Fabricators, Inc.

140 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Fabricators, Incorporated and Assortment Sheet Metal Workers Local Union No. 383, affiliated with the Sheet Metal Workers Association, AFL-CIO. Cases 19-CA-3303 and 19-RC-3822 November 8, 1967 DECISION AND ORDER BY CHAIRMAN MCCULLOCH AND MEMBERS FANNING AND BROWN On June 23, 1967, Trial Examiner Louis S. Pen- field issued his Decision in the above-entitled proceeding, finding that Respondent had engaged in certain unfair labor practices in violation of Sec- tion 8(a)(1) of the National Labor Relations Act, as amended, and recommending that it cease and de- sist therefrom and take certain affirmative action, as set forth in the attached Trial Examiner's Deci- sion. He also found that Respondent had not en- gaged in certain other unfair labor practices in viola- tion of Section 8(a)(1) and (5) of the Act, and recommended that such allegations of the complaint be dismissed. Thereafter, the General Counsel and the Charging Party (hereinafter also referred to as the Union) filed exceptions to the Trial Examiner's Decision and supporting briefs, and the Respondent filed cross-exceptions and an answering 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 powers in connection with this case to a three- member panel. The Board has reviewed the rulings of the Trial Examiner made at the hearing and finds that no prejudicial error was committed. The rulings are hereby affirmed. The Board has considered the Trial Examiner's Decision, the exceptions, cross- exceptions and briefs, and the entire record in the case, and hereby adopts the findings, conclusions, and recommendations of the Trial Examiner, ex- cept as modified herein. As more fully set forth by the Trial Examiner, on December 3, 1965, the Union, which had secured signed authorization cards from a majority of the employees then in the appropriate unit , asked the Respondent for recognition as exclusive bargaining representative, and offered to submit the cards to a neutral third party for verification of its majority status. The Union filed a petition for an election the same day. Respondent, on or about December 10, 1965, expressed its doubt as to the Union's majori- ty, and the appropriateness of the requested unit, and declined recognition pending the outcome of the Union's election petition. The Union lost the election conducted on January 19, 1966. OnJanua- ry 21, 1966, the Union filed the present charges against the Respondent, and on January 25, 1966, filed timely objections to the conduct of the elec- tion. 1. The Trial Examiner found, and we agree, that Respondent violated Section 8(a)(1) of the Act by the following conduct: During the Union's organizing campaign, and be- fore the Union requested recognition, General Manager Schlamp interrogated several employees regarding their knowledge of union activities. He also asked two of them to report any information concerning union activity which they might obtain in the future; he told a third employee he had spoken to the first two, that employees did not need a union, and that Respondent did not want one. After the Union's demand, Respondent's President Jagoe interrogated another employee as to whether employees discussed the Union, what they thought about the Union, and what she thought about it. Within a week after Respondent's refusal to recog- nize the Union, Foreman Salemsaas told an em- ployee working under him that she "should get over" to the other employees that there would be layoffs if the plant were organized. Salemsaas asked another employee' during this period whether she had been approached by the Union, how she knew about a union meeting, and for the name of the Union's spokeman. And on the day before the aforementioned elec- tion, Respondent's president stated to a group of employees that he believed there was a "troublemaker" in their midst, and that if the identi- ty of this troublemaker were discovered, "something would be done about it" and such "trouble" would be eliminated. 2. The Trial Examiner found that the Union represented a majority of Respondent's employees in an appropriate unit when, on December 3, it de- manded recognition, offered to prove its majority status, and requested bargaining. He concluded, however, that Respondent did not in bad faith refuse to recognize the Union when it subsequently insisted upon a Board election. Accordingly, he recommended dismissal of the Section 8(a)(5) al- legation of the complaint. The Charging Party and General Counsel have excepted to the finding and recommendation, and we find merit in the excep- tions. The Board has long held that an employer may decline to recognize a labor organization and await the holding of a Board election if it is motivated by a good-faith doubt as to the Union's majority status. Where, however, the Employer's refusal is motivated by a rejection of the collective-bargaining I The Trial Examiner inadvertently refers to the employee as Faye Manser in the latter part of his Decision , but the transcript and other reference to this interrogation in the Decision show that Salemsaas inter- rogated Beatrice Gove at this time 168 NLRB No. 21 FABRICATORS, INC. 141 principle or a desire to gain time within which to un- dermine the Union and dissipate its majority, the Employer's refusal is found violative of Section 8(a)(5) and (1) of the Act.2 In meeting with a group of employees for the pur- pose of discussing employee grievances, the day be- fore the election, President Jagoe threatened that if the "troublemaker" were identified the trouble would be eliminated. And a department foreman made a threat of layoffs if the Union came in, with an admonition to an employee to spread this warn- ing, which the employee obeyed. In our judgment, these threats of serious reprisals plainly reflects Respondent's attitude toward its employees' unionization.3 These unfair labor practices, coupled with unlawful interrogations by Jagoe and other responsible company representatives, occurring both before4 and after Respondent's refusal to ex- tend' recognition, clearly support an inference of bad faith on the part of Respondent. We therefore find that the record evidence establishes Respond- ent's unlawful motivation, and we conclude that on and after December 10, 1965, Respondent refused to bargain with the Union in violation of Section 8(a)(5) and (1) of the Act. In any event, an order directing the Respondent to bargain with the Union, upon request, is necessa- ry to remedy the effects of its other unfair labor practices. The record establishes that the Union had a majority when the Respondent began its course of unfair labor practices directed at destroy- ing this support. The subsequent diminution of sup- port, as revealed by the Union's loss in the election, can only be attributed to the Respondent's unlawful conduct.5 Therefore, we shall order the Respondent to bargain, upon request, with the Union both to remedy its violation of Section 8(a)(5) and its viola- tions of Section 8(a)(1) of the Act. ORDER wages, hours, and other terms and conditions of em- ployment with Assortment Sheet Metal Workers Local Union No. 383, affiliated with the Sheet Metal Workers Association, AFL-CIO, as the ex- clusive bargaining representative of its employees in the following appropriate unit: All production and maintenance employees employed by the Employer in its plants on South Hudson and South Dawson Streets, Seattle, Washington, including quality control employees and production control employees, but excluding sales employees, purchasing em- ployees, office clerical employees, engineering and planning employees, professional em- ployees, guards, and supervisors as defined in the Act." 2. Renumber paragraphs 2(a) and 2(b) as para- graphs 2(b) and 2(c), and insert the following as paragraph 2(a): "(a) Upon request, bargain with the above- named labor organization as the exclusive represent- ative of all the employees in the aforesaid ap- propriate unit with respect to rates of pay, wages, hours, and other terms and conditions of employ- ment, and, if an understanding is reached, embody such understanding in a signed agreement." 3. Delete from renumbered paragraph 2(c) of the Trial Examiner's Recommended Order that part thereof which reads "to be furnished" and sub- stitute therefor "on forms provided. . . . " 4. In the Appendix to the Trial Examiner's Recommended Order entitled "Notice to All Em- ployees," prior to the paragraph beginning with the words "WE WILL NOT unlawfully interrogate ... insert the following paragraphs: WE WILL NOT refuse to bargain collectively with Assortment Sheet Metal Workers Local Union No. 383, affiliated with the Sheet Metal Workers Association, AFL-CIO, as the exclu- sive representative of the employees in the ap- propriate bargaining unit. The appropriate unit is: Pursuant to Section 10(c) of the National Labor Relations Act, as amended, the National Labor Relations Board adopts as its Order the Recom- mended Order of the Trial Examiner and hereby or- ders that the Respondent, Fabricators, Incor- porated, Seattle, Washington, its officers, agents, successors, and assigns, shall take the action set forth in the Trial Examiner's Recommended Order, as so modified: 1. Renumber paragraphs 1(a) and 1(b) as para- graphs 1(b) and 1(c) and insert the following as paragraph I (a): "(a) Refusing to bargain collectively concerning 1 Joy Silk Mills, Inc, 85 NLRB 1263, enfd as modified on other grounds 185 F -2d 732(C A D C ),cert. denied 341 US. 914 3 Cf Galbreath Bakery, Inc, 163 NLRB 408, in 7, where we distin- guished a number of cases reaching a contrary result because the conduct involved was isolated or otherwise insufficient to vitiate the employer's All production and maintenance em- ployees employed by the Employer in its plants on South Hudson and South Dawson Streets, Seattle, Washington, in- cluding quality control employees and production control employees, but exclud- ing sales employees, purchasing em- ployees, office clerical employees, en- gineering and planning employees, profes- sional employees, guards, and supervisors as defined in the Act. WE WILL bargain, upon request, with the good faith . See, e g , Harvard Coated Products Co , 156 NLRB 162; Hammond & Irving, Inc , 154 NLRB 1071, Clermont's, Inc , 154 N LRB 1397 4 United Mineral & Chemical Corp , 155 NLRB 1390, 1394, fn. 9 1 Bryant Chucking Grinder Company, 160 N LRB 1526 142 DECISIONS OF NATIONAL LABOR RELATIONS BOARD above-named Union as the exclusive bargain- ing representative of all employees in the unit described above , with respect to wages, hours, and other terms and conditions of employment, and, if an understanding is reached , embody such understanding in a signed agreement. IT IS HEREBY FURTHERED ORDERED that the elec- tion heretofore held in Case 19-RC-3822, be, and it hereby is, set aside. TRIAL EXAMINER'S DECISION STATEMENT OF THE CASE Louis S. PENFIELD, Trial Examiner: This proceeding, with all parties represented, was heard before me in Seat- tle, Washington, on January 24, 25, and 26, 1967, upon a complaint of the General Counsel and answer of Fabricators, Incorporated, herein called Respondent. The complaint proceeding was consolidated with a representation proceeding with respect to issues raised by objections to the conduct of an election conducted in the representation case.' The issues litigated were whether Respondent violated Section 8(a)(1) and (5) of the Na- tional Labor Relations Act, as amended, herein called the Act, and whether or not certain objections to the conduct of the election not ruled upon by the Regional Director raised substantial and material issues with respect to con- duct affecting the results of the election. Upon the entire record, including consideration of briefs filed by the General Counsel and Respondent, and upon my observation of the witnesses, I hereby make the following: FINDINGS OF FACT 1. THE BUSINESS OF RESPONDENT Respondent is a Washington corporation which is en- gaged in business at Seattle, Washington, in the manufac- ture and processing of parts for aircraft and other indus- tries. During the year ending December 31, 1965, Respondent purchased goods for use in its business valued at more than $50,000 which were shipped to it directly from points outside the State of Washington, and during the same period it sold goods and services valued in excess of $50,000 to Boeing Company, a firm which in turn annually produces and sells products valued in ex- cess of $50,000 directly to points outside the State of Washington. I find the business of Respondent affects commerce within the meaning of the Act, and the asser- tion of jurisdiction by the Board to be appropriate. II. THE LABOR ORGANIZATION INVOLVED Assortment Sheet Metal Workers Local Union No. 383, affiliated with the Sheet Metal Workers Association, AFL-CIO, herein called the Union, is a labor organiza- tion within the meaning of Section 2(5) of the Act. The complaint issued on March 31, 1966, and is based upon a charge and an amended charge filed on January 21, 1966, and March 29, 1966, respectively Copies of the complaint, the charge, and the amended charge have been duly served on Respondent III. THE ALLEGED UNFAIR LABOR PRACTICES A. Prefatory Statement In the complaint case , the General Counsel alleges the Union to be the statutory representative of Respondent's employees , and further alleges that at all times since December 10, 1965, Respondent unlawfully refused to accord it recognition as such representative by engaging in a course of conduct calculated to dissipate union sup- port and indicating rejection of the collective-bargaining principle , thereby refusing to bargain collectively in good faith as required by the statute. Respondent denies that the Union at any time became the statutory representa- tive of its employees , denies the appropriate character of the unit alleged , and denies that it engaged in an unlawful course of conduct undermining the majority , or that it acted in derogation of the collective -bargaining principle. The Union commenced organizational efforts among the Respondent's employees in November of 1965. On December 3, 1965, the Union requested recognition of Respondent as the statutory representative of its em- ployees, and on the same date it filed a representation proceeding in 19-RC-3822. On or about December 10, 1965, under circumstances to be described more fully below, Respondent declined to accord the Union the recognition requested. Thereafter, a hearing was held in the representation case on December 21, 1965, and a Decision and Direction of Election was issued by the Re- gional Director on January 6, 1966 . An election was thereafter conducted on January 19, 1966, in which a majority of the employees voted against union represen- tation. Timely objections to the conduct of the election were filed , and on March 29, 1966, the Regional Director issued a Supplemental Decision and Direction whereby he overruled one objection , and directed that the issues raised by five objections be determined after a formal hearing in a proceeding to be consolidated with a hearing on the complaint simultaneously issued.2 This consolidated proceeding involves a plant employ- ing between 120 and 130 persons . Respondent's pre- sident is Allison N. Jagoe. Its general manager is Kirk Schlamp. Marlyn Salemsaas is a foreman. The superviso- ry status of each of the foregoing is conceded, but dispute exists as to the responsibility of Respondent for the con- duct of an employee named Robert Boettinger, alleged by the General Counsel to be Respondent 's "agent or representative." This issue will be discussed below. B. The Demand, the Refusal, and the Appropriate Unit On December 3, 1965, the Union addressed a letter to Respondent advising it that the Union represented a majority of its employees in an alleged appropriate unit, demanding that Respondent recognize it as the statutory representative of such employees, and requesting a meet- ing for the purpose of negotiating a collective-bargaining agreement. In addition to the foregoing, the Union of- 2 The Regional Director found statements in a letter to employees and statements to the employees made in a speech to be privileged within the meaning of Section 8(c) of the Act Alleged granting of wage increases, threats of reprisals and promises of benefits , sponsorship of grievance committee, and interrogation of employees as to their union activity, how- ever, were found to raise issues regarding the election which were best resolved after hearing. With the exception of the wage increases which were not alleged in the complaint or litigated at the hearing, the objections are coextensive with allegations of the complaint FABRICATORS, INC. fered to make its authorization cards available to a neutral person for the purpose of verifying its majority status. On the same day the Union filed its petition in Case 19-RC-3822. Respondent's attorney called the Union on December 3, 1965, to advise it that Respondent could not meet as requested on Monday, December 6, but would agree to meet on Friday, December 10. In this ini- tial response the attorney made no representation as to Respondent's position regarding recognition. Following receipt of this request for recognition, Respondent en- gaged the services of Washington Metal Trades, Inc., a labor relations association, to represent it for collective- bargaining purposes. Washington Metal Trades advised the Union that thereafter it would undertake all future dealings with the Union on behalf of Respondent. C. The Majority 143 The General Counsel alleges, and Respondent denies, that on December 10, 1965, the date upon which I have found above that Respondent refused to accord the Union recognition as the statutory representative of its employees, the Union represented a majority of the em- ployees in the appropriate unit. On December 10, 1965, there were 125 persons in the appropriate unit whose names were on Respondent's payroll.3 In the course of its organizational campaign, the Union circulated, and solicited Respondent's employees, to sign cards with the following legend: Although a minor dispute exists as to the precise timing SHEET METAL WORKERS' INTERNATIONAL of the notification , at least by December 10, either ASSOCIATION Respondent or Washington Metal Trades had advised the AFFILIATED WITH AFL-CIO Union that despite the Union 's expressed willingness to AUTHORIZATION FOR REPRESENTATION agree to a card check, Respondent questioned its majority and questioned the propriety of the unit alleged , and that inasmuch as a petition for an election had been filed, Respondent would withhold recognition until the question concerning representation had been resolved by the Board. Upon the basis of the foregoing , I find the Union to have requested recognition as the statutory representa- tive of Respondent 's employees on December 3, 1965, that its demand was a continuing one, and that on December 10, 1965, Respondent declined to accord it recognition pending resolution by the Board of unit and majority status issues. At the representation hearing, the Union urged a unit limited to Respondent's production and maintenance em- ployees. Respondent contended that the unit should also include its machine shop employees . Respondent disputed the inclusion of certain fringe groups specifically those classified as quality control employees and produc- tion control employees. The Regional Director ruled the machine shop and the fringe groups each to be properly a part of the appropriate unit . An election was directed on January 6, 1966, among employees in the following unit: All production and maintenance employees em- ployed by the Employer in its plants on South Hud- son and South Dawson Streets , Seattle, Washington, including quality control employees and production control employees , but excluding sales employees, purchasing employees , office clerical employees, en- gineering and planning employees, professional em- ployees, guards , and supervisors as defined in the Act. In the present proceeding, Respondent undertakes to preserve its original unit position. but offers no further evidence in support thereof. Accordingly, I find that the above-described unit heretofore found as appropriate by the Regional Director in the representation case to be ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 3 The above figure was determined from an examination of G. C Exh. 16, a list of Respondent 's unit employees between December I and 15 The list contained a total of 135 names I struck from the list the names of the following employees whose employment appears to have terminated between December I and 10, 1965 Wallace Birdwell, Kathleen Boss, Winifred Garrick, Marion Henneke, William F Hudnall , Lovell D Knoblauch , Garry L. Marsh, Harold W Peterson , and Susan I Tharp The name of one other employee, Bob J Hansen , was also deleted since I, the undersigned, hereby authorize the SHEET METAL WORKERS INTERNATIONAL AS- SOCIATION, or any affiliated Local Union thereof, to represent me for purposes of Collective Bargain- ing, and in my behalf, to negotiate and conclude all agreements as to hours of labor, wages, and other conditions of employment. Name Tel. No. Address City Employed by Shift Classification Wage Rate Date (Signed) General Counsel introduced into the record 63 authorization cards with the stipulation that each card had been signed by an employee of Respondent, that the signatures thereon had been compared with company records, and that each card appeared to have been ex- ecuted by the employee named thereon. It was further stipulated that the date stamp on the back of each card represented the date upon which such card was delivered to the Board's Regional Office in Seattle by the Union. Each of the 63 cards authenticated pursuant to the foregoing stipulation bears a date in either November 1965 or a date in December, prior to December 10, 1965. Absent evidence to the contrary, it is presumed, and I -find, that each of the 63 cards was dated and signed on the date appearing thereon. In addition to the 63 cards, the General Counsel un- dertook to authenticate 13 additional cards by testimony. Twelve witnesses authenticated their signatures. The signature of employee Ted Stuart was authenticated by another employee in whose presence Stuart had signed. One card was dated subsequent to December 10, 1965, and one other was signed by an employee who quit before that date. It was established that each of the remaining I I cards was signed on a date on or before December 10, 1965.4 I find these I I cards to be sufficiently authen- it appeared that he was first employed on December 13, 1965. The card of Beatrice Gove was dated on December 12, 1965 The payroll records show Wallace Birdwell to have terminated his employ- ment prior to December 10, 1965 . Both cards will be disregarded in deter- mining the Union's majority The remaining I I include the following names West Kelley, Ira B Moore, Jr , Gertrude Caffell, Malone Bolton, Ted Stuart, Ellen Jimenez, Larry Oldham, Jacob Knaus, Marion Ruggles, Dolores Anderson, and Russel Ellis 144 DECISIONS OF NATIONAL LABOR RELATIONS BOARD ticated and that each bears the signature of an employee of Respondent whose name appears on Respondent's payroll on December 10, 1965. While Respondent does not contest the proposition that there are a total of 74 authenticated authorization cards bearing the names of persons on the December 10, 1965, payroll, it questions the propriety of the use of these cards generally to establish the Union's majority and attacks the validity of certain of the cards specifi- cally. Respondent's general challenge to the use of the cards is based on testimony of employee witnesses which Respondent claims supports an inference that all cards were obtained by misrepresentations, and thus cannot reasonably be regarded as showing that the signers thereof designated the Union as their representative. Its specific attack is limited to 10 cards alleged not to have come into the Union's possession until after December 10, 1965, others allegedly obtained by representations that initiation fees would be waived, and 9 cards alleged to be invalid because of specific misrepresentations as to purpose. If all cards specifically attacked be found in- valid, the Union would not have a majority. It is undisputed that the organizational campaign was carried on by both paid union representatives and by a plant committee of employees each one of whom solicited signatures of employees to the cards, and discussed the Union and its various objectives with the employees so- licited. John Lubetich, International organizer for the Union, was in charge of the organizational drive. He testified, without contradiction, that during the course of the drive he spoke individually and collectively with em- ployees or groups of employees explaining to them, when urging that they sign authorization cards, that in order to obtain a Board election it was necessary to have a certain number of cards, and that if 51 percent or more of the em- ployees signed such cards prior to the election, it might be possible to get management to bargain without an elec- tion . He testified that during the campaign his meetings with employees took place almost daily and that, although it was his opinion that the language on the card itself was abundantly clear, he undertook continually to explain the dual purposes for which the cards might be used. Lu- betich stated further that all cards which were in his pos- session at the time the petition was filed on December 3, 1965, were at that time submitted to the Board's Regional Office, and that thereafter he undertook to submit to the Board such additional cards "as fast as [he] got them." As to 10 of the 63 authenticated cards Respondent urges that despite the fact that each bears a date showing- it to have been signed before December 10, 1965, each also bears a Regional Office date stamp showing that it had not been delivered to the Regional Office until December 13 or 15. It is argued that since Lubetich represents that he turned over signed cards to the Re- gional Office as soon as possible, it must be assumed that these cards were not in possession of the Union on December 10, and thus cannot be counted to determine the Union's majority. Union Representative Lubetich testified that while he personally solicited many cards, others were solicited by employees on the "in-plant com- mittee." While nothing in the record affirmatively establishes the exact time that any card came into posses- sion of Lubetich or any other union representative, neither is it affirmatively shown that any card was not received by a union representative on the date which ap- pears thereon. Lubetich testified only that it was true that as to "most of them, as fast as [he] got them [he] turned them over to the Labor Board, and in some cases this would occur on the same day." Lubetich was not asked, however, and no evidence was adduced to show, the tim- ing of the turnover to the Board of any particular card, in- cluding the 10 to which Respondent refers. Respondent, in effect, asks that I infer from the Regional Office date stamp alone that the employees signing cards dated earli- er had not thereby designated the Union because presumably such cards had not come into the Union's possession before December 10. 1 would not necessarily regard possession of a card by a union on a certain date as an essential element to establish majority if it could be proven that the card actually had been signed by the em- ployee on that date. In the instant case, even if we were to assume possession by the Union to be a requirement to prove majority, I would nevertheless find such require- ment to have been fulfilled. Lodging the card with the Board is not an essential to establish majority, and the Regional Office date stamp has little probative value for such purpose. Absent evidence to the contrary, it is a fair assumption that the 10 cards in question were both signed and delivered to the solicitor on the dates which they bear. The solicitors must be regarded as union agents, and delivery to them as possession by the Union. The fact that "most of them" were turned over to the Board by the paid representative soon after he got them shows neither when the solicitor got the card, or that any specific card was not held for a longer period and its delivery to the Re- gional Office delayed. Upon the basis of the foregoing, I reject Respondent's attack on the validity of these 10 cards, and find that each should be counted in computing the Union's majority. Respondent specifically attacks the validity of some cards on the ground that the solicitors had represented that, if such cards were signed before the Union was selected as the representative, initiation fees would be waived. Unquestionably, representations of such nature were made in some instances, although only three or four employees testified along such lines and it would not ap- pear that the waiver representations were a broadly based aspect of the organizational drive. Even if we assume to the contrary, however, the Board's present view is that general representations of this nature will not invalidate cards for majority purposes. If an employer has refused to bargain in good faith with a union , the Board's rationale as to counting cards to determine its majority is expressed in the following: If, as the court says, the cards are now the equivalent of votes, it was Respondent who made them so. If we should now refuse to recognize the Union's majority status because the Respondent destroyed the basis for a fair election, we would be bestowing on the guil- ty party the very advantage which it hoped to gain when it committed its unfair labor practices. Since the Union was unlawfully deprived of a chance to establish its majority through a Board-conducted election, we believe that equity requires that the validity of the authorization cards should now be judged by the principles which would have been ap- plied if the Union had won the election, and if the Respondent was now seeking to overturn it on the ground that the waiver of initiation fees had inter- fered with the election.5 5 Gorbea , Perez & Morell , 142 NLRB 475, 477 FABRICATORS, INC. 145 With respect to an attack on an election on such grounds, very recently the Board has had occasion to reconsider a line of cases which had indicated that in certain circum- stances waiver of initiation fees might serve to invalidate an' election. In Dit-Mco, Inc., 163 NLRB 1019, the Board reversed its position in this regard and overruled objections to an election, holding that waivers or provi- sional waivers of union initiation fees, whether condi- tioned upon the result of an election or not , had no im- proper effect on the freedom of choice of the electorate and did not constitute a basis for setting aside an election. If such be the basic principle , then all cards obtained herein must be counted to determine the majority for reasons set forth in the quotation above. Accordingly, Respondent's attack on any card premised on an asser- tion of initiation waiver must be rejected. In considering Respondent's general attack on the use of the cards, it must be noted first that the legend on the card itself spells out a clear and unambiguous authoriza- tion for the Union to represent the signer for collective- bargaining purposes. All 20 of the employee witnesses who testified impressed me as not only literate but also reasonably well educated. I assume that these witnesses constituted a representative cross section of the unit em- ployees as a whole. In most instances when asked if they had read and understood the language on the authoriza- tion card they answered in the affirmative. Respondent made diligent efforts to draw from both his own and the General Counsel's witnesses admissions as to representa- tions by the solicitors. As will be noted more fully below, some witnesses state that solicitors represented that sign- ing was for the purpose of obtaining an election or to enable the employees to get more information. In no in- stance, however, did any witness testify that the solicitor represented such end as the sole purpose of signing. Since Respondent has singled out nine employees as representing not the only but the most obvious victims of the alleged misrepresentations , a consideration of this testimony should not only resolve their individual cases but in addition should be indicative of the circumstances surrounding the solicitation generally and provide a basis for evaluating Respondent 's claims. Ira B. Moore, Jr., testified that he read the card and un- derstood it. On cross-examination by Respondent he testified that he was told that there would be an election and that a purpose, but not the only purpose, of the card was to get an election. Gertrude Caffell testified that she read the card, that she was told she wouldn 't have to pay an initiation fee if she signed it, and that the Union needed a certain number of cards if it was to have an election. Larry Oldham testified that he understood the card when he read it, but that he was also told that its purpose was "so that the union could contact us" and "if there were enough cards ... could demand an election." Jacob A. Knaus testified that he was told that the pur- pose of the card was "so that he could receive informa- tion on the union." Knaus testified that despite signing the card he had not read it. Marion Ruggles testified that the solicitor had told her that by signing the card she would be able to attend union meetings and hear what the Union had to offer. She testified that she did not understand that by signing the card she was authorizing the Union to represent her. Lorene Barnhouse testified that she was told by the so- licitor that the card meant that she wanted to be represented by the Union. She further testified that she believed there would be an election and that this in- fluenced her signing the card. Dorothy Morisaki testified that the solicitor advised her that there would be an election . However, she further testified that no one told her that this was the only pur- pose for the card, and that she understood when she signed it that she was authorizing the Union to represent her. Mirek Pomierny testified that he was told that if he signed the card there would possibly be an election. He further testified that at the time of signing he wanted to be represented by the Union. Wilmot Bellamy testified that he was told the purpose of the card was to determine the number of people in- terested in obtaining information about the Union and that, if a certain percentage signed , there might be an elec- tion. It is noteworthy that not one testified that he was told to disregard the card or that it had a sole purpose contrary to the legend on it. At the most these witnesses indicate that they paid scant attention to the legend or assumed that something further would happen before the Union took over as the bargaining representative. In determining the validity of authorization cards, the Board and the courts have uniformly held the wording on the card itself to be of paramount importance . Where a card is clear on its face as designating a union as the bar- gaining agent, it is not to be regarded as subject to parol impeachment merely because the employee was told that the purpose of the card was also to secure an election. Thus, if the card itself effectively advises the employee that it has a purpose to designate the union as his bargain- ing agent, its validity will be subject to attack only where the solicitor making the oral inducement expressly states the only purpose to be other than what the card states.6 The clear and unambiguous language on the face of the card in the instant case should not lightly be disregarded as a statement of its basic purpose . Any representation that the card also had a purpose of enabling the employee to get additional information or to get an election is no more than a true statement of a concurrent purpose and is not a misrepresentation. While it may be true , as some testified, that each did not fully understand all the ramifi- cations that might follow his signing a card , this did not come about because they were misinformed by the solici- tors. In the circumstances here disclosed , to find that an employee did not understand that by signing the clear and unambiguously worded card he was designating the Union as his representative would be either to downgrade his apparent intelligence_ or to charge him with irresponsi- bility. Upon the basis of the foregoing, I find that Re- spondent has not established that any one of the nine cards it specifically attacks is invalid or that the cards generally were obtained in circumstances that warrant disregarding their validity for purposes of determining the Union's majority. Accordingly, I find that it has not been established that any of the 63 cards authenticated by stipulation or any of the 11 additional cards authenticated at the hearing is invalid for a purpose of designating the 6 Cumberland Shoe Corporation , 144 NLRB 1268 , Amalgamated N L R B , 365 F 2d 898, The Shelby Manufacturing Company, 155 Clothing Workers of America , AFL-CIO [Sagamore Shirt Company ] v. NLRB 464, 466 146 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Union as the collective-bargaining representative of the signer. Having heretofore found that on December 10, 1965, there was a total of 125 employees in the appropriate unit, that 74 of such employees had signed valid authorization cards dated on or before December 10, 1965, 1 further find that as of that date a majority of the employees in such unit had designated the Union as their collective- bargaining representative within the meaning of Section 9(a) of the Act. D. The Alleged Unlawful Acts of Interference, Restraint, and Coercion The General Counsel adduced evidence concerning conduct of Respondent occurring both prior to and after Respondent's refusal to recognize the Union on December 10, 1965. Included among the alleged acts of interference occur- ring prior to December 10, 1965, are the following: 1. In mid-November, Kirk Schlamp, Respondent's general manager, is alleged to have questioned two of Respondent's oldest employees, Anne Kennedy and Ger- trude Caffell about the Union. According to Kennedy, Schlamp asked her if she had heard about a union coming in. She replied that nobody had heard anything about any union, upon which Schlamp is alleged to have said, "We being the two oldest girls employed here, that he hoped that we would report any union activities to the manage- ment." Caffell's testimony corroborates that of Kennedy with regard to this incident. I credit the consistent testimony of Kennedy and Caffell and find that the con- versation occurred substantially as related above. 2. Susan Sphorer testified that Kirk Schlamp called her into his office sometime in November, for the purpose of discussing a problem which she was having with one of her fellow employees. She states that during the course of the conversation he asked her if she had heard anything about the Union. She states that Schlamp then went on to advise her that he had talked to Kennedy and Caffell about the Union, to which Sphorer replied that they had said nothing to her about it. Schlamp is then alleged to have said that Respondent "didn't want the union there and they didn't need it." Schlamp remembers calling Sphorer to his office about this time but he was unable to recall any discussion about the Union. I am satisfied that Sphorer's recollection in this connection is the more relia- ble and find that Schlamp made the remarks about the Union in substantially the manner set forth above. 3. Anne Kennedy testified that early in December a conversation occurred between her and President Jagoe during the course of which Jagoe asked her if any of the girls had discussed the Union with her. Kennedy replied that they had not. After this Kennedy states that Jagoe asked her what the girls thought about the Union. Ken- nedy replied that she could not tell him since they had not discussed it with her, whereupon he asked her what she thought about it. To this Kennedy states she responded by telling Jagoe "that when a business got as big as his he could expect the union to try to get in." Jagoe does not deny that such a conversation may have taken place, but he states that he does not recall it. Under the circum- stances, I find that the converstation took place in sub- stantially the manner to which Kennedy credibly testified.7 Following the December 10, 1965, refusal to recognize the Union, the Respondent is alleged to have engaged in other conduct claimed to interfere with employee rights and to indicate Respondent's rejection of the collective- bargaining principle. The following incidents are in- cluded: 1. Anne Kennedy testified that on or about December 16, 1965, Foreman Salemsaas told her that she "should get it over to the girls that if the union comes in there would be layoffs because Mr. Jagoe was not getting enough money for the passenger service units, and he could not afford to pay the union wage and possibly the contractor would go to a competitor." Kennedy reports that she did pass on information of this nature to the other girls. How widely she circulated such information is not shown, however. Salemsaas admits having a conversation with Kennedy concerning the Union, but in response to a direct question as to whether he told her that layoffs might occur he responded, "I don't know, I'm not sure I said that." In response to another direct question as to whether he asked her "to get across to the girls that there would be layoffs," he responded, "I asked to see what she could find out about the union." In view of Salemsaas' ad- mission that he had talked to Kennedy about the Union, that he had asked her to find out about the Union, and his uncertainty as to whether he said anything about layoffs if the Union came in, it is reasonable to conclude that the incident occurred in substantially the manner in which Kennedy credibly testified, and I so find. 2. Beatrice Gove testified that on January 6, 1966, Foreman Salemsaas, asked her who was the spokeman for the Union. When Gove replied that she did not know, Salemsaas then is alleged to have said, "You mean to tell me that you haven't been approached by this union?" Gove replied that she had not been, stating that she had only learned about the Union recently at a meeting. Salemsaas then asked her how she had found out about the meeting and she replied that she had heard about it from a "few of the girls." Salemsaas does not deny that such a conversation may have occurred stating only "it is possible, but I don't remember." I find that his question- ing of Gove occurred in substantially the manner to which she credibly testified. 3. The next incident for which Respondent is alleged to be responsible relates to the conduct of an employee named Robert Boettinger, whom the General Counsel claims to have acted as Respondent's "agent or represent- ative." According to Beatrice Gove and Faye Manser, witnesses for the General Counsel, Boettinger came to 7 In the complaint the General Counsel alleges that early in December Foreman Marlyn Salemsaas told an employee that management wanted to find out who started the union activity , and at the same time informed such employee that Jagoe wanted no union in the shop and that, if the ring- leaders were found, "God help them " The General Counsel called no witness to testify to such an incident and his efforts to query Salemsaas as to such conversation were met by an outright denial Accordingly , the al- legation stands unsupported in the record , and I so find. The General Counsel also adduced evidence indicating that employee Wallace Bird- well, when hired in September 1965, was queried by Kirk Schlamp about unions, with Schlamp indicating to Birdwell that he had worked in another shop that had gone broke because of a union, and that he would close the doors rather than see another union come in. This is not alleged as a viola- tion in the complaint and apparently the evidence was adduced only to show a hostile attitude by management toward union organization FABRICATORS, INC. 147 Respondent's so-called pod shop early in the day on January 17 and stated to them that he wanted to tell them how he felt about the Union . Boettinger went on to say that he "had belonged to a lot of unions ... that this union was a bunch of gangsters ," and that "we should get up a grievance committee." The women told Boettinger that they had heard that Jagoe would not talk with them. To this Boettinger is alleged to have replied , "Well, if you can't talk to Mr. Jagoe, you can come and bring it to me personally and I 'll go to see Mr. Jagoe and I'll see that something is done ." Following this conversation, Gove and Manser prepared a list of grievances and immediately undertook to approach Jagoe directly concerning a meet- ing. The meeting which took place on the following day will be discussed below. Although the General - )unsel alleges Boettinger to be an agent of Respondent , he does not claim that Boettinger occupied a supervisory status. Boettinger himself did not testify. Jagoe testified that Boettinger was hired "to schedule production," that he was an hourly employee who worked directly under Kirk Schlamp , and that he had no supervisory authority and no power to hire or fire. Jagoe states that it was Boettinger's job to plan produc- tion on certain jobs in such a manner that they would progress efficiently . Boettinger's work was carried on in an office located on the same floor as that of Jagoe and he shared office space with two engineers . Boettinger's name was included on the eligibility list used in the Board election but, when he appeared to vote at the election, his ballot was challenged . The issue of his eligibility has never been resolved . In the representation proceeding there was a dispute concerning the inclusion of the category of quality control and production control em- ployees in the unit. The Board found both groups properly to be included . Jagoe was unable to place Boettinger as clealy within either category . His descrip- tion of Boettinger 's duties, however, would appear to characterize him more nearly as a production control em- ployee than anything else and presumably it was for this reason that his name was included on the eligibility list. There is no direct evidence that Boettinger was ever designated to act for management to suggest to em- ployees that they form their own grievance committee, or to convey to them management's views about the Union. According to Jagoe , it had come to management's atten- tion that Boettinger had been talking to employees in the pod shop, but it is not shown that management had authorized him to present its views, or that it had acted in one way or another to promote or prevent his talking to the employees . Nothing in the testimony of the General Counsel's witnesses suggests that Boettinger held himself out to them as a management representative or that they regarded him as occupying a special status of this nature. On the contrary from their testimony, it would appear that Boettinger represented himself as an eligible fellow voter. Under the circumstances I am convinced , and find, that the General Counsel has not established Boettinger to have been acting as an agent or representative of management. Therefore , Respondent is not responsible for his conduct , and the allegations in the complaint re- garding his alleged threats and suggestion that the em- ployees form a grievance committee cannot be sustained as violations of Section 8(a)(1). 4. The General Counsel contends that during the course of the so-called grievance meeting when Jagoe met the employees on January 18, 1966, Jagoe made certain coercive statements . As noted above after Boettinger had suggested to the employees that they make an effort to see Jagoe about their grievances , Gove and Manser acted immediately upon his suggestion , and it was arranged that Jagoe would meet with them on the morning of January 18. The meeting took place in the pod shop. Initially, Gove, Manser, and another employee, Judy Whitney, comprised the employee group. They were subsequently joined by an additional employee named Mary McComas. Jagoe was accompanied by his secretary, Arlene Lundin. Gove explained to Jagoe that Boettinger had suggested the meeting, and presented to Jagoe a list of grievances that she had solicited from other girls in the pod shop. All six of the people present at this meeting testified concern- ing its events. There is general agreement that Jagoe told the employees at the outset that he would be unable to discuss grievances with them , and that in refusing to do so, he was acting on the advice of counsel. He did, how- ever, take from them the written list of grievances that had been prepared which related to such matters as seniority , wages, lockers, and other matters. It is acknowledged , however, that no definitive discussions ensued as to any item. During the relatively brief time that the parties met, however, Gove , Manser, and Mc- Comas all attribute to Jagoe a remark in which it is claimed that he used the term "troublemaker." According to Gove this came about when she handed Jagoe the list of grievances , and told him "that we couldn't go upstairs and see him." Gove states that Jagoe then asked if "[she had] ever had any trouble seeing him" and after she had responded that she had not , Jagoe had then said, "it seems to me like we have a troublemaker here, if we could just find out who it is." Manser testified that Jagoe had told the group that "he couldn't say anything because his attorney wouldn't allow him to say anything " and then he said , "if he could find the troublemaker in the shop he would certainly do something about it." McComas testified that Jagoe told the group that he brought his secretary so that anything that he said could not be misin- terpreted. McComas states that after Jagoe received the grievance list he said, "I feel that these girls are being stirred up by a troublemaker and if I can find who it is we will eliminate that trouble." Judith Whitney, the fourth employee , although called as a witness was not questioned concerning the "troublemaker" remark, and she volunteered no testimony along such lines . In other respects her testimony was not inconsistent with that of the other employees . When Jagoe and Lundin were specifically asked concerning mention of the word "troublemaker," each denied that the term had been used at this meeting. No one of the witnesses attributed to Jagoe any mention of the Union or its organizational drive, or any direct reference to the participation of any one of them in the drive. The testimony regarding this meeting presents a dif- ficult issue of credibility . On the one hand there are three apparently credible witnesses testifying consistently that Jagoe made the "troublemaker" remark . On the other hand we have Jagoe himself corroborated by his secreta- ry, specifically denying it. While there is little reason to believe that any one of the employee witnesses was pur- posely fabricating her testimony, it is equally difficult to believe that a sophisticated employer being directly ad- vised by counsel concerning what lawful expressions he might make to his employees and who was taking the precaution of bringing with him his own secretary as a 336-845 0 - 70 - 11 148 DECISIONS OF NATIONAL LABOR RELATIONS BOARD witness to the meeting would deliberately or inadver- tently so forget himself as to make a remark that might be viewed as a threat of reprisal. Despite the denials of Jagoe and Lundin, however, I find it likely that Jagoe did use the term "troublemaker" in substantially the manner which the employees relate. The three not only testified consistently in an apparently credible manner, but their direct interest in the outcome of the proceeding is suffi- ciently remote that I am disposed to discount any tempta- tion to color their testimony. That all three would report use of the same term suggests that this is what in all likelihood they actually-heard, and, when this is balanced against the less remote incentive of Respondent's wit- nesses conveniently to forget a remark of this nature, I find it more likely that the testimony of the three em- ployees represents what was said. Accordingly, I find that Jagoe did make the "troublemaker" remark substan- tially as related above. The term "troublemaker" is one frequently used in reference to persons engaged in union organization, and its use here when coupled with the re- mark that if the "troublemaker" were found the employer would "eliminate the trouble" or "do something about it" might reasonably be regarded as a threat of reprisal. This is not necessarily its only connotation, however, and I will give further consideration below to the significance of the remark as it relates to the central issue in this proceeding. E. Discussion of the Issues and Conclusions Having found the Union to be the statutory representa- tive of Respondent's employees, and that its request for recognition was refused by Respondent on December 10, 1965, we must next consider: (1) Whether or not Re- spondent engaged in any unlawful acts whatsoever within the meaning of Section 8(a)(1) of the Act; and (2) if so, whether or not this unlawful conduct is of such a nature that it will support the issuance of a bargaining order as the General Counsel contends. I have found above that General Manager Schlamp, President Jagoe, and Foreman Salemsaas engaged in in- terrogation of employees concerning their union activities both before and after Respondent's refusal to recognize the Union, and that in some instances they also sought the support of these employees in reporting the union ac- tivities of other employees. I have also found that Foreman Salemsaas told an employee that there might be layoffs if the Union came in, and suggested that this em- ployee pass on word of this to other employees. In addi- tion I have found that President Jagoe indicated to several employees that he felt there was a "troublemaker" in their midst, and that he, Jagoe, would take steps to eliminate the "trouble." While interrogation of employees is not per se a viola- tion of the Act, it has long been the Board's view that in- terrogation of employees concerning their union activities when considered in the light of surrounding circum- stances may be regarded as having a coercive character." Generally speaking the test to be applied is whether or not the questioning occurs in circumstances in which it can be shown that it has no relevant purpose, whether it takes place in conjunction with other unfair labor prac- tices, and whether or not it is accompanied by safeguards whereby the employees questioned are assured that reprisals will not be undertaken. In the instant case no relevant purpose is advanced by Respondent in support of its interrogations. Apparently Respondent sought thereby not only to learn the union sentiments of the em- ployees questioned, but also endeavored to enlist the sup- port of such employees in informing Respondent as to the union activities of others. While questioning an employee about his part in union organization may suggest the em- ployer's interest in that person alone, when such questioning is coupled with a request for a continued flow of information about union organization, and is not at the same time accompanied by assurances that no reprisals will be forthcoming, it carries the additional connotation that rewards or reprisals may result depending upon whether the questioned employee complies or fails to comply with the request for information. I find that under the circumstances here presented, the interrogations un- dertaken by Schlamp, Jagoe, and Salemsaas, both before and after the refusal to bargain, took place in circum- stances which gave them a coercive character, and that by engaging in such interrogations, Respondent has vio- lated Section 8(a)(1) of the Act. The statement of Foreman Salemsaas that there might be layoffs if the Union came in, coupled with his request that Kennedy pass this on to other employees, constitutes a well-defined threat of reprisal of an even more serious nature. Few things carry a stronger thrust and are more clearly calculated to influence an employee in the exer- cise of his statutory rights than his being told that if he un- dertakes to bring in a union, layoffs may result. Moreover, Respondent compounded this coercive effect by urging that word of it be circulated among the em- ployees. Accordingly, I find that by the threat of layoff Respondent has engaged in conduct violative of Section 8(a)(1) of the Act. The "troublemaker" remark of President Jagoe, con- sidered in the context in which it was made, presents an issue which is not so well defined. It must be noted that the remarks were made at a meeting not scheduled by Respondent, but requested by the employees themselves. At the outset of the meeting Jagoe was informed that the employees had been told that Jagoe would not meet with them to discuss grievances. This elicited an expression of surprise from Jagoe, who, upon learning that none of these employees had previously requested or been denied a meeting for such purpose, commenced to speculate upon who might be responsible for having spread such an impression, concurrently describing such person as a "troublemaker." Jagoe did not couple his comment with a direct reference to the Union, nor does it appear that the subject of union organization or the participation of any of the employees present in organizational efforts came up at all. Nevertheless, as I have found above, Jagoe in making such remarks placed no limitation upon their scope. I am not called upon to speculate as to the actual effect remarks of this nature may have on employees. However, I cannot overlook the fact that a statement of this nature may well have come through to employees pondering their vote in the election scheduled for the next day as an expression by top management that an em- ployee engaged in stirring up others for organizational or other reasons might thereby subject himself to reprisals. 8 Blue Flash Express, Inc , 109 NLRB 591. FABRICATORS, INC. Respondent is not to be excused from the reasonable ef- fect that its statement may have upon its employees even though such statement may have been made inadver- tently or without specific intent that it have such effect. Accordingly , having found that Jagoe made the "troublemaker" remark , I further find that such state- ment constitutes a threat of possible reprisal, and is thereby an interference with basic employee rights viola- tive of Section 8(a)(1) of the Act. The significance of the violation , however, as it relates to supporting the bargain- ing order, will be considered further below. Having found Respondent to have engaged in unlawful conduct in violation of Section 8 (a)(1) of the Act, we must next consider whether this course of conduct is properly remedied by a cease-and-desist order alone , coupled, per- haps , with an order setting aside the election , or whether under currently applicable Board doctrine Respondent should also be required to bargain with the Union as its statutory representative. This raises an issue concerning the application of the Board's so-called Joy Silk Mills or Bernel Foam doctrine.9 The doctrine in its general outline recognizes that the determination of 'questions concerning representation is ordinarily best resolved by secret -ballot elections, but that an employer's right to an election is not absolute, and where the employer has evidenced bad faith in doubting the union's majority, or has engaged in conduct calculated to dissipate such majority , authorization cards may be used to prove the union 's majority and to support a bar- gaining order against the employer . The underlying prin- ciple behind the doctrine and a general limitation upon its application are well stated in the following excerpt from the Board's decision in Aaron Brothers Company of California, 158 NLRB 1077, 1079: Whether an employer is acting in good or bad faith in questioning the union's majority is a determination which of necessity must be made in the light of all the relevant facts of the case , including any unlawful conduct of the employer , the sequence of events, and the time lapse between the refusal and the unlawful conduct. Where a company has engaged in substan- tial unfair labor practices calculated to dissipate union support , the Board , with the courts' approval, has concluded that employer insistence on an elec- tion was not motivated by a good-faith doubt of the union's majority , but rather by a rejection of the col- lective-bargaining principle or by a desire to gain time within which to undermine the union . However, this does not mean that any employer conduct found violative of Section 8(a)(1) of the Act , regardless of its nature or gravity , will necessarily support a refusal-to-bargain finding. For instance, where an employer's unfair labor practices are not of such a character as to reflect a purpose to evade an obliga- tion to bargain , the Board will not draw an inference of bad faith. The doctrine , as above stated, is limited to situations where widespread and serious unfair labor practices mark an employer's response to the raising of a question con- cerning representation among its employees. The Board qualifies its application , however, by stating that in every 149 case where unfair labor practices are found, a bargaining order will not follow, for in some situations the unfair labor practices found will not suffice to support an in- ference of bad faith in the refusal to bargain. This qualifi- cation or limitation on the application of the doctrine is dictated by the necessity to place the significance of an employer's misconduct in its proper perspective. Promo- tion of collective bargaining with freely chosen represen- tativef^ of employees is an underlying aim of the statute. While we can determine what type of employer conduct is calculated to interfere with the free choice of represent- atives, we cannot precisely measure the actual effect that such conduct will have on the particular employees in any given case. To order bargaining even in the face of flagrant unfair labor practices may thus result in giving the employees a representative which they may or may not desire. However, if the unfair labor practices have been widespread and aggravated, we may conclude not only that it is reasonable that the employer should forfeit any right it otherwise might have to get the representation question resolved by a secret ballot, but we may also con- clude that the effect of such unfair labor practices has been such that employees cannot now, or in the reasonably foreseeable future, exercise a free choice of representatives. In such a situation it may well be that the earlier designation of a union by signing a card at a time before the unfair labor practices had taken place, will represent a more reliable gauge of their free choice than any other means left available. The bargaining order becomes the appropriate remedy here not because it with certainty reflects employee choice, but because ag- gravated employer misconduct has destroyed the means of resorting to another method, and the order under the circumstances is the most likely means of making such choice and at the same time preventing the employer's profiting from his own wrongdoing. On the other hand where the unfair labor practices are not widespread or of a substantial nature , or if they are isolated and sporadic, they neither demonstrate a clear disposition upon the em- ployer's part to nullify the employee rights of free choice, nor do they create a situation where it is as likely that the employer's views will come through to the employees in such a way that it will in fact have this effect. In such a case it is not as clear that the earlier card designation, an intrinsically less reliable method of designating represent- atives than an election, is likely to be a more accurate ex- pression of choice or that another method is effectively foreclosed. While less significant unfair labor practices are not to be condoned , they can be remedied in a manner other than imposing a bargaining agent which may not represent the free choice of the employees . In such a case a cease-and-desist order, notification to the employees thereof, and the conduct of an election or another elec- tion, as the case may be, stands out as the better method of remedying the wrong done. The line separating the flagrant from the mild , unfair labor practice situation, however, is not one which can be sharply drawn, and a determination in any given case can only be made by a consideration of all the circumstances, and by making a value judgment on which reasonable men may differ. We must next turn to the application of the foregoing as it ap- plies to the record before us. "Joy Silk Mills, Inc , 85 NLRB 1263, enfd 185 F 2d 732 (C A. D C ), Bernel Foam Products Co, Inc, 146 NLRB 1277 150 DECISIONS OF NATIONAL LABOR RELATIONS BOARD Looking first at the organizational drive which led up to the demand for recognition, the record discloses that it was accompanied by no widespread expression of union animus upon Respondent's part. Except for the question- ing of one employee in September, coupled with the re- mark that Respondent did not favor unions, and some rather limited questioning of older employees as to their knowledge of union activity, accompanied by solicitation of their help in reporting to management, little else characterized this period. Even this questioning was not accompanied by overt threats of reprisal or promises of benefit. Thus in the organizational period I see little but somewhat mild opposition to union organization, exceed- ing permissible bounds in some cases, but not going so far as to suggest that at this point Respondent was rejecting the collective-bargaining principle or undertaking a con- certed attack aimed at undermining the Union. Respondent's refusal to recognize the Union voiced on December 10, 1965, does not take place in circumstances suggesting bad faith, or a design to gain time to undermine the Union. While the Union did offer to show its cards to Respondent, it did not do so, and Respondent at no time acknowledged that the Union had a majority. Respondent replied promptly to the Union's request for a meeting, and within a reasonable time advised the Union that it was declining to accord it recognition until it had established a majority through Board machinery. Moreover, at this juncture a legitimate unit question ex- isted. The Union was seeking a unit which excluded the machine shop, while Respondent contended it should be included. As we have seen this issue was litigated in the Board representation proceeding, and the Regional Director found the machine shop properly to be part of the unit. In addition there were unit issues between the parties as to the inclusion or exclusion of certain fringe employees which were likewise resolved by the Regional Director. Thus it would appear that Respondent's initial refusal to accord the Union recognition was made in good faith and did not occur in a setting suggesting rejection of the collective-bargaining principle, and I so find. Application of the Joy Silk Mills doctrine then must rest upon Respondent's postrefusal conduct, which we must now examine to determine if this, when considered with what had gone before, is of a "nature and gravity" so as to "reflect a purpose to evade an obligation to bargain" from which we may "draw an inference of bad faith suffi- cient to support a bargaining order." I have found only three incidents to have transpired after the refusal to bargain: the layoff threat of Salemsaas made to Kennedy; the interrogation of Manser by Salem- saas; and the "troublemaker" remark by Jagoe. The serious character of the layoff threat made by Salemsaas is manifest especially when it is noted that he suggested that Kennedy communicate his views to em- ployees. It should not be overlooked, however, that this threat was limited to one employee, and that this record does not disclose the extent to which Kennedy actually circulated the information she had received. In addition, Salemsaas, while clearly a supervisory employee, was the foreman of only one of Respondent's departments and no evidence has been adduced that top management knew of or endorsed his expressed views. The policy of top management opposing organization was fully expressed in the letters and in a speech by Jagoe found by the Re- gional Director to be within the limits of Section 8(e). In view of this and Jagoe's obvious awareness of the legal limitations on expressions to employees, I find it unlikely that he would have endorsed such an expression as that attributed to Salemsaas or if he had known of it that he would not have disavowed it. Although this does not suf- fice to vitiate responsibility of Respondent for the coer- cive character of the statement, it gives the incident a du- bious significance as a measure of Respondent's rejection of the collective-bargaining principle or overall aim to un- dermine the Union. The questioning of Manser by Salemsaas like the earli- er questioning of Schlamp and Jagoe was isolated and not accompanied by additional overt expressions of threats of reprisal. Considering this and Salemsaas' status as a minor supervisor, this too does not stand out as a rejec- tion by Respondent of its statutory obligations. Jagoe's "troublemaker" remark, of course, emanated from the highest management source. Although Jagoe may not escape responsibility, full consideration of the context in which it was made does not convince me that it had an intentional unlawful connotation. The so-called grievance meeting was solicited by the employees them- selves and it is significant that the organizational cam- paign and their connection with it were subjects not brought up at all during the course of it. While use of the term "troublemaker" had a possible relationship to union organization and may have been so regarded, it is equally possible that the reference might have been meant, and might have come through as referring to the unknown person or persons responsible for giving the employees the impression that Jagoe was unwilling to meet with them concerning their grievances. This might even have been a management representative. Thus the remark, while unfortunate, does not appear in a setting where it reasonably suggests a rejection of the collective-bargain- ing principle or that it is an integral part of a planned ef- fort to undermine the Union. Contrary to the claim of the General Counsel I do not find in the foregoing unfair labor practices conduct of so widespread or of such serious nature that it reasonably supports an inference of bad' faith, and an effort by Respondent to evade its statutory duty to bargain. While it cannot be said with precision exactly what effect the conduct may have had on the employees here, I do not see misconduct of such gravity that it calls for depriving the employees of their right of free choice by the more re- liable secret-ballot method. I am convinced that the more drastic bargaining remedy must be reserved for situations where the unfair labor practices found are both more ex- tensive and more flagrant than they appear in the instant case. In this situation I deem it more appropriate that they be remedied by a cease-and-desist order alone. Ac- cordingly I find that the General Counsel has not sustained the burden of establishing that Respondent has refused to bargain in bad faith within the meaning of Sec- tion 8(a)(1) or (5) of the Act. And I will recommend that the allegations regarding Respondent's refusal to bargain be dismissed. IV. THE OBJECTIONS TO THE ELECTION In consolidating the representation proceeding with the complaint proceeding, the Regional Director concluded that Respondent's speech of January 18 and a prior letter to the employees were privileged within the meaning of Section 8(c) of the Act. He also concluded, however, that other matters raised substantial and material issues with p. FABRICATORS, INC. 151 respect to conduct affecting the results of the election, and that these issues should be resolved after hearing. Among these were an alleged unlawful wage increase. General Counsel did not allege a wage increase as an un- fair labor practice, nor was evidence adduced to support it as an objection. The threats of reprisals or promises of benefit , the interrogations , the alleged solicitation and sponsorship of an inside plant grievance committee noted in the objections appear to encompass the same matters alleged in the complaint, and are treated with in connec- tion with the findings made above. No additional matters were offered relating to the objections alone. I have found above that Respondent engaged in unlaw- ful interrogation and unlawful threats of reprisal in viola- tion of Section 8(a)(1) of the Act. While I have not found such conduct sufficient to support a bargaining order, dif- ferent criteria are applicable when the issue is setting aside an election. The Board has consistently held that "[c]onduct violative of Section 8(a)(1) is, a fortiori, conduct which interferes with the free and untrammeled choice in an election. This is so because the test of con- duct which may interfere with the laboratory conditions for an election is considerably more restrictive than the test of conduct which amounts to interference, restraint, or coercion which violates Section 8(a)(1)." Dal-Tex Op- tical Company, Inc., 137 NLRB 1782. Since the unlawful conduct found above may have affected the free choice of the employees in the election, it follows that the election conducted on January 19, 1966, should be set aside. Ac- cordingly I find that objections filed by the Petitioner in the representation proceeding herein do raise substantial and material issues with respect to conduct affecting the results of the election, and that the election heretofore held in Case 19-RC-3822 should be, and the same hereby is, set aside. V. The Effect of the Unfair Labor Practices Upon Commerce The activities of Respondent set forth in section III, above, occurring in connection with Respondent's opera- tions described in section 1, above, have a close, intimate, and substantial relationship to trade, traffic, and com- merce among the several States and tend to lead to labor disputes burdening and obstructing commerce and the free flow of commerce. Vi. THE REMEDY 4. On December 10, 1965, Respondent failed to ac- cord the Union recognition as the statutory representa- tive of employees in the aforesaid unit. 5. By acts of interrogation, threats of reprisals, and promises of benefits, as found above, Respondent has in- terfered with, restrained, and coerced its employees in violation of Section 8(a)(1) of the Act. 6. By its refusal to accord the Union recognition on December 10, 1965, and by the acts and conduct found violative of Section 8(a)(1), Respondent has not engaged in a refusal to bargain within the meaning of Section 8(a)(1) and (5) of the Act. RECOMMENDED ORDER Upon the basis of the foregoing findings of fact and conclusions of law and the entire record in this proceed- ing, I recommend that Fabricators, Incorporated, its of- ficers, agents, successors, and assigns, shall: 1. Cease and desist from. (a) Unlawfully interrogating its employees, threaten- ing them with economic reprisals, or offering them promises of benefit for the purpose of influencing their union activities or sympathies. (b) In any like or related manner interfering with, restraining, or coercing its employees in the exercise of their right to self-organization, to form, join, or assist the above-named Union or any other labor organization, to bargain collecti-vely through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutal aid or protection. 2. Take the following affirmative steps designed to ef- fectuate the policies of the Act: (a) Post at its plant in Seattle, Washington, copies of the attached notice marked "Appendix."10 Copies of said notice, to be furnished by the Regional Director for Re- gion 19, after being duly signed by Respondent's representative, shall be posted by Respondent im- mediately upon receipt thereof, and be maintained by it for 60 consecutive days thereafter, in conspicuous places, including all places where notices to employees are customarily posted. Reasonable steps shall be taken by the respondent to insure that said notices are not altered, defaced, or covered by any other material. (b) Notify the Regional Director for Region 19, in writing, within 20 days from the receipt of this Decision, what steps have been taken to comply herewith." Having found that Respondent has engaged in unfair labor practices, it will be recommended that it cease and desist therefrom and take certain affirmative action designed to effectuate the policies of the Act. Upon the basis of the foregoing findings of fact, and upon the entire record in this case, I make the following: CONCLUSIONS OF LAW 1. Respondent is engaged in commerce within the meaning of Section 2(6) and (7) of the Act. 2. Assortment Sheet Metal Workers Local Union No. 383, affiliated with Sheet Metal Workers Association, AFL-CIO, is a labor organization within the meaning of Section 2(5) of the Act. 3. The unit above described in section III is a unit ap- propriate for the purposes of collective bargaining within the meaning of Section 9(b) of the Act. 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 is enforced by a decree of a United States Court of Appeals, the words "a Decree of the United States Court of Ap- peals Enforcing an Order" shall be substituted for the words "a Decision and Order " " 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 Re- spondent has taken to comply herewith " APPENDIX NOTICE TO ALL EMPLOYEES Pursuant to the Recommended Order of a Trial Ex- aminer of the National Labor Relations Board and in order to effectuate the policies of the National Labor 152 DECISIONS OF NATIONAL Relations Act, as amended, we hereby notify our em- ployees that: WE WILL NOT unlawfully interrogate our em- ployees, threaten them with economic reprisals, or promise them economic benefits for the purpose of influencing their union activities or sympathies. WE WILL NOT in any like or related manner inter- fere with, restrain, or coercce our employees in the excerise of their right to self-organization, to form, join, or assist Assortment Sheet Metal Workers Local Union No. 383, affiliated with the Sheet Metal Workers Association, AFL-CIO, or any other labor organization, to bargain collectively through representatives of their own choosing, and to engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection or to refrain from any or all such activities. All our employees are free to become or remain, or refrain from becoming or remaining, members of Assort- LABOR RELATIONS BOARD ment Sheet Metal Workers Local Union No. 383, af- filiated with the Sheet Metal Workers Association, AFL-CIO. FABRICATORS, INCOR- PORATED (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 provisions, they may communicate directly with the Board's Regional Office, 327 Logan Building, 500 Union Street, Seattle, Washington 98101, Telephone 583-4583.