benefits during
the pendency of representation petitions turns upon whether
they are granted “for the purpose of inducing employees to
vote against the union” (authority cited). And a lawful pur-
pose is not established by the fact that the employer who
took such action did not expressly relate the granted wage
increase to the organizational campaign.. For, as the Su-
preme Court observed in N.L.R.B. v. Exchange Parts Com-
pany, supra the absence of conditions or threats pertaining to
the particular benefits conferred” is not “of controlling sig-
nificance.” Under settled Board policy, a grant or promise
of benefits during the critical pre–election period will be
considered unlawful unless the employer comes forward
with an explanation, other than the pending election, for the
timing of such action. [Honolulu Sporting Goods Co.,
LTD., 239 NLRB 1277, 1280 (1979).]

Respondent’s unfair labor practices establish that it had ani-
mus against the union movement. It knew that Brogden, Ab-
bott, and Browning were union supporters. The acceleration of
the resignations took place only a few days before a Board
election. During the election, the ballots of Abbott and Brown-
ing were. challenged.31 I make the obvious inference that they
were challenged by the Company.
On the basis of Respondent’s animus against the Union, its
knowledge that Brogden, Abbott, and Browning were union
supporters, its challenges to the ballots of Abbot and Browning
after accelerating their resignations a few days before the elec-
tion, and the fact that the severance packages given to these
employees were the first offered by Respondent to any em-
ployee, I conclude that the General Counsel has established a
prima facie case sufficient to support an inference that the un-
ion activities of Brogden, Abbott, and Browning, and Respon-
dent’s interest in eliminating proUnion votes in the forthcoming
election, were motivating factors in these actions.32
Respondent’s asserted reason for the accelerated termina-
tions is implausible. Although Mangum claimed that the acci-
dent at Pee Dee Electric Company reinforced its belief that
“distraction” was a cause of accidents, and was discussed at the
next safety meeting, there was no such discussion. The letter
from Pee Dee shows that the cause of the fatality was failure to
31 There were four challenged ballots, but the record does not indi-
cate the identities of the other two.
32 Wright Line, 251 NLRB 1083 (l980), enfd. 662 F.2d 899 (1st Cir.
1981), approved in NLRB v. Transportation Management Corp., 462
U.S. 393 (1983).
WAKE ELECTRIC MEMBERSHIP CORP. 313
wear adequate protective gloves. Although another employee
at Wake Electric, Greg Risuti, wrote a critical letter to the
Company resigning his employment, and was not happy about
his job according to Mangum, this was apparently insufficient
evidence of “distraction” to warrant a severance package and
accelerated resignation. I conclude that Respondent’s asserted
reason for the accelerated resignations and the severance pack-
ages is pretextual. Accordingly, I find that those actions vio-
lated Section 8(a)(3) and (1) of he Act.
IX. THE ALLEGED REFUSAL TO BARGAIN AND UNILATERAL
CHANGE IN POLICY OF ACCELERATING RESIGNATIONS AND
GRANTING SEVERANCE PAY
A. The Refusal to Bargain
The complaint alleges that beginning on February 18, Re-
spondent refused to bargain with the Union as the representa-
tive of the employees in the appropriate unit. The parties
agreed upon the accuracy of the unit alleged as appropriate.33 I
have found that the Union had obtained authorization cards
from a majority of the employees in the bargaining unit by
February 17. Respondent has presented no argument to support
its position that the Union did not represent a majority of em-
ployees in the unit on that date.34 On February 18, the Union
demanded recognition and bargaining, and the Company re-
fused. Accordingly, I find that Respondent on that date vio-
lated Section 8(a)(5) and (1) of the Act.
B. The Unilateral Change in Policy on Accelerating
Resignation Dates and Granting Severance Pay
The complaint alleges that, in addition to violating Section
8(a)(3) by accelerating resignation dates and granting severance
pay, Respondent unilaterally changed its policy on such matters
in violation of Section 8(a)(5). Respondent’s action took place
on or about March 24, after the Union had obtained majority
status and had demanded recognition and bargaining. Respon-
dent’s action transgressed Section 8(a)(5) as alleged.
In accordance with my findings above, I make the following
CONCLUSIONS OF LAW
1. Respondent Wake Electric Membership Corp. is an em-
ployer engaged in commerce within the meaning of Section
2(2), (6), and (7) of the Act.

33 Supra, fn. 2.
34 Larry Mishue and Eddie Peoples, both signatories of authorization
cards, testified that they subsequently changed their minds. There is no
evidence that they attempted to withdraw their cards, nor any evidence
that Respondent relied upon their change of opinion. Nor is there any
evidence that Respondent knew the total number of cards upon which
the Union relied—indeed, Respondent declined to see the proof. The
Union had 18 signed cards at the close of February 17. There were 31
employees in the bargaining unit on February 19 and thereafter. Ac-
cordingly, the Union had two more cards than the number necessary to
establish majority status. In addition to Respondent’s complete silence
on this issue, it may be observed that it is not entitled to rely on events
which took place during an unlawful campaign against the Union. St.
John Trucking, 303 NLRB 723 fn. 4 (1991).
2. Local Union 553 of the International Brotherhood of
Electrical Workers, AFL–CIO, CLC is a labor organization
within the meaning of Section 2(5) of the Act.
3. By engaging in the following conduct, Respondent vio-
lated Section 8(a)(1) of the Act.
(a) Soliciting and promising to remedy grievances if the em-
ployees would cause the Union to withdraw a petition for a Board
election and would otherwise cease their support for the Union.
(b) Promising its employees benefits if they ceased their sup-
port for the Union.
(c) Polling its employees to determine whether they would
cause the Union to withdraw its petition for a Board election.
(d) Telling employees that their union activities would dam-
age their relationships with other electric cooperatives and
cause the latter to discontinue helping employees during emer-
gency situations.
(e) Threatening employees with loss of benefits and unspeci-
fied reprisals if the Union won the election.
(f) Threatening employees with discharge because of their
union activities.
(g) Creating an impression of surveillance of union activities.
4. By accelerating the resignation dates of Scott Abbott, An-
thony Brodgen, Keith Browning, and Vaden Kearney on March
24 and granting each of them a severance package, because of
their union and other protected, concerted activities, and in
order to deter their voting in a forthcoming Board election,
Respondent violated Section 8(a)(3) and (1) of the Act.
5. The following employees constitute a unit appropriate for
the purposes of collective bargaining within the meaning of
Section 9(b) of the Act:

All full-time construction and maintenance employees includ-
ing Apprentice Linemen, Meter Readers, the Lead Meter
Reader, Crew Leaders, Servicemen, Warehousemen, part-
time Warehousemen, the Garage Coordinator, and Right-of-
Way Technicians, employed by Respondent at its Wake For-
est, Zebulon, Oxford, Louisburg, and Youngsville, North
Carolina facilities, but excluding Member Services Depart-
ment employees, Engineering Department employees, office
clerical employees, and guards, professional employees, and
supervisors as defined in the Act.

6. Since on or about February 17, 1999, by signing union
authorization cards, a majority of the employees in the unit
designated and selected the Union as their representative for the
purposes of collective bargaining with Respondent.
7. At all times since February 17, 1999, and continuing to
date, the above-described Union has been the representative for
the purpose of collective bargaining of the employees in the
unit described above in paragraph 5, and by virtue of Section
9(a) of the Act, has been, and is now, the exclusive representa-
tive of the employees in said unit for the purpose of collective
bargaining with respect to rates of pay, wages, hours of em-
ployment, and other terms and conditions of employment.
8. Commencing on or about February 18, 1999, and continu-
ing to date, the Union has requested, and is requesting, Respon-
dent to recognize and bargain collectively with respect to rates
of pay, wages, hours of employment, and other terms and con-
ditions of employment as the exclusive representative of all
DECISIONS OF THE NATIONAL LABOR RELATIONS BOARD 314
employees of Respondent in the unit above described in para-
graph 5.
9. Commencing on or about February 18, 1999, and at all
times thereafter, Respondent refused, and continued to refuse,
to recognize and bargain collectively with the Union as the
exclusive collective-bargaining representative of all employees
in the unit described above in paragraph 5, thereby violating
Section 8(a)(5), in that

(a) Beginning on or about February 18, 1999, Respondent
failed and refused to recognize and bargain collectively with
the Union as the exclusive collective-bargaining representa-
tive of all employees in the unit described above in paragraph
5.
(b) On or about March 24, and continuing thereafter, Re-
spondent unilaterally, without notice to or consultation with
the Union, changed its policy concerning accelerating the res-
ignation dates of employees and the granting of severance
pay.

10. The acts of Respondent described above constitute un-
fair labor practices affecting commerce within the meaning of
Section 8(a)(l), (3), and (5) and Section 2(6) and (7) of the Act.
11. Respondent has not violated the Act except as herein stated.
THE REMEDY
The principal issue is whether issuance of a bargaining order
would be appropriate. Respondent’s conduct falls into several
categories. The first is one of persuasion. The Company solic-
ited grievances and impliedly promised to satisfy them if the
employees would cause the Union to withdraw its election peti-
tion. In a prior case involving similar facts, the Board summa-
rized the employer’s conduct as follows [300 NLRB at 1029]:

It is clear that after receiving the Union’s demand for
recognition and bargaining, the Respondent immediately
took action designed to identify the employees who sup-
ported the Union, to solicit the grievances underlying their
desire for representation, and to impress on the employees
that their demands could best be fulfilled through direct
dealing with the Respondent and that union representation
would not afford them any advantages. Although the Re-
spondent did not commit any “hallmark” violations (such
as threats of plant closure, threats of discharge, or actual
discriminatory discharge), the unfair labor practices were
serious in nature, commenced on the day the Union de-
manded recognition, involved the Respondent’s co–
owners, and affected the entire small bargaining unit . . . .
This case is similar to Teledyne Dental Products
Corp., 210 NLRB 435 (1974). The Board there found that
the respondent reacted to a union’s request for recognition
by unlawfully soliciting grievances, promising to grant
benefits based on a list of solicited employee demands,
and subsequently granting one minor benefit. In conclud-
ing that a bargaining order was necessary to remedy these
unfair labor practices, the Board stated at 435–436:

Obviously such conduct must, of necessity, have a
strong coercive effect on the employees’ freedom of
choice, serving as it does to eliminate, by unlawful
means and tactics, the very reason for a union’s exis-
tence. We can conceive of no more pernicious conduct
than that which is calculated to undermine the Union and
dissipate its majority while refusing to bargain (citation
omitted). Neither is there any conduct which could con-
stitute a greater impairment of employees; basic Section
7 rights under our Act, especially since such conduct by
its very nature has a long-lasting, if not permanent, effect
on the employees’ freedom of choice in selecting or re-
jecting a bargaining representative. [Cited in Astro
Printing Services, 300 NLRB 1028, 1029 (1990).]

The Board in Astro Printing concluded that the possibility of
erasing the effect of the Respondent’s unfair labor practices and
of conducting a fair election by the use of traditional remedies
was slight, and issued a bargaining order. Respondent’s “per-
suasive” tactics in the case at bar are strikingly similar to those
in Teledyne Dental and Astro Printing. The rationale of those
cases is sufficient to justify issuance of a bargaining order
based on Respondent’s “persuasive” tactics alone.
Respondent’s tactics were not limited to persuasion, however.
Those tactics included threats of more onerous work in emergen-
cies, loss of benefits, unspecified reprisals, continuation of the
“fight” if the Union won, a threat of discharge, and a physical
assault on one of the Union’s principal supporters in his own
home. They also included the “hallmark” violation of a grant of
significant benefits to employees (America’s Best Quality Coat-
ings Corp., 313 NLRB 470, 472 (1993), enfd. 44 F.3d 516 (7th
Cir. 1995), cert. denied 515 U.S. 1158 (1995)); they involved the
Company’s principal managers, and took place just before a
Board election. I conclude that these actions were of such a na-
ture that their coercive effects cannot be eliminated by the appli-
cation of traditional remedies, with the result that a fair and reli-
able second election cannot be had. NLRB v. Gissel Packing Co.,
supra, 395 U.S. at 614; NLRB v. CWI of Maryland, Inc., 127 F.3d
319 (4th Cir. 1997), enfg. in relevant part 321 NLRB 698 (1996);
Complete Carrier Services, 325 NLRB 565 (1998). Accordingly,
I shall recommend issuance of a bargaining order, in addition to a
cease-and-desist order.
I further conclude that Respondent has engaged in such
egregious or widespread misconduct as to demonstrate a gen-
eral disregard for employees’ statutory rights. Hickmott Foods,
242 NLRB 1357 (1979). Accordingly, I shall recommend issu-
ance of a broad order.
[Recommended Order omitted from publication.]