Wausau Steel Corp.

WAUSAU STEEL CORPORATION 635 5. The Board has considered the entire record in this case, includ- ing the Hearing Officer's report and the Employer's exceptions thereto and finds that the Employer's exceptions raise no substantial or material issues of fact or law warranting reversal of the Hearing Officer's findings and recommendation.2 Accordingly, we shall overrule the challange and direct that the Regional Director open and count the challenged ballot of Elmer Chesson, Jr., and prepare and serve on the parties a revised tally of ballots and the appropriate certificate. [The Board directed that the Regional Director for Region 5 shall, within 10 days from the date of this Direction, open and count the ballot of Elmer Chesson, Jr., and serve on the parties a revised tally of ballots and an appropriate certificate.] 2 We adopt the Ffearing Officer's finding that Elmer Chesson, Jr , was tempor.ti fly laid off with a reasonable expectation of recall in the foreseeable future as of 1lie eligibility date and the date of the election, and his recommendation that the challenge to his ballot therefore be overruled Although we do not adopt the neanng Officer's statement of opinion that "such recall aould hate occurred within the fore<ceable future were it not for the tact that the challenge to his ballot becamte determinative of the election results" this does not affect the Hearing Officer's ultimate findings and recommendation not our adoption thereof No unfair labor practice charges have been filed Wausau Steel Corporation and Shopmen's Local Union #811, In- ternational Association of Bridge, Structural and Ornamental Iron Workers (AFL-CIO). Cases 30-RC-358 and 30-CA-314. August 19,1966 DECISION AND ORDER On May 18, 1966, Trial Examiner Frederick U. Reel issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in and was engaging in certain unfair labor prac- tices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Exam- iner's Decision. Thereafter, the Respondent filed exceptions and a supporting brief, and the General Counsel filed a brief in support of the Trial Examiner's Decision. Pursuant to the provisions of Section 3(b) of the National Labor Relations Act, as amended, the National Labor Relations Board has delegated its powers in connection with this case to a three-member panel [Members Fanning, Brown, and Zagoria]. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. 160 NLRB No. 47. 636 DECISIONS OF NATIONAL LABOR RELATIONS BOARD The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions and briefs, and the entire record in this case and hereby adopts the findings," conclusions, and recom- mendations of the Trial Examiner. [The Board adopted the Trial Examiner's Recommended Order.] 'In view of the fact that the Union represented a majority of the employees in the appropriate unit even if, as urged by the Respondent, tuo part-time janitorial employees are included in the unit, we find it unnecessary to pass upon the correctness of the Trial Examiner's finding excluding such employees. For similar reasons, we need not pass upon the issues raised by Respondent's exceptions to the Trial Examiner's findings with respect to certain of the authorization cards discussed In footnote 9 of his Decision. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE This consolidated proceeding heard before Trial Examiner Frederick U. Reel, at Wausau, Wisconsin,' on April 5 and 6, 1966, arises out of the efforts of the Charging Party, herein called the Union, to organize the employees of the Respond- ent, herein called the Company, in late October and November 1965.2 In Case 30-RC-358, the Union filed a petition for certification on November 4, lost a con- sent election held November 22, and filed objections to conduct affecting the elec- tion on November 24. On November 23 the Union filed an unfair labor practice charge in Case 30-CA-314, and on January 4, 1966, a complaint issued in that proceeding. The cases were consolidated pursuant to an order of the Board on January 14, 1966. At issue, in addition to whether the election should be set aside, are whether the Company, by interrogation, threats of reprisal for union activity, and promises of benefit to employees to induce abandonment of the Union, engaged in unlawful interference, restraint, and coercion violative of Section 8(a) (1), and whether the Company's refusal to bargain with the Union violated Sec- tion 8(a)(5) and (1) of the Act. Upon the entice record, including my observation of the witnesses, and upon due consideration of the briefs filed by General Counsel and the Company, I make the following: FINDINGS OF FACT 1. THE BUSINESS OF THE COMPANY AND THE LABOR ORGANIZATION INVOLVED The Company, a Wisconsin corporation, engaged at Wausau in processing and selling scrap metal and other products, receives annually in excess of $50,000 worth of products directly from outside the State, and is engaged in commerce and in operations affecting commerce within the meaning of Section 2(6) and (7) of the Act. The Union is a labor organization within the meaning of Section 2(5) of the Act. II. THE UNFAIR LABOR PRACTICES INVOLVED A. The Union obtains a "card mato, ity" and requests recognition which the Company refuses The Union started organizing at the end of October, led by employees Thatcher, Hill, and Franson. By November 1, the Union had received authorization cards from 29 of the 38 employees then in the bargaining unit authorizing the Union to -"The record is hereby corrected at pages 1 and 185 to show the place of hearing as Marathon County Courthouse, Wausau, Wisconsin 2 Except where otherwise indicated all dates herein refer to the year 1965 WAUSAU STEEL CORPORATION 637 act as their bargaining representative.3 The cards, captioned "AUTHORIZATION FOR REPRESENTATION," stated that the employee did "hereby authorize and designate [the Union] to act as [his] sole and exclusive agent and representative for all purposes of collective bargaining, whether under the operation of the National Labor Relations Act or otherwise." The card also recited that it was not an application for membership. On November 2, the Union wrote the Company, claiming majority status and requesting recognition. The Company replied on November 4, stating that as the Union had offered no evidence or proof of majority status and as the Company had reason to doubt the Union's claim, the Company declined to extend recognition. Shortly thereafter the Union and the Company agreed to a consent election, which was held November 22, and which the Union lost, 21 to 17. B. The speeches and letters of November 3 and 18 The Company learned of the Union's organizing drive on November 1 or 2. Peter Wallach, vice president of the Company and son of the president, Theodore Wallach, upon learning of the drive, promptly examined the Company's payroll and discovered a number of what he and his father regarded as "inequities," i.e., instances in which employees were underpaid compared with other employees of less seniority or inferior jobs. On November 3, Theodore Wallach addressed the assembled employees, telling them that these inequities had been discovered and would "be corrected very quickly," after the union matter was settled. He also told them that the Company had been looking into the possibility of an employee insur- ance plan; this was indeed a fact although the employees had not been apprised. He told them that he could not divulge the plan at that time for fear of violating the Act. Wallach stated that if the Union came in and labor costs went up, the Company would cut overtime by hiring additional straight-time help and would eliminate certain marginal operations. "I kid you not," Wallach told the employees, adding that "Some of the men do not realize how good we have it and a change is by no means necessarily to the better." Wallach also stated that he did not see the need for a "third party" to come between the Company and the employees, as his door was always open. The meeting concluded with Wallach' s reading a letter which he thereafter mailed to each employee. The letter advised the employees of their right to be for or against a union, and of their right, if they had already signed a union card, to have it destroyed or returned to them. Referring to the "great deal of overtime" which the employees worked, the letter continues : "We would hate to have to reduce or eliminate such overtime pay. We think our employees and the company are getting along together very well, and we hope a third party such as a union is not placed between us and our employees and the fine relation- ship we have enjoyed in the past." On November 18 Theodore Wallach again assembled the employees and spoke to them about the Union. His remarks were similar to those he delivered on Novem- ber 3, in that he again mentioned that if advent of the Union meant higher wages, the Company would have to reduce overtime and eliminate marginal operations. On this occasion he mentioned that increased expenses might make it necessary to sell the trucks and to close the new steel department. Wallach told the employees that if the Union came in and obtained a 22- or 221/2-cent wage increase, he would be forced out of business altogether. That figure was based on Wallach's own com- putation of his profit and labor costs; it did not represent any demand of the 3 The parties agree that a production and maintenance unit, excluding office cleiicals, technical and professional employees. guards, and supervisors, is appropriate The Company contends that the unit should embrace two employees whose sole task is to perform jani- torial services one-half day a week when the plant is closed. I believe they should be ex- cluded from the unit (see Gafner Automotive & Machine, Inc., 156 NLRB 577, footnote 1 ; J. Heber Lewis Oil Co., 123 NLRB 1115, 1116 ; Helms Motor Dmpres8, Inc., 107 NLRB 132, 135), and the fact that they voted without challenge in the election'does not preclude the present inquiry into their unit placement. N.L.1t B. V. Montgomery Ward & Co., 242 F 2d 497, 501 (C A. 2). I note, however, that their inclusion in the unit would not affect the Union's majority status. Another employee, Bronowitz, returned from military service on November 5, after the Union's bargaining demand., . . 638 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union, which had not been in contact with Wallach after its unsuccessful request for recognition except to agree to a consent election. As in the case of the earlier meeting, Wallach followed his speech with a letter to each employee that same day. In the letter, after advising the employees of their right to vote, Wallach stated: No union can supply you with overtime or force the company to provide overtime. Our margin of profit is so small that any substantial increase in our costs would mean that we would operate at a loss and be forced to drop major parts of our operations. We don't want this-and you don't either. We intend, when this union matter is settled, to make proper adjustments in wages and to establish a reasonable insurance program. C. Interviews with individual employees On Saturday, November 6, Theodore Wallach sent for employee Larry Hill to come to the office. Wallach, telling Hill that he knew Hill was one of the three most active employees in the union movement, inquired what complaints Hill and the other employees had and why they wanted a union to represent them. To quote the testimony of Peter Wallach, who was also present, "basically we were interested to know why he was unhappy as he apparently was. What seemed to be bothering him in our organization, what he thought should be or possibly would be changed by having the Union, or just what should be changed, what he didn't like." Theo- dore Wallach also told Hill that in the event of a raise in wages of 22 or 221/2 cents, the Company would have to lease the steel warehouse and lease its trucks. Hill told Wallach that Hill's primary interest lay in retirement benefits. Wallach replied that he had looked into insurance plans but that he "couldn't make any promises or couldn't go into it any further at this time." On Saturday, November 20, the last working day before the election, Theodore Wallach went to where employee Kenneth Thomas was at work in the steel ware- house, asked Thomas to accompany him to the office, and finding the janitor in the office when they arrived, asked the janitor to leave. According to Thomas, Wallach told Thomas, who had been employed only a few months,4 that, he "might have been here long enough to have received your raise with the rest of the men." According to Thomas, Wallach also stated that if the Union won the election, he would have to cut the weekly hours to 40 and hire more men. Wallach testified that Thomas had mentioned he was not in favor of the Union because lack of seniority had caused him to lose his job with another employer whose employees became unionized. Wallach recalled "having said in possibly different words that this is a habit which unions do employ. They look for seniority." Wallach further testified as to the Thomas interview: Q. Did you tell him that if the Union got in you would have to cut the hours down to 40 and eliminate the overtime? A. Very conceivable. I do not recall. Q. You discussed this with employees, this probability? A. Yes, surely. Now, not when the Union came in, but when the expenses caused by unionization would become too over-riding. That same Saturday, employee Ronald Martin was in Wallach's office receiving a telephone call. When the call was completed, Wallach asked Martin to sit down as Wallach wanted to talk to him. According to Martin, Wallach said that if the Union came in, Martin "would be one of the first ones to go." Wallach also stated that if the Union came in and expenses were too high, the Company would shut down certain operations. On cross-examination, Martin testified that Wallach's comment about letting Martin go followed a discussion of Martin's lack of seniority. Wallach denied having said Martin would be one of the first to go if the Union came in, but thought it conceivable that he and Martin had discussed seniority. * Thomas testified he had been employed 7 or 8 months at the time of the hearing, and 2% months or a little longer at the time of the election. WAUSAU STEEL CORPORATION 639 D. The election and its aftermath The Union lost the election, 21 to 17.5 Promptly after the election, Theodore Wallach assembled the employees, told them the Company harbored no ill-feeling against the union supporters, and announced that the wage inequities would be corrected, that a small pay raise would be provided for all employees, and that the Company hoped soon to have various insurance proposals to discuss. The follow- ing payday each employee received at least a 5-cent per hour increase, retroactive for 1 week, and 20 employees in the unit (plus the two janitors) received larger increases. The larger increases, according to the testimony of Peter Wallach, were to correct the inequities he had discovered. The Union filed its objections and charge shortly thereafter, and on December 9 the Company wrote the employees that it could not disclose its insurance plan or put it into effect while the charges growing out of the election were pending. E. Concluding findings 1. Interference The Act proscribes interference by an employer with his employees' right to select a union to represent them. As Judge (later Mr. Justice) Minton stated for the Seventh Circuit in N.L.R.B. v. W. A. Jones Foundry & Machine Co., 123 F.2d 552, 555 (C.A. 7), "Employee organization was a matter of concern of the employ- ees. The employer has no more right to intrude himself into the employees' efforts to organize and select their representatives to represent them in collective bargain- ing than the employee would have to intrude himself into a stockholder' s meeting to interfere with the election of the Company's directors ...:. But Congress in the 1947 amendment expressly recognized that an employer's statements of views, argument, and opinion would not constitute or be evidence of unlawful interference if such statements contained no threat of reprisal or force or promise of benefit. Even if, as the Seventh Circuit has twice stated, this amounted to "no more than a restatement of the principles embodied in the First Amendment," (N.L.R.B. v. La Salle Steel Co., 178 F.2d 829, 835 (C.A. 7), cert. denied 339 U.S. 963; N.L.R.B. v. Kropp Forge Co, 178 F.2d 822, 828 (C.A. 7), cert. denied 340 U.S. 810), it seems clear that if Theodore Wallach stayed within the realm of "views, argument or opinion" and if he uttered no threats or promises, his conduct did not violate Section 8 (a) (1) . It should also be noted that from the outset Wallach had the benefit of, and was guided by, able counsel. There can be no doubt that Wal- lach, with counsel's guidance, wanted to do all he could to defeat the Union and yet stay within legal limits. Of course, there is nothing unlawful in such an attitude; Congress has laid down the rules, and an employer who keeps within them may go to the very brink and yet not fall into the pit of violation. One who engages in "brinkmanship" runs a risk, of course, but the burden of proving the violation rests on General Counsel. The question here is whether he met that burden, or whether Wallach's statements stayed within the limits of views, arguments, and opinion, unsullied by threats or promises. Certainly the repeated promise to the employees that wage inequities would be promptly corrected constituted a promise of benefit, not protected by Section 8(c), and condemned as interference by Section 8 (a)( 1 ). These inequities were only dis- covered because the Company heard of the union drive. Wallach immediately prom- ised to correct them in his speech of November 3, and repeated the promise in his leter of November 18. The mere fact that the Company characterized them as "inequities" does not alter the simple fact that Wallach was promising wage increases to a number of employees. Even if the statement be viewed as a promise to rectify grievances rather than to grant a wage increase, it violated the Act. N.L.R.B. v. Larry Faul Oldsmobile Co., Inc., 316 F.2d 595, 597 (C.A. 7). Although I am not altogether free from doubt, I reach an opposite conclusion with respect to Wallach's mention -of the insurance program in his letters and 5 The two janitors described in footnote 3, supra, both voted in the election, a^ did the employee just returned from military service. They were not included in the group of 29 card signers described above, and the Company urged their inclusion in the bargaining unit 640 DECISIONS OF NATIONAL LABOR RELATIONS BOARD speeches. To be sure, the insurance program would not have been mentioned at that time but for the union campaign . Unlike the wage corrections, however, the insurance program was not directly spawned by the campaign, as the Company had been consulting with a local insurance agent on the subject. Under these circum- stances, when a union appeals to the employees on the basis that they have no such protection an employer should be free to reply, truthfully, that he has been pre- paring an insurance program. In his speeches and letters Wallach repeatedly referred to the possibility that advent of the Union would result in elimination of overtime and closing down parts of the business with resultant loss of employment. Had this been badly stated, it would unquestionably have violated the Act as a threat of reprisal for union activ- ity. The Company contends, however, that Wallach was careful to state that such unpleasant prospects were in store if the Union came in and wages rose appre- ciably as a result thereof. He also stated that if the increase'was as much as 22 or 221/2 cents per hour he would be forced out of business. I find as a fact that Wal- lach did condition his oral threats to retrench or to abandon the business not on the advent of the Union alone, but on a resultant wage increase . Even thus condi- tioned, however, I find on the record of this case that Wallach's remarks exceeded permissible limits. In the first place it is nothing but a truism to state that if labor costs or any other costs go up too much, an operation becomes unprofitable. The sole purpose of reciting this self-evident fact in the context of an antiunion speech is to instill in employees the fear that this will be the consequence of a union victory. Yet for all Wallach knew, the union demands might not have exceeded the basic 5-cent raise and correction of "inequities" he granted later that month. In any event advent of the Union would have meant only that Wallach had to bargain over wage demands, not that he had to grant increases which would have caused elimination of overtime or abandonment of all or part of his business. The speeches were plainly calculated to convey to the listeners that advent of the Union was linked in some way with loss of income. A careful, trained auditor might have detected the conditions which Wallach interposed in an effort to keep his remarks within the law. But even such an auditor would have as his permanent record of the the Company's views not the text of the speech but that of the letter sent all employees on November 3. And this letter, while it deals with the Union and with overtime pay, is devoid of any suggestion that the threatened loss of overtime is geared to the grant of an exorbitant wage increase . On the contrary, after discussing the Union and the election, the letter adverts to the "great deal of overtime pay" the employees receive and then states, without any further reference to union demands or wage rates: "We would hate to have to reduce or eliminate such overtime pay." I find, therefore, that Wallach 's letters and speeches were intended to, and did, interfere with employees in the exercise of their Section 7 rights, and that in the context of the entire record, they exceeded the limits per- mitted an employer by Section 8(c). The promises of wage adjustments and threats of loss of overtime distinguish this case from the Seventh Circuit decision in N.L.R.B. v. Mallory Plastics Co., 355 F.2d 509 (C.A. 7), and Indiana Rayon Corp. v. N.LR.B, 355 F.2d 535 (C.A. 7), cited by the Company. See also Iowa Beef Packers, Inc., 144 NLRB 615, 616-617. Likewise violative of Section 8(a)(1) were Wallach's interviews with Hill and Thomas. Hill was summoned to the office, where he was told that the Company knew he was one of the union leaders, and where he was subjected to interrogation as to the causes of employee dissatisfaction leading to the union movement. An employee has a right to engage in union activity without being summoned to his employer's office for interrogation apparently designed to give the employer infor- mation for use in combating the Union.6 Thomas was summoned to the office the last working day before the election and was told that notwithstanding his brief tenure with the Company he might be in line for a raise with the rest of the men. 0 General Counsel urges that the interview with Hill also was unlawful in that Wallach created an impression of surveillance in identifying Hill as a union leader. But Hill s activity, like that of Franson and Thatcher, was open and notorious. Besides the complaint alleges no such violation. Cf. Poray, Inc., 143 NLRB 617. WAUSAU STEEL CORPORATION 641 Wallach then told him that advent of the Union would result in loss of overtime; Thomas' version of the conversation does not contain the qualification that this would happen if wages went up, but Wallach testified that he always inserted this qualification. According to Wallach, Thomas volunteered that he was opposed to the Union because of his low seniority. Even accepting Wallach's version where it contradicts that of Thomas, we have at the very least an employer summoning an employee to the office on the eve of an election to tell him that he may soon get a wage increase. The interference is patent. I find that in his interview with Martin, Wallach's reference to Martin's job being vulnerable if the Union came in occurred in the course of a permissible refer- ence to Martin's low seniority. Insofar as Wallach repeated to Martin what Wal- lach had said in his speeches concerning cutbacks if the Union came in and expenses increased, I find the statement violative of the Act for the reasons set forth above with respect to the speeches.? 2. Refusal to bargain As noted above, the Union obtained authorization cards from 29 employees in a bargaining unit of 39 (as I find) or of 41 (as the Company contends). The Com- pany introduced testimony designed to establish that six cards (those of Pflieger, Whipper, Pergolski, Bousley, Boruch, and Kolubako) should not be counted. Even if those six cards are disregarded, the Union's majority status is unaffected.8 The Company contends that the testimony of five of these employees shows that the Union's method of obtaining signatures casts doubt on the validity of all the cards. However, I do not think it appropriate to indulge in the presumption for which the Company contends. Possibly such an argument would carry weight if the num- bers were such that the employer could not reasonably be expected to call as wit- nesses a sufficient number to destroy the majority, and if a wider sampling were presented showing more pervasive misrepresentation by the Union. But here, where the Union's majority as of November 2 could have been dissipated by knocking out 10 cards, it is not too much to require the Company to put on detailed proof rebut- ting the presumption arising from the ambiguous language on the cards. (The examination of the five employees covered less than 30 pages of the transcript and 7 General Counsel alleges that the Company s grant of wage uicreace^ and the promise of insurance benefits at the postelection meeting on No%ember 22 violated Section 8(a) (1) and that the announcement on December 9 that the Union's objections were delaying the insurance program likewise violated that section It the matters heretofoie discussed were not violative of the Act, the election would have been valid, and I would find no viola- tion (or at the least none warranting remedial relief) in the grant of benefits on Novem- ber 22 Since I have found violations prior to this date, and as discussed, tmajra, would remedy them with a bargaining order, I see no need to discuss whether the grant of bene- fits after the election was a further violation of Section 8(a) (1). (As unilatral action at a time when bargaining was required, it was a technical violation of Section 8(a) (5) stemming from the Company's overall position that it was under no duty to bargain ) As to the December announcement, I again find no violation calling for remedial relief. The Company was in a difficult position, for if it continued with its insurance plan atter being notified of the objection to the election, it could be reasonably certain that charges would be filed alleging that it was improperly trying to influence the employees in the event of a second election As the bargaining order hereinafter recommended will cover the situation by requiring the Company to bargain at the Union 's request on an in suiance program and by preventing unilateral imposition of a program without bargaining, I see no need to go into the question whether the Company' s announcement of December 9 was violative of the Act. General Counsel also alleges a violation of Section 8(a) (1) in Theodore Wallach's inquiry on November 1 of employee Lloyd Kees as to whether Bees had "heard any rumors about a union starting." Kees replied that he had, and Wallach remarked only that he was against it but there was nothing he could do about it Kees was in the office on other business at the time. I regard the episode as too trivial to warrant a finding of unlawful interrogation. 8 The challenge to Kolubako's card is particularly weak ; it rests only on the testimony of other employees that Kolubako' s understanding of English is limited. This gives rise to no more reason to challenge his card than to challenge his vote in the election 257-551-67-vol. 16 0-4 2 642 DECISIONS OF NATIONAL LABOR RELATIONS BOARD consumed less than an hour.) Cf. Atco-Surgical Supports, Inc, 157 NLRB 551, 553, footnote 2.9 Under well-settled authority, where a union has obtained authorization cards from a majority of the employees and the employer thereafter engages in unfair labor practices which prevent the holding of a fair election, he cannot be heard to say that he doubted the Union's majority in good faith, and a bargaining order will issue. In the instant case the Company contends that the Union never proffered the authorization cards as proof of its majority, and that this circumstance, partic- ularly when coupled with the Union's tender of similar cards on an earlier occa- sion, led the Company to doubt the Union's claim. This defense might well have been available had the Company refrained from unfair labor practices, but on this record the Company's illegal conduct precludes its assertion of a good-faith doubt. Cf. N.L.R.B. v. Frank C. Varney Co., 359 F.2d 774 (C.A. 3). Moreover, the Com- pany having foreclosed by illegal conduct the customary means of resolving majority, the proof of majority status may be made by cards, and in the light of such proof a bargaining order is appropriate to restore the status existing prior to the violation of Section 8 (a) (1), even assuming arguendo that the record did not warrant a finding of unlawful refusal to bargain. See, e.g, N.L.R.B. v. Delight Bakery, Inc., 353 F 2d 344, 347 (C.A. 6), and cases there cited; Local 152 v. N.L.R.B., 343 F 2d 307, 309 (C.A.D.C.), and cases there cited. This is not to say that any minor infringement of Section 8(a)(1) would warrant such relief But here the promises of benefit, the threats, and the coercive interviews can scarcely be termed minor; indeed their obvious purpose was to thwart the employees' effort to organize. 9 Although elimination of all five cards would not affect the Union's majority, I sum- marize here all the evidence and my conclusions with respect to the five employees in question : 1. Pflieger testified that Thatcher got him to sign card by representing that over 90 per- cent of the yard had signed. Admitted it was "possible" (as Thatcher had testified) that Thatcher had said over 90 percent of the people Thatcher had spoken to had signed Told Thatched that same day (October 30, before any unfair labor practices) in the course of a vigorous argument that he was against the Union, and hence in effect promptly repudiated his designation. For that reason, I would not count Pflieger's card. 2 Whippler testified that Thatcher told him, before he signed the card, that the pur- pose of the card was "just to get a vote to see if there was enough to have a vote for a union." Thatcher did not recall saying that to Whippler and denied that in soliciting generally he said the purpose of the card was to have an election. Whippler, like Pflieger, claimed "misrepresentation" as to 90 percent having signed, and also testified that Thatcher said Wallach knew of, and approved of, the union campaign. Whippler sought return of his card a week later (after the unfair labor practices and after the demand for recogni- tion). The question whether to count Whippler's card turns on resolution of the credibility issue between Thatcher and Whippler. I find it unnecessary to resolve that issue at this time, but note for the record that both men are still employed by the Company, that Whippler first mentioned the "just for a vote" statement in connection with his effort to recover his card, and that Pflieger, who was present at the soliciting of Whippler, testi- fied that Thatcher had not stated what the purpose was of getting the cards signed. 3. Pergolski testified that Hill, soliciting his signature, told him to sign if he wanted to hear what the Union had to offer, "so I signed the card." Also testified that Hill said he had "90 percent of the west end" signed. Hill testified that he might have said we have quite a few signed up, but denied using any such percentage. I would count Pergolski's card, as, by his testimony, Hill's "puffing" statement of percentages, assuming it was made, was not a factor in the card signing. See Harry Epstein, et al. d/b/a Top Mode Manufac- turing Co., 97 NLRB 1273, 1296, enfd. 203 F.2d 482 (C.A. 3), cert. denied 347 U S. 912. 4. Bousley testified that Franson, soliciting his signature, said that Wallach knew about it, that "It didn't mean a thing," and that "It was just to see how many men they could get to join the Union and it didn't mean nothing if we signed it " Bousley unsuccessfully sought the return of his card a week later (after the commission of unfair labor practices, and after the demand for recognition), testifying that he had learned on a visit to another scrap yard that the Union would not benefit him. I would count Bousley's card. 5. Boruch testified that Hill, soliciting his card, said the Union needed 52 percent of the employees to sign cards in order to get an election, and that the card meant nothing "unless we got enough to get an election." Hill did not recall talking to Boruch, but testi- fied that he told the employees he solicited that the card was self-explanatory and "there would probably be an election." I would be inclined to count Boruch's card WAUSAU STEEL CORPORATION 643 CONCLUSIONS OF LAW Respondent by promising benefits to its employees to induce them to oppose unionization, by threatening reprisals if the Union became the bargaining repre- sentative, and by coercive interrogation into the reasons for employee support of the Union engaged in unfair labor practices affecting commerce within the meaning of Sections 8(a)(1) and 2(6) and (7) of the Act. 2. By refusing to bargain with the Union as representative of the employees in the agreed appropriate bargaining unit, the Company engaged in an unfair labor practice affecting commerce within the meaning of Sections 8(a)(5) and (1) and 2(6) and (7) of the Act. THE REMEDY I shall recommend an order directing the Company to cease and desist from its unfair labor practices, to bargain with the Union upon request (a provision I would include to remedy the violation of Section 8(a) (1) even had there been no viola- tion of Section 8(a) (5) ), and to post appropriate notices. I further recommend that the election conducted in Case 30-RC-358 be set aside, that the petition therein be dismissed, and that all proceedings pursuant thereto be vacated. Accordingly, on the basis of the foregoing findings and conclusions, and on the entire record, I recommend, pursuant to Section 10(c) of the Act, issuance of the following: ORDER A. Respondent, Wausau Steel Corporation, its officers, agents, successors, and assigns, shall: 1. Cease and desist from: (a) Refusing to bargain with Shopmen's Local Union #811, International Asso- ciation of Bridge, Structural and Ornamental Iron Workers (AFL-CIO), as the exclusive representative of the employees in the following appropriate unit: All production and maintenance employees of the Respondent at its Wausau, Wisconsin, plant, excluding office clerical employees, technical employees, and professional employees, guards and supervisors as defined in the Act. (b) Expressly or impliedly threatening its employees with loss of employment, loss of benefits, or closing of the plant because of their choice of a collective- bargaining representative. (c) Promising employees benefits in an effort to persuade them to reject the Union as their bargaining representative. (d) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their rights under Section 7 of the Act. 2. Take the following affirmative action necessary to effectuate the policies of the Act: (a) Upon request, bargain collectively with the above-named Union as the exclu- sive representative of all employees in the above-described appropriate unit, and embody in a signed agreement any understanding reached. (b) Post at its plant at Wausau, Wisconsin, the attached notice marked "Appen- dix." 10 Copies of such notice to be furnished by the Regional Director for Region 13, after being signed by an authorized representative of the Respondent, shall be posted immediately upon the receipt thereof, and be mainained by it for a period of 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the Respondent to insure that such notices are not altered, defaced, or covered by any other material. 10 In the event that this Recommended Order is- adopted by the Board, the words "a Decision and Order" shall be substituted for the words "the Recommended Order of a Trial Examiner" in the notice. In the further event that the Board's Order be enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Appeals Enforcing an Order" shall be substituted for the words "a Decision and Order." 644 DECISIONS OF NATIONAL LABOR RELATIONS BOARD (c) Notify the said Regional Director, in writing, within 20 days from the date of its receipt of this Decision, what steps the Respondent has taken to comply herewith." B. The election in Case 30-RC-358 is set aside, and that proceeding is hereby vacated. "In the event that this Recommended Order is adopted by the Board• this provision shall be modified to read "Notify said Regional Director, in writing, within 10 days from the date of this Order, what steps the Respondent has taken to comply herewith." APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Examiner of the National Labor Relations Board, and in order to effectuate the policies of the Naional Labor Rela- tions Act, as amended, we hereby notify our employees that: WE WILL bargain upon request with Shopmen's Local Union #811, Interna- tional Association of Bridge, Structural and Ornamental Iron Workers (AFL- CIO), as the exclusive representative of our production and maintenance employees. WE WILL NOT threaten to close all or part of the plant or to reduce over- time because of our employees' choice of a collective-bargaining representative. WE WILL NOT promise benefits to our employees in an effort to cause them to reject the Union as their bargaining representative. WE WILL NOT in any like or related manner interfere with our employees in the exercise of their right to join or assist a labor organization, to bargain col- lectively, or to engage in concerted activities for mutual aid or protection. WAUSAU STEEL CORPORATION, Employer. Dated------------------- By------------------------------------------- (Representative) (Title) 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. If employees have any question concerning this notice or compliance with its pro- visions, they may communicate directly with the Board's Regional Office, Room 230, Commerce Building, 744 North Fourth Street, Milwaukee, Wisconsin 53203, Telephone 272-8600, Extension 3866. Signal Oil and Gas Company and Teamsters, Chauffeurs, Ware- housemen & Helpers Local 87, International Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of America. Case 31-CA-2O7. August 24,1966 DECISION AND ORDER On May 18,'1966, Trial Examiner Louis S. Penfield issued his Decision in the above-entitled proceeding, finding that the Respond- ent had engaged in certain unfair labor practices and recommending that it cease and desist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Decision. Thereafter, the Respondent filed exceptions to the Trial Examiner's Decision and a supporting brief. 160 NLRB No. 51.