Webb Tractor and Equipment Co.

National Labor Relations Board - Board Decisions

Sep 11, 1967

167 N.L.R.B. 383 (N.L.R.B. 1967)

WEBB TRACTOR & EQUIPMENT CO. 383
Webb Tractor and Equipment Company and Lodge
No. 1123, International Association of Machinists
and Aerospace Workers, AFL-CIO.' Cases
19-CA-3389, 19-RC-3883.1 and 19-RM-602
September 11, 1967
DECISION AND ORDER
BY MEMBERS FANNING, BROWN , AND JENKINS
On March 29, 1967, Trial Examiner William E.
Spencer issued his Decision in this proceeding,
finding that Respondent had engaged in and was en-
gaging in certain unfair labor practices and recom-
mending that it cease and desist therefrom and take
certain affirmative action, as set forth in the at-
tached Trial Examiner's Decision. He also found
that Respondent had not engaged in certain other
unfair labor practices, and recommended that al-
legations of the complaint pertaining thereto be
dismissed. Thereafter, the General Counsel filed
exceptions to the Trial Examiner's Decision, and a
supporting brief, and Respondent filed cross-excep-
tions and a supporting brief, and an answering
brief.3
Pursuant to the provisions of Section 3(b) of the
National Labor Relations Act, as amended, the Na-
tional Labor Relations Board has delegated its
powers in connection with this case to a three-
member panel.
The Board has reviewed the rulings of the Trial
Examiner made at the hearing and finds that no
prejudicial error was committed. The rulings are
hereby affirmed. The Board has considered the
Trial Examiner's Decision, the exceptions and
briefs, and the entire record in the case, and hereby
adopts the findings, conclusions, and recommenda-
tions of the Trial Examiner only to the extent con-
sistent herewith.
The Trial Examiner found that Respondent's
original rejection of the Machinists' demand for
recognition was grounded on a reasonable doubt of
the Machinists' majority showing in an appropriate
unit, and he dismissed the allegations of the com-
plaint pertaining to Section 8(a)(5) of the Act. The
Trial Examiner further dismissed the allegations of
the complaint pertaining to the denial of wage in-
creases and the cancellation of Saturday work. No
exceptions having been taken to these actions, we
hereby adopt those dismissals pro forma.'
The Trial Examiner discusses President Webb's
preelection talk to the Wenatchee employees and
concludes that it was "without any element of coer-
civeness." We find it unnecessary to pass upon this
conclusion, as neither the content nor effect of the
talk is alleged to have been violative of the Act.
The Trial Examiner found that Respondent's su-
pervisor, Morrison, unlawfully interrogated em-
ployee Clayson, made certain threats of reprisal for
union activity, and stated that President Webb
would never sign a union contract, all in violation of
Section 8(a)(1) of the Act. We adopt these findings.
The General Counsel excepts to the Trial Ex-
aminer's failure to find that Morrison also
threatened to refuse to keep overtime records for
the Union and threatened to change Respondent's
layoff practices during slack periods if the Union
came in. The General Counsel's case with regard to
these matters rests almost entirely on the testimony
of employee Stephens, whom the Trial Examiner
discredits with regard to other statements attributed
to Morrison. We shall therefore dismiss the allega-
tions of the complaint pertaining to the two above-
mentioned remarks assertedly made by Morrison.
Though finding Respondent to have committed
flagrant violations of the Act through Supervisor
Morrison, the Trial Examiner nevertheless con-
cluded that President Webb's interrogation of em-
ployee Marshall as to his own and his fellow em-
ployees' union sympathies and activities was not in
violation of Section 8(a)(1) of the Act. Patently, the
questions were not of the permissible type5 and
were unaccompanied by assurances against
reprisals. We are not willing to assume, as does the
Trial Examiner, that because Webb was pater-
nalistic toward his employees (if, indeed, he was),
such clear invasion of his employees' Section 7
rights would any the less violate the Act. Ac-
cordingly, we hereby find that Webb's interroga-
tion, in the entire context of these cases, constituted
interference, restraint, and coercion in violation of
Section 8(a)(1) of the Act.
The Trial Examiner rejected, rightly we feel,
Respondent's contention the Supervisor Morrison
worked so intimately with a small group of em-
ployees that his statements should be considered
nothing more than permissible speculations, not at-
tributable to Respondent. He held such statements
to have been in violation of Section 8(a)(1), and we
have agreed, to the extent explained above. He then
found, however, that Morrison's "anti-union state-
ments and conduct" cannot be attributed to
Respondent for purposes of showing Respondent's
attitude with regard to acceptance or rejection of
the collective-bargaining principle, as Morrison was
a "minor supervisor" whose statements were
Herein the Machinists or the Union.
s This case number appears incorrectly in the heading of the Trial Ex-
aminer's Decision as 19-R C-3383, further, in the first sentence of the
third paragraph of his Decision he incorrectly refers to this case as
19-CA-3883
3 A motion to dismiss the complaint , filed by Respondent , and General
Counsel's opposition thereto , are dealt with below
' As will be seen below, we find ment , however, in the General Coun-
sel's exception to the Trial Examiner's failure to order Respondent to bar-
gain with the Machinists on the basis of the 8(a)(I) violation that Re-
spondent is found to have committed
5 Blue Flash Express, Inc, 109 N LRB 591
167 NLRB No. 46
384 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
neither authorized by, nor known to, Webb, and
further because the Union did not seek to have
Respondent disavow Morrison's statements or con-
duct. We do not agree.
Morrison was not a minor supervisor; he super-
vised a group of employees that constituted more
than 50 percent of the bargaining unit. There is no
doubt that he was a supervisor; he had the power to
hire and fire. Neither this Board, nor the common
rules of agency, requires that President Webb must
have authorized, or even become aware of, Mor-
rison's statements or conduct. He was an agent for
whose statements and conduct Respondent is
responsible. Nor is it of any significance that
Respondent may not call upon Morrison to help de-
cide managerial policy with regard to bargaining
matters. Most clearly, it was not incumbent upon
the Machinists to request Respondent to make a
public disavowal of Morrison's statements and con-
duct, even assuming it was aware of them when
such a request would have been meaningful.
Though the Trial Examiner corrected his statement
to this effect (by issuance of an erratum), we wish
to make it clear that the finding of an 8(a)(5) viola-
tion is not a prerequisite for the application of the
Bernel Foam doctrine.6 Further, we disavow the
Trial Examiner's implication that the Union's "an-
ticipatory reliance" upon the Board's Bernel Foam
doctrine was improper. Indeed, the Trial Ex-
aminer's rationale is in essence the rationale the
Board rejected in Bernel Foam.
The Trial Examiner found, and we agree, that the
Union's objections to the election are meritorious,
and that the election should be set aside. However,
the Union had a majority in the appropriate unit on
the date of its request for recognition and bargain-
' ing, and Respondent's actions, we find, were
designed to undermine and destroy that majority
and exhibited a complete rejection of the collective-
bargaining principle.7 Accordingly, we find it neces-
sary, in order adequately to remedy the unfair labor
practices here found, and to effectuate the policies
of the Act, to order Respondent to bargain upon
request with the Machinists.8
In view of such Order, we hereby dismiss the
petitions in Cases 19-RC-3883 and 19-RM-602,
and vacate all proceedings held in connection
therewith.9
ORDER10
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor
Relations Board hereby orders that the Respond-
ent, Webb Tractor & Equipment Co., Wenatchee,
Washington, its officers, agents, successors, and as-
signs, shall:
1. Cease and desist from:
(a) Interrogating its employees in an unlawful
manner concerning their own or their fellow em-
ployees' union sympathies or activities.
(b) Threatening its employees with reprisals for
choosing union representation.
(c) Threatening its employees with a refusal ever
to sign a collective-bargaining agreement with their
chosen union representative.
(d) In any like or related manner interfering
with, restraining, or coercing its employees in the
exercise of their right to self-organization, to form,
join, or assist Lodge No. 1123, International As-
sociation of Machinists and Aerospace Workers,
AFL-CIO, or any other labor organization, to bar-
gain collectively through representatives of their
own choosing, or to engage in other concerted ac-
tivities for the purposes of collective bargaining or
other mutual aid or protection, or to refrain from
any or all such activities, except to the extent that
such right may be affected by an agreement requir-
ing membership in a labor organization as
authorized in Section 8(a)(3) of the Act, as modified
by the Labor-Management Reporting and Disclo-
sure Act of 1959.
2. Take the following affirmative action which
the Board finds will effectuate the policies of the
Act:
(a) Upon request, bargain collectively with
,Lodge No. 1123, International Association of
Machinists and Aerospace Workers, AFL-CIO, as
the exclusive representative of the employees in the
appropriate unit with respect to rates of pay , wages,
hours of work, and other terms and conditions of
employment, and embody in a signed agreement
any understanding reached. The appropriate unit is:
All shop department and parts department em-
ployees employed by Respondent at its Wenatchee,
Washington, tractor store-shop, excluding janitors,
salesmen , office clerical employees, professional
8 See Bernel Foam Products Co, Inc, 146 NLRB 1277 ; Northwest
Engineering Company, 148 NLRB 1136 , 158 NLRB 624.
° Most particularly , this rejection was made clear to its employees by
Momson 's statement that Webb would never sign a union contract.
8 See Irving Air Chute Co., Inc. , Marathon Division, 149 NLRB 627,
629-630, enfd 350 F 2d 176 (C A 2, 1965), Mock Road Super Duper,
Inc, 156 NLRB 983, 986.
8 SeelrvingAir Chute Company, Inc, Marathon Division, Ibid
10On May 11, 1967, the Board received Respondent 's motion to
dismiss the complaint herein on the grounds that Respondent "has ceased
to own or operate any business in or near Wenatchee, Washington " An
affidavit from its vice president , setting forth certain general facts, was at-
tached thereto. The General Counsel thereafter filed an opposition to mo-
tion to dismiss The motion , affidavit, and opposition do not form an
adequate basis upon which a judgment can be made as to whether in fact
Respondent has gone out of business and/or what , if any, rights the Union
may have against Respondent's successor, should one be found . See, e.g.,
Perma Vinyl Corporation , 164 NLRB 968 Even were we satisfied that
Respondent is out of business , and that its successor is not to be bound by
our Order , we would still issue an order against Respondent requiring, for
example, that it send copies of our notice to each former employee rather
than posting at its plant, and that it bargain if it should ever resume opera-
tions in Wenatchee , etc We believe that these are issues more properly to
be decided at the compliance stage of this proceeding
WEBB TRACTOR & EQUIPMENT CO. 385
employees, guards, and supervisors as defined in
the Act.
(b) Post at its Wenatchee, Washington, place of
business, copies of the attached notice marked
"Appendix."I I Copies of said notice, on forms pro-
vided by the Regional Director for Region 19, Seat-
tle, Washington, after being duly signed by a
representative of Respondent, shall be posted by
the Respondent immediately upon receipt thereof,
and be maintained by it for 60 consecutive days
thereafter, in conspicuous places, including all
places where notices to employees are customarily
posted. Reasonable steps shall be taken by Re-
spondent to insure that said notices are not altered,
defaced, or covered by any other material.
(c) Notify the Regional Director for Region 19,
in writing, within 10 days from the date of this
Order, what steps have been taken to comply
herewith.
IT IS HEREBY FURTHER ORDERED that the com-
plaint be, and it hereby is, dismissed, insofar as it al-
leges violations not found herein.
a refusal to sign a bargaining agreement with
their chosen union representative.
WE WILL NOT in any like or related manner
interfere with, restrain, or coerce our em-
ployees in the exercise of their right to self-or-
ganization, to form, join, or assist Lodge No.
1123, International Association of Machinists
and Aerospace Workers, AFL-CIO, or any
other labor organization, to bargain collectively
through representatives of their own choosing,
or to engage in other concerted activities for
the purposes of collective bargaining or other
mutual aid or protection, or to refrain from any
or all such activities, except to the extent that
such right may be affected by an agreement
requiring membership in a labor organization
as authorized in Section 8(a)(3) of the Act, as
modified by the Labor-Management Reporting
and Disclosure Act of 1959.
" In the event that this Order is enforced by a decree of a United States
Court of Appeals , there shall be substituted for the words "a Decision and
Order" the words "a Decree of the United States Court of Appeals En-
forcing an Order "
APPENDIX
NOTICE TO ALL EMPLOYEES
Pursuant to a Decision and Order of the National
Labor Relations Board and in order to effectuate
the policies of the National Labor Relations Act, as
amended, we hereby notify you that:
WE WILL, upon request, bargain collectively
with Lodge No. 1123, International Associa-
tion of Machinists and Aerospace Workers,
AFL-CIO, as the exclusive representative of
all our employees in the following unit with
respect to rates of pay, wages, hours of work,
and other terms and conditions of employment,
and embody in a signed agreement any un-
derstanding reached. The bargaining unit is:
All shop department and parts department
employees employed by us at our
Wenatchee, Washington, tractor store-
shop, excluding janitors, salesmen , office
clerical employees, professional em-
ployees, guards, and supervisors as
defined in the Act.
WE WILL NOT interrogate our employees in
an unlawful manner concerning their own or
their fellow employees' union sympathies or
activities.
WE WILL NOT threaten our employees with
reprisals for choosing union representation.
WE WILL NOT threaten our employees with
Dated By
WEBB TRACTOR
EQUIPMENT CO.
(Employer)
(Representative ) (Title)
This notice must remain posted for 60 consecu-
tive days from the date of posting and must not be
altered, defaced, or covered by any other material.
If employees have any question concerning this
notice or compliance with its provisions, they may
communicate directly with the Board's Regional
Office, 327 Logan Building, 500 Union Street,
Seattle, Washington 98101, Telephone 583-4583.
TRIAL EXAMINER'S DECISION
STATEMENT OF THE CASE
WILLIAM E. SPENCER, Trial Examiner: This is a con-
solidated case consisting of an unfair labor practice case
(19-CA-3389) and a case involving objections to conduct
affecting the results of an election (19-RC-3883;
19-RM-602).
In Case 19-CA-3389, a charge was filed May 2, 1966,
against the Respondent herein by Lodge No. 1123, Inter-
national Association of Machinists and Aerospace Work-
ers, AFL-CIO, herein the Union or the Charging Party.
Pursuant to said charge the General Counsel of the
National Labor Relations Board, hereinafter the Board,
issued his complaint dated July 15, 1966, alleging in sub-
stance commission of unfair labor practices by Respond-
ent in violation of Section 8(a)(1), (3), and (5) of the Na-
tional Labor Relations Act, hereinafter the Act. Re-
spondent in its duly filed answer denied having engaged
in any of the alleged unfair labor practices.
In Case 19-CA-3883, the Union filed a petition dated
March 7, 1966, for certification of representatives in a
unit limited to employees of Respondent's Wenatchee
386 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
store-shop . In Case 19-RM-602, the Respondent filed a
petition dated February 17, 1966, for a representation
election in a unit embracing employees of all four of
Respondent 's State of Washington operations , including
its Wenatchee store-shop . Pursuant to a hearing on the
said petitions on March 23, the Board ' s Regional
Director on April I issued his Decision and Direction of
Election in a unit limited to employees of Respondent's
Wenatchee store-shop. The election was held on April 28
and a majority of votes was cast against representation by
the Union. The Union filed objections to conduct affect-
ing the election and by a second Supplemental Decision
and Direction issued July 13, the Board ' s Regional
Director found that certain of the Union's objections
raised substantial issues , and directed that a formal hear-
ing be held on the aforesaid objections. These objections
were identical with or embraced by certain of the allega-
tions of unfair labor practices appearing in Case
19-CA-3389. By Order dated July 15, 1966, the Re-
gional Director consolidated Cases 19-CA-3389,
19-RC-3883, and 19-RM-602, for purposes of hearing,
ruling, and decision by a Trial Examiner.
Pursuant to due notice, a hearing was held before me
on the consolidated case at Wenatchee , Washington, on
December 5, 6, and 7, 1966. All parties were represented
and participated in the hearing.
Upon the entire record in the consolidated case, my ob-
servation of witnesses , and consideration of the briefs
filed with me by the General Counsel and the Respon-
dent , I make the following:
FINDINGS OF FACT
1. JURISDICTION
Respondent , a State of Washington corporation with its
principal office at Yakima, Washington , is engaged in the
sale and service of tractors and heavy construction equip-
ment at its four store -shop operations at Yakima, Pasco,
Ellensburg , and Wenatchee, Washington , respectively.
During its last fiscal or calendar year, it purchased goods
directly from points outside the State of Washington, of
a value exceeding $ 50,000.
II. THE LABOR ORGANIZATION INVOLVED
The Union herein is a labor organization within the
meaning of the Act.
III. THE UNFAIR LABOR PRACTICES
A. The Bargaining Situation ; the Election
The Respondent owns and operates four stores located
respectively in Yakima, Ellensburg, Wenatchee, and
Pasco, Washington , each engaged in the sales and servic-
ing of heavy construction and farm machinery . In 1959
there was a Board -conducted election among Respond-
ent's employees in a unit composed of Respondent's en-
tire Washington operations . This election the then peti-
tioning union lost . In January 1966, beginning with a
meeting held on January 18, the Union herein sought to
organize the employees of Respondent ' s Wenatchee
operations solely and obtained authorization signatures
of a majority of these employees . On January 20, the
Union 's representative , John Pollard , wrote to Don Shay,
store manager of the Wenatchee operation , claiming to
represent a majority of the Wenatchee employees in a
bargaining unit of parts department and shop department
personnel , advising Shay that he had sent authorization
cards to a Mr. William Samish , labor mediator , associated
with the Department of Labor and Industries of the State
of Washington for a certification , and that he would call
on Shay on January 27 or 28. On January 20, Pollard did
in fact submit the authorization cards to Samish together
with the Union 's listing of the eligible employees in the
unit for which it was seeking recognition . Samish , solely
on the basis of the Union 's representations , on January
24 issued a letter to Pollard certifying that a majority of
employees shown on Pollard 's eligibility list had signed
union cards.
On January 28, Pollard called on Shay and Roy Du-
rand , Respondent ' s general parts manager , at Shay's of-
fice, advised them of the Union's representation claims
and stated that he intended to meet with the employees of
the Wenatchee unit for purposes of formulating contract
proposals . Shay inquired concerning the number of
authorization cards obtained by the Union and asked to
see them . His inquiry and request were refused . Durant
indicated his belief that the bargaining unit should em-
brace the employees of Respondent ' s four Washington
operations , and mentioned the prior representation elec-
tion in which Respondent 's then four operations con-
stituted the bargaining unit . The Respondent's president
and general manager, A. R. Webb , being at that time on
a vacation in Hawaii , it was agreed that further action on
the Union ' s contract proposals would be deferred until
his return.
By letter dated February 1, 1966, Respondent 's attor-
ney, E. R. Whitmore , addressed Pollard with respect to
the number and identity of the Union 's alleged majority,
requesting that this information be furnished " in order to
verify or authenticate for our own satisfaction your claim
to the right to represent our employees " In this letter
Whitmore observed that if the "confirmation " was not
satisfactory , Respondent would expect to have the matter
determined by a Board -conducted election . On the same
date, Whitmore communicated with Samish , questioning
the latter 's involvement in the Union ' s claim of certifica-
tion . On February 4, Samish replied to Whitmore's
inquiry, stating that after "very careful comparison we
certified that a substantial majority of employees whose
names appear on the list which Mr. Pollard presented
have signed the above-mentioned collective bargaining
cards."
By letter dated February 14, Pollard advised Whitmore
of the Union's continuing demand for recognition but
failed to furnish the information requested of the Union
in Whitmore ' s February 1 letter. By letter dated Febru-
ary 16 , Whitmore advised Pollard that the Respondent did
"sincerely doubt that your union represents a majority of
its employees," and that if the Union persisted in its claim
of bargaining rights Respondent would have no alterna-
tive but to petition the Board for an election.
On February 17, the Respondent filed an RM petition
in which it alleged a bargaining unit composed of em-
ployees of all four of Respondent's operations . On March
7, the Union filed a representation petition claiming a bar-
gaining unit limited to employees of the Wenatchee
operation . On March 23, a hearing was held on these
petitions in Wenatchee , a hearing at which the Respond-
ent was represented by legal counsel and admittedly af-
forded the right to offer evidence and argument on the is-
sues, including the issue of the appropriate unit.
WEBB TRACTOR & EQUIPMENT CO.
On April 1, the Board's Regional Director issued his
Decision and Direction of Election in which he found the
following to constitute an appropriate unit for purposes of
collective bargaining:
All shop department and parts department em-
ployees employed by the Respondent at its
Wenatchee, Washington, tractor store-shop, exclud-
ing janitors, salesmen, office clerical employees,
professional employees, guards, and supervisors as
defined in the Act.
While this unit finding was contrary to the Respond-
ent's contentions, then and now, it did not avail itself of
the appeal and review procedures provided by the
Board's Rules, Section 102 67 (b), and therefore no
relitigation of the issue was permitted in this present
proceeding. Such relitigation is expressly prohibited by
subparagraph (f) of the cited rule which provides:
Failure to request review shall preclude such parties
from relitigating, in any related subsequent unfair
labor practice proceeding, any issue which was, or
could have been, raised in the representation
proceeding.
Accordingly, I adopt the Regional Director's finding of
an appropriate unit as controlling herein.'
The election, based on the Regional Director's Deci-
sion and Direction of Election, was held on April 28, and
resulted in seven ballots for and seven against union
representation, with one challenged ballot being cast.
On May 2, the Union filed timely objections to conduct
affecting the result of the election and also filed the unfair
labor practice charge herein. On July 1, the Regional
Director issued a Supplemental Decision and Direction,
finding that the employee whose ballot was challenged
was eligible to vote in the election. Accordingly, the chal-
lenged ballot was opened and counted and on July 7, a
revised tally was served on the parties showing seven
votes for and eight votes against the Union. By a second
Supplemental Decision and Direction issued July 13, the
Regional Director found that certain of the Union's ob-
jections to conduct affecting the election raised substan-
tial issues, and directed a formal hearing on these issues.
Conclusions on the said objections, identical with certain
allegations of unfair labor practices litigated herein, will
follow consideration of the latter.
B. The Refusal to Bargain, Interference, Restraint, and
Coercion
I find that as of the date the Union made its recognition
demands, it held authorization cards signed by 9 of the 14
employees then in the unit found above to be appropriate
for purposes of collective bargaining. Some of these em-
ployees testified that on signing the cards they were told
by the union representative that the cards would be used
for obtaining an election, and this is verified in the
testimony of John Pollard, a union representative. He
testified on his statements to employees at the first or-
ganizational meeting concerning the authorization cards,
"I explained that they were two-fold cards, one for
authorization to the union for the purpose of asking for an
i As the Regional Director in his decision properly stated "
although a unit embracing the employees of all four of the Employer's
store-shops might be deemed appropriate ; a unit limited to the
Wenatchee store-shop is also appropriate under all the circumstances of
387
N.L.R.B. election plus an application blank for member-
ship into the Machinists organization."
On the entire testimony, I am not convinced that Pol-
lard told the employees that the sole purpose of the cards
was to obtain an election, or that they would reasonably
understand that that was their sole purpose. Those em-
ployees testifying, who signed the union cards, were
literate and intelligent ; they were afforded an opportunity
to read the cards before they signed them; and the cards
unequivocally authorized the Union to represent them for
purposes of collective bargaining. While holding there-
fore, that as of the date it requested recognition the Union
was the duly authorized representative of a majority of
employees in the appropriate unit , I am not convinced
that the General Counsel has proved that the Respondent
did not at that time have a good-faith doubt of the Union's
majority in an appropriate unit.
There was ample room for doubt on the appropriate-
ness of a unit limited to Wenatchee employees, when in
a previous Board-conducted representation election all
four operations of the Respondent had been lumped
together in a single bargaining unit. And in view of the
Union's refusal to show Shay its authorization cards or
even to advise him as to the number it claimed had signed
such cards, there was room for a reasonable doubt of the
Union's majority in the Wenatchee unit. The action of the
State agency in certifying that the Union had signed up a
majority of employees included in an eligible list prepared
by it, had no binding effect on the Company and was per-
suasive only to a limited degree because of the unilateral
nature of the agency's undertaking. In short, if the allega-
tion of a refusal to bargain is to be sustained, it must be on
the basis of antiunion conduct preceding the election of
such character and scope as to render the defense of a
good-faith doubt indefensible.
These matters, alleged to constitute unlawful inter-
ference, will be considered seriatum: (1) President
Webb's preelection talk to the employees; (2) Webb's al-
leged interrogation of an employee concerning his union
activities; (3) an incident involving an alleged discrimina-
tory denial of overtime work; (4) the granting of a wage
increase to employees at all of Respondent's Washington
operations except Wenatchee; (5) alleged coercive state-
ments of Respondent's supervisor, Robert F. Morrison.
(1) and (2). President Webb's preelection talk to the
Wenatchee employees, based on a written statement
which was received in evidence, to the extent that it was
based on that statement, was moderate in tone and
without any element of coerciveness. It expressed his
desire that his employees reject union representation and
his reasons, persuasive in tone , for his position in the
matter. Further, I am convinced that in his remarks he did
not stray substantially from the written text which doubt-
less had been prepared for him by his attorney, and do not
credit any testimony to the contrary. I do find, however,
on the basis of employee Sidney Marshall's testimony,
denied in part by Webb, that on or about February 10
Webb questioned Marshall about his interest in union
representation and why the employees wanted the Union,
why they felt they "needed it...." It is clear to me that
Marshall was not reasonably coerced by this interroga-
tion, and that it properly can be found violative of the Act
only if considered in the context of other unfair labor
practices, if then. Webb, an elderly mild-mannered man,
this case " I do not of course independently review the facts upon
which he based these conclusions, in order to determine whether my own
conclusion would have been the same
310-541 0 - 70 - 26
388 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
with doubtless a somewhat paternalistic attitude toward
his employees, would not, I think, inspire fear or exercise
undue influence by the type of interrogation he engaged
in with this one employee.
(3): As to the 8(a)(3) allegation of discriminatory denial
of overtime work to Wenatchee employees, I find that the
evidence considered in its totality does not support the al-
legation . The allegation is that Wenatchee employees
were denied Saturday work on February 5 because of
their union activities. Actually there was the usual over-
time work allowed on February 5 and the date on which
employees, or most of them, were denied overtime work
was Saturday, January 22. 1 do not consider the variance
between the date alleged and the date established by the
proof to be substantial enough to warrant dismissal of the
allegation on this account. While admittedly it was custo-
mary for the employees to be afforded Saturday work,
Respondent's witnesses, testifying in part from records,
established to my satisfaction that absence of sufficient
work to warrant employing a full crew on January 22, and
not union activities, accounted for the reduced work crew
on the Saturday in question.
The General Counsel produced only one witness to
testify in the matter, Earl Troy Stephens, and his
testimony that his foreman, Morrison, said that there
would be no Saturday work because of union activities,
if credited, together with the fact that Morrison had at-
tended a union meeting on January 18, would logically
tend to raise suspicions as to Respondent's motive in
denying overtime work to most of its employees on this
occasion , but admittedly, except for this one occasion
throughout the period of organizational activities leading
to the election of April 28, there was no departure from
the usual practice of affording employees Saturday work.
The suspicions may persist but cannot prevail over the
substantial and convincing showing of economic, rather
than antiunion motivation in this one instance of curtail-
ment of overtime work. The antiunion statement ascribed
to Foreman Morrison with respect to the curtailment, will
be alluded to below where various other 8(a)(1) state-
ments attributed to Morrison will be reviewed.
(4): On April 6, after an election to occur on April 28
had been ordered on the basis of the Respondent's and
the Union's respective petitions, the Respondent granted
a wage increase at its Yakima, Ellensburg, and Pasco,
Washington, stores, but not to employees of its
Wenatchee operation. The increase was substantial and
admittedly communication between the employees of the
four Washington stores was such that employees at
Wenatchee would promptly and generally learn of its ef-
fectuation at the other three stores. The testimony of
Respondent 's officials was that Respondent desired to ef-
fectuate the wage increase at all four of its operations but
withheld its effectuation at the Wenatchee plant on advice
of legal counsel that if granted to Wenatchee employees
during the pendency of the election, Respondent might be
accused of unlawfully influencing their choice of a bar-
gaining representative I have no doubt that the Respond-
ent acted on legal advice. This does not, however,
necessarily of itself negate the General Counsel's conten-
tion that the wage increase was granted at a time and in a
manner to constitute unlawful interference.
Certain factors obviously enter into our consideration
of the matter. Did this increase come at a time when
periodic increases were normally granted Respondent's
employees? The answer is_ no, for there is no record of
regular periodic increases granted by the Respondent
over a period of years. In fact there had been an interval
of some years since Respondent granted its employees a
general wage increase, and there is no established pattern
for the granting of such increases in which the April 6,
1966, increase will fit. Therefore cases in which a wage
increase made during a period of organizational activities
coincided with a pattern of similar periodic increases, are
inapposite. In fact, I do not understand that the Respond-
ent claims that the April 6 increases conformed to some
previously established pattern. Its defense is that the in-
creases were under consideration well before the Union
began its organizational drive, were acutely needed to
meet competition, were being formulated as early as
December 1965, and would in fact have been effectuated
at some earlier date at all the Washington stores except
for Respondent's fear of being charged with the commis-
sion of an unfair labor practice.
I agree with Respondent's attorney that the granting of
a wage increase during an organizational drive is not per
se an unfair labor practice. In other words, it does not
raise an unrebuttable presumption that it has an unlawful
motivation, or any presumption at all, for that matter,
since the burden is on the General Counsel to prove un-
lawful motivation and it would be a rare case, and cer-
tainly not the one we have here, in which the mere grant-
ing of the increase, without more, would raise an in-
fe-ence of unlawful motivation. Here, given the posture
of Respondent's open though lawful avowal of opposition
to the unionization of its employees, the lack of a pattern
of wage increases or any recent increases, and the grant-
ing of the increases at a time when they would have their
greatest impact on organizational activities, there might
well exist grounds for raising an inference of unlawful
motivation, if there were nothing more. However, there
are other considerations.
That the Respondent was uneasy and anxious about its
competitive position with respect to the retention of its
labor force well before there was any organizational ac-
tivity among Wenatchee employees is established
through competent and uncontradicted testimony, as well
as documentary evidence consisting of letters exchanged
between Respondent and a number of its competitors,
concerning the wage scales paid in various classifications
by the latter, letters dated for the most part in December
1965, letters which establish that the Respondent's wage
scale was in substantial part well below the scale main-
tained by certain of its competitors. There is no reason to
doubt testimony of its officers that it was encountering
difficulty in retaining competent laborers. In short, I must
find on the evidence that the Respondent was well on the
way toward reviewing its competitive position with
respect to wages and in formulating a system of classifica-
tions and increases before it had any knowledge of union
activities among its employees and before there was any
such activity. There is acceptable evidence that it had
been agreed among Respondent's officials as early as
December that an early wage increase was required if
Respondent was to maintain its competitive position with
respect to acquiring and keeping competent laborers,
though the details with respect to classifications and the
amount of the increases remained for final consideration
and adoption. The hiatus between the December con-
ferences on wages and classifications and the actual
granting of the increases at the three plants, has a partial
explanation in the fact that Webb, whose approval would
be required before the raises could be put into effect, was
WEBB TRACTOR & EQUIPMENT CO. 389
vacationing in Hawaii during a part of January, and a
further explanation in Respondent's concern about grant-
ing increases during an organizational drive.
When it is borne in mind that Respondent petitioned for
a bargaining unit consisting of the employees of all four of
its Washington operations, whereas the Union petitioned
for a unit composed of Wenatchee employees, it is not en-
tirely unreasonable that it would want to see the unit
question settled before it effectuated its wage and classifi-
cation program. It seems fairly obvious, I think, that had
it extended its wage increases to employees of the
Wenatchee shop, it would have been placed in no better
position with respect to charges of unlawfully influencing
their choice of a bargaining representative, and might
very well have found itself even more vulnerable to such
charges. In fact, about the only way I can see that it could
have avoided such charges altogether would have been to
withhold all increases until after the election of April 28,
but are we to say that it was required further to endanger
its competitive position with respect to labor by this addi-
tional delay in effectuating what it had already decided to
do before there was any organizational activity in its
Wenatchee plant? I think not.
There was a way Respondent could have rendered it-
self less vulnerable to the present charges, and that would
have been to adopt the course of action followed by the
employer in Standard Coil Products, Inc., 99 NLRB 899,
a case appropriately cited in the General Counsel's brief.
There the employer, faced with much the same situation
as that in which Respondent found itself here, on advice
of counsel deferred a wage increase in one of its opera-
tions where a bargaining election was pending while
granting it in its several other plants, but in doing so an-
nounced to the employees of the unit in which increases
were being deferred that as soon as the question concern-
ing representation was finally resolved, one way or the
other, that a comparable wage increase would be granted
to employees of that unit also. In its dismissal of the al-
legation, the Board commented, inter alias
... assuming that the natural consequence of the
postponement of the increase, standing alone, would
have been the discouragement of union activity, we
find that the Respondent, by notifying its employees
at the time of the reason for the deferment and by as-
suring them that they would receive a raise re-
gardless of the result of the forthcoming election, ef-
fectively abated such an effect.
I think the word deferred takes on considerable empha-
sis in this context. While we may well assume that the
granting of an increase to employees in the Wenatchee
unit was not permanently withheld but only deferred, it is
no more than an assumption and one that the employees
themselves, absent any word from their employer, might
find a little too hazardous for chancing their employer's
displeasure in voting for union representation. I have no
doubt that the withholding of the increase from the
Wenatchee employees had some impact on their decision
at the polls, a foreseeable result, but while I consider this
relevant to the matter of voiding the election, I am unable
to conclude that it establishes unlawful motivation such
as to constitute a violation of Section 8(a)(1) or (5) of the
Act. Plainly, the Respondent faced a dilemma in the
granting of a much needed and overdue wage increase,
and, acting on legal counsel as it did, I cannot say it was
unlawfully motivated in doing what it did. I am fully cog-
nizant, however, that there may be well-reasoned contra-
ry views.
(5): On the basis of the testimony of the General Coun-
sel's several witnesses in the matter, and despite Mor-
rison's general and specific denials, I am convinced and
find that Supervisor Morrison in numerous conversations
with the employees in the group which he supervised,
stated on occasion that (a) there would be layoffs, that
overtime would be reduced, that the employees would
lose a lot of their Saturday overtime, that they would lose
the free jackets and coveralls then supplizd by the Com-
pany, if the Union came in; (b) the Company would
reclassify some employees if there was a union contract
and some would be hurt by the reclassification; and (c)
Webb would never sign a union contract and the em-
ployees couldn't make him.2 I also find that Morrison
questioned employee Charles Clayson on how he would
vote in the election, and said Store Manager Shay wanted
to know. I do not credit Stephens' testimony that Mor-
rison toldhim, on the occasion of January 22, when most
of the employees were not allowed to work the customary
Saturday overtime, that this was because of their union
activities. Stephens doubtless believed that this action
was taken because of organizational activities, but I do
not believe that Morrison was brash enough or stupid
enough to make this linkage when in fact the curtailment
had an economic base and was not repeated. Morrison
was more than averagely intelligent.
Respondent argues that while Morrison admittedly was
a supervisor, he worked intimately with a small group of
employees, had lunch with them, and was in fact on a fel-
low-employee basis in his relations with them, and that
the antiunion remarks attributed to him, if made, were
made not in his capacity as a supervisor or as one pur-
porting to state facts but were mere speculations and
were also permissible because Morrison had been invited
to a union meeting on January 18, was permitted to
remain throughout the meeting by the union representa-
tive in charge, and was informed that the Union proposed
to bring him within the bargaining unit. Morrison did at-
tend the union meeting on invitation of an employee and
was permitted to remain throughout the meeting, and
reasonably understood that the Union would seek to in-
clude him in the bargaining unit. I think these facts,
together with his supervision over a relatively small group
of employees and regular participation in discussions
among the employees pro and con the Union occurring in
the plant, have to be taken into consideration in assessing
the coerciveness or lack of it in his antiunion remarks. I
have taken all such matters into consideration, including
what may very well have been his dual capacity inasmuch
as he had been invited to attend a union meeting and was
given to understand that if the Union were successful he
would have to accept union representation, but neverthe-
less had the status of a supervisor, admittedly with
authority to hire and fire. I am convinced that because of
his supervisory status, his threats of management action
adverse to employee interests and the successful prosecu-
tion of their union representation, would reasonably be
2 Respondent presented three employee witnesses , Sam B . Laskowsky , able to remember that the Union was mentioned in group conversations in
Lester Smith, and Ray Housden, who denied having heard Morrison which Momson participated, but their memory was singularly thin as to
make any of the 8(a)(1) type of statements attributed to him They were what Momson said, if anything, in that connection
390 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
construed by employees serving under him as threats
emanating from management and not the mere specula-
tions of a rank -and-file employee . Accordingly, I find that
his threats reviewed above and his interrogation of an em-
ployee on how he would vote in the election constituted
interference , restraint , and coercion attributable to
management , and that the Respondent thereby engaged
in unfair labor practices in violation of Section 8(a)(1) of
the Act.
While attributable to management in the sense of Sec-
tion 8 (a)(I), I am unable to find that Morrison ' s antiunion
statements and conduct constituted the Respondent in
violation of Section 8 (a)(5) of the Act. If this latter be
found , I think it will have to be based on a legal fiction
rather than an actual state of fact.
Morrison ' s position in the managerial hierarchy was
such that it can not reasonably be said that he would have
any say whatever in a managerial decision to bargain or
not to bargain with the Union , and I do not think he
would be consulted in such a matter , though once the
decision to bargain had been made he might well serve in
some minor advisory capacity. More important , I do not
find any established linkage between Morrison 's anti-
union statements and conduct with either his immediate
superior , Store Manager Shay, or any other officer of
management . Except for the one isolated incident in
which Webb interrogated an employee about his desire
for union representation , no threats or coercive state-
ments of any sort are attributed to any member of
management except Morrison , and as I have already in-
dicated I do not believe that Webb ' s interrogation of a
single employee , considered in its proper context, was
coercive. It would be Webb who would ultimately make
the decision on whether to recognize and bargain with the
Union , and I am convinced that Webb neither authorized
nor had any knowledge of the antiunion statements and
conduct of Morrison. I am further convinced that had this
matter been brought to his attention before the election,
and a proper request made that he make a public dis-
avowal of such statements and conduct , he in all proba-
bility would have complied with such a request.
I am aware that it may be argued on the basis of case
precedents that the circumstances of this case are such as
to require the application of the Bernel Foam doctrine
(146 NLRB 1277), but it appears to me that for a proper
application of this doctrine , the election interference must
be substantial and substantially violative of the Act, at-
tributable to management , and a reasonable inference
must lie that except for such interference the employees
would have voted for union representation.3
Furthermore , I do not believe that a strict application of
the doctrine is proper where a petitioning union permits
a course of antiunion threats of a minor supervisor to go
unchallenged over a period of months when a simple
request of management might well bring about their dis-
avowal and repudiation ,4 and dilutes the effect of the
coercive conduct by inviting its perpetrator to attend
union meetings and by giving him to understand that if
successful at the polls the Union will seek to bring him
into the bargaining unit. It is for all these reasons that I
must decline to find an 8(a)(5) violation , a prerequisite for
the application of the Bernel Foam doctrine.*
IV. FINDINGS AND RECOMMENDATIONS ON OBJECTIONS
TO THE CONDUCT OF THE ELECTION
The Board's Regional Director, in his review of the
Union's objections to conduct affecting election results,
found that three of the objections raised substantial issues
and directed a hearing thereon: (1) that the Employer
threatened employees with loss of work if the Union was
chosen to represent them; (2) threatened them with a
reduction in the work force if the Union was chosen to
represent them; and (3) raised wages at its shops other
than Wenatchee to influence the vote in the election.
In section III, above, I have found that a preponder-
ance of evidence supports objections (1) and (2) and that
while an antiunion motivation in the granting of a wage in-
crease was not proven, the increase, because of the
Respondent's failure to inform employees of its
Wenatchee shop that the increase was merely being
deferred as to them and would be granted after the elec-
tion regardless of the election's outcome, may reasonably
be said to have had an impact on election results. These
matters, inclusive or exclusive of the issue of wage in-
crease, are of such weight that I recommend that the elec-
tion results be voided and the election set aside.
I believe there is no inconsistency between this conclu-
sion and recommendation and my refusal to find that
Respondent in violation of Section 8(a)(5) of the Act, for
the obvious reason that the quantum and quality of proof
required is not the same in the two situations; one merely
clears the way for another election to be held under con-
ditions guaranteeing a free choice in the matter of union
representation, whereas the other requires bargaining on
the basis of authorization cards without the benefit of a
free election.
CONCLUSIONS OF LAW
1. The Respondent is an employer within the meaning
of Section 2(2) of the Act engaged in commerce within
the meaning of Section 2(6) and (7) of the Act.
2. The Union is a labor organization within the mean-
ing of Section 2(5) of the Act.
3. By interrogating in an unlawful manner its em-
ployees concerning their union views and activities; by
threatening them with reprisals if they choose union
representation; and by threatening them with a refusal to
sign a bargaining agreement in the event they choose
union representation, the Respondent interfered with,
restrained, and coerced its employees in violation of Sec-
tion 8(a)(1) of the Act.
4. The aforesaid unfair labor practices are unfair labor
practices affecting commerce within the meaning of Sec-
tion 2(6) and (7) of the Act.
5. The Respondent has not engaged in conduct viola-
tive of Section 8(a)(3) and 8(a)(5) of the Act.
[Recommended Order omitted from publication.]
3It was the undisputed testimony of employee Sidney Howard
Marshall that at a union meeting held before the election, Pollard, the
presiding union official, stated that if the Union lost the election it would
file unfair labor practice charges Marshall, a member of the Union's
negotiating committee, testified "To me this is not fair If they lose the
election, they should forget it right there," though whether this was
something he said, or what he thought is not clear It is alluded to merely
to show the anticipatory reliance on the Bernel Foam doctrine by the
union organizer , and one employee 's reaction to it which may or may not
have influenced his vote at the polls
4 Just because a union loses an election , it does not necessarily follow
that the loss is attributable to preelection antiunion conduct Obviously
where employees sign union authorization cards in a group, as most of
them did here, some, in the secrecy of the balloting, may vote differently
because of private convictions or purely persuasive influences such as
might flow, for instance, from Webb's wholly persuasive speech It is not
incumbent on us in our proper zeal for effectuating the policies of the Act,
to overlook considerations of logic and equity
*Erratum, March 29, 1967 Contrary to this statement a finding of an
8(a)(5) violation is not a prerequisite for the application of the Bernel
Foam doctrine Northwest Engineering Company, 148 NLRB 1136, 158
NLRB 624 Otherwise my findings and conclusions On n the case remain
the same