White Pine, Inc.

National Labor Relations Board - Board Decisions

Sep 26, 1974

213 N.L.R.B. 566 (N.L.R.B. 1974)

566 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
White Pine, Inc. and Graphic Arts International Union,
Local 9L, AFL-CIO and John McKeighan. Cases
7-CA-10521, 7-CA-10578, 7-CA-10612, and 7-
RC-11842
September 26, 1974
DECISION, ORDER, AND CERTIFICATION
OF REPRESENTATIVE
BY CHAIRMAN MILLER AND MEMBERS JENKINS AND
KENNEDY
On February 28, 1974, Administrative Law Judge
Henry L. Jalette issued the attached Decision in this
proceeding. Thereafter, Respondent filed exceptions
and a supporting brief.
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 au-
thority in this proceeding to a three-member panel.
The Board has considered the record and the at-
tached Decision in light of the exceptions and brief
and has decided to affirm the rulings, findings,' and
conclusions of the Administrative Law Judge to the
extent consistent herewith and to adopt his recom-
mended Order as modified herein.
1. The Administrative Law Judge found, and we
agree , that by interrogating employees about their
union activities and their reasons for seeking repre-
sentation, soliciting employee grievances, and threat-
ening employees with layoffs, loss of jobs, more
onerous working conditions, and the discontinuation
of employee privileges, and by threatening to blacklist
employees if they selected the Union as their repre-
sentative for purposes of collective bargaining, Re-
spondent violated Section 8(a)(1) of the Act?
2. The Administrative Law Judge found that, by
granting wage increases to employees Burkhart and
McKeighan for the purpose of interfering with their
free choice of a bargaining representative, Respon-
dent violated Section 8(a)(1) of the Act. We agree that
Burkhart's raise was violative of the Act for the rea-
sons set forth by the Administrative Law Judge. We
do not agree, however, with his further finding that
1 In finding that Respondent threatened the employees with more onerous
working conditions and with discontinuation of employee privileges, the
Administrative Law Judge found that an employee had been in the practice
of coming to work early and leaving early, but neglected to find that such
was the employee 's practice on Saturday only. This omission does not affect
our conclusion in regard to Respondent's threats , and we hereby correct the
Administrative Law Judge 's inadvertent error accordingly.
2 Chairman Miller disagrees that the statements of General Manager Ed-
wards to employee Cowles regarding an anonymous telephone call which
Edwards received amounted to an implied threat to blacklist employees if
they select the Union to represent them . In his view , Edwards' cryptic re-
marks do not support a finding of an 8 (a)(1) violation.
the raise granted McKeighan constituted a violation.
Such a violation was not alleged in the complaint.
Indeed, at the hearing the General Counsel limited
application of the evidence surrounding the raises to
that of Burkhart and specifically exempted the raises
of McKeighan and another employee from claims of
unlawfulness . In reliance on the General Counsel's
disclaimer , Respondent submitted no evidence to
show the reason for McKeighan's raises and the issue
was not fully litigated. In the interest of due process,
therefore, we do not find that Respondent violated the
Act by granting McKeighan a wage increase.
3. The Administrative Law Judge found that by
laying off employee McKeighan because of the union
activities of its employees Respondent violated Sec-
tion 8(a)(1) and (3). We do not agree.'
In finding that McKeighan's layoff constituted a
violation, the Administrative Law Judge did not hold
that there was no lack of work, but rather that the
workload factor was not shown to have been different
in and after July, at the time of the layoffs, than it was
before the appearance of the Union, that it had not
been Respondent's practice to lay off employees for
brief slack periods, and that Respondent' s statements
established an unlawful motive.
The record indicates, however, that, in fact,
Respondent's sales dropped from an average monthly
billing of $46,500 in the first half of the year to an
average of $33,000 in the third quarter, nearly a 30-
percent decrease in business. Moreover, the
Respondent's "past practice" toward McKeighan
during slack periods consisted of transfer to the bind-
ery on only one occasion; since then a part-time bind-
ery employee has become full time. Further, as to the
clean-up work McKeighan was allowed to do when
there was a lack of camera work, such substitute work
was the result of the Respondent's having changed
locations requiring several weeks to complete the
transition. The decline in business in the third quarter
of 1973, however, prevented alternative work assign-
ments for McKeighan. And, as the Administrative
Law Judge noted, during approximately the same pe-
riod as McKeighan's layoff, layoffs of several other
employees occurred, including the new full-time bind-
ery employee, yet these layoffs were not alleged to be
violative. Apparently, in order to avoid violating the
Act, Respondent would have had to give McKeighan
preferential treatment, taking already scarce work
from another employee and perhaps laying off some-
Member Jenkins would find that McKeighan was discriminatorily laid
off in violation of Sec . 8(a)(3). As the Administrative Law Judge found,
Respondent 's economic justification of the layoff was contradictory and
unsupported, and the credited testimony shows that Respondent attributed
the layoff to a recent change in employee attitude , that is , support for the
Union , which made it change its mind about providing substitute work
instead of laying off employees.
213 NLRB No. 77
WHITE PINE, INC
one else in his stead. We find that the circumstances
herein indicate an economic necessity for Mc-
Keighan's layoff and overcome any inference of dis-
criminatory motivation.
4. The Administrative Law Judge found, and we
agree, that Respondent's discharge of employee Jerry
Howe was not violative of the Act, and that Respon-
dent did not create the impression of surveillance of
the employees' union activities, convey the impression
that selection of the Union would be futile, or threat-
en plant closure if the employees selected the Union.
5. The Administrative Law Judge found that by
refusing to recognize and bargain with the Union,
Respondent has engaged in, and is engaging in, unfair
labor practices within the meaning of Section 8(a)(5)
and (1) of the Act. Accordingly, and because of the
other unfair labor practices found, the Administrative
Law Judge recommended a bargaining order under
the rationale of Gissel.a We do not agree.
The Board, in Steel-Fab, Inc.,' dispensed with the
injection of artificial and superfluous findings of
8(a)(5) violations as justification for issuance of a bar-
gaining order to remedy an employer's extensive
8(a)(1) misconduct.
Inasmuch as the Union here had not been certified
or recognized at the time of the Employer's refusal to
bargain on the basis of the Union's assertion of major-
ity status, and, therefore, as the Employer was not at
that time under any obligation to bargain with the
Union, we do not find that the Employer violated
Section 8(a)(5) and (1) of the Act by such refusal.
In Steel-Fab, the Board determined that in such
Gissel-type situations the issuance of a bargaining
order will henceforth be determined by examination
of the employer's 8(a)(1) conduct and its impact upon
the holding of a fair election. The Employer's conduct
which is found herein to have violated Section 8(a)(1)
was not so pervasive and did not constitute so egre-
gious misconduct as to have dissipated the Union's
majority status or to have in any manner prevented
the holding of a fair election. Indeed, the Union won
the election in spite of such misconduct. In such cir-
cumstances we, therefore, find that the issuance of a
bargaining order is not justified.
6. The Administrative Law Judge found, and we
agree, that David Pester and Edward Smith are super-
visors within the meaning of Section 2(11) of the Act.
Accordingly, we shall sustain the challenges of their
N L R B. v Gissel Packing Co, Inc, 395 U S 575 (1969)
5 212 NLRB No 41 (1974) For the reasons expressed in his dissent in
Steel-Fab, Member Jenkins would remedy Respondent ' s misconduct by a
Gissel bargaining order The misconduct here was extensive and pervasive,
leaving the employees in no doubt about Respondent's willingness to resort
to unlawful acts to avoid its collective -bargaining obligation under the stat-
ue, Respondent should likewise be left in no doubt, through the absence of
a bargaining order , that it must bargain with the Union
567
ballots and, as the Union has received a majority of
the valid ballots cast, we shall certify it as the repre-
sentative of the appropriate unit for purposes of col-
lective bargaining.6
AMENDED REMEDY
Having found that Respondent has engaged in un-
fair labor practices, we shall order it to cease and
desist therefrom and to take certain affirmative action
designed to effectuate the policies of the Act.
As the Union has received a majority of the valid
ballots cast we shall certify it as the representative of
the employees in the appropriate unit for the purposes
of collective bargaining.
AMENDED CONCLUSIONS OF LAW
Delete Conclusions of Law 6 and 7 from the Ad-
ministrative Law Judge's Decision, and renumber the
subsequent conclusion accordingly.
ORDER
Pursuant to Section 10(c) of the National Labor
Relations Act, as amended, the National Labor Rela-
tions Board adopts as its Order the recommended
Order of the Administrative Law Judge, as modified
below, and hereby orders that Respondent, White
Pine , Inc., Ann Arbor, Michigan, its officers, agents,
successors, and assigns, shall take the action set forth
in the said recommended Order, as so modified:
1. Delete paragraphs 1(h) and (i) and 2(a), (b), and
(c) and reletter the remaining paragraphs accordingly.
2. Substitute the attached notice for that of the
Administrative Law Judge.
IT IS FURTHER ORDERED that the Employer's objec-
tions to the election in Case 7-RC-11842 be, and they
hereby are, overruled in their entirety, and that the
challenges to the ballots of David Pester and Edward
Smith be, and they hereby are, sustained.
IT IS FURTHERED ORDERED that the allegations of the
complaint not hereinabove found to have been sup-
ported by the evidence be, and they hereby are, dis-
missed.
CERTIFICATION OF REPRESENTATIVE
It is hereby certified that a majority of the valid
6 inasmuch as the Union has won the election , we find it unnecessary to
consider its objections to the election , and, as the Employer 's exceptions raise
no material issues of fact or law which would warrant reversing the Adminis-
trative Law Judge 's finding that the Employer ' s objections to the election are
unsupported by record evidence and his recommendation that such objec-
tions be overruled , we hereby overrule the Employer's objections and shall
certify the Union as bargaining representative
568 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
ballots have been cast for Graphic Arts International Dated By
Union , Local 9L , AFL-CIO, and that , pursuant to
Section 9 (a) of the National Labor Relations Act, as
amended , the said labor organization is the exclusive
representative of all the employees in the unit found
appropriate herein for the purposes of collective bar-
gaining in respect to rates of pay, wages , hours of
employment , or other conditions of employment.
APPENDIX
NOTICE To EMPLOYEES
POSTED BY ORDER OF THE
NATIONAL LABOR RELATIONS BOARD
An Agency of the United States Government
After a trial in which both sides had the opportunity
to present their evidence, the National Labor Rela-
tions Board has found we violated the law and has
ordered us to post this notice.
WE WILL NOT question our employees about
their union activities or their reasons for wanting
union representation.
WE WILL NOT conduct employee meetings and
question you about your grievances or com-
plaints and impliedly promise to correct them.
WE WILL NOT make loans to employees or grant
them wage increases for the purpose of under-
mining the Union.
WE WILL NOT threaten employees with worse
working conditions and loss of employee privi-
leges if they select the Union to represent them.
WE WILL NOT threaten employees with layoffs
or loss of jobs if they select the Union to repre-
sent them.
WE WILL NOT threaten to blacklist employees
with other printing employers because of their
activities on behalf of the Union.
WE WILL NOT in any other manner interfere
with , restrain , or coerce employees in the exercise
of their right to self-organization , to form, join,
or assist labor organizations , to bargain collec-
tively through representatives of their own
choosing , and to engage in concerted activities
for the purpose of collective bargaining or other
mutual aid or protection as guaranteed by Sec-
tion 7 of the Act, or to refrain from any or all
such activities.
You are free to become and remain members of
Graphic Arts International Union , Local 9L, AFL-
CIO, or any other labor organization.
WHITE PINE, INC.
(Employer)
(Representative) (Title)
This is an official notice and must not be defaced
by anyone.
This notice must remain posted for 60 consecutive
days from the date of posting and must not be altered,
defaced, or covered by any other material.
Any questions concerning this notice or compli-
ance with its provisions may be directed to the
Board's Office, 500 Book Building, 1249 Washington
Boulevard, Detroit, Michigan 48226, Telephone 313-
226-3200.
DECISION
STATEMENT OF THE CASE
HENRY L. JALETTE, Administrative Law Judge: This is a
consolidated proceeding involving allegations that the
above-named Respondent engaged in unfair labor practices
in violation of Section 8(a)(1), (3), and (5) of the Act and
objections to conduct affecting the results of an election
held pursuant to a petition filed by the above-named Union
on May 30, 1973, in Case 7-RC-11842.1
The unfair labor practice allegations are set forth in a
consolidated complaint issued on September 25 and amend-
ed on October 30. The consolidated amended complaint
was issued and pursuant to charges filed by the Union in
Cases 7-CA-10521 and -10612 on August 7 and September
18, respectively, and a charge filed by John McKeighan in
Case 7-CA-10578 on August 31 and amended on Septem-
ber 26.
The election in Case 7-RC-11842 was conducted on July
27. According to the tally of ballots, four valid votes were
cast for the Union, two votes were cast against representa-
tion by the Union and there were two challenged ballots
which were determinative of the results of the election. After
the election both the Union and the Employer timely filed
objections to the election. After a preliminary investigation,
the Regional Director concluded that the challenges and the
objections of both the Employer and the Union raised sub-
stantial material factual issues which could best be resolved
after hearing thereon. Accordingly, the challenges and the
objections were consolidated for hearing with the unfair
labor practice allegations of the consolidated complaint.
On November 26, 27, and 28, hearing was held on these
consolidated matters in Ann Arbor, Michigan.
Upon the entire record, including my observation of the
witnesses , and after due consideration of the briefs filed by
Respondent and General Counsel,2 I make the following:
' Unless otherwise indicated, all dates in 1973.
2 General Counsel's brief was limited to one 8(a)(1) allegation, the suffi-
ciency of the demand for recognition and the necessity for a bargaining
order.
WHITE PINE, INC 569
FINDINGS OF FACT don't know about , but eventually it gets back to me any-
way." The following day he approached Gefre to tell him
I THE ALLEGED UNFAIR LABOR PRACTICES he understood now why Gefre had not elaborated on his
answer the day before
A. Introduction The second instance of interrogation involved Pressman
Respondent is a Michigan corporation with its principal
office and place of business in Ann Arbor, Michigan, where
it is engaged in the operation of a commercial printing
business providing high quality multicolor and lithographic
Services.' Overall supervision of the operations is the re-
sponsibility of General Manager William Edwards.
Dale Eisele is an admitted supervisor. In addition, Re-
spondent employs two individuals, Dave Pester and Ed
Smith, whose supervisory status is in issue. Insofar as the
appropriate unit is concerned, at the times relevant herein,
it consisted of eight employees. Respondent's operations
also include a bindery in which several employees are em-
ployed.
In late spring 1973, the Union was contacted by employ-
ees of Respondent seeking information about obtaining
union representation in the plant. As a result of these con-
tacts, a meeting was arranged between employees of Re-
spondent and Union Representative Gerald Deneau. This
meeting was held on May 29 and was attended by approxi-
mately six of Respondent employees, five of whom signed
authorization cards authorizing the Union to represent
them. Two other employees signed cards on May 30 and 31.
On the day following the meeting, the Union filed a peti-
tion in Case 7-RC-l 1842 and also sent a letter to Respon-
dent by certified mail advising it that it has been selected by
a majority of Respondent's lithographic production em-
ployees as their bargaining agent and requesting recogni-
tion. Respondent receives its mail at a post office box where
it obtained notification that certified mail was awaiting to
be picked up. Respondent ignored the notification, did not
pick up the Union's demand letter, and in due course the
letter was returned to the Union. Respondent received the
representation petition.
The complaint alleges that thereafter the Respondent en-
gaged in unfair labor practice conduct in violation of Sec-
tion 8(a)(1) and (3) of the Act, that it refused to recognize
and bargain with the Union in violation of Section 8(a)(5)
and (1) of the Act, and that a bargaining order is necessary
to effectuate the policies of the Act.
B. The Alleged Independent 8(a)(1) Conduct
1. The alleged interrogation
General Counsel adduced testimony of three instances of
interrogation which are alleged to have been unlawful. One
involved Pressman Donald Gefre who testified that on May
31 Foreman Dale Eisele asked him if he had ever heard
employee Dave Cowles mention the Union. Gefre replied
yes and said nothing else. Eisele told him "You know,
there's lots of sad things that go on in the shop that you guys
J Jurisdiction is not in issue The complaint alleges, the answer admits, and
I find, that Respondent meets the Board's $50,000 indirect outflow standard
for the assertion of jurisdiction
Jerry Howe who testified that about June 3 or 4 Eisele
approached him and mentioned that Respondent had re-
ceived a letter stating the Union was seeking recognition
and he wanted to know if Howe had anything to do with
it and if Howe had signed a card. Howe replied he had gone
along with the rest of them. Eisele then said, "Well, I'm
going to have a meeting to find out what this shit is going
on behind my back."
The third instance of interrogation involved cameraman
John McKeighan who testified that General Manager Ed-
wards asked him on one occasion why he was interested in
the Union. McKeighan had told him he had two reasons,
namely, a pay increase and he wanted a journeyman's card.
About July 25, Edwards showed McKeighan a copy of the
Union's constitution and bylaws and pointed out the provi-
sions there for classification as a journeyman. McKeighan
read them and expressed the opinion he met the require-
ments for such a classification and either Edwards or Eisele,
who had joined them, replied that he did not consider him
a journeyman. In this or another conversation on the same
subject, Edwards told McKeighan that under union condi-
tions since he was not a journeyman Edwards would not be
able to keep him on the job he was doing, and if the Union
gave him a journeyman's card Edwards would not be able
to pay him journeyman's wages for the amount of work he
did.
Eisele did not testify, so the conduct attributed to him
stands uncontradicted. As to the journeyman card matter,
Edwards did not essentially contradict McKeighan; rather,
he tried to give a different emphasis to the conversations
with McKeighan and in the process confirmed the sub-
stance of McKeighan's testimony. In any event, I credit
McKeighan's version.
In sum, the foregoing represents three instances of inter-
rogation, plus an implied threat of loss of job. Respondent
contends the interrogations were not coercive. I do not
agree and I find that each instance of interrogation had a
tendency to coerce employees and was violative of Section
8(a)(1) of the Act. There was no legitimate purpose for
either Eisele's or Edwards' inquiries; they were not accom-
panied by assurances there would be no reprisals, and the
interrogations were followed by other unfair labor practices.
Apart from these general considerations for finding the in-
terrogations unlawful, there are particular considerations
such as Eisele's expression of strong displeasure when in-
formed by Howe that he had signed a card. While the ex7
pression was not coercive in terms it conveyed clearly to
Howe the disfavor with which Eisele viewed the employees'
union activity. Eisele's return to Gefre the day following the
interrogation to tell him he knew why Gefre had not elabo-
rated on his answer indicated to Gefre the serious concern
Eisele had about the employees' union activity and that his
earlier inquiry had not been a casual one. In the case of
Edward's inquiry about McKeighan's reasons for wanting
union representation, Edwards' reply indicates that his in-
quiry was the predicate for an implied threat that McKeigh-
570 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
an would lose his job if the Union were selected because
McKeighan would not be accepted by Respondent as a
journeyman cameraman. Under these circumstances, the
conclusion is warranted that the interrogations had a ten-
dency to coerce employees and were violative of Section
8(a)(1) of the Act.
2. Alleged impression of surveillance
The complaint alleges that on two occasions Respondent
created the impression of surveillance of the union activities
of its employees. One instance is that described above by
Donald Gefre of Eisele's approach to him on the day follow-
ing his interrogation with the remark that he knew now why
Gefre had not wanted to elaborate on the subject he had
raised the day before.
As I indicated above, by this second approach to Gefre,
Eisele demonstrated to him that his interrogation the day
before had not been a casual inquiry. Nevertheless, I am not
persuaded that his remark on this occasion can be said to
convey the impression that Respondent was keeping the
employees' union activities under surveillance. In fact, in
this 2-day period there was no union activity, as Gefre must
have known, so that he could not have believed from
Eisele's remark that the employees' union activities had
been kept under surveillance. To the contrary, Gefre testi-
fied he assumed the RC petition had been received and he
implied that he understood this was what had prompted
Eisele's remark.
The other instance of alleged impression of surveillance
involved Cameraman John McKeighan who testified credi-
bly and without contradiction that on August 31 he called
the plant and notified Dale Eisele that he would be absent
that day because he had to go to the Board' s regional office
to give evidence. Eisele said he thought that McKeighan
had already given testimony to the Board. McKeighan said
he had, but more was required of him.
The record indicates that prior to this, McKeighan had
not told Eisele or anyone else in management that he had
talked to the Board, however, the record also indicates that
McKeighan's support of the Union was well known. Under
the circumstances, a casual remark such as Eisele's is insuf-
ficient to support a finding of a violation of the Act.
On. July 19, McKeighan was shown a copy of
Respondent's letter to Jerry Howe notifying him of his dis-
charge for absenteeism, and Edwards remarked "I'm sure
Mr. Deneau has warned everybody they shouldn't do any-
thing out of the ordinary with respect to attendance or
anything." This remark could easily create an impression of
surveillance, but it was not alleged in the complaint, nor
fully litigated.
3. The alleged solicitation of grievances
Shortly after the RC petition was filed, on or about June
1, 2, and 3, and on one or two occasions thereafter Respon-
dent held employee meetings on company time . Eisele was
present at all the meetings, but Edwards attended only the
first.
The testimony of General Counsel' s witnesses is in gener-
al accord that the first meeting started with Foreman Eisele NLRB 44, 46 (1971).
expressing resentment that the employees had sought out a
union to represent them. He conveyed this resentment by
remarking that he could not figure out why the- employees
would want a union and wondering where he had gone
wrong as a supervisor. He indicated he considered their
actions to be a reflection on him.
There is no testimony that Eisele expressly asked the
employees what their grievances were, but Edwards admit-
tedly did so, and the employees proceeded to complain
about wage rates, and the absence of fringe benefits such as
medical insurance and retirement, ventilation in work areas,
and the lack of communication between the employees and
management.
The testimony about Respondent's response to any of
these complaints or grievances is somewhat vague and gen-
eralized. More testimony was elicited about what the em-
ployees said than about what Eisele or Edwards said.
However, there is no testimony that either Eisele or Ed-
wards made any express promises of benefit in the course
of their remarks. To the contrary, Edwards explained
Respondent's financial condition and stated that he had
been considering a retirement plan, but that it was not eco-
nomically feasible for Respondent to provide such benefits
at that time.
The General Counsel nevertheless contends that the rec-
ord supports a finding that in this meeting Respondent
solicited employee grievances; that such solicitation did not
accord with past practice, but rather was attributable to the
employees' union activities; and, accordingly, that it consti-
tuted unlawful interference with employees in the exercise
of Section 7 rights. I agree.
In its brief, Respondent does not deal with the issue pre-
sented by the employee meetings in terms of "solicitation of
grievances." Rather, Respondent writes in terms of inquiries
as to why employees desired union representation and ar-
gues that such inquiries, unaccompanied by threats or
promises of benefit, are not violative of the Act. However,
inquiries about the employees' reasons for seeking union
representation and an invitation to them to voice their com-
plaints are analyzed by the Board and the Courts under the
rubric of solicitation of grievances. Under that rubric, the
rationale of the Board has been stated as follows:
Where, as here, an employer, who has not previously
had a practice of soliciting employee grievances or
complaints, adopts such a course when unions engage
in organizational campaigns seeking to represent em-
ployees, we think there is a compelling inference that
he is implicitly promising to correct those inequities he
discovers as a result of his inquiries and likewise urging
on his employees that the combined program of inquiry
and correction will make union representation unnec-
essary.4
Applying such rationale to this case, it is clear that Re-
spondent violated Section 8(a)(1) when it convened the em-
ployees to inquire about their reasons for seeking union
4 Reliance Electric Company, Madison Plant Mechanical Drives Division, 191
WHITE PINE, INC. 571
representation. The record indicates clearly that it was not
Respondent's practice to conduct such employee meetings
(as a matter of fact, this was one of the employee's com-
plaints) and that the meetings were precipitated by the filing
of the RC petition. It is true that no express promises of
benefit were made, but none was necessary. As the language
quoted above indicates, the promises are implied from the
circumstances.
Accordingly, I find that Respondent's conduct in solicit-
ing employee grievances under the circumstances described
was violative of Section 8(a)(1) of the Act.
Although it is not necessary to a finding of a violation, it
is worthy of note that once it learned what were the employ-
ees' grievances Respondent undertook to remedy some of
them. For example, as discussed below, Respondent grant-
ed wage increases to three employees and undertook to
correct a ventilation complaint.
4. Alleged threats
(a) More onerous working conditions
It appears from the uncontradicted testimony of employ-
ees that they are permitted to dunk pop and listen to their
radios while working . However , according to employees
David Cowles and McKeighan , at one of the employee
meetings Eisele told the employees that they might lose
those privileges if the Union came into the plant . Employee
Donald Gefre was one of the employees who owned a radio
and he testified that on one occasion before the election
Eisele remarked to him that it was not normal to have a
radio on while working and that when a union got in he
would find out that he could not play the radio anymore.
According to Gefre , he had been in the practice of com-
ing to work earlier than the posted starting time , working
through lunch , and leaving earlier than the posted quitting
time . This had been permitted by Respondent , but in a
conversation with Eisele during the preelection period
Gefre was told that his practice would likely stop when the
union came in.
I credit the testimony just described. The issue then is
whether Eisele's remarks constituted threats or were, in the
words of counsel, "only Mr. Eisele 's opinions ." In my judg-
ment , the remarks were implied threats of discontinuance
by Respondent of the privileges described if the employees
selected the Union to represent them . The Supreme Court
in the Gissel case 5 indicated the principles to be followed
in evaluating employer statements to employees:
Thus, an employer is free to communicate to his em-
ployees any of his general views about unionism or any
of his specific views about a particular union, so long
as the communications do not contain a 'threat of re-
prisal or force or promise of benefit.' He may even
make a prediction as to the precise effects he believes
unionization will have on his company. In such a case,
however, the prediction must be carefully phrased on
the basis of objective fact to convey an employer's
belief as to demonstrably probable consequences be-
yond his control or to convey a management decision
already arrived at to close the plant in case of unioniza-
tion. See Textile Workers v. Darlington Mfg. Co., 380
U.S. 263, 274, n. 20 (1965). If there is any implication
that an employer may or may not take action solely on
his own initiative for reasons unrelated to economic
necessities and known only to him the statement is no
longer a reasonable prediction based on available facts
but a threat of retaliation based on misrepresentation
and coercion, and as such without the protection of the
First Amendment. We therefore agree with the court
below that `conveyance of the employer's belief, even
though sincere, that umonization will or may result in
the closing of the plant is not a statement of fact unless,
which is most improbable, the eventuality of closing is
capable of proof.' 397 F. 2d 157, 160. As stated else-
where, an employer is free only to tell `what he reason-
ably believes will be the likely economic consequences
of unionization that are outside his control,' and not
'threats of economic reprisal to be taken solely on his
own volition.' N.L.R.B. v. River Togs, Inc., 382 F. 2d
198, 202 (C.A. 2d Cir. 1967).
Applying the foregoing rationale, I can give no other
construction to Eisele's remarks than that they were threats
of reprisals and not merely statements of opinion. If soft
drink and radio listening privileges were abolished, it would
clearly have to be on the Respondent's initiative. Respon-
dent has cited no instance where a union has objected to the
continuation of such privileges when it became bargaining
representative. True, a union may relinquish such privileges
in collective bargaining, but nowhere in the record is there
any indication that Eisele told the employees that he was
talking about the give-and-take of collective bargaining.
Rather, the clear implication was that Respondent would
act on its own initiative in reprisal against the employees for
selecting a union representative. Accordingly, I conclude
that Eisele's remarks were violative of Section 8(a)(1) of the
Act.
(b) Layoffs
It is not disputed that prior to the organizational cam-
paign , when work was slack in the pressroom or preparatory
department , employees were permitted to perform other
work , including work in the bindery to avoid any loss of
pay. In the representation case , the Regional Director had
excluded the bindery , from a unit of pressroom and prepa-
ratory department employees. According to employees
Cowles , Gefre , and Burkhart , at a meeting of employees
after the Direction of Election, Eisele adverted to the ex-
isting practice of transfers and intimated that employees in
the press and preparatory department unit would probably
not be permitted to work in the bindery when work in their
department was slack.
The considerations applicable to Eisele 's remarks about
more onerous working conditions discussed above are also
applicable here with some slight difference . Again , Respon-
dent asserts that Eisele 's remarks merely related to " legiti-
mate possibilities" and "potential problems involved in the
5 N L R B v Gissel Packing Co, Inc, 395 U S 575, 618 (1969) transferring of unit employees to the bindery." Respondent
572 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
argues that if it entered into a collective-bargaining agree-
ment which prohibited the transfer of unit employees to the
bindery, it would be required to abide by such agreement
and discontinue its past practice. None can find fault with
such an argument . One could add that while it would not
be customary for a union to seek the discontinuance of
employee privileges such as drinking soft drinks and listen-
ing to the radio while working, as pointed out above, one
could reasonably expect a union to seek to regulate transfers
of employees out of the unit. But, none of this has any real
bearing on the meaning of Respondent's remarks. Respon-
dent did not tell employees that its remarks were merely
explanatory of union practices; moreover, its remarks dis-
torted the situation. While a union might reasonably be
expected to seek to prohibit transfers out of the unit, it
would not normally be expected to object to transfers for
the benefit of employees to avoid loss of work when unit
work was slack . That was all that was involved here. In my
judgment, using unsupported references to union practices,
Respondent clearly implied to employees that if they select-
ed the Union to represent them it would discontinue the
practice of permitting employees to work in the bindery
when their own work was slack. Respondent thereby violat-
ed Section 8(a)(1) of the Act.
Respondent asserts that none of the employees took such
statements to be a threat of layoff if they voted for the
Union. In my judgment, a fair reading of the record refer-
ences cited by Respondent does not support such an asser-
tion. The answers of the employees were given to broad
general questions which asked whether Respondent had
expressly threatened employees. The threats which are in-
volved herein were implied. In any event, the test as to
whether conduct is coercive is not whether it succeeded, but
whether it is conduct which has a tendency to coerce.
Respondent's implied threats had such a tendency.
(c) Blacklisting
The complaint alleges that Respondent conveyed the im-
pression to its employees that they would be blacklisted by
other Ann Arbor printing employers because of their sup-
port of the Union. The allegation is based on the testimony
of former employee David Cowles. According to him, at the
first employee meeting Edwards said that if the Respondent
ended up having to fight the Union, it wouldn't be fighting
by itself, that there would probably be a rally of support
from the entire lithographic industry in Ann Arbor to pre-
vent any union activity in the area.
Sometime thereafter, Cowles had a discussion with Ed-
wards about whether unionization fit into Respondent's
scheme of operations. During the discussion, Edwards indi-
cated he had received an anonymous telephone call request-
ing the names of all the employees of Respondent.
According to Cowles, Edwards "led me to believe he felt
this call was perpetrated by other lithographers in the Ann
Arbor area" for the purpose of perhaps preventing
Respondent's employees from getting employment in that
telephone call in which he was asked for a list of employees,
but he denied that he implied that employees of White Pine
would be blackballed. According to Edwards, his conversa-
tion with Cowles had turned to a discussion of "after ef-
fects" of the organizational campaign and he mentioned the
anonymous telephone call. As he did not know who had
called, he asserted that he could not have implied that a list
of employees was being sought by other printers for the
purpose of blacklisting.
In my judgment, Edwards' own testimony indicates even
better than Cowles' testimony that he conveyed the impres-
sion to Cowles that employees would be blacklisted by other
printers because of their union activities. Thus, in a conver-
sation about the after effects of an organizational campaign
in which Cowles was apparently expressing concern "about
how everything wasn 't direct," Edwards admits to interject-
ing information about an anonymous telephone call asking
for a list of his employees. Unless Edwards intended to
suggest blacklisting, as Cowles inferred, why did he mention
the telephone call at all? In my judgment, given the context
of the conversation they were having, Edwards' reference to
the telephone call was intended as an implied threat of
blacklisting and was violative of Section 8(a)(1) of the Act.
(d) Futility of selection of the Union
The complaint alleges that on or about July 12 Edwards
conveyed the impression to its employees that selection of
the Union as bargaining representative would be an exercise
in futility. In oral argument , General Counsel conceded that
no proof of this allegation had been submitted, and while
testimony arguably supportive of this allegation was given
by employee McKeighan, he attributed the remark to Ei-
sele, rather than Edwards. As the complaint did not allege
that Eisele engaged in such conduct, and the matter was not
fully litigated, I shall recommend dismissal of the allegation.
(e) Plant closure
The complaint alleges that Eisele and Edwards threat-
ened employees with plant closure if the Union was selected
as the employees' bargaining representative. There is no
evidence to support such an allegation insofar as Eisele is
concerned. Where Edwards is concerned, the record indi-
cates that he showed a letter to McKeighan and Burkhart
which he had received from the Graphic Arts Association
of Michigan. The letter read as follows:
July 18, 1973
Mr. Bill Edwards
White Pine, Inc.
5204 Jackson Road
Ann Arbor, Michigan 48103
Dear Bill:
field in that area. Edwards told Cowles he did not give out Enclosed are copies of the by-laws for LPIU. They
the information requested. have probably been amended somewhat (particularly
Edwards admitted to such a conversation as described by the international's, after the merger), but you can get
Cowles and that he made a reference to an anonymous a fairly accurate idea of the structure.
WHITE PINE, INC. 573
Over the past three-four years, the following companies
have gone out of business more or less as a direct result
of the difficulty of doing business under GAIU con-
tracts:
9L (Lithographers): P. J. Uridge Company, Wetzel
Lithographic, Graphic Arts Process Company, Remco,
Detroit Press & Offset Co., Tri-Litho Plate, Colorepro,
and Hollerith-Willis (Not entirely due to Union, but it
helped).
12-P (Photoengravers): Newsplate Engraving,
Wayne Colorplate, Detroit Engraving, and VanAlstyne
Photoengraving.
Other Companies have folded in this area under other
union contracts, such as the Glengary Press (IPP&AU)
and Arnold-Powers (ITU), but the ratio seems to be
much higher under the pressures of GAIU Agreements.
Significantly, I haven't heard of a single open shop
going out of business recently, although there could be
some I don't know about.
According to McKeighan, when Edwards tendered the
letter to him he indicated that it was a list of union shops
that had closed. McKeighan glanced at the letter and noted
that it listed 8 or 10 shops, but he did not bother to read the
letter and asked if any nonunion shops had closed during
the same period. Edwards replied by pointing out the last
paragraph of the letter.
Burkhart made a similar observation about nonunion
shops and, according to Edwards' uncontradicted testimo-
ny, he told her he would check the matter out and later
returned to her and gave her the names of three nonunion
shops which had closed.
Edwards' reason for showing the list to McKeighan and
Burkhart was that he had had discussions with them about
the Union in which they had assured him it was not the
Union's intention to put him out of business and he had
replied that he did not think it was the Union's intention but
he thought it was a possibility that could happen. He later
obtained the letter and showed it to them.
In analyzing this matter, one must look again to the words
of the Court in Gissel quoted above, and one must ask if in
this matter Edwards was implying in any way that he would
close the plant "on his own initiative for reasons unrelated
to economic necessities ." I do not believe a finding to such
effect is warranted here. The entire tenor of Edwards' re-
marks was one of economic necessities arising out of higher
costs . It is noteworthy that the letter he showed the employ-
ees did not attribute the plant closings there enumerated to
the selection of union representation, but linked the plant
closings to union contracts, and, by implication, the higher
costs of operation under union contracts. In short, Respon-
dent did not imply selection of the Union would ipso facto
result in plant closure .6 Accordingly, I shall recommend
dismissal of this allegation.
According to McKeighan, at the first employee meeting
there was a discussion of the pros and cons of a union shop
and either Edwards or salesman Stinedurf said the shop was
too small and they would have to raise their bids and would
not be able to compete effectively with other printers in the
Ann Arbor area. He said they would lose customers and a
lot of business if the Union was brought in. It is not clear
whether General Counsel is contending that this remark
was an implied threat, but, if so, I find the remark was not
an implied threat. The remark explicitly related to increased
costs of printing that would be occasioned by an increase
in employee rates of pay. Respondent had not received any
demands from the Union and did not tender any proof of
rates of pay under union contracts as compared to its pre-
sent rates , but it is evident that the employees believed
union rates were higher because this was one of their rea-
sons for seeking union representation. In context, then, the
remarks in question were not threats of retaliation but mere-
ly an expression of possible economic consequences which
the employees would realize was based on objective eco-
nomic factors.
5. Wage increases
The complaint alleges that on or about July 2, Respon-
dent granted a wage increase to an employee in order to
dissuade its employees from supporting the Union. The
record indicates that during the preelection period three
unit employees received raises : Diane Burkhart, John Me-
Keighan, and John Rose. Only the raise to Burkhart is
alleged to have been unlawful.
Burkhart was employed in the preparation department
and had been working for Respondent and its predecessor
since September 1971. Her starting rate of pay was $3.35 per
hour and she had received a 10-cents-per-hour increase on
February 28, 1972. She did not receive another until July 2,
1973. In the first week of July, Burkhart learned she was
getting a raise when she was called to Edwards' office and
told she was receiving a 25-cent-per-hour increase .7 Ed-
wards told her that the Company had been planning to give
her a raise for some time but they didn't know if they could
do so because of the Union. He said he had consulted with
his attorneys and they had indicated he could give her a
raise at this time. He told her the raise was in no way
intended to influence her vote.
After being told about the raise, Burkhart engaged in a
conversation with Edwards that lasted approximately an
hour. Neither Burkhart nor Edwards indicated who initiat-
ed the conversation. According to Burkhart's uncontradict-
ed testimony, they discussed ventilation in Burkhart's work
area (Burkhart had complained about the lack of ventilation
at the first employee meeting) and Edwards told her he had
ordered a fan. In addition they discussed the Company's
financial condition. Edwards explained that a lot of people
t Both Burkhart and Edwards place the conversation held on this occasion
as early July. However, it is undisputed that in this conversation Edwards
showed Burkhart a list of unionized companies which have gone out of
business, as discussed earlier . The list which is part of the record is a letter
dated July 18, which suggests the conversation about the raise occurred on
or after that date. But this could not be the case. This suggests Edwards had
two lists. The indeterminate state of the record on this point is not entirely
satisfactory, but it is no bar to a decision and I accept as a basis for decision
6 Compare Marathon LeTourneau Company, Gulf Marine Division of Mara- on the wage -increase issue the testimony that the conversation occurred in
than Manufacturing Company, 208 NLRB 213 (1974). early July.
574 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
owed the Company money and for this, and apparently
other reasons, the Company had to stagger raises.
The issue presented by Burkhart's wage increase involves
not a resolution of disputed facts, but rather a determina-
tion of Respondent's motive in granting a wage increase at
the time it did. If Respondent granted the wage increase for
the purpose of influencing Burkhart in the scheduled elec-
tion, then it violated Section 8(a)(1) of the Act. N.L.R.B. v.
Exchange Parts Co., 375 U.S. 405 (1964).
Respondent contends that its purpose was not to influ-
ence the election, citing Burkhart's own testimony that Ed-
wards disavowed such a purpose when he notified her of the
increase , but rather that the raise was in conformity with a
policy of staggering wage increases to minimize the impact
on the Company of granting raises to many employees at
the same time . I am not persuaded by Respondent 's argu-
ments which I conclude are not supported by the record.
The evidence regarding Respondent's wage-increase poli-
cy consists of Edwards' testimony plus General Counsel's
Exhibit 9, a list of employees reflecting dates of hire and
wage increases. According to Edwards, Respondent nor-
mally gave raises to all deserving employees in January and
February of each year, but in the spring of 1973 he decided
to reduce the economic shock on the Company. At first
blush, this testimony seems plausible, but upon analysis one
concludes that it is no explanation at all of the reason for
giving Burkhart a raise in July just before the election. Thus,
his explanation does not explain why Burkhart did not get
a raise in the January-February 1973 period; after all, Ed-
wards' policy decision was not made until the spring of
1973. Nor does his policy decision indicate what criteria
would be used in deciding who should get raises on a stag-
gered basis and when. For example, the only individual to
receive a raise in March was Edward Smith, whose emp-
ployee status is disputed, and his pay change was from a
weekly rate to a salary basis. In April, David Pester, another
individual whose employee status is in dispute, received a
raise in salary, although he had received a raise in January
1973; David Cowles received a raise after being employed
only 4 months ; Donald Gefre, whose employment history
paralleled Burkhart's, received a raise . In May, Peter With-
ey received a raise, although he had received his preceding
raise in July, whereas Burkhart had not received a raise
since February 1972; John McKeighan received a raise,
although he had received a raise in January 1973. In June,
only one employee, John Rose, received a raise and he was
a new hire. Such wage data certainly does not indicate that
there was either planning or pattern in Respondent's grant-
ing of wage increases. Edwards admitted as much when he
said that Burkhart's wage increase ". . . was planned in the
sense that she was expecting it" and that he had thought
about giving Buikhart a raise periodically between Febru-
ary and the time he actually gave it to her. But he never did
say what prompted him to give her the raise when he did.8
Apart from the timing of the raise, several circumstances
warrant the inference that Edwards' motive was to influence
the outcome of the election. First, there is the fact that pay
8 The fact that Edwards cleared the raise with his attorneys is no defense
where it appears that the raise was not in fact planned or in accordance with
past practice.
rates were mentioned as one of the reasons employees were
seeking union representation. Secondly, after Edwards told
Burkhart of the raise, a conversation followed in which he
told her he was remedying another of her grievances (venti-
lation in her work area). Thirdly, he brought to her attention
the plant closure of organized printing companies. In short,
the entire episode was devoted to a union discussion. Under
the circumstances, Edwards' disavowal of a purpose to in-
fluence Burkhart in the scheduled election could not have
been viewed seriously by Burkhart.
In addition to the foregoing, there is the fact that in the
same preelection period, Respondent granted a wage in-
crease to John McKeighan. The wage increase was effective
July 16, 1973, but McKeighan did not learn of it, according
to his uncontradicted testimony, until the day of the elec-
tion. The only explanation given for this raise was that,
when hired, McKeighan had been promised wage increases
every 3 months and Respondent had been late in granting
him the first and second and McKeighan had been com-
plaining about his pay rate. This does not explain the timing
of the wage increase. The incontrovertible fact is that before
the union activity Respondent had not granted wage in-
creases to McKeighan according to any schedule and that
it was only after the petition was filed and just prior to the
election that it belatedly decided to bring his pay rate up to
date. Under the circumstances, the timing outweighs Ed-
wards' explanation. Although the complaint did not allege
that the wage increase given to McKeighan was violative of
the Act, the charge in Case 7-CA-10521 alleged that unlaw-
ful pay raises were granted and the issue was fully litigated.
Accordingly, I find that the wage increase given to Mc-
Keighan was violative of Section 8(a)(1) of the Act.'
In short, for the reasons detailed above, plus the fact that
during the same period of time Respondent had engaged in
other unfair labor practices as found herein, an inference is
warranted that the raises to Burkhart and McKeighan were
granted to induce them not to support the Union and Re-
spondent thereby violated Section 8(a)(1) of the Act.
C. Alleged 8(a)(3) Conduct
1. The layoffs of McKeighan
John McKeighan was employed by Respondent as a
cameraman and had been working for Respondent since
September 11, 1972. Prior to July 31, he had never been laid
off. On July 30, he was notified he was being laid off for the
next day because of lack of work and that he was to call the
next day about work. Beginning with July 31, McKeighan
thereafter suffered loss of work for the asserted reason of
lack of work on July 31, August 1, 9, 10, 16, and October
10, 11, 15, and 16. The complaint alleges that these layoffs
were motivated by the employees' union activities and in
furtherance of threats of layoffs made at the outset of the
organizational campaign. Respondent contends the layoffs
were attributable to a lack of work. I conclude that the
v Frito Company, Western Division v. N. L.R.B., 330 F.2d 458 (C.A. 9, 1964);
N. L. R. B. v. Dennison Manufacturing Co., 419 F.2d 1080 (C.A. 1, 1969); Lac-
lede Gas Co. v. N.L.R.B., 421 F.2d 610 (C.A. 8, 1970); Independent Metal
Workers Union, Local No. I (Hughes Tool Company), 147 NLRB 1573, 1576
(1964).
WHITE PINE, INC.
layoffs were discriminatorily motivated.
According to undisputed testimony, prior to the union
campaign, when employees ran out of work in their special-
ties, they were permitted to do other work to avoid any loss
of wages. Although Respondent sought to minimize the
scope of this practice, it really never denied that the practice
existed Convincing evidence of the existence of the practice
is found in the uncontradicted testimony of the employees
set forth earlier that at the employee meeting convened after
the filing of the representation petition Eisele told the em-
ployees, in effect, that if a union was selected as bargaining
representative they would no longer be permitted to do
other work to avoid a layoff. As McKeighan put it, "one of
the big points Dale made was no one had ever been laid
off."
However, during the preelection period, layoffs began to
occur. Thus, Barbara Eisele was laid off on June 25 and 26
and July 25; Patricia Dunham was laid off on July 12, 26,
and 27. After the election, Eisele and Dunham suffered
additional layoffs and McKeighan and Burkhart began to
experience layoffs.
Respondent contends that McKeighan's layoffs were at-
tributable to a lack of work. In this connection, it notes that
other employees, whose layoffs are not alleged to have been
unlawful, were laid off during the same period as McKeigh-
an. As to the economic necessity for the layoffs, Respondent
adverts to testimony by Edwards that near the end of July
work became extremely slow.
Respondent does not advert to its past practice of permit-
ting unit employees to work in the bindery except by indi-
rection; that is, Respondent points to the fact that in June
part-time bindery employee Patricia Dunham became a
full-time employee and Respondent purchased new ma-
chinery which reduced the need for labor. By reason of
these two changes, it is argued, there was no work to transfer
McKeighan to.
In my judgment, none of Respondent' s assertions is suffi-
cient to overcome the evidence of discriminatory motiva-
tion. As to the new machinery in the bindery, according to
McKeighan, whom I credit, it was not received until a
month to a month and half after the election (that is, late
August or early September), and the layoffs of McKeighan
had begun on the second workday after the election. As to
Patricia Dunham, Respondent did not explain why it con-
verted her from a part-time employee to a full-time employ-
ee when business was allegedly declining. Apart from these
considerations, Respondent's past practice of permitting
employees whose work was slack to do other work was not
limited to bindery work. Rather, as McKeighan testified, he
did such work as cleanup, opaqueing, or strapping.
As to Respondent's assertion of economic necessity, the
record is far from persuasive and consists of Edwards' testi-
mony that near the end of July work became extremely
slow. This is a very vague term and significantly Respon-
dent offered no sales figures of any kind to indicate a de-
cline in sales.
In the final analysis, the issue does not turn upon whether
or not there was a lack of work for McKeighan on the days
he was laid off, rather, it turns on Respondent's change in
prior practice and the reasons therefor. Respondent did not
really give an explanation, and I conclude the explanation
575
lies in the threats of Eisele at the employee meetings in
which he predicted the very changes here in question if the
employees selected the Union Significantly, McKeighan's
layoff occurred on the second workday after an election in
which a majority had voted for union representation, if it
developed that the challenges to two ballots were sustained.
Such timing is strongly supportive of a finding of unlawful
motivation when coupled with Eisele's earlier threats.
In addition, on or about August 15, McKeighan had a
conversation with Edwards about his being laid off the next
day. McKeighan claimed it was motivated by union activi-
ties and Edwards assured him the only reason he was being
laid off was an economic reason. McKeighan reminded him
that in the past when there was no camera work, he was
allowed to do other things. Edwards replied that in the past
he felt it was his obligation to guarantee everybody 40 hours
of work per week, but there had recently been a change in
employee attitude and he no longer felt obliged to do that.
Edwards admitted having a conversation with McKeigh-
an such as McKeighan described, and he admitted that he
explained to McKeighan that circumstances were different
now, but by this he meant economic circumstances. At best,
his testimony contains an implicit denial of the remarks
attributed to him by McKeighan although he had every
opportunity to make an unequivocal denial. I credit Mc-
Keighan's version of Edwards' remarks and that version,
coupled with the earlier threats by Eisele of a change in
practice, supports a finding, which I make, that Mc-
Keighan's layoffs were motivated by the fact that the em-
ployees had sought union representation. In making this
finding, I am not holding that there was no lack of work;
I am merely holding that the workload factor was not shown
to have been different in and after July than it was before
the appearance of the Union, that it had not been
Respondent's practice to lay off employees for brief slack
periods, and that Respondent's own statements establish an
unlawful motive.
The record indicates that Diane Burkhart suffered layoffs
on July 31 and August 1, which are similar to those suffered
by McKeighan, and the considerations which warrant a
finding of discrimination in McKeighan's case would ap-
pear to apply with equal force to Burkhart. However, the
complaint did not allege that her layoffs were unlawful for
the stated reason that no charge had been filed on her
behalf. It is clear no charge was filed on her behalf and,
from my examination of the charges filed, none is sufficient
to support a finding of a violation on her behalf even though
the facts surrounding her layoffs appear to me to have been
fully litigated.
2. The discharge of Jerry Howe
The facts surrounding the discharge of Jerry Howe are
essentially undisputed. He was employed by Respondent as
a pressman on December 4, 1972. Thereafter, he had a poor
attendance record, including a 10-day absence from June 20
to July 3. On July 3, Manager Edwards spoke to Howe
about his absenteeism. Howe had been ill and hospitalized,
which explained part of his absence, but he had been dis-
charged from the hospital on Friday, June 29, and had not
reported for work on July 2 and 3. Howe told Edwards he
576 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
had personal problems, admitted that his attendance posed
a problem for Respondent, and promised to improve. Ed-
wards warned him that the Company could not continue to
employ him if he didn't straighten up. Despite that, Howe
was absent on July 11 and when Edwards confronted him
about it, Howe again said he had personal problems. Ed-
wards reminded him of his earlier remarks and assured
Howe that he had been in earnest and that he regarded this
last absence as contrary to Howe's promise.
On Wednesday, July 18, Howe did not report for work
and did not call to report he would be absent in accordance
with company policy. Respondent had a rush job to do that
day and it was not completed because of Howe's absence.
The next day, Eisele reported to Edwards that Howe had
called him the night before to explain his absence. Eisele
explained that he had told Howe of the unfinished job, but
Howe said he couldn't come in and that he would not be in
until the following Monday. Edwards thereupon decided to
discharge Howe. That day, July 19, a discharge letter was
mailed to Howe. On July 20, Howe appeared at the plant
to collect his pay, unknowing yet of his discharge, and was
given a copy of the discharge letter. He did not protest the
action, nor claim that Eisele had approved his decision to
remain absent until the following Monday.
The facts set forth above are based on Edwards' testimo-
ny which I credit. It is essentially uncontradicted, consistent
with and more detailed than Howe's testimony. Edwards'
testimony contained hearsay regarding statements made to
him by Foreman Eisele to which there was no objection; in
any event, the hearsay testimony was essentially consistent
with Howe's own testimony.
According to General Counsel, in view of Howe's known
union sentiments, Respondent's animus against the Union
as indicated by its other unfair labor practices, the timing
of Howe's discharge (1 week before the election), and
Respondent's action in showing his discharge letter to other
employees as described below, a finding is warranted that
his discharge was attributable to his support of the Union
and not to his absenteeism. While the issue is hardly free
from doubt, I am not persuaded that the evidence is suffi-
cient to support a finding that Howe's discharge was unlaw-
fully motivated.
Insofar as Howe's union sentiments are concerned,
Howe's uncontradicted testimony indicates that Respon-
dent was aware of his prounion views. Thus, he signed a
union card on May 31 and about 2 days later, as described
above, he was interrogated by Eisele and he admitted that
he had signed a card. In addition, on or about July 7 or 14,
Howe chanced to be passing by the plant on a Saturday, saw
General Manager Edwards on the parking lot, stopped to
chat with him, and told him in the course of their conversa-
tion that despite the loan Edwards had made him some 2
weeks earlier, as described below, he still intended to vote
for the Union in the forthcoming election.
In addition to company knowledge, General Counsel also
established union animus by the other unfair labor practices
found herein. However, while knowledge and animus are
elements of proof of a discriminatory discharge, their pres-
ence does not compel a finding that a discharge, asserted to
be for cause, is in fact unlawfully motivated. In every case,
the trier of the facts must determine if asserted cause for
discharge in fact existed, and, if so, whether there are cir-
cumstances which indicate that the real reason was other
than the cause given for the discharge.
There is no question that there was cause for discharge in
Howe's case . He had a bad attendance record, he had been
warned, and he persisted in being absent. The reason he was
absent is immaterial, what mattered to Respondent was the
fact that he was absent. That his absences were due to
"personal problems" would not be reason for Respondent
to be more sympathetic. In any event, General Counsel has
not shown that Howe was treated disparately from other
employees.
Apart from Respondent's union animus are there other
circumstances which warrant a finding that the discharge
was discriminatorily motivated? The timing of the discharge
is not such a circumstance. While it occurred 1 week before
the election, the timing was dictated by Howe's own con-
duct, his absenteeism.
The only remaining circumstance is Foreman Eisele's cir-
culation of Howe's discharge letter among the employees.
As to this, the record indicates that on July 19 Eisele showed
the letter discharging Howe to several employees and in
discussing it with them he gave the same reason for dis-
charge as appeared in the letter.1°
In showing the letter to Burkhart, Eisele gave her a cryptic
warning which she construed as a warning of discharge
because of her tardiness which confused her because she
had recently received a raise. As indicated earlier when
Eisele showed the letter to McKeighan, Edwards was pre-
sent and made a remark about warnings by the union repre-
sentative to the employees to watch their attendance. From
this, it would appear that the letter was shown to employees
to cause them to believe that Howe would not have been
discharged had the Union not been in the picture and there-
by discourage them from voting for the Union. It does not
necessarily follow, however, that Respondent was motivat-
ed by union considerations in making the discharge deci-
sion. In the final analysis, Howe's absence on July 18 was
shown by Respondent to have been a serious matter endan-
gering its customer relations and a possible loss of future
business. Given Howe's past attendance record, plus what
10 The letter read as follows:
Dear Mr. Howe,
Since your employment by White Pine Inc. we have found your
attendance to be the poorest of any employee on record. In fact, your
attendance record has become progressively worse.
Wednesday, July 18, you did not appear for work and did not call.
Our company policy has always been that if you are going to be late or
absent you must call in and explain your situation.
Thursday, July 19, 1 had a conversation with Mr. Eisele, your supervi-
sor. In this conversation Mr. Eisele stated that you told him over the
telephone Wednesday night that you would return to work Monday,
July 23 or draw unemployment compensation . Mr. Eisele also said that
he has repeatedly warned you about your attendance putting your em-
ployment in jeopardy.
We feel that we have been extremely lenient with you concerning your
attendance, but find it impossible to run our business with you as a
pressman. Therefore, as of the date of this letter (July 19, 1973) we are
terminating you as an employee.
Sincerely,
White Pine Inc.
WHITE PINE, INC.
appeared to Respondent as an indifference on Howe's part
to his continued employment, I am not persuaded that the
showing of the discharge letter to employees is sufficient to
tip the scales in favor of a finding that Howe's discharge was
unlawfully motivated. Accordingly, I shall recommend dis-
missal of this allegation of the complaint.
11 THE ALLEGED REFUSAL TO BARGAIN
A. Preliminary Considerations
Whether or not Respondent refused to bargain with the
Union in violation of Section 8(a)(5) and (1) of the Act, as
alleged herein, depends on the disposition of several mat-
ters. Those elements of a violation which are not open to
question will be disposed of first.
The unit alleged to be appropriate is a unit of: All full-
time and regular part-time lithographic production employ-
ees, including pressmen, pressmen helpers, duplicator oper-
ators, plate makers, strippers, and cameramen employed by
the Employer at its 5204 Jackson Road, Ann Arbor, Michi-
gan, location; but excluding bindery employees, collating
employees, inserters, office clerical employees and guards
and supervisors as defined in the Act. This is the unit found
appropriate by the Board in Case 7-RC-11842. While Re-
spondent denied in its answer that such unit was appropn-
ate, it is precluded from challenging that determination in
this proceeding absent a claim of newly discovered or previ-
ously unavailable evidence, a claim not made herein. Ac-
cordingly, I deem myself bound by the unit determination
made in Case 7-RC-11842 and find the unit described
above an appropriate unit for purposes of collective bar-
gaining under Section 9(b) of the Act.
As to the Union's majority status, the parties stipulated
that at all times relevant herein, the unit consisted of eight
employees, plus Pester and Smith, whose supervisory status
is in issue. Seven of these had signed valid authorization
cards by May 31 (Jerry Howe, John Rose, Donald Gefre,
Peter Withey, David Cowles, John McKeighan, and Diane
Burkhart). Accordingly, I find that at all times relevant
herein, a majority of Respondent's employees in the unit
herein found appropriate had designated the Union to rep-
resent them for purposes of collective bargaining.
It is fundamental in order to find an 8(a)(5) violation that
the Union have demanded recognition and bargaining. Re-
spondent contends no demand was made that is legally
effective to support an 8(a)(5) finding, because the demand
made herein was made by certified mail and Respondent
never received it. Respondent never received it because it
ignored the notification from postal authorities that a certi-
fied letter awaited pickup. The Board has indicated that it
will not permit an employer to evade its obligation to bar-
gain by cleverly avoiding service upon it of a demand for
recognition." According to Respondent, it cannot be found
to have evaded service of the demand because it did not
know the contents of the certified mail that awaited it, or
even from whom, and, according to Martha Edwards, the
one to whom the letter was addressed and a stockholder and
577
wife of Manager Edwards, the letter was left unclaimed
because she believed it might be from her former husband.
I do not credit her explanation.
On the same day, the Union sent the letter demanding
recognition, it filed the petition in Case 7-RC-11842 which
Respondent received in due course. Thus, Respondent was
on notice of the Union's interest in its employees. In addi-
tion, item 7a of the petition form recited that request for
recognition as bargaining representative had been made on
Respondent on May 30. Under the circumstances, it is a
reasonable inference that Respondent suspected that the
certified letter awaiting it at the post office was the Union's
demand letter, and in view of the fact that Respondent
immediately embarked on a course of unfair labor practice
conduct, the further inference is warranted that Respondent
did not claim the certified letter to forestall any obligation
to bargain. I so find and I conclude that the Union made
an effective demand for recognition in an appropriate unit.
It is undisputed that Respondent has consistently refused
to recognize the Union
Even though the Union had been validly designated by
a majority of Respondent's employees, Respondent's refus-
al to recognize and bargain with it, without more, is insuffi-
cient basis for finding a violation of Section 8(a)(5) of the
Act. In addition to the refusal, it must be shown that Re-
spondent engaged in unfair labor practices sufficiently seri-
ous or pervasive that the possibility of erasing the effects of
such practices and insuring a fair election by the use of
traditional remedies, though present, is slight and employee
sentiment once expressed through cards would, on balance,
be better protected by a bargaining order. This is part of the
Gissel prmciple.12
Before the principle is applied, however, consideration
must be given to the representation case, if one is pending.
Normally, this means that if an election were held that
objections to the election have been timely filed by the
Union and have been found meritorious so that the election
results are set aside. Irving Air Chute Company, Inc., Mara-
thon Division, 149 NLRB 627 (1964). Timely objections were
filed by the Union in this case and have been consolidated
with this unfair labor practice proceeding for determina-
tion. If I were to find merit to the objections, I would then
recommend that the election be set aside and proceed to
determine whether a bargaining order or a second election
is an appropriate remedy for the unfair labor practices
found to have been committed by Respondent.
As I have stated, normally this is how the process works.
However, in this case, the tally of ballots reflects that a
majority of the valid votes cast were in favor of representa-
tion by the Union. The Union would, accordingly, be enti-
tled to certification if the Union's challenges to the ballots
of David Pester and Edward Smith are sustained. (This
statement is subject to the qualification that the Union has
not itself engaged in conduct which would warrant setting
aside the election. The Employer filed timely objections
alleging that the Union had engaged in such conduct and
those objections were consolidated for hearing in this pro-
ceeding. However, no evidence in support of those objec-
tions was submitted by the Employer at the hearing.
11 United Electric Company, 194 NLRB 665 (1971) 12 N L R.B v Gissel Packing Company, Inc, supra at 614, 615
578 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Accordingly, I shall recommend that the Employer's objec-
tions be overruled in their entirety.) As will appear below,
I am recommending that the challenges to the ballots of
Pester and Smith be sustained. As the Union thereby be-
comes entitled to certification , a determination of the merits
of its objections and the propriety of a bargaining order
under Gissel principles could be avoided. An objection to
this approach, however, is that Respondent remains free to
refuse to bargain to test the certification (a likely eventuality
since Respondent disputes the appropriateness of the unit)
and a new unfair labor practice proceeding must be initiat-
ed. If Respondent has not engaged in unfair labor practices
sufficiently flagrant to call for a bargaining order under
Gissel principles, there is no alternative to the approach and
the representation case process should be continued. If,
however, Respondent has shown by its conduct a disregard
for the rights of its employees under Section 7 of the Act
sufficient to justify a bargaining order, then the interests of
the employees are better served by a present bargaining
order than by a bargaining order in the distant future. As
I am persuaded that a bargaining order is warranted on this
record, it is my view that the Union's objections should be
considered, and, if meritorious, the election should be set
aside and the petition for election should be dismissed.13
B. The Challenged Ballots
The two challenged ballots, which are determinative of
the election results, are the ballots of David Pester and Ed-
ward Smith who the Union contends are supervisors within
the meaning of the Act. Substantial evidence supports the
contention.
Pester and Smith, unlike the unit employees, are salaried
and do not punch timeclocks. Uncontradicted testimony
indicates that, among other things, they assign work to em-
ployees, inspect the work of employees, grant time off, rec-
ommend wage increases, and initial employee timecards.
Both have business cards and Smith has a desk or office. In
addition, about April or May, Respondent issued a notice
to all its employees which set forth the departmental struc-
ture of the Company. According to this notice, Smith was
the supervisor in the duplicating department and Pester was
supervisor in the preparation department. The notice stat-
ed: "If you work for WPP you are a member of one of three
departments. Each department has a supervisor to whom
you are directly responsible." This notice was issued during
a period when Edwards was conducting weekly meetings
with Eisele and a salesman about reorganization of the shop
to relieve Edwards of what he termed petty problems. Both
Pester and Smith participated in these meetings. This notice
was never rescinded and, in fact, employees testified that its
contents were orally confirmed to them. Based on the fore-
going, and the record as a whole, I conclude that Smith and
Pester have the authority responsibly to direct employees in
a manner requiring the use of independent judgment and
are supervisors within the meaning of Section 2(11) of the
Act. Accordingly, I shall recommend that the challenges to
their ballots be sustained.
13 See Federal Prescription Service, Inc. and Drivex Co., 203 NLRB 975
(TXD) (1973).
C. The Union's Objections
On July 27, the Union timely filed 12 objections to con-
duct affecting the results of the election (although the objec-
tions are 13 in number, the first is not in fact an objection).
The Union did not file a brief or statement of position
indicating on what evidence it is relying in support of its
objections and by reason of that fact it has been necessary
to speculate somewhat as to what items of testimony the
Union considers support which of the objections. In many
instances , the nexus between the testimony and the objec-
tions is readily apparent, in others not quite so readily; in
most instances, the objections parallel the complaint allega-
tions , in some , they go beyond the complaint. The following
represents my understanding of the Union's position.
Objection 2. After the petition was filed and prior to the
election, the Employer threatened loss of jobs and ben-
efits to influence their votes.
It is not entirely clear to me what conduct of the Employ-
er this objection is addressed to insofar as it alleges threats
of loss of jobs. A similar allegation is made in Objection 11
and discussed hereinafter, and I deduce from this that the
threats of loss of jobs referred to in this objection are the
threats of loss of work made by Eisele at the employee
meetings when Eisele told the employees that in the event
the Union came in the Employer would discontinue its prac-
tice of permitting employees to work during slack periods
in their departments by performing nonunit work. In this
regard, the objection has merit.
The objection is further supported by Eisele's statements
described above, both at employee meetings and to employ-
ee Gefre, to the effect that if the employees selected the
Union to represent them they would no longer have such
privileges as drinking pop while working or listening to the
radio; nor, in Gefre's case, would employees be permitted
to adjust their own work schedules. On the basis of these
statements , I find merit to Objection 2.
Objection 3. After the petition was filed and prior to the
election, the Employer stated that if the Union won he
would be forced out of business.
It would appear that this objection relates to Edwards' list
of union shops which had gone out of business and his
discussions with employees McKeighan and Burkhart. For
the reasons given above in finding that this conduct was not
violative of Section 8(a)(1), I find no merit to this objection.
Objection 4. After the petition was filed and prior to the
election the Employer stated that his customers would
quit him if the Union won.
As indicated earlier, the statement by the Employer with
regard to the loss of customers was made in the context of
a prediction of possible economic consequences as a result
of which the Employer would be required to raise prices
and, in turn, it would lose customers. Accordingly, I find no
merit to this objection.
WHITE PINE, INC.
Objection 5. After the petition was filed and prior to the
election, the Employer stated that he had spoken with
other Employers in the Ann Arbor area and they would
not hire the people who were involved in Union activi-
ties.
Although the evidence did not support this objection in
the same terms alleged, the objection finds support in the
testimony by Cowles, described earlier, concerning Ed-
wards' reference to an anonymous phone call. As I have
found that such remark in the context made was an implied
threat of blacklisting, I find merit to this objection.
Objection 6. After the petition was filed and prior to the
election, the Employer interrogated employees about
their Union activities and sympathies which restrained
and coerced their activities on behalf of the Union.
As described earlier, Respondent engaged in interroga-
tion of employees which I have found was violative of Sec-
tion 8(a)(1) of the Act. Such interrogation also constituted
interference with the election, and I find merit to this objec-
tion
Objection 7. After the petition was filed and prior to the
election the Employer stated that the Printers in Ann
Arbor had united and agreed to finance his activities
and to supply employees to stop the Union.
This objection is evidently based on the testimony of
employee McKeighan that at one of the employee meetings
a question was asked whether the Union was organizing
other shops. McKeighan replied he understood it was and
Eisele said all the printers would back the Employer in the
fight against the Union. As this remark did not indicate that
unionization of the Employer's employees would be resisted
by unlawful means, I find it insufficient to support a finding
of interference.
Objection 8. After the petition was filed and prior to the
election , the Employer granted wage increases and
loaned employees money deliberately trying to dis-
courage their support and their vote for the Union.
As indicated earlier , I have found Respondent violated
Section 8 (a)(1) of the Act by granting wage increases to
Diane Burkhart and John McKeighan . As this conduct oc-
curred after the filing of the petition and prior to the elec-
tion , I also find that it constituted interference with the
election and is basis for setting aside the election.
Insofar as a loan of money to employees is concerned, the
record indicates that upon Jerry Howe's return to work after
his 10-day absence due to illness Edwards loaned him $300.
According to Edwards , Howe requested the loan because of
his need arising out of his loss of work due to illness. Ac-
cording to Howe, however , while he did indicate that he
needed some money , it was Edwards who suggested the
loan. I credit Howe in this matter and I conclude that the
loan was made for the purpose of inducing him not to
support the Union in the forthcoming election . The Em-
ployer had no policy of loaning money to employees. As a
579
matter of fact, Edwards made the loan out of personal funds
because there was no company policy. In this circumstance,
including the fact that contemporaneously Respondent was
engaged in other activities to induce employees to abandon
the Union (such as the raises to Burkhart and McKeighan),
I am persuaded that in making the loan to Howe the Em-
ployer was motivated by the purpose to influence him not
to vote for the Union in the forthcoming election. Accord-
ingly, I find merit to this part of Objection 8.14
Objection 9. On or about the week of July 16, 1973, the
Employer fired Jerry Howe, an employee, to discour-
age the Union activities and to influence votes
I have found above that there was insufficient evidence
to support a finding that Howe was discharged because of
his union activities or to discourage union activities and to
influence votes. Accordingly, I shall recommend that Ob-
jection 9 be overruled.
Objection 10. On or about the week of July 16, 1973,
after the termination of Jerry Howe, the Employer
threatened other employees with possible termination.
As described above, after the discharge of Howe on July
19, Foreman Eisele showed employees a copy of the dis-
charge letter which had been sent to Howe. The contents of
the letter did not indicate that Howe's discharge was for an
unlawful purpose, but rather that the discharge was for
cause, namely, absenteeism, and nothing was said to any of
the employees to suggest a different motive. In the case of
Burkhart, however, Eisele stated "Let this be a warning to
you." Burkhart did not have a record of absenteeism, al-
though she admitted to a bad record of tardiness. Uncontra-
dicted testimony in the record, however, indicates that she
was not alone in this regard and there is no evidence that
she or any other employee had been threatened with possi-
ble termination by reason of their tardiness before this.
Apart from that, just prior to this incident Burkhart had
been given a wage increase. In these circumstances, the
inference is warranted that Eisele's remark to Burkhart was
intended as an implied threat of discharge because of the
employees' union activities. Accordingly, I find merit to
Objection 10.15
Objection 11. On or about the week of July 16, 1973 the
Employer threatened loss of jobs if the Union won the
election
This objection, it appears to me, can only relate to two
matters not yet considered in the previous objections. One
is the incident described above, wherein McKeighan's qual-
ifications as a journeyman were brought up and he was
impliedly threatened with loss of his job if the Union was
selected as the employees' bargaining representative.
The second incident, not discussed earlier, relates to
14 Although the complaint did not allege the loan as violative of Sec 8(a)(I)
of the Act, the matter was fully litigated, and I find that Respondent violated
Sec 8(a)(1) by making the loan to Howe
15 1 also find this implied threat violative of Sec. 8(a)(I) of the Act
580 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
pressman Donald Gefre.
About 2 weeks before the election , Gefre was called to the
office where he had a conversation with Edwards and Ei-
sele. He was told about new machinery that was being ob-
tained for the bindery, and he was offered a job in the
bindery to operate the machine.
According to Gefre, Eisele explained that the Employer
had a job applicant under consideration , but he wanted to
give Gefre first opportunity to accept the job. At the time,
the Employer had a senior pressman named Breining on
sick leave whose job had been filled by Gefre, and Eisele
mentioned that it looked like Breining was recuperating and
more than likely would come back and Gefre would no
longer have Breining's job, but would have to look for other
work in the shop . Gefre asked time to consider the proposal
and later advised Eisele he would stay in the pressroom.
As is true of so much in this case , the facts surrounding
this incident are not seriously disputed. Thus, Edwards ad-
mitted discussing the bindery job with Gefre and he did not
contradict Gefre's testimony in any particulars. According
to Edwards , Gefre was asked if he was interested in the
bindery job for two reasons , namely , the new machine
would need an operator and Gefre had experience in the
bindery, and Breining might be returning to work displacing
Gefre. Moreover, one of Gefre's complaints at the employee
meeting had been that he was moved around too much.
Upon consideration of all the evidence concerning this
incident, it is clear to me that Gefre was offered the bind-
ery job to remove him from the bargaining unit and one of
the means used to accomplish this purpose was to threaten
Gefre with a possible loss of his pressman's position by
indicating Breining might return to work. I reach this con-
clusion for several reasons.
Breining had a terminal case of cancer from which he
ultimately died. According to Edwards, Breining was under-
going cobalt treatments and had so improved that
Breining's wife told him Breining 's problem was psychologi-
cal and he now needed motivation. As Edwards was an
optimist , it never occurred to him Breining would die and,
accordingly, the possibility of Breining's return was suggest-
ed to Gefre. This explanation defies credulity and I reject
it.
As to the new machine , as pointed out earlier , it was not
installed until a month to a month and a half after the
election, yet Gefre was being offered the job before the
election and impressed by the need to decide quickly be-
cause Respondent had someone else under consideration
for the job, who, it turned out, was not hired when Gefre
turned down the job. Moreover, as Gefre credibly testified,
this was the first time he had been given such consideration
about his job preferences.
In addition to the foregoing, there is the uncontradicted
testimony of Gefre that in discussing the Employer 's offer
he explained that he had gone to the Union and wanted a
journeyman's card because pay in the pressroom was good
and pay in the bindery was not as good. They (Eisele or
Edwards) said they couldn't see why they couldn'tgive him
as much money in the bindery as in the pressroom. They
said that he could benefit himself more without the Union
than with it, but Gefre told them that any arrangement such
as was being suggested was not acceptable to him, "Be-
cause , after all , we organized a group for a group and not
just the individual for this particular individual ." In short,
in addition to the implied threat of loss of his pressman's
job, the Employer impliedly promised Gefre an increase in
pay if he abandoned the unit and the Union.
On the basis of the foregoing, I find merit to Objection
11.
12. On or about the week of July 16, 1973, the Employ-
er stated that he would not bargin (sic) with the Union
if the Union won the election.
This objection apparently is based on Eisele's remark to
McKeighan in a discussion of the pros and cons of union-
ization that he did not think it made any difference how the
election went, because White Pine was such a small place
that even if the Union was voted in, the Government
wouldn't force Edwards to negotiate, adding, "they don't
send out a mediator due to the size of White Pine."
Eisele's last remark indicates a great degree of ignorance
of the law of labor relations and I 'm not sure just what he
meant by it. But his other remark clearly indicated that it
would be futile for the employees to select union representa-
tion and it constituted interference with the employees' right
to make a free choice in the election . I find merit to Objec-
tion 12.
13. On or about the week of July 16, 1973, the Employ-
er stated that he would force a strike and replace the
strikers with strike breakers if the Union won the elec-
tion.
No evidence was submitted in support of this objection
and I shall recommend that it be overruled.
In summary, I find merit to Objections 2, 5, 6, 8, 10, 11,
and 12 and recommend that the election be set aside.
- D. The Appropriateness of a Bargaining Order
As noted earlier , under Gissel, a bargaining order is ap-
prnpriate in "cases marked by less pervasive practices which
nonetheless still have the tendency to undermine majority
strength and impede the election processes ." In this class of
cases, the issue for decision is whether there is a possibility
of erasing the effects of past practices and insuring a fair
election by the use of traditional remedies , or whether em-
ployee sentiments once expressed through cards would, on
balance, be better protected by a bargaining order.
In my judgment , according to this standard, a bargaining
order is warranted on the facts of this case . Respondent's
unfair labor practices began immediately upon its receiving
notice of the employees' interest in union representation
and continued even after the election . After first interrogat-
ing employees, Respondent proceeded to find out why they
wanted union representation for the clear purpose of abort-
ing their organizational effort by correcting their griev-
ances. Respondent did not expressly promise to do this, but
it in fact did so by granting wage increases to Burkhart and
McKeighan . In addition, it provided Burkhart ventilation in
her work area . The Board has recognized rightly that "There
are few unfair labor practices so effective in cooling employ-
WHITE PINE, INC.
ees' enthusiasm for a union than the prompt remedy of the
grievances which prompted the employees' union interest in
the first place." 16 In addition, in discussing the bindery job
with Gefre, Respondent attempted to wean him away from-
the Union both by an implied threat and an implied prom-
ise.
Added to this conduct was Respondent's conduct in im-
pressing upon employees the disadvantages of union repre-
sentation not merely by 8(c) expressions of opinion, but also
by clear threats of loss of existing privileges and loss of jobs.
The threats of loss of privileges were made to all the unit
employees assembled and the threats of loss of jobs to Mc-
Keighan, Gefre, and Burkhart. In a unit of nine employees,
threats on such a scale are certainly not minimal.
It is argued by Respondent that any alleged threats had
an insubstantial effect and would have no lingering effect
upon a free choice in a second election. The results of the
election (4 votes for representation, 2 against) indicate a
considerable erosion in the Union's card majority and sug-
gest a much more substantial effect on employees than Re-
spondent would admit to. But, as stated herein earlier,
whether or not unfair labor practices have successfully
coerced employees is not the test. The Board had occasion
to make such an observation recently in Altman Camera Co.,
Inc., 207 NLRB 940 (1973), where it stated, "In its Gissel
decision, the Supreme Court relied on objective consider-
ations in holding that a bargaining order is an appropriate
remedy when an employer rejected a card majority while at
the same time committing unfair labor practices 'that tend
to undermine the union's majority and make a fair election
an unlikely possibility.' " Applying this principle, it is clear
that the unfair labor practices found herein, whatever their
actual effect, tended to undermine the Union's majority.
An additional circumstance supporting a bargaining or-
der is the fact that since the Union obtained its card majori-
ty, three of the card signers (Cowles, Withey, and
McKeighan) have left Respondent's employment. To reme-
dy Respondent's unfair labor practices by merely tradi-
tional remedies and the direction of a second election would
mean that the Union must organize a new employee com-
plement. In N.L.R.B. v. L. B. Foster Company, 418 F.2d 1,
5 (C.A. 9, 1969), the court indicated that employee turnover
is a factor that supports the issuance of a bargaining order,
"Otherwise there will be an added inducement to the em-
ployer to indulge in unfair practices in order to defeat the
union in an election. He will have as an ally, in addition to
the attrition of union support inevitably springing from de-
lay in accomplishing results, the fact that turnover itself will
help him, so that the longer he can hold out the better his
chances of victory will be."
In summary, I conclude that Respondent's unfair labor
practices were sufficiently serious and pervasive that the
possibility of erasing the effects of such practices and insur-
ing a fair election by the use of traditional remedies, though
present, is slight and employee sentiment once expressed
through cards would, on balance, be better protected by a
bargaining order.
I could let the matter rest here and not overburden an
16 International Harvester Company, 179 NLRB 753 (1969).
581
already burdened decision, but Gissel teaches that a bar-
gaining order may also be appropriate, even in the absence
of an 8(a)(5) violation or even a bargaining demand, if the
employer's unfair labor practices are of "such a nature that
their coercive effects cannot be eliminated by the applica-
tion of traditional remedies, with the result that a fair and
reliable election cannot be held."17 In this case, the issue of
the validity of the demand was raised and rejected; howev-
er, had I found that no effective demand had been made,
I would still recommend a bargaining order because, in my
judgment, Respondent's conduct also fits into this category
of cases described in Gissel.
III. THE EFFECT OF THE UNFAIR LABOR PRACTICES UPON COMMERCE
The activities of Respondent set forth in section 1, above,
occurring in connection with its operations described there-
in, have a close, intimate, and substantial relationship to
trade, traffic, and commerce among the several States and
tend to lead to labor disputes burdening and obstructing
commerce and the free flow of commerce. I
IV. THE REMEDY
Having found that Respondent has engaged in unfair
labor practices in violation of Section 8(a)(1), (3), and (5) of
the Act, I shall recommend that it be ordered to cease and
desist therefrom and to take certain affirmative action de-
signed to effectuate the policies of the Act.
As I have found that Respondent laid off John McKeigh-
an because of the union activities of its employees, I shall
recommend that it be ordered to make him whole for any
loss of earnings he may have suffered by reason of the
layoffs by payment to him of a sum of money equal to that
which he normally would have earned as wages had he not
been laid off, to which shall be added interest at the rate of
6 percent per annum as provided in Isis Plumbing & Heating
Co., 138 NLRB 716 (1962).
For reasons which I have given above, I shall recommend
as an appropriate remedy for Respondent's serious unfair
labor practices that it recognize and bargain with the Union
which had been validly designated by its employees as their
representative for purposes of collective bargaining. More-
over, the unfair labor practices committed by Respondent
require that it be placed under a broad order to cease and
desist from in any manner infringing upon the rights of
employees guaranteed in Section 7 of the Act. '
CONCLUSIONS OF LAW
1. White Pine, Inc., is an employer engaged in commerce
within the meaning of Section 2(6) and (7) of the Act.
2. Graphic Arts International Union, Local 9L, AFL-
CIO, is a labor organization within the meaning of Section
2(5) of the Act.
3. All full-time and regular part-time lithographic pro-
duction employees, including pressmen, pressmen helpers,
duplicator operators, plate makers, strippers, and camera-
men employed by the employer at its 5204 Jackson Road,
17 Gissel, supra at 614
582 DECISIONS OF NATIONAL LABOR RELATIONS BOARD
Ann Arbor, Michigan, location, but excluding bindery em-
ployees, collating employees, inserters, office clerical em-
ployees and guards and supervisors as defined in the Act
constitute a unit appropriate for purposes of collective bar-
gaining within the meaning of Section 9(b) of the Act.
4. Graphic Arts International Union, Local 9L, AFL-
CIO, is the exclusive representative of the employees of
Respondent in the unit described in paragraph 3 above
within the meaning of Section 9(a) of the Act.
5. By interrogating employees about their union activi-
ties and their reasons for seeking representation, soliciting
employee grievances, and threatening employees with lay-
offs, loss of jobs, more onerous working conditions, the
discontinuation of employee privileges, and blacklisting if
employees select the Union as their representative for pur-
poses of collective bargaining, and by granting wage in-
creases and making loans to employees for the purpose of
interfering with their free choice of a bargaining representa-
tive, Respondent has engaged in and is engaging in, unfair
labor practices within the meaning of Sections 8(a)(l) and
2(6) and (7) of the Act.
6. By laying off John McKeighan because of the union
activities of its employees Respondent has engaged in, and
is engaging in, unfair labor practices within the meaning of
Sections 8(a)(l) and (3) and 2(6) and (7) of the Act.
7. By refusing to recognize and bargain with the Union,
Respondent has engaged in, and is engaging in, unfair labor
practices within the meaning of Sections 8(a)(5) and (1) and
2(6) and (7) of the Act.
8. The General Counsel has failed to establish by a pre-
ponderance of the evidence that the discharge of Jerry
Howe was violative of Section 8(a)(1) and (3) of the Act.
Upon the foregoing findings of fact, conclusions of law,
and the entire record, and pursuant to Section 10(c) of the
Act, I hereby issue the following recommended:
ORDER 18
Respondent, White Pine, Inc., its officers, agents, succes-
sors , and assigns , shall,
1. Cease and desist from:
(a) Interrogating employees about their union activities
and their reasons for seeking union representation, in a
manner or under circumstances tending to interfere with,
coerce, or restrain employees in the exercise of rights guar-
anteed under Section 7 of the Act.
(b) Conducting meetings with and questioning employ-
ees for the purpose of soliciting their grievances or com-
plaints and directly or impliedly promising them benefits or
improved working conditions from such grievance solicita-
tion where an object thereof is to discourage its employees
from supporting Graphic Arts International Union, Local
9L, AFL-CIO, or any other labor organization.
(c) Making loans or granting wage increases to employ-
ees for the purpose of undermining the Union.
(d) Threatening employees with more onerous working
conditions and loss of employee privileges if employees se-
lect the Union to represent them.
(e) Threatening employees with loss of jobs if they select
the Union to represent them.
(f) Threatening employees with blacklisting among other
employers because of their union activities.
(g) Threatening employees with layoffs if they select the
Union to represent them.
(h) Discouraging membership in, or activities on behalf
of, Graphic Arts International Union, Local 9L, AFL-CIO,
or any other labor organization of its employees, by laying
off employees because of their activities on behalf thereof,
or otherwise discriminating in regard to the hire or tenure
of employment or any terms or conditions of employment
of its employees.
(i) Refusing to recognize and bargain with the above-
named labor organization as the exclusive bargaining repre-
sentative of its employees in the above-described unit.
(j) In any other manner interfering with, restraining, or
coercing its employees in the exercise of their right to self-
organization, to form, join, or assist labor organizations, to
bargain collectively through representatives of their own
choosing, and to engage in concerted activities for the pur-
pose of collective bargaining or other mutual aid or protec-
tion as guaranteed by Section 7 of the Act, or to refrain from
any or all such activities.
2. Take the following affirmative action designed to ef-
fectuate the policies of the Act:
(a) Upon request, bargain collectively with Graphic Arts
International Union Local 9L, AFL-CIO, as the exclusive
representative of all employees in the unit described above,
and, if an understanding is reached, embody such under-
standing in a signed agreement.
(b) Make John McKeighan whole for any loss of pay he
may have suffered by reason of the layoffs which have been
found herein to have been violative of the Act.
(c) Preserve and, upon request, make available to the
National Labor Relations Board and its agents, for exami-
nation and copying, all payroll records, social security re-
cords, timecards, personnel records and reports, and all
other records relevant and necessary for determination of
the amount of backpay due under the terms of this recom-
mended Order.
(d) Post at its Ann Arbor, Michigan, location copies of
the attached notice marked "Appendix." 19 Copies of said
notice on forms provided by the Regional Director for Re-
gion 7, after being duly signed by Respondent's authorized
representative, shall be posted by the Respondent immedi-
ately 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 post-
ed. Reasonable steps shall be taken by Respondent to insure
that said notices are not altered, defaced, or covered by any
other material.
18 In the event no exceptions are filed as provided by Section 102.46 of the
Rules and Regulations of the National Labor Relations Board , the findings,
conclusions , and recommended Order herein shall, as provided in Section
102.48 of the Rules and Regulations , be adopted by the Board and become
its findings , conclusions , and Order, and all objections thereto shall be
deemed waived for all purposes.
19 In the event that the Board 's Order is enforced by a judgment of a
United States Court of Appeals, the words in the notice reading "Posted by
Order of the National Labor Relations Board" shall read "Posted Pursuant
to a Judgment of the United States Court of Appeals Enforcing an Order of
the National Labor Relations Board."
WHITE PINE, INC.
(e) Notify the Regional Director for Region 7, in writing,
within 20 days from receipt of this Decision, as to what steps
have been taken to comply herewith.
As to Case 7-RC-11842, it is recommended that the
Employer's objections to the election be overruled, that the
challenges to the ballots of David Pester and Edward Smith
be sustained, that the Union's objections to the election
583
numbers 3, 4, 7, 9, and 13 be overruled, that the Union's
objections to the election numbers 2, 5, 6, 8, 10, 11, and 12
be sustained, and that the election be set aside and the
petition be dismissed.
It is further recommended that the allegations of the com-
plaint not hereinabove found to have been supported by the
evidence be and they hereby are dismissed.